United States District Court, D. Nevada
M. NAVARRO, DISTRICT JUDGE
before the Court is the Motion to Dismiss for Lack of
Personal Jurisdiction, or in the alternative, to Transfer
Venue under 28 U.S.C. § 1404(a), (ECF No. 5), filed by
Defendant AimClear LLC (“Defendant”). Plaintiff
Lens.com Inc. (“Plaintiff”) filed a Response,
(ECF No. 7), and Defendant filed a Reply, (ECF No. 8). For
the reasons discussed below, Defendant's Motion is
GRANTED in part and DENIED in part.
case arises out of an alleged breach of contract between the
parties. (Compl. ¶¶ 11- 20, Ex. B to Notice of
Removal, ECF No. 1-1). Defendant is a Minnesota-based company
that provides digital advertising services. (Id.
¶¶ 8-9). Plaintiff is a Nevada, e-commerce company
selling optical products, contact lenses, and contact lens
accessories. (Id. ¶¶ 6-7). According to
Plaintiff, Defendant's founder, Marty Weintraub, met with
Plaintiff's Chief Marketing Officer, Ian Morrison, to
discuss entering into a business relationship in November
2017. (Id. ¶ 3); (Resp. 4:22-5:2, ECF No.7). In
January 2018, the parties executed a services agreement (the
“Agreement”), the purpose of which was “for
[Defendant] to provide digital marketing services,
advertising campaigns, social media management services, and
public relations for [Plaintiff].” (Compl.
¶ 11). As pertinent to this case, the Agreement contains
the following forum-selection clause: “Any action shall
be venued in Duluth, St. Louis County, Minnesota, and shall
be subject to Minnesota law.” (Agreement at 3, Ex. A to
MTD, ECF No. 5-1). Plaintiff alleges Defendant breached the
Agreement by performing minimal social media work, failing to
attract enough visitors to Plaintiff's website, failing
to properly track traffic, and failing to perform public
relations work. (Id. ¶¶ 15-19).
filed its Complaint on January 2, 2019, in the Eighth
Judicial District Court of Clark County, Nevada.
(See Compl. at 1). In its Complaint, Plaintiff
brings the following causes of action against Defendant: (1)
breach of contract; (2) unjust enrichment; and (3) breach of
the implied covenant of good faith and fair dealing.
(Id. ¶¶ 21-47). Defendant subsequently
removed based on diversity jurisdiction. (Notice of Removal
(“Notice”) ¶¶ 1-8, ECF No. 1).
February 27, 2019, Defendant filed the instant Motion to
Dismiss, (ECF No. 5), arguing lack of personal jurisdiction.
(Mot. to Dismiss (“MTD”) 3:2-4:23, ECF No. 5).
Alternatively, Defendant requests that the Court enforce the
forum-selection clause contained in the Agreement, and
transfer venue under 28 U.S.C. § 1404(a), to the U.S.
District Court, District of Minnesota. (Id.
Court will first address the issue of personal jurisdiction,
followed by Defendant's alternative request for transfer
to Rule 12(b)(2) of the Federal Rules of Civil Procedure, a
defendant may move to dismiss for lack of personal
jurisdiction. Fed.R.Civ.P. 12(b)(2). Once a defendant raises
the defense, the burden falls on the plaintiff to prove
sufficient facts to establish that jurisdiction is proper.
Boschetto v. Hansing, 539 F.3d 1011, 1015 (9th Cir.
Process Clause requires that the nonresident must have
“certain minimum contacts . . . such that the
maintenance of the suit does not offend ‘traditional
notions of fair play and substantial justice.'”
Int'l Shoe Co. v. Washington, 326 U.S. 310, 316
(1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463
(1940)). Minimum contacts can give rise to either general or
specific jurisdiction. LSI Indus., Inc. v. Hubbell
Lighting, Inc., 232 F.3d 1369, 1375 (Fed. Cir. 2000).
General jurisdiction exists where a defendant maintains
“continuous and systematic” ties with the forum
state, even if those ties are unrelated to the cause of
action. Id. (citing Helicopteros Nacionales de
Colombia, S.A. v. Hall, 466 U.S. 408, 414-16 (1984)). On
the other hand, specific jurisdiction exists where claims
“arise out of” or “relate to” the
contacts with the forum, even if those contacts are
“isolated or sporadic.” Id.
survive a motion to dismiss for lack of personal
jurisdiction, a plaintiff need only make “a prima facie
showing of jurisdictional facts.” Pebble Beach Co.
v. Caddy, 453 F.3d 1151, 1154 (9th Cir. 2006) (quoting
Doe v. Unocal, 248 F.3d 915, 922 (9th Cir. 2001)).
To make a prima facie showing, the plaintiff “need only
demonstrate facts that if true would support
jurisdiction.” Ballard v. Savage, 65 F.3d
1495, 1498 (9th Cir. 1995). When analyzing such a 12(b)(2)
motion, “the court resolves all disputed facts in favor
of the plaintiff.” Pebble Beach Co., 453 F.3d