Trustee of the Summers Family Trust TA Neak Products Buff WA Pty, Ltd. v. National Distribution Warehouse, Inc.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘Oo’ JS-6

Case No. 2:20-cv-10741-CAS-Ex Date June 7, 2021

Title TRUSTEE OF THE SUMMERS FAMILY TRUST TA NEAK

PRODUCTS BUFF WA PTY, LTD. V. NATIONAL DISTRIBUTION

WAREHOUSE, INC.

Present: The Honorable CHRISTINA A. SNYDER

Catherine Jeang Laura Elias N/A

Deputy Clerk Court Reporter / Recorder Tape No.

Attorneys Present for Plaintiffs: Attorneys Present for Defendants:

Louis Teran Saul Acherman

Proceedings: DEFENDANT’S NOTICE OF MOTION AND MOTION TO

DISMISS (Dkt. [12], filed April 28, 2021)

I. INTRODUCTION

On November 24, 2020, plaintiff Trustee of the Summers Family Trust TA Neak

Product Buff WA Pty, Ltd. (“Summers”) filed this action against defendant National

Distribution Warehouse, Inc., d/b/a Teacher’s Choice (“Teacher’s Choice”). Dkt 1

(“Compl.”). The complaint asserts five claims against defendant for: (1) trademark

infringement in violation of the Lanham Act, 15 U.S.C. §§1051 ef seg., (2) trade dress

infringement in violation of the Lanham Act; (3) design patent infringement, in violation

of 35 U.S.C. § 271(a)-(b); (4) common law unfair competition; and (5) common law

tortious interference with prospective economic advantage. Id. The gravamen of

plaintiff's complaint is that defendant makes and sells educational clocks that have designs

and marks that are confusingly similar to the educational clocks plaintiff sells, and thereby

infringe on plaintiff's trademark, trade dress, and design patent. Id. at 5.

On April 28, 2021, defendant filed the instant motion to dismiss. Dkt. 12 (“Mot.”).

On May 17, 2021, plaintiff filed an opposition. Dkt. 13 (“Opp.”). Defendant filed a reply

on May 24, 2021. Dkt. 14 (“Reply”).

The Court held a hearing on June 7, 2021. Having carefully considered the parties’

arguments, the Court finds and concludes as follows.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘Oo’ JS-6

Case No. 2:20-cv-10741-CAS-Ex Date June 7, 2021

Title TRUSTEE OF THE SUMMERS FAMILY TRUST TA NEAK

PRODUCTS BUFF WA PTY, LTD. V. NATIONAL DISTRIBUTION

WAREHOUSE, INC.

I. BACKGROUND

a. The Parties

Plaintiff Summers is an Australian limited liability company that does business

under it’s “Owlconic” trademark, with its principal place of business in Australia. Compl.

Plaintiff alleges that it is an industry leader in the design of educational clocks and

“has become widely recognized as the preeminent supplier of educational clocks for

children to learn how to read a clock.” Id. 4 7.

Defendant Teacher’s Choice is a New York corporation with its principal place of

business in New York. Id. 6. Defendant does not maintain any offices or employees in

California, and is not licensed to do business in California. Dkt. 12-12 (“Green Decl.”) 9

5-13. Plaintiff alleges that defendant makes and offers for sale through its website and on

Amazon.com educational clocks that unlawfully copy the designs of plaintiff's educational

clocks. Id. □□□ 27-28. Plaintiff alleges that defendant is subject to general and specific

personal jurisdiction in California because defendant had engaged in trademark and trade

dress infringement in this jurisdiction, and “derivels] substantial revenues from

commercial activities in California.” Id. {J 3-4.

b. Plaintiff's Educational Clocks

Plaintiff alleges that it makes and sells educational clocks throughout the United

States and the world, primarily through e-commerce sales on Amazon.com. Id. 4 7.

Plaintiff alleges that in order to distinguish itself from its competitors, it sells educational

clocks that are “uniquely configured, distinctly colored, and [that] employ distinct

patterns.” Id. 9. Plaintiff's educational clocks are designed to contain a centered circle

“with a horizontal line and a vertical line passing through and crossing one another at the

center of the circle to form four (4) quadrants, each of which are colored a different color,”

as reflected in the image below:

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES — GENERAL ‘Oo’ JS-6

Case No. 2:20-cv-10741-CAS-Ex Date June 7, 2021

Title TRUSTEE OF THE SUMMERS FAMILY TRUST TA NEAK

PRODUCTS BUFF WA PTY, LTD. V. NATIONAL DISTRIBUTION

WAREHOUSE, INC.

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Id. 10-12, exh. A. Plaintiff avers that it considers this “circle on its educational clocks”

to be its trademark, which—although not federally registered—plaintiff has continuously

used in commerce since 2017. Id. §§ 15, 16. Plaintiff further avers that consumers

recognize this design and associate it “with authentic, high-quality educational clocks

designed and made by [p]laintiff.” Id. J 13. Plaintiff further alleges that the “overall design

of its educational clocks” is a trade dress that plaintiff has used continuously since 2017.

Id. 18-19, 21. Plaintiff alleges that it has developed substantial recognition and goodwill

in the United States through the trademark and trade dress that it employs for its educational

clocks. Id. {{j 22-23.

In addition, plaintiff alleges that is “has an interest in” U.S. Design Patent No.

D875,591 (“the ’591 patent’), which “protects the unique ornamental design of [p|laintiff’s

educational clocks.” Id. 4 24-25.

c. Defendant’s Educational Clocks

Plaintiff alleges that defendant has infringed the ’591 patent and plaintiffs trademark

and trade dress rights by making and offering for sale in the United States “educational

clocks, having designs and marks that are, in the eye of the ordinary observer, substantially

the same as and confusingly similar” to the design of plaintiff's educational clocks. Id. □□

26-27. Plaintiff alleges that the educational clocks defendant sells on Amazon.com and

through defendant’s website contain the designs reflected in the image below:

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘Oo’ JS-6

Case No. 2:20-cv-10741-CAS-Ex Date June 7, 2021

Title TRUSTEE OF THE SUMMERS FAMILY TRUST TA NEAK

PRODUCTS BUFF WA PTY, LTD. V. NATIONAL DISTRIBUTION

WAREHOUSE, INC.

hk 4 12 4°49

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Id. § 28, exh. C. Plaintiff alleges that the similarities between plaintiff's product and

defendant’s product are “not a coincidence,” but rather the result of defendant’s effort to

“intentionally cop[y]” plaintiff's trademark, trade dress, and patented design to capitalize

on plaintiff's goodwill and “confuse consumers” into believing there is an association

between the parties’ products. Id. § 30.

Defendant now argues that plaintiffs claims should be dismissed for lack of personal

jurisdiction; see Fed. R. Civ. P. 12(b)(2); because venue is not proper in California with

respect to plaintiff's design patent claim, pursuant to 21 U.S.C. § 1400; see Fed. R. Civ. P.

12(b)(3); and for failure to state a claim upon which relief can be granted, see Fed. R. Civ.

P. 12(b)(6).! See Mot. at 1-2.

1 Plaintiff contends in its opposition that the Court should deny defendant’s motion in its

entirety for failure to comply with C.D. Cal. Local Rule 7-3. Plaintiff contends that

defendant’s counsel “declares that he met and conferred with [p]laintiff's counsel on April

27, 2021, the day before the [m]otion was filed,” and, as such, failed to comply with the

requirement that the parties meet and confer at least 7 days in advance of any motion. See

Opp’n at 8-9. In reply, defendant avers that its counsel complied with Local Rule 7-3 by

conferring with plaintiff's counsel on April 27, 2021, less than a week after being retained

by defendant, and offered to stipulate to a delay of defendant’s deadline to respond to the

complaint to allow plaintiff the full 7 days. See Reply at 6-8. The Court will not wade

into the factual details of this matter, but admonishes the parties to abide by the Local Rules

going forward.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘Oo’ JS-6

Case No. 2:20-cv-10741-CAS-Ex Date June 7, 2021

Title TRUSTEE OF THE SUMMERS FAMILY TRUST TA NEAK

PRODUCTS BUFF WA PTY, LTD. V. NATIONAL DISTRIBUTION

WAREHOUSE, INC.

Il. LEGAL STANDARDS

A. Rule 12(b)(2)

When a defendant moves to dismiss for lack of personal jurisdiction pursuant to

Federal Rule of Civil Procedure 12(b)(2), the “plaintiff bears the burden of establishing

that jurisdiction is proper.” Boschetto v. Hansing, 539 F.3d 1011, 1015 (9th Cir. 2008)

(citation omitted). Where, as here, the defendant's motion is based on written materials

rather than an evidentiary hearing, “the plaintiff need only make a prima facie showing of

jurisdictional facts to withstand the motion to dismiss.” Brayton Purcell LLP v. Recordon

& Recordon, 606 F.3d 1124, 1127 (9th Cir. 2010) (quoting Pebble Beach Co. v. Caddy,

453 F.3d 1151, 1154 (9th Cir. 2006)). The plaintiff cannot simply rely on the “bare

allegations” of its complaint; however, uncontroverted allegations in the complaint must

be taken as true, and “[c]lonflicts between parties over statements contained in affidavits

must be resolved in the plaintiff's favor.” Schwarzenegger v. Fred Martin Motor Co., 374

F.3d 797, 800 (9th Cir. 2004).

Generally, personal jurisdiction exists if (1) it is permitted by the forum state's long-

arm statute and (2) the “exercise of that jurisdiction does not violate federal due process.”

Pebble Beach, 453 F.3d at 1154-55. “California's long-arm statute is co-extensive with

federal standards, so a federal court may exercise personal jurisdiction if doing so comports

with federal constitutional due process.” Boschetto, 539 F.3d at 1015. “For a court to

exercise personal jurisdiction over a nonresident defendant, that defendant must have at

least ‘minimum contacts’ with the relevant forum such that the exercise of jurisdiction

“does not offend traditional notions of fair play and substantial justice.”” Schwarzenegger,

374 F.3d at 801 (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)).

Depending on the nature of the contacts between the defendant and the forum state,

personal jurisdiction is characterized as either general or specific.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘Oo’ JS-6

Case No. 2:20-cv-10741-CAS-Ex Date June 7, 2021

Title TRUSTEE OF THE SUMMERS FAMILY TRUST TA NEAK

PRODUCTS BUFF WA PTY, LTD. V. NATIONAL DISTRIBUTION

WAREHOUSE, INC.

a. General Jurisdiction

“A court may assert general jurisdiction over foreign (sister-state or foreign-country)

corporations to hear any and all claims against them when their affiliations with the State

are so “continuous and systematic’ as to render them essentially at home in the forum

State.” Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)

(quoting International Shoe, 326 U.S. at 317). A corporation's place of incorporation and

principal place of business are the paradigmatic bases for general jurisdiction. Daimler

AG v. Bauman, 571 U.S. 117, 137 (2014). Otherwise, “[t]he standard is met only by

“continuous corporate operations within a state [that are] thought so substantial and of such

a nature as to justify suit against [the defendant] on causes of action arising from dealings

entirely distinct from those activities.” King v. Am. Family Mut. Ins. Co., 632 F.3d 570,

579 (9th Cir. 2011) (quoting International Shoe, 326 U.S. at 318). The standard for general

jurisdiction “is an exacting standard, as it should be, because a finding of general

jurisdiction permits a defendant to be haled into court in the forum state to answer for any

of its activities anywhere in the world.” Mavrix Photo. Inc. v. Brand Techs., Inc., 647 F.3d

1218, 1224 (9th Cir. 2011).

b. Specific Jurisdiction

A court may assert specific jurisdiction over a claim for relief that arises out of a

defendant's forum-related activities. Rano v. Sipa Press, Inc., 987 F.2d 580, 588 (9th Cir.

1993). The test for specific personal jurisdiction has three parts:

(1) The defendant must perform an act or consummate a transaction within the

forum, purposefully availing himself of the privilege of conducting activities in the forum

and invoking the benefits and protections of its laws;

(2) The claim must arise out of or result from the defendant's forum-related

activities; and

(3) Exercise of jurisdiction must be reasonable.

Rano, 987 F.2d at 588; see also Burger King Corp. v. Rudzewicz, 471 U.S. 462, □□□□□□

(1985). The plaintiff bears the burden of satisfying the first two prongs, and if either is not

satisfied, personal jurisdiction is not established. Schwarzenegger, 374 F.3d at 802.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘Oo’ JS-6

Case No. 2:20-cv-10741-CAS-Ex Date June 7, 2021

Title TRUSTEE OF THE SUMMERS FAMILY TRUST TA NEAK

PRODUCTS BUFF WA PTY, LTD. V. NATIONAL DISTRIBUTION

WAREHOUSE, INC.

If the plaintiff establishes the first two prongs, then it is the defendant's burden to

“present a compelling case” that the third prong, reasonableness, has not been satisfied.

Schwarzenegger, 374 F.3d at 802 (quoting Burger King, 471 U.S. at 477). The third prong

requires the Court to balance seven factors: (1) the extent of the defendant's purposeful

availment, (2) the burden on the defendant, (3) conflicts of law between the forum state

and the defendant's state, (4) the forum's interest in adjudicating the dispute, (5) judicial

efficiency, (6) the plaintiff's interest in convenient and effective relief, and (7) the existence

of an alternative forum. Roth v. Garcia Marquez, 942 F.2d 617, 623 (9th Cir. 1991).

B. Rule 12(b)(6)

A motion pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal

sufficiency of the claims asserted in a complaint. Under this Rule, a district court properly

dismisses a claim if “there is a ‘lack of a cognizable legal theory or the absence of sufficient

facts alleged under a cognizable legal theory.’” Conservation Force v. Salazar, 646 F.3d

1240, 1242 (9th Cir. 2011) (quoting Balisteri v. Pacifica Police Dep’t, 901 F.2d 696, 699

(9th Cir. 1988)). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does

not need detailed factual allegations, a plaintiff's obligation to provide the ‘grounds’ of his

‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation

of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550

US. 544, 555 (2007) (internal citations omitted). “Factual allegations must be enough to

raise a right to relief above the speculative level.” Id. (internal citations omitted).

In considering a motion pursuant to Rule 12(b)(6), a court must accept as true all

material allegations in the complaint, as well as all reasonable inferences to be drawn from

them. Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998). The complaint must be read in

the light most favorable to the nonmoving party. Sprewell v. Golden State Warriors, 266

F.3d 979, 988 (9th Cir. 2001). However, “a court considering a motion to dismiss can

choose to begin by identifying pleadings that, because they are no more than conclusions,

are not entitled to the assumption of truth. While legal conclusions can provide the

framework of a complaint, they must be supported by factual allegations.” Ashcroft v.

Iqbal, 556 U.S. 662, 679 (2009): see Moss v. United States Secret Service, 572 F.3d 962,

969 (9th Cir. 2009) (“[F]or a complaint to survive a motion to dismiss, the non-conclusory

“factual content,’ and reasonable inferences from that content, must be plausibly suggestive

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES — GENERAL ‘Oo’ JS-6

Case No. 2:20-cv-10741-CAS-Ex Date June 7, 2021

Title TRUSTEE OF THE SUMMERS FAMILY TRUST TA NEAK

PRODUCTS BUFF WA PTY, LTD. V. NATIONAL DISTRIBUTION

WAREHOUSE, INC.

of a claim entitling the plaintiff to relief.”). Ultimately, “[d]etermining whether a

complaint states a plausible claim for relief will . . . be a context-specific task that requires

the reviewing court to draw on its judicial experience and common sense.” Igbal, 556 U.S.

at 679.

Unless a court converts a Rule 12(b)(6) motion into a motion for summary judgment,

a court cannot consider material outside of the complaint (e.g., facts presented in briefs,

affidavits, or discovery materials). In re American Cont’! Corp./Lincoln Sav. & Loan Sec.

Litig., 102 F.3d 1524, 1537 (9th Cir. 1996), rev’d on other grounds sub nom Lexecon, Inc.

v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998). A court may, however,

consider exhibits submitted with or alleged in the complaint and matters that may be

judicially noticed pursuant to Federal Rule of Evidence 201. In re Silicon Graphics Inc.

Sec. Litig., 183 F.3d 970, 986 (9th Cir. 1999): Lee v. City of Los Angeles, 250 F.3d 668,

689 (9th Cir. 2001).

As a general rule, leave to amend a complaint which has been dismissed should be

freely granted. Fed. R. Civ. P. 15(a). However, leave to amend may be denied when □□□□

court determines that the allegation of other facts consistent with the challenged pleading

could not possibly cure the deficiency.” Schreiber Distrib. Co. v. Serv-Well Furniture Co.,

806 F.2d 1393, 1401 (9th Cir. 1986); see Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir.

2000).

IV. DISCUSSION

A. Personal Jurisdiction

a. General Jurisdiction

Defendant argues that it is not subject to general jurisdiction in California because it

does not maintain a “permanent and continuous presence in California” as thus cannot

fairly be considered “at home” in California. Mot. at 7. Although plaintiff's complaint

alleges that this Court possesses general jurisdiction over defendant, see Compl. § 4,

plaintiff appears to concede in its opposition that general jurisdiction is not appropriate in

this case. See generally Opp’n.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘Oo’ JS-6

Case No. 2:20-cv-10741-CAS-Ex Date June 7, 2021

Title TRUSTEE OF THE SUMMERS FAMILY TRUST TA NEAK

PRODUCTS BUFF WA PTY, LTD. V. NATIONAL DISTRIBUTION

WAREHOUSE, INC.

Where general jurisdiction is established, a court may hear any claim against that

defendant—even where the suit-related events occurred outside the forum district. Bristol-

Myers Squibb Co., 137 S. Ct. at 1780. For this reason, establishing general jurisdiction is

a high bar. “For an individual, the paradigm forum for the exercise of general jurisdiction

is the individual’s domicile; for a corporation, it is an equivalent place, one in which the

corporation is fairly regarded as at home.” Id. (citations omitted). A corporation’s place

of incorporation and principal place of business are the paradigmatic bases for general

jurisdiction. Daimler AG v. Bauman, 571 U.S. 117, 137 (2014). Otherwise, “for general

jurisdiction to exist, a defendant must engage in ‘continuous and systematic general

business contacts.”” Mavrix Photo. Inc. v. Brand Techs., Inc., 647 F.3d 1218, 1223-24

(9th Cir. 2011) (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408,

416 (1984)).

Here, the Court cannot exercise general jurisdiction over defendant because

defendant cannot fairly be regarded “at home” in California. Defendant is corporation

organized under the laws of New York and maintains its principal place of business in New

York. Green Decl. §§ 3-4. Defendant “is not licensed to do business in California” and

does not maintain any office or other “physical presence” in California or “have any

employees, agents, or representatives in California.” Id. §§] 5-7. Nor does any other

evidence suggest that defendant has engaged in “continuous and systematic general

business contacts” in California. See Mavrix Photo, 647 F.3d at]223—24.

b. Specific Jurisdiction

Defendant argues that it is not subject to specific personal jurisdiction in California

because defendant “does not sell products |...] directly to California,” “does not engage in

any advertising targeted towards California residents, by geographically focused online

marketing or otherwise, and thus does not directly target California” and otherwise lacks

“any other purposeful contacts with California.” Mot. at 9. Defendant explains that the

products at issue are offered through its website and on Amazon.com, and that its sales are

“exclusively or nearly exclusively fulfilled by Amazon.” Id.

Plaintiff contends that is has adequately established that defendant is subject to

specific jurisdiction in California, both because’ defendant’s website,

www.teacherschoice.com, is “interactive and even commercial” and because defendant has

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘Oo’ JS-6

Case No. 2:20-cv-10741-CAS-Ex Date June 7, 2021

Title TRUSTEE OF THE SUMMERS FAMILY TRUST TA NEAK

PRODUCTS BUFF WA PTY, LTD. V. NATIONAL DISTRIBUTION

WAREHOUSE, INC.

“consummated various transactions with residents of California and thus purposefully

availed itself to the forum.” Opp’n at 9-11. Plaintiff does not contend that defendant’s

sales on Amazon.com are sufficient to establish specific personal jurisdiction.? See

generally Opp’n.

Under the first prong of the specific jurisdiction analysis, plaintiff must establish that

defendant “either purposefully availed [itself] of the privilege of conducting activities in

California, or purposefully directed [its] activities toward California.” Schwarzenegger,

374 F.3d at 802. In contracts cases, courts conduct a “purposeful availment” analysis,

whereas courts generally conduct a “purposeful direction” analysis in tort cases. Id.

Because plaintiff has alleged claims for trademark infringement, trade dress infringement,

design patent infringement, common law unfair competition, and tortious interference with

prospective economic advantage, each of which is “a tort-like cause of action,” the Court

applies a purposeful direction analysis.* Mavrix Photo, Inc., v. Brand Techs.. Inc., 647

F.3d 1218, 1228 (9th Cir. 2011). Courts in the Ninth Circuit analyze purposeful direction

under the three-part “effects test” from the Supreme Court’s opinion in Calder v. Jones,

? Notably, a number of courts in this district that have considered sales fulfilled by major

internet retailers like Amazon.com as a basis for personal jurisdiction have concluded that

“at is not the law [...] that all ‘fullfilled by Amazon’ sellers could be haled to California by

a competing seller” because the relevant question is whether there is evidence that

defendant “conducted regular business with California consumers [or] played an active role

in completing any transactions in California.” Pado, Inc. v. SG Trademark Holding Co.

LLC, No. CV2001565CJCPVCX, 2020 WL 1445720, at *4 (C.D. Cal. Mar. 24, 2020); see

also Imageline, Inc. v. Hendricks, No. CV_ 09-1870 DSF AGRX, 2009 WL 10286181, at

*4 (C.D. Cal. Aug. 12, 2009) (no personal jurisdiction where defendants’ eBay “listings

did not target California, but simply went to California residents who turned out to be the

eBay purchasers.”’).

3 Plaintiff argues that the Court should apply a purposeful availment analysis to this case

based on its assertion defendant has “clearly ‘consummated a transaction’ in California

because it maintains a commercial website. See Opp’n at 17. However, as discussed in

more detail infra, plaintiff has put forward no evidence demonstrating that defendant has

ever consummated a transaction in California, let alone one that is related to the claims at

issue in this litigation.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES — GENERAL ‘Oo’ JS-6

Case No. 2:20-cv-10741-CAS-Ex Date June 7, 2021

Title TRUSTEE OF THE SUMMERS FAMILY TRUST TA NEAK

PRODUCTS BUFF WA PTY, LTD. V. NATIONAL DISTRIBUTION

WAREHOUSE, INC.

465 U.S. 783, 787-89, (1984): Schwarzenegger, 374 F.3d at 803. “Under this test, the

defendant allegedly must have (1) committed an intentional act, (2) expressly aimed at the

forum state, (3) causing harm that the defendant knows is likely to be suffered in the forum

state.” Brayton Purcell, 606 F.3d at 1128 (internal quotation marks and citation omitted)

abrogated on other grounds as recognized by Axiom Foods, Inc. v. Acerchem Int'l, Inc.,

874 F.3d 1064, 1069 (9th Cir. 2017).

Here, Plaintiff contends that specific personal jurisdiction exists based on defendant’s

interactive website, www.teacherschoice.com, through which plaintiff argues defendant

“willfully accepted orders and shipped the accused products directly to the residence of

known California residents.” Opp’n at 13. The Ninth Circuit utilizes the “sliding scale”

approach set forth in Zippo Manufacturing Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119

(W.D. Pa. 1997) to determine whether the operation of a website supports the exercise of

personal jurisdiction. See Cybersell. Inc.. v. Cybersell, Inc., 130 F.3d 414, 418 (9th Cir.

1997). Under this analysis, courts consider the “level of interactivity and commercial

nature of the exchange of information” that occurs on the website. Id. A passive website

that “does little more than make information available to those who are interested in it is

not grounds for the exercise personal jurisdiction.” Zippo, 952 F. Supp. at 1124. On the

other end of the spectrum, an interactive website through which “the defendant enters into

contracts with residents of a foreign jurisdiction that involve the knowing and repeated

transmission of computer files” justifies a court's exercise of personal jurisdiction. Id. If

a website falls somewhere in the middle, “the likelihood that personal jurisdiction can be

constitutionally exercised is directly proportionate to the nature and quality of commercial

activity that an entity conducts over the internet.” Cybersell, 130 F.3d at 419.

In its opposition, plaintiff argues that www.teacherschoice.com is an interactive

website through which consumers “are offered the opportunity to purchase and pay for

[djefendant’s products, including the accused product.” Opp’n at 13. As such, plaintiff

argues that defendant’s website “has placed its products into the stream of commerce with

the intent that Internet users, including those from California, would purchase them” and

that defendant has in fact “shipped accused products directly to the residence of known

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘Oo’ JS-6

Case No. 2:20-cv-10741-CAS-Ex Date June 7, 2021

Title TRUSTEE OF THE SUMMERS FAMILY TRUST TA NEAK

PRODUCTS BUFF WA PTY, LTD. V. NATIONAL DISTRIBUTION

WAREHOUSE, INC.

California residents.”* Id. at 14, 18. Plaintiff further argues that “[a]fter receiving orders

from California residents both through its websites and its customer service representative,

[d]efendant knew the exact billing and shipping address of its customers” in California. Id.

at 18. However, plaintiff presents no evidence to support its assertions that defendant has

made sales targeting California. To the contrary, in support of its opposition, plaintiff puts

forward only a group of exhibits that demonstrate that defendant maintains an interactive

website at www.teacherschoice.com that offers certain products for sale. See dkt. 13-1

(“Teran Decl.”), exh. A-D. Plaintiff does not put forward any evidence demonstrating that

defendant has ever targeted advertising or sales through its website at California residents,

or that any California resident has in fact purchased goods from defendant via

www.teacherschoice.com. Id.; U.S. Ethernet Innovations, LLC v. Acer, Inc., No. C 10-

3724 CW, 2013 WL 4049572, at *3 (N.D. Cal. Aug. 7, 2013) (plaintiffs failed to meet

“their burden to meet the purposeful direction” test because there was “no evidence that

there ha[d] been any United States sales activity [...| or that any such activity took place

within California.”). Accordingly, plaintiff has not made an adequate showing that

defendant purposely directed its activities towards California through its website.* See

* In addition, plaintiff argues that the inclusion of a “Google Pay” payment option on

defendants website demonstrates that specific jurisdiction is appropriate on the grounds

that “Google, LLC, a California company, has a substantial involvement in Defendant’s

internet-based operation.” Opp’n at 15. Even putting aside plaintiffs failure to put

forward any evidence that any California resident has ever interacted with the “Google

Pay” feature on defendant’s website, such an argument is unavailing for the same reasons

that not every seller on eBay.com, a website operated by a California company, is subject

to personal jurisdiction in California—mere interaction with an internet service is

insufficient to establish conduct purposefully directed at consumers in a particular state.

See Imageline, 2009 WL 10286181, at *4.

> The Supreme Court’s recent decision in Ford Motor Co. v. Montana Eighth Jud. Dist. Ct.,

141 S. Ct. 1017, 1028, 209 L. Ed. 2d 225 (2021) does not compel a contrary conclusion.

In Ford, the Supreme Court held that, in some circumstances where a company has

“systematically served a market” for the product at issue in the forum state, a court may

exercise personal jurisdiction over the defendant even when there is no “strict causal

relationship” between the defendant’s in-state conduct and the claims asserted in the

litigation. Id. at 1027-28. That holding has no application here, for at least two reasons.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES — GENERAL ‘Oo’ JS-6

Case No. 2:20-cv-10741-CAS-Ex Date June 7, 2021

Title TRUSTEE OF THE SUMMERS FAMILY TRUST TA NEAK

PRODUCTS BUFF WA PTY, LTD. V. NATIONAL DISTRIBUTION

WAREHOUSE, INC.

Amini Innovation Corp. v. JS Imports, Inc., 497 F. Supp. 2d 1093, 1104 (C.D. Cal. 2007)

(finding that plaintiff could not make a prima facie showing of purposeful availment

because there was no evidence defendants conducted actual commercial transactions or

conducted business with California residents via the website); see_also Hudson-munoz,

LLC v. U.S. Waffle Co., Inc., No. 2:19-CV-01960-ODW-RAO, 2019 WL 3548919, at *3

(C.D. Cal. Aug. 5, 2019) (dismissing for lack of personal jurisdiction where there was “no

evidence that [defendant] acted with a desire to appeal to or exploit a California market”

in maintaining its website).

Moreover, plaintiff's bare assertions that defendant has made sales to California

customers via its website are rebutted by the supplemental declaration submitted by

defendant’s president, Seth Green, who attests that “no accused product has ever been sold

through [www.teacherschoice.com] to California residents or residents of any other state.°

First, by its own terms, the decision in Ford “do[es] not [...] consider internet transactions,

which may raise doctrinal questions of their own.” Id. at 1028, n.4 (citing Walden v. Fiore,

571 U.S. 277, 290, n. 9, 134 S.Ct. 1115, 188 L.-Ed.2d 12 (2014)) (explaining that the

Court’s decision does not stand for the proposition that internet sales give rise to

jurisdiction in any state where the product sold causes harm). Second, unlike in Ford,

where it was undisputed that Ford had longstanding, systematic contacts with the forum

states—including through advertising, sales, and maintenance services for the vehicle

models at issue—there is no evidence in this case demonstrating that defendant has ever

transacted business, maintained a physical presence, or advertised any products in

California. See Ford, 141 S.Ct. at 1028 (noting that “Ford has here conceded “purposeful

availment’ of the two States’ markets’).

Plaintiff's evidentiary objections to the Green Supplemental Declaration are

OVERRULED. Dkt. 15. The Court finds that the Green Supplemental Declaration does

not “unfairly ambush” plaintiff in violation of Fed. R. Civ. P. 6(c)(2)’s requirement that

evidence be served alongside a motion because “evidence is not new if it directly responds

to proof adduced in opposition to a motion,” as 1s the case here. Quidel Corp. v. Siemens

Med. Sols. USA, Inc., No. 16-CV-3059-BTM-AGS, 2019 WL 1409854, at *3 (S.D. Cal.

Mar. 27, 2019) (affidavit directly responding to substance of plaintiff's opposition was not

“new” within the meaning of Rule 6(c)(2)): See also In re ConAgra Foods, Inc., 90 F. Supp.

3d 919, 955 (C_D. Cal. 2015) (same). Likewise, Green’s attestation that “the information

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘Oo’ JS-6

Case No. 2:20-cv-10741-CAS-Ex Date June 7, 2021

Title TRUSTEE OF THE SUMMERS FAMILY TRUST TA NEAK

PRODUCTS BUFF WA PTY, LTD. V. NATIONAL DISTRIBUTION

WAREHOUSE, INC.

Dkt. 14-1 (“Green Supp. Decl’), 43. Specifically, Green attests that “no sales to California

have ever been made” via defendant’s website, which has processed a total of “five orders,”

none of which was “ever shipped to California nor did any of the five orders concern the

accused products.” Id. 6-7. Green further attests that defendant “does not employ a

customer service representative for receiving orders from California residents or otherwise

through [d]efendant’s [w]ebsite.” Id. 4 9.

Based on the foregoing, the Court concludes that plaintiff has not carried its burden

to establish purposeful direction targeted at California. As such, the Court finds that

defendant fails to establish that personal jurisdiction exists in California.’ Schwarzenegger,

contained herein is correct based on information available to me at the present time from

the records of [d]efendant and my own personal knowledge,” is sufficient to establish

personal knowledge pursuant to Fed. R. Evid. § 602, despite Green’s acknowledgement

that he was supplied with some information “by other employees of [d]efendant.”

7 At oral argument, plaintiff asked the Court to permit it to conduct jurisdictional discovery.

Plaintiff argued that despite the declaration evidence defendant has submitted,

jurisdictional discovery could show that defendant made sales in California or shipped

products to Amazon warehouses located in California, without proffering any facts to

support those arguments. A decision to permit or decline jurisdictional discovery lies

within the sound discretion of the district court. See Boschetto v. Hansing, 539 F.3d 1011,

1020 (9th Cir. 2008). “Discovery may be appropriately granted where pertinent facts

bearing on the question of jurisdiction are controverted or where a more satisfactory

showing of the facts 1s necessary.” Id. (internal citations and quotations ommitted).

However, the Ninth Circuit has held that “where a plaintiff's claim of personal jurisdiction

appears to be both attenuated and based on bare allegations in the face of specific denials

made by the defendants, the Court need not permit even limited discovery ....”. Pebble

Beach Co. v. Caddy, 453 F.3d 1151, 1160 (9th Cir. 2006) (citing Terracom v. Valley Nat.

Bank, 49 F.3d 555, 562 (9th Cir. 1995)): see also Lang v. Morris, 823 F. Supp. 2d 966, 979

(N.D. Cal. 2011) (“discovery is not warranted if a plaintiff cannot ‘demonstrate how further

discovery would allow it to contradict the [defendants’] affidavits.’”). Here, although

plaintiff's counsel hypothesized at the hearing that jurisdictional discovery “might” unveil

additional facts that contradict the Green declaration, plaintiff fails to make any showing

contradicting the evidence on the record or that would otherwise explain how, in light of

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘Oo’ JS-6

Case No. 2:20-cv-10741-CAS-Ex Date June 7, 2021

Title TRUSTEE OF THE SUMMERS FAMILY TRUST TA NEAK

PRODUCTS BUFF WA PTY, LTD. V. NATIONAL DISTRIBUTION

WAREHOUSE, INC.

374 F.3d at 802 (explaining that if the plaintiff fails to establish either purposeful direction

or a nexus to a forum-related activity, “personal jurisdiction is not established in the forum

state”).

Accordingly, the Court GRANTS defendant’s motion to dismiss for lack of personal

jurisdiction.

B. Remaining Grounds for Dismissal

The Court concludes that personal jurisdiction is lacking. As such, it does not reach

defendant’s arguments that venue is not appropriate, Mot. at 11, or that plaintiff's

complaint fails to state a claim, Id. at 12.

V. CONCLUSION

In accordance with the foregoing, the Court GRANTS defendant’s motion to

dismiss and DISMISSES plaintiff's complaint for lack of personal jurisdiction.

IT IS SO ORDERED.

00 : 11

Initials of Preparer CM)

that evidence, further discovery “might well demonstrate jurisdictionally relevant facts.”

See Lang, 823 F. Supp. 2d at 979. Accordingly, the Court finds that jurisdictional discovery

is not warranted.