Speculative Product Design LLC v. Brian McManus et al

Filing 8

MINUTE ORDER (IN CHAMBERS) ORDER TO SHOW CAUSE RE: PERSONAL JURISDICTION & VENUE by Judge Gary A. Feess: re: Complaint, 1 . Plaintiff is ORDERED TO SHOW CAUSE no later than the close of business on Friday, August 2, 2013, why this case should not be dismissed for lack of personal jurisdiction and/or transferred/dismissed for improper venue. (PLEASE REVIEW DOCUMENT FOR FULL AND COMPLETE DETAILS) ( Response to Order to Show Cause due by 8/2/2013.) (lw)

LINK: 1
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 13-4318 GAF (RZx)

Title

Speculative Product Design LLC v. Brian McManus et al

Present: The Honorable

Date

July 16, 2013

GARY ALLEN FEESS

Stephen Montes
Deputy Clerk

None
Court Reporter / Recorder

N/A
Tape No.

Attorneys Present for Plaintiff:

Attorneys Present for Defendants:

None

None

Proceedings:

(In Chambers)

ORDER TO SHOW CAUSE RE: PERSONAL JURISDICTION & VENUE
I.
INTRODUCTION AND BACKGROUND
Plaintiff Speculative Product Design, LLC d/b/a/ Speck Products, a California LLC, with
its principal place of business in Mountain View, California, is a leading “form fit cellular
telephone case company,” which “designs and manufactures cases for the mobile accessories
market.” (Docket No. 1, [Compl.] ¶¶ 1, 11-12.) Plaintiff asserts that Defendant Brian
McManus, a resident of Baldwin, New York, uses Amazon.com, among other things, to sell and
distribute counterfeit goods bearing Plaintiff’s marks without its consent. (Id. ¶¶ 2, 19-20.)
Plaintiff is the exclusive owner of federally-registered trademarks, including Registration
Nos. 3,663,010 (Speck); 3,666,082 (design mark consisting of an asterisk between parenthesis
and Speck in stylized letters); 3,666,072 (design mark consisting of an asterisk between
parentheses), and 3,817,709 (Candyshell) (the “Trademarks”). (Compl. ¶¶ 17(a)-(d), Exs. A-D.)
In this lawsuit, Plaintiff alleges that Defendant uses Amazon.com, among other things, to sell
and distribute counterfeit Speck products bearing the Trademarks, using the seller ID “StarPod
Incorporated”. (Compl. ¶¶ 19-20, 22.) Plaintiff further alleges that “[o]n or about February 25,
2013 . . . Plaintiff purchased a purported ‘CandyShell Speck Glossy Case for iPhone 5 5G Retail
Packaging - Blue/Black’ from Defendants for a cost of $16.23.” (Id. ¶ 24, Ex. E [Receipt].)
This product was received in Antioch, California, and was determined to be counterfeit. (Id.
¶ 25, Receipt.)
Plaintiff filed suit in this Court on June 14, 2013 and asserted violations of § 32 of the
Lanham Act, 15 U.S.C. § 1114 (trademark infringement); § 43(a) of the Lanham Act, 15 U.S.C.
§ 1125(a) (false designation of origin/unfair competition/false advertising); § 43(c) of the
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LINK: 1
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 13-4318 GAF (RZx)

Date

Title

July 16, 2013

Speculative Product Design LLC v. Brian McManus et al

Lanham Act, 15 U.S.C. § 1125(c) (trademark dilution); and Cal. Bus. & Prof. Code §§ 17200 et
seq. (unfair business practices). Plaintiff has yet to file a proof of service; Defendant has yet to
answer or otherwise appear.
For the reasons discussed below, the Court cannot presently determine whether it may
exercise personal jurisdiction over Defendant or whether this action is properly venued.
Accordingly, Plaintiff is ORDERED to show cause why the case should not be dismissed for
lack of personal jurisdiction and/or transferred/dismissed for lack of proper venue.
II.
DISCUSSION
A. PERSONAL JURISDICTION1
1. LEGAL STANDARD
Because this Court sits in California and no federal law governs personal jurisdiction over
this case, the Court must apply California’s long-arm statute. Fed. R. Civ. P. 4(k)(1)(A);
Panavision Int’l, L.P. v. Toeppen, 141 F.3d 1316, 1320 (9th Cir. 1998). “California’s long-arm
statute is co-extensive with federal standards, so a federal court may exercise personal
jurisdiction if doing so comports with federal constitutional due process.” Boschetto v. Hansing,
539 F.3d 1011, 1015 (9th Cir. 2008); see also Cal. Civ. Proc. Code § 410.10. Under federal due
process standards, to exercise personal jurisdiction over a non-resident defendant, “that
defendant must have at least ‘minimum contacts’ with the relevant forum such that the exercise
of jurisdiction ‘does not offend traditional notions of fair play and substantial justice.’”
Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 801 (9th Cir. 2004) (quoting Int’l
Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). The extent and type of contacts a
defendant may have with the forum state can give rise to two types of jurisdiction: general or
specific. Data Disc, Inc. v. Sys. Tech. Assocs., 557 F.2d 1280, 1285 (9th Cir. 1977).
“If the nonresident defendant’s activities within a state are ‘substantial’ or ‘continuous
and systematic,’ there is a sufficient relationship between the defendant and the state to support
jurisdiction even if the cause of action is unrelated to the defendant’s forum activities.” Id. at
1287 (citation omitted). Specific jurisdiction may be established where the plaintiff’s claims
1

The Court is aware of the “the longstanding rule that personal jurisdiction, in the traditional sense, can
be waived and need not be addressed sua sponte.” Smith v. Idaho, 392 F.3d 350, 355 n. 3 (9th Cir. 2004).
Defendant has not yet responded or otherwise waived or consented to personal jurisdiction.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 13-4318 GAF (RZx)

Date

Title

July 16, 2013

Speculative Product Design LLC v. Brian McManus et al

derive from the defendant’s contacts with the forum state. Id. To establish specific jurisdiction,
a plaintiff must show that a defendant “either purposefully availed [themselves] of the privilege
of conducting activities in California, or purposefully directed [their] activities toward
California.” Schwarzenegger, 374 F.3d at 802. A purposeful direction analysis is most often
used in suits, such as this trademark action, that sound in tort. Id.; see also Panavision Int’l L.P.
v. Toeppen, 141 F.3d 1316, 1321 (9th Cir. 1998) (stating a trademark infringement action is
“akin to a tort case”). To determine whether jurisdiction is proper under the “purposeful
direction” prong, the Ninth Circuit employs the Calder v. Jones, 465 U.S. 783 (1984) “effects
test” which requires proof of three elements: “the defendant allegedly [must] have (1) committed
an intentional act, (2) expressly aimed at the forum state, (3) causing harm that the defendant
knows is likely to be suffered in the forum state.” Yahoo! Inc. v. La Ligue Contre Le Racisme
Et L’Antisemitisme, 433 F.3d 1199, 1206 (9th Cir. 2006) (citing Schwarzenegger, 374 F.3d at
803). To satisfy this test, the brunt of the alleged harm need not have been suffered in the forum
state so long as a “jurisdictionally sufficient” amount of harm is suffered. Id. at 1207.
2. APPLICATION
In this case, neither Plaintiff nor Defendant is a resident of the Central District. Plaintiff
does not allege, in other than the most conclusory fashion, continuous and systematic contacts
between Defendants and this forum supporting the exercise of general jurisdiction. Nor has it
shown that Defendant, a New York resident, expressly aimed his tortious conduct at California,
causing harm that they knew was likely to be suffered in California, supporting the exercise of
specific personal jurisdiction. Moreover, there is no evidence in this case suggesting that
Defendant’s use of Amazon.com, despite being interactive, targets or is in any way directed
toward California. See Mavrix Photo, Inc. v. Brand Technologies, Inc., 647 F.3d 1218, 1230–32
(9th Cir. 2011). Indeed, on the available evidence, Defendant’s only contact with California is a
single sale of a counterfeit cell phone case to Plaintiff itself (see Receipt), and the Court is not
aware of any case in which jurisdiction was found based on one sale to the forum. In fact Ninth
Circuit authority strongly indicates otherwise. See Boschetto, 539 F.3d at 1019 (“At bottom, the
consummation of the sale via eBay here is a distraction from the core issue: This was a one-time
contract for the sale of a good that involved the forum state only because that is where the
purchaser happened to reside, but otherwise created no ‘substantial connection’ or ongoing
obligations there.”) Accordingly, the evidence before the Court suggests that personal
jurisdiction may not be properly asserted in this district over Defendant in this case.
///

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LINK: 1
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 13-4318 GAF (RZx)

Date

Title

July 16, 2013

Speculative Product Design LLC v. Brian McManus et al

B. VENUE
1. LEGAL STANDARD
A district court may, in the absence of waiver, “dismiss a complaint sua sponte for
improper venue.” Zhu v. Whinery, 109 Fed. Appx. 137, 138 (9th Cir. 2004) (citing Costlow v.
Weeks, 790 F.2d 1486, 1488 (9th Cir. 1986)). Pursuant to the Federal Rule of Civil Procedure,
venue is proper for a civil action in:
(1) a judicial district in which any defendant resides, if all defendants are residents of the
State in which the district is located;
(2) a judicial district in which a substantial part of the events or omissions giving rise to
the claim occurred, or a substantial part of property that is the subject of the action is
situated; or
(3) if there is no district in which an action may otherwise be brought as provided in this
section, any judicial district in which any defendant is subject to the court’s personal
jurisdiction with respect to such action.
28 U.S.C. § 1391(b). “The district court of a district in which is filed a case laying venue in the
wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to
any district or division in which it could have been brought.” 28 U.S.C. § 1406(a).
2. APPLICATION
Here, Plaintiff has failed to indicate why it believes the Central District of California is
the proper venue for this action. Though Plaintiff states that venue is proper because “a
substantial part of the events or omissions giving rise to the claim occurred in this judicial
district, and has caused damages to Plaintiff in this district,” (Compl. ¶ 10), the Court finds that
assertion contradicted by Plaintiff’s own Complaint. This case arises out of Plaintiff’s purchase
of a product allegedly sold by Defendant through Amazon.com. That product was sold by a
Defendant residing in Baldwin, New York, and shipped to an address in Antioch, California.
(Id. ¶ 2, Receipt.) Needless to say, neither of those places are in the Central District of
California. Antioch is in Contra Costa County, which is in the Northern District of California.
So far as the Court can tell, no venue-relevant actions occurred in this District. Accordingly, the
evidence before the Court suggests that the Central District of California is not the proper venue.
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LINK: 1
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 13-4318 GAF (RZx)

Date

Title

July 16, 2013

Speculative Product Design LLC v. Brian McManus et al
III.
CONCLUSION

Based on the foregoing, Plaintiff is ORDERED TO SHOW CAUSE no later than the
close of business on Friday, August 2, 2013, why this case should not be dismissed for lack of
personal jurisdiction and/or transferred/dismissed for improper venue.2

IT IS SO ORDERED.

2

In responding to this order to show cause, Plaintiff is strongly urged to read this Court’s prior order in
Sennheiser Electronic Corporation et al v. Kseniya Evstigneeva et al, CV 11-7884 GAF (FFMx), Docket No. 19.
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