Bonita Fabrics, Inc. v. Kirat S. Anand, an Individual, dba Kas New York

Filing 26

OPINION re: 19 MOTION to Dismiss for Lack of Jurisdiction, filed by Kirat S. Anand, an Individual, dba Kas New York. For the reasons set forth above, the Defendant's motion to dismiss is granted. It is so ordered. (Signed by Judge Robert W. Sweet on 1/29/2014) (ja)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

-------- ------------------x
12 Misc. 408

BONITA FABRICS, INC.,

OPINION

Plaintiff,
instKIRAT ANAND, AN INDIVIDUAL, DBA
KAS NEW YORK,
Defendant.

------ ----------------- -x
A P PEA
RAN C E S:
Attorne

for Plaintiff

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Donald Pearce, Esq.
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LEWIS & LIN, LLC

45 Main Street, Suite 608

New York, NY 11201

By:
Brett E.
s, Esq.

Justin Mercer, Esq.

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Sweet, D. J. ,

Defendant

S. Anand

("Anand U or

ics,

Inc.

Central District of California
Anand to issue the

("Bonita

States

grounds that the Un

on

)

scellaneous proceeding brought

smiss the

by Plaintiff Bonita

U

Federal Rules of

has moved pursuant to Rule 12 (b) (2) of
Civil Procedure to

"Defendant

U

or t

"Plaintiff

U

the

strict Court

cked personal jurisdiction over

fault judgment upon which this proceeding

is based.

Upon the conclusions set forth below,

motion is

granted.

I. Prior Proceedings

The instant miscellaneous matter arises from an act
by the Pla

iff in the United States

Central District of Califo
No.

11

. 7594

a

strict Court for the

(the "California Court

"California Action U

On March 2, 2012,

)

U
),

Case

•

ta received an Order to Show

Cause issued by the California Court indicating that the First
Amended Compla

)

("FAC") would be dismissed unless a default

1

judgment was requested.

By email dated March 2, 2012, Bonlta

provided Anand's counsel with notice of the Order to Show Cause
and also advised that Bonita would file default papers in
following week.
within

(Pl. Ex. 9.)

Anand did not respond to the FAC

permitted time period.

A clerk's default was entered

by the California Court on March 16, 2012.

(PI. Ex. 10.)

By letter dated June 19, 2012, Anand sent a letter to
Honorable Philip S. Gut

rrez, who presi

over the

California Action, requesting a continuance of the default
hearing.

(Pl. Ex. 11.)

Rules 83-2.11.

The letter was rejected as per Local

(Pl. Ex. 11.)

On June 20, 2012, Judge Gutlerrez

granted Bonita's request for entry of default judgment, finding
that good cause exi

for the entry of default against t

fendant in the amount of $20,000, together with pre-judgment
interest as well as attorneys' fees in the amount of $7,080.50
and costs of suit in the amount of $682.50.
Court also issued a permanent

The California

junction against Anand.

On December 20, 2012, Bonita entered an amended
registration of foreign judgment against Anand in the amount of
$27,763 in the Southern District of New York.
subsequently filed motions to di
2013, which were

ss and qua

Anand
on March 25,

rd and marked fully submitted on April 16,
2

2013.

On April 22, 2013, Defendant's motions were den

without prejudice to renewal

llowing jurisdictional discovery.

On November 22, 2013, Defendant filed the instant
mot

smiss for lack of jurisdiction.

to

Defendant's motion

was heard and marked fully submitted on January 15, 2013.

II.

Facts

Bonita is a California corporation with its principal
place of business in Los Ange
fabric wholesa

s, California.

r and employs several

Bonita is a

11 time designers in

ifornia.

Bon

a applied for and received a copyright

registration for Design No. 50653 (the "Design") on
2007 and assigned Registrat

il 5,

Number ("RN") VA 1-634-587.

2007 to 2009, Bonita sold to Forever 21, one of

From

largest

chains of junior's retail stores worldwide, approximately
100,000 yards of fabric at a wholesale price in excess
$600,000.

In May 2011, Bonita learned that certain garments
bearing allegedly unauthorized reproductions of the Design (the
3

"accused garments") were being sold on four s

rate websites,

including www.swirl.com by Daily Candy Commerce, LLC ("Daily
Candy"), www.shopstyle.com, www.edressme.com and
www.ruelala.com.

Bonita

s alleged that Anand, doing business as KAS

NEW YORK, sold the Accused Garments on above-mentioned websites
and in dozens of stores in Califo
as Fred

, including boutiques such

I and Scoop, and larger department stores located

throughout California including Neiman Marcus and
Bloomingdale's.

Bonita has contended that Anand had, and may

still have, a sales representative in Los Ange
and sold goods at
Agents."

Califo

s and exhibited

a trade show "Designers and

It is also alleged that Anand frequently travels to

California for business and/or pleasure.

Bon

has also noted

that KAS NEW YORK's website states:

who is KAS? KAS was created by
brand's namesake
and founder, Kirat S. Anand.
Born and raised in New
York with no formal training,
rat knew that he
wanted to make an imprint on the fashion world .
Realizing a void in the luxury/ contempora
woman's
ready-to-wear mar
,he launched KAS NEW YORK in
2007.

Def. Memo. at 3).

In addition, Anand's user submitted

profile on LinkedIn.com lists that he is the "Designer and Owner

4

at KAS NEW YORK."

According to Bonita, in November 2011, it
1 entity and that no

discovered that KAS NEW YORK was not a 1
person or ent

y had filed a name statement for KAS NEW YORK.

In his affidavit, Anand has contended that he, as an
individual, does not do business as KAS NEW YORK.

Instead,

according to Anand, a separate and distinct business
(~Dani

corporation, Dani II, Inc.

11"), a garment wholesaler,

owns various labels including KAS NEW YORK.
6).

~~

3­

Anand has admitted that he is the current President of and

a shareholder in Dani II.

(Anand

corporation formed under
its

(Anand Aff.

f.

~

laws of

6).

Dani II is a

State of New York with

ipal place of business at 101 32 Dupont Street,

Plainview NY 11803.

(Anand

f.

~

2).

In addition, Anand has

also stated that his website does not state that he is doing
business as KAS NEW YORK.
contended that

~Plaintiff

(Anand Aff.

~

4).

Anand has

has not provided a scintilla of

evidence to support that KAS NEW YORK is owned by

rat Anand or

is an assumed name belonging to Kirat Anand" and thus he is a
wrongfully named defendant in the instant action and the
California Action.

(Id. )

On May 27, 2011, Bonita sent a cease and desist letter
to KAS NEW YORK demanding that KAS cease its infringement and

5

provide documentary evidence of its supply source, sales,
customers and profits.

(Pl. Ex. 1).

By letter dated June 7,

2011, Anand responded to Plaintiff's letter but did not provide
of

(Pl. Ex. 2).

requested informat

Bonita sent a

subsequent letter on July 13, 2011, which went unanswered.

(Pl.

Ex. 3).

Anand hired three separate atto

who communicated

with Bonita's counsel at various times over the course of the
next year.

According to Bonita, attorneys for Anand advised

Bonita's counsel that KAS NEW YORK was not a legal entity, but
that Dani I I should be t
fringement.
proper ent

defendant in any action alleging

Bonita responded by asking for proof of the

y to be named as well as documentary evidence of

sales, customers and profits.

Bonita has contended that Anand's

counselors eventually advised that

ir cl

would not reveal

the names of suppliers, customers, or provide the back-up sales
documents.

On September 24, 2013, as a result of the Court's
opinion
scove

ing a gO-day period of limited jurisdictional
as to the corporate status of KAS NEW YORK and

II, Anand answered 24 interrogatories and produced over 300
s of documents in response to PIa
6

iff's document requests.

(See

firmation of Justin Mercer,

., November 22, 2013,

("Mercer Aff."); Ex. A.'

On October 22, 2013, Bonita requested additional
tories.

documents and responses to inter

On or about

November 13, 2013, Anand provided three years of invoices as to
Dani II's sale of KAS NEW YORK-brand products in this state and
social

California, contact information

interns of Dani

II, and all customer invoices as to Dani II's sales of allegedly
infringing KAS NEW YORK-brand products sold anywhere.
Mercer Aff., Exs. B & C.)

(See

ify Dani II as

invoices

e of the KAS

entity that conducted business related to t
NEW YORK-brand products.

III. Applicable Standard of Law

e 12 (b) (2) r

res that a court dismiss a claim if

the court does not have personal jurisdict
defendant.

See Fed. R. Civ. P. 12 (b) (2) .

personal jurisdiction,
de

]

Line L

Sa

"To establish

[a plaintiff] must show that

has minimum contacts with t

properly served."

over the

[

forum state and was

e. Kfr. v. Euro-America Container

., No. 08-4892, 2010 WL 2194827, at *4
7

(S.D.N.Y. June 1,

2010)
j

(citations omitted).

Once a defendant has raisea a

sdictional defense on a Rule 12(b) motion to dismiss, the
the court has

plaintiff bears the burden of establishing t
jurisdiction over a defendant.
ca Inc., 286 F.3d 81, 84

" [J]

DiStefano v. Carozzi North

(2d Cir. 2001).

ly, and that

sdiction must be shown affirmat

showing is not made by drawing from the pleadings inferences
favorable to the party asserting it."
Corp. v. Drakos, 140 F.3d 129, 131 (2d

omitted).

Shipping Fin. Servs.

r. 1998)

(citations

As such, a court may rely on evidence outsi

of the

pleadings, including declarations submitted in support of the
motion and t

records attached to these declarations.

See

Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)

reso

a motion to di

a district court .

ss .

reter to evidence outside of the pleadings.").
issue is addressed on aff

Sf

in the light most favorable to
resolved in the plaintiff's

Californ

. may

"[W]here the

all allegations are construed
plaintiff and doubts are

r [.]"

v. Petra Bank, 989 F.2d 76, 79-80

Under California

("In

A. I.

Trade Finance, Inc.

(2d Cir. 1993).

of Ci

1 Procedure § 410.10,

courts may exercise personal jurisdiction "on any

basis not inconsistent with the Constitution of t
8

s state or of

the United States."

Cal. C. Civ. P. § 410.10.

The effect of

exercise of the broadest possible

the statute is to allow t

jurisdiction consistent with the due process clause of the
United States Constitution.
ub, 660 F.2d 395, 298

See Rocke v. Can

(9th Cir. 1981}.

either general or

"Personal jurisdiction may
ific."

an Auto. Sport

Vons Companies, Inc. v. Seabest Foods, Inc.,

4th 444, 445, 58 Cal.

14 Cal.

2d 899, 926 P.2d 1085 (1996).

r.

ndant is domiciled in

"General jurisdiction exists when a

forum state or his activities there are substantial,
continuous, and systematic."

F. Hoffman-La Roche, Ltd. v.

Superior Court, 130 Cal. App. 4th 782, 796 (2005).

ence of gene
juris

juri

In the

ction, a court may exercise specific

ction over a nonresident defendant where "(1) the

defendant has purposefully availed himself or herself of forum
benefitsi" (2)

"controversy is relat

[the] defendant's contacts with the

to or 'arises out of'

rum"; and (3) "

assertion of personal jurisdiction would comport with 'fair
and s

tantial justice.'"

Vons, 14 Cal. 4th at 447.

due process test for
relat

rsonal jurisdiction

components: the "minimum contacts and the

"reasonableness" i

ry.

ay

Metropolitan Li

9

Ins. Co. v.

s two

Ceco Corp., 84 F.3d 560, 567
minimum contacts, the

fendant must purpose

privileges and

to

all cases

, and 'fair' to require him to

his defense in that State.

(1978)

H

Kulko v. Cali

rnia

436 U.S. 84, 92, 98 S. Ct. 1690, 56 L. Ed. 2d

(quotation omitt

).

In addition, "[t]he mere fact that a co
subject to local jurisdiction
nonres

Under

's activity

nature' of the de

is such that it is 'reas

or Court,

Id.

ities of the forum state.

is whether the 'quality

To have

ly avail himself

nimum contacts test, an essential criterion

the

132

(2d Cir. 1996).

ion is

s not necessarily mean its

officers, directors, agents and employees are suable

locally as well.

Colt Studio, Inc. v. Badpuppy En

H

F. Supp. 2d 1104, 1111 (C.D. Cal. 1999).

"For juri

purposes, t

ities are the acts of

ctional

acts of corporate officers and directors

official

se, 75

their

corporation exclus

ly

and are thus not material for purposes of establishing minimum
contacts as to the individuals.

H

"Implicit in this

principle is the consideration that corporations are
legal entit
through their
performed by

s t

cannot act on
i

se i

represent at
viduals, in

10

rate

ir own but must do so
S.H

Id.

Thus, "acts

ir official capacitles,

cannot reasonably be attributed to them as individual acts
ng personal jurisdiction."

Id.

IV. Plaintiff has not Shown Sufficient ~nimum Contacts or
Substantial, Continuous or Systems Activities to
Establish Jurisdiction over Anand in California

Defendant's pr

ous motion to

smiss was denied

pending jurisdictional discovery as to the issue of what type of
entity KAS NEW YORK exists as and under whose control, as well
as speci

c details as to the nature of Anand's role in KAS NEW

YORK and Dani II.

Plaintiff alleges that the discovery produc
demonstrates that KAS NEW YORK, operated by Anand as a d/b/a for
himself, was the legal entity behind the accused
contrast, Defendant mainta

rments.

In

s that Dani II, and not Anand in hlS

individually capacity, owns and operates KAS NEW YORK, is
respons

e for t

accus

thus not established suffi
Anand in Cali

garments, and that Plaintiff has
ent contacts for j

sdiction over

ia.

1. Plaintiff has Failed to Allege "Continuous and
Systematic General Business Contacts" by Anand to
Support an Exercise
General Jurisdic on in
Cali
ia

11

Plaintiff has not established the existence of facts
to support a claim that Anand has engaged in "continuous and
systematic general business contacts" in California.

General

jurisdiction is a "fairly high" standard that is tantamount to
"approximate physical presence" in the foreign forum state.

Bancroft & Masters,

Inc. v. Augusta Nat'l Inc.,

1086 (9th Cir. 2000).

223 F.3d 1082,

Courts consider "whether the defendant

makes sales, solicits or engages in business in that state,
serves the state, designates an agent for service of process,
holds a license, or is incorporated there," Bancroft & Masters,

Inc.,

223 F.3d at 1086, as well as the "longevity, continuity,

volume, economic impact, physical presence,

[and]

integration into the states regulatory or economic markets" by
the defendant in the forum state.

Technologies, Inc.,

Mavrix Photo, Inc. v. Brand

647 D.3d 1218, 1224

(9th Cir. 2011).

Here, Anand has never conducted any business
activities in the forum state, received any income or revenue
from business activities in California, resided in the forum
state, owned or leased any real or personal property located in
California in his individual capacity or any other, bought or
sold assets in California, employed anyone in California, or
filed any tax returns in California.

12

(Anand Aff. at 2-3.)

Further, the Defendant has never been and is currently not a
is

controlling shareholder of any corporation

ituted any legal action in

California, and has never
California.

inappropriate.

ction is

In such cases, general juri

(Id.)

stered in

See, e.g., Bancroft & Masters, Inc.,

223 F.3d at

1086 (contacts were not "continuous and systematic" where out

s

fendant was not registered or licensed to do bus

of-state

California, paid no taxes and had no banks accounts in
no advertising towa

California, target

Cali

rnia and only

occasionally sold to California residents and execut
agreements wi

license

television networks and several California

vendors) .

Further, KAS NEW YORK is not, as Plaintiff all
d/b/a for Anand.

Jurisdictional discovery shows inst

"KAS NEW YORK" is a fashion 1

l/brand owned by

discovery includes, among other things:
incorporation for Dani II

s, a

that
II.

Such

(1) a certificate of

(Mercer Aff. Ex. A);

(2) documents

from the New York State Department of Tax & Finance addressed to
Dani II

(Mercer Aff. Ex. A.);

insurance

(3)

certificate of property

r the office address of Dani II, naming

beneficiary (Mercer

f. Ex. A.);

II as

(4) corporate and individual

tax returns for 2009, 2010, 2011 and 2012 for Dani II and Anand,
respect

ly (Mercer Aff. Ex. A.);

13

(5) an application filed with

the Federal Trade Commission ("FTC")
for Dani II

for receipt of RN number

(Mercer Aff. Ex. A.); and (6) Dani II's corporate

account payment register showing rent payments for office space
fashion trade shows on behalf

paid by corporate entity and
corporate entity (Mercer

f.

California while act

Anand's contacts
owner

Ex. A.).

officer of Dani II, or Dani II's sales of KAS NEW YORK

merchandise in California, do not subject h
jurisdiction.

The mere fact that a co

local jurisdiction does not necessa
officers,

as an

to general

ration is subject to

ly mean its nonres

rectors, agents, and employees are suable locally as

well. See Colt St

0,

Inc.

v. Badpuppy Enterprise, 75 F. Supp.

2d 1104, 1111 (C.D. Cal. 1999)

(quoting Cal

v. Jones, 465

U.S. 783, 790, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984)); see also
Davis v. Metro Productions, Inc., 885 F.2d 515, 521 (9th

Cir.1989).

Instead,

corporate officers

for jurisdictional pu

s, the acts of

directors in their official capacities

are tne acts of the corporation exclusively and are thus not
material for purposes of establishing minimum contacts as to the
individuals. See

rer v. Superior Court, 70 Cal.App.3d 424,

430 (1977). Implicit in this principle is the consideration that
corporations are separate legal entities
their own but must

cannot act on

so through their appointed
14

representatives. See Mihlon v. Superior Court, 169 Cal.App.3d
703, 713 (1985). Accordingly, acts performed by tnese
individuals, like Anand, in their official capacities, cannot
to them as individual acts creating

reasonably be attribut
personal juris

ction. See id.

corporation is

The exception to this rule is if

the "alter ego" of the individual defendant, such that a finding
of personal juri

over the corporation will support a

ct

finding of personal jurisdiction over the individual.

See Flynt

Distrib. Co., 734 F.2d at 1393i Sheard v. Superior Court, 40

Cal.App.3d 207, 210, 114 Cal.Rptr. 743 (1974).
reterences that Anand is

sole sharehol

r,

Plaintiff
President, CEO,

SecretarY, Treasurer and CFO of Dani II to show that here, Dani
II's actions should be attributable to Anand.

(Marshall Decl.

Ex. 9.)

To establish that Dani II is merely the "alter ego" of
Anand,

Pla

iff must show "(1) that there is such unity of

interest and ownersh

that the separate personal

and Dani II] no longer exist and (2) that
[their separate identities] would resu

15

ies of [Anand

ilure to

sregard

in fraud or injustice."

Colt Studio, Inc,

75 F. Supp. 2d at 1111.

Bonita has not

alleged that Anand acted in his individual capacity in dealings
with Dani II, converted funds for his own use, undercapitalized
the business, or otherwise undermined the corporate form.

Id.

(finding that the individual was not an "alter ego" where no
allegations that the individual converted corporate assets for
own use, transferred assets to leave them undercapitalized, or
dealt with the two organizations as if they were one).

As such,

Plaintiff has failed to establish the requisite relationship to
impute Dani II's actions to Anand.

Because Plaintiff has failed to show any "continuous
and systematic general business contacts" in California by
Anand, or that Anand in his individual capacity should be held
accountable for actions by KAS NEW YORK or Dani II, general
jurisdiction is inappropriate.

2. Plaintiff has Failed to Establish Minimum Contacts
to Support an Exercise of Specific Jurisdiction over
Anand in California

Plaintiff also fails to establish that Anand possessed
the requisite "minimum contacts" with California to support an
exercise of specific jurisdiction.
16

Plaintiff has not adequately alleged that Anand
an intentional act in Cali

commit

Jones,

465 U.S. 783, 802

cts n test requires

(2) expressly aimed at the forum state (3)
fendant knows is likely to

causing harm that the
in the forum staten for

Designs, Inc.,

"ef

(1984)

v.

defendant "allegedly have (1) committed an

the non-resi
intentional act

See Cal

activities.

rum-rel

arise out of Anand's

rnia, or that any claims

cif

suf

red

jurisdiction); see also Wolf

322 F. Supp. 2d at 1072 ("Mere knowledge of

tortuous conduct by the corporation is not enough to hold a
director or officer liable for
absent other 'unreasonable
conduct by

individual.").

torts of the corporation

rticipation'

in the unlawful

Anand maintains in his affidavit

that he has not individually, or in any other capacity,
conducted business act
3.)

ties in California.

(Anand Aff. at 2

To the extent that Bonita claims that certain KAS NEW YORK­

brand products infringed upon its copyright, there is no
evidence that Anand ever so
individual c

a KAS NEW YORK product in his

city in California or elsewhere.

of the allegedly in

Further, none

inging garments, all of which are made in

the name of Dani II, and not Anand, as reflect

in the invoices

produced by Defendants, were shipped to California.

17

(See Mercer

f.

Ex. C.)

Rega

ess, as discussed, actions by Dani II and

KAS NEW YORK cannot be attributed to Anand in

s personal

capacity.

Notwithstanding the

scovery produced establishing

that Anand does not have contacts in California, and that KAS
NEW YORK is owned by Dani II, not Anand, Plaintiff contends that
Anand is personally subject to juri
because (1) Anand

sented to the FTC that KAS NEW YORK/KAS

DEISGNS, and not Dani II, is the 1
responsible

ction in California

1 name of the business

r wholesaling/manufacturing the accused garments;

(2) at all relevant times, the company's webs

was owned by

Anand, not Dani II; and (3) Defendant failed to produce
documents generated by third parties which Plaintiff belleves
will further support that KAS is a d/b/a operated by Anand.

First, the FTC and Federal law require that the name
which appears on a garment's label
rson is doing business."

1

the "name under which the

16 C.F.R. § 303.19(a)1.

The business

16 C.F.R. § 303.19 provides in pertinent
Name or other identification required to appear on labels.
The name
red by the Act to be used on labels shall be the
name under which the person is doing business.
Where a person has a

(a)

18

name us

on 1

Is and/or lin

appears on business documents, such as

full legal name t

purchase orders and invoices."
accus

the labels of

to FTC-issued RNs must be "

Id.

The name which appears on

garments is KAS NEW YORK, and the FTC-

1 of the accused garments is a number that

issued RN on the

is registered to a bus
is "K.A.S. DESIGNS."

ss which certifies that its legal name
(Marshall Decl. Ex. 1.)

According to

Plaintiff, KAS NEW YORK, owned and operated by Anand, is thus
the name of the business beh
garments.

the sale of the accused

(Plaintiff Opposition, "Opp. Sr."; at 7.)

RN Numbers are not required, but optional.
C. F. R. § 303.19 (b)
be used").
ent

See 19

("Registered identification numbers .

. may

Moreover, according to 19 C.F.R. §§ 303.19-.20, an

y is entitled to use its brand name or house mark when

word trademark, used as a house mark,
stered in the United
States Patent Office, such word trademark may be used on labels in
lieu of the name otherwise required: Provided, the owner of such
word trademark furnishes the Commission a copy of the
tration
to its use.
No trademark, trade names, or other names
those provided for above shall be used for reauired identification
purposes.
(0)

stered identificat:ion Dumbers, as provided for in § 303.20 of
, may be used for identification purposes in lieu of the
name.

16 C.F.R. § 303.19.

19

stering for an RN number.

See 19 C.F.R.

§§

303.19-.20.

It

is not unreasonable that Dani II's representative who aDDli
r the subject RN number mistook "K.A.S. DESIGNS," a
name, for the "Legal Name."
ion was left blank.

1

"Company Name" on the
Taken together with the extensive

scovery establishing Dani II as the owner of KAS NEW YORK, the
RN registration name is

cient to establish

DESIGNS, and not Dani II, should be accountable
YORK's sale of the accus

still does not establish that Anand personally

ity or that Anand

lis

as

respect to the RN

ionally directed the

sale of any KAS NEW YORK garment in Cali

Calitorn

d business as

Anand was holding himself out to do business in

his personal

by discove

owner, this

's name does not appear anywhere on the RN

number application, and no other facts wi
number show t

KAS NEW

garments.

In addition, even if Dani II were not t

KAS NEW YORK.

K.A. S.

As demonstrated

re were no sales by KAS NEW YORK or Dani II in
at all.

Accordingly, whet

r K.A.S. DESIGN was

legal name on the RN application does not further

cation for a new registered identification number provides two
o potentia ly enter a name:
Name" and "Company Name," .,·,ithout
an explanation for the difference on the form itself.

20

Plaintiff's allegations regarding personal jurisdiction over
Anand as an individual.

Second, Plaintiff maintains that at all relevant times
the company's website, www.KasNewYork.com. was owned by Anand,
not Dani II, and thus Anand should be respons
YORK's business activit

S.3

le for KAS NEW

(Marshall Decl. Ex. 5.)

Further,

Plaintiff contends that other industry platforms such as
LinkedIn and Wikipedia also establish that Anand was the founder
of and the officer responsible for KAS NEW YORK.
Decl. Ex. 11.)

(Marshall

Defendant acknowledges that Anand incorporated

Dani II, and then used Dani II to launch the KAS NEW YORK brand.
(Defendant's Reply Brief, "Reply Br."; at 2.)

There is no authority c

ed

r the proposition that

registering a domain name subjects a party to jurisdiction as an
individual in a foreign forum.

To the contrary, courts have

rejected assertions of jurisdiction based on nothing more than
the registration of a domain name.

Seer e.g., Panavision

International r L.P. v. Toeppen, 141 F.3d 1316, 1322 (9

Cir.

3After jurisdictional discovery, Defer.dar.t trar.sferred ownership of the KAS
website from Anand to Dani II.
(Marshall Decl. , 6.)

21

1998)

(reaistration of a domain name alone "is not sufficient to

subject a party domicil

in one state to jurisdiction

another."); Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414
(9th Cir. 19997)

(same); Bensusan Restaurant Corp. v.

F. Supp. 295, 301 (S.D.N.Y. 1996)
placing a product into t
nationwi

gi,

937

("Creating a site, Ii

stream of commerce, may be felt

even worl

-but, without more, it is not an act

rected towards the forum state") .

purposefully

Similarly, the fact that Anand is named a founder of
KAS NEW YORK on

kedIn and

kipedia cannot alone establish

individual liability for the actions of KAS NEW YORK the
co

ration.

See Flynt Dis

Co., 734 F.2d at 1393;

v. Superior Court, 40 Cal.App.3d 207, 210, 114 Cal.Rptr. 743

(1974).

None of

Anand purposely

websites show any facts supporting that
rected acts toward Califo

personal capacity in business

ings with KAS NEW YORK or

II in California or elsewhere, or
form and exposed h
the
re

a, acted in his

elf to indi

rwise
dual liability.

istration of the website

the corporate
Accordingly,

Anand's name, and the

s to Anand as founder of KAS NEW YORK, do not establi

that KAS NEW YORK is a d/b/a for Anand, or that either company's

22

act

can be imputed to the Defendant

s individual

ity.

Defendant has failed

Finally, Plaintiff contends
1

to comply with document demands,
purchase orders, emails, cancel

production of
CKS,

and other documents

generated by third parties

customers that relate to the sale

of the accused garments, whi

PIa

iff alleges will establish

that Anand, and not Dani II, is the owner of KAS NEW YORK.
(Marshall Decl.

~

9.)

a purchase order iss

As

dence of this,

Plaintiff points to

by Daily Candy Commerce, LLC in Los

Angeles, California, which lists "Kirat Anand" as the contact.
(Marshall Decl. Ex. 7.)
client, and t
for the accus
client

Because this order was produced by the
s which list Dani II as the company name

qarments were generated by the Defendant with

ities redacted, Plaintiff maintains that customer­
se orders will confirm that Anand, as KAS NEW

YORK, was

rsonally responsible for the sale of the accused

As an initial matter, the purchase invoice with
Candy does not establish jurisdiction in California over ei

23

i

Anand or Dani II.

Dani II s

allegedly infringing garments to

a New York-based company, call

Swirl, which was a subsidiary

of Comcast Interactive Media LLC, a Delaware entity, whose
Delaware subsidiary (Daily Candy Commerce LLC) had an office in
California.

None of the allegedly infringing garments were

shipped to California, no Dani II representatives ever dealt
directly with Daily Candy's California-bas
invoices for these transactions were
not Anand,
LLC.

of

ce, and the

id directly to Dani II,

from Philadelphia-based Comcast Interact
f.

(See Jolly

~~

Co. v. Superior Court,

16-17); see also Asahi Metal Indus

480

u.s. 102 (1987) (awareness alone that

products were placed into the stream of commerce is
to subject a non-party to juri
Holland Am.

ent

485 F.3d 450,

("The placement of a product into the stream

of commerce, without more, is not an act purposefully
toward a

uffi

ction in a foreign forum);

, Inc. v. Wartsila N. Am., Inc.,

459 (9th Cir. 2007)

Media

rum state

rect

. Even a defendant's awareness that

the stream of commerce mayor will sweep the product into
forum state

s not convert the mere act of placing the product

into the stream of commerce into an act purposefully directed
toward the

urn state.

U
).

Thus, even if Dani II's contacts

were imputed to Anand, there is no basis for a finding of
intentional acts expressly aimed at California.

24

Regardless, the purchase order does not in any way
city.

show that Anand acted in his personal

purchase

iff lists "KAS NEW YORK" as the "vendor,"

order cited by

and "Kirat Anand," as t

contact.

Daily Candy's parent
k was

company, Comcast, made the actual payment, and the
written out to "Dani II, Inc."
buyer at Daily Candy re
YORK does not
doing

(See Mercer

f.

Ex.

A.)

That a

as a contact for KAS NEW

rred to

te the corporate form or show that Anand was

iness in an individual capacity.

Anand was not listed

as the vendor name, and officers of corporations are commonly
list

as contacts without s

liabillty.
meetings,

ecting

Further, as discus

elves to

dual

, the corporate fillings and

contracts with employees, leases, invoices,

pacKlng slips, cancelled checks, credit ca
statements, and small business
II, and not Anand, owns
including with re

processing

s, all demonstrate that Dani

is respons

e for KAS NEW YORK,

ct to the Daily Candy order.

Plaintiff has thus

iled to est

ish any

Anand, in his individual capacity or through ei

cts that

r company,

entionally committed an act directed at California or that
any of the sales of the accused garments arose out of activities
25

by Anand in the forum state.

As such, specific jurisdiction

over Anand in California is unreasonable.

1i

See Ku1ko v.

ia Superior Court, 436 U.S. 84, 92 (1978)

nimum contacts test, "an essential criterion in all cases is
r the 'quality and nature' of the defendant's act
that it is 'reasonable' and 'fair' to require him to
conduct his defense in t

State. ")

(internal citations

omi tted) .

Conclusion

For

reasons set forth above,

Defendant's

motion to dismiss is granted.

It is so ordered.

New York, NY
January
2014

7,,1',

U.S.D.J.

26

ty is