United States District Court, C.D. California
L.A. GEM & JEWELRY DESIGN, INC., Plaintiff,
ECOMMERCE INNOVATIONS, LLC dba INSPIRED SILVER; ENDOFRETAIL, INC.; DAVID STRAGER; and DOES 1-10, Defendants.
ORDER RE: DEFENDANTS' MOTION TO DISMISS FOR LACK
OF PERSONAL JURISDICTION AND IMPROPER VENUE 
HONORABLE RONALD S.W. LEW Senior U.S. District Judge.
present Motion to Dismiss for Lack of Personal Jurisdiction
and/or Improper Venue (“Motion”)  arises from
a copyright infringement action between Plaintiff L.A. Gem
& Jewelry Design, Inc. (“Plaintiff”) and
Defendants Ecommerce Innovations, LLC dba Inspired Silver
(“Ecommerce”); Endof Retail, Inc.
(“EOR”); and David Strager
“Defendants”). Having reviewed all papers
submitted pertaining to this Motion, the Court NOW FINDS AND
RULES AS FOLLOWS: the Court GRANTS Defendants' Motion to
Dismiss for Lack of Personal Jurisdiction and Improper Venue
pursuant to Federal Rules of Civil Procedure 12(b)(2) and
12(b)(3) . The Court also DENIES Plaintiff's request
for jurisdictional discovery.
is a California corporation with its principal place of
business in Los Angeles. Compl. ¶ 3, ECF No. 1.
Plaintiff designs and creates jewelry and original artwork.
Id. at ¶¶ 10-11. Ecommerce is a Nevada LLC
with its principal place of business in Las Vegas.
Id. at ¶ 4. Ecommerce is an online retailer
that sells jewelry under other brand names like
“Inspired Silver.” Decl. of David Strager
(“Strager Decl.”) ¶ 7, ECF No. 13-1. EOR is
a Delaware corporation with its principal place of business
in Redondo Beach, California. Compl. ¶ 5. EOR is a
division of Ecommerce that offers daily online deals for
fashion and beauty products. Strager Decl. ¶ 11.
Defendants also manufacture and distribute jewelry products.
Compl. ¶ 12. Strager is the founder and CEO of EOR and
Ecommerce, and resides in Nevada. Compl. ¶ 6; Strager
Decl. ¶ 4.
2011-2014, Plaintiff designed various iterations of an
“LA Rocks I Love You to the Moon and Back”
pendant. Compl. ¶¶ 14, 22. Plaintiff registered a
copyright for the pendants, id. at ¶¶ 14,
23, and claims that Defendants have sold unauthorized and
infringing copies of the pendants. Id. at
¶¶ 20, 31-32. Ecommerce sells the allegedly
infringing jewelry through its website,
www.inspiredsilver.com, its jewelry club at
www.jewelryclub.inspiredsilver.com and through
retailers www.bonanza.com and
www.amazon.com. Id. at ¶ 4. EOR sells
the allegedly infringing jewelry through its personal
website, www.endofretail.com and through
www.bonanza.com. Id. at ¶ 5.
filed a Complaint on December 16, 2016, alleging copyright
infringement and contributory/vicarious infringement. See
generally Compl. On February 9, 2017, Defendants filed a
Motion to Dismiss for Lack of Personal Jurisdiction and
Improper Venue . On February 21, Plaintiff filed its
Opposition . Defendants filed a Reply on February 28,
Federal Rule of Civil Procedure 12(b)(2)
defendant moves to dismiss for lack of personal jurisdiction,
the plaintiff bears the burden of demonstrating that the
court may properly exercise jurisdiction over the defendant.
Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1154 (9th
Cir. 2006). Absent formal discovery or an evidentiary
hearing, a plaintiff need only make a prima facie showing
that jurisdiction is proper to survive dismissal.
Id. at 1154.
satisfy this burden, a plaintiff can rely on the allegations
in his complaint to the extent they are not controverted by
the moving party. Barantsevich v. VTB Bank, 954
F.Supp.2d 972, 982 (C.D. Cal. 2013). If defendants adduce
evidence controverting the allegations, however, the
plaintiff must “come forward with facts, by affidavit
or otherwise, supporting personal jurisdiction.”
Id. at 982 (citation omitted).
general rule is that personal jurisdiction over a defendant
is proper if it is permitted by a long-arm statute and if the
exercise of that jurisdiction does not violate federal due
process.” Pebble Beach, 453 F.3d at 1154-55.
California authorizes jurisdiction in the full extent
permitted by the Constitution. See Cal. Code Civ.
Proc. § 410. Therefore, the only question the Court must
ask is whether the exercise of jurisdiction over defendants
would be consistent with due process. Harris Rutsky &
Co. Ins. Servs., Inc. v. Bell & Clements Ltd., 328
F.3d 1122, 1129 (9th Cir. 2003).
process requires that a defendant must have such
“minimum contacts” with the forum state that
“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 minimum contacts required mean that the defendant
must have purposefully availed itself of the privilege of
conducting activities within the foreign jurisdiction,
thereby invoking the benefits and protections of the foreign
jurisdiction's laws. See Asahi Metal Indus. Co. v.
Sup. Ct. of Cal., 480 U.S. 102, 109 (1987). There are
two recognized bases for exercising jurisdiction over a
nonresident defendant: (1) “general jurisdiction,
” which arises where defendant's activities in the
forum are sufficiently “substantial” or
“continuous and systematic” to justify the
exercise of jurisdiction over him in all matters; and (2)
“specific jurisdiction, ” which arises when a
defendant's specific contacts with the forum give rise to
the claim in question. Helicopteros Nacionales de
Colombia, S.A. v. Hall, 466 U.S. 408, 414-16 (1984). 2.
Federal Rule of Civil Procedure 12(b)(3) Federal
Rule of Civil Procedure 12(b)(3) allows a party to file a
motion to dismiss on the basis of improper venue. The
plaintiff is required to establish that venue is proper as to
each defendant and as to each claim. Allstar Mktg. Grp.,
LLC v. Your Store Online, LLC, 666 F.Supp.2d 1109, 1126
(C.D. Cal. 2009)(quotation omitted). Venue in a copyright
action “may be instituted in the district in which the
defendant or his agent resides or may be found.” 28
U.S.C. § 1400(a). Thus, in order to determine whether
venue is proper in this District, the Court must determine
whether it has personal jurisdiction over defendant. See
Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de
Guinee, 456 U.S. 694, 711 n.1 (1982); see also
Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 243
F.Supp.2d 1073, 1095 (C.D. Cal. 2003) (“Because the
Court concludes that jurisdiction is proper in this district
[over copyright defendant], venue is proper as well.”).
Plaintiff's Request for Judicial Notice
seeks judicial notice of four items. First, Ecommerce's
August 27, 2003 and September 4, 2015 “Statement of
Information” filings with the California Secretary of
State. Pl.'s Req. for Judicial Notice (“Pl.'s
RJN”) 2:7-9, Ex. 1, ECF No. 17-3. Second, the record
for Trademark Registration Number 3124880, Ecommerce's
trademark registration for “Inspired Silver” from
the Trademark Electronic Search System (“TESS”)
on the United States Patent and Trademark Office
(“USPTO”) website, dated August 1, 2006; and the
record for Trademark Registration Number 4309910 for
EOR's “End of Retail” trademark registration
from the TESS on the USPTO, dated March 26, 2013.
Id. at 2:10-13, Ex. 2. Third, (1) keyword search
results for “I love you to the moon and back
440811" from the database of registered copyrights on
the Copyright Office's website; (2) and Plaintiff's
“LA rocks I Love You to the Moon and Back: 440811"
Copyright Registration No. VA000912320. Id. at
2:14-17, Ex. 3. Fourth, the Complaint and Civil Cover Sheet
for Ecommerce's 2008 lawsuit filed in this Court,
Ecommerce Innovations, LLC v. Does 1-10, No.
2:08-cv-04596-R-SS (C.D. Cal. July 11, 2008), ECF Nos. 1,
1-2. Id. at 2:18-20, Ex. 4. Defendants object to
each of these requests on the grounds that the proffered
documents are unauthenticated or not certified copies.
See generally Defs.' Evid. Objs.
(“Defs.' Objs.”), ECF No. 19.
Court GRANTS Plaintiff's Request for
Judicial Notice [17-3] in its entirety. The California
Secretary of State filings are appropriate for judicial
notice, as they are matters of public record, and Defendants
have offered no compelling reason why the documents are
inauthentic. Theta Chi Fraternity, Inc. v. Leland
Stanford Jr. Univ., ---F.Supp.3d---, 2016 WL 4524305, at
*4 (N.D. Cal. Aug. 30, 2016). The USPTO trademark
registrations are also judicially noticeable. TESS “is
an official record memorializing the applications for the
marks, and is published by a government organization [the
USPTO];” thus, the exhibits' accuracy cannot
reasonably be questioned. Eksouzian v. Albanese, No.
CV 13-728 PSG (MANx), 2013 WL 12139828, at *n.2 (C.D. Cal.
July 12, 2013).
remaining exhibits are also judicially noticeable. Judicial
notice is appropriate for copyright registration documents.
Idema v. Dreamworks, Inc., 90 F. App'x 496, 498
(9th Cir. 2003). Because the Copyright Office database search
results are publicly available and Defendants offer no
compelling reason why they are inauthentic or subject to
dispute, judicial notice is appropriate. Finally, a court may
“take judicial notice of the existence of
another court's opinion or of the filing of pleadings in
related proceedings; the Court may not, however, accept as
true the facts found or alleged in such documents.”
Peel v. BrooksAmerica Mortg. Corp., 788 F.Supp.2d
1149, 1158 (C.D. Cal. 2011)(emphasis added)(citations
omitted). The Court takes judicial notice of the 2008
Complaint for the existence of its filing, but does
not rely on the statements therein in its ruling on the
Parties have filed objections to one another's
declarations, exhibits, and requests for judicial notice. ECF
Nos. 17-2, 19. To the extent the Court relies upon the
objected-to evidence in reaching its conclusions, the Court
addresses those objections below. However, to the extent the
Court has not relied on the objected to evidence, it need not
rule on those evidentiary objections and deems the objections
objects to the Strager Declaration and Supplemental Strager
Declaration. Plaintiff objects to Paragraph 8, lines 10-2 and
Paragraph 12, lines 8-10 of the Strager Declaration where he
declares that “the amount of transactions [Defendants]
achieved from California residents over the past five years
accounts for less than 10% of [Defendants'] total
sales.” Pl.'s Objs. to Strager Decl. 3:4-4:23, ECF
No. 17-2. Plaintiff objects on the grounds of lack of
foundation, best evidence rule, hearsay, irrelevance, and
prejudice. As CEO, Strager has personal knowledge regarding
ECommerce and EOR's sales, and the information is
relevant to the personal jurisdiction inquiry. The Court
OVERRULES Plaintiff's objections in
objects to Paragraphs 4 and 5 in the Supplemental Strager
Declaration where he declares that Defendants relocated their
operations and principal place of business to Las Vegas,
Nevada in June 2013. Plaintiff objects on the
grounds that the evidence's prejudice outweighs its
probative value. See generally Pl.'s Objs, ECF
No. 22. Because this evidence directly controverts
Plaintiff's insistence that Defendants conduct business
in Los Angeles, these statements are relevant to the issue of