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Tanga. Com LLC v. Gordon

United States District Court, D. Arizona

February 9, 2015

Tanga.com LLC, et al., Plaintiffs,
v.
Christopher Gordon, Defendant.

ORDER

G. MURRAY SNOW, District Judge.

Pending before the Court is Defendant Christopher Gordon's Motion to Dismiss for Lack of Personal Jurisdiction and Alternative Motion to Dismiss for Improper Venue or to Transfer Venue. (Doc. 12.) For the following reasons, the Motion to Dismiss for lack of personal jurisdiction is granted and the Alternative Motion to Dismiss for Improper Venue or to Transfer Venue is denied as moot.

BACKGROUND

This suit arises from a copyright and trademark dispute between Plaintiff Tanga.com LLC ("Tanga") and Defendant Christopher Gordon. Gordon created a popular Internet video by replacing the existing audio of a nature video about honey badgers with his own comical narration. In the video, Gordon often uses the phrase, "Honey Badger Don't Care." Gordon has allegedly copyrighted his narration in the video and trademarked the phrase, "Honey Badger Don't Care."

Plaintiff Tanga.com LLC ("Tanga") is a Delaware limited liability company with its headquarters in Chandler, Arizona that sells merchandise over the Internet. Gordon alleges that Tanga sells t-shirts and other merchandise bearing the "Honey Badger Don't Care" trademark and other expressions from Gordon's copyrighted narration.

On July 25, 2014, Gordon sent Tanga a cease and desist letter, and on August 15, 2014, Tanga filed suit for declaratory relief, requesting a declaration of non-infringement and cancellation of Gordon's federal trademark registrations. Gordon, in response, filed the current Motion, claiming that Gordon does not have sufficient contacts in Arizona to support personal jurisdiction. Tanga has submitted affidavits and other evidence of Gordon's contacts in Arizona, which include travelling to a bookstore in Tempe to promote a book about honey badgers, selling his book through that bookstore, placing a phone call to a radio station to promote the book, creating a website that allows Arizona residents to purchase memorabilia over the Internet, and sending the cease and desist letter to Tanga.

DISCUSSION

I. Legal Standard

Because the Court is resolving this Motion without holding an evidentiary hearing, Tanga "need make only a prima facie showing of jurisdictional facts to withstand the motion." Ballard v. Savage, 65 F.3d 1495, 1498 (9th Cir. 1995); see Brainerd v. Governors of the Univ. of Alberta, 873 F.2d 1257, 1258 (9th Cir. 1989). That is, it "need only demonstrate facts that, if true, would support jurisdiction over the defendant." Ballard, 65 F.3d at 1498. "Conflicts 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) (citing AT&T v. Compagnie Bruxelles Lambert, 94 F.3d 586, 588 (9th Cir. 1996)).

To establish the prima facie case for personal jurisdiction, the plaintiff has the burden of showing that: (1) the forum state's long-arm statute confers jurisdiction over the nonresident defendant; and (2) the exercise of jurisdiction comports with principles of due process. Omeluk v. Langsten Slip & Batbyggeri A/S, 52 F.3d 267, 269 (9th Cir. 1995). Arizona's long-arm statute confers jurisdiction to the maximum extent allowed by the Due Process Clause of the United States Constitution. Ariz. R. Civ. P. 4.2(a); Doe v. American Nat'l Red Cross, 112 F.3d 1048, 1050 (9th Cir. 1997). Due process requires a nonresident defendant to have "certain minimum contacts with [the forum] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice." Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (internal citation omitted). There are two types of personal jurisdiction, general and specific. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473 n.5 (1985). General jurisdiction allows a court to entertain all actions against defendants because they have significant, continuous contacts with a forum state, while specific jurisdiction allows only actions against defendants that relate directly to their contacts with the forum state because the contacts are minimal. See id. In its Response to Gordon's Motion, Tanga makes no argument that this Court may exercise general jurisdiction over Gordon. Rather it asserts that specific jurisdiction exists.

A. Specific Jurisdiction

Defendants' contacts with the forum state are sufficient to subject them to the state's specific jurisdiction if (1) they purposefully directed tortious activities at the forum or a resident thereof or performed some act by which they purposefully availed themselves of the privileges of conducting activities in the forum, (2) the claims arise out of or result from the defendant's forum-related activities, and (3) the exercise of jurisdiction is reasonable. See Bancroft & Masters, Inc. v. Augusta Nat. Inc., 223 F.3d 1082, 1086 (9th Cir. 2000); Brainerd, 873 F.2d at 1259.

1. Purposeful Availment and "Arising out of"

The Ninth Circuit has held that the specific jurisdiction test "may be satisfied by purposeful availment of the privilege of doing business in the forum; by purposeful direction of activities at the forum; or by some combination thereof." Yahoo! Inc. v. La Ligue Contre Le Racisme Et L'Antisemitisme, 433 F.3d 1199, 1206 (9th Cir. 2006) (per curiam) (applying this hybrid purposeful availment/direction test to a plaintiff's claims for declaratory judgment regarding the enforceability of orders issued by a French court). Under either of these tests, plaintiffs must also show that their suit arises out of the defendant's contacts in the forum state. See Terracom v. Valley Nat. Bank, 49 F.3d 555, 561 (9th Cir. 1995); Bancroft & Masters, 223 F.3d ...


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