10 Mtd Brief

Case: 8:09-cv-00131-JFB-FG3

Document #: 10

Date Filed: 04/30/2009

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

SHOEMONEY MEDIA GROUP, INC., Plaintiff, vs. KEYEN FARRELL and JOHN J. FARRELL, Defendants.

) ) ) ) ) ) ) ) )

CASE NO. 09-cv-00131

MEMORANDUM BRIEF IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(2)

Prepared and Submitted by: J. Scott Paul, #16635 Michaela A. Smith, #22737 McGrath, North, Mullin & Kratz, PC LLO First National Bank Tower, Suite 3700 1601 Dodge Street Omaha, NE 68102 (402)341-3070 (402)341-0216 (fax) [email protected] [email protected] ATTORNEYS FOR THE DEFENDANTS

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INTRODUCTION This Memorandum Brief is submitted in support of Defendants’ Motion to Dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(2). As demonstrated herein, the Defendants are not residents of Nebraska, they do not own real property in Nebraska and they do not own a business that is registered under the laws of this State. Furthermore, the negligible contact that the Defendants had with residents of Nebraska via the internet are not sufficient for personal jurisdiction to exist. In a case such as this, where Defendants have not purposely availed themselves of the privilege of conducting activities within Nebraska and they did not have fair warning that their activities might result in being hailed into court here, the Complaint should be dismissed for lack of personal jurisdiction. PROCEDURAL BACKGROUND Plaintiff filed this action in the District Court of Douglas County, Nebraska. Defendants timely removed the matter to federal court pursuant to 28 U.S.C. § 1446. This Court has original jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1338 because Plaintiff is alleging violations of the Lanham Act. STATEMENT OF FACTS Keyen Farrell is a resident of the State of New York. Index Exhibit A, ¶ 4. His father, John J. Farrell, is a resident of the State of Connecticut. Index Exhibit B, ¶ 4. The Farrells do not currently, nor have they ever, owned any real property located in Nebraska. Index Exhibit A, ¶ 7; Index Exhibit B, ¶ 7. Neither Keyen Farrell nor John J. Farrell (collectively “the Farrells”) have ever stepped foot in Nebraska. Index Exhibit A, ¶ 6; Index Exhibit B, ¶ 6. The Farrells do not maintain an office, employees, contractors, officers, directors, agents, or volunteers in Nebraska. Index Exhibit A, ¶ 9; Index Exhibit B, ¶ 9. Moreover, the Farrells do not currently, nor have they

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ever, owned a business that was incorporated under the laws of Nebraska. Index Exhibit A, ¶ 8; Index Exhibit B, ¶ 8. Keyen Farrell has been employed by Google, Inc. (“Google”) since September 17, 2007. Index Exhibit A, ¶ 10. At all times material hereto, he has been an Account Coordinator with Google. Index Exhibit A, ¶ 10. The allegations in the Complaint filed against the Farrells arise out of the Farrells’ use of an internet program owned and operated by Google called “AdWords.” Complaint ¶¶ 16, 22.1 Specifically, Plaintiff alleges that the Farrells wrongfully displayed the Plaintiff’s “Shoemoney” trademark in the text of their sponsored links through their Google “AdWords” account. Complaint ¶ 22. When internet users enter search terms in www.google.com, Google’s search engine displays advertisements of various entities that may be of interest to the internet user. Index Exhibit A, ¶ 11; Index Exhibit B, ¶ 10; Complaint ¶ 15. In conjunction with this, Google sells contextual advertising through a program called “AdWords.” Index Exhibit A, ¶ 11; Index Exhibit B, ¶ 10. “AdWords” allows advertisers to bid for their advertising hyperlink to appear above or next to Google search results when internet users enter specific search terms in a Google search. Index Exhibit A, ¶ 11; Index Exhibit B, ¶ 10; Complaint ¶ 16. An “AdWords” advertising hyperlink contains the text of an ad. Index Exhibit A, ¶ 12; Index Exhibit B, ¶ 11. If an internet user is interested, the user can click on the link, which takes the internet user to the advertiser’s website. Index Exhibit A, ¶ 12; Index Exhibit B, ¶ 11; Complaint ¶ 16. Keyen Farrell is the owner of the domain www.myincentivewebsite.com. Index Exhibit A, ¶ 13; Index Exhibit B, ¶ 12. On or about January 22, 2009, Keyen Farrell opened a Google “AdWords” account with the financial sponsorship of John J. Farrell and under the name John J. Farrell, for the purpose of advertising the website, www.myincentivewebsite.com. Index Exhibit A, 1

For reasons known only to the Plaintiff, Google has not been made a party to this action.

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¶ 16; Index Exhibit B, ¶ 13.

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Keyen Farrell had John J. Farrell’s permission to open the

“AdWords” account for this purpose. Index Exhibit B, ¶ 14. From January 30, 2009 to March 31, 2009, there were a total of eleven (11) “AdWords” visits to www.myincentivewebsite.com that originated from Nebraska that were a result of the term “shoemoney.” Index Exhibit A, ¶ 26. Of these ”AdWords” visits from Nebraska, zero (0) sales resulted. Index Exhibit A, ¶ 27. There have been a total of 85,256 “AdWords” visits to www.myincentivewebsite.com. Index Exhibit A, ¶ 29. Of these, 180 or 00.2% of the “AdWords” visits were from Nebraska. Index Exhibit A, ¶ 29. With respect to general traffic on www.myincentivewebsite.com, there were a total of 90,033 visits to the site, and of those, just 200 or 00.2% of the visits were from Nebraska. Index Exhibit A, ¶ 30. There have been a total of 675 sales on www.myincentivewebsite.com. Index Exhibit A, ¶ 31. Of these, three (3) sales were from Nebraska. Index Exhibit A, ¶ 31. None of these sales originated from use of the term “shoemoney.” Index Exhibit A, ¶ 31. The total revenue generated from the three (3) Nebraska sales was $61. Index Exhibit A, ¶ 32. This represents approximately

one

half

of

one

percent

of

the

total

revenue

generated

by

www.myincentivewebsite.com. Index Exhibit A, ¶ 32. STANDARD OF REVIEW Federal Rule of Civil Procedure 12(b)(2) provides that a defendant may move to dismiss a complaint for lack of personal jurisdiction. The plaintiff bears the burden to establish the court’s in personam jurisdiction. Epps v. Stewart Info. Servs. Corp., 327 F.3d 624, 646-47 (8th Cir. 2003). To withstand a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(2), “the plaintiff must state sufficient facts in the complaint to support a reasonable inference that defendant may

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be subjected to the jurisdiction of the foreign state.” Steinbuch v. Cutler, 518 F.3d 580, 585 (8th Cir. 2008) citing Dever v. Hentzen Coatings, Inc., 380 F.3d 1070, 1072 (8th Cir. 2004). The Plaintiff’s prima facie case “must be tested, not by the pleadings alone, but by the affidavits and exhibits presented with the motions and oppositions thereto.” Miller v. Nippon Carbon Co., Ltd., 528 F.3d 1087, 1090 (8th Cir. 2008) (internal quotations and citations omitted). LEGAL ARGUMENT I.

Legal Standards for Determining Whether Personal Jurisdiction Exists. A federal court may exercise jurisdiction “over a foreign defendant only to the extent

permitted by the forum state’s long-arm statute and by the Due Process Clause of the Constitution.” Dakota Indus. v. Ever Best Ltd., 28 F.3d 910, 915 (8th Cir. 1994) (citation omitted). Under Nebraska’s long-arm statute, a Court may exercise personal jurisdiction over a person who: (1) transacts any business in the state; (2) contracts to supply services or things in the state; (3) causes tortious injury by an act or omission in the state; (4) causes tortious injury in the state by an act or omission outside the state if the person regularly does or solicits business in the state; (5) has an interest in, using, or possessing real property in this state; or (6) contracting to insure any person, property, or risk located within this state at the time of contracting. See Neb. Rev. Stat. § 25-536. “Because Nebraska’s long-arm statute has been construed to permit jurisdiction to the extent of constitutional limits, the issue before this Court is whether the exercise of personal jurisdiction comports with due process.” Oriental Trading Co. v. Firetti, 236 F.3d 938, 943 (8th Cir. 2001). The Due Process Clause requires that “minimum contacts” exist between the nonresident defendant and the forum state before the court can exercise jurisdiction over the defendant. See World Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291, 100 S.Ct. 559 (1980). Sufficient

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contacts exist when the defendant’s conduct and connection with the forum state are such that he should reasonably anticipate being haled into court there, and when maintenance of the suit would not offend “traditional notions of fair play and substantial justice.” International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945); Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985). As demonstrated herein, the evidence shows that the Farrells did not purposely avail themselves of the privilege of conducting activities within Nebraska and they did not have fair warning that their activities might result in being haled into court here. Accordingly, the Complaint should be dismissed for lack of personal jurisdiction. II.

The Farrells Do Not Have Sufficient Minimum Contacts With Nebraska To Satisfy Constitutional Requirements Of Due Process. The Eighth Circuit has adopted a five-part test in evaluating whether a defendant’s

contacts in the forum state satisfy due process: “(1) the nature and quality of the contacts with the forum state; (2) the quantity of those contacts; (3) the relation of the cause of action to the contacts; (4) the interest of the forum state in providing a forum for its residents; and (5) the convenience of the parties.” Miller v. Nippon Carbon, 528 F.3d 1087 (8th Cir. 2008) citing Bell Paper Box, Inc. v. U.S. Kids, Inc., 22 F.3d 816, 818 (8th Cir. 1994). A.

The Nature And Quality Of The Farrell’s Contacts With Nebraska Are Not Sufficient For This Court to Exercise Personal Jurisdiction.

Keyen Farrell is a resident of the State of New York while John J. Farrell is a resident of the State of Connecticut. Index Exhibit A, ¶ 4; Index Exhibit B, ¶ 4. The Farrells do not currently, nor have they ever, owned any real property located in Nebraska. Index Exhibit A, ¶ 7; Index Exhibit B, ¶ 7. The Farrells do not maintain an office, employees, contractors, officers, directors, agents, or volunteers in Nebraska. Index Exhibit A, ¶ 9; Index Exhibit B, ¶ 9. Moreover, the Farrells do not currently, nor have they ever, owned a business that was incorporated under the laws of

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Nebraska. Index Exhibit A, ¶ 8; Index Exhibit B, ¶ 8. In Romeo Entertainment Group v. Shark, 8:08cv481 (D. Neb. March 20, 2009) (Judge Smith Camp), this Court found that a defendant’s one-time visit which was wholly unrelated to the alleged tortious interference claim made subject of the complaint was a “random, fortuitous, [and] attenuated” event that does not give rise to the requisite level of contacts necessary to satisfy the constitutional requirements of due process.” In this case, the Farrells’ contact with Nebraska is even less than in Romeo because the Farrells are non-resident Defendants who have never visited the State of Nebraska. Index Exhibit A, ¶ 6; Index Exhibit B, ¶ 6. Moreover, the Farrells have not targeted Nebraska residents through mailings, phone calls or otherwise. Index Exhibit A, ¶ 14. The only contact the Farrells have had with Nebraska residents has been on the internet. Index Exhibit A, ¶ 15. As is discussed at length herein, just 00.2% of visits to Keyen Farrell’s website, www.myincentivewebsite, originated from Nebraska. Index Exhibit A, ¶ 30. There have been a total of 675 sales on www.myincentivewebsite.com, and only three (3) of those sales were from Nebraska. Index Exhibit A, ¶ 31. The total revenue generated from the three (3) Nebraska sales was $61. Index Exhibit A, ¶ 32. This represents approximately

one

half

of

one

percent

of

the

total

revenue

generated

by

www.myincentivewebsite.com. Index Exhibit A, ¶ 32. Consequently, the nature and quality of the Farrells’ contacts with Nebraska are not sufficient for this Court to assert jurisdiction over the person of the Defendants. B.

The Quantity of the Farrell’s Contacts With Nebraska Do Not Demonstrate That The Farrells Have Purposefully Availed Themselves Of The Privilege Of Conducting Activities Within The State Of Nebraska.

The Farrells do not have ongoing contacts or activities within the State of Nebraska that establish personal jurisdiction. In Romeo, the plaintiff asserted that because the defendant

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distributed, on an ongoing basis, newsletters to people all across the country, including Nebraska, that was sufficient contact for personal jurisdiction purposes. This Court disagreed, finding that the defendant had not purposefully availed itself of the privilege of conducting its activities within Nebraska. As the Court in Romeo explained: While it is true that SHARK publishes a newsletter, SHARK mails this national newsletter to 1,426 addresses across the country; of those only five are in Nebraska. Similarly weak is Romeo’s contention that the donations SHARK has received from Nebraska residents should give rise to the requisite constitutional level of minimum contacts. ‘Since 1987, .087 percent of the donations, gifts, and bequest SHARK has received have originated from Nebraska. To conclude that SHARK must be subject to personal jurisdiction in Nebraska based on these contacts would offend the ‘traditional notions of fair play and substantial justice.’ The quantity of SHARK’s contacts with the forum state are de minims, at most. Romeo at 3 (internal citations omitted). Here, the Farrells’ contact with Nebraska residents is limited to contact on the internet. Index Exhibit A, ¶¶ 14, 15.

There have been a total of 85,256 “AdWords” visits to

www.myincentivewebsite.com.

Index Exhibit A, ¶ 29.

Of these, 180 or 00.2% of the

“AdWords” visits were from Nebraska. Index Exhibit A, ¶ 29. With respect to general traffic on www.myincentivewebsite.com, there were a total of 90,033 visits to the site, and of those, just 200 or 00.2% of the visits were from Nebraska. Index Exhibit A, ¶ 30. The evidence concerning sales on www.myincentivewebsite.com tells the same story – contact with Nebraska is minimal. The website has generated just three (3) sales from Nebraska, none of which originated from use of the term “shoemoney.” Index Exhibit A, ¶ 31. The total revenue generated from the three (3) Nebraska sales was $61. Index Exhibit A, ¶ 32. This represents approximately one half of one percent of the total revenue generated by www.myincentivewebsite.com. Index Exhibit A, ¶ 32. It is evident from the record before this

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Court that the quantity of the Farrell’s contacts with the forum state are so minimal that exercising personal jurisdiction in this case would offend “traditional notions of fair play and substantial justice.” International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). C.

The Plaintiffs Cannot Satisfy Its Burden To Show the Existence of General Jurisdiction or Specific Jurisdiction Over The Farrells.

With respect to the third factor, “[t]he Supreme Court has recognized two theories for evaluating personal jurisdiction: general and specific jurisdiction.” Steinbuch, 518 F.3d at 586 citing Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 414-415 (1984). In this case, the Plaintiff alleges that the Defendants are subject to personal jurisdiction in Nebraska because they purportedly “conduct business within the State of Nebraska, and because they directed their harm at ShoeMoney Media Group with the knowledge that such harm would be felt by ShoeMoney Media Group within the State of Nebraska. Complaint ¶ 5. With this, Plaintiff apparently contends that both specific jurisdiction and general jurisdiction exist with respect to the Farrells. As demonstrated below, Plaintiff is wrong on both accounts. 1.

The Farrells Are Not Subject To Specific Jurisdiction.

“Specific jurisdiction occurs when ‘the defendant has purposefully directed its activities at residents of the forum state’ and litigation results from alleged injuries arising out of or relating to those activities.” Steinbuch, 518 F.3d at 586. In this case, Plaintiff’s alleged injuries arise out of the Farrells’ use of an internet program owned and operated by Google called “AdWords.” Complaint ¶¶ 16, 22. Plaintiff contends that the Farrells wrongfully displayed the Plaintiff’s “Shoemoney” trademark in the text of their sponsored links through their Google “AdWords” account. Complaint ¶ 22.2

2

Google has a policy that it does not allow advertisers to use a registered trademark in the text of sponsored links. Index Exhibit A, ¶ 18; Index Exhibit B, ¶ 16. When a keyword is submitted for an “AdWords” account, the keyword is run through the Google system. Index Exhibit A, ¶ 18; Index Exhibit B, ¶ 16. If the keyword is a registered trademark, the

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In evaluating the question of whether activity on the internet should subject a defendant to specific personal jurisdiction, the Eighth Circuit Court of Appeals has adopted the framework set forth in Zippo Manufacturing Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119, 1124 (W.D. Pa. 1997). In Lakin v. Prudential Sec., Inc., 348 F.3d 704, 711 (8th Cir. 2003), the Eighth Circuit applied the Zippo “sliding scale” analysis to determine whether a defendant’s website subjected the defendant to specific personal jurisdiction: At one end of the spectrum are situations where a defendant clearly does business over the Internet. If the defendant enters into contracts with residents of a foreign jurisdiction that involve the knowing and repeated transmission of computer files over the Internet, personal jurisdiction is proper. At the opposite end are situations where a defendant has simply posted information on an Internet Web site which is accessible to users in foreign jurisdictions. A passive Web site that does little more than make information available to those who are interested in it is not grounds for the exercise [of] personal jurisdiction. The middle ground is occupied by interactive Web sites where a user can exchange information with the host computer. In these cases, the exercise of jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the Web site. Lakin at 710-711 (8th Cir. 2003) quoting Zippo, 952 F.Supp. at 1124.

Google system is supposed to prevent the trademark from appearing in the text of the ad. Index Exhibit A, ¶ 18; Index Exhibit B, ¶ 16. The Farrells relied upon this internal review at Google in establishing the “AdWords” account. Index Exhibit A, ¶ 19; Index Exhibit B, ¶ 17. However, Google’s internal review process failed to prevent the term “shoemoney” from appearing in the text of the ads associated with the “AdWords” account opened by the Farrells on January 22, 2009. Index Exhibit A, ¶ 20; Index Exhibit B, ¶ 18. Plaintiff’s Complaint acknowledges that Google’s internal review process has failed on prior occasions not involving the Farrells by alleging: “In the past, ShoeMoney Media Group has complained to Google about third parties using the “Shoemoney” mark in the text of their sponsored links.” Complaint ¶ 21. The Farrells did not take any action to circumvent federal law and/or Google policy to allow the SHOEMONEY mark to appear in the text of the sponsored links on the “AdWords” account. Index Exhibit A, ¶ 21; Index Exhibit B, ¶ 19. Furthermore, the Farrells have never accessed a Google account for Jeremy Schoemaker and/or Shoemoney Media Group, Inc. Index Exhibit A, ¶ 22; Index Exhibit B, ¶ 20. In fact, the Farrells had no knowledge of the existence of Shoemoney Media Group, Inc. or its trademark, SHOEMONEY, until March 31, 2009. Index Exhibit A, ¶¶ 17, 23; Index Exhibit B, ¶¶ 15, 21. The Farrells did not intend to infringe upon the SHOEMONEY trademark in any way. Index Exhibit A, ¶ 17; Index Exhibit B, ¶ 15.

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Google sells contextual advertising through a program called “AdWords.” Index Exhibit A, ¶ 11; Index Exhibit B, ¶ 10. When internet users enter search terms in www.google.com, Google’s search engine displays advertisements of various entities that may be of interest to the internet user. Index Exhibit A, ¶ 11; Index Exhibit B, ¶ 10; Complaint ¶ 15. “AdWords” allows advertisers such as the Farrells to bid for their advertising hyperlink to appear above or next to Google search results when internet users enter specific search terms in a Google search. Index Exhibit A, ¶ 11; Index Exhibit B, ¶ 10; Complaint ¶ 16. An “AdWords” advertising hyperlink contains the text of an ad. Index Exhibit A, ¶ 12; Index Exhibit B, ¶ 11. By opening an “AdWords” account, the Farrells simply posted information on an Internet Web site, www.google.com, which is accessible to users in foreign jurisdictions. Index Exhibit A, ¶ 12; Index Exhibit B, ¶ 11. According to the Plaintiff, internet users “were presented with a search results page showing multiple sponsored links, including the sponsored link purchased by the Farrell Defendants.” Complaint ¶ 25. The offending conduct at issue in this case that occurred by use of the “AdWords” account merely made information available to internet users. Index Exhibit A, ¶ 12; Index Exhibit B, ¶ 11; Complaint ¶ 16. With this, the AdWords advertising hyperlink at issue in this case is passive under the test adopted in Lakin, and it is therefore not grounds for the exercise of personal jurisdiction. Lakin at 710-711 (8th Cir. 2003). 2.

The Farrells Are Not Subject To General Jurisdiction.

“A state may exercise general jurisdiction if a defendant has carried on in the forum state a continuous and systematic, even if limited, part of its general business; in such circumstances the alleged injury need not have any connection with the forum state.” Steinbuch, 518 F.3d at 586. That said, for personal jurisdiction to exist, the plaintiff bears the burden to make a prima

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facie showing that the defendant’s contacts were not ‘random,’ fortuitous,’ or ‘attenuated.’ Id. citing Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 779 (1984). The Eighth Circuit has held that although it is important to consider the “nature and quality” of a website to determine whether it is interactive, does business, or is merely passive, the sliding scale analysis set forth in Zippo is not the sole factor for general jurisdiction purposes. As the Court in Lakin explained, Under the Zippo test, it is possible for a Web site to be very interactive, but to have no quantity of contacts. In other words, the contacts would be continuous, but not substantial. This is untenable in a general jurisdiction analysis. As one court has noted, the Zippo test ‘is not well adapted to the general jurisdiction inquiry, because even repeated contacts with forum residents by a foreign defendant may not constitute the requisite substantial, continuous and systematic contacts required for a finding of general jurisdiction . . .’ (citation omitted). As a result, we will first apply the Zippo test and then also look at the quantity of those contacts with [the forum state’s] residents. Lakin at 712. The analysis set forth above with respect to specific jurisdiction persuasively proves that the Defendants’ alleged advertisements on www.google.com were passive and do not provide a valid basis for the exercise of personal jurisdiction under the Zippo test. Moreover, a review of the facts relating to the quantity of contacts that the Farrells had with Nebraska further confirms that general jurisdiction does not exist either. Notably, there have been a total of 85,256 AdWords visits to www.myincentivewebsite.com. Index Exhibit A, ¶ 29. Of these, 180 or 00.2% of the AdWords visits were from Nebraska. Index Exhibit A, ¶ 29. From January 30, 2009 to March 31, 2009, the term “shoemoney” was a keyword on the Farrells’ “AdWords” account with Google. Index Exhibit A, ¶ 23. Plaintiff claims that on an average, Plaintiff’s website, www.shoemoney.com receives approximately 30,000 unique visitors each day. Complaint ¶ 12. According to the Plaintiff’s own estimations, during the sixty-one (61) day period from January 30, 2009 to March 31, 2009, Plaintiff’s site, www.shoemoney.com, 11

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received 1,830,000 unique visitors. It is significant to note that during this period of time, there were

a

grand

total

of

eleven

(11)

AdWords

visits

to

Keyen

Farrell’s

site,

www.myincentivewebsite.com, from Nebraska that were a result of use of the term “shoemoney.” Index Exhibit A, ¶ 26. Furthermore, there have been a total of 675 sales on www.myincentivewebsite.com. Index Exhibit A, ¶ 31. Of these, only three (3) sales were from Nebraska. Index Exhibit A, ¶ 31. Again, none of these sales originated from use of the term “shoemoney.” Index Exhibit A, ¶ 31. The total revenue generated from the three (3) Nebraska sales was $61. Index Exhibit A, ¶ 32. This represents approximately one half of one percent of the total revenue generated by www.myincentivewebsite.com. Index Exhibit A, ¶ 32. Accordingly, the Plaintiff cannot sustain its burden to prove that personal jurisdiction exists in this case. D.

Nebraska Has A Minimal Interest In Providing A Forum For Plaintiff’s Action.

The Eighth Circuit has acknowledged that “[e]ven if the minimum contacts threshold is established, personal jurisdiction may be defeated if its exercise would be unreasonable considering such factors as the burden on the defendant.” St. Jude Med., Inc. v. Lifecare Intern., Inc., 250 F.3d 587, 591 (8th Cir. 2001). Although Nebraska may have an interest in providing a forum for its resident corporation, ShoeMoney Media Group, that interest does not overcome the substantial inconvenience for the parties to litigate in Nebraska. Essentially all the witnesses and documents concerning this dispute are located in New York or Connecticut. Index Exhibit A, ¶4; Index Exhibit B, ¶ 4. The inconvenience to the parties and their witnesses in this case weighs in favor of a finding that personal jurisdiction does not exist in Nebraska. See e.g. Miller, 528 F.3d at 1092 (“The inconvenience to the parties and their witnesses, under the facts of this case,

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is a factor that militates against [the plaintiff] for purposes of establishing personal jurisdiction over [the defendant].”). E.

Requiring The Farrells To Defend This Lawsuit In Nebraska Would Be An Undue Burden

Requiring the Farrells to defend a lawsuit in Nebraska would be an undue burden. The Defendants are a father and son who have been sued in their individual capacity in Nebraska, a state in which they have never lived or visited. Index Exhibit A, ¶¶ 5, 6; Index Exhibit B, ¶¶ 5, 6. Keyen Farrell resides in the State of New York while John J. Farrell resides in Connecticut. Index Exhibit A, ¶ 4; Index Exhibit B, ¶ 4. Any interest Nebraska may have in this litigation is outweighed by the undue burden that would be imposed on the Farrells if they were required to litigate in this forum. CONCLUSION For the foregoing reasons, the Defendants respectfully request that their Motion to Dismiss for lack of personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2) be granted and that the Complaint be dismissed, along with all other relief this Court deems just.

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DATED this 30th day of April, 2009. Respectfully submitted, KEYEN FARRELL and JOHN J. FARRELL, Defendants

By:

/s/ Michaela A. Smith J. Scott Paul, #16635 Michaela A. Smith, #22737 McGrath, North, Mullin & Kratz, PC LLO First National Bank Tower, Suite 3700 1601 Dodge Street Omaha, NE 68102 (402)341-3070 (402)341-0216 (fax) [email protected] [email protected] ATTORNEYS FOR THE DEFENDANTS

CERTIFICATE OF SERVICE The undersigned hereby certifies that on the 30th day of April, 2008, I electronically filed the above foregoing document with the Clerk of the Court using the CM/ECF system which sent notification of such filing to the following: Troy F. Meyerson Patrick S. Cooper Fraser Stryker PC LLO 500 Energy Plaza 409 South 17th Street Omaha, NE 68102-2663 (402)341-6000

/s/ Michaela A. Smith

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