218 F. Supp.2d 203 (2002) | Cited 0 times | D. Puerto Rico | August 16, 2002


Before the Court is Defendant Les Nouvelles Esthetiques's motion todismiss the complaint for lack of personal jurisdiction (Docket #10).Having reviewed the motion, Plaintiffs' opposition (Docket #16) andDefendant's reply (Docket #19), and after reviewing the case law citedby both parties, the Court has concluded that it lacks personaljurisdiction over Defendant. Therefore, Defendant's motion will beGRANTED and the complaint against it will be DISMISSED WITHOUTPREJUDICE.

Factual Background

Plaintiff Yahaira Rodríguez Salgado is a citizen and residentof the Commonwealth of Puerto Rico. Her husband, Plaintiff AníbalAgosto, is also a citizen and resident of Puerto Rico, and is a namedPlaintiff in this action solely by virtue of the fact that he is thehusband of Plaintiff Rodríguez Salgado. Defendant Les NouvellesEsthetiques (LNE) is a Florida corporation with its principal place ofbusiness in Miami, Florida. LNE is the publisher of a monthly trademagazine catering exclusively to skin care professionals and"estheticians." LNE's magazine has a monthly circulation of approximately20,000. Of this amount, approximately 20 subscribers — or about0.1% of LNE's total worldwide circulation — are located in theCommonwealth of Puerto Rico. The magazine has a worldwide following andreadership. It is not specifically directed or targeted to citizens orbusinesses in Puerto Rico. Moreover, LNE does not advertise its magazinein Puerto Rico, nor does it have any offices, places of business,employees, agents or representatives located in Puerto Rico. In additionto publishing a monthly magazine, LNE sponsors trade shows in Florida,California, Pennsylvania, and Canada for estheticians and other skin careprofessionals. LNE, however, has never sponsored or held a trade show inthe Commonwealth of Puerto Rico.

Plaintiff Rodríguez Salgado is a professional esthetician whoattended several of LNE's trade shows in Miami, Florida. Plaintiffs'claims in this action arise out of her attendance at one of these tradeshows in Florida, and her participation in the making of a video at thatshow. The video depicts the demonstration by DefendantAllain Ganancia of a new massage technique. Plaintiff RodríguezSalgado is the model on the Video who is receiving the massage fromGanancia. The massage demonstration occurred in front of several thousandpeople in attendance at the show, and Rodríguez Salgado's image wasprojected to the audience through the use of video cameras.

LNE later began to advertise and sell the video through its monthlymagazine, allegedly with Defendant Ganancia's consent. Since 1997, LNEhas sold 37 copies of the video, but only two of these sales were made inthe Commonwealth of Puerto Rico (one of which was to PlaintiffAníbal Agosto). Plaintiffs claim that Rodríguez Salgado'sconstitutional privacy rights have been violated as a result of theproduction, distribution and marketing of the video by Defendants.

Nonetheless, as Defendant points out, the majority of the facts allegedin the complaint occurred in Florida. Furthermore, the jurisdictionalallegations with respect to LNE pertain mostly to actions taking place ororiginating in Florida. In that regard, the Complaint alleges that LNEsold copies of the video at its recent trade show in Miami, Florida; andthat it sells copies of the video through its magazine "Les NouvelleEsthetiques American Edition," which is published in Miami, Florida. Theonly Puerto Rico contact alleged as to LNE is that it is selling thevideo here, through its magazine.

However, it appears from the record that only two copies of the videowere sold by LNE in Puerto Rico, and one of the sales was made toPlaintiff Aníbal Agosto. Moreover, LNE's local video sales— totaling $50 over a four-year period — are very small whencompared to LNE's overall revenues for the years in question. Forexample, in 1998 (when the first Puerto Rico sale occurred), LNE hadtotal worldwide revenues of $1,940.494. Thus, the one copy of the videothat LNE sold in Puerto Rico in 1998 amounted to a 0.00129% of LNE'stotal revenues for that year. There were no sales made to Puerto Rico in1999. In the year 2000, when the second video was sold in Puerto Rico,LNE had total revenues of $2,032,276. In other words, the one video thatLNE sold in Puerto Rico in 2000 — to Plaintiff's husband —represented 0.00123% of LNE's total revenues for that year.

Applicable Law and Analysis

In order for a court to be able to make a binding decision whichconforms with due process, the court must have personal jurisdiction overeach party to the case. United States v. Swiss American Bank, Ltd.,191 F.3d 30, 35 (1st Cir. 1999). The plaintiff always has the burden ofestablishing that the forum court has personal jurisdiction over thedefendant. Mass. Sch. of Law at Andover v. Am. Bar Ass'n, 142 F.3d 26, 34(1st Cir. 1998); Rodríguez v. Fallerton Tires Corp., 115 F.3d 81,83 (1st Cir. 1997). In ruling on this issue, the court has a number ofdifferent standards by which it may review the record to determinewhether the plaintiff has met its burden. See Boit v. Gar-Tec Products,Inc., 967 F.2d 671, 674-78 (1st Cir. 1992). When a court holds anevidentiary hearing on the issue, one of two standards applies: eitherplaintiff must demonstrate a likelihood of the existence of all factsnecessary to establish personal jurisdiction or plaintiff must show by apreponderance of the evidence the facts which support personaljurisdiction. Foster-Miller Inc. v. Babcock & Wilcox Canada,46 F.3d 138, 145-47 (1st Cir. 1995); Mohajer v. Monique Fashions,945 F. Supp. 23, 26 (D.P.R. 1996).

A third method often used at the early stages of litigation is theprima facie standard. Rodríguez, 115 F.3d at 83-84. Under thisleast taxing of the standards, a plaintiff must make a showing as toeachfact required to satisfy both the local forum's long-arm statute and theConstitution's due process clause. Id. The district court does not sit asa factfinder; rather, "it ascertains only whether the facts dulyproffered, fully credited, support the exercise of personal jurisdiction."Id. at 84. To make a prima facie showing, the plaintiff may not rest onunsupported allegations in the pleadings; instead, it must adduceevidence of specific facts which establish personal jurisdiction.Foster-Miller; 46 F.3d at 145; Boit, 967 F.2d at 675. In the presentcase, no party has requested an evidentiary hearing and the litigation isin its early stages. Moreover, the First Circuit has ruled that unlessthe district court otherwise informs the parties, it is to be understoodthat the prima facie standard will be used. See Rodríguez, 115F.3d at 84. Accordingly, the Court will employ the prima facie standardin ruling on the motion to dismiss.

There are two types of personal jurisdiction: general and specific.Mass. Sch. of Law, 142 F.3d at 34; Pritzker v. Yari, 42 F.3d 53, 59 (1stCir. 1994). General jurisdiction exists when the lawsuit is not directlybased on the defendant's contacts with the forum, but when the defendanthas engaged in activity in the forum which is unrelated to the suit andwhich is systematic and continuous. Foster-Miller, 46 F.3d at 144 citingUnited Elec. Workers v. 163 Pleasant Street Corp., 960 F.2d 1080, 1088(1st Cir. 1992). In the case before the Court, Plaintiffs have concededin their opposition to the motion to dismiss that they do not invokegeneral jurisdiction in this case. Therefore, the Court will move on tothe question of whether there is specific jurisdiction in this case.

Specific jurisdiction requires a plaintiff to establish twoconditions: first, that the forum has a long-arm statute which purportsto grant jurisdiction over the defendant; and second, that the court'sexercise of personal jurisdiction over the defendant pursuant to thatstatute would comport with the Constitution's strictures. Foster-Miller;46 F.3d at 144; Pritzker, 42 F.3d at 60. With regard to this firstcondition, the Puerto Rico long-arm statute provides in pertinent partthat a court in Puerto Rico has jurisdiction over a person not domiciledin Puerto Rico if the action arises because that person "[t]ransactedbusiness in Puerto Rico personally or through an agent" or he"[p]articipated in tortious acts within Puerto Rico." 32 P.R.Laws III, R. 4.7(a)(1) and (2). This statute has been interpreted toinclude as a "business transaction" the sending of mail to Puerto Ricofrom another jurisdiction, see D´vila-Fermín v. SoutheastBank, NA., 738 F. Supp. 45, 48 (D.P.R. 1990), and to include as tortiousconduct an act committed outside Puerto Rico but which could reasonablybe expected to cause injury within it, see Mangual v. Gen. BatteryCorp., 710 F.2d 15, 19 (1st Cir. 1983); Rivera v. Bank One, 145 F.R.D.614, 620 (D.P.R. 1993). This statute extends personal jurisdiction as faras the United States Constitution will permit. Pritzker, 42 F.3d at 60;Dalmáu Rodríguez v. Hughes Aircraft Co., 781 F.2d 9, 12(1st Cir. 1986). When the state long-arm statute is coextensive with theConstitution's due process limits, the court's analysis may focus solelyon the federal constitutional analysis. Sawtelle v. Farrell, 70 F.3d 1381,1389 (1st Cir. 1995); Dalmáu Rodríguez, 781 F.2d at 12; seealso Phillips Exeter Academy v. Howard Phillips Fund, 196 F.3d 284, 287(1st Cir. 1999) (Approving of district court's focusing on federalconstitutional standards when state long-arm statute reached to fullextent allowed under the Constitution). Accordingly, the first conditionhas been met.

The second condition — that the court's exercise of personaljurisdiction comports with constitutional strictures — requiressubstantially more analysis. A court makinga determination on this condition should use the following three-parttest:

First, the claim underlying the litigation must directly arise out of, or relate to, the defendant's forum-state activities. Second, the defendant's in-state contacts must represent a purposeful availment of the privilege of conducting activities in the forum state, thereby invoking the benefits and protections of that states laws and making the defendant's involuntary presence before the state's court foreseeable. Third, the exercise of jurisdiction must, in light of the Gestalt factors, be reasonable.

Pritzker, 42 F.3d at 60-61 citing 163 Pleasant Street, 960 F.2d at 1089.This test of a defendant's minimum contacts is "highly idiosyncratic" andmust be made on a case-by-case basis. Id. at 60. There must be anaffirmative finding on each of the three parts of the test in order tosupport a finding that specific jurisdiction exists. Phillips Exeter, 196F.3d at 288. Additionally, the court should apply this test individuallyto each of the plaintiffs claims. Id. at 289.

The first two parts of the test — relatedness and purposefulavailment — are both aspects of demonstrating minimum contactspursuant to International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct.154, 90 L.Ed. 95 (1945). See Nowak v. Tak How Investments, Ltd.,94 F.3d 708, 713 (1st Cir. 1996). The relatedness test focuses on thenexus between the defendant's contact with the forum and the plaintiffscause of action. Id. at 714; Sawtelle, 70 F.3d at 1389. This test ensuresthat the causation element is in the forefront of the court's due processanalysis. Ticketmaster-New York, Inc. v. Alioto, 26 F.3d 201, 207 (1stCir. 1994). The court must determine whether plaintiffs claim arises outof or is related to the defendant's conduct within the forum state. SwissAmerican, 191 F.3d at 36. The claim may not arise out of the generalrelationship between plaintiff and defendant; rather, the cause of action"`must directly arise out of the specific contacts between the defendantand the forum state.'" Phillips Exeter, 196 F.3d at 290 quotingSawtelle, 70 F.3d at 1389. For a tort claim, there should be a generalshowing that defendant's contacts with the forum were a proximate causeof plaintiffs claim. Mass. Sch. of Law, 142 F.3d at 35; Nowak, 94 F.3d at715. In the case of a business relationship that leads to a tort, theabsence of proximate cause will not necessarily mean that specificjurisdiction is lacking. Nowak, 94 F.3d at 715. When an out-of-stateparty engages in conduct targeted at an in-state resident to promote abusiness relationship between the two sides, specific jurisdiction may beproper if the out-of-state party's conduct leads to a tortious result.Id.

In the present case, Plaintiffs bring tort claims for violation oftheir privacy rights. Consequently, the Court's inquiry is whetherPlaintiffs' claims arise from Defendant's contacts with the forum state.There are only two acts of Defendant that could arguably be said to havetaken place in Puerto Rico, and that could be sufficiently related tothis cause of action in a way which would meet this first part of thetest for specific jurisdiction: 1) Defendant allegedly sold two copies ofthe video to residents of Puerto Rico through the mail, and 2) Defendantsold 20 subscriptions to its magazine in Puerto Rico, in which theyadvertised the sale of the video.

Defendant argues that LNE's sale of two videos in Puerto Rico —one of which was purchased by Plaintiff Aníbal Agosto —cannot logically be considered the legal or "proximate" cause ofPlaintiffs' alleged injuries since they were not a substantial factor inthe sequence of events that led to the claimed injury. See Wilson v.Bradlees of New England, Inc., 250 F.3d 10, 17 (1st Cir. 2001)(defendant's actions will be considered the"proximate cause" of the alleged harm only if it was "a substantial factorin bringing about the harm."); Merritt v. Shuttle, Inc., 13 F. Supp.2d 371,378 (E.D.N.Y. 1998) (holding that television station was not subject topersonal jurisdiction in New York under that state's long-arm statutesince "libel claim [did] not arise from defendant's delivery of mailorders to New York."). As alleged in the Complaint, the overwhelmingmajority of the events which give rise to Plaintiffs' causes of actionoccurred in Florida, since that is where Plaintiff RodríguezSalgado was videotaped, and where said video was shown to the trade showaudience. Indeed, Plaintiff emphasizes that the Florida videotaping was"unauthorized" and that she was not "paid" or otherwise compensated forher modeling services in Florida. Accordingly, since the gravamen of thispart of the Complaint focuses on the alleged wrongful videotaping ofPlaintiff in Florida, Plaintiffs' claims, as they relate to the invasionof privacy which may have occurred at the trade show, do not arise out ofLNE's isolated Puerto Rico contacts. Therefore, any claims arising fromthe actual showing of the videotape in Florida would not meet the firstpart of the test, and must be dismissed.

On the other hand, the claims related to the damages caused by thedistribution of the video in Puerto Rico are somewhat related to thecontacts that Defendant had with the forum. The Court still believes thatthe causal connection is rather tenuous, however, even with respect tothese damages. Had the videotaping not taken place, of course, no damageswould have been sustained by Plaintiffs. But the videotaping happenedoutside the forum. So, even though the sale of the videos in Puerto Ricois related to some of the damages allegedly sustained by Plaintiffs, asecond and more important part of the cause of the alleged damages wasthe videotaping, which took place in Florida. It would seem, therefore,that both the videotaping and the sale are proximate causes of thealleged damages. The Court is uneasy about holding that having justone-half of the proximate cause of the damages happen in Puerto Rico isenough to satisfy this first part of the test. Nonetheless, let usassume, for the time being, that such a partial causal connection wouldbe enough to satisfy the "relatedness" part of the test.

The second part of the test for specific jurisdiction is whether thedefendant's instate contacts constitute a purposeful availment of theprivilege of conducting activities in the forum state, thereby invokingthe benefits and protections of that forum's laws and making thedefendant's involuntary presence before the courts there foreseeable.Mass. Sch. of Law, 142 F.3d at 36; 163 Pleasant Street, 960 F.2d at1089. The purposeful availment prong is meant to ensure that personaljurisdiction is not based only upon a defendant's random or isolatedcontacts with the forum. Sawtelle, 70 F.3d at 1391. The court's exerciseof jurisdiction must be "fair, just, or reasonable." Nowak, 94 F.3d at716 citing Sawtelle, 70 F.3d at 1391 citing Rush v. Savehuk, 444 U.S. 320,329, 100 S.Ct. 571, 62 L.Ed.2d 516 (1980) (internal quotations omitted).The Court should focus on voluntariness and foreseeability. Nowak, 94F.3d at 716. The defendant's contacts with the forum should be voluntaryand not based on the unilateral actions of a third party.1 Id.Additionally,the nature of these contacts must be such that the defendant couldreasonably anticipate the possibility of being subject to a lawsuitthere. Id. This foreseeability that a defendant might be haled into courtexists when the defendant establishes a continuing obligation betweenitself and the forum state. Sawtelle, 70 F.3d at 1393.

In the present case, an evaluation of the nature and quality of LNE'sPuerto Rico contacts leads to the inescapable conclusion that LNE did notpurposefully direct its activities towards Puerto Rico or avail itself ofthe benefits and protection of Puerto Rico law. The only Puerto Ricocontacts alleged as to LNE are that it is selling the video here, andthat it has 20 Puerto Rico subscribers to its magazine. However, as thedeclaration under penalty of perjury of LNE's Chief Executive, RodolpheLegrand, makes clear, only two copies of the video were sold by LNE inPuerto Rico, and one of the sales was made to Plaintiff Agosto.Moreover, those two sales generated a mere $50 in revenues for LNE, orabout one-thousandth of one percent of LNE's total revenues for theperiod in question. LNE's local magazine subscriptions likewise constitutea tiny fraction of LNE's overall business. Out of a total circulationbase of approximately 20,000 readers, there are only 20 subscriberslocated in Puerto Rico. Such infinitesimal sales-figures are not enoughto constitute the requisite "minimum contacts" that could properlysubject a nonresident defendant to personal jurisdiction in Puerto Rico,especially since the activities in question were not specificallydirected or targeted to Puerto Rico citizens.

The First Circuit Court of Appeals has held that personal jurisdictionmay not be exercised over a nonresident defendant in a defamation and/orinvasion of privacy action where the allegedly offending material was notwidely distributed within the forum. See, e.g., Noonan v. Winston Co.,135 F.3d 85 (1st Cir. 1998) (French advertising agency and Frenchcigarette manufacturer lacked sufficient minimum contacts withMassachusetts where allegedly defamatory advertisement appeared in only305 copies of magazine circulated in Massachusetts). See also Chaiken v.VV Publishing Corp., 119 F.3d 1018 (2nd Cir. 1997) (Israeli newspaperpublisher lacked sufficient minimum contacts with Massachusetts to subjectit to jurisdiction in libel action where it distributed only four copiesof the allegedly defamatory article in Massachusetts, which amounted toonly .0004% of the paper's total circulation); Schnapp v. McBride,64 F. Supp.2d 608, 610-11 (D.La. 1998) (Wisconsin newspaper publisherlacked sufficient minimum contacts with Louisiana where it distributedonly 19 copies of its newspaper in Louisiana and the allegedly defamatoryarticle was not "calculated to cause injury" to the plaintiff inLouisiana); Scherr v. Abrahams, 1998 WL 299678, at *34 (N.D.Ill. May 29,1998) (Massachusetts magazine publisher sued for trademark infringementlacked sufficient minimum contacts with Illinois where it had less than60 bi-monthly subscribers in Illinois and made even fewer newsstand salesin Illinois, totaling approximately 3% of the magazine's total nationwidedistribution). Compare, Keeton v. Hustler Magazine, Inc., 465 U.S. 770,773-74, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984) (magazinepublisher subject to jurisdiction based on monthly circulation of 10,000to 15,000 copies within forum state; Court ruled that "monthly sales ofthousands of magazines" could not be characterized as "random, isolated,or fortuitous" and therefore provided sufficient minimum contacts);Calder v. Jones, 465 U.S. 783, 789, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984)(editor of allegedly defamatory magazine article subject to jurisdictionin California based on weekly circulation of 600,000 copies inCalifornia).

The relationship between the size of the distribution within the forumand its impact on the "minimum contacts" calculus is best exemplified bythe First Circuit's decision in Noonan, where the Court observed that"[j]ust as widespread circulation indicates deliberate action, thindistribution may indicate a lack of purposeful contact." Noonan, 135 F.3dat 91. In Noonan, the First Circuit affirmed the dismissal of an actionfor defamation, misappropriation, violation of the right of publicity,and invasion of privacy based on a French advertising agency and Frenchcigarette manufacturer's alleged unauthorized use of the photograph of aMassachusetts resident, a devoted non-smoker and police officer, innumerous magazines. Emphasizing the fact that the defamatoryadvertisement appeared in only 305 copies of magazines circulated inMassachusetts, the First Circuit held that there were insufficientminimum contacts to exercise personal jurisdiction over the Frenchcorporate defendants:

[P]laintiffs' claims rest on an advertisement that appeared in 305 individual magazines, circulated in Massachusetts. This small distribution, by itself does not merit a finding that Massachusetts was the focal point of the events in question, or that [defendants] aimed the advertisements toward Massachusetts. The size of a distribution of offending material helps determine whether a defendant acted intentionally. The Supreme Court has held that a publisher's regular circulation of a large number of magazines containing allegedly libelous content in a forum state indicated deliberate and continuous exploitation of a market and, therefore, was sufficient to support jurisdiction. See Keeton, [465 U.S. at 781, 104 S.Ct. 1473]. Just as widespread circulation of a publication indicates deliberate action, thin distribution may indicate a lack of purposeful contact. [citation omitted]. . . . While we sympathize with [plaintiff's] distress at seeing his image used to promote a product he despises, his Massachusetts-based injury is not enough to support jurisdiction over the defendants. To find otherwise would inappropriately credit random, isolated, or fortuitous contacts and negate the reason for the purposeful availment requirement.

Noonan, 135 F.3d at 91.

Plaintiffs fail to distinguish Noonan in their opposition to the motionto dismiss. Nonetheless, the Court must recognize that the situation inthat case was different from the one at bar in one significant respect,the defendant publisher in Noonan claimed to have no knowledge of thesale of its publications in the forum. In spite of this, the other FirstCircuit cases analyzing this issue, along with other cases cited byDefendant, convince the Court that such a difference is not dispositive.For example, the First Circuit in Swiss American Bank, 274 F.3d at 623,explained that the holding in Calder"`cannot stand for the broadproposition that a foreign act with foreseeable effects in the forum statealways gives rise to specific jurisdiction.'" Id. quoting Bancroft &Masters, Inc. v. Augusta Nat'l, Inc., 223 F.3d 1082, 1087 (9th Cir.2000). So, the fact that Defendant did know, in the case before us, thatit sold two videos in Puerto Rico does not necessarily mean that theholding in Noonan is not applicable to the case at bar. Noonan stands forthe broader proposition in Keeton that for the establishment of specificjurisdiction in these types of cases it is required that "a substantialnumber of copies [be] regularly sold and distributed." Keeton, 465 781, 104 S.Ct. 1473.

Accordingly, in Chaiken, the Second Circuit held that the DistrictCourt of Massachusetts did not have personal jurisdiction over an Israelinewspaper publisher in a libel action because of the insignificant numberof copies of the offending newspaper that it had sold in Massachusetts:

In recommending that the claims against [the Israeli newspaper publisher] be dismissed, the magistrate judge emphasized that only four copies — 0.004% of its total circulation — of the newspaper containing [the allegedly defamatory] article arrived in Massachusetts. Given [defendant's] "tiny circulation" in Massachusetts and the absence of other significant contacts, the magistrate judge believed that exercising jurisdiction over [defendant] would violate the due process clause. The district court accepted this reasoning, noting that even the Massachusetts distribution of the [defendant's] Sunday edition (183 copies) would not create sufficient contacts to satisfy the due process clause. We agree with the district court that [defendant's] contacts with Massachusetts were minimal. . .

Chaiken, 119 F.3d at 1020. In that case, which is virtuallyindistinguishable from the case at bar, the Court cited Keeton in statingthat it doubted that "four copies per day, or even the 183 copies of theSunday edition, constitute the `substantial number of copies' that makesit fair to exercise jurisdiction over a non-resident publisher." Id. at1029, quoting Keeton 465 U.S. at 781, 104 S.Ct. 1473.

LNE's sparse contacts with Puerto Rico are more comparable to thecontacts in Noonan and Chaiken than they are to the contacts in Keetonand Calder. As previously noted, fewer than 20 copies of LNE's magazineenter Puerto Rico by subscription every month, and only two copies of theallegedly offending video were sold in Puerto Rico (one of which was soldto Plaintiff Agosto). LNE's Puerto Rico sales are even more insubstantialwhen compared to the 10,000 to 15,000 monthly copies distributed inKeeton and the 600,000 weekly copies distributed in Calder. Moreover,unlike the defendants in Calder, whose national magazine was published inCalifornia more than in any other forum, see Calder, 465 U.S. at 788-89,104 S.Ct. 1482, LNE's Puerto Rico sales pale in comparison to its salesin the United States and other jurisdictions. Under these circumstances,it cannot be said that LNE's act of mailing the video to a singlecustomer (other than Plaintiff) in Puerto Rico is pervasive enough forumcontact such that LNE should have reasonably anticipated being haled intoa Puerto Rico court.

Plaintiffs also allege, without offering any proof, that the lonePuerto Rico sale resulted from advertising contained in LNE's monthlymagazine. Such an allegation is insufficient to confer specific personaljurisdiction over LNE. "[G]eneral advertising alone will not suffice toconfer jurisdiction, even if it leads to a single sale." DigitalEquipment Corp. v. Alta-Vista Technology, Inc., 960 F. Supp. 456, 466 n.19 (D.Mass. 1997). By way of example, the Digital Equipment court citedwith approval Droukas v. Divers Training Academy, Inc., 375 Mass. 149,376 N.E.2d 548 (1978), in which a publication advertising marine engineswas distributed in Massachusetts, resulting in a single sale to aMassachusetts resident. In dismissing the case for lack of personaljurisdiction,the Droukas court noted that it "view[ed] the sale of the engines to thedefendant . . . as an isolated transaction, with slight effect on thecommerce of the Commonwealth." Droukas, 375 Mass. at 154, 376 N.E.2d 548."The addition of advertising which reached into the Commonwealth,although a `but for' cause of the sale, was not sufficient to change theequation." Digital Equipment, 960 F. Supp. at 466.

There is no evidence of LNE purposefully targeting the Puerto Ricoforum in the placement of advertisements for the subject video. Asexplained in LNE's initial motion, LNE's monthly magazine is one ofgeneral circulation, with a worldwide following and readership. Themagazine is not advertised in Puerto Rico, nor is it specificallydirected or targeted to citizens of Puerto Rico. Therefore, the mere factthat LNE's magazine may have contained an advertisement for the sale ofthe subject videotape is insufficient to confer jurisdiction over LNE.since it did not specifically target Puerto Rico citizens, and resultedin only two (arguably only one) sales.

Accordingly, under these facts, LNE did not "purposefully avail" itselfof the privilege of conducting activities in the Puerto Rico forum, and,thus, it lacks the requisite "minimum contacts" with Puerto Rico to besubject to personal jurisdiction here. Having established that the secondpart of the test for specific jurisdiction is not met, we need not go intothe third part of the test, related to the Gestalt factors. Similarly,having determined that the Court has no personal jurisdiction overDefendant, it is not necessary to analyze Defendant's arguments regardingvenue.


For all the reasons discussed above, Defendant's motion is GRANTED, andthe complaint against it will be DISMISSED WITHOUT PREJUDICE.

Plaintiffs' claims against Defendant Allain Ganancia are still pendingbefore the Court. The complaint in this case was filed on February 7,2001. Pursuant to Fed.R.Civ.P. 4(m), the time to serve process uponDefendants was to expire on June 7, 2001. As provided by Fed. R.Civ.P. 4(m)the Court gave notice to Plaintiffs on May 22, 2001 that it intended todismiss the case against Defendants if proof of service was not timelyfiled by said date (Docket #2). Any further requests for an extension oftime to serve process should have been timely filed before the expirationof said term, showing good cause why it should be granted. Plaintiffs,however, failed to serve process upon Defendant Allain Ganancia orrequest a further extension to do so. In fact, the summons issued forDefendant Ganancia was returned unexecuted on June 7, 2001 (Docket #3).Therefore, pursuant to this Court's Order, and Fed. R.Civ.P. 4(m), thecomplaint against Defendant Allain Ganancia will also be DISMISSEDWITHOUT PREJUDICE.


1. Plaintiffs' allegation that the video was shown by "third parties"at a skin care convention in Puerto Rico is of no jurisdictionalsignificance in assessing LNE's forum contacts For "minimum contacts" tobe sufficient for the exertion of personal jurisdiction over anonresident defendant, they must be the result of a purposeful act by thedefendant. See Santini Rivera, 118 F. Supp.2d at 163; Reebok Int'l.,Inc. v. Sebelen, 930 F. Supp. 720, 726 (D.P.R. 1996) ("A defendant'scontact with the forum must result from the defendant's purposefulact."). Accordingly, the alleged showing of the Video in Puerto Rico bythe unnamed "third party" is not to be considered in assessing LNE'sforum contacts for purposes of the "minimum contacts" analysis.

Back to top