Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

The Blueberry Hill LLC v. Shalom International Corp.

United States District Court, D. Utah, Central Division

November 15, 2017

The Blueberry Hill LLC, Plaintiff,
v.
Shalom International Corp., Defendant.

          MEMORANDUM DECISION AND ORDER

          DAVID SAM SENIOR JUDGE.

         I. INTRODUCTION

         Plaintiff The Blueberry Hill LLC, (“Blueberry Hill”) is a Utah limited liability company that sells infant wear, including whimsical deer and fox outfits. Blueberry Hill contends that in December 2016, Shalom International Corp. (“Shalom”) solicited its products online and shortly thereafter Blueberry Hill discovered that Shalom was producing “knock-off” products which Blueberry Hill purchased at a retail store in Sandy, Utah. Blueberry Hill alleges in its Complaint that Shalom, a New Jersey corporation, sells infant ware that infringes on its copyright and trade dress rights, and violates Utah law regarding unfair competition and deceptive trade practices.

         Shalom moves to dismiss the case for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2) and (3) and/or 28 U.S.C. § 1406(a), or in the alternative to transfer the case to the District of New Jersey.

         II. DISCUSSION

         A. Waiver[1]

         Blueberry Hill asserts that “Shalom waived its ability to challenge jurisdiction and venue through a Rule 12(b) motion when it filed its answer almost a month before filing its Motion.” Mem. Opp'n at 4. The Court disagrees.

         Federal Rules of Civil Procedure 12(b)(2), (3) and 12(h)(1) provide that “... a party may assert the following defenses by motion: ... (2) lack of personal jurisdiction; (3) improper venue” which are waived “by failing to either: (i) make it by motion under this rule; or (ii) include it in a responsive pleading ....” Shalom preserved those defenses by asserting them in its Answer. See Stjernholm v. Peterson, 83 F.3d 347, 349, (10th Cir.), cert. denied, 519 U.S. 930 (1996) (“A party waives the right to challenge venue if he fails to raise that defense either in his responsive pleading or in a motion to dismiss under Fed.R.Civ.P. 12(b)(3). Fed.R.Civ.P. 12(h)(1).”); OSG Inc. v. Schlittler, No. 2:11-cv-871-TC, 2012 WL 1493944, at *2 (D. Utah April 27, 2012). (granting a Rule 12(b)(2) motion even though it was filed after the answer, because “[b]y raising its personal jurisdiction defense for the first time in its Answer, [defendant] preserved the defense”); Fabara v. GoFit, LLC, 308 F.R.D. 380, at 393-94 (D.N.M. 2015) (citations omitted) (although “a defendant may implicitly waive the defense by waiting a significant period after filing the answer to submit a rule 12(b)(2) motion .... courts have held that waiting two to seven months after filing the answer to submit a rule 12(b)(2) motion is insufficient to constitute waiver”).

         B. Personal Jurisdiction

         1. Standard of Review

         Plaintiff bears the burden of establishing personal jurisdiction over a defendant. Shrader v. Biddinger, 633 F.3d 1235, 1239 (10th Cir. 2011). When responding to a Rule 12(b)(2) motion filed prior to an evidentiary hearing as is the case here, a plaintiff need only make a prima facie showing of personal jurisdiction by demonstrating with affidavits or other written materials facts which support jurisdiction. Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1070 (10th Cir. 2008). Allegations in the complaint are taken as true if they are plausible, nonconclusory, non speculative and to the extent they are not controverted by submitted affidavits. Id. at 1070. When a defendant submits evidence to support a challenge to personal jurisdiction, the plaintiff has a duty to come forward with evidence supporting the jurisdictional allegations of the complaint. Pytlik v. Professional Resources, Ltd., 887 F.2d 1371, 1376 (10th Cir. 1989). Factual disputes in the affidavits are resolved in plaintiff's favor, and “the plaintiff's prima facie showing is sufficient notwithstanding the contrary presentation by the moving party.” Wennz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir. 1995) (internal quotation marks and citation omitted).

         2. Analysis

         Determination of whether a federal court has personal jurisdiction over a nonresident defendant involves two questions. “First we ask whether any applicable statute authorizes the service of process on defendants. Second, we examine whether the exercise of such statutory jurisdiction comports with constitutional due process demands.” Dudnikov, 514 F.3d at 1070.

         Blueberry Hill claims federal question jurisdiction under both the Copyright Act, 17 U.S.C. § 501, and the Lanham Act's trademark law, 15 U.S.C. § 1125(a). Neither the Copyright Act, nor the Lanham Act provide for nationwide service of process. See Capitol Federal Sav. Bank v. Eastern Bank Corp., 493 F.Supp.2d 1150, 1158 (D. Kan. 2007) (Lanham Act); Dudniko ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.