United States District Court, N.D. Illinois, Eastern Division
SEVEN OAKS MILLWORK, Inc. (d/b/a ROYAL CORINTHIAN), Plaintiff,
ROYAL FOAM US, LLC, GREEN WALL CONSTRUCTION, and VALENTYN KULBAKA Defendants.
Charles P. Kocoras, United States District Judge.
the Court is Defendants Royal Foam US, LLC (“Royal
Foam”), Green Wall Construction (“Green
Wall”), and Valentyn Kulbaka's
“Defendants”) motion to dismiss under Federal
Rules of Civil Procedure 12(b)(2) and 12(b)(6). For the
following reasons, the Court will grant the 12(b)(2) motion
and deny as moot the 12(b)(6) motion.
this order, the Court accepts as true the following facts
from the complaint. Murphy v. Walker, 51 F.3d 714,
717 (7th Cir. 1995). All reasonable inferences are drawn in
the Plaintiff's favor. Tamayo v. Blagojevich,
526 F.3d 1074, 1081 (7th Cir. 2008).
Seven Oaks Millwork, Inc. (d/b/a Royal Corinthian)
(“Plaintiff”) is an Illinois corporation with its
principal place of business at 603 Fenton Lane, West Chicago,
Illinois. Plaintiff sells columns, rails, newel posts,
finishings, and balustrades. Defendant Royal Foam is a
Florida limited liability company with its principal place of
business in Jacksonville, Florida, and is in the business of
selling balustrades. Defendant Green Wall is a Florida
limited liability company. Green Wall is the exclusive
distributor for Royal Foam products and services. Defendant
Kulbaka is an individual domiciled in Florida who manages and
controls Defendants Royal Foam and Green Wall.
is the owner of the valid U.S. Copyright Reg. No.
VA0001924546, titled Royal Corinthian Inc. 2003 Products
Catalogue (the “Catalogue”). The Catalogue
consists of the following: (1) original, digital graphic
images depicting Plaintiff's products alongside
corresponding product specifications and architectural
drawings showing dimensions - specifically for
Plaintiff's columns, rails, newel posts, finishings, and
balustrades, including the balusters; (2) original,
explanatory text regarding Plaintiff's products; and (3)
original images of Plaintiff's products being used in the
marketplace. The Catalogue is an advertisement brochure that
has been publicly distributed in print and is publicly
available on Plaintiff's website.
2019, Plaintiff discovered that Defendants copied some of the
original, digital graphic images of its balusters from the
Catalogue. Defendants allegedly selected, copied, and pasted
these images into a derivative work, titled “Balustrade
Residential” (“infringing work”), which is
an advertisement showing various designs of Defendants'
balusters. Some images of Defendants' balusters that
appear in the infringing work are exact copies of photographs
of Plaintiff's balusters that appear in the Catalogue.
Defendants' infringing work does not reference or
acknowledge any copyright. A copy of the infringing work is
also posted on the Defendants' website.
on these facts, Plaintiff filed its complaint on September
18, 2019, alleging claims for direct, contributory, and
vicarious Copyright Infringement under 17 U.S.C. §§
501 et seq., including 17 U.S.C. § 106, and
False Designation of Origin under 15 U.S.C. § 1125(a).
On October 15, 2019, Defendants moved to dismiss
Plaintiff's complaint for lack of personal jurisdiction
under Federal Rule of Civil Procedure 12(b)(2).
12(b)(2) allows a court to dismiss a claim for lack of
personal jurisdiction over the defendant. Fed.R.Civ.P.
12(b)(2). A complaint need not include facts alleging
personal jurisdiction. But once the defendant moves to
dismiss the complaint under this Rule, the plaintiff must
demonstrate that personal jurisdiction exists. Purdue
Research Found. v. Sanofi-Synthelabo, S.A., 338 F.3d
773, 782 (7th Cir. 2003). If the court rules on the motion
without a hearing, the plaintiff need only establish a
“prima facie case of personal
jurisdiction.” Id. (quoting Hyatt
Int'l Corp. v. Coco, 302 F.3d 707, 713 (7th Cir.
2002)). The court reads the entire complaint liberally and
draws every inference in the plaintiff's favor. Cent.
States, Se. & Sw. Areas Pension Fund v. Phencorp Reins.
Co., 440 F.3d 870, 878 (7th Cir. 2006) (quoting
Textor v. Bd. of Regents of N. Ill. Univ., 711 F.2d
1387, 1393 (7th Cir. 1993)) (internal quotation marks
omitted). The court may also consider affidavits from both
parties when determining whether a plaintiff has met its
burden. Felland v. Clifton, 682 F.3d 665, 672 (7th
Cir. 2012). When the defendant challenges, by declaration, a
fact alleged in the plaintiff's complaint, the plaintiff
has an obligation to go beyond the pleadings and submit
affirmative evidence supporting the exercise of jurisdiction.
Purdue Research Found., 338 F.3d at 783. While
affidavits trump the pleadings in this context, all facts
disputed in the affidavits will be resolved in the
plaintiff's favor. See id. at 782. Unrefuted
facts in defendant's affidavits, however, will be taken
as true. GCIU-Employer Ret. Fund, 565 F.3d 1018,
1023 (7th Cir. 2009).
motion to dismiss under Rule 12(b)(6) “tests the
sufficiency of the complaint, not the merits of the
case.” McReynolds v. Merrill Lynch & Co.,
694 F.3d 873, 878 (7th Cir. 2012). The allegations in the
complaint must set forth a “short and plain statement
of the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). A plaintiff need not
provide detailed factual allegations, but it must provide
enough factual support to raise its right to relief above a
speculative level. Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007).
must be facially plausible, meaning that the pleadings must
“allow . . . the court to draw the reasonable inference
that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). The claim must be described “in sufficient
detail to give the defendant ‘fair notice of what the .
. . claim is and the grounds upon which it rests.'”
E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d
773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S.
at 555). “[T]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements,
” are insufficient to withstand a 12(b)(6) motion to
dismiss. Iqbal, 556 U.S. at 678.
urge the Court to dismiss the complaint under Rule 12(b)(2)
for lack of personal jurisdiction and under Rule 12(b)(6) for
failure to state a ...