IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

PATHFINDER SOFTWARE, LLC,
Plaintiff,
v.
CORE CASHLESS, LLC,
Defendant.

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1:14-cv-633

MEMORANDUM OPINION AND ORDER

LORETTA C. BIGGS, District Judge.
Plaintiff Pathfinder Software, LLC (Pathfinder) brings this action against
Defendant Core Cashless, LLC (Core Cashless), alleging common law trademark
infringement; false designation of origin in violation of the Lanham Act, 15 U.S.C. 1125(a)
(2012); and unfair and deceptive trade practices in violation of state statutes, N.C. Gen. Stat.
75-1.1 (2015). (Compl. 912, ECF No. 1.) Before the Court are (1) Core Cashless Motion
to Dismiss for lack of personal jurisdiction and for improper venue, pursuant to Rules
12(b)(2) and 12(b)(3) of the Federal Rules of Civil Procedure (ECF No. 10) and (2) Core
Cashless Motion Asking the Court to Disregard Plaintiffs Brief in Surreply (ECF No. 20).
The Court heard oral argument on August 5, 2015. For the reasons below, the Court grants
both motions.1

Also before the Court is Core Cashless Consent Motion for Extension of Time to File Reply in
Support of Motion to Dismiss for Lack of Personal Jurisdiction and Improper Venue (ECF No. 17).
Because Core Cashless has already filed its reply, the Court grants this motion retroactively and
considers Core Cashless reply to be timely. See Melvin v. Soc. Sec. Admin., No. 5:09-CV-235-FL,
2010 WL 3984607, at *1 n.1 (E.D.N.C. Oct. 8, 2010).

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I.

BACKGROUND
Pathfinder, a North Carolina company, provides specialty software products and

cashless payment systems for amusement, leisure, and entertainment industries in North
Carolina and around the world. (Compl. 2, 6, ECF No. 1.) Core Cashless, a Kansas
company, also provides software and cashless payment systems for the amusement and
recreation industries. (Id. 3, 17.) Its products include a mobile application that allows
smartphone users to save admission tickets for entertainment venues on their phones.
(Def.s Reply 4, ECF No. 18.) The application is available to download through GooglePlay,
the official application store for Android smartphones and tablets. (Id.) At least three
North Carolina residents have downloaded the application. (Pl.s Oppn 5, ECF No. 15.)
The application, however, is not compatible with any entertainment venue in North
Carolina, as none use the Core Cashless system. (Def.s Reply 4 n.1, ECF No. 18.)
Core Cashless operates as a limited liability company in Kansas, with its principal
place of business in Kansas. (Owen Decl. 3, ECF No. 11-1.) It is not registered to do
business in North Carolina and has no offices, bank accounts, real estate, or personal
property in the state. (Id. 69.) No Core Cashless employees or agents live or work in
North Carolina, and none have traveled to North Carolina on business. (Id. 1011.)
Core Cashless does, however, have one customer in North Carolina: the Billy Graham
Evangelistic Associations Billy Graham Library (Library). (Def.s Mem. 6, ECF No. 11.)
Through a service contract, Core Cashless provides software support to the Library for
$7,000 per year. (Id.; Owen Decl. 1617, ECF No. 11-1.) Core Cashless customers also
include a water park in Georgia that is owned by a North Carolina company, BPR

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Properties. (See Press Release, ECF No. 15-2; Def.s Reply 3, ECF No. 18.) In 2014, Core
Cashless issued a press release announcing that it had partner[ed] up with North Carolina
based BPR Properties to provide software systems for the Georgia water park. (Press
Release, ECF No. 15-2.) Core Cashless published the press release on its website and posted
links to the press release on its Facebook and Twitter pages. (See id.; Facebook Post, ECF
No. 15-9; Twitter Post, ECF No. 15-10.)
Core Cashless maintains a website that explains the companys history and how
cashless payment systems work. (Owen Decl. 1920, ECF No. 11-1.) Through a feature
called Contact CORE Today, visitors can submit an inquiry, along with their name and
contact information, directly through the website. (Id. 21; see Website Pages, ECF No. 1512.) After a visitor submits an inquiry, a Core Cashless representative follows up through
email. (Pl.s Oppn 15, ECF No. 15; see Fitzgerald Decl. 45; ECF No. 15-3.) At least
one North Carolina resident has submitted an inquiry through Core Cashless website and
engaged in follow-up discussions with a Core Cashless representative. (See Fitzgerald Decl.
47; ECF No. 15-3.) Another website feature allows visitors to view demonstrations of
Core Cashless product and complete a mock transaction, using a test credit card, for the
purpose of testing the product. (Pl.s Oppn 14, ECF No. 15.) Visitors cannot make
purchases through the website. (Owen Decl. 22, ECF No. 11-1.)
Pathfinder, in 2010, developed and introduced a logo known as the Circular Path
Mark, which it uses for all of its services, customer interactions, and advertising. (Compl.
10, ECF No. 1.) Core Cashless, until 2013, used a rectangular mark on its goods and
services. (Id. 18.) Around early 2013, it introduced a circular mark, along with a marketing

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campaign featuring the mark. (Id. 2021.) Around November 2013, Core Cashless
introduced a second circular mark for its mobile application. (Id. 24.) This lawsuit arises
out of the alleged similarities between Pathfinders Circular Path Mark and Core Cashless
two circular marks. Core Cashless has filed a Motion to Dismiss for lack of personal
jurisdiction and for improper venue, as well as a Motion Asking the Court to Disregard
Plaintiffs Brief in Surreply.
II.

MOTION TO DISREGARD SURREPLY

Following the ordinary course of briefing on Core Cashless Motion to Dismiss,

Pathfinder filed a surreply (ECF No. 19), prompting Core Cashless to file a Motion Asking
the Court to Disregard Plaintiffs Brief in Surreply. Though the Local Rules do not expressly
prohibit surreplies, [a] surreply is not generally allowed under this districts Local Rules.
Luna-Reyes v. RFI Constr., LLC, 57 F. Supp. 3d 495, 498 (M.D.N.C. 2014) (citing L.R. 7.3).
Generally, courts allow a party to file a surreply only when fairness dictates based on new
arguments raised in the previous reply. Fulk v. Norfolk S. Ry. Co., 35 F. Supp. 3d 749, 751
n.1 (M.D.N.C. 2014) (quoting DiPaulo v. Potter, 733 F. Supp. 2d 666, 670 (M.D.N.C.
2010)). Absent new arguments, a surreply is unnecessary. Adefila v. Select Specialty
Hosp., 28 F. Supp. 3d 517, 522 n.3 (M.D.N.C. 2014).
Here, Core Cashless raises no new arguments in its reply. Pathfinder does not
contend otherwise, arguing instead that a surreply is necessary in fairness . . . to correct . . .
factual errors and legal errors in Core Cashless reply. (Pl.s Surreply Oppn 1, ECF
No. 21.) Pathfinders surreply, however, does not correct any statements of fact or law in
Core Cashless reply; rather, it presents legal arguments couched as corrections.

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Accordingly, the Court grants Core Cashless Motion Asking the Court to Disregard
Plaintiffs Brief in Surreply and will not consider Pathfinders surreply when evaluating Core
Cashless Motion to Dismiss.
III.

MOTION TO DISMISS
Core Cashless moves to dismiss this action for lack of personal jurisdiction, pursuant

to Rule 12(b)(2), and improper venue, pursuant to Rule 12(b)(3). Because the Court
concludes that it lacks personal jurisdiction over Core Cashless, it will not evaluate whether
venue in this district is proper.
A. Personal Jurisdiction Standard
On a personal jurisdiction challenge, the plaintiff bears the burden of ultimately
proving personal jurisdiction by a preponderance of the evidence. Carefirst of Md., Inc. v.
Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 396 (4th Cir. 2003). When, however, as here,
the court decides a pretrial personal jurisdiction motion without conducting an evidentiary
hearingrelying instead on the motion papers, supporting legal memoranda, and allegations
in the complaint2the plaintiff need only make a prima facie showing of personal
jurisdiction. See id.; Consulting Engrs Corp. v. Geometric Ltd., 561 F.3d 273, 276 (4th Cir.
2009). [A] plaintiff makes a prima facie showing of personal jurisdiction by presenting facts
that, if true, would support jurisdiction over the defendant. Universal Leather, LLC v.
Koro AR, S.A., 773 F.3d 553, 561 (4th Cir. 2014) (citing Mattel, Inc. v. Greiner & Hausser
GmbH, 354 F.3d 857, 862 (9th Cir. 2003)). However, a threshold prima facie finding of
2

The Court may also consider supporting affidavits. Wright v. Zacky & Sons Poultry, LLC, No.
1:14cv570, 2015 WL 2357430, at *1 n.1 (M.D.N.C. May 15, 2015) (citing Universal Leather, LLC v.
Koro AR, S.A., 773 F.3d 553, 558 (4th Cir. 2014)).

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jurisdiction does not settle the issue, as the plaintiff must eventually prove the existence of
personal jurisdiction by a preponderance of the evidence, either at trial or at a pretrial
evidentiary hearing. New Wellington Fin. Corp. v. Flagship Resort Dev. Corp., 416 F.3d
290, 294 n.5 (4th Cir. 2005).
When considering whether the plaintiff has made a prima facie showing of
jurisdiction, the court must construe all relevant pleading allegations in the light most
favorable to the plaintiff, assume credibility, and draw the most favorable inferences for the
existence of jurisdiction. Universal Leather, 773 F.3d at 558 (quoting Combs v. Bakker,
886 F.2d 673, 676 (4th Cir. 1989)). Allegations of the complaint are taken as true, however,
only if they are not controverted by evidence from the defendant. Vision Motor Cars, Inc.
v. Valor Motor Co., 981 F. Supp. 2d 464, 468 (M.D.N.C. 2013). Once a defendant presents
evidence indicating that the requisite minimum contacts do not exist, the plaintiff must come
forward with affidavits or other evidence in support of its position. Id. When both sides
present evidence, the court must resolve factual conflicts in favor of the plaintiff for the
limited purpose of determining whether it has made a prima facie showing of jurisdiction.
Id.
A federal district court can exercise personal jurisdiction over a nonresident
defendant only if (1) such jurisdiction is authorized by the long-arm statute of the state in
which the district court sits; and (2) application of the relevant long-arm statute is consistent
with the Due Process Clause of the Fourteenth Amendment. Universal Leather, 773 F.3d
at 558. North Carolinas long-arm statute permits the exercise of personal jurisdiction . . .
to the outer limits allowable under federal due process. Id. (citing N.C. Gen. Stat.

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 1-75.4(1)(d); Dillon v. Numismatic Funding Corp., 231 S.E.2d 629, 630 (N.C. 1977)). The
two-prong test therefore merges into a single question when North Carolina is the forum
state, allowing the court to proceed directly to the constitutional analysis. See Universal
Leather, 773 F.3d at 55859; ESAB Grp., Inc. v. Zurich Ins. PLC, 685 F.3d 376, 391 (4th
Cir. 2012).
Under the Due Process Clause of the Fourteenth Amendment, two paths permit a
court to exercise personal jurisdiction over a nonresident defendant. Universal Leather, 773
F.3d at 559. One path is general jurisdiction, which permits a court to assert jurisdiction
over a defendant based on a forum connection unrelated to the underlying suit. Walden v.
Fiore, 134 S. Ct. 1115, 1121 n.6 (2014). The other path is specific jurisdiction, which
depends on an affiliatio[n] between the forum and the underlying controversy. Id.
(alteration in original) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S.
Ct. 2846 (2011)).
Courts can exercise general jurisdiction over a nonresident corporation only when the
corporations affiliations with the State are so continuous and systematic as to render [it]
essentially at home in the forum State. Goodyear, 131 S. Ct. at 2851. The Supreme Court
has not foreclose[d] the possibility that in an exceptional case, a corporations operations in
a forum other than its formal place of incorporation or principal place of business may be so
substantial and of such a nature as to render the corporation at home in that State. Daimler
AG v. Bauman, 134 S. Ct. 746, 761 n.19 (2014) (citation omitted).
As for specific jurisdiction, courts employ a three-prong test to determine whether
the exercise of specific jurisdiction comports with the requirements of due process.

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Universal Leather, 773 F.3d at 559. Courts consider (1) the extent to which the defendant
purposefully availed itself of the privilege of conducting activities in the forum state;
(2) whether the plaintiffs claims [arose] out of those activities; and (3) whether the exercise
of personal jurisdiction is constitutionally reasonable. Id. (alteration in original) (quoting
Tire Engg & Distribution, LLC v. Shandong Linglong Rubber Co., 682 F.3d 292, 302 (4th
Cir. 2012)).
The first prong, purposeful availment, is rooted in the concept of minimum contacts
and contemplates whether the defendants conduct and connection with the forum [s]tate
are such that he should reasonably anticipate being haled into court there. Id. (alteration in
original) (quoting Fed. Ins. Co. v. Lake Shore Inc., 886 F.2d 654, 658 (4th Cir. 1989)). This
analysis is flexible and involves a case-by-case consideration of several factors. Id. at 560
(quoting Tire Engineering, 682 F.3d at 302). In the business context, those factors include
but are not limited to:
(1) whether the defendant maintains offices or agents in the forum
state; (2) whether the defendant owns property in the forum state;
(3) whether the defendant reached into the forum state to solicit or
initiate business; (4) whether the defendant deliberately engaged in
significant or long-term business activities in the forum state;
(5) whether the parties contractually agreed that the law of the forum
state would govern disputes; (6) whether the defendant made inperson contact with the resident of the forum in the forum state
regarding the business relationship; (7) the nature, quality and extent
of the parties communications about the business being transacted;
and (8) whether the performance of contractual duties was to occur
within the forum.
Id. (quoting Consulting Engineers, 561 F.3d at 278). Relevant to the analysis is the quality
and nature of the defendants connections, rather than the number of contacts between the
defendant and the forum state. Tire Engineering, 682 F.3d at 301. The relationship between
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the defendant, the forum state, and the litigation must arise out of contacts that the
defendant himself creates with the forum State. Walden, 134 S. Ct. at 1122 (quoting Burger
King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985)). The defendant cannot be haled into a
jurisdiction solely as a result of random, fortuitous, or attenuated contacts or of the
unilateral activity of another party or a third person. Burger King, 471 U.S. at 475
(citations omitted) (quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774 (1984);
Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 417 (1984)). Only if the
court finds that the plaintiff has satisfied the purposeful availment prong does the court need
to consider the remaining prongs of the specific jurisdiction test. Consulting Engineers, 561
F.3d at 278.
B. Analysis
Pathfinder contends that Core Cashless is subject to both general jurisdiction and
specific jurisdiction in North Carolina. (Pl.s Oppn 1819, ECF No. 15.) As to general
jurisdiction, the Court finds that Core Cashless is not essentially at home in North
Carolina. See Goodyear, 131 S. Ct. at 2851. Core Cashless is not incorporated in North
Carolina and does not maintain its principal place of business in North Carolina. (See
Compl. 3, ECF No. 1.) This case also does not present an exceptional circumstance where
Core Cashless could be deemed essentially at home in North Carolina despite these facts.
See Daimler, 134 S. Ct. at 761 n.19. Pathfinder has presented no argument to the contrary.
The Court therefore lacks general jurisdiction over Core Cashless and proceeds to an
analysis of specific jurisdiction.

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To make a prima facie showing of a basis for specific jurisdiction, Pathfinder must
first demonstrate that Core Cashless has purposefully availed itself of the privilege of
conducting activities in North Carolina. See Universal Leather, 773 F.3d at 559. Pathfinder
argues that Core Cashless has made sufficient minimum contacts with North Carolina by
providing software support to the Library, partnering with North Carolina-based BPR
Properties to provide software systems to a water park in Georgia, maintaining a website that
allows North Carolina residents to contact Core Cashless, and offering a mobile application
that at least three North Carolina residents have downloaded. (See Pl.s Oppn 46, ECF
No. 15.) Pathfinder further argues that the exercise of specific jurisdiction in North Carolina
is proper because Core Cashless alleged infringement had the effect of injuring Pathfinder
in North Carolina. (Id. at 16.)
Turning first to Core Cashless contract with the Library, the Court finds that the
quality and nature of the contract is insufficient to subject Core Cashless to specific
jurisdiction in North Carolina. A contract with an in-state entity does not automatically
establish minimum contacts with the forum state. See Burger King, 471 U.S. at 478 (If the
question is whether an individuals contract with an out-of-state party alone can automatically
establish sufficient minimum contacts in the other partys home forum, we believe the
answer clearly is that it cannot.). Rather, [i]t is essential that the contract . . . have a
substantial connection with the forum state. Chung v. NANA Dev. Corp., 783 F.2d 1124,
1128 (4th Cir. 1986) (quoting McGee v. Intl Life Ins. Co., 355 U.S. 220, 223 (1957)). The
Supreme Court has recognized that a contract is ordinarily but an intermediate step serving
to tie up prior business negotiations with future consequences which themselves are the real

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object of the business transaction. Burger King, 471 U.S. at 479 (quoting Hoopeston
Canning Co. v. Cullen, 318 U.S. 313, 31617 (1943)). A court must therefore evaluate prior
negotiations and contemplated future consequences, along with the terms of the contract
and the parties actual course of dealing when determining whether a defendant has
purposefully established minimum contacts through the contract. Id.
Core Cashless contract with the Library does not envision substantial or widereaching contacts with North Carolina. While Core Cashless provides software support to
the Library each year, Core Cashless employees have never traveled to North Carolina or
made in-person contact with any North Carolina resident regarding the contract. See (Owen
Decl. 1011, ECF No. 11-1); Universal Leather, 773 F.3d at 560 (including in-person
contact with the resident of the forum in the forum state regarding the business
relationship as a factor in the purposeful availment analysis). The $7,000 revenue that Core
Cashless derives from the contract makes up a minimal portion of its annual revenue; in
2013, it amounted to only 0.13% of Core Cashless $5.2 million revenue. (See Owen Decl.
17, 25, ECF No. 11-1.) Further, Core Cashless has never sought to increase or expand its
relationship with the Library. (Id. 18.) Pathfinder has also not alleged that Core Cashless
and the Library engaged in prior contract negotiations in North Carolina. Based on these
considerations, the Court is unable to find a substantial connection between the contract and
North Carolina and does not believe Core Cashless should reasonably anticipate being
haled into court in North Carolina as a result of its contract with the Library. See Universal
Leather, 773 F.3d at 559.

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Core Cashless relationship with BPR Properties is likewise insufficient to support the
exercise of specific jurisdiction. The relationship is announced in the opening line of Core
Cashless press release: CORE Cashless continues it[s] recent success by partnering up with
North Carolina based BPR Properties . . . to provide a variety of cashless solutions for the
brand new Pooler Water Park, located in Savanna[h], GA. (Press Release, ECF No. 15-2.)
Based on this press release, Pathfinder argues that Core Cashless has promoted and
advertised its work with BPR Properties. (Pl.s Oppn 45, ECF No. 15.) At oral
argument, Pathfinder characterized the press release as saying, Hey, North Carolina folks,
were here for you, and, Weve already got a presence in North Carolina. Come join us
here. The Court does not interpret the reference to North Carolina in the press release as
an invitation for North Carolina residents to engage in business with Core Cashless but
rather interprets it as simply a statement of the fact that BPR Properties is based in North
Carolina. This statement is insufficient to subject Core Cashless to jurisdiction in North
Carolina because a defendant does not forge a purposeful connection with a state merely by
mentioning the state in an online publication. See Young v. New Haven Advocate, 315 F.3d
256, 25859 (4th Cir. 2002) (holding that Connecticut newspapers did not manifest any
intent of targeting Virginia by posting Internet articles about the warden of a Virginia
prison). The lack of purposeful availment becomes even more apparent when viewing the
reference to North Carolina in the context of the full press release, which primarily focuses
on the software systems to be installed at the water park and does not suggest any attempt to
specifically target North Carolina residents. (See Press Release, ECF No. 15-2.)

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Further, Pathfinder has not alleged facts suggesting that Core Cashless and BPR
Properties entered into a contractual relationship with substantial connections to North
Carolina. Pathfinder has not alleged that negotiations between Core Cashless and BPR
Properties took place in North Carolina or that any activity contemplated between Core
Cashless and BPR Properties will take place in North Carolina. To the contrary, it appears
that all such activity will take place in Georgia, where the water park is located. See (Press
Release, ECF No. 15-2); Universal Leather, 773 F.3d at 560 (including whether the
performance of contractual duties was to occur within the forum as a factor in the
purposeful availment analysis). As Core Cashless argues, [t]he fact that the company that
owns the park has headquarters in North Carolina is . . . simply fortuitous and not
indicative of purposeful availment. (Def.s Reply 3, ECF No. 18.)
Turning to Core Cashless website, the Court applies the sliding scale model
articulated in Zippo Manufacturing Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D.
Pa. 1997), and adopted by the Fourth Circuit in ALS Scan, Inc. v. Digital Service
Consultants, Inc., 293 F.3d 707 (4th Cir. 2002). The Zippo model recognizes a sliding scale
for defining when a defendants Internet activity is sufficient to support 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
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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.
ALS Scan, 293 F.3d at 71314 (alteration in original) (quoting Zippo, 952 F. Supp. at 1124).
[A]dopting and adapting the Zippo model, the Fourth Circuit held that jurisdiction is
appropriate when the nonresident defendant (1) directs electronic activity into the State,
(2) with the manifested intent of engaging in business or other interactions within the State,
and (3) that activity creates, in a person within the State, a potential cause of action
cognizable in the States courts. Id. at 714.
Core Cashless website is semi-interactive, falling in the middle of the Zippo
spectrum. It allows visitors to exchange information with the host computer, see id., by
submitting an inquiry through the website and by completing a mock transaction using a test
credit card, for the purpose of testing Core Cashless product. (See Owen Decl. 21, ECF
No. 11-1; Pl.s Oppn 14, ECF No. 15.) The website does not, however, allow Core
Cashless to enter[] into contracts with residents of a foreign jurisdiction that involve the
knowing and repeated transmission of computer files over the Internet, see ALS Scan, 293
F.3d at 713, as visitors cannot make purchases through the website. (Owen Decl. 22, ECF
No. 11-1.) Further, the website has led to no contracts, sales, or business for Core Cashless
in North Carolina. (Def.s Mem. 10, ECF No. 11; Owen Decl. 23, ECF No. 11-1.)
Applying the Fourth Circuits framework, the Court concludes that Core Cashless
semi-interactive website does not subject it to personal jurisdiction in North Carolina.
Nothing about the website suggests that Core Cashless has specifically directed electronic
activity toward North Carolina with any manifested intent of engaging in business or other
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interactions in the state. Pathfinder, to support its argument that Core Cashless website is
directed to residents of North Carolina, explains that [w]hen a North Carolinian responds
to the advertising on the website, a Core Cashless representative follows up and attempts to
make a sale. (Pl.s Oppn 4, ECF No. 15.) This is true, however, not just for residents of
North Carolina but for individuals worldwide. (See Def.s Reply 6, ECF No. 18 (explaining
that Core Cashless targets North Carolina no more than it targets the entire world).) The
fact that one North Carolina resident has submitted an inquiry on Core Cashless website
and received a follow-up email and phone call is inconsequential. See (Pl.s Oppn 45, ECF
No. 15); Walden, 134 S. Ct. at 1122 ([O]ur minimum contacts analysis looks to the
defendants contacts with the forum State itself, not the defendants contacts with persons
who reside there.); cf. Fed. Ins. Co. v. Lake Shore Inc., 886 F.2d 654, 658 (4th Cir. 1989)
(stating that sales to South Carolina residents were not the result of sales efforts by [the
defendant] in South Carolina but were rather initiated by the customer). While
Pathfinder insists that Core Cashless seriously solicits customers from North Carolina
through its website (Pl.s Oppn 11, ECF No. 15), it has not alleged sufficient facts to allow
the Court to draw the same conclusion. The Court therefore is unable to conclude that Core
Cashless website supports the exercise of specific jurisdiction. See Pub. Impact, LLC v.
Bos. Consulting Grp., Inc., --- F. Supp. 3d ---, 2015 WL 4622028, at *10 (M.D.N.C. Aug. 3,
2015) (finding a website that was broadly directed toward a global audience was not
specifically targeted at North Carolina). Core Cashless Facebook and Twitter pages are
likewise insufficient to support personal jurisdiction, as Pathfinder has not alleged that the
social media pages are specifically tailored for a North Carolina audience. See (Pl.s Oppn

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56, ECF No. 15); Intercarrier Commcns, LLC v. Kik Interactive, Inc., No. 3:12-cv-771JAG, 2013 WL 4061259, at *4 (E.D. Va. Aug. 9, 2013) (explaining that a defendants selfpromotion on Facebook and Twitter does not support a Virginia courts exercise of personal
jurisdiction because there was no evidence that the defendant targeted Virginia specifically).
Similarly, Core Cashless mobile application also fails to subject Core Cashless to
specific jurisdiction in North Carolina. Nothing about the application suggests an intent to
target North Carolina or solicit[] . . . North Carolina businesses and individuals (see Pl.s
Oppn 1, ECF No. 15), particularly because the application cannot be used at any
entertainment venue in North Carolina. (See Def.s Reply 4 n.1, ECF No. 18 (explaining
that no entertainment venues in North Carolina use the Core Cashless system).) The fact
that North Carolina residents can download the application does not alter this result, as the
application is available to Android smartphone and tablet users all over the world. See
(Def.s Reply 4, ECF No. 18); Intercarrier Commcns LLC v. WhatsApp Inc., No. 3:12-cv776-JAG, 2013 WL 5230631, at *4 (E.D. Va. Sept. 13, 2013) (rejecting the defendants
argument that a company consciously or deliberately targets a forum if a user unilaterally
downloads or uses its software within that forum). Nor does the fact that Google, which
operates GooglePlay, provides much of its data services through its computers located [in]
North Carolina. (See Pl.s Oppn 5, ECF No. 15.) Googles decision to locate computer
servers in North Carolina is the unilateral activity of a third party, which is not an
appropriate consideration when determining whether a defendant has sufficient contacts
with a forum State, Helicopteros, 466 U.S. at 417. See Carefirst, 334 F.3d at 402 (finding it
unreasonable to expect a defendant to foresee[] that it could be haled into a Maryland

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court merely because it had utilized servers owned by a Maryland company); cf. ALS Scan,
293 F.3d at 71415 (holding that an Internet service provider did not subject itself to
personal jurisdiction by providing the bandwidth that enabled a website owner to publish
allegedly infringing photographs on the Internet).
Advancing one additional argument in support of purposeful availment, Pathfinder
contends that its position as an injured North Carolina resident further solidifies the
sufficiency of [Core Cashless] contacts with North Carolina. (Pl.s Oppn 16, ECF
No. 15.) Pathfinder relies on the effects test of Calder v. Jones, 465 U.S. 783 (1984),
where the Supreme Court held that a California court could exercise personal jurisdiction
over the out-of-state author and editor of an allegedly libelous magazine article when their
intentional, and allegedly tortious, actions were expressly aimed at California and had the
effect of causing harm in California. See id. at 784, 78889 (relying on the facts that the
article, which was published in a magazine with a large circulation in California, was about a
California resident, discussed her California career, and drew from California sources).
Pathfinder argues that Core Cashless engaged in purposeful tortious activity in North
Carolina, knowing it would harm Pathfinder in North Carolina. (Pl.s Oppn 910, ECF
No. 15.) This argument overlooks the fact that in Calder, the effects caused by the
defendants article . . . connected the defendants conduct to California, not just to a plaintiff
who lived there, Walden, 134 S. Ct. at 1124. Pathfinder has not shown that the effects of
Core Cashless alleged infringement create a connection between Core Cashless and North
Carolina, as opposed to a connection between Core Cashless and Pathfinder.

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Taken together, Core Cashless connections to North Carolina are a single software
support contract with a North Carolina entity amounting to a minimal portion of its annual
revenues, a partnership with a North Carolina company to provide software products for a
water park located in Georgia, a globally accessible website that does not allow visitors in
North Carolina (or elsewhere) to make online purchases, a globally accessible mobile
application that can be downloaded by North Carolina residents but cannot be used in
North Carolina, and no showing of injurious conduct connected to North Carolina. The
quality and nature of these connections are insufficient to satisfy the purposeful availment
prong of the specific jurisdiction test. Because Pathfinder fails at the first prong, the Court
need not proceed to the second and third prongs. See Consulting Engineers, 561 F.3d at
278 (If, and only if, we find that the plaintiff has satisfied this first prong of the test for
specific jurisdiction need we move on to a consideration of prongs two and three.).
Pathfinder has thus failed to make a prima facie showing of either general or specific
jurisdiction, and the case must be dismissed for lack of personal jurisdiction. The Court
therefore need not address Core Cashless alternate argument for dismissal, that venue in this
district is improper.
For the reasons outlined herein, the Court enters the following:
ORDER
IT IS THEREFORE ORDERED that Core Cashless Motion to Dismiss (ECF
No. 10) is GRANTED, based on lack of personal jurisdiction, and this case is DISMISSED
WITHOUT PREJUDICE.

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IT IS FURTHER ORDERED that Core Cashless, LLCs Motion Asking the Court
to Disregard Plaintiffs Brief in Surreply (ECF No. 20) is GRANTED.
IT IS FURTHER ORDERED that Core Cashless Consent Motion for Extension of
Time to File Reply in Support of Motion to Dismiss for Lack of Personal Jurisdiction and
Improper Venue (ECF No. 17) is retroactively GRANTED.
This, the 28th day of August, 2015.
/s/ Loretta C. Biggs
United States District Judge

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