United States District Court, D. Oregon
OPINION AND ORDER
MICHAEL H. SIMON, District Judge.
United States Magistrate Judge John V. Acosta issued Findings and Recommendation ("F&R") in this case on April 8, 2015. Dkt. 40. Judge Acosta recommended that Defendant Alpine Auto Gallery's ("Alpine") motion to dismiss for lack of personal jurisdiction, alternative motion to transfer venue, and motion to dismiss for failure to state a claim be granted in part and denied in part. Dkt. 18. Specifically, Judge Acosta recommended denying the motion to dismiss based on jurisdiction, denying the motion to transfer venue, and granting the motion to dismiss for failure to state claim because of Plaintiff's "shotgun" pleading.
Under the Federal Magistrates Act ("Act"), the Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1)(C). If a party files objections to a magistrate's findings and recommendations, "the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id.; Fed.R.Civ.P. 72(b)(3).
Alpine timely filed an objection to the F&R. Dkt.42. Plaintiff did not respond to Alpine's objections. The Court conducts a de novo review of the objected-to portions of the F&R, including reviewing the original briefing and evidence submitted before Judge Acosta.
A. Portions of the F&R to Which Alpine Objected
In its objection, Alpine argues that the F&R erroneously found specific personal jurisdiction over Alpine based on the incorrect conclusions that whether Alpine was associated with the website www.winday.com and whether Agabs was an agent or employee of Alpine are contradicted such that Plaintiff is entitled to resolution of those conflicts in Plaintiff's favor. Alpine also objects that even if personal jurisdiction over it is proper, the F&R improperly denied transferring venue to New Jersey.
1. Evidence submitted
Alpine submitted declarations from one of its members, Angelo Koutsavlis, attesting to the fact that Agabs was not an employee of Alpine, that Alpine did not authorize Agabs to register or operate the domains www.winday.com, www.autobidmaser.com, or www.autobidmater.com, that Alpine did not authorize Agabs to act as Alpine's agent with respect to those domains, and that Alpine itself did not register or operate www.winday.com. Mr. Koutsavlis further stated that Agabs was hired to create a new web site for Alpine, but that the new website was never developed.
Plaintiff submitted screen shots of the website www.winday.com from immediately before this lawsuit was filed that repeatedly reference Alpine. For example, under "How WinDay Works, " the WinDay website set out three steps, with step three stating "[y]ou can pick up your car directly at the Copart location or arrange shipping with Alpine Auto Gallery. Congratulations on your new purchase." Dkt. 24-1 at 8. After setting out the three steps to purchasing a car, under the heading "More, " the WinDay website. as shown in the screen shot, continued:
Alpine Rebuildable Cars ("WinDay.com") is an online auto auction marketplace and your international source for late model salvage cards, trucks, Hybrid vehicles, SUV and pick-up trucks. We have been serving the New York (NY), New Jersey (NJ), Pennsylvania (PA) area with over 20 years of experience in the rebuildable car industry.
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We are proud to offer our clients a new service that gives you the ability to bid on automobiles directly from Copart Salvage Auctions. Cut out the middle man and buy salvage cards direct from the source. We are now part of the Copart Registered Broker Program, which allows the general public to buy salvage vehicles without a dealer or dismantler license. Once registered, you'll be able to bid live at over 150 auctions in the United States and Canada.
Dkt. 24-1 at 8.
As shown in the evidence submitted by Plaintiff, Plaintiff's attorney clicked "About" on the WinDay website and the linked page was entitled ...