Kennelsource, Inc. v. Barking Hound Village, LLC, No. 05 C 1788, 2006 WL 2578975 (N.D. Ill. Sept. 5, 2006) (Grady, J.)

Judge Grady dismissed plaintiff’s complaint with prejudice for lack of personal jurisdiction.  Plaintiff alleged that defendants, several Georgia and Texas entities and individuals, worked together or at each other’s direction to steal plaintiff’s pet-care business management software and to infringe plaintiff’s copyrights for the software.

Plaintiff claimed that individual defendant McCall received a trial version of plaintiff’s software at the direction of the other defendants.  The other defendants then allegedly worked together to copy the software and to sell it.  Defendants countered with affidavits showing that McCall stopped working for defendants the day before McCall received plaintiff’s trial software.  Defendants further argued that 1) they never offered the allegedly copied software for sale, and 2) no defendant had any contacts with Illinois except for McCall, who allegedly requested and received plaintiff’s trial software. 

The Court held that it lacked personal jurisdiction and dismissed all defendants except McCall. Because plaintiff had not located McCall, and because she neither appeared before the Court nor joined in the motion to dismiss, McCall had not joined in the motion to dismiss or presented any evidence that she lacked sufficient minimum contacts with the state of Illinois.

The Court denied Plaintiff’s subsequent request for leave to amend the Complaint pursuant to Rule 15(a), and dismissed the case with prejudice as to all defendants except McCall.  The Court ruled that plaintiff failed to show how it would amend the complaint if granted leave, and failed to explain why, if such facts existed, plaintiff did not present them in response to defendants’ motion to dismiss.

Practice tip: when seeking leave to amend pursuant to Rule 15 explain the basis for your request, attach a proposed amended complaint that includes the new facts, and justify any failure to include that information in the initial papers. And when faced with a credible jurisdictional challenge, consider including an amended complaint with your responsive papers.