United States District Court, N.D. California, San Jose Division
ORDER GRANTING MOTION TO DISMISS FOR LACK OF PERSONAL
JURISDICTION WITH LEAVE TO AMEND Re: Dkt. No. 51
H. Koh United States District Judge.
RAPC Worldwide, P.C. (“Plaintiff”) sued eighteen
defendants, including WTMR, LLC (“Defendant”),
for alleged violations of the Lanham Act, California's
False Advertising Law, and California's Unfair
Competition Law, as well as a claim for intentional
interference with prospective economic advantage. ECF No. 1.
Before the Court is Defendant's motion to
dismiss. ECF No. 18. Having considered the
submissions of the parties, the relevant law, and the record
in this case, the Court GRANTS Defendant's motion to
dismiss with leave to amend.
is a California professional corporation with a principal
place of business in Mountain View, California and a law
office located in Tempe, Arizona. ECF No. 1 at ¶ 18
(“Compl.”). Plaintiff “offers services
including trademark preparation and prosecution, patent
preparation and prosecution, copyright registration and
counseling, international trademark and patent filings, and
corporate formation and stock and equity structuring.”
Id. ¶ 41. Plaintiff “has clients for
intellectual property services in all 50 states and more than
300 cities and towns across America.” Id.
alleges that companies, termed “Mailer Defendants,
” “use publicly available trademark filer
information to send targeted ‘solicitations' to . .
. trademark applicants.” Id. ¶¶ 2,
43. The “‘solicitations' are constructed to
[deceptively] make the trademark applicant believe that an
official U.S. government agency or the [United States Patent
& Trademark Office (“USPTO”)] itself is
sending a letter to them, raising fear among the unsuspecting
public that they must pay large amounts of money or forfeit
trademark rights.” Id. ¶ 2. These
“Mailer Defendants” provide no real services and
“result in no value to trademark owners.”
alleges that Mailer Defendants “appear to originate . .
. [in] countries outside the United States (most frequently
from eastern Europe).” Id. ¶ 3. As
relevant to the instant motion to dismiss, Plaintiff asserts
that Defendant is one such “Mailer Defendant, ”
and that Defendant lists a Washington, D.C. address for its
business, but is actually located in Hungary. Id.
¶¶ 59-63. Defendant allegedly sends out unsolicited
offers and directs recipients to pay a $980 registration fee
to have the recipients' trademark listed in
Defendant's publication. Id. ¶ 65. The
unsolicited offer, however, fails to mention that trademark
applications are a matter of public record and, once
approved, trademark applications are published in the
USPTO's Official Gazette. Id. ¶ 66.
Instead, the unsolicited offer is “deliberately
constructed to deceive recipients into thinking the
unsolicited offer is a bill so the recipient will send a
check as a payment for something they think is already owed
to protect a trademark.” Id. ¶ 80.
Plaintiff alleges that it “has received over 40
unsolicited offers from [Defendant] in the past year,
directed to both RACP's clients and to individuals
employed by RAPC.” Id. ¶ 73. Defendant
acknowledges that some trademark owners who received
Defendant's unsolicited offer “may reside in
California, ” Popovics Decl. ¶ 8, but that
Plaintiff's Complaint fails to allege whether it received
Defendant's unsolicited offers at its California office
or its Arizona office or whether Plaintiff's clients
received Defendant's unsolicited offers in California or
result of the Mailer Defendants' actions, Plaintiff
asserts that “significant business” was
deceptively diverted to Mailer Defendants. Id.
¶ 198. Plaintiff also alleges that Plaintiff's
business reputation was harmed because Plaintiff
“received inquiries from its clients confused about the
unsolicited actions by the Mailer Defendants and worried that
[Plaintiff's] services to the clients were somehow
deficient.” Id. ¶ 199. Plaintiff claims
that it spent “valuable time and expenses to
investigate the facts to appropriately advise its
clients.” Id. ¶ 200.
March 25, 2019, Plaintiff sued eighteen defendants and
alleged the following causes of action: (1) violations of the
Lanham Act, 15 U.S.C. § 1125(a); (2) violations of
California's False Advertising Law, Cal. Bus. & Prof.
Code § 17500; (3) violations of California's Unfair
Competition Law, Cal. Bus. & Prof. Code § 17200; and
(4) intentional interference with prospective economic
advantage. Compl. ¶¶ 203-61. The eighteen
defendants fell into two categories: “Mailer
Defendants, ” which are entities that directly engaged
in the allegedly false advertising; and “Logistics
Enablers, ” which are companies that provided domestic
mailing addresses to the foreign “Mailer
Defendants” that facilitated the allegedly fraudulent
conduct. Id. ¶ 1; see generally Id.
date, Plaintiff has voluntarily dismissed six of the seven
“Logistics Enablers” and three of the eleven
“Mailer Defendants.” ECF Nos. 16, 25, 28, 33, 42,
48, and 72. The final “Logistic Enabler”
defendant filed a motion to dismiss based on personal
jurisdiction, and the Court granted the motion with leave to
amend on October 23, 2019. ECF No. 82. Six of the
“Mailer Defendants” were served but did not
appear, and the Clerk entered default against them.
See ECF Nos. 47, 64, and 66.
two Mailer Defendants, one filed an answer (ECF No. 78), and
the other one, Defendant, filed the instant motion to dismiss
on July 22, 2019. ECF No. 51 (“Mot.”). Defendant
contends that Plaintiff lacks Article III standing to bring
this suit, personal jurisdiction over Defendant is absent,
venue is improper in this district, and that Plaintiff fails
to state a claim. Plaintiff filed an opposition on August 5,
2019, ECF No. 57 (“Opp.”), and Defendant filed a
reply on August 12, 2019, ECF No. 63 (“Reply”).
instant motion, Defendant raises four grounds for dismissing
Plaintiff's Complaint: (1) lack of Article III standing,
under Rule 12(b)(1); (2) lack of personal jurisdiction, under
Rule 12(b)(2); (3) improper venue, under Rule 12(b)(3); and
(4) failure to state a claim, under Rule 12(b)(6). Because
Article III standing implicates constitutional limitations on
our power to decide a case, the Court addresses
Defendant's standing argument first. Friery v. Los
Angeles Unified Sch. Dist., 448 F.3d 1146, 1148 (9th
Cir. 2006) (“As standing implicates Article III
limitations on our power to decide a case, we must address it
before proceeding to the merits.”). The Court then
turns to Defendant's personal jurisdiction argument.
Because the Court resolves the case by addressing only
Article III standing and personal jurisdiction, the Court
confines its review of the applicable legal standards to
those under Rules 12(b)(1) and 12(b)(2).
Motion to Dismiss under Rule 12(b)(1)
motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(1) tests whether the court has subject matter
jurisdiction. While lack of “statutory standing”
requires dismissal for failure to state a claim under Rule
12(b)(6), lack of Article III standing requires dismissal for
want of subject matter jurisdiction under Rule 12(b)(1).
See Nw. Requirements Utilities v. F.E.R.C., 798 F.3d
796, 808 (9th Cir. 2015) (“Unlike Article III standing,
however, ‘statutory standing' does not implicate
our subject-matter jurisdiction.” (citing Lexmark
Int'l, Inc. v. Static Control Components, Inc., 572
U.S. 118, 128 n.4 (2014)); Maya v. Centex Corp., 658
F.3d 1060, 1067 (9th Cir. 2011). “A Rule 12(b)(1)
jurisdictional attack may be facial or factual.”
Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039
(9th Cir. 2004).
a facial attack, the challenger asserts that the allegations
contained in a complaint are insufficient on their face to
invoke federal jurisdiction.” Id. The court
“resolves a facial attack as it would a motion to
dismiss under Rule 12(b)(6): Accepting the plaintiff's
allegations as true and drawing all reasonable inferences in
the plaintiff's favor, the court determines whether the
allegations are sufficient ...