Savage Logistics LLC v. Savage Services Corp

Filing 49

ORDER RULING ON PENDING MOTIONS AND SUGGESTING MEDIATION; granting ECF No. 11 Motion to Dismiss First Amended Complaint or, in the Alternative, to Transfer; granting ECF No. 15 Defendant's Motion to Request Judicial Notice; granting ECF No. 23 Motion for Leave to File Second Amended Complaint; granting in part and denying in part ECF No. 40 Plaintiff's Request for Judicial Notice of Materials Identified in the Declaration of Barbara Stone; granting ECF No. 46 Motion for Leave to File Supplemental Brief; and granting ECF No. 47 Motion to Expedite. Signed by Senior Judge Edward F. Shea. (PL, Case Administrator)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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Plaintiff,

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ORDER RULING ON PENDING MOTIONS
AND SUGGESTING MEDIATION

v.

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CASE NO. CV-15-5015-EFS

SAVAGE LOGISTICS, LLC,

SAVAGE SERVICES CORP., a/k/a
SAVAGE COMPANIES,

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Defendant.
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A hearing occurred on September 23, 2015. Bruce Babbitt appeared

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on Plaintiff Savage Logistics, LLC’s (SLL) behalf. Defendant Savage

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Services Corp. (SSC) was represented by Steven Klein. Before the Court

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were

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Complaint or, in the Alternative, to Transfer, ECF No. 11; Defendant’s

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Motion

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Reference, ECF No. 15; and Plaintiff’s Motion for Leave to File Second

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Amended Complaint, ECF No. 23.

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considered

Plaintiff’s

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Identified

in

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Defendant’s Motion for Leave to File Supplemental Brief, ECF No. 46,

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and Defendant’s related Motion for Expedited Hearing, ECF No. 47.

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the reasons that follow, the Court largely grants the motions for

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judicial

three

to

ORDER - 1

motions:

Request

the

notice,

Defendant’s

Judicial

Notice

Request

Declaration

grants

Motion

and

to

Dismiss

Notice

of

First

Amended

Incorporation

by

Following the hearing, the Court also
for
of

Judicial

Barbara

Defendant’s

Notice

Stone,

motion

to

ECF

of

Materials

No.

dismiss

40;

the

and

For

first

1

amended complaint, and grants Plaintiff leave to file a second amended

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complaint.

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A.

Judicial Notice

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Both parties ask the Court to take judicial notice of identified

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documents, and Defendant also asks the Court to consider documents

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that were incorporated into the complaint: 1) Defendant’s Motion to

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Request Judicial Notice and Notice of Incorporation by Reference, ECF

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No.

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Identified in the Declaration of Barbara Stone, ECF No. 40.

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and

Plaintiff’s

Request

for

Judicial

Notice

of

Materials

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Judicial notice is governed by Federal Rule of Evidence 201,

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which provides that a “judicially noticed fact must be one not subject

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to reasonable dispute in that it is either (1) generally known within

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the territorial jurisdiction of the trial court or (2) capable of

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accurate and ready determination by resort to sources whose accuracy

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cannot

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notice only applies to adjudicative facts — facts about the parties or

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the issues to which the law is applied, usually by the jury, in the

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trial of a case. Fed. R. Evid. 201(a), Adv. Comm. Note to 1972 amend.;

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Marshall

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adjudicatory fact). A court can take judicial notice of a matter of

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public record, including records and reports of administrative bodies,

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as long as the facts noticed are not subject to reasonable dispute.

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Lee v. City of Los Angeles, 250 F.3d 668, 677 (9th Cir. 2001); United

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States v. 14.02 Acres of Land More or Less in Fresno Cty., 547 F.3d

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943, 955 (9th Cir. 2008).

reasonably

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ORDER - 2

v.

be

Bramer,

questioned.”

828

F.2d

355,

Fed.

357

R.

Evid.

(6th

Cir.

201(b).

1987)

Judicial

(defining

In

1

addition

to

the

judicial-notice

doctrine,

a

court

may

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consider a document if neither party questions the authenticity of a

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document, which is either attached to the complaint or the contents of

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which are alleged in the complaint. Knievel v. ESPN, 393 F.3d 1068,

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1076 (9th Cir. 2005).
After considering Defendant’s motion, the Court takes judicial

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notice

of

Exhibits

1-2

and

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registration numbers and applications, and Exhibits 5-13, which are

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public administrative records from the U.S. Department of Commerce and

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the Utah Department of Commerce. And the Court will consider, under

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the

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Stoel Rives LLP, as this letter was referenced in the complaint and in

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the response to the complaint, and neither party has challenged its

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authenticity.

incorporation-by-reference

4,

which

are

doctrine,

public-record

Exhibit

3,

a

trademark

letter

from

As to Plaintiff’s motion for judicial notice, the Court grants

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in part and denies in part the motion.

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to Exhibits 1 and 2 because they are public records; therefore, the

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Court will take judicial notice of the fact that these public records

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were filed and exist but not for the truth of the facts recited

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therein. City of Roseville Emps. Ret. Sys. v. Sterling Fin. Corp., 963

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F. Supp. 2d 1092, 1108 (E.D. Wash. 2013). The Court declines to take

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judicial notice of Exhibit 3 because it is not a public record but

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rather

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Companies, and the contents of which could be subject to dispute.

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//

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/

a

ORDER - 3

press

release

regarding

The Court grants the motion as

the

to-be-added

entity

Savage

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B.

Defendant’s Motion to Dismiss and Plaintiff’s Motion to Amend
Defendant seeks dismissal of Plaintiff’s First Amended Complaint

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(FAC), ECF No. 6.

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factual allegations are insufficient to support a finding of personal

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jurisdiction against Defendant and therefore Plaintiff does not oppose

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dismissal of the FAC so long as the Court permits Plaintiff to file

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its proposed Second Amended Complaint (SAC), ECF No. 23.

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the Court grants Defendant’s motion to dismiss the FAC, and the Court

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focuses its analysis on whether it should grant Plaintiff leave to

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At the hearing, Plaintiff conceded that the FAC’s

Therefore,

file a SAC.

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Through the SAC, Plaintiff seeks to 1) add Savage Companies, the

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claimed owner of the trademarks, as a defendant, 2) assert facts to

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support

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Savage Services Corp. and the to-be-added Savage Companies, 3) assert

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a claim that Defendants are barred under the laches doctrine from

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claiming that Plaintiff is violating any trademark, and 4) add a claim

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for

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theories. Defendant opposes the motion, arguing that amendment is

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futile as the Court cannot possess personal jurisdiction over either

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proposed defendant.

specific

damages

personal

under

false

jurisdiction

description,

over

the

dilution,

current

and

Defendant

cyber-piracy

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After the hearing, Defendant sought leave to file a supplemental

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brief in support of its motion to dismiss. ECF No. 46. Defendant’s

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motion is unopposed so long as the Court considers the response filed

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by Plaintiff, ECF No. 48-1. The Court grants Defendant’s motion and

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considers the supplemental briefs filed by both parties.

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ORDER - 4

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“[A] party may amend its pleading [after a responsive pleading

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is served] only with the opposing party’s written consent or the

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court’s leave. The court should freely give leave when justice so

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requires.” Fed. R. Civ. P. 15(a)(2). To ensure that leave is freely

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given when required, Rule 15 is applied with “extreme liberality.”

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Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir.

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2003) (quoting Morongo Band of Mission Indians v. Rose, 893 F.2d 1074,

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1079 (9th Cir. 1990)). The following four factors aid the court’s

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assessment

of
1)

whether
bad

leave

faith,

2)

to

file

undue

an

delay,

amended
3)

complaint

prejudice

to

is

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appropriate:

the

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opposing party, and 4) futility of amendment.

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F.3d 1070, 1079 (9th Cir. 2007); see also Foman v. Davis, 371 U.S. 178

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(1962) (identifying these factors). Not all of the factors merit equal

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weight. Eminence Capital, 316 F.3d at 1052. For example, prejudice to

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the opposing party is given the most consideration, while delay alone

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is an insufficient reason to deny leave to amend.

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Ventura Cty. Cmty. Coll. Dist., 743 F.2d 1310, 1319-20 (9th Cir.

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1984). In sum, “[a]bsent prejudice, or a strong showing of any of the

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remaining Foman factors, there exists a presumption under Rule 15(a)

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in favor of granting leave to amend.”

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1052.

Ditto v. McCurdy, 510

Id.; Loehr

v.

Eminence Capital, 316 F.3d at

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Here, Defendant’s central argument is that leave to amend is

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futile because the Court will still not have grounds to exercise

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personal jurisdiction over Defendant Savage Services Corp., or Savage

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Company. The Fourteenth Amendment’s Due Process Clause requires that a

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court lawfully exercise personal jurisdiction over a civil defendant.

ORDER - 5

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Shute v. Carnival Cruise Lines, 897 F.2d 377, 379 (9th Cir. 1990),

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rev’d on other grounds, 499 U.S. 585. The plaintiff bears the burden

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of demonstrating the existence of personal jurisdiction. Id. At the

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pre-discovery

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jurisdiction-related facts in the complaint. Pac. Atl. Trading Co.,

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Inc. v. M/V Main Exp., 758 F.2d 1325, 1327 (9th Cir. 1985); Brayton

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Purcell LLP v. Recordon & Recordon, 606 F.3d 1124, 1127 (9th Cir.

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2010); see also 4 Wright & Miller, Federal Practice & Procedure §

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1067.6 (3d ed.).

stage

of

litigation,

the

court

accepts

as

true

the

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The Court may ultimately agree with Defendant that the Court

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lacks personal jurisdiction over one or both of the Defendants named

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in the SAC.1 Typically, the sending of a cease-and-desist letter as

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Plaintiff alleges Savage Services Corp. sent it is insufficient to

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establish personal jurisdiction over the sender of the letter. See

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Yahoo! Inc. v. La Ligue Contre Le Racisme Et L'Antisemitisme, 433 F.3d

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1199, 1208 (9th Cir. 2006) (citing Red Wing Shoe Co. v. Hockerson–

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Halberstadt, Inc., 148 F.3d 1355, 1361 (Fed. Cir. 1998) (“A patentee

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should not subject itself to personal jurisdiction in a forum solely

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In a

diversity action

in Washington, a

federal court has

personal

jurisdiction over a non-Washington-resident defendant if permitted by

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Washington’s

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long-arm

statute,

because

Washington’s

comports with the federal due-process requirements.

long-arm

statute

See In re W. States

Wholesale Natural Gas Antitrust Litig., 715 F.3d 716, 741 (9th Cir.
2013); Wash. Shoe Co. v. A-Z Sporting Goods, Inc., 704 F.3d 668, 672

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(9th

Cir.

2012)

(“Washington’s

long-arm

statute

extends

jurisdiction

over a defendant to the fullest extent permitted by the Due Process
Clause of the Fourteenth Amendment.”).

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ORDER - 6

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by informing a party who happens to be located there of suspected

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infringement.”)). Yet, Plaintiff appears to have facts to add to the

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complaint to support a finding that Savage Companies, which is an

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alter ego of Defendant Savage Services Corp., wrongfully interfered

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with Plaintiff’s business in Washington when it sought to prevent

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Plaintiff

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www.savagelogistics.com

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Plaintiff to suffer business injury in Washington. See Bancroft &

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Masters, Inc. v. Augusta Nat’l Inc., 223 F.3d 1082, 1087 (9th Cir.

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2000), holding modified by Yahoo! Inc., 433 F.3d at 1199; Picot v.

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Weston, 780 F.3d 1206, 1214 (9th Cir. 2015) (upholding the use of the

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express-aiming test in the wake of Walden v. Fiore, 134 S. Ct. 1115

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(2014), for specific personal jurisdiction).

from

utilizing

“Savage

website,

Logistics,”

and

that

including

Defendants

its

intended

for

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Therefore, the Court permits Plaintiff to add what facts are

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known to it that support a finding of personal jurisdiction as to

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either

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Plaintiff

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Plaintiff is naming two Defendants: Savage Services Corp. and Savage

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Companies. Because this lawsuit is early in its inception, leave to

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amend will not unduly prejudice Defendant, and there is no evidence

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that Plaintiff’s desire to file the SAC is motivated by bad faith, the

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Court grants Plaintiff leave to file a second amended complaint.

of

the
may

to-be-named
revise

the

Defendants
proposed

SAC

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1.

to

the

SAC.

clearly

In

addition,

identify

that

Accordingly, IT IS HEREBY ORDERED:

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in

Defendant’s Motion to Dismiss First Amended Complaint or,
in the Alternative, to Transfer, ECF No. 11, is GRANTED.

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ORDER - 7

1

2.

of Incorporation by Reference, ECF No. 15, is GRANTED.

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3

Defendant’s Motion to Request Judicial Notice and Notice of

3.

Plaintiff’s

Motion

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is

to

File

Amended

5

promptly

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revised to identify that there are two Defendants: Savage

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Services

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additional jurisdiction-related facts.
4.

a

Corp.

Plaintiff’s

second

and

amended

Savage

Request

GRANTED.

Second

Complaint,

file

No.

Leave

4

9

ECF

for

for

Plaintiff

complaint,

Companies,

Judicial

which

and

is

Notice

to

of

is

to

can

be

allege

Materials

10

Identified in the Declaration of Barbara Stone, ECF No. 40,

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is GRANTED IN PART AND DENIED IN PART.

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5.

Defendant’s Motion for Leave to File Supplemental Brief,

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ECF No. 46, and related Motion for Expedited Hearing, ECF

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No. 47, are GRANTED.

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6.

The

Court

encourages

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a

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Court’s Courtroom Deputy, 509-943-8170.

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IT IS SO ORDERED.

parties

of

whether

appropriate. If the parties are amenable to mediation with
the

stage

consider

17

magistrate,

early

to

mediation

20

this

parties

16

federal

at

the

are

19th

day of October 2015.

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s/Edward F. Shea
EDWARD F. SHEA
Senior United States District Judge

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Q:\EFS\Civil\2015\5015.dismiss.am.compl.lc1.docx

ORDER - 8

to

contact

is

the

The Clerk’s Office is directed to enter this

Order and provide copies to all counsel.
DATED this

litigation,