United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART TOOLETRIES DEFENDANTS' MOTION TO DISMISS AND FOR
ATTORNEY'S FEES 
Stephen J. Murphy, III United States District Judge.
November 12, 2018, Plaintiff filed a complaint against
Tooletries, LLC, and Tooletries Pty. Ltd. (together,
"Tooletries Defendants") and 30 Watt Holdings, LLC
("30 Watt") (collectively, "Defendants").
ECF 1. Plaintiff alleges that Defendants' conduct in
marketing and selling their "sudski" and
"sipski" products violated various provisions of
the Lanham Act, violated the Michigan Consumer Protection
Act, and constituted common law unfair competition.
Id. at 18-31. On December 6, 2018, 30 Watt filed a
motion to dismiss for lack of personal jurisdiction and
improper venue. ECF 9. On January 4, 2019, Tooletries
Defendants filed a similar motion. ECF 13.
August 1, 2019, the Court entered a stipulated order between
Plaintiff and 30 Watt withdrawing 30 Watt's motion to
dismiss and setting August 29, 2019 as 30 Watt's deadline
to answer or otherwise respond to the complaint. ECF 18. The
Court reviewed the briefing on Tooletries Defendants'
motion to dismiss and finds that a hearing is unnecessary.
See E.D. Mich. LR 7.1(f). For the reasons below, the
Court will grant the motion.
Pty. Ltd. is an Australian company, and Tooletries, LLC is
its wholly-owned American subsidiary. ECF 1, PgID 2. The two
companies have the same owners and "conduct the same
business"-"selling the same products in the United
States and Australia," respectively. Id.
Tooletries Defendants supply 30 Watt. Id. Defendants
sell a shower beer holder called a "sudski" that
allegedly infringes Plaintiff's "SHOWER BEER"
trademark. Id. The allegedly infringing products are
sold by third parties in Michigan. See ECF 1, PgID
4-5; ECF 14-2, PgID 614. Tooletries Defendants also directly
sell the allegedly infringing product through their websites,
and a buyer in Michigan could make purchases from the
websites. ECF 13, PgID 562-63; ECF 14-2, PgID 615. But
Tooletries Defendants have not directly sold a single product
in Michigan. ECF 13, PgID 562-63; ECF 13-2, PgID 577,
defendant files a motion to dismiss for lack of personal
jurisdiction "the plaintiff always bears the burden of
establishing that jurisdiction exists." Serras v.
First Tenn. Bank Nat'l Assoc., 875 F.2d 1212, 1214
(6th Cir. 1989) (citations omitted). The Court may decide the
motion "on the basis of affidavits alone," may
permit discovery before deciding the motion, or may conduct
an evidentiary hearing. Id. (citation omitted). If
the Court resolves the motion "on written submissions
alone," and the defendant submits affidavits to combat a
finding of personal jurisdiction, the plaintiff must set
forth specific facts that demonstrate jurisdiction.
Id. (citation omitted). The Court considers all
written submissions, including pleadings and affidavits,
"in the light most favorable to the plaintiff."
Id. (citation omitted).
cases over which the Court has federal question jurisdiction,
"personal jurisdiction over a defendant exists 'if
the defendant is amenable to service of process under the
forum state's long-arm statute and if the exercise of
personal jurisdiction would not deny the defendant due
process.'" Bridgeport Music, Inc. v. Still N The
Water Publ'g, 327 F.3d 472, 477 (6th Cir. 2003)
(quoting Bird v. Parsons, 289 F.3d 865, 871 (6th
Cir. 2002)) (alterations omitted). But when "the state
long-arm statute extends to the limits of the due process
clause, the two inquiries are merged and the court need only
determine whether exercising personal jurisdiction violates
constitutional due process." Id. (citing
Nationwide Mut. Ins. Co. v. Tryg Int'l Ins. Co.,
91 F.3d 790, 793 (6th Cir. 1996)); see also J. McIntyre
Machinery, Ltd. v. Nicastro, 564 U.S. 873, 903 n.8
(2011) (listing Michigan as a state whose "long-arm
provision allow[s] the exercise of jurisdiction subject
only to a due process limitation").
jurisdiction is proper only [when] 'a defendant's
contacts with the forum state are of such a continuous and
systematic nature that the state may exercise personal
jurisdiction over the defendant even if the action is
unrelated to the defendant's contacts with the
state.'" Bird, 289 F.3d at 873 (quoting
Third Nat'l Bank in Nashville v. WEDGE Grp.
Inc., 882 F.2d 1087, 1089 (6th Cir. 1989)).
jurisdiction is proper when: (1) a party purposefully avails
itself "of the privilege of acting in the forum state or
causing a consequence in the forum state;" (2) the cause
of action arises from the party's activities in the forum
state; and (3) the party's actions, or the consequences
caused by the party's actions, created a
"substantial enough connection" between the party
and the forum state "to make the exercise of
jurisdiction . . . reasonable." AlixPartners, LLP v.
Brewington, 836 F.3d 543, 549-50 (6th Cir. 2016)
(citation omitted). When analyzing the first factor-
purposeful availment-the Sixth Circuit uses "Justice
O'Connor's approach to purposeful availment as
articulated in Asahi." Bridgeport, 327
F.3d at 479-80 (citing Asahi Metal Indus. Co. v. Superior
Court, 480 U.S. 102, 107 (1987) (O'Connor, J.)
(plurality op.)). Under Justice O'Connor's
"'stream of commerce plus' theory . . . 'the
placement of a product into the stream of commerce, without
more, is not an act of the defendant purposefully directed
toward the forum State.'" Id. at 479
(quoting Asahi, 480 U.S. at 112) (alteration
the Court lacks personal jurisdiction over Tooletries
Defendants. The only alleged connections between Tooletries
Defendants and the Michigan are: (1) Tooletries
Defendants' allegedly infringing products have been sold
in Michigan through third parties and (2) Tooletries
Defendants operate websites from which a customer in Michigan
could purchase the allegedly infringing products. See
generally ECF 14 (Plaintiff's response to Tooletries
Defendants' motion to dismiss). Tooletries Defendants do
not have the "continuous and systematic" contacts
with Michigan required for general personal jurisdiction.
See Bird, 289 F.3d at 873 (citation omitted). And
the Court lacks personal jurisdiction over Tooletries
Defendants because they did not purposefully avail themselves
of the privilege of acting in Michigan.
the Defendants' sale of allegedly infringing products in
Michigan is insufficient to satisfy the "stream of
commerce plus" test. A Court cannot find purposeful
availment when a defendant sells a product through a
distributor and is "merely aware that [its] distributor
was likely to market the product in all fifty states."
Bridgeport, 327 F.3d at 480. Rather, for the
distributor's sales in the forum state to constitute
purposeful availment by the defendant, the defendant must
require the distributor to market or to sell the product
specifically in the forum state, for example through a
contract requiring nationwide distribution. Id.
Here, there is no allegation of a contract term requiring 30
Watt, or any other distributor, to market or distribute
Tooletries Defendants' products nationwide, or
specifically in Michigan. And Plaintiff's reliance on
Sixth Circuit cases pre-dating the Sixth Circuit's
adoption of the "stream of commerce plus" test in
Bridgeport is misplaced. See ECF 14, PgID
Tooletries Defendants did not purposefully avail themselves
of the privilege of acting in Michigan by operating their
websites. "A defendant purposefully avails itself of the
privilege of acting in a state through its website if the
website is interactive to a degree that reveals specifically
intended interaction with residents of the state."
Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d
883, 890 (6th Cir. 2002) (citing Zippo Mfg. Co. v. Zippo
Dot Com, Inc., 952 F.Supp. 1119, 1124 (W.D. Pa. 1997)).
Zippo created a sliding scale of passive to
interactive websites to determine whether a party's use
of a website could alone support a finding of purposeful
availment. Zippo, 952 F.Supp. at 1124. Passive
websites are not particularly indicative of purposeful
availment; interactive websites provide good evidence of
purposeful availment. See Id. On the interactive end
of the scale are websites that conduct internet sales, and