# Kick International Inc. v. Brown

> District Court, E.D. Missouri · January 24, 2020

URL: https://www.frixlaw.com/law-library/cases/10232396

## Case

- **Court:** District Court, E.D. Missouri
- **Decided:** January 24, 2020
- **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 MISSOURI
EASTERN DIVISION

KICK INTERNATIONAL, INC., )
)
Plaintiff(s), )
)
vs. ) Case No. 4:19-cv-01733 SRC
)
JUSTIN BROWN, et al., )
)
Defendant(s). )

MEMORANDUM AND ORDER
This matter comes before the Court on Defendants’ Motion to Dismiss for Lack of
Personal Jurisdiction and Failure to State a Claim [9]. The Court grants the Motion.
I. BACKGROUND
On June 6, 2019, Plaintiff Kick International, Inc., d/b/a United States Mixed Martial
Arts Federation,1 filed a complaint in this Court alleging Defendants Justin Brown, Ralph Cook,
Orlando Jimenez, Dominick Cruz, Fotini Kandris, Jeffrey Roufus, Dr. Ari Kramer, and Giorgio
Boscolo misappropriated trade names and symbols and made misrepresentations to third parties.
Kick asserts four counts against Defendants: (1) “tortious interference with business
expectations,” (2) misappropriation of Kick’s logo and mark, (3) common law fraud, and (4)
misappropriation of trade secrets in violation of the Defendant Trade Secrets Act, 18 U.S.C. §
1832 et seq. In their Motion to Dismiss, Defendants argue the case must be dismissed for lack of
personal jurisdiction.

1 Throughout its Complaint and briefs, Plaintiff refers to itself as UMMAF and Defendants as the United States
Federation of Mixed Martial Arts or USFMMA. To avoid confusion throughout this order, the Court refers to
Plaintiff as “Kick” and Defendants as “Defendants” when referring to the collection of individuals, and the
“Federation” when referring to the entity USFMMA. The Federation is not named as a separate defendant.
Kick and Defendants compete with each other in the field of promoting mixed martial
arts events. After resigning from Kick, Defendants Brown and Cook formed the Federation.
This dispute arises out of the conduct of Defendants in connection with the formation and
operation of the Federation.

For purposes of this Motion to Dismiss, the Court accepts as true the following facts
alleged in Kick’s amended complaint. See Great Rivers Habitat Alliance v. Fed. Emergency
Mgmt. Agency, 615 F.3d 958, 988 (8th Cir. 2010).2 Before June 2018, the Missouri State
Athletic Commission licensed sanctioning organizations, such as Kick, to regulate amateur
mixed martial arts (“MMA”) in Missouri. Sanctioning organizations submitted “results and
medical suspensions” to the State. In June 2018, the State passed legislation to regulate the sport
itself and revoked all licenses to directly sanction events. The Missouri State Athletic
Commission is the official master sanctioning body in Missouri although Kick’s promotors
“enter information into critical databases related to head injuries and are subject to additional
[Kick] regulations.” Kick maintains its home offices in Missouri and the State is home to Kick

executives including President Frank Babcock, Board member Robert Hulett, and former
member David Evans.
In February 2019, Defendants Brown and Cook resigned from Kick. A new organization,
the Federation, was publicly-announced and Brown and Cook were announced as founding
directors of the Federation. Defendant Kandris joined the Board of Directors. The Federation
has made repeated attempts to do business in Missouri and to coerce Hulett into resigning from

2 Kick filed two complaints in this case. The Court analyzes the most recent complaint, Doc. 2, for the purposes of
this Motion. The Court does not include in this summary all of the facts alleged in Kick’s complaint. It only
includes those facts relevant to the personal jurisdiction inquiry. The Court uses the same organization, language,
and sentence structure as Kick used in its Complaint for clarity and to avoid distorting Kick’s allegations. When
quoting from the Complaint, the Court uses quotation marks.
Kick and joining the Federation, and it successfully coerced Evans into leaving Kick and joining
the Federation. Defendants have called promoters and informed them Kick changed their name
to the Federation and “they were taking over event sanctioning,” “misled third parties regarding
insurance previously purchased through [Kick],” “misled athletes into joining [the Federation]

with the lure of a [Federation] competition team falsely said to be entering [International Mixed
Martial Arts Federation] events,” and “attempted to harm the reputation of Kick by intentionally
violating regulatory rules while ostensibly acting on behalf of USSMAF3 in various states just
before leaving.”
Defendants, individually or through agents, have recruited athletes, attempted to recruit
athletes, and otherwise competed with Kick while using a deceptively similar logo. Athletes
who have participated in fights sanctioned by Defendants have not had a record of the fight
created, “have participated after head injuries,” and have “been uninsured for fights when event
coordinators believed they were insured.” Defendants have falsely represented they are the
official sanctioning body for the development of amateur MMA in the United States to get

promotors to switch to them.
II. STANDARD
“To survive a motion to dismiss for lack of personal jurisdiction, a plaintiff must plead
‘sufficient facts to support a reasonable inference that the defendant[ ] can be subjected to
jurisdiction within the state.’” Creative Calling Sols., Inc. v. LF Beauty Ltd., 799 F.3d 975, 979
(8th Cir. 2015) (quoting K–V Pharm. Co. v. J. Uriach & CIA, S.A., 648 F.3d 588, 591-92 (8th
Cir. 2011)). The Court views the evidence in a light most favorable to the plaintiffs and resolves
factual conflicts in the plaintiffs’ favor; however, plaintiffs carry the burden of proof and that

3 The Complaint refers to “USSMAF” here. The Complaint does not define this term.
burden does not shift to defendants. Epps v. Stewart Info. Servs. Corp., 327 F.3d 642, 647 (8th
Cir. 2003). “The plaintiff’s ‘prima facie showing’ must be tested, not by the pleadings alone, but
by the affidavits and exhibits presented with the motions and opposition thereto.” Dever v.
Hentzen Coatings, Inc., 380 F.3d 1070, 1072-73 (8th Cir. 2004) (internal quotations and citation

omitted).
III. DISCUSSION
Defendants assert the Court does not have personal jurisdiction in Missouri over them
because no defendant is domiciled in Missouri and no defendant has sufficient contacts with
Missouri to create specific jurisdiction. The Court addresses the arguments as follows.
“A federal court may exercise jurisdiction over a foreign defendant only to the extent
permitted by the forum state’s long-arm statute and by the Due Process Clause of the
Constitution.” Miller v. Nippon Carbon Co., 528 F.3d 1087, 1090 (8th Cir. 2008) (internal
quotations and citation omitted). The Missouri long-arm statute permits a court to assert
personal jurisdiction over a person or firm for a cause of action arising from the following acts:

(1) the transaction of any business within this state;
(2) the making of any contract within this state;
(3) the commission of a tortious act within this state;
(4) the ownership, use, or possession of any real estate situated in this state;
(5) the contracting to insure any person, property, or risk located within this state
at the time of contracting;
(6) engaging in an act of sexual intercourse within this state with the mother of a
child on or near the probable period of conception of that child.
Mo. Rev. Stat. § 506.500.1. The Missouri Supreme Court has held a court must analyze whether
a defendant’s conduct is covered by the Missouri long-arm statute and if it comports with due
process in two separate inquiries. Myers v. Casino Queen, Inc., 689 F.3d 904, 909 (8th Cir.
2012) (citing Bryant v. Smith Interior Design Grp., Inc., 310 S.W.3d 227, 231 (Mo. 2010)).
However, because the Missouri long-arm statute authorizes personal jurisdiction to the extent
permissible under the Due Process Clause, a finding that a plaintiff has failed to establish
personal jurisdiction comports with the Due Process Clause is dispositive in Missouri cases and

eliminates the need for a long-arm inquiry. Gray v. Hudson, No. 14CV1183 HEA, 2015 WL
4488143 at *9 (E.D. Mo. Jul. 23, 2015) (citing Eagle Tech., Inc. v. Expander Ams., Inc., 783
F.3d 1131, 1136 (8th Cir. 2015)). The Court first analyzes whether personal jurisdiction in this
case comports with the Due Process Clause.
Under the Due Process Clause, a court may find general or specific personal jurisdiction
over a defendant. Fastpath, Inc. v. Arbela Tech., Corp., 760 F.3d 816, 820 (8th Cir. 2014). “A
court with general jurisdiction may hear any claim against that defendant, even if all the
incidents underlying the claim occurred in a different state.” Bristol-Myers Squibb Co. v. Super.
Ct. of Cal., S.F. Cty., 137 S. Ct. 1773, 1780 (2017). For an individual defendant, the forum for
general jurisdiction is the individual’s domicile. J.Y.C.C. v. Doe Run Res., Corp., 370 F. Supp.

3d 1047, 1055 (E.D. Mo. 2019) (citing Bristol-Myers Squibb Co., 137 S. Ct. at 1780). Here, no
defendant is domiciled in Missouri. As the Complaint states, Defendants are residents of South
Carolina, Nevada, Arizona, California, and Wisconsin. Kick presents no additional facts to
suggest any defendant is domiciled in Missouri. The Court now turns to whether it has specific
jurisdiction over these Defendants.
If a court does not have power over a defendant for all claims, it may have power over it
with regard to specific claims, because of the relationship between the defendant, the forum, and
the litigation. Daimler AG v. Bauman, 571 U.S. 117, 133 (2014). To establish specific
jurisdiction “[t]he suit must arise out of or relate to the defendant’s contacts with the forum.”
Bristol-Myers Squibb Co., 137 S. Ct. at 1780 (internal quotations omitted). The Eighth Circuit
has identified five factors to analyze when determining if a defendant has a substantial
connection with a forum state: (1) the nature and quality of the contacts with the forum state; (2)
quantity of the contacts, (3) relation of the cause of action to those contacts, (4) interest of the

forum state in providing a forum for its residents, and (5) convenience of the parties. K-V
Pharm. Co. v. J. Uriach & CIA, S.A., 648 F.3d 588, 592 (8th Cir. 2011). The factors are
interrelated and the Eighth Circuit often considers them together. “Although the first three
factors are primary factors, and the remaining two are secondary factors, we look at all of the
factors and the totality of the circumstances in deciding whether personal jurisdiction exists.” Id.
Kick has alleged few facts to establish any defendant has a substantial connection with
Missouri. The primary allegation establishing any connection with Missouri states:
This court has personal jurisdiction over Defendants because they have conducted
business in Missouri to include solicitation of current UMMAF Board of Directors
members, coaches, and athletes. Venue is proper in this court due specifically to
the recruiting via misrepresentations of UMMAF personnel in Missouri and the
actions of Defendants in utilizing a deceptively similar logo, making
misrepresentations to Missouri residents and pursuing business operations of
Defendants believed to be at the direction of the remaining Defendants while on the
board of Plaintiff, a Missouri Company.
Doc. 1, ¶ 13. This allegation includes no specifics as to the nature and quality of the contacts
such as when and where any misrepresentations occurred, or to whom they were made. The
remaining facts in the Complaint relating to Defendants’ contacts do not refer to where these
actions took place. For example, in paragraph 48, Kick states Defendants called promotors,
misled third parties and athletes, and attempted to harm the reputation of Kick, but does not state
this occurred in Missouri.
In Walden v. Fiore, the Supreme Court held “our ‘minimum contacts’ analysis looks to
the defendant’s contacts with the forum State itself, not the defendant’s contacts with persons
who reside there.” 571 U.S. 277, 285 (2014). “[T]he plaintiff cannot be the only link between
the defendant and the forum. Rather, it is the defendant’s conduct that must form the necessary
connection with the forum State that is the basis for its jurisdiction over him.” Id. In the
affidavits attached to their Motion to Dismiss, Defendants state they have not traveled to

Missouri, engaged in business in Missouri, contacted any fighter or promotor in Missouri,
arranged fights in Missouri, or otherwise engaged or solicited event vendors in Missouri. Docs.
10-4, 10-5, 10-6, 10-7, 10-8, 10-9, 10-10, 10-11. Kick fails to rebut Defendants’ affidavits and
does not allege what contacts, if any, occurred in Missouri, with Missouri, or concerning
Missouri.
In the most recent Eighth Circuit case addressing personal jurisdiction, the Court found
personal jurisdiction present where the defendant had in-person meetings in the forum state,
Arkansas, sent numerous calls, emails, and text messages to plaintiffs in Arkansas, shipped
samples of the product to Arkansas, developed a sales pitch for Arkansas, and made clear his
desire to establish a relationship because of the plaintiffs’ connections to Arkansas. Whaley v.

Esebag, 946 F.3d 447, 452-53 (8th Cir. 2020). The Court stated “these facts suggest that
[defendant’s] contacts with Arkansas were not ‘random, fortuitous, or attenuated,’ but rather
were central to an alleged scheme to ‘purposely avail[] [himself] of the privilege of conducting
activities’ in Arkansas.” Id. (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475
(1985)). Kick fails to establish any of these same, or similar, types of contacts here.
For these reasons, the Court finds it does not have personal jurisdiction over Defendants
in this matter and it dismisses the Complaint, without prejudice.
Accordingly,
IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss for Lack of Personal
Jurisdiction and Failure to State a Claim [9] is GRANTED. The Court dismisses Plaintiff’ s
Complaint, without prejudice.
So Ordered this 24th day of January, 2020. St fe C eC

STEPHEN R. CLARK
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10232396. Public record. Not legal advice.