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Young Pharmaceuticals Inc v. AMP Medical Products, LLC

United States District Court, D. Connecticut

March 31, 2016



Vanessa L. Bryant United States District Judge


The plaintiff, Young Pharmaceuticals, Inc. (Young”), filed this action against AMP Medical Products, LLC (“AMP”) and Peter Marchese (“Marchese”) on April 8, 2015, alleging trade dress and trademark infringement in violation of the Lanham Act, 15 U.S.C. §§ 1114 and 1125, as well as state law claims for commercial defamation, tortious interference and unfair competition in violation of the Connecticut Unfair Trade Practices Act, Con. Gen. Stat. § 42-110 (“CUTPA”). Both Young and AMP sell medical skin care products, and Young alleges that AMP’s products violate Plaintiff’s trademarks. AMP and Marchese (collectively, the “Defendants”) have moved pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure to dismiss Young’s Complaint in its entirety for lack of personal jurisdiction. [Doc. #39].

The Complaint alleges that AMP is a limited liability company incorporated in Nevada with a business address in Henderson, Nevada. [Dkt. 1, Compl. ¶ 4]. Defendant Marchese is alleged to be a Nevada “individual” with a last known address in Henderson, Nevada, and is alleged to be the current “Manager” of AMP, as well as a former employee of Young in the capacity of Regional Marketing Manager. [Id. ¶ 3]. The Complaint did not allege any specific facts which would allow the Court to establish jurisdiction over the Defendants, beyond the sole and vague allegation that “Defendants have sold, and continue to sell, their infringing products in the District of Connecticut.” [Id. ¶ 8].

In support of their Motion to Dismiss, Defendants attached a sworn and notarized statement completed by Defendant Marchese. [Dkt. 39-2, Ex. A., Marchese Aff.]. Marchese claims that AMP sells its products “to doctors and medical spas at trade shows and through AMP’s sales representatives, ” and that AMP “primarily” sells its products “in the southeastern, [m]idwestern, and western United States [Id. ¶¶ 4, 6]. AMP maintains no offices in Connecticut, owns no property in Connecticut, and has no registered agent for service in Connecticut. [Id. ¶¶ 13-14]. Marchese claims that AMP “has not participated in any trade shows in Connecticut or even on the East Coast.” [Id. ¶ 5]. Although AMP maintains a website which displays its products, customers are not able to make purchases directly through the website. [Id. ¶ 15]. Finally, Marchese states that “has only ever sold one of its products, ” labeled as an “Anti-Redness Foaming Cleanser, ” to “one customer in Connecticut, ” although Marchese does not elaborate on the nature of the sale or the revenue obtained therefrom. [Id. ¶ 12].

In support of its Opposition to the Motion to Dismiss, Plaintiff attached a Declaration from Young’s President, John Kulesza. [Dkt. 53-2, Kulesza Decl.]. The Declaration states that customers in the cosmetic industry “attend trade shows all over the country” and that Young has lost clients in Connecticut “as a result of” the conduct alleged in the Complaint, including one client with “annual orders of approximately $75, 000.” [Id. ¶¶ 7, 10]. However, Plaintiff could not offer any additional specific facts elaborating upon Defendants’ contacts with the State of Connecticut.

The Defendants contend that this Court lacks personal jurisdiction over them pursuant to Connecticut’s long arm statutes, Conn. Gen. Stat. § 52-59b, and under a due process analysis, because they do not have sufficient minimum contacts with the State of Connecticut and are not subject to jurisdiction under Connecticut’s long-arm statute. For the reasons set forth below, the Defendants’ motion to dismiss for lack of personal jurisdiction is DENIED WITHOUT PREJUDICE.


To successfully defeat a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of showing that the Court has personal jurisdiction over the defendant. Metropolitan Life Insurance Co. v. Robertson-Ceco Corp., 84 F.3d 560, 566 (2d Cir.1996). “At this stage of the proceedings, the plaintiffs must make out only a prima facie showing of personal jurisdiction through their own affidavits and supporting materials and all affidavits and pleadings must be construed in the plaintiffs’ favor.” Edberg v. Neogen Corp., 17 F.Supp.2d 104, 110 (D. Conn. 1998) (citing CutCo Industries, Inc. v. Naughton, 806 F.2d 361, 365 (2d Cir. 1986)).

“[T]he amenability of a foreign corporation to suit in a federal court in a diversity action is determined in accordance with the law of the state where the court sits . . . .” Arrowsmith v. United Press Int'l, 320 F.2d 219, 223 (2d Cir. 1963) (in banc); accord Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 57 (2d Cir. 1985). Accordingly, this Court applies the law of the State of Connecticut. In order to ascertain whether a court has personal jurisdiction, Connecticut applies a two-step analysis. A court must first look to the forum State’s long-arm statute and determine whether that statute reaches the foreign corporation. If the long-arm statute authorizes personal jurisdiction over a defendant, the court must then decide whether the exercise of jurisdiction over that party offends due process. Bensmiller v. E.I. Dupont de Nemours & Co., 47 F.3d 79, 81 (2d Cir. 1995) (citing Greene v. Sha-Na-Na, 637 F.Supp. 591, 59 (D. Conn. 1986)).


“When a defendant challenges personal jurisdiction in a motion to dismiss, the plaintiff bears the burden of proving that the court has jurisdiction over the defendant.” Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 208 (2d Cir. 2001). A plaintiff facing a Rule 12(b)(2) motion to dismiss made before any discovery only needs to allege facts constituting a prima facie showing of personal jurisdiction. Gulf Ins. Co. v. Glasbrenner, 417 F.3d 353, 355 (2d Cir. 2005). A plaintiff can make the requisite factual showing through its “own affidavits and supporting materials” which the Court may review and consider. Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981). To establish a prima facie case of personal jurisdiction over a defendant, a plaintiff must satisfy a two part inquiry: “[f]irst, it must allege facts sufficient to show that Connecticut's long-arm statute reaches the defendant, and second, it must establish that the court's exercise of jurisdiction will not violate due process.” Chirag v. MT Marida Marguerite Schiffahrts, No. 3:12CV879 (SRU), 2013 WL 1223293, at *1 (D. Conn. Mar. 26 2013) (citing Knipple v. Viking Communications, Ltd., 674 A.2d 426, 428-29 (Conn. 1996)).

A. Connecticut’s Long-Arm Statute

In diversity cases, federal courts must look to the forum state's long-arm statute to determine if and when personal jurisdiction can be obtained over nonresident defendants. Savin v. Ranier, 898 F .2d 304, 306 (2d Cir.1990). Connecticut’s long-arm statute applicable to non-resident individuals, Section 52-59(b) has also been held to apply to non-resident LLCs. See Austen v. Catterton Partners V, LP, 729 F.Supp.2d 548, 559 (D. Conn. 2010); see ...

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