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Kusha, Inc., A California Corporation v. International Modern Investment

March 21, 2013

KUSHA, INC., A CALIFORNIA CORPORATION,
PLAINTIFF,
v.
INTERNATIONAL MODERN INVESTMENT, ETC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge

ORDER GRANTING MOTION TO DISMISS FOR IMPROPER VENUE

In this action, Plaintiff Kusha, Inc., a California corporation, brings claims of trademark infringement against International Modern Investment, Inc., a Michigan corporation doing business as Liberty Wholesale ("Liberty"). Both companies used trademarks incorporating the word "Royal" on food products. Liberty moved to dismiss for lack of personal jurisdiction and for improper venue. In response, Kusha argued for specific personal jurisdiction, but if not, it argued general jurisdiction exists. In the alternative, Liberty argued venue is improper in this District and seeks dismissal on that basis.

Legal Standards

When a defendant moves to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of establishing personal jurisdiction. Farmers Ins. Exchange v. Portage La Prairie Mut. Ins. Co., 907 F.2d 911, 912 (9th Cir. 1990). Where, as here, the motion is based on written materials, the plaintiff only needs to make a prima facie showing of jurisdictional facts to meet his burden. Uncontroverted allegations in the complaint are to be taken as true. AT & T v. Campagnie Bruxelles Lambert, 94 F.3d 586, 588 (9th Cir.1996). Factual conflicts are resolved in the plaintiff's favor. Id.

Courts in the Ninth Circuit apply a three-part test to determine whether it can exercise personal jurisdiction over a nonresident defendant:

(1) The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws;

(2) the claim must be one which arises out of or relates to the defendant's forum-related activities; and

(3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable.

Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir.2004) (citation omitted). Kusha must satisfy the first two prongs, or personal jurisdiction is lacking. Id. If Kusha satisfies the first two prongs, the burden then shifts to Liberty to present a compelling case that exercise of jurisdiction would not be reasonable. Id. (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476--78 (1985)).

Personal jurisdiction is normally a statewide concept; where, as here, no federal statute authorizes personal jurisdiction, the Court applies the law of the forum state. See Mavrix Photo, Inc. v. Brand Technologies, Inc., 647 F.3d 1218, 1223 (9th Cir. 2011). California's long-arm statute is coextensive with the limits of due process. Id.

Venue, on the other hand, is specific to judicial districts. See 28 U.S.C. § 1391(b). The fact that there may be personal jurisdiction over Liberty in California doesn't mean this District is a proper venue.

Discussion

The parties each offer competent documentary evidence in the form of declarations, documents attested to by declarations, ...


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