United States District Court, S.D. California
William Q. Hayes, United States District Court.
matter before the Court is the Motion to Dismiss Under Rule
12(b)(2) (ECF No 12) filed by Defendant Archevos Corporation.
21, 2017, Plaintiff Live Face on Web, LLC
(“LFOW”) initiated this action by filing the
Complaint (ECF No. 1) against Defendants Archevos Corporation
(“Archevos”) and Scott E. Layne. On July 31,
2017, LFOW filed the First Amended Complaint (the
“FAC”) (ECF No. 4). The FAC is the operative
complaint in this matter.
October 10, 2017, Archevos filed a Motion to Dismiss Under
Rule 12(b)(2) (ECF No. 12) as well as a Declaration of Scott
Layne in Support of the Motion to Dismiss (the “First
Layne Declaration”) (ECF No. 12-2). On October 16,
2017, LFOW filed an Opposition to the Motion to Dismiss (ECF
No. 14) along with the Declaration of Imran Vakil (ECF No.
14-1) and twelve Exhibits (ECF Nos. 14-2 and 14-3). On
November 6, 2017, Archevos filed a Reply in Support of the
Motion to Dismiss (ECF No. 16) as well as a Declaration of
Scott Layne in Support of the Reply (the “Second Layne
Declaration”) (ECF No. 16-1).
Facts and Allegations
a Pennsylvania limited liability company. FAC at ¶ 5.
LFOW is a software company specializing in borderless video
technology. LFOW is the developer and owner of “live
person” software, which is an original work of
authorship independently created by LFOW (“LFOW
Code”). The LFOW Code allows a company to display a
video of a “walking” and “talking”
personal host who introduces a website to an online visitor.
Id. at ¶¶ 9-10.
is a Wyoming corporation. LFOW'S Exhibit 1, ECF No. 14-2,
at 2. Scott Layne is the President of Archevos. First Layne
Declaration, ECF No. 12-1, at ¶ 2. “Layne resides
in Encinitas California.” Answer of Defendant Scott
Layne, ECF No. 11, at ¶ 7. Earl Hopper holds stock in
Archevos. Second Layne Declaration, ECF No. 16-1, at ¶
6. Archevos leases an office in Arizona where it “meets
clients and potential clients” and “conducts firm
business such as board meetings. Id. at ¶ 5.
operates the website www.experdocs.com (the
“Website”). FAC at ¶ 7; see also
Second Layne Declaration at ¶ 8 (referring to “the
Archevos website.”). Experdocs is a software product
that stores files electronically. Second Layne Declaration at
¶ 3. The Website states that “experdocs servers
are maintained . . . in Southern California.” Vakil
Declaration, Exhibit 7, ECF No. 14-3 at 2. Archevos markets
and sells Experdocs on the Website. Second Layne Declaration
at ¶ 3. Archevos does not own Experdocs.
or someone acting on their behalf, modified the Website
“to include the following website source code and/or
text . . .:
(the “Source Code”). FAC at ¶ 22. The Source
Code links the Website to a third party's website,
(the “Tweople Website”). Id. at ¶
23. The Tweople Website links to the file
multi.js” (the “Tweople Playerbase”).
Id. The Tweople Playerbase infringes on LFOW's
copyright in the LFOW Code. Id. “[W]hen a web
browser retrieves a page from the  Website, a copy of [the
Tweople Playerbase] is distributed by Defendants to the
website visitor” causing a “web spokesperson
video [to] launch on [the] Website.” Id. at
¶¶ 24, 26.
Standard of Review
opposition to a defendant's motion to dismiss for lack of
personal jurisdiction, the plaintiff bears the burden of
establishing that jurisdiction is proper.”
Boschetto v. Hansing, 539 F.3d 1011, 1015 (9th Cir.
2008). Where, as here, the parties have submitted
declarations and exhibits in support of their motion and
opposition; see ECF Nos. 12-2, 14-1, 14-2, 14-3, and 16-1;
the Court considers both the allegations in the
plaintiff's complaint and the declarations and exhibits
submitted by the parties. Mavrix Photo, Inc. v. Brand
Techs., Inc., 647 F.3d 1218, 1223 (9th Cir. 2011). The
Court accepts as true all uncontroverted allegations in the
plaintiff's complaint and “draw[s] reasonable
inferences from the complaint in favor of the
plaintiff.” Fiore v. Walden, 688 F.3d 558,
574-75 (9th Cir. 2012), rev'd on other grounds,
134 S.Ct. 1115 (2014). However, the Court does not accept as
true allegations that are contradicted by factual material
submitted by the parties. Mavrix, 647 F.3d at 1223
(quoting Data Disc, Inc. v. Sys. Tech. Assocs.,
Inc., 557 F.2d 1280, 1284 (9th Cir. 1977)).