# Trax Records, LTD v. Sherman

> District Court, E.D. Louisiana · May 5, 2023

URL: https://www.frixlaw.com/law-library/cases/10189355

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** May 5, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

TRAX RECORDS, LTD. ET AL. CIVIL ACTION

VERSUS NO: 23-308

SANDYEE SHERMAN SECTION “H”

ORDER AND REASONS
Before the Court is Defendant Irene Mayzels Barnes’s Motion to Dismiss
(Doc. 9). For the following reasons, this Motion is GRANTED.

BACKGROUND
This case arises out of a trademark dispute. Plaintiffs Trax Records,
LTD, Rachael Cain, and Phuture Trax Inc. allege that Defendant Irene
Mayzels Barnes1 infringed upon Plaintiffs’ trademarks, in violation of the
Lanham Act. There are two trademarks at issue. Plaintiff Trax Records, Ltd.
is a Louisiana corporation with its principal place of business in Louisiana
which controls and administers the trademark TRAX RECORDS (“Trax
Records Trademark”).2 Plaintiff Phuture Trax Inc. controls and administers

1 Irene Mayzels Barnes was sued as Sandyee Sherman. For the purposes of this motion, the
Court will refer to Defendant Irene Mayzels Barnes.
2 Doc. 1 at 3. The Trax Records Trademark has United States Patent and Trademark Office
Registration Numbers 3466156 and 466459.
the trademark PHUTURE TRAX (“Phuture Trax Trademark”).3 Plaintiffs
allege that Rachael Cain is the sole owner of both trademarks.
Plaintiffs Complaint alleges Defendant infringed the trademarks on
three specific and distinct occasions. First, in September 2022, by emailing a
press release displaying the TRAX RECORDS trademark. Then, in October
2022, Defendant allegedly infringed the Trax Records Trademark and the
Phuture Trax Trademark when it used the phrase “TRAX 2 the PHUTURE”
commercially to advertise a House Music festival in Amsterdam. And finally,
Plaintiffs allege Defendant infringed the Trax Records Trademark by using the
phrase “TRAX RECORDS” on its website. Following this conduct, Plaintiffs
sent a cease-and-desist letter, to which Defendant did not respond. Plaintiffs
filed this lawsuit on January 24, 2023.
Now before the Court is Defendant’s Motion to Dismiss arguing for lack
of personal jurisdiction. Plaintiff has not opposed.

LEGAL STANDARD
When a non-resident defendant challenges the court’s personal
jurisdiction, “the party seeking to invoke the power of the court bears the
burden of proving that jurisdiction exists.”4 When a court rules on a motion to
dismiss for lack of personal jurisdiction without holding an evidentiary
hearing, as in this case, the plaintiff need only make a prima facie showing of
personal jurisdiction.5 “The allegations of the complaint, except insofar as
controverted by opposing affidavits, must be taken as true, and all conflicts in

3 Id. The Phuture Trax Trademark has United States Patent and Trademark Office
Registration Number 97669690 (formerly Registration Number 3590325).
4 Luv N’care, Ltd. v. Insta–Mix, Inc., 438 F.3d 465, 469 (5th Cir. 2006) (citing Wyatt v.
Kaplan, 686 F.2d 276, 280 (5th Cir. 1982)).
5 Guidry v. U.S. Tobacco, Co., Inc., 188 F.3d 619, 625 (5th Cir. 1999).
the facts must be resolved in favor of the plaintiff[] for purposes of determining
whether a prima facie case for personal jurisdiction has been established.”6 “In
determining whether personal jurisdiction exists, the trial court is not
restricted to a review of the plaintiff’s pleadings.”7 The court may consider
matters outside the complaint, including affidavits, interrogatories,
depositions, or any combination of the recognized methods of discovery.8
Jurisdiction over a non-resident defendant is proper when (1) the
defendant is amenable to service of process under the long-arm statute of the
forum state and (2) the exercise of personal jurisdiction is consistent with the
Due Process Clause of the Fourteenth Amendment.9 In the instant case, “these
two inquiries merge into one because Louisiana’s long-arm statute permits
service of process coterminous with the scope of the due process clause.”10
“The Due Process Clause of the Fourteenth Amendment protects a
corporation, as it does an individual, against being made subject to the binding
judgments of a forum with which it has established no meaningful ‘contacts,
ties, or relations.’”11 A court may exercise personal jurisdiction over a non-
resident defendant when (1) the defendant has purposefully availed itself of
the benefits and protections of the forum state by establishing “minimum
contacts” with the forum state and (2) exercising personal jurisdiction over the
defendant does not offend “traditional notions of fair play and substantial
justice.”12

6 Thompson v. Chrysler Motors Corp., 755 F.2d 1162, 1165 (5th Cir. 1985) (citing DeMelo v.
Toche Marine, Inc., 711 F.2d 1260, 1270 (5th Cir. 1983)).
7 Jobe v. ATR Mktg., Inc., 87 F.3d 751, 753 (5th Cir. 1996).
8 Id. (citing Colwell Realty Invs. v. Triple T. Inns of Ariz., 785 F.2d 1330 (5th Cir. 1986)).
9 Dalton v. R&W Marine, Inc., 897 F.2d 1359, 1361 (5th Cir. 1990).
10 Pervasive Software Inc. v. Lexware GMBH & Co. KG, 688 F.3d 214, 220 (5th Cir. 2012)
(quoting Int’l Shoe Co. v. Wash., 326 U.S. 310, 319 (1945)).
11 Pervasive Software Inc., 688 F.3d at 220 (quoting Int’l Shoe, 326 U.S. at 319).
12 Latshaw v. Johnston, 167 F.3d 208, 211 (5th Cir. 1999) (quoting Int’l Shoe, 326 U.S. at
316).
“Minimum contacts” can be established through specific jurisdiction or
general jurisdiction.13 Specific personal jurisdiction exists (1) when a
defendant has purposely directed its activities toward or availed itself of the
privileges of conducting its activities in the forum state; (2) the controversy
arises out of or is related to those activities; and (3) the exercise of jurisdiction
is fair, just, and reasonable.14 General personal jurisdiction exists when the
defendant has engaged in continuous and systematic activities in the forum
state, regardless of whether such activity is related to the plaintiff’s cause of
action.15

LAW AND ANALYSIS
Defendant argues that this Court lacks personal jurisdiction. Plaintiffs
have not filed an opposition to this Motion. Though Plaintiffs have not filed an
opposition, the Court may not simply grant the motion as unopposed. The
Fifth Circuit approaches the automatic grant of dispositive motions with
considerable aversion.16 Accordingly, this Court has considered the merits of
Defendant’s motion.
At the outset, the Court notes that general jurisdiction can be exercised
over an individual where they are domiciled.17 Defendant is a domiciled in
Illinois and submitted an affidavit supporting this fact.18 As such, it is

13 Alpine View Co. Ltd. v. Atlas Copco AB, 205 F.3d 208, 215 (5th Cir. 2000).
14 Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985).
15 Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 415 (1984).
16 See, e.g., Servicios Azucareros de Venezuela, C.A. v. John Deere Thibodeaux, Inc., 702 F.3d
794, 806 (5th Cir. 2012); Johnson v. Pettiford, 442 F.3d 917, 918 (5th Cir. 2006) (per curiam);
John v. State of Louisiana (Bd. of Trs. for State Colls. and Univs.), 757 F.2d 698, 709 (5th
Cir. 1985).
17 Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 922 (2011).
18 Doc. 9-2.
apparent that the Court may not exercise general jurisdiction over Defendant
and the Court will focus on whether it has specific jurisdiction over Defendant.
The relationship required for specific jurisdiction “must arise out of
contacts that the ‘defendant himself’ creates with the forum State.”19 Further,
the “‘minimum contacts’ analysis looks to the defendant’s contacts with the
forum State itself, not the defendant’s contacts with persons who reside
there.20 Taking Plaintiffs’ allegations as true, and resolving all factual disputes
in their favor, this Court finds that it may not exercise specific jurisdiction over
Defendant. Defendant’s alleged contacts with this state are insufficient to show
that she targeted or availed herself of the privileges and benefits of the forum
state. Specifically, Plaintiffs allege as follows:
(1) On September 6, 2022, Defendant, through her promoter Greg
Roselli, issued a press release displaying the Trax Records
Trademark;21
(2) Defendant infringed the Trax Records Trademark and the Phuture
Trax Trademark commercially in October 2022 by advertising a
House Music festival in Amsterdam, and promoting a Trax Records
artist on a House music panel;22
(3) Defendant’s promoter has used and continues to use the trademark
on Rights, Inc.’s website to promote Defendant’s services.
The Court will first address whether the press release constitutes
purposeful availment or targeting of the forum state. Defendant submitted
Greg Roselli’s affidavit which states that this press release was emailed to

19 Walden v. Fiore, 134 S. Ct. 1115, 1122 (2014) (quoting Burger King Corp., 471 U.S. at 475).
20 Id.
21 Doc. 1 at 4; Doc. 1-4.
22 Doc. 1 at 5.
various newspapers, none of which ultimately published the press release.23
None of the individuals or the publications Roselli emailed are Louisiana
citizens, and he attests that he was the only one to disseminate the press
release.24 Furthermore, the content of the press release does not discuss or
target Louisiana. This allegation has no connection to Louisiana and does not
support a finding that Defendant purposefully availed herself of or targeted
the forum state.
Plaintiffs’ other allegations are that Defendant infringed the trademarks
with content published on websites—the Amsterdam Dance Event website
(“the ADE Website”), and the Rights Inc., Ltd. website (“the Rights Inc.
Website”). Defendant argues that neither website is sufficient to establish
specific jurisdiction.
The Fifth Circuit has stated that “[m]erely running a website that is
accessible in all 50 states, but that does not specifically target the forum state,
is not enough to create the ‘minimum contacts’ necessary to establish personal
jurisdiction in the forum state under International Shoe Co. v. Washington.”25
In Mink v. AAAA Development LLC, the Fifth Circuit adopted the Zippo test
that looks to the “‘nature and quality of commercial activity that an entity
conducts over the Internet.’”26 The Zippo test fundamentally seeks to asses
whether the defendant has targeted the forum state.27 “Under Zippo, a
defendant has purposefully availed itself of the benefits and protections of the
forum state if it ‘enters into contracts with residents of [the] foreign jurisdiction

23 Doc. 9-3. Greg Roselli is the Managing Director of Rights Inc., Ltd., a rights management
company that helps artists and music companies internationally. He is also Irene Mayzel
Barnes’s business manager.
24 Id.
25 Admar Int’l, Inc. v. Eastrock, L.L.C., 18 F.4th 783, 785 (5th Cir. 2021).
26 Mink v. AAAA Development LLC, 190 F.3d 333, 336 (5th Cir. 1999) (quoting Zippo Mfg.
Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1124 (W.D. Pa. Jan. 16, 1997)).
27 Admar Int’l., 19 F. 4th at 785.
that involve the knowing and repeated transmission of computer files over the
Internet.’”28 A defendant, however, does not avail themself of the benefits and
protections of the forum state “by posting information on a passive website.”29
Under this framework, the Court will analyze each website individually.
i. The ADE Website
Defendant concedes that the ADE Website is not passive, as “viewers can
RSVP to the event(s), create an account, and make purchases.”30 However,
Defendant argues that despite its interactivity, she did not purposefully target
any Louisiana residents, and thus, she did not purposefully avail herself of the
privileges of doing business in Louisiana.
The Court agrees that the ADE Website is not passive, as it allows users
to RSVP, create accounts, and make purchases. There is no evidence, however,
that the ADE website targeted Louisiana, or that Defendant entered into
contracts with Louisiana residents.31 As such, the ADE website falls in the
middle of the Zippo spectrum, and the Court must assess the level of
interactivity to the extent “it reflects . . . purposeful targeting of the residents
of the forum state.”32
The Court finds that the ADE Website bears substantial similarities to
the website in Admar International, Inc. v. Eastrock, L.L.C. In Admar
International, the Fifth Circuit held that while the website was interactive,
there was no evidence that the website targeted Louisiana residents, that any

28 Id. at 786 (quoting Zippo Mfg. Co., 952 F. Supp. at 1124).
29 Id.
30 Doc. 9-1 at 17.
31 Admar Int’l., 18 F.4th at 787 (“Missing here is any evidence that Eastrock’s website
specifically targets Louisiana.”).
32 Id. (quoting Pervasive Software Inc., 688 F.2d at 228). In Admar, the Fifth Circuit held
that a website which allowed customers to create accounts, review products, and receive
purchases was more than passive. The court stated that because there was no evidence the
defendant had engaged in business transactions or entered into contracts with residents of
the forum state, the website fell in the middle of the Zippo spectrum. Id.
single product had been sold to a Louisiana resident, or that there was any
advertising which solicited business in Louisiana.33 In so stating, the court
held that it could not exercise personal jurisdiction over the defendant only
based upon a website which was accessible in the forum state.34 The ADE
Website, similarly, does not target Louisiana. Although Louisiana residents
can interact with the ADE Website, there is no evidence that any Louisiana
Resident RSVP’d to the Amsterdam Dance Event, created an account, or
purchased a product. Furthermore, the ADE Website was advertising an event
which occurred in Amsterdam, thousands of miles from Louisiana, and does
not target the state of Louisiana, or even the United States, in any way. The
Court finds that the ADE website does not constitute the type of purposeful
availment necessary to exercise personal jurisdiction under established
principles of due process.
ii. The Rights Inc. Website
Defendant argues that the Rights Inc. Website is passive under the
Zippo analysis, foreclosing a finding that she purposefully availed herself of
the forum state’s benefits or targeted Louisiana. The Court agrees that the
Rights Inc. Website is passive under Zippo. The full extent of interaction with
users is a listing of contact information, which includes an email address and
a physical address.35 The website lists the services which Rights Inc. offers but
does not allow online ordering or the exchanging of information with users.36

33 Id. (“That ends this case.”).
34 Id. at 788 (“Merely running a website that is accessible in the forum state does not
constitute the purposeful availment required to establish personal jurisdiction under
longstanding principles of due process.”).
35 Wildlife Outfitters, LLC v. Buckshot Prod., LLC, No. CV 11-119, 2011 WL 13214363, at *4
(M.D. La. Nov. 14, 2011) (stating that the website was passive where the extent of interaction
with users was contact information and suggested shipping terms, pricing figures, and
product descriptions).
36 Mink v. AAAA Dev. LLC, 190 F.3d 333, 337 (5th Cir. 1999) (“the presence of an electronic
mail access, a printable order form, and a toll-free phone number on a website, without more,
The Rights Inc. Website is an insufficient to give rise to personal specific
jurisdiction.
Plaintiff provides no other allegations of minimum contacts with the
state of Louisiana, only the blanket statement that there is personal
jurisdiction over Defendant “because . . . Defendant is engaged in tortious
conduct within this State and District, including by using Plaintiffs’ trademark
throughout the world and within the United States and in this State.”37 This
is insufficient to establish specific jurisdiction over Defendant. Based upon the
evidence submitted, the Court holds that Defendant did not have minimum
contacts with Louisiana, as she did not direct any activities at the state of
Louisiana or avail herself of any benefits of doing business in Louisiana. The
Court, thus, does not need to address whether the cause of action arises out of
Defendant’s contacts with the state, or whether the exercise of jurisdiction
would offend “traditional notions of fair play and substantial justice.”38
CONCLUSION
Based on the foregoing, Defendant’s Motion to Dismiss is GRANTED.
Plaintiffs’ claims against Defendant are DISMISSED WITHOUT
PREJUDICE.

is insufficient to establish personal jurisdiction. Absent a defendant doing business over the
Internet or sufficient interactivity with residents of the forum state, we cannot conclude that
personal jurisdiction is appropriate”).
37 Doc. 1 at 2.
38 Int’l Shoe, 326 U.S. at 316.
New Urieans, LOuISslana tnis otn day Ah
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE

10

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10189355. Public record. Not legal advice.