Bakewell v. Streaming Solutions LLC

• Court: District Court, D. Nevada
• Decided: December 21, 2022
• Docket: 2:22-cv-00911
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * *

7 DONALD BAKEWELL, Case No. 2:22-CV-911 JCM (DJA)

8 Plaintiff(s), ORDER

9 v.

10 STREAMING SOLUTIONS LLC,

11 Defendant(s).

12 13 Presently before the court is defendant Streaming Solutions LLC (“defendant”)’s motion 14 to dismiss plaintiff Donald Bakewell (“plaintiff”)’s complaint. (ECF No. 8). Plaintiff filed a 15 response (ECF No. 14), and defendant filed a late reply (ECF No. 15). 16 I. Background 17 Plaintiff, a Nevada resident, is an authorized reseller of a television streaming device 18 manufactured in China known as the “Octastream.” (ECF No. 1). As alleged in the complaint, 19 plaintiff entered into an agreement with the company that produces the device that allows him to 20 make use of the trademark and resell the devices for profit. (Id.) Pursuant to this agreement, he 21 sold the devices through several online marketplaces, including Amazon. (Id.) The complaint is 22 unclear as to the exact contours of plaintiff and Amazon’s relationship, but it seems to cursorily 23 allege that there is some sort of contract in which Amazon has agreed to list plaintiff’s products 24 on its website for resale. (Id.) 25 Plaintiff goes on to claim that defendant—a California corporation that is also an 26 authorized reseller of the Octastream—applied for a trademark registration from the U.S. Patent 27 and Trademark Office (“PTO”) for the mark “OCTASTREAM.” (Id.) The PTO granted that 28 application and issued the mark even though, as plaintiff alleges, the Chinese parent company 1 that manufactures the devices owns the mark, not defendant. (Id.) Armed with this (fraudulent) 2 registration, defendant then contacted Amazon as the “rights owner” of the trademark and 3 requested removal of plaintiff’s products. (Id.) Amazon complied with that request, and, 4 according to plaintiff, has refused to restore his listings despite proof of his license to sell the 5 Octastream causing him to lose at least $100,000 in sales. (Id.) 6 Plaintiff now brings this suit against defendant seeking a declaration of non-infringement, 7 cancellation of defendant’s mark, damages related to fraudulent obtainment of a trademark, 8 intentional interference with contractual relations, and a corporate defamation claim. (Id.) 9 Defendant moves to dismiss the suit due to lack of personal jurisdiction. (ECF No. 8). 10 II. Legal Standard 11 Federal Rule of Civil Procedure 12(b)(2) allows a defendant to move to dismiss a 12 complaint for lack of personal jurisdiction. See Fed. R. Civ. P. 12(b)(2). To avoid dismissal 13 under Rule 12(b)(2), a plaintiff bears the burden of demonstrating that its allegations establish a 14 prima facie case for personal jurisdiction. See Boschetto v. Hansing, 539 F.3d 1011, 1015 (9th 15 Cir. 2008). Allegations in the complaint must be taken as true, and factual disputes should be 16 construed in the plaintiff’s favor. Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1019 (9th 17 Cir. 2002). 18 Personal jurisdiction is a two-prong analysis. First, an assertion of personal jurisdiction 19 must comport with due process. See Wash. Shoe Co. v. A-Z Sporting Goods Inc., 704 F.3d 668, 20 672 (9th Cir. 2012). Next, “[w]hen no federal statute governs personal jurisdiction, the district 21 court applies the law of the forum state.” Boschetto, 539 F.3d at 1015; see also Panavision Int’l 22 L.P. v. Toeppen, 141 F.3d 1316, 1320 (9th Cir. 1998). However, Nevada’s “long-arm” statute 23 applies to the full extent permitted by the due process clause, so the inquiry is the same, and the 24 court need only address federal due process standards. See Arbella Mut. Ins. Co. v. Eighth 25 Judicial Dist. Court, 134 P.3d 710, 712 (Nev. 2006) (citing Nev. Rev. Stat. § 14.065); see also 26 Boschetto, 539 F.3d at 1015. 27 28 1 Two categories of personal jurisdiction exist: (1) general jurisdiction and (2) specific 2 jurisdiction. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 413–15 3 (1984); see also LSI Indus., Inc. v. Hubbell Lighting, Inc., 232 F.3d 1369, 1375 (Fed. Cir. 2000). 4 “[T]he place of incorporation and principal place of business are paradigm bases for 5 general jurisdiction.” Daimler AG v. Bauman, 571 U.S. 117, 137 (quotation marks and citation 6 omitted). A court may also assert general jurisdiction over a defendant when the plaintiff shows 7 that “the defendant has sufficient contacts that approximate physical presence.” In re W. States 8 Wholesale Nat. Gas Litig., 605 F. Supp. 2d 1118, 1131 (D. Nev. 2009) (internal quotation marks 9 and citations omitted). In other words, the defendant’s affiliations with the forum state must be 10 so “continuous and systematic” so as to render the defendant essentially “at home” in that forum. 11 See Daimler AG v. Bauman, 571 U.S. 117, 137 (2014). General jurisdiction is appropriate even 12 if the defendant’s continuous and systematic ties to the forum state are unrelated to the litigation. 13 See Tuazon v. R.J. Reynolds Tobacco Co., 433 F.3d 1163, 1171 (9th Cir. 2006) (citing 14 Helicopteros Nacionales de Colombia, S.A., 466 U.S. at 414–16). 15 Alternatively, the Ninth Circuit has established a three-prong test for analyzing an 16 assertion of specific personal jurisdiction: 17 (1) The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or 18 resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the 19 forum, thereby invoking the benefits and protections of its laws; 20 21 (2) the claim must be one which arises out of or relates to the defendant’s forum-related activities; and 22

23 (3) the exercise of jurisdiction must comport with fair play and 24 substantial justice, i.e., it must be reasonable. 25 Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 2004). 26 The Ninth Circuit treats purposeful availment and purposeful direction as separate 27 methods of analysis. Wash. Shoe Co. 704 F.3d at 672. Purposeful availment is for suits 28 1 sounding in contract, whereas purposeful direction is for suits sounding in tort. Schwarzenegger, 2 374. F.3d at 802 (citing Dole Food Co. v. Watts, 303 F.3d 1104, 1111 (9th Cir. 2002)). 3 III. Discussion 4 The clerk of this court has previously entered a default against defendant. (ECF No. 7). 5 Upon entry of default, factual allegations in the complaint, except those relating to damages, are 6 deemed admitted. See Danning v. Lavine, 572 F.2d 1386, 1388 (9th Cir.1978). “Default does 7 not, however, establish liability. ‘On appeal, the defendant ... is entitled to contest the sufficiency 8 of the complaint and its allegations to support the judgment.’” Id. (quoting Nishimatsu 9 Construction Co. v. Houston National Bank, 515 F.2d 1200, 1206 (5th Cir. 1975)). To that end, 10 a “defaulted defendant also can defend by challenging the jurisdiction of the court to enter 11 judgment against him. Thus, for example, a defendant in default still can challenge the validity of 12 service of process or contest the court's exercise of personal jurisdiction over him.” Tyco Fire & 13 Sec., LLC v. Alcocer, 218 F. App'x 860, 864 (11th Cir. 2007). 14 The parties concede that there is no general personal jurisdiction. Therefore, the court 15 considers only specific jurisdiction. 16 “Copyright and trademark infringement claims, which sound in tort” are subject to the 17 purposeful direction analysis. AMA Multimedia, LLC v. Wanat, 970 F.3d 1201, 1208 (9th Cir. 18 2020). Under the purposeful direction analysis, to satisfy the first prong of specific personal 19 jurisdiction, the defendant must have “(1) committed an intentional act, (2) expressly aimed at 20 the forum state, (3) causing harm that the defendant knows is likely to be suffered in the forum 21 state.” Wash Shoe Co., 704 F.3d at 673 (quoting Mavrix Photo, Inc. v. Brand Techs., Inc., 647 22 F.3d 1218, 1228 (9th Cir. 2011) (internal quotation marks omitted)). 23 Defendant argues that nothing in the complaint indicates it expressly aimed any of its 24 conduct at Nevada. (ECF No. 8). Plaintiff, on the other hand, argues that because defendant 25 contacted Amazon and “intentionally interfered” with his contract, defendant should be subject 26 to personal jurisdiction in Nevada—the state where he felt the effect of defendant’s action. (ECF 27 No. 14). 28 1 Plaintiff’s theory conflates defendant and Amazon. He is not suing Amazon for 2 removing his products. He is suing a California corporation for a series of tort and trademark- 3 adjacent claims stemming from allegedly (1) obtaining a fraudulent trademark registration and 4 (2) using that fraudulent registration to have Amazon remove Octastream listings from its 5 website. 6 Thus, cases like Sessa v. Ancestry.com Operations Inc., 561 F.Supp.3d 1008 (D. Nev. 7 2021), are inapposite. Amazon’s conduct is not in question, and whether it does business in 8 Nevada is irrelevant. The injury complained of here is not that Amazon removed plaintiff’s 9 listings; it is that defendant lied to Amazon, harming plaintiff. The question is whether, in doing 10 so, defendant aimed its conduct specifically toward Nevada. 11 The Supreme Court has held that “personal jurisdiction analysis must focus on the 12 defendant's contacts with the forum state, not the defendant's contacts with a resident of the 13 forum.” See Picot v. Weston, 780 F.3d 1206, 1214 (9th Cir. 2015) (analyzing Walden v. Fiore, 14 571 U.S. 277 (2014)). Here, plaintiff does not allege that defendant does business in Nevada. 15 He does not allege that defendant ever entered Nevada. He does not allege that defendant even 16 knew he was a Nevada resident. He simply alleges that because defendant contacted Amazon, 17 and the effect of that contact was felt in Nevada, personal jurisdiction is appropriate. 18 That analysis is exactly the kind of analysis that the Ninth Circuit and Supreme Court 19 have cautioned against. “The proper question is not where the plaintiff experienced a particular 20 injury or effect but whether the defendant’s conduct connects him to the forum in a meaningful 21 way.” Walden, 871 U.S. at 1125. Defendant has no ties to Nevada other than the fact that 22 plaintiff happened to reside here. The Supreme Court is clear: “[Defendant]'s relevant conduct 23 occurred entirely in California, and the mere fact that his conduct affected plaintiffs with 24 connections to the forum State does not suffice to authorize jurisdiction.” Id. at 1126. 25 Defendant has not expressly aimed its conduct at Nevada. This court lacks personal 26 jurisdiction over it. 27 . . . 28 . . . 1] IV. Conclusion 2 Accordingly, 3 IT IS HEREBY ORDERED, ADJUDGED, and DECREED that defendant’s motion to dismiss (ECF No. 8) be, and the same hereby is, GRANTED. 5 DATED December 21, 2022. 6 ee itas C. Aalan 7 UNITED, STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

es C. Mahan District Judge -6-