RICHARDS v. TSUNAMI SOFTGOODS

239 F. Supp.2d 80 (2003) | Cited 0 times | D. Maine | January 17, 2003

MEMORANDUM OF DECISION AND ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

Now before the Court is a Motion to Dismiss by Defendants TsunamiSoftgoods, Inc. ("Tsunami") and Gemini Fashions of Canada, Ltd.("Gemini") (Docket Item No. 4) in an action by Plaintiff Sarah Richardsfor copyright infringement under the Federal Copyright Act of 1976, asamended, 17 U.S.C. § 101 et seq. In their Motion to Dismiss,Defendants invoke Fed.R.Civ.P. 12(b)(2) and contend that they lacksufficient contacts with the state of Maine to allow this Court toestablish personal jurisdiction over them. On November 18, 2002, thisCourt ordered the parties to brief the personal jurisdiction issue underthe recently developed test set forth in United States v. Swiss Am. BankLtd., 191 F.3d 30 (1st Cir. 1999) (Swiss II), which assesses theamenability of foreign defendants in federal question cases to thejurisdiction of the federal courts in the United States, using therecently enacted Rule 4(k) of the Federal Rules of Civil Procedure. SeeOrder (Docket Item No. 15). The Court understands the arguments underRule 4(k) to be in the alternative to those already set forth in theoriginal Motion to Dismiss and responses thereto. This issue has now beenfully briefed, and after careful review and consideration of thepleadings filed with this Court to date, the Court will grant Defendants'Motion to Dismiss without prejudice.

I. Legal Standard

On a motion to dismiss for lack of personal jurisdiction, it is theplaintiff's burden to make a prima facie showing of personal jurisdictionby demonstrating the existence of "every fact required to satisfy boththe forum's long-arm statute and the [D]ue [P]rocess [C]lause of theConstitution" when the court's decision will be made on the basis of thepleadings. Boit v. Gar-Tec Products, Inc., 967 F.2d 671, 675 (1st Cir.1992). (internal citation omitted). See also United Elec,. Radio andMach. Workers of America (UE) v. 163 Pleasant Street Corp.,987 F.2d 39, 43 (1st Cir. 1993) (Pleasant Street II). The plaintiff mustcite to specific evidence in the record, and the court must accept theproffered facts as true and view them in the light most favorable toplaintiff. Pleasant Street II, 987 F.2d at 44 (citing Boit, 967 F.2d at675). In ruling on a motion to dismiss for lack of personaljurisdiction,the court must also consider any uncontested facts putforward by the defendant. Daynard v. Ness, Motley, Loadholt, Richardson& Poole, P.A., 290 F.3d 42, 51 (1st Cir. 2002).

The personal jurisdictional reach of a court sitting in a federalquestion case differs from that of a court sitting in diversity. See18 U.S.C. § 1332. In a federal question case, "the constitutionallimits of the court's personal jurisdiction are fixed . . . not by theFourteenth Amendment but by the Due Process Clause of the FifthAmendment." United States v. Swiss Am. Bank, Ltd. 274 F.3d 610, 618 (1stCir. 2001) (Swiss IV) (quoting United Elec. Radio and Mach. Workers ofAmerica (UE) v. 163 Pleasant St. Corp., 960 F.2d 1080, 1085 (1st Cir.1992) (Pleasant Street I)). Under the Fifth Amendment, the federalcourt's power to assert personal jurisdiction is geographically expandeddue to the absence of the federalism concerns that are normally presentin a diversity case. Pleasant Street I, 960 F.2d at 1085. This means that"a plaintiff need only show that the defendant has adequate contacts withthe United States as a whole, rather than with a particular state." SwissIV, 274 F.3d at 618. That being said, however, the plaintiff must stillground its service of process in a federal statute or civil rule. Seeid. See also Lorelei Corp. v. County of Guadalupe, 940 F.2d 717, 719 (1stCir. 1991) ("Although there is no direct constitutional check on thedistrict court's exercise of personal jurisdiction over a United Statesresident in a federal question case, there is a statutory limitation.").

Statutory authorization can come from a federal statute, or it may comefrom the forum state's personal jurisdiction rules, in which case theinquiry ends up being the same as that of a federal court sitting indiversity. See Pleasant Street I at 1086. Alternatively, authorizationmay come from Federal Rule of Civil Procedure 4(k)(2), in the case of aplaintiff seeking to assert personal jurisdiction over a foreigndefendant. Swiss II, 191 F.3d at 36. In the instant case, authorizationto exercise personal jurisdiction can come from only the latter twooptions — the Maine long-arm statute or Rule 4(k)(2) — becausethe federal copyright statute does not provide for national or worldwideservice of process. See Fort Knox Music, Inc. v. Baptiste, 203 F.3d 193,196 (2d Cir. 2000).

II. Facts

Plaintiff Sarah Richards creates original watercolor paintings andlithograph prints, which she markets and sells through her own artgallery as well as through more than 75 art dealers located in 29 statesthroughout the United States. Complaint (Docket Item No. 1) ¶¶ 1, 6.Defendants are Tsunami Softgoods, Inc., a Utah corporation with aprincipal place of business in Park City, Utah, and Gemini Fashions ofCanada, Ltd., a Canadian corporation with a principal place of businessin Winnipeg, Manitoba, Canada. See Motion of Defendants Gemini Fashionsof Canada, Ltd. and Tsunami Softgoods, Inc. to Dismiss for Lack ofPersonal Jurisdiction and Incorporated Memorandum of Law (Docket ItemNo. 4), Exhibit B, Affidavit of Todd Arenson ¶ 2; Complaint ¶ 10. Tsunamidoes not sell or manufacture any goods; it is a design and developmentcompany for the outdoor fashion industry, and it licenses its designs tocompanies such as Gemini for manufacture and sale. Arenson Aff. ¶ 3. Atthe time of the alleged infringement, Tsunami employed a total of fourpeople, none of whom were located in, or ever traveled to, Maine tosolicit or secure business. Id. ¶¶ 4-5. Tsunami does not advertise in anypublication or journal targeted to Maine or maintain a telephone or othercommunication device within Maine, nor does it maintain awebsite on theworldwide web. Id. ¶ 5. All of Tsunami's work is performed in Park City,Utah. Id. ¶ 6.

Here, Gemini and Tsunami have a licensing agreement whereby all Tsunamibrand products are licensed to Gemini; all design work for these productsis done at the Tsunami office in Park City, Utah, and all manufacturingactivities take place in Winnipeg, Manitoba, Canada, as well as inseveral Asian countries. Defendants' Motion to Dismiss, Exhibit A,Affidavit of Robert Forbes ¶¶ 7-8. Gemini does not maintain anyfacilities within the United States and does not have any employees inthe United States. Id. ¶¶ 3-4. All Gemini sales are made through acombination of independent regional sales representatives located invarious states throughout the United States and Gemini sales managerslocated in Winnipeg. "Sales administration" for Gemini in the UnitedStates is through an independent contractor, Apollo Concepts of Boise,Idaho. Forbes Aff. ¶ 3. Sales of Tsunami-branded products in the state ofMaine are covered by the independent northeast regional salesrepresentative located in Dorset, Vermont. Id. ¶¶ 3-4. According toGemini, it does not control or direct the activities of these regionalsales representatives, who make most of their sales contacts atnational, international, or regional trade shows. Id. ¶ 5. Orders forGemini are placed with these independent sales representatives. Id. ¶ 6.During the 2001-2002 booking season,1 Gemini made a total of $54,350 insales to accounts in Maine. Id. ¶ 10. During the 1999-2000 and 2000-2001booking seasons, sales to Maine amounted to approximately $25,927 foreach year. Supplemental Affidavit of Robert W. Forbes (Docket Item No.12) ¶ 3. Gemini does not advertise in any publication targeted to Maineor in any Maine publication. Forbes Aff. ¶ 5.

In 1998, Plaintiff painted an original work entitled "Drums on theMesa," and registered the painting with the United States CopyrightOffice on November 9, 2001. Complaint ¶ 16. Plaintiff alleges thatDefendants Tsunami and Gemini have used this copyrighted work on severalitems of clothing and accessory products manufactured or sold by them andthat they have used her work in their marketing literature. Id. ¶¶20-27. Plaintiff first became aware of the alleged infringement in thefall of 2001, when she received a copy of a catalog that contained thealleged infringing products. Affidavit of Sarah Lynn Richards (DocketItem No. 10) ¶¶ 2-3. Between October 2001 and April 2002, Plaintiffpurchased various products from different catalogs that purported to bearher copyrighted work. These products were delivered to Plaintiff at herhome in Bristol, Maine. Id. ¶¶ 4-5. On January 2, 2002, Plaintiffinformed Defendants in writing that their products copied her copyrightedwork and infringed her copyrights, and she requested each of them tocease and desist their alleged infringing conduct. Complaint ¶ 32.Despite her requests, Plaintiff believes that Defendants still continueto manufacture, market, sell, and otherwise distribute their productswith the use of her copyrighted work. Id. ¶ 33.

III. Discussion

In this case, personal jurisdiction can be established only under theMaine long-arm statute or under Federal Rule of Civil Procedure 4(k)(2).Because a party may invoke Rule 4(k)(2) only where no individual statemay properly exercise personal jurisdiction over a defendant, the Courtwill first consider whether jurisdiction is properly exercised under theMaine long-arm statute.

A. The Maine Long-Arm Statute

Normally, to show that the exercise of personal jurisdiction isproper, a plaintiff must show both that the long-arm statute of the statein which the federal district court sits grants jurisdiction over thedefendant, and that such an exercise of jurisdiction comports withconstitutional requirements. Foster-Miller, Inc. v. Babcock & WilcoxCanada, 46 F.3d 138, 144 (1st Cir. 1995). However, because Maine'slong-arm statute, 14 M.R.S.A. § 704-A, is coextensive with the limitsof the Due Process Clause of the Fourteenth Amendment, it is the DueProcess Clause that actually determines the limits of the Court'sjurisdictional reach. Forum Fin. Group v. President and Fellows ofHarvard College, 173 F. Supp.2d 72, 87 (D.Me. 2001) (citing ElectronicMedia Int'l v. Pioneer Communications of America, Inc., 586 A.2d 1256,1258 (Me. 1991)). For a court's exercise of personal jurisdiction tocomply with constitutional due process, the defendant must have "certainminimum contacts with [the forum state] such that the maintenance of thesuit does not offend traditional notions of fair play and substantialjustice." International Shoe Co. v. Washington, 326 U.S. 310, 316, 66S.Ct. 154, 158, 90 L.Ed. 95 (1945) (internal citation omitted).

(1) General Jurisdiction

There are two species of jurisdiction that may be asserted over adefendant: general and specific. To assert general jurisdiction, theremust be "continuous and systematic general business contacts" between theforeign defendant and the forum. Swiss IV, 274 F.3d at 619 (quotingHelicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 416, 104S.Ct. 1868, 80 L.Ed.2d 404 (1984)). This jurisdiction may be establishedeven when the defendant's contacts with the forum are unrelated to thesubject matter of the action. Scott v. Jones, 984 F. Supp. 37, 43 (D.Me.1997). Next, the exercise of jurisdiction must be reasonable — adefendant's minimum contacts must "be considered in light of otherfactors to determine whether the assertion of personal jurisdiction wouldcomport with fair play and substantial justice." Donatelli v. NationalHockey League, 893 F.2d 459 (1st Cir. 1990) (quoting Burger King Corp.v. Rudzewicz, 471 U.S. 462, 476, 105 S.Ct. 2174, 2184, 85 L.Ed.2d 528(1985) (internal citation omitted)). In evaluating whether the exerciseof general personal jurisdiction is warranted, courts focus on "thequality and quantity" of contacts between the potential defendant and theforum. Phillips Exeter Academy V. Howard Phillips Fund, Inc., 196 F.3d 284,288 (1st Cir. 1999). The Court of Appeals for the First Circuit has notedthat "[a]lthough minimum contacts suffice in and of themselves forspecific jurisdiction under International Shoe, the standard for generaljurisdiction is considerably more stringent." Glater v. Eli Lilly &Co., 744 F.2d 213, 216 (1st Cir. 1984).

First, the defendant's contacts with the forum must be evaluatedbecause "[i]f the same do not exist in sufficient abundance . . . theinquiry ends." Swiss IV, 274 F.3d at 619 (quoting Donatelli, 893 F.2d at465.) In Noonan v. Winston Co., 135 F.3d 85 (1st Cir. 1998), the Court ofAppeals for the First Circuit determined that the following were notsufficient minimum contacts to authorize general personal jurisdiction:(i) a visit by an employee of the defendant to the forum state sixteenyears before the conduct that formed the basis of the allegations in thecomplaint, during which time the employee took the photograph of theplaintiff that was allegedly used without his permission sixteen yearslater; (ii) the defendant's solicitation of business inthe forum stateduring the eighteen months before the complaint was filed by calling,faxing and writing a potential customer in the forum state, sendingemployees into the forum state on at least two occasions with theintention of developing a relationship with the potential customer, andseeking business relationships with two other companies in the forumstate; and (iii) taking approximately $585,000 in orders from theabove-described customer. Id. at 87, 92-93.

In Glater, the following contacts were also found by the Court ofAppeals for the First Circuit to be insufficient to authorize generaljurisdiction: (i) the defendant conceded that it did business in theforum state; (ii) the defendant engaged in limited advertising inprofessional trade journals that circulated in the forum state; and (iii)it employed eight sales representatives whose duties included providinginformation to individuals and businesses in the forum state who couldpurchase its products from independent distributors in the forum state.Glater, 744 F.2d at 214-15, 217. Finally, the Supreme Court found inHelicopteros that a Texas district court could not exercise generalpersonal jurisdiction over a Colombian corporation that sent its chiefexecutive officer to Houston for contract negotiations, accepted into itsNew York bank accounts checks drawn on a Houston bank, bought equipmentand training services from a Texas corporation, and sent personnel tothat corporation's Texas facilities for training. Helicopteros, 466 U.S.at 416, 104 S.Ct. 1868.

The Defendants' contacts in this case are even less continuous andsystematic than those contacts found to be insufficient in all of theabove cases. Unlike the defendants in those cases, neither Gemini norTsunami have ever once sent an employee into the state of Maine, directlysolicited business or advertised within the state of Maine, or evercontacted any individual or company within the state of Maine. Gemini hasalso derived considerably less from sales in Maine — approximately$55,000 in 2001-2002 and approximately $25,000 in 1999-2000 and 2000-2001— than the $585,000 found to be insufficient on all the facts inNoonan. Given First Circuit and Supreme Court precedent, Defendantsclearly have not had enough contact with the state of Maine to justifythis Court's exercising general jurisdiction.

(2) Specific Jurisdiction

Even if there are not enough contacts to authorize a court to exercisegeneral jurisdiction over a defendant, specific jurisdiction may still bewarranted. The Court of Appeals for the First Circuit has established athree-part analysis in making this determination. First, the court mustestablish whether the plaintiff's claim directly relates to or arises outof the defendant's contacts with the forum. Second, the court must decidewhether those contacts constitute purposeful availment of the benefitsand protections afforded by the forum's laws. And third, if the first twoprongs are satisfied, the court must be sure that the exercise ofjurisdiction is reasonable and that it comports with fundamentalfairness. Phillips Exeter, 196 F.3d at 288; Swiss IV, 274 F.3d at620-21.

The first prong — the relatedness prong — focuses on"the nexus between the defendant's contacts and the plaintiff's cause ofaction." Ticketmaster-N.Y., Inc. v. Alioto, 26 F.3d 201, 206 (1st Cir.1994). The inquiry begins "by identifying the alleged contacts, sincethere can be no requisite nexus between the contacts and the cause ofaction if no contacts exist." Swiss IV, 274 F.3d at 621. Such an inquiryis extremely fact-specific, and "each case requires an individualizedweighing of the material facts." Pleasant Street I, 960F.2d at 1088. Inthis case, neither Gemini nor Tsunami have had any contacts at all withthe state of Maine. Plaintiff has charged only that the products shebought that allegedly bear her copyrighted design were manufactured byGemini (in Manitoba, Canada) and designed by Tsunami (in Utah). She doesnot claim that she bought them from either Gemini or Tsunami, but,rather, that she purchased the items from various catalog companies.2Plaintiff has furnished no evidence as to any type of agency relationshipbetween the catalog companies and Gemini or Tsunami such that any actionsof the catalog companies could be imputed to Defendants. Gemini hasindicated that all of its sales in the United States are conducted byindependent sales representatives. Forbes Aff. ¶ 4. These independentsales representatives are not the catalog companies.3 Any orders forGemini products made with its independent sales representatives "are notfinal until accepted by Gemini in Manitoba." Id. ¶ 6. Plaintiff has notalleged that it was Plaintiff's order, rather than the catalog company'sorder, that needed Gemini approval. Likewise, Plaintiff has presented noevidence that it was Gemini, and not the catalog company, that shippedthe product to her.4 Ultimately, there is no proof in this recordthat either Defendant has made any contacts with the state of Maine. Itis, therefore, unnecessary to further examine the second and third prongsof the specific jurisdiction test. Under the due process analysis,specific personal jurisdiction may not be asserted over Defendants.

B. Rule 4(k)(2)

Although this Court has found that the Maine long-arm statute does notallow it to exercise personal jurisdiction over Defendants, Federal Ruleof Civil Procedure (4)(k)(2) would supply a potential alternate basis forjurisdiction over Gemini in this case.5 Rule 4(k)(2) functions as atype of federal long-arm statute by providing a basis for personaljurisdiction over a foreign defendant in a federal question case.Rule 4(k)(2) provides:

If the exercise of jurisdiction is consistent with the Constitution and laws of the United States, serving a summons or filing a waiver of service is also effective, with respect to claims arising under federal law, to establish personal jurisdiction over the person of any defendant who is not subject to the jurisdiction of the courts of general jurisdiction of any state.

Paragraph 2 of Rule 4(k) was drafted to "correct[] a gap in theenforcement of federal law" when dealing with defendants who were notresidents of the United States and who had contacts with the UnitedStates as a whole but not enough with any individual state to supportjurisdiction under a state long-arm statute. Fed.R.Civ.P. 4 advisorycommittee's note.

To establish personal jurisdiction under this rule, First Circuitprecedent requires that the plaintiff make a prima facie showing that: (1)the claim asserted arises under federal law, (2) personal jurisdiction isnot available under any situation-specific federal statute, and (3) theputative defendant's contacts with the nation as a whole suffice tosatisfy the applicable constitutional requirements. Swiss II, 191 F.3d 30at 41. This Rule may be used to obtain personal jurisdiction only when,as the rule's last phrase indicates, no state's jurisdiction rulesprovide the requisite jurisdictional authorization and the plaintiffcertifies this to be so. See id. Even if the plaintiff does all of theabove, the defendant then has the opportunity to rebut this showing byproducing evidence that, if credited, would show either that one or morespecific states exist in which it would be subject to suit or that itscontacts with the United States as a whole are constitutionallyinsufficient to support jurisdiction. Id. See also ISI International,Inc. v. Borden Ladner Gervais LLP, 256 F.3d 548, 552 (7th Cir. 2001) ("Adefendant who wants to preclude use of Rule 4(k)(2) has only to name someother state in which the suit could proceed.") If the defendant showsthat another state exists where defendant would be subject to a court'sjurisdiction, "the plaintiff has three choices: . . . move for a transferto a district within that state, or . . . discontinue his action . . . or. . . contest the defendant's proffer." Id. at 42. If the plaintiffchooses the third course, he must prove that the defendant is not subjectto suit in the identified forum(s). Id.

Gemini satisfies the prima facie showing under Rule 4(k)(2): the claimasserted is based on the Federal copyright statute,17 U.S.C. § 501-511, and, therefore, arises under federal law; thecopyright statute does not allow for nationwide or worldwide service ofprocess; and, finally, the Court finds that Gemini's contacts with thenation as a whole would satisfy constitutional requisites for theexercise of personal jurisdiction.6 However, Defendants havepresented ample evidence that Gemini would be subject to the personaljurisdiction of the courts of either Utah or Idaho, see SupplementalMemorandum of Law in Support of Motion to Dismiss(Docket Item. No. 19), and Plaintiff does not dispute this contention.

The allegedly infringing design work occurred in Utah, where DefendantTsunami, the designer of the product, resides. Arenson Aff. ¶¶ 2, 6.Pursuant to the licensing agreement between Tsunami and Gemini, Tsunamiprovided its designs to Gemini for the latter's production. In order tocomplete the required implementation planning for these designs, Geminiemployees traveled to and worked in the Tsunami office in Park City,Utah. Def's Supp. Mem. in Support of Mot. to Dismiss, Exhibit A, SecondSupplemental Affidavit of Robert W. Forbes, ¶ 2. In Utah, in addition tothe standard due process requirement, jurisdiction is appropriate only ifplaintiff establishes that: (1) the defendant conducted certain enumeratedactivities in Utah, and (2) there is a nexus between plaintiff's claimand defendant's conduct. Far West Capital, Inc. v. Towne, 46 F.3d 1071,1074 (10th Cir. 1995) (citing Utah Code Ann. § 78-27-24). The Utahlong-arm statute provides for jurisdiction over an out-of-state residentbased upon a "claim arising from" seven "enumerated acts," including:"(1) the transaction of any business within [the] state . . . (2)contracting to supply service or goods in [the] state. . . ." Utah CodeAnn. § 78-27-24. Gemini has engaged in these enumerated acts, andcertainly Plaintiff's claim of copyright infringement arises out of thisconduct. Clearly, Gemini would be subject to the jurisdiction of Utahunder this statute and the requirements of due process.7 Therefore,this Court may not exercise personal jurisdiction over Defendant Geminion the basis of Rule 4(k)(2).8

IV. Conclusion

For the foregoing reasons, the Court ORDERS that Defendants' Motion toDismiss be, and it is hereby, GRANTED without prejudice.

1. According to Defendants, the "booking season" is in the fall andthe spring.

2. It does not appear that any of the various catalog companies fromwhich she actually purchased the products are located in Maine. See Replyto Plaintiff's Objection to Motion of Defendants Gemini Fashions ofCanada, Ltd. and Tsunami Softgoods, Inc. to Dismiss for Lack of PersonalJurisdiction (Docket Item No. 11) at 4, n. 4 for a list of the catalogcompanies, the city and state where each is located, and their individualwebsites. Plaintiff originally sued one of those companies, CatalogVentures, Inc., but subsequently dismissed the Complaint against itwithout prejudice. See Notice of Dismissal as to Defendant CatalogVentures, Inc. (Docket Item No. 16).

3. The Court notes that even if the catalog companies were the same asthe independent sales representatives, the Court of Appeals for the FirstCircuit has recently indicated that "sales by an independent distributor. . . or separately incorporated subsidiary normally do not count as"contacts" of the manufacturer or parent corporation." Cambridge LiteraryProperties, Ltd., v. W. Goebel Porzellanfabrik, 295 F.3d 59, 63, n. 3(1st Cir. 2002).

4. The Court notes here that the Court of Appeals for the FirstCircuit has adopted Justice O'Connor's plurality opinion in Asahi MetalIndustry Co., Ltd. v. Superior Court of California, Solano County,480 U.S. 102, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987) which rejected theso-called stream of commerce theory: "The placement of a product into thestream of commerce, without more, is not an act of the defendantpurposefully directed toward the forum State." Id. at 112, 107 S.Ct.1026.

5. In this case, only Gemini is a foreign defendant, and, therefore,Rule 4(k)(2) can apply only to Gemini, and not Tsunami, for purposes ofestablishing personal jurisdiction. Thus, when the Court discussesjurisdiction under Rule 4(k)(2), it is referring only to jurisdictionover Defendant Gemini.

6. The Court could exercise general personal jurisdiction over Geminibased on its continuous and systematic business contacts with the UnitedStates. Nearly half of Gemini's total sales for the fiscal years of2000-2001 and 2001-2002 were made in the United States. Forbes Aff. ¶10. Further, Gemini itself announced in its press release that itmaintains "an affiliated sales office in Boise, Idaho to handle sales andmarketing directives." Richards Aff., Exhibit 5. Given Gemini'ssubstantial level of activities and sales in the United States, theexercise of personal jurisdiction over Gemini in the United States wouldbe reasonable. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286,292, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980); see also International Shoe,326 U.S. at 316, 66 S.Ct. 154.

7. The Seventh Circuit, in noting that personal jurisdiction iswaivable, has gone so far as to say that "[n]aming a more appropriatestate [where a court could exercise personal jurisdiction] would amountto a consent to personal jurisdiction there." ISI International, 256 F.3dat 553.

8. Defendants have also provided evidence that Gemini would be subjectto the personal jurisdiction of the courts in Idaho. However, because itis established that Utah courts would have jurisdiction, it isunnecessary to undertake an analysis of potential jurisdiction inIdaho.

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