Trade West, Inc. v. Dollar Tree, Inc. et al

Filing 42

ORDER DENYING MOTION TO DISMISS re 19 , 6 .. Signed by JUDGE ALAN C KAY on 04/30/2013. (eps)-- the Court DENIES WITHOUT PREJUDICE Defendants' Motion To Dismiss the Amended Complaint (Doc. No. 19 ). Furthermore, since Defenda nts' original motion to dismiss (Doc. No. 6 ) remains open on the docket, the Court DENIES that motion as well, also without prejudice CERTIFICATE OF SERVICEParticipants registered to receive electroni c notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
TRADE WEST, INC., a Hawaii
Corporation,
Plaintiff,
v.
DOLLAR TREE, INC., DOLLAR TREE
STORES, INC., and GREENBRIER
INTERNATIONAL, INC.,
Defendants.

) Civ. No. 12-00606 ACK-BMK
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ORDER DENYING MOTION TO DISMISS
For the following reasons, the Court DENIES WITHOUT
PREJUDICE Defendants’ Motion To Dismiss the Amended Complaint.
PROCEDURAL BACKGROUND
Plaintiff Trade West, Inc. filed a complaint on
November 9, 2012, alleging that Defendants Dollar Tree, Inc.
(“Dollar Tree”), Dollar Tree Stores, Inc. (“DT Stores”), and
Greenbrier International, Inc. (collectively, the “Dollar Tree
Entities”) willfully infringed on Trade West’s trademarks and
copyrights. (Doc. No. 1.) On December 12, 2012, the Dollar Tree
Entities filed a motion to dismiss the complaint for lack of
personal jurisdiction. (Doc. No. 6.) On January 2, 2013, Trade
West filed a First Amended Complaint, the currently operative
complaint, adding further jurisdictional allegations. (Doc. No. 9
(“Compl.”).)
The Dollar Tree Entities filed the instant Motion To
Dismiss the Amended Complaint on January 31, 2013, again arguing
that this Court lacked personal jurisdiction over any of the

Dollar Tree Entities. (Doc. No. 19.) The Motion was supported by
declarations from counsel, a Vice-President for all three Dollar
Tree Entities (“Mallas Decl.”), and the Director of Sales
Promotion for Greenbrier (“Rentz Decl.”), as well as various
exhibits. (Id.) On April 8, 2013, Trade West filed an Opposition
to the Motion (“Opp’n”), which was supported by a declaration
from Trade West’s President (“Matthews Decl.”) and various
exhibits. (Doc. No. 38.) The next day, Trade West filed a
declaration from counsel in support of the Opposition. (Doc.
No. 39.) The Dollar Tree Entities filed a Reply in support of
their Motion on April 15, 2013, which was supported by a second
declaration from counsel (“Goldmark 2d Decl.”). (Doc. No. 40.)
A hearing on the Motion was held on April 29, 2013.
FACTUAL BACKGROUND1/
Trade West alleges that the Dollar Tree Entities
willfully infringed on Trade West’s trademarks and copyrights,
including its “hibiscus with fern” trademark (“Hibiscus
Trademark”) and its copyrighted “Fluffy Plumeria Lei” design.
(Compl.) The Hibiscus Trademark consists of an artificial
hibiscus flower attached to an artificial fern leaf, both of
which are then attached to the various types of artificial-flower
lei manufactured by Trade West, including the Fluffy Plumeria
Lei. (See Compl. Ex. B.)

1/

The facts as recited in this Order are for the purpose of
disposing of the current motion and are not to be construed as
findings of fact that the parties may rely on in future
proceedings.
2

I.

The Parties
Trade West is one of the largest suppliers of

artificial-flower leis in the nation, and has been engaged in
that business for approximately four decades. (Matthews Decl.
¶ 3.)2/ Trade West’s leis, carrying its Hibiscus Trademark, are
widely available in more than 1,200 retail stores across the
United States. (Id. ¶ 4.) Trade West markets its leis
domestically through distributors including Tropical Sun Imports,
which is based in Colorado. (Id. ¶ 11; Goldmark 2d Decl., Ex. 3.)
Dollar Tree is a holding company with its headquarters
and principal place of business in Chesapeake, Virginia. (Mallas
Decl. ¶ 3.) Both DT Stores and Greenbrier are a wholly-owned
subsidiaries of Dollar Tree. (Id. ¶¶ 4-5.) Greenbrier is “the
product sourcing entity” for the Dollar Tree Entities, while
DT Stores conducts all of the Dollar Tree Entities’ US retail
sales. (Id.)
None of the Dollar Tree Entities have any stores,
offices, staff, or employees in Hawaii. (Id. ¶ 6.) None of their
advertising targets Hawaii. (Id.) DT Stores has offered shipping
to Hawaii through its website since 2009; from 2009 through

2/

As the Dollar Tree Entities correctly noted, the Matthews
Declaration is full of legal conclusions parroted from the
Complaint and factual allegations about which the declarant has
no personal knowledge. (See Reply at 11-12.) The Court has
ignored those portions of the declaration, and cautions Trade
West that any declarations it files in the future must be more
carefully drafted, or risk being stricken. The Matthews
Declaration does contain some proper factual attestations,
however, and the Court gives those statements due weight.
3

October 2012, its sales to Hawaii comprised a miniscule 0.00019%
of its total sales. (Id. ¶ 8.)
II.

Prior Contacts Concerning Artificial-Flower Leis
In late 2003 and early 2004, Trade West’s president,

Thomas Matthews, exchanged letters with counsel for DT Stores,
discussing a possible infringement on Trade West’s copyright on
another type of lei, not one at issue in this suit. (Matthews
Decl. ¶¶ 25-26 & Exs. 1, 3, 4 & 5.) On March 25, 2004, Matthews
sent DT Stores’ counsel copies of a preliminary injunction and
temporary restraining order that Trade West had obtained against
a Chinese company to prevent alleged infringements of the
Hibiscus Trademark. (Id. Ex 5.) DT Stores’ counsel replied
stating that it had received the letter and that DT Stores had
checked its records for the vendor named in the preliminary
injunction and temporary restraining order but had found no
relevant records. (Id. Ex. 6.)
In 2008, Mike Bailey, a Divisional Merchandise Manager
for Greenbrier (see id. Ex. 18 at 1), exchanged emails with Scott
Perry, an employee of Tropical Sun, Trade West’s distributor,
about possibly purchasing “luau items.” (Id. Ex. 14.) In one
email, Perry stated that he had sent Bailey copies of Tropical
Sun’s 2008 catalog. (Id.) Tropical Sun’s 2008 catalog included a
full page of Trade West’s artificial-flower leis, including the
Fluffy Plumeria Lei, all of which clearly displayed the Hibiscus
Trademark. (Id. Ex. 15.) The emails do not, however, demonstrate
that Bailey ever received or read the catalog.
4

On June 16, 2008, Perry sent Bailey an email stating,
“I neglected to mention the IP issue with the hibiscus flower you
are using on a few of your leis. This is a trademark we have held
and enforced for many years.” (Id. Ex. 16.) Bailey received and
responded to that email. (Id.)
III. The Allegedly Infringing Leis
In May 2012, Matthews spotted in a Dollar Tree store in
Seattle an artificial-flower lei which he believed was an
unauthorized copy of the Fluffy Plumeria Lei bearing an
unauthorized copy of the Hibiscus Trademark (together, the
“Accused Lei”). (Matthews Decl. ¶ 36.) In June 2012 he saw the
Accused Lei at a Dollar Tree store in Las Vegas. (Id. ¶ 37.) In
October 2012, he again saw the Accused Lei, this time at a booth
at a trade fair in Canton, China. (Id. ¶ 39.) The Accused Lei in
China bore Dollar Tree sales tags. (Id.) The vendor told Matthews
that he supplied the Accused Leis to Dollar Tree, and that they
were based on a design Dollar Tree had sent him to make for them.
(Id. ¶ 40.)
Back in Hawaii, Matthews ordered what appeared to be
the Accused Lei, SKU 865102, from Dollar Tree’s website. (Id.
¶ 41.) The leis he received were the same design as those he had
seen in Seattle and Las Vegas. (Id.)
On November 16, 2012, presumably after receiving notice
of Trade West’s potential claim,3/ Dollar Tree issued a “Pull &

3/

Trade West served its original complaint and summons on
(continued...)
5

Hold” letter directing its distribution centers and stores to
stop sales of the artificial-flower lei SKU 865102. (Rentz Decl.
¶ 2 & Ex. A.)
STANDARD
The Court’s exercise of personal jurisdiction over a
party may be challenged under Federal Rule of Civil Procedure
(“Rule”) 12(b)(2). The plaintiff bears the burden of showing that
the Court has jurisdiction over the defendant. Mavrix Photo, Inc.
v. Brand Techs., Inc., 647 F.3d 1218, 1223 (9th Cir. 2011). The
Court may allow the plaintiff to submit affidavits, allow
affidavits plus discovery, or conduct an evidentiary hearing. Doe
v. Unocal Corp., 248 F.3d 915, 922 (9th Cir. 2001).
When the Court rules without conducting an evidentiary
hearing, “the plaintiff need only make a prima facie showing of
jurisdictional facts” to avoid dismissal. Washington Shoe Co. v.
A-Z Sporting Goods Inc., 704 F.3d 668, 672 (9th Cir. 2012).4/ The
Court must take as true all uncontroverted facts in the complaint
but may not assume the truth of allegations which are
contradicted by affidavit. CollegeSource, Inc. v. AcademyOne,
Inc., 653 F.3d 1066, 1073 (9th Cir. 2011). The Court must resolve
all factual disputes in the plaintiff’s favor. Washington Shoe,

(...continued)
the Dollar Tree Entities on November 21, 2012. (Doc. Nos. 4 & 5.)
4/

“If the plaintiff succeeds in meeting that prima facie
burden, then the district court may still order an evidentiary
hearing or the matter may be brought up again at trial.” Fiore v.
Walden, 688 F.3d 558, 574 n.13 (9th Cir. 2011) (citation
omitted).
6

704 F.3d at 672. Nonetheless, “mere ‘bare bones’ assertions of
minimum contacts with the forum or legal conclusions unsupported
by specific factual allegations will not satisfy a plaintiff’s
pleading burden.” Fiore, 688 F.3d at 574-75.
DISCUSSION
Although the burden is on the plaintiff to show that
the court has personal jurisdiction over the defendant, “in the
absence of an evidentiary hearing the plaintiff need only make a
prima facie showing of jurisdictional facts to withstand the
motion to dismiss.” Washington Shoe, 704 F.3d at 671-72.
Additionally, the Court resolves all disputed facts in favor of
the plaintiff, in this case, Trade West. See id. at 672.
Because there is no applicable federal statue governing
personal jurisdiction in this case, the Court applies Hawaii
state law. See id. Hawaii’s long-arm statute, Hawaii Revised
Statutes § 634–35, reaches to the full extent permitted by the
Constitution, Cowan v. First Ins. Co., 608 P.2d 394, 399 (Haw.
1980). The relevant question, therefore, is whether the
requirements of due process are satisfied by the exercise of
personal jurisdiction over the Dollar Tree Entities in Hawaii.
I.

Due Process
Due process requires that to exercise jurisdiction over

a non-resident defendant, the defendant “have certain minimum
contacts with [the forum] such that the maintenance of the suit
does not offend ‘traditional notions of fair play and substantial
justice.’” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316
7

(1945). The Ninth Circuit employs a three-part test to determine
if a defendant has sufficient minimum contacts to be subject to
specific personal jurisdiction5/:
(1)

(2)

(3)

The 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;
the claim must be one which arises out
of or relates to the defendant’s
forum-related activities; and
the exercise of jurisdiction must
comport with fair play and substantial
justice, i.e. it must be reasonable.

Washington Shoe, 704 F.3d at 672 (quoting Brayton Purcell LLP v.
Recordon & Recordon, 606 F.3d 1124, 1128 (9th Cir. 2010)). “If
any of the three requirements is not satisfied, jurisdiction in
the forum would deprive the defendant of due process of law.”
Omeluk v. Langsten Slip & Batbyggeri A/S, 52 F.3d 267, 270 (9th
Cir. 1995).
As Trade West bears the burden of establishing the
district court’s jurisdiction over the Dollar Tree Entities, it
must satisfy the first two prongs. Washington Shoe, 704 F.3d at
672. If it does so, then the Dollar Tree Entities must come
forward with a “‘compelling case’ that the exercise of
jurisdiction would not be reasonable.” CollegeSource, 653 F.3d at

5/

Trade West does not argue that there is any basis for
asserting general personal jurisdiction over any of the Dollar
Tree Entities in Hawaii.
8

1076 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477
(1985)).
A.

Purposeful Direction
The plaintiff may satisfy the first prong by

demonstrating that the defendant either purposefully availed
itself of the privilege of conducting activities in the forum, or
purposefully directed its activities at the forum. The Ninth
Circuit typically applies the purposeful direction test in tort
cases such as this. See Washington Shoe, 704 F.3d at 672-73 &
n.2. The test inquires “whether a defendant ‘purposefully
direct[s] his activities’ at the forum state, applying an
‘effects’ test that focuses on the forum in which the defendant’s
actions were felt, whether or not the actions themselves occurred
within the forum.” Id. (quoting Yahoo! Inc. v. La Ligue Contre Le
Racisme, 433 F.3d 1199, 1206 (9th Cir. 2006) (en banc)).
The “purposeful direction” or “effects” test is based
on Calder v. Jones, 465 U.S. 783 (1984). It “requires that the
defendant . . . 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.”
Washington Shoe, 704 F.3d at 673 (quoting Mavrix Photo, 647 F.3d
at 1228). Thus, courts may exercise personal jurisdiction over a
defendant who engages in an intentional act that causes harm in
the forum state, even if that act takes place outside of the
forum state. Washington Shoe, 703 F.3d at 673 (citing Yahoo!
Inc., 433 F.3d at 1206; Panavision Int’l, L.P. v. Toeppen, 141
9

F.3d 1316, 1320 (9th Cir. 1998) (“It is not required that a
defendant be physically present or have physical contacts with
the forum, so long as his efforts are ‘purposefully directed’
toward forum residents.”)).
In this case, the purposeful direction analysis is
squarely controlled by the Ninth Circuit’s recent decision in
Washington Shoe, 703 F.3d 668. The Court will address each of the
three elements in turn.
1.

Intentional act

First, the Court addresses whether the Dollar Tree
Entities “committed an intentional act” when they, allegedly,
willfully infringed Trade West’s copyright. See Washington Shoe,
704 F.3d at 673-74. “[A]n intentional act is an external
manifestation of the actor’s intent to perform an actual,
physical act in the real world, not including any of its actual
or intended results.” Id. at 674.
Trade West alleges that the Dollar Tree Entities had a
design which they knew infringed on Trade West’s copyrights
manufactured in China and then sold it in their stores. (Compl.
¶¶ 30, 34, 40.) The Court must take as true all uncontroverted
factual allegations in the Complaint, and must resolve all
factual disputes in Trade West’s favor. See CollegeSource, 653
F.3d at 1073; Washington Shoe, 704 F.3d at 672. The Dollar Tree
Entities, strangely, do not contradict through affidavits the

10

foregoing allegations.6/ Based on the foregoing, Trade West has
presented a prima facie case that the Dollar Tree Entities
committed an intentional act.
2.

Expressly aimed

Determining whether the Dollar Tree Entities’ conduct
was expressly aimed at Hawaii “depends to a great degree on the
allegations of a willful copyright violation.” Washington Shoe,
704 F.3d at 674. The Ninth Circuit has held that Calder “cannot
stand for the broad proposition that a foreign act with
foreseeable effects in the forum state always gives rise to
specific jurisdiction.” Washington Shoe, 704 F.3d at 674 (quoting
Bancroft & Masters, Inc. v. Augusta Nat’l Inc., 223 F.3d 1082,
1087 (9th Cir. 2000)). Nonetheless, the Ninth Circuit has
repeatedly stated that the “express aiming” requirement is
satisfied, and specific jurisdiction exists, “when ‘the defendant
is alleged to have engaged in wrongful conduct targeted at a
plaintiff whom the defendant knows to be a resident of the forum
state.’” Dole Food Co. v. Watts, 303 F.3d 1104, 1111 (9th

6/

The Dollar Tree Entities argue that Mr. Matthews’
declaration as to what the Chinese vendor said to him is
inadmissible hearsay. (Reply at 11-12.) That may be true, but it
is irrelevant where the Dollar Tree Entities have failed to deny
most of the relevant allegations in the Complaint. Indeed, the
only one of Trade West’s jurisdictional allegations that the
Dollar Tree Entities have denied through affidavits is the claim
that the Dollar Tree Entities continued to sell the Accused Leis
even after receiving notice of Trade West’s complaint. (Compl.
¶ 43.) The Dollar Tree Entities present an affidavit and
supporting documentary evidence that they stopped selling the
Accused Leis on November 16, 2012 (Rentz Decl. ¶ 2 & Ex. A),
which was in fact a few days before Trade West’s original
complaint was formally served on them (see Doc. Nos. 4 & 5).
11

Cir.2002) (quoting Bancroft & Masters, 223 F.3d at 1087); see
also id. at 1087 (“‘[E]xpress aiming’ encompasses wrongful
conduct individually targeting a known forum resident.”).
Furthermore, the Ninth Circuit recently held in
Washington Shoe that, “[p]articularly in the case of a willful
copyright infringement, the intentional act constituting the
violation may occur solely within one state while the known
impact of that copyright infringement is directed at another
state.” 704 F.3d at 675. “Because the harm caused by an
infringement of the copyright laws must be felt at least at the
place where the copyright is held, we think that the impact of a
willful infringement is necessarily directed there as well. Id.
at 678. “When copyrights are held by corporations,” the “impact
of an intentional violation” of the copyright is “necessarily
directed” at the corporation’s location. Id.
Trade West’s evidence demonstrates that Trade West sent
DT Stores, through its counsel, written notice of Trade West’s
Hibiscus Trademark, and that DT Stores’ counsel received and
reviewed that notice. (See Matthews Decl. Exs. 5 & 6.) Trade
West’s evidence also demonstrates that DT Stores’ counsel sent
letters to Trade West at Trade West’s Hawaii address. (Id.) It is
reasonable to infer from this evidence that DT Stores knew that
Trade West was located in Hawaii and that it owned the rights to
the Hibiscus Trademark.
Trade West has also presented evidence suggesting that
Mike Bailey, one of Greenbrier’s managers, was sent a catalog
12

containing large color photographs of Trade West’s artificialflower leis, including the one at issue here, which were
displaying the Hibiscus Trademark. (Id. Exs. 14 & 15.) Moreover,
Trade West has shown that Trade West’s distributor later warned
Bailey that the hibiscus flower design was trademarked. (Id.
Ex. 16.) It is reasonable to infer from this evidence that Bailey
saw the Hibiscus Trademark and knew that it was trademarked. The
Dollar Tree Entities correctly note that Trade West has presented
no direct evidence that Bailey ever saw the hibiscus design or
knew it to be trademarked; but, again, the Dollar Tree Entities
have not presented any affidavits to contradict Trade West’s
allegations.
Finally, Trade West has presented evidence that
DT Stores sold the Accused Lei in its stores and on its website
(Matthews Decl. ¶¶ 36-37, 41), and the Dollar Tree Entities have
confirmed that Greenbrier sources the products for DT Stores to
sell (Mallas Decl. ¶ 5).
Trade West has not presented any evidence that would
suggest that either Dollar Tree or Greenbrier knew that Trade
West, specifically, owned the Hibiscus Trademark or that the
owner of the trademark was located in Hawaii. Trade West has
alleged both those facts in its Complaint however (see Compl.
¶¶ 27, 30, 32, 41-42) and, once again, the Dollar Tree Entities
have failed to contradict those allegations. Again, the Court
must take as true all uncontroverted factual allegations in the
Complaint. CollegeSource, 653 F.3d at 1073.
13

The Dollar Tree Entities note that they make very few
sales at all to Hawaii, and that the only Accused Leis sold in
Hawaii were the ones that Trade West’s president bought to
compare with those he had seen in Seattle and Las Vegas. The
Dollar Tree Entities also note that Trade West has presented no
evidence of the Accused Leis directly competing with Trade West’s
leis anywhere, let alone in Hawaii. (Reply at 1, 14.) These
arguments are irrelevant, however. In Washington Shoe, the
defendant shoe store sold shoes only in Arkansas. 704 F.3d at
671. While the defendant shoe store bought other types of shoes
from the plaintiff, it did not buy the children’s rain boots that
it allegedly copied; rather, it sold only its own infringing
copies of those rain boots. Id. The Ninth Circuit nonetheless
found express aiming based on the defendant’s alleged willful
violation of the plaintiff’s copyright. Id. at 670 (finding
personal jurisdiction where defendant’s “only relevant contact
with the state is a claim that it willfully violated a copyright
held by a [state] corporation”).
The Court finds that, under the Ninth Circuit’s
decision in Washington Shoe, Trade West has made sufficient
allegations, on the current record, to show that the Dollar Tree
Entities’ conduct was expressly aimed at Hawaii.
3.

Causing harm that the defendants know is likely to
be suffered in the forum state

“The economic loss caused by the intentional
infringement of a plaintiff’s copyright is foreseeable.”
Washington Shoe, 704 F.3d at 679 (quoting Mavrix Photo, 647 F.3d
14

at 1231.) It is foreseeable that the loss will be inflicted where
the copyright holder has its principal place of business - here,
Hawaii. See id. at 679.
In sum, the Court notes that this is a much less
clear-cut case than Washington Shoe. Nonetheless - thanks
primarily to the Dollar Tree Entities’ failure to deny Trade
West’s jurisdictional allegations - the Court finds that Trade
West has met its relatively low burden at this stage of the
litigation, and has presented a prima facie case that the Dollar
Tree Entities “purposefully directed” their activities at Hawaii.
B.

Arising out of Forum-Related Activities
There is no question here that Trade West’s claims

against the Dollar Tree Entities “arise out of” the Dollar Tree
Entities’ alleged forum-related activities. Courts in the Ninth
Circuit use a “but for” test to determine whether a claim arises
out of forum-related activities. Menken v. Emm, 503 F.3d 1050,
1058 (9th Cir. 2007) (plaintiff must show that he “would not have
suffered an injury ‘but for’ [defendant’s] forum-related
conduct”). In this case, Trade West’s claims are directly based
on the Dollar Tree Entities’ alleged activities directed toward
Hawaii.
C.

Fair Play and Substantial Justice
Since Trade West has - barely - satisfied both the

first and second prongs of the analysis for specific personal
jurisdiction, the burden now shifts to the Dollar Tree Entities
to “‘present a compelling case’ that the exercise of jurisdiction
15

would not be reasonable.” Schwarzenegger v. Fred Martin Motor
Co., 374 F.3d 797, 801–02 (9th Cir. 2004) (quoting Burger King,
471 U.S. at 476–78). In making a reasonableness determination,
the Court must consider the following factors:
(1)

(2)
(3)
(4)
(5)
(6)

(7)

The extent of the defendants’ purposeful
interjection into the forum state’s
affairs;
the burden on the defendant of defending
in the forum;
the extent of conflict with the
sovereignty of the defendants’ state;
the forum state’s interest in
adjudicating the dispute;
the most efficient judicial resolution
of the controversy;
the importance of the forum to the
plaintiff’s interest in convenient and
effective relief; and
the existence of an alternative forum.

Fiore, 657 F.3d at 854. The Court balances all seven factors,
recognizing that none of the factors is dispositive in itself.
Id.
1.

Extent of purposeful interjection

The Ninth Circuit has recognized that “circumstances
may exist where ‘the level of purposeful injection into the forum
supports a finding of purposeful availment yet still weighs
against the reasonableness of jurisdiction.’” Fiore, 688 F.3d at
583 (citation omitted). This may well be a case in which the
Dollar Tree Entities’ “level of purposeful interjection into”
Hawaii is so slight that it is not reasonable to exercise
personal jurisdiction over them here. “The smaller the element of
purposeful interjection, the less is jurisdiction to be
16

anticipated and the less reasonable its exercise.” Ins. Co. of N.
Am. v. Marina Salina Cruz, 649 F.2d 1266, 1271 (9th Cir. 1981.)
This factor weighs in favor of the Dollar Tree Entities. The
Court notes once more, however, that the Dollar Tree Entities
have failed to deny most of Trade West’s jurisdictional
allegations.
2.

Burden on defendant

The Court recognizes that “a defendant’s burden in
litigating in the forum is a factor in the assessment of
reasonableness, but unless the ‘inconvenience is so great as to
constitute a deprivation of due process, it will not overcome
clear justifications for the exercise of jurisdiction.’”
Panavision, 141 F.3d at 1321, 1323. Moreover, courts in this
Circuit have observed that “[r]ecent advancements in
communication and transportation . . . have greatly reduced the
inconvenience once associated with defending in another forum.”
Robinson Corp. v. Auto–Owners Ins. Co., 304 F. Supp. 2d 1232,
1240 (D. Haw. 2003) (citing Panavision, 141 F.3d at 1323).
The Dollar Tree Entities have no offices, employees, or real or
personal property in Hawaii. Accordingly, litigating this matter
in Hawaii imposes a burden on the Dollar Tree Entities. This
factor slightly favors the Dollar Tree Entities.
3.

Conflict with another state’s sovereignty

There is no evidence presented to demonstrate a
conflict with the sovereignty of Virginia, the Dollar Tree
Entities’ principal place of business. Moreover, the sovereignty
17

of a defendant’s state is not a significant consideration in
actions between citizens of the United States. See Decker Coal
Co. v. Commonwealth Edison Co., 805 F.2d 834, 841 (9th Cir.
1986). This factor is neutral.
4.

Interest of forum state

“Hawaii has a strong interest in providing an effective
means of redress for its residents who are tortiously injured.”
Resnick v. Rowe, 283 F. Supp. 2d 1128, 1141 (D. Haw. 2003)
(citation omitted). “A State generally has a ‘manifest interest’
in providing its residents with a convenient forum for redressing
injuries inflicted by out-of-state actors.” Burger King, 471 U.S.
at 473. Trade West’s principal place of business is in Hawaii.
This factor weighs in Trade West’s favor. See Panavision, 141
F.3d at 1323.
5.

Judicial efficiency

“[C]onsideration of the most efficient judicial
resolution is ‘no longer weighted heavily given the modern
advances in communication and transportation.’” Panavision, 141
F.3d at 1323 (quoting Caruth v. Int’l Psychoanalytical Ass’n, 59
F.3d 126, 129 (9th Cir. 1995)). The Dollar Tree Entities’
witnesses and documentary evidence are likely located in
Virginia. Trade West’s employees and documents are located in
Hawaii. Trade West also anticipates trying to locate relevant
evidence and witnesses in China, which, as Trade West notes, is
closer to Hawaii than to Virginia. (Matthews Decl. ¶ 43-44.) This
factor only slightly favors Trade West.
18

6.

Importance of forum to plaintiff’s interest

“[I]n evaluating the convenience and effectiveness of
relief for the plaintiff, the Ninth Circuit has given little
weight to the plaintiff’s inconvenience.” Panavision, 141 F.3d at
1324 (internal citations omitted)). Thus, although it may be more
costly and inconvenient for Trade West to litigate this action in
another forum, this factor weighs only slightly in favor of Trade
West.
Trade West argues that this Court has special expertise
that would be beneficial in this case because the case involves
leis, which are a traditional Hawaiian craft. (Opp’n at 27.) The
Court is unconvinced by this argument. The merits of Trade West’s
claims have little, if anything, to do with the cultural
significance of leis, and require no specialized understanding of
Hawaiian culture.
7.

Existence of an alternative forum

The parties do not dispute that Trade West’s claims
could have been brought in Virginia. This factor weighs in favor
of the Dollar Tree Entities.
8.

Balancing

Taken as a whole, the Court finds that the Dollar Tree
Entities have not presented a “compelling” case that the exercise
of personal jurisdiction over them would be unreasonable. See
Schwarzenegger, 374 F.3d at 801–02. The Dollar Tree Entities cite
repeatedly to this Court’s determination in DeLeon v. KBR, Inc.,
Civ. No. 11-00685, 2012 U.S. Dist. LEXIS 64738 (D. Haw. May 8,
19

2012). In DeLeon, however, the plaintiff failed to establish the
defendant’s purposeful interjection into Hawaii, and key
witnesses were likely located in Iraq. Id. at *33-*36. Here, by
contrast, key witnesses are likely located in China, and the
plaintiff has established the defendants’ personal interjection
into Hawaii.
Nonetheless, the Court remains concerned about the
issue of personal jurisdiction in this case. The Court notes that
Trade West will have to prove that the Court’s exercise of
personal jurisdiction over the Dollar Tree Entities is proper,
either before or at trial. The Court further notes that its
present denial of the Dollar Tree Entities’ motion shall be
without prejudice.
CONCLUSION
For the foregoing reasons, the Court DENIES WITHOUT
PREJUDICE Defendants’ Motion To Dismiss the Amended Complaint
(Doc. No. 19). Furthermore, since Defendants’ original motion to
dismiss (Doc. No. 6) remains open on the docket, the Court DENIES
that motion as well, also without prejudice.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, April 30, 2013

________________________________
Alan C. Kay
Sr. United States District Judge

Trade W., Inc. v. Dollar Tree, Inc., Civ. No. 12-00606 ACK BMK, Order Denying
Motion To Dismiss

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