United States District Court, N.D. California
ORDER GRANTING MOTION TO SET ASIDE DEFAULT, DENYING
MOTION TO DISMISS, AND GRANTING MOTION TO ENFORCE SETTLEMENT
CHARLES R. BREYER, UNITED STATES DISTRICT JUDGE
Vegan LLC (“Souley Vegan”) settled its Lanham Act
and California unfair competition claims against defendants
Deborah, Leroy, and Yachidiyel Webb (collectively,
“Webb”) in an agreement requiring Webb to replace
the name “Souly Vegan Café” with
“SooGood Vegan Café.” Webb violated the
Settlement Agreement by continuing to use the name
“Souly Vegan Café” and taking steps to
adopt a new name other than “SooGood Vegan
Café.” Souley Vegan sought and received a
default judgment against Webb.
motions followed. First, Webb moves to set aside the default.
Mot. to Set Aside Default (dkt. 20). The motion is unopposed,
so it will be granted. Second, Webb moves to dismiss for lack
of personal jurisdiction and improper venue or, in the
alternative, to transfer venue. Mot. to Dismiss (dkt. 23).
Because Webb waived objections to personal jurisdiction and
venue explicitly, in the Settlement Agreement, and
implicitly, by failing to raise those defenses in her motion
to set aside the default, the motion to dismiss will be
denied. Third, Souley Vegan moves to enforce the Settlement
Agreement. Mot. to Enforce (dkt. 26). Because none of
Webb's claimed defenses to enforcement of the agreement
apply, Souley Vegan's motion will be granted.
Vegan is a vegan soul food restaurant in Oakland, California.
Dyson Decl. ¶¶ 3-4 (dkt. 33). Souly Vegan
Café is a vegan soul food restaurant in Durham, North
Carolina. Cheruvu Decl. Ex. A ¶ B (dkt. 26). The similar
names have led to various mix-ups, such as social media posts
tagging the wrong restaurant, orders placed with the wrong
establishment, and employees calling in sick to the wrong
employer. Dyson Decl. ¶ 10.
hearing about Souly Vegan Café from a customer,
Id. ¶ 8, Souley Vegan sent Webb multiple
cease-and-desist letters, Supp. Cheruvu Decl. Exs. A; C (dkt.
33). Webb's then-attorney, James Ruane, replied that Webb
did not believe there was any danger of consumer confusion.
Id. Ex. B. Unsatisfied with this response, Souley
Vegan filed suit, bringing Lanham Act claims for trademark
infringement and false designation of origin as well as a
California unfair competition claim. Compl. at 7-10 (dkt. 1).
after Souley Vegan filed the instant action, Souly Vegan
Café shareholder and former manager Vinston Wickers
contacted Souley Vegan's lawyer, Padmini Cheruvu, to
initiate settlement negotiations. Cheruvu Decl. Ex. C. For
the next four months, Cheruvu and Vickers discussed a
possible settlement agreement by phone and email.
Id. Negotiations focused on finding a mutually
acceptable new name for Webb's restaurant. Id.
At one point, Cheruvu offered to draft an agreement allowing
Webb to choose any new name other than “SoulGood
Café, ” “SoulGood Vegan Café,
” or “Soul-licious Vegan Café.”
Id. But in the end, the parties settled on a
specific new name for Webb's restaurant: “SooGood
Vegan Café.” Id.
Settlement Agreement was signed April 9, 2019, by Souley
Vegan owner Tamearra Dyson and defendants Deborah, Leroy, and
Yachidiyel Webb. Errata Ex. 1 at 6 (dkt. 32). It requires
Webb to cease using the name “Souly Vegan
Café” and adopt the name “SooGood Vegan
Café” within thirty days. Id.
¶¶ 1-3. The Settlement Agreement's forum
selection clause provides that “[t]he United States
District Court for the Northern District of California, or
the appropriate state court in the city and county of
Alameda, shall have exclusive jurisdiction over any legal
action or proceeding arising out of or relating to this
Agreement.” Id. ¶ 17. The forum selection
clause waives any objection to the personal jurisdiction or
venue of those courts. Id.
violated the Settlement Agreement by continuing to do
business as Souly Vegan Café after the thirty-day
phase-out period ended, failing to adopt the name
“SooGood Vegan Café, ” and attempting to
adopt the name “Soul Good Vegan Café.”
Cheruvu Decl. ¶¶ 7-13. In response, Souley Vegan
moved for entry of default, on the grounds that Webb failed
to timely appear or respond to the complaint. Mot. for
Default (dkt. 16). Default was entered June 5, 2019. Entry of
Default (dkt. 18).
two months later, Webb moved to set aside default, Mot. to
Set Aside Default, which Souley Vegan does not oppose,
Statement of Non-Opp'n (dkt. 30). Webb subsequently filed
a motion to dismiss for lack of personal jurisdiction and
improper venue, or, in the alternative, to transfer venue.
See generally Mot. to Dismiss. Souley Vegan then
filed a motion to enforce the Settlement Agreement. See
generally Mot. to Enforce.
MOTION TO DISMISS
Dismissal for Lack of Personal Jurisdiction
defendant may challenge the Court's personal jurisdiction
under Federal Rule of Civil Procedure 12(b)(2). The plaintiff
bears the burden of establishing the Court's personal
jurisdiction over the defendant. Cubbage v.
Merchent, 744 F.2d 665, 667 (9th Cir. 1984). “When
a district court acts on a defendant's motion to dismiss
under Rule 12(b)(2) without holding an evidentiary hearing,
the plaintiff need make only a prima facie showing
of jurisdictional facts to withstand the motion to
dismiss.” Ballard v. Savage, 65 F.3d 1495,
1498 (9th Cir. 1995). This standard is satisfied if the
plaintiff produces admissible evidence which, if believed,
would be sufficient to establish personal jurisdiction.
See Harris Rutsky & Co. Ins. Servs., Inc. v. Bell
& Clemens Ltd., 328 F.3d. 1122, 1129 (9th Cir.
2003). Uncontroverted allegations in the plaintiff's
complaint must be taken as true, and factual conflicts must
be resolved in the plaintiff's favor. Id.
Dismissal for Improper Venue
Rule of Civil Procedure 12(b)(3) provides that if an action
is brought in the wrong court, a defendant can move to
dismiss for improper venue. In deciding such a motion, the
pleadings need not be accepted as true and the Court may
consider facts outside the pleadings. Murphy v. Schneider
Nat'l, Inc., 362 F.3d 1133, 1137 (9th Cir. 2004).
All reasonable inferences and factual conflicts should be
resolved in favor of the non-moving party. Id. at