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`TALAVERA HAIR PRODUCTS, INC.,
`a Nevada corporation,
`
`Plaintiff,
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
`
` Case No.: 18-CV-823 JLS (JLB)
`
`ORDER (1) GRANTING IN PART
`AND DENYING IN PART
`PLAINTIFF’S MOTION FOR
`DEFAULT JUDGMENT AND/OR
`SUMMARY JUDGMENT AGAINST
`DEFAULTED DEFENDANTS AND
`(2) GRANTING PLAINTIFF’S
`REQUEST FOR JUDICIAL NOTICE
`
`(ECF Nos. 111–113)
`
`v.
`TAIZHOU YUNSUNG ELECTRICAL
`APPLIANCE CO., LTD., a business
`entity; and THE INDIVIDUALS,
`PARTNERSHIPS, AND
`UNINCORPORATED ASSOCIATIONS
`IDENTIFIED ON EXHIBIT “1,”
`Defendants.
`
`
`Presently before the Court are Plaintiff Talavera Hair Products, Inc.’s Motion for
`
`Default Judgment and/or Summary Judgment Against Defaulted Defendants1 (“Mot.,”
`
`
`
`1 The “Defaulted Defendants” are those against whom Plaintiff secured an entry of default on February
`21, 2019, minus those who have since been dismissed, namely: allforyoushopper.usa (3), ANIMON (4),
`anothercloud (5), Aosend (6), AoStyle (7), AuPolus (8), Beisirui Hair Store (11), Cai ming zhil (12), Ciao
`Fashion (14), Enjoy&Life (19), Fosen Man (20), Georgy’s Store (22), Hairsmile (24), Judi Shop (26),
`Kosmasl (27), Lanmpu Creative (31), MKLOPED (32), Mokshee Mokshee/Donop (34), MyBeautyCC
`(35), NewPollar (37), Olungts US (39), Puck Du/SmartGo (40), PUTOS (41), SunNatural/SunNature (44),
`Turritopsis nutricula (45), Ukliss Beauty (46), Wsduos (47), Yara-Yarn (48), Noledo (51),
`nantongaotaiguoji Trading Co Ltd (52), Beskol (53), Chunhet (54), Funny Fala (55), Huixin Economic
`
`1
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`ECF No. 111), Supplemental Brief re: Personal Jurisdiction over Defaulted Defendants
`(“Supp. Br.,” ECF No. 112), and Request for Judicial Notice of Default Judgments and
`Permanent Injunctions Involving “Seller ID” Defendants Using Amazon and eBay (“RJN,”
`ECF No. 113). No Defaulting Defendant has filed a response to Plaintiff’s Motion. The
`Court took the matter under submission without oral argument pursuant to Civil Local Rule
`7.1(d)(1). See ECF No. 115. Having carefully considered Plaintiff’s Complaint
`(“Compl.,” ECF No. 1), Plaintiff’s arguments and evidence, and the law, the Court
`GRANTS IN PART AND DENIES IN PART Plaintiff’s Motion, as set forth below, and
`GRANTS Plaintiff’s supporting Request for Judicial Notice.
`BACKGROUND
`“Plaintiff sells a unique and revolutionary patented product under the federally
`
`registered trademark Split-Ender® that quickly and easily trims split ends from hair.”
`Compl. ¶ 13. “Plaintiff owns copyrights, trademark rights, and patent rights regarding its
`Split-Ender® product.” Id. ¶ 16. On April 30, 2018, Plaintiff filed the instant litigation
`against dozens of entities and individuals for copyright infringement pursuant to 17 U.S.C.
`§§ 101 et seq.; unfair competition pursuant the Lanham Act, 15 U.S.C. § 1125(a);
`trademark infringement pursuant to 15 U.S.C. § 1114; and infringement of Plaintiff’s U.S.
`Patents Nos. 6,588,108, 7,040,021, and 9,587,811 (collectively, the “U.S. Patents”)
`pursuant to 35 U.S.C. § 271(a). See generally Compl. Plaintiff alleges that Defendants
`“had full knowledge of Plaintiff’s copyrights, trademark rights and/or patent rights,” id.
`¶ 20, but nonetheless “Defendants are promoting, advertising, distributing, selling, and/or
`offering for sale cheap copies of Plaintiff’s Split-Ender® hair trimmers in interstate
`commerce that infringe Plaintiff’s copyrights, trademark rights, and patent rights” on
`Amazon and/or eBay. Id. ¶ 21; see also id. Ex. 1.
`
`
`(56), NeSexy (57), Samantha Bowen (58), Vanylihair (60), YokEnjoy (61), BEAUTYDESIGN (75), and
`S*SHOME (78). See generally ECF No. 111. The number in parentheses after each Defendant’s name
`is the “Defendant Number.” See id. Although the Motion references 41 Defaulted Defendants, a Consent
`Judgment was entered as to Defendant No. 36, Namo Shop, subsequent to the filing of the Motion. See
`ECF Nos. 116, 117.
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`Case 3:18-cv-00823-JLS-JLB Document 120 Filed 08/06/21 PageID.5030 Page 3 of 32
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`On May 3, 2018, Plaintiff filed a motion for a temporary restraining order (“TRO”).
`
`See ECF No. 9. On May 10, 2018, the Court granted Plaintiff’s motion. See ECF No. 10.
`The Court enjoined “[e]ach Defendant, its officers, directors, employees, agents,
`subsidiaries, distributors, and all persons in active concert or participation with any
`Defendant having notice of this Order” “from making, manufacturing, or causing to be
`manufactured, importing, using, advertising or promoting, distributing, selling or offering
`to sell split end hair trimmer products . . . that infringe” the U.S. Patents, id. at 9–10; “from
`infringing any of the exclusive rights in 17 U.S.C. § 106 with respect to Plaintiff’s
`copyrighted packaging or from using Plaintiff’s distinctive trade dress packaging on
`Defendants’ packaging,” id. at 10; from infringing Plaintiff’s copyrighted manual, id.; and
`“from infringing, counterfeiting, or diluting Plaintiff’s registered Split-Ender® trademark,”
`id. The TRO was extended and remains in place. See ECF No. 57 at 2.
`
`On May 23, 2018, Plaintiff filed a motion requesting authorization for alternative
`service. See ECF No. 18. On May 24, 2018, the Court granted Plaintiff’s motion,
`authorizing service by e-mail and website publication. See generally ECF No. 19. On May
`31, 2018, Plaintiff filed a Proof of Service of Summons and Complaint on Defendants 1,
`2, 3, 4, 5, 6, 7, 8, 11, 12, 14, 15, 16, 19, 20, 21, 22, 24, 25, 26, 27, 29, 31, 32, 33, 34, 35,
`36, 37, 38, 39, 40, 41, 43, 44, 45, 46, 47, 48, 75, 76, 77, and 78. See ECF No. 25. On
`September 27, 2018, Plaintiff filed a Proof of Service of Summons and Complaint on
`Defendants 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, and 61. See ECF No. 60. Subsequently,
`Plaintiff filed a Request for Clerk’s Entry of Default as to the Defaulted Defendants, see
`ECF No. 63, which the Clerk entered on February 21, 2019, see ECF No. 65.
`On March 16, 2020, Plaintiff initially filed the present Motion. See ECF No. 98.
`The Court took the matter under submission, see ECF No. 101, and on November 5, 2020,
`the Court denied the Motion without prejudice and requested supplemental briefing on the
`Court’s personal jurisdiction over the Defaulted Defendants. See ECF No. 110. Plaintiff
`subsequently refiled the Motion, see ECF No. 111, along with the requested Supplemental
`Brief, see ECF No. 112, and its supporting Request for Judicial Notice, see ECF No. 113.
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`On March 4, 2021, the Court granted in part and denied in part Plaintiff’s Motion
`for Partial Summary Judgment as to Defendant Taizhou Yungsung Electrical Appliance
`Co., Ltd. (“Taizhou”). See ECF No. 118 (the “MSJ Order”).
`REQUEST FOR JUDICIAL NOTICE
`As an initial matter, in support of its Motion for Default, Plaintiff requests judicial
`notice of nine court orders granting default judgment and awarding permanent injunctive
`relief. See generally RJN. “Judicial notice under Rule 201 permits a court to notice an
`adjudicative fact if it is ‘not subject to reasonable dispute.’” Khoja v. Orexigen
`Therapeutics, Inc., 899 F.3d 988, 999 (9th Cir. 2018) (quoting Fed. R. Evid. 201(b)). “A
`fact is ‘not subject to reasonable dispute’ if it is ‘generally known,’ or ‘can be accurately
`and readily determined from sources whose accuracy cannot reasonably be questioned.’”
`Id. (quoting Fed. R. Evid. 201(b)(1)–(2)). “Accordingly, ‘[a] court may take judicial notice
`of matters of public record.’” Id. (alteration in original) (quoting Lee v. City of Los Angeles,
`250 F.3d 668, 689 (9th Cir. 2001)). “But a court cannot take judicial notice of disputed
`facts contained in such public records.” Id. (quoting Lee, 250 F.3d at 689).
`
`Because “filings and orders in other court proceedings[] are judicially noticeable for
`certain purposes, such as to demonstrate the existence of other court proceedings,” Missud
`v. Nevada, 861 F. Supp. 2d 1044, 1054 (N.D. Cal. 2012) (citing Fed. R. Evid. 201), aff’d,
`520 F. App’x 534 (9th Cir. 2013), the Court finds it appropriate to judicially notice the
`existence of orders from other courts that on their face purport to grant motions for default
`judgment and permanent injunctive relief. Accordingly, the Court GRANTS Plaintiff’s
`Request for Judicial Notice.
`MOTION FOR DEFAULT JUDGMENT AND/OR SUMMARY JUDGMENT
`Legal Standards
`A. Default Judgment
`Federal Rule of Civil Procedure 55 permits a court to enter default judgment upon a
`party’s application. Although default judgments are ordinarily disfavored, a court may
`grant or deny a motion for default judgment at its discretion. See Alan Neuman Prods.,
`
`I.
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`Inc. v. Albright, 862 F.2d 1388, 1392 (9th Cir. 1988) (citing Haw. Carpenters’ Tr. Funds
`v. Stone, 794 F.2d 508, 511–12 (9th Cir. 1986); Eitel v. McCool, 782 F.2d 1470, 1471 (9th
`Cir. 1986); Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980)).
`The Ninth Circuit has set out seven factors, known as the Eitel factors, that a court
`may consider when exercising its discretion as to whether or not to grant default judgment:
`(1) the possibility of prejudice to the plaintiff, (2) the merits of
`plaintiff’s substantive claim, (3) the sufficiency of the complaint,
`(4) the sum of money at stake in the action, (5) the possibility of
`a dispute concerning material facts, (6) whether the default was
`due to excusable neglect, and (7) the strong policy underlying the
`Federal Rules of Civil Procedure favoring decisions on the
`merits.
`Eitel, 782 F.2d at 1471–72.
`When weighing these factors, the well-pleaded factual allegations of the complaint
`are taken as true, except for those allegations relating to damages. TeleVideo Sys., Inc. v.
`Heidenthal, 826 F.2d 915, 917–18 (9th Cir. 1987); see also Fed. R. Civ. P. 8(b)(6). To
`prove damages, a plaintiff may submit declarations, or the Court may hold an evidentiary
`hearing. See Affinity Grp., Inc. v. Balser Wealth Mgmt., LLC, No. 05CV1555 WQH (LSP),
`2007 WL 1111239, at *1 (S.D. Cal. Apr. 10, 2007); see also Taylor Made Golf Co. v.
`Carsten Sports, 175 F.R.D. 658, 661 (S.D. Cal. 1997) (“In assessing damages, the court
`must review facts of record, requesting more information if necessary, to establish the
`amount to which plaintiff is lawfully entitled upon judgment by default.”).
`B.
`Summary Judgment
`Under Federal Rule of Civil Procedure 56(c), a party may move for summary
`judgment as to a claim or defense or part of a claim or defense. Summary judgment is
`appropriate where the Court is satisfied that there is “no genuine issue as to any material
`fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp.
`v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed. R. Civ. P. 56(a)). Material facts are those
`that may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
`248 (1986). A genuine dispute of material fact exists only if “the evidence is such that a
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`reasonable jury could return a verdict for the nonmoving party.” Id. When the Court
`considers the evidence presented by the parties, “[t]he evidence of the non-movant is to be
`believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255.
`The initial burden of establishing the absence of a genuine issue of material fact falls
`on the moving party. Celotex, 477 U.S. at 323. The moving party may meet this burden
`by identifying the “portions of ‘the pleadings, depositions, answers to interrogatories, and
`admissions on file, together with the affidavits, if any,’” that show an absence of dispute
`regarding a material fact. Id. When a plaintiff seeks summary judgment as to an element
`for which it bears the burden of proof, “it must come forward with evidence which would
`entitle it to a directed verdict if the evidence went uncontroverted at trial.” C.A.R. Transp.
`Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (citation omitted). “This is true,
`even when the party against whom the motion for summary judgment is directed has not
`filed any opposition.” Cristobal v. Siegel, 26 F.3d 1488, 1495 (9th Cir. 1994). “[W]here
`no evidence is presented in opposition to the motion, summary judgment should not be
`granted if the evidence in support of the motion is insufficient.” Hoover v. Switlik
`Parachute Co., 663 F.2d 964, 967 (9th Cir. 1981)
`C.
`Final Judgment Pursuant to Federal Rule of Civil Procedure 54(b)
`Pursuant to Federal Rule of Civil Procedure 54(b):
`When an action presents more than one claim for relief—whether
`as a claim, counterclaim, crossclaim, or third-party claim—or
`when multiple parties are involved, the court may direct entry of
`a final judgment as to one or more, but fewer than all, claims or
`parties only if the court expressly determines that there is no just
`reason for delay. Otherwise, any order or other decision,
`however designated, that adjudicates fewer than all the claims or
`the rights and liabilities of fewer than all the parties does not end
`the action as to any of the claims or parties and may be revised
`at any time before the entry of a judgment adjudicating all the
`claims and all the parties’ rights and liabilities.
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`In exercising this discretion, the court “must take into account judicial administrative
`interests as well as the equities involved.” Curtiss–Wright Corp. v. Gen. Elec. Co., 446
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`U.S. 1, 8 (1980). “Partial judgment under Rule 54(b) is proper where there are distinct and
`severable claims and immediate review of the portions ruled upon will not result in later
`duplicative proceedings in the trial or appellate court.” Judge Virginia A. Phillips & Judge
`Karen L. Stevenson, Rutter Group Practice Guide: Federal Civil Procedure Before Trial
`Ch. 14-J § 14:382 (Apr. 2020 update) (emphases in original) (citing Wood v. CGC Bend,
`LLC, 422 F.3d 873, 878–79 (9th Cir. 2005); Lowery v. Federal Express Corp., 426 F.3d
`817, 821–22 (6th Cir. 2005); U.S. Citizens Ass’n v. Sebelius, 754 F. Supp. 2d 903, 925–26
`(N.D. Ohio 2011)). Nevertheless, judgments under Rule 54(b) are not routinely granted
`and “must be reserved for the unusual case in which the costs and risks of multiplying the
`number of proceedings and of overcrowding the appellate docket are outbalanced by
`pressing needs of the litigants for an early and separate judgment as to some claims or
`parties.” Morrison–Knudsen Co. v. Archer, 655 F.2d 962, 965 (9th Cir. 1981).
`II. Analysis
`A.
`Jurisdiction
`
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`1.
`Subject-Matter Jurisdiction
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`To enter default judgment, the Court must first determine that it has subject-matter
`jurisdiction. See Twitch Interactive, Inc. v. Johnston, No. 16-cv-03404-BLF, 2019 WL
`3387977, at *3 (N.D. Cal. July 26, 2019). Here, the Court has subject-matter jurisdiction
`under 28 U.S.C. §§ 1331 (federal question) and 1338 (patents, copyrights, and trademarks)
`and 15 U.S.C. § 1121 (Lanham Act trademark and unfair competition). See generally
`Compl.
`
`
`Personal Jurisdiction
`2.
`The Court must also have personal jurisdiction over the defendants, or else entry of
`
`default judgment is void. Veeck v. Commodity Enters., Inc., 487 F.2d 423, 426 (9th Cir.
`1973). When a default judgment is sought over an absent defendant, a district court “has
`an affirmative duty” to determine whether it has personal jurisdiction over that defendant.
`In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999). “It is the plaintiff’s burden to establish the
`court’s personal jurisdiction over a defendant.” Doe v. Unocal Corp., 248 F.3d 915, 922
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`(9th Cir. 2001), abrogated on other grounds by Williams v. Yamaha Motor Co., 851 F.3d
`1015 (9th Cir. 2017).
`Service of Process
`a.
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`“Before a federal court may exercise personal jurisdiction over a defendant, the
`procedural requirement of service of summons must be satisfied.” Omni Capital Int’l, Ltd.
`v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987). Pursuant to the Federal Rules of Civil
`Procedure, an individual or corporation “may be served at a place not within any judicial
`district of the United States . . . by other means not prohibited by international agreement,
`as the court orders.” Fed. R. Civ. P. 4(f)(3). Service under Rule 4(f)(3) must be directed
`by the court, not prohibited by international agreement, and comport with constitutional
`notions of due process. Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1014–16 (9th
`Cir. 2002). It is within the Court’s discretion “to craft alternate means of service.” Id. at
`1016.
`Here, the Court approved Plaintiff’s request to serve the Defaulted Defendants via
`e-mail and website publication. See generally ECF No. 19. The Court ordered Plaintiff to
`ensure that each e-mail notified the relevant Defendant that a suit had been filed against it
`and provide a link to the website www.federallawsuitnotice.com. Id. at 2. The Court
`ordered Plaintiff to serve any Defendant for whom it had a physical address by mail as
`well. Id. As relevant to the present Motion, Plaintiff served Defendants Number 3, 4, 5,
`6, 7, 8, 11, 12, 14, 19, 20, 22, 24, 26, 27, 31, 32, 34, 35, 37, 39, 40, 41, 44, 45, 46, 47, 48,
`75, and 78 by e-mail and website publication on May 24, 2018. See 1st POS at 1; see also
`id. Exs. B, C. As relevant to the present Motion, Plaintiff served Defendants Number 51,
`52, 53, 54, 55, 56, 57, 58, 60, and 61 by e-mail and website publication on September 25,
`2018. See 2d POS at 1; see also ECF No. 19 Exs. B–C. Accordingly, the Court concludes
`that service on the Defaulted Defendants was proper pursuant to the Federal Rules of Civil
`Procedure and by order of this Court.
`/ / /
`/ / /
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`Personal Jurisdiction
`b.
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`“A Court’s power to exercise jurisdiction over a party is limited by both statutory
`and constitutional considerations.” In re Packaged Seafood Prod. Antitrust Litig., 338 F.
`Supp. 3d 1118, 1135 (S.D. Cal. 2018). In accordance with Federal Rule of Civil Procedure
`4(k)(1)(A), “[f]ederal courts apply state law to determine the bounds of the jurisdiction
`over a party.” Williams, 851 F.3d at 1020 (citing Fed. R. Civ. P. 4(k)(1)(A)). “California’s
`long-arm statute allows the exercise of personal jurisdiction to the full extent permissible
`under the U.S. Constitution.” Daimler AG v. Bauman, 571 U.S. 117, 125 (2014). A
`defendant must have at least “minimum contacts” with the relevant forum such that the
`exercise of jurisdiction “does not offend traditional notions of fair play and substantial
`justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).
`Under the minimum contacts test, jurisdiction can be either “specific” or “general.”
`Unocal, 248 F.3d at 923. Specific jurisdiction exists “where the cause of action arises out
`of or has substantial connection to the defendant’s contact with the forum.” Glencore
`Grain Rotterdam B.V. v. Shivnath Rai Harnarain Co., 284 F.3d 1114, 1123 (9th Cir. 2002).
`General jurisdiction depends on the defendant’s “substantial, continuous and systematic”
`contacts with the forum, “even if the suit concerns matters not arising out of his contacts
`with the forum.” Id.
`Federal Circuit law is applied when the inquiry into personal jurisdiction is
`“intimately involved with substance of the patent laws.” Akro Corp. v. Luker, 45 F.3d
`1541, 1543 (Fed. Cir. 1995). Accordingly, whether the Court has personal jurisdiction
`over Plaintiff’s patent infringement claim against nonresident defendants is controlled by
`Federal Circuit law. See Beverly Hills Fan Co. v. Royal Sovereign Corp., 21 F.3d 1558,
`1564 (Fed. Cir. 1994). However, Plaintiff’s remaining claims for copyright infringement,
`unfair competition, and trademark infringement are not “intimately involved” with patent
`law, and thus Ninth Circuit law governs the personal jurisdiction analysis for these claims.
`See Elecs. for Imaging, Inc. v. Coyle, 340 F.3d 1344, 1348 (Fed. Cir. 2003).
`/ / /
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`“Both Federal Circuit and Ninth Circuit law agree that when a district court’s
`decision on a personal jurisdiction question is based on submitted evidence in the absence
`of an evidentiary hearing, the plaintiff need only make a prima facie showing that the
`defendant is subject to personal jurisdiction.” Deckers Outdoor Corp. v. Reed Sportswear
`Mfg. Co., No. 215CV00749, 2015 WL 5167466, at *2 (C.D. Cal. Sept. 3, 2015) (citing
`Deprenyl Animal Health, Inc. v. Univ. of Toronto Innovations Found., 297 F.3d 1343, 1347
`(Fed. Cir. 2002); Data Disc, Inc. v. Sys. Tech. Assoc., Inc., 557 F.2d 1280, 1285 (9th Cir.
`1977)). “Additionally, both Circuits hold that a district court must accept as true any
`uncontroverted allegations in the plaintiff’s complaint and resolve any factual disputes in
`the affidavits in favor of the plaintiff.” Id. (citing Deprenyl, 297 F.3d at 1347; Bancroft &
`Masters, Inc. v. Augusta Nat’l, Inc., 223 F.3d 1082, 1087 (9th Cir. 2000)). “Each
`defendant’s contacts with the forum State must be assessed individually.” Calder v. Jones,
`465 U.S. 783, 790 (1984).
`In its Complaint, Plaintiff asserts that this Court has personal jurisdiction over the
`Defaulted Defendants because they “purposefully direct their activities toward and conduct
`business with consumers throughout the United States, including within the State of
`California and this district, through at least the Internet based Amazon or eBay e-commerce
`stores accessible in California and operating under their Seller IDs.” Compl. ¶ 6(a). More
`specifically, “[t]he Seller ID Defendants have purposefully directed some portion of their
`illegal activities towards consumers in the State of California through the advertisement,
`offer to sell, sale, and/or shipment of infringing goods into California.” Id. In its
`Supplemental Brief, Plaintiff clarifies that personal jurisdiction is proper based on either
`specific jurisdiction premised on the Defaulted Defendants’ contacts with California or,
`alternatively, the Defaulted Defendants’ contacts with the United States pursuant to Federal
`Rule of Civil Procedure 4(k)(2). See generally Supp. Br.
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`I.
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`Federal Rule of Civil Procedure 4(k)(1) Specific
`Jurisdiction: Copyright, Unfair Competition,
`and
`Trademark Claims
`
`
`“[T]he defendant’s suit-related conduct must create a substantial connection with the
`forum State” to establish specific jurisdiction over that defendant. Walden v. Fiore, 51
`U.S. 277, 284 (2014). The relationship must arise out of contacts that the defendant himself
`creates with the forum State. Id. Further, the “minimum contacts” must be “with the forum
`State itself, not . . . with persons who reside there.” Id.
`The Ninth Circuit has established a three-prong test for analyzing a claim of specific
`personal jurisdiction:
`(1) The non-resident defendant must purposefully direct his
`activities or consummate some transaction with the forum or
`resident thereof; or perform some act by which he purposefully
`avails himself of the privilege of conducting activities in the
`forum, thereby invoking the benefits and protections of its laws;
`(2) the claim must be one which arises out of or relates to the
`defendant’s forum-related activities; and (3) the exercise of
`jurisdiction must comport with fair play and substantial justice,
`i.e. it must be reasonable.
`
`Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 801 (9th Cir. 2004); see also
`Williams, 851 F.3d at 1023. The plaintiff bears the burden of establishing the first two
`prongs. See Mavrix Photo, Inc. v. Brand Techs., Inc., 647 F.3d 1218, 1228 (9th Cir. 2011).
`If the plaintiff does so, the burden shifts to the defendant to argue that exercise of
`jurisdiction would be unreasonable. Id.
`A.
`Purposeful Direction
`For the first prong, “purposeful direction” and “purposeful availment” are distinct
`
`tests, with the former generally applied to tort claims and the latter to contract claims.
`Brayton Purcell LLP v. Recordon & Recordon, 606 F.3d 1124, 1128 (9th Cir. 2010).
`Courts have applied the “purposeful direction” standard to cases involving alleged
`trademark infringement, see, e.g., Romanowski v. RNI, LLC, 2007 WL 323019 at *2 (N.D.
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`Cal. Jan. 31, 2007), and copyright infringement, see, e.g., Mavrix Photo, 647 F.3d at 1228.
`Purposeful direction “requires that the defendant allegedly have (1) committed an
`intentional act, (2) expressly aimed at that forum state, (3) causing harm that the defendant
`knows is likely to be suffered in the forum state.” Dole Food Co. v. Watts, 303 F.3d 1104,
`1110 (9th Cir. 2002).
`
`Within this context, an intentional act refers to an “actual, physical act in the real
`world.” Juniper Networks, Inc. v. Juniper Media, LLC, 2012 WL 160248, at *2 (N.D. Cal.
`Jan.17, 2012). A defendant need only have performed an act—any act—and need not have
`intended “to accomplish a result or consequence of that act.” Schwarzenegger, 374 F.3d
`at 805. Here, Plaintiff alleges that each of the Defaulted Defendants sold and shipped
`goods via Amazon or eBay that infringe Plaintiff’s copyrights, trademarks, and patents.
`See Compl. ¶¶ 6(a), 53, 74, 80. This is an intentional act that satisfies the first part of the
`purposeful direction test. See, e.g., Sennheiser Elec. Corp. v. Evstigneeva, No.
`CV117884GAFFFMX, 2012 WL 13012384, at *3 (C.D. Cal. Sept. 27, 2012) (“Plaintiffs
`argue, and the Court agrees, that by selling and shipping products that infringe Plaintiffs’
`copyright, Defendant has committed ‘an intentional act.’ Thus, Plaintiffs have satisfied
`step one of the [specific personal jurisdiction] test.”).
`Previously, the Ninth Circuit held that “the express aiming requirement . . . is
`satisfied when the defendant is alleged to have engaged in wrongful conduct targeted at a
`plaintiff whom the defendant knows to be a resident of the forum state.” CollegeSource,
`Inc. v. AcademyOne, Inc., 653 F.3d 1066, 1077 (9th Cir. 2011) (citation omitted).
`Moreover, the Ninth Circuit had stated that “the expressly aimed prong of the purposeful
`direction test can be met where a plaintiff alleges that the defendant individually targeted
`him by misusing his intellectual property on the defendant’s website for the purpose of
`competing with the plaintiff in the forum.” Id. (citation omitted).
`However, following the Supreme Court’s decision in Walden, supra, the Ninth
`Circuit revised this test, holding that, “while a theory of individualized targeting may
`remain relevant to the minimum contacts inquiry, it will not, on its own, support the
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`exercise of specific jurisdiction, absent compliance with what Walden requires.” Axiom
`Foods, Inc. v. Acerchem Int’l, Inc., 874 F.3d 1064, 1070 (9th Cir. 2017). In Walden, “the
`Court reinforced the traditional understanding that our personal jurisdiction analysis must
`focus on the defendant’s contacts with the forum state, not the defendant’s contacts with a
`resident of the forum.” Picot v. Weston, 780 F.3d 1206, 1214 (9th Cir. 2015). The Ninth
`Circuit noted that its prior individual targeting test “impermissibly allowed a plaintiff’s
`contacts with the defendant and forum to drive the jurisdictional analysis.” Axiom Foods,
`874 F.3d at 1070 (quoting Walden, 571 U.S. at 289).
`Plaintiff relies on pre-Axiom Foods authority embracing the Ninth Circuit’s
`individualized targeting test, out-of-circuit authority, and the following facts to support the
`“express aiming” requirement: Plaintiff’s principal place of business is located in Alpine,
`California, within this judicial district. See Supplemental Declaration of Victor Talavera
`in Support of Personal Jurisdiction over the Defaulted Defendants (“Suppl. Talavera
`Decl.,” ECF No. 112-1) ¶ 2. Plaintiff’s packaging clearly states that the product at issue
`was manufactured by Plaintiff in Alpine, California. See id. ¶ 3(a); see also ECF No. 111-5
`(Plaintiff’s product packaging). The same is true of Plaintiff’s user manual. See Suppl.
`Talavera Decl. ¶ 3(b); see also ECF No. 1-5 (Plaintiff’s user manual). Plaintiff’s website,
`www.splitenderpro.com, indicates on its “Contact” page that Plaintiff “offer[s] full support
`on weekdays from 10am-4pm PST (California).” Suppl. Talavera Decl. ¶ 3(c) (emphasis
`omitted). Further, Plaintiff’s packaging, manual, and website each list Plaintiff’s patent,
`trademark, and copyright registrations for its product. Id. ¶ 3(d); see also ECF No. 111-5
`(Plaintiff’s product packaging); ECF No. 1-5 (Plaintiff’s user manual). These registrations
`make clear that Plaintiff is located in Alpine, California. See Suppl. Talavera Decl. ¶ 3(d);
`see also ECF No. 1-4 (certificate of registration for copyright of Plaintiff’s product
`packaging, noting Plaintiff’s Alpine, California, address); ECF No. 1-5 (certificate of
`registration for copyright of Plaintiff’s user manual, noting Plaintiff’s Alpine, California,
`address); ECF No. 1-6 (trademark registration noting Plaintiff’s Alpine, California,
`address); ECF No. 1-7 (patents, indicating inventor’s address is in Alpine, California).
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`Plaintiff also sent cease and desist notices to the Defaulted Defendants through eBay and
`Amazon, noting that Plaintiff is located in Alpine, California. See Suppl. Talavera Decl.
`¶¶ 3(e), (f) (citing ECF No. 9-16). Defaulted Defendants’ infringing products compete
`directly with Plaintiff’s products. Id. ¶ 11.
`While the foregoing may have been adequate to establish individual targeting and
`therefore express aiming prior to Walden, these allegations—which focus on Plaintiff’s,
`rather than the Defaulted Defendants’, contacts with California—are inadequate, standing
`on their own, to establish the second minimum contacts requirement. Although the fa