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KMG International, BV v. Fun Light Amusements

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

July 25, 2019




         This matter comes to the Court on Defendants Fun Light Amusements, SRO (Fun Light) and Confolding Group, SRO's (Confolding) Motion to Dismiss Plaintiff KMG International, BV's (KMG) Complaint. Dkt. 25. Plaintiff has filed an opposition in response. Dkt. 33. The Court DENIES the motion.


         This action arises from Defendants' alleged infringement of KMG's patented design for its amusement ride, “Freak Out.” Dkt. 1 at 4. Plaintiff alleges that on February 5-8, 2019, Defendants “market[ed], promot[ed], advertis[ed], offer[ed] for sale, and attempt[ed] to sell” a knockoff version of KMG's product, the “Extreme” ride while attending the International Independent Showmen's Association trade show (IISF) in Gibsonton, Florida. Id. at 4-5. KMG alleges against Defendants unfair competition pursuant to 15 U.S.C. § 1125(a) (Count I), Florida common law unfair competition (Count II), violations of Florida's Deceptive and Unfair Trade Practices Act (Fla. Stat. §§ 501.201 et seq.) (Count III), and infringement of KMG's ‘144 Patent under 35 U.S.C. § 271 (Count IV). Dkt. 1 at 6-13.

         In Counts I-IV KMG asserts, among other things, that Defendants falsely designated the origin of their amusement ride designs by unlawfully using Plaintiff's swing attraction's “ornamental features, designs, design features, advertising and promotion material, [and] photographs” in order to “pass off its inferior imitation products as that of Plaintiff.” Dkt. 1 at 9-10. Plaintiff further alleges that Defendants distributed marketing brochures which included a “confusingly similar” knockoff version of Plaintiff's amusement ride that displayed the names and logos of both Confolding and Fun Light at the IISF trade fair. Id. at 4. Allegedly, as a proximate result of Defendants' “willful[]” misrepresentations and other imitative conduct (id. at 8, 11), Plaintiff suffered damages and therefore seeks injunctive relief, compensatory and punitive damages, court costs, and reasonable attorney's fees, id. at 8, 10-11, 13.

         Defendant Confolding manufactures amusement rides, Dkt. 25-1 at 2 ¶ 3, and Defendant Fun Light manufactures and distributes amusement rides, id. at 5 ¶ 3. Both move to dismiss the Complaint for lack of personal jurisdiction. Dkt. 25. Confolding also moves to dismiss for insufficient service of process. Id. In support of their motion, Confolding and Fun Light submitted similar declarations from their owners/legal representatives, Jiri Husek and Frantisek Kolomaznicek, respectively. Dkt. 25-1. Mr. Kolomaznicek was present at the Gibsonton, Florida trade show. Id. at 5 ¶ 8.

         According to Husek, Confolding is a corporation that was “formed and exists under the laws of the Czech Republic” with its principal place of business in Brno, Czech Republic. Id. at 1 ¶ 2. Kolomaznicek similarly declares that Fun Light is a corporation that was formed and exists under the laws of the Czech Republic with its principal place of business in Brandys nad Labem, Czech Republic. Id. at 4 ¶ 2. Husek and Kolomaznicek additionally declare that Confolding and Fun Light:

• do not have headquarters or manufacturing facilities in Florida;
• distribute the “Extreme” ride exclusively in Europe;
• do not conduct any business in Florida;
• do not have offices, employees, documents, or assets in Florida;
• do not lease property in Florida;
• do not have a mailing address, telephone number, bank account, agents or distributors in Florida;
• do not have any business contracts to supply goods or services with or involving residents of Florida;
• have never sold or licensed any of their amusement rides in Florida;
• have never marketed, sold, or offered to sell the “Extreme” ride for use in Florida;

Dkt. 25-1.

         Defendants' declarations differ in two material respects: (1) Fun Light acknowledges proper service (Dkt. 25-1 at 5-6 ¶ 8) whereas Confolding alleges insufficient service. Id. at 6 ¶ 9. Specifically, Confolding asserts that it has no agents in Florida or the United States for purposes of service of process, summons, and complaints (Id. at 2 ¶ 8) and that it did not appoint or authorize any persons, codefendants or otherwise, to accept service on its behalf. Id. And (2) Fun Light admits to selling approximately ten rides over the last five years in the United States, although none in Florida (Id. at 5 ¶ 7), whereas Confolding does not. Confolding's declaration conflicts with its earlier filing, which admitted that Defendant Ferguson is its local agent, and admitted that Confolding was present at the Gibsonton trade show “as a business visitor and technical support only.” Dkt. 14 at 2.


         Plaintiff bears the burden of “establishing a prima facie case of personal jurisdiction over a nonresident defendant.” Zapata v. Royal Caribbean Cruises, Ltd., No. 12-21897-civ, 2013 WL 1100028, at *2 (S.D. Fla. Mar. 15, 2013). Where a defendant submits affidavits to the contrary, “the plaintiff is required to substantiate jurisdictional allegations in the complaint by affidavits or other competent proof, and not merely reiterate the factual allegations in the complaint.” Polskie Linie Oceaniczne v. Seasafe Transp. A/S, 795 F.2d 968, 972 (11th Cir. 1986). However, only specific factual denials that challenge the factual allegations raised by the plaintiff, and not mere conclusory declarations, warrant shifting the burden from the defendant back to the plaintiff. See United Techs. Corp. v. Mazer, 556 F.3d 1260, 1276-77 (11th Cir. 2009). A district court must accept the facts alleged in the complaint as true, to the extent they are uncontroverted by defendant's affidavits. Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir. 1990) (citing Morris v. SSE, Inc., 843 F.2d 489, 492 (11th Cir. 1988)). Where the plaintiff's complaint and the ...

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