High Maintenance Bitch LLC v. Uptown Dog Club Inc Doc.

8
Case 2:07-cv-00888-TSZ Document 8 Filed 07/24/2007 Page 1 of 27
The Honorable Robert S. Lasnik

1
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8
9 UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON AT SEATTLE
10
HIGH MAINTENANCE BITCH, LLC, a Washington Civil Action No. C07-0888-RSL
11 LLC,
DECLARATION OF STEVEN P.
12 Plaintiff, FRICKE IN SUPPORT OF
DEFENDANT'S MOTION AND
13 v.
MEMORANDUM TO DISMISS FOR
14 UPTOWN DOG CLUB, INC., a Texas Corporation LACK OF PERSONAL
Defendants. JURISDICTION PURSUANT TO
15 CIVIL RULE 12(B)(2) AND
IMPROPER VENUE, OR
16 ALTERNATIVELY, TO TRANSFER
AND FOR PLAINTIFF TO PROVIDE
17
A MORE DEFINITE STATEMENT
18
19 Steven P. Fricke states and declares as follows:
20 1. I am one of the attorneys for Defendant Uptown Dog Club, Inc. ("Uptown
21 Dog"). I make this declaration in support of Defendant's Motion And Memorandum To
22 Dismiss For Lack Of Personal Jurisdiction Pursuant To Civil Rule 12(B)(2) And Improper
23 Venue, Or Alternatively, To Transfer And For Plaintiff To Provide A More Definite
24 Statement. I have personal knowledge of the facts set forth in this declaration.
25
26
27
DECLARATION OF STEVEN P. FRICKE Townsend and Townsend and
Crew LLP
Case No. C07-0888-RSL - 1 1420 Fifth Avenue, Suite 4400
Seattle, WA 98101-2325
61099742_2.DOC (206) 467-9600
Attorneys for Plaintiffs

Dockets.Justia.com
 Case 2:07-cv-00888-TSZ Document 8 Filed 07/24/2007 Page 2 of 27

1
2 2. Attached hereto as Exhibit 1 is a true and correct copy of Dallas Business

3 Journal June 29, 2007, "Local Pet Supply Store Sues To Protect Feather Boa."

4 3. Attached hereto as Exhibit 2 is a true and correct copy of High Maintenance

5 Bitch web site.

6 4. Attached hereto as Exhibit 3 is a true and correct copy of email string between

7 Steven P. Fricke and Danny Bronski.

8 5. Attached hereto as Exhibit 4 is a true and correct copy of the court's order

9 dismissing plaintiiff's cause of action in Snyder v. Pinal, C.A. No. 02-124-GMS (D. Del.

10 2002).

11
12 Dated this 13th day of July, 2007, in Seattle, Washington.

13
14
s/Steven P. Fricke
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22
23
24
25
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DECLARATION OF STEVEN P. FRICKE Townsend and Townsend and
Crew LLP
Case No. C07-0888-RSL - 2 1420 Fifth Avenue, Suite 4400
Seattle, WA 98101-2325
61099742_2.DOC (206) 467-9600
Attorneys for Plaintiffs
 Local pet Case
supply2:07-cv-00888-TSZ
store sues to protect feather boa - Dallas
Document 8 Business Joural:
Filed 07/24/2007 Page 1 of3
Page 3 of 27

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BUSINE
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Local pet supply store sues to protect feather look abi

boa BujJqii:
SponsorE
Next Ie'
Knock-off dog collars sold around the country draw fire from Seattle store that holds the patents way up.
Puget Sound Business Journal (Seattle) - June 29, 2007 by HejÇÇLQietricb Staff Writer
Iecl:mi
Ë! PrLoJJbjsArtiçJe G EmailJbjsAriçle lI RePfints ß; RssEeegs * MQstYieweÇÇ '* MQstEmajleçç Opporti
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The claws are out at High Maintenance Bitch.
HR&G
The local pet supply shop has filed three lawsuits to protect its signature feather boas for dogs, and Growth
says it plans to unleash a number more. compan

DALLA~
The store claims pet shops around the country
powered
have copied its "pet feathers" product -- a pet
Featur~
collar with a feather boa around it -- which
carries three patents.
KnowLedge.
"We've decided to take a very aggressive
approach to defending our intellectual
Resou rces. propert," said Lori Pacchiano, the store's co-
owner. Price: $
Expert advice for the Building
Use Ty¡
The three lawsuits filed this month name Little
small business. Rock, Ark.-based B.A. Barker Inc., Los '" More

Angeles-based Innovative Spotlight Inc.,

and Frisco, Texas-based Uptown Dog Club DALLA~
Inc. as patent violators. MLB - J
NBA-i:
Exhibit i -3-

htt://ww.bizjoumals.com/dallas/othercities/seattle/stories/2007 /07 /02/story13 .html?b= 1... 7/13/2007

 Local pet Case
supply2:07-cv-00888-TSZ
store sues to protect feather boa - Dallas
Document 8 Business Joural:
Filed 07/24/2007 Page 2 of3
Page 4 of 27

The lawsuits ask the stores to stop selling

imitation "pet feathers" made by companies other than High Maintenance Bitch, and request an NFL - 0
NHL -i:
unspecified amount in damages for lost sales. M9reSi
Daniel Bronski, an attorney with Seattle-based VeriTrademark who is representing the EMAIL l
Pacchianos, said High Maintenance Bitch plans to sue several larger retailers and manufacturers. Get the
He declined to name them. news dE
Si90Wp
Lynn Webb, owner of B.A. Barker, said she is baffed by the suit because B.A. Barker is a small
shop that gives half of its profit to pet rescue.

"I don't think we're a threat to anyone," Webb said.

Another shop owner, Lisa Woody of Uptown Dog Club, said she was surprised the Pacchianos are
suing retailers, and not just the numerous manufacturers who make version of pet boas.

"It's not common practice for retailers to verify that manufacturers have the rights to a product,"
Woody said.

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 Local pet supply store sues to protect feather
Case 2:07-cv-00888-TSZ boa - Dallas
Document 8 Business Journal:
Filed 07/24/2007 Page 3 of3
Page 5 of 27

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 Local pet Case
supply2:07-cv-00888-TSZ
store sues to protect feather boa - Dallas
Document 8 Business Joural:
Filed 07/24/2007 Page 1 of3
Page 6 of 27

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Local pet supply store sues to protect feather look abi

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SponsorE
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Knock-off dog collars sold around the country draw fire from Seattle store that holds the patents way up.
Puget Sound Business Journal (Seattle) - June 29, 2007 by HeiçjIPie\ricQ Staff Writer
IeChnQ
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others tl
Although the company's pet boas carry patent numbers on the tags, similar products are now sold
at pet stores around the country, including several in Seattle. Pacchiano said she worries that the HR&C
imitation boas won't be of the same quality or safety standards as High Maintenance Bitch's pet Growth
feathers, potentially degrading the product. compan

DALLA~
"It's very frustrating to see so many people will copy something," Pacchiano said.
powered
Featuf!:
Both Webb and Woody say they don't sell a
large number of pet boas. Webb took the boas
off B.A. Barker's website because they weren't
very popular, and has sold just one in the store.
At Uptown Dog Club, most revenue comes from
beds, treats, toys and apparel other than the pet
feathers, Woody said.
II
Price: $
Building
Use Ty¡
High Maintenance Bitch began in 20Q2 when
7 IYQX€
brother and sister Ryan and Lori Pacchiano
began selling handmade pet boas out of their
grandmother's garage. When the boas proved a DALLA~
hit, the Pacchianos went to an attorney to MLB - 1
NBA - L
-6-

http://ww.bizjourals.com/dallas/ othercities/ seattle/ stories/2007 /07 /02/ story 13 .html ?page... 7/13/2007
 Local pet Case
supply2:07-cv-00888-TSZ
store sues to protect feather boa - Dallas
Document 8 Business Joural:
Filed 07/24/2007 Page 2 of3
Page 7 of 27

secure patents on the designs.

NFL - P
NHL - L
.. Order AT&T Yahoo! "The lawyer thought we were a little nuts," Lori MQreSi
AT&T YahooI''' Pacchiano said.
Hfgh Speed Internet H1Sll Sp~t't
I'l1terne-t i:-- 101.vi!S EMAIL J
tod¡c;;y and get a The pet feather then transitioned into the
$100 Gift Card 52... :1..' 9'9 celebrity sphere, winning a spot on
Get the
pemo. news dE
on select speeds. Entertainment Weekly's "Hot 100" list and Signup
landing in the 2003 Golden Globes gift basket.
I..SBB..ATT ..8339 The pet feather, which sells for between $16
and $35 depending on the model at the
company's store in Seattle's Wallngford
district, can command a $50 price tag at some
Beverly Hils boutiques, she said.

"High Maintenance Bitch is known globally as

the celebrity pet company," she said.
The company's name also helped the company make a splash. Though some retailers were
uncomfortable with the label, others embraced the edginess. The controversy boosted company
visibilty and brought press coverage, the Pacchianos said.

The company decided to file the lawsuits now because its growth has given it the resources to do
so. The pet boas are now sold wholesale at hundreds of pet stores in the U.S. and at the
Wallngford store, which is independently owned.
The company plans to open 10 stores around the country over the next three years. The company is
not disclosing all of the locations, but Lori Pacchiano said they want a Bellevue shop.

Contact: hrdietrich(§bizjournals.com ° 206-447-8soSX112

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Case 2:07-cv-00888-TSZ Document 8 Filed 07/24/2007 Page 8 of 27

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 Case 2:07-cv-00888-TSZthe Dog
High Maintenance Bitch - Creator of Boa 8
Document Filed 07/24/2007 Page 1 of6
Page 9 of 27

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J ,~.-r,' High Maiiiteiiaiice IIit£hnr
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The Pet FeatherTM is the hottest new fashion for pets.
.. \Lit.diJi-,l.il':"i.tSI,,¡.' They are not meant to be serious but seriously fun.
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A :";,lI(:1-' '''i,dli,,,
Our goal at HMB is to keep your pet looking as
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beautiful and confident as you. The Pet FeatherTM
enhances the natual beauty of your pet yet allows

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. i.lIc f311 cll
them to behave fTeely.
::\HhC
Our trendy name, product and marketing appeals to the growing n
t' i),;:s',)! .'J( ihLLdJ) female pet owners. And with our success we are helping homeles~
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High Maintenance Bitch - Creator of the Document
Case 2:07-cv-00888-TSZ Dog Boa 8 Filed 07/24/2007 Page 2 of6
Page 10 of 27

As seen in Seattle Magazine!

Click her to visi the.fi Seae Storealead)l rat

"Bt New Pet Boutqu" 2005 by Seatt Mae

AU Abuiil J.tò-Ü..1
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High Maintenance Bitch - Creator of the Document
Case 2:07-cv-00888-TSZ Dog Boa 8 Filed 07/24/2007 Page 3 of6
Page 11 of 27

Th Simle licDVD
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Case 2:07-cv-00888-TSZ Dog Boa 8 Filed 07/24/2007 Page 4 of6
Page 12 of 27

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 Case 2:07-cv-00888-TSZ the Document
Dog Boa 8 Page 5 of6
High Maintenance Bitch - Creator of
Filed 07/24/2007 Page 13 of 27

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-13-

http://ww.highmaintenancebitch.com/ome.html 7/13/2007
 High Maintenance Bitch - Creator of the Dog Boa Page 6 of6
Case 2:07-cv-00888-TSZ Document 8 Filed 07/24/2007 Page 14 of 27

¡~
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MaJketiJlyJoLYQPL$tQre IStL¡g(QSpaffçe ¡SkY.GaJlgyHgfQsçgpeS, 1LL¡çkyßjJçh I MqggYPallse I pess--rt~
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Patent # US 0468,491 S and multiple patents pending on all products, copycats beware

-14-

http://ww.highmaintenancebitch.com/ome.html 7/13/2007
 Message Page 1 of 4
Case 2:07-cv-00888-TSZ Document 8 Filed 07/24/2007 Page 15 of 27

Fricke, Steven P.
From: Danny Bronski (danny~veritrademark.comJ
Sent: Tuesday, July 10, 2007 5:10 PM
To: Fricke, Steven P.
Cc: 'Jim Ruttier'
Subject: RE: FOR SETTLEMENT PURPOSES ONLY

Weare thinking that you have more of a vested interest in driving the settlement process, and we are in a
position to sit back and evaluate your offers because, unlike your implications, the ball is not in our court in
any way. The only guideline I can give you is that unless the offer is in six figures, it should be accompanied
by persuasive evidence as to why damages are not that high; I think total sales figures since 2003 broken
down intuitively and/or audited financials would be very helpful here as a starting point to move this along
efficiently. If you aren't wiling to provide us that information, the offer should be high enough that we can
be persuaded that it was worth our while to operate on imperfect information.

From: Fricke, Steven P. (mailto:spfricke(§townsend.com)

Sent: Monday, July 09,20072:15 PM
To: Danny Bronski
Cc: Jim Ruttier
.Subject: RE: FOR SmLEMENT PURPOSES ONLY

Danny,

We have not admitted infringement of any kind. If you inform us of which models infringe, I may be able to get
you the accurate sales figures.

Regarding restitution, what is your client seeking?

Steve
-----Original Message-----
From: Danny Bronski (mailto:danny(Qveritrademark.com)
Sent: Monday, July 09,20072:10 PM
To: Fricke, Steven P.
Cc: 'Jim Ruttier'
Subject: FOR SmLEMENT PURPOSES ONLY

Hi Steven,

Unfortunately, we cannot accept your recommendation, nor can we take you at your word as to the
extent of the infringement without seeing hard evidence.

On the one hand, I agree with you that quick settlement prior to answering the complaint is preferable
for your clients so that they save on attorneys fees and keep more resources open for settlement, and
may be economically efficient if the damages are indeed fairly small. On the other hand, our position
is that you have more or less conceded infringement and we've certainly met our prefiing due

Exhibit 3
-15-
7/1312007
Message Case 2:07-cv-00888-TSZ Document 8 Filed 07/24/2007 Page 2 of 4
Page 16 of 27

dilgence requirements, and if you want to settle quickly rather than allowing us to go through the
procedures set up by federal court system that we would prefer (to determine the true nature and
extent of infringement through discovery), please initiate the discussion with a more serious
settlement offer.

Please keep in mind that my client has expended a significant amount of resources acquiring patent
protection and building a business around their creative ideas, and has been harmed by widespread
infringement of these patented ideas. As a result, we intend to see that our client is protected to the
extent permitted by law.

Any settlement must include three components:

1) Significant financial restitution for infringement to date
2) An agreement not to infringe in the future (or, alternatively, to license the patents)
3) A confidentiality agreement

Alternatively, you can respond to the complaint and we can proceed with discovery.

Thanks,
Danny Bronski

From: Fricke, Steven P. (mailto:spfricke(gtownsend.com)

Sent: Tuesday, July 03, 2007 8:46 AM
To: Danny Bronski
Cc: Jim Ruttier
Subject: RE: HMB Patent Infringement Litigation

Danny,

Transparency goes both ways.

For my clients to provide sales figures, it must know which figures you are requesting. Prior to filing your
lawsuit, you must have completed a good faith analysis of the products that you believe are infringing. As
a result, we are not asking for anything that should not have been completed already and that would come
out in discovery. If you prefer, we will file a motion with the Court requesting that you provide us with such
information prior to our answering the complaint. However, that should be unnecessary.

As with any litigation, it is best to settle prior to the parties begin paying a lot for attorneys. That way, there
should be more resources available for settlement and the clients will not have dug in their heels.

Based upon my understanding, BA Barker sold one feather boa collar to a person in South Carolina for
about $6.00. Uptown Dog sold approximately $500 of Dog Collars (some which may not fall within your
accusations). Assuming you can prove infringement and followed other statutory requirements, your client
may be entitled to a reasonable royalty. I don't know what that would be in this market but it would be a
lot. Moreover, I do believe neither Judge Coughenour nor Judge Zilly will appreciate having this matter
taking up their time when they find out damages are so low and we have agreed to stop selling the
accused dog collars.

Here is what I recommend for a prompt settlement:

Your client dismisses these cases without prejudice and we agree not to sell certain type of dog collars.
(You wil have to inform us of what type of dog collars would be precluded from future sales activities).
Each party is responsible for its own attorneys fees and costs.

-16-
7/1312007
Message Page 3 of4
Case 2:07-cv-00888-TSZ Document 8 Filed 07/24/2007 Page 17 of 27

Please let me know if this is acceptable to you.

Sincerely,
Steve Fricke
-----Original Message-----
From: Danny Bronski (mailto:danny(gveritrademark.com)
Sent: Monday, July 02,20079:39 PM
To: Fricke, Steven P.
Cc: 'Jim Ruttier'
Subject: RE: HMB Patent Infringement Litigation

Hi Stephen,

We wil take that risk. The nature and extent of the infringement wil come out in discovery. If
your client is wiling to be completely transparent in sharing financial information, this will go a
long way toward a quicker settlement. I don't believe it is appropriate to provide you with
model numbers or anything else that implies a limitation on our damages at this time.

I wil be back in town next week and I have also cc'ed my co-counsel Jim Ruttler.

Thanks,
Danny Bronski
---'-~~"~~'~--~~~,~-,---~"-,~,~~~-,---~,,,,~-~~,~------~~~--~~~"--"
From: Fricke, Steven P. (mailto:spfricke(gtownsend.com)
Sent: Monday, July 02, 20074:43 PM
To: Danny Bronski
Subject: RE: HMB Patent Infringement Litigation

Danny,

BA Barker and Uptown Dog have requested that i represent them in the litigation matters pending
before U.S. District Court for Western Washington. i understand that you do not want to discuss the
cases until after an answers or responses to the complaints are filed. At this time, my clients do not
know which products are actually accused of infringement. As a result, please provide me with the
models your client is accusing of infringement. This would go a long way towards reaching a
settlement in this matter.

For your information, both of my clients have not sold very many collars. As a result, damages will
be very low -- if at all. I'm not sure what your client is seeking in this litigation but it runs a big risk of
not being able to recoup its fees and costs in these actions.

i will be out of the country during the week of July 15. As a result, i will not be able to confer with
you until the final week of July.

Sincerely,

Steven P. Fricke
Townsend and Townsend and Crew LLP
1420 Fift Avenue
Suite 4400
Seattle, W A 9810 1
Phone: 206.224.2855
Fax: 206.623.6793

-17-
7/13/2007
Message Case 2:07-cv-00888-TSZ Document 8 Filed 07/24/2007 Page 4 of 4
Page 18 of 27

spfricke(ftownsend.com

ww.townsend.com
Offices in: Denver I Palo Alto I San Diego I San Francisco I Seattle I Walnut Creek I Washington, D.C. I Tokyo

This message may contain confdential infonnation. If you are not the intended recipient and received this
message in error, any use or distribution of this message is strctly prohibited. Please also notify us
immediately by return e-mail, and delete this message from your computer system. Thank you.

-----Original Message-----
From: Danny Bronski (mailto:danny(Qveritrademark.comJ
Sent: Sunday, July 01, 2007 5:09 PM
To: Fricke, Steven P.
Subject: HMB Patent Infringement Litigation

Hi Stephen,

Thank you for the call on Friday. I am writing to let you know that I prefer to avoid any
settlement negotiations or discussion of the case until servce has been confirmed and
perhaps until an answer has been fied. In any event, I wil be out of town this week.
Please direct all communication to this email address and we can schedule a phone
conference to discuss settlement later this month.

Kind regards,
Danny Bronski

Danny Brorrki
VeriTrademark
Attrney
(206) 281-0795 Work
Danny~eriTrademark. com
VerITrademark
216 First Avenue S#210
Seatte, WA .98104
htt :¡¡W'NW. VerITrademark. com

-18-
7/1312007
 Message Page 1 of3
Case 2:07-cv-00888-TSZ Document 8 Filed 07/24/2007 Page 19 of 27

Fricke, Steven P.
From: Fricke, Steven P.
Sent: Tuesday, July 03,20079:10 AM
To: Fricke, Steven P.; 'Danny Bronski'
Cc: 'Jim Ruttier'
Subject: RE: HMB Patent Infringement Litigation

Typo in the first message. The sentence should read as:

I don't know what that would be in this market but it would not be a lot.

-----Original Message-----
From: Fricke, Steven P.
Sent: Tuesday, July 03,20078:46 AM
To: 'Danny Bronski'
Cc: 'Jim Ruttier'
Subject: RE: HMB Patent Infringement Litigation

Danny,

Transparency goes both ways.

For my clients to provide sales figures, it must know which figures you are requesting. Prior to filing your
lawsuit, you must have completed a good faith analysis of the products that you believe are infringing. As
a result, we are not asking for anything that should not have been completed already and that would come
out in discovery. If you prefer, we will file a motion with the Court requesting that you provide us with such
information prior to our answering the complaint. However, that should be unnecessary.

As with any litigation, it is best to sette prior to the parties begin paying a lot for attorneys. That way, there
should be more resources available for settlement and the clients will not have dug in their heels.

Based upon my understanding, BA Barker sold one feather boa collar to a person in South Carolina for
about $6.00. Uptown Dog sold approximately $500 of Dog Collars (some which may not fall within your
accusations). Assuming you can prove infringement and followed other statutory requirements, your client
may be entitled to a reasonable royalty. I don't know what that would be in this market but it would not be
a lot. Moreover, I do believe neither Judge Coughenour nor Judge Zilly will appreciate having this matter
taking up their time when they find out damages are so low and we have agreed to stop selling the
accused dog collars.

Here is what I recommend for a prompt settlement:

Your client dismisses these cases without prejudice and we agree not to sell certain type of dog collars.
(You will have to inform us of what type of dog collars would be precluded from future sales activities).
Each party is responsible for its own attorneys fees and costs.

Please let me know if this is acceptable to you.

Sincerely,
Steve Fricke
-----Original Message-----
From: Danny Bronski (mailto:danny(§veritrademark.com)
Sent: Monday, July 02, 20079:39 PM
To: Fricke, Steven P.

-19-
7/1312007
Message Page 2 of3
Case 2:07-cv-00888-TSZ Document 8 Filed 07/24/2007 Page 20 of 27

Cc: 'Jim Ruttier'

Subject: RE: HMB Patent Infringement Litigation

Hi Stephen,

We wil take that risk. The nature and extent of the infringement wil come out in discovery. If
your client is wiling to be completely transparent in sharing financial information, this wil go a
long way toward a quicker settlement. I don't believe it is appropriate to provide you with
model numbers or anything else that implies a limitation on our damages at this time.

I wil be back in town next week and I have also cc'ed my co-counsel Jim RuttIer.

Thanks,
Danny Bronski

From: Fricke, Steven P. (mailto:spfricke(Qtownsend.com)

Sent: Monday, July 02, 2007 4:43 PM
To: Danny Bronski
Subject: RE: HMB Patent Infringement Litigation

Danny,

BA Barker and Uptown Dog have requested that I represent them in the litigation matters pending
before U.S. District Court for Western Washington. I understand that you do not want to discuss the
cases until after an answers or responses to the complaints are fied. At this time, my clients do not
know which products are actually accused of infringement. As a result, please provide me with the
models your client is accusing of infringement. This would go a long way towards reaching a
settlement in this matter.

For your information, both of my clients have not sold very many collars. As a result, damages will
be very low -- if at alL. I'm not sure what your client is seeking in this litigation but it runs a big risk of
not being able to recoup its fees and costs in these actions.

I will be out of the country during the week of July 15. As a result, I will not be able to confer with
you until the final week of July.

Sincerely,

Steven P. Fricke
Townsend and Townsend and Crew LLP
1420 Fift Avenue
Suite 4400
Seattle, WA 98101
Phone: 206.224.2855
Fax: 206.623.6793
spfricke~townsend.com

ww.townsend.com
Offces in: Denver I Palo Alto I San Diego I San Francisco I Seattle I Walnut Creek I Washington, D.C. I Tokyo

This message may contain confdential infonnation. If you are not the intended recipient and received this
message in error, any use or distribution of this message is strctly prohibited. Please also notify us
imediately by return e-mail, and delete this message from your computer system. Thank you.

-20-
7/1312007
Message Page 3 of3
Case 2:07-cv-00888-TSZ Document 8 Filed 07/24/2007 Page 21 of 27

-----Original Message-----
From: Danny Bronski (mailto:danny(9veritrademark.com)
Sent: Sunday, July 01, 2007 5:09 PM
To: Fricke, Steven P.
Subject: HMB Patent Infringement Litigation

Hi Stephen,

Thank you for the call on Friday. I am writing to let you know that I prefer to avoid any
settlement negotiations or discussion of the case until servce has been confirmed and
perhaps until an answer has been filed. In any event, I wil be out of town this week.
Please direct all communication to this email address and we can schedule a phone
conference to discuss settlement later this month.

Kind regards,
Danny Bronski

Danny Bronski
VeriTrademark
Attorney

(206) 281:795Í'\¡ork
DannyiWeriTrademark. com
VeriTrademark
216 First Avenue 5#210
Seatte, WA 98104
htt://ww,, . VeriTademark, com

-21-
7/13/2007
 Case 2:07-cv-00888-TSZ Document 8 Filed 07/24/2007 Page 22 of 27

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

RICHARD SNYDER, )
)
Plaintiff, )
)
v. ) C.A. No. 02-l24-GMS
)
RENEE PINAL, )
)
Defendant. )
)

MEMORANDUM AND ORDER

On February 12,2002, the plaintiff, Richard Snyder, fied a complaint suing the defendant,

Renee Pinal, for damages resulting from the defendant's alleged failure to refund rent. The

leasehold in question is located in Mexico. (D.I. 1 at ii 3.) The complaint states that the defendant

"is believed to be a citizen of both Mexico nnd the United States." (Id. at ii 1.) The plaintiff further

alleges that the defendant "maintains residences in California and possibly elsewhere in the United

States as well as Mexico." (Id. at ii 2.) The complaint contains no further statements regarding the

defendant's residence or domicile. Snyder is a Delaware resident.

Upon reviewing the complaint and the applicable law, the court finds that it lacks personal

jurisdiction over the defendant. The court wil, therefore, dismiss this action sua sponte for lack of

jurisdiction. i

i The court has the obligation to review issues of personal jursdiction independently and
can dismiss cases sua sponte where it finds jurisdiction lacking. See, e.g., Meritcare, Inc. v. St.
Paul Mercury Ins. Co., 106 F.3d 214,217 (3d Cir. 1999) (citing cases).

Exhibit 4 -22-
 Case 2:07-cv-00888-TSZ Document 8 Filed 07/24/2007 Page 23 of 27

I. DISCUSSION

A. Standard of Review

In determning the presence of personal jursdiction, cours engage in a two step analysis.

First, the cour must decide whether the long ann statute of the state in which the court sits

authorizes jursdiction. Second, the court must detennine whether exercising jurisdiction comports

with the requirements of the Due Process Clause of the Fourteenth Amendment. See, e.g., Compaq

Computer Corp. v. Packard Bell Elec., Inc., 948 F. Supp 338, 342 (D. DeL. 1996) (citation omitted).

For Snyder to satisfy the second prong of this analysis, the court must find the existence of

"minimum contacts" by PinaL. See Transportes Aeros de Angola v. Ronair, Inc, 544 F. Supp. 868,

865 (D. DeL. 1982)(citingIntemational Shoe Co. v. Washington, 326 U.S. 310 (1945). Specifically,

Snyder must show that Pinal "purposefully avail

( ed) . .. (himself) of the privileges of conducting

activities within (the state)." See Asahi Metal Industr Co. v. Superior Court, 480 U.S. 102, 108-09

(1987); Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985). Unless the contacts are

continuous, systematic, and substantial, they must be related to Snyder's cause of action. See

Helicopteros Nacionales de Columbia, s.A. v. Hall, 466 U.S. 408,4111 (1984). In detennining the

jurisdictional question, the cour must accept the allegations in the complaint as true. See Altech

Industries, Inc. v. Al Tech Specialty Steel Corp., 542 F.Supp. 53, 55 (D. DeL. 1982).

B. Compliance with the Delaware Long Arm Statute

According to the Delaware long ar statute, a non-resident is deemed to submit to the

jurisdiction of the Delaware cours by committing anyone of a series of acts. See DEL. CODE ANN.

§ 3104(b). A person can submit himself to Delaware jursdiction by: (1) transacting any business

-23-
 Case 2:07-cv-00888-TSZ Document 8 Filed 07/24/2007 Page 24 of 27

or performing any character of work within the state; (2) contracting to supply services or things in

Delaware; (3) causing tortious injur in Delaware through an act committed in Delaware; (4)

causing tortious injury in Delaware through an act commtted outside Delaware if the person solicits

business in Delaware, engages in regular conduct in Delaware or derives substantial revenue from

Delaware contacts; (5) having an interest in, using, or possessing real property in Delaware; or (6)

contracting to act as a surety for a contract or other such obligation located, executed, or to be

performed within Delaware at the time the contract is made. See id. § 3l04(c)(1)-(6).

The facts contained in the complaint do not provide a basis for subjecting Pinal to the

jurisdiction of the cours of Delaware through its long arm statute. First, the complaint does not

allege that Pinal is currently or has ever transacted business in Delaware. Second, there are no

allegations that Pinal contracts to supply services in Delaware. Third, even if the alleged injur

could be construed as an action for tort damages, it occured in Mexico, which is outside of this state

(and this countr). Fourh, although the purorted injury occured outside of Delaware, the

complaint does not assert that Pinal derives substantial revenue (or any revenue) from conduct in

Delaware, solicits business in Delaware, or engages in regular (or any) conduct in Delaware. Fifth,

the complaint fails to adduce facts that would permit the cour to find that Pinal has any real property

interest in this state. Finally, there is no allegation that Pinal has signed a contract to act as a surety

for an obligation that was located, executed, or performed in Delaware. The cour therefore finds

that personal jurisdiction cannot be obtained over Pinal through the Delaware long arm statute.

-24-
 Case 2:07-cv-00888-TSZ Document 8 Filed 07/24/2007 Page 25 of 27

c. The Due Process Analysis 2

As previously stated, to satisfy the constitutional requirements of due process, the court must

detennne whether Pinal has "minimum contacts" with the state of Delaware. Minimum contacts

are not detennned according to a fixed formula. See Transportes Aeros, 544 F. Supp. at 865.

Nevertheless, as previously stated, minimum contacts are usually found where the defendant has

purosefully availed himself of the privileges of conducting activities within the state.

The leasehold at issue is located in Mexico, not Delaware. The defendant is alleged to have

homes in Mexico and Californa, but not in Delaware. As previously discussed, the complaint does

not allege that the defendant has any signficant connections to the state. Indeed, if the allegations

of the complaint are accepted as true, it is quite possible that the defendant has never even set foot

in Delaware. Thus, the complaint fails to allege that the defendant has any connection to the state

of Delaware. Given this lack of connection to the state, Pinal lacks minimum contacts with the state

of Delaware. The cour therefore finds that the due process guarantee of fair notice would be

violated if this suit were allowed to proceed in this foru. See HMG/Courtland Properties v. Gray,

729 A.2d 300, 306 (DeL. Ch. 1999) ("I have difficulty conceptualizing how (defendants) can be

thought to have fair notice that they can be haled into court in Delaware because of . . . their

participation in out-of-state conduct.").

2 The Delaware long arm statute has been interpreted to be co-extensive with the Due
Process Clause. See, e.g., Transportes Aeros, 544 F. Supp. at 864-65 (stating that "(fJederal
courts in this district. . . have given an expansive interpretation to the long arm statute, ruling
that (the Delaware statute) must be constred as conferring jursdiction to the maximum
perimeters of the due process clause.") (citing cases). Therefore, any finding that there is no
personal jurisdiction from a constitutional perspective obviates the need for the court to consider
whether there is personal jursdiction under the statute, and assumedly, vice versa. Nevertheless,
the court wil briefly discuss the implications of the due process clause in this case.

-25-
 Case 2:07-cv-00888-TSZ Document 8 Filed 07/24/2007 Page 26 of 27

II. CONCLUSION

For all of the foregoing reasons, the court finds that it lacks personal jursdiction over the

defendant PinaL. The court therefore has no power to hear this case. Thus, it wil dismiss the

action.3

NOW, THEREFORE, IT is HEREBY ORDERED THAT:

1. The cour dismisses the plaintiffs complaint for lack of personal jurisdiction.

2. The plaintiffs complaint is DISMISSED WITH PREJUDICE.

3. The clerk shall close this case.

Dated: April.l, 2002 Gregory M. Sleet

UNITED STATES DISTRICT mDGE

3 The cour's ruling should in no way be construed as an opinion on the merits of

this
case or the appropriateness of jursdiction in another foru.

-26-
 Case 2:07-cv-00888-TSZ Document 8 Filed 07/24/2007 Page 27 of 27

1 CERTIFICATE OF SERVICE
2 I hereby certify that on the 24th day of July, 2007, the foregoing Declaration of Steven
3 P. Fricke in Support of Defendant's Motion and Memorandum to Dismiss for Lack of Personal
Jurisdiction Pursuant to Civil Rule 12(B)(2) and Improper Venue, or Alternatively, to Transfer
4 and for Plaintiff to Provide a More Definite Statement was filed with the Court using the
CM/ECF system which will send notification of such filing to the following:
5
• Daniel M Bronski
6 Veri Trademark
danny@veritrademark.com
7 Attorneys for High Maintenance Bitch
8 Executed on July 24, 2007.
9
/s/ Steven P. Fricke
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
DECLARATION OF STEVEN P. FRICKE Townsend and Townsend and
Crew LLP
Case No. C07-0888-RSL -27 1420 Fifth Avenue, Suite 4400
Seattle, WA 98101-2325
(206) 467-9600
Attorneys for Plaintiffs