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BBK Tobacco & Foods LLP v. Ejuice

United States District Court, D. Arizona

April 29, 2014

BBK Tobacco & Foods LLP, an Arizona limited liability partnership dba HBI International, Plaintiff,
v.
Juicy eJuice, a Canadian Business Entity; Vapour Limited, a Seychelles Business Entity; et al., Defendants.

ORDER

G. MURRAY SNOW, District Judge.

Pending before the Court are separate Motions to Dismiss from Defendants Nikki's Vapor Bar, USA, Inc. (Doc. 55) and 1673030 Alberta, Inc. (Doc. 57). Also before the Court is Plaintiff's Motion for Leave to File Supplemental Responses to the Motions to Dismiss. (Doc. 81.) For the reason set forth below, the Motion for Leave is denied and the Motions to Dismiss are both denied.[1]

BACKGROUND

The Plaintiff, BBK Tobacco & Foods LLP ("BBK"), sells a variety of smoking related products on its website including the liquid used in electronic cigarettes to create vapor. BBK uses multiple trademarks, many of which incorporate the word "JUICY" as an element such as JUICY JAYS and JUICY DROPS. Some of these trademarks are registered with the United States Patent and Trademark Office ("USPTO"). BBK alleges that Defendants have engaged in trademark infringement, trade dress infringement, and unfair competition.

Defendant Nikki's Vapor Bar, USA, Inc. ("Nikki's Vapor") sells similar products under the name JUICY EJUICE on its website. Nikki's Vapor is a Florida based company that is incorporated in Delaware. It has no physical storefront but its website is accessible from anywhere, including Arizona, and it allows customers to order and have products shipped to Arizona. Arizona is one of many options available to select in a drop-down menu that customers use to enter their mailing address. Nikki's Vapor declares that "through its website, [it] has not sold any Juicy eJuice products in Arizona nor has Nikki's shipped any Juicy eJuice products to Arizona." (Doc. 56-1.) The website invites visitors to contact Nikki's Vapor for franchising opportunities. The website also has a Terms and Conditions that govern the use of the site.

Defendant 1673030 Alberta, Inc., ("Alberta") is a Canadian company. BBK alleges that Alberta sells electronic smoking devices using the word mark JUICY ESTICK and the e-liquids used in such devices. (Doc. 32 ¶¶ 95-96, 146.) BBK alleges that one of the places where Alberta sells its e-liquids and e-sticks is on the JUICY EJUICE website, JuicyeJuice.com. ( Id. ¶¶ 101, 113.) Alberta points out that the website JuicyeJuice.com is not registered to Alberta (Doc. 71 at 2), but also acknowledges that it "conducts sales transactions through websites where customers from around the world can purchase its products." (Doc. 57-1 at 2). Alberta admits that it has sold products to customers in Arizona, but states that in the past year those sales were "less than a third of one percent of its online sales." ( Id. ) BBK had a copy of the Second Amended Complaint served or delivered to Alberta's registered office in Canada. ( Id. )

The online presence, marketing, and sales operations of Nikki's Vapor and Alberta are interconnected. The website for Nikki's Vapor, NikkisVaporBar.com, is actually registered to another defendant in this case, Vapour Ltd. ("Vapour"). (Doc. 55 at 2.) The website JuicyeJuice.com, where Alberta's products are sold, is also registered to Vapour. (Doc. 32 at 12.) When a customer signs up for emails on JuicyeJuice.com, the customer will receive promotional emails listing the name and address of Nikki's Vapor. (Doc. 59-1) Those emails originate from a third website, eStick.com, but they link customers back to the website for Nikki's Vapor. When a customer purchases an Alberta product on JuicyeJuice.com, that customer then receives email confirmations and updates from the third website, eStick.com. (Doc. 66-1.) The charge on the order from JuicyeJuice.com is listed on the credit card statement as being from "NIKKI'S LIQUID" and the product ordered arrives from the Florida address of Nikki's Vapor. ( Id. )

The management and ownership of Nikki's Vapor and Alberta also overlap. Allan Mackintosh is the Chief Operating Officer of Nikki's Vapor. (Doc. 56-1.) Trevor Westlake is a Director of Alberta. (Doc. 57-1.) Allan Mackintosh and Trevor Westlake are the only two voting shareholders for Alberta, each with a fifty-percent share. (Doc. 69-1 at 18.) Mackintosh declares that Nikki's Vapor is incorporated in Delaware and has a principle place of business in Florida, but he signed that declaration and had it notarized in Canada. (Doc. 56-1.) Westlake declares that Alberta is incorporated and has its principle place of business in Canada, most of its employees are "located" in Canada, and it has no offices in America, but he signed that declaration and had it notarized in Florida. (Doc. 57-1.) Nikki's Vapor and Alberta are both represented by the same counsel in this lawsuit. That counsel filed a joint motion (Doc. 86) by both defendants and motions by Alberta (Docs. 57, 71) that repeatedly references and incorporates the motions by Nikki's Vapor (Docs. 55, 70).

BBK filed a proof of service with this Court indicating that it served Alberta at its registered office in Canada on September 30, 2013. (Doc. 48.) Alberta acknowledges that it "was served with a copy of the Second Amended Complaint at its registered address in Alberta, Canada, " (Doc. 57-1) but contends that it did not accept service or that the service was insufficient (Doc. 71 at 5). BBK also submitted a declaration from the Canadian attorney who hired the process server. (Doc. 69-1 at 2-4.) In that declaration the attorney describes the applicable rules governing service on Alberta and attests that the service was performed in compliance with those rules. ( Id. ) Alberta does not contest that issue, but instead argues that the relevant issue is whether the service complied with the Federal Rules of Civil Procedure and the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents ("Hague Convention"). (Doc. 71 at 4.)

DISCUSSION

I. Supplemental Responses and Discovery

BBK's Motion for Leave to File and its requests for limited discovery on the issue of personal jurisdiction are denied. This Court earlier granted a stipulation by BBK and Nikki's Vapor to allow BBK to file a supplemental response with respect to Nikki's Vapor. (Docs. 63, 66, 68.) BBK now seeks leave to file a supplemental response concerning Alberta and a second supplemental response concerning Nikki's Vapor. (Doc. 81.) Nikki's Vapor and Alberta filed a joint response opposing that request. (Doc. 86.) BBK's request is denied because it has already had a full opportunity to brief its position.

In the Ninth Circuit, jurisdictional discovery should "ordinarily be granted where pertinent facts bearing on the question of jurisdiction are controverted or where a more satisfactory showing of the facts is necessary.'" Butcher's Union Local No. 498 v. SDC Invest., Inc., 788 F.2d 535, 540 (9th Cir. 1986) (quoting Data Disc, Inc. v. Sys. Tech. Assocs., Inc., 557 F.2d 1280, 1285 n.1 (9th Cir. 1977)). As explained below, discovery is unwarranted because facts establishing jurisdiction have been sufficiently plead.

II. Service

Compliance with the Hague Convention is mandatory in cases involving service in a signatory country and it determines in part the validity of service. Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004). Alberta is a Canadian company and the Parties agree that Canada is a signatory to the Hague Convention. The Hague Convention "regularized and liberalized service of process in international civil suits." Id. It did so principally by requiring each country to set up a Central Authority which must effectuate service when it is provided with documents that comply with its rules. Id.

In addition to establishing a new and uniform system of service, the Hague Convention also "shall not interfere with" other enumerated types of service "[p]rovided the State of destination does not object." Hague Convention, art. 10. Those other types of service include:

b) the freedom of judicial officers, officials or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination,
c) the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination.

Id. Alberta states that, according to Canada's declaration at signing, the "normal procedure" should be service by a sheriff and that only "on occasion" has Canada not objected to the other forms of service. (Doc. 71 at 3.) In fact, the declaration quoted is only describing what the "normal procedure" will be when the Central Authority is used to affect formal service and Canada does not actually declare a preference or a requirement for such formal service. Text of the Declarations of Canada, Hague Conference ...


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