United States District Court, E.D. Louisiana
ZAINEY UNITED STATES DISTRICT JUDGE.
the Court is a Motion to Dismiss (Rec. Doc. 12) filed by
Defendant National Signs, LLC. Plaintiff Nationwide Signs,
LLC opposes the Motion. (Rec. Doc. 15). Also before the Court
is an Amended Motion to Dismiss (Rec. Doc. 30) filed by
Defendant National Signs, LLC. Nationwide opposes the Motion.
(Rec. Doc. 31). The Motions, set for submission on March 8,
2017 and May 3, 2017, respectively, are before the Court on
the briefs without oral argument.
filed its complaint against Defendant seeking a declaratory
judgement of invalidity and non-infringement of
Defendant's registered trademark. On January 10, 2017,
Defendant sent Plaintiff a cease and desist letter, asserting
that Plaintiff's use of the name “Nationwide
Signs” violated Section 43(a) of the Lanham Act and
infringed on Defendant's trademark “National
Signs.” Plaintiff then filed suit on January 16, 2017
against Defendant in this Court seeking a declaration of
non-infringement. (Rec. Doc. 1). Two days later, Defendant
filed its lawsuit against Plaintiff for trademark
infringement and violation of Texas law in the United States
District Court for the Southern District of Texas, which was
transferred to this Court and consolidated with
Plaintiff's lawsuit. (Rec. Doc. 16).
moves to dismiss Plaintiff's claims against it under
Federal Rules of Civil Procedure 12(b)(1), 12(b)(2),
12(b)(3), and 12(b)(5).
context of a Rule 12(b)(1) motion to dismiss for lack of
subject matter jurisdiction, the party asserting jurisdiction
“constantly bears the burden of proof that jurisdiction
does in fact exist.” Ramming v. United States,
281 F.3d 158, 161 (5th Cir. 2001). When ruling on the motion,
the district court can rely on the complaint, undisputed
facts in the record, and the court's resolution of
disputed facts. Id. A court should grant the motion
only if it appears certain the plaintiff cannot prove any set
of facts that would entitle him to recovery. Home
Builders Ass'n of Mississippi, Inc. v. City of
Madison, 143 F.3d 1006, 1010 (5th Cir. 1998).
court hears a Rule 12(b)(2) motion to dismiss for lack of
personal jurisdiction without an evidentiary hearing, the
plaintiff need only present a prima facie case of personal
jurisdiction. See Walk Haydel & Assocs., Inc. v.
Coastal Power Prod. Co., 517 F.3d 235 (5th Cir. 2008). A
court must accept as true the plaintiff's uncontroverted
allegations, so long as the allegations are not merely
conclusory, and shall “resolve all factual conflicts in
favor of the party seeking to invoke the court's
jurisdiction.” Central Freight Lines Inc. v. APA
Transp. Corp., 322 F.3d 376, 380 (5th Cir. 2003).
Rule of Civil Procedure 12(b)(3) allows a party to dismiss
for improper venue. Additionally, dismissal for improper
venue is governed by 28 U.S.C. § 1406. Under that
statute, “[t]he district court of a district in which
is filed a case laying venue in the wrong division or
district shall dismiss, or if it be in the interest of
justice, transfer such case to any district or division in
which it could have been brought.” 28 U.S.C. §
1406(a). When venue is challenged, the burden is on the
plaintiff to establish that the district he or she chose is a
proper venue. See Perez v. Pan American
Life Ins. Co., 1995 WL 696803, at *2 (5th Cir. 1995).
Further, in deciding whether venue is proper, the court may
look outside of the complaint and attachments. Ambraco
Inc. v. Bossclip B.V., 570 F.3d 233, 238 (5th Cir.
12(b)(5) motion to dismiss calls into question the
sufficiency of service of process. Once service of process
has been challenged as insufficient, the “plaintiff
bears the burden of establishing its validity.”
Carimi v. Royal Carribean Cruise Line, Inc., 959
F.2d 1344, 1346 (5th Cir. 1992). A district court has broad
discretion to dismiss an action for insufficient service of
process under Rule 12(b)(5). Kreimerman v. Casa Veerkamp,
S.A. de C.V., 22 F.3d 634, 645 (5th Cir. 1994).
Defendant's First Motion to Dismiss
moves to dismiss Plaintiff's claims against it for lack
of personal jurisdiction over Defendant under Federal Rule of
Civil procedure 12(b)(2). Defendant states that this Court
lacks personal jurisdiction over it because Defendant's
only contact in Louisiana consists of shipping signage and
installing signage. Plaintiff argues that Defendant's
action sending its employees to Louisiana to install signs
qualifies as sufficient contact in Louisiana to give this
Court personal jurisdiction over Defendant. Additionally,
Plaintiff asserts that until 2014, Defendant had a registered
agent for service of process in Louisiana.
non-resident defendant moves to dismiss for lack of personal
jurisdiction under Federal Rule of Civil Procedure 12(b)(2),
the plaintiff bears the burden of establishing the
court's personal jurisdiction over the defendant.
Wilson v. Belin, 20 F .3d 644, 648 (5th Cir. 1994).
Because the Court is not conducting an evidentiary hearing,
Plaintiff must establish a prima facie case for the
Court's jurisdiction over Defendant. Johnston v.
Multidata Sys. Int'l Corp., 523 F.3d 602, 609 (5th
Cir.2008). Any ...