1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DADBOD APPAREL LLC, No. 2:24-cv-00188 DJC AC 12 Plaintiff, 13 v. ORDER 14 HILDAWN DESIGN LLC, et al., 15 Defendants. 16 17 Plaintiff Dadbod Apparel LLC (“Dadbod”) brings the present suit alleging that 18 Defendants Hildawn Design LLC (“Hildawn”) and Hilary D. Wertin misused trademarks 19 to interfere with Plaintiff’s sale of various goods. Plaintiff alleges that Defendants 20 utilized their ownership of the “GIRLDAD” trademark to initiate takedown actions 21 against several of Plaintiff’s products on online retailers Amazon and Etsy despite 22 those products not infringing on Defendants’ trademark. Defendants now bring a 23 Motion to Dismiss for Lack of Personal Jurisdiction under Federal Rule of Civil 24 Procedure 12(b)(2) or, in the alternative, Motion to Transfer Venue under Federal Rule 25 of Civil Procedure 12(b)(3). (ECF No. 7.) 26 For the reasons stated below, the Court grants Defendants’ Motion to Dismiss 27 for Lack of Personal Jurisdiction. 28 //// 1 BACKGROUND 2 This action originates mainly from Plaintiff’s sale of “a line of apparel and 3 accessories bearing the purely ornamental and decorative slogan ‘Support Your Local 4 Girl Dad’ . . . .” (Compl. (ECF No. 1). ¶16.) On June 23, 2023, Plaintiff received a 5 Cease and Desist Letter from Defendants which asserted that Plaintiff was selling 6 products in violation of Defendants’ GIRLDAD trademark. (Id. ¶ 18; see Cease and 7 Desist Letter (ECF No. 1-1).) After Plaintiff sought clarification, Defendants specified 8 that the alleged violation of the GIRLDAD trademark was “the parenthetical reference 9 to ‘GIRL DAD’ when describing the goods being sold on the Dadbod Apparel 10 website.” (Id. ¶¶ 19–20; see 7/10/23 Email (ECF No. 1-2); 8/23/23 Email (ECF No. 1- 11 3).) Plaintiff claims to have removed the “(Girl Dad) references from its website and 12 various online stores” but on November 13, 2023, Defendants initiated takedown 13 actions against several of Plaintiff’s product listings on Amazon and Etsy based on 14 alleged infringement of Defendants’ trademark. (Compl. ¶¶ 21, 24.) Defendants 15 allegedly initiated further takedown actions on December 15, 2023, December 19, 16 2023, December 27, 2023, December 29, 2023, and January 4, 2023. (Id. ¶ 24.) 17 “Defendants’ take-down actions focused exclusively on Plaintiff’s apparel bearing the 18 purely ornamental and decorative slogan ‘Support Your Local Girl Dad.’” (Id.) As a 19 result of these actions, “Amazon and Etsy removed from Plaintiff’s storefronts all 20 goods bearing the purely ornamental and decorative slogan “Support Your Local Girl 21 Dad.’” (Id. ¶ 29.) 22 Based on the allegations above, Plaintiff brought the present suit seeking a 23 declaratory judgment of non-infringement of Defendants’ mark as well as bringing 24 claims for intentional interference with prospective economic advantage and for 25 violation of the Sherman Act. (Id. ¶¶ 33–55.) 26 //// 27 //// 28 //// 1 MOTION TO DISMISS 2 I. Defendant’s Motion 3 Defendants presently bring a Motion to Dismiss under Federal Rule of Civil 4 Procedure 12(b)(2). (Defs.’ Mot. (ECF No. 7-1).) Defendants argue that the action 5 should be dismissed for lack of personal jurisdiction as they are not subject to general 6 jurisdiction given that Defendant Wertin does not reside in California and Defendant 7 Hildawn is not incorporated in California or have its principal place of business there. 8 (Id. at 6.) Defendants also argue they are not subject to specific jurisdiction as 9 Defendants did not avail themselves of the privileges of conducting activities in 10 California or direct their conduct to that forum and because Plaintiff’s claims do not 11 arise or relate to Defendants’ activities in California. (Id. at 9–10.) This motion is fully 12 briefed. (Pl.’s Opp’n (ECF No. 17); Defs.’ Reply (ECF No. 18)). 13 II. Legal Standard 14 A. Personal Jurisdiction Generally 15 Rule 12(b)(2) allows a party to assert a lack of personal jurisdiction as a defense 16 and request dismissal of the suit. Fed. R. Civ. P. 12(b)(2). “Although the defendant is 17 the moving party on a motion to dismiss [for lack of personal jurisdiction], the plaintiff 18 bears the burden of establishing that jurisdiction exists.” Rio Props., Inc. v. Rio Int'l 19 Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002). “[I]n the absence of an evidentiary 20 hearing, the plaintiff need only make ’a prima facie showing of jurisdictional facts to 21 withstand the motion to dismiss.’” Brayton Purcell LLP v. Recordon & Recordon, 606 22 F.3d 1124, 1127 (9th Cir. 2010) (quoting Pebble Beach Co. v. Caddy, 453 F.3d 1151, 23 1154 (9th Cir. 2006)). “The court may consider evidence presented in affidavits to 24 assist it in its determination and may order discovery on the jurisdictional issues.” Doe 25 v. Unocal Corp., 248 F.3d 915, 922 (9th Cir. 2001), abrogated on other grounds by 26 Daimler, 571 U.S. at 126 (citing Data Disc, Inc. v. Systems Technology Assoc., Inc., 557 27 F.2d 1280, 1285 (9th Cir. 1977)). Facts presented by the plaintiff are taken as true for 28 the purposes of a 12(b)(2) motion to dismiss, except where contradicted by an 1 affidavit, and any “conflicts between the facts contained in the parties' affidavits must 2 be resolved in [plaintiff's] favor for purposes of deciding whether a prima facie case 3 for personal jurisdiction exists.” AT&T v. Compagnie Bruxelles Lambert, 94 F.3d 586, 4 588 (9th Cir. 1996) (citations omitted); see Mavrix Photo, Inc. v. Brand Techs., Inc., 647 5 F.3d 1218, 1223 (9th Cir. 2011) (“We may not assume the truth of allegations in a 6 pleading which are contradicted by affidavit, but we resolve factual disputes in the 7 plaintiff's favor.” (citations and internal quotations removed)). 8 “In exercising personal jurisdiction, a federal district court is constrained by the 9 Fourteenth Amendment's Due Process Clause and the long-arm statute of the state in 10 which it sits.” Impossible Foods Inc. v. Impossible X LLC, 80 F.4th 1079, 1086 (9th Cir. 11 2023). California’s long-arm statute allows the exercise of personal jurisdiction to the 12 extent allowed by the U.S. Constitution. See Cal. Code Civ. Proc. § 410.10. 13 Accordingly, the Court need only assess whether the exercise of jurisdiction in this 14 case comports with due process. 15 B. General and Specific Jurisdiction 16 “The Due Process Clause permits the exercise of personal jurisdiction if the 17 defendant has sufficient minimum contacts with the forum state such that the 18 maintenance of the suit does not offend traditional notions of fair play and substantial 19 justice.” Impossible Foods, 80 F.4th at 1086. Courts may have general or specific 20 jurisdiction over an entity depending on the nature and extent of that entity’s contact 21 with the forum state. A court may exercise general jurisdiction over a corporation in a 22 state where the corporation is “at home,” which is the case when its “affiliations . . . are 23 so ‘continuous and systematic’ as to render [it] essentially at home in the forum State.” 24 Daimler, 571 U.S. at 119 (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 25 564 U.S. 915, 919 (2011)). This is generally where the corporation is incorporated and 26 where it maintains its principal place of business. Id. As to an individual defendant, 27 general jurisdiction is appropriate where they are domiciled which is where they 28 reside with the intent to remain. Daimler AG v. Bauman, 571 U.S. 117, 125 (2014); 1 Kanter v.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DADBOD APPAREL LLC, No. 2:24-cv-00188 DJC AC 12 Plaintiff, 13 v. ORDER 14 HILDAWN DESIGN LLC, et al., 15 Defendants. 16 17 Plaintiff Dadbod Apparel LLC (“Dadbod”) brings the present suit alleging that 18 Defendants Hildawn Design LLC (“Hildawn”) and Hilary D. Wertin misused trademarks 19 to interfere with Plaintiff’s sale of various goods. Plaintiff alleges that Defendants 20 utilized their ownership of the “GIRLDAD” trademark to initiate takedown actions 21 against several of Plaintiff’s products on online retailers Amazon and Etsy despite 22 those products not infringing on Defendants’ trademark. Defendants now bring a 23 Motion to Dismiss for Lack of Personal Jurisdiction under Federal Rule of Civil 24 Procedure 12(b)(2) or, in the alternative, Motion to Transfer Venue under Federal Rule 25 of Civil Procedure 12(b)(3). (ECF No. 7.) 26 For the reasons stated below, the Court grants Defendants’ Motion to Dismiss 27 for Lack of Personal Jurisdiction. 28 //// 1 BACKGROUND 2 This action originates mainly from Plaintiff’s sale of “a line of apparel and 3 accessories bearing the purely ornamental and decorative slogan ‘Support Your Local 4 Girl Dad’ . . . .” (Compl. (ECF No. 1). ¶16.) On June 23, 2023, Plaintiff received a 5 Cease and Desist Letter from Defendants which asserted that Plaintiff was selling 6 products in violation of Defendants’ GIRLDAD trademark. (Id. ¶ 18; see Cease and 7 Desist Letter (ECF No. 1-1).) After Plaintiff sought clarification, Defendants specified 8 that the alleged violation of the GIRLDAD trademark was “the parenthetical reference 9 to ‘GIRL DAD’ when describing the goods being sold on the Dadbod Apparel 10 website.” (Id. ¶¶ 19–20; see 7/10/23 Email (ECF No. 1-2); 8/23/23 Email (ECF No. 1- 11 3).) Plaintiff claims to have removed the “(Girl Dad) references from its website and 12 various online stores” but on November 13, 2023, Defendants initiated takedown 13 actions against several of Plaintiff’s product listings on Amazon and Etsy based on 14 alleged infringement of Defendants’ trademark. (Compl. ¶¶ 21, 24.) Defendants 15 allegedly initiated further takedown actions on December 15, 2023, December 19, 16 2023, December 27, 2023, December 29, 2023, and January 4, 2023. (Id. ¶ 24.) 17 “Defendants’ take-down actions focused exclusively on Plaintiff’s apparel bearing the 18 purely ornamental and decorative slogan ‘Support Your Local Girl Dad.’” (Id.) As a 19 result of these actions, “Amazon and Etsy removed from Plaintiff’s storefronts all 20 goods bearing the purely ornamental and decorative slogan “Support Your Local Girl 21 Dad.’” (Id. ¶ 29.) 22 Based on the allegations above, Plaintiff brought the present suit seeking a 23 declaratory judgment of non-infringement of Defendants’ mark as well as bringing 24 claims for intentional interference with prospective economic advantage and for 25 violation of the Sherman Act. (Id. ¶¶ 33–55.) 26 //// 27 //// 28 //// 1 MOTION TO DISMISS 2 I. Defendant’s Motion 3 Defendants presently bring a Motion to Dismiss under Federal Rule of Civil 4 Procedure 12(b)(2). (Defs.’ Mot. (ECF No. 7-1).) Defendants argue that the action 5 should be dismissed for lack of personal jurisdiction as they are not subject to general 6 jurisdiction given that Defendant Wertin does not reside in California and Defendant 7 Hildawn is not incorporated in California or have its principal place of business there. 8 (Id. at 6.) Defendants also argue they are not subject to specific jurisdiction as 9 Defendants did not avail themselves of the privileges of conducting activities in 10 California or direct their conduct to that forum and because Plaintiff’s claims do not 11 arise or relate to Defendants’ activities in California. (Id. at 9–10.) This motion is fully 12 briefed. (Pl.’s Opp’n (ECF No. 17); Defs.’ Reply (ECF No. 18)). 13 II. Legal Standard 14 A. Personal Jurisdiction Generally 15 Rule 12(b)(2) allows a party to assert a lack of personal jurisdiction as a defense 16 and request dismissal of the suit. Fed. R. Civ. P. 12(b)(2). “Although the defendant is 17 the moving party on a motion to dismiss [for lack of personal jurisdiction], the plaintiff 18 bears the burden of establishing that jurisdiction exists.” Rio Props., Inc. v. Rio Int'l 19 Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002). “[I]n the absence of an evidentiary 20 hearing, the plaintiff need only make ’a prima facie showing of jurisdictional facts to 21 withstand the motion to dismiss.’” Brayton Purcell LLP v. Recordon & Recordon, 606 22 F.3d 1124, 1127 (9th Cir. 2010) (quoting Pebble Beach Co. v. Caddy, 453 F.3d 1151, 23 1154 (9th Cir. 2006)). “The court may consider evidence presented in affidavits to 24 assist it in its determination and may order discovery on the jurisdictional issues.” Doe 25 v. Unocal Corp., 248 F.3d 915, 922 (9th Cir. 2001), abrogated on other grounds by 26 Daimler, 571 U.S. at 126 (citing Data Disc, Inc. v. Systems Technology Assoc., Inc., 557 27 F.2d 1280, 1285 (9th Cir. 1977)). Facts presented by the plaintiff are taken as true for 28 the purposes of a 12(b)(2) motion to dismiss, except where contradicted by an 1 affidavit, and any “conflicts between the facts contained in the parties' affidavits must 2 be resolved in [plaintiff's] favor for purposes of deciding whether a prima facie case 3 for personal jurisdiction exists.” AT&T v. Compagnie Bruxelles Lambert, 94 F.3d 586, 4 588 (9th Cir. 1996) (citations omitted); see Mavrix Photo, Inc. v. Brand Techs., Inc., 647 5 F.3d 1218, 1223 (9th Cir. 2011) (“We may not assume the truth of allegations in a 6 pleading which are contradicted by affidavit, but we resolve factual disputes in the 7 plaintiff's favor.” (citations and internal quotations removed)). 8 “In exercising personal jurisdiction, a federal district court is constrained by the 9 Fourteenth Amendment's Due Process Clause and the long-arm statute of the state in 10 which it sits.” Impossible Foods Inc. v. Impossible X LLC, 80 F.4th 1079, 1086 (9th Cir. 11 2023). California’s long-arm statute allows the exercise of personal jurisdiction to the 12 extent allowed by the U.S. Constitution. See Cal. Code Civ. Proc. § 410.10. 13 Accordingly, the Court need only assess whether the exercise of jurisdiction in this 14 case comports with due process. 15 B. General and Specific Jurisdiction 16 “The Due Process Clause permits the exercise of personal jurisdiction if the 17 defendant has sufficient minimum contacts with the forum state such that the 18 maintenance of the suit does not offend traditional notions of fair play and substantial 19 justice.” Impossible Foods, 80 F.4th at 1086. Courts may have general or specific 20 jurisdiction over an entity depending on the nature and extent of that entity’s contact 21 with the forum state. A court may exercise general jurisdiction over a corporation in a 22 state where the corporation is “at home,” which is the case when its “affiliations . . . are 23 so ‘continuous and systematic’ as to render [it] essentially at home in the forum State.” 24 Daimler, 571 U.S. at 119 (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 25 564 U.S. 915, 919 (2011)). This is generally where the corporation is incorporated and 26 where it maintains its principal place of business. Id. As to an individual defendant, 27 general jurisdiction is appropriate where they are domiciled which is where they 28 reside with the intent to remain. Daimler AG v. Bauman, 571 U.S. 117, 125 (2014); 1 Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001). Here, Plaintiff does 2 not argue that the Court has general jurisdiction over Defendants and Plaintiff has not 3 alleged facts establishing general jurisdiction would be appropriate over either 4 defendant. (See Opp. at 4 (arguing why the Court has specific jurisdiction).) 5 Where general jurisdiction is lacking, courts may have specific jurisdiction over 6 corporations if there is sufficient contact with the forum state and the claims arise out 7 of that contact. Bristol-Myers Squibb Co. v. Superior Court, 582 U.S. 255, 262 (2017) 8 (“[T]here must be ‘an affiliation between the forum and the underlying controversy, 9 principally, [an] activity or an occurrence that takes place in the forum State and is 10 therefore subject to the State's regulation.’” (quoting Goodyear, 564 U.S. at 919)). In 11 the Ninth Circuit, specific jurisdiction is determined by a three-prong test: “(1) the 12 defendant must either ‘purposefully direct his activities’ toward the forum or 13 ‘purposefully avail[ ] himself of the privileges of conducting activities in the forum’; (2) 14 ‘the claim must be one which arises out of or relates to the defendant's forum-related 15 activities’; and (3) ‘the exercise of jurisdiction must comport with fair play and 16 substantial justice, i.e. it must be reasonable.’” Axiom Foods, Inc. v. Acerchem Int'l, 17 Inc., 874 F.3d 1064, 1068 (9th Cir. 2017) (quoting Dole Food Co., Inc. v. Watts, 18 303 F.3d 1104, 1111 (9th Cir. 2002)). “The plaintiff bears the burden of satisfying the 19 first two prongs of the test” while the burden of the third prong shifts to defendant. 20 Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 2004). 21 1. Purposeful Availment 22 While the first prong of the specific jurisdiction test is often called the 23 “purposeful availment” prong, courts situationally apply either a purposeful availment 24 or purposeful direction analysis. See Yahoo! Inc. v. La Ligue Contre Le Racisme Et 25 L'Antisemitisme, 433 F.3d 1199, 1210 (9th Cir. 2006). The question of whether to 26 apply a purposeful direction or purposeful availment analysis “turns on the nature of 27 the underlying claims.” Impossible Foods, 80 F.4th at 1088 (citing Ayla, LLC v. Alya 28 Skin Pty. Ltd., 11 F.4th 972, 979 (9th Cir. 2021)). While there is no “rigid dividing line 1 between purposeful availment and purposeful direction[,]” purposeful direction is 2 generally preferred when analyzing tort claims as these claims typically involve fact 3 patterns where “a defendant's conduct primarily occurs outside the forum state.” Id. 4 at 1088–89. 5 “To have purposefully availed itself of the privilege of doing business in the 6 forum, a defendant must have performed some type of affirmative conduct which 7 allows or promotes the transaction of business within the forum state.” Boschetto v. 8 Hansing, 539 F.3d 1011, 1016 (9th Cir. 2008) (citations and internal quotations 9 removed). “A showing that a defendant purposefully availed himself of the privilege 10 of doing business in a forum state typically consists of evidence of the defendant's 11 actions in the forum, such as executing or performing a contract there.” 12 Schwarzenegger, 374 F.3d at 802. Likewise, purposeful direction involves intentional 13 contact with the forum state. It is “the defendant's contacts with the forum State itself, 14 not the defendant's contacts with persons who reside there” that are relevant to the 15 inquiry. Walden v. Fiore, 571 U.S. 277, 285 (2014). The defendant’s mere knowledge 16 that the plaintiff resides in the forum state “will not, on its own, support the exercise of 17 specific jurisdiction.” Axiom Foods, 874 F.3d at 1070. However, “a defendant's 18 contacts with the forum State may be intertwined with his transactions or interactions 19 with the plaintiff . . . .” Walden, 571 U.S. at 286. Only purposeful contacts, and not 20 random, fortuitous, or attenuated contacts will give rise to personal jurisdiction. Id. 21 2. Relation of Claim to Forum Activities 22 The claims brought by the plaintiff must arise out of or relate to the defendant’s 23 contacts with the forum in order for the court to exercise jurisdiction. Ford Motor Co. 24 v. Montana Eighth Jud. Dist. Ct., 592 U.S. 351, 361–62 (2021). However, a strict causal 25 relationship is not required to satisfy the relation prong. Id. Rather, there need only 26 be a “connection” between the forum-related activity and the injury claimed. Id. The 27 Ninth Circuit employs a “but for” test to determine whether a plaintiff’s claims arise out 28 of defendant’s forum-related activities. Menken v. Emm, 503 F.3d 1050, 1058 (9th Cir. 1 2007). 2 3. Reasonableness 3 The final prong of the personal jurisdiction analysis examines whether the court 4 exercising jurisdiction would be reasonable. Menken, 503 F.3d at 1058. This 5 determination requires consideration of seven factors: “(1) the extent of the 6 defendants' purposeful interjection into the forum state's affairs; (2) the burden on the 7 defendant of defending in the forum; (3) the extent of conflict with the sovereignty of 8 the defendants' state; (4) the forum state's interest in adjudicating the dispute; (5) the 9 most efficient judicial resolution of the controversy; (6) the importance of the forum to 10 the plaintiff's interest in convenient and effective relief; and (7) the existence of an 11 alternative forum.” Id. 12 III. Discussion 13 A. Purposeful Availment 14 In determining whether Defendants’ actions satisfy the purposeful availment 15 prong, Plaintiff is correct that Defendants’ alleged contacts with the forum are better 16 considered under a purposeful direction analysis. “Trademark infringement is treated 17 as tort-like for personal jurisdiction purposes,” and thus a purposeful direction analysis 18 is applied. San Diego Cnty. Credit Union v. Citizens Equity First Credit Union, 65 F.4th 19 1012, 1035 (9th Cir. 2023) (quoting Ayla, 11 F.4th at 979). The same is true of claims 20 for intentional interference with contractual relations. United Tactical Sys. LLC v. Real 21 Action Paintball, Inc., 108 F. Supp. 3d 733, 747 (N.D. Cal. 2015) (finding the 22 purposeful direction analysis was also appropriate for a claim of intentional 23 interference with contractual relations). Thus, the Court applies a purposeful direction 24 analysis here as these are the bulk of Plaintiff’s claims. Additionally, the purposeful 25 direction analysis is appropriate as this action mainly concerns Defendants’ conduct 26 outside the state and is not akin to a contract claim where Defendants have created 27 continuing obligations to forum residents. Impossible Foods, 80 F.4th at 1088–89. 28 Under a purposeful direction analysis, courts apply the Calder “effects” test 1 which imposes three requirements, “the defendant allegedly must have (1) committed 2 an intentional act, (2) expressly aimed at the forum state, (3) causing harm that the 3 defendant knows is likely to be suffered in the forum state.” Yahoo!, 433 F.3d at 1206 4 (quoting Schwarzenegger, 374 F.3d at 803). In the Complaint, Plaintiff alleges two 5 sets of actions by the Defendants to which the purposeful direction analysis can be 6 applied. First, Defendants sent Plaintiff a Cease and Desist Letter (along with a 7 subsequent clarification email), and second, Defendants initiated a series of takedown 8 actions with Amazon and Etsy against Plaintiff. The Court addresses each in turn. 9 1. Cease and Desist Letter 10 Generally speaking, cease and desist letters are insufficient on their own to 11 establish personal jurisdiction over the sender. Yahoo!, 433 F.3d at 1208. Plaintiff 12 argues that Bancroft Masters, Inc., v. Augusta National, should guide the Court’s 13 analysis and that based on Bancroft, Defendants’ Cease and Desist Letter establishes 14 personal jurisdiction. Bancroft, 223 F.3d 1082 (9th Cir. 2000) overruled in part on 15 other grounds by Yahoo!, 433 F.3d 1199. In Bancroft, the defendant had sent two 16 cease and desist letters to NSI, a third party who was “the sole registrar of domain 17 names”, in order to trigger NSI’s dispute resolution policy. Yahoo!, 433 F.3d 1208 18 (citing Bancroft, 223 F.3d at 1088). By triggering this dispute resolution policy, the 19 defendant intended to interfere with the plaintiff’s usage of its domain name and 20 “misappropriate [plaintiff’s domain] name for [the defendant’s] own use.” Id. (citing 21 Bancroft, 223 F.3d at 1087). However, as the Ninth Circuit later noted in Yahoo!, 22 Bancroft is limited to situations in which the use of cease and desist letters was 23 abusive, tortious, or wrongful. Id. 24 In light of Yahoo!, Bancroft does not alter the Court’s determination that 25 Defendants’ Cease and Desist Letter alone is insufficient to establish personal 26 jurisdiction. Plaintiff has not shown or even argued that the Cease and Desist Letter or 27 related communication was in any way abusive, tortious, or otherwise wrongful. As 28 stated in the Complaint, Plaintiff’s injury and claims concern Defendants’ alleged 1 initiation of takedown actions with Etsy and Amazon based on Plaintiff’s usage of the 2 “Support Your Local Girl Dad” slogan, not the Cease and Desist Letter the earlier 3 usage of “(GIRL DAD)” on Plaintiff’s website that prompted those letters. (See id. 4 ¶¶ 32, 44, 46–47, 52.) Plaintiff’s claims do not stem from the Letter and subsequent 5 related communications. As alleged, the Cease and Desist Letter appears to only be 6 Defendants’ attempt to enforce its trademark; an attempt with which Plaintiff 7 complied. (Id. ¶ 21.) The enforcement of a trademark is not an abusive, tortious, or 8 otherwise wrongful purpose, and Plaintiff has not argued that Defendants had such a 9 purpose. Yahoo!, 433 F.3d at 1208. As such, Defendants’ Cease and Desist Letter 10 cannot serve as the basis for personal jurisdiction on its own. 11 2. Amazon and Etsy Takedown Actions 12 The other actions attributed to Defendants in the Complaint are the initiation of 13 takedown actions with Amazon and Etsy. (Compl. ¶ 24.) Looking at each of the 14 Calder factors in turn, the initiation of these actions is clearly an intentional act, a fact 15 Defendants do not seem to contest. (See Defs.’ Reply at 4.) The Court must then 16 consider to whether Defendants’ actions were expressly aimed at California. Yahoo!, 17 433 F.3d at 1206. 18 In determining whether an exercise of jurisdiction is appropriate, the Supreme 19 Court’s decision in Walden v. Fiore, 571 U.S. 277 (2014), limits the analysis of 20 purposeful direction to the defendant’s contacts to the forum itself. Under Walden, 21 courts may not permit “a plaintiff's contacts with the defendant and forum to drive the 22 jurisdictional analysis.” Walden, 571 U.S. at 289. In the Supreme Court’s view, “[t]he 23 proper question is not where the plaintiff experienced a particular injury or effect but 24 whether the defendant's conduct connects him to the forum in a meaningful way.” Id. 25 at 290. Importantly, “[t]he plaintiff cannot be the only link between the defendant and 26 the forum.” Id. at 285. 27 In Axiom Foods, Inc. v. Acerchem International, Inc., 874 F.3d 1064 (9th Cir. 28 2017), the Ninth Circuit considered the impact of Walden. In doing so, it found that 1 after Walden, minimum contacts require more than defendant’s knowledge of a 2 plaintiff’s strong connections to a forum plus the foreseeable harm the plaintiff would 3 suffer in that forum. Id. at 1069-70. Considering the express aiming portion of Calder 4 in light of Walden, the Ninth Circuit stated that “[t]he Court made clear that we must 5 look to the defendant's ‘own contacts’ with the forum, not to the defendant's 6 knowledge of a plaintiff's connections to a forum.” Axiom Foods, 874 F.3d at 1070; 7 see also Briskin v. Shopify, Inc., 87 F.4th 404, 417 (9th Cir. 2023) (restating that express 8 aiming is not satisfied by a defendant directing conduct at a plaintiff whom the 9 defendant knew had connections with a forum). This is especially true where an injury 10 is “entirely personal to [the plaintiff] and would follow [them] wherever [they] might 11 choose to live or travel.” Picot v. Weston, 780 F.3d 1206, 1215 (9th Cir. 2015). 12 In light of Walden and the Ninth Circuit’s interpretation of its effect, the Court 13 cannot find that Defendants expressly aimed their conduct at California. Plaintiff’s 14 strong connections to this forum and Defendants’ knowledge of Plaintiff’s presence in 15 California are insufficient to establish express aiming, even where Defendant knew 16 Plaintiff would suffer that harm in this forum. See Axiom Foods, 1069-70. The sole 17 alleged basis for Defendants’ connection with the forum state is predicated not on 18 Defendants’ contacts with the forum but on Defendants’ contacts with Plaintiff and 19 Plaintiff’s contact with the forum. This sort of vicarious forum contact that relies solely 20 on the Plaintiff’s contacts with the forum is exactly what Walden instructs is insufficient 21 to establish express aiming. Walden, 571 U.S. at 285 (“The plaintiff cannot be the only 22 link between the defendant and the forum.”). Moreover, Plaintiff’s injuries are 23 personal to them and are not connected to the forum state as the injury would follow 24 Plaintiff wherever it might reside. Picot v. Weston, 780 F.3d at 1215. 25 The Court does note that before Walden, the Tenth Circuit had found that the 26 initiation of a similar takedown action was purposeful direction at the state where the 27 target of the takedown action was located. See Dudnikov v. Chalk & Vermilion Fine 28 Arts, Inc., 514 F.3d 1063 (10th Cir. 2008). The Tenth Circuit reasoned a takedown 1 action was expressly aimed at a forum where the defendant had the intent of affecting 2 the plaintiff and the defendant knew the plaintiff resided in the forum. Id. at 1075. 3 Post-Walden, the Tenth Circuit has maintained that its holding in Dudnikov is still valid. 4 See, e.g., Anzures v. Flagship Restaurant Group, 819 F.3d 1277, 1282 (10th Cir. 2016) 5 (suggesting Dudnikov was still appropriate post-Walden as the defendant “acted with 6 the ultimate purpose of canceling plaintiffs' auction in Colorado and so expressly 7 aimed their conduct at Colorado.” (citations and internal quotations removed)). 8 However, the reasoning of Dudnikov appears to run against the Ninth Circuit’s 9 interpretation of the Walden decision as well as Walden itself. See Walden, 571 U.S. at 10 285–90; see also Axiom Foods, 874 F.3d at 1069–70; Briskin, 87 F.4th at 416–17. 11 Walden and the Ninth Circuit’s subsequent decisions clearly instruct that a plaintiff’s 12 presence in the forum cannot serve as the basis for minimum contacts, regardless of 13 the defendant’s knowledge of that presence. As such, Defendants’ initiation of 14 takedown actions does not constitute purposeful direction as the express aiming 15 portion of the Calder test is not satisfied solely by allegations that Defendants’ actions 16 were intended to affect Plaintiff and that Defendants had knowledge of Plaintiff’s 17 contacts with the forum.1 18 As neither the Cease and Desist Letter nor the initiation of takedown actions are 19 sufficient to satisfy the purposeful direction analysis, this Court lacks personal 20 jurisdiction over Defendants.2 See Yahoo!, 433 F.3d at 1210; see also 21 Schwarzenegger, 374 F.3d at 802. 22 //// 23 //// 24 1 Though the Court already rejected the Cease and Desist Letter as a basis for personal jurisdiction 25 above, it also notes that the Letter and subsequent communications would also fail to satisfy the express aiming portion of the Calder test for the same reason. 26 2 The Complaint and Plaintiff’s Opposition to the present motion also mention that Plaintiff’s counsel and Defendants’ counsel “spoke telephonically” after some of the takedown actions were initiated. 27 (Compl. ¶ 26; Pl’s Opp’n at 3.) Plaintiff has not argued that this would constitute an action expressly aimed at the forum and, as alleged, this would be insufficient to establish purposeful direction for the 28 same reasons as it also only relates to conduct directed at Plaintiff, not the forum. 1 LEAVE TO AMEND AND JURISDICTIONAL DISCOVERY 2 Plaintiff requests they be granted leave to amend the Complaint. (Pl.’s Mot. at 3 13.) “In general, leave to amend is only denied if it is clear that amendment would be 4 futile and that the deficiencies of the complaint could not be cured by amendment.” 5 Cabo Distrib. Co. v. Brady, 821 F. Supp. 601, 608 (N.D. Cal. Oct. 22, 1992) (internal 6 citations and quotations omitted); see also Lopez v. Smith, 203 F.3d 1122, 1130 (9th 7 Cir. 2000) (en banc) (“[A] district court should grant leave to amend ... unless it 8 determines that the pleading could not possibly be cured by the allegation of other 9 facts.” (citation omitted)). Plaintiff will be granted leave to amend as it is not clear that 10 amendment would be futile. 11 Plaintiff argues they “should be granted limited discovery into Hildawn’ forum- 12 related activities.” (Pl.’s Mot. at 19.) While generally “discovery should ordinarily be 13 granted where pertinent facts bearing on the question of jurisdiction are controverted 14 or where a more satisfactory showing of the facts is necessary[,]” Butcher's Union Local 15 No. 498 v. SDC Inv., Inc., 788 F.2d 535, 540 (9th Cir. 1986), a request for jurisdictional 16 discovery may be denied where a plaintiff “fail[s] to identify any specific facts, 17 transactions, or conduct that would give rise to personal jurisdiction . . . .” Getz v. 18 Boeing Co., 654 F.3d 852, 860 (9th Cir. 2011). As discussed, Plaintiff’s has not 19 presently alleged any facts, transactions, or conduct that could possibly give rise to 20 personal jurisdiction. As such, the Court will deny Plaintiff’s request and not permit 21 limited jurisdictional discovery. 22 CONCLUSION 23 As detailed above, the Court lacks personal jurisdiction over this action as 24 Defendants are not subject to general jurisdiction and are not subject to specific 25 jurisdiction as they have not availed themselves of this forum. 3 The Court will thus 26 dismiss this action for lack of jurisdiction. 27 3 As the Court grants Defendants’ Motion to Dismiss for Lack of Personal Jurisdiction, it need not 28 address Defendants’ alternative Motion to Transfer Venue. 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. Defendants’ Motion to Dismiss for Lack of Personal Jurisdiction (ECF No. 7) 3 is GRANTED. See Fed. R. Civ. P. 12(b)(2); and 4 2. The Complaint is dismissed with leave to amend. Within fourteen (14) days 5 of this order, Plaintiff must file a First Amended Complaint. Failure to 6 comply with this order may result in dismissal of this action. 7 8 IT IS SO ORDERED. 9 | Dated: _ April 29, 2024 “Daniel . CoD tto— Hon. Daniel □□ |. Cod 10 UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 | Dict - dadbod23cv00188.12b2 19 20 21 22 23 24 25 26 27 28 13