Professional Documents
Culture Documents
INTRODUCTION
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
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
Index Exhibit A, ¶ 9; Index Exhibit B, ¶ 9. Moreover, the Farrells do not currently, nor have they
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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
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.
¶ 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.
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¶ 16; Index Exhibit B, ¶ 13. Keyen Farrell had John J. Farrell’s permission to open the
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)
Index Exhibit A, ¶ 29. Of these, 180 or 00.2% of the “AdWords” visits were from Nebraska.
were a total of 90,033 visits to the site, and of those, just 200 or 00.2% of the visits were from
¶ 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
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
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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
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
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
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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
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,
not currently, nor have they ever, owned a business that was incorporated under the laws of
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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
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
the Farrells’ contacts with Nebraska are not sufficient for this Court to assert jurisdiction over the
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
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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
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
“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.
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
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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
“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
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
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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
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.
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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.
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).
“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
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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
the sliding scale analysis set forth in Zippo is not the sole factor for general jurisdiction purposes.
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
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
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,
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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,
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
The Eighth Circuit has acknowledged that “[e]ven if the minimum contacts threshold is
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,
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is a factor that militates against [the plaintiff] for purposes of establishing personal jurisdiction
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
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.
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Respectfully submitted,
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
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