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Jolie Design & Decor, Inc. v. BB Frosch, LLC

United States District Court, D. Nevada

January 24, 2018

JOLIE DESIGN & DECOR, INC. ET AL.
v.
BB FROSCH, LLC ET AL.

         SECTION I

          ORDER & REASONS

          LANCZE M. AFRICK, UNITED STATES DISTRICT JUDGE.

         Before 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 granted.[1]

         I.

         “When 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).”).

         Once an 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 brought.”).

         The 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.

         “The 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).

         II.

         Plaintiffs 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.[2] 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 jurisdiction.”[3]

         Following a period of jurisdictional discovery, defendants filed the instant motion to dismiss raising the argument, among others, that venue is improper.[4] 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.[5] 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 here.[6]

         At the 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 ...


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