Case: 8:09-cv-00131-JFB-FG3 Document #: 10 Date Filed: 04/30/2009 Page 1 of 15

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

SHOEMONEY MEDIA GROUP, INC., ) CASE NO. 09-cv-00131

)
Plaintiff, )
)
vs. )
)
KEYEN FARRELL and JOHN J. FARRELL, )
)
Defendants. )

MEMORANDUM BRIEF IN SUPPORT

OF DEFENDANTS’ MOTION TO DISMISS
PURSUANT TO FED. R. CIV. P. 12(b)(2)

Prepared and Submitted by:

J. Scott Paul, #16635
Michaela A. Smith, #22737
McGrath, North, Mullin & Kratz, PC LLO
First National Bank Tower, Suite 3700
1601 Dodge Street
Omaha, NE 68102
(402)341-3070
(402)341-0216 (fax)
jpaul@mcgrathnorth.com
msmith@mcgrathnorth.com
ATTORNEYS FOR THE DEFENDANTS
Case: 8:09-cv-00131-JFB-FG3 Document #: 10 Date Filed: 04/30/2009 Page 2 of 15

INTRODUCTION

This Memorandum Brief is submitted in support of Defendants’ Motion to Dismiss the

Complaint pursuant to Fed. R. Civ. P. 12(b)(2). As demonstrated herein, the Defendants are not

residents of Nebraska, they do not own real property in Nebraska and they do not own a business

that is registered under the laws of this State. Furthermore, the negligible contact that the

Defendants had with residents of Nebraska via the internet are not sufficient for personal

jurisdiction to exist. In a case such as this, where Defendants have not purposely availed

themselves of the privilege of conducting activities within Nebraska and they did not have fair

warning that their activities might result in being hailed into court here, the Complaint should be

dismissed for lack of personal jurisdiction.

PROCEDURAL BACKGROUND

Plaintiff filed this action in the District Court of Douglas County, Nebraska. Defendants

timely removed the matter to federal court pursuant to 28 U.S.C. § 1446. This Court has original

jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1338 because Plaintiff is alleging violations of the

Lanham Act.

STATEMENT OF FACTS

Keyen Farrell is a resident of the State of New York. Index Exhibit A, ¶ 4. His father,

John J. Farrell, is a resident of the State of Connecticut. Index Exhibit B, ¶ 4. The Farrells do not

currently, nor have they ever, owned any real property located in Nebraska. Index Exhibit A, ¶ 7;

Index Exhibit B, ¶ 7. Neither Keyen Farrell nor John J. Farrell (collectively “the Farrells”) have

ever stepped foot in Nebraska. Index Exhibit A, ¶ 6; Index Exhibit B, ¶ 6. The Farrells do not

maintain an office, employees, contractors, officers, directors, agents, or volunteers in Nebraska.

Index Exhibit A, ¶ 9; Index Exhibit B, ¶ 9. Moreover, the Farrells do not currently, nor have they
Case: 8:09-cv-00131-JFB-FG3 Document #: 10 Date Filed: 04/30/2009 Page 3 of 15

ever, owned a business that was incorporated under the laws of Nebraska. Index Exhibit A, ¶ 8;

Index Exhibit B, ¶ 8.

Keyen Farrell has been employed by Google, Inc. (“Google”) since September 17, 2007.

Index Exhibit A, ¶ 10. At all times material hereto, he has been an Account Coordinator with

Google. Index Exhibit A, ¶ 10. The allegations in the Complaint filed against the Farrells arise

out of the Farrells’ use of an internet program owned and operated by Google called “AdWords.”

Complaint ¶¶ 16, 22.1 Specifically, Plaintiff alleges that the Farrells wrongfully displayed the

Plaintiff’s “Shoemoney” trademark in the text of their sponsored links through their Google

“AdWords” account. Complaint ¶ 22.

When internet users enter search terms in www.google.com, Google’s search engine

displays advertisements of various entities that may be of interest to the internet user. Index Exhibit

A, ¶ 11; Index Exhibit B, ¶ 10; Complaint ¶ 15. In conjunction with this, Google sells contextual

advertising through a program called “AdWords.” Index Exhibit A, ¶ 11; Index Exhibit B, ¶ 10.

“AdWords” allows advertisers to bid for their advertising hyperlink to appear above or next to

Google search results when internet users enter specific search terms in a Google search. Index

Exhibit A, ¶ 11; Index Exhibit B, ¶ 10; Complaint ¶ 16. An “AdWords” advertising hyperlink

contains the text of an ad. Index Exhibit A, ¶ 12; Index Exhibit B, ¶ 11. If an internet user is

interested, the user can click on the link, which takes the internet user to the advertiser’s website.

Index Exhibit A, ¶ 12; Index Exhibit B, ¶ 11; Complaint ¶ 16.

Keyen Farrell is the owner of the domain www.myincentivewebsite.com. Index Exhibit A,

¶ 13; Index Exhibit B, ¶ 12. On or about January 22, 2009, Keyen Farrell opened a Google

“AdWords” account with the financial sponsorship of John J. Farrell and under the name John J.

Farrell, for the purpose of advertising the website, www.myincentivewebsite.com. Index Exhibit A,
1
For reasons known only to the Plaintiff, Google has not been made a party to this action.

2
Case: 8:09-cv-00131-JFB-FG3 Document #: 10 Date Filed: 04/30/2009 Page 4 of 15

¶ 16; Index Exhibit B, ¶ 13. Keyen Farrell had John J. Farrell’s permission to open the

“AdWords” account for this purpose. Index Exhibit B, ¶ 14.

From January 30, 2009 to March 31, 2009, there were a total of eleven (11) “AdWords”

visits to www.myincentivewebsite.com that originated from Nebraska that were a result of the

term “shoemoney.” Index Exhibit A, ¶ 26. Of these ”AdWords” visits from Nebraska, zero (0)

sales resulted. Index Exhibit A, ¶ 27.

There have been a total of 85,256 “AdWords” visits to www.myincentivewebsite.com.

Index Exhibit A, ¶ 29. Of these, 180 or 00.2% of the “AdWords” visits were from Nebraska.

Index Exhibit A, ¶ 29. With respect to general traffic on www.myincentivewebsite.com, there

were a total of 90,033 visits to the site, and of those, just 200 or 00.2% of the visits were from

Nebraska. Index Exhibit A, ¶ 30.

There have been a total of 675 sales on www.myincentivewebsite.com. Index Exhibit A,

¶ 31. Of these, three (3) sales were from Nebraska. Index Exhibit A, ¶ 31. None of these sales

originated from use of the term “shoemoney.” Index Exhibit A, ¶ 31. The total revenue

generated from the three (3) Nebraska sales was $61. Index Exhibit A, ¶ 32. This represents

approximately one half of one percent of the total revenue generated by

www.myincentivewebsite.com. Index Exhibit A, ¶ 32.

STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(2) provides that a defendant may move to dismiss

a complaint for lack of personal jurisdiction. The plaintiff bears the burden to establish the

court’s in personam jurisdiction. Epps v. Stewart Info. Servs. Corp., 327 F.3d 624, 646-47 (8th

Cir. 2003). To withstand a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(2), “the plaintiff

must state sufficient facts in the complaint to support a reasonable inference that defendant may

3
Case: 8:09-cv-00131-JFB-FG3 Document #: 10 Date Filed: 04/30/2009 Page 5 of 15

be subjected to the jurisdiction of the foreign state.” Steinbuch v. Cutler, 518 F.3d 580, 585 (8th

Cir. 2008) citing Dever v. Hentzen Coatings, Inc., 380 F.3d 1070, 1072 (8th Cir. 2004). The

Plaintiff’s prima facie case “must be tested, not by the pleadings alone, but by the affidavits and

exhibits presented with the motions and oppositions thereto.” Miller v. Nippon Carbon Co., Ltd.,

528 F.3d 1087, 1090 (8th Cir. 2008) (internal quotations and citations omitted).

LEGAL ARGUMENT

I. Legal Standards for Determining Whether Personal Jurisdiction Exists.

A federal court may exercise jurisdiction “over a foreign defendant only to the extent

permitted by the forum state’s long-arm statute and by the Due Process Clause of the

Constitution.” Dakota Indus. v. Ever Best Ltd., 28 F.3d 910, 915 (8th Cir. 1994) (citation

omitted). Under Nebraska’s long-arm statute, a Court may exercise personal jurisdiction over a

person who: (1) transacts any business in the state; (2) contracts to supply services or things in

the state; (3) causes tortious injury by an act or omission in the state; (4) causes tortious injury in

the state by an act or omission outside the state if the person regularly does or solicits business in

the state; (5) has an interest in, using, or possessing real property in this state; or (6) contracting

to insure any person, property, or risk located within this state at the time of contracting. See

Neb. Rev. Stat. § 25-536. “Because Nebraska’s long-arm statute has been construed to permit

jurisdiction to the extent of constitutional limits, the issue before this Court is whether the

exercise of personal jurisdiction comports with due process.” Oriental Trading Co. v. Firetti, 236

F.3d 938, 943 (8th Cir. 2001).

The Due Process Clause requires that “minimum contacts” exist between the nonresident

defendant and the forum state before the court can exercise jurisdiction over the defendant. See

World Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291, 100 S.Ct. 559 (1980). Sufficient

4
Case: 8:09-cv-00131-JFB-FG3 Document #: 10 Date Filed: 04/30/2009 Page 6 of 15

contacts exist when the defendant’s conduct and connection with the forum state are such that he

should reasonably anticipate being haled into court there, and when maintenance of the suit

would not offend “traditional notions of fair play and substantial justice.” International Shoe Co.

v. Washington, 326 U.S. 310, 316 (1945); Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985).

As demonstrated herein, the evidence shows that the Farrells did not purposely avail themselves

of the privilege of conducting activities within Nebraska and they did not have fair warning that

their activities might result in being haled into court here. Accordingly, the Complaint should be

dismissed for lack of personal jurisdiction.

II. The Farrells Do Not Have Sufficient Minimum Contacts With Nebraska To Satisfy
Constitutional Requirements Of Due Process.

The Eighth Circuit has adopted a five-part test in evaluating whether a defendant’s

contacts in the forum state satisfy due process: “(1) the nature and quality of the contacts with

the forum state; (2) the quantity of those contacts; (3) the relation of the cause of action to the

contacts; (4) the interest of the forum state in providing a forum for its residents; and (5) the

convenience of the parties.” Miller v. Nippon Carbon, 528 F.3d 1087 (8th Cir. 2008) citing Bell

Paper Box, Inc. v. U.S. Kids, Inc., 22 F.3d 816, 818 (8th Cir. 1994).

A. The Nature And Quality Of The Farrell’s Contacts With Nebraska Are Not
Sufficient For This Court to Exercise Personal Jurisdiction.

Keyen Farrell is a resident of the State of New York while John J. Farrell is a resident of the

State of Connecticut. Index Exhibit A, ¶ 4; Index Exhibit B, ¶ 4. The Farrells do not currently, nor

have they ever, owned any real property located in Nebraska. Index Exhibit A, ¶ 7; Index Exhibit

B, ¶ 7. The Farrells do not maintain an office, employees, contractors, officers, directors, agents,

or volunteers in Nebraska. Index Exhibit A, ¶ 9; Index Exhibit B, ¶ 9. Moreover, the Farrells do

not currently, nor have they ever, owned a business that was incorporated under the laws of

5
Case: 8:09-cv-00131-JFB-FG3 Document #: 10 Date Filed: 04/30/2009 Page 7 of 15

Nebraska. Index Exhibit A, ¶ 8; Index Exhibit B, ¶ 8. In Romeo Entertainment Group v. Shark,

8:08cv481 (D. Neb. March 20, 2009) (Judge Smith Camp), this Court found that a defendant’s

one-time visit which was wholly unrelated to the alleged tortious interference claim made subject

of the complaint was a “random, fortuitous, [and] attenuated” event that does not give rise to the

requisite level of contacts necessary to satisfy the constitutional requirements of due process.” In

this case, the Farrells’ contact with Nebraska is even less than in Romeo because the Farrells are

non-resident Defendants who have never visited the State of Nebraska. Index Exhibit A, ¶ 6;

Index Exhibit B, ¶ 6.

Moreover, the Farrells have not targeted Nebraska residents through mailings, phone

calls or otherwise. Index Exhibit A, ¶ 14. The only contact the Farrells have had with Nebraska

residents has been on the internet. Index Exhibit A, ¶ 15. As is discussed at length herein, just

00.2% of visits to Keyen Farrell’s website, www.myincentivewebsite, originated from Nebraska.

Index Exhibit A, ¶ 30. There have been a total of 675 sales on www.myincentivewebsite.com,

and only three (3) of those sales were from Nebraska. Index Exhibit A, ¶ 31. The total revenue

generated from the three (3) Nebraska sales was $61. Index Exhibit A, ¶ 32. This represents

approximately one half of one percent of the total revenue generated by

www.myincentivewebsite.com. Index Exhibit A, ¶ 32. Consequently, the nature and quality of

the Farrells’ contacts with Nebraska are not sufficient for this Court to assert jurisdiction over the

person of the Defendants.

B. The Quantity of the Farrell’s Contacts With Nebraska Do Not Demonstrate

That The Farrells Have Purposefully Availed Themselves Of The Privilege
Of Conducting Activities Within The State Of Nebraska.

The Farrells do not have ongoing contacts or activities within the State of Nebraska that

establish personal jurisdiction. In Romeo, the plaintiff asserted that because the defendant

6
Case: 8:09-cv-00131-JFB-FG3 Document #: 10 Date Filed: 04/30/2009 Page 8 of 15

distributed, on an ongoing basis, newsletters to people all across the country, including

Nebraska, that was sufficient contact for personal jurisdiction purposes. This Court disagreed,

finding that the defendant had not purposefully availed itself of the privilege of conducting its

activities within Nebraska. As the Court in Romeo explained:

While it is true that SHARK publishes a newsletter, SHARK mails

this national newsletter to 1,426 addresses across the country; of
those only five are in Nebraska. Similarly weak is Romeo’s
contention that the donations SHARK has received from Nebraska
residents should give rise to the requisite constitutional level of
minimum contacts. ‘Since 1987, .087 percent of the donations,
gifts, and bequest SHARK has received have originated from
Nebraska. To conclude that SHARK must be subject to personal
jurisdiction in Nebraska based on these contacts would offend the
‘traditional notions of fair play and substantial justice.’ The
quantity of SHARK’s contacts with the forum state are de minims,
at most.

Romeo at 3 (internal citations omitted).

Here, the Farrells’ contact with Nebraska residents is limited to contact on the internet.

Index Exhibit A, ¶¶ 14, 15. There have been a total of 85,256 “AdWords” visits to

www.myincentivewebsite.com. Index Exhibit A, ¶ 29. Of these, 180 or 00.2% of the

“AdWords” visits were from Nebraska. Index Exhibit A, ¶ 29. With respect to general traffic on

www.myincentivewebsite.com, there were a total of 90,033 visits to the site, and of those, just

200 or 00.2% of the visits were from Nebraska. Index Exhibit A, ¶ 30.

The evidence concerning sales on www.myincentivewebsite.com tells the same story –

contact with Nebraska is minimal. The website has generated just three (3) sales from Nebraska,

none of which originated from use of the term “shoemoney.” Index Exhibit A, ¶ 31. The total

revenue generated from the three (3) Nebraska sales was $61. Index Exhibit A, ¶ 32. This

represents approximately one half of one percent of the total revenue generated by

www.myincentivewebsite.com. Index Exhibit A, ¶ 32. It is evident from the record before this

7
Case: 8:09-cv-00131-JFB-FG3 Document #: 10 Date Filed: 04/30/2009 Page 9 of 15

Court that the quantity of the Farrell’s contacts with the forum state are so minimal that exercising

personal jurisdiction in this case would offend “traditional notions of fair play and substantial

justice.” International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).

C. The Plaintiffs Cannot Satisfy Its Burden To Show the Existence of General
Jurisdiction or Specific Jurisdiction Over The Farrells.

With respect to the third factor, “[t]he Supreme Court has recognized two theories for

evaluating personal jurisdiction: general and specific jurisdiction.” Steinbuch, 518 F.3d at 586

citing Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 414-415 (1984). In this

case, the Plaintiff alleges that the Defendants are subject to personal jurisdiction in Nebraska

because they purportedly “conduct business within the State of Nebraska, and because they

directed their harm at ShoeMoney Media Group with the knowledge that such harm would be

felt by ShoeMoney Media Group within the State of Nebraska. Complaint ¶ 5. With this,

Plaintiff apparently contends that both specific jurisdiction and general jurisdiction exist with

respect to the Farrells. As demonstrated below, Plaintiff is wrong on both accounts.

1. The Farrells Are Not Subject To Specific Jurisdiction.

“Specific jurisdiction occurs when ‘the defendant has purposefully directed its activities

at residents of the forum state’ and litigation results from alleged injuries arising out of or

relating to those activities.” Steinbuch, 518 F.3d at 586. In this case, Plaintiff’s alleged injuries

arise out of the Farrells’ use of an internet program owned and operated by Google called

“AdWords.” Complaint ¶¶ 16, 22. Plaintiff contends that the Farrells wrongfully displayed the

Plaintiff’s “Shoemoney” trademark in the text of their sponsored links through their Google

“AdWords” account. Complaint ¶ 22.2

2
Google has a policy that it does not allow advertisers to use a registered trademark in the text of sponsored links. Index
Exhibit A, ¶ 18; Index Exhibit B, ¶ 16. When a keyword is submitted for an “AdWords” account, the keyword is run
through the Google system. Index Exhibit A, ¶ 18; Index Exhibit B, ¶ 16. If the keyword is a registered trademark, the

8
Case: 8:09-cv-00131-JFB-FG3 Document #: 10 Date Filed: 04/30/2009 Page 10 of 15

In evaluating the question of whether activity on the internet should subject a defendant

to specific personal jurisdiction, the Eighth Circuit Court of Appeals has adopted the framework

set forth in Zippo Manufacturing Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119, 1124 (W.D. Pa.

1997). In Lakin v. Prudential Sec., Inc., 348 F.3d 704, 711 (8th Cir. 2003), the Eighth Circuit

applied the Zippo “sliding scale” analysis to determine whether a defendant’s website subjected

the defendant to specific personal jurisdiction:

At one end of the spectrum are situations where a defendant clearly

does business over the Internet. If the defendant enters into
contracts with residents of a foreign jurisdiction that involve the
knowing and repeated transmission of computer files over the
Internet, personal jurisdiction is proper. At the opposite end are
situations where a defendant has simply posted information on an
Internet Web site which is accessible to users in foreign
jurisdictions. A passive Web site that does little more than make
information available to those who are interested in it is not
grounds for the exercise [of] personal jurisdiction. The middle
ground is occupied by interactive Web sites where a user can
exchange information with the host computer. In these cases, the
exercise of jurisdiction is determined by examining the level of
interactivity and commercial nature of the exchange of information
that occurs on the Web site.

Lakin at 710-711 (8th Cir. 2003) quoting Zippo, 952 F.Supp. at 1124.

Google system is supposed to prevent the trademark from appearing in the text of the ad. Index Exhibit A, ¶ 18; Index
Exhibit B, ¶ 16. The Farrells relied upon this internal review at Google in establishing the “AdWords” account. Index
Exhibit A, ¶ 19; Index Exhibit B, ¶ 17. However, Google’s internal review process failed to prevent the term
“shoemoney” from appearing in the text of the ads associated with the “AdWords” account opened by the Farrells on
January 22, 2009. Index Exhibit A, ¶ 20; Index Exhibit B, ¶ 18.
Plaintiff’s Complaint acknowledges that Google’s internal review process has failed on prior occasions not
involving the Farrells by alleging: “In the past, ShoeMoney Media Group has complained to Google about third
parties using the “Shoemoney” mark in the text of their sponsored links.” Complaint ¶ 21.
The Farrells did not take any action to circumvent federal law and/or Google policy to allow the
SHOEMONEY mark to appear in the text of the sponsored links on the “AdWords” account. Index Exhibit A, ¶ 21;
Index Exhibit B, ¶ 19. Furthermore, the Farrells have never accessed a Google account for Jeremy Schoemaker and/or
Shoemoney Media Group, Inc. Index Exhibit A, ¶ 22; Index Exhibit B, ¶ 20. In fact, the Farrells had no knowledge of
the existence of Shoemoney Media Group, Inc. or its trademark, SHOEMONEY, until March 31, 2009. Index Exhibit
A, ¶¶ 17, 23; Index Exhibit B, ¶¶ 15, 21. The Farrells did not intend to infringe upon the SHOEMONEY trademark in
any way. Index Exhibit A, ¶ 17; Index Exhibit B, ¶ 15.

9
Case: 8:09-cv-00131-JFB-FG3 Document #: 10 Date Filed: 04/30/2009 Page 11 of 15

Google sells contextual advertising through a program called “AdWords.” Index Exhibit A,

¶ 11; Index Exhibit B, ¶ 10. When internet users enter search terms in www.google.com, Google’s

search engine displays advertisements of various entities that may be of interest to the internet user.

Index Exhibit A, ¶ 11; Index Exhibit B, ¶ 10; Complaint ¶ 15. “AdWords” allows advertisers such

as the Farrells to bid for their advertising hyperlink to appear above or next to Google search results

when internet users enter specific search terms in a Google search. Index Exhibit A, ¶ 11; Index

Exhibit B, ¶ 10; Complaint ¶ 16. An “AdWords” advertising hyperlink contains the text of an ad.

Index Exhibit A, ¶ 12; Index Exhibit B, ¶ 11.

By opening an “AdWords” account, the Farrells simply posted information on an Internet

Web site, www.google.com, which is accessible to users in foreign jurisdictions. Index Exhibit

A, ¶ 12; Index Exhibit B, ¶ 11. According to the Plaintiff, internet users “were presented with a

search results page showing multiple sponsored links, including the sponsored link purchased by

the Farrell Defendants.” Complaint ¶ 25. The offending conduct at issue in this case that

occurred by use of the “AdWords” account merely made information available to internet users.

Index Exhibit A, ¶ 12; Index Exhibit B, ¶ 11; Complaint ¶ 16. With this, the AdWords advertising

hyperlink at issue in this case is passive under the test adopted in Lakin, and it is therefore not

grounds for the exercise of personal jurisdiction. Lakin at 710-711 (8th Cir. 2003).

2. The Farrells Are Not Subject To General Jurisdiction.

“A state may exercise general jurisdiction if a defendant has carried on in the forum state

a continuous and systematic, even if limited, part of its general business; in such circumstances

the alleged injury need not have any connection with the forum state.” Steinbuch, 518 F.3d at

586. That said, for personal jurisdiction to exist, the plaintiff bears the burden to make a prima

10
Case: 8:09-cv-00131-JFB-FG3 Document #: 10 Date Filed: 04/30/2009 Page 12 of 15

facie showing that the defendant’s contacts were not ‘random,’ fortuitous,’ or ‘attenuated.’ Id.

citing Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 779 (1984).

The Eighth Circuit has held that although it is important to consider the “nature and

quality” of a website to determine whether it is interactive, does business, or is merely passive,

the sliding scale analysis set forth in Zippo is not the sole factor for general jurisdiction purposes.

As the Court in Lakin explained,

Under the Zippo test, it is possible for a Web site to be very

interactive, but to have no quantity of contacts. In other words, the
contacts would be continuous, but not substantial. This is
untenable in a general jurisdiction analysis. As one court has
noted, the Zippo test ‘is not well adapted to the general jurisdiction
inquiry, because even repeated contacts with forum residents by a
foreign defendant may not constitute the requisite substantial,
continuous and systematic contacts required for a finding of
general jurisdiction . . .’ (citation omitted). As a result, we will
first apply the Zippo test and then also look at the quantity of those
contacts with [the forum state’s] residents.

Lakin at 712. The analysis set forth above with respect to specific jurisdiction persuasively

proves that the Defendants’ alleged advertisements on www.google.com were passive and do not

provide a valid basis for the exercise of personal jurisdiction under the Zippo test. Moreover, a

review of the facts relating to the quantity of contacts that the Farrells had with Nebraska further

confirms that general jurisdiction does not exist either. Notably, there have been a total of 85,256

AdWords visits to www.myincentivewebsite.com. Index Exhibit A, ¶ 29. Of these, 180 or

00.2% of the AdWords visits were from Nebraska. Index Exhibit A, ¶ 29.

From January 30, 2009 to March 31, 2009, the term “shoemoney” was a keyword on the

Farrells’ “AdWords” account with Google. Index Exhibit A, ¶ 23. Plaintiff claims that on an

average, Plaintiff’s website, www.shoemoney.com receives approximately 30,000 unique visitors

each day. Complaint ¶ 12. According to the Plaintiff’s own estimations, during the sixty-one (61)

day period from January 30, 2009 to March 31, 2009, Plaintiff’s site, www.shoemoney.com,

11
Case: 8:09-cv-00131-JFB-FG3 Document #: 10 Date Filed: 04/30/2009 Page 13 of 15

received 1,830,000 unique visitors. It is significant to note that during this period of time, there

were a grand total of eleven (11) AdWords visits to Keyen Farrell’s site,

www.myincentivewebsite.com, from Nebraska that were a result of use of the term

“shoemoney.” Index Exhibit A, ¶ 26.

Furthermore, there have been a total of 675 sales on www.myincentivewebsite.com.

Index Exhibit A, ¶ 31. Of these, only three (3) sales were from Nebraska. Index Exhibit A, ¶ 31.

Again, none of these sales originated from use of the term “shoemoney.” Index Exhibit A, ¶ 31.

The total revenue generated from the three (3) Nebraska sales was $61. Index Exhibit A, ¶ 32.

This represents approximately one half of one percent of the total revenue generated by

www.myincentivewebsite.com. Index Exhibit A, ¶ 32. Accordingly, the Plaintiff cannot sustain

its burden to prove that personal jurisdiction exists in this case.

D. Nebraska Has A Minimal Interest In Providing A Forum For Plaintiff’s

Action.

The Eighth Circuit has acknowledged that “[e]ven if the minimum contacts threshold is

established, personal jurisdiction may be defeated if its exercise would be unreasonable

considering such factors as the burden on the defendant.” St. Jude Med., Inc. v. Lifecare Intern.,

Inc., 250 F.3d 587, 591 (8th Cir. 2001). Although Nebraska may have an interest in providing a

forum for its resident corporation, ShoeMoney Media Group, that interest does not overcome the

substantial inconvenience for the parties to litigate in Nebraska. Essentially all the witnesses and

documents concerning this dispute are located in New York or Connecticut. Index Exhibit A,

¶4; Index Exhibit B, ¶ 4. The inconvenience to the parties and their witnesses in this case weighs

in favor of a finding that personal jurisdiction does not exist in Nebraska. See e.g. Miller, 528

F.3d at 1092 (“The inconvenience to the parties and their witnesses, under the facts of this case,

12
Case: 8:09-cv-00131-JFB-FG3 Document #: 10 Date Filed: 04/30/2009 Page 14 of 15

is a factor that militates against [the plaintiff] for purposes of establishing personal jurisdiction

over [the defendant].”).

E. Requiring The Farrells To Defend This Lawsuit In Nebraska Would Be An

Undue Burden

Requiring the Farrells to defend a lawsuit in Nebraska would be an undue burden. The

Defendants are a father and son who have been sued in their individual capacity in Nebraska, a

state in which they have never lived or visited. Index Exhibit A, ¶¶ 5, 6; Index Exhibit B, ¶¶ 5,

6. Keyen Farrell resides in the State of New York while John J. Farrell resides in Connecticut.

Index Exhibit A, ¶ 4; Index Exhibit B, ¶ 4. Any interest Nebraska may have in this litigation is

outweighed by the undue burden that would be imposed on the Farrells if they were required to

litigate in this forum.

CONCLUSION

For the foregoing reasons, the Defendants respectfully request that their Motion to

Dismiss for lack of personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2) be granted and that

the Complaint be dismissed, along with all other relief this Court deems just.

13
Case: 8:09-cv-00131-JFB-FG3 Document #: 10 Date Filed: 04/30/2009 Page 15 of 15

DATED this 30th day of April, 2009.

Respectfully submitted,

KEYEN FARRELL and JOHN J. FARRELL,

Defendants

By: /s/ Michaela A. Smith

J. Scott Paul, #16635
Michaela A. Smith, #22737
McGrath, North, Mullin & Kratz, PC LLO
First National Bank Tower, Suite 3700
1601 Dodge Street
Omaha, NE 68102
(402)341-3070
(402)341-0216 (fax)
jpaul@mcgrathnorth.com
msmith@mcgrathnorth.com
ATTORNEYS FOR THE DEFENDANTS

CERTIFICATE OF SERVICE

The undersigned hereby certifies that on the 30th day of April, 2008, I electronically filed
the above foregoing document with the Clerk of the Court using the CM/ECF system which sent
notification of such filing to the following:

Troy F. Meyerson
Patrick S. Cooper
Fraser Stryker PC LLO
500 Energy Plaza
409 South 17th Street
Omaha, NE 68102-2663
(402)341-6000

/s/ Michaela A. Smith

14