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L.A. Gem and Jewelry Design, Inc. v. Ecommerce Innovations, LLC

United States District Court, C.D. California

April 27, 2017



          HONORABLE RONALD S.W. LEW Senior U.S. District Judge.

         The present Motion to Dismiss for Lack of Personal Jurisdiction and/or Improper Venue (“Motion”) [13] 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 (“Strager”)(collectively, “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) [13]. The Court also DENIES Plaintiff's request for jurisdictional discovery.

         I. BACKGROUND

         A. Factual Background

         Plaintiff 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.[1] 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.

         From 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,, its jewelry club at and through retailers and Id. at ¶ 4. EOR sells the allegedly infringing jewelry through its personal website, and through Id. at ¶ 5.

         B. Procedural Background

         Plaintiff 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 [13]. On February 21, Plaintiff filed its Opposition [17]. Defendants filed a Reply on February 28, 2017 [18].


         A. Legal Standard

         1. Federal Rule of Civil Procedure 12(b)(2)

         When a 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.

         To 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).

         “The 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).

         Due 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.”).

         B. Analysis

         1. Plaintiff's Request for Judicial Notice

         Plaintiff 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.

         The 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).

         The two 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 instant Motion.

         2. Evidentiary Objections

         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 moot.

         a. Plaintiff's Objections

         Plaintiff 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 their entirety.

         Plaintiff 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 ...

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