Summary
finding allegation that defendant's website was accessible in the district containing plaintiff's place of business to be insufficient basis for venue in a trademark case, noting that to find venue would "be to adopt a rule that would subject any corporation with a website to venue in the district in which plaintiff does business . . . [a rule] that would dramatically alter the present venue statute"
Summary of this case from Duck Dive LP v. HeydariOpinion
No C-01-4846 VRW
May 15, 2002
ORDER
Defendant moves to dismiss for improper venue, pursuant to 28 U.S.C. § 1406(a), or, in the alternative, to transfer this matter to the United States District Court for the Central District of California. Docs ##5, 9, 12. The court finds this matter appropriate for disposition without oral argument. See Civ LR 7-1(b). The hearing scheduled for May 16, 2002, is hereby VACATED.
On December 10, 2001, plaintiff filed its complaint, asserting trademark violations by defendant. Plaintiff's complaint states that federal jurisdiction arises under the Lanham Act, 15 U.S.C. § 1501 et seq. Compl (Doc #1). Plaintiff also asserts that venue is proper in the Northern District under 28 U.S.C. § 1391(b) because "a substantial part of the events giving rise to these claims occurred in this district" and "because Defendant's contacts with this district would be sufficient to subject it to personal jurisdiction if this district were a separate state." Id. at ¶ 2.
Defendant, in its words, "provid[es] voice enabled services uniting the Internet, telephone and speech recognition, primarily to the optical profession." Harding Decl (Doc #6) at ¶ 2. Defendant is a small company, incorporated in the city of Downey, California, which is located in Los Angeles County. See id. at ¶ 4. Defendant's sole office is located in Sante Fe Springs, California, which is also in Los Angeles County. See id at ¶ 5. Defendant contends that its contacts with the Northern District are insufficient to establish venue in this district and that the matter should either be dismissed or transferred to the Central District.
As the Lanham Act does not have its own venue provision, the general venue statute, 28 U.S.C. § 1391, is applicable. See Woodke v. Dahm, 70 F.3d 983, 985 (8th Cir. 1995). Section 1391(b) governs venue for federal-question actions. This section provides that venue is only appropriate in:
(1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought.
Pursuant to § 1391(c), a corporate defendant "resides" in any district in which it is subject to personal jurisdiction at the time the action is commenced. When an action is filed in an improper district, upon the filing of a timely motion the court must either dismiss the action or transfer it to any appropriate district. 28 U.S.C. § 1406(a). When an appropriate jurisdiction does exist, transfer is preferable to dismissal. See Minnette v. Time Warner, 997 F.2d 1023-1026-27 (2d Cir. 1993).
Plaintiff contends that venue is appropriate in the Northern District because a substantial part of the events or omissions giving rise to its claims occurred in this district. Plaintiff alleges that because defendant operates a website that may be accessed in the Northern District and because plaintiff's principal place of business is in San Francisco, the "confusion caused by Defendant's activities most likely will occur and will continue to occur in the Northern District." Pl. Opp (Doc #15) at 6.
The fact that defendant operates a website, which may be accessed anywhere in the United States, and that plaintiff's principal place of business is in the Northern District does not, however, establish that venue is proper in the Northern District. To accept plaintiff's contention would be to adopt a rule that would subject any corporation with a website to venue in the district in which plaintiff does business. Such a rule, however, would dramatically alter the present venue statute.
In fact, plaintiff's contention was essentially rejected in a case cited by plaintiff: Woodke v. Dahm, 70 F.3d 983 (8th Cir. 1995). InWoodke, Woodke filed suit under the Lanham Act in the federal district of his residence, alleging that venue was appropriate there as it was the location of the ultimate effect of appellee's infringing activities. The Eighth Circuit rejected this contention, holding that to permit venue in such a district would be impermissibly to re-write the venue statute:
While it is true that the Lanham Act requires a plaintiff who "believes that he or she is likely to be damaged" by defendant's conduct, 15 U.S.C. § 1125(a)(1), we believe that accepting Mr. Woodke's argument would work a transformation of the venue statute that Congress could not have intended. One of the central purposes of statutory venue is to ensure that a defendant is not "haled into a remote district having no real relationship to the dispute." Cottman Transmission Sys, Inc. v. Martino, 36 F.3d 291, 294 (3d Cir. 1994). While the present venue statute was certainly intended to expand the number of venues available to a plaintiff, we are reluctant to impute to Congress an intent to abandon altogether the protection of defendants as a relevant consideration in venue matters. We think it far more likely that by referring to "events or omissions giving rise to the claim," Congress meant to require courts to focus on relevant activities of the defendant, not of the plaintiff. * * * [I]f Congress had wanted to lay venue where the plaintiff was residing when he was injured, it could have said so expressly.
Id. at 985.
This determination, that the events or omissions inquiry focuses on the location of the defendant's conduct in Lanham Act cases, is consistent with that of other courts considering the issue. See, e.g., Cottman, 36 F.3d at 295-96. Accordingly, to establish that venue is appropriate in the Northern District, plaintiff must point to some events or omissions by defendant giving rise to its claim that occurred in this district.
It is, however, essentially uncontroverted that defendant's business contacts with the Northern District have been extremely limited. According to defendant, as of the date the lawsuit was filed, defendant had no clients in northern California in its client database. Harding Decl (Doc #6) at ¶ 6. Defendant does not advertise in the yellow pages in the Northern District. Defendant does no direct advertising in northern California, nor does defendant send any advertising mailers, brochures or letters into northern California. See id. at ¶ 9. Defendant, in short, does not direct any business activities at the Northern District, nor profit from any business activities in this district.
Plaintiff contends that the fact that defendant operates a general access website that may be accessed by residents within the Northern District provides a basis for venue in this district. As noted, if this were the case, venue would be appropriate in any district in the United States. Although the court is not aware of any decision discussing the effect of an internet site on venue, the Ninth Circuit has made it clear in a series of recent decisions that in order to establish personal jurisdiction, a plaintiff must show "something more" than the operation of a general access website, specifically, "conduct directly targeting the forum." Rio Properties, Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1020 (9th Cir. 2002), discussing Cybersell, Inc. v. Cybersell, Inc, 130 F.3d 414, 418-20 (9th Cir. 1997). This "something more" occurs, for example, when a company places print and radio advertisements in the forum state. See, e.g., Rio Properties, 248 F.3d at 1020-22.
Defendant, however, has not done anything more in the Northern District than operate a website that is accessible in this district. Moreover, defendant's website is a general access site that is "essentially passive." Cybersell, 130 F.3d at 420. Although defendant's website apparently contains hyperlinks, allowing a visitor to access different levels of information, see Pranger Decl (Doc #15, Exh B), this website is not "interactive," in that users of the site cannot transact business with the host computer. Cybersell, 130 F.3d at 418. See Pranger Decl (Doc #15, Exh. B). A user cannot, for example, order any products or services from the website.
Finally, plaintiff contends that defendant's partnership with Dialogic, an Intel Company, constitutes contact with this district sufficient to establish personal jurisdiction. As defendant notes, however, although Intel resides in the Northern District, Dialogic itself is a New Jersey corporation and all of defendant's contacts with Dialogic have been through New Jersey.
In short, there have been minimal, if any, "events or omissions" by defendant in the Northern District giving rise to plaintiff's claims. At most, there have been residual effects in the Northern District, by virtue of plaintiff's business operations here. Accordingly, venue is not proper pursuant to § 1391(b)(2). Moreover, defendant's minimal contacts with the Northern District are insufficient to establish personal jurisdiction in this district. Accordingly, venue is not proper pursuant to § 1391(b)(1). Venue, therefore, is not proper in this district.
Venue is undoubtedly proper in the Central District of California. In the interests of justice, therefore, this matter shall be transferred to the Central District. See 28 U.S.C. § 1406(a). Defendant's motion to dismiss (Docs ## 5, 9, 12) is DENIED; defendant's motion to transfer venue (Doc ##5, 9, 12) is GRANTED.
This matter is hereby TRANSFERRED to the United States District Court for the Central District of California, Central Division.
IT IS SO ORDERED.