United States District Court, W.D. Oklahoma
NATIONAL CANCER ASSISTANCE FOUNDATION, INC., a Delaware Corporation, Plaintiff,
NATIONAL COMMMUNITY ADVANCEMENT, INC., a Delaware Corporation, and COURTESY CALL, INC., a Nevada Corporation, Defendants.
L. RUSSELL UNITED STATES DISTRICT JUDGE
the Court is Defendant National Community Advancement,
Inc.'s Motion to Dismiss For Lack of Personal
Jurisdiction and Improper Venue, or Alternatively, Motion to
Transfer Venue, Doc. 6. Plaintiff National Cancer Assistance
Foundation, Inc. is a Florida nonprofit suing Defendant
National Community Advancement, Inc. (“NCA”),
another Florida nonprofit, and Courtesy Call, Inc., a Nevada
professional fundraising company, for trademark infringement
in violation of the Lanham Act and Oklahoma Deceptive Trade
Practices Act. 15 U.S.C. § 1125(a); 78 Okla. Stat.
§ 32; see Doc. 1. Plaintiff alleges that
Defendant NCA infringed its “Breast Cancer Assistance
Fund” trademark by doing business and fundraising in
Oklahoma under that name. Following a nearly six-month window
for jurisdictional discovery (Docs. 14, 16), the Court now
finds that Plaintiff has failed to show personal jurisdiction
burden falls on Plaintiff to establish personal jurisdiction.
Behagen v. Amateur Basketball Ass'n,
744 F.2d 731, 733 (10th Cir. 1984).
Prior to trial, however, when a motion to dismiss for lack of
jurisdiction is decided on the basis of affidavits and other
written materials, the plaintiff need only make a prima facie
showing. The allegations in the complaint must be taken as
true to the extent they are uncontroverted by the
defendant's affidavits. If the parties present
conflicting affidavits, all factual disputes are resolved in
the plaintiff's favor, and the plaintiff's prima
facie showing is sufficient notwithstanding the contrary
presentation by the moving party.
Id. (citations omitted). “[I]n federal
question cases” such as this one,  “personal
jurisdiction flows from the Due Process Clause of the Fifth
Amendment.” Peay v. BellSouth Med. Assistance
Plan, 205 F.3d 1206, 1210 (10th Cir. 2000). “The
Due Process Clause permits the exercise of personal
jurisdiction over a nonresident defendant ‘so long as
there exist minimum contacts between the defendant and the
forum State.'” Intercon, Inc. v. Bell Atl.
Internet Sols., Inc., 205 F.3d 1244, 1247 (10th Cir.
2000) (quoting World-Wide Volkswagen Corp. v.
Woodson, 444 U.S. 286, 291 (1980)). In this
“specific jurisdiction” context,  Plaintiff can
show minimum contacts if “the defendant has
purposefully directed his activities at residents of the
forum, and the litigation results from alleged injuries that
arise out of or relate to those activities.”
Id. (quoting Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 472 (1985)); see also
Williams v. Bowman Livestock Equip. Co., 927 F.2d 1128,
1130-31 (10th Cir. 1991) (quoting Rambo v. American
Southern Ins. Co., 839 F.2d 1415, 1417 (10th Cir. 1988))
(internal quotations omitted) (“The sufficiency of a
defendant's contacts must be evaluated by examining the
defendant's conduct and connections with the forum state
to assess whether the defendant has purposely avail[ed]
itself of the privilege of conducting activities within the
argues that the following facts support specific jurisdiction
over Defendant NCA. “NCA is a corporation whose sole
purpose is to obtain donations from individuals and entities
throughout the United States and then distribute those funds
to an array of projects.” Doc. 8, at 13 (quoting
www.nationalcommunityadvancement.org/about/, web address no
longer active). Since 2013, NCA has continuously registered
as a charitable organization with the Oklahoma Secretary of
State and contracted with a professional fundraiser-first
Defendant Courtesy Call, Inc. and then, following a name
change, Donor Relations, LLC-registered to solicit funds in
Oklahoma. See Docs. 18-2 through 18-8.
Those fundraisers each designated various “professional
fundraisers who will be involved in the solicitation of
contributions for charitable organization” in Oklahoma.
Doc. 18-6, at 2, 4 (Courtesy Call Inc., 2016-17, thirty
solicitors); Doc. 18-7, at 2, 6 (Donor Relations, LLC,
2016-17, twenty-two solicitors); Doc. 18-8, at 2, 6 (Donor
Relations, LLC, 2017- 18, forty-eight solicitors). NCA's
2016 registration and 2017 renewal indicate that it is doing
business as (“dba”) “Breast Cancer
Assistance Fund.” See Doc. 18-3, at 2; Doc.
18-4, at 2. NCA also relies solely on its professional
fundraiser for telephone and direct mail solicitation. Doc.
18-4, at 2, 7. Plaintiff asked NCA, which most recently
reported $72, 000 in contributions received, to
“[i]dentify each and every individual located in
Oklahoma whom [NCA], or any entity on [its] behalf, has
solicited since NCA first started using the term BREAST
CANCER ASSISTANCE FUND.” Doc. 18-5, at 2; see
Doc. 18-4, at 3. NCA responded that it “is not aware of
any such individuals.” Doc. 18-5, at 3.
argument boils down to this-NCA “intended its
professional fundraiser . . . to use the [Breast Cancer
Assistance Fund] Mark to solicit donations from Oklahoma
residents, ” this trademark suit arises out of those
potential Oklahoma contacts, and therefore the Court has
personal jurisdiction over NCA. Doc. 18, at 6. But the Court
disagrees. Just because NCA exhibited an intent to solicit
funds in Oklahoma does not mean it actually did so. For NCA
to “direct [its] activities at residents of
the [Oklahoma] forum” in satisfaction of the
minimum-contacts standard, NCA must actually maintain
activities, or fundraising contact with Oklahoma
residents while using the mark. Intercon, 205 F.3d
at 1247 (10th Cir. 2000). Plaintiff has failed to show that
NCA has (1) a physical presence in Oklahoma, (2) employees or
contractors in Oklahoma, (3) raised funds from Oklahoma, or
even (4) placed fundraising calls or sent mailers to
Oklahoma. See Responses of NCA to Plaintiff's
Jurisdictional Discovery Requests, Doc. 18-5.
these insufficiencies, Plaintiff argues that NCA is merely
“not aware” of any Oklahoma solicitation-which
does not mean that NCA never solicited Oklahomans for
funds-and the Court must resolve “all factual
disputes” in Plaintiffs favor when determining whether
Plaintiff made the proper prima facie showing. Doc. 18, at
6-7 (quoting AST Sports Science, Inc. v. CLE
Distribution Ltd., 514 F.3d 1054, 1057 (10th Cir.
2008)). However, that argument presupposes Plaintiff has met
its burden. See Behagen, 744 F.2d at 733. Because
Plaintiff has not presented enough facts to establish
personal jurisdiction over NCA, there is simply nothing for
the Court to construe in Plaintiff s favor.
the Court finds that it lacks personal jurisdiction over
Defendant NCA for Plaintiffs failure to show minimum
contacts. Alternatively, even if Plaintiff could show minimum
contacts, the Court's exercise of personal jurisdiction
over NCA “would offend traditional notions of
‘fair play and substantial justice.'”
Intercon, 205 F.3d at 1247 (quoting Burger King
Corp., 471 U.S. at 476). Defendant's Motion to
Dismiss (Doc. 6) is GRANTED, and Plaintiffs claims against
Defendant NCA are DISMISSED WITHOUT PREJUDICE. Further, the
Court orders Plaintiff to SHOW CAUSE by May 21, 2018, why
Defendant Courtesy Call should not be dismissed for lack of
service under Fed.R.Civ.P. 4. The record reflects that
summons was issued, but without proof of service.
See Doc. 3.
 Plaintiff improperly characterizes
this as a “diversity case” and cites
Oklahoma's long-arm statute. See Doc. 8, at 8.
The parties are clearly non-diverse, as both Plaintiff and
Defendant NCA have their principal place of business in
Florida. Doc. 1, at 1-2. The Court agrees with
Plaintiff's jurisdictional statement in its complaint
that subject matter jurisdiction is present “under 15
U.S.C. § 1121 and 28 U.S.C. §§ 1331, 1338, and
1367, because this action arises under the Lanham Act, Title
15 of the United States Code.” Id. at 3.
Regardless, this does not affect the Court's personal
jurisdiction inquiry under the Due Process Clause, as
Oklahoma's long-arm statute “permits the exercise
of any jurisdiction that is consistent with the United States
Constitution.” Intercon, Inc. v. Bell Atl. Internet
Sols., Inc., 205 F.3d 1244, 1247 (10th Cir.
 The Court finds that-and Plaintiff
concedes-it does not have general jurisdiction over Defendant