The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court
ORDER DENYING DEFENDANTS' MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION
Plaintiff Aqua Logic, Inc. filed a complaint against Aquatic Logic, Inc. and Domenic Vitro ("Defendants") on August 17, 2009. (Doc. No. 1.) On August 31, 2009, Plaintiff filed a motion seeking a preliminary injunction. (Doc. No. 4.) A hearing on that motion was set for October 5, 2009 and rescheduled for October 13, 2009. On September 25, 2009, Defendants filed a motion to dismiss Plaintiff's complaint for lack of personal jurisdiction. (Doc. No. 25.) On October 8, 2009, the Court issued an order requesting that the parties be prepared to address the Court's personal jurisdiction over Defendants at the October 13, 2009 hearing. (Doc. No. 32.) Plaintiff filed a response in opposition to Defendants' motion to dismiss for lack of personal jurisdiction on October 12, 2009. (Doc. No. 38.) The Court held a hearing focused on Plaintiff's preliminary injunction motion on October 13, 2009 at 10:30 a.m. in courtroom 13. Cindy A. Brand and Ross G. Simmons appeared on behalf of Plaintiff and Benjamin Davidson appeared on behalf of Defendants. Both Plaintiff and Defendants had an opportunity to discuss Defendants' motion to dismiss Plaintiff's complaint for lack of personal jurisdiction. On October 19, 2009, Plaintiff filed a supplemental briefing in opposition to Defendants' motion to dismiss and a request for judicial notice. (Doc. Nos. 45 & 46.) Defendants did not file a reply. The Court exercises its discretion to decide this matter on the papers pursuant to Local Civil Rule 7.1(d)(1).
For the reasons set forth below, the Court denies Defendants' motion to dismiss Plaintiff's complaint for lack of personal jurisdiction. The Court grants Plaintiff's request for judicial notice to the extent the offered documents are properly subject to judicial notice.
Plaintiff Aqua Logic, Inc. is a California corporation. (Doc. No. 37 ¶ 2.) Plaintiff is the owner of United States Trademark Registration No. 2,353,216 and has used the Aqua Logic mark and trade name for almost twenty years. (Id. ¶¶ 4, 6.) Plaintiff is a product supplier in the aquatic industry. (Id. ¶ 3.)
Defendant Aquatic Logic, Inc. is a corporation with its principal place of business in Lisle, Illinois. (Doc. No. 14 ¶ 2.) The name Aquatic Logic was trademarked on September 10, 2008, and the company was incorporated under the same name in Illinois on April 27, 2009. (Id. ¶ 4-5.) Defendant Aquatic Logic specializes in the sale of various water treatment products used for outdoor ponds. (Id. ¶ 3.) Defendant Domenic Vitro ("Defendant Vitro") alleges that virtually all of Defendant Aquatic Logic's sales occur through distributors or manufacturing representatives rather than through individual stores or customers. (Id. ¶ 7.)
Defendant Vitro is the founder and president of Aquatic Logic, Inc. (Id. ¶ 2.) He is a resident and citizen of Illinois. (Id. ¶ 1.) On or around September, 2008, Defendant Vitro launched the website "www.aquaticlogic.com." (Id. ¶ 6.) Plaintiff alleges that Defendant Vitro also personally owns the websites "www.aquaticlogic.org," "www.aquaticlogic.net" and "www.bestbuypondsupply.com." (Doc. No. 1 Ex. 5; Doc. No. 47 Ex. B.)
The website "www.aquaticlogic.com" is passive--customers cannot order products directly from the website. (Doc. No. 14 ¶ 6.) Instead, interested parties must place orders over the phone. (Id.) The website "www.bestbuypondsupply.com" is active--customers can place orders for Aquatic Logic, Inc. products directly through the website. (Doc. No. 47 Ex. A.)
Defendants allege that they have placed advertisements in nationwide magazines, but have never placed an advertisement in a publication directed specifically at Californians. (Doc. No. 14 ¶ 9.) Plaintiff alleges that many of the publications in which Defendants advertise are based in California. (Doc. No. 37 ¶¶ 8-9, 11.) These publications include Pond Trade Magazine News, Watershapes Plus, Pondbiz, and Water Garden News. (Id.) Additionally, Plaintiff alleges that Defendants list their products for sale on the website of Laugna Koi Ponds, which is located in Laguna Beach, California, and that consumers can order Aquatic Logic products directly from the website. (Id. ¶ 7.) Ross Simmons, one of Plaintiff's attorneys, states that he ordered Defendants' product from Laguna Koi Pond's website on October 1, 2009. (Doc. No. 35 ¶¶ 1-2.)
With respect to product sales, Defendant Domenic Vitro alleges that, to his knowledge, "Aquatic Logic has only made one sale to a company located in the State of California during the year of its existence, for only about $500." (Doc. No. 14 ¶ 8.) Plaintiff has presented evidence of one Aquatic Logic sale to Sea Life Designs, a dba for Laguna Koi Ponds, for $595.25. (Doc. No. 37 ¶ 12.) Plaintiff is aware of this sale because the check was inadvertently sent to Plaintiff instead of Defendants. (Doc. No. 38 at 3.)
I. Motion to Dismiss for Lack of Personal Jurisdiction - Legal Standard
Federal Rule of Civil Procedure 12 allows a defendant to file a motion to dismiss for lack of personal jurisdiction. Fed. R. Civ. P. 12(b)(2). The party seeking to invoke the court's jurisdiction "has the burden of establishing that jurisdiction exists." Data Disc, Inc. v. Sys. Tech. Assocs., Inc., 557 F.2d 1280, 1285 (9th Cir. 1977). To survive a motion to dismiss, a plaintiff must submit materials that "demonstrate facts which support a finding of jurisdiction." Id. "Conflicts between the parties over statements contained in affidavits must be resolved in the plaintiff's favor." Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004). "When no federal statute specifically defines the extent of personal jurisdiction," district courts will "look to the law of the state where [the court] sits." Menken v. Emm, 503 F.3d 1050, 1056 (9th Cir. 2007). California law provides that a court "may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States." Cal. Civ. Proc. Code § 410.10. Consistent with Constitutional due process, a court may exercise personal jurisdiction over a defendant only if he has "certain minimum contacts" with the forum state "such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice." Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (internal quotes omitted).
There are two forms of personal jurisdiction -- general jurisdiction and specific jurisdiction. Boschetto v. Hansing, 539 F.3d 1011, 1016 (9th Cir. 2008). General jurisdiction turns on the defendant's contacts with the forum, while specific jurisdiction is based on the relationship between the defendant's forum contacts and the ...