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Exact Marketing, Inc. v. Unique Sports Products, Inc.

United States District Court, D. Utah, Central Division

July 20, 2018

EXACT MARKETING, INC. d.b.a. LIZARD SKINS, a Utah corporation, Plaintiff,
v.
UNIQUE SPORTS PRODUCTS, INC., d.b.a. HOT GLOVE and HOT GLOVE, Inc., Defendant.

          MEMORANDUM DECISION AND ORDER

          Dee Benson United States District Judge.

         Before the Court is a motion brought by Defendant, Unique Sports Products, Inc. doing business as Hot Glove and Hot Glove, Inc., ("Hot Glove"), to dismiss for lack of personal jurisdiction. [Dkt. 7]. The parties have fully briefed the motion and the Court finds oral argument unnecessary. Based on the written arguments of the parties and the relevant facts and the law, the Court hereby enters this Memorandum Decision and Order.

         BACKGROUND

         Plaintiff, Exact Marketing, Inc. d.b.a. Lizard Skins ("Lizard Skins"), is a Utah corporation with its principal place of business in American Fork, Utah. Dkt. 14. It manufactures, markets and sells sports grip tape for various sports including cycling, tennis and baseball. Lizard Skins is the official bat grip supplier for major league baseball and its bat grips have federal trademark registrations. Lizard Skins sells its grips through Dicks Sporting Goods, Academy Sports, Modell's, Dunham's, Scheels, Play It Again Sports, Hibett Sports, Olympia and other independent dealers in the United States, including Amazon.

         Lizard Skins filed this action against Hot Glove, a company that also sells sports grip tape, asserting claims for infringement of Lizard-Skin's registered baseball grip trademarks, unfair competition, trade dress infringement, and deceptive trade practices. Dkt. 2. Lizard Skins contends that Hot Glove's grip tape utilizes the same or similar camoflague designs, embossing and oval indentations in staggered rows as Lizard Skins'.

         Hot Glove moves to dismiss this action on the basis that it is not subject to personal jurisdiction in Utah. It moves in the alternative for a change of venue. Hot Glove is headquartered in the state of Georgia and sells its baseball bat grip tape called Mega Wrap to wholesale purchasers such as Amazon.com and Walmart.com which then sell it to end users across the country, including in Utah. Additionally, Hot Glove operates two websties: uniquesports.us and hotglove.com, which advertize and promote its products. The websites invite customers to "open a wholesale account or order direct" by contacting Hot Glove. While Hot Glove disputes that customers are able to purchase products directly from its websites, its hotglove.com site provides direct links to Hot Glove's online retail partners, Amazon.com, Walmart.com, Tennisexpress.com, Midwestsports.com, Holabirdsports.com, and Tenniswarehovise.com. Hot Glove has also shipped its products to Utah.

         In support of its motion to dismiss, Hot Glove asserts that it is not incorporated or registered to do business in Utah. It does not maintain an office or have employees, own real estate or hold bank accounts in Utah. Hot Glove contends that its sale of products in Utah have been de minimus, totaling $958.68 for 2017-18. It argues that its websites are solely for the purpose of advertising and providing information and that it does not specifically target Utah residents through its websites. It alleges its contacts with Utah are insufficient to subject it to personal jurisdiction in Utah.

         DISCUSSION

         Personal Jurisdiction It is the plaintiffs burden to establish personal jurisdiction over the defendant. OMI Holdings, Inc. v. Royal Ins. Co. Of Canada, 149 F.3d 1986, 1091 (10th Cir. 1998). In the preliminary stages of litigation, a plaintiffs burden is only to establish a prima facie case that jurisdiction exists. Wenz v. Memory Crystal, 55 F.3d 1503, 1505 (10th Cir. 1995). All factual disputes are to be resolved in favor of the plaintiff when determining the sufficiency of this showing. Id.

         Lizard Skins does not allege that there is general personal jurisdiction over Hot Glove in Utah. Therefore, the Court will consider whether it has specific personal jurisdiction over Hot Glove in this matter.

         To obtain personal jurisdiction over a nonresident defendant in a diversity action, a plaintiff must show that: (1) jurisdiction is legitimate under the laws of the forum state; and (2) the exercise of jurisdiction does not offend the due process clause of the Fourteenth Amendment. Soma Medical Int'l v. Standard Chartered Bank, 196 F.3d 1292, 1295 (10th Cir. 1999).

         1. Jurisdiction Under Utah Law

         Utah law expressly states that its long arm statute must be interpreted broadly "so as to assert jurisdiction over nonresident defendants to the fullest extent permitted by the due process clause of the Fourteenth Amendment to the United States Constitution." Utah Code § 78B-3-201; see also Starways, Inc. v. Curry, 980 F.2d 204, 206 (Utah 1999) ("We have held that the Utah long-arm statute 'must be extended to the fullest extent allowed by due process of law.") (quoting Synergetics v. Marathon Ranching Co., 701 F.2d 1106, 1110 (Utah 1985)). Because the Utah long-arm statute confers the maximum jurisdiction permissible consistent with the due process clause, the Court proceeds to determine whether the exercise of personal jurisdiction over Hot Glove meets federal due process standards.

         2. Due ...


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