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Spectrum Image, Inc. v. Makozy

United States District Court, S.D. Florida

August 22, 2019

Spectrum Image, Inc., d/b/a Spectrum Aesthetics, Plaintiff,
v.
Nicholas Makozy, Defendant.

          ORDER DENYING MOTION TO DISMISS

          ROBERT N. SCOLA, JR. UNITED STATES DISTRICT JUDGE

         This matter is before the Court on pro se Defendant Nicholas Makozy's motion to dismiss the Plaintiff's complaint. (ECF No. 10.) The Plaintiff has filed a response (ECF No. 12) but the Defendant did not reply. Having considered the record, the parties submissions, and the applicable law, the Court denies the Defendant's motion. (ECF No. 10.)

         I. Background

         This is a declaratory judgment action related to Plaintiff Spectrum Image, Inc.'s (“Spectrum”) interest in its pending federal trademark application for “Spectrum Aesthetics.” (ECF No. 1 at ¶ 1.) According to the complaint, the Defendant filed an application with the U.S. Patent and Trademark Office for “Spectrum Aesthetic” (the “Spectrum Mark”) on an intent-to-use basis. (Id. at ¶ 13.) The Defendant filed the application in the same class as Spectrum's services: plastic and cosmetic surgery. (Id.) Spectrum has filed its own application with the Patent and Trademark Office for the Spectrum Mark. (Id. at ¶ 20.) Now Spectrum seeks a declaration from this Court that Spectrum has priority use and superior rights to the Spectrum Mark.

         The Defendant has filed a one-page document titled “Motion to Dismiss” asserting that he lives in Pennsylvania and has never lived in Florida. (ECF No. 10.) Because the Defendant is not represented by counsel, the Court will construe this as a motion to dismiss for lack of personal jurisdiction.

         II. Legal Standard

         Federal Rule of Civil Procedure 12(b)(2) governs motions to dismiss for lack of personal jurisdiction. “Whether the court has personal jurisdiction over a defendant is governed by a two-part analysis.” Verizon Trademark Servs., LLC v. Producers, Inc., 810 F.Supp.2d 1321, 1324 (M.D. Fla. 2011). First, the court must determine whether the applicable state long-arm statute is satisfied. Future Tech. Today, Inc. v. OSF Healthcare Sys., 218 F.3d 1247, 1249 (11th Cir. 2000). Second, if the state long-arm statute is satisfied, the court must analyze “whether the exercise of jurisdiction over the defendant comports with the Constitution's requirements of due process and traditional notions of fair play and substantial justice.” Verizon Trademark Servs., 810 F.Supp.2d at 1324; Sculptchair, Inc. v. Century Arts, 94 F.3d 623, 626 (11th Cir. 1996).

         A plaintiff bears the initial burden of proof of pleading sufficient material facts to support long-arm jurisdiction. Future Tech., 218 F.3d at 1249. The burden then “shifts to the defendant to make a prima facie showing of the inapplicability of the statute.” Id. (quoting Prentice v. Prentice Colour, Inc., 779 F.Supp. 578, 583 (M.D. Fla. 1991)). Once this prima facie showing is made, “the plaintiff is required to substantiate the jurisdictional allegations in the complaint by affidavits or other competent proof, and not merely reiterate the factual allegations in the complaint.” Future Tech., 218 F.3d at 1249 (quoting Prentice, 779 F.Supp. at 583).

         III. Analysis

         The Defendant's motion asserts that he never lived in Florida, does not have an address in Florida, and has continuously lived in Pennsylvania for 23 years. (ECF No. 10 at ¶¶ 2-3.) In response, the Plaintiff argues that the Defendant is subject to this Court's personal jurisdiction because he used a Florida address to apply for the trademark at issue. (ECF No. 12 at 7.) The Defendant has also incorporated a corporation and a limited liability company using the same Florida address. (ECF No. 12-2.) Upon careful review, the Court agrees with the Plaintiff.

         Florida's long-arm statute provides for specific personal jurisdiction over a non-resident defendant as follows:

(a) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself and, if he or she is a natural person, his or her personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following acts:
(1) Operating, conducting, engaging in, or carrying on a business or business venture in this state or having an ...

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