United States District Court, S.D. New York
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
For Chatwal Hotels & Resorts LLC, Plaintiff: Karl F. Milde, Jr, Robert William Morris, LEAD ATTORNEYS, Eckert, Seamans, Cherin & Mellott LLC, White Plains, NY.
For The Dollywood Company, Herschend Family Entertainment Corporation, Dolly Parton Productions, Inc., Defendants: John Gerard McCarthy, Sr, LEAD ATTORNEY, Smith, Gambrell & Russell, LLP(NYC), New York, NY; J. Rodgers Lunsford, III, Smith, Gambrell & Russell, LL, Atlanta, GA.
MEMORANDUM DECISION AND ORDER DENYING DEFENDANTS' MOTION TO DISMISS
Colleen McMahon, UNITED STATES DISTRICT JUDGE.
Plaintiff Chatwal Hotels & Resorts LLC (" Chatwal" ) brings this action against defendants The Dollywood Company (" Dollywood JV" ), Herschend Family Entertainment Corporation (" Herschend" ), and Dolly Parton Productions, Inc. (" DPP" ). The complaint alleges that Dollywood JV, Herschend, and DPP infringed its trademarks and engaged in unfair competition in violation of The Lanham Act, 15 U.S.C. § § 1051, et seq. Chatwal seeks declaratory and injunctive relief, as well as damages, attorneys' fees, and costs, pursuant to 15 U.S.C. § 1117.
Currently before the court is defendants' motion to dismiss for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2). For the reasons set forth below, this court concludes that it does have personal jurisdiction over the defendants; the motion to dismiss is denied.
Plaintiff Chatwal is a New York limited liability company, with headquarters located in New York. (Compl. ¶ 1.) Chatwal owns and operates a chain of luxury hotels in the United States and throughout the world, and has secured the DREAM mark and THE DREAM HOTEL mark in connection with its hotel services. (Compl. ¶ ¶ 6-10.) Of Chatwal's five DREAM hotels, two are located in New York and one is in Miami Beach. (Compl. ¶ 7.)
Dollywood JV is a joint venture organized under the laws of the State of Tennessee with its principal place of business in Pigeon Forge, Tennessee. (Compl. ¶ 2.) At the time of filing, Dollywood JV was composed of Herschend and DPP. ( Id.) Herschend is a Missouri corporation with its principal place of business in Georgia. (Wexler Deel ¶ 3.) DPP is a California corporation with its principal place of business in Tennessee. (Miller Decl. ¶ 3.)
Dollywood JV was formed for the purpose of owning and operating the Dollywood amusement park in Pigeon Forge, Tennessee. (Ross Decl. ¶ 3.) Dollywood JV draws visitors to the theme park by advertising on dollywood.com, and with television advertisements targeting customers in Tennessee and some areas of Georgia, (Ross Decl. ¶ 6.) In 2012, Dollywood JV began plans to open a resort adjacent to the Dollywood theme park, selecting " Dollywood's DreamMore Resort"  as its name. (Ross Decl. ¶ 10.) On August 13, 2013, Dollywood JV secured the domain name " dreammoreresort.com" and filed an intent-to-use application to register the DOLLYWOOD'S DREAMMORE RESORT mark in the U.S. Patent and Trademark Office. (Compl. ¶ 13-14.)
The dreammoreresort.com website provides information about the future resort, which is planned to open in the summer of 2015. (Ross Decl. ¶ 12-14.) The website does not yet allow customers to make reservations, and no goods or services are offered for sale. ( Id. at ¶ 14.) The website does allow customers to sign up for the " Founders Club" free of charge, providing members with news and information regarding the resort. ( Id.) More than 30,000 people signed up for the Founders
Club, and approximately 1% of those individuals were New York residents. ( id.)
Dollywood JV contracted with the Ice Theater of New York to perform " Dollywood's Christmas on Ice." (Metzger Decl. Exhibit B.) DPP has also entered into sporadic contracts with New York companies, such as providing composer-lyricist services for a musical performed in New York. (Plaintiff's Opposition at 9.) DPP filed New York state income tax returns from income derived from that contract. ( Id.) Herschend's subsidiary managed another theme park located in New York for several years. (Plaintiff's Opposition at 10.) Herschend is registered to do business in New York and has paid taxes in New York. ( Id.)
Chatwal filed suit on October 30, 2014, alleging that the use of the DOLLYWOOD'S DREAMMORE RESORT mark infringes on Chatwal's federally registered trademarks, in violation of 15 U.S.C. § 1114, and unfair competition, in violation of 15 U.S.C. § 1125(a).
In November 2014--after the filing of this Complaint--Dollywood JV sent an offer to all Founders Club members, including the approximate 300 New York residents, allowing up to 1,000 individuals an opportunity to sign up for a special promotion for a $100.00 fee. ( Id. at 15.)
I. Standard of Review
On a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of establishing that the court has jurisdiction over the defendants. In re Magnetic Audiotape Antitrust Litig., 334 F.3d 204, 206 (2d Cir. 2003); DiStefano v. Carozzi N. Am., Inc., 286 F.3d 81, 84 (2d Cir. 2001). The plaintiffs burden of proof " depends upon the procedural context in which the jurisdictional challenge in raised." Navaera Scis., LLC v. Acuity Forensic Inc., 667 F.Supp.2d 369, 373 (S.D.N.Y. 2009). Where, as here, no evidentiary hearing has been held, the plaintiff " need make only a prima facie showing by its pleadings and affidavits that jurisdiction exists." CutCo Indus., Inc., v. Naughton, 806 F.2d 361, 365 (2d Cir. 1986).
A determination regarding personal jurisdiction requires a factual inquiry that goes beyond the complaint, therefore " all pertinent documentation submitted by the parties may be considered in deciding the motion." St. Paul Fire & Marine Ins. Co. v. Eliahu Ins. Co. Ltd., No. 96 Civ. 7269, 1997 WL 357989, at *1 (S.D.N.Y. June 26, 1997), aff'd, 152 F.3d 920 (2d Cir. 1998) (internal quotations omitted). All pleadings and affidavits are to be construed in the light most favorable to the plaintiff, and any doubt is to be resolved in the plaintiff's favor. See Hoffritz for Cutlery, Inc., v. Amajac, Ltd., 763 F.2d 55, 57 (2d Cir. 1985).
The plaintiff's complaint alleges federal claims of trademark infringement and unfair competition predicated on the Lanham Act, which does not contain its own jurisdictional provision. The court turns to the law of the forum state to determine whether personal jurisdiction exists. See Overseas Media, Inc., v. Skvortsov, 407 F.Supp.2d 563 (2d Cir. 2006); Canterbury Belts Ltd. v. ...