Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Bombshell Accessories, Inc. v. L.A. Silver

August 16, 2011

BOMBSHELL ACCESSORIES, INC. PLAINTIFF,
v.
L.A. SILVER, INC., ) DEFENDANT.



The opinion of the court was delivered by: Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

Plaintiff Bombshell Accessories, Inc. ("Plaintiff") filed a breach of contract claim against Defendant L.A. Silver, Inc. ("Defendant") alleging that Defendant breached a settlement agreement that the parties entered into in 2010. Before the Court is Defendant's motion [9] to dismiss Plaintiff's complaint for improper venue under Federal Rule of Civil Procedure 12(b)(3), or, alternatively, to transfer the case to the United States District Court for the Central District of California under 28 U.S.C. § 1406(a). For the following reasons, Defendant's motion [9] is denied.

I. Background*fn1

Plaintiff is a New York-based corporation that designs body jewelry and related accessories and sells them at wholesale. Plaintiff also designs and sells "microdermal anchors," which are flat, oblong pieces of metal that are surgically inserted beneath the skin to secure certain types of body jewelry. Plaintiff developed an ornamental microdermal anchor design, called the "Bombshell Design," that it alleges is readily identifiable and distinguishable from other microdermal anchors on the market. The Bombshell Design is copyrighted, and Plaintiff has a patent application for the design pending before the U.S. Patent and Trademark Office.

In early 2010, Plaintiff learned that Defendant, a corporation incorporated and principally operated in California, was selling, manufacturing, marketing, distributing, importing, and/or selling a microdermal anchor similar to the Bombshell Design. Plaintiff demanded that Defendant cease and desist its alleged infringement of Bombshell intellectual property, including the Bombshell Design. In an effort to avoid litigation, the parties entered into a valid and binding Settlement Agreement ("the Settlement Agreement"). Section 5(a) of the Settlement Agreement acknowledged Plaintiff's exclusive rights to the Bombshell Design:

LA Silver recognizes and acknowledges Metal Mafia's [Bombshell's] exclusive worldwide ownership [of] the [Bombshell] Intellectual Property. LA Silver acknowledges and agrees that the [Bombshell] Design and all applications and registrations comprising the [Bombshell] Intellectual Property, whether current or forthcoming, are and shall be valid, enforceable, and owned by [Bombshell]. [1 at ¶ 13.] Sections 1(a) and 1(b) provided that Defendant would "cease all manufacturing, marketing, distributing, importing, and selling of the LAS Design" and "recall or destroy all advertising materials, including website materials, bearing the LAS Design" by September 28, 2010. [Id. at ¶ 14] The Settlement Agreement also contained a clause entitled "Governing Law; Jurisdiction, Forum Selection Prevailing Party," which stated that:

This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois without giving effect to any choice-of-law or conflict-oflaw provision or rule that would cause the application of the laws of any jurisdiction other than the State of Illinois. The parties accept and agree that the United States District Court of the Northern District of Illinois located in Chicago, Illinois, has and shall retain jurisdiction over this Agreement for the resolution of any claims or disputes arising out of or relating to the parties' exercise of their rights and/or obligations under this Agreement * * *." [1-1 at ¶ 7 (emphasis added).]

Plaintiff claims that Defendant began manufacturing, marketing, distributing, importing, and/or selling a new variation of the Bombshell Design in violation of the 2010 Settlement Agreement. Plaintiff claims that it addressed the alleged continued misappropriation with Bombshell via correspondence on November 16, 2010, but states that Defendant denied liability and continued making and selling the anchor.*fn2 Plaintiff filed a diversity action for breach of contract in this Court. Defendant filed a motion [9] to dismiss the complaint for improper venue under Federal Rule of Civil Procedure 12(b)(3) or, alternatively, to transfer venue of the case to the Central District of California under 28 U.S.C. § 1406(a).

II. Legal Standard Governing Motions to Dismiss for Improper Venue

Where jurisdiction is founded solely on diversity of citizenship, venue is proper in:

(1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought.

28 U.S.C. § 1391(a) Subsection (c) of the statute provides that "a defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced." 28 U.S.C. § 1391(c). When a State has multiple districts, "such corporation shall be deemed to reside in any district in that State within which its contacts would be sufficient to subject it to personal jurisdiction if that were a separate State * * *." Id.

Rule 12(b)(3) provides that a party may move to dismiss a case that a plaintiff filed in an improper venue. FED. R. CIV. P. 12(b)(3). The plaintiff bears the burden of establishing proper venue. See Int'l Travelers Cheque Co. v. BankAmerica Corp., 660 F.2d 215, 222 (7th Cir. 1981 (citing Grantham v. Challenge-Cook Bros., Inc. et al., 420 F.2d 1182, 1184 (7th Cir. 1969)). The burden is met by making a prima facie showing that venue is proper. See Sanderson v. Spectrum Labs, Inc., 2000 WL 1909678, at *3 (7th Cir. Dec. 29, 2000); Bell v. Woodward Governor Co., 2004 WL 1498145, at *1 (N.D. Ill. Jul. 2, 2004). A court deciding a Rule 12(b)(3) motion must take the allegations in the complaint as true (unless contradicted by affidavit) and draw all reasonable inferences in favor of the plaintiff. See Nagel v. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.