Getagadget, LLC v. Jet Creations Inc.

Western District of Texas, txwd-6:2019-cv-00330

MOTION to Dismiss for Lack of Jurisdiction by Jet Creations Inc.

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS WACO DIVISION GETAGADGET, LLC § § Plaintiffs, § § V. § Civil Action No. 06:19-cv-330 § JET CREATIONS INC. § § Defendants § § § DEFENDANT'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION, FOR IMPROPER VENUE, AND PURSUANT TO FED. R. CIV. P. 12(B)(6) TO THE HONORABLE JUDGE OF SAID COURT: Now comes JET CREATIONS INC., Defendants in the above-captioned matter and makes and files this, their MOTION TO DISMISS and would show the Court as follows: I. RELIEF REQUESTED 1. Defendants request that this Court DISMISS Plaintiff's suit for lack of personal jurisdiction over the Defendants in this case. Defendants further request that this Court DISMISS Plaintiff's claims as failing to plausibly state a claim upon which relief can be granted under Rule 12(b)(6). In the alternative, Defendants request that this Court GRANT Defendants' Motion to Dismiss for improper venue because the facts alleged in Plaintiff's Complaint do not establish either this Court's jurisdiction or venue in this matter. II. FACTUAL BACKGROUND 2. Plaintiff is a Texas Limited Liability Company having its principal office in Austin Texas. Defendant is a Virginia Corporation having its principal office in Alexandria Virginia. Neither party has any connection whatsoever to Waco, Texas. 3. Plaintiff has alleged in their complaint that facts establishing personal jurisdiction and venue over Defendants in this district are two (2) alleged sales of products of Defendant that were allegedly delivered to customers within this District. 4. Plaintiff has alleged that Defendant has infringed upon Plaintiff's trademark for "BIG BITE" but has provided no plausible factual basis for finding such infringement. Further the complaint fails to plead that Defendants had pre-suit knowledge of the mark, a prerequisite to the claims raised. The complaint largely parrots the statutory elements without providing factual allegations at all, let alone facts that, if taken as true, would establish plausibility. III. ARGUMENTS & AUTHORITIES – 12(b)(6) 5. Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." To survive a motion under Federal Rule of Civil Procedure 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its fact.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements," must be disregarded. Id. "Factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. "Where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged – but it has not 'shown' – 'that the pleader is entitled to relief.'" Iqbal, 556 U.S. at 679. 6. In deciding a motion to dismiss under Rule 12(b)(6), "the Court must accept all factual allegations in a complaint as true and take them in the light most favorable to the plaintiff." Erickson v. Pardus, 127 S.Ct. 2197 (2007). A mere allegation of infringement is insufficient under Twombly and Iqbal if it simply recites some of the elements of a representative claim and then describes in a conclusory fashion how a mark was allegedly infringed upon. IV. FACTUAL BACKGROUND A. The Complaint 7. Plaintiff's Complaint generally alleges trademark infringement against Defendant by stating that Plaintiff owns a mark for "BIG BITE" and that Defendant has sold a product with the term "BIG BITE" in the title and/or description for the product. 8. Plaintiff's complaint makes no attempt to describe how such product infringes upon its mark, or to provide any further facts outlining the alleged infringement. Plaintiff's complaint does not provide a single supporting fact for its assertion of infringement beyond identifying their mark and a product for which is was used and then identifying a product sold by Defendant. 8. Plaintiff's brief complaint has not plausibly alleged any infringement upon any mark of Plaintiff because it has wholly failed to describe the infringing actions, describe how the mark was infringed upon, describe how the alleged infringing activity falls within the scope of the covered mark, or any facts beyond a mere recitation of the statutory language and an allegation that Defendants have engaged in conduct falling within the language. V. ARGUMENTS & AUTHORITIES – PERSONAL JURISDICTION 9. The Plaintiff bears the burden of establishing personal jurisdiction. See Synthes (U.S.A.) v. G.M. Dos Reis Jr. Ind. Com. De Equip. Medico, 563 F.3d 1285, 1294 (Fed. Cir. 2009). To make that showing, the Plaintiff must establish either "general" or "specific" jurisdiction over the Defendant. See Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 414-16 (1984). The personal jurisdiction question is well-known and requires looking to the "minimum- contacts" of the Defendant with the jurisdiction in question, and specifically Courts will look to see: (1) whether the defendant "purposefully directed its activities at residents of the forum"; (2) whether the cause of action arises out of or relates to those activities; and (3) whether its assertion of personal jurisdiction would be "reasonable and fair." See Alpha Tech., 2018 WL 501598, at *4 (citing 3d Sys., Inc. v. Aarotech Labs., Inc., 160 F.3d 1373, 1378 (Fed. Cir. 1998)). "The first two factors correspond with the minimum contacts prong of the International Shoe analysis, and the third factor with the fair play and substantial justice prong of analysis." Inamed Corp. v. Kuzmak, 249 F.3d 1356, 1360 (Fed. Cir. 2001) (internal quotations omitted). 10. Only after the plaintiff has met its burden as to the first two prongs, must the Court determine whether the exercise would be reasonable and fair. See Id. at 1363. In doing so, the Court must consider: "(1) the burden on the defendant, (2) the interests of the forum state, (3) the plaintiff's interest in obtaining relief, (4) the interstate judicial system's interest in obtaining the most efficient resolution of controversies, and (5) the shared interest of the several States in furthering fundamental substantive social policies." Id. 11. The Court should dismiss this case for lack of personal jurisdiction. Plaintiff has failed to plausibly allege that Defendant is subject to the personal jurisdiction of this Court. First, Jet Creations, Inc. is not incorporated in Texas and does not consent to general jurisdiction in this Court. Second, Jet Creations, Inc. has not engaged "in substantial and not isolated activity within this state." See Helicopteros, 466 U.S. at 414-16. 12. Plaintiff's complaint alleges online sales through distributors and subsidiaries and other separate entities through which Defendant sells its products. Plaintiffs complaint then alleges that two (2) unnamed consumers purchased a product from Walmart and Amazon and received such products in Waco. However, Plaintiff's complaint makes no mention nor provides any factual allegations or evidence of any consumers purchasing any products from Defendants. Therefore, Defendants do not have the sufficient "minimum contacts" with Texas to confer personal jurisdiction over them to this Court. VI. ARGUMENTS & AUTHORITIES - VENUE 13. In additional to dismissing this action for lack of personal jurisdiction, the Court should also dismiss this action for improper venue. See Fed. R. Civ. P. 12(b)(3) & 28 U.S.C. Sec. 1391. A domestic corporation can only be sued in its state of incorporation or a district where it has both committed acts of infringement and has a regular and established place of business. See TC Heartland v. Kraft Food Grp. Brands LLC, 137 S.Ct. 1514, 1517 (2017), 28 U.S.C. Sec 1391. This action should be dismissed for improper venue first because Jet Creations Inc is not incorporated, and thus does not reside, in Texas. See TC Heartland, 137 S.Ct. at 1517 (stating that "a domestic corporation 'resides' only in its State of incorporation). Second, as explained above, Jet Creations Inc has committed no act in this District, let alone an act constituted the alleged trademark infringement. Finally, Jet Creations Inc maintains its principal place of business in Alexandria, Virginia. Thus, it does not have a "regular and established place of business" in this judicial district. For these reasons, venue is improper in the Western District of Texas. VII. CONCLUSION 14. The Court should dismiss Getagadget LLC's complaint in its entirety for failing to plausibly plead infringement under Rule 12(b)(6). Getagadget LLC's allegation lack the requisite facts necessary to show that its claims are plausible on their face, fail to put Jet Creations Inc on notice of any alleged infringement, and are therefore insufficient under Supreme Court precedent. The Court should further dismiss Jet Creations Inc under Rule 12(b)(6) for lack of personal jurisdiction and under Rule 12(b)(3) for improper venue. Respectfully submitted this 26th day of July, 2019. Respectfully Submitted, /s/ Ross B. Russell _____________________________________ ROSS B. RUSSELL Texas State Bar No. 24090875 North Dakota Bar No. 08450 Washington DC Bar No. 1033711 Minnesota State Bar No. 0398797 LAW OFFICES OF ROSS RUSSELL, P.C. 100 N. 6th Street, Suite 701 Waco, Texas 76701 Telephone: (254) 307-0019 Facsimile: (254) 307-0436 /s/ Justin King _____________________________________ Justin King WPAT PC Virginia Bar No. 94214 230 Boone Blvd. Suite 405 Vienna, VA 22182 Tel: +1(703) 639-0151 Fax: +1(703) 880-7487 jking@wpat.com **Pro Hace Vice to Follow ATTORNEYS FOR DEFENDANTS CERTIFICATE OF SERVICE I hereby certify that I have served this filing on July 26, 2019 by email to opposing counsel. /S/ ROSS B. RUSSELL __________________________________ ROSS B. RUSSELL