United States District Court, N.D. California
ORDER GRANTING IN PART AND DENYING IN PART MOTION TO
RICHARD SEEBORG, UNITED STATES DISTRICT JUDGE
Imagize LLC (“Imagize”) brings suit against
Defendants Ateknea Solutions Hungary KFT
(“Ateknea”), a Hungarian limited liability
company, Aero Glass, Inc. (“Aero Glass”), a
Delaware corporation, and Akos Maroy for copyright
infringement and misappropriation of trade secrets, along
with numerous claims based on contract. Maroy moves to
dismiss Imagize's complaint for insufficient service of
process under Rule 12(b)(5) of the Federal Rules of Civil
Procedure. Additionally, Maroy and Aero Glass (collectively
“Defendants”) move to dismiss Imagize's
copyright infringement claim for failure to state a claim
under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
For the reasons explained below, Maroy's motion under
Rule 12(b)(5) is denied and Defendants' motion under Rule
12(b)(6) is granted.
Service of Process
12(b)(5) of the Federal Rules of Civil Procedure authorizes a
defendant to move for dismissal of an action for insufficient
service of process. Fed.R.Civ.P. 12(b)(5). When a defendant
challenges service, the plaintiff bears the burden of
establishing the validity of service as governed by Rule 4.
See Brockmeyer v. May, 383 F.3d 798, 801 (9th
Failure to State a Claim
complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). While “detailed
factual allegations” are not required, a complaint must
have sufficient factual allegations to state a claim that is
“plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. v.
Twombly, 550 U.S. 544, 555, 570 (2007)). A claim is
facially plausible “when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. (citing Twombly, 550
U.S. at 556). This standard asks for “more than a sheer
possibility that a defendant has acted unlawfully.”
Id. The determination is a context-specific task
requiring the court “to draw on its judicial experience
and common sense.” Id. at 679.
motion to dismiss a complaint under Rule 12(b)(6) of the
Federal Rules of Civil Procedure tests the legal sufficiency
of the claims alleged in the complaint. See Conservation
Force v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir.
2011). Dismissal under Rule 12(b)(6) may be based on either
the “lack of a cognizable legal theory” or on
“the absence of sufficient facts alleged under a
cognizable legal theory.” Id. at 1242
(internal quotation marks omitted). When evaluating such a
motion, the court must accept all material allegations in the
complaint as true and construe them in the light most
favorable to the non-moving party. In re Quality Sys.,
Inc. Sec. Litig., 865 F.3d 1130, 1140 (9th Cir. 2017).
“[C]onclusory allegations of law and unwarranted
inferences, ” however, “are insufficient to
defeat a motion to dismiss for failure to state a
claim.” Caviness v. Horizon Cmty. Learning Ctr.,
Inc., 590 F.3d 806, 812 (9th Cir. 2010).
Service of Process
a responsive pleading by a defendant that fails to dispute a
defect in service or personal jurisdiction will waive any
such defect. See Fed. R. Civ. P. 12(h)(1); see
also Benny v. Pipes, 799 F.2d 489, 492 (9th Cir. 1986).
The essence of Rule 12-embodied in the combined language of
12(g) and 12(h)-is that a party “who by motion invites
the court to pass upon a threshold defense should bring
forward all the specified defenses [personal jurisdiction,
improper venue, insufficient process, or insufficient service
of process] he then has and thus allow the court to do a
reasonably complete job.” Fed.R.Civ.P. 12 advisory
committee's note, 1966 Amendment, subdivision (h). Thus,
if a defendant raises any Rule 12 defenses in his
first filing to the court, he is obliged to raise
all of those specified in Rule 12(h). Am.
Ass'n of Naturopathic Physicians v. Hayhurst, 227
F.3d 1104, 1107 (9th Cir. 2000).
Maroy wrote in his motion to set aside default,
“[P]ersonal jurisdiction does not lie, at least as to
Mr. Maroy.” (See Dkt. 39 at 4:6-7.) Maroy,
however, says nothing about objecting to service. In
Hayhurst, the defendant's failure to raise a
personal jurisdiction defense along with its service defense
precluded the defendant from raising the personal
jurisdiction defense. See Hayhurst, 227 F.3d at
1107. The defenses are different: an objection based on
insufficiency of service of process is delineated under Rule
12(b)(5), while one based on “lack of jurisdiction over
the person” is set forth under Rule 12(b)(2).
Id. By that logic, Maroy's failure to raise an
insufficiency of service defense alongside his personal
jurisdiction defense precludes him from now contesting the
sufficiency of service.
raises several objections to a formal reading of this rule.
First, he argues that he raised the insufficiency of service
in his communications with Imagize prior to litigation,
thereby providing it with notice of the defense. Maroy cites
no analogous case where notice to a plaintiff was enough to
overcome Rule 12's requirements. Second, Maroy asserts
that raising service as a potential issue in his Reply in
support of his Motion to Set Aside Default was enough to
preserve the ...