Savage Logistics LLC v. Savage Services Corp

Filing 74

ORDER Granting 60 Defendant's Motion to Dismiss, in Part; granting ECF No. 63 Defendant's Request for Judicial Notice and Notice by Incorporation; granting in part and denying in part Plaintiff's Request for Judicial Notice and Notice by Incorporation. Signed by Judge Stanley A Bastian. (PL, Case Administrator)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF WASHINGTON

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9 SAVAGE LOGISTICS, LLC, a

No. 4:15-cv-05015-SAB

10 Washington limited liability company,
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Plaintiff,

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v.

ORDER GRANTING

13 SAVAGE COMPANIES, a Utah

DEFENDANTS’ MOTION TO

14 Corporation, SAVAGE SERVICES

DISMISS, IN PART

15 CORP., a Utah Corporation,
Defendants.

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Before the Court are Defendant’s Motion to Dismiss Second Amended

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19 Complaint, or, in the Alternative, to Transfer, ECF No. 60; Defendant’s Request
20 for Judicial Notice and Notice by Incorporation, ECF No. 63; and Plaintiff’s
21 Request for Judicial Notice and Notice of Incorporation, ECF No. 67. A hearing
22 on the motions was held on June 1, 2016, in Richland, Washington. Plaintiff was
23 represented Bruce P. Babbitt; and Defendants were represented by Steven E.
24 Klein.
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Previously, Judge Shea granted Defendant Savage Services Corporation’s

26 Motion to Dismiss Plaintiff’s First Amended Complaint. ECF No. 49. Judge Shea
27 noted that Plaintiff had conceded that the FAC’s factual allegations were
28 insufficient to support a finding of personal jurisdiction against Defendant.
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS, IN PART
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1 Plaintiff did not oppose the dismissal of the FAC so long as it was permitted to file
2 its proposed Second Amended Complaint. Id. Judge Shea granted Plaintiff leave to
3 file a Second Amended Complaint. Id.
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In the SAC, Plaintiff added Savage Companies as a Defendant and asserted

5 facts that it believed supported personal jurisdiction over both companies—
6 Savage Services Corporation and Savage Companies. It is seeking declaratory
7 judgment of non-infringement of trademark. Plaintiff is also asking the Court to
8 instruct the Commissioner of Patents and Trademarks to refuse Defendants’
9 Trademark Application, in which they seek to register the mark “SAVAGE
10 LOGISTICS,” and is asserting a claim for False Description, Dilution, and
11 Cyberpiracy under 15 U.S.C. § 1125. Finally, Plaintiff is bringing state law claims
12 under Wash. Rev. Code § 19.77.010 (trademark registration – threatening to
13 imitate registered trademark) and Wash. Rev. Code § 19.86.010 (unfair trade
14 practices – taking actions to wrongfully appropriate Plaintiff’s trademark).
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Defendants now move to dismiss the SAC, or in the alternative, transfer the

16 case to the District of Utah, for lack of personal jurisdiction over them and move
17 to dismiss Plaintiff’s claim under 15 U.S.C. § 1125 and the state law claims for
18 failure to state a claim. In addition, both parties ask the Court to take judicial
19 notice and notice by incorporation of certain documents submitted in support and
20 in response to the Motion to Dismiss.
MOTIONS STANDARD

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1.

Request for Judicial Notice and Notice by Incorporation

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Fed. R. Evid. 201 permits a court to judicially notice a fact that is not

24 subject to reasonable dispute where it: (1) is generally known within the trial
25 court’s territorial jurisdiction; or (2) can be accurately and readily determined from
26 sources whose accuracy cannot reasonably be questioned.
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A district court may, but is not required to, incorporate documents by

28 reference. Davis v. HSBC Bank Nevada, N.A., 691 F.3d 1152, 1159 (9th Cir.
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS, IN PART
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1 2012). Under the “incorporation by reference” doctrine, a court may look beyond
2 the pleadings without converting the Rule 12(b)(6) motion into one for summary
3 judgment. Id. at 1160. Specifically, courts may consider “documents whose
4 contents are alleged in a complaint and whose authenticity no party questions, but
5 which are not physically attached to the plaintiff’s pleadings.” Id. (citations
6 omitted). A court “may treat such a document as part of the complaint, and thus
7 may assume that its contents are true for purposes of a motion to dismiss under
8 Rule 12(b)(6).” Id. (citation omitted).
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Motion to Dismiss for Lack of Personal Jurisdiction

Fed. Rule Civ. P. 12(b)(2) governs the dismissal of an action based on lack

11 of personal jurisdiction. When a defendant moves to dismiss a complaint for lack
12 of personal jurisdiction, the plaintiff bears the burden of demonstrating that
13 jurisdiction is appropriate. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d
14 797, 799 (9th Cir. 2004). In ruling on a 12(b)(2) motion, the court may, in its
15 discretion, order discovery, hold an evidentiary hearing, or rely only on the written
16 submissions. Doe v. Unocal Corp., 248 F.3d. 915, 922 (9th Cir. 2001). If the
17 motion is based on written materials rather than an evidentiary hearing, “the
18 plaintiff need only make a prima facie showing of jurisdictional facts.” Id. A prima
19 facie showing means the plaintiff has produced admissible evidence, which if
20 believed, is sufficient to establish the existence of personal jurisdiction. Ballard v.
21 Savage, 65 F.3d 1495, 1498 (9th Cir. 1995).
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Although the plaintiff cannot “simply rest on the bare allegations of its

23 complaint and must come forward with facts, by affidavit or otherwise, supporting
24 personal jurisdiction, uncontroverted allegations in the complaint must be taken as
25 true.” Amba Marketing Sys. Inc. v. Jobar Int’l, Inc., 551 F.2d 784, 787 (9th Cir.
26 1977). Conflicts between parties over statements contained in affidavits must be
27 resolved in the plaintiff’s favor. Id.
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Assertions of jurisdiction over out-of-state corporations must comply with
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS, IN PART
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1 due process and “traditional notes of fair play and substantial justice.”
2 International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). Where there is
3 no applicable federal statute governing personal jurisdiction, the district court
4 applies the law of the state in which the district court sits. Daimler AG v. Bauman,
5 __ U.S. __, 134 S.Ct. 746, 753 (2014). Washington’s long-arm statute authorizes
6 personal jurisdiction over out-of-state defendants to the broadest reach that the
7 United States Constitution permits. Byron Nelson Co. v. Orchard Mgmt. Corp., 95
8 Wash.App. 462, 465 (1999). Thus, the question is whether this court’s exercise of
9 jurisdiction over Defendants “comports with the limits imposed by federal due
10 process.” Daimler AG, 134 S.Ct. at 753.
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Case law has differentiated between general or all-purpose jurisdiction, and

12 specific or case-linked jurisdiction. Goodyear Dunlop Tires Operations, S.A. v.
13 Brown, 564 U.S. 915, 919 (2011).
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a. General or All-Purpose Jurisdiction
A court may assert general jurisdiction over an out-of-state corporation

16 when the corporations’ “affiliations with the State are so ‘continuous and
17 systematic’ as to render them essentially at home in the forum State.” Id. General
18 jurisdiction is present in “instances in which the continuous corporate operations
19 with a state [are] so substantial and of such a nature as to justify suit against it on
20 causes of action arising from dealing entirely distinct from those activities.”
21 International Shoe Co., 326 U.S. at 317.
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This is an exacting standard, because, as the Ninth Circuit explains, “a

23 finding of general jurisdiction permits a defendant to be haled into court in the
24 forum state to answer for any of its activities anywhere in the world.” Brand v.
25 Menlove Dodge, 796 F.2d 1070, 1073 (9th Cir. 1986) (citation omitted). Domile,
26 place of incorporation and principal place of business are paradigm bases for the
27 exercise of general jurisdiction. Goodyear, 564 U.S. at 924. “Only in an
28 ‘exceptional case’ will general jurisdiction be available anywhere else.” Ranza v.
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS, IN PART
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1 Nike, Inc., 793 F.3d 1059, 1069 (9th Cir. 2015) (quoting Martinez v. Aero
2 Caribbean, 764 F.3d 1062, 1070 (9th Cir. 2014)).
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b. Specific or Case-Linked Jurisdiction
A court may assert specific or case-linked jurisdiction over an out-of-state

5 corporation if the plaintiff can show that (1) the non-resident defendant
6 purposefully directed its activities or consummated some transaction with the
7 forum or resident thereof; or performed some act by which it purposefully availed
8 itself of the privilege of conducting activities in the forum, thereby invoking the
9 benefits and protections of its laws; (2) the claim arises out of or relates to the
10 defendant’s forum-related activities; and (3) the exercise of jurisdiction comports
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11 with fair play and substantial justice, i.e. it must be reasonable. Picot v. Weston,

12 780 F.3d 1206, 1211 (9th Cir. 2015). [S]pecific jurisdiction is confined to
13 adjudication of “issues deriving from, or connected with, the very controversy that
14 established jurisdiction.” Goodyear, 564 U.S. at 919. Stated another way, specific
15 jurisdiction is present when the suit “aris[es] out of or relate[s] to the defendant’s
16 contacts with the forum.” Helicopteros v. Hall, 466 U.S. 408, 414, n.8 (1984). It is
17 “specific” to the case before the Court. Ranza, 793 F.3d at 1068.
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“[M]ere injury to a forum resident is not a sufficient connection to the

19 forum. Regardless of where a plaintiff lives or works, an injury is jurisdictionally
20 relevant only insofar as it shows that the defendant has formed a contact with the
21 forum State. The proper question is not where the plaintiff experienced a particular
22 injury or effect but whether the defendant’s conduct connects him to the forum in
23 a meaningful way.” Walden v. Fiore, __ U.S. __, 134 S.Ct. 1115, 1125 (2014).
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25 1 If the plaintiff satisfies the first two prongs, then the defendant must come
26 forward with a “a compelling case” that the exercise of jurisdiction would not be
27 reasonable. CollegeSource, Inc. v. AcademyOne, Inc., 653 F.3d 1066, 1076 (9th
28 Cir. 2011).
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS, IN PART
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“When a plaintiff relies on specific jurisdiction, he must establish that

2 jurisdiction is proper for each claim asserted against a defendant.” Picot, 780 F.3d
3 at 1212. “If personal jurisdiction exists over one claim, but not others, the district
4 court may exercise pendent personal jurisdiction over any remaining claims that
5 arise out of the same “common nucleus of operative facts” as the claim for which
6 jurisdiction exists.” Id.
BACKGROUND FACTS

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The following facts are taken from Plaintiff’s complaint, as well as from

9 judicial noticeable documents and documents incorporated by reference:
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Plaintiff Savage Logistics is a Washington limited liability company with its

11 headquarters in Richland, Washington. Plaintiff specializes in transporting and
12 trucking hazardous and radioactive materials, and remedial services. The
13 company’s trucking fleet operates throughout the continental United States and
14 Canada. On March 15, 2007, Plaintiff registered the domain name
15 savagelogistics.com.
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Defendant Savage Services, Corp. (“SS”) is a Utah corporation with its

17 headquarters in Midvale, Utah. SS is a wholly owned subsidiary of Savage
18 Companies (“SC”), also a Utah corporation with its headquarters in Midvale,
19 Utah. Defendant SS specializes in environmental material transport trucking
20 services, as well as general cargo categories, such as building materials and
21 oilfield equipment.
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On October 28, 2014, counsel for Defendant SC sent Plaintiff a letter that

23 identified certain trademark registrations; asserted that Plaintiff’s use of the marks
24 “SAVAGE” and “SAVAGE LOGISTICS” constitutes trademark infringement and
25 a violation of Section 43(a) of the Lanham Act; and demanded that Plaintiff
26 immediately cease all use of the mark and anything else that is confusingly similar.
27 SC demanded that Plaintiff remove its logo from its entire fleet of trucks, as well
28 as its business signs, letter head, website, and social medial sites and cease the use
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS, IN PART
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1 of the domain name savagelogistics.com. It indicated that unless Plaintiff
2 complied with its demands, it would pursue all available legal remedies.
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In a letter dated November 6, 2014, Plaintiff contested Defendant’s

4 allegations of infringement because, among other things, (1) Savage Logistics
5 does not and has not used the word “SAVAGE” alone as a brand or source
6 identifier on its trucks, marketing materials, or elsewhere; (2) Savage Logistics’
7 use of “SAVAGE LOGISTICS” or “SAVAGE LOGISTICS LLC” is not likely to
8 cause confusion; and (3) there has been at least seven years of concurrent use of
9 “SAVAGE LOGISTICS” and “SAVAGE LOGISTICS, LLC” where SC and SS
10 did not seek to enforce its rights.
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Shortly before sending the letter, Defendant SC attempted to register the

12 name Savage Logistics with the Patent and Trademark Office and Defendant SS
13 registered the domain name savagelogistics.net.
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ANALYSIS
Plaintiff is asserting claims against two separate entities: Savage Company

16 (SC) and Savage Services Corporation (SS). Plaintiff maintains that because both
17 SC and SS are present and doing business in the State of Washington, it is fair that
18 they respond to a suit brought in this state.
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Plaintiff’s theory is that Defendants created intentional acts directed at

20 Washington citizens and “expressly aimed” its demands at Plaintiff, known to be a
21 resident of Washington State. ECF No. 50, ¶ 37, 40. Defendants knew that the
22 effect of its demands contained in the cease and desist letter would be to damage
23 Plaintiff in its trade and business and to misappropriate the licenses, permits,
24 certifications, approvals and goodwill that Plaintiff had established. ¶ 40.
25 Defendants’ demands would cause Plaintiff to have to physically re-label and re26 brand all its equipment (over 100 motor vehicles and trailers), apparel, advertising,
27 marketing, business cards, pamphlets and handouts, trade show displays, and
28 building signs at great cost. ¶ 42. Defendant’s demands impact various permits,
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS, IN PART
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1 authorization, and certifications acquired from numerous State and Federal
2 agencies and organizations. ¶ 41. In addition, Defendants’ demands would force
3 Plaintiff to obtain new email addresses and business listings. ¶ 42. Plaintiff alleges
4 that the act of registering savaglogistics.net was part of a pattern and practice and
5 conduct by SC and SS of attempting to prevent Savage Logistics from using its
6 established trademark, of attempting to disrupt the business of Savage Logistics,
7 and to attract for commercial gain internet users to its website and create
8 confusion with Plaintiff’s mark. ¶ 35.
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In its SAC, Plaintiff asserts the following factual allegations in support of

10 personal jurisdiction:
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A.

Savage Companies

1. SC has, as a sponsor of a joint venture with Tesoro Refining and
Marking Company, pursued permitting and construction of a 360,000
barrel per day, $75 Million Dollar crude oil uploading facility in
Vancouver, Washington. ¶ 21.

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2. SC has filed with the Washington Secretary of State and has
appointed CT Corp. Sys., located in Olympia, Washington, as its
registered agent for service within the state. ¶ 21.
3. SC wrote and sent a “Cease and Desist Letter” that demanded that
Plaintiff take immediate action in Washington State to account for
income from 2007 through 2014, repaint its equipment and to
surrender its domain name, as well as threaten to sue if these steps
were not implemented. ¶ 30.

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4. The Cease and Desist Letter was a sham demand because SC had
not in the past brought actions against claimed infringers and SC had
no good faith objection to others using the name Savage. ¶ 31.
5. On October 8, 2014, SC attempted to register Savage Logistics
with the Patent and Trademark Office. ¶ 43.
6. SC began using the domain name savagelogistics.net and have
advertised on the web as Savage Logistics, which has confused and
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS, IN PART
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diluted Plaintiff’s web presence. ¶ 44.
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Savage Services Corporation

1. SS regularly and systematically does business with residents of the
state of Washington and has appointed CT Corp. Sys., located in
Olympia, Washington, as its registered agent for service within the
state. ¶ 22.
2. SS knew the cease and desist letter was a sham demand. ¶ 31.

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3. Representatives of SS, acting for and authorized by SC, on several
occasions called to confer with Plaintiff’s representatives whom they
knew to be located in Washington. ¶ 32.

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4. SS registered the domain name savagelogistics.net as a domain
name. SS falsely certified that savagelogistics.net would not infringe
upon what it knew were Plaintiff’s rights. ¶ 34.

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In determining whether it has personal jurisdiction over Defendants, the

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15 Court does not consider the merits of Plaintiff’s claims. Rather, it focuses solely
16 on whether the Court’s exercise of personal jurisdiction over Defendants in this
17 case comports with due process. After carefully reviewing the pleadings and
18 attachments, as well as recent Supreme Court jurisprudence on this issue, the
19 Court concludes it does not have personal jurisdiction over Defendants.
As an initial matter, it is clear that general jurisdiction does not exist over
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21 either Defendant. See Ranza, 793 F.3d at 1070. While it appears that Defendants
22 send employees and provides services into Washington and engages in
23 commercial transactions here, such business activity is not so pervasive as to
24 render it “essentially at home” in Washington. Notably, Washington is neither
25 Defendants’ place of incorporation nor their principal place of business.
Plaintiff asserts the Court has specific jurisdiction over both Defendants. In
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27 conducting this analysis, the Court must look at the alleged conduct underlying the
28 claims to determine whether this conduct was directed at Washington. See Walden,
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS, IN PART
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1 134 S.Ct. at 1121. (“The inquiry whether a forum State may assert specific
2 jurisdiction over a nonresident defendant ‘focuses on the relationship among the
3 defendant, the forum, and the litigation.’ For a State to exercise jurisdiction
4 consistent with due process, the defendant’s suit-related conduct must create a
5 substantial connection with the forum State.”)(citations omitted).
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In its briefing, Plaintiff attempts to establish personal jurisdiction by relying

7 on the potential harm that it faces as a result of Defendant SC and SS’s actions to
8 establish personal jurisdiction. This is not the correct analysis. See id. at 1122.
9 Rather, the focus must be on the contacts that the “defendant himself” creates with
10 the forum State. Id. (emphasis in original). And it does not include the defendant’s
11 contacts with persons who reside there. Id. Thus, even though Plaintiff’s contacts
12 with Washington state are significant, those contacts do not factor in when
13 determining whether the defendant’s due process rights are violated. Id. Plaintiff
14 cannot be the only link between the defendant and the forum. Id. Consequently,
15 Plaintiff’s reliance on the harms that it will experience in Washington state are
16 misplaced. See id. (noting that mere injury to a forum resident is not a sufficient
17 connection to the forum).
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Here, Plaintiff alleges only two actions taken by Defendants that were

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19 directed at Washington State: (1) SC’s activities in relation to the joint venture on
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20 the west side of the state ; and (2) the sending of the cease and desist letter and

21 subsequent phone calls to Plaintiff, who is located in Washington state. None of
22 these actions are sufficient to establish personal jurisdiction. As Walden explained,
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24 2 While Defendants’ actions in registering the trademark Savage Logistics, and
25 registering the domain name savagelogistic.net may expose them to potential
26 liability, this conduct did not take place in Washington state.
27 3 In its briefing, Defendants clarified that it is Savage Services Corporation that
28 conducts business in Washington State.
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS, IN PART
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1 a defendant’s actions, taken in the non-forum state, do not create sufficient
2 contacts with the forum simply because it allegedly directed its conduct at the
3 plaintiff who it knew had connections in the forum state. Id.. at 1125. While
4 conducting commercial activities in Washington state is conduct that is directed at
5 Washington state, this conduct is not related or linked to Plaintiff’s claims. The
6 remaining alleged actions do not have anything to do with state of Washington
7 itself. Id.
Generally, “[a] cease and desist letter is not in and of itself sufficient to

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9 establish personal jurisdiction over the sender of the letter.” Yahoo! v. La Ligue

10 Contre Le Racisme Et L’Antisemitisme, 433 F.3d 1199, 1208 (9th Cir. 2006)
11 (citing Red Wing Shoe Co. v. Hockerson-Halberstadt, Inc., 148 F.3d 1355, 1361
12 (Fed. Cir. 1998). Courts have recognized an exception where the letter was
13 abusive, tortious or otherwise wrongful. Id. Although Plaintiff maintains the letter
14 sent by Defendants meets this exception, the Court is not convinced. In the letter
15 sent to Plaintiff, Defendant SC indicated it was willing to discuss an amicable
16 resolution, but also indicated that if certain steps were not taken, it may pursue all
17 available legal remedies. ECF No. 12, Ex. 3. While Plaintiff disagrees with
18 Defendants regarding the contents of the letter, there is nothing in the letter that
19 rises to the level of being abusive, tortious, or otherwise wrongful, as
20 contemplated by the Ninth Circuit. Notably, in Bancroft & Masters v. Augusta
21 Nat’l, Inc., 223 F.3d 1082 (9th Cir. 2000), one of the letters at issue in that case
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As the Red Wing Shoe court noted:
There are strong policy reasons to encourage cease and desist letters. They
are normally used to warn of an alleged rights infringer that its conduct, if
continued, will be challenged in a legal proceeding, and to facilitate
resolution of a dispute without resort to litigation. If the price of sending a
cease and desist letter is that the sender thereby subjects itself to jurisdiction
in the forum of the alleged rights infringer, the rights holder will be strongly
encouraged to file suit in its home forum without attempting first to resolve
the dispute informally by means of a letter.” Id.

ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS, IN PART
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1 was sent to a company who was the sole registrar of domain names. Id. at 1088.
2 The Circuit concluded that the letters were intended to trigger the dispute
3 resolution procedures, which caused the plaintiff to choose between bringing suit
4 or losing the use of its website. Id. at 1088.
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Plaintiff also asserts that Defendants have advertised on the web as Savage

6 Logistics, which has confused and diluted Plaintiff’s web presence. This is not
7 enough to establish personal jurisdiction over Defendants. See Cybersell, Inc. vl
8 Cybersell, Inc., 130 F.3d 414, 415 (9th Cir. 1997) (holding that it would not
9 comport with “traditional notions of fair play and substantial justice” for Arizona
10 to exercise personal jurisdiction over an allegedly infringing Florida web site
11 advertiser who has no contacts with Arizona other than maintaining a home page
12 that is accessible to Arizonans, and everyone else, over the Internet”). A passive
13 website that does little more than make information available to those who are
14 interested in it is not enough to establish personal jurisdiction over the website
15 owner.
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Plaintiff cannot meet the requirements for establishing personal jurisdiction

17 over Defendants. Defendants’ actions, i.e. sending the letter, filing the trademark
18 application, registering the website, and advertising on the web, did not connect
19 them with Washington in a way sufficient to support the assertion of personal
20 jurisdiction.
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Because the Court has concluded that Plaintiff has not established personal

22 jurisdiction over either Defendant, it is not necessary to address its argument that
23 Savage Services Company is the agent or alter ego of Savage Company, or vice
24 versa. That said, the SAC does not plead sufficient facts to satisfy the alter ego
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25 test. See Ranza, 793 F.3d at 1070-75.

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27 5 The Ranza court explained that the existence of a parent-subsidiary relationship
28 is insufficient, on its own, to justify imputing one entity’s contacts with a forum
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS, IN PART
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REQUEST FOR JUDICIAL NOTICE AND NOTICE BY INCORPORATION

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Judge Shea, in his prior order, took judicial notice of the public-record

3 trademark registration numbers and applications and the public administrative
4 records from the U.S. Department of Commerce and the Utah Department of
5 Commerce. He also considered, under the incorporation-by-reference doctrine, a
6 letter from Stole Rives LLP, as this letter was referenced in the complaint and in
7 the response to the complaint, and neither party challenged its authenticity. Judge
8 Shea declined to take judicial notice of a press release regarding Savage
9 Companies because it is not a public record and the contents could be subject to
10 dispute. The Court adopts Judge Shea’s reasoning.
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Defendants ask the Court to incorporate by reference print-outs of pages

12 from the website maintained by Plaintiff at www.savagelogistics.com. In Knievel
13 v. ESPN, 393 F.3d 1068 (9th Cir. 2005), the Ninth Circuit applied the rationale of
14 the “incorporation by reference” doctrine to internet pages. The Court grants
15 Defendants’ request.
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Plaintiff asks the Court to take judicial notice of Exhibit 2, which is a

17 company snapshot for Savage Services maintained by the U.S. Department of
18 Transportation and regulations of the Federal Motor Carrier Safety Administration
19 indicating what must be displayed on self-propelled CMV’s operated by both
20 Plaintiff and Savage Services; Exhibits A through AC described as official forms
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22 state to another for the purpose of establishing personal jurisdiction. 793 F.3d at
23 1070. Moreover, it recognized that the Supreme Court in Daimler AG v. Bauman,
24 __ U.S. __, 134 S.Ct. 746, 759 (2014), invalidated the agency test previously used
25 by the Ninth Circuit. Id. It also noted that to satisfy the alter ego test, a plaintiff
26 must allege “(1) that there is such unity of interest and ownership that the separate
27 personalities [of the two entities] no longer exist and (2) that failure to disregard
28 [their separate identities] would result in fraud or injustice.” Id. at 1073.
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS, IN PART
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1 and certifications; Exhibit W, which is a worker’s compensation official report
2 showing that Defendants maintain regular offices in Washington State and employ
3 between 76 and 100 workers in Washington State; Exhibit Y and A, which
4 identify the domain name savagelogistics.com and savageservices.com; and
5 Exhibits S, T, U, and V, which include publically accessible websites.
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The Court declines Plaintiff’s request. Rather than seek judicial notice,

7 Plaintiff is asking the Court to accept as true the content contained in the
8 documents. In essence, Plaintiff is asking the Court to incorporate by reference the
9 listed documents. Moreover, it appears that the majority of the documents
10 submitted by Plaintiff go to the merits of its case, rather than to the issue of
11 whether the court should exercise personal jurisdiction over Defendants, as such,
12 the Court did not consider the exhibits, except as set forth above in its recitation of
13 the facts.
Motion to Dismiss for Failure to State a Claim

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Defendants ask the Court to dismiss Counts III, IV and V of the SAC for

16 failure to state a cause of action. Because the Court does not have personal
17 jurisdiction over Defendants, the Court declines to rule on Defendants’ 12(b)(6)
18 motion.
Leave to Amend / Transfer to District of Utah

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While Plaintiff has already been afforded leave to amend, the interests of

21 justice will be served by permitting Plaintiff to proceed in one of two ways: (1) by
22 filing an amended complaint that adequately sets forth facts that support personal
23 jurisdiction over Defendants or (2) by agreeing to have this case transferred to the
24 District of Utah.
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Accordingly, IT IS HEREBY ORDERED:

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1. Defendant’s Motion to Dismiss Second Amended Complaint, or, in the

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Alternative, to Transfer, ECF No. 60, is GRANTED, in part.
2. Defendant’s Request for Judicial Notice and Notice by Incorporation,
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS, IN PART
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ECF No. 63, is GRANTED.
3. Plaintiff’s Request for Judicial Notice and Notice by Incorporation, ECF
No. 67, is GRANTED, in part, and DENIED, in part.
4. On or before July 14, 2016, Plaintiff shall file a Third Amended

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Complaint, or notify the Court that it agrees to the transfer of the above-

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captioned case to the District of Utah.

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IT IS SO ORDERED. The District Court Executive is hereby directed to

8 file this Order and provide copies to counsel.
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DATED this 14th day of June, 2016.

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Stanley A. Bastian

United States District Judge

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ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS, IN PART
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