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Jones v. J.S. Foster Corp.

United States District Court, M.D. Florida, Tampa Division

June 2, 2017

J.S. FOSTER CORP., Defendant.


          JAMES D. WHITTEMORE District Judge.

         BEFORE THE COURT is Defendant J.S. Foster Corp.'s Motion to Dismiss for Lack of Personal Jurisdiction (Dkt. 33), Plaintiffs' response in opposition (Dkt. 45), and Defendant's reply (Dkt. 49). Upon consideration, the motion to dismiss is granted.


         Plaintiffs R.D. Jones, Stop Experts, Inc. and RRFB Global, Inc. ("Plaintiffs") allege that Defendant J.S. Foster Corp. d/b/a JSF Technologies ("JSF") infringed two patents relating to a traffic control device known as a rapid rectangular flashing beacon or "RRFB." (Dkt. 1 at ¶ 1) An RRFB uses flashing light patterns to improve driver compliance at pedestrian crossings. (Id. at ¶ 20) According to Plaintiffs, JSF's devices use Plaintiffs' patented flash patterns. (Id. at ¶¶ 45-48) Although Plaintiffs originally sued a second defendant, Transportation Control Systems Inc. ("TCS"), Plaintiffs dismissed those claims without prejudice on August 4, 2016. (Dkt. 24)

         Relevant to the jurisdictional inquiry, JSF is a Canadian corporation with its principal place of business in Saanichton, British Columbia. (Dkt. 1 at ¶ 4) JSF manufactures several different types of traffic control beacon systems and components, including RRFBs. (Dkt. 33-1 at ¶ 3) JSF has one Florida customer-former defendant TCS-but JSF did not sell RRFBs to TCS. (Id. at ¶ 21). JSF instead sold parts for 24-hour warning sign beacons. (Id.) As detailed below, JSF has no other corporate presence in Florida, and JSF's relevant contact with the state is limited to exhibiting an RRFB at one trade show in Orlando.


         A motion to dismiss for lack of personal jurisdiction is governed by a two-part analysis. First, a court determines whether the plaintiff has alleged facts sufficient to subject the defendant to the applicable long-arm statute. Future Tech. Today, Inc. v. OSF Healthcare Sys., 218 F.3d 1247, 1249 (11th Cir. 2000). Second, the court examines whether sufficient minimum contacts exist between the defendant and the forum state so as to satisfy "traditional notions of fair play and substantial justice" under the Fourteenth Amendment's due process clause. Id. In patent infringement actions, the law of the Federal Circuit governs the due process inquiry. Breckenridge Pharm., Inc. v. Metabolite Labs., Inc., 444 F.3d 1356, 1361 (Fed. Cir. 2006).

         The plaintiff bears the initial burden of establishing a prima facie case of personal jurisdiction. Meier ex rel. Meier v. Sun Int'l Hotels, Ltd., 288 F.3d 1264, 1268-69 (11th Cir. 2002). "A prima facie case is established if the plaintiff presents enough evidence to withstand a motion for directed verdict." Id. at 1269 (internal quotation marks omitted). If the defendant submits affidavits to the contrary, the burden "shifts back to the plaintiff to produce evidence supporting jurisdiction unless those affidavits contain only conclusory assertions that the defendant is not subject to jurisdiction." Id. If the evidence conflicts, "the court must construe all reasonable inferences in favor of the plaintiff." Id.


         1. Florida long-arm statute

         Plaintiffs argue that personal jurisdiction exists under Section 48.193(1)(a)(2) of Florida's long-arm statute, which applies if a cause of action arises from the commission of a tortious act in Florida. Patent infringement constitutes a tort within the meaning of the statute. Kemin Foods, L. C. v. Omniactive Health Techs., Inc., 654 F.Supp.2d 1328, 1333 (M.D. Fla. 2009). And pursuant to 35 U.S.C. § 271(a), patent infringement occurs when a person "without authority makes, uses, offers to sell, or sells any patented invention, within the United States."

         Plaintiffs contend that JSF committed patent infringement by "offering to sell" its RRFBs in Florida. (Dkt. 45 at 9) Plaintiffs point to invoices documenting that JSF paid to advertise its RRFB system in a trade journal for the International Municipal Signal Association ("IMS A"), which has a circulation of over 10, 000, primarily across the United States and Canada. (Dkt. 46-2 at 22-27; Dkt. 46 at ¶ 6) Attached to the invoices is JSF's full-page advertisement, which is titled "An RRFB crosswalk system worth looking into." (Dkt. 46-2 at 27) Under the title is a large picture of an RRFB with arrows identifying its main features. The bottom of the page states: "See more of our solar products online!" followed by JSF's website and phone number. (Id.)

         Plaintiffs also submit a brochure from the IMSA's 2012 Education and Technology Expo Annual Conference, which was held in Orlando, Florida from July 28, 2012 to July 31, 2012. (Dkt. 46-1) On page 24, the brochure lists "JSF Technologies" as an exhibitor. (Dkt. 46-1 at 25) Plaintiffs provide a photograph of JSF's booth at the conference, which depicts two people standing next to an RRFB system. (Dkt. 46-6 at 2) According to Plaintiffs, the photo shows JSF "proudly displaying and promoting for sale its RRFB product." (Dkt. 46 at ¶ 8)

         JSF persuasively argues that the foregoing evidence does not demonstrate an "offer to sell" within the meaning of 35 U.S.C. § 271(a). The Federal Circuit instructs that an offer to sell is interpreted in accordance with traditional contract principles. Rotec Indus., Inc. v. Mitsubishi Corp.,215 F.3d 1246, 1254-55 (Fed. Cir. 2000). Thus, an offer to sell requires the defendant's "manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it." Id. at 1257 (quoting Restatement (Second) of Contracts ยง 24 (1979)). "[M]ere advertising and ...

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