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Live Face on Web, LLC v. Archevos Corp.

United States District Court, S.D. California

February 23, 2018

Live Face on Web, LLC, Plaintiff,
v.
Archevos Corporation and Scott E. Layne, Defendants.

          ORDER

          Hon. William Q. Hayes, United States District Court.

         The matter before the Court is the Motion to Dismiss Under Rule 12(b)(2) (ECF No 12) filed by Defendant Archevos Corporation.

         I. Background

         On July 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.

         On 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).

         II. Facts and Allegations

         LFOW is 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.

         Archevos 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[1] 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.

         Archevos 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. Id.

         Defendants, or someone acting on their behalf, modified the Website “to include the following website source code and/or text . . .: http://tweople.com/client/multinew.js.php?id=124” (the “Source Code”). FAC at ¶ 22. The Source Code links the Website to a third party's website, http://tweople.com/client/multinew.js.php?id=124 (the “Tweople Website”). Id. at ¶ 23. The Tweople Website links to the file “http://tweople.com/client/playerbase- 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.

         III. Standard of Review

         “In 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)).

         IV. ...


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