WISH ATLANTA LLC v. CONTEXTLOGIC INC

Filing 18

ORDER denying 12 Motion to Dismiss for Lack of Jurisdiction. Ordered by U.S. District Judge CLAY D LAND on 10/09/14 (vac)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
Wish Atlanta, LLC,

*

Plaintiff,

*

vs.

*

Contextlogic, Inc.,

*

Defendant.

*

CASE NO. 4:14-CV-00051 (CDL)

*
O R D E R
Plaintiff Wish Atlanta, LLC (“Wish Atlanta”) sued Defendant
Contextlogic, Inc. (“Contextlogic”) for trademark infringement,
trademark

dilution,

unfair

competition,

practices.

Presently

pending

Contextlogic’s

motions

dismiss

to

and

before
(1)

the

for

jurisdiction and (2) for improper venue.

deceptive

lack

trade

Court
of

are

personal

In the alternative,

Contextlogic moves to transfer this action to the United States
District Court for the Northern District of California.

For the

following reasons, the Court denies all three motions (ECF No.
12).
APPLICABLE STANDARDS
Under

Federal

Rule

of

Civil

Procedure

12(b)(2),

when

a

plaintiff seeks to have a court exercise personal jurisdiction
over a nonresident defendant, that plaintiff “‘bears the initial
burden of alleging in the complaint sufficient facts to make out

a prima facie case of jurisdiction.’”

Diamond Crystal Brands,

Inc. v. Food Movers Int’l, Inc., 593 F.3d 1249, 1257 (11th Cir.
2010) (quoting United Techs. Corp. v. Mazer, 556 F.3d 1260, 1274
(11th

Cir.

2009)).

If

the

defendant

presents

evidence

challenging jurisdiction, “the burden traditionally shifts back
to the plaintiff to produce evidence supporting jurisdiction.”
Meier ex rel. Meier v. Sun Int’l Hotels, Ltd., 288 F.3d 1264,
1269 (11th Cir. 2002).

“Where the plaintiff’s complaint and

supporting evidence conflict with the defendant’s affidavits,
the court must construe all reasonable inferences in favor of
the plaintiff.”
Under

Id.

Federal

Rule

of

Civil

Procedure

12(b)(3),

the

plaintiff bears the burden of proving that venue is proper.
Delong Equip. Co. v. Wash. Mills Abrasive Co., 840 F.2d 843, 845
(11th Cir. 1988).

“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).
FACTUAL BACKGROUND

The

Court

jurisdictional

permitted
discovery

the
to

parties
ascertain

to

engage

the

full

Contextlogic’s contacts with the state of Georgia.

2

in

limited

nature

of

The present

record

reveals

the

following.

The

material

facts

are

not

disputed.
Contextlogic is a Delaware corporation with its principal
place of business in San Francisco, California.

Contextlogic’s

offices, employees, business records, and computer servers are
all located in the San Francisco Bay Area.

Contextlogic employs

no one in Georgia and has never employed a person to travel to
Georgia

to

conduct

Contextlogic

does

business
not

on

own

behalf

real

of

property

Contextlogic.
in

Georgia.

Contextlogic never registered to conduct business in Georgia nor
had an agent for service of process in Georgia.
Contextlogic facilitates the sale of fashion merchandise
through an online website and smart phone application.

The

website and application work the same way: consumers make “wish
lists” of products they want to purchase and then purchase those
products through Contextlogic.

While Contextlogic facilitates

the sale, Contextlogic does not directly sell the merchandise.
Instead, third-party suppliers sell and ship the merchandise.
In exchange for facilitating the sale between the consumer and
the

third-party

from each sale.

supplier,

Contextlogic

receives

a

10-15%

fee

Originally, Contextlogic conducted business on

a website with the domain name “www.wishwall.me.”

At a later

date

or

disputed

Contextlogic

by
began

the

parties

operating

3

(November
under

2011

the

domain

2012),
name

“www.wish.com.”

Compl. ¶ 7, ECF No. 1; Mem. in Supp. of Def.’s

Mot. to Dismiss Ex. A, Szulczewski Decl. ¶ 17, ECF No. 12-2.
The smart phone application is known as the “WISH app.”

The

website and application are accessible worldwide.
To
eight

facilitate

suppliers

Contextlogic’s

its

business,

located

in

website.

Contextlogic

Georgia
Consumers

to

sell

can

contracts

with

merchandise

register

to

on
use

Contextlogic’s website, and 99,446 registered users reside in
the state of Georgia (0.38% of all users worldwide).

Of those

users, 3,982 reside in the Middle District of Georgia (0.0153%
of

all

users

worldwide).

In

the

past

year,

Contextlogic

facilitated 16,731 transactions with Georgia consumers over its
website and smart phone application.

Of those transactions,

3,765 occurred in the Middle District of Georgia.
transactions
$506,669.58

with
in

Georgia

products

consumers,

(1.005%

derived $26,501.02 in revenue.

of

all

From the

Contextlogic
sales

sold

worldwide)

and

From the transactions with the

Middle District of Georgia alone, Contextlogic sold $139,946.13
in

products

(0.291%

of

all

sales

worldwide)

and

derived

$8,350.23 in revenue.
Wish

Atlanta,

a

Georgia

corporation,

conducts

an

online

fashion merchandise store similar to Contextlogic’s store.

Wish

Atlanta

Wish

owns

a

federal

trademark

to

the

“Wish”

mark.

Atlanta has used the “Wish” mark in connection with its retail

4

store since 2004 and in its online store since February 2010.
Wish Atlanta alleges that Contextlogic operates an online store
that sells goods similar to those sold by Wish Atlanta while
wrongfully using the “Wish” trademark.
DISCUSSION
I.

12(b)(2)
Motion
Jurisdiction

to

Dismiss

for

Lack

of

Personal

To determine whether Contextlogic is subject to personal
jurisdiction
analysis.
Georgia

in

Georgia,

the

Court

engages

in

a

Diamond Crystal Brands, 593 F.3d at 1257.

long-arm

statute

must

permit

jurisdiction over Contextlogic.

the

Court

two-step
First, the

to

exercise

Horizon Aggressive Growth, L.P.

v. Rothstein-Kass, P.A., 421 F.3d 1162, 1166 (11th Cir. 2005).
The Georgia long-arm statute is not coextensive with the Due
Process Clause of the Fourteenth Amendment to the United States
Constitution.

Diamond

Crystal

Brands,

593

F.3d

at

1259.

Instead, the long-arm statute “imposes independent obligations
that a plaintiff must establish for the exercise of personal
jurisdiction that are distinct from the demands of procedural
due

process.”

jurisdiction,
whether

the

Id.
the

If

second

step

exercise

of

the
is

long-arm
for

jurisdiction

the

Court

comports

Process Clause of the Fourteenth Amendment.

5

statute
to

with

confers
evaluate
the

Id. at 1257-58.

Due

A.

Georgia’s Long-Arm Statute

Wish Atlanta relies on subsection (1) of the Georgia longarm

statute

for

jurisdiction.

Subsection

(1)

provides

for

jurisdiction if Contextlogic “[t]ransacts any business” within
Georgia.
Atlanta

O.C.G.A.
contends

§

9-10-91(1).

that

In

subsection

the

(3)

alternative,

provides

Wish

jurisdiction.

Subsection (3) permits the Court to exercise jurisdiction if
Contextlogic “[c]ommits a tortious injury in this state caused
by

an

act

feasor . . .

or

omission

derives

outside

this

substantial

revenue

state
from

consumed or services rendered in this state.”
91(3).

if

the

goods

tort-

used

or

O.C.G.A. § 9-10-

Jurisdiction is proper pursuant to subsection (1), so

analysis of subsection (3) is unnecessary.
In determining whether subsection (1) confers jurisdiction,
the

Court

literally.

interprets

the

term

Innovative

Clinical

&

“transacts
Consulting

any

business”

Servs.,

LLC

v.

First Nat’l Bank of Ames, 279 Ga. 672, 675, 620 S.E.2d 352, 355
(2005).

The Eleventh Circuit defined “transacts any business”

as “the doing of some act or consummation of some transaction.”
Diamond Crystal Brands, 593 F.3d at 1260.
the

Georgia

courts

provide

further

“[U]nless and until

authoritative

guidance,

courts in this circuit construing the statute literally will
have to delineate the precise contours of the ‘[t]ransacts any
business within this state’ requirement of O.C.G.A. § 9–10–91(1)

6

according to the facts of each case.”
alteration

in

original).

Id. at 1263 (second

Contextlogic

“need

not

enter the state” to transact business in Georgia.
Not

only

is

physical

presence

physically

Id. at 1264.

unnecessary,

but

business

transactions may be “conducted through . . . Internet contacts.”
ATCO Sign & Lighting Co., LLC v. Stamm Mfg., Inc., 298 Ga. App.
528, 534, 680 S.E.2d 571, 576 (2009).
“expressly

depends

on

the

actual

Subsection (1), however,

transaction

of

business.”

Diamond Crystal Brands, 593 F.3d at 1260 (emphasis added).
Contextlogic
transactions

facilitated

with

Georgia

more

consumers

than
in

the

16,000
past

online

year.

But

Contextlogic argues that it did not transact business in Georgia
because

consumers

Contextlogic.
platform

for

do

not

Instead,

purchase

products

Contextlogic’s

third-party

suppliers

to

Contextlogic receives 10-15% of each sale.

directly

website
sell

from

provides

products,

a
and

Neither the Eleventh

Circuit nor any federal court within the circuit has addressed
whether a corporation transacts business pursuant to subsection
(1) when the corporation maintains a website that facilitates
sales through third-party suppliers and the corporation receives
compensation from each sale.
Following
interpret

the

the
words

Georgia

Supreme

“transacts

any

Court’s

instruction

business”

literally,

to
the

Court finds that Contextlogic transacts business in Georgia each

7

time it derives income from Georgia consumers by providing a
service in exchange for compensation.

See Innovative Clinical &

Consulting, 279 Ga. at 675, 620 S.E.2d at 355 (“[W]e must give
the same literal construction to subsection (1) of OCGA § 9–10–
91

that

we

give

to

the

other

subsections.”).

Contextlogic

provides a website that allows Georgia consumers to develop a
list of products they want to purchase, and it facilitates the
purchase

of

those

products

from

third-party

suppliers.

In

exchange for providing this service, Contextlogic retains a 1015%

transaction

Georgia

fee

consumers,

from

from

each

which

sale.

Such

Contextlogic

online

derived

sales
more

to

than

$26,000 in annual revenue, constitute transacting business under
subsection (1).
Contextlogic relies heavily on the Court’s previous order
in Jordan Outdoor Enterprises, Ltd. v. That 70’s Store, LLC, 819
F.

Supp.

2d

1338,

1343-44

(M.D.

Ga.

2011),

where

the

Court

determined that merely maintaining a website does not constitute
transacting

business

in

Georgia

under

subsection

(1).

The

crucial fact in Jordan Outdoor Enterprises, however, was that
“Defendants

did

not

sell

any

products

to

Georgia

residents

through the internet,” and thus “the websites failed to generate
any business for Defendants in Georgia.”

Id. at 1343.

contrast,

facilitated

in

the

past

year

Contextlogic

By

16,731

transactions in Georgia, generated $506,669.58 from those sales,

8

and derived $26,501.02 in revenue from those sales.

It makes no

difference that consumers purchase the products from third-party
suppliers,

rather

Contextlogic

than

derives

Contextlogic

revenue

from

directly,

each

because

sale.

Because

Contextlogic engaged in business transactions over its website,
this action differs from Jordan Outdoor Enterprises.
In

sum,

purposes

of

Contextlogic
subsection

transacted
(1),

so

business
the

in

Court

Georgia

may

for

exercise

jurisdiction under the long-arm statute.
B.

Constitutional Due Process

Since the long-arm statute confers jurisdiction, the Court
must next ensure that the assertion of jurisdiction does not
offend

Contextlogic’s

Brands,

593

F.3d

at

due

process

1257-58.

To

rights.
comply

Diamond
with

due

Crystal
process,

Contextlogic must have “‘certain minimum contacts with the forum
such

that

traditional

the

maintenance

notions

of

fair

of
play

the
and

suit

does

substantial

not

offend

justice.’”

Oldfield v. Pueblo De Bahia Lora, S.A., 558 F.3d 1210, 1220
(11th Cir. 2009) (quoting Helicopteros Nacionales de Colombia,
S.A. v. Hall, 466 U.S. 408, 414 (1984)).

Minimum contacts exist

if Contextlogic has a “fair warning” that it may be sued in the
forum.

Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985)

(internal quotation marks omitted).

“Once this showing is made,

a defendant must make a ‘compelling case’ that the exercise of

9

jurisdiction would violate traditional notions of fair play and
substantial justice.”

Diamond Crystal Brands, 593 F.3d at 1267

(quoting Burger King Corp., 471 U.S. at 477).
The due process analysis differs depending on whether the
Court asserts general or specific jurisdiction.

“A court may

assert general jurisdiction over foreign . . . corporations to
hear any and all claims against them” regardless of whether
those

claims

forum.

relate

to

corporation’s

contacts

with

the

Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S.

Ct. 2846, 2851 (2011).
exists

the

when

the

Specific jurisdiction, by contrast, only

claims

“relate[]

to

defendant’s contacts with the forum.”

or

‘arise[]

out

of’

a

Helicopteros Nacionales

de Colombia, S.A., 466 U.S. at 414 (quoting Shaffer, 433 U.S. at
204).

Wish Atlanta argues that the Court may exercise both

general and specific jurisdiction over Contextlogic.
1.

General Jurisdiction

Contextlogic is subject to general jurisdiction in Georgia
only if its contacts are “so ‘continuous and systematic’ as to
render

[Contextlogic]

Goodyear

Dunlop

(quoting

Int’l

(1945)).

Tires
Shoe

essentially
Operations,
Co.

v.

at

home

S.A.,

Washington,

131

in

the

S.

Ct.

326

U.S.

forum.”
at

2851

310,

317

Wish Atlanta argues that Contextlogic is subject to

general jurisdiction in Georgia “and probably in most, if not
all

50

states”

because

Contextlogic

10

maintains

a

nationwide

website.

Pl.’s Resp. to Def.’s Mot. to Dismiss 5, ECF No. 15.

Specifically, Wish Atlanta argues that Contextlogic’s contacts
with Georgia—including the number of registered users (99,446),
transactions (16,731 per year), and suppliers (8) in Georgia—
subject it to general jurisdiction.
Wish Atlanta vastly overstates the effect of Contextlogic’s
contacts.

Contextlogic’s

contacts

with

the

insufficient to make it “at home” in Georgia.
Tires Operations, S.A., 131 S. Ct. at 2851.

forum

are

Goodyear Dunlop
In Goodyear, the

United States Supreme Court instructed that the “paradigm bases
for the exercise of general jurisdiction” over a corporation are
the entity’s (1) principal place of business and (2) place of
incorporation.

Id. at 2854 (internal quotation marks omitted).

The Supreme Court recently clarified that general jurisdiction
over a corporation is exclusive to these two bases; calling it
“unacceptably grasping” for a court to “approve the exercise of
general

jurisdiction

in

every

State

in

which

a

corporation

engages in a substantial, continuous, and systematic course of
business.”
(internal

Daimler AG v. Bauman, 134 S. Ct. 746, 760-61 (2014)
quotation

incorporated
Georgia.

nor

marks

makes

Therefore,

omitted).

its

principal

Contextlogic

jurisdiction in Georgia.

Id.

11

is

Contextlogic
place
not

of

subject

is

neither

business
to

in

general

2.

Specific Jurisdiction

For Contextlogic to be subject to specific jurisdiction,
Contextlogic
Diamond

must

Crystal

Contextlogic’s
subject

Brands,

contacts

matter

requirements

purposefully

of

are

593

met,

F.3d

with

the

avail

itself

at

the

1267.

forum

Id.

assertion

of

the

forum.

Additionally,

must

litigation.
the

of

relate
If

to

the

these

two

jurisdiction

over

Contextlogic will not offend due process because Contextlogic
“‘should reasonably anticipate being haled into court there.’”
Oldfield, 558 F.3d at 1221 (quoting World-Wide Volkswagen Corp.
v. Woodson, 444 U.S. 286, 297 (1980)).
a.
The

Eleventh

PURPOSEFUL AVAILMENT OF THE FORUM
Circuit

has

not

decided

“whether

a

non-

resident defendant electronically transmitting, or enabling the
transmission of, information via the Internet subjects himself
to

the

personal

jurisdiction

of

the

forum

encountered the electronic information.”
1219

n.26.

One

influential

standard

where

plaintiff

Oldfield, 558 F.3d at
for

measuring

internet

contacts is set forth in Zippo Manufacturing Co. v. Zippo Dot
Com, Inc., 952 F. Supp. 1119, 1124 (W.D. Pa. 1997).

Although

the Eleventh Circuit has yet to endorse or reject the Zippo
test, many other circuits have adopted it.

See, e.g., ALS Scan,

Inc. v. Digital Serv. Consultants, Inc., 293 F.3d 707, 714 (4th
Cir. 2002); Mink v. AAAA Dev. LLC, 190 F.3d 333, 336 (5th Cir.

12

1999).

Circuits not using the Zippo test use a traditional

contacts analysis instead.

See, e.g., Illinois v. Hemi Grp.

LLC, 622 F.3d 754, 758-59 (7th Cir. 2010).

The Court may assert

jurisdiction under both tests, as discussed below.
The Zippo test sets forth a sliding scale for determining
whether internet contacts suffice to create jurisdiction.

On

one end of the scale are “situations where a defendant clearly
does business over the Internet.”
at 1124.

Zippo Mfg. Co., 952 F. Supp.

In these cases, personal jurisdiction is proper.

Id.

At the other end of the scale are “situations where a defendant
has simply posted information on an Internet Web site which is
accessible

to

users

in

foreign

jurisdictions.”

Id.

These

“passive” websites are “not grounds for the exercise of personal
jurisdiction.”

Id.

In the middle of these two extremes are

“interactive Web sites where a user can exchange information
with

the

host

jurisdiction
interactivity

computer.
is
and

In

determined

these
by

commercial

cases,

the

examining

nature

information that occurs on the Web site.”

of

the
the

exercise

of

level

of

exchange

of

Id.

This action falls in the first category.

As discussed

above, Contextlogic does business in Georgia over the internet.
Under the test set forth in Zippo, Contextlogic is subject to
jurisdiction here.

13

The

Court

reaches

contacts analysis.

the

same

result

under

a

traditional

The focus, for purposes of this analysis, is

on whether Contextlogic purposefully reached out to the forum
state.

In the context of internet sales, persuasive authority

suggests

that

a

corporation

purposefully

avails

itself

of

a

forum when the corporation derives revenue from the forum state,
even when that revenue represents only a small percentage of the
corporation’s total annual revenue.

See, e.g., Hemi Grp., LLC,

622 F.3d at 755, 757 (finding minimum contacts from an online
purchase of 300 packets of cigarettes, a small percentage of the
defendant’s overall business); Rice v. PetEdge, Inc., 975 F.
Supp. 2d 1364, 1367 (N.D. Ga. 2013) (1-2% of annual revenue);
Aero Toy Store, LLC v. Grieves, 279 Ga. App. 515, 516, 523-24,
631 S.E.2d 734, 736, 740-41 (2006) (0.5% of annual revenue).
In

the

past

year,

Contextlogic

derived

$26,501.02,

or

1.005%, of its revenue from Georgia.

Additionally, Contextlogic

has

and

eight

suppliers

in

Georgia

engaged

in

16,731

transactions in Georgia in the past year.

Because of these

contacts,

anticipate

haled

into

Contextlogic
court’”

in

should

“‘reasonably

Georgia.

Oldfield,

558

F.3d

being

at

1221

(quoting World-Wide Volkswagen Corp., 444 U.S. at 297).
Contextlogic urges the Court to focus on the percentage of
revenue

that

Contextlogic

derived

from

compared to its overall, worldwide sales.

14

the

state

of

Georgia

Because Contextlogic

derived only 1.005% of its revenue from Georgia, Contextlogic
argues that it does not have minimum contacts with Georgia.

In

limited contexts, courts have found that minimum contacts do not
exist when a corporation receives only a small percentage of its
revenue from the forum.

See, e.g., Wolfson v. Houston Post Co.,

441 F.2d 735, 736 (5th Cir. 1971) (per curiam); New York Times
Co. v. Connor, 365 F.2d 567, 570 (5th Cir. 1966).

The Court,

however, finds this precedent limited to libel suits against the
press.

In

the

publications,

context

“First

of

libel

Amendment

lawsuits

against

considerations

newspaper

surrounding

the

law of libel require a greater showing of contact to satisfy the
due process clause than is necessary in asserting jurisdiction
over other types of tortious activity.”
572.

Connor, 365 F.2d at

Because of the need for greater contacts in such cases, a

news publication that derives only a small percentage of its
revenue from the forum lacks sufficient contact with the forum.
But Contextlogic is not a news publication, and this is not a
libel

action,

so

the

Court

does

not

hesitate

to

exercise

jurisdiction merely because Contextlogic derives a small amount
of revenue from Georgia compared to its overall sales.
In the same vein, Contextlogic relies heavily on Imageline,
Inc. v. Fotolia LLC, 663 F. Supp. 2d 1367 (N.D. Ga. 2009).
Imageline,

a

corporation

to

court

refused

jurisdiction

to
in

15

subject

Georgia

an

solely

In

out-of-state
because

the

corporation
online

derived

sales

a

to

small

Georgia

percentage
consumers.

of

its
Id.

revenue
at

from

1377-78.

Contextlogic, however, has far greater contact with Georgia then
the defendant in Imageline.

In Imageline, the defendant derived

less than one percent of its revenue from sales in Georgia since
its

inception,

whereas

Contextlogic

received

more

than

percent of its revenue from Georgia in the past year.
1370-71, 1377-78.
Georgia

that

one

Id. at

Additionally, Contextlogic has contacts with

simply

did

not

exist

in

Imageline,

including

relationships with eight Georgia suppliers and facilitating more
than 16,000 transactions in Georgia in the past year.

These

contacts suffice to put Contextlogic on notice that it may be
sued in Georgia.
b.

RELATION TO THE SUBJECT MATTER

Since Contextlogic has purposefully availed itself of the
privilege of conducting business in Georgia, the Court next must
decide whether Wish Atlanta’s claims relate to Contextlogic’s
contacts

with

Georgia.

“Unlike

other

courts,

[the

Eleventh

Circuit] ha[s] not developed or adopted a specific approach to
determining relatedness; instead, [the Eleventh Circuit] ha[s]
heeded the Supreme Court’s warning against using ‘mechanical or
quantitative’ tests.”

Oldfield, 558 F.3d at 1222 (quoting Int’l

Shoe Co., 326 U.S. at 319).

16

Wish

Atlanta

brings

trademark

dilution,

practices.

Each

claims

unfair

claim

for

trademark

competition,

requires

Wish

and

infringement,

deceptive

Atlanta

to

trade

show

that

Contextlogic in some way used the “Wish” mark or a mark closely
resembling the “Wish” mark.

15 U.S.C. § 1125(a); 15 U.S.C.

§ 1125(c); O.C.G.A. § 10-1-451; O.C.G.A. § 10-1-452; O.C.G.A.
§ 10-1-372; O.C.G.A. § 10-1-373.

Wish Atlanta contends that

Contextlogic operated its website using the “Wish” mark and, as
a

result,

Georgia

consumers

unsatisfied

with

purchases

made

through Contextlogic’s website mistakenly called Wish Atlanta to
complain.

Wish Atlanta’s infringement claims are based in part

on complaints received from Contextlogic’s confused customers.
Thus, Wish Atlanta’s claims relate to Contextlogic’s contacts
with Georgia.
3.

Fair Play and Substantial Justice

Because

the

Court

finds

that

Contextlogic

has

minimum

contacts with Georgia, the burden now shifts to Contextlogic to
“present

a

compelling

case

that

the

presence

of

some

considerations would render jurisdiction unreasonable.”
King Corp., 471 U.S. at 477.

other
Burger

The Eleventh Circuit has outlined

five factors to guide determining whether jurisdiction is unfair
to

Contextlogic:

defending

the

(1)

lawsuit,

the
(2)

“‘burden
“‘the

on

forum

the

defendant’”

State’s

interest

in
in

adjudicating the dispute,’” (3) “‘the plaintiff’s interest in

17

obtaining

convenient

and

effective

relief,’”

(4)

the

“‘interstate judicial system’s interest in obtaining the most
efficient resolution of controversies,’” and (5) “‘the shared
interest

of

the

several

States

substantive social policies.’”

in

furthering

fundamental

Diamond Crystal Brands, 593 F.3d

at 1274 (quoting Burger King Corp., 471 U.S. at 477).
Contextlogic’s
the first factor.

only

argument

regarding

fairness

concerns

Contextlogic argues that it would face a “not

insubstantial burden” if required to defend itself in Georgia,
which is “more than 2,000 miles away from its San Francisco
offices.”
12.

Mem. in Supp. of Def.’s Mot. to Dismiss 10, ECF No.

Contextlogic, however, makes no attempt to explain how the

distance poses a burden.

Further, it is not uncommon to require

an out-of-state corporation to defend itself in a forum located
across the country.

See, e.g., Diamond Crystal Brands, 593 F.3d

at 1274 (requiring a California corporation to defend itself in
Georgia).

Thus Contextlogic fails to make a “compelling case”

that “jurisdiction [is] unreasonable.”

Burger King Corp., 471

U.S. at 477.
II.

12(b)(3) Motion to Dismiss for Improper Venue
28 U.S.C. § 1391(b)(1) provides that “[a] civil action may

be brought in . . . a judicial district in which any defendant
resides, if all defendants are residents of the State in which
the district is located.”

A corporate defendant resides “in any

18

district

in

sufficient

that
to

State

subject

within
it

to

which

its

personal

district were a separate State.”

contacts

jurisdiction

would
if

be

that

28 U.S.C. § 1391(d).

Wish Atlanta argues that venue is proper in this Court
because

Contextlogic’s

contacts

with

the

Middle

District

of

Georgia, though “not as extensive as they are to the entire
state,” are “still, nonetheless significant.”
Def.’s Mot. to Dismiss 6.

Pl.’s Resp. to

Contextlogic, by contrast, again

focuses on the percentage of business conducted in the Middle
District of Georgia compared to the company’s worldwide sales.
From that perspective, only 0.291% of Contextlogic’s sales and
0.0153% of its registered users come from this District.
To

be

represent
overall

a

sure,

Contextlogic’s

comparatively

business.

The

small

contacts

with

percentage

contacts,

however,

of

this

District

Contextlogic’s

far

exceed

the

“random, fortuitous, or attenuated” types that require dismissal
for improper venue.
Cir. 1990).

Madara v. Hall, 916 F.2d 1510, 1516 (11th

Contextlogic facilitated 3,765 transactions for the

sale of goods in this District over the past year.

Through

these transactions, Contextlogic sold $139,946.13 in merchandise
and derived $8,350.23 in revenue.

Finally, 3,982 registered

users of Contextlogic’s website reside in this District.

Based

on Contextlogic’s contacts with this District alone, the Court
could assert jurisdiction over Contextlogic.

19

Contextlogic thus

resides in this District and the Court denies the motion to
dismiss for improper venue.
III. Motion to Transfer Venue Pursuant to 28 U.S.C. § 1404(a)
As an alternative to dismissal, Contextlogic asks the Court
to transfer this action to the United States District Court for
the

Northern

District

of

California.

28

U.S.C.

§

1404(a)

states: “For the convenience of parties and witnesses, in the
interest of justice, a district court may transfer any civil
action to any other district or division where it might have
been brought.”

“The decision to transfer a case to another

district is left to the sound discretion of the trial court.”
Brown v. Conn. Gen. Life Ins. Co., 934 F.2d 1193, 1197 (11th
Cir. 1991).

Federal courts usually give substantial deference

to the plaintiff’s choice of forum, so the movant bears the
burden of persuading the Court that its proposed forum is more
convenient than the current forum.

See In re Ricoh Corp., 870

F.2d 570, 573 (11th Cir. 1989) (per curiam)

(explaining the

traditional burden for § 1404(a) transfer).
A.

Where this Action “Might Have Been Brought”

The first issue is whether Wish Atlanta “might have . . .
brought” this action in the Northern District of California.
U.S.C. § 1404(a).

28

Both parties agree that Wish Atlanta could

have originally sued Contextlogic in the Northern District of
California.

The Northern District of California may properly

20

exercise subject matter jurisdiction, personal jurisdiction, and
venue because this action alleges violations of federal law and
Contextlogic’s principal place of business is in San Francisco.
In

sum,

there

is

no

dispute

that

this

action

could

have

originated in the Northern District of California.
B.

Convenience of the
Interest of Justice

Parties

and

Witnesses

and

the

Second, the “convenience of the parties and witnesses” and
the

“interests

§ 1404(a).

of

justice”

must

favor

transfer.

28

U.S.C.

The Court considers nine factors in making this

determination:
(1) [T]he convenience of the witnesses; (2) the
location of relevant documents and the relative ease
of access to sources of proof; (3) the convenience of
the parties; (4) the locus of operative facts; (5) the
availability of process to compel the attendance of
unwilling witnesses; (6) the relative means of the
parties; (7) a forum’s familiarity with the governing
law; (8) the weight accorded a plaintiff’s choice of
forum; and (9) trial efficiency and the interests of
justice, based on the totality of the circumstances.
Manuel v. Convergys Corp., 430 F.3d 1132, 1135 n.1 (11th Cir.
2005).
1.

Neutral Factors

Most of the § 1404(a) factors are neutral.
convenience

of

Contextlogic’s

the

witnesses

witnesses

(factor

reside

in

1),
San

the

As to the
majority

Francisco

or

of
the

surrounding area, so the Northern District of California would
be most convenient for them.

Wish Atlanta, however, intends to

21

call witnesses that, if “not in [the Middle District of Georgia]
. . . are in Atlanta, a short drive away.”
Def.’s Mot. to Dismiss 7.

Pl.’s Resp. to

The Court finds that it may be more

convenient for Wish Atlanta’s witnesses to travel to the Middle
District of Georgia than to the Northern District of California.
Travel

will

inconvenience

some

witnesses

regardless

of

which

venue adjudicates this dispute, so the Court finds this factor
neutral.
For the same reason, the Court finds the convenience of the
parties (factor 3) is also neutral.
adjudicates

this

action,

either

will travel a long distance.

Regardless of which forum

Contextlogic

or

Wish

Atlanta

Because travel will inconvenience

one party either way, the Court finds this factor neutral.
As to the location of relevant documents (factor 2), Wish
Atlanta’s
Georgia

trademark
while

Francisco,
discovery,

registration

Contextlogic’s

California.
the

insignificant.

Due

location

documents

corporate
to

of

the

are

records

prevalence

these

documents

in

Columbus,

are
of

in

San

electronic
is

largely

But, because some documents are located in both

venues, the Court finds factor 2 neutral.
Contextlogic claims the availability of process to compel
the attendance of unwilling witnesses (factor 5) weighs in favor
of

transfer.

Contextlogic

no

longer

employs

some

of

its

witnesses, and so Contextlogic argues that service of process is

22

not

available

District

to

of

compelled

compel

Georgia.

to

travel

them

to

appear

live

But
to

those

witnesses

the

Middle

District

in
who
of

the

Middle

cannot
Georgia

be
can

certainly be compelled to provide testimony by deposition at
their places of residence.

And that deposition testimony for

any unavailable witnesses may be used by Contextlogic instead of
live testimony.
is neutral.

Fed. R. Civ. P. 32(a)(4)(B).

Thus, this factor

Additionally, the parties presumably have similar

relative means (factor 6) and both the Northern District of
California

and

the

Middle

District

of

Georgia

are

equally

familiar with the governing law (factor 7).
2.
Only

Factors Favoring Transfer

the

transfer.

locus

of

operative

facts

(factor

4)

favors

When trademark infringement occurs over the internet,

the operative facts concentrate where the website was created.
“Even if infringement occurred in Georgia as a result of Georgia
residents viewing the infringing marks on Defendants’ websites
. .

.

the

conduct

giving

rise

to

the

infringement

. . . where Defendants created the websites.”

occurred

Jordan Outdoor

Enters., Ltd., 819 F. Supp. 2d at 1345; accord Paradise Media
Ventures, LLC. v. Mills, Civil Action file No. 1:13-CV-1003,
2013

WL

6388627,

at

*3

(N.D.

Ga.

Dec.

5,

2013)

(“When

the

tortious conduct occurs over an Internet website, the situs of
this tort is considered to be where the website, or servers

23

which maintain the website, are located.”) (internal quotation
marks

omitted).

Wish

Atlanta

alleges

that

Contextlogic

wrongfully used the “Wish” mark on Contextlogic’s website, which
was created in San Francisco.
is in San Francisco.

So the locus of operative facts

Thus, this factor weighs in favor of

transfer.
3.

Factors Against Transfer

While the locus of operative facts favors transfer, the
weight

accorded

militates

a

against

plaintiff’s
transfer.

choice

of

forum

Traditionally,

(factor
courts

considerable deference to the plaintiff’s choice of forum.
re Ricoh Corp., 870 F.2d at 573.

8)
give
In

But “this factor is entitled

to less deference when the operative facts are centered outside
of this district and when the plaintiff[] do[es] not reside here
or in close proximity to this district.”

Polyform A.G.P. Inc.

v. Airlite Plastics Co., No. 4:10-CV-43 (CDL), 2010 WL 4068603,
at *7 (M.D. Ga. Oct. 15, 2009) (emphasis added).

Wish Atlanta

is located near this District, in Atlanta.

So the Court will

not discount Wish Atlanta’s choice of forum.

Thus, deferring to

Wish Atlanta’s choice of forum, factor 8

weighs

strongly in

favor of adjudicating the dispute in this District.
4.

Summary

In sum, one factor weighs in favor of transfer, and one
factor weighs against transfer.

24

All other factors are neutral.

“[U]nless the balance is strongly in favor of the defendant, the
plaintiff’s choice of forum should rarely be disturbed.”

Gulf

Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947), superseded by
statute as recognized in Am. Dredging Co. v. Miller, 510 U.S.
443, 449 n.2 (1994).

Though the locus of operative facts is

primarily in San Francisco, in our internet age, the trademark
injury Wish Atlanta complains of occurs nationwide.
nationwide

injury

Wish

Atlanta

claims

to

Due to the

suffer,

and

the

deference the Court must give Wish Atlanta’s choice of forum,
the Court finds that Contextlogic failed to carry its burden of
convincing the Court that the factors weigh “strongly in favor
of the defendant.”

Id.

The Court denies Contextlogic’s motion

to transfer venue.
CONCLUSION
As discussed above, the Court denies Contextlogic’s motions
to dismiss and motion to transfer venue. (ECF No. 12).
Counsel for the parties shall confer and provide the Court
by October 27, 2014 with a jointly proposed scheduling order
consistent with Rules 16 and 26 of the Federal Rules of Civil
Procedure.
IT IS SO ORDERED, this 9th day of October, 2014.
S/Clay D. Land
CLAY D. LAND, CHIEF JUDGE
UNITED STATES DISTRICT COURT

25