WeWork Companies Inc. v. Weplus (Shanghai) Technology Co., Ltd.

          AMENDED ORDER GRANTING DEFENDANT'S MOTION TO DISMISS UNDER FEDERAL RULE OF CIVIL PROCEDURE 12(B)(1) RE: DKT. NO. 49

          EDWARD J. DAVILA UNITED STATES DISTRICT JUDGE.

         This order amends the previous order, see Dkt. 63, in that it removes the previous dismissal with prejudice. Defendant's motion to dismiss is GRANTED without prejudice. See Hampton v. Pac. Inv. Mgmt. Co. LLC, 869 F.3d 844, 846 (9th Cir. 2017) (“Dismissals for lack of subject-matter jurisdiction, on the other hand, must be without prejudice, because a lack of jurisdiction deprives the dismissing court of any power to adjudicate the merits of the case.”).

         Before the Court is Defendant We (Shanghai) Technology's motion to dismiss for lack of subject-matter jurisdiction (Fed. R. Civ. P. 12(b)(1)) and failure to state a claim upon which relief can be granted (Fed. R. Civ. P. 12(b)(6)). Motion to Dismiss (“Mot.”), Dkt. 49. Defendant argues this Court lacks subject matter jurisdiction because the case is moot. This Court agrees and GRANTS Defendant's 12(b)(1) motion and does not reach the correlative 12(b)(6) motion.

         I. BACKGROUND

         Plaintiff, an American corporation, provides coworking services around the world under its “WE Marks.” Complaint (“Compl.”) ¶¶ 1, 9, Dkt. 1. Defendant, a Chinese company, provides similar coworking services in China. See Id. ¶ 4. In May 2018, Defendant announced a “grand opening” of its first U.S. coworking location at 755 Sansome Street in San Francisco, California. Id. ¶¶ 4-5. Following this announcement, Defendant's “We” marks were put on the walls of the Sansome location and in other promotional materials. Id. ¶ 29. Defendant promoted the San Francisco coworking space on several pages of its website, which showed images of the space and featured “We” marks. Id. ¶ 33. Plaintiff, concerned that consumers would confuse its brand-name “WeWork” with Defendant's name “We, ” initiated this trademark infringement action to enjoin Defendant from using “We” marks in the United States, including on websites and social media platforms accessible in the United States. Id. ¶ 3, p. 18 (stating prayer for relief). Plaintiff also sought monetary damages. Id. Plaintiff brought this case against five defendants, id. ¶ 10- 14, two remain: Defendant We and Defendant WePlus USA LLC, a California limited liability company. The motion before the court at hand is brought only by Defendant We. See Mot. at 1.

         Initially, Defendant was engaged in discussions with Shanghai Lingang Economic Development Group to lease the ground floor of 755 Sansome Street in San Francisco for 5 years with an express right to sublet office space and meeting rooms to the public. Mot. at 3; Declaration of Allen Lau in Support of Motion to Dismiss (“Lau Decl.”) ¶ 7, Dkt. 49. These discussions, however, never resulted in an actual lease of the space and Defendant never operated out of the space. Lau Decl. ¶ 9; cf. Compl. ¶ 29 (“[T]here are no employees or customers at this location”). Thus, no lease or rental agreements relating to the use of the San Francisco, or any other location were ever operative. Lau Decl. ¶ 10.

         Now, “there is no possibility that We Shanghai will open an office at 755 Sansome Street in the future” because the owners of the building have agreed to a consent injunction that they will not use any “We” trademarks, names, or logos in the United States. Mot. at 3; see also Consent Order and Partial Dismissal of Shanghai Lingang Economic Development (“Consent Order”), Dkt. 36. Additionally, Plaintiff has since leased the entire 755 Sansome building, further preventing Defendant from leasing the space. Mot. at 3; see also Lau Decl. ¶ 11, Ex. C. The “We” mark no longer appears at the 755 Sansome Street. Declaration of Xinyi Yang in Support of Motion to Dismiss (“Yang Decl.”) ¶ 3-8, Dkt. 49.

         Finally, Defendant never opened a San Francisco location and “has abandoned any plans to do so in the United States using its ‘We' mark.” Lao Decl. ¶ 8. It has since removed all references of the San Francisco location from its website. Declaration of Jeffrey Z.Y. Liao in Support of Motion to Dismiss (“Liao Decl.”) ¶¶ 2-8. Further, Defendant is not engaged in any discussions regarding the opening of any such locations. Lao Decl. ¶ 8.

         II. JUDICIAL NOTICE

         Defendant asks this Court to take judicial notice of eight documents, which relate to its motion to dismiss. Request for Judicial Notice (“Req. Jud. Not.”), Dkt. 50. Because this Court does not address the 12(b)(6) motion, it only analyzes those requests applicable to the 12(b)(1) motion; specifically, those that resolve whether Defendant is affiliated with WePlus USA (Requests 1-4, Ex. 1).

         A. Legal Standard

         A court may take judicial notice under Federal Rule of Evidence 201. Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 998 (9th Cir. 2018). Rule 201 permits a court to take judicial notice of an adjudicative fact “not subject to reasonable dispute, ” that is “generally known” or “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201(b).

         B. Discussion

         Requests 1-4, Ex. 1, address information found on the California Secretary of State website and/or “PDF” documents downloaded from the site. Req. Jud. Notice. at 2-3. These requests pertain to publicly available documents, not subject to reasonable dispute, whose accuracy cannot be questioned. See Diaz v. Intuit, Inc., 2018 WL 2215790, at *3 (N.D. Cal. May 15, 2018) (“Publically accessible websites and news articles are ...