Luminence, LLC. v. Leach

• Court: District Court, S.D. California
• Decided: June 26, 2020
• Docket: 3:20-cv-00089
• Status: Unknown

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 LUMINENCE, LLC, Case No.: 20-cv-89-BEN (MDD)

10 Plaintiff, ORDER GRANTING DEFENDANT’S 11 v. MOTION TO DISMISS

12 KELLY BENOIT LEACH, an individual, [Doc. 8] d/b/a/ NOVEL GRAPHICS 13 PERSONALIZED GIFTS, a sole 14 proprietorship, and DOES 1-10, 15 Defendants. 16 17 Before the Court is Defendant Kelly Benoit Leach’s (“Defendant”) Motion to 18 Dismiss or, in the Alternative, Motion to Transfer Venue. (See Doc. No. 8.) The Court 19 finds the matter appropriate for decision without oral argument. See Fed. R. Civ. P. 78 20 78(b). No opposition having been filed by Plaintiff, Luminence, LLC (“Plaintiff”), the 21 Court grants the Motion and orders the case dismissed without prejudice. 22 I. BACKGROUND 23 A. Factual Background 24 According to the Complaint, Plaintiff is a limited liability company registered in 25 California which creates and sells Glowbys® brand hair attachments (unique fiber optic 26 light-up accessories) through its website, www.luminence.com. (Doc. No. 1 ¶¶ 2, 7-8.) In 27 support of its business and product line, Plaintiff created an artistic and expressive 28 photographic image of a model wearing some of its Glowbys products. Plaintiff registered 1 the photographic image titled Girl Wearing Glowbys 1 with the United States Copyright 2 Office, under Registration Number VA 1-897-465. Id. ¶¶ 9-10. Thereafter, Plaintiff 3 obtained registrations for its other photographic works entitled Girl with Pigtails Wearing 4 Glowbys, U.S. Registration Number VA 2-030-354, Girl Wearing Multicolored Glowbys, 5 U.S. Registration Number VA 2-033-238, Girl Wearing White Glowbys, U.S. Registration 6 Number VA 2-033-238, Girl Wearing White Glowbys, U.S. Registration Number VA 2- 7 033-385, Girl Wearing Green Gem Glowbys, U.S. Registration Number VA 2-086-428, 8 and Girl Wearing Pink Glowbys, U.S. Registration Number VA 2-033-388. Id. ¶ 10. 9 Plaintiff contends that it has never licensed, authorized, or otherwise permitted the 10 Defendant to reproduce, distribute, display, or use its copyrighted works. Id. ¶ 13. 11 Defendant, owns and operates Novel Graphics Personalized Gifts (a sole 12 proprietorship) out of her residence in Cypress, Texas. Id. ¶ 3. Through her online store1, 13 Defendant markets and sells various retail products including a competing version of a 14 fiber optic hair accessory like that of Glowbys product line.2 Id. ¶ 14. 15 On February 11, 2019, Plaintiff allegedly ordered from Defendant’s website a fiber 16 optic, light up, hair clip which Plaintiff contends is a competing product to their Luminence 17 Glowbys line of fiber optic, light up, hair clips.3 Id. ¶ 15. On April 4, 2019, Plaintiff 18 emailed Defendant to request her unauthorized use of Plaintiff’s copyrighted images cease. 19 Id. ¶ 16. Plaintiff contacted the Defendant a second time (by US Mail). Id. ¶ 17. 20 On April 13, 2019, Defendant removed copyrighted works VA 2-030-354, VA 2- 21 033-238, VA 2-033-385 and VA 2-086-428 from its website, replacing them with other 22

23 1 Novel Graphics Personalized Gifts web address: www.blanks4vinyls.com. 24 2 “Defendant directly competes with Plaintiff by selling competing Flash Braid 25 brand fiber optic light-up hair accessories. According to the Complaint, the packaging makes unauthorized use of one of the copyrighted works (VA 1-897-465).” (Doc. No. 1 26 ¶ 14.) 27 3 According to the Complaint, the Defendant’s webpage showed images of the Copyrighted Works VA 2-030-354, VA 2-033-238, VA 2-033-385, and VA 2-086-428. 28 1 images of Plaintiff’s copyrighted works (VA 2-033-238, VA 2-033-388, and VA 1-897-465). 2 Id. ¶ 18. Thereafter, on May 22, 2019 and July 21, 2019, Plaintiff purchased from 3 Defendant’s website, two additional fiber optic, light up, hair clips which it determined 4 were competing products to its Glowbys product line. Id. ¶¶ 19, 20. Defendant allegedly 5 continues to use Plaintiff’s copyrighted works on the Novel Graphics Personalized Gifts 6 website. Id. ¶ 21. 7 B. Procedural Background 8 On January 13, 2020, Plaintiff filed its Complaint alleging a single federal claim of 9 copyright infringement. On January 29, 2020, Defendant filed the instant Motion to 10 Dismiss, or, in the alternative, Motion to Transfer Venue. No opposition to the motion has 11 been filed by Plaintiff. 12 II. LEGAL STANDARD 13 A. Personal Jurisdiction 14 “Where a defendant moves to dismiss a complaint for lack of personal jurisdiction, 15 the plaintiff bears the burden of demonstrating that jurisdiction is appropriate.” 16 Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004). Federal 17 courts do not have personal jurisdiction over a nonresident defendant unless: (1) the 18 defendant purposefully established “minimum contacts” with the forum state and (2) the 19 exercise of jurisdiction comports with “fair play and substantial justice.” Daimler AG v. 20 Bauman, 571 U.S. 117, 126-27 (2014). Minimum contacts are shown if the defendant’s 21 affiliations with the state are so constant and pervasive “as to render [it] essentially at 22 home in the forum State” (general jurisdiction), or if the defendant has sufficient contacts 23 arising from or related to specific transactions or activities in the state (specific 24 jurisdiction). Id. at 122, 127. 25 B. Venue 26 Title 28, Section § 1400(a) provides that copyright actions “may be instituted in 27 the district in which the defendant or his agent resides or may be found.” 28 U.S.C. § 28 1400(a). “‘The Ninth Circuit interprets [28 U.S.C. § 1400(a)] to allow venue in any 1 judicial district in which the defendant would be amenable to personal jurisdiction if the 2 district were a separate state.’” Adobe Sys. Inc. v. Glue Source Grp., Inc., 125 F. Supp. 3 3d 945, 959 (N.D. Cal. 2015) (quoting Brayton Purcell LLP v. Recordon & Recordon, 4 606 F.3d 1124, 1128 (9th Cir. 2010), abrogated on other grounds as recognized by 5 Axiom Foods, Inc. v. Acerchem Int’l, Inc., 874 F.3d 1064, 1069-70 (9th Cir. 2017)). 6 Thus, “‘[t]he court uses basically the same procedure to decide a motion to dismiss for 7 improper venue as it does for deciding a motion to dismiss for lack of personal 8 jurisdiction.’” Id. (citation omitted). 9 If an action is filed in the “wrong division or district” a court may dismiss the 10 action or, “if it be in the interest of justice” transfer the action to an appropriate district or 11 division. 28 U.S.C. § 1406(a). In federal courts, the determination of where venue is 12 appropriate “is governed entirely by statute.” Zumba Fitness, LLC v. Brage, 2011 WL 13 4732812 (C.D. Cal. Oct. 6, 2011) (citing Leroy v. Great W. United Corp., 443 U.S. 173, 14 181 (1979)). When deciding a motion to dismiss for improper venue, unlike a Rule 15 12(b)(6) motion, the court need not accept the pleadings as true and may consider facts 16 outside the pleadings. See R.A. Argueta v. Banco Mexicano, S.A., 87 F.3d 320, 324 (9th 17 Cir. 1996). Once a defendant raises an objection to venue, the plaintiff bears the burden 18 of establishing that the selected venue is proper. Rio Properties, Inc. v. Rio Intern. 19 Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002). To defeat a motion to dismiss for 20 improper venue, the plaintiff needs only to make a prima facie showing of proper venue. 21 In this case, Plaintiff has not made any response to Defendant’s venue objection. 22 C. Transfer 23 “For the convenience of parties and witnesses, in the interest of justice, a district 24 court may transfer any civil action to any other district or division where it might have 25 been brought or to any district or division to which all parties have consented.” 28 26 U.S.C. § 1404(a). In analyzing the “interests of justice,” a number of factors are relevant, 27 including the following: (1) the location where the relevant agreements were negotiated 28 and executed, (2) the state that is most familiar with the governing law, (3) the plaintiff’s 1 choice of forum, (4) the respective parties’ contacts with the forum, (5) the contacts 2 relating to the plaintiff’s cause of action in the chosen forum, (6) the differences in the 3 costs of litigation in the two forums, (7) the availability of compulsory process to compel 4 attendance of unwilling non-party witnesses, and (8) the ease of access to sources of 5 proof. Stewart Org. v. Ricoh Corp., 487 U.S. 22, 29-30 (1988); Jones v. GNC 6 Franchising, Inc., 211 F.3d 495, 498-99 (9th Cir. 2000). Other factors that can be 7 considered are: the enforceability of the judgment; the relative court congestion in the 8 two forums; and which forum would better serve judicial economy. 17 Moore’s Federal 9 Practice § 111.13[1][c] (3d ed. 1997). However, “[s]ubstantial weight is accorded to the 10 plaintiff’s choice of forum, and a court should not order a transfer unless the 11 ‘convenience’ and ‘justice’ factors set forth above weigh heavily in favor of venue 12 elsewhere.” Catch Curve, Inc. Venali, Inc., 2006 U.S. Dist. LEXIS 96379, *3-4, 2006 13 WL 4568799 (C.D. Cal. 2006). 14 The party seeking to transfer venue bears the burden of showing that convenience 15 and justice require transfer. Commodity Futures Trading Comm’n v. Savage, 611 F.2d 16 270, 278-79 (9th Cir. 1979). The decision to transfer lies within the sound discretion of 17 the trial judge. See Sparling v. Hoffman Constr. Co., 864 F.2d 635, 639 (9th Cir. 1988). 18 III. DISCUSSION 19 In the instant motion, Defendant moves to dismiss this action for lack of personal 20 jurisdiction and for improper venue, or in the alternative, to transfer the claim to the U.S. 21 District Court for the Southern District of Texas, Houston Division.4 (Doc. No. 8 at 8.) 22 A. Venue is Improper as to Defendant 23 24 25 26 4 The Court notes that Defendant’s section § C, subtitle contains a typographical 27 error indicating the case should be transferred “…to the U.S. District Courts located in the District of Nevada (Las Vegas), …,” rather than to the Southern District of Texas, 28 1 In most actions, venue is governed by the general venue statue, 28 U.S.C. § 1391. 2 However, as mentioned earlier, claims for copyright infringement are unique in that, in 3 such claims, venue is governed by the special venue provisions of the Copyright Act. See 4 Goldberg v. Cameron, 482 F. Supp. 2d 1136, 1143 (N.D. Cal. Feb. 27, 2007) (“The venue 5 of suits for infringement of copyright is not determined by the general provision governing 6 suits in the federal district courts, rather by the venue provision of the Copyright Act, [28 7 U.S.C. § 1400(a)].”). The venue provision of the Copyright Act, 28 U.S.C. 1400(a), 8 provides, in pertinent part: “Civil actions, suits, or proceedings arising under any Act of 9 Congress relating to copyrights … may be instituted in the district in which the defendant 10 or his agent resides or may be found.” The Ninth Circuit “interprets this provision to allow 11 venue in any judicial district where, if treated as a separate state, the defendant would be 12 subject to personal jurisdiction. In other words, the analysis of venue under the Copyright 13 Act is, in large part, coterminous with the analysis on a motion to dismiss for lack of 14 personal jurisdiction. 15 1. This Court Does Not Have Personal Jurisdiction Over Defendant 16 Generally, personal jurisdiction exists if: (1) it is permitted by the forum state’s long- 17 arm statute; and (2) the “exercise of that jurisdiction does not violate federal due process.” 18 Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1154-55 (9th Cir. 2006) (citing Fireman’s 19 Fund Ins. Co. v. Nat’l Bank of Coops, 103 F.3d 888, 893 (9th Cir. 1996)). California’s 20 long-arm jurisdictional statute is coextensive with federal due process requirements, so that 21 the jurisdictional analysis under state and federal law are the same. Cal. Civ. Proc. Code 22 § 410.10; Roth v. Garcia Marquez, 942 F.2d 617, 620 (9th Cir. 1991). The Fourteenth 23 Amendment’s Due Process Clause requires that a defendant have “minimum contacts” with 24 the forum state so that the exercise of jurisdiction “does not offend traditional notions of 25 fair play and substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). 26 Depending on the nature of the contacts between the defendant and the forum state, 27 personal jurisdiction is characterized as either general or specific. 28 a. General Personal Jurisdiction 1 A nonresident defendant that has “substantial” or “continuous and systematic” 2 contacts with this District may be sued here, even if the lawsuit concerns matters unrelated 3 to those contacts. Bancroft & Masters, Inc. v. Augusta Nat’l, Inc., 23 F.3d 1082, 1086 (9th 4 Cir. 2000). However, “[t]he standard for general jurisdiction ‘is an exacting standard, as it 5 should be, because a finding of general jurisdiction permits a defendant to be hauled into 6 court in the forum state to answer for any of its activities anywhere in the world.’” Mavrix 7 Photo, Inc. Brand Tech., Inc., 647 F.3d 1218 (9th Cir. 2011) (quoting Schwarzenegger v. 8 Fred Martin Motor Co., 374 F.3d 797, 801 (9th Cir. 2004)). 9 Here, Defendant operates Novel Graphics Personalized Gifts exclusively in Cypress, 10 Texas. (Doc. No. 8 at 5.) Plaintiff’s Complaint provides no evidence that Defendant has 11 any employees in San Diego or that she conducts business there. Sometimes, even 12 continuous and systematic business operations are insufficient to justify general 13 jurisdiction. See Martinez, 764 F.3d at 1070 (“The Court in Daimler rejected the plaintiffs’ 14 argument, also pressed by plaintiff here, that general jurisdiction is appropriate whenever 15 a corporation ‘engages in a substantial, continuous, and systematic course of business’ in 16 a state.”). The Defendant does not have a headquarters or executive office in California, 17 and her center of control is in Texas. (See Doc. No. 8 at 5.) Under Daimler, Defendant is 18 not “at home” in California. Moreover, Plaintiff having not filed a response to the motion, 19 in effect concedes that Defendant is not incorporated in California and is not registered to 20 do business in California. (Doc. No. 1 ¶ 3.) Taken together, none of these facts support a 21 finding that the Defendant is “fairly regarded as at home” in this District. Goodyear, 131 22 S. Ct. at 2853-2854. Thus, while Defendant’s internet sales may give it a presence in the 23 domestic and international market, it is not automatically subject to general jurisdiction in 24 every large market. Accordingly, general jurisdiction over Defendant is lacking in this 25 forum. 26 b. Specific Personal Jurisdiction 27 28 1 A court may assert specific jurisdiction based on a defendant’s forum-related 2 activities. Rano v. Sipa Press, Inc., 987 F.2d 580, 588 (9th Cir. 1993). The Ninth Circuit 3 has established a three-part test for specific personal jurisdiction: 4 (1) The non-resident defendant must purposefully direct its activities or consummate some transaction with the forum or resident thereof; or perform 5 some act by which he purposefully avails himself of the privilege of 6 conducting activities in the forum, thereby invoking the benefits and protections of its laws; 7 (2) the claim must be one which arises out of or relates to the defendant’s 8 forum-related activities; and (3) the exercise of jurisdiction must comport with fair play and substantial 9 justice, i.e. it must be reasonable. 10 11 Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 2004) (citing Lake 12 v. Lake, 817 F.2d 1416, 1421 (9th Cir. 1987)). The plaintiff bears the burden of satisfying 13 the first two prongs and must do so to establish specific jurisdiction. Schwarzenegger, 374 14 F.3d at 802. Plaintiff has not carried its burden. 15 (1) Purposeful Direction 16 The Court looks first to whether Defendant has purposefully directed its activities 17 into this district or purposely availed itself of the privilege of conducting activities in this 18 district. “The Ninth Circuit has noted that purposeful availment and purposeful direction 19 are two distinct concepts.” Lang v. Morris, 823 F. Supp. 2d 966, 970 (N.D. Cal. 2011). 20 Specifically, the “purposeful availment analysis is most often used in suits sounding in 21 contract,” where as the “purposeful direction analysis … is most often used in suits 22 sounding in tort.” Schwarzenegger, 374 F.3d at 802. Courts agree that claims for copyright 23 infringement, such as Plaintiffs, sound in tort; therefore, a purposeful direction analysis is 24 appropriate here. See Mavrix Photo, Inc. v. Brand Tech., Inc., 647 F.3d 1218, 1228 (9th 25 Cir. 2011) (“Because Mavrix has alleged copyright infringement, a tort-like cause of 26 action, purposeful direction ‘is the proper analytical framework.’”) (citations omitted); IO 27 Group, Inc. v. Pivotal, Inc., 2004 WL 838164, at *5 (N.D. Cal. Apr. 19, 2004) (“Copyright 28 infringement may be characterized as an intentional tort.”). 1 In a purposeful direction analysis, courts apply the “effects” test first set forth by the 2 Supreme Court in Calder v. Jones, 465 U.S. 783 (1984). See Mavrix Photo, 647 F.3d at 3 1228 (9th Cir. 2011) (“In tort cases, we typically inquire whether a defendant ‘purposefully 4 direct[s] his activities’ at the forum state, applying an ‘effects’ test”). This test requires 5 that “the defendant allegedly must have (1) committed an intentional act, (2) expressly 6 aimed at the forum state, (3) causing harm that the defendant knows is likely to be suffered 7 in the forum state.” Brayton Purcell LLP v. Recordon & Recordon, 606 F.3d 1124, 1128 8 (9th Cir. 2010). 9 Here, Defendant has arguably “committed an intentional act”—utilizing Plaintiff’s 10 copyrighted images and allegedly infringing packaging material to sell a competing fiber 11 optic light-up hair accessory on its website. However, Plaintiff has failed to establish that 12 this act was “expressly aimed” at the Southern District of California or that Defendant 13 anticipated that its act would cause harm in the Southern District of California. 14 Specifically, Plaintiff’s Complaint merely alleges that “… and committing torts in this 15 state, including without limitation Defendant’s copyright infringement, which causes harm 16 in this state and judicial district.” (Doc. No. 1 ¶ 5.) While the Court can only speculate, 17 what Plaintiff appears to be alleging is that Defendant is offering competing goods into the 18 stream of commerce with an expectation that they will be purchased by California 19 customers. Unfortunately, the only evidence are the three alleged purchases that Plaintiff 20 initiated itself using Defendant’s webpage. See Id. ¶¶ 15, 19, and 20. 21 Even if this is the case, the stream-of-commerce theory of personal jurisdiction is 22 “unsettled.” KGM Ind. Co., Inc. v. Harel, 2012 WL 5363328 *1 (C.D. Cal. Oct. 30, 2012). 23 Justice Brennan’s concurrence in Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 24 117 (1987) (Brennan J., concurring), suggests that a mere awareness by a defendant that a 25 product is being marketed in a forum state should give rise to personal jurisdiction. But, 26 the Ninth Circuit has not wholeheartedly agreed. It has since clarified the application of 27 Asahi: “The placement of a product into the stream of commerce, without more, is not an 28 act purposefully directed toward a forum state.” Holland America Line, Inc. v. Wartsila 1 North America, Inc., 485 F.3d 450, 459 (9th Cir. 2007) (emphasis added) (quoting Asahi, 2 480 U.S. at 112 (1987)). “Even a defendant’s awareness that the stream may or will sweep 3 the product into the forum state does not convert the mere act of placing the product into 4 the stream of commerce into an act purposefully directed toward the forum state.” Id. 5 (emphasis added); see also id. (“Asahi requires ‘something more’ than the mere placement 6 of a product into a stream of commerce”). The “something more” required under Asahi 7 can include “advertising in the forum, marketing the product through a distributor who has 8 agreed to serve as sales agent in the forum state, and creating, controlling, or employing 9 the distribution system that brought [the] product to the forum.” Hendricks v. New Video 10 Channel America, 2015 WL 3616983, at *6 (C.D. Cal. June 8, 2015). 11 In this action Plaintiff has merely alleged that Defendant is “doing business in 12 California.” This conclusory allegation is insufficient to demonstrate that “something 13 more” required by Ninth Circuit precedent and is contradicted by the evidence submitted 14 by Defendant. See Mavrix Photo, 647 F.3d at 1223 (the Court “may not assume the truth 15 of allegations in a pleading which are contradicted by affidavit”); Lang, 823 F. Supp. 2d at 16 977 (“To the extent that Plaintiffs do allege Defendant’s involvement in markets that would 17 include California … those allegations are unsupported and refuted by [defendant].”); 18 Fiore v. Walden, 657 F.3d 838, 846-47 (9th Cir. 2011) (“[M]ere ‘bare bones assertions of 19 minimum contacts with the forum or legal conclusions unsupported by specific factual 20 allegations will not satisfy a plaintiff’s pleading burden.”). 21 In this case, Defendant does not own an office, showroom, or telephone number in 22 California, it does not have employees or a bank account in California, and it is not licensed 23 or registered to conduct any form of business in California, as all operational aspects of the 24 business occur at the Cypress, Texas, residence.5 (See generally Doc. No. 8.) Rather, 25

26 27 5 Even if the Court takes the Plaintiff’s allegations as true, the allegations are not sufficient to establish personal jurisdiction over the Defendant because Plaintiff fails to 28 1 Defendant offers for sale products only through its webpage from which Defendant 2 conducts all of the business.6 Id. And Defendant’s customers go to its webpage to view 3 its products. Id. In other words, none of Defendant’s conduct connected to the sale, 4 marketing, or distribution, whether infringing or not, occurs in California.7 5 Accordingly, Plaintiff has failed to establish that Defendant purposefully directed its 6 conduct at either California or, for purposes of venue, the Southern District of California. 7 Therefore, this Court lacks personal jurisdiction over Defendant, which in turn means that 8 venue as to Defendant is not proper in this district. 9 2. Transfer Under Section 1406(a) 10 Where a court determines that venue is improper, it may, in its discretion, either 11 dismiss the action pursuant to Federal Rule of Civil Procedure 12(b)(3) or transfer the 12 action to a district where venue is appropriate. See 28 U.S.C. § 1406(a) (where a case is 13 filed in “the wrong division or district” the district court “shall dismiss, or if it be in their 14 interest of justice, transfer such case to any district or division in which it could have been 15 brought.”). Courts have “significant discretion” in determining whether to dismiss or 16 transfer an action. See DirectTV, Inc. v. Leo, 2010 WL 2740072, at *6 (C.D. Cal. Jul. 8, 17 2010) (citing Johnson v. Payless Drug Stores Northwest, Inc., 950 F.2d 586, 588 (9th Cir. 18

19 and merely because California “is where the purchaser happened to reside.” See 20 Boscheto v. Hansing, 539 F.3d 1011, 1019 (9th Cir. 2008). 21 6 Posting Plaintiff’s intellectual property on Defendant’s website is insufficient to establish personal jurisdiction. See Erickson v. Nebraska Mach. Co., 15-CV-01147-JD, 22 2015 WL 4089849, at *4 (N.D. Cal. July 6, 2015) (“The mere act of copying Erickson’s 23 photographs and posting them on NMC’s website did not involve entering California, contacting anyone in California, or otherwise reaching out to California.”). 24 7 Marketing and selling to California residents through Defendant’s website is 25 insufficient to establish personal jurisdiction. Adobe Sys. Inc. v. Cardinal Camera & Video Ctr., Inc., 15-CV-02991-JST, 2015 WL 5834135, at *3-4 (N.D. Cal. Oct. 7, 2015) 26 (finding no personal jurisdiction over defendant where plaintiff argued “the express 27 aiming prong [was] satisfied here because 1.2% of [defendant’s] sales are shipped to California and because [defendant] advertises for sale and sells infringing software on its 28 1 |] 1991) (per curiam)); see also L.A. Gem & Jewelry Design, Inc. v. Reese, 2015 WL 2 ||4163336, at *6 (C.D. Cal. Jul. 9, 2015) (“The Court has discretion between choosing to 3 || transfer or choosing to dismiss for improper venue, but “generally it is preferred to transfer 4 ||the case rather than dismissing it altogether.’”) (citing Abrams Shell v. Shell Oil Co., 165 5 || F. Supp. 2d 1096, 1103 (C.D. Cal. 2001)). “A court need not have personal jurisdiction 6 the defendant in order to transfer, rather the court may order transfer so that 7 jurisdiction may be established in the ‘transferee court.’” Multimin USA, Inc. v. Walco 8 Inc., 2006 WL 1046964, at *2 (E.D. Cal. Apr. 11, 2006) (citing Goldlawr, Inc. vy. 9 || Heiman, 369 U.S. 463 (1962)). 10 A review of the Complaint demonstrates defects with Plaintiff's copyright 11 |/infringement claim. These deficiencies, together with the fact that the Plaintiff has 12 || expressed no opinion on transfer, indicate that transfer of this case to another district court 13 || would only “delay[] the inevitable” and not be “in keeping with the Supreme Court’s 14 || instruction to the lower federal courts ‘to weed out’ insubstantial [] suits “expeditiously.’” 15 || Simpkins v. District of Columbia Gov’t, 108 F.3d 366, 371 (D.C. Cir. 1997) (noting that “it 16 || made little sense to transfer the case to another jurisdiction pursuant to 28 U.S.C. § 1406” 17 since “[t]hat would have kept the case alive only until the next court looked it over and 18 found it wanting”). Therefore, for the foregoing reasons, this Court Orders the case 19 || dismissed pursuant to Rule 12(b)(3), in lieu of transferring it to the Southern District of 20 || Texas, Houston Division, pursuant to 28 U.S.C. § 1406(a). 21 IV. CONCLUSION 22 Based on the foregoing analysis, the Court GRANTS Defendant’s Motion to 23 || Dismiss without prejudice. 24 IT IS SO ORDERED. 25 || DATED: June 25, 2020 6 HON. ROGER T. BENITE United States District Judge 27 28