United States District Court, D. Maine
ORDER ON MOTION TO DISMISS FOR LACK OF
Brock Hornby United States District Judge.
issue here is whether a federal court in Maine has
jurisdiction over a German company. The German company, named
Scrutinizer GmbH, has no physical presence in the United
States, but it offers cloud-based services from an
interactive website that attracts customers from around the
world, including the United States (and two customers from
Maine). A Maine firm, Plixer International, Inc. owns the
U.S. registered mark “Scrutinizer.” Plixer has
filed this lawsuit claiming that the German defendant is
infringing its registered mark by operating an interactive
website using the name “Scrutinizer, ” providing
services similar to the plaintiff's, generating income
from customers in the United States, confusing the public,
and diluting and infringing the mark. Am. Compl. ¶¶
14-18; Pl. Opp'n at 1, (ECF No. 14). The German defendant
has moved to dismiss. I previously dismissed by agreement any
general jurisdiction claim. Order on Pending Motions at 1
(ECF No. 20). I also permitted limited discovery on the
plaintiff's specific jurisdiction claim with reference to
what is sometimes called the federal long-arm statute,
Fed.R.Civ.P. 4(k)(2); see United States v. Swiss Am.
Bank, Ltd., 274 F.3d 610, 618 (1st Cir. 2001).
Id. at 1-2. After that discovery and further
briefing, I now Deny the defendant's
motion to dismiss the complaint, concluding that upon a prima
facie record, the federal long-arm statute provides specific
jurisdiction. It is a close call, however, and worthy of
appellate review since the First Circuit has not addressed
the issue of personal jurisdiction based solely upon an
interactive website that offers cloud-based services, and the
Supreme Court has never addressed 4(k)(2). See Sinochem
Intern. Co. Ltd. v. Malaysia Intern Shipping Corp., 549
U.S. 422, 427 (2007) (mentioning 4(k)(2)'s role in
case's procedural history but not discussing its
the First Circuit's “prima facie review”
standard for determining personal jurisdiction, I accept the
specific facts that the plaintiff alleges so far as evidence
supports them after preliminary discovery. I also accept the
facts the defendant offers to the extent that they are
uncontradicted. See Cossaboon v. Maine Med. Ctr.,
600 F.3d 25, 31 (1st Cir. 2010).
original legal memorandum resisting the defendant's
motion to dismiss, the plaintiff offered the following facts
to demonstrate that the German defendant purposefully availed
itself of the Maine or United States market beyond the
undisputed existence of the interactive website.
1. The defendant has two customers in Maine.
2. Its website is in English.
3. The website offers users the option to start a 14-day free
4. The website says that the defendant's service is
“Trusted by over 5000 projects and companies around the
5. The defendant uses websites based in the United States in
connection with its business.
Opp'n. at 5-6. These assertions are supported by the
evidence for purposes of this motion, with the clarification
that the evidentiary support for #5 is that in providing its
services, the defendant uses other data-tracking companies
that use or may use servers located in the United States.
See Exs. to Decl. of James G. Goggin, Esq. (ECF No.
result of the permitted limited discovery, the plaintiff now
adds the following:
6. Over 3-1/2 years, the defendant had 156 United States
sales transactions totaling about €165, 212.07 (c. $195,
477.54) in about 60% of the states.
7. In January 2017, the defendant filed an application for a
U.S. trademark for “Scrutinizer.” Pl. Suppl. Mem.
at 1-2 (ECF No. 26).
defendant offers the following facts, and they are
1. The defendant is not incorporated in Maine, does not aim
its services at the Maine market, and has no employee contact
in Maine. Def. Suppl. Mem. at 1-2 (ECF No. 27).
2. It does not direct advertising towards the United States.
Def. Reply Mem. at 2 (ECF No. 17).
3. No employee of the defendant has ever been in the United
4. It has no offices in the United States nor does it own
property here. Id.
5. It has no U.S. phone number or agent for service of
6. It does not maintain servers here. Id.
7. Its website accepts payment only in euros. Id.
facts in the parties' legal memoranda tell me little
about what it is that the defendant actually does.
But I am able to glean the following from the record about
how the defendant's service and website operate:
1. The defendant is an information-technology company that
provides its customers with a “self-service
platform” to help the customers build better
software. Its customers use the defendant's
self-service platform to improve source code the customers
themselves have developed. The platform is “designed to
improve source-code quality, eliminate bugs, and find
security vulnerabilities in [the customers']
source-codes.” It “provides a controlled cloud
environment in which customers can run open-source and
proprietary software analysis tools and their own automated
tests.” The defendant then “aggregates and
refines the output . . . and presents it to the customer via
its website.” Schmitt Decl. at 1 (ECF No.12-1).
2. A customer must provide the defendant with the log-in
credentials to the customer's third-party hosting
account. When the customer then logs in to the
defendant's website, the defendant's service can
access the customer's third-party account. Ex. A to Def.
Reply Mem. at 1 (ECF No. 17-2).
3. The defendant's service “retrieve[s]” the
customer's software hosted by the third-party account in
order to analyze the software. Id. at 2.
4. Customers must open an account with the defendant and pay
for a subscription to use the services. Id.
5. The defendant emails invoices for its services, and
customers must pay “using the payment methods provided
by the defendant and chosen by the customer on his