United States District Court, E.D. Wisconsin
PINSTRIPE HOLDINGS, INC. Plaintiff,
JOHN DOE, Defendant.
ORDER DENYING WITHOUT PREJUDICE PLAINTIFF'S
MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY
INJUNCTION (DKT. NO. 3)
PAMELA PEPPER, UNITED STATES DISTRICT JUDGE.
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) email@example.com; (2)
firstname.lastname@example.org; (3) email@example.com;
(4) firstname.lastname@example.org; (5)
email@example.com; and (7)
firstname.lastname@example.org. For the reasons stated
below, the court will deny the motion, without prejudice.
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.
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
On or around August 24, 2017, a user operating the Gmail
Account email@example.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
firstname.lastname@example.org 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
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.
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.
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.
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
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 ' ...