AllChem Performance Products Inc v. Aqualine Warehouse LLC et al
Filing
45
MEMORANDUM AND ORDER granting 31 MOTION to Dismiss for lack of personal jurisdiction under Rule 12(b) (2) and to transfer venue under Rule 12(b)(3) and § 1406(a) and this case is TRANSFERRED to the Phoenix Division of the District of Arizona.(Signed by Judge Melinda Harmon) Parties notified.(arrivera, )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
ALLCHEM PERFORMANCE PRODUCTS,
INC.,
§
§
§
Plaintiff,
§
§
VS.
§
§
AQUALINE WAREHOUSE, LLC,
§
CACTUS VALLEY POOL SERVICES AND §
REPAIR, L.L.C., DOING BUSINESS §
AS CACTUS VALLEY POOLS, CHAD
§
KENNEDY, AARON HAGEN, DAVID
§
HAGEN, SHINER WAREHOUSE, LLC,
§
SHINER CHEMICALS, LLC, AND
§
SHINER PRODUCTS, LLC,
§
§
Defendants.
§
CIVIL ACTION H-10-3224
OPINION AND ORDER
Pending before the Court in this action alleging violations of
the
Copyright
Act,
17
U.S.C.
§
101,
et
seq.
(copyright
infringement), and the Lanham Act, 15 U.S.C. § 1125(a)(1)(unfair
competition
and/or
advertising)
and
false
state
designation
law
claims,
of
is
origin,
and/or
Defendants
false
Aqualine
Warehouse, LLC (“Aqualine”), Chad Kennedy (“Kennedy’),1 and Shiner
Warehouse, LLC, Shiner Chemicals, LLC, and Shiner Products, LLC’s
(collectively, “Shiner entities’”) motion to dismiss for lack of
personal
jurisdiction
under
Federal
1
Rule
of
Civil
Procedure
Chad Kennedy and/or Orlo Ison are registered agents for
service of the Shiner entities in Arizona.
#31 at 8; Kennedy
Affid., #31-1. Kennedy’s affidavit states that Aqualine has not
been formally dissolved but is no longer conducting any operations.
-1-
12(b)(2), or, in the alternative, for improper venue under Rule
12(b)(3) and 28 U.S.C. § 1406(a),2 or, in the alternative, to
transfer venue to the Phoenix Division of the District of Arizona
under 28 U.S.C. § 1406(a) because of improper venue or in the
interest of justice, or to transfer this action for convenience of
parties and witnesses in the interest of justice under 35 U.S.C. §
1404(a)(instrument #31).
Defendants maintain that they have no
connection or minimum contacts with Texas.
The Court has both diversity and federal question jurisdiction
pursuant to 28 U.S.C. § 13323 and § 1331.
Plaintiff’s Second Amended Complaint (#28)
To summarize the complaint in a nutshell, Plaintiff AllChem
Performance Products, Inc. (“AllChem”) is a distributor of water
treatment chemicals, including trichloroisocyanuric acid, also
known as trichloro-s-triazenatrione, “TCCA,” or “trichlor,” which
is used to chlorinate swimming pools. Trichlor is regulated by the
Federal Insecticide, Fungicide and Rodenticide Act (“FIFRA”), 7
U.S.C. § 136 et seq.
The United States Environmental Protection
2
Section 1406(a) provides, “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.”
3
All Defendants are citizens of Arizona, while Plaintiff
AllChem Performance Products, Inc. (“AllChem”) is a Texas
corporation registered in Houston, Harris County, Texas, doing
business in Texas and throughout other states of the United States.
-2-
Agency (“EPA”) regulates the sale and distribution of trichlor and
requires distributors, like Defendants, to register their products
with the EPA.
The EPA publishes and maintains registration
eligibility documents (“REDs”) for FIFRA-regulated chemicals.
The
EPA has assigned CAS Number 87-90-1 as the RED for trichlor.
Plaintiff states that the RED is attached as Ex. A to Second
Amended Complaint (#28), but apparently failed to submit it.
Plaintiff asserts that it is a violation of federal law to offer to
sell or to sell trichlor without a valid EPA registration.
Furthermore individual states also regulate the sale and
distribution of trichlor and require that after obtaining its EPA
registration, a distributor must also obtain a registration or
permit from each state in which it intends to sell its products.
AllChem complains that Aqualine and Cactus Valley violated the
laws of the States of Arizona and Texas by a scheme to sell
trichlor bearing stolen registration numbers belonging to AllChem
and by failing to register Aqualine trichlor at the state and
federal level.
Hagen,
and
activity.
It further alleges that Defendants Kennedy, Aaron
David
Hagen
Furthermore
conspired
if
to
engage
Defendant
in
Shiner
this
lacks
illegal
valid
registrations for its trichlor activities, it is also violates
those laws in its activities with Cactus Valley, a customer.
The
complaint further states that Kennedy uses Aqualine and Shiner as
alter egos.
-3-
Many states, including Texas and Arizona, require anyone
seeking to sell trichlor to display the appropriate registration
indicators
Supported
clearly
by
an
and
conspicuously
affidavit
from
its
on
the
Chief
product’s
Operating
label.
Officer,
Alejandro Oclese (#33-1), AllChem states that it has invested time,
talent, energy and material resources in developing not only its
product line, but its unique label showing its EPA and state
registrations, which constitutes a tangible expression covered by
the federal Copyright Act and which Aqualine has fraudulently and
illegally
stolen
and
thereby
caused
damages
of
approximately
$483,0976 to AllChem.4
Defendants other than Cactus Valley allegedly are in the
business of purchasing, manufacturing, assembling, packaging, and
4
As stated in Community for Creative Non-Violence v. Reid,
490, U.S. 730, 737 (1989),
The Copyright Act of 1976 provides that copyright
ownership “vests initially in the author or authors of
the work.”
17 U.S.C. § 201(a). As a general rule, the
author is the party who actually creates the work, that
is, the person who translates an idea into a fixed,
tangible expression entitled to copyright protection. §
102. The Act carves out an important exception, however,
for “works made for hire.” If the work is for hire, “the
employer or other person for whom the work was prepared
is considered the author” and owns the copyright, unless
there is a written agreement to the contrary. § 201(b).
“A work is created only when it is fixed in a final work product.
Ideas and concepts are not copyrightable.”
Looney Ricks Kiss
Architects, Inc. v. Bryan, Civ. A. No. 07-572, 2010 WL 5393859 *2
(W.D. La. Dec. 22, 2010), citing M.G.B. Homes, Inc. v. Ameron
Homes, Inc., 903 F.2d 1486 (11th Cir. 1990).
-4-
distributing trichlor in Arizona, and, by virtue of online Internet
sales, distributing the product throughout the United States.
Aqualine did not register its trichlor with the EPA, the Department
of Agriculture in Arizona or the Texas Department of Agriculture,
as it was required to do. Cactus Valley, a customer, purchased and
distributed Aqualine’s trichlor products to third parties and
maintains
a
website
that
enables
it
to
sell
to
purchasers
throughout the United States and potentially around the world.
Without obtaining AllChem’s permission, Defendants use labels
identical in form, format, design, and appearance to AllChem’s
label and display the registration numbers of AllChem in Texas,
except that they replace “TX” with “AZ.”
over
the
manufacture,
assembly,
AllChem has no control
packaging,
marketing
or
distribution of or knowledge of the origin of Defendants’ trichlor.
Thus AllChem claims that Aqualine, aided by Cactus Valley,
stole and converted AllChem’s tangible, as well as intellectual,
property, and its label and Texas registration, to sell a product
it had no legal authority to sell, and thereby impaired AllChem’s
ability to compete effectively.
Plaintiff further asserts that Kennedy and the Shiner entities
unlawfully imported trichlor from an as-yet-unidentified supplier
in China, from which it was shipped to California, then trucked to
Mexico, and then to Arizona in violation (1) of the North American
-5-
Free Trade Agreement (“NAFTA”), 32 I.L.M. 605 (May 1993),5 (2) of
the Copyright Act, 17 U.S.C. §§ 102(a)(1)(label as a literary
work), 102(a)(6)(label as a pictorial and graphic work), and 101
(tangible
medium),
1125(a)(1)(A)(false
and
and
(3)
of
the
Lanham
misleading
labels
Act,
15
likely
U.S.C.
to
§
cause
confusion, mistake or deception as to the origin, sponsorship, or
approval of Aqualine’s trichlor).
Defendants’ Motion to Dismiss (#31)
With a supporting declaration from Chad Kennedy, Defendants
Aqualine, Kennedy, and the Shiner entities’ motion states that they
have never opened or maintained an office or business premises of
any kind in Texas, hired any employees, servants or agents in
Texas, owned or leased any real or personal property in Texas,
opened or maintained any bank accounts in Texas, maintained a
telephone, facsimile or telex number in Texas, paid or owed taxes
to the State of Texas or any of its political subdivisions, been
required to maintain or maintained a registered agent for service
in Texas, engaged in business related to trichlor in Texas,
committed a tort in whole or in part in Texas, been a party to a
5
This Court observes that NAFTA cannot be enforced in
domestic courts except in a suit brought by the United States;
private actions are barred and a private citizen lacks standing to
assert a claim against the government arising from an alleged NAFTA
violation because NAFTA’s enabling legislation limits a legal
challenge to the United States. 19 U.S.C. §§ 3311 and 3312(c).
See, e.g., De La Cruz v. Gulf Coast Marine & Associates, Inc., Civ.
A. No. 9-09-cv-167 (TJW), 2011 WL 846100, *3 (E.D. Tex. Mar. 7,
2011)(and cases cited therein).
-6-
lawsuit in Texas other than the instant action, sold trichlor to
any
entity
or
individual
in
Texas,
or
permitting the sale of trichlor anywhere.
maintained
a
website
#31, Ex. A, Declaration
of Chad Kennedy, ¶ 12.
Because as a matter of law there is no general jurisdiction
here, Movants contend that specific jurisdiction does not exist
either because AllChem’s claims have no connection with the State
of Texas and none of the alleged acts took place in Texas.
They
have never sold products online or maintained an operational
website.
They have only sold and/or distributed trichlor from
their Arizona offices to Arizona entities and/or Nevada entities.
Furthermore, even if they had sufficient contacts with Texas,
it would offend traditional notions of fair play and substantial
justice to require Movants to litigate this action in Texas.
Movants, Cactus Valley, Aaron and David Hagen, and third-party
witnesses are all residents of Arizona.
Alternatively they request the Court to dismiss or transfer
this case under 28 U.S.C. § 1406(a) for improper venue or transfer
it under 28 U.S.C. 1404(a) for convenience and in the interests of
justice.
Movants argue that the relevant witnesses are located in
Arizona, the actions targeted in the Second Amended Complaint
occurred in Arizona, the party and non-party witnesses are located
in the District of Arizona, all of the named Defendants are located
in Arizona, compulsory process to secure attendance of witnesses is
-7-
available in Arizona, the cost of attendance for willing witnesses
would be lower, proof is more readily accessible in Arizona, and
practical problems that make trial of a case easy, expeditious and
inexpensive favor transfer to the Phoenix Division of the District
of
Arizona.
Deference
to
a
plaintiff’s
choice
of
forum
“disappears” when, as here, the suit has no connection to the
chosen venue.
Reed v. Final Oil and Chem. Co., 995 F. Supp. 705,
714 (E.D. Tex. 1998).
This Court and the Phoenix federal district
court probably have full dockets and both are familiar with federal
copyright law and unfair competition law.
Standard of Review
When a defendant files a motion to dismiss for lack of
jurisdiction under Federal Rule of Civil Procedure 12(b)(2), the
plaintiff bears the burden of demonstrating that the court has
personal jurisdiction over the defendant.
Luv N’ Care, Ltd. v.
Insta-Mix, Inc., 438 F.3d 465, 469 (5th Cir. 2006), citing Wyatt v.
Kaplan, 686 F.2d 276, 280 (5th Cir. 1982).6
At the pretrial stage
of litigation, if the district court does not conduct a hearing on
personal jurisdiction, the plaintiff need only present a prima
6
“Absent any dispute as to the relevant facts, the issue of
whether personal jurisdiction may be exercised over a nonresident
defendant is a question of law . . . .” Ruston Gas Turbines, Inc.
v. Donaldson Co., 9 F.3d 415, 418 (5th Cir. 1993). Where the facts
are disputed, the party seeking to invoke the court’s jurisdiction
bears the burden of establishing sufficient contacts with the forum
state by the nonresident defendant to invoke the court’s
jurisdiction. Bullion v. Gillespie, 895 F.2d 213, 216-17 (5th Cir.
1990).
-8-
facie case of personal jurisdiction. Wilson v. Belin, 20 F.3d 644,
648
(5th
Cir.),
cert.
denied,
513
U.S.
930
(1994);
Felch
v.
Transportes Lar-Mex S.A. DE CV, 92 F.3d 320, 325 (5th Cir. 1996);
Johnston v. Multidata Systems Intern. Corp., 523 F.3d 602, 609 (5th
Cir.
2008).
required.
Proof
by
preponderance
Johnston, 523 F.3d at 609.7
of
the
evidence
is
not
When a defendant disputes
7
As the Fifth Circuit explained in Walk Haydel & Associates,
Inc. v. Coastal Power Production Co., 517 F.3d 235, 241-42 (5th Cir.
2008),
Ultimately, the plaintiff must show by a preponderance of
the evidence that jurisdiction is proper. Often, the
determination of whether this standard is met is resolved
at trial along with the merits.
This is especially
likely when the jurisdiction issue is intertwined with
the merits and therefore can be determined based on jury
fact findings. In this situation it is often ‘preferable
that [the jurisdictional] determination be made at trial,
where a plaintiff may present his case in a coherent,
orderly fashion and without the risk of prejudicing his
case on the merits.’ But this court has said that after
a pretrial evidentiary hearing confined to the
jurisdictional issue, where both sides have the
opportunity to present their cases fully, the district
court can decide whether the plaintiff has established
jurisdiction by a preponderance of the evidence.
[footnotes omitted]
The panel further opined, id. at 241.
If the court determines that it will receive only
affidavits or affidavits plus discovery materials, these
very limitations dictate that a plaintiff must make only
a prima facie showing of jurisdictional facts through the
submitted materials in order to avoid a defendant’s
motion to dismiss. Any greater burden such as proof by
a preponderance of the evidence would permit a defendant
to obtain a dismissal simply by controverting the facts
established by a plaintiff through his own affidavit and
supporting materials.
-9-
factual bases for personal jurisdiction, the district court may
consider
the
record
before
it,
including
“affidavits,
interrogatories, depositions, oral testimony, or any combination of
the recognized methods of discovery.” Quick Technologies, Inc. v.
Sage Group PLC, 313 F.3d 338, 344 (5th Cir. 2002)(quoting Thompson
v. Chrysler Motors Corp., 755 F.3d
1162, 1165 (5th Cir. 1985)),
cert. denied, 540 U.S. 814 (2003); Kelly Law Firm, P.C. v. An
Attorney for You, 679 F. Supp. 2d 755, 762 (S.D. Tex. 2009).
The
court has discretion as to the type and amount of discovery it will
allow, but unless there is a full and fair hearing, it should not
act as a factfinder and must construe all disputed facts in favor
of the plaintiff.
dismiss
under
Walk Haydel, 517 F.3d at
Rule
12(b)(2),
241.
uncontroverted
On a motion to
allegations
in
plaintiff’s complaint are taken as true, and conflicts between
facts in the parties’ affidavits must be resolved in plaintiff’s
favor
for
purposes
of
the
prima
facie
case
of
personal
jurisdiction. Johnston, 523 F.3d at 609; Kelly Law Firm, 679 F.
Supp. 2d at 762; Revell v. Lidov, 317 F.3d 467, 469 (5th Cir. 2002).
Nevertheless, the court is not required to credit conclusory
allegations even if they are uncontroverted.
Panda Brandywine
Corp. v. Potomac Elec. Power Co., 253 F.3d 865, 869 (5th Cir. 2001).
The court must find that it has personal jurisdiction over the
defendant before it makes any decision on the merits.
Sinochem
Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 430
-10-
(2007); Guidry v. U.S. Tobacco Co., 188 F.3d 619, 623, n.2 (5th Cir.
1999)(“Personal
jurisdiction
is
an
essential
element
of
the
jurisdiction of a district court, without which it is powerless to
proceed to an adjudication.”).
Under the federal rules, except where a federal statute
provides for broader personal jurisdiction, the district court’s
personal jurisdiction is coterminous with that of a court of
general jurisdiction of the state in which the district court sits.
Submersible Sys., Inc. v. Perforadora Central, S.A. de C.V., 249
F.3d 413, 418 (5th Cir. 2001). A federal court sitting in diversity
may exercise personal jurisdiction over a nonresident defendant if
the forum state’s long-arm statute confers personal jurisdiction
over that nonresident defendant and if the exercise of personal
jurisdiction
satisfies
due
process
under
the
United
States
Constitution. McFadin v. Gerber, 587 F.3d 753, 759 (5th Cir. 2009),
citing Moncrief Oil Int’l, Inc. v. OAO Gasprom, 481 F.3d 309, 311
(5th Cir. 2007).
The Texas long-arm statute extends jurisdiction
to the limits of the federal due process.
Schlobohm v. Schapiro,
784 S.W. 2d 355, 357 (Tex. 1990); Gonzalez v. Bank of America Ins.
Servs., Inc., No. 11-20174, 2011 WL 6156856 *3 (5th Cir. Dec. 12,
2011), citing Stroman Realty, Inc. v. Antt, 528 F.3d 382, 385 (5th
Cir. 2008).
Thus a plaintiff in a diversity action in federal
-11-
court in Texas8 need only demonstrate that (1) the defendant
purposely availed himself of the benefits and protections of the
forum state by establishing that the defendant had minimum contacts
with the forum state and (2) the exercise of personal jurisdiction
over that defendant does not offend traditional notions of fair
play and substantial justice.
Int’l Shoe Co. v. Washington, 326
U.S. 310, 316 (1945); Alpine View Co., Ltd. v. Atlas Copco AB, 205
F.3d 208, 214 (5th Cir. 2000);
Moncrief Oil Int’l, Inc. v. OAO
Gasprom, 481 F.3d 309, 311 (5th Cir. 2007).
Personal
jurisdiction.
jurisdiction
can
be
either
specific
or
general
Mink v. AAAA Develop., LLC., 190 F.3d 333, 336 (5th
Cir. 1999). “Where a defendant ‘has continuous and systematic
general business contracts’ with the forum state, the court may
exercise ‘general jurisdiction over any action brought against the
defendant [regardless of whether the action is related to the forum
contacts].”
Luv N’ Care, 438 F.3d at 469, citing Helicopteros
Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 415 (1984).
See also Access Telecom, Inc. v. MCI Telecomms. Corp., 197 F.3d
694, 717 (5th Cir. 1999)(“General jurisdiction can be assessed by
evaluating
contacts
of
the
defendant
with
the
forum
over
a
reasonable number of years, up to the date the suit was filed.”),
8
See Johnston v. Multidata Sys. Int’l Corp., 523 F.3d 602,
609 (5th Cir. 2008)(“Because the Texas long-arm statute extends to
the limits of federal due process, the two-step inquiry collapses
into one federal due process analysis.”).
-12-
cert. denied, 531 U.S. 917 (2000). “[T]he minimum contacts inquiry
is broader and more demanding when general jurisdiction is alleged,
requiring a showing of substantial activities in the forum state.
Jones v, Petty-Ray Geophysical Geosource, Inc., 954 F.2d 1061, 1068
(5th
Cir.),
cert.
denied,
506
U.S.
867
(1992).
“[V]ague
and
overgeneralized assertions that give no indication as to the
extent, duration, or frequency of contacts are insufficient to
support general jurisdiction.”
Johnston, 523 F.3d at 610.9
9
In Johnston, the Fifth Circuit discussed how extremely
difficult it is to establish general jurisdiction over a
nonresident defendant. 523 F.3d at 610-11. The panel examined the
Supreme Court’s ruling in Helicopteros, 466 U.S. at 418-19, in
which it found that defendant’s contacts with Texas purchasing
helicopters, spare parts, and accessories for more than $4 million
over a six-year period from a Texas company, sending management and
maintenance personnel to Texas for technical consultations and
prospective pilots to Texas for training, and receiving a check for
more than $5 million drawn on a Texas bank were insufficient to
support personal jurisdiction.
Among other cases from this
Circuit, Johnston cited Cent. Freight Lines, Inc. v. APA Transp.
Corp., 322 F.3d 376, 381 (5th Cir. 2003), in which the Fifth Circuit
concluded that general jurisdiction did not exist even though the
defendant regularly arranged and received interline shipments to
and from Texas and sent sales people to Texas to develop business,
negotiate contracts and service national accounts; Wilson v. Belin,
20 F.3d 644, 651 (5th Cir. 1994)(“Even if [the defendant’s] contacts
with Texas via his short-lived malpractice insurance arrangement
through a Texas law firm and his multi-year pro bono association
with the historical society were arguably continuous, we hold that
they were not substantial enough to warrant the imposition of
general personal jurisdiction over him.”); Access Telecom, 197 F.3d
at 717 (in order to confer general jurisdiction it is not
sufficient that a corporation do business in Texas; it must have a
business presence in Texas); Alpine View Co. v. Atlas Copco AB, 205
F.3d 208, 218 (5th Cir. 2000)(holding that general jurisdiction did
not exist where the defendant occasionally sold products to
entities in Texas that used the defendant’s products for projects
in Texas and the defendant’s employees made field visits to Texas
between December 1992 and December 1993). Johnston, 523 F.3d at
-13-
If the defendant has relatively few contacts, the court may
still exercise personal jurisdiction over that party if the suit
arises out of or is related to the defendant’s contacts with the
forum.”
Helicopteros, 466 U.S. at 414 & n.8.
In such a case, the
“‘relationship among the defendant, the forum, and the litigation’
is the essential foundation of in personam jurisdiction.”
414,
citing
Furthermore,
Shaffer
the
v.
Fifth
Heitner,
Circuit
433
has
U.S.
186,
concluded
jurisdiction is “a claim-specific inquiry:
204
that
Id. at
(1977).
specific
‘A plaintiff bringing
multiple claims that arise out of different forum contacts of the
defendant must establish specific jurisdiction for each claim.’“
McFadin,
587
F.3d
at
759,
quoting
Seiferth
v.
Atuneros, Inc., 472 F.3d 266, 271 (5th Cir. 2006).
Helicopteros
Moreover, the
Fifth Circuit has established a three-step analysis for determining
whether specific jurisdiction exists:
“‘(1) whether the defendant
has minimum contacts with the forum state, i.e., whether it
purposely
directed
its
activities
toward
the
forum
state
or
purposely availed itself of the privileges of conducting activities
there10; (2) whether the plaintiff’s cause of action arises out of
610-12 (concluding that Multidata’s sale of approximately $140,000
worth of goods over a five-year period to Texas customers and its
employees’ occasional travels to Texas to service equipment or
attend trade conventions did not support general jurisdiction over
Multidata).
10
Purposeful availment requires a defendant to seek some
benefit, advantage or profit by “availing” itself of the
jurisdiction. Michiana Easy Livin’ Country, Inc. v. Holten, 168
-14-
or results from the defendant’s forum-related contacts11; and (3)
whether
the
reasonable.’”
exercise
of
personal
jurisdiction
is
fair
and
Seiferth, 472 F.3d at 271, quoting Nuovo Pignone,
SpA v. STORMAN ASIA M/V, 310 F.3d 374, 378 (5th Cir. 2002).
The
minimum contacts review is fact-intensive and no single contact is
decisive; “the touchstone is whether the defendant’s conduct shows
that it ‘reasonably anticipates being haled into court.”
The
defendant ‘must not be haled into a jurisdiction solely as a result
of ‘random,’ ‘fortuitous,’ or ‘attenuated’ contacts, or of the
‘unilateral activity of another party or third party.’‘”
587
McFadin,
F.3d at 759, citing Luv N’ Care, 438 F.3d at 470 (citing Word-
Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980)), and
Electrosource, Inc. v. Horizon Battery Tech., Ltd., 176 F.3d 867,
871-72 (5th Cir. 1999)(quoting Burger King Corp. v. Rudzewicz, 471
U.S. 462 (1985)). Thus specific jurisdiction may not be based upon
the mere fortuity that a plaintiff is a Texas resident.
Santander
Consumer USA, Inc. v. Shults Ford, Inc., Civ. A. No. 3:11-CV-614-L,
S.W. 3d 777, 785 (Tex. 2005).
11
The litigation must also “result from the alleged injuries
that ‘arise out of or relate’ to those activities.” Guardian Royal
Exch. Assurance Ltd. v. English China Clays, P.L.C., 815 S.W. 2d
223, 228 (Tex. 1991), citing Burger King, Corp. v. Rudzewicz, 471
U.S. 462, 472 (1985). For specific jurisdiction, there “must be a
substantial connection” between the nonresident defendant’s
contacts with the forum state and the “operative facts of the
litigation.” Guardian Royal, 815 S.W. 2d at 229-33.
-15-
2011 WL 2601520, *4 (N.D. Tex. June 30, 2011), citing Holt Oil &
Gas Corp. v. Harvey, 801 F.2d 773, 778 (5th Cir. 1986).
Once the plaintiff has established that the defendant has
minimum contacts with the forum state, the burden shifts to the
defendant to show that assertion of jurisdiction would be unfair.
Walk Haydel, 517 F.3d at 245.
In determining whether the exercise
of jurisdiction is fair and reasonable, the court examines five
factors:
“‘(1) the burden on the nonresident defendant, (2) the
forum state’s interests, (3) the plaintiff’s interest in securing
relief, (4) the interest of the interstate judicial system in the
efficient administration of justice, and (5) the shared interest of
the several states in furthering fundamental social policies.’”
McFadin, 587 F,3d at 759-60, quoting Luv N’ Care, 438 F.3d at 473.
If the plaintiff fails to establish the existence of minimum
contacts with the forum state, the court need not reach the
question of whether personal jurisdiction would offend traditional
notions of fair play and substantial justice.
Renoir v. Hantman’s
Associates, Inc., 230 Fed. Appx. 357, 360(5th Cir. 2007).
Venue
Under 28 U.S.C. § 1406(a), where venue is “laid in the wrong
division or district,” the district court must either dismiss the
case or transfer it to a proper venue in “any district or division
in which it could have been brought”; or a court may transfer it
“to any other district or division where it might have been brought
-16-
or to any district or division to which all parties have consented”
under 28 U.S.C. § 1404(a) “for the convenience of parties and
witnesses, in the interest of justice.”
“[A] district is ‘wrong’ within the meaning of § 1406 whenever
there
exists
an
‘obstacle
(to)
adjudication’ on the merits.”
an
expeditious
and
orderly
Ellis v. Great Southwestern Corp.,
646 F.2d 1099, 1105 (5th Cir. 1981)
is a ground for such a transfer.
Lack of personal jurisdiction
Ellis, 646 F.2d at 1105 and n.7.
Once a defendant challenges venue as improper under Federal
Rule of Civil Procedure 12(b)(3), the plaintiff bears the burden of
demonstrating that the chosen venue is proper.
Am. Gen. Life Ins.
Co. v. Rasche, 273 F.R.D. 291, 396 (S.D. Tex. 2011).
In deciding
whether the venue is proper, the court may look at evidence in the
record
beyond
those
facts
admissible attachments.
alleged
in
the
complaint
and
its
Ambraco, Inc. v. Bossclip B.V., 570 F.3d
233, 238 (5th Cir. 2009)(citing Ginter ex rel. Ballard v. Belcher,
Prendergast & Laport, 536 F.3d 439, 448 (5th Cir. 2008)), cert.
denied, 130 S. Ct. 1054 (2010).
On a Rule 12(b)(3) motion, the
Court must accept as true all the allegations in the complaint and
resolve all factual conflicts in favor of plaintiff.
Hamilton v.
United Parcel Service, Inc., Civ. A. No. 1:11-CV-240, 2012 WL
760714,
*5
(E.D.
Tex.
Feb.
13,
2012),
citing
Braspetro
Oil
Services, Co. v. Modec (USA), Inc., No. 06-20561, 240 Fed. Appx.
612, 615 (5th Cir. May 11, 2007), and 5B Charles Alan Wright &
-17-
Arthur R. Miller, Federal Practice and Procedure § 1352 (3d ed.
2004).
The decision whether to dismiss or transfer the case under
§ 1406(a) lies within the discretion of the Court.
Dubin v. United
States, 380 F.2d 813, 815 (5th Cir. 1967).
Alternatively, the district court has broad discretion to
transfer a case under 28 U.S.C. 1404(a) for the convenience of
parties and witnesses and in the interest of justice.12
In re
Volkswagen of America, Inc., 545 F.3d 304, 311 (5th Cir. 2008).
Nevertheless the court must initially determine whether a civil
action “‘might have been brought’ in the destination venue.”
at 312.
Id.
The general venue statute, 28 U.S.C. § 1391, governs a
plaintiff’s choice of venue.
Id.
Under § 1391(a) Under § 1391(b),
A civil action may be brought in(1) a judicial district in which any defendant resides,
if all defendants are residents of the State in which the
district is located;
(2) a judicial district in which a substantial part of
the events or omissions giving rise to the claim
occurred, or a substantial part of the property that is
the subject of the action is situated; or
(3) if there is no
otherwise be brought
judicial district in
the court’s personal
action.
district in which an action may
as provided in this section, any
which any defendant is subject to
jurisdiction with respect to such
12
It is improper for the court to consider the convenience of
counsel, which is irrelevant, in reviewing a transfer of venue
under § 1404(a). In re Volkswagen AG, 371 F.3d 201, 206 (5th Cir.
2004).
-18-
“[W]hile a plaintiff has the privilege of filing his claims in any
judicial division appropriate under the general venue statute, §
1404(a) tempers the effects of the exercise of this privilege.” In
re Volkswagen, 545 F.3 at 313.
Under § 1404(a) the court is not
authorized to dismiss the case, as it is under 1406(a).
Id.
The Fifth Circuit has adopted the private and public interest
factors set forth in Gulf Oil Corp. v. Gilbert, a forum non
conveniens case, and applied them to determine whether a transfer
is for the convenience of the parties and witnesses and in the
interest of justice under 28 U.S.C. § 1404(a).
In re Volkswagen,
545 F.3d at 313 & nn.9 and 10 (citing Humble Oil & Refining Co. v.
Bell Marine Service, Inc., 321 F.3d 53, 56 (5th Cir. 1961)), cert.
denied, 555 U.S. 1172 (2009).
cause for the transfer.
F.3d at 314.
The moving party must show good
In re Volkswagen of America, Inc., 545
“When the transferee venue is not clearly more
convenient than the venue chosen by the plaintiff, the plaintiff’s
choice should be respected.” Id. The private interest factors are
“‘(1) the relative ease of access to sources of proof; (2) the
availability of compulsory process to secure the attendance of
witnesses; (3) the cost of attendance for willing witnesses; and
(4) all other practical problems that make trial of a case easy,
expeditious and inexpensive.”
Id. at 315.
The public interest
factors include “‘(1) the administrative difficulties flowing from
court congestion; (2) the local interest in having localized
-19-
interests decided at home; (3) the familiarity of the forum with
the law that will govern the case; and (4) the avoidance of
unnecessary problems of conflict of laws [or in] the application of
foreign law.’”
Id.
These factors, while appropriate for most
cases, are not exhaustive or exclusive, and none is dispositive.
Id.
Plaintiff’s Response (#33)
In responding to Defendants’ motion to dismiss or transfer,
Plaintiff reiterates many points asserted in the Second Amended
Complaint.
By Defendants’ actions and failure to comply with
federal and state registration requirements and laws regulating the
importation of products from foreign sources, claims Plaintiff,
Movants are able to offer trichlor at a price below the fair market
value.
These unfair competition practices provide them with a
market share that they would not otherwise have and have caused and
will continue to cause AllChem serious damage. AllChem claims that
Chad Kennedy is the mastermind behind the scheme; he forms one
company after another to perform the illegal activities described,
with Shiner Products being the most recent known entity.13
further
argues
that
Defendants’
13
unfair
competition
not
It
only
After Shiner Warehouse filed for bankruptcy, Shiner Products
was incorporated. AllChem claims, “Kennedy’s modus operandi is to
form an entity, rack up a significant number of debts, and then
file for bankruptcy, at which point he forms a new entity and the
cycle goes on. All are alter egos of Chad Kennedy. All are, or
have been, willfully engaging in conduct outlined in this
complaint.” #33 at pp. 3-4.
-20-
includes its breach of copyright, but repeated violations of the
Tariff Act of 1930, 28 U.S.C. § 1581(a).14
14
Although not cited by AllChem, 29 U.S.C. § 1526(a)
provides,
(a)
Importation prohibited
Except as provided in subsection (d) of this section, it
shall be unlawful to import into the United States any
merchandise of foreign manufacture if such merchandise,
or label, sign, print, package, wrapper, or receptacle,
bears a trademark owned by a citizen of, or by a
corporation or association created or organized within,
the United States, and registered in the Patent and
Trademark Office by a person domiciled in the United
States, under provisions of sections 81 to 109 of Title
15, and if a copy of the certificate of registration of
such trademark is filed with the Secretary of the
Treasure, in the manner provided in section 106 of said
Title 15, unless written consent of the owner of such
trademark is produced at the time of making entry.
Section 526(a) prohibits the importation of “gray market” goods,
which are goods manufactured in a foreign country, but which bear
a valid United States trademark and which are imported without the
consent of the trademark owner. K Mart Corp. v. Cartier, Inc., 485
U.S. 176, 179 (1988).
Plaintiff’s bare-bones, vague allegations, #28 at ¶ 39 fail to
state a clear claim under the Tariff Act:
Kennedy’s and his three Shiner entities’ importation of
trichlor from China, to or through Mexico, is in
violation of the trade regulation laws of the United
States, including without limitation the Tariff Act of
1930, 19 U.S.C. § 1 et seq., including without limitation
its provisions concerning antidumping violations found at
19 U.S.C. § 1673 et seq. and its provisions concerning
North American Free Trade, 19 U.S.C. § 331 et seq. and
the regulations promulgated by the United States
Immigration and Customs Enforcement and its successor
entities pursuant to the authority conveyed by Congress
in the pertinent statutes.
-21-
AllChem maintains that tortious copyright infringement
establishes minimum contacts here and gives rise to personal
jurisdiction over a nonresident defendant.
AllChem contends that
if a nonresident commits an intentional tort outside of the state
that has a negative effect in the state, minimum contacts are
established.
Cir.
Guidry v. U.S. Tobacco Co., 188 F.3d 619, 628 (5th
1999).
It
intentional tort.
argues
that
copyright
infringement
is
an
Illustro Systems International, LLC. v. IBM
Corp. and IBM Nederland N.V., Civ. A. No. 3:06-CV-1969-L, 2007 WL
1321825 (N.D. Tex. May 4, 2007).
Therefore, insists AllChem, the
minimum contacts requirement has been met and the Court has
personal jurisdiction over Movants.
Because Defendants intentionally and knowingly stole the Texas
EPA registration number belonging to AllChem and used it as their
own, they have committed an act for which they could reasonably
have foreseen being haled into this Court.
It was not an innocent
mistake with tangential effects in Texas.
AllChem further insists that this Court has jurisdiction based
on Defendants’ engagement in interstate commerce; they acquire the
trichlor in China and circumvent United States law by bringing the
product in through Mexico.
Defendants claim that Shiner Products
is “in the business of selling and distributing gear driven
knockout tools.”
#31 at p. 3.
Yet Shiner Produce has obtained a
DOT Number citing interstate carrier operations.
-22-
It lists, under
“cargo carried,” only household goods and chemicals; no tools are
listed as cargo shipped.
#33, Ex. C, Printout from Dep’t of
Transportation’s website.
AllChem maintains that this is another
example
of
repeatedly
Kennedy’s
and
then
scheme
in
provides
a
which
he
performs
superficial
excuse
such
acts
to
avoid
liability.
Contrary to Defendants’ claim, argues AllChem, venue is proper
here:
because Defendants are corporations in this action over
which the Court has personal jurisdiction, venue is proper in any
district in Texas. 28 U.S.C. § 1391(c).15
Defendants’ Supplemental Reply (#38)
Challenging AllChem’s citation to Guidry regarding intentional
torts and personal jurisdiction as inapposite, Defendants claim
that AllChem
15
incorrectly applies the “effects test” set forth in
Section 1391(c) provides,
For purposes of venue under this chapter, a defendant
that is a corporation shall be deemed to reside in any
judicial district in which it is subject to personal
jurisdiction at the time the action is commenced. In a
State which has more than one judicial district and in
which a defendant that is a corporation is subject to
personal jurisdiction at the time an action is commenced,
such corporation shall be deemed to reside in any
district in that State within which its contacts would be
sufficient to subject it to personal jurisdiction if that
district were a separate State, and, if there is no such
district, the corporation shall be deemed to reside in
the district within which it has the most significant
contacts.
-23-
Calder v. Jones.16
In Calder, the Supreme Court highlighted the
facts that defendants knew their article not only involved a
California resident and would be distributed in that state, but
also that it would have a potentially devastating impact on her in
the state in which she lived and worked and in which the article
would have its largest circulation.
465 U.S. at 789-90.
The Fifth Circuit has repeatedly stated that the Calder
effects test was not limited solely to libel cases. In Guidry, 188
F.3d at 629, on which AllChem solely relied for the proposition
that there is personal jurisdiction over a nonresident defendant
for an act committed outside the forum state which causes tortious
injury in the forum state, the Fifth Circuit discusses under what
circumstances the Calder effects test can satisfy minimum contacts
for personal jurisdiction:
When a nonresident defendant commits a tort within the
state, or an act outside the state that causes tortious
injury within the state, that tortious conduct amounts to
16
Calder v. Jones, 465 U.S 783, 789-90 (1984). The effects
test allows a court to exercise personal jurisdiction over a
defendant if the (1) the defendant committed an intentional tort
(2) expressly aimed at the forum state, (3) that caused harm to the
plaintiff in the forum state which the defendant knows is likely to
be suffered. AllChem argues that just as the Supreme Court made
clear in Calder that the Florida defendants knew the defamatory
article they were publishing in Florida would have a significant
injurious effect on the plaintiff’s reputation in California, where
the defendants knew that it would be distributed, that the
defendants had “expressly aimed” the tort at California, and thus
the defendants were subject to personal jurisdiction in California,
Aqualine knew that stealing AllChem’s registration numbers would
have a significant impact on AllChem in its registered state of
Texas.
-24-
sufficient minimum contacts with the state by the
defendant to constitutionally permit courts within that
state, including federal courts, to exercise personal
adjudicative jurisdiction over the tortfeasor and the
causes of actions arising from its offenses of quasioffenses. . . . Even an act done outside the state that
has consequences or effects within the state will suffice
as a basis for jurisdiction in a suit arising from those
consequences if the effects are seriously harmful and
were intended or highly likely to follow from the
nonresident defendant’s conduct.
Id. at 628.
In Guidry the Fifth Circuit found that an intentional
tort causing death or serious physical harm. Plaintiff, who became
addicted to a contracted cancer from smoking tobacco, specifically
alleged
intentional
misrepresentations
in
the
sale
and
advertisement of tobacco products that such products were not
addictive or carcinogenic, which had “effects” in the forum state
that were as “pronounced” as the libel case in Calder, resulting in
bodily harm and death to the citizens of plaintiff’s state.
Id. at
629-30.17
Defendants distinguish the instant action on the grounds that
Defendants did not distribute the trichlor with the allegedly
infringing copyright label in Texas.
Nor have they directed any
activities toward AllChem to create the type of seriously harmful
injury to AllChem which would permit personal jurisdiction over a
nonresident
defendant
based
on
17
activities
occurring
outside
Even a single act directed toward a forum state that gives
rise to a cause of action can support a finding of minimum
contacts. See, e.g., Wien Air Alaska, Inc. v. Brandt, 195 F.3d
208, 211 (5th Cir. 1999); Brown v. Flowers Indus., 688 F.2d 328,
332-32 (5th Cir. 1982).
-25-
AllChem’s home state of Arizona.
fails
to
cite
a
copyright
They also point out that AllChem
infringement
case
or
any
other
intellectual property case/intangible property case that gives rise
to personal jurisdiction over a nonresident defendant based on
actions not occurring in the plaintiff’s forum state.
maintain
that
intentional
intellectual
torts
that
cause
property
death
cases
or
do
serious
not
injury
They
involve
to
an
individual or serious damage to tangible property, nor do they
involve torts resulting in damaging effects that disproportionately
fall in the plaintiff’s state of residence.
Finally, Defendants point out that 28 U.S.C. § 1391(a) refers
only to diversity jurisdiction. Because this case presents federal
question jurisdiction under the Lanham Act and the Copyright Act,
jurisdiction is not founded solely on diversity and 28 U.S.C. §
1391(b) applies.
Title 28 U.S.C. § 1391(c)(“a defendant that is a
corporation shall be deemed to reside in any judicial district in
which it is subject to personal jurisdiction at the time the action
is commenced”) is not a separate basis for venue; it clarifies what
qualifies as a corporation’s residence for purposes of § 1391(a)(1)
and §1391(b)(1).18
18
Kennedy is an individual residing in Arizona,
Section 1391(b)(1) provides,
A civil action wherein jurisdiction is not founded solely
on diversity of citizenship may, except as otherwise
provided by law, be brought only in (1) a judicial
district where any defendant resides, if all defendants
reside in the same State, (3) a judicial district in
-26-
while Aqualine and the Shiner entities are and always have been
residents of Arizona and are subject to personal jurisdiction in
Arizona.
They are not residents of Texas nor subject to personal
jurisdiction there.
Therefore venue in the Southern District of
Texas is improper as to all of them.
Conversely, the District of
Arizona satisfies § 1391(b)(1) as “a judicial district where any
defendant resides, if all defendants reside in the same State.”
Finally Defendants point out that AllChem has not contested or
responded to the motion to transfer for forum non conveniens under
35 U.S.C. § 1404(a).
They argue that private and public concerns
here support such a transfer to the District of Arizona. Regarding
the private factors, the relevant witnesses are located in the
District of Arizona, all of the named defendants are located in
Arizona, all of the actions alleged in the Second Amended Complaint
occurred in Arizona, and the party and non-party fact witnesses are
likely all located in Arizona. Thus the relative ease of access to
sources of proof, the place of the alleged wrong, the availability
of compulsory process to secure the attendance of witnesses, the
cost of attendance for willing witnesses and all other practical
aspects favor a transfer to the Phoenix Division of the District of
which a substantial part of the events or omissions
giving rise to the claim occurred, or a substantial part
of property that is the subject of the action is
situated, or (3) a judicial district in which any
defendant may be found, if there is no district in which
the action may otherwise be brought.
-27-
Arizona.
Regarding the public factors, Defendants suggest that
this court and the Phoenix court have full dockets and are familiar
with federal copyright and unfair competition law that governs this
case. Because there is no connection between this district and the
claims asserted by AllChem, Defendants argue that only the Phoenix
Division of the District of Arizona has an interest in having the
issues decided in its court.
Court’s Decision
After careful review of the parties’ submissions and the
applicable law, the Court finds that agrees with moving Defendants
that it lacks personal jurisdiction over them, that venue is not
proper in the Southern District of Texas, and that this case should
be transferred to the Phoenix Division of the District of Arizona
under 28 U.S.C. § 1406(b).
There is no argument here that Defendants have continuous and
systematic contacts with Texas to support general jurisdiction in
this action.
The Court finds that Plaintiff has failed to allege sufficient
facts
to
establish
jurisdiction.
a
prima
facie
case
of
specific
personal
The closest that Plaintiff comes to pleading a prima
facie case of personal jurisdiction is in its argument that the
Court has personal jurisdiction under the Calder effects test that
their intentional tortious acts harmed AllChem in Texas. Plaintiff
has not alleged facts showing that Defendants committed any acts in
-28-
the forum state nor alleged any sale or purchase of AllChem’s
infringing
product
in
Texas.
Defendants
intentionally
Nor
directed
does
their
AllChem
allege
activities
to
that
Texas.
Indeed, the complaint alleges no direct relationship, contractual
or other, nor direct contact between, AllChem and Defendants.
Nor
has Plaintiff alleged any facts showing that the nonresident
Defendants
purposely
protections of Texas.
availed
themselves
of
the
benefits
and
In Guidry, 188 F.3d at 629, the Fifth
Circuit expanded the reach of the Calder effects test beyond libel
to intentional and unintentional torts that caused death or serious
physical harm to the Plaintiff in the forum state.
In Guidry, the
Fifth Circuit noted that the defendants were not sued for “mere
untargeted negligence endangering only economic or reputational
interests,” but instead with acts that would potentially have a
“devastating physically harmful impact” on the plaintiffs.
F.3d at 630.
188
In the instant case Plaintiff fails to allege that
Defendants’ alleged tortious copyright infringement or unfair
competition actions caused serious injury or death.
In fact, the
only injury alleged is financial.
In addition, in Allred v. Moore & Peterson, 117 F.3d 278, 286
(5th Cir. 1997)(emphasis added)(agreeing with and quoting Wallace
v. Herron, 778 F.2d 391, 395 (7th Cir. 1985), cert. denied, 475 U.S.
1122 (1986)), cert. denied, 522 U.S. 1048 (1998), the Fifth Circuit
opined, “[T]he key to Calder is that the effects of an alleged
-29-
intentional tort are to be assessed as part of the analysis of the
defendant’s relevant contacts with the forum.”
See also Kwik-Kopy
Corp. v. Byers, 37 Fed. Appx. 90, No. 01-20748, *5 (5th Cir. May 9,
2002)(“”Since the decision in Calder, this court has inferred that
specific jurisdiction requires more that ‘one act’ with the forum
state and explained that the ‘effects test’ is not a substitute for
a
nonresident’s
minimum
contacts
that
demonstrate
purposeful
availment of the benefits of the forum state, but should be
assessed as a part of the analysis of the defendant’s relevant
contacts with the forum state. [citing Allred]”).
Furthermore, in
Moncrief Oil Intern., Inc. v. OAO Gazprom, 481 F.3d 309, 314 (5th
Cir.
2007),
the
Fifth
Circuit
cautioned
restraint
in
the
application of “effects jurisdiction”:
“Effects” jurisdiction is premised on the idea that an
act done outside the state that has consequences or
effects within the state can suffice as a basis for
personal jurisdiction if the effects are seriously
harmful and were intended or highly likely to follow from
the nonresident defendant’s conduct.
See Guidry, 188
F.3d at 628.
Such jurisdiction is rare.
We have
expressly declined to allow jurisdiction for even an
intentional tort where the only jurisdictional basis is
the alleged harm to a Texas resident.
See Panda
Brandywine Corp. v. Potomac Elec. Power Co., 253 F.3d at
870 (5th Cir. 2001).
Because the Court concludes that Plaintiff has failed to
establish minimum contacts of Defendants with Texas, it does not
reach the question whether the exercise of jurisdiction would
violate notions of fair play and substantial justice.
481 F.3d at 314-15.
-30-
Moncrief,
“Once venue is challenged, in actions involving multiple
claims and multiple defendants, the plaintiff has the burden of
showing that the chosen venue is proper as to each claim and each
defendant. Collins v. Doe, Civ. A. No. H-10-2882, 2012 WL 1414246,
*3 (S.D. Tex. Apr. 23, 2012).
The venue of suits for infringement
of copyright is not determined by the general provision [§ 1391(b)]
governing
suits
controlled
by
proceedings
in
28
federal
U.S.C.
arising
out
§
district
courts,”
1400(a)(“Civil
of
any
Act
of
but
is
actions,
Congress
instead
suits,
or
relating
to
copyrights . . . may be instituted in the district in which the
defendant or his agent resides or may be found.”).
Lumiere v. Mae
Edna Wilder, Inc., 261 U.S. 174 (1923); id., citing Time, Inc. v.
Manning,
366 F.3d 690, 696 (5th Cir. 1966).
The Fifth Circuit
construes § 1400(a) to allow venue in any judicial district in
which the defendant or agent resides or may be found.
Collins v.
Doe, 2012 WL 1414246, *3, citing Brayton Purcell LLP v. Recordon &
Recordon, 606 F.3d 1124, 1126 (9th Cir. 2010), and Palmer v. Braun,
376 F.3d 1253, 1259 (11th Cir. 2004).
Defendants are correct in
applying the general venue statute, 28 U.S.C. § 1391(b)(1)-(2),
here to the Lanham Act claims.
With regard to both claims, venue
in the Southern District of Texas is improper and proper in the
Phoenix Division of the District of Arizona.
Accordingly, the Court
-31-
ORDERS that Defendants’ motion to dismiss for lack of personal
jurisdiction under Rule 12(b)(2) and to transfer venue under Rule
12(b)(3) and § 1406(a) is GRANTED and this case is TRANSFERRED to
the Phoenix Division of the District of Arizona.
SIGNED at Houston, Texas, this
13th
day of
July , 2012.
___________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE
-32-
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