Pokitdok, Inc et al v. Martin

Filing 29


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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA United States District Court For the Northern District of California 10 11 12 13 14 15 No. C 12-3947 SI POKITDOK, INC., et al., ORDER DENYING DEFENDANT’S MOTION TO DISMISS; GRANTING MOTION FOR TRANSFER OF VENUE; AND TRANSFERRING ACTION TO THE DISTRICT OF SOUTH CAROLINA Plaintiffs, v. JEREMY MARTIN, Defendant. / 16 17 Currently before the Court is defendant’s motion to dismiss for lack of personal jurisdiction and 18 improper venue, or, in the alternative, to transfer venue to the District of South Carolina. Pursuant to 19 Civil Local Rule 7-1(b), the Court finds this matter suitable for disposition without oral argument and 20 therefore VACATES the hearing currently scheduled for November 8, 2012. Having considered the 21 parties’ papers, and for good cause appearing, the Court hereby DENIES the motion to dismiss, 22 GRANTS the motion to transfer venue, and TRANSFERS this action to the District of South Carolina. 23 24 BACKGROUND 25 Plaintiff PokitDok, Inc. is a social networking website and application that focuses on health and 26 wellness. Compl. ¶ 9. PokitDok is incorporated in Delaware and has its principal place of business in 27 Menlo Park, California. Compl. ¶ 1. Defendant Jeremy Martin (“Martin”), a resident of Charleston, 28 South Carolina, is a computer software engineer who performed uncompensated work for Plaintiffs PokitDok, Inc., Lisa Maki, and Theodore Tanner (“Plaintiffs”) in 2011. Compl. ¶¶ 4, 12. During this 1 period, PokitDok’s principal place of business was in South Carolina, where Martin performed all of 2 his work for plaintiffs. Mot. at 4. 3 On June 27, 2012, after Martin’s volunteer work for plaintiffs ended, Martin sent a letter to 4 plaintiffs which (1) demanded that plaintiffs cease and desist using his intellectual property, and (2) 5 threatened to file a copyright lawsuit against plaintiffs in federal court if they did not comply. Id. at 1. 6 On July 26, 2012, plaintiffs filed this action against Martin; and, on August 1, 2012, Martin filed a 7 copyright infringement action against plaintiffs in the District of South Carolina. Opp’n at 4. In this 8 case Plaintiffs seek declaratory relief on most of the same claims asserted by Martin in the action before 9 the District of South Carolina Court. See Compl.; Mot., Ex. I. United States District Court For the Northern District of California 10 Defendant now moves to dismiss this case under Rule 12(b)(2) and 12(b)(3) for lack of personal 11 jurisdiction, or transfer the case to the United States District Court for the District of South Carolina 12 pursuant to 28 U.S.C. § 1406(a), based on improper venue. Alternatively, defendant requests transfer 13 for convenience under 28 U.S.C. § 1404(a). Plaintiffs contend that dismissal and transfer should be 14 denied because this Court has specific personal jurisdiction over defendant. 15 16 17 LEGAL STANDARD 1. Personal Jurisdiction 18 Personal jurisdiction over a nonresident defendant may exist if the defendant has either a 19 continuous and systematic presence in the state (general jurisdiction), or minimum contacts with the 20 forum state such that the exercise of jurisdiction “does not offend traditional notions of fair play and 21 substantial justice” (specific jurisdiction). Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) 22 (citation omitted). Where there is no federal statute applicable to determine personal jurisdiction, a 23 district court should apply the law of the state where the court sits. See Schwarzenegger v. Fred Martin 24 Motor Co., 374 F.3d 797, 800 (9th Cir. 2004). California law requires only that the exercise of personal 25 jurisdiction comply with federal due process requirements. See id. at 800-01. 26 In order for a court to exercise specific jurisdiction in accordance with due process, a nonresident 27 defendant must have “‘minimum contacts’ with the forum state such that the assertion of jurisdiction 28 ‘does not offend traditional notions of fair play and substantial justice.’” Pebble Beach Co. v. Caddy, 2 453 F.3d 1151, 1155 (9th Cir. 2006) (quoting Int’l Shoe, 326 U.S. at 315). The Ninth Circuit employs 2 a three-part test to determine whether the defendant has such minimum contacts with a forum state. 3 First, the “nonresident defendant must do some act or consummate some transaction with the forum or 4 perform some act by which he purposefully avails himself of the privilege of conducting activities in 5 the forum,” thereby invoking the benefits and protections of the forum state. Cybersell, Inc. v. 6 Cybersell, Inc., 130 F.3d 414, 418 (9th Cir. 1997) (quoting Ballard v. Savage, 65 F.3d 1495, 1498 (9th 7 Cir. 1998)). Second, the claim must “arise out of or result from the defendant’s forum-related 8 activities,” and third, the exercise of personal jurisdiction over the defendant must be reasonable. 9 Pebble Beach Co., 453 F.3d at 1155. The plaintiff bears the burden of proving the first two conditions. 10 United States District Court For the Northern District of California 1 Boschetto v. Hansing, 539 F.3d 1011, 1016 (9th Cir. 2008). If the plaintiff carries this burden, “the 11 defendant must come forward with a ‘compelling case’ that the exercise of jurisdiction would not be 12 reasonable.” Id. (citing Schwarzenegger, 374 F.3d at 802). 13 If a district court acts on the defendant’s motion to dismiss without holding an evidentiary 14 hearing, the plaintiff “need only demonstrate facts that if true would support jurisdiction over the 15 defendant.” Id. at 1129 (citation omitted). Unless directly contravened, the plaintiff’s version of the 16 facts is taken as true, and conflicts between the facts contained in the parties’ affidavits must be resolved 17 in the plaintiff’s favor for purposes of deciding whether a prima facie case for personal jurisdiction 18 exists. Id. (citation omitted). 19 20 2. Transfer of Venue 21 Civil actions arising under federal copyright laws may be brought in the district in which the 22 defendant or his agent resides or may be found. 28 U.S.C. § 1400(a). The 9th Circuit “interprets this 23 provision to allow venue in any judicial district where, if treated as a separate state, the defendant would 24 be subject to personal jurisdiction.” Brayton Purcell LLP v. Recordon & Recordon, 606 F.3d 1124, 25 1126 (9th Cir. 2010). 26 If the court determines that venue is improper, the court may either dismiss or, if it is in the 27 interests of justice, transfer an action to a district or division in which it could have been brought. 28 28 U.S.C. § 1406(a). Courts should consider the basic equities of the case in deciding whether to transfer 3 1 or dismiss, including any statute of limitations bar and the harshness of dismissal in light of such a bar, 2 and the relative injustice imposed on the parties. King v. Russell, 963 F.2d 1301, 1304-05 (9th Cir. 3 1992). 4 DISCUSSION 5 6 1. Specific Personal Jurisdiction Plaintiffs concede that there is no general jurisdiction over defendant Martin. They contend, 8 instead, that this Court has specific jurisdiction over him. Opp’n at 6, 9. Plaintiffs assert that Martin 9 subjected himself to personal jurisdiction in this Court by sending the cease and desist letter to Northern 10 United States District Court For the Northern District of California 7 California residents PokitDok, Inc. and Lisa Maki. Id. at 9. Martin argues that this Court lacks personal 11 jurisdiction over him because sending a cease and desist letter, without more, is insufficient to subject 12 an individual to personal jurisdiction. Mot. at 12. 13 Under the first prong of the three-part specific jurisdiction test, plaintiff must establish that the 14 defendant either purposefully availed himself of the privilege of conducting activities in California, or 15 purposefully directed his activities toward California. Schwarzenegger, 374 F.3d at 802. A purposeful 16 availment analysis is most often used in suits sounding contract; a purposeful direction analysis is used 17 in suits sounding in tort. Id. Here, the declaratory claims for copyright infringement sound in tort, and 18 therefore, the Court will apply a purposeful direction analysis. Id.; see also Lang v. Morris, 823 F. 19 Supp. 2d 966, 969 (N.D. Cal. 2011) (applying purposeful direction analysis to copyright claim). 20 Purposeful direction analyses are guided by the Supreme Court’s “effects” test set forth in 21 Calder v. Jones, 465 U.S. 783 (1984). Under the Calder effects test, the defendant must have (1) 22 committed an intentional act, which was (2) expressly aimed at the forum state, and (3) caused harm 23 which is suffered and which the defendant knows is likely to be suffered in the forum state. Bancroft 24 & Masters, Inc. v. Augusta Nat. Inc., 223 F.3d 1082, 1087 (9th Cir. 2000) (holding modified by Yahoo! 25 Inc. v. La Ligue Contre Le Racisme Et L’Antisemitisme, 433 F.3d 1199 (9th Cir. 2006)). “Each of the 26 three tests must be satisfied to permit a district court to exercise limited personal jurisdiction over a 27 non-resident defendant.” See Peterson v. Kennedy, 771 F.2d 1244, 1261 (9th Cir. 1985). 28 4 Plaintiffs rely on Yahoo!, 433 F.3d 1199 to argue that Martin’s cease and desist letter is a proper 2 basis for personal jurisdiction. Opp’n at 7. In Yahoo!, the Ninth Circuit held that the district court had 3 personal jurisdiction over defendants who sent a cease and desist letter to a California plaintiff, when 4 coupled with French court orders directing Yahoo! to take action in California. Yahoo!, 433 F.3d at 5 1210-11. The court reasoned that the first two requirements of purposeful direction S an intentional act 6 expressly aimed at the forum state S were satisfied because the foreign defendants filed suit in France 7 (an intentional act), which was “expressly aimed at California” as it sought “orders directing Yahoo! 8 to perform significant acts in California.” Id. at 1209. The third requirement S that the foreign 9 defendants’ acts caused harm they knew would likely be suffered in the forum state S was also satisfied 10 United States District Court For the Northern District of California 1 because of the possibility of a substantial penalty arising out of one of the French orders and the 11 “shadow on the legality of Yahoo!’s current policy.” Id. at 1209-11. See also Bancroft, 223 F.3d at 1087 12 (upholding personal jurisdiction over the defendant because, in addition to sending plaintiff a cease and 13 desist letter, the defendant triggered a third-party dispute resolution process which would have aimed 14 to prevent plaintiff from using defendant’s website). 15 Here, unlike in Yahoo!, the cease and desist letter sent to plaintiffs by Martin was not sent in 16 conjunction with any enforcement action that would cause plaintiffs to take action in California. The 17 letter merely alerted plaintiffs that defendant might file a legal action against them for copyright 18 infringement. See Reply, Ex. A. Therefore, none of the purposeful direction requirements have been 19 satisfied, and sending a cease and desist letter, without more, does not establish personal jurisdiction 20 over defendant. 21 Hockerson-Halberstadt, Inc., 148 F.3d 1355, 1361 (Fed.Cir.1998) (“A patentee should not subject itself 22 to personal jurisdiction in a forum solely by informing a party who happens to be located there of 23 suspected infringement.”)). Yahoo!, 433 F.3d at 1208 (9th Cir. 2006) (citing Red Wing Shoe Co. v. 24 25 2. Transfer Preferred Over Dismissal 26 Defendant argues that this case should be transferred, pursuant to 28 U.S.C. § 1406(a), because 27 venue is improper under 28 U.S.C. § 1400(a). This Court agrees that venue is improper because this 28 Court lacks personal jurisdiction over defendant. To avoid the necessity of plaintiff having to file and 5 1 serve a new action, this Court hereby DENIES defendant’s motion to dismiss and GRANTS defendant’s 2 motion to transfer under 28 U.S.C. § 1406(a). 3 4 CONCLUSION 5 For the foregoing reasons and for good cause shown, the Court hereby DENIES defendant’s 6 motion to dismiss, GRANTS defendant’s motion to transfer venue, and TRANSFERS this action to the 7 District of South Carolina. 8 9 IT IS SO ORDERED. United States District Court For the Northern District of California 10 11 Dated: November 6, 2012 12 _________________________ SUSAN ILLSTON United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6

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