MEMORANDUM AND ORDER
JULIE A. ROBINSON, District Judge.
This matter is before the Court on Defendant Michael Kimberling's Motion to Dismiss (Doc. 37) for lack of personal jurisdiction and for failure to state a claim. The motion is fully briefed and the Court is prepared to rule. For the reasons explained in detail below, the Court denies Defendant's motion to dismiss.
Plaintiff Jake's Fireworks, Inc.'s Amended Complaint seeks relief on the basis of four claims: (1) counterfeiting under 15 U.S.C. § 1114, (2) trademark infringement under 15 U.S.C. § 1114, (3) unfair competition under 15 U.S.C. § 1125, and (4) unfair competition under Kansas law. The following relevant facts are alleged in the Amended Complaint in support of these claims. Plaintiff is a leading distributor of wholesale and retail fireworks in the United States. It owns the registered trademark EXCALIBUR7, which it has used in connection with fireworks, specifically consumer fireworks artillery shells, since at least June 19, 1998. Plaintiff's artillery shells are packaged in a rectangular box having side cutouts that permit viewing of the packaged shells. Defendant Sky Thunder is owned by Defendant Kimberling, who started the company in 2011. Defendants, without authorization from Jake's Fireworks, have used and continue to use the infringing and counterfeit X-CALIBUR mark in connection with the advertisement and sale of fireworks, namely, consumer artillery shells packaged in a rectangular box having side-cutouts that permit viewing of the packaged shells. Defendants advertise that Defendant Sky Thunder designed the X-CALIBUR-branded consumer artillery shells.
Kimberling personally participated in, was directly responsible for and authorized and approved the selection, purchase, import, promotion, distribution and/or sale of Defendants' X-CALIBUR®-branded fireworks, carrying out all such activities in Defendant Kimberling's own personal interest. Defendants were aware of Plaintiff and its consumer artillery shells advertised and sold under the EXCALIBUR® mark at the time Defendants adopted and began selling identical products under the infringing and counterfeit X-CALIBUR mark.
Kimberling has submitted an affidavit in support of his motion to dismiss on the basis of personal jurisdiction. He resides in Indiana, and Sky Thunder's principal place of business is in Indiana. Kimberling attests that neither he nor Sky Thunder solicits business from, sends agents or representatives to, holds themselves out as doing business in, advertises or markets in, maintains bank accounts in, or maintains property or employees in the State of Kansas. They are not licensed to do business in Kansas. Kimberling has never transacted business with nor purchased fireworks from any distributor in Kansas.
A. Personal Jurisdiction
Plaintiff has the burden of establishing personal jurisdiction over Defendant.
B. Failure to State a Claim
To survive a motion to dismiss for failure to state a claim, a complaint must present factual allegations, assumed to be true, that "raise a right to relief above the speculative level," and must contain "enough facts to state a claim to relief that is plausible on its face."
The Supreme Court has explained the analysis as a two-step process. For the purposes of a motion to dismiss, the court "must take all the factual allegations in the complaint as true, [but] we `are not bound to accept as true a legal conclusion couched as a factual allegation.'"
A. Personal Jurisdiction
Federal courts follow state law "in determining the bounds of their jurisdiction over persons."
The due process analysis is comprised of two steps. First, the court must consider whether the defendant has such minimum contacts with the forum state "that he should reasonably anticipate being haled into court there."
1. Minimum Contacts
"Minimum contacts" can be established in one of two ways, either generally or specifically for lawsuits based on the forum-related activities:
Plaintiff alleges that Kimberling had minimum contacts with Kansas based on specific jurisdiction. Specific jurisdiction exists over a nonresident defendant "if the defendant has `purposefully directed' his activities at residents of the forum, and the litigation results from alleged injuries that `arise out of or relate to' those activities."
The specific jurisdiction inquiry "focuses on the relationship among the defendant, the forum, and the litigation."
Here, Plaintiff alleges specific, or "case-linked" jurisdiction,
The Court agrees that Plaintiff lacks competent proof that Kimberling personally transacted business in the State of Kansas. On a motion to dismiss for lack of personal jurisdiction, the Court does not accept allegations in the Complaint as true if they are controverted by affidavit. Here, Kimberling's affidavit controverts Plaintiff's assertion that he personally transacted business in Kansas. Kimberling states that he has never transacted business with or purchased fireworks from any distributor in Kansas.
But Plaintiff alleges that Sky Thunder purchases fireworks from a distributor in Kansas, which may be imputed to Kimberling as the sole member of the LLC. The Court agrees that if Kimberling was a primary participant in the alleged wrongdoing that forms the basis of this Court's jurisdiction, his actions on behalf of Sky Thunder may be sufficient to satisfy the minimum contacts requirement.
The Court next must determine whether Kimberling's purchase of fireworks from a Kansas distributor on behalf of Sky Thunder constitutes a substantial connection to the State of Kansas. The Court finds that it does on this record. Plaintiff alleges in the Complaint that Defendants market and sell infringing and counterfeit fireworks that they purchase from a distributor in Kansas. Therefore, Defendants purposefully directed their activities to the State of Kansas by purchasing fireworks here. And Plaintiff's claims arise out of those contacts because the fireworks they purchased in Kansas are the products that give rise to Plaintiff's claims of counterfeiting, trademark infringement, and unfair competition. Defendant has produced no evidence to controvert Plaintiff's allegations as to control, and as to Sky Thunder's purchase of allegedly infringing products from a Kansas distributor. The Court therefore finds that Plaintiff has demonstrated a prima facie case that Kimberling has minimum contacts with the State of Kansas.
Having determined that Defendant has the requisite minimum contacts, the Court must determine whether subjecting Defendant to jurisdiction in the forum state would offend traditional notions of fair play and substantial justice.
The balance of the factors weighs in favor of Plaintiff. Defendants are located in Indiana, within driving distance of Kansas City, Kansas. While defending this action in Kansas would certainly impose some burden, "defending a suit in a foreign jurisdiction is not as burdensome as in the past," so the Court finds that this factor weighs in favor of Plaintiff.
The Court finds that the second factor also weighs in favor of Plaintiff, as Kansas has an interest in resolving disputes involving residents of its state.
Third, the Court analyzes whether Plaintiff may receive convenient and effective relief in another forum. Although the Court is certain that Plaintiff could receive effective relief in another forum, litigating this action in Kansas is obviously more convenient for Plaintiff, given that it is a Kansas corporation. This factor weighs slightly in favor of Plaintiff.
The fourth factor considers the interstate judicial system's interest in obtaining the most efficient resolution of controversies. "The key points to consider when evaluating this factor are (1) the location of witnesses, (2) the location of the wrong underlying the lawsuit, (3) what forum's law applies, and (4) `whether jurisdiction is necessary to prevent piecemeal litigation.'"
As to the fifth factor—the shared interest of the several states in furthering fundamental social policies—nothing suggests that this is relevant in the instant case and therefore the Court does not address it.
Considering all the above factors and the minimum contacts in this case, the Court concludes Defendant has not established a compelling case that this Court's exercise of jurisdiction over Kimberling would offend traditional notions of fair play and substantial justice.
B. Failure to State a Claim
Finally, Kimberling argues that the claims against him must be dismissed for failure to state a claim because under Kansas law, he may not be held liable solely based on his status as a member or manager of Sky Thunder. Although the Kansas Revised Limited Liability Company Act generally provides that an LLC's corporate liabilities in tort are solely those of the LLC and that no member or manager may be liable solely based on their status as a member or manager,