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February 12, 2004.


The opinion of the court was delivered by: DAVID HURD, District Judge



  Plaintiff Excelsior College ("Excelsior") filed a complaint in this matter on February 20, 2003, alleging copyright infringement, Lanham Act violations, false advertising, and various related causes of action. In lieu of answering defendants Charles M. Frye, ("Frye"), Professional Development Systems School of Health Sciences ("PDS"), and West Haven University ("West Haven") (collectively "defendants") moved to dismiss the complaint for lack Page 2 of personal jurisdiction or, in the alternative, to transfer venue to the Southern District of California.*fn1 Oral argument was heard on July 25, 2003, in Albany, New York. Decision was reserved.


  The following facts are as set forth in the complaint unless otherwise noted. Excelsior is a New York corporation with its principal place of business in Albany, New York. Excelsior is chartered by the Board of Regents of the University of the State of New York. It offers associate, baccalaureate, and masters degrees in a variety of subject areas including nursing, which is at issue here. Its associate and baccalaureate degree programs in nursing are accredited by the National League for Nursing Accrediting Commission.

  Excelsior's degree programs, including its nursing degrees, are presented in a non-traditional manner. That is, students are provided with a "content guide" from which they study and testing is done at regional testing centers. Students receive credit when a test is complete, and when sufficient credits are accumulated a degree is conferred. There are no teachers, no classrooms, and no clinical training. Excelsior's trademarks, content guides, and examinations for the nursing programs are allegedly protected by copyright.

  PDS and West Haven are California corporations, doing business at Cypress, California. Frye was the sole proprietor of each of these entities before their incorporation. Frye asserts that the corporate forms of PDS and West Haven neither conduct business nor have any assets. Defendants assert that the only business being conducted is by the sole proprietorships. Page 3

  Defendants also offer various distance-learning degree programs, including nursing. They offer training programs, including classroom teaching, in order to prepare students for testing by other entities, such as Excelsior. Students pay a fee to defendants, as well as enroll (and pay the tuition fee) in another educational institution from which the degree will eventually be granted.

  Excelsior alleges that defendants used its content guide in developing PDS and West Haven's nursing curricula, and copied a substantial portion of the content guide and used it in a submission to obtain approval of PDS and West Haven programs from the appropriate California higher education authorities. Excelsior further alleges that PDS and West Haven University have embedded certain codes into their web sites' source code so that an internet search for "Excelsior College" yields the PDS and West Haven web sites. Excelsior contends that these actions infringe its rights as set forth in the allegations of the complaint.


A. Motion to Dismiss for Lack of Personal Jurisdiction
  In order to determine whether personal jurisdiction exists, it must be determined if defendants fall within the reach of New York's long-arm statute and if so whether such jurisdiction comports with due process, by meeting the minimum contacts and reasonableness requirements set forth in World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 So. Ct. 559 (1980). Plaintiff need only make a prima facie showing of personal jurisdiction to defeat a dismissal motion. Editorial Musical Latino Americana. S.A. v. MAR Int'l Records, Inc., 829 F. Supp. 62, 64 (S.D.N.Y. 1993). Affidavits may be considered and Page 4 the facts must be viewed in the light most favorable to plaintiff. Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 57 (2d Cir. 1985).

  1. New York's Long Arm Statute

  Personal jurisdiction over a defendant is determined by the law of the jurisdiction in which the district court sits, in this instance, New York. Id. New York's long arm statute provides in relevant part:
a court may exercise personal jurisdiction over any non-domiciliary . . . who in person or through an agent: 1. transacts any business within the state or contracts anywhere to supply goods or services in the state; or 2. commits a tortious act within the state . . . or 3. commits a tortious act without the state causing injury to person or property within the state.
N.Y. C.P.L.R. § 302(a) (McKinney 2001) ("CPLR"). "Under [CPLR § 302], a single transaction of business is sufficient to confer jurisdiction, even if the defendant never entered New York, `so long as the defendant's activities [in New York] were purposeful and there is a substantial relationship between the transaction and the claim asserted.'" Motorola Credit Corp. v. Uzan, 274 F. Supp.2d 481, 575 (S.D.N.Y. 2003) (quoting Kreutter v. McFadden Oil Corp., 71 N.Y.2d 460, 467; 527 N.Y.S.2d 195, 198-99; 522 N.E.2d 40, 43 (1988)).

  Defendants contend that plaintiff cannot satisfy the requirements of New York's long arm statute. However, Excelsior points to the defendants' web site to show that they transact business within the state of New York, with students who reside here. West Haven has had at least three students and PDS has had at least seven students who resided in New York State. The web site provides chat rooms for student communications, a study hall, and on-line training sessions. It permits students to log in to their personal account and conduct transactions relating to that account including enrollment, payment of fees, and obtaining course materials. These facts constitute a prima facie showing that defendants Page 5 transact business within the state. See Citigroup Inc. v. City Holding Co., 97 F. Supp.2d 549, 565-66 (S.D.N.Y. 2000) (finding specific personal jurisdiction under CPLR § 302(a)(1) where defendant's web sites were interactive, allowing, for example, customers in New York to apply for loans and chat on-line). Moreover, if, as plaintiff alleges, defendants' nursing study guides infringe plaintiff's work, then offering them for sale in New York (via the web site) is sufficient to confer personal jurisdiction over the defendants. See Editorial Musical Latino Americana. S.A., 829 F. Supp. at 64-65; see also Citigroup Inc., 97 F. Supp.2d at 567 (finding that an on-line chat "transmission of messages that contain allegedly infringing marks to New York residents" was an attempt to pass off the offending mark within New York State, therefore supporting jurisdiction under CPLR § 302(a)(2)). Finally, PDS and West Haven admit that they have enrolled ten ...

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