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Kewlmetal Inc. v. Bike Builders Bible Inc.

United States District Court, D. Arizona

December 15, 2015

Kewlmetal Inc., et al ., Plaintiffs,
Bike Builders Bible, Inc., Defendant.




At docket 17 defendant Bike Builders Bible, Inc. (“BBB”) moves for an order dismissing the complaint of plaintiffs Kewlmetal, Inc. and Joseph B. Gschweng (collectively, “Kewlmetal”) pursuant to Rule 12(b)(3) of the Federal Rules of Civil Procedure or, alternatively, transferring venue to the United States District Court for the Central District of California pursuant to 28 U.S.C. § 1404(a) or § 1406(a). Kewlmetal opposes at docket 26 and submits evidence at docket 27. BBB replies at docket 28. Oral argument was heard on December 14, 2015.


Kewlmetal owns a patent titled “Motorcycle Rake and Trail Adjuster, ” which “relates to the modification of a motorcycle and covers bolt-on neck kits that incorporate a false neck.”[1] BBB is a California corporation with a principal place of business in California.[2] Kewlmetal’s complaint alleges claims against BBB for patent infringement and common law unfair competition based on BBB’s “advertising, marketing, offering for sale, selling, and/or distributing . . . Big Wheel and other Bolt-On Neck Kits under the American Suspension label” that infringe upon Kewlmetal’s patent (“the infringing products”).[3]


Venue challenges may be brought under Rule 12(b)(3) and 28 U.S.C. § 1406.[4] If the district court rules that venue is improper, it must either dismiss the case or, “if it be in the interest of justice, transfer [the] case to any district or division in which it could have been brought.”[5] The decision whether to dismiss or transfer the case “in the interests of justice” is committed to the court’s discretion.[6] The general preference, however, is for the case to be transferred instead of dismissed altogether.[7]

The plaintiff bears the burden of showing facts that establish that venue is proper.[8] Although the court need not accept the pleadings as true and may consider facts outside the pleadings, [9] it “must draw all reasonable inferences in favor of the non-moving party and resolve all factual conflicts in favor of the non-moving party.”[10] If the parties raise genuine factual issues, the district court has discretion to hold the Rule 12(b)(3) motion in abeyance until it holds an evidentiary hearing on the disputed facts, or to “deny the Rule 12(b)(3) motion while granting leave to refile it if further development of the record eliminates any genuine factual issue.”[11]

Even if venue is proper, a district court may transfer venue to another district pursuant to 28 U.S.C. § 1404(a). When deciding a motion for transfer of venue under § 1404(a), which displaces the common law doctrine of forum non conveniens as to transfers between federal district courts, [12] “a court must balance the preference accorded plaintiff’s choice of forum with the burden of litigating in an inconvenient forum. The defendant must make a strong showing of inconvenience to warrant upsetting the plaintiff’s choice of forum.”[13] Whether a motion for transfer of venue should be granted is committed to the discretion of the district court.[14]


A. Kewlmetal Has Made a Prima Facie Showing That BBB Is Subject To Personal Jurisdiction in Arizona

28 U.S.C. § 1400(b) states in pertinent part that a “civil action for patent infringement may be brought in the judicial district where the defendant resides.”[15] BBB “resides” in Arizona if it is subject to personal jurisdiction here.[16] This determination involves two inquires: whether Arizona’s “long-arm statute permits service of process and whether assertion of personal jurisdiction violates due process.”[17] Because Arizona’s long-arm statute confers jurisdiction to the maximum extent permissible under the due process clause, [18] the statutory inquiry collapses into the constitutional analysis, [19] which is governed by the law of the Court of Appeals for the Federal Circuit.[20]

Due process allows the exercise of both general and specific personal jurisdiction. The broader of the two, general personal jurisdiction, “requires that the defendant have ‘continuous and systematic’ contacts with the forum state and confers personal jurisdiction even when the cause of action has no relationship with those contacts.”[21] ‚ÄúSpecific jurisdiction, on the other hand, must be based on activities that arise out of or relate ...

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