MARIEOLIVER LLC v. ZWANZIG

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
MARIEOLIVER LLC,
Plaintiff,
v.
REBECCA ZWANZIG,
Defendant.
1:25-CV-227-DAB-JEP
MEMORANDUM OPINION AND ORDER
Defendant Rebecca Zwanzig, an Oregon resident, sent cease-and-desist letters
asserting copyright infringement to Plaintiff MarieOliver LLC, a North Carolina
apparel company, and to three retailers located outside North Carolina. MarieOliver
responded by filing this action seeking a declaratory judgment of noninfringement
and asserting a claim for tortious interference. Ms. Zwanzig moves to dismiss for
lack of personal jurisdiction and improper venue. For the following reasons, the
Court grants the motion and dismisses this action without prejudice.
FACTUAL BACKGROUND1
Ms. Zwanzig is an independent illustrator and freelance designer who resides
in Oregon and has never lived in North Carolina. (May 22, 2025 Declaration of
Rebecca Zwanzig (D.E. 14-4) ¶¶ 2, 22, 26.) She sells and licenses her artwork
through High West Wild LLC, a Nevada limited liability company. (Id. ¶¶ 5, 25;
Nevada LLC Record (D.E. 14-3) pp. 2–3.) High West Wild operates a publicly
1 In resolving a personal jurisdiction challenge, the Court may consider materials
outside the pleadings, including “the parties’ motion papers, affidavits attached to
the motion, supporting legal memoranda, and the allegations in the complaint.”
Grayson v. Anderson, 816 F.3d 262, 268 (4th Cir. 2016). For purposes of this
motion, all allegations and evidence are construed in the light most favorable to
MarieOliver. Id.
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accessible website through which customers nationwide and abroad may purchase
Ms. Zwanzig’s artwork, primarily in one-off transactions. (5/22/25 Zwanzig Decl.
(D.E. 14-4) ¶¶ 6, 33.) Ms. Zwanzig also promotes her illustrations on High West
Wild’s public Instagram and Pinterest accounts. (Id. ¶ 7.) The record contains no
allegations or evidence that she solicits business in North Carolina, targets the forum
through advertising or other directed activity, maintains offices or employees in the
state, has any physical presence there, or traveled to the state in connection with the
conduct at issue. (Id. ¶¶ 26, 33, 36–39.)
MarieOliver, in turn, is a North Carolina fashion brand that designs vibrantly
colored, artisanal clothing from its headquarters in North Carolina. (Complaint (D.E.
1) ¶ 6; Declaration of Peter O. Evenson, Jr. (D.E. 16-1) ¶¶ 5, 7, 9–10.) MarieOliver’s
garments are manufactured internationally and shipped to a warehouse in North
Carolina, where they are stored until sold. (Evenson Decl. (D.E. 16-1) ¶ 11.)
MarieOliver sells its clothing both directly to consumers and to retailers nationwide,
including Saks Fifth Avenue, Neiman Marcus, and Rent-the-Runway. (Id. ¶¶ 12, 14.)
Ms. Zwanzig is the sole owner and copyright claimant of two illustrations:
Jermaine and Olympic Mountain Birds. (5/22/25 Zwanzig Decl. (D.E. 14-4) ¶ 4.)
She has not contracted with or licensed her artwork to MarieOliver. (Id. ¶¶ 28, 34.)
From January 1, 2020, through the filing of this action, Ms. Zwanzig made 45 sales
to North Carolina customers through her website. (Response Brief (D.E. 16) p. 16;
Reply Brief (D.E. 18) p. 4; Zwanzig Jurisdictional Discovery Responses (D.E. 16-3)
p. 11.) Before the events giving rise to this litigation, Ms. Zwanzig had no business
relationship with MarieOliver. (5/22/25 Zwanzig Decl. (D.E. 14-4) ¶ 40.)
Around June 2023, MarieOliver bought the exclusive rights to use a design
identified as “Design 23M1059” from Hartek Design Sagl, a Switzerland-based
design house. (Compl. (D.E. 1) ¶¶ 7, 9; see Deed of Assignment (D.E. 1-2) p. 2.)
MarieOliver thereafter incorporated that design into certain items of clothing.
(Compl. (D.E. 1) ¶ 10.)
Ms. Zwanzig became concerned that MarieOliver’s use of Design 23M1059
infringed her copyrights in Jermaine and Olympic Mountain Birds. (5/22/25 Zwanzig
Decl. (D.E. 14-4) ¶ 8.) After she had her Pennsylvania-based attorney buy a
purportedly infringing clothing item from MarieOliver (Declaration of Alyssa M.
Bruno (D.E. 16-12) ¶ 24), Ms. Zwanzig’s counsel sent a cease-and-desist letter to
MarieOliver’s headquarters on February 5, 2025. (Compl. (D.E. 1) ¶ 12.) This letter
asserted 	copyright 	infringement, 	threatened 	litigation, 	and 	demanded 	that
MarieOliver preserve potentially relevant documents. (February 5, 2025 Cease-and-
Desist Letter to MarieOliver (D.E. 1-5) pp. 2–4.)
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That same day, Ms. Zwanzig’s counsel sent similar cease-and-desist letters
from Pennsylvania to MarieOliver’s retailers—Saks Fifth Avenue, Neiman Marcus,
and Rent-the-Runway—at their registered office addresses in Massachusetts, Texas,
and Delaware, respectively. (See Cease-and-Desist Letter to Rent-the-Runway (D.E.
16-13) pp. 4–6; Cease-and-Desist Letter to Neiman Marcus (D.E. 16-13) pp. 50–52;
Cease-and-Desist Letter to Saks Fifth Avenue (D.E. 16-13) pp. 77–79.) Like the
letter sent to MarieOliver, these letters asserted copyright infringement, threatened
litigation, and requested preservation of documents. (Id.) The retailers later informed
Ms. Zwanzig that they had received the letters and had ceased selling the allegedly
infringing clothing items. (Bruno Decl. (D.E. 16-12) ¶¶ 9–10.) There are no
allegations or evidence that Ms. Zwanzig sent cease-and-desist letters to retailers
located in North Carolina or that the retailers’ decisions to cease sales resulted from
any automatic effect or mandatory takedown mechanism triggered by the letters.
Following 	this 	initial 	round 	of 	cease-and-desist 	communications, 	Ms.
Zwanzig and MarieOliver engaged in settlement discussions. (5/22/25 Zwanzig
Decl. (D.E. 14-4) ¶ 17.) Those conversations proved unsuccessful after MarieOliver
began selling another allegedly infringing clothing item. (Id. ¶¶ 17–18.) In response,
Ms. Zwanzig’s counsel sent an additional email to MarieOliver’s counsel demanding
that MarieOliver cease all future production, sale, display, and distribution of the
new item. (Id. ¶ 18.) On March 19, 2025, Ms. Zwanzig’s counsel sent a further cease-
and-desist letter to MarieOliver’s counsel reiterating those demands—the third such
enforcement communication directed to MarieOliver. (Id. ¶ 19.) Other than these
cease-and-desist communications, there are no allegations or evidence that Ms.
Zwanzig directed any further enforcement communications into North Carolina.
Two days later, MarieOliver initiated this action, seeking a declaratory
judgment of noninfringement and asserting a claim for tortious interference with
customer relationships based on the February 2025 letters sent to the third-party
retailers. (See Compl. (D.E. 1).) On May 19, 2025, Ms. Zwanzig filed a copyright
infringement action in the Eastern District of Pennsylvania against MarieOliver and
the retailers, arising from substantially the same alleged infringement. (See Zwanzig
v. MarieOliver LLC, No. 25-cv-2485 (E.D. Pa. 2025).) That action remains pending.
Ms. Zwanzig now moves to dismiss this lawsuit for lack of personal
jurisdiction and improper venue under Federal Rules of Civil Procedure 12(b)(2) and
(b)(3). (Motion to Dismiss (D.E. 13).) The parties have fully briefed the motion and
submitted declarations, exhibits, and other evidence. For the reasons discussed
below, the Court grants the motion and dismisses this case without prejudice.
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LEGAL STANDARD
Rule 12(b)(2) governs personal jurisdiction challenges. A defendant “must
affirmatively raise a personal jurisdiction challenge, but the plaintiff bears the
burden of demonstrating personal jurisdiction at every stage following such a
challenge.” UMG Recordings, Inc. v. Kurbanov, 963 F.3d 344, 350 (4th Cir. 2020)
(quoting Grayson v. Anderson, 816 F.3d 262, 267 (4th Cir. 2016)). Where, as here,
the Court resolves “the personal jurisdiction question by reviewing only the parties’
motion papers, affidavits attached to the motion, supporting legal memoranda, and
the allegations in the complaint, a plaintiff need only make a prima facie showing of
personal jurisdiction to survive the jurisdictional challenge.” Grayson, 816 F.3d at
268. In making this determination, “the court must take the allegations and available
evidence relating to personal jurisdiction in the light most favorable to the plaintiff.”
Id.
Rule 12(b)(3) governs challenges to venue. To withstand a venue objection
raised in a motion to dismiss, a plaintiff need “make only a prima facie showing of
proper venue.” Aggarao v. MOL Ship Mgmt. Co., Ltd., 675 F.3d 355, 366 (4th Cir.
2012). Courts may “consider evidence outside the pleadings” but must “view the
facts in the light most favorable to the plaintiff.” Id.
ANALYSIS
The issues here concern whether an out-of-state copyright holder subjects
herself to personal jurisdiction, and thus proper venue, in the alleged infringer’s
home forum based on generally accessible internet sales, an isolated purchase of an
allegedly infringing item, and cease-and-desist letters sent to the plaintiff and third
parties. As discussed below, the Court concludes that these contacts, whether viewed
individually or collectively, are insufficient.
Courts may exercise personal jurisdiction over a defendant if (1) “such
jurisdiction is authorized by the long-arm statute of the state in which it sits” and
(2) “the application of the long-arm statute is consistent with the due process clause
of the Fourteenth Amendment.” Khashoggi v. NSO Grp. Techs. Ltd., 138 F.4th 152,
159 (4th Cir. 2025) (quoting UMG Recordings, 963 F.3d at 350). North Carolina’s
long-arm statute “permits the exercise of personal jurisdiction over a defendant to
the outer limits allowable under federal due process.” Univ. Leather, LLC v. Koro
AR, S.A., 773 F.3d 553, 558 (4th Cir. 2014). Thus, the “two-prong test merges into
the single question whether” MarieOliver has made a prima facie showing that Ms.
Zwanzig had sufficient contacts with North Carolina to satisfy constitutional due
process. Id. at 559.
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The Constitution permits two types of personal jurisdiction: general and
specific. Bristol-Myers Squibb Co. v. Superior Ct. of Calif., 582 U.S. 255, 262
(2017). General jurisdiction requires a defendant to have “‘continuous and systemic’
contacts with the forum state.” Perdue Foods LLC v. BRF S.A., 814 F.3d 185, 188
(4th Cir. 2016) (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S.
408, 414–16 (1984)). MarieOliver does not assert this jurisdictional basis here.
Specific jurisdiction, which MarieOliver does assert, requires the defendant
to have “minimum contacts” with the forum “such that ‘the maintenance of the suit
does not offend traditional notions of fair play and substantial justice.’” Khashoggi,
138 F.4th at 159 (quoting Consulting Eng’rs Corp. v. Geometric Ltd., 561 F.3d 273,
277 (4th Cir. 2009)). The inquiry involves a three-pronged test: “(1) the extent to
which the defendant purposefully availed itself of the privilege of conducting
activities in the State; (2) whether the plaintiffs’ claims arise out of those activities
directed at the State; and (3) whether the exercise of personal jurisdiction would be
constitutionally reasonable.” Id. (quoting UMG Recordings, 963 F.3d at 352). This
analysis is not “mechanical,” and a court must weigh “the totality of the facts before”
it. Perdue Foods, 814 F.3d at 189 (quoting Burger King Corp. v. Rudzewicz, 471
U.S. 462, 474 (1985) and Univ. Leather, 773 F.3d at 561, respectively).
To make a prima facie showing of specific jurisdiction, MarieOliver relies on
three asserted contacts: (1) Ms. Zwanzig’s generally accessible websites and
associated sales in North Carolina; (2) her isolated purchase of a clothing item from
MarieOliver; and (3) her cease-and-desist letters sent to MarieOliver and to the third-
party retailers located outside North Carolina. (See Resp. Br. (D.E. 16) pp. 10–16.)
As explained below, none of these contacts—whether viewed individually or
collectively—suffice for specific jurisdiction.
I. 	Ms. Zwanzig’s generally accessible websites and associated online
sales 	do 	not 	constitute 	purposeful 	availment 	or 	give 	rise 	to
MarieOliver’s claims.
The Court begins with Ms. Zwanzig’s websites and related sales activity. In
the internet context, the purposeful availment inquiry asks whether the 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
State’s courts.” Fidrych v. Marriott Int’l, Inc., 952 F.3d 124, 142 (4th Cir. 2020)
(quoting ALS Scan, Inc. v. Digit. Serv. Consultants, Inc., 293 F.3d 707, 714 (4th Cir.
2002)). MarieOliver satisfies none of these requirements.
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Turning to the threshold questions of direction and manifest intent, it is
undisputed that Ms. Zwanzig’s website and social-media accounts are accessible
nationwide and abroad. (5/22/25 Zwanzig Decl. (D.E. 14-4) ¶¶ 6–7, 33.) But “the
mere fact that the website is accessible in a given state does not mean that [the
defendant] is targeting [her] activities at that state.” Fidrych, 952 F.3d at 141. While
Ms. Zwanzig’s website permits forum residents to make online purchases—just as
residents anywhere could (see 5/22/25 Zwanzig Decl. (D.E. 14-4) ¶¶ 6, 33)—this
alone is not enough. See Fidrych, 952 F.3d at 142–43 (holding that a drop-down
menu listing the forum state alongside every other state showed defendant’s
willingness to transact with forum residents, but did not show purposeful targeting
of them); ESAB Grp., Inc. v. Centricut, 126 F.3d 617, 625–26 (4th Cir. 1997)
(holding that sales activity focusing “generally on customers located throughout the
United States and Canada” does not establish purposeful availment of a particular
forum). Instead, the defendant must have “targeted” the forum’s “residents in
particular.” Fidrych, 952 F.3d at 143.
MarieOliver points to no facts demonstrating such forum-specific targeting.
There are no allegations or evidence of forum-specific advertising, North Carolina-
focused promotions or discounts, targeted marketing, outreach to North Carolina
retailers or consumers beyond ordinary order fulfillment, or any other indications
that Ms. Zwanzig tailored her website, social-media, or sales practices to appeal
specifically to North Carolina residents.
The record only underscores this absence of targeting. Since 2020, Ms.
Zwanzig has made only 45 direct-to-consumer sales to North Carolina customers,
primarily in isolated, one-off transactions. (5/22/25 Zwanzig Decl. (D.E. 14-4) ¶ 33;
Resp. Br. (D.E. 16) p. 16; Zwanzig Discovery Responses (D.E. 16-3) p. 11; Reply Br.
(D.E. 18) p. 4.) Such sporadic sales do not create the kind of ongoing, back-and-
forth relationship with the forum that supports purposeful availment. See Fidrych,
952 F.3d at 142 (explaining that a website used merely to facilitate “one-off”
transactions does not establish purposeful direction). These sales represent only a
fraction of Ms. Zwanzig’s broadly dispersed business. Indeed, North Carolina
appeared among the top five states by revenue only once since 2020—and then only
marginally, ranking fifth in 2021.2 (Zwanzig Discovery Responses (D.E. 16-3) pp.
2 MarieOliver emphasizes that for sales of Mountain Bird, North Carolina ranked
first for sales in 2021, fourth in 2022, and second in 2023. (See Resp. Br. (D.E. 16)
p. 16.) But the jurisdictional inquiry turns on whether the defendant targeted the
forum, not on whether a product happened to generate some sales there. See Fidrych,
952 F.3d at 142. Even so, only five prints of Mountain Bird were sold to North
Carolinians from 2020 through the present. (July 14, 2025 Declaration of Rebecca
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6–7.) These facts highlight that Ms. Zwanzig did not direct her online activities
toward North Carolinians in particular, but instead made her products generally
available to consumers nationwide.
MarieOliver stresses that Ms. Zwanzig’s websites are interactive. (Resp. Br.
(D.E. 16) p. 15.) Although interactivity is “a jurisdictionally relevant fact,” Fidrych,
952 F.3d at 141, it is not dispositive. See UMG Recordings, 963 F.3d at 353 (noting
that the degree of interactivity “is not determinative” of personal jurisdiction). In
today’s digital environment, “‘[i]t is an extraordinarily rare website’ that is not
interactive at some level.” Fidrych, 952 F.3d at 141 n.5 (quoting Kindig It Design,
Inc. v. Creative Controls, Inc., 157 F. Supp. 3d 1167, 1174 (D. Utah 2016)).
Regardless of interactivity, “the touchstone remains that an out-of-state person have
engaged in some activity purposefully directed toward the forum state” that creates
“a substantial connection with the forum state.” UMG Recordings, 963 F.3d at 353
(quoting ESAB Grp., Inc., 126 F.3d at 625). Here, even assuming the websites are
interactive, nothing in the record indicates they were designed or operated to target
North Carolina residents specifically.
Because the first two prongs of the internet purposeful availment test are not
met, the Court need not address the third. See ALS Scan, 293 F.3d at 715. That said,
even if MarieOliver established purposeful forum-directed electronic activity, it
would still fail the third requirement because Ms. Zwanzig’s internet activity and
corresponding sales did not “create” the claims asserted here. Id. at 714. The nature
of MarieOliver’s declaratory judgment claim seeks “to clear the air of infringement
charges,” Avocent Huntsville Corp. v. Aten Int’l Co., Ltd., 552 F.3d 1324, 1332 (Fed.
Cir. 2008) (citation omitted), rather than to redress any injury arising from ordinary
online sales. Likewise, its tortious interference claim turns on Ms. Zwanzig’s alleged
enforcement communications to third parties, see United Lab’ys, Inc. v. Kuykendall,
370 S.E.2d 375, 387 (N.C. 1988), not on her unrelated ecommerce activity.
For these reasons, Ms. Zwanzig’s internet presence and limited sales to North
Carolinians do not establish specific jurisdiction.
II. 	Ms. Zwanzig’s isolated purchase of a clothing item does not give rise
to MarieOliver’s claims.
The Court next addresses—and rejects—MarieOliver’s reliance on Ms.
Zwanzig’s isolated purchase of a single clothing item. Even assuming this purchase
Zwanzig 	(D.E. 18-1) ¶ 5.) MarieOliver otherwise identifies no evidence that
Mountain Bird was marketed differently in North Carolina or promoted to North
Carolina customers. This does not pass muster for purposeful availment.
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constitutes purposeful availment, the second prong of the specific jurisdiction
analysis requires that the plaintiff’s claims “arise out of” the defendant’s forum-
directed conduct. 	Khashoggi, 138 F.4th at 159 (citation omitted). This prong
“requires that the defendant’s contacts with the forum state form the basis of the
suit.” Consulting Eng’rs Corp., 561 F.3d at 278–79. Here, as outlined previously,
Ms. Zwanzig’s cease-and-desist letters to MarieOliver and the third-party retailers
gave 	rise 	to 	MarieOliver’s 	claims, 	not 	her 	purchase 	of 	a 	product 	through
MarieOliver’s website. See Avocent, 552 F.3d at 1332. Accordingly, this isolated
purchase does not support specific jurisdiction.
III. 	Ms. 	Zwanzig’s 	cease-and-desist 	letters 	do 	not 	provide 	a
constitutionally sufficient basis for specific jurisdiction.
Finally, the Court turns to MarieOliver’s last set of identified contacts: Ms.
Zwanzig’s cease-and-desist letters to MarieOliver and to the out-of-forum retailers.
Even assuming these letters satisfy the purposeful availment and relatedness prongs
for specific jurisdiction, the Court holds that exercising specific jurisdiction here
would be constitutionally unreasonable.
The Fourth Circuit has not addressed whether cease-and-desist letters alone
suffice to establish specific jurisdiction in a declaratory judgment action alleging
noninfringement. Other circuits, however, have concluded that a defendant may
purposefully direct activity toward a forum by sending a cease-and-desist letter to a
resident of that forum, and that a subsequent declaratory-judgment action may “arise
out of” that conduct. New World Int’l, Inc. v. Ford Global Techs., LLC, 859 F.3d
1032, 1037–38 (Fed. Cir. 2017); Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514
F.3d 1063, 1081–82 (10th Cir. 2008) (citing Red Wing Shoe Co. v. Hockerson-
Halberstadt, Inc., 148 F.3d 1355, 1361 (Fed. Cir. 1998)). The Court therefore
assumes, without deciding, that Ms. Zwanzig purposefully availed herself of the
forum by sending a cease-and-desist letter to MarieOliver and that MarieOliver’s
declaratory judgment claim arises out of that contact.
That assumption does not end the inquiry, as the exercise of jurisdiction must
still be constitutionally reasonable. Khashoggi, 138 F.4th at 159. This final prong
“permits a court to consider additional factors to ensure the appropriateness of the
forum once it has determined that a defendant has purposefully availed itself of the
privilege of doing business there.” dmarcian, Inc. v. dmarcian Europe BV, 60 F.4th
119, 135 (4th Cir. 2023) (quoting Consulting Eng’rs Corp., 561 F.3d at 279). In
evaluating reasonableness, courts may consider “factors such as the burden on the
defendant, the court’s ability to conveniently and efficiently resolve the dispute, the
interest of the forum state in adjudicating the dispute, the plaintiff’s interest in
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obtaining effective relief, and the interests of the state in furthering substantive
policies.” Id.
Applying these factors here, Ms. Zwanzig is an Oregon resident who would
face a heavy burden litigating in North Carolina. See Kulko v. Superior Court of
Calif., 436 U.S. 84, 97–98 (1978) (recognizing the burden on a nonresident
individual who must defend a suit thousands of miles from home). There are also
strong policy reasons for declining specific jurisdiction based on cease-and-desist
communications. Such letters are “normally used to warn an alleged rights infringer
that its conduct, if continued, will be challenged in a legal proceeding, and to
facilitate resolution of a dispute without resort to litigation.” Yahoo! Inc. v. La Ligue
Contre Le Racisme Et L’Antisemitisme, 433 F.3d 1199, 1208 (9th Cir. 2006) (en
banc). “If the price of sending a cease and desist letter is that the sender thereby
subjects itself to jurisdiction in the forum of the alleged rights infringer, the rights
holder will be strongly encouraged to file suit in its home forum without attempting
first to resolve the dispute informally by means of a letter.” Id.
That said, advances in transportation and technology have reduced the
burdens associated with interstate litigation. See Burger King Corp. v. Rudzewicz,
471 U.S. 462, 474 (1985). And North Carolina “has a valid interest in the resolution
of the grievances of its citizens and businesses.” CFA Inst. v. Inst. of Chartered Fin.
Analysts of India, 551 F.3d 285, 297 (4th Cir. 2009).
Balancing these same considerations, courts have overwhelmingly declined
to exercise specific jurisdiction over an out-of-state defendant based on cease-and-
desist communications and related settlement negotiations with an in-forum plaintiff
alone. See, e.g., Avocent, 552 F.3d at 1333; Yahoo!, 433 F.3d at 1208; Woods Int’l v.
McRoy, 436 F. Supp. 2d 744, 751 (M.D.N.C. 2006). This Court will not depart from
that well-established authority. At the same time, courts recognize that when a
defendant engages in “more” than mere cease-and-desist communications—such as
by initiating “extra-judicial” intellectual property enforcement within the forum—
the jurisdictional balance may tip in favor of exercising specific jurisdiction.
Avocent, 552 F.3d at 1332, 1340 (quoting Breckenridge Pharm., Inc. v. Metabolite
Lab’ys, Inc., 444 F.3d 1356, 1362 (Fed. Cir. 2006)). Although MarieOliver contends
that Ms. Zwanzig conducted this “extra-judicial” enforcement by sending cease-and-
desist communications to the out-of-forum retailers, this Court disagrees.
In assessing whether cease-and-desist communications sent to out-of-state
third parties supply a constitutionally reasonable basis for personal jurisdiction,
courts have emphasized the effect of the communication. See SnapPower v. Lighting
Def. Grp., 100 F.4th 1371, 1375–76 (Fed. Cir. 2024) (synthesizing relevant caselaw).
Specifically, 	if 	the 	communication 	triggers 	an 	automatic 	and 	unavoidable
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consequence for the forum plaintiff—like an automatic takedown or suspension—
circuits have found jurisdiction appropriate. See, e.g., Dudnikov, 514 F.3d at 1082;
Bancroft & Masters, Inc. v. Augusta Nat’l Inc., 223 F.3d 1082, 1089 (9th Cir. 2000),
overruled in part on other grounds by Yahoo!, 433 F.3d at 1207 (en banc). By
contrast, where the communication leaves any downstream effect on the forum
plaintiff to the independent discretion of third parties, courts have declined to
exercise jurisdiction. See, e.g., Avocent, 552 F.3d at 1340.
In Dudnikov, for example, an in-forum plaintiff planned an eBay artwork
auction. 514 F.3d at 1067. The nonresident defendant, believing the artwork
infringed on its copyrights, emailed the plaintiffs a litigation threat and separately
submitted a notice of claimed infringement to eBay, which was located outside the
forum. 	Id. 	at 	1067–69. 	Under 	eBay’s 	policies 	and 	procedures, 	that 	notice
automatically terminated the plaintiffs’ in-forum auction. Id. at 1068, 1075. The
Tenth Circuit concluded the exercise of specific jurisdiction was reasonable,
emphasizing that although the notice was sent to an out-of-forum third-party, its
“express aim” and immediate effect was to halt the Colorado-based auction. Id. at
1075.
The Ninth Circuit’s Bancroft opinion is similar. There, the in-forum plaintiff
registered a website domain name with an out-of-state third-party. 223 F.3d at 1084.
The nonresident defendant, believing the domain name infringed on its trademark,
sent a cease-and-desist communication to the plaintiff along with a letter to the third-
party challenging the plaintiff’s use of the domain name. Id. at 1085. That letter
triggered 	the 	third-party’s 	dispute 	resolution 	policy, 	which 	immediately 	and
automatically constrained the plaintiff’s use of its domain name unless it surrendered
the domain or filed suit. Id. As in Dudnikov, the court concluded that the exercise of
specific jurisdiction was proper. Id. at 1089.
Avocent illustrates the opposite circumstance. There, an out-of-forum patentee
sent an infringement letter to an out-of-forum third-party concerning products sold
by the in-forum plaintiff. 552 F.3d at 1327. Those communications did not invoke
any third-party enforcement mechanism that produced automatic or self-executing
consequences in the forum. See SnapPower, 100 F.4th at 1376. Thus, the court held
that exercising specific jurisdiction would be constitutionally unreasonable. Avocent,
552 F.3d at 1340–41. As the Federal Circuit has emphasized, the absence of an
automatic effect was the key distinction: unlike Dudnikov and Bancroft, the third-
party letters in Avocent “did not have any automatic effect,” and it is precisely such
an “automatic takedown process” that constitutes the “more” contemplated by
Avocent. SnapPower, 100 F.4th at 1376.
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This distinction is constitutionally sound. The personal jurisdiction inquiry
focuses on contacts the defendant herself creates with the forum state, not contacts
arising from third parties. See Walden v. Fiore, 571 U.S. 277, 291 (2014). When a
rights holder affirmatively invokes a third-party enforcement mechanism that
operates automatically, as in Dudnikov and Bancroft, the resulting forum-based
consequences flow directly from the defendant’s own conduct, making the exercise
of jurisdiction 	reasonable. By 	contrast, when 	a rights 	holder merely 	asserts
intellectual 	property 	rights 	or 	threatens 	future 	litigation, 	as 	in 	Avocent, 	any
downstream forum effects depend entirely on the independent choices of third
parties. Exercising jurisdiction on that basis would be unreasonable.
Here, MarieOliver neither alleges nor offers evidence that Ms. Zwanzig’s
cease-and-desist letters to the third-party retailers triggered any automatic, self-
executing, or legally compelled consequences. Absent such evidence, MarieOliver
has not made a prima facie showing that any asserted effects in North Carolina
flowed directly from Ms. Zwanzig’s own conduct rather than from subsequent
decisions by non-forum third parties. On this record, the exercise of specific
jurisdiction would be constitutionally unreasonable. This remains true even when
these cease-and-desist communications are considered alongside the other asserted
contacts, each of which independently fails to establish suit-related, forum-directed
conduct.3
MarieOliver’s reliance on Calder v. Jones, 465 U.S. 783 (1984), does not alter
this analysis. (See Resp. Br. (D.E. 16) p. 10.) Although Calder recognizes that “in-
forum effects of out-of-forum conduct can constitute minimum contacts with the
forum sufficient 	to support 	personal 	jurisdiction,” 	Hawkins 	v. i-TV Digitalis
Tavkozlesi zrt., 935 F.3d 211, 230 (4th Cir. 2019), it does not transform every out-
of-forum act with downstream forum consequences into a constitutionally sufficient
contact. The exercise of jurisdiction must still comport with “traditional notions of
fair play and substantial justice.” Calder, 465 U.S. at 788 (citation omitted).
Consistent with that requirement, appellate authorities addressing third-party cease-
and-desist communications have interpreted Calder to justify jurisdiction when the
defendant’s conduct triggers an automatic, self-executing consequence in the forum.
3 This conclusion aligns with this District’s prior authority. See Woods, 436 F. Supp.
2d at 751 (holding that a foreign defendant’s cease-and-desist letter to an in-forum
plaintiff, coupled with a cease-and-desist letter to an out-of-forum customer, are
insufficient by themselves for personal jurisdiction).
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Where, as here, the asserted forum effects depend on the independent discretion of
third parties, Calder does not supply a basis for jurisdiction.4
In sum, MarieOliver has not made a prima facie showing of personal
jurisdiction.5
CONCLUSION
For the foregoing reasons, the Court GRANTS Ms. Zwanzig’s Motion to
Dismiss for lack of personal jurisdiction and improper venue. (See Motion to Dismiss
(D.E. 13).) Because the Court lacks personal jurisdiction over Ms. Zwanzig, the case
is DISMISSED without prejudice. See al-Suyid v. Hifter, 139 F.4th 368, 378 (4th
Cir. 2025).6
This the 10th day of February, 2026.
/s/ David A. Bragdon
United States District Judge
4 MarieOliver’s reliance on various district court opinions are likewise unavailing.
None of them cited or applied Avocent, and all predate the Federal Circuit’s
clarification of the relevant caselaw in SnapPower. See Sunny Days Entertainment,
LLC v. Traxxas, L.P., 376 F. Supp. 3d 654 (D.S.C. 2019); Under Armour, Inc. v.
Battle Fashions, Inc., 294 F. Supp. 3d 428 (D. Md. 2018); Marx Industries, Inc. v.
Chestnut Ridge Foam, Inc., 903 F. Supp. 2d 358 (W.D.N.C. 2012). Further, Under
Armour ultimately dismissed the action for lack of personal jurisdiction after
conducting an evidentiary hearing. See Under Armour, Inc. v. Battle Fashions, Inc.,
No. RDB-17-3223, 2019 WL 3239001, at *8 (D. Md. July 18, 2019).
5 Because the Court lacks personal jurisdiction over Ms. Zwanzig, it need not
separately analyze venue. In any event, “the only basis for challenging venue in
copyright actions is that the absence of personal jurisdiction in a forum renders venue
improper,” such that “the question of venue is essentially swallowed by the
jurisdictional analysis.” Dudnikov, 514 F.3d at 1069 n.2. Accordingly, because Ms.
Zwanzig is not subject to personal jurisdiction in this District, venue is likewise
improper.
6 In her reply brief, Ms. Zwanzig also moves to dismiss, or alternatively stay, this
case in favor of the action in the Eastern District of Pennsylvania. (See Reply Br.
(D.E. 18) pp. 11–12.) Such motions made in a reply brief violate Local Rule 7.3(a)
and ordinarily will not be considered. See Newman v. Am. Honda Fin. Corp., No.
1:21CV3, 2022 WL 657630, at *5 (M.D.N.C. Mar. 4, 2022). In any event, because
the Court dismisses this action for lack of personal jurisdiction, Ms. Zwanzig’s
request for a stay is moot, and the Court does not address it.
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