AMERICAN WHOLESALERS UNDERWRITING v. AMERICAN WHOLESALE INS.

312 F.Supp.2d 247 (2004) | Cited 7 times | D. Connecticut | March 30, 2004

MEMORANDUM OF DECISION

Plaintiff, American Wholesalers Underwriting, LTD. ("AWUL"), bringsthis action against defendant, American Wholesale Insurance Group("AWIG"), based upon Section 43(a) of the Lanham Act,15 U.S.C. § 1125(a)(1), Connecticut common law, and the Connecticut UnfairTrade Practices Act ("CUTPA"), Conn. Gen. Stat. §§ 42-110a et seq.Defendant has filed a motion to dismiss (dkt. # 13) the complaint forlack of personal jurisdiction. For the reasons set forth herein,defendant's motion is GRANTED in that the court finds thatexercising personal jurisdiction over AWIG in the District of Connecticutis improper, but DENIED inasmuch as defendant seeks dismissalof this action. This case shall be transferred to the Western District ofNorth Carolina.Page 2

I. FACTS

AWUL is a Connecticut corporation with its principal place of businesslocated in Stamford, Connecticut, where it engages in the business ofrendering insurance services. AWIG is a North Carolina corporation withits principal place of business located in Charlotte, North Carolina, andalso engages in the business of rendering insurance services. AWULmaintains a web site with the domain name .AWIG maintains a web site with the domain name.

AWUL began providing insurance services under its trade names of"American Wholesalers Underwriting" and "American Wholesalers" in 1994.AWUL alleges that these trade names have been recognized by the consumingpublic and the insurance industry as belonging to AWUL. AWUL registeredthe name "American Wholesalers Underwriting, Inc." with the United StatesPatent and Trademark Office on September 12, 1995. AWUL further contendsthat it registered the acronym "WIP" on August 27, 1996, and the name"Wholesale Insurance Plan" on April 21, 1998. AWUL has alleged thatAWIG's use of the names "American Wholesale Insurance Group" and"American Wholesale" are confusingly similar to AWUL's recognized tradenames and its registered trademark. AWUL also claims that AWIG's domainname creates confusion between the names and corporate identities of theparties. AWUL contends that it used the trade names "American WholesalersPage 3Underwriting" and "American Wholesalers" and maintained its website at "long before" AWIG began to useits "confusingly similar" trade names and domain name.

AWUL alleges that AWIG solicits and regularly transacts business withinthe State of Connecticut. AWIG holds numerous fully owned subsidiaries,two of which are connected to the State of Connecticut. New CenturyGlobal ("NCG"), a Delaware corporation fully owned by AWIG, holds twosubsidiaries within the State of Connecticut: New Century Global of NewEngland ("NCG-NE"), and Lambert Green, Ltd. ("LG"). NCG-NE has an officein Farmington, Connecticut, which has seven (7) employees and accountedfor 1.3% of AWIG's profits in the year 2002. LG is a Connecticutcorporation, but has only two employees, both of whom are located inVirginia.

AWIG's web site has a map indicating its business locations. Uponvisiting the web site, the court observed a box numbered five (5)covering the area of Connecticut as well as parts of Massachusetts, NewYork, and Rhode Island. Clicking this link brings the user to informationregarding the AWIG subsidiary NCG. The NCG information lists an addressand telephone number in New York, and an email address for furtherinformation.

Plaintiff has alleged that the Farmington, Connecticut address andtelephone number for NCG-NE can be found at. Upon accessing the web site on OctoberPage 46, 2003 and November 18, 2003, this court was unable to find anyreference to NCG-NE, nor was it able to find an address or phone numberfor the Farmington, Connecticut office. The Court was also unable to finda link to the NCG web site while navigating. Because the existence of the address andphone number, as well as the link to the NCG web site, are notdeterminative of the court's assertion of jurisdiction, the court willcredit the allegations made by the plaintiff in its consideration of thepending motion.1

AWIG has placed a minimum of six (6) magazine advertisements withinnational trade publications. Each of these magazines has between 1,000and 2,000 subscribers within the State of Connecticut, which representsbetween 1% and 2.5% of each magazine's total national subscriptions. Eachof these advertisements contain "American Wholesale Insurance Group","", and "New Century Global". AWIG also allegedlyadvertised its insurance products on the web site.Page 5

II. DISCUSSION

AWUL sets forth three counts in its Complaint. Defendant seeksdismissal of all counts of the Complaint for lack of personaljurisdiction pursuant to Rule 12(b)(2) of the Federal Rules of CivilProcedure.

A. STANDARD OF REVIEW

Under Rule 12(b)(2), an action should be dismissed if the court lacksjurisdiction over a party. Fed.R.Civ.P. 12(b)(2). When responding to aRule 12(b)(2) motion to dismiss for lack of personal jurisdiction, theplaintiff bears the burden of establishing that the court hasjurisdiction over the defendant. Robinson v. Overseas Military SalesCorp., 21 F.3d 502, 507 (2d Cir. 1994). Prior to discovery, aplaintiff may defeat a motion to dismiss based on legally sufficientallegations of jurisdiction and by making a prima facie case ofjurisdiction. Ball v. Metallurgie Hoboken-Overpelt, S.A.,902 F.2d 194, 197 (2d Cir. 1990). In contrast, when an evidentiary hearing isheld, the plaintiff must demonstrate the court's personal jurisdictionover the defendants by a preponderance of the evidence.Robinson, 21 F.3d at 507 n.3. In a case where, as here, theparties have conducted extensive discovery regarding the defendants'contacts with the forum state, but no evidentiary hearing has been held,"the plaintiff's prima facie showing, necessary to defeat ajurisdiction testing motion, must includePage 6an averment of the facts that, if credited by [the ultimate trierof fact], would suffice to establish jurisdiction over the defendant."Ball, 902 F.2d at 197; see also Bensusan Restaurant Corp.v. King, 937 F. Supp. 295, 298 (S.D.N.Y. 1996)("[m]atters outsidethe pleadings . . . may . . . be considered in resolving a motionto dismiss for lack of personal jurisdiction pursuant to Fed.R.Civ.P.12(b)(2) without converting it into [a motion] for summary judgment").When considering a Rule 12(b)(2) motion, the court construes any factualaverments and resolves all doubts in the plaintiff's favor. CutCoIndus., Inc. v. Naughton, 806 F.2d 361, 365 (2d Cir. 1986).

"In a federal question case where a defendant resides outside the forumstate, a federal court applies the forum state's personal jurisdictionrules `if the federal statute does not specifically provide for nationalservice of process.'" PDK Labs, Inc. v. Friedlander,103 F.3d 1105, 1108 (2d Cir. 1997) (quoting Mareno v. Rowe,910 F.2d 1043, 1046 (2d Cir. 1990)). Because the Lanham Act does not authorizenationwide service of process, see, e.g., Tomra of North America,Inc. v. Environmental Products Corp., 4 F. Supp.2d 90, 92 (D. Conn.1998), the court must determine in personam jurisdiction overeach defendant pursuant to the law of the forum state. SeeArrowsmith v. United Press Int'l, 320 F.2d 219, 223 (2d Cir. 1963).This requires a two-step analysis. See Mozes v. Welch,638 F. Supp. 215, 222Page 7(D. Conn. 1986) (citing Arrowsmith, 320 F.2d at 223);Conn. Artcraft Corp. v. Smith, 574 F. Supp. 626, 629 (D. Conn.1983). First, the plaintiff has the burden of showing that the state'slong-arm statute authorizes the exercise of personal jurisdiction.Mozes, 574 F. Supp. at 222-23. If the defendant is subject tojurisdiction under the terms of the applicable long-arm statute, then thecourt must also consider whether the exercise of jurisdiction satisfiesdue process, namely whether the defendants have "certain minimum contactswith [the forum state] such that the maintenance of the suit [in thatforum] does not offend `traditional notions of fair play and substantialjustice.'" Int'l Shoe Co. v. State of Washington, 326 U.S. 310,316 (1945).

B. LONG-ARM STATUTE

AWIG is not a resident of Connecticut, so plaintiff must show thatdefendant is subject to personal jurisdiction pursuant to Section 33-929of the Connecticut General Statutes, which is Connecticut's long-armstatute applicable to foreign corporations. Section 33-929(f)2provides, in pertinent part,Page 8the following: Every foreign corporation shall be subject to suit in this state, by a resident of this state or by a person having a usual place of business in this state, whether or not such foreign corporation is transacting or has transacted business in this state and whether or not it is engaged exclusively in interstate or foreign commerce, on any cause of action arising as follows: . . . (2) out of any business solicited in this state by mail or otherwise if the corporation has repeatedly so solicited business, whether the orders or offers relating thereto were accepted within or without the state; . . . or (4) out of tortious conduct in this state, whether arising out of repeated activity or single acts, and whether arising out of misfeasance or nonfeasance.Conn. Gen. Stat. § 33-929(f). The Connecticut Supreme Court hasinterpreted this provision to

requir[e] inquiry not only into the various elements of the plaintiff's cause of action, spelled out in the various subparts of subsection [(f)], but also into the totality of contacts which the defendant may have with the forum. . . . Under subsection [(f)], consistent with the constitutional demands of due process, it is the totality of the defendant's conduct and connection with this state that must be considered, on a case by case basis, to determine whether the defendant could reasonably have anticipated being haled into court here.Lombard Bros., Inc. v. General Asset Management Co.,190 Conn. 245, 254-55 (1983).3

Plaintiff claims that exercising personal jurisdiction is authorizedunder subsections (f)(2) and (f)(4) of the long-armPage 9statute. For the reasons set forth herein, neither subsectionauthorizes the exercise of personal jurisdiction over defendant.

1. SUBSECTION (f)(4)

AWIG has not committed a tort within the State of Connecticut, and istherefore not subject to personal jurisdiction pursuant to Section33-929(f)(4). AWUL contends that the court has personal jurisdiction overAWIG because AWIG committed the tort of trademark infringement inConnecticut. Trademark infringement can be a "tort" for the purpose ofdetermining long-arm jurisdiction, but the infringement must be the actof selling products that infringe upon the plaintiff's trademark, and theinfringement must take place in the forum state. On-LineTechnologies v. Perkin Elmer Corp., 141 F. Supp.2d 246, 264 (D.Conn. 2001). Plaintiff claims that the infringement occurred in the Stateof Connecticut because Connecticut is the place where "the passing offhas occurred." (Dkt. # 30). "In trademark infringement and unfaircompetition cases, a claim is said to arise . . . `where the passingoff occurs, i.e., where the deceived customer buys the defendant'sproduct in the belief that he is buying the plaintiff's.'" G.F.C.Fashions, Ltd, v. Goody's Family Clothing, No. 97 Civ. 0730, 1998 WL78292, at *2 (S.D.N.Y. Feb. 20, 1998) (quoting Vanity Fair Mills,Inc. v. T. Eaton Co., 234 F.2d 633, 639 (2d Cir.), cert.denied, 352 U.S. 871 (1956)); see Premeir Herbs,Page 10Inc. v. Nature's Way Products, 689 F. Supp. 180, 184(S.D.N.Y. 1988). While plaintiff has identified the proper standard,plaintiff has the burden of producing evidence that this passing off infact occurred in Connecticut. The plaintiff's burden of showing where apassing off occurs is low, requiring only "an offering for sale of evenone copy of an infringing product in [the state], even if no saleresults." Bensusan Restaurant Corporation, 937 F. Supp. at 299;see Editorial Musical Latino Americana, S.A. v. Mar Int'l Records,Inc., 829 F. Supp. 62, 64 (S.D.N.Y. 1993); German EducationalTelevision Network, Ltd. v. Oregon Public Broadcasting Co.,569 F. Supp. 1529, 1532 (S.D.N.Y. 1983).

Plaintiff has alleged that the "passing off" of the insurance producthas taken place in the State of Connecticut, yet, with the aid ofdiscovery, has been unable to show this court evidence of a single AWIGcustomer located within the State of Connecticut. Nor has AWUL providedevidence that any potential or directly targeted AWIG customers arelocated in Connecticut. Absent this showing, this court cannot concludethat any "passing off" has occurred in Connecticut. As such, the courtdoes not have specific jurisdiction over defendant because plaintiff hasnot produced sufficient evidence to claim that the tort of trademarkinfringement may have occurred within the State of Connecticut.Page 11

Plaintiff has alternatively suggested that the court may have specificjurisdiction over the defendant because AWUL is a Connecticut companythat has been injured by the defendant's alleged trademark infringement.Plaintiff cites authority for the proposition that, because the injury isfelt in Connecticut, the tort should be deemed to have been committed inConnecticut. This argument ignores the language of Section §33-929(f)(4), which provides the following: "Every foreign corporationshall be subject to suit in this state . . . on any cause of actionarising . . . out of tortious conduct in this state, whether arisingout of repeated activity or single acts, and whether arising out ofmisfeasance or nonfeasance." Conn. Gen. Stat. § 33-929(f)(4). Theconstruction of this provision advocated by plaintiff has been rejectedby other courts in the District of Connecticut, and is also rejected bythis court. See Southern New England Distributing Corp. v. BerkeleyFinance Corp., 30 F.R.D. 43, 47 (D. Conn. 1962) ("In the Connecticutstatute, the emphasis is unmistakably upon the place where thetortious conduct occurred. It requires tortious conduct in thisstate."); see also Bross Utilities Service Corp. v.Aboubshait, 489 F. Supp. 1366, 1373 (D. Conn. 1980).

Plaintiff cites a decision of the Court of Appeals for the SeventhCircuit in support of its argument that the state where the tort injuryis felt should have personal jurisdiction overPage 12Page the tortfeasor. See Indianapolis Colts, Inc. v.Metropolitan Baltimore Football Club Limited Partnership,34 F.3d 410, 412 (7th Cir. 1994). However, in that case, the plaintiffs, theIndianapolis Colts, by nature of operating a National Football Leagueteam in Indiana, primarily used their trademark in Indiana, and the Courtof Appeals reasoned that the injury inflicted by defendant, the BaltimoreCFL Colts, would be felt mainly in Indiana. Id. The Court ofAppeals also noted that the defendant could be deemed to have "entered"Indiana by way of a national television broadcast of the defendant'sfootball games, and that this entry into Indiana itself would presumablycause injury to the plaintiff by confusing Indianapolis Colts fanslocated primarily in Indiana. Id. In the present action,plaintiff uses its trademark in interstate commerce generally, and doesnot, either purposefully or because of the very nature of the productoffered, target any particular customer base in the State of Connecticut.Further, absent a factual showing of some kind of "entry" intoConnecticut, or "passing off" in Connecticut, similar to that presentedin Indianapolis Colts, Inc., this court cannot exercisepersonal jurisdiction over AWIG based upon Section 33-929(f)(4).

2. SUBSECTION (f)(2)

The Connecticut Supreme Court has interpreted Section 33-929 to permitthe exercise of personal jurisdiction over a non-residentPage 13corporation under two theories. First, the court could findpersonal jurisdiction based upon a theory of specific jurisdiction,where, generally speaking the defendant purposefully directs certainenumerated activities at the forum state, and those activities actuallycaused the harm complained of. See Thomason v. Chemical Bank,234 Conn. 281, 288 (1995). Second, this court could exercise personaljurisdiction over a defendant under the theory of general jurisdiction,which under Section 33-929(f), means that "the defendant could reasonablyhave anticipated being hauled into court here some person who hadbeen solicited in Connecticut and that the plaintiff's cause ofaction is not materially different from an action that might haveresulted directly from that solicitation." See id. at 296. Thiscourt would have personal jurisdiction over AWIG under Section33-929(f)(2) if the facts support either theory and the exercise ofjurisdiction is constitutionally permissible. Each theory is discussed inturn.

i. SPECIFIC JURISDICTION

This court cannot exercise personal jurisdiction pursuant to a specificjurisdiction theory over AWIG, because it lacks the contacts required bySection 33-929(f)(2). In order to apply subsection (f)(2) in the contextof specific jurisdiction, the defendant's acts of solicitation must ariseout of the solicitation. See Thomason, 234 Conn. at 292.Plaintiff arguesPage 14that AWIG's website, which is accessible to Connecticut Internetusers at , solicits business in the State ofConnecticut. The AWIG website is not a basis to impose specificjurisdiction over AWIG. Exercising personal jurisdiction by way ofspecific jurisdiction predicated upon the maintenance of a passive website is not proper. See On-Line Technologies v. Perkin ElmerCorp., 141 F. Supp.2d 246, 265 (D. Conn. 2001); BensusanRestaurant Corp. v. King, 937 F. Supp. at 295; E-Data Corp. v.Micropatent Corp., 989 F. Supp. 173 (D. Conn. 1997). The AWIG website requires a potential customer to initiate contact with AWIG bytelephone, mail, or email, and customers cannot directly purchase anyproduct through the web site. As such, the AWIG site is "passive," andtherefore personal jurisdiction does not lie on this basis.

Second, the presence of AWIG subsidiaries in the State of Connecticutis not a basis for the exercise of personal jurisdiction over AWIG. AWULsubmits that this court has specific jurisdiction over AWIG because AWIGhas two subsidiaries with a presence within Connecticut, NCG-NE and LG.In order to establish jurisdiction based on the presence of a subsidiary,the parent corporation must fully control the subsidiary corporation suchthat the corporate veil must be pierced. Mountainview PlazaAssociates, Inc. v. World Wide Pet Supply, Inc., 76 Conn. App. 627,633 (2003); Hersey v. Lonrho, 73 Conn. App. 78, 86 (2002).Page 15However, assuming that this relationship does exist, plaintiff hasbeen unable to fulfill its burden to produce evidence that either NCG-NEor LG has sold insurance under the name of "American Wholesale" withinthe State of Connecticut. AWUL has not even produced evidence that NCG orLG has sold any insurance product bearing the contested names "AmericanWholesalers", "American Wholesalers Underwriting", "Wholesale InsurancePlan", or "WIP" in any state. Without such a showing, this court cannotassert in personam jurisdiction over the defendant underSection 33-929(f)(2), which, in the context of specific jurisdiction,requires some causal link between NCG-NE's or LG's activities inConnecticut and the harm complained of.

ii. GENERAL JURISDICTION

In order to exercise personal jurisdiction over AWIG under a theory ofgeneral jurisdiction, this court must be satisfied that the defendant has"certain minimum contacts with [the forum] such that the maintenance ofthe suit does not offend `traditional notions of fair play andsubstantial justice.'" International Shoe Co. v. Washington,326 U.S. 310 (1945)(quoting Milliken v. Meyer, 311 U.S. 457,463 (1940)). "Even when the cause of action does not arise out of orrelate to the foreign corporation's activities in the forum State, dueprocess is not offended by a State's subjecting the corporation to itsin personam jurisdiction when there are sufficient contactsbetween the StatePage 16and the foreign corporation." Helicopteros Nacionales deColombia, S.A. v. Hall, 466 U.S. 408, 414 (1984). Here, the courtmust determine whether AWIG has sufficient contacts with the State ofConnecticut in order to apply general jurisdiction under Connecticut'slong-arm statute subject to the limitations imposed by the Due ProcessClause of the Fourteenth Amendment.

The Connecticut Supreme Court has recognized that "the [Connecticut]legislature did not intend to authorize Connecticut courts to exercisethe full measure of `general' jurisdiction that would have beenconstitutionally permissible." Thomason v. Chemical Bank,234 Conn. 281, 293 (1995). The standard for exercising personal jurisdictionover a defendant on a general jurisdiction theory is that "the plaintiffneed only demonstrate that the defendant could reasonably haveanticipated being hauled into court here by some person who had beensolicited in Connecticut and that the plaintiff's cause of action isnot materially different from an action that might have resulted directlyfrom that solicitation." Id. at 296 (italics in original).

AWIG has four sources of contact within the State of Connecticut: (1)magazine advertisements placed in national trade magazines that havebetween 1,000 and 2,000 subscribers each in the State of Connecticut;(2)one Internet advertisement on the trade web site; (3) two subsidiaryPage 17corporations, NCG-NE and LG; and (4) an Internet web siteaccessible to Connecticut Internet users at .

Plaintiff has not shown that there is personal jurisdiction overdefendant pursuant to a theory of general jurisdiction. Both AWUL andAWIG have identified Thomason v. Chemical Bank, 234 Conn. 281(1995), as illustrative of the standard for determining whether toexercise general jurisdiction under Section 33-929(f). InThomason, the Connecticut Supreme Court reversed the trialcourt's dismissal of the action for lack of personal jurisdiction overthe defendant, and held that exercising personal jurisdiction over thedefendant in Connecticut was appropriate under the long-arm statute.See id. at 285. In that case, the defendant, Citibank, hadplaced "advertisements in national publications, including Business Week,the New York Times and the Wall Street Journal . . . [representing],inter alia, that the trustee bank was `number one for . . . New York,New Jersey and Connecticut. . . .'" Id. at 284. Further,Citibank had engaged in "a substantial number of mortgage transactions inthis state," issued a substantial number of credit cards to customers inConnecticut, and included advertisements sent directly to Connecticutcustomers within credit card statements. Id at 284-85.

The four sources of AWIG contact with the State of Connecticutidentified by AWUL cannot be characterized asPage 18"`affirmative measures designed to attract Connecticut' customersin that they constitute the creation of `an organizational network thatis likely to prompt a significant number of Connecticut' residents toplace business with the [defendant]." Id. at 298 (quotingFrazer v. McGowan, 198 Conn. 243, 251-52 (1986)). Absent ashowing by plaintiff that the non-resident defendants are likely to dosignificant business in Connecticut, the Connecticut long-arm statute asinterpreted by the Connecticut Supreme Court would not permit theexercise of jurisdiction over defendant. As such, plaintiff fails toestablish general jurisdiction over defendant in the State ofConnecticut.

Citing Thomason, AWUL claims that this court has jurisdictionover defendant based upon its Internet and magazine advertisements.However, in Thomason, the defendant placed advertisements inmajor national publications, including The New York Times, The WashingtonPost, and Business Week that specifically referenced the State ofConnecticut. The defendant in Thomason also includedadvertisements within its Connecticut customers' credit card statements.In this case, AWUL has alleged that AWIG advertised in trade magazinessuch as The Insurance Marketplace, Business Insurance, Insurance Journal,Rough Notes, and American Agent and Broker; and on one trade web site. The advertisements in ThomasonPage 19were placed in publications with a more broad circulation and a fargreater number of Connecticut subscriptions than the advertisementsplaced by AWIG here. Moreover, the Thomason advertisementsspecifically mentioned that the product was advantageous for Connecticutresidents. In this case, there was no specific mention of the State ofConnecticut within the advertisements, and, because the subscribership ofeach trade magazine in the State of Connecticut is less than 2,000, thereis no evidence that AWIG specifically targeted Connecticut consumers.Without deliberate targeting, or at least a more substantial subscriptionbase in Connecticut, there can be no purposeful availment of the laws ofthe State of Connecticut, and therefore long-arm jurisdiction cannot beproper.

Plaintiff also claims that AWIG's subsidiary contacts to Connecticutthrough NCG-NE and LG satisfies the long-arm statute. "Mere ownership bya parent corporation of a subsidiary corporation present in the forumstate generally will not subject the parent to personal jurisdiction inthat forum . . . even when the separation between parent andsubsidiary is `merely formal,' as long as it is `real.'" Savage v.Scripto-Tokai Corp., 147 F. Supp.2d 86, 93 (D.Conn. 2001). Toacknowledge general jurisdiction based on AWIG's subsidiary contacts, thecourt would need to pierce the corporate veil to conclude that, becauseNCG-NE and LG do business in Connecticut, AWIG does business here asPage 20well.

The Connecticut Supreme Court has endorsed two approaches fordetermining the circumstances when the corporate form should bedisregarded. The first is the "instrumentality" theory: The instrumentality rule requires, in any case but an express agency, proof of three elements: (1) Control, not mere majority or complete stock control, but complete domination, not only of finances but of policy and business practice in respect to the transaction attacked so that the corporate entity as to this transaction had at the time no separate mind, will or existence of its own; and (2) Such control must have been used by the defendant to commit fraud or wrong, to perpetrate the violation of a statutory or other positive legal duty, or a dishonest or unjust act in contravention of plaintiff's legal rights; and (3) The aforesaid control and breach of duty must proximately cause the injury or unjust loss complained of.Zaist v. Olson, 154 Conn. 563, 575 (1967). "Theinstrumentality rule imposes individual liability for corporate actionsupon a shareholder, director, or officer of a corporate entity that is,in economic reality, the instrumentality of the individual."Campisano v. Nardi, 212 Conn. 282, 291 (1989). Generallyspeaking, liability under the instrumentality approach is imposed wherethe corporate form is used to perpetrate some kind of wrongful act forthe benefit of one who controls the corporation. See Zaist, 154Conn. at 578.

Second, "[t]he identity rule primarily applies to prevent injustice inthe situation where two corporate entities are, in reality, controlled asone enterprise because of the existence of common owners, officers,directors or shareholders and because ofPage 21the lack of observance of corporate formalities between the twoentities." Angelo Tomasso, Inc. v. Armor Const. & Paving,Inc., 187 Conn. 544, 560 (1982). The Connecticut Supreme Court hasdefined the identity rule as follows: If plaintiff can show that there was such a unity of interest and ownership that the independence of the corporations had in effect ceased or had never begun, an adherence to the fiction of separate identity would serve only to defeat justice and equity by permitting the economic entity to escape liability arising out of an operation conducted by one corporation for the benefit of the whole enterprise.Angelo Tomasso, Inc., 187 Conn. at 554 (quotingZaist, 154 Conn. at 576). Generally speaking, the identity ruleimposes liability when two corporations or a corporation and anindividual should properly be considered one in the same. SeeZaist, 154 Conn. at 578.

Plaintiff has not met its burden of demonstrating that defendant'scorporate form should be disregarded under either rule. Plaintiff doesnot offer any evidence that AWIG dominates or controls its subsidiaries.Rather, plaintiff offers no evidence beyond that which would be customaryin a parent-subsidiary relationship. Moreover, the fact that NCG-NE andLG are both thrice removed subsidiaries of AWIG does not permit theinference that the subsidiaries were created by AWIG to allow an economicentity to escape liability.

Plaintiff's offer with respect to defendant's activities on theInternet does not satisfy the requirements of SectionPage 2233-929(f). The Connecticut long-arm statute may apply tocorporations in a case where an Internet domain name or toll-free phonenumber was the source of the infringement. See e.g., InsetSystems, Inc. v. Instruction Set, Inc., 937 F. Supp. 161 (D. Conn.1996). In Inset Systems, Inc., the court concluded that thedefendant had minimum contacts based upon its Internet web address andtoll-free telephone number that would subject it to general jurisdictionin Connecticut. Id. The court reasoned that because Internetadvertisements reach up to 10,000 Connecticut users and are availablecontinuously, the defendant had purposefully availed itself of theprivilege of doing business within Connecticut through its Internet website and toll-free phone number. Id. A distinguishing factor inthe Inset Systems, Inc. decision, however, was that theinfringing trademark itself was located within the defendant's Internetdomain name and the toll free phone number. Id. The courtdetermined that general jurisdiction was proper because even a "passive"user of the web site would be subjected to an infringed trademark.

The "passive" Internet user described in Inset Systems Inc.could not be deceived by the claimed infringement present on AWIG's website. A "passive" Internet user is one who can be deceived by aninfringing trademark through accessing a web site without any additionalaction. Id. The passive Internet user or 1-800 caller could bedeceived by the infringing mark in InsetPage 23Systems Inc. through dialing the phone number or typingthe web address that directly included the infringed trademark. Forgeneral jurisdiction to apply based upon an Internet web site, a passiveConnecticut Internet user must have been in danger of being deceived bythe infringing trademark, which has not been shown to happen in thiscase. As such, general jurisdiction cannot attach for the web site alonewithout a showing of a deceived customer or potential customer as aresult of the contents of the AWIG web site.

Courts have declined to exercise personal jurisdiction over a defendantwhen a "Connecticut user must find defendant's Web address, access it,view and browse the information. . . ." E-Data Corporation,989 F. Supp. at 176. Since Inset Systems, Inc., courts havebeen reluctant to find in personam jurisdiction based uponpassive web sites because "upholding personal jurisdiction . . .would, in effect, create national (or even worldwide) jurisdiction, sothat every plaintiff could sue in plaintiff's home court everyout-of-state defendant who established an Internet web site." TheHearst Corporation v. Ari Goldberger, No. 96 Civ. 3620, 1997 U.S.Dist. LEXIS 2065, at *66 (S.D.N.Y. Feb. 26, 1997). "Creating a site, likeplacing a product into the stream of commerce, may be felt nationwide— or even worldwide — but, without more, it is not an actpurposefully directed toward the forum state." Edberg, Wardlaw, andIdexxPage 24Laboratories, Inc. v. Neogen Corporation, 17 F. Supp.2d 104,114 (D. Conn. 1998). In Neogen, the court concluded thatthe Web site was "similar to an advertisement in a national magazine ornewspaper," and distinguished its finding from that of Inset SystemsInc. by showing that, in Neogen, the web site itself wasnot "the source of the tortious conduct, i.e., the alleged infringement."Id. Neogen suggests that Inset Systems Inc. actuallyaddresses specific jurisdiction, and should not be applied to cases ofgeneral jurisdiction.

Defendant's Internet domain name does not infringe upon plaintiff'strademarks. The names "wipwins" and "amwins" aresimilar because each contains the term "wins", which stands for"wholesale insurance". AWUL has produced evidence that it registered"WIP", which stands for "Wholesale Insurance Plan", and not "wins." Theterm "wins" is not a trademark that AWUL has claimed as its own, and thisis the only similarity between the two domain names. Therefore, the AWIGdomain name does not violate the AWUL trademark "WIP". Because "amwins"does not contain an infringement of a registered trademark, as did thedomain name in Inset Systems Inc., there is a much weakerargument for in personam jurisdiction based upon this web site.AWIG's web site does not directly target Connecticut consumers, andplaintiff has not produced evidence of any Connecticut consumer who wastargeted or deceived by the web site. As such,Page 25general jurisdiction cannot be found.

In considering defendant's purported contacts within the State ofConnecticut, plaintiff has fallen short of its burden to produce facts tosatisfy a finding of general jurisdiction under Section 33-929(f) of theConnecticut General Statutes.

III. CONCLUSION

The plaintiff holds the burden of providing the court with evidence toclearly establish jurisdiction over defendant. In this case, plaintiffhas had the opportunity, with the benefit of discovery, to present anadequate showing of in personam jurisdiction under a theory ofeither specific or general jurisdiction. Plaintiff has failed to showspecific actions taken by the defendant within the State of Connecticutto provide specific jurisdiction. The plaintiff also has failed to showthat the defendant has a significant number of contacts with Connecticutthat could comport with traditional notions of fair play and substantialjustice to allow general jurisdiction under the Connecticut long-armstatute.

Although the court lacks personal jurisdiction over defendant, it neednot dismiss the action: "[T]he Court's lack of [personal] jurisdictiondoes not require dismissal of the action because 28 U.S.C. § 1406(a)permits transfer of an action commenced in the wrong judicial district tothe proper district in the interests of justice." Grill v. WaltDisney Co., 683 F. Supp. 66,Page 2669 (S.D.N.Y. 1988)(citing Goldwater v. Heiman,369 U.S. 463 (1962)); see also, e.g., Levy v. Pyramid Co. ofIthaca, 871 F.2d 9, 10 (2d Cir. 1989); United Computer CapitalCorp. V. Secure Products, L.P. & Secure Products Corp.,218 F. Supp.2d 273, 279 (S.D.N.Y. 2002). In this case, "transfer isappropriate because defendants have actual notice of the litigation andtherefore will not be prejudiced." Grill, 683 F. Supp. at 69.Furthermore, the court does not find that the defendant will suffer anyprejudice if the action is transferred to North Carolina, as the recordindicates that defendant AWIG is a resident of North Carolina.

For the reasons set forth herein, defendant's motion to dismiss (dkt.#14) is GRANTED in part. The case is herebyTRANSFERRED to the Western District of North Carolina. TheClerk of the Court shall close this file.

So ordered.

1. This underscores the importance of providing dated printouts,attached to an affidavit, if necessary, showing the information claimedto exist on a given web site so that the court can properly evaluate theevidence offered.

2. Although the parties cite Section 33-929(e) in their memoranda,plaintiff does not explain how this provision applies to allow theexercise of jurisdiction over defendant. Specifically, plaintiff does notexplain how defendant is "transact[ing] business in this state inviolation of section 33-920," which is a prerequisite toapplying Section 33-929(e). Conn. Gen. Stat. § 33-929(e) (emphasisadded). Because the court cannot discern any, and the parties have notpointed out any, material difference between the outcome of this analysisunder subsections (e) and (f), if subsection (e) were shown to beapplicable, the court will discuss subsection (f) only.

3. Section 33-929(f) was, until January 1, 1997, codified as Section33-411(c). The text is identical.

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