Moore v. Medical Management International, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT GREENVILLE

DANNY D. MOORE, )

)

Plaintiff, )

)

v. ) No.: 2:23-CV-152-KAC-CRW

)

MEDICAL MANAGEMENT )

INTERNATIONAL, INC., )

d/b/a BANFIELD PET HOSPITAL, et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

This matter is before the Court on a joint “Motion to Dismiss” [Doc. 34] filed by Defendant

Medical Management International, Inc., d/b/a Banfield Pet Hospital (“Banfield”) and Defendant

Mars Petcare US Inc. (“Mars Petcare”). Plaintiff Danny D. Moore’s Amended Complaint asserts

trademark infringement claims under (1) the Lanham Act, 15 U.S.C. § 1125(a), and (2) state

statutes and common law against both Defendants [Doc. 28 ¶¶ 56-105]. As relevant here,

Defendant Banfield argues that the Court lacks personal jurisdiction over it. And Defendant Mars

Petcare asserts that the Amended Complaint fails to state a claim against it. For the following

reasons, the Court (1) grants Defendant Banfield’s request in the Motion to Dismiss because the

Court lacks personal jurisdiction over it and (2) denies Defendant Mars Petcare’s request because

Plaintiff plausible states claims against it.

Plaintiff “has studied herbal nutrition for animals, developed and manufactured natural

supplements for enrichment of animal health,” and has “completed professional and advanced

courses in veterinary homeopathy” for over “25 years” [Id. ¶ 11]. “[A]t least as early as May

2008,” Plaintiff “designed, manufactured, and marketed animal supplement products under the

trademark NEXT VET” [Id. ¶ 13]. Plaintiff “has marketed and sold his NEXT VET brand of

animal supplement products online and through” various “trade shows and conferences” [Id. ¶ 14].

Because Defendant Banfield’s argument that the Court lacks personal jurisdiction over it allows

the Court to consider facts outside of the Amended Complaint, the Court describes the remaining

facts separately.

I. The Court Lacks Personal Jurisdiction Over Defendant Banfield.

A. Background1

“[O]n April 28, 2022,” Plaintiff “filed an application with the United States Patent and

Trademark Office (‘USPTO’) to register” the mark “NEXT VET” “in connection with [his]

‘animal feed supplements’” [Doc. 28 ¶ 24]. But the USPTO “initially refused to issue a

registration to Plaintiff” for the mark because Defendant Banfield “filed its application” to register

its “NextVet” mark first [Id. ¶ 26]. Plaintiff’s application to register the “NEXT VET” mark

remains pending with the USPTO [Id. ¶ 25].

Defendant Banfield is a Delaware Corporation [Id. ¶ 3]. Its principal place of business is

in Washington [Doc. 36 at 1 (Declaration of Andrew Kaminsky (“Kaminsky Dec.”) ¶ 5)].

Defendant Banfield “owns and operates Banfield Pet Hospital businesses in” Tennessee and

“nationwide” [Doc. 28 ¶¶ 3, 30]. Defendant Banfield displays the allegedly infringing NextVet

mark online through press releases and YouTube videos to advertise its “NextVet internship

1 In assessing Defendant Banfield’s request to dismiss for lack of personal jurisdiction on the

papers alone, the Court views the factual assertions in the filings “in a light most favorable to the

plaintiff.” MAG IAS Holdings, Inc. v. Schmückle, 854 F.3d 894, 899 (6th Cir. 2017) (quoting

Theunissen v. Matthews, 935 F.2d 1454, 1459 (6th Cir. 1991)). The Court does not “weigh ‘the

controverting assertions of the party seeking dismissal.’” Id. Consequently, in this procedural

posture, an affidavit filed by a defendant asserting facts contrary to those asserted by a plaintiff is

generally irrelevant. See Malone v. Stanley Black & Decker, Inc., 965 F.3d 499, 505-06 (6th Cir.

2020) (citations omitted).

program,” which is “aimed at strengthening and diversifying the veterinary

pipeline” [Id. ¶¶ 35-36].

Defendant Banfield also advertises the internship program in Tennessee “through email

solicitations, press releases, and online advertising” [Id. ¶ 37]. Defendant Banfield sends these

email solicitations “nationwide” [Doc. 37 Declaration of Traci Richardson (“Richardson Decl.”)

¶¶ 10)]. Defendant Banfield has “received applications” for the NextVet internship program from

three Tennessee students but has “refused to hire any Tennessee residents” [Docs. 28 ¶ 38, 37

at 3 (Richardson Decl. ¶ 13)]. Defendant Banfield’s efforts to advertise the NextVet internship

are also nationwide, with a small portion of applicants hailing from Tennessee [Doc. 37 at 2-

3 (Richardson Decl. ¶¶ 10, 13)].

B. Analysis

Plaintiff bears the burden of establishing through “specific facts” that the Court has

personal jurisdiction over Defendant Banfield. See, e.g., Conn v. Zakharov, 667 F.3d 705,

711 (6th Cir. 2012) (emphasis added). “The Fourteenth Amendment’s Due Process Clause”

constrains a Court’s “power to exercise jurisdiction over a defendant.” See Ford Motor Co. v.

Mont. Eighth Jud. Dist. Ct., 592 U.S. 351, 358 (2021). Tennessee’s long-arm statute, applicable

here, allows the Court to exercise personal jurisdiction to the full extent the Due Process Clause

permits. See Parker v. Winwood, 938 F.3d 833, 839 (6th Cir. 2019) (citations omitted).

For personal jurisdiction to exist, a defendant must have certain contacts with a forum such that

maintaining a suit there is reasonable “in the context of our federal system’” and “‘does not offend

traditional notions of fair play and substantial justice.’” Ford Motor Co., 592 U.S. at 351 (quoting

Int’l Shoe Co. v. Washington, 326 U.S. 310, 316-17 (1945)). Personal jurisdiction may be general

or specific. Goodyear v. Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011).

1. The Court Lacks General Jurisdiction Over Defendant Banfield.

A court possesses general jurisdiction “over a defendant in its home State”—where it “is

incorporated or headquartered.” See Canaday v. Anthem Comp., Inc., 9 F.4th 392, 396 (6th Cir.

2021) (quotation omitted). Courts also possess general jurisdiction over a defendant if its

“affiliations with the State in which suit is brought are so constant and pervasive as to render [it]

essentially at home in the forum.” See Daimler AG v. Bauman, 571 U.S. 117,

122 (2014) (quotation omitted). But merely conducting business in a state, “even if occurring at

regular intervals, [is] not enough to warrant” the exercise of general jurisdiction. See Goodyear,

564 U.S. at 929; see also Daimler, 571 U.S. at 132 (noting that a corporation’s “continuous activity

of some sorts within a state is not enough to support the demand that the corporation be amenable

to suits unrelated to that activity”). Nor will general jurisdiction lie because a defendant authorizes

an agent to accept service of process in the state, absent state statutory law conditioning corporate

registration on accepting general jurisdiction. See Mallory v. Norfolk S. Ry., 602 U.S. 122, 135-

36 (2023).

Plaintiff does not clearly assert that this Court has general jurisdiction over Defendant

Banfield, but to the extent he sought to make such an argument, it fails. First, Tennessee is neither

Defendant Banfield’s state of incorporation nor principal place of business or

headquarters [See Docs. 28 ¶ 3; Doc. 36 at 1 (Kaminsky Dec. ¶ 5)]. See Canaday, 9 F.4th at

396 (quotation omitted). Second, although the Amended Complaint alleges that Defendant

Banfield “owns and operates Banfield Pet Hospital businesses” in Tennessee, [Doc. 28 ¶ 3],

the Amended Complaint is silent as to how many hospitals and the scope of that

business, [see Doc. 28]. Accordingly, Plaintiff has not met its burden to allege facts such that the

Court could assess that Defendant Banfield’s affiliation with Tennessee is “so constant and

pervasive as to render [it] essentially at home” in Tennessee. See Daimler, 571 U.S. at

122 (quotation omitted). Last, the Amended Complaint alleges that Defendant Banfield has

appointed an agent for service of process [Doc. 28 ¶ 3]. This fact fails to establish general

jurisdiction, too. There is no indication that Tennessee law conditions corporate registration of an

agent on consent to general jurisdiction. In fact, the Tennessee Supreme Court recently suggested

that Tennessee law does not. See Baskin v. Pierce & Allred Constr., Inc., 676 S.W.3d 554, 568

n.14 (Tenn. 2023). Therefore, the Court lacks general jurisdiction over Defendant Banfield.

2. The Court Also Lacks Specific Jurisdiction Over Defendant Banfield.

As relevant here, under Sixth Circuit precedent, Plaintiff “bears the initial burden to make

a prima facie case for personal jurisdiction.” See Peters Broad. Eng., Inc. v. 24 Capital, LLC,

40 F.4th 432, 441 (6th Cir. 2022) (citation omitted). Plaintiff must meet three (3) criteria. See id.

First, Plaintiff must plausibly allege facts showing that Defendant Banfield “purposefully

avail[ed]” itself “of the privilege of acting in” or “causing a consequence in” Tennessee. See id.

Defendant Banfield must “create” minimum contacts with Tennessee that underlie personal

jurisdiction. See Walden v. Fiore, 571 U.S. 277, 284 (2014). Those contacts must be Defendant

Banfield’s “own choice”—such as “deliberately” attempting to enter a particular market or

contractual relationships in Tennessee—not “‘random, isolated, or fortuitous.’” See Ford Motor

Co., 592 U.S. at 359 (quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774 (1984);

Walden, 571 U.S. at 285).

Maintaining a website, “in and of itself, does not constitute [] purposeful availment.”

See Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d 883, 890 (6th Cir. 2002). Indeed, “[t]he

level of contact with a state that occurs simply from the fact of a website’s availability on the

internet” is an “attenuated contact that falls short of purposeful availment.” Id. (quotation omitted).

For a defendant to “purposefully avail[] itself of the privilege of acting in a state through its

website,” the website must be “interactive to a degree that reveals specifically intended

interaction with residents of the state.” Id. (citation omitted) (emphasis added); see also Brana

v. Moravcik, No. 20-4057, 2021 WL 4771008, at *2 (6th Cir. May 18, 2021) (noting that operating

a website does not constitute purposeful availment when the “website is non-commercial, is not

interactive, and is not directed toward the residents of any state” in particular). Mailings and faxes

sent from one state to another, too, alone are not enough to establish purposeful availment.

See Kerry Steel, Inc. v. Paragon Indus., Inc., 106 F.3d 147, 151 (6th Cir. 1997).

Second, “the cause of action must arise from” Defendant Banfield’s activities in

Tennessee. See Peters Broad. Eng., Inc., 40 F.4th at 441 (citation omitted). Put differently, “an

affiliation” must exist between Tennessee and “the underlying controversy.” Ford Motor Co.,

592 U.S. at 359 (cleaned up). Third, “the acts” or “consequences caused by” Defendant Banfield

“must have a substantial enough connection with” Tennessee “to make the exercise of jurisdiction”

reasonable. See Peters Broad. Eng., Inc., 40 F.4th at 441 (citation omitted).

Where, as here, no party has requested an evidentiary hearing and the Court rules on the

papers alone, Plaintiff’s burden to establish a prima facie case is “relatively slight,” but not

nonexistent. See Malone, 965 F.3d at 505 (citations omitted). The Court views the factual

assertions in the relevant filings “in a light most favorable to the plaintiff.” MAG IAS Holdings,

Inc., 854 F.3d at 899 (quotation omitted). To the extent Defendant’s written submissions present

contradictory factual assertions, they are irrelevant. See Malone, 965 F.3d at 505-06.

Even taking the relevant facts in the light most favorable to Plaintiff, he has failed to

adequately allege facts establishing a prima facie case for specific jurisdiction over Defendant

Banfield. The Court addresses each of Plaintiff’s arguments in turn.

First, his argument regarding Banfield’s website, advertising, email solicitations, and

rejection of three Tennessee applicants fails at step one: purposeful availment. Viewing the facts

in the light most favorable to Plaintiff, Defendant Banfield “has[s] advertised” its NextVet

internship program in Tennessee “through email solicitations, press releases, and online

advertising” and received three applications from Tennessee residents through its website but did

not admit any Tennessee resident [Docs. 28 ¶¶ 37, 38; 37 at 3 (Richardson Dec. ¶¶ 13)].

However, there are no allegations that Defendant Banfield’s website is interactive or that

Defendant Banfield specifically targets or targeted Tennessee residents through its website,

advertising, or email solicitations [See id. ¶¶ 37, 38]. This is consistent with Defendant Banfield’s

assertion that to the extent it advertises the NextVet program through email, its website, or other

means of advertising, it does so “nationwide” and does not “specifically target residents of

Tennessee” [Doc. 37 at 2-3 (Richardson Dec. ¶¶ 10, 13)]. This is not enough to make a prima

facie case of purposeful availment.

The mere fact that Defendant Banfield advertises the NextVet internship online or through

email solicitation nationwide and some Tennessee residents received an email or applied to the

internship does not amount to purposeful availment. Online advertisement “by its very nature” is

accessible nationally and even potentially internationally. See Neogen Corp., 282 F.3d at

890. “The level of contact with a state that occurs simply from the fact of a website’s availability

on the Internet is therefore an attenuated contact that falls short of purposeful availment”

Id. (cleaned up). The same holds true for email solicitations. The Sixth Circuit has held that

sending mailings and faxes—even those discussing potential business—are “precisely the sort of

random, fortuitous and attenuated contact” the Supreme Court has “rejected as a bases for hailing

non-resident defendants into foreign jurisdictions,” particularly where there are no facts supporting

specific targeting of a forum. See Kerry Steel, Inc., 106 F.3d at 151 (approvingly citing Scullin

Steel Co. v. Nat’l Ry. Unionization Corp., 676 F.2d 309, 314 (8th Cir. 1982), for the position that

the “use of interstate facilities, (telephone, the mail),” cannot alone provide the minimum contacts

due process requires). Nationwide email solicitations are the modern equivalent.

Second, Plaintiff argues that the number of pet hospitals Defendant Banfield operates in

Tennessee provides a basis for personal jurisdiction [Doc. 41 at 15]. But that argument fails at the

second criteria—“the cause of action must arise from” Defendant Banfield’s activities in

Tennessee. See Peters Broad. Eng., Inc., 40 F.4th at 441 (citation omitted). Defendant Banfield’s

operation of pet hospitals is unrelated to Plaintiff’s trademark infringement claims in this

action. His claims are tied to Defendant Banfield’s alleged use of the NextVet mark to advertise

its internship program [Doc. 28 ¶¶ 37-38, 43]. Plaintiff’s trademark infringement claims do not

“arise out of or relate to” Defendant Banfield’s separate operation of pet hospitals. See Ford Motor

Co., 592 U.S. at 359 (quotation omitted). Therefore, Plaintiff has failed to meet his burden of

establishing a prima facie case of specific jurisdiction.2

Third, Plaintiff argues that “pendent jurisdiction principles” justify exercising personal

jurisdiction over Defendant Banfield [Doc. 41 at 17-19]. That attempt too falls short. To the extent

that “pendent personal jurisdiction” is a viable theory, it has two forms—“pendent claim and

pendent party personal jurisdiction.” See Canaday, 9 F.4th at 401-02 (citation omitted).

Conceptually, “[p]endent claim personal jurisdiction” would permit a court properly

2 The Amended Complaint asserts as further evidence of personal jurisdiction that Plaintiff

experienced “injury to [his] intangible rights, including his goodwill in and to his” mark in

Tennessee [Doc. 28 ¶ 8]. But that is not enough. While sometimes relevant in other ways, “the

place of a plaintiff’s injury and residence cannot create a defendant’s contact with the forum.”

Ford Motor Co., 592 U.S. at 371. “The proper question is not where the plaintiff experienced a

particular injury or effect but whether the defendant’s conduct connects him to the forum in a

meaningful way.” See Walden, 571 U.S. at 290.

“exercise[ing] [] personal jurisdiction over one defendant as to one claim” to “exercise personal

jurisdiction with respect to related claims” against the same defendant. Id. (citation omitted).

Pendent party jurisdiction, on the other hand, would “recognize[] that a court’s exercise of personal

jurisdiction over one defendant as to a particular claim by one plaintiff allows it to exercise

personal jurisdiction with respect to similar claims brought by other plaintiffs.” Id.

Here, even if pendent personal jurisdiction exists, neither form would fit this case. Plaintiff

does not seek to use the Court’s personal jurisdiction over one defendant to allow him to assert

multiple claims against that defendant. Nor is this a case where multiple plaintiffs are attempting

to bring an action against one defendant. Instead, Plaintiff seeks to use the Court’s personal

jurisdiction over one defendant in this action to assert personal jurisdiction over another separate

corporate defendant. Even pendent personal jurisdiction would not reach that far. Corporate forms

matter.

Last, Plaintiff attempts to establish specific jurisdiction through a “Supplemental

Response” [Doc. 42]. Plaintiff contends that an online advertisement for Defendant Banfield’s

internship program on what appears to be Defendant Banfield’s website constitutes “targeting” of

“Tennessee job seekers searching for Tennessee jobs” [Doc. 42 at 1]. Not so. Nothing in the

Supplemental Response establishes that Defendant Banfield’s website is “interactive to a degree

that reveals specifically intended interaction with residents of the state.” See Neogen, 282 F.3d at

890; see also Brana, 2021 WL 4771008, at *2. The Supplemental Response shows only that

Defendant Banfield’s “level of contact” with Tennessee residents through its online advertisements

flow “from the fact of a website’s availability on the internet.” See Neogen Corp., 282 F.3d at 890.

That much is “attenuated contact that falls short of purposeful availment.” Id. For all these

reasons, the Court lacks specific jurisdiction over Defendant Banfield. Therefore, the Court grants

Defendant Banfield’s request to dismiss under Rule 12(b)(2).3

II. The Amended Complaint States Plausible Claims Against Defendant Mars Petcare.

A. Background4

According to the Amended Complaint, Defendant “Mars Petcare own[s] and operate[s]

veterinary clinics nationwide” [Doc. 28 ¶ 30]. Defendant Mars Petcare “uses” the allegedly

infringing NextVet mark in Tennessee “and nationwide” in a way that allegedly infringes on

Plaintiff’s trademark [Id. ¶ 34]. Defendant Mars Petcare has issued press releases from its website

advertising programs bearing the NextVet mark [Id. ¶¶ 34-36]. And Defendant Mars Petcare uses

the allegedly infringing mark “to advertise, promote and market its veterinary recruitment and

internship service” [Doc. 28 ¶ 43]. Perhaps most importantly, Defendant Mars Petcare “offer[s]

and sell[s] [its] goods and services under [its] Infringing” mark “online” [Id. ¶ 61]. The Amended

Complaint asserts trademark infringement claims under (1) the Lanham Act, 15 U.S.C. § 1125(a),

and (2) state statutory and common law against Defendant Mars Petcare [See Doc. 28 ¶¶ 56-105].

B. Analysis

To survive a motion to dismiss under Rule 12(b)(6), a complaint must plead “enough facts

to state a claim to relief that is plausible on its face.” See Phillips v. DeWine, 841 F.3d 405,

414 (6th Cir. 2016) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is

“facial[ly] plausib[le] when the plaintiff pleads factual content that allows the court to draw the

3 Because the Court lacks jurisdiction over Defendant Banfield, the Court does not reach its

alternative argument for dismissal under Rule 12(b)(6) [See Doc. 34 at 1].

4 In assessing Defendant Mars Petcare’s request for dissmissal, the Court construes all well-pled

facts in the light most favorable to Plaintiff, accepts all well-pled factual allegations as true, and

draws all reasonable inferences in his favor. See, e.g., Caraway v. CoreCivic of Tenn., LLC, 98

F.4th 679, 683 (6th Cir. 2024) (citation omitted).

reasonable inference that the defendant is liable.” See Teamsters Local 237 Welfare Fund v.

ServiceMaster Glob. Holdings, Inc., 83 F.4th 514, 524 (6th Cir. 2023) (quoting Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009)).

Procedurally, the Court must first determine the scope of its review. For Rule 12(b)(6)

purposes, when parties present information outside of the operative complaint, Rule “12(d)’s text

give[s] district courts two options.” Cottemran v. City of Cincinnati, No. 21-3659, 2023 WL

7132017, at *4 (6th Cir. Oct. 30, 2023). The Court must either “expressly exclude outside-the-

complaint materials or convert the motion to one for summary judgment.” See id. (citing Max

Arnold & Sons, LLC v. W.L. Hailey & Co., 452 F.3d 494, 503 (6th Cir. 2006) (second emphasis

added)); see also Fed. R. Civ. P. 12(d). Here, the Court exercises the first option and excludes

“outside-the-complaint materials.” See Cottemran, No. 21-3659, 2023 WL 7132017, at *4.

Substantively, the Lanham Act prohibits a person from using, “in commerce,” “any word,

term, name, symbol, or device, or any combination thereof,” when doing so is “likely to cause

confusion, or to cause mistake, or to deceive” as to the item’s true ownership. See 15 U.S.C.

§ 1125(a)(1)(A). “To state a claim for trademark infringement under the Lanham Act, a plaintiff

must allege facts establishing that: (1) [he or she] owns the registered trademark; (2) the defendant

used the mark in commerce; and (3) the use was likely to cause confusion.” See NetJets Inc. v.

IntelliJet Grp., LLC, 602 F. App’x 242, 244 (6th Cir. 2015) (emphasis added) (quoting Hensley

Mfg. v. ProPride, Inc., 579 F.3d 603, 609 (6th Cir. 2009)). Defendant Mars Petcare concedes that

Plaintiff’s Lanham Act and state law claims against it are coterminous [Doc. 35 at 21 n.7].

That is, if Plaintiff plausibly alleges a claim under the Lanham Act, he plausibly alleges his state

claims, too.

Here, Defendant Mars Petcare challenges only the second element of the

claim [Doc. 34 at 2]. The Lanham Act defines “use in commerce” as a “bona fide use of a mark

in the ordinary course of trade and not made merely to reserve a right” in a mark. See 15 U.S.C.

§ 1127. An entity uses a mark “in commerce” when, among other things, the entity places the

mark “on the goods or their containers or displays associated therewith or on the tags and labels

affixed thereto.” Id. An entity also uses a mark “in commerce” when the entity “use[s] or

display[s]” the mark “in the sale or advertising of services and the services are rendered in

commerce.” Id.

Plaintiff has plausibly alleged that Defendant Mars Petcare uses its NextVet mark “in

commerce.” The Amended Complaint asserts that Defendant Mars Petcare “offer[s] and sell[s]”

certain “goods and services under” its “[i]nfringing” NextVet “[d]esignation

online” [Doc. 28 ¶ 61]. Using a trademark in offers and sales of goods and services through an

online platform is a paradigmatic example of a “bona fide use of a mark in the ordinary course of

trade.” See 15 U.S.C. § 1127. This allegation, of course, may ultimately prove not to be true or

accurate. But at this stage in the litigation, the Amended Complaint plausibly alleges that

Defendant Mars Petcare uses the allegedly infringing NextVet mark “in commerce.”

Therefore, the Court denies Defendant Mars Petcare’s request to dismiss under Rule 12(b)(6).

III. Conclusion

As set forth above, the Court GRANTS IN PART and DENIES IN PART the Motion to

Dismiss filed by Defendants Banfield and Mars Petcare [Doc. 34]. The Court dismisses Defendant

Medical Management International, Inc., d/b/a Banfield Pet Hospital from this action because the

Court lacks personal jurisdiction over it. But Plaintiff’s trademark infringement claims against

Defendant Mars Petcare US Inc. remain.

SO ORDERED.

KATHERINE A. 4 7a

United States District Judge

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