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Fox v. Berenis

United States District Court, D. Oregon

December 3, 2018

LISA FOX, Plaintiff,

          Michael O. Stevens, Stevens & Legal, LLC, J. Curtis Edmondson, Edmondson IP Law, Of Attorneys for Plaintiff.

          Eric J. Neiman, Lewis Brisbois Bisgaard & Smith LLP, Of Attorneys for Defendant Big Frog Custom T-Shirts, Inc.



         Plaintiff Lisa Fox (“Fox”) alleges copyright infringement against Big Frog Custom T-Shirts, Inc. (“Big Frog”).[1] Big Frog filed a motion to dismiss for lack of personal jurisdiction. For the following reasons, Big Frog's motion is GRANTED.


         On a motion to dismiss for lack of personal jurisdiction brought pursuant to Federal Rule of Civil Procedure 12(b)(2), the plaintiff bears the burden of demonstrating that the court's exercise of jurisdiction is proper. See Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004) (citing Sher v. Johnson, 911 F.2d 1357, 1361 (9th Cir. 1990)). When the court's determination is based on written materials rather than an evidentiary hearing, “the plaintiff need only make a prima facie showing of jurisdictional facts.” Id. (quotation marks and citation omitted). In resolving the motion on written materials, the court must “only inquire into whether the [plaintiff's] pleadings and affidavits make a prima facie showing of personal jurisdiction.” Id. (quotation marks omitted) (quoting Caruth v. Int'l Psychoanalytical Ass'n, 59 F.3d 126, 128 (9th Cir. 1995)). A plaintiff cannot rest solely on the bare allegations of its complaint, but any uncontroverted allegations in the complaint must be taken as true. Id. Conflicts between the parties over statements contained in affidavits must be resolved in the plaintiff's favor. Id. (citing Am. Tel. & Tel. Co. v. Compagnie Bruxelles Lambert, 94 F.3d 586, 588 (9th Cir. 1996), and Bancroft & Masters, Inc. v. Augusta Nat'l Inc., 223 F.3d 1082, 1087 (9th Cir. 2000)).

         Unless a federal statute governs personal jurisdiction, a district court applies the law of the forum state. See Boschetto v. Hansing, 539 F.3d 1011, 1015 (9th Cir. 2008) (citing Panavision Int'l L.P. v. Toeppen, 141 F.3d 1316, 1320 (9th Cir. 1998)). Oregon's long-arm statute is co-extensive with constitutional standards. Gray & Co. v. Firstenberg Mach. Co., 913 F.2d 758, 760 (9th Cir. 1990) (citing Or. R. Civ. P. 4(L) and Oregon ex rel. Hydraulic Servocontrols Corp. v. Dale, 294 Or. 381, 384-85 (1982)). Thus, this Court need only determine whether its exercise of personal jurisdiction over Big Frog would offend constitutional due process requirements. See Boschetto, 539 F.3d at 1015; see also Hydraulic Servocontrols, 294 Or. at 384-85.

         Due process requires that the defendant “have certain minimum contacts with [the forum] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.'” Int'l Shoe Co. v. Wash., 326 U.S. 310, 316 (1945) (citations omitted). The Supreme Court has rejected the application of “mechanical” tests to determine personal jurisdiction. Id. at 319; see also Burger King Corp. v. Rudzewicz, 471 U.S. 462, 478 (1985). Rather, a court should consider the “quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure.” Int'l Shoe, 326 U.S. at 319.

         “There are two forms of personal jurisdiction that a forum state may exercise over a nonresident defendant-general jurisdiction and specific jurisdiction.” Boschetto, 539 F.3d at 1016. A court has general personal jurisdiction over a defendant whose contacts with the forum are “continuous and systematic, ” even if those contacts are wholly unrelated to the plaintiff's claims. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 415-16 (1984). If a court lacks general personal jurisdiction, it may nonetheless have specific personal jurisdiction if the defendant has certain minimum contacts with the forum state, the controversy arose out of those contacts, and the exercise of jurisdiction is reasonable. See Burger King, 471 U.S. at 472-74.


         Fox seeks injunctive relief and damages against Big Frog for alleged copyright infringement under 17 U.S.C. § 101, et. seq. Fox is a professional graphic designer in Oregon. Fox alleges that she created an image of a monkey and a football (“the Image”) in 1999 while she was a student at the Pacific Northwest College of Art. She further alleges that she registered a copyright of the Image in 2004 and has ownership rights to the Image. Fox uses the Image on merchandise that she sells on her website, such as stickers, hats, and t-shirts.

         Big Frog is a corporation and franchisor that sells franchises. Each franchisee owns and operates an apparel printing business using the Big Frog brand name. Big Frog supports each franchisee's store, including with training for a store's personnel. In return, the franchisees pay Big Frog a monthly royalty of a percentage of sales. Franchisees also contribute a percentage of their sales to Big Frog for nationwide marketing. Big Frog has 70 franchisees nationwide, with two franchised stores in Oregon. Big Frog is a Florida corporation and has its principal place of business in Florida. Big Frog has no offices or employees located in Oregon.

         Fox alleges that an individual named Michael Berenis entered a Big Frog franchised store in Florida and requested that the franchisee design a logo for him. The Florida franchisee allegedly provided Berenis with an unlawful derivative of Fox's Image, which Berenis then used on promotional materials and merchandise that he sold on his website. Fox alleges that these actions violate federal copyright law and deprived her of revenue. Fox further alleges that when Berenis asked Big Frog to clarify the origin of the derivative image that the Florida franchisee for Berenis, Big Frog told Berenis that it takes no responsibility for the ...

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