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Pinstripe Holdings Inc v. Doe

United States District Court, E.D. Wisconsin

October 17, 2017

PINSTRIPE HOLDINGS, INC. Plaintiff,
v.
JOHN DOE, Defendant.

          ORDER DENYING WITHOUT PREJUDICE PLAINTIFF'S MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION (DKT. NO. 3)

          HON. PAMELA PEPPER, UNITED STATES DISTRICT JUDGE.

         I. Background

         On September 28, 2017, the plaintiff filed a verified complaint, dkt. no. 1, along with a motion for a temporary restraining order and preliminary injunction, dkt. no. 3. The complaint alleges two causes of action under the Lanham Act, 15 U.S.C. §1125(a)-trademark infringement and false advertising. Dkt. No. 1 at 11-12. Following a status conference on October 5, 2017, the plaintiff filed a renewed brief in support of its motion and attached a proposed order. Dkt. No. 8. The motion for temporary restraining order and preliminary injunction seeks an order against seven Gmail accounts hosted on Google servers and operated by an unknown person or entity. The accounts at issue include, but are not limited to: (1) infojobdesk.cielo@gmail.com; (2) hiringcielo@gmail.com; (3) cielo@gmail.com; (4) interviewcielo@gmail.com; (5) cielo.interviewdesk@gmail.com; (6) hiringdesk.cielo@gmail.com; and (7) cielo.hiringdesk@gmail.com. For the reasons stated below, the court will deny the motion, without prejudice.

         The plaintiff, Pinstripe Holdings, LLC, is the parent company of Cielo, Inc. Dkt. No. 1 at 1. Cielo is a Wisconsin corporation with its principal place of business located in Brookfield, Wisconsin. The plaintiff owns a trademark on “CIELO.” Id. at 3, ¶11. The mark is used to describe human resources software and processes. Id. The registration application was filed in May 2014, and the mark has been registered since November 8, 2016. Id. at 4, ¶12.

         The complaint alleges that starting in early August 2017, an unknown individual or unknown individuals started using the relevant Gmail accounts to pose as someone affiliated with Cielo, and to “solicit inquiries about various job opportunities allegedly available with Cielo.” Id. at 5, ¶20. For example, the complaint alleges that:

On or around August 24, 2017, a user operating the Gmail Account cielo.hiringdesk@gmail.com sent an email stating that “David Buxton” was sending the email on behalf of Cielo, and that the email recipient may be qualified for employment opportunities available with Cielo. The recipient corresponded with the operator of the cielo.hiringdesk@gmail.com Gmail Account, and received an employment offer letter for a position with Cielo on August 31, 2017. On or after September 5, 2017, the email recipient received a cashier check via Federal Express, along with instructions for depositing the funds.

Id. at 7, ¶30. Other allegations follow a similar pattern. In its supplemental brief in support of its motion, the plaintiff avers that the plaintiff “continues to receive complaints about these fraudulent e-mails for new addresses daily.” Dkt. No. 8 at 1-2. The complaint alleges that the accounts have been used to send e-mails with the CIELO mark throughout August and September, 2017.

         The plaintiff indicates that it filed a complaint with Google's Internet Crime Center. Id. at 10, ¶54. It also has filed a complaint with the City of Brookfield Police Department. Id. at 11, ¶56. On October 6, 2017-after the status conference-the plaintiff, through counsel, sent a third-party subpoena to Google, and avers that “Google was served on October 9, 2017.” Dkt. No. 9 at I, ¶2.

         II. Analysis

         The plaintiff seeks a temporary restraining order and preliminary injunction against a single, unnamed John Doe defendant. Granting the motion would “require[] the court to enjoin the activities of persons whose identities are unknown at this time.” Joel v. Various John Does, 499 F.Supp. 791, 791 (E.D. Wis. 1980). “A court does not have the power to order injunctive relief against a person over whom the court has not required in personam jurisdiction.” Id.; see also Advanced Tactical Ordnance Sys., LLC. v. Real Action Paintball, Inc., 751 F.3d 796, 800 (7th Cir. 2014) (“In order for the district court's preliminary injunction to be valid, that court had to have personal jurisdiction over the defendant.”). “A court does not have the power to enjoin the behavior of the world at large.” Id. (citing Chase National Bank v. City of Norwalk, 291 U.S. 431, 436-37 (1934)). Rather, “[p]ersonal jurisdiction . . . is ‘an essential element of the jurisdiction of a district . . . court, ' without which the court is ‘powerless to proceed to an adjudication.'” Ruhrgas AG v. Marathon Oil Col., 526 U.S. 574, 584 (1999) (quoting Employers Reinsurance Corp. v. Bryant, 299 U.S. 374, 382 (1937)). “The plaintiff bears the burden of establishing personal jurisdiction.” Advanced Tactical, 751 F.3d at 799.

         The complaint alleges violations of the Lanham Act. “Because the Lanham Act does not have a special federal rule for personal jurisdiction . . . we look to the law of the forum for the governing rule.” Id. at 800. Here, “the Wisconsin long-arm statute . . . has been interpreted to confer jurisdiction to the limits of due process, and thus courts usually focus only on whether due process authorizes personal jurisdiction and do not perform a separate inquiry under the long-arm statute.” Global Imaging Acquisitions Grp. LLC. v. Rubenstein, 107 F.Supp.3d 961, 963-64 (E.D. Wis. 2015) (citing Felland v. Clifton, 682 F.3d 665, 678 (7th Cir. 2012)).

         The due process clause provides that a court may exercise personal jurisdiction only where the defendant has “certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.'” Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)). “Jurisdiction over a defendant can be established either through general or specific jurisdiction.” Brook v. McCormley, ___ F.3d ___, 2017 WL 4531687, at *2 (7th Cir. Oct. 11, 2017). The plaintiff has not alleged that the unknown defendant's contacts have been so “continuous and systematic” with Wisconsin as to warrant a finding of general jurisdiction; the court will address only specific jurisdiction. Id. (citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416 (1984)).

         “Specific jurisdiction ‘refers to jurisdiction over a defendant in a suit arising out of or related to the defendant's contacts with the forum.'” Id. (quoting GCIU-Emp'r Ret. Fund v. Goldfarb Corp., 565 F.3d 1018, 1023 (7th Cir. 2009)).

[N]ot just any contacts will do: “For a state to exercise jurisdiction consistent with due process, the defendant's suit-related conduct must create a substantial connection with the forum State.” [Walden v. Fiore ___ U.S. ___, 134 S.Ct. 1115, 1121 (2014)] (emphasis added). The “mere fact that [defendant's] conduct affected plaintiffs with connections to the forum State does not suffice to authorize jurisdiction.' Id. at 1126. Furthermore, the relation between the defendant and the forum “must arise out of contacts that the ‘defendant himself ' ...

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