Wise v. Lindamood (89 F. Supp. 2d 1187, 1999)

MEMORANDUM OPINION AND ORDER

BABCOCK, District Judge.

Defendants move to dismiss this action pursuant to Rule 12(b)(2) for lack of personal jurisdiction, and pursuant to 28 U.S.C. § 1391(b) for improper venue. Alternatively, Defendants move to transfer this action pursuant to 28 U.S.C. § 1404. The motions are fully briefed. For the reasons set forth below, I deny Defendant’s motions.

I.

Patricia Lindamood (Ms. Lindamood) is a resident of southern California. Ms. Lindamood and her late husband authored programs to develop the sensory cognitive processes that underlie reading, spelling, language comprehension, math, and visual motor skills. These programs are included in a text originally written by Ms. Lin-damood and her late husband and subsequently revised by Ms. Lindamood with the support of others. Ms. Lindamood owns the copyright in the text, and claims trademark protection for her name.

Lindamood-Bell is a California corporation headquartered in San Luis Obispo. One of the purposes of Lindamood-Bell, of which Ms. Lindamood is a director, “is to ensure that [Ms. Lindamood’s] research-based programs ... are available on a broader scale.” Defendants’ Motion to Dismiss at Ex. A, ¶ 12. Toward that end, Ms. Lindamood permits Lindamood-Bell to use her copyrighted materials and trademark in educational programs.

Barbara Wise (Ms. Wise) is a resident of Boulder, Colorado who conducts seminars for teachers and other professionals who work with students with reading disabilities. Each seminar participant receives a manual authored by Ms. Wise entitled Linguistic Remedies for Reading Disabilities (Linguistic Remedies). Remedies for Reading Disabilities, Inc., of which Ms. Wise is the sole shareholder, director, and President, holds the copyright to Linguistic Remedies. Linguistic Remedies references Ms. Lindamood and her programs.

Beginning in February 1998, Ms. Linda-mood commenced communications with Ms. Wise in which she conveyed her belief that Linguistic Remedies infringed her copyright and trademark. In the course of those communications, attorneys for Ms. Lindamood sent two letters to Ms. Wise’s attorneys. Plaintiffs filed the complaint in this action on July 31, 1998 seeking a declaratory judgment that Linguistic Remedies does not infringe Ms. Linda-mood’s rights.

II.

A.

Plaintiffs bear the burden of establishing personal jurisdiction over the defendants. See Far West Capital, Inc. v. Towne, 46 F.3d 1071, 1075 (10th Cir.1995). When the issue is raised before trial and decided on the basis of affidavits and other written materials, a plaintiff need only make a prima facie showing. See id. The burden on the plaintiff is light. See Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir.1995). I may consider matters outside the pleadings. See Schramm v. Oakes, 352 F.2d 143, 149 (10th Cir.1965). If the parties present conflicting affidavits, I must resolve all disputed facts and draw all reasonable inferences in the plaintiffs favor. See Behagen v. Amateur Basketball Ass’n of U.S.A., 744 F.2d 731, 733 (10th Cir.1984), cert. denied, 471 U.S. 1010, 105 S.Ct. 1879, 85 L.Ed.2d 171 (1985). However, “only the well pled facts of plaintiffs complaint, as distinguished from mere conclusory allegations, must be accepted as true.” See Wenz, 55 F.3d at 1505.

The determination of jurisdiction is a two part inquiry. First, I must determine whether there is a basis for jurisdiction under Colorado’s long-arm statute. See C.R.S. § 13-1-124. Colorado’s long-arm statute subjects a defendant to personal jurisdiction for various enumerated acts including the transaction of any business within the state of Colorado. C.R.S. § 13-1-124(1) (Supp.1994). Second, I must determine whether the exercise of jurisdiction violates principles of Due Process under the United States Constitution. See Custom Vinyl Compounding Inc. v. Bushart & Associates, Inc., 810 F.Supp. 285, 287 (D.Colo.1992). Because “the Colorado legislature [in enacting the long-arm statute] intended to extend the jurisdiction of Colorado courts to the fullest extent permitted by the due process clause of the United States Constitution.” Behagen v. Amateur Basketball Association of the United States of America, 744 F.2d 731, 733 (10th Cir.1984) (quoting Waterval v. District Court, 620 P.2d 5, 8 (Colo.1980), cert. denied, 452 U.S. 960, 101 S.Ct. 3108, 69 L.Ed.2d 971 (1981)); see Safari Outfitters of Denver v. Superior Court, 167 Colo. 456, 448 P.2d 783 (1968) (Colorado’s long-arm statute is construed liberally so as to allow jurisdiction to the full extent permitted by due process), the analysis reduces to whether the exercise of personal jurisdiction on the basis of Defendants’ business contacts is consistent with Due Process. See, e.g., Behagen, 744 F.2d at 733; Qwest Communications International, Inc. v. Thomas, 52 F.Supp.2d 1200, 1204 (D.Colo.1999).

Personal jurisdiction under the Due Process Clause may be either general or specific. General jurisdiction arises from a defendant’s continuous and systematic activity in the forum state. See Rambo v. American Southern Ins. Co., 839 F.2d 1415, 1418 (10th Cir.1988). The activity cannot be “random,” “fortuitous,” or “attenuated.” Burger King v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774, 104 S.Ct. 1478, 79 L.Ed.2d 790 (1984)). Rather, the defendant must “purposefully avail itself of the privilege of conducting activities within the forum State,” id. (quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958)), thereby invoking the benefits and protections of the forum state’s laws, but also submitting to the burdens of litigation in that forum. Id. A state has general jurisdiction if a defendant has created “a ‘substantial connection’ with the forum State,” Asahi Metal Industry Co. v. Superior Court of California, 480 U.S. 102, 109, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987), such that it “should reasonably anticipate being haled into court there.” Id. (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)).

Specific jurisdiction, by contrast, arises in the absence of such general activity and is predicated upon a defendant’s minimum contacts with the forum which give rise to the cause of action. Kennedy, 919 F.2d at 128 n. 2. The touchstone inquiry is whether “the defendant has ‘purposefully directed’ its activities toward the forum jurisdiction and [whether] the underlying action is based upon activities that arise out of or relate to the defendant’s contacts with the forum.” In re Application to Enforce Administrative Subpoenas Duces Tecum of S.E.C. v. Knowles, 87 F.3d 413, 418 (10th Cir.1996) (quoting Burger King, 471 U.S. at 472, 105 S.Ct. 2174). “Even a single purposeful contact may be sufficient ... when the underlying proceeding is directly related to that contact.” Id. at 419. See McGee v. International Life Ins. Co., 355 U.S. 220, 223, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957). Nevertheless, “a defendant will not be haled into a jurisdiction solely as a result of ... the ‘unilateral activity of another party or third person.’” Burger King, 471 U.S. at 475, 105 S.Ct. 2174 (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 417, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984)).

Even if a defendant’s contacts satisfy either test, the exercise of jurisdiction must not “offend traditional notions of fair play and substantial justice.’ ” Trierweiler v. Croxton and Trench Holding Corporation, 90 F.3d 1523, 1533 (10th Cir.1996) (quoting International Shoe, 326 U.S. at 316, 66 S.Ct. at 158). In deciding if an action so offends, factors to be considered are (1) the burden on the defendant; (2) the forum state’s interest in resolving the dispute; (3) the plaintiffs interest in receiving convenient and effective relief; (4) the interstate judicial system’s interest in obtaining the most efficient resolution of controversies; and (5) the shared interest of the several states in furthering fundamental substantive social policies. See Asahi Metal Industry Co. v. Superior Court of California, Solano County, 480 U.S. 102, 113, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987); OMI Holdings, Inc. v. Royal Insurance Co. of Canada, 149 F.3d 1086 (10th Cir.1998). The strength of these factors sometimes serves to establish the reasonableness of jurisdiction upon a lesser showing of minimum contacts than would otherwise be required. See Burger King, 471 U.S. at 477, 105 S.Ct. 2174; Ticketmaster-New York, Inc. v. Joseph M. Alioto, 26 F.3d 201, 210 (1st Cir.1994). Conversely, the factors may be so weak that even though minimum contacts are present, subjecting the defendant to jurisdiction in that forum would offend due process. See Burger King, 471 U.S. at 477, 105 S.Ct. 2174; Ticketmaster-New York, 26 F.3d at 210. Nevertheless, “[t]he Due Process Clause may not [ ] be wielded as a territorial shield to avoid interstate obligations that have been voluntarily assumed.” Burger King, 471 U.S. at 474, 105 S.Ct. 2174.

B.

A party moving to transfer a case bears the burden of showing that the existing forum is inconvenient. Chrysler Credit Corp. v. Country Chrysler, Inc., 928 F.2d 1509, 1515 (10th Cir.1991). Among the factors to be considered are:

the plaintiffs choice of forum; the accessibility of witnesses and other sources of proof, including the availability of compulsory process to insure attendance of witnesses; the cost of making the necessary proof; questions as to the enforceability of a judgment if one is obtained; relative advantages and obstacles to a fair trial; difficulties that may arise from congested dockets; the possibility of the existence of questions arising in the area of conflict of laws; the advantage of having a local court determine questions of local law; and all other considerations of a practical nature that make a trial easy, expeditious and economical.

Chrysler, 928 F.2d at 1516 (quoting Texas Gulf Sulphur Co. v. Ritter, 371 F.2d 145, 147 (10th Cir.1967)). In deciding motions for transfer of venue, I must give an “individualized, case-by-case consideration of convenience and fairness.” Stewart Org. v. Ricoh Corp., 487 U.S. 22, 29, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988). Cases may be transferred to prevent waste of time, energy, and money, unnecessary inconvenience, and expense. Van Dusen v. Barrack, 376 U.S. 612, 616, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964); Frontier Airlines, Inc. Retirement Plan for Pilots v. Security Pacific Nat. Bk., N.A., 696 F.Supp. 1403, 1406 (D.Colo.1988). Unless the balance of considerations is strongly in favor of the movant, the plaintiffs choice of forum should rarely be disturbed. William A. Smith Contracting Co., Inc. v. Travelers Indem. Co., 467 F.2d 662, 664 (10th Cir.1972).

III.

A.

1.

Defendants first argue that Plaintiffs cannot establish specific personal jurisdiction over them. Specifically, Defendants contend that Plaintiffs cannot establish that their cause of action is based upon the defendant’s contacts with Colorado. Plaintiffs respond that the two cease and desist letters sent by Ms. Lin-damood’s attorney to Plaintiffs’ attorney evidence such a nexus and that the exercise of jurisdiction is proper. I disagree.

The dispute in this case results from the alleged tortious conduct of the plaintiff. See Douglas Furniture Co. of California, Inc. v. Wood Dimensions, Inc., 963 F.Supp. 899, 902 (C.D.Cal.1997). It does not result from the two cease and desist letters. See Ham v. La Cienega Music Company, 4 F.3d 413, 416 (5th Cir.1993) (in an action for a declaratory judgment regarding whether plaintiffs actions infringed a copyright, holding that cease and desist letter does not relate to the merits of the question before the court). Consequently, permitting the mailing of cease and desist letters to trigger personal jurisdiction in this case would effectively permit Defendants to be “haled into a jurisdiction solely as a result of ... the ‘unilateral activity of another party or third person.’ ” Burger King, 471 U.S. at 475, 105 S.Ct. 2174 (quoting Helicopteros, 466 U.S. at 417, 104 S.Ct.1868).

In addition, to permit this suit to go forward on the basis of two cease and desist letters would not “comport with ‘fair play and substantial justice.’ ” Burger King, 471 U.S. at 476, 105 S.Ct. 2174 (quoting International Shoe, 326 U.S. at 320, 66 S.Ct. 154). As the Federal Circuit has stated in similar circumstances, an individual “should not subject itself to personal jurisdiction in a forum solely by informing a party who happens to be located there of suspected infringement.” Red Wing Shoe Co. v. Hockerson-Halherstadt, Inc., 148 F.3d 1355, 1361 (Fed.Cir.1998). To hold otherwise would decrease the likelihood of settlements in cases of alleged infringement because the party that believes its exclusive trademark, copyright, or patent is being infringed will not first seek to settle a dispute through less adversarial channels than the court system. See Med-Tec, Inc. v. Kostich, 980 F.Supp. 1315, 1329 (N.D.Iowa 1997). Instead, such a party will first file a lawsuit in the forum of its choice. Such an outcome is contrary to “the interstate judicial system’s interest in obtaining the most efficient resolution of controversies.” See Asahi, 480 U.S. at 113, 107 S.Ct. 1026.

The vast majority of courts to address this issue have reached the same conclusion. See Red Wing, 148 F.3d at 1360-61 (citing cases). See also Med-Tec, 980 F.Supp. at 1329; Stairmaster Sports/Medical Products, Inc. v. Pacific Fitness Corp., 916 F.Supp. 1049 (W.D.Wash.1994); Zumbro, Inc. v. California Natural Prods., 861 F.Supp. 773, 781 (D.Minn.1994); Database America, Inc. v. Bell-south Advertising and Publishing Corp., 826 F.Supp. 1196, 1213 (D.N.J.1993); BIB Mfg. Co. v. Dover Mfg. Co., 804 F.Supp. 1129, 1132-33 (E.D.Mo.1992); KVH Industries, Inc. v. Moore, 789 F.Supp. 69 (D.R.I.1992). A few courts have found jurisdiction on the basis of multiple cease and desist letters, see Meade Instruments Corp. v. Reddwarf Starware LLC, 47 U.S.P.Q.2d 1157, 1159 (C.D.Cal.1998); Bounty-Full Entertainment, Inc. v. Forever Blue Entertainment Group, Inc., 923 F.Supp. 950, 957 (S.D.Tex.1996); Burbank Aeronautical Corp. II v. Aeronautical Development Corp., 16 U.S.P.Q.2d 1069 (C.D.Cal.1990); Tandem Computers Inc. v. Yuter, 1989 U.S. Dist. LEXIS 18384 (N.D.Cal.1989), or multiple letters and phone calls or facsimiles. See Oki America, Inc. v. Tsakanikas, 1993 WL 515860 (N.D.Cal.1993); Edwards v. Pulitzer Publishing Co., 716 F.Supp. 438 (N.D.Cal.1989). One court found personal jurisdiction on the basis of a single cease and desist letter. See Dolco Packaging Corp. v. Creative Industries, Inc., 1 U.S.P.Q.2d 1586 (C.D.Cal.1986). But see Douglas Furniture Co., 963 F.Supp. at 901 (refusing to follow Dolco in a case involving two cease and desist letters). However, all of these decisions reflecting the minority position are at least in tension with binding precedent from their circuits. See Ham, 4 F.3d at 416 (a cease and desist letter “does not support personal jurisdiction in Texas”); Peterson v. Kennedy, 771 F.2d 1244, 1261-62 (9th Cir.1985) (holding that a series of letters and phone calls into the forum state, without more, is insufficient to establish specific jurisdiction). For this reason, and because I do not find their reasoning persuasive, I apply the majority position.

Finally, although the Tenth Circuit held in Burt v. Board of Regents, 757 F.2d 242, 244-45 (10th Cir.1985) that sending letters to a person within a forum jurisdiction can be sufficient to establish personal jurisdiction within that jurisdiction, Burt involved letters that allegedly libeled the plaintiff. Id. Burt is thus distinguishable on its facts. In addition, it is not clear that Burt remains good law. The Supreme Court initially granted certiorari on the Burt decision, but later, without oral argument, “vacated” the “judgment” and remanded to the Tenth Circuit “with directions that it instruct the United States District Court for the District of Colorado to dismiss the complaint as moot.” Connolly v. Burt, 475 U.S. 1063, 106 S.Ct. 1372, 89 L.Ed.2d 599 (1986). At least one court has interpreted the Supreme Court’s action as vacating the grant of certiorari, see, e.g., National Petroleum Marketing, Inc. v. Phoenix Fuel Co., Inc., 902 F.Supp. 1459, 1466 (D.Utah 1995), while others have treated it as vacating the Tenth Circuit’s judgment. See, e.g., Hoechst Celanese Corp. v. Nylon Engineering Resins, Inc., 896 F.Supp. 1190, 1195 (M.D.Fla.1995); Traffas v. Bridge Capital Corporation, 1990 WL 251740, *7 (D.Kan.); Wright v. Xerox Corporation, 882 F.Supp. 399, 405 (D.N.J.1995). Only one Tenth Circuit opinion has cited Burt, see Far West Capital, Inc. v. Towne, 46 F.3d 1071, 1077 (10th Cir.1995), but that opinion includes no mention of its subsequent history. See id. The court in Far West also seemingly concluded, as I do, that Burt applies solely to libel claims. See Far West, 46 F.3d at 1077-80; National Petroleum Marketing, 902 F.Supp. at 1466-67. Given this uncertainty, even if I were inclined to find that sending two letters to Plaintiffs’ attorney in Colorado is sufficient to create specific personal jurisdiction, I would not rely on Burt. For the foregoing reasons, specific personal jurisdiction does not exist with respect to Defendants.

2.

a.

Lindamood-Bell argues that general personal jurisdiction does not exist with respect to it. Specifically, LindamoodBell claims that it does not have an office in Colorado, does not hold itself out as doing business in Colorado, and derives less than one percent of its income from Colorado sources. Lindamood-Bell concludes that general personal jurisdiction cannot be established under the factors identified in Trienueiler. See Trierweiler; 90 F.3d at 1533 (“In assessing contacts with a forum, courts have considered such factors as: (1) whether the corporation solicits business in the state through a local office or agents; (2) whether the corporation sends agents into the state on a regular basis to solicit business; (3) the extent to which the corporation holds itself out as doing business in the forum state, through advertisements, listings or bank accounts; and (4) the volume of business conducted in the state by the corporation”) (citing 4 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1069, at 348-55 (2d ed.1987)).

Plaintiffs respond that the Trierweiler factors weigh in favor of exercising general personal jurisdiction over Lindamood-Bell. Specifically, Plaintiffs contend that Linda-mood-Bell’s contacts with Colorado have been continuous and systematic because Lindamood-Bell (1) maintained an office in Denver during 1996, (2) operated a World Wide Web site that can be accessed by people in Colorado, (3) mailed solicitations for courses and products to residents of Colorado, (4) conducted programs in Colorado, (5) consummated four contracts with three Colorado school districts, and (6) sent the cease and desist letters to Plaintiffs.

As an initial matter, I note that the Trienueiler factors are neither exhaustive nor necessarily determinative of the general personal jurisdiction inquiry, as Defendants suggest. The Tenth Circuit employed the factors in Trierweiler as guides to the general personal jurisdiction inquiry. See Trierweiler, 90 F.3d at 1533 (“In assessing contacts with a forum, courts have considered such factors as ...”) (emphasis added) (citing 4 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1069). See also 4 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1069 at 348-49 (noting that personal jurisdiction has been found under myriad factors other than the ones specifically discussed). Instead, the dispositive inquiry is whether Defendants have enjoyed the “benefits and protections of the forum state’s laws,” Burger King, 471 U.S. at 474, 105 S.Ct. 2174, such that they “should reasonably anticipate being haled into court there.” Asahi, 480 U.S. at 109, 107 S.Ct. 1026 (quoting World-Wide Volkswagen, 444 U.S. at 297, 100 S.Ct. 559).

I conclude that general personal jurisdiction exists with respect to Lindamood-Bell because Colorado law governed the four contracts with the three Colorado school districts. The contract with the Pueblo School District specifically stipulates that it is “governed by the laws of the state of Colorado.” Because the three other contracts were for services, the services were performed in Colorado, and California had no relationship with the contracts other than that Defendants reside there, Colorado had the most significant relationship with the contracts. See Wood Bros. Homes v. Walker Adjustment Bureau, 198 Colo. 444, 601 P.2d 1369, 1372-73 (1979) (adopting the most significant relationship test from the Restatement (Second) of Contracts for conflict of laws questions and holding that the state where services agreed to in a service contract are to be performed is presumed to have the most significant relationship). Colorado law thus also applied to the contracts with the Jefferson County and Denver Public School Districts. Consequently, because Lindamood-Bell enjoyed the benefits and protections of Colorado’s laws, it must now submit to the burdens of litigation in Colorado. See Burger King, 471 U.S. at 474, 105 S.Ct. 2174.

I also note that Lindamood-Bell maintained an office in Denver. See Plaintiffs Memorandum Brief In Response at Ex. 3 (Dun & Bradstreet report dated September 30, 1996) (Plaintiffs Response); see also F.R.E. 803(17); Hamilton v. AccuTek. 32 F.Supp.2d 47, 64, n. 11 (E.D.N.Y. 1998) (holding that Dun & Bradstreet report was admissible). Such a contact, standing alone, can be the basis for general personal jurisdiction. See 4 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1069 at 349 & n. 10 (listing cases in which the presence of an office was sufficient to establish general personal jurisdiction). See also Trierweiler, 90 F.3d at 1533 (citing this section of Wright et al). Lindamood-Bell has also conducted both informational meetings, see Plaintiffs’ Response at 15-16 and referenced exhibits, and courses/workshops in Colorado, see Defendants’ Reply at 4, and mailed solicitations to Colorado residents that advertise its products, services, and courses/workshops. See Defendants’ Motion to Dismiss for Lack of Personal Jurisdiction at 16; Ex. A, ¶ 15; Ex. C, ¶ 3; Ex. D, ¶ 2; Ex. F, ¶ 2 and appendices.

Finally, Lindamood-Bell also maintains an interactive World Wide Web site that advertises both its courses and products.