Audi Ag & Volkswagen of America, Inc. v. Izumi

• Decision Date: 23 May 2002
• Docket Number: No. 01-CV-74520-DT.,01-CV-74520-DT.
• Parties: AUDI AG & VOLKSWAGEN OF AMERICA, INC., Plaintiffs, v. George IZUMI, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

Page 1014

204 F.Supp.2d 1014

AUDI AG & VOLKSWAGEN OF AMERICA, INC., Plaintiffs, v. George IZUMI, Defendant.

No. 01-CV-74520-DT.

United States District Court, E.D. Michigan, Southern Division.

May 23, 2002.

Gregory D. Phillips, Scott R. Ryther, Howard, Phillips & Andersen, Salt Lake City, UT, Edward C. Cutlip, Jr., Kerr, Russell & Weber, Detroit, MI, for Plaintiffs.

John R. Walton, Thomas, Walton & Graves, Los Angeles, CA, for Defendant.

ORDER DENYING DEFENDANT'S MOTION TO QUASH THE SUMMONS AND DISMISS FOR IMPROPER SERVICE, DENYING DEFENDANT'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION, DENYING DEFENDANT'S MOTION TO DISMISS FOR LACK OF VENUE AND DENYING, WITHOUT PREJUDICE, DEFENDANT'S MOTION TO TRANSFER

WOODS, District Judge.

This matter having come before the Court on Defendant's motion to quash, to dismiss and/or alternatively, to transfer [Doc. No. 4];

The Court having reviewed the pleadings submitted herein, and being otherwise fully informed in the matter;

IT IS HEREBY ORDERED that Defendant's motion to quash the summons and to dismiss for improper service pursuant to FED.R.CIV.P. 12(b)(5) shall be, and hereby is, DENIED; Defendant's motion to dismiss for lack of personal jurisdiction pursuant to FED.R.CIV.P. 12(b)(2) shall be, and hereby is, DENIED; Defendant's motion to dismiss for improper venue pursuant to FED.R.CIV.P. 12(b)(3) and 28 U.S.C. § 1406 shall be, and hereby is, DENIED; and Defendant's motion to transfer pursuant to 28 U.S.C. § 1404(a) shall be, and hereby is, DENIED, WITHOUT PREJUDICE.

I. BACKGROUND

Plaintiffs, Audi AG ("Audi") and Volkswagen of America, Incorporated ("Volkswagen") (also collectively referred to as "Plaintiffs"), brought this action against Defendant, George Izumi ("Izumi" or "Defendant"), alleging: (1) cybersquatting under 15 U.S.C. § 1125(d);¹ (2) trademark dilution under 15 U.S.C. § 1125(c)(1); (3) trademark infringement of its federally registered mark A6® under 15 U.S.C. § 1114(1); and (4) false designation of origin under 15 U.S.C. § 1125(a). Plaintiffs allege that Defendant has registered and used the domain name A6.com, a pornography web site, in contravention of Plaintiffs' right to use its registered mark A6®.

II. STANDARD OF REVIEW

A defendant can seek to have the summons quashed and the action dismissed for improper service pursuant to FED.R.CIV.P. 12(b)(5) ("Rule 12(b)(5)"). The Court examines whether the plaintiff comported with FED.R.CIV.P. 4. Objections to service must be made in the first responsive pleading in order to operate as a device for dismissal. See Rule 12(b)(5). In the instant case, Defendant seeks dismissal in its first responsive pleading.

When a defendant challenges personal jurisdiction pursuant to FED.R.CIV.P 12(b)(2), the plaintiff bears the burden of establishing the existence of personal jurisdiction. See Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d 883, 887 (6th Cir.2002). In the instant matter, because the Court is not conducting an evidentiary hearing on the matter of personal jurisdiction, Plaintiffs must make only a prima facie showing, and the Court views the evidence in the light most favorable to plaintiff. See Neogen, 282 F.3d at 887; CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1262 (6th Cir.1996). The Court notes that "in the face of a properly supported motion for dismissal, the plaintiff may not stand on his pleadings but must, by affidavit or otherwise, set forth specific facts showing that the court has jurisdiction." Theunissen v. Matthews, 935 F.2d 1454, 1458 (6th Cir.1991). The Court does not, however, consider facts proffered by the defendant that conflict with those offered by the plaintiff. See id. at 1459.

Defendant also seeks dismissal for improper venue pursuant to FED. R.CIV.P. Rule 12(b)(3). On a motion to dismiss for improper venue, the plaintiff bears the burden of proving that venue is proper. The Court may examine facts outside the complaint but must draw all reasonable inferences and resolve factual conflicts in favor of the plaintiff. See, e.g., Moore v. AT & T Latin America Corp., 177 F.Supp.2d 785, 788 (N.D.Ill.2001) (citation omitted); Solow Bldg. Co., LLC v. ATC Assocs., Inc., 175 F.Supp.2d 465, 469 (E.D.N.Y.2001) (citations omitted). If a defendant prevails on a Rule 12(b)(3) challenge, the Court has the discretion to decide whether the action should be dismissed or transferred to an appropriate court. See 28 U.S.C. § 1406. In the alternative, Defendant seeks a transfer of the case to a federal court in California pursuant to 28 U.S.C. § 1404(a).

III. ANALYSIS

A. Service of Process

Defendant first contends that the Court should quash the summons and dismiss this action pursuant to FED.R.CIV.P. 12(b)(5) ("Rule 12(b)(5)") because Plaintiffs allegedly failed to serve Defendant consistent with the FED.R.CIV.P. 4. Federal Rule of Civil Procedure 4 sets forth the proper procedure for service of process of the summons and states, in pertinent part:

(e) Service Upon Individuals Within a Judicial District of the United States. Unless otherwise provided by federal law, service upon an individual from whom a waiver has not been obtained and filed, other than an infant or an incompetent person, may be effected in any judicial district of the United States: .... (2) by delivering a copy of the summons and of the complaint to the individual personally or by leaving copies thereof at the individual's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process.

FED.R.CIV.P. 4(e).

Defendant maintains that service was improper because Plaintiffs falsely represented that Defendant was personally served. The Court is not satisfied, based on the present showing, that service was improper in the instant case. Defendant maintains that a copy of the summons and complaint was simply left at Defendant's door step and that Plaintiffs' process server falsely declared that the summons and complaint had been personally served.

The Court rejects John Walton's, Defendant's counsel, conclusory declaration as evidence to support this serious allegation. Notably, Walton does not submit a declaration from the process server admitting to any malfeasance. Rather, Walton submits a rather convoluted series of statements that do not adequately support his claim that Plaintiffs' process server failed to serve the summons properly.

Plaintiffs also submit the proof of service signed by their process server, Eddie Trejo, who affirms that he personally served Defendant at his home address. Plaintiffs also submit the declaration of Jan Sharp, a paralegal, who asserts that she instructed the process server to serve the summons and complaint personally upon Defendant and denies advocating any improper method of service. See Sharp Declaration at ¶¶ 5-7. She confirms that the return of service was returned, and as directed, indicated that the process server personally served Defendant. See Sharp Declaration at ¶¶ 8-9.

On the other hand, Defendant asserts that he was out of town at the end of December. See Izumi Declaration at ¶ 16. He claims that he was not personally served and simply discovered the package on his doorstep on February 5, 2002. See id. In light of these contradictory claims, Defendant's bare allegations, without more, are insufficient to establish that service was not properly effected. Based on the evidence submitted by Plaintiffs, the Court is satisfied that Defendant was properly served. In so ruling, the Court is not calling into question any person's character or veracity. The Court simply finds that Plaintiffs have provided the Court with a detailed and credible account of what transpired. Accordingly, the Court denies Defendant's motion to dismiss for insufficient service.

The Court is concerned that the tenor of this litigation has already denigrated in a manner inconsistent with the Civility Principles adopted by the United States District Court for the Eastern District of Michigan by Administrative Order Number 96-AC-024. The Court admonishes all counsel to avoid such unnecessary rancor which, in this Court's view, often results in ancillary conflicts that prevent an efficient resolution of the lawsuit.

B. Personal Jurisdiction

Defendant alternatively argues that this action should be dismissed for lack of personal jurisdiction pursuant to FED.R.CIV.P. 12(b)(2). It is beyond cavil that if the Court lacks personal jurisdiction over Defendant, the Court lacks jurisdiction to adjudicate that party's right, whether or not service was valid and whether the Court has valid subject matter jurisdiction. Plaintiffs must make only a prima facie showing of personal jurisdiction because the Court opts to proceed on the materials supplied by the parties. See Neogen, 282 F.3d at 887.

Plaintiffs invoke the Court's subject matter jurisdiction under the Lanham Act, 15 U.S.C. § 1121. See Complt. at ¶ 10(b). None of the applicable provisions of the Lanham Act provides for nationwide service of process on a defendant or otherwise addresses this Court's personal jurisdiction over Lanham Act defendants. Accordingly, the Court must analyze the personal jurisdiction issue presented by Defendant under FED. R.CIV.P. 4(k)(2). Accord, ISI Int'l. Inc. v. Borden Ladner Gervais LLP, 256 F.3d 548, 550 (7th Cir.2001). Therefore, in the present action, the Court is limited in its exercise of personal jurisdiction by constitutional principles of Due Process and the specific requirements of Michigan's long-arm statute.

Personal jurisdiction can be invoked either via general jurisdiction, where the defendant has "continuous and systematic" contact with the forum state, see Perkins v. Benguet Consol. Mining Co., 342 U.S. 437, 445-47, 72 S.Ct. 413, 96 L.Ed. 485 (1952), or via limited jurisdiction, where the subject matter of the...