Case 2:05-cv-02257-KHV-JPO Document 7 Filed 09/01/05 Page 1 of 9

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

GRACELAND COLLEGE CENTER FOR )

PROFESSIONAL DEVELOPMENT AND )
LIFELONG LEARNING, INC., )
d/b/a SKILLPATH )
)
Plaintiff, )
)
v. ) Case No.05-2257-KHV
)
MICHAEL F. PRICE, d/b/a BizSummits, )
SkillSummit, and VC South, )
)
Defendant. )

MEMORANDUM I NSUPPORTOFDEFENDANT S
MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(2)

STATEMENT OF NATURE OF MATTER BEFORE THE COURT

The defendant Michael F. Price, d/b/a BizSummits, SkillSummit, and VC South has

move
dtodi
smi
ssp
lai
nti
ff
sc
ompl
ain
tpur
sua
ntt
oRul
e12(
b)(
2)f
orl
ackofj
uri
sdi
cti
onove
rthe

person. Put simply, the defendant has insufficient contact with the state of Kansas for this court

to assert jurisdiction in this case.

CONSISE STATEMENT OF FACTS

Ass
etf
ort
hint
heAf
fi
davi
tofMi
cha
elF.Pr
ice(
De
fenda
nt
sAf
fi
davi
t)
,at
tac
hed

hereto as Exhibit A and incorporated by this reference:

1. The seminars that are the subjectofpl

aint
if
f
scopy
rig
hti
nfr
inge
mentc
lai
mswe
re

marketed exclusively to Georgia residents, the seminars were conducted in Georgia, and only

Georgia residents enrolled and participated in those seminars. De

fenda
nt
sAf
fi
davi
t,
4-6, 8-9.
 Case 2:05-cv-02257-KHV-JPO Document 7 Filed 09/01/05 Page 2 of 9

2. r
The seminast
hata
ret
hes
ubj
ectofpl
aint
if
f
scopy
rig
hti
nfr
inge
mentc
lai
mswe
re

never marketed in Kansas, nor have any Kansas residents enrolled or participated in those

s
emi
nar
s.De
fenda
nt
sAf
fi
davi
t,6.

3. De
fenda
nt
sma
rke
tinge
ffor
tst
odr
ivet
raf
fi
cto its website were limited to the

s
tat
eofGe
org
ia,a
ndmor
espe
cif
ica
lly
,theme
tropol
it
anAt
lant
aar
ea.De
fenda
nt
sAf
fi
davi
t,7

4. Defendant has not traveled nor made phone calls to Kansas to market BizSummits

s
emi
nar
s.De
fenda
nt
sAf
fi
davi
t,10
-11.

5. De
fenda
ntsa
cti
vit
iesa
sal
lege
dinpl
aint
if
f
scompl
aintwe
rec
onduc
tedi
nhi
s

c
apa
cit
yasPr
esi
dentofBi
zSummi
tsLLC(
Bi
zSummi
ts
).De
fenda
nt
sAf
fi
davi
t,1.

6. BizSummits does not do business in the state of Kansas and does not market its

s
ervi
ceswi
thi
nthes
tat
eofKa
nsa
sort
oKa
nsa
sre
side
nts
.De
fenda
nt
sAf
fi
davi
t,12(
D).

7. BizSummits has never conducted a seminar of any kind within the state of

Kansas, nor does BizSummits provides services of any kind within the state of Kansas.

De
fenda
nt
sAf
fi
davi
t,12(
A-B).

8. I
nor
dert
opa
rti
cipa
tei
naBi
zSummi
ts
se
mina
r,ora
nyoft
hes
emi
nar
sre
leva
nt

t
othea
lle
gat
ionsi
npl
aint
if
f
scompl
aint
,aKa
nsa
sre
side
ntwoul
dha
vet
otr
ave
ltoa
not
hers
tat
e

t
oat
tend.De
fenda
nt
sAf
fi
davi
t, 12(C).

9. No Kansas resident has ever registered or attended any seminar provided by

Bi
zSummi
tsorma
rke
tedunde
rthena
mesSki
ll
Summi
torSk
ill
Summi
ts
.De
fenda
nt
sAf
fi
davi
t,

12(C).

QUESTION PRESENTED

Whether this court may exercise personal jurisdiction over the defendant.

2
 Case 2:05-cv-02257-KHV-JPO Document 7 Filed 09/01/05 Page 3 of 9

ARGUMENT

A. Defendant Does Not Have Sufficient Minimum Contacts with Kansas.

Before a federal court can assert personal jurisdiction over a defendant in a federal

question case, the court must determine that the exercise of jurisdiction comports with due

process and that an applicable statute potentially confers jurisdiction by authorizing service of

process. Deprenyl Animal Health, Inc. v. University of Toronto Innovations Foundation, 161 F.

Supp. 2d 1272, 1275 (citing Peay v. BellSouth Med. Assistance Plan, 205 F.3d 1206, 1209 (10th

Cir.2000)). Because the Kansas long-arm statute is construed liberally to allow jurisdiction to

t
hef
ulle
xte
ntpe
rmi
tt
edbyduepr
oce
ss,t
hes
amec
ons
ti
tut
iona
lst
anda
rdi
sappl
iedt
opl
aint
if
f
s

state law claims. See Deprenyl, 161 F. Supp. 2d at 1275 (citing Federated Rural Elec. Ins. Corp.

v. Kootenai Elec. Coop., 17 F.3d 1302, 1305 (10th Cir.1994)).

The applicable constitutional standard was recently articulated by the Tenth Circuit in

Doreing ex rel. Barrett v. Copper Mountain, Inc., 259 F.3d 1202, 1210:

Consistent with due process, a court may exercise personal jurisdiction over a
nonresident defendant if minimum contacts exist between the defendant and the forum
state such that maintenance oft helaws uitwoul dnotof fend traditiona lnot ionsoff air
pla ya nds ubs tantialjustic e.
World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286,
291-92 (1980) (quotation omitted). The minimum contacts standard may be met in one
of two ways: (1) a court may exercise general jurisdiction if the defendant's contacts with
the forum state are continuous and systematic; or (2) a court may exercise specific
jurisdiction over a defendant if it purposefully directs activities at residents of the forum
and the litigation results from alleged injuries that arise out of or relate to those activities.
See Kuenzle v. HTM Sport-Und Freizeitgerate AG, 102 F.3d 453, 455 (10th Cir.1996).

Insofar as defendant is a resident of Georgia and doing no business in Kansas, plaintiff

c
annotc
lai
mtha
tthede
fenda
nt
scon
tac
tswi
thKa
nsa
sar
ec
ont
inuousa
nds
yst
ema
tic
.He
nce
,

the real issue here is whether the court may exercise specific jurisdiction in this case. Because

t
hede
fenda
ntha
snot
pur
pos
eful
lydi
rec
ted
act
ivi
ti
esa
tre
side
nts
ofKa
nsa
s,s
pec
ifi
c

3
 Case 2:05-cv-02257-KHV-JPO Document 7 Filed 09/01/05 Page 4 of 9

jurisdiction also is not present here.

AsDe
fenda
nt
sAf
fi
davi
tes
tab
lis
hes
,de
fenda
ntha
dnotma
rke
tedi
tss
emi
nar
sinKa
nsa
s,

has not provided those seminars in Kansas, and has not traveled to Kansas or called Kansas for

the purpose of doing business in Kansas. All that plaintiff can point to in this regard is the fact

that defendant maintains a website that has a certain degree of interactivity.

B. DefendantsWe bsi
teDoe
sNotI
tse
lfCr
eat
eJur
isdi
cti
oni
nKans
asunder
Rainy Day Books.

De
fenda
nti
smi
ndf
ulofJ
udg
eWa
xse
sde
cis
ioni
nRainy Day Books, Inc. v. Rainy Day

Books & Caf, LLC, 186 F. Supp. 2d 1158 (D. Kan. 2002). In brief, Judge Waxse adopted the

sli
dings
cal
et
estf
ori
nte
rne
tac
tivi
ti
est
ode
ter
minewhe
the
rapa
rty
swe
bsi
tea
lonec
ons
ti
tut
es

sufficient minimum contacts under the applicable constitutional analysis. See 186 F. Supp. 2d at

1163 (citing Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119, 1123-24 (W.D.Pa.1997)

and Soma Medical Int'l v. Standard Chartered Bank, 196 F.3d 1292, 1296-97 (10th Cir.1999)).

Under this test,

[f]ir
st,pe rsona ljurisdict
ioni sest
abli
she dwhe n adefe ndantc l
earl
ydoe sbus i
ne ssove r
theI nterne t,
s ucha se nteringintocont ractswhi chre quiret he knowi ngand repeated
transmi ssion ofc omput e rf il
es overt he I nternet
. Se c ond,e xercising pe rsonal
jurisdicti
oni snota ppropr i
atewhe ntheI nternetuseinvol ves [
a]pa ssi
veWe bs it
et hat
does little more than make information available to those who are intere st
edi ni t.

Unde rthe sec i
rcums tances, ade f
enda ntha ss i
mpl ypos t
edi nforma ti
onona nI nternet
We bs it
ewhi chisa ccessiblet ouser
sinf or e
ig njuri
sdictions. Thi rd,ami ddlec ate
g ory
enc ompa sses inte
rac t
iveWe bsit
eswhe r
eaus erc a
ne xc hangei nformation with the host
comput er. Whe thert hee xerci
seofj urisdicti
oni sappr opriatedepe ndsupon thel evel
of interactivity and commercial nature of the exchange of information that occurs on the
We bs it
e.

Rainy Day Books, 186 F. Supp. 2d at 1163 (quoting Soma Medical, 196 F.3d at 1296; quoting

Zippo, 952 F.Supp. at 1123-24).

4
 Case 2:05-cv-02257-KHV-JPO Document 7 Filed 09/01/05 Page 5 of 9

In Rainy Day Books, Judge Waxse concluded that a website that sold books online was a

commercial website doing business over the Internet; consequently, the defendant that operated

the site was subject to personal jurisdiction in Kansas because Kansas residents were able to

purchase books from the defendant over the Internet. 186 F. Supp. 2d at 1163-65.

The factual distinctions in the present case, coupled with the lack of purposeful efforts to

direct activities in Kansas, militate a finding that de

fenda
nt
swe
bsi
teis at worst within the

middl
eca
teg
ory
ofwe
bsi
test
hat
encompasses interactive Web sites where a user can

e
xcha
ngei
nfor
mat
ionwi
tht
hehos
tcomput
er.
Id. at 1163 (internal quotations removed).

According to the court in Rainy Day Books,

[w]
hether the exercise of jurisdiction is appropriate

[in the middle category of websites] de

pendsupon
thel
eve
lofi
nte
rac
tivi
tya
ndc
omme
rci
al

nature of the exchange of information that occurs on the Web site. 186F.Supp.2da
t1163.

Keeping in mind the requirement that the defendant must purposefully direct activities at the

residents of the forum, see Copper Mountain, Inc., 259 F.3d at 1210, the Court should find that

the nature, level of interactivity, and commercial nature of the exchange of information of

de
fenda
nt
swe
bsi
tedoe
snots
ubj
ectde
fenda
ntt
ojur
isdi
cti
oni
nKa
nsa
s.

Unlike the situation in Rainy Day Books, where an online bookstore was making

available books for sale and delivery into Kansas, the defendant here is offering a service

seminarsthat are not available in Kansas. Se

eDe
fendant
sAf
fi
dav
it, 12(B). While Kansas

residents are free to access this website, no efforts are undertaken to market to Kansas residents

or otherwise drive Kansas residents to the website. See id., 4-7. Even if a Kansas resident

c
hos
etoe
nrol
landpa
rti
cipa
tei
noneofde
fenda
nt
sse
mina
rs,t
hatr
esi
dentwoul
dber
equi
redt
o

travel to another state to receive the services purchased. Id., 12(C).

Consequently, the facts in this case are most closely analogous to a situation whereby a

5
 Case 2:05-cv-02257-KHV-JPO Document 7 Filed 09/01/05 Page 6 of 9

Kansas resident places a phone call to a Georgia company to purchase a service provided in

Georgia and then travels to Georgia to receive that service. Under such circumstances, under

a
nyt
estt
heGe
org
iac
ompa
nywoul
dnotha
ve
pur
pos
eful
lydi
rec
tedi
tsbus
ine
ssa
cti
vit
ie
sat

the forum in such a way as not to offend traditional notions of fair play and substantial justice by

hailing the Georgia company into court in Kansas.

C. Rainy Day Books Did Not Properly Account for the Constitutional Minimum
Contacts Requirement.

With all due respect to Judge Waxse and the rulings upon which he relies in Rainy Day

Books, t
he
sli
dings
cal
ete
stt
ake
sthenot
ionofonl
inebus
ine
sst
hroug
hcomme
rci
alwe
bsi
tes

vir
tua
lbus
ine
sse
si
fyouwi
ll
--a bit too far.

The fact that a website is interactive and allows business to be conducted over it should

not alone be dispositive in determining whether the activities are directed toward the forum state.

By way of example, almost all businesses in the United States have telephone service. By virtue

of having phone service those businesses are connected to a complex network of phone lines,

switches, and interconnections that span the nation and beyond. Any person with access to a

phone may call any business with a phone. And like in Rainy Day Books, that remote customer

would be freeover the phoneto enquire about what books are available and if interested,

provide their name (an interactive exchange of data) and credit card information in order to

complete a transaction over the phone (thus, doing business over the phone network). So if a

resident of Alaska purchases a book from our own Rainy Day Books in Kansas via credit card

over the phone, should Rainy Day Books be subject to personal jurisdiction in Alaskan courts

because the processing of a transaction over the phone constitutes purposefully directing

activities to residents of Alaska? No.

6
 Case 2:05-cv-02257-KHV-JPO Document 7 Filed 09/01/05 Page 7 of 9

Without more, even an interactive website is nothing more than an automated phone

answering system allowing customers to call and process transactions over the phone. The fact

t
hatt
hes
yst
emi
saut
oma
tedor
int
era
cti
veha
snot
hingwha
tsoe
vert
odowi
thwhether business

activities are purposefully directed toward the forum and thus should not be material in the

jurisdictional analysis.

In this day and age of e-commerce and interactive websites worldwide, a literal

application of the sliding scale test will cause most businesses to be subject to being sued in

courts nationwide, whether or not that business does business nationwide or even outside of a

small geographic region. Such a result itself seems to offend

tra
dit
iona
lnot
ionsoff
airpl
aya
nd

i
substantalj
ust
ice
.

D. The Court Should Apply Scherer to Find That Defendant did not
Purposefully Avail Himself of the Privilege of Acting Within Kansas.

More consistent with fair play and substantial justice was the analysis set forth by Judge

Lungstrum in Scherer v. Curators of the Univ. of Missouri, 152 F. Supp. 2d 1278 (D. Kan.

2001). In Scherer, the alleged contact with the forum for purposes of determining the exercise of

specific jurisdiction included a l

aws
chool
s
pas
sive
we
bsi
te,t
hes
endi
ngofmaterials from

Kansas to Missouri, letters and emails from Kansas to Missouri, an email from Missouri to

Kansas, a letter from Missouri to Kansas, and a phone call from Missouri to Kansas. See 152 F.

Supp. 2d at 1284-85. Concluding that these contacts were insufficient, the court said:
Bearing

in mind the relevant standards for establishing jurisdiction over forum-related activities, the court

cannot conclude that the Law School

purposefully availeditself of the privilege of acting

t
within Kansas by virueofi
tsr
espons
etopl
aint
if
f
sinqui
ri
es.
Id. at 1285. Indeed, earlier in

the opinion, Judge Lungstrum refused to find the law school subject to general jurisdiction
7
 Case 2:05-cv-02257-KHV-JPO Document 7 Filed 09/01/05 Page 8 of 9

not
wit
hst
andi
ngt
hel
aws
chool
se
ffor
tst
ore
crui
tst
ude
ntsf
rom Ka
nsa
s.See 152 F. Supp. 2d at

1283-84.

The contact between the defendant and the forum state in Scherer was substantially

greater than the contact here. The court in Scherer did not analyze the UMKC Sc
hoolofLa
ws

website or t
hee
xte
ntt
owhi
chi
twa
str
uly
pas
sive
or whether that site was more appropriately

c
ate
gor
ize
daswi
thi
nthe
middl
eca
teg
ory
ar
ti
cul
ate
dinRainy Day Books, supra. But the fact

that the plaintiff and defendant shared information that was sent to and from the forum was not

sufficient for the court in Scherer to conclude that personal jurisdiction was appropriate in that

case. In the end, Mr. Scherer was attempting to go to school in Missouri, just like the seminar

participants in the instant case are going to seminars in Georgia. The fact that the school

interacted with students from the forum and had a website to recruit them was insufficient to

establish jurisdiction in Kansas. The court should hold that the same is true here, particularly in

the instant case given that defendant has no students from Kansas and has made no efforts to

recruit them.

CONCLUSION

For all of the foregoing reasons, defendant respectfully requests the Court to grant this

mot
iona
nddi
smi
sspl
ain
tif
f
scompl
ainti
nit
sent
ir
etypur
sua
ntt
oFe
d.R.Ci
v.P. 12(b)(2).

8
 Case 2:05-cv-02257-KHV-JPO Document 7 Filed 09/01/05 Page 9 of 9

Respectfully submitted,

HELDER LAW FIRM

/s/ Jan P. Helder, Jr.

Jan P. Helder, Jr., KS #14440
2300 Main Street, 9th Floor
Kansas City, Missouri 64108
Telephone: (816) 561-5000
Facsimile: (816) 561-5001
jph@helderlaw.com

ATTORNEY FOR DEFENDANT

CERTIFICATE OF SERVICE

I hereby certify that on this 1stth day of September, 2005, this document was

electronically filed with the Court, which automatically notified the following electronic filing

participant:

Robert O. Lesley, Esq.

Sonnenschein Nath & Rosenthal LLP
4520 Main Street, Suite 1100
Kansas City, MO 64111
rlesley@sonnenschein.com

Attorneys for Plaintiff

/s/ Jan P. Helder, Jr.

Attorney for Defendant