Tony Hong v. Recreational Equipment, Inc. et al, No. 2:2018cv08519 - Document 37 (C.D. Cal. 2019)
Court Description: ORDER GRANTING DEFENDANTS MOTIONS TO DISMISS by Judge Dean D. Pregerson: Defendants motions to dismiss are GRANTED, for lack of personal jurisdiction, 22 , 23 . ( MD JS-6. Case Terminated ) (shb)
Download PDF
<![CDATA[
Tony Hong v. Recreational Equipment, Inc. et al Doc. 37 1 2 O JS-6 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 TONY HONG, 12 Plaintiff, 13 14 v. RECREATIONAL EQUIPMENT, INC., 15 Defendants. 16 ___________________________ ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 18-08519 DDP (SSx) ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS [Dkt. 22, 23] 17 Presently before the court are two motions to dismiss or, in 18 the alternative, transfer venue, filed separately by Defendants 19 Recreational Equipment, Inc. (“REI”) and Samuel Krieg (“Krieg”), an 20 individual. Having considered the submissions of the parties and 21 heard oral argument, the court grants the motions and adopts the 22 following Order. 23 I. Background 24 Plaintiff, a resident of Los Angeles, California, created 25 “Tree Rings,” an illustration depicting the tree rings of a tree 26 trunk. (Complaint ¶ 7.) Plaintiff obtained a copyright 27 registration for Tree Rings. (Id.) Krieg, a resident of Idaho, 28 creates and sells specialty climbing bags. (Complaint ¶ 10.) Dockets.Justia.com 1 Krieg allegedly sold climbing bags bearing some variant of 2 Plaintiff’s Tree Rings design, both through Krieg’s own website and 3 to Defendant REI, which in turn sold the bags at its own retail 4 stores and on its website. 5 alleges copyright causes of action against both Krieg and REI. 6 (Id. ¶¶ 11-12.) Plaintiff’s Complaint Plaintiff filed his Complaint on October 3, 2018. Ninety-two 7 days later, on January 3, 2019, Plaintiff personally served the 8 Complaint on REI. 9 Plaintiff to show cause, no later than February 8, why this action 10 should not be dismissed for lack of prosecution against Krieg, who 11 had not yet been served. 12 would consider proof of service upon Krieg as an adequate response. 13 (Id.) 14 Plaintiff filed a proof of service indicating that he had served 15 Krieg by mail in Idaho on February 1. 16 On February 1, 2019, this Court ordered (Dkt. 17.) The court stated that it In accordance with this Court’s Order, on February 7, 2019, (Dkt. 18.) Defendants now separately move to dismiss the Complaint for 17 lack of proper service and lack of personal jurisdiction. 18 alternative, Defendants ask that this court transfer this matter to 19 the District of Idaho. 20 II. In the Discussion 21 A. 22 A party may seek to dismiss a pleading for insufficient Insufficient Service 23 service of process. 24 challenge to the validity of service of process, the plaintiff 25 bears the burden of demonstrating effective service. 26 May, 383 F.3d 798, 801 (9th Cir. 2004). 27 must serve a complaint within ninety days after the complaint is 28 filed. Fed. R. Civ. P. 12(b)(5). Fed. R. Civ. P. 4(m). In the face of a Brockmeyer v. Generally, a plaintiff Plaintiff here, however, served 2 1 Defendant REI one day late.1 2 be dismissed. 3 extend time for service under Rule 4(m).” 4 F.3d 1038, 1041 (9th Cir. 2007). 5 prejudice from the one day delay in service, and this Court 6 therefore declines to dismiss Plaintiff’s claims against REI for 7 failure to timely serve. 8 9 Thus, REI argues, the Complaint must District courts, however, “have broad discretion to Efaw v. Williams, 473 REI appears to have suffered no Krieg, like REI, argues that the Complaint should be dismissed as to him because he was not served within ninety days of the 10 filing of the Complaint. 11 ninety day deadline, also provides that courts may, after the 12 expiration of the ninety day period, order that service be made 13 within a specific time. 14 Rule 4(m), this Court’s February 1 Order to Show Cause required 15 Plaintiff to file a proof of service before February 8.2 16 did so. 17 as to Krieg for failure to timely serve. 18 However, Rule 4(m), which imposes the Fed. R. Civ. P. 4(m). Consistent with Plaintiff Accordingly, this Court declines to dismiss the Complaint Krieg raises an additional argument that, even putting aside 19 timeliness issues, service on him was defective. 20 Plaintiff failed to serve him as required under Rule 4(e)(2), which 21 does not permit service by mail. 22 Plaintiff, however, does not claim to have served Krieg in 23 accordance with Rule 4(e)(2). Krieg argues that Fed. R. Civ. P. 4(e)(2). Rather, Plaintiff claims to have 24 1 25 26 27 28 The ninetieth day was January 1, 2019, a holiday. R. Civ. P. 26(a)(1)(C). 2 See Fed. Courts are somewhat divided on the question whether mailed service pursuant to California Code of Civil Procedure § 415.40 is effective on the date of mailing or ten days thereafter. See, e.g., Friedman v. Conair Corp., No. CV11-04156 JAK, 2011 WL 13220461, at *2-3 (C.D. Cal. July 12, 2011). 3 1 served Krieg pursuant to Rule 4(e)(1), which provides that service 2 can be made by “following state law for serving a summons in an 3 action brought in courts of general jurisdiction in the state where 4 the district court is located . . . .” 5 Under California Code of Civil Procedure § 415.40, “[a] summons may 6 be served on a person outside [California] . . . by sending a copy 7 of the summons and of the complaint to the person to be served by 8 first-class mail, postage prepaid, requiring a return receipt.” 9 Cal. Code Civ. Pro. § 415.40. 10 Fed. R. Civ. P. 4(e)(1). Krieg does not appear to dispute that Plaintiff complied with 11 Section 415.40. 12 nevertheless defective because Plaintiff failed to comply with the 13 requirements of California Code of Civil Procedure § 415.30, which 14 requires that mailed service on an individual within California 15 also include an acknowledgment of receipt. 16 415.30. 17 authority for the proposition that a plaintiff who properly 18 executes service under Section 415.40 must also meet the 19 requirements of Section 415.30. 20 have reiterated that “with service by mail on a defendant outside 21 the state, no executed acknowledgment of receipt is required.” 22 Bolkiah v. Superior Court, 74 Cal. App. 4th 984, 1000 (1999). 23 There is no deficiency in service warranting dismissal. Instead, Krieg argues that service was Cal. Code Civ. Pro. § This Court is not aware of, nor does Krieg cite, any To the contrary, California courts 24 B. 25 Both Defendants also seek to dismiss the Complaint for lack of Personal Jurisdiction 26 personal jurisdiction. 27 personal jurisdiction to the extent authorized by the law of the 28 state in which they sit. District courts have the power to exercise Fed. R. Civ. P. 4(k)(1)(A); Panavision 4 1 Int’l, L.P. v. Toeppen, 141 F.3d 1316, 1320 (9th Cir. 1998). When 2 a defendant moves to dismiss under Federal Rule of Civil Procedure 3 12(b)(2), the plaintiff bears the burden of demonstrating that the 4 court may properly exercise personal jurisdiction over the 5 defendant. Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1154 (9th Cir. 6 2006); Bohara v. Backus Hosp. Med. Benefit Plan, 390 F.Supp.2d 951, 7 961 (CD. Cal. 2005) (citing Ziegler v. Indian River Cty., 64 F.3d 8 470, 473 (9th Cir. 1995)). 9 authorizes personal jurisdiction coextensive with the Due Process California’s long-arm statute 10 Clause of the United States Constitution. 11 Thus, this Court can exercise personal jurisdiction over a 12 nonresident defendant when that defendant has “at least ‘minimum 13 contacts’ with the relevant forum such that the exercise of 14 jurisdiction ‘does not offend traditional notions of fair play and 15 substantial justice.’”; see also Schwarzenegger v. Fred Martin 16 Motor Co., 374 F.3d 797, 800-01 (9th Cir. 2004) (citing Int’l Shoe 17 Co. v. Wash., 326 U.S. 310, 316 (1945)). 18 such a quality and nature that the defendants could reasonably 19 expect to be “haled into court there.” 20 Woodson, 444 U.S. 286, 297 (1980). 21 Cal. Civ. Code § 410.10. The contacts must be of World-Wide Volkswagen v. A district court may exercise either general or specific 22 personal jurisdiction over non-resident defendants. 23 Ins. Corp. v. British-Am. Ins. Co., 828 F.2d 1439, 1442 (9th Cir. 24 1987). A court may exercise general jurisdiction when the 25 defendant’s activities within the forum state are so “continuous 26 and systematic” as to render them essentially at home in the forum 27 state. 28 915, 919 (2011). Fed. Deposit Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. A court may exercise specific jurisdiction when 5 1 there is an affiliation between the forum and the underlying 2 controversy, i.e., an activity that takes place in the forum state 3 and is therefore subject to the state’s regulation. Walden v. 4 Fiore, 571 U.S. 277, 284-85 (2014). 5 Here, Plaintiff argues that this Court has specific 6 jurisdiction over both Defendants. 7 5; Opposition to REI motion at 8-12). 8 a three prong test when analyzing specific jurisdiction: 9 (Opposition to Krieg motion at Courts in this circuit apply (1) the non-resident defendant must purposefully direct his activities to or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) the claim must be one which arises out of or relates to the defendant's forum-related activities; and (3) the exercise of jurisdiction must comport with fair play and substantial justice. 10 11 12 13 14 Schwarzenegger, 374 F.3d at 802. 15 first two prongs of the test, the burden shifts to the defendant to 16 show that exercising personal jurisdiction would be unreasonable. 17 Id. 18 Once the plaintiff satisfies the Under the first prong of the specific jurisdiction test, the 19 plaintiff must show that the defendant purposefully directed his 20 activities toward the forum state or purposefully availed himself 21 of the privilege of conducting activities there. 22 direction “requires that the defendant ... have (1) committed an 23 intentional act; (2) expressly aimed at the forum state; and (3) 24 causing harm that the defendant knows is likely to be suffered in 25 the forum state.” 26 F.3d 1104, 1111 (9th Cir. 2002)). 27 demonstrated that Krieg, a resident of Idaho, purposefully directed 28 his activities toward California. Id. Purposeful Id. at 803 (quoting Dole Food Co. v. Watts, 303 Here, Plaintiff has not Although this Court must take 6 1 Plaintiff’s uncontroverted allegations as true and resolve all 2 conflicts in affidavits in Plaintiff’s favor, Plaintiff cannot 3 “simply rest on the bare allegations of its complaint.” 4 Schwarzenegger, 374 F.3d at 800. 5 one, an allegation that a defendant knowingly infringed the 6 copyright of a known forum resident does not, without more, support 7 the exercise of specific jurisdiction. 8 Acerchem Int’l, Inc., 674 F.3d 1064, 1069-70 (9th Cir. 2017). 9 Although the Complaint alleges that Krieg intentionally infringed In a copyright case such as this Axiom Foods, Inc. v. 10 upon Plaintiff’s copyright, Krieg’s declaration states that he 11 encountered the design on the internet and that it was presented as 12 “copyright free,” unaccompanied by any copyright management 13 information. 14 evidence to the contrary. 15 (Krieg Decl. ¶ 5.) Plaintiff has submitted no The only other allegations of purposeful direction cited by 16 Plaintiff are (1) that Krieg’s website does not specifically 17 restrict California purchasers from completing online transactions, 18 (2) Krieg sold to REI, which itself has physical locations in 19 California, and (3) some of Krieg’s designs bear “California 20 motifs.” 21 insufficient to constitute purposeful direction. 22 a product into the stream of commerce, without more, is not an act 23 purposefully directed toward a forum state[,]” even where the 24 defendant is aware “that the stream of commerce may or will sweep 25 the product into the forum state . . . .” 26 Wartsila N. Am., Inc., 485 F.3d 450, 459 (9th Cir. 2007); see also 27 Mavrix Photo, Inc. v. Brand Techs., Inc., 647 F.3d 1218, 1231 (9th 28 Cir. 2011) (“Not all material placed on the Internet is, solely by (Mot. at 9.) Even if true, these allegations are 7 “The placement of Holland Am. Line Inc. v. 1 virtue of its universal accessibility, expressly aimed at every 2 state in which it is accessed.”). 3 Both parties’ arguments are less developed with respect to 4 REI, a Washington resident. Plaintiff, for his part, largely 5 repeats the unconvincing arguments discussed above. 6 significant additional allegation is that REI has several retail 7 locations within California. 8 however, that REI ever displayed or sold a product bearing 9 Plaintiff’s copyrighted image in any of its California stores.3 10 Thus, even assuming that REI’s physical presence in California 11 constitutes purposeful availment of the privilege of conducting 12 business in California, Plaintiff has failed to make a prima facie 13 showing that his claim arises out of REI’s California-related 14 activities and, therefore, that this court can exercise specific 15 jurisdiction over REI. The only There is no evidence or allegation, 16 17 18 19 20 21 22 23 24 3 25 26 27 28 Mavrix Photo is distinguishable. There, a non-resident allegedly published infringing photos relating to the “Californiacentered celebrity and entertainment industries” on a website that displayed advertisements directed to Californians. As stated above, however, “[n]ot all material placed on the Internet is, solely by virtue of its universal accessibility, expressly aimed at every state in which it is accessed.” Mavrix Photo, 647 F.3d at 1231. 8 1 2 3 III. Conclusion For the reasons stated above, Defendants’ motions to dismiss are GRANTED, for lack of personal jurisdiction.4 5 4 5 6 7 8 IT IS SO ORDERED. 9 10 11 Dated: May 15, 2019 DEAN D. PREGERSON United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 4 24 25 26 27 This court has “broad discretion” over Plaintiff’s request for jurisdictional discovery. Data Disc, Inc. v. Sys. Tech. Assocs., Inc., 557 F.2d 1280, 1285 n.1 (9th Cir. 1977). Although discovery may be appropriate in cases where relevant facts are disputed, this does not appear to be such a case. Id. Accordingly, Plaintiffs’ request for jurisdictional discovery is denied. 5 28 Having dismissed the Complaint, the court need not and does not address defendants’ arguments regarding transfer of venue. 9
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
