Amini Innovation Corp. v. Js Imports Inc., No. CV 06-08088MMM(JCx).

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
• Writing for the Court: Margaret M. Morrow
• Citation: 497 F.Supp.2d 1093
• Parties: AMINI INNOVATION CORPORATION, a California corporation, Plaintiff, v. JS IMPORTS INC., a New York corporation, Designer Furniture Warehouse, Inc., an unknown business entity, and Does 1-9, inclusive, Defendants.
• Docket Number: No. CV 06-08088MMM(JCx).
• Decision Date: 22 May 2007

497 F.Supp.2d 1093 AMINI INNOVATION CORPORATION, a California corporation, Plaintiff,
v.
JS IMPORTS INC., a New York corporation, Designer Furniture Warehouse, Inc., an unknown business entity, and Does 1-9, inclusive, Defendants. No. CV 06-08088MMM(JCx). United States District Court, C.D. California. May 22, 2007.

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Daniel M. Cislo, Esq. and Mark D. Nielsen, Esq. of Cislo & Thomas LLP, for Plaintiff Amini Innovation Corporation.

Bruce Isaacs, Esq. and David Boren, Esq. of Wyman and Isaacs LLP and Eli S. Cohn, Esq. of McDonough Marcus Cohn Tretter Heller & Kanca LLP of New Rochelle, New York acting of counsel for JS Imports, for Defendants.

ORDER DENYING DEFENDANTS' MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION AND/OR IMPROPER VENUE; DENYING DEFENDANTS' MOTION TO TRANSFER VENUE

MARGARET M. MORROW, District Judge.

This action involves an intellectual property dispute between plaintiff Amini Innovation Corporation ("AICO") and defendants Jo-Lind Associates, Inc. assumed name J.S. Imports, Inc. ("J.S. Imports") and Interiors by Michi, Inc. d/b/a Designer Warehouse Furniture, Inc ("DWF"). AICO owns registered copyrights and design patents on its Monte Carlo™, Tresor™, LaFrancaise™, Paradisio™, and Eden™ furniture collections. It asserts that defendants are marketing and selling furniture with designs that are substantially similar to AICO's copyrighted and patented designs. Defendants have moved to dismiss the action for lack of personal jurisdiction and/or improper venue; alternatively, they seek to transfer venue to the Southern District of New York.

I. FACTUAL BACKGROUND

A. J.S. Imports

J.S. Imports is a New York corporation.¹ It does not do business in California, nor has it made any sales to residents of California.² J.S. Imports does not sell to the public and has never distributed its catalogue in California.³ Its sells and distributes its catalogue to retailers, but only through commissioned sales persons who visit the retailers on its behalf.⁴ Some of its products are shipped from China, through the Port of Los Angeles in Long Beach, California, to final ports of delivery in Texas or New Mexico.⁵

The back cover of J.S. Imports' catalogue includes the following inscription:⁶

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 JS
                 -------
                 IMPORTS
                

42 Lambert Ridge Cross River NY, 10518 Phone: 609-259-0829 Fax: 609-259-1671 E-mail: sweinb6713@aol.com www.designerfurniturewarehouse.com

Steven Weinberg, president and treasurer of J.S. Imports, states that the company placed DFW's website, www.designer furniturewarehouse.com, on its catalogue "as an advertisement for DFW, a startup company."⁷ He asserts that DFW is a "separate and independent company not affiliated with J.S. Imports,⁸ that J.S. Imports has not conducted any business over the website owned by DFW,⁹ and that DFW does not solicit business for J.S. Imports.¹⁰ Weinberg asserts this is because J.S. Imports sells only to retailers and retailers do not order over the Internet, as the prices listed on DFW's website reflects retail prices, not the wholesale prices offered to retailers.¹¹

B. DFW

Michelle Sagel-Howe, president and principal shareholder of DFW, created and launched the website, www.designer furniturewarehouse.com, in May 2005.¹² Because DFW "was only set up to ship its products" to six states — Maryland, Delaware, Virginia, New York, New Jersey, and Pennsylvania — the website "would only accept orders from potential customers" in those six states.¹³ Sagel-Howe contends that, as a result, no California resident could have placed an order or purchased products on the DFW website. Indeed, no California resident has ever purchased products from DFW, whether through the Internet or otherwise.¹⁴ DFW did not sell a single product through its website and stopped offering products for sale over the Internet on June 6, 2006.¹⁵

AICO's attorney, Mark D. Nielsen, went on a "shopping spree" on DFW's website on March 1, 2007. He "went through the process of placing orders" for allegedly infringing products but "stopped short of entering [his] credit card information."¹⁶ Sagel-Howe asserts, however, that had Nielsen entered his credit card information, he would have discovered that the products were not for sale, as DFW had stopped offering products for sale on June 6, 2006.¹⁷

DFW dissolved on March 2, 2007.¹⁸ Sagel-Howe

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states that DFW was a Maryland corporation that never did any business in California.¹⁹ It did not advertise in California, maintain offices or employees in California, or solicit any sales in California.²⁰

C. Alleged Affiliation Between J.S. Imports And DFW

Although representatives of J.S. Imports and DFW insist the two companies are unrelated, AICO alleges they are affiliated. AICO's attorney, Nielsen, entered the telephone and facsimile numbers on the back of J.S. Imports' catalogue, 609-259-0829 and 609-259-1671, into a whitepages.com reverse search on March 15, 2007.²¹ The searches identified Michelle S. Howe of Millstone Township, New Jersey as the owner of the telephone number, and Michelle Howe of Trenton, New Jersey as the owner of the facsimile number.²² The email address, as well as the physical address on the catalogue, belong to Weinberg, however.²³

Neilsen's paralegal, Eileen K. Andree, called the telephone number, 609-259-0829, on March 22, 2007. She heard a voice recording, which stated: "Hi you've reached Michelle with JS Imports, office hours are 9:00 a.m. to 5:00 p.m. Monday through Friday. You may fax any correspondence or purchase orders to (609) 259-1671 or leave a message. I'll get back to you as soon as I can. Thank you for calling."²⁴ Defendants do not deny the numbers are owned by Sager-Howe, former president of DFW. Weinberg explains, however, that Sager-Howe now works for J.S. Imports.²⁵

AICO has also submitted two return receipt postcards that reflect the mailing of a December 18, 2006 cease and desist letter and a copy of the complaint (sent January 23, 2007). Both mailings were addressed to "Office of the President, JS Imports d/b/a Designer Furniture Warehouse, 42 Lambert Ridge, Cross River, N.Y. 10518." The postcards were received and signed by John Rigg on December 21, 2006 and January 25, 2007, respectively.²⁶ Weinberg asserts that he never received the December 18, 2006 cease and desist letter, that 42 Lambert Ridge, Cross River, New York is a single-family residence where he lives with his wife and two children, that no one by the name of John Rigg lives or works at the address, and that he has never heard of a person with that name.²⁷

II. DISCUSSION

A. Standard Governing Motions To Dismiss For Lack Of Personal Jurisdiction

1. Procedural Considerations

Under Rule 12(b)(2) of the Federal Rules of Civil Procedure, the

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court may decide the issue of personal jurisdiction on the basis of affidavits and documentary evidence submitted by the parties, or hold an evidentiary hearing regarding the matter. See 5A Charles A. Wright & Arthur Miller, FEDERAL PRACTICE AND PROCEDURE, § 1351, pp. 253-59 and n. 31-35 (2d ed.1990); Data Disc, Inc. v. Systems Tech. Assoc., Inc., 557 F.2d 1280, 1285 (9th Cir.1977); Rose v. Granite City Police Dept., 813 F.Supp. 319, 321 (E.D.Pa.1993). Whichever procedure is used, plaintiff bears the burden of establishing that jurisdiction is proper. See Doe v. Unocal Corp., 248 F.3d 915, 922 (9th Cir.2001); Ziegler v. Indian River County, 64 F.3d 470, 473 (9th Cir. 1995); Flynt Distributing Co. v. Harvey, 734 F.2d 1389, 1392 (9th Cir.1984). In this case, the pleadings, declarations and documentary evidence submitted by the parties provide an adequate basis for evaluating jurisdiction. Accordingly, no evidentiary hearing is necessary..

Because this matter is being decided on the basis of affidavits and documentary evidence, plaintiffs need only make a prima facie showing of personal jurisdiction, i.e., facts that, if true, would support the court's exercise of jurisdiction over the defendant. Unocal, 248 F.3d at 922 (quoting Ballard v. Savage, 65 F.3d 1495, 1498 (9th Cir.1995)); Fields v. Sedgwick Associated Risks, Ltd., 796 F.2d 299, 301 (9th Cir.1986). All allegations in the complaint must be accepted as true, to the extent not controverted by defendant's affidavits, and all conflicts in the evidence must be resolved in plaintiffs favor. See CE Distribution, LLC v. New Sensor Corp., 380 F.3d 1107, 1110 (9th Cir.2004); Unocal, 248 F.3d at 922; Harris Rutsky & Co. Ins. Services, Inc. v. Bell & Clements Ltd., 328 F.3d 1122, 1129 (9th Cir.2003); see also Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir.1995) ("`[T]he plaintiff's prima facie showing is sufficient notwithstanding [a] contrary presentation by the moving party," quoting Behagen v. Amateur Basketball Ass'n. of the United States, 744 F.2d 731, 733 (10th Cir.1984)).

2. Substantive Standard

Whether a federal court can exercise personal jurisdiction over a non-resident defendant turns on two independent considerations: whether an applicable state rule or statute permits service of process on the defendant, and whether the assertion of personal jurisdiction comports with constitutional due process principles. See Pacific Atlantic Trading Co. v. M/V Main Express, 758 F.2d 1325, 1327 (9th Cir.1985).

California's long-arm statute extends jurisdiction to the limits of constitutional due process. See Gordy v. Daily News, L.P., 95 F.3d 829, 831 (9th Cir. 1996); CAL. CODE CIV. PROC. § 410.10 ("A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States"). Consequently, when service of process has been effected under California law, the statutory and constitutional requirements merge, and the court asks only whether the exercise of jurisdiction over defendant would comport with due process. See Fireman's Fund Ins. Co....