Under A Foot Plant, Co. v. Exterior Design, Inc., et al
OPINION AND ORDER: Plaintiff's request for judicial notice 11 is GRANTED. Defendant's motion to dismiss or transfer venue 8 is GRANTED. This case shall be transferred to the District of Maryland. See formal OPINION AND ORDER. Signed on 3/24/2015 by Chief Judge Ann L. Aiken. (rh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
UNDER A FOOT PLANT, CO., an
EXTERIOR DESIGN, INC., a
Maryland corporation, doing
business as THE PERENNIAL FARM,
TREADWELL PERENNIALS, and
PERENNIAL FARM MARKETPLACE,
MICHAEL DELL LONG
ANDREA A. SELKREGG
621 SW Morrison, Suite 1420
Portland, Oregon 97205
Attorneys for plaintiff
BARRY J. GOEHLER
Law office of Barry Goehler
1001 SW Fifth Avenue, Suite 1530
Portland, Oregon 97204
Attorney for defendant
Page 1 - OPINION AND ORDER
OPINION AND ORDER
AIKEN, Chief Judge:
Defendant Exterior Design,
filed a motion to dismiss
plaintiff Under A Foot Plant, Co.'s complaint for lack of personal
(12) (b) (2).
alternative, defendant moves to transfer venue to the District of
judicial notice of a
printout from defendant's website. For the reasons set forth below,
the parties' motions are granted.
Plaintiff, an Oregon corporation with its principal place of
marketing and distributing groundcover plants. In 1999, plaintiff
developed a product line entitled STEPABLES®.
In the course of
marketing STEPABLES®, plaintiff took a number of photographs for
use in its promotional materials. Among these photographs are the
nineteen copyrighted images ("Copyrighted Works") at issue in this
Defendant, a Maryland corporation with its principal place of
business in Glenn Arm, Maryland,
is also in the wholesale plant
business. Sometime around 2010, defendant developed a product line,
entitled Treadwell Plants, that is similar in nature to plaintiff's
On August 26, 2014, plaintiff filed a complaint in this Court
Page 2 - OPINION AND ORDER
deceptive trade practices,
and unjust enrichment.
impermissibly began using, and continues to use, the Copyrighted
defendant filed the present motion to dismiss or transfer venue.
Where the court lacks personal jurisdiction, the action must
be dismissed. Fed. R. Ci v. P. 12 (b) ( 2) . When a defendant moves to
dismiss for lack of personal jurisdiction, the plaintiff bears the
Fred Martin Motor Co.,
374 F.3d 797,
jurisdictional finding based on pleadings and affidavits rather
than an evidentiary hearing, the plaintiff need only make a prima
"Although the plaintiff cannot rest solely on the allegations of
complaint's uncontroverted factual allegations must be accepted as
true and any factual conflicts in the parties' declarations must be
resolved in the plaintiff's favor." Ukrvaktsina v. Olden Grp., LLC,
2011 WL 5244697, *2 (D.Or. Oct. 30, 2011)
Page 3 - OPINION AND ORDER
support personal jurisdiction in this forum. Conversely, plaintiff
jurisdiction over defendant pursuant to Oregon's long arm statute.
I. Request for Judicial Notice
Plaintiff requests judicial notice of an archived printout
generated by The
Archive on November 30, 2010. This printout describes the shipping
services provided by defendant. According to plaintiff, defendant
existence of the document,
does not consent to the Court
taking judicial notice of the facts contained within the document."
Pl.'s Mot. Jud. Notice 2. Defendant did not file an opposition to
plaintiff's request for judicial notice.
A court may take
cannot reasonably be questioned." Fed. R. Evid.
courts have routinely taken judicial notice of content from The
Internet Archive pursuant to this rule. See, e.g., Pond Guy, Inc.
v. Aguascape Designs, Inc., 2014 WL 2863871, *4 (E.D.Mich. June 24,
2014); Martins v. 3PD, Inc., 2013 WL 1320454, *16 (D.Mass. Mar. 28,
In re Methyl Tertiary Butyl Ether
Page 4 - OPINION AND ORDER
Litig., 2013 WL 6869410, *4 (S.D.N.Y. Dec. 30, 2013). Accordingly,
plaintiff's request for judicial notice is granted.
II. Motion to Dismiss
jurisdiction, the district court applies the law of the state in
which it sits. Schwarzenegqer, 374 F.3d at 800 (citations omitted).
Because Oregon's long-arm statute is coextensive with federal due
process requirements, the jurisdictional analyses under state law
and federal due process are the same. Id. at 801; Or. R. Civ. P.
defendant violates the due process clause.
In order for a court to have the power to render judgment
against a defendant, the plaintiff must show that the nature and
quality of the non-resident's contacts are sufficient to establish
either "general" or "specific" personal jurisdiction. Helicopteros
Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 414-15 (1984).
A. General Jurisdiction
The due process clause permits a court to exercise general
personal jurisdiction if the non-resident defendant's activities
systematic," even if the cause of action is unrelated to those
Reynolds Tobacco Co.,
Page 5 - OPINION AND ORDER
433 F.3d 1163,
establishing general jurisdiction is "exacting" and requires that
the defendant's contacts be of the sort that "approximate physical
regulatory or economic markets
37 4 F. 3d at
indica of such a
presence." Tuazon, 433 F.3d at 1172; see also Bancroft & Masters,
Inc. V. Augusta Nat'l,
223 F.3d 1082, 1086 (9th Cir. 2000)
solicits or engages
state, serves the state's markets, designates an agent for service
of process, holds a license, or is incorporated there")
Plaintiff asserts that general jurisdiction exists because
who attended a
trade show in
Oregon, and sells to national chains that "likely" distribute their
products to Oregon. Pl.'s Resp. to Mot.
to the contrary,
Dismiss 12-13. The Court
that the contacts alleged by plaintiff
cannot be said to be so continuous and systematic as to approximate
defendant's physical presence in Oregon for four reasons. First, it
is well established that purchasing products from a forum state is
not enough to establish general jurisdiction over a defendant. See
Helicopteros, 466 U.S. at 418
Page 6 - OPINION AND ORDER
("mere purchases, even if occurring
at regular intervals, are not enough to warrant a State's assertion
of in personam jurisdiction over a nonresident corporation in a
commerce with residents of the forum state is not in and of itself
the kind of activity that approximates physical presence within the
( citation omitted) .
Second, Dr. Armitage offered sworn testimony that he is not an
agent or employee of defendant. Armitage Decl.
2. He also stated
that any time spent in Oregon at trade shows and other events was
for the benefit of his own career.
In other words,
represented defendant or conducted any business on its behalf while
Id. Third, plaintiff's vague assertion that defendant
has national customers that "likely" distribute their products to
not support its argument
assuming that some of defendant's products reach Oregon through its
residents are insufficient to create general jurisdiction over a
non-resident. Bancroft, 223 F.3d at 1086 (citation omitted).
Finally, other evidence indicates defendant lacks the contacts
with Oregon that would warrant general jurisdiction. See generally
Watson Decl. Specifically, defendant is not licensed to do business
in Oregon, does not have any agents or employees in Oregon,
Page 7 - OPINION AND ORDER
not own any real estate or operate any facilities in Oregon, and
does not own any Oregon bank accounts. Id.
4. These facts are
defendant's contact with Oregon is not systematic and continuous.
Accordingly, this Court lacks general personal jurisdiction over
B. Specific Jurisdiction
Where general personal jurisdiction is lacking, a court may
still exercise specific jurisdiction if the defendant has minimum
contacts with the forum state such that the maintenance of the suit
does not offend traditional notions of fair play and substantial
justice. Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1155 (9th Cir.
(citation omitted) . Under the minimum contacts test, a court
can exercise specific personal jurisdiction over a non-resident if:
an act or consummates
within the forum, purposefully availing itself of the privilege of
conducting activities there; 2) the plaintiff's claim arises out of
or results from the defendant's forum-related activities; and 3)
reasonable. Id. ( citation omitted) . The plaintiff "bears the burden
of satisfying the first two prongs of the 'minimum contacts' test."
(citation omitted). "If the plaintiff fails to satisfy either
Schwarzenegger, 374 F.3d at 802
Page 8 - OPINION AND ORDER
The Ninth Circuit typically treats the first element of the
Yahoo! Inc. v. La Ligue Contre Le Racisme Et L'Antisemitisme, 433
F.3d 1199, 1206 (9th Cir.), cert. denied, 547 U.S. 1163 (2006). In
activities or consummate[s]
[a] transaction in the forum, focusing
on activities such as delivering goods or executing a contract."
(citation and internal quotations omitted). In tort cases, the
court generally applies the effects test to determine whether the
defendant purposefully directs its activities at the forum state,
regardless of whether the actions themselves occurred within the
Because plaintiff's allegations are based in tort, the effects
test governs. Accordingly, plaintiff must demonstrate, in relevant
part, that defendant committed an intentional act expressly aimed
at this forum, which caused harm herein. Harris Rutsky & Co. Ins.
Servs., Inc. v. Bell & Clements Ltd., 328 F.3d 1122, 1131 (9th Cir.
physical act in the real world, rather than an intent to accomplish
a result or consequence of that act." Schwarzenegger, 374 F.3d at
in a copyright action, a defendant acts intentionally
when it reproduces and distributes the protected work, regardless
Page 9 - OPINION AND ORDER
of whether or not it intended to violate the copyright. Herer v. Ah
Ha Pub., LLC, 927 F.Supp.2d 1080, 1086 (D.Or. 2013). An intentional
act with foreseeable effects in a forum state alone will not give
rise to specific jurisdiction; rather, the intentional act must be
"expressly aimed" at the forum state. Bancroft, 223 F.3d at 1087.
Here, the Court finds that defendant committed an intentional
defendant's conduct was "expressly aimed" at this forum. Plaintiff
Copyrighted Works despite being informed of its interest. Further,
plaintiff contends that,
based on email correspondences and the
transmittal of its copyright registrations and a cease and desist
letter, defendant had knowledge of its Salem, Oregon, location. 1
As such, plaintiff argues that Wash. Shoe Co. v. A-Z
Sporting Goods Inc., 704 F.3d 668 (9th Cir. 2012), controls this
Court's analysis. Pl.'s Resp. to Mot. Dismiss 9-11. That case
held that when a plaintiff "allege[s] willful infringement of
[its] copyright, and [the defendant's] knowledge of both the
existence of the copyright and the forum of the copyright
holder," the "expressly aimed" prong is satisfied. Wash. Shoe,
704 F.3d at 678-79. As defendant notes, however, the Supreme
Court recently examined the Ninth Circuit's application of the
effects test and held that a plaintiff cannot be the only
connection between the defendant and the forum: "it is the
defendant's conduct that must form the necessary connection with
the forum State that is the basis for jurisdiction over him."
Walden v. Fiore, 134 S.Ct. 1115, 1122 (2014) (citations omitted).
Thus, intentional conduct directed at an individual who is known
to reside in a particular forum is not enough, on its own, to
satisfy the minimum contacts test. Id. at 1125. "The proper
Page 10 - OPINION AND ORDER
Plaintiff's argument is problematic because
focus of the minimum contacts analysis from defendant's connection
with Oregon to defendant's connection with plaintiff; yet this is
contacts with the
forum to allow for the exercise of specific
It is undisputed that defendant's conduct did not
occur within the State of Oregon.
plaintiff alleges the
reproduction and display of the Copyrighted Works took place in
Maryland, Massachusetts, and on defendant's websites.
The "maintenance of a passive website alone cannot satisfy the
conjunction with 'something more' - conduct directly targeting the
forum - is sufficient." Marvix Photo, Inc. v. Brand Technologies,
F. 3d 1218,
Courts consider multiple factors when determining if a defendant
targeted a plaintiff known to be a forum resident." Id.
and internal quotations omitted).
question is not where the plaintiff experienced a particular
injury or effect but whether the defendant's conduct connects him
to the forum in a meaningful way." Id.
Page 11 - OPINION AND ORDER
conduct lacked the requisite "something more." Defendant's websites
have a low degree of interactivity. They allow a visitor to submit
questions via a "contact us" page and sign up for an electronic
newsletter but they do not allow visitors to purchase products
See Willis v.
(D.Or. Oct. 24, 2011)
2011 WL 7121288,
(defendant's website was passive because it
only allowed customers to log-in and access their accounts,
maintained a "contact us" page)
(citations omitted) . In addition,
Northeast and Mid-Atlantic regions of the United States. Watson
2. Plaintiff has produced no evidence that defendant made
sales in Oregon. There is also no evidence that defendant's alleged
infringement was targeted at plaintiff's customers or other Oregon
targeting directed at Oregon and its citizens.
"expressly aimed" its conduct at Oregon. Because plaintiff did not
satisfy the first prong of the minimum contacts analysis, the Court
need not examine the other two elements to determine that specific
jurisdiction is lacking. Schwarzenegger, 374 F.3d at 802.
III. Motion to Transfer Venue
Even assuming defendant was subject to personal jurisdiction
Page 12 - OPINION AND ORDER
appropriate. See Jones v. GNC Franchising, Inc., 211 F.3d 495, 49899 (9th Cir.), cert. denied, 531 U.S. 928 (2000)
exclusive factors in determining whether to transfer venue pursuant
to 28 U.S.C.
instituted in the
this action could have been
of Maryland because defendant
Maryland corporation. 28 U.S.C. 1400(a). Moreover, to the extent
determining venue weigh in favor
transfer, as defendant has no contact with this forum outside of
inconvenienced to a degree that outweighs the deference typically
defendant's motion is granted.
Plaintiff's request for judicial notice (doc. 11) is GRANTED.
IT IS SO ORDERED.
of March, 2015.
United States District Judge
Page 13 - OPINION AND ORDER
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