E-mail marketing is a sufficient contact for personal jurisdiction in Delaware
Farnan, J. Court denies Defendant’s motion to dismiss and transfer venue and holds that jurisdiction and venue are proper where the company targeted sales of allegedly infringing product to Delaware residents as part of national e-mail campaign.
Plaintiff (TTI) is a Delaware corporation with its principal place of business in Wilmington. TTI develops and licenses dermatological pharmaceutical and skin care product technology and is the owner of several patents regarding an alpha hyroxyacid skin treatment. TTI alleges infringement of five patents-in-suit against Defendant (“Emulgen”) – an Illinois corporation with its principal place of business in Des Plaines. Emulgen manufactures, distributes and sells certain skin care products including a product known as Liftvisage. Emulgen does not maintain any offices or own any real or personal property in Delaware. Nor does it employ any persons in Delaware. However, based on an internet campaign, Emulgen received and filled orders from approximately four Delaware residents. Furthermore, Liftvisage is currently available through an interactive website which is not limited geographically.
Considering only facts under a specific jurisdiction analysis, the Court applied the Delaware Long Arm Statute and the requirement of Due Process to find jurisdiction was proper. Specifically the Court applied 10 Del.C. § 3104 (c) (3) which requires that an act be committed in Delaware, and that the injury occur in Delaware. The Court found that Emulgen’s use of the internet as a marketing tool and its decision to contract with a third-party to market its product through a nationwide e-mail broadcast were sufficient to establish specific jurisdiction, particularly in light of the Delaware Supreme Court’s decision that Delaware’s long arm statute should be applied to provide residents a means of redress. Similarly, the Court found that the requirements of Due Process are met where Emulgen purposefully directed its activities to Delaware residents through its e-mail campaign and it’s forum-related conduct forms the basis of the injuries alleged by TTI.
Finally, the Court concluded that the public and private interest factors outlined in Jumara v. State Farm Ins. Co., 55 F.3d 873 (3d Cir. 1995) do not weigh in favor of transfer particularly where the Court is familiar with the subject matter of this lawsuit through prior litigation and defendant does not argue that witnesses would be unavailable due to venue choice.
A full copy of this opinion is available here.
