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Nationwide Signs, LLC v. National Signs, LLC

United States District Court, E.D. Louisiana

July 7, 2017

NATIONWIDE SIGNS, LLC
v.
NATIONAL SIGNS, LLC

         SECTION: A (1)

          ORDER

          JAY C. ZAINEY UNITED STATES DISTRICT JUDGE.

         Before 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.

         I. Background

         Plaintiff 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).

         II. Analysis

         Defendant 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).

         In the 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).

         When a 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).

         Federal 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. 2009).

         A Rule 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).

         a. Defendant's First Motion to Dismiss

         Defendant 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.

         When a 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 ...


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