The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge
ORDER: GRANTING DEFENDANT'S MOTION TO DISMISS FOR LACK OF
Presently before the Court is Defendant's motion to dismiss for lack of personal jurisdiction. (ECF No. 6.) Also before the Court are Plaintiff's opposition (ECF No. 9) and Defendant's reply (ECF No. 10). Having fully considered the parties' arguments and the law, the Court GRANTS Defendant's motion to dismiss for lack of personal jurisdiction.
Plaintiff Hall-Magner Group has been doing business as "Commencement Flowers" since 1988. Plaintiff provides flowers for university graduations, and has used the name and mark throughout the United States, including in California, since 1988. On November 9, 2010, Plaintiff registered the mark "Commencement Flowers" with the United States Patent and Trademark office. Plaintiff claims the Commencement Flowers mark has acquired a secondary meaning.
Defendant Darryl Firsten, a Canadian citizen and resident, operates two websites that sell flowers for graduations.*fn2 Plaintiff alleges Defendant has used the mark Commencement Flowers in printed advertising, e-mail communications, marketing literature passed out at commencements, and in direct communication with schools and universities that comprise Plaintiff's market.
Plaintiff alleges it discovered Defendant was operating a retail service business in which they sold flower products using the mark Commencement Flowers and under the trade name Commencement Flowers on or around November 22, 2010. Plaintiff discovered this as a result of a search on the Internet. Plaintiff's attorney requested Defendant cease and desist using the infringing mark and trade name on November 24, 2010, but Defendant has not complied.
Plaintiff brings six causes of action, three for trademark infringement under the Lanham Act, and three related causes of action under California law. Plaintiff seeks an injunction as well as damages for these violations.
Federal Rule of Civil Procedure 12(b)(2) allows district courts to dismiss an action for lack of personal jurisdiction. "Where defendants move to dismiss a complaint for lack of personal jurisdiction, plaintiffs bear the burden of demonstrating that jurisdiction is appropriate." Dole Food Co. Inc. v. Watts, 303 F.3d 1104, 1108 (9th Cir. 2002). "The court may consider evidence presented in affidavits to assist in its determination and may order discovery on the jurisdictional issues." Doe v. Unocal Corp., 248 F.3d 915, 922 (9th Cir. 2001) (citing Data Disc, Inc. v. Sys. Tech. Ass'n, Inc., 557 F.2d 1280, 1285 (9th Cir. 1977)). "When a district court acts on the defendant's motion to dismiss without holding an evidentiary hearing, the plaintiff need make only a prima facie showing of jurisdictional facts to withstand a motion to dismiss." Id. (citing Ballard v. Savage, 65 F.3d 1495, 1498 (9th Cir. 1995)); see also Data Disc, 557 F.2d at 1285 ("[I]t is necessary only for [the plaintiff] to demonstrate facts which support a finding of jurisdiction in order to avoid a motion to dismiss.").
"Unless directly contravened, [Plaintiff's] version of the facts is taken as true, and 'conflicts between the facts contained in the parties' affidavits must be resolved in [Plaintiff's] favor for purposes of deciding whether a prima facie case for personal jurisdiction exists.'" Harris Rutsky & Co. Ins. Servs., Inc. v. Bell & Clements Ltd., 328 F.3d 1122, 1129 (9th Cir. 2003) (citing Unocal Corp., 248 F.3d at 922); see also Bancroft & Masters, Inc. v. Augusta Nat'l, Inc., 223 F.3d 1082, 1087 (9th Cir. 2000) ("Because the prima facie jurisdictional analysis requires us to accept the plaintiff's allegations as true, we must adopt [Plaintiff]'s version of events for purposes of this appeal."). However, a court "may not assume the truth of allegations in a pleading which are contradicted by affidavit." Alexander v. Circus Enters., Inc., 972 F.2d 261, 262 (9th Cir. 1992) (internal quotations omitted). California's long-arm jurisdictional statute permits the exercise of personal jurisdiction so long as it comports with federal due process. See Cal. Civ. Proc. Code § 410.10; Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800--01 (9th Cir. 2004). "For a court to exercise personal jurisdiction over a nonresident defendant, that defendant must have at least 'minimum contacts' with the relevant forum such that the exercise of jurisdiction 'does not offend traditional notions of fair play and substantial justice.'" Fred Martin Motor, 374 F.3d at 801 (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (internal quotation marks omitted)).
Under the minimum contacts test, jurisdiction can be either "specific" or "general." Doe, 248 F.3d at 923. "Specific jurisdiction exists 'where the cause of action arises out of or has substantial connection to the defendant's contact with the forum.'" ChemRisk v. Chappel, 2011 WL 1807436, at *3 (N.D. Cal. May 12, 2011) (quoting Glencore Grain Rotterdam B.V. v. Shivnath Rai Harnarain Co., 284 F.3d 1114, 1123 (9th Cir. 2002).) "[G]eneral jurisdiction depends on the defendant's 'substantial, continuous and systematic' contacts with the forum, 'even if the suit concerns matters not arising out of his contacts with the forum.'" Id.
Defendant asserts that this Court has no basis for personal jurisdiction over him, as he is a citizen and resident of Canada with no contacts in this forum. (Def.'s Mem. ISO Motion 1, ECF No. 6.) Defendant argues he should never have been named personally in this action, as Plaintiff's complaint is directed at the alleged activities of Commencement Flowers, Inc., a New Jersey corporation. (Id. at 2.) Plaintiff counters that Commencement Flowers is an alter ego of Defendant, and that as Commencement Flowers he has "maintained significant minimum contacts in California, especially in Christian Colleges, including but not limited to Concordia University." (Pl.'s Opp'n 1.) Although Defendant states ...