United States District Court, D. Arizona
Honorable G. Murray Snow United States District Judge
before the Court is Defendant's Motion to Dismiss or
Transfer Based on Lack of Personal Jurisdiction and Improper
Venue. (Doc. 13). For the following reasons, the Court grants
the motion and dismisses without prejudice.
Nutrition Distribution LLC filed suit in the Southern
District of California alleging that Defendant Muscle Store
Inc. falsely advertised its products in violation of the
Lanham Act. (Doc. 1). The Southern District of California
transferred the case to the District of Arizona sua
sponte, likely because Nutrition Distribution is an
Muscle Store Inc. is a Florida corporation with its principal
place of business in Bethlehem, Pennsylvania. Muscle Store
operates an online retail site that sells dietary
supplements, and its website is accessible in any of the
fifty states. Muscle Store knows of only six instances when
their product was shipped to Arizona. The owners have no
physical presence in Arizona and have never targeted Arizona.
13, 2017, Muscle Store counsel sent an email to Nutrition
Distribution counsel and asked, “What grounds do you
have for this case being in Arizona? If none, will you
stipulate to move it to Pennsylvania?” (Doc. 19-1, Exh.
1 at 1). Minutes later, Nutrition Distribution counsel
responded, “We are an Arizona corp so that is where the
damage occurred, ” but the response did not otherwise
reference transfer to Pennsylvania. Id. On July 18,
Muscle Store counsel again contacted Nutrition Distribution
counsel about stipulating to transfer to Pennsylvania. (Doc.
18-1 at 2). On July 21, Muscle Store filed this motion to
dismiss. (Doc. 13). Eleven days later, on August 1, Nutrition
Distribution counsel contacted Muscle Store counsel and
stated that Nutrition Distribution is amenable to transfer
venue. (Doc 18-2 at 1). Given that it already filed the
motion to dismiss, Muscle Store chose to proceed with this
motion. Id. Then, on August 8, Muscle Store counsel
asked Nutrition Distribution counsel “to just dismiss
and re-file in the appropriate court” as that would be
the easiest resolution of the issue. (Doc. 19-1, Exh. 3 at
1). Nutrition Distribution counsel responded, “We will
not dismiss.” Id.
Motion to Dismiss for Lack of Personal Jurisdiction
may exercise personal jurisdiction over a non-resident
defendant only if the defendant has sufficient minimum
contacts with the forum state and the exercise of
jurisdiction “does not offend traditional notions of
fair play and substantial justice.” Int'l Shoe
Co. v. Washington, 326 U.S. 310, 316 (1945) (citations
omitted). General personal jurisdiction arises when the
defendant's contacts are continuous and systematic, and
specific personal jurisdiction arises when the lawsuit
results from issues connected with the controversy that
established jurisdiction. Goodyear Dunlop Tires
Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)
(citations omitted). The plaintiff bears the burden to
demonstrate that the court has jurisdiction over the
defendant. Brayton Purcell LLP v. Recordon &
Recordon, 606 F.3d 1124, 1127 (9th Cir. 2010) (citations
omitted). The plaintiff need only make a prima facie showing
to withstand a motion to dismiss. Id.
website and limited sales are not enough to form general
personal jurisdiction. Bancroft & Masters, Inc. v.
Augusta Nat. Inc., 223 F.3d 1082, 1086 (9th Cir. 2000)
(holding that a non-resident company's passive website
and occasional, unsolicited sales did not establish general
personal jurisdiction). Neither does a passive website alone
constitute the express aiming necessary to establish specific
personal jurisdiction. Brayton Purcell LLP v. Recordon
& Recordon, 606 F.3d 1124, 1129 (9th Cir. 2010)
(“It is beyond dispute in this circuit that maintenance
of a passive website alone cannot satisfy the express aiming
Store has never targeted Arizona. It has never had property
or agents in Arizona. It has never directly advertised in
Arizona. Muscle Store's generally accessible website is
its most significant contact to Arizona. Accordingly,
Plaintiff fails to make a prima facie case that the Court has
personal jurisdiction over Defendant.
Dismissal in Lieu of Transfer
suit is in the wrong venue, the district court “shall
dismiss, or if it be in the interest of justice, transfer
such case.” 28 U.S.C. § 1406(a). Although the
Court has discretion to either dismiss the case or transfer
it, any such dismissal is without prejudice. Fed.R.Civ.P.
41(b); In re Hall, Bayoutree Associates, Ltd., 939
F.2d 802, 804 (9th Cir. 1991) (citing Costello v. United
States, 365 U.S. 265, 285-86 (1961)).
is normally in the interest of justice because
“dismissal of an action that could be brought elsewhere
is ‘time-consuming and justice-defeating.'”
Miller v. Hambrick, 905 F.2d 259, 262 (9th Cir.
1990) (quoting Goldlawr, Inc. v. Heiman, 369 U.S.
463, 467 (1962)). The values underlying the preference for
transfer include protecting uninformed plaintiffs and
“removing whatever obstacles may impede ...