United States District Court, C.D. California
Neurotech Forty, Inc., et al.
Biocybernaut Institute, Inc., et al.
Present: The Honorable Fernando M. Olguin, United States
CIVIL MINUTES - GENERAL
(In Chambers) Order to Show Cause Re: Personal
Jurisdiction and Venue
October 31, 2019, plaintiffs Neurotech Forty, Inc.
(“Neurotech”), 40 Years, Inc. (“40
Years”), and Dave Asprey (“Asprey”)
(collectively, “plaintiffs”), filed a Complaint
against Biocybernaut Institute, Inc.
(“Biocybernaut”), Biocybernaut Institute of
Arizona, LLC (“Biocybernaut Arizona”), and James
Hardt (“Hardt”) (collectively,
“defendants”), asserting claims for federal
trademark infringement, false designation of origin, false
advertising, misappropriation of right of publicity, and
unfair competition. (See Dkt. 1, Complaint at
¶¶ 35-82). Plaintiffs allege that the court has
personal jurisdiction over defendants because
“Defendants have continuous, systematic, and
substantial presence within this Judicial District and within
California” by “offer[ing] to sell their services
offered in connection with the infringing marks to consumers
in California” through their website. (See id.
at ¶ 3). Plaintiff alleges that venue is proper
“pursuant to 28 U.S.C. [§]§ 1391(b) and
(c).” (Id. at ¶ 4).
Neurotech is a Canada corporation with its principal place of
business in British Columbia, Canada. (Id. at ¶
5). Plaintiff 40 Years is a Delaware corporation with its
principal place of business in Kenmore, Washington.
(Id. at ¶ 6). Plaintiff Asprey is an individual
residing in British Columbia, Canada. (Id. at ¶
7). Defendant Biocybernaut is a California corporation with
its principal place of business in Arizona. (Id. at
¶ 8). Defendant Biocybernaut Arizona is a Arizona
Limited Liability Company with its principal place of
business in Arizona. (Id. at ¶ 9). Defendant
Hardt is an individual residing in Arizona. (Id. at
defendant may be subject to either general or specific
personal jurisdiction. See Daimler AG v. Bauman, 571
U.S. 117, 127-128, 134 S.Ct. 746, 754-55 (2014). General
jurisdiction applies when defendant's contacts with the
forum state are “so continuous and systematic as to
render [them] essentially at home in the forum State.”
Id. at 139, 134 S.Ct. at 761 (quotation and
alteration marks omitted). The court may assert specific
personal jurisdiction over nonresident defendants if three
requirements are met: “(1) [t]he non-resident defendant
must purposefully direct his activities or consummate some
transaction with the forum or resident thereof; or perform
some act by which he purposefully avails himself of the
privilege of conducting activities in the forum, thereby
invoking the benefits and protections of its laws; (2) the
claim must be one which arises out of or relates to the
defendant's forum-related activities; and (3) the
exercise of jurisdiction must comport with fair play and
substantial justice, i.e. it must be reasonable.”
Schwarzenegger v. Fred Martin Motor Co., 374 F.3d
797, 802 (9th Cir. 2004). The court engages in
“purposeful availment” analysis for contract
cases and “purposeful direction” analysis for
tort cases. See id. The court's analysis
“looks to the defendant's contacts with the forum
State itself, not the defendant's contacts with persons
who reside there.” Walden v. Fiore, 571 U.S.
277, 285, 134 S.Ct. 1115, 1122 (2014). “[T]he plaintiff
cannot be the only link between the defendant and the
forum.” Id., 134 S.Ct. at 1122.
generally allege that defendants market, advertise, and sell
“their services online in connection with the
infringing marks through their website . . . which is
available and accessible in California[, ]” (Dkt. 1,
Complaint at ¶ 3), but fail to adequately allege the
connection between this District and the website's
operations and sales, such that defendants Biocybernaut
Arizona and Hardt are subject to personal jurisdiction.
(See, generally, Dkt. 1, Complaint);
see, e.g., Mission Trading Co., Inc. v.
Lewis, 2016 WL 6679556, *3 (N.D. Cal. 2016) (maintenance
of a passive website, alone, cannot satisfy specific
jurisdiction); Graco Minn. Inc. v. PF Brands, Inc.,
2019 WL 1746580, *6 (S.D. Cal. 2019) (selling products on a
website accessible or based in California does not
necessarily show “Defendants engaged in conduct
expressly aimed at California.”). Plaintiff also does
not allege any facts showing that the events giving rise to
this litigation occurred in this District. (See,
generally, Dkt. 1, Complaint).
on the foregoing, IT IS ORDERED that no later than
December 17, 2019, plaintiffs shall file a
First Amended Complaint addressing the deficiencies noted
above. The Order to Show Cause will stand submitted upon the
filing of a First Amended Complaint that addresses the issues
raised in this Order on or before the date indicated above.
Failure to respond to this order to show cause by the
deadline set forth above shall be deemed as consent to
either: (1) the dismissal of the action without prejudice for
lack of personal jurisdiction and/or failure to comply with a
court order; or (2) transfer of the instant action to the
appropriate venue.See Fed.R.Civ.P. 41;
Baeza v. Baca, 700 Fed.Appx. 657 (9th Cir. 2017)
(upholding dismissal for failure to prosecute); Link v.