IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF INDIANA

EVANSVILLE DIVISION

RODENTPRO.COM, LLC d/b/a )

RODENTPRO.COM , )
)
Plaintiff, )
v. ) Civil Case No.: 3:06-cv-0081-RLY-WGH)
BIGGERS & CALLAHAM, LLC d/b/a )
MICE DIRECT, )
)
Defendant. )

DEFENDANT’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION

Table of Contents

I. Motion to Dismiss ..................................................................................................... 1

II. Argument .................................................................................................................. 1

A. Introduction........................................................................................................... 1
B. Facts..................................................................................................................... 2
C. Standard for Determining Personal Jurisdiction.................................................... 4
D. The Court Lacks Jurisdiction Over Biggers. ......................................................... 5
E. Venue is Improper in This District......................................................................... 6
1. Standard for Change of Venue ............................................................................. 6

2. Venue is Proper in Georgia .................................................................................. 7

3. Convenience of the Parties and Witnesses .......................................................... 8

4. Interest of Justice ................................................................................................. 9

III. Conclusion .............................................................................................................. 10

 Table of Authorities
Cases

Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S. Ct. 2174, 85 L. Ed. 2d 528
(1985)........................................................................................................................... 5

Calder v. Jones, 465 U.S. 783, 104 S. Ct. 1482, 79 L. Ed. 2d 804 (1984) ...................... 6

Central States, S.E. & S. W. Areas Pension Fund v. Reimer Express World Corp., 230
F.3d 934, 939 (7th Cir. 2000). ...................................................................................... 4

Coffey v. Van Dorn Iron Works, 796 F.2d 217, 219 (7th Cir. 1986)....................... 8, 9, 11

Dicken v. U.S., 862 F. Supp. 91, 92 (D. Md. 1994) ......................................................... 9

Espino v. Top Draw Freight Sys., Inc., 713 F.Supp. 1243, 1245 (N.D.Ill. 1989)............ 11

Globetec Intl, Ltd. v. August Wenzler Maschinenbau, GmbH, 364 F. Supp. 2d 769, 772
(D. Ill. 2005) ................................................................................................................. 7

Greenberg v. Miami Children's Hosp. Research Inst., Inc., 208 F.Supp.2d 918, 922
(N.D.Ill. 2002)............................................................................................................... 4

Heller Fin., Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1293 (7th Cir. 1989)............... 8

Indianapolis Colts, Inc. v. Metro. Baltimore Football Club Ltd., 34 F.3d 410, 411-12 (7th
Cir. 1994) ..................................................................................................................... 6

International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 90 L. Ed. 95
(1945)........................................................................................................................... 5

Jackson v. Cal. Newspapers P'ship, 406 F. Supp. 2d 893, 898 (D. Ill. 2005).................. 7

Janmark, Inc. v. Reidy, 132 F.3d 1200, 1202 (7th Cir. 1997) .......................................... 6

Kontos v. United States Dep't of Labor, 826 F.2d 573, 576 (7th Cir. 1987)..................... 4

Milliken v. Meyer, 311 U.S. 457, 463, 61 S. Ct. 339, 85 L. Ed. 278 (1940) ..................... 5

Pilot Corp. v. U.S. Robotics, Inc., 1997 U.S. Dist. LEXIS 1107 at *6 (S.D.N.Y. Feb. 6,
1997).......................................................................................................................... 11

Purdue Research Found., 338 F.3d at 779 ..................................................................... 4

RAR, Inc. v. Turner Diesel, Ltd., 107 F.3d 1272, 1277 (citing Burger King, 471 U.S. 474-
75). 5

ii
State Farm Mutual Auto Ins. Co. v. Bussell, 939 F.Supp. 646, 650 (S.D.Ind. 1996) ....... 8

Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29, 108 S. Ct. 2239, 101 L. Ed. 2d 22
(1988)........................................................................................................................... 9

Van Dusen v. Barrack, 376 U.S. 612, 622, 84 S. Ct. 805, 11 L. Ed. 2d 945 (1964) ........ 9

Von Holdt v. Husky Injection Molding Sys., Ltd., 887 F.Supp. 185, 188 (N.D.Ill. 1995). 10

iii
 I. MOTION TO DISMISS

Defendant, Biggers & Callaham, LLC ( “Biggers”), pursuant to Federal

Rules of Civil Procedure 12(b)(2) and (3) hereby moves to dismiss the Complaint on the

grounds of lack of personal jurisdiction and improper venue, or if personal jurisdiction is

found to exist, in the alternative, moves for a change of venue under 28 U.S.C.

§1404(a) to the Northern District of Georgia. This motion is based on the attached

declarations of John Callaham, Bob Hammond, Jonathon Bryan and Brook Owen and

on the following grounds:

1. Plaintiff wrongfully brought this suit against Biggers in Indiana.

2. Biggers lacks sufficient contacts with Indiana to be subject to suit
under the Indiana long arm statute.
3. The Court lacks in personam jurisdiction over Biggers.
4. Venue is improper warranting dismissal under FRCP 12(b)(3).

II. ARGUMENT

A. Introduction

The parties are competitors in the business of selling rodents to owners of

reptiles and birds of prey for food. While this business may sound mundane to the

uninitiated, it is a calling that defendant Biggers views with the utmost professionalism.

This case presents the weighty issue of whether a business can appropriate for itself,

and prevent competitors from claiming to be, a “rodent professional.” However, the

Court need not resort to a “rodent professional” to exterminate this case from its docket,

as due process and FRCP 12(b)(2) and (3) fortunately compel such extermination.

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 B. Facts

Defendant Biggers is in the business of raising and selling rodents, such as mice

and rats, which are predominantly used as food for animals such as reptiles and birds of

prey. (Callaham Aff. ¶ 7). Despite its name, Biggers is a very small company; so small

that it has no employees, and operates through a handful of independent contractors

out of its tiny office in Cleveland, Georgia. Biggers does not do business in Indiana; it

has never made a single sale in Indiana, and it has no employees, offices or property in

Indiana. (Callaham Aff. ¶ 6-9). While Biggers is small, it aspires to get bigger someday

through its website micedirect.com. However, it will apparently take some time for

Biggers to get bigger, at least in Indiana, as Biggers has never made a single sale to

anyone in Indiana.

Biggers’ strategy to grow includes conducting its activities with the utmost

professionalism. Accordingly, it hails itself as a “rodent pro” or “rodent professional” on

its website and other promotional literature. For example, Biggers website states:

Our Company

MiceDirect, a dba of Biggers & Callaham, LLC is an industry-leading

producer and distributer of feeder mice and rats. Our facilities are
located in Cleveland and Clarkesburg, Georgia. As experienced
rodent professionals, we serve a wide range of customers, from
hobbyists to some of the world's largest and most respected breeders.
We are known world-wide for our high-quality products, our breeder-
direct value pricing, our reliable customer service, and a solid
reputation for being real rodent pros.
***
At MiceDirect, we assure you that we're real rodent pros determined
to provide you with the very best quality rodents . . .
***
We want you to feel secure that when you order from MiceDirect, you
will encounter the helpful, reliable, and consistently high-caliber
customer service you rely on from your rodent professionals.
***

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 [O]ur trustworthiness, has made MiceDirect one of the top frozen
feeder producers and deliverers in the rodent professional
industry.
***
Handling / Raising of Rodents:

As rodent pros, we consider it crucial that all of our animals are

raised on premium quality food and that they are raised specifically as
reptile or raptor food, not as surplus experimental lab stock.

Callaham Aff., ¶ 12, Exhibit 1 (emphasis supplied)

Biggers’ use of the terms “rodent pro” or “rodent professional” is generic. These

are simple words in the English language that describe Biggers (and many other

businesses in the industry).

Consistent with Biggers’ commitment to conduct its business with the utmost

professionalism, Biggers refuses to sell “laboratory surplus” rodents. These are rodents

that have been acquired from laboratories that may have intentionally given the rodents

various diseases to conduct experiments. Instead, Biggers sells only disease-free

rodents that have been raised on a wholesome, nutritious, scientifically-formulated diet

specially designed for their individual needs. (Callaham Aff. ¶ 10).

Plaintiff RodentPro.com, LLC, which sells laboratory surplus rodents (Callaham

Aff. ¶ 22), claims that Biggers’ use of the terms “rodent pro” or “rodent professional”

infringe the following logo it claims to own:

After Biggers began promoting the fact that it never sold “laboratory surplus” rodents,

Plaintiff RodentPro.com, LLC filed this suit.

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 C. Standard for Determining Personal Jurisdiction

When a defendant challenges jurisdiction, the plaintiff bears the burden of

proving that personal jurisdiction exists. Central States, S.E. & S. W. Areas Pension

Fund v. Reimer Express World Corp., 230 F.3d 934, 939 (7th Cir. 2000). In deciding

the motion to dismiss, the court may receive and consider affidavits from both parties.

Greenberg v. Miami Children's Hosp. Research Inst., Inc., 208 F.Supp.2d 918, 922

(N.D.Ill. 2002) (citing Kontos v. United States Dep't of Labor, 826 F.2d 573, 576 (7th Cir.

1987)).

The determination of personal jurisdiction requires a two-step inquiry: (1) whether

the defendant falls within Indiana's long-arm statute; and (2) whether the exercise of

jurisdiction over the defendant comports with the requirements of federal due process.

Purdue Research Found., 338 F.3d at 779.

The Due Process Clause requires that a defendant not present within the territory

of the forum have 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." International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 90 L.

Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S. Ct. 339, 85 L. Ed.

278 (1940)). In addition, such "minimum contacts" with the forum state must be

purposeful and create a "substantial connection" with the forum state. See Burger King

Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985).

Specific jurisdiction exists when the litigation arises out of the defendant's

contacts with the forum. Specific jurisdiction comports with the Due Process Clause

where the defendant's contacts with the forum are such that the defendant "should

reasonably anticipate being haled into court in that state "because the defendant has

4
purposefully availed itself of the privilege of conducting activities' there." RAR, Inc. v.

Turner Diesel, Ltd., 107 F.3d 1272, 1277 (citing Burger King, 471 U.S. 474-75). Thus,

random, fortuitous or attenuated contacts will not suffice to support a finding of specific

personal jurisdiction. Burger King, 471 U.S. at 475.

D. The Court Lacks Jurisdiction Over Biggers.

Biggers has insufficient contacts with Indiana for the Court to exercise general

personal jurisdiction over it. In Indiana, Biggers has no offices, property, employees, or

even sales.

Plaintiff has no specific personal jurisdiction over Biggers pursuant to the "effects

test" for specific personal jurisdiction first enunciated by the Supreme Court in Calder v.

Jones, 465 U.S. 783, 104 S. Ct. 1482, 79 L. Ed. 2d 804 (1984); see also Janmark, Inc.

v. Reidy, 132 F.3d 1200, 1202 (7th Cir. 1997); Indianapolis Colts, Inc. v. Metro.

Baltimore Football Club Ltd., 34 F.3d 410, 411-12 (7th Cir. 1994). These cases require

that a Defendant “direct” its tortuous or harmful activities at a plaintiff in the forum state

before jurisdiction may be found. This can occur when tortuous activity is directed at a

specific victim (such as the owner of the “COLTS” trademark) in a specific State. Here,

Biggers’ claim to be a “rodent professional” is not “directed” toward plaintiff or intended

to harm plaintiff; it is just a generic use of the English language.

In addition, even if Plaintiff were injured, its “injury” is not suffered predominantly

in Indiana. Plaintiff does its business and promotes its mark over the Internet. To the

extent there is any harm, the harm occurs equally throughout the world, not primarily in

Indiana.

5
 The present case is virtually identical to Jackson v. Cal. Newspapers P'ship, 406

F. Supp. 2d 893, 898 (D. Ill. 2005). In that case, the Court found that the Illinois plaintiff

failed to establish jurisdiction over the California defendants who published a

defamatory statement about the plaintiff in a California publication and its related

website. Even though the alleged “harm” to the plaintiff’s reputation occurred in Illinois,

because the defendant did not target Illinois residents, Illinois did not have a regulatory

interest in correcting for future wrongs against other Illinois residents. The court

concluded that exercising personal jurisdiction over defendants would offend notions of

fair play and substantial justice.1

The only difference between the present case and Jackson is that Jackson

involved alleged “defamation” while this case involves alleged “trademark infringement.”

This distinction is insufficient to allow the Court to exercise personal jurisdiction over

Biggers, so this case should be dismissed.

E. Venue is Improper in This District

1. Standard for Change of Venue

Even if the Court finds it has personal jurisdiction over Biggers (and it does not)

the court should grant Biggers’ alternative motion to transfer venue to the Northern

District of Georgia pursuant to 28 U.S.C. § 1404(a). Section 1404(a) provides: “For the

convenience of parties and witnesses, in the interest of justice, a district court may

transfer any civil action to any other district or division where it might have been

1
See also, Globetec Intl, Ltd. v. August Wenzler Maschinenbau, GmbH, 364 F. Supp. 2d 769,
772 (D. Ill. 2005) (Even though alleged injury occurred in forum state, there was no personal jurisdiction
over Defendant because Plaintiff was not a “target” of the Defendant’s allegedly wrongful acts).

6
brought." 28 U.S.C. § 1404(a). Transfer under § 1404(a) is appropriate where the

moving party establishes that "(1) venue is proper in the transferor district, (2) venue

and jurisdiction are proper in the transferee district, and (3) the transfer will serve the

convenience of the parties, the convenience of the witnesses, and the interest of

justice." State Farm Mutual Auto Ins. Co. v. Bussell, 939 F.Supp. 646, 650 (S.D.Ind.

1996). The determination as to whether a case should be transferred is committed to

the sound discretion of the trial court. Heller Fin., Inc. v. Midwhey Powder Co., 883 F.2d

1286, 1293 (7th Cir. 1989); Coffey v. Van Dorn Iron Works, 796 F.2d 217, 219 (7th Cir.

1986). Section 1404(a) does not indicate the relative weight to be accorded to each

factor. Instead, the district court has discretion to "adjudicate motions for transfer

according to an individualized, case-by-case consideration of convenience and

fairness.'" Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29, 108 S. Ct. 2239, 101 L.

Ed. 2d 22 (1988) (quoting Van Dusen v. Barrack, 376 U.S. 612, 622, 84 S. Ct. 805, 11

L. Ed. 2d 945 (1964)). To this end, the court must balance the three factors in light of

the particular circumstances of each case. See Coffey, 796 F.2d at 219-20 n.3 (7th Cir.

1986).

2. Venue is Proper in Georgia

The first factor is whether venue would be proper where the action “might have

been brought” (the proposed transferee forum) Dicken v. U.S., 862 F. Supp. 91, 92 (D.

Md. 1994). This action could have been brought in the Northern District of Georgia.

Venue is preferred there because that is the judicial district where the defendant

resides. Moreover, the operative events relating to Plaintiffs’ claims took place in

7
Georgia, namely, Biggers’ adoption and use of the term “rodent professionals,” and any

profits from the alleged infringement are in Georgia.

3. Convenience of the Parties and Witnesses

In evaluating the convenience and fairness of transfer under § 1404(a), the court

must consider the private interests of the parties. These include: "(1) plaintiffs choice of

forum, (2) the situs of material events, (3) the relative ease of access to sources of proof

in each forum including the court's power to compel the appearance of unwilling

witnesses at trial and the costs of obtaining the attendance of witnesses, (4)

convenience to the parties -- specifically, their respective residences and abilities to

bear the expense of trial in a particular forum." Von Holdt v. Husky Injection Molding

Sys., Ltd., 887 F.Supp. 185, 188 (N.D.Ill. 1995).

Generally, a plaintiff's choice of forum should be given some weight. However, in this

case, only Plaintiff is an Indiana resident. Moreover, in the dead rodent business, plaintiff is the

“800 pound gorilla.” Plaintiff is the largest supplier of dead rodents in the United States. It

ships dead rodents to all fifty States, and has received testimonials from persons throughout

the country. RodentPro.com LLC also regularly places the largest ads of anyone in the

business in magazines such as KingSnake. (Callaham Aff. ¶ 22). In contrast, Biggers has no

employees and has a modest business compared to RodentPro.com LLC. RodentPro.com

LLC has far more resources to litigate in Georgia than Biggers does to litigate in Indiana.

The availability of evidence also weighs in favor of Georgia. Witnesses regarding

Biggers’ adoption of the term “rodent professionals” are in Georgia. Any information

regarding Biggers’ profits are in Georgia. Biggers’ independent contractors are in

Georgia, as are its expected third party customer witnesses, trademark survey expert,

8
and damages expert. (Callaham Aff. ¶ 17, Hammond Aff. (Ex 2); Bryan Aff. (Ex 3);

Brook Aff. (Ex 4)). Virtually all the evidence regarding plaintiff’s claim is in Georgia. In

these circumstances, transfer is typically appropriate under §1404(a). See 17 Moore’s

Federal Practice, §111.13[1][d] (3d Ed. 2005); See also, Pilot Corp. v. U.S. Robotics,

Inc., 1997 U.S. Dist. LEXIS 1107 at *6 (S.D.N.Y. Feb. 6, 1997) (transferring trademark

infringement action to district where defendant “directs the manufacturing, marketing,

and sales efforts of the allegedly infringing products”).

4. Interest of Justice

The interest of justice factor "focuses on the efficient administration of the court

system, rather than the private considerations of the litigants." Espino v. Top Draw

Freight Sys., Inc., 713 F.Supp. 1243, 1245 (N.D.Ill. 1989). Interest of justice

considerations include the necessity to apply state law, the conservation of judicial

resources and the likelihood of an earlier trial. See id. Another factor to consider is

whether the case in the transferee court can be consolidated with a case in the

transferor court. Coffey, 796 F.2d at 221 (". . . related litigation should be transferred to

a forum where consolidation is feasible . . ."). Biggers anticipates bringing a proceeding

in the Northern District of Georgia to cancel plaintiff’s trademark registration as

descriptive, or to require the term “rodent pro” to be disclaimed. Judicial economy

would be served by transferring this case to Georgia so it can be consolidated with the

cancellation proceeding. Thus, this factor weights in favor of transferring venue to the

Georgia forum because all of the rights of the parties can be litigated there, thereby

promoting the efficient administration of justice and the reduction of party expenses.

9
 III. CONCLUSION

WHEREFORE, Biggers respectfully requests that this Honorable Court dismiss

Plaintiff’s complaint for lack of personal jurisdiction or improper venue; or if the Court

finds personal jurisdiction, in the alternative, transfer this Case to the Northern District of

Georgia.

Respectfully submitted,

By: s/Paul B. Overhauser

Paul B. Overhauser
Overhauser Law Offices, LLC
737 W. Green Meadows Dr., Suite 300
Greenfield, IN 46140-4019
Phone: 317-891-1500
Fax: 866-283-8549
Attorneys for Defendant

Exhibits – Declaration of:

1 John Callaham
2 Bob Hammond
3 Jonathon Bryan
4 Brooke Owens

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing is being filed electronically, and
notice hereof will automatically be sent to all counsel of record that participate in
electronic filing, by operation of the Court’s electronic filing system. Parties may access
this filing through the Court’s system

By: s/Paul B. Overhauser

Paul B. Overhauser

10