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Advanced Skin & Hair, Inc v. Jennifer Bancroft; Rejuva Md

March 14, 2012

ADVANCED SKIN & HAIR, INC., PLAINTIFF,
v.
JENNIFER BANCROFT; REJUVA MD, LLC; AND DOES 1 THROUGH 10, INCLUSIVE, DEFENDANT.



The opinion of the court was delivered by: Honorable Ronald S.W. Lew Senior, U.S. District Court Judge

ORDER

re: Defendant Jennifer Bancroft's Motion to Dismiss for Lack of Personal Jurisdiction and Motion to Dismiss Trademark Infringement and Unfair Competition Claims Under 12(b)(6) [29] Currently before the Court is Defendant Jennifer Bancroft's ("Defendant") Motion to Dismiss for Lack of Personal Jurisdiction and Motion to Dismiss Trademark Infringement and Unfair Competition Claims Under 12(b)(6). The Court having reviewed all papers submitted pertaining to this Motion and having considered all arguments presented to the Court NOW FINDS AND RULES AS FOLLOWS:

The Court hereby DENIES Defendant's Motion to Dismiss for Lack of Personal Jurisdiction and Motion to Dismiss Trademark Infringement and Unfair Competition Claims Under 12(b)(6).

I. Background

Defendant is the founder and CEO of Defendant Rejuva MD ("Rejuva"), a Texas Limited Liability Company that sells various cosmetic products to California companies and medical offices. Plaintiff Advanced Skin & Hair, Inc. ("Plaintiff") is a California corporation with its principal place of business in Los Angeles, California. Plaintiff manufactures, designs, and sells skin care products and related merchandise.

Plaintiff alleges that through Rejuva, Defendant knowingly and willfully infringed on Plaintiff's trademarked products. On December 27, 2011, Defendant filed the present Motion [29]. Rejuva has not joined in this Motion, nor otherwise challenged the Court's personal jurisdiction over it.

II. Legal Standard

A. Motion to Dismiss for Lack of Personal Jurisdiction Pursuant to Rule 12(b)(2) Although the plaintiff has the burden of proving personal jurisdiction, a plaintiff need only make a prima facie showing of jurisdictional facts in order to defeat a motion to dismiss. In re Pintlar Corp., 133 F.3d 1141, 1144 (9th Cir. 1998) (citing Farmers Ins. Exch. v. Portage La Prairie Mut. Ins. Co., 907 F.2d 911, 912 (9th Cir. 1990)). The plaintiff need only allege facts which, if true, would support a finding of jurisdiction. Ballard v. Savage, 65 F.3d 1495, 1498 (9th Cir. 1995) (citing Data Disc v. Sys. Tech. Assoc., 557 F.2d 1280, 1285 (9th Cir. 1977)).

The exercise of personal jurisdiction over a nonresident defendant requires the presence of two factors. The forum state's laws must provide a basis for exercising personal jurisdiction, and the assertion of personal jurisdiction must comport with due process. Hirsch v. Blue Cross, Blue Shield, 800 F.2d 1474, 1477 (9th Cir. 1986). The California long-arm statute permits the exercise of jurisdiction "on any basis not inconsistent with the Constitution . . . of the United States." Cal. Civ. Proc. Code § 410.10. This statute renders the state and federal limits of jurisdiction coextensive. Roth v. Garcia Marquez, 942 F.2d 617, 620 (9th Cir. 1991). Thus, only a due process analysis is required.

Due process requires that a defendant have "certain minimum contacts with [the forum] 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). The defendant's contacts must be "such that the [defendant] should reasonably anticipate being haled into court there." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980). Depending upon the nature and scope of the defendant's contacts with the forum, jurisdiction may be general or specific to the cause of action. Roth, 942 F.2d at 620 (citing Data Disc, 557 F.2d at 1287).

In the area of personal jurisdiction and the Internet, the Ninth Circuit has adopted the "sliding scale" test set forth in Zippo Manufacturing Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997). See Gator.Com Corp. v. L.L. Bean, Inc., 341 F.3d 1072, 1079-80 (9th Cir. 2003). Applying this sliding scale, a passive website "does little more than make information available to those who are interested in it," which does not support the exercise of personal jurisdiction over its operators. Zippo, 952 F. Supp. at 1123. However, with an interactive website, which is used to exchange information with the host computer, the constitutionality of exercising personal jurisdiction is "directly proportionate to the nature and quality of commercial activity that an entity conducts over the internet." Id. at 1124; see generally Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414, 418 (9th Cir. 1997) ("Courts that have addressed interactive sites have looked to the level of interactivity and commercial nature of the exchange of information that occurs on the Web sites to determine if sufficient contacts exist to warrant the exercise of jurisdiction").

B. Motion to Dismiss Pursuant to Federal Rule of

Civil Procedure 12(b)(6)

In a motion to dismiss brought under Federal Rule of Civil Procedure 12(b)(6), the Court must presume all non-conclusory, factual allegations of the complaint to be true and draw all reasonable inferences in favor of the non-moving party. Klarfeld v. United States, 944 F.2d 583, 585 (9th Cir. 1991). A dismissal can be based on the lack of cognizable legal theory or the lack of sufficient facts alleged under a cognizable legal theory. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). However, a party is not required to state the legal basis for his claim, only the facts underlying it. See McCalden v. Cal. Library Ass'n, 955 F.2d 1214, 1223 (9th Cir. 1990).

Thus, the question presented by a motion to dismiss is not whether the plaintiff will prevail in the action, but whether the plaintiff is entitled to offer evidence in support of his claim. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002). To survive a motion to dismiss, a complaint must contain sufficient factual matter, to state a claim to relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007). A claim has facial plausibility when the plaintiff pleads factual content that allows the ...


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