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Under A Foot Plant, Co. v. Exterior Design, Inc.

United States District Court, D. Oregon

March 24, 2015

UNDER A FOOT PLANT, CO., an Oregon corporation Plaintiff,
v.
EXTERIOR DESIGN, INC., a Maryland corporation, doing business as THE PERENNIAL FARM, TREADWELL PERENNIALS, and PERENNIAL FARM MARKETPLACE, Defendant.

ROBERT SWIDER, MICHAEL DELL LONG, ANDREA A. SELKREGG, Swider Haver, Attorneys for plaintiff.

BARRY J. GOEHLER, Law office of Barry Goehler, Attorney for defendant.

OPINION AND ORDER

ANN AIKEN, Chief District Judge.

Defendant Exterior Design, Inc. filed a motion to dismiss plaintiff Under A Foot Plant, Co.'s complaint for lack of personal jurisdiction pursuant to Fed.R.Civ.P. (12) (b) (2).In the alternative, defendant moves to transfer venue to the District of Maryland. Additionally, plaintiff requests judicial notice of a printout from defendant's website. For the reasons set forth below, the parties' motions are granted.

BACKGROUND

Plaintiff, an Oregon corporation with its principal place of business in Salem, Oregon, is in the wholesale business of marketing and distributing groundcover plants. In 1999, plaintiff developed a product line entitled STEPABLES®. In the course of marketing STEPABLES®, plaintiff took a number of photographs for use in its promotional materials. Among these photographs are the nineteen copyrighted images ("Copyrighted Works") at issue in this case.

Defendant, a Maryland corporation with its principal place of business in Glenn Arm, Maryland, is also in the wholesale plant business. Sometime around 2010, defendant developed a product line, entitled Treadwell Plants, that is similar in nature to plaintiff's STEPABLES®.

On August 26, 2014, plaintiff filed a complaint in this Court against defendant alleging copyright infringement, unfair and deceptive trade practices, and unjust enrichment. Specifically, plaintiff alleges that, beginning in March 2011, defendant impermissibly began using, and continues to use, the Copyrighted Works in promoting Treadwell Plants. On September 17, 2014, defendant filed the present motion to dismiss or transfer venue.

STANDARDS

Where the court lacks personal jurisdiction, the action must be dismissed. Fed.R.Civ.P. 12 (b) (2). When a defendant moves to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of establishing that such jurisdiction is appropriate. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004) (citation omitted). Where the court makes its jurisdictional finding based on pleadings and affidavits rather than an evidentiary hearing, the plaintiff need only make a prima facie showing of jurisdictional facts. Caruth v. Int'l Psychoanalytical Ass'n, 59 F.3d 126, 127-28 (9th Cir. 1995). "Although the plaintiff cannot rest solely on the allegations of the complaint to establish that jurisdiction is proper, the complaint's uncontroverted factual allegations must be accepted as true and any factual conflicts in the parties' declarations must be resolved in the plaintiff's favor." Ukrvaktsina v. Olden Grp., LLC, 2011 WL 5244697, *2 (D.Or. Oct. 30, 2011) (citations omitted).

DISCUSSION

Defendant asserts that dismissal or transfer of venue is warranted because plaintiff failed to allege facts that would support personal jurisdiction in this forum. Conversely, plaintiff argues that this District has both general and specific jurisdiction over defendant pursuant to Oregon's long arm statute.

I. Request for Judicial Notice

Plaintiff requests judicial notice of an archived printout from defendant's website, which was generated by The Internet Archive on November 30, 2010. This printout describes the shipping services provided by defendant. According to plaintiff, defendant "does not object to the Court taking judicial notice of the existence of the document, [but] does not consent to the Court taking judicial notice of the facts contained within the ...


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