The opinion of the court was delivered by: P. Kevin Castel, District Judge
Plaintiff alleges that defendants have wrongfully used plaintiff's registered trademarks in violation of the Anti-Cybersquatting Consumer Protection Act, 15 U.S.C. § 1125(d), the Lanham Trade-Mark Act, 15 U.S.C. § 1125(d)(1)(A), New York General Business Law §§ 349-350, and have engaged in common-law fraud.
Defendants Kevin Dyevich and SAT Beds move to dismiss the complaint for lack of personal jurisdiction. Mr. Dyevich proceeds pro se. SAT Beds is not a separate entity but merely the name in which Dyevich conducts business. I will treat the motion as having been made pursuant to Rule 12(b)(2).
Plaintiff has cross-moved for the imposition of sanctions against defendants in the form of the entry of a default judgment against Dyevich, SAT Beds and Comfort Direct, Inc. ("Comfort Direct"). Plaintiff also renews its previous motion for a default judgment against Comfort Direct, which has served neither an answer nor motion to dismiss.
The Summons and Complaint, as well as the Amended Complaint, were served on Dyevich and SAT Beds on October 12, 2006. (Doc. Nos. 4, 6, 11, 13.) When neither defendant timely responded, plaintiff sought entry of a default judgment. (Doc. Nos. 14, 17.) On November 27, 2006, I adjourned the initial conference from December 1, 2006 to January 4, 2007 at 11:45 a.m. (Doc. No. 15.) Mr. Dyevich wrote to the Court on December 8 indicating that he had appeared on December 1. I advised him of the January 4 conference and to consider retaining a lawyer. (Doc. No. 16.)
On January 4, 2007, Mr. Dyevich appeared before me. (January 4, 2007, Tr. at 3, 6.) Dyevich raised the issue of personal jurisdiction and, after hearing the parties, I gave the plaintiff a limited time period to conduct jurisdictional discovery and set a date for defendants to file their motion to dismiss. (Id. at 5.) When neither an answer nor a motion was filed by any defendant by the date set by the Court, plaintiff renewed its motion for entry of a default judgment against Dyevich, SAT Beds and Comfort Direct.
In an Order dated March 6, 2007, I directed Dyevich to appear for his deposition at a date, time and place designated by plaintiff in Dyevich's home state, New Jersey. (Doc. No. 21.) In view of his pro se status, I extended his time to answer or move to April 18, 2007.
Comfort Direct was served with the Summons and Complaint, as well as the Amended Complaint, on October 12, 2006. (Doc. No. 5, 12.) It has never answered, moved or otherwise appeared in this action. On January 4, 2007, I made it plain to Mr. Dyevich that Comfort Direct, Inc. must appear by an attorney admitted to practice before this Court and extended its time to answer or otherwise respond until January 19, 2007, which was subsequently extended to February 2, 2007. A response to the complaint was never filed. On March 6, 2006, I denied plaintiff's motion to hold Comfort Direct in default without prejudice to renewal upon a showing of personal jurisdiction over the entity in New York. (Doc. No. 21.)
Facts Supporting Personal Jurisdiction
The evidence demonstrates that defendants sell mattresses through telemarketing and website promotion; customers place their orders through a toll free telephone number that is found on the website. (Dep. Tr. 84.) Dyevich is the president and a shareholder of Comfort Direct and formed the corporation. (Dep. Tr. 25, 46.) Dyevich and Comfort Direct operate out of 195 Livingston Avenue, New Brunswick, New Jersey, and now SAT Beds operates out of the same address. (Dep. Tr. 29-30, 55.) The same or nearly the same mattresses were sold by Comfort Direct and SAT Beds. (Dep. Tr. 31, 56.) Comfort Direct, Inc. and SAT Beds utilize the same 1-800 number. (Dep. Tr. 84-86.) As of the date of Dyevich's deposition, if one were to type "www.comfortdirect.com" as an internet address, the person would be taken to the satbed.com website. (Dep. Tr. 34.)
The mattresses sold by Dyevich, SAT Beds and Comfort Direct are manufactured and/or stored by an entity called "WCW" in Hoosick Falls, New York. When an order is received, an employee in New Brunswick, New Jersey, faxes the order to WCW in Hoosick Falls. (Dep. Tr. 91-92.) Approximately ten such faxes are sent to Hoosick Falls per day, corresponding to approximately ten mattress sales per day. (Dep. Tr. 92.) If the customer pays by check, then the check is mailed to Hoosick Falls. (Dep. Tr. 92.) The mattresses are shipped from Hoosick Falls to customers wherever they are located. The SAT Beds website lists its "International Sales Headquarters" as "The SAT Bed Company, Hoosick Falls, New York." (Schatz Decl. Ex. E.) There are substantial sales to customers in New York, among other states, as demonstrated by testimonials listed on the SAT Beds website. (Schatz Decl. Ex. G.)
The Federal Rules of Civil Procedure authorize the exercise of personal jurisdiction in federal court over any defendant "who could be subjected to the jurisdiction of a court of general jurisdiction in the state in which the ...