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Brayton Purcell LLP v. Recordon & Recordon

March 23, 2005


The opinion of the court was delivered by: Edward M. Chen United States Magistrate Judge


On November 24, 2004, Plaintiff Brayton Purcell LLP, a law firm with its principal place of business in Novato, California, filed suit against Defendant Recordon & Recordon (hereinafter referred to as "R&R"), a small law firm operating solely in San Diego, California. R&R allegedly copied the entire text of Brayton Purcell's website and incorporated the text into R&R's own website. The claims asserted by Brayton Purcell are (1) copyright infringement, see 17 U.S.C. §501; (2) unfair competition under both federal and state law, see 15 U.S.C. §1125(a), Cal. Bus. & Prof. Code § 17200; (3) false advertising, see Cal. Bus. & Prof. Code § 17500; and (4) common law misappropriation. Brayton Purcell has filed a motion for a preliminary injunction and R&R a motion to dismiss for lack of personal jurisdiction or, in the alternative, transfer of venue.

Having considered the parties' briefs and accompanying submissions, and good cause appearing therefor, the Court hereby DENIES R&R's motion to dismiss or transfer. As for Brayton Purcell's motion for a preliminary injunction, the Court defers ruling on the motion and instead orders the parties to meet and confer and thereafter file a proposed stipulation and order with the Court addressing the use, if any, by R&R of the text at issue.


Brayton Purcell is a law firm located in the Northern District of California with its principal place of business in Novato, California. See Brayton Decl. ¶ 2. The firm touts itself as a nation-and state-wide leader in this area, promoting its practice of fighting elder abuse in a separate extensive website located at See Compl. ¶ 6. In its complaint, Brayton Purcell alleges that the contents of the website were copyrighted with an effective registration date of October 7, 2002. See id. ¶11.

R&R is a small law firm operating in San Diego, California. Stephen G. Recordon and Kathy R. Recordon are the only attorneys employed at the firm. See Recordon Decl. ¶ 4. R&R focuses primarily on civil and personal injury as well as family law. See Recordon Mot. at 2.

According to Brayton Purcell, on October 7, 2004, it scoured the Internet with a tool called "Copyscape" in search of unauthorized use of its materials. See Brayton Decl. ISO Mot. for Prelim. Inj. ¶ 11. With this technology, Brayton Purcell stumbled upon R&R's website which contained a section concerning elder abuse law. See id. There, Brayton Purcell discovered that R&R had copied seven pages from Brayton Purcell's own website concerning elder abuse. See Compl. ¶ 14. Further, various pictures appearing in the Brayton Purcell site also appeared on the R&R site. See id. ¶¶13-19. While nearly the entire text from the Brayton Purcell web pages was copied into R&R's site, R&R did not give credit for, nor did Brayton Purcell authorize the use of, those writings. See id. ¶ 20.

Shortly thereafter, Brayton Purcell filed suit against R&R.


A. R&R's Motion to Dismiss or Transfer

1. Personal Jurisdiction

R&R has styled its motion to dismiss as one based on lack of personal jurisdiction. However, it appears to the Court that the motion is more properly characterized as a motion to dismiss for improper venue rather than for a lack of personal jurisdiction. "[J]urisdiction is the power to adjudicate, while venue, which relates to the place where judicial authority may be exercised, is intended for the convenience of the litigants." Securities Investor Protection Corp. v. Vigman, 764 F.2d 1309, 1313 (9th Cir. 1985) (internal quotation marks omitted; emphasis in original). This Court has the power to hear a case against a defendant who resides anywhere in this state. See generally Pennoyer v. Neff, 95 U.S. 714 (1877) (providing that one means of establishing personal jurisdiction is to demonstrate that the defendant is a "resident" of the forum state). Here, it is undisputed that R&R resides in California. Therefore, this Court does have personal jurisdiction over R&R.

2. Venue

As stated above, R&R's motion is more properly construed as a motion to dismiss for improper venue. This is because one of the claims asserted by Brayton Purcell is for copyright infringement and, for suits involving copyright infringement, there is a specific venue provision that controls. More specifically, 28 U.S.C. § 1400(a) provides that "[c]ivil actions, suits, or proceedings arising under any Act of Congress relating to copyrights or exclusive rights in mask works or designs may be instituted in the district in which the defendant or his agent resides or may be found." 28 U.S.C. § 1400(a). The Ninth Circuit has interpreted the statute to mean that venue "is proper in any judicial district in which the defendant would be amenable to personal jurisdiction if the district were a separate state." Columbia Pictures Television v. Krypton Broadcasting of Birmingham, Inc., 106 F.3d 284, 288 (9th Cir. 1997), overruled on other grounds by Feltner v. Columbia Pictures Television, 523 U.S. 340 (1998); see also Autodesk, Inc. v. RK Mace Engineering, Inc., No. C-03-5128 VRW, 2004 WL 603382, at *9 (N.D. Cal. Mar. 11, 2004) (finding that 28 U.S.C. §1391(c), which provides that venue is proper in any district where personal jurisdiction is found, is to be applied to §1400(a) in determining where a defendant may be found); Advideo, Inc. v. Kimel Broadcast Group Inc., 727 F. Supp. 1337, 1341 (N.D. Cal. 1989) ("For purposes of this statute, a defendant is 'found' wherever personal jurisdiction over him is proper").

To demonstrate that the Northern District of California has personal jurisdiction over R&R, Brayton Purcell need only make a prima facie showing. See Caruth v. International Psychoanalytical Ass'n, 59 F.3d 126, 128 (9th Cir. 1995) (stating that, when there has been no evidentiary hearing, "we only inquire into whether [the plaintiff's] pleadings and affidavits make a prima facie showing of personal jurisdiction"). The fact that the personal jurisdiction analysis here is subsumed in a larger venue question has no effect on this procedure. Cf. Hudye Soil Services, Inc. v. Tyler, 46 F. Supp. 2d 1157, 1161 (D. Kan. 1999) ("The court uses basically the same procedure to decide a motion to dismiss for improper venue as it does for deciding a motion to dismiss for lack of personal jurisdiction."). Brayton Purcell argues that the Northern District of California, if it were a separate state, would have both general and specific jurisdiction over R&R. R&R contends to the contrary.

a. General Jurisdiction

"General jurisdiction refers to jurisdiction to adjudicate claims that do not arise from the defendant's contacts with the forum state. Thus, if a defendant is amenable to general jurisdiction in a state, the state may exercise jurisdiction over the defendant based on any claim, including claims unrelated to the defendant's contacts with the state." 16-108 Moore's Fed. Prac. -- Civ. ยง 108.40; see also Synopsys, Inc. v. Ricoh Co., Ltd., 343 F. Supp. 2d 883, 886 (N.D. Cal. 2003) ...

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