Motion Picture Association of America v. CrystalTech Web Hosting Inc.

Filing 169

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Motion Picture Association of America v. CrystalTech Web Hosting Inc. Doc. 16 1 2 3 4 5 6 7 8 Chris P. Perque, TX Bar No. 24005828 GARDERE WYNNE SEWELL LLP 1000 Louisiana, Suite 3400 Houston, TX 77002-5011 Telephone: 713-276-5020 Facsimile: 713-276-6020 Attorney for Plaintiffs IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA GEORGE KESSEL INTERNATIONAL, INC., and BBK TOBACCO & FOODS, INC., Plaintiffs, CV07-323-PHX-SMM MEMORANDUM IN SUPPORT OF THE MOTION FOR LEAVE TO TAKE DISCOVERY ON PERSONAL JURISDICTION (Assigned to the Hon. Stephen M. McNamee) 9 v. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 1 1. CLASSIC WHOLESALES, INC. and AMERICAN WEIGH SCALES, INC., Defendants. Plaintiffs George Kessel International, Inc. and BBK Tobacco & Foods, Inc. d/b/a HBI International, through undersigned counsel, file this memorandum in support of their Motion for Leave to Take Discovery on Personal Jurisdiction. support of that motion, Plaintiffs would show: FACTUAL BACKGROUND Plaintiffs incorporate herein by reference the Factual Background section In further of Plaintiffs' Response to Defendants' Motion to Dismiss filed contemporaneously herewith. 2. This suit includes claims for patent and trademark infringement asserted against Defendants, X.J. Group, Ltd., X.J. Group (USA), Inc., Classic Wholesales, Inc., and American Weigh Scales, Inc. (collectively, "Defendants"). Plaintiffs alleged in their 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 First Amended Complaint, that Defendants have directly and indirectly committed acts of infringement in this forum through the offer for sale and sale of products that infringe the patent-in-suit, U.S. Patent No. D533,798, and through promotions using Plaintiffs' CONVERTIBLE mark. 3. Plaintiffs have filed herewith the Declaration of Charles Bachmann with attached exhibits evincing sales and offers for sale of infringing products manufactured and imported by Defendants X.J. Group Ltd. and X.J. Group (USA), Inc. and offered for sale and sold to Arizona residents by Defendants American Weigh, Inc. and Classic Wholesales, Inc. 1 Plaintiffs have not yet taken discovery from any of the Defendants regarding their contacts with Arizona. 4. Defendants in their motion to dismiss argue that it would be improper for this Court to exercise jurisdiction over them because they are nonresidents and their "distributing" and other operations are not located in Arizona and that Defendants American Weigh and Classic Wholesales do not direct their infringing activity toward the residents of this State.2 That argument is not supported by a declaration or any other evidence. ARGUMENT 5. Plaintiffs have made prima facie allegations in their First Amended Complaint that Defendants have directly and indirectly committed acts of infringement in this forum. Defendants failed to support the argument in their motion with evidence that controverts Plaintiffs' allegations. In addition, Plaintiffs submitted evidence of offers for sale and actual sales of infringing products made by Defendants directly and 1 2 Declaration of Charles Bachmann, filed herewith, 3-5. Docket No. 19, p. 3-4. 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 indirectly in this forum. Under these circumstances, Defendants' motion should be denied. However, if the Court is not inclined to do so at this time, Plaintiffs should be granted leave to take discovery on personal jurisdiction. 6. The Federal Circuit has held that a district court should allow jurisdictional discovery if timely requested and supported by a threshold showing that supports the exercise of jurisdiction. Commissariat a l'Energie Atomique v. Chi Mei Optoelectronics Corp., 395 F.3d 1315, 1323 (Fed. Cir. 2005); see also Trintec Industries, Inc. and Time to Invent, LLC v. Pedre Promotional Products, Inc., 395 F.3d 1275, 1283 (Fed. Cir. 2005) (ordering district court to allow jurisdictional discovery upon a finding that record not sufficient to support jurisdiction) In this instance, Plaintiffs have timely requested jurisdictional discovery, and they have already established a distribution chain from the manufacturer X.J. Group, Ltd. to the distributors, Defendants American Weigh and Classic Wholesales, that are offering for sale and selling infringing products in Arizona. This showing is sufficient to establish that jurisdictional discovery will likely provide additional evidence further supporting this Court's exercise of jurisdiction over the Defendants. For the foregoing reasons, Plaintiffs respectfully urge that the Court grant the their leave to take jurisdictional discovery. RESPECTFULLY SUBMITTED this 30th day of May, 2007. Gardere Wynne Sewell LLP s/ Chris P. Perque 23 24 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Chris P. Perque Attorneys for Plaintiff 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 CERTIFICATE OF SERVICE I hereby certify that on May 30, 2007, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/EFC registrants: Joel E. Sannes Lake & Cobb, P.L.C. 1095 W. Rio Salado Pkwy., Suite 205 Tempe, Arizona 85281 John N. Skiba Skiba Law Group, PLC One North Macdonald, Suite 201 Mesa, Arizona 65201 The Hon. Stephen M. McNamee United States District Court Sandra Day O'Connor U.S. Courthouse, Suite 625 401 W. Washington Street, SPC 60 Phoenix, AZ 85003-2158 By ___Chris P. Perque /s/________________ 5

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