Moseley v. Fillmore Co.
| Decision Date | 16 July 2010 |
| Docket Number | Civil Case No. 1:09cv221. |
| Citation | 725 F.Supp.2d 549 |
| Court | U.S. District Court — Western District of North Carolina |
| Parties | Loretta MOSELEY, Plaintiff, v. FILLMORE COMPANY, LTD., Yusa Noriyuki, and Ed Roman Enterprises, Inc., Defendants. |
OPINION TEXT STARTS HERE
COPYRIGHT MATERIAL OMITTED.
Peter M. Lukevich, Apex Juris, PLLC, Seattle, WA, Raymond E. Owens, Jr., K & L Gates LLP, Charlotte, NC, for Plaintiff.
Sean David Soboleski, Law Office of Sean D. Soboleski, Asheville, NC, Brent Merrill Davis, Ronald S. Bienstock, Bienstock & Michael, P.C., Hackensack, NJ, for Defendants.
THIS MATTER is before the Court on the following:
1. Defendant, Ed Roman Enterprises, Inc.'s Notice of Motion and Motion to Dismiss Plaintiff's Complaint pursuant to Fed.R.Civ.P. 12(b)(2), (3) and (5), or in the alternative, to Transfer this Action to the District of Nevada, pursuant to 28 U.S.C. § 1404(a) [Doc. 14]; and
2. Defendants, Fillmore Company, Ltd. and Yusa Noriyuki's Notice of Motion and Motion to Dismiss Plaintiff's Complaint pursuant to Fed.R.Civ.P. 12(b)(2), (3) and (5) [Doc. 28; Doc. 41].
Pursuant to 28 U.S.C. § 636(b) and the standing Orders of Designation of this Court, United States Magistrate Judge Dennis L. Howell was designated to consider these motions and to submit recommendations for their disposition. On June 1, 2010, the Magistrate Judge filed his Memorandum and Recommendation in which he recommended that the motions of Defendants Fillmore Company, Ltd. (Fillmore) and Yusa Noriyuki (Noriyuki) be granted and that this action be dismissed without prejudice as to those defendants for lack of personal jurisdiction. [Doc. 45]. In view of that recommendation, the Magistrate Judge recommended that all other claims in the action be dismissed without prejudice pursuant to Federal Rule of Civil Procedure 19(b) because the joinder of Fillmore and Noriyuki as necessary parties is not feasible. [ Id.]. Finally, he recommended that Defendant Ed Roman Enterprises, Inc.'s (Roman) motion to dismiss be denied without prejudice as moot in view of the other recommended rulings. [ Id.].
On June 15, 2009, the Plaintiff initiated this action against the Defendants based on federal question jurisdiction alleging Lanham Act violations and supplemental state law claims. [Doc. 1]. In the Complaint, the Plaintiff alleged that Defendant Fillmore is a Japanese corporation with its principal place of business in Tokyo and that Noriyuki, its president, is a citizen of Japan. [ Id., at 2]. It is alleged that Roman is a Nevada corporation with its principal place of business in Las Vegas, Nevada. [ Id., at 2]. Jurisdiction is based on the general allegation that the Defendants conduct business in North Carolina. [ Id.].
Plaintiff claims that Noriyuki falsely or fraudulently obtained federal trademark registrations for guitars, guitar components and amplifiers. [ Id.]. Noriyuki allegedly transferred those registrations to Defendant Fillmore which manufactures and sells the guitars and related products bearing the allegedly false marks. [ Id.]. Defendant Roman is Fillmore's sole distributor of the goods in the United States. [ Id., at 5-7]. The goods are alleged to infringe the Plaintiff's marks. [ Id.]. There are no allegations in the Complaint that either Fillmore or Noriyuki have any connection to the United States, and in particular, to North Carolina, except by virtue of a business relationship with Roman. [ Id., at 2-7]. There are no specific allegations that Roman sells the goods in North Carolina, only a general claim that the goods are marketed and sold in the United States, primarily through a website, www. edroman. com. [ Id.].
On December 2, 2009, Defendant Roman moved to dismiss the action for lack of personal jurisdiction. [Doc. 14]. In response, the Plaintiff moved for leave to conduct limited discovery on the issue of Roman's contacts with North Carolina. [Doc. 18]. The Magistrate Judge granted that motion and allowed limited discovery. [Doc. 24].
On March 26, 2010, Defendants Fillmore and Noriyuki also moved to dismiss for lack of personal jurisdiction. [Doc. 28]. In support of that motion, Noriyuki filed an affidavit in which he stated that he is a citizen and resident of Japan and does not do any business in North Carolina and that he is the president of Fillmore, a Japanese company which does not do any business in North Carolina. [Doc. 28-1]. Noriyuki further stated that he and Fillmore (1) do not have any presence of any type in North Carolina; (2) do not direct any advertising toward North Carolina customers or citizens; (3) do not own property in North Carolina; and (4) have never been in North Carolina. [ Id.]. It was established that although Roman operates a website, no purchase of any product may be accomplished via that site and a telephone call to the Roman offices in Nevada is required to place an order. [Doc. 42-1].
On June 1, 2010, the Magistrate Judge filed his Memorandum and Recommendation. [Doc. 45]. Four days before the objections were due, Plaintiff's attorneys moved for leave to withdraw. [Doc. 46]. On June 22, 2010, the Court denied counsel's motion to withdraw without prejudice and required counsel to either file objections to the Memorandum and Recommendation or a statement that the Plaintiff did not wish to file objections. [Doc. 48, at 6-7]. On July 12, 2010, counsel filed objections. [Doc. 49]. Counsel renewed the motion for leave to withdraw on July 13, 2010 and that motion is considered separately. [Doc. 51].
The Defendants have not filed any objections to the Magistrate Judge's recommendations. The Plaintiff has captioned its pleading as objections, but, as discussed infra, has conceded that the Magistrate Judge's Memorandum and Recommendation is accurate.
A district court reviews specific objections to a Memorandum and Recommendation under a de novo standard. 28 U.S.C. § 636(b). Battle v. United States Parole Commission, 834 F.2d 419, 421 (5th Cir.1987), overruled on other grounds Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415(5th Cir.1996).
To the extent that a party asserts claims in the objections which were not asserted in support of or in opposition to the motion, de novo review is not warranted. Price v. Dixon, 961 F.Supp. 894 (E.D.N.C.1997)(claims cannot be raised for the first time in objections to a memorandum and recommendation); Wells v. Shriners Hospital, 109 F.3d 198, 200 (4th Cir.1997)(boilerplate objections will not avoid the consequences of failing to object altogether). This Court therefore does not conduct a de novo review of those portions of the Memorandum and Recommendation to which non-specific objections have been filed.
“When personal jurisdiction is properly challenged under Rule 12(b)(2), the jurisdictional question is to be resolved by the judge, with the burden on the plaintiff.” Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 396 (4th Cir.2003). At this stage of the litigation, the Plaintiff must establish a prima facie case for the exercise of personal jurisdiction by pointing to relevant evidence and affidavits. New Wellington Financial Corp. v. Flagship Resort Development Corp., 416 F.3d 290, 294 (4th Cir.2005). “A federal district court may only exercise personal jurisdiction over a foreign [resident] if such jurisdiction is authorized by the long-arm statute of the state in which it sits and application of the long-arm statute is consistent with the due process clause of the Fourteenth Amendment.” Consulting Eng'rs Corp. v. Geometric Ltd., 561 F.3d 273, 277 (4th Cir.2009). In addition, maintaining the lawsuit in this forum must be consistent with the traditional notions of fair play embodied in the due process clause. Id., at 278.
The Plaintiff sought to establish jurisdiction alternatively based on Federal Rule of Civil Procedure 4(k)(2). That Rule provides that where a claim arises under federal law, serving a summons on a defendant will establish personal jurisdiction if the defendant is not subject to jurisdiction in any state court and exercising jurisdiction would be consistent with the United States Constitution and laws. Saudi v. Northrop Grumman Corp., 427 F.3d 271, 275 (4th Cir.2005), certiorari denied 549 U.S. 820, 127 S.Ct. 115, 166 L.Ed.2d 34 (2006) ().
Section 1406(a) of Title 28 provides that a district court in which a case is filed laying venue in the wrong district “ shall dismiss, or if it be in the interest of justice, transfer such case to any district ... in which it could have been brought.” (emphasis provided). Before the Magistrate Judge, the Plaintiff argued that transfer would not be appropriate.
The Magistrate Judge found that the Plaintiff did not carry her burden to show a prima facie case of personal jurisdiction over Defendants Fillmore and Noriyuki in North Carolina.
[T]he Complaint as well as the evidentiary material submitted outside the initial pleadings reveals that [Fillmore and Noriyuki] have had no contacts with North Carolina. Instead, it appears that plaintiff is relying on the contacts that these defendants' distributor, [Roman], has had with the forum state, which has averred that it has sold no allegedly infringing guitars or other allegedly infringing goods to residents of North Carolina.
[Doc. 45, at 10]. The Magistrate Judge also considered and rejected the Plaintiff's argument that the maintenance by Roman of a website constituted sufficient contacts for personal jurisdiction over Fillmore and Noriyuki. [ Id., at 10-16].
The Plaintiff's alternative argument for personal jurisdiction pursuant to Rule 4(k)(2) was rejected because the Defendants conceded that personal...
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