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Vavi, Inc. v. Newton

United States District Court, Ninth Circuit

August 19, 2013

VAVI, INC., a California corporation, Plaintiff,
v.
SCOTT NEWTON, an individual; SOLE 2 SOUL SPORTS, an entity of unknown type or status; GO FOR IT EVENTS, an entity of unknown type or status, Defendants. SCOTT NEWTON, Counterclaimant,
v.
VAVI, INC., a California corporation, Counterdefendant.

ORDER DENYING MOTION TO DISMISS OR TRANSFER VENUE

BARRY TED MOSKOWITZ, Chief District Judge.

On June 5, 2013, defendant and counterclaimant Scott Newton ("Defendant" or "Defendant Newton") filed a motion to dismiss or transfer on the grounds of improper venue (ECF No. 8). The motion was taken under submission by the Court on July 19, 2013. For the reasons below, Defendant Newton's motion is hereby DENIED.

I. BACKGROUND

On May 10, 2013, VAVi, Inc. ("Plaintiff" or "VAVi") filed suit against Defendant Newton and his two companies, Sole 2 Soul Sports and Go For It Events, for copyright infringement, trademark infringement, false advertising, and unfair competition. VAVi is a California corporation with its principal place of business in San Diego County. Defendant Newton is an individual residing in Tulare County. Defendant Sole 2 Soul Sports is a chain of three retail fitness stores located in Fresno, Visalia, and Bakersfield. Defendant Go For It Events is a company that organizes community athletic events in the central San Joaquin Valley.

VAVi alleges that Defendants infringed by directly copying materials that VAVi uses to promote its annual "Ridiculous Obstacle Challenge" race, also known as the "R.O.C. Race." According to the Complaint, Defendants used these materials to promote their own race, the "Wipeout Race, " which they held on the same day as the R.O.C. Race. See Compl. ¶ 32. Such materials include photographs and the trademarks "VAVi" and "R.O.C. Race." In some instances, the trademarks are actually imprinted on the photographs used on Defendants' website. See Compl., Ex. J (ECF No. 1-12).

II. DISCUSSION

Defendant Newton moves to dismiss or transfer on the grounds of improper venue under 28 U.S.C. § 1406(a), or in the alternative, to transfer for convenience under § 28 U.S.C. 1404(a).

A. § 1406(a)

Under § 1406(a), a court may dismiss a case for improper venue or, "if it be in the interest of justice, " transfer the case to a district in which the case could have been brought originally. 28 U.S.C. § 1406(a).

Suits for copyright infringement "may be instituted in the district in which the defendant or his agent resides or may be found." 28 U.S.C.A. § 1400. As both parties acknowledge, "[t]he 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.'" Brayton Purcell LLP v. Recordon & Recordon , 361 F.Supp.2d 1135, 1138 (N.D. Cal. 2005).

Thus, the Court must determine whether it has personal jurisdiction over Defendants. There are two kinds of personal jurisdiction, general and specific. The Court has general jurisdiction over a nonresident defendant where the defendant has "substantial" or "continuous and systematic" contacts with the state, such that it may be haled into court in that state for any action without violating due process. See Hirsch v. Blue Cross, Blue Shield of Kansas City , 800 F.2d 1474, 1477 (9th Cir. 1986). However, "[t]he standard for establishing general jurisdiction is fairly high, ' and requires that the defendant's contacts be of the sort that approximate physical presence." Bancroft & Masters, Inc. v. Augusta Nat. Inc. , 223 F.3d 1082, 1086 (9th Cir. 2000) (citation omitted).

Alternatively, specific jurisdiction exists where: (1) the non-resident defendant has performed some act or consummated some transaction within the forum or otherwise purposefully availed himself of the privilege of conducting activities in the forum, (2) the claim arises out of or results from the defendant's forum-related activities, and (3) the exercise of jurisdiction is reasonable. Bancroft , 223 F.3d at 1086.

With regard to general jurisdiction, VAVi makes only the conclusory statement that "Newton has conducted sufficient activities to qualify for this Court's exercise of general jurisdiction over him, " Pl.'s Opp. (ECF No. 11) at 5, without any supporting factual allegations or argumentation. There is nothing in the record before the Court to support this contention. ...


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