In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2980
be2 LLC and be2 H OLDING, A.G.,
Plaintiffs-Appellees,
v.
N IKOLAY V. IVANOV ,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:10-CV-01650—Milton I. Shadur, Judge.
S UBMITTED A PRIL 6, 2011 —D ECIDED A PRIL 27, 2011
Before F LAUM, W OOD , and H AMILTON, Circuit Judges.
H AMILTON, Circuit Judge. One online matchmaking
service has sued another for trademark infringement.
The issue on appeal is whether the defendant’s Internet
activity made him susceptible to personal jurisdiction
After examining the briefs and the record, we concluded that
oral argument is unnecessary. The appeal has been submitted on
the briefs and the record. See Fed. R. App. P. 34(a)(2)(C).
2 No. 10-2980
in Illinois for claims arising from that activity. We con-
clude that it did not, so we reverse and remand with
directions to dismiss for lack of personal jurisdiction.
We set out the facts as they appear in the complaint.
Plaintiff be2 LLC is a Delaware limited liability
company that is also headquartered in that state. Its
parent company, be2 Holding, A.G., is organized and
headquartered in Germany. These companies, which
we collectively call be2 Holding, run an Internet dating
website located at be2.com. Plaintiff be2 Holding
originally offered its dating service only to singles in
Europe. Over the past few years, be2 Holding has
extended its reach to 14 million users in 36 countries,
including the United States.
The complaint asserts claims arising under the
Lanham Act, 15 U.S.C. §§ 1114(1), 1125(a), federal
common law, and the Illinois Uniform Deceptive Trade
Practices Act, 815 ILCS 510/1 to /7. The complaint names
Nikolay Ivanov, a resident of New Jersey, as a defen-
dant. Allegedly he is the co-founder and CEO of be2.net
and also the person “responsible for the majority
of business transactions” on the website. Until Decem-
ber 2006, the complaint continues, Ivanov offered a match-
making service through the website sladurana.com.
Until that time, the be2.net website had been just a col-
lection of links to other Internet sites. But during Decem-
ber 2006, Ivanov allegedly moved his matchmaking
service to the website be2.net, deliberately choosing to
use an existing domain address and design that were
“confusingly similar” to be2.com “with the intention
of misleading consumers.”
No. 10-2980 3
Ivanov did not answer the complaint or attend a sched-
uled status hearing, so the district court granted plain-
tiff’s oral motion for entry of default under Rule 55(a) of
the Federal Rules of Civil Procedure. On plaintiff’s
motion, the court later entered a default judgment
under Rule 55(b)(2). To prove its damages, be2 Holding
submitted a declaration from Andreas Etten, its co-CEO
and a member of its board of directors. Etten attached
to his declaration a series of documents printed from
the Internet. Some of those documents were more
relevant to whether personal jurisdiction was proper in
Illinois than they were to damages. One document is a
printout from the “American personals” directory of the
website be2.net. The document shows that when the
website was accessed one year before the hearing, 10 men
and 10 women with Chicago addresses had registered
on be2.net for matchmaking services. Another document,
printed from the website sladurana.com, is headlined
“be2 Management Team” and highlights Nick Ivanov
as the CEO and co-founder, as well as “the one
responsible for censorship, profile approval, design, and
advertising.” The page was printed from the website
sladurana.com, but it is emblazoned with the “be2.net”
logo. The document also includes a disclaimer em-
phasizing that “be2.NET is in NO WAY affiliated with
be2.COM and their unfair practices.” A third document
apparently is Ivanov’s profile printed from the social-
networking website LinkedIn. Under the category “Ex-
perience,” it includes another description of Ivanov as the
co-founder and CEO of “be2.net” and boasts that the
website offers free “dating services with hundreds of
thousands of online users.”
4 No. 10-2980
After the district court entered its final default judg-
ment against Ivanov, he appeared for the first time
through counsel and filed a motion to vacate the judg-
ment as void for want of personal jurisdiction. Along
with his motion, Ivanov submitted an affidavit in which
he claimed that he was not the co-founder and CEO of
any company called be2.net but merely a volunteer for
Sladur, the Bulgarian company that had registered and
owned the domain name be2.net. Ivanov, a Bulgarian-
American, claimed that he had written a testimonial on
Sladur’s Bulgarian matchmaking site, which prompted
the company to ask for his help in breaking into the
United States market. He agreed, he said, because he
was proud to be of service to a company from his
native land, but claimed that his tasks consisted mostly
of translating website content from Bulgarian to English,
responding to some customer inquiries, and approving
users’ profiles. He already had a full-time job, he
claimed, and said he thought of his work for Sladur as a
“hobby.” He tried to explain his “CEO” status by
claiming that Sladur had held him out as the CEO of
be2.net and by insisting that the acronym stood only
for “Centralized Expert Operator.” Sladur never compen-
sated him for his services, he claimed, nor did he
receive any other financial benefit from his association
with the website be2.net. And, he concluded, he had
never set foot in the state of Illinois.
With ample reason, the district court found that Ivanov
was not credible. The court denied the motion to vacate
the judgment. The court relied on what it described
as “the whole list of Chicago contacts, the result of
No. 10-2980 5
Mr. Ivanov’s activity,” and concluded that “the idea of
the absence of effective Illinois contacts sufficient to
support in personam jurisdiction is undercut dramati-
cally.” As for the argument that Ivanov was merely a
volunteer, the district court pointed to his Internet
boasting that he was co-founder and CEO of be2.net.
And the district court resoundingly rejected Ivanov’s
“Centralized Expert Operator” explanation for describing
himself as “CEO.”
Appearing pro se again on appeal, Ivanov renews his
argument that he is not subject to personal jurisdiction
in Illinois. Because he knew about the suit and chose to
default rather than defend, he must bear the burden
of proof on his post-judgment motion challenging
personal jurisdiction. See Burda Media, Inc. v. Viertel, 417
F.3d 292, 299 (2d Cir. 2005); Bally Export Corp. v. Balicar,
Ltd., 804 F.2d 398, 401 (7th Cir. 1986).
The district court’s denial of Ivanov’s motion to
vacate cannot be sustained, as be2 Holding argues, as
an exercise in “discretion piled on discretion.” 1 When
a district court enters a default judgment without
personal jurisdiction over the defendant, “the judgment
1
Ivanov called his motion one under Rule 60(b)(4) based
on lack of jurisdiction. Because he filed his motion less
than 28 days after judgment was entered, it is technically a
Rule 59(e) motion, but under these circumstances the tech-
nical distinction makes no practical difference. The personal
jurisdiction issue arises often under Rule 60(b)(4), and we
rely on precedents applying that rule.
6 No. 10-2980
is void, and it is a per se abuse of discretion to deny
a motion to vacate that judgment.” Relational, LLC v.
Hodges, 627 F.3d 668, 671 (7th Cir. 2010); see also Jenkens
& Gilchrist v. Groia & Co., 542 F.3d 114, 118 (5th Cir.
2008) (applying de novo review on issue of personal
jurisdiction); Blaney v. West, 209 F.3d 1027, 1031 (7th
Cir. 2000) (noting that appellate review under Rule
60(b)(4) is more stringent than under other portions of
Rule 60(b)), citing United States v. Indoor Cultivation Equip-
ment from High Tech Indoor Garden Supply, 55 F.3d
1311, 1316-17 (7th Cir. 1995).
The personal jurisdiction issue boils down to one of
federal constitutional law. Plaintiff be2 Holding asserts
claims arising under the Lanham Act, federal common
law, and Illinois law. The Lanham Act does not authorize
nationwide service of process, Sunward Elecs., Inc. v.
McDonald, 362 F.3d 17, 22 (2d Cir. 2004), so a federal
court sitting in Illinois may exercise jurisdiction over
Ivanov in this case only if authorized both by Illinois
law and by the United States Constitution. See Fed. R.
Civ. P. 4(k)(1)(A); Tamburo v. Dworkin, 601 F.3d 693, 700
(7th Cir. 2010). The Illinois long-arm statute, in turn,
permits its courts to exercise personal jurisdiction on
any basis permitted by the constitutions of both Illinois
and the United States. 735 ILCS 5/2-209(c).
As noted above, the district court had ample grounds
for discounting Ivanov’s credibility. It was preposterous
for him to suggest that, by holding himself out as the
“CEO” of be2.net, he actually meant to communicate
that he was the website’s “Centralized Expert Operator.”
No. 10-2980 7
But even if we discount all such details in Ivanov’s affida-
vit, he has still shown an absence of ties to or activities
in Illinois. The question becomes whether the evidence
originally submitted by be2 Holding was sufficient to
show that Ivanov could be required to defend himself
on these claims in Illinois.
We conclude on this record that the United States
Constitution forbids an Illinois court to exercise
personal jurisdiction over Ivanov in this case. The Due
Process Clause is satisfied only if Ivanov has minimum
contacts with Illinois such that requiring him to
defend against this lawsuit in the state “does not offend
traditional notions of fair play and substantial justice.”
See International Shoe Co. v. Washington, 326 U.S. 310, 316
(1945). Plaintiff be2 Holding relies on a theory of specific
jurisdiction based on alleged effects on it in Illinois. See
generally Tamburo v. Dworkin, 601 F.3d 693, 702 (7th
Cir. 2010) (summarizing law of specific jurisdiction as
applied to torts allegedly committed over Internet).
Our inquiry boils down to this: has Ivanov purposely
exploited the Illinois market? See Keeton v. Hustler Maga-
zine, Inc., 465 U.S. 770, 781 (1984) (upholding jurisdiction
over magazine publisher that had “continuously and
deliberately exploited” the market in forum state); uBID,
Inc. v. GoDaddy Grp., Inc., 623 F.3d 421, 427 & n.1 (7th
Cir. 2010) (finding that defendant’s advertising in and
Internet contacts with Illinois were sufficient to support
personal jurisdiction); cf. Mobile Anesthesiologists Chicago,
LLC v. Anesthesia Associates of Houston Metroplex, P.A., 623
F.3d 440, 446 (7th Cir. 2010) (finding that defendant’s
8 No. 10-2980
operation of website that could be accessed in Illinois
was not sufficient to support personal jurisdiction). “This
purposeful availment requirement ensures that a defen-
dant will not 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 per-
son.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475
(1985) (citations omitted).
“Courts should be careful in resolving questions
about personal jurisdiction involving online contacts to
ensure that a defendant is not haled into court simply
because the defendant owns or operates a website that
is accessible in the forum state, even if that site is ‘inter-
active.’ ” Illinois v. Hemi Group, LLC, 622 F.3d 754, 760
(7th Cir. 2010). Beyond simply operating an interac-
tive website that is accessible from the forum state, a
defendant must in some way target the forum state’s
market. See uBID, 623 F.3d at 427-29; Hemi Group, 622
F.3d at 758; Chloé v. Queen Bee of Beverly Hills, LLC, 616
F.3d 158, 171 (2d Cir. 2010); Rio Properties, Inc. v. Rio Int’l
Interlink, 284 F.3d 1007, 1020 (9th Cir. 2002); Capitol
Records, LLC v. VideoEgg, Inc., 611 F. Supp. 2d 349, 360-
61 (S.D.N.Y. 2009); Gather, Inc. v. Gatheroo, LLC, 443
F. Supp. 2d 108, 115-16 (D. Mass. 2006); Snowney v. Harrah’s
Entertainment, Inc., 112 P.3d 28, 34 (Cal. 2005). If the
defendant merely operates a website, even a “highly
interactive” website, that is accessible from, but does not
target, the forum state, then the defendant may not
be haled into court in that state without offending the
Constitution. See Carefirst of Maryland, Inc. v. Carefirst
Pregnancy Ctrs., Inc., 334 F.3d 390, 394-95, 401 (4th Cir.
No. 10-2980 9
2003); GTE New Media Servs. Inc. v. BellSouth Corp.,
199 F.3d 1343, 1349-50 (D.C. Cir. 2000); Imageline, Inc. v.
Fotolia LLC, 663 F. Supp. 2d 1367, 1370-71, 1377-78 (N.D.
Ga. 2009); Capitol Records, 611 F. Supp. 2d at 358-59;
Minnesota Public Radio v. Virginia Beach Educational Broad-
casting Foundation, 519 F. Supp. 2d 970, 976, 979 (D. Minn.
2007).
The record before us does not show that Ivanov deliber-
ately targeted or exploited the Illinois market. All that
be2 Holding submitted regarding Ivanov’s activity
related to Illinois is the Internet printout showing that
just 20 persons who listed Illinois addresses had at
some point created free dating profiles on be2.net. The
printout shows only the nickname and age of each user,
the city the user then called home, and the type of rela-
tionship the user was seeking. Even if these 20 people
are active users who live in Illinois, the constitutional
requirement of minimum contacts is not satisfied
simply because a few residents have registered accounts
on be2.net. To the contrary, these are attenuated contacts
that could not give rise to personal jurisdiction without
offending traditional notions of fair play and substantial
justice.
We see no evidence that Ivanov targeted the Illinois
market that might make this case more comparable to
GoDaddy’s massive and successful exploitation of the
Illinois market in uBID v. GoDaddy Group through an
advertising campaign that produced hundreds of thou-
sands of customers in the state and millions of dollars
in annual revenues. See 623 F.3d at 428-29. We do not see
10 No. 10-2980
evidence of any interactions between Ivanov and the
be2.net members with Illinois addresses. The absence of
that evidence and the minuscule number of registrants
make this case much closer to Mobile Anesthesiologists,
where the accessibility of the website in Illinois was
not sufficient to show conduct targeted at the state.
623 F.3d at 446. As far as we can tell from the docu-
ments submitted by be2 Holding, the 20 Chicagoans
who created free profiles on be2.net may have done so
unilaterally by stumbling across the website and
clicking a button that automatically published their
dating preferences online. There is no evidence that
defendant Ivanov targeted or exploited the market in
the state that would allow a conclusion that he availed
himself of the privilege of doing business in the state.
We R EVERSE the district court’s order denying Ivanov’s
postjudgment motion and R EMAND the case with instruc-
tions to vacate the judgment and dismiss the complaint
for lack of personal jurisdiction.
4-27-11