10 MTD Brief

IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF NEBRASKA

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

Plaintiff,

))

vs.

))KEYEN FARRELL and

JOHN J. FARRELL, ))

Defendants.

)

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MEMORANDUM BRIEF IN SUPPORTOF DEFENDANTS’ MOTION TO DISMISSPURSUANT TO FED. R. CIV. P. 12(b)(2)

Prepared and Submitted by:

J. Scott Paul, #16635Michaela A. Smith, #22737

McGrath, North, Mullin & Kratz, PC LLO

First National Bank Tower, Suite 37001601 Dodge StreetOmaha, NE 68102(402)341-3070(402)341-0216 (fax) jpaul@mcgrathnorth.commsmith@mcgrathnorth.comATTORNEYS FOR THE DEFENDANTS

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

INTRODUCTION

This Memorandum Brief is submitted in support of Defendants’ Motion to Dismiss theComplaint pursuant to Fed. R. Civ. P. 12(b)(2). As demonstrated herein, the Defendants are notresidents of Nebraska, they do not own real property in Nebraska and they do not own a businessthat is registered under the laws of this State. Furthermore, the negligible contact that theDefendants 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 availedthemselves of the privilege of conducting activities within Nebraska and they did not have fairwarning that their activities might result in being hailed into court here, the Complaint should bedismissed for lack of personal jurisdiction.

PROCEDURAL BACKGROUND

Plaintiff filed this action in the District Court of Douglas County, Nebraska. Defendantstimely 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 theLanham 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 notcurrently, 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”) haveever stepped foot in Nebraska. Index Exhibit A, ¶ 6; Index Exhibit B, ¶ 6. The Farrells do notmaintain 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

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2ever, 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 withGoogle. Index Exhibit A, ¶ 10. The allegations in the Complaint filed against the Farrells ariseout of the Farrells’ use of an internet program owned and operated by Google called “AdWords.”Complaint ¶¶ 16, 22.

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Specifically, Plaintiff alleges that the Farrells wrongfully displayed thePlaintiff’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 enginedisplays advertisements of various entities that may be of interest to the internet user. Index ExhibitA, ¶ 11; Index Exhibit B, ¶ 10; Complaint ¶ 15. In conjunction with this, Google sells contextualadvertising 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 toGoogle search results when internet users enter specific search terms in a Google search. IndexExhibit 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 isinterested, 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,

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For reasons known only to the Plaintiff, Google has not been made a party to this action.

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