United States District Court, D. Nevada
JOLIE DESIGN & DECOR, INC. ET AL.
BB FROSCH, LLC ET AL.
ORDER & REASONS
M. AFRICK, UNITED STATES DISTRICT JUDGE.
the Court is defendants' motion to dismiss, or
alternatively to transfer, for improper venue, to dismiss for
lack of personal jurisdiction, and to dismiss for failure to
state a claim upon which relief can be granted. For the
following reasons, the motion to dismiss for improper venue,
for lack of personal jurisdiction, and for failure to state a
claim is denied, and the motion to transfer is
venue is challenged, the court must determine whether the
case falls within one of the three categories set out in [28
U.S.C.] § 1391(b). If it does, venue is proper; if it
does not, venue is improper, and the case must be dismissed
or transferred under § 1406(a).” Atl. Marine
Const. Co. v. U.S. Dist. Court for W. Dist. of Texas,
134 S.Ct. 568, 577 (2013). In determining whether venue is
proper, “the court is permitted to look at evidence in
the record beyond simply those facts alleged in the complaint
and its proper attachments.” Ambraco, Inc. v.
Bossclip B.V., 570 F.3d 233, 238 (5th Cir. 2009);
see also Kranos IP Corp. v. Riddell, Inc., No.
17-443, 2017 WL 3704762, at *2 (E.D. Tex. Aug. 28, 2017)
(Gilstrap, J.) (“With this in mind, two potential
sources of factual information come into play in the improper
venue analysis: (1) the well-pleaded facts in a
plaintiff's complaint; and (2) affidavits or evidence
submitted by a defendant in support of its motion to dismiss
(or by a plaintiff in response thereto).”).
objection to venue has been raised, “the burden is on
the plaintiff to establish that the district he chose is a
proper venue.” Ross v. Digioia, No. 11-1827,
2012 WL 72703, at *2 (E.D. La. Jan. 10, 2012) (Vance, J.)
(citing Perez v. Pan American Life Ins. Co., 70 F.3d
1268 (5th Cir. 1995)); see also Advanced Dynamics Corp.
v. Mitech Corp., 729 F.Supp. 519, 519 (N.D. Tex. 1990)
(“When an objection to venue has been raised, it is the
[p]laintiff's burden to establish that venue is proper in
the judicial district in which the action has been
general venue statute, 28 U.S.C. § 1391, provides that a
civil action may be brought in:
(1) a judicial district in which any defendant resides, if
all defendants are residents of the State in which the
district is located;
(2) a judicial district in which a substantial part of the
events or omissions giving rise to the claim occurred, or a
substantial part of property that is the subject of the
action is situated; or
(3) if there is no district in which an action may otherwise
be brought as provided in this section, any judicial district
in which any defendant is subject to the court's personal
jurisdiction with respect to such action.
first two paragraphs of § 1391(b) define the preferred
judicial districts for venue in a typical case, but the third
paragraph provides a fallback option.” Atl.
Marine, 134 S.Ct. at 578. The third paragraph's
“catchall provision does not apply where §
1391(b)(1) or (2) supplies an available venue.”
Flores v. TDCJ Transitorial Planning Dep't
So. Region Inst. Div., No. 14-283, 2015 WL 5554630, at
*4 (S.D. Tex. Sept. 21, 2015).
Jolie Design & Décor, Inc. (“Jolie
Design”) and Annie Sloan Interiors, Ltd. (“Annie
Sloan”) allege that defendants BB Frosch, LLC
(“BB Frosch”), its members Jason and Kristin
Smith, and the JKKJKK Trust sell a powder for use in
decorative paints that infringes upon Annie Sloan's
federally registered “chalk paint” trademark and
Jolie Design's exclusive rights therein. They filed the
present lawsuit asserting that venue was proper in the
Eastern District of Louisiana “because a substantial
part of the events or omissions giving rise to the claims
occurred in this district; or, in the alternative, this is a
district where the defendants are subject to personal
a period of jurisdictional discovery, defendants filed the
instant motion to dismiss raising the argument, among others,
that venue is improper. In their motion to dismiss, defendants
contend that they are not subject to personal jurisdiction in
the Eastern District of Louisiana and that a substantial part
of the events or omissions giving rise to the plaintiffs'
claims did not occur here. Though plaintiffs submitted extensive
briefing on the issue of personal jurisdiction, they
inexplicably failed entirely to address defendants'
arguments concerning whether a substantial part of the events
or omissions giving rise to their claims occurred
outset, the Court notes that whether it may assert personal
jurisdiction over the defendants is irrelevant for the
purposes of venue in this case. The venue statute's
fallback provision, § 1391(b)(3), does allow for an
action to be brought in any district in which a defendant is
subject to the court's personal jurisdiction. However,
the provision applies “if there is no district in which
an action may otherwise be brought as provided in [§
1391(b)].” In other words, § 1391(b)(3) may only
be invoked when §§ 1391(b)(1) and (2) fail to
provide a viable venue. Neither party disputes that ...