Opinion

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4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

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7 DIFUSION 11700, Case No. 25-cv-06215-AMO

8 Plaintiff,

ORDER GRANTING MOTION TO

9 v. DISMISS WITHOUT PREJUDICE

10 COMERCIALIZADORA VNA, S.A. DE Re: Dkt. No. 17

C.V.,

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Defendant.

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13 Before the Court is Defendant Comercializadora VNA, S.A. DE C.V.’s motion to dismiss.

14 The matter is fully briefed and suitable for decision without oral argument. Accordingly, the

15 hearing set for January 22, 2026, is VACATED. See Civil L.R. 7-6; Fed. R. Civ. Pro. 78(b).

16 Having read the parties’ papers and carefully considered their arguments and the relevant legal

17 authority, and good cause appearing, the Court GRANTS the motion, for the following reasons.

18 BACKGROUND

19 Plaintiff Difusion 11700 (“Difusion”) filed suit against Comercializadora VNA, S.A. DE

20 C.V. (“Comercializadora”) on July 23, 2025. See Complaint, Dkt. No. 1 (“Compl.”). The

21 complaint brings one cause of action for declaratory judgment and asks the Court to declare that

22 Difusion has priority rights to the “DESPECHO” mark in the United States. Id. ¶¶ 63, 74(a).

23 Difusion is a Mexican corporation, which owns multiple bars and restaurants throughout Mexico

24 named Despecho. Id. ¶ 4, 15. Comercializadora is a Mexican corporation, which develops and

25 licenses hospitality businesses, including “Sala de Despecho,” a nightlife venue. Id. ¶ 36;

26 Opposition (Dkt. No. 17) at 9. Comercializadora does not own or operate establishments,

27 facilities, or entities in the United States. Dkt. No 17 at 9. Comercializadora’s connection to the

1 Development International LLC (“Blitz”), a Florida company that operates a Sala de Despecho-

2 branded experience in Miami. Id.

3 On September 26, 2025, Comercializadora filed its motion to dismiss, arguing that

4 (1) Difusion failed to properly serve Comercializadora, (2) the Court lacks personal jurisdiction

5 over Comercializadora, (3) venue is improper, (4) the issues presented fall within the primary

6 jurisdiction of the Trademark Trial and Appeal Board, and (5) Difusion failed to state a claim

7 under Federal Rule of Civil Procedure 12(b)(6). The Court only examines the improper service

8 argument below, as it is dispositive.

9 LEGAL STANDARD

10 Dismissal of a case is proper when there is insufficient service of process. See Fed. R. Civ.

11 P. 12(b)(5); Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999) (“In the

12 absence of service of process (or waiver of service by the defendant), a court ordinarily may not

13 exercise power over a party the complaint names as defendant.”); Saye v. Rubin, 225 F.3d 663 (9th

14 Cir. 2000) (affirming dismissal for failure to properly serve defendants pursuant to Fed. R. Civ. P.

15 12(b)(5)). “[I]n the absence of proper service of process, the district court has no power to render

16 any judgment against the defendant’s person or property unless the defendant has consented to

17 jurisdiction or waived the lack of process.” S.E.C. v. Ross, 504 F.3d 1130, 1138-39 (9th Cir.

18 2007). “Once service is challenged, plaintiffs bear the burden of establishing that service was

19 valid under [Federal] Rule [of Civil Procedure] 4.” Brockmeyer v. May, 383 F.3d 798, 801 (9th

20 Cir. 2004). A district court has broad discretion to dismiss an action for failure to effect service.

21 Jones v. Automobile Club of Southern California, 26 Fed. App’x. 740, 742 (9th Cir. 2002).

22 DISCUSSION

23 Difusion avers that it properly served Comercializadora pursuant to Federal Rule of Civil

24 Procedure 4(h)(1)(B), which provides that a corporation may be served “by delivering a copy of

25 the summons and of the complaint to an officer, a managing or general agent, or any other agent

26 authorized by appointment or by law to receive service of process.” Dkt. No. 20 at 2. Difusion

27 filed a proof of service certifying that documents related to this case were left with Juan Losa.

1 SALA DE DESPECHO-branded venue operated by licensee Blitz Development International LLC

2 || in Miami. Rule 4(h)(1)(B) permits service on a managing or general agent, and the manager at the

3 || Miami venue fits that description.” Dkt. No. 20 at 2.

4 But Juan Losa “was not an officer, director, managing or general agent, or otherwise

5 authorized to accept service on behalf of Comercializadora.” Dkt. No. 17 at 12; see Agent

6 || Declaration (Dkt. No. 17-1) §§[ 15-16. In fact, Comercializadora’s agent declared that the

7 company “has no record of employing, contracting with, or otherwise retaining any individual

8 named ‘Juan Losa’” and “has no employees, officers, directors, or authorized representatives

9 || working at” the Miami address where service was attempted. Dkt. No. 17-1 J] 15-16. □□□ In

10 || response, Difusion fails to provide any countervailing evidence to support the proposition that

11 Losa was authorized to receive service. See generally Dkt. No. 20. Difusion has therefore failed

12 || tocarry its burden of establishing that it properly served Comercializadora.

5 13 CONCLUSION

14 For the foregoing reasons, the Court GRANTS Comercializadora’s motion and dismisses

3 15 || this action without prejudice. In light of this ruling, the Court TERMINATES the parties first

16 discovery letter brief, Dkt. No. 30, as moot. Further, the Court DENIES Comercializadora’s

3 17 request for judicial notice, Dkt. No. 23, as moot because the Court did not consider its contents in

reaching its ruling.

19 The Court directs the Clerk of Court to close this case.

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21 IT IS SO ORDERED.

22 Dated: January 14, 2026

23 Med rf / □

24 coh

95 ARACELI MARTINEZ-OLGUIN

United States District Judge

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