United States District Court, N.D. California
ORDER RE: MOTIONS TO DISMISS Re: Dkt. Nos. 28, 29, 30, 31
JACQUELINE SCOTT CORLEY, Magistrate Judge.
This trademark infringement/fraud action arises out of a dispute involving the membership of Plaintiff League of United Latin American Citizens Inc. ("LULAC"). LULAC alleges that after the individual defendants were expelled from LULAC they continued to hold themselves out as members of LULAC and created a rival organization which intentionally infringes on LULAC's trademarks. Now pending before the Court are the motions of Defendants National League of Latin American Citizens ("NLLAC") and Bernardo Eureste to dismiss for lack of personal jurisdiction, and of individual Defendants Argentina and Angel Luevano to dismiss for failure to state a claim and to strike pursuant to California Code of Civil Procedure section 425.16, the anti-Strategic Lawsuits Against Public Participation statute. Following oral argument on August 14, 2014, NLLAC sought to file an additional declaration in support of its motion. The Court gave NLLAC permission to do so, and ruled that Plaintiff could submit additional evidence and argument in opposition, but it declined to do so. (Dkt. No. 43.) After carefully considering the parties' written submissions and oral argument the Court GRANTS the motions to dismiss for lack of personal jurisdiction and GRANTS the Luevanos' motion to dismiss for failure to state a claim with leave to amend.
ALLEGATIONS OF THE COMPLAINT
LULAC is a Texas nonprofit and "the largest and oldest Latino membership based organization in the United States." (Dkt. No. 1 ¶ 9.) It "asserts its advocacy by various means, including but not limited to civil rights, voter rights and other types of litigation." ( Id. ¶ 22.) It owns several federally protected trademarks. ( Id. ¶¶ 10, 11, 12 and Exhs. 1-4.) LULAC "permanently removed" Defendants Bernardo Eureste, Angel Luevano and Argentina Luevano as LULAC members in 2011 for violations of LULAC's constitution, protocol and by-laws. ( Id. ¶¶ 15-17, 20.) After they were so removed, the individual defendants incorporated Defendant NLLAC in the state of Nevada. ( Id. ¶ 14-18.)
The Luevanos subsequently filed a lawsuit in California state court seeking to overturn their expulsion. ( Id. at ¶¶ 20-21.) Defendant Eureste "publicly supported" the Luevanos' efforts. ( Id. at ¶ 20.) They also "have begun promoting the creation of NLLAC' and continue to hold themselves out as members of LULAC, California and continue to fraudulently raise money and advocate using the LULAC marks for their own personal gain." ( Id. ¶ 23.) NLLAC attempts to take LULAC's members by adopting LULAC's slogan: "continuing the legacy of 1929." ( Id . \ ¶ 2.) "NLLAC has also adopted similar aspects of Plaintiff's Constitution and By-Laws as its own including its membership/council structure." ( Id. )
Plaintiff makes federal claims for trademark infringement and false designation of origin, as well as state law claims for common law trademark, unfair competition, fraud, conversion and abuse of process. The Complaint does not distinguish among the defendants in each count; instead, each count appears to be pled indiscriminately against "defendants."
A. The Motion to Dismiss for Lack of Personal Jurisdiction
Defendants NLLAC and Eureste move to dismiss for lack of personal jurisdiction. The plaintiff bears the burden of proving that personal jurisdiction is appropriate. Love v. Assoc. Newspapers, Ltd., 611 F.3d 601, 608 (9th Cir. 2010). "Where, as here, a motion to dismiss is based on written materials rather than an evidentiary hearing, the plaintiff need only make a prima facie showing of jurisdictional facts. Uncontroverted allegations in the complaint must be taken as true, and conflicts over statements contained in affidavits must be resolved in" the plaintiff's favor. Id.
Since there is no applicable federal statute governing personal jurisdiction here, California law applies. California's jurisdictional statute "is coextensive with federal due process requirements." Id. at 609. Under those due process requirements, personal jurisdiction may be based upon either "general" or "specific" jurisdiction. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 801 (9th Cir. 2004).
1. General Jurisdiction
"For general jurisdiction to exist over a nonresident defendant..., the defendant must engage in continuous and systematic general business contacts, ' that approximate physical presence' in the forum state. This is an exacting standard, as it should be, because a finding of general jurisdiction permits a defendant to be haled into court in the forum state to answer for any of its activities anywhere in the world." Id. (citations omitted).
Plaintiff does not appear to allege and, in any event, has not come close to making a prima facie showing, that either Eureste or NLLAC is subject to general jurisdiction in California. No evidence, or even allegation in the Complaint or Plaintiff's opposition, contradicts Eureste's affidavits. He attests that he lives in Texas and has never so much as visited California. His alleged internet blog, "Voice of the Mainland, " is insufficient to confer general jurisdiction in California. See Shymatta v. Papillon, 2011 WL 1542145, at *3 (D. Idaho April 21, 2011) ("The few district courts to have considered blogs specifically have found them insufficient to establish general personal jurisdiction.").
As NLLAC's President, Eureste also attests that NLLAC does not own any real or personal property in California, does not have a registered agent for service of process, nor any bank accounts or even telephone numbers in California. Again, nothing in the record contradicts this evidence. That NLLAC is an alleged "national" organization is of no moment. Having "national" in the title of an entity's name does not constitute the ...