Patel v. Google LLC

Opinion

1 2 3 6 7 DINESH PATEL, Case No. 3:23-cv-02470-JD

8 Plaintiff, ORDER RE DISMISSAL, SERVICE, 9 v. AND LIFTING STAY

10 GOOGLE LLC, et al., Defendants. 11

12 13 In this trademark infringement dispute, pro se plaintiff Dinesh Patel has sued defendants 14 Google LLC (Google), Sidewalk Labs, LLC (Sidewalk Labs), the City of Aspen, the City of 15 Philadelphia, Sea Breeze Properties LLC (Sea Breeze), and the Downtown Brooklyn Partnership, 16 Inc. (Downtown Brooklyn Partnership). Patel alleges registration of two PEBBLES trademarks, 17 U.S. Trademark Registration Nos. 6557978 and 6557799, and says that defendants have infringed 18 the marks. The first amended complaint (FAC) alleges claims for trademark infringement and 19 unfair competition under the Lanham Act, 15 U.S.C §§ 1114(1), 1125(a); unfair competition under 20 the California UCL, Cal. Bus. Prof. Code §§ 17200, et seq.; common law trademark infringement 21 and unfair competition; and cybersquatting. See Dkt. No. 28 (FAC). 22 The original complaint named only Google and Sidewalk Labs as defendants. Dkt. No. 1. 23 The FAC added Aspen, Philadelphia, Sea Breeze, and the Downtown Brooklyn Partnership as 24 defendants. Aspen and Philadelphia (the Cities) jointly ask for dismissal under Federal Rules of 25 Civil Procedure 12(b)(2) and 12(b)(6). Dkt. No. 66. Sea Breeze asks for dismissal under Rule 26 12(b)(6). Dkt. No. 64. 27 The parties’ familiarity with the record is assumed. The dismissal requests are granted 1 With respect to the Cities’ pleadings motions, the personal jurisdictional objection is 2 considered first. See Steel Co. v. Citizens for Better Env’t, 523 U.S. 83, 101 (1998). Even 3 affording the FAC a generous reading due to Patel’s pro se status, the FAC does not plausibly 4 allege facts that might give rise to specific jurisdiction in this District over the Cities.1 Where, as 5 here, no federal statute authorizes personal jurisdiction, the Court applies the law of California, the 6 state in which it sits. See Malmquist v. Malmquist, No. 17-CV-04831-JD, 2019 WL 4194310 7 (N.D. Cal. Sept. 4, 2019); Panavision Int’l, L.P. v. Toeppen, 141 F.3d 1316, 1320 (9th Cir. 1998). 8 California’s long-arm statute, Cal. Code Civ. Proc. § 410.10, is coextensive with the limits of the 9 Constitution’s due process clause, so the dispositive test is whether personal jurisdiction in this 10 Court comports with traditional concepts of fair play and due process. Schwarzenegger v. Fred 11 Martin Motor. Co., 374 F.3d 797, 800-01 (9th Cir. 2004). 12 Specific jurisdiction focuses on the defendant’s contacts with the forum state for the claims 13 at issue. Walden v. Fiore, 571 U.S. 277, 284 (2014). The claims must relate to the defendant’s 14 contacts “with the forum” for specific personal jurisdiction to arise. Bristol-Myers Squibb Co. v. 15 Superior Ct. of California, San Francisco Cnty., 582 U.S. 255, 262 (2017) (internal quotation 16 omitted) (emphasis in original). “Trademark infringement is treated as tort-like for personal 17 jurisdiction purposes, and so we focus on purposeful direction.” Ayla, LLC v. Alya Skin Pty. Ltd., 18 11 F.4th 972, 979 (9th Cir. 2021). The purposeful direction test asks whether the defendant has 19 “(1) committed an intentional act, (2) expressly aimed at the forum state, (3) causing harm that the 20 defendant knows is likely to be suffered in the forum state.” Axiom Foods, Inc. v. Acerchem Int’l, 21 Inc., 874 F.3d 1064, 1069 (9th Cir. 2017) (internal quotations omitted). 22 The FAC offers nothing in the way of facts that might satisfy these elements of 23 jurisdiction. The FAC alleges that “[o]ne or more of the Resellers are requiring and diverting 24 consumers to Google’s PEBBLE.APP domain in connection with Defendants’ Goods & Services.” 25 Dkt. No. 28 ¶ 73. It also says that the PEBBLE.APP website allows site visitors to “access 26 1 The Court has expressed concern that Patel’s complaints and motions bear every indicia of 27 attorney authorship, even though Patel represents that no attorney is helping him and that he is 1 Defendants’ Goods & Services bearing the PEBBLE marks.” Id. ¶ 213. These rather vague 2 statements do not plausibly allege that the Cities did anything within the forum that could fairly 3 bring them before the Court. See Walden, 571 U.S. at 284; Doe v. WebGroup Czech Republic, 4 a.s., 93 F.4th 442, 453 (9th Cir. 2024). So too for the statement in the FAC that “Resellers are 5 promoting and offering Defendants’ Goods & Services in connection with the PEBBLE Marks to 6 consumers.” Dkt. No. 28 ¶ 70. Patel’s comments in an opposition brief about ostensible 7 additional facts do not fill in the shortfalls in the FAC. 8 The claims against the Cities are dismissed for lack of personal jurisdiction. A good 9 argument can be made that amendment will not cure the jurisdictional problems, but Patel will 10 have an opportunity to try. The Court defers consideration of the Cities’ Rule 12(b)(6) motion 11 pending proof of personal jurisdiction. 12 With respect to Sea Breeze, the Lanham Act, UCL, and common law trademark and unfair 13 competition claims are dismissed. The FAC does not plausibly allege anything about Sea 14 Breeze’s ostensible conduct. Sea Breeze is mentioned in just one paragraph in the FAC, to the 15 effect that Sea Breeze is a California LLC. Dkt. No. 28 ¶ 18. Otherwise, the FAC has nothing to 16 say about Sea Breeze with any degree of factual specificity. Patel will have an opportunity to 17 amend. 18 With respect to defendant Downtown Brooklyn Partnership, the docket does not indicate 19 that it was served. Patel is directed to show cause in writing why Downtown Brooklyn 20 Partnership should not be dismissed pursuant to Federal Rule of Civil Procedure 4(m). 21 The stay, Dkt. No. 84, is lifted. The response to the order to show cause re service must be 22 filed by July 1, 2024. Patel must file with the response a declaration under penalty of perjury that 23 he alone wrote the response, without the assistance of another person. If Patel cannot truthfully 24 make that statement, he must identify with specificity all the assistance he received and the source 25 of the assistance. Patel may file a second amended complaint consistent with this order by July 8, 26 2024. No new claims or parties may be added without the Court’s prior consent. Patel must file 27 the same declaration under penalty of perjury with respect to the second amended complaint. 1 A failure to meet these deadlines, or otherwise conform to this order, will result in 2 dismissal of the case under Federal Rule of Civil Procedure 41(b). 4 Dated: June 18, 2024 5 JAMES NATO 6 United Btates District Judge 7 8 9 10 11 a 12

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