United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUFEY, JR. UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendants Giantex, Inc.
(“Giantex”), GoPlus Corp. (“GoPlus”),
and Wei Wu's (collectively, “Defendants”)
Motion to Dismiss for Lack of Personal Jurisdiction and
Improper Venue, or Alternatively, to Transfer Venue Pursuant
to 28 U.S.C. § 1404(a) .
Factory Direct Wholesale, LLC (“Factory Direct”)
is a limited liability company organized under the laws of
the State of Georgia. Defendant GoPlus is a California
corporation that allegedly owns or controls Defendant
Giantex, also a California corporation. Defendant Wei Wu is
an individual and citizen of California. Mr. Wu is the Chief
Executive Officer (“CEO”) of GoPlus and allegedly
has ownership interests in GoPlus and Giantex. (Compl. ¶
Direct is a Georgia-based company with rights it asserts to
certain trademarks and trade names protected by state and
federal law. Factory Direct alleges that since 2005 it has
been operating online marketplaces for various products
including home, office, pet, and health products using the
following trade names and trademarks: “Factory Direct
Wholesale, ” “FDW, ” “BestPet,
” “BestOffice, ” and
“BestMassage.” (Compl. ¶ 11). Factory Direct
has a federal trademark registration issued by the U.S.
Patent and Trademark Office for “BestPet”
(Registration No. 3934022). ([1.2]). BestPet refers to pet
crates and crate covers, pet furniture, and play yards for
pets. (Compl. ¶ 14). Factory Direct also alleges
trademark registration for “BestOffice” and
“BestMassage.” ([1.3], [1.4]).
Direct alleges that Defendants are unlawfully infringing its
trade names and trademarks in sales of certain products by
Defendants on eBay.com and Amazon.com. (Compl. ¶ 20). As
an example of this claimed infringement, Factory Direct
attached to the Complaint an “Order Details”
invoice for a pet stroller (the “Stroller”) sold
by Defendant Giantex under the BestPet name on Amazon.com to
a consumer in Duluth, Georgia. (Compl. Ex. 1 (the
“Accused Sale”)). The invoice shows that on or
about January 19, 2015, Eastern Enterprises, LLC in Duluth,
Georgia ordered the Stroller from Giantex through Amazon.com.
(Compl. Ex. 1). Giantex is listed as the seller on the
invoice. Id. GoPlus shipped the Stroller to Eastern
Enterprises at its Duluth, Georgia address. (Declaration of
Wei Wu [10.7] (“Wu Decl.”) ¶¶
5-6). Factory Direct concedes that Eastern
Enterprises is its affiliate and that the Stroller was
ordered by Eastern Enterprises to document that Defendants
were engaging in infringing sales.
January 30, 2017, Factory Direct filed its Complaint for
Damages and Injunctive Relief  (the
“Complaint” or “Compl.”). Factory
Direct asserts claims for infringement of a federally
protected registered trademark under 15 U.S.C.§ 1114
(Count I); unfair competition under 15 U.S.C. § 1125
(Count II); common law trademark infringement (Count III);
and violation of the Georgia Uniform Deceptive Trade
Practices Act, O.C.G.A. § 10-1-370 et seq.
(Count IV). Factory Direct seeks an injunction preventing
Defendants from infringing on its trademarks and trade names
and a judgment for damages and unlawful profits generated by
Defendants unauthorized use of Factory Direct's
trademarks and trade names.
Direct alleges that this Court has specific jurisdiction over
each of the Defendants because they each regularly transact,
solicit, or conduct business in Georgia, including deriving
substantial revenue from internet sales of goods sold to and
used by consumers in Georgia and this judicial district.
(Compl. ¶ 9).Factory Direct alleges only the Accused
Sale as evidence of Defendants' contacts with Georgia.
March13, 2017, Defendants filed their Motion to Dismiss for
Lack of Personal Jurisdiction and Improper Venue, or
alternatively, Motion to Transfer Venue .
submitted affidavits and other evidence of the nature and
extent of their contacts with the State of Georgia. The
evidence submitted shows that Defendant Wu is not a resident
of Georgia. He maintains residences in Ningbo, China, and San
Bernardino County, California. He does not maintain a bank or
financial account in Georgia. (Wu Decl. ¶ 9). Mr. Wu
does not own any real or personal property or lease any real
or personal property in Georgia. He does not have an agent or
representative in Georgia, and he has not conducted any
business in Georgia.
and GoPlus do not have offices, bank or financial accounts,
telephone numbers, employees, agents, representatives, or
real or personal property, owned or leased, in Georgia; and
their documents and records are maintained at their places of
business in California. (See Declaration of Tommy Xu
[10.2] (“Xu Decl.”) ¶¶ 2-3; Wu Decl.
¶¶ 2-3). Giantex and GoPlus are not registered to
do business in Georgia. (Xu Decl., ¶¶ 2-3; Wu
Decl., ¶¶ 2-3). Giantex and GoPlus do not provide
services, advertise, solicit, or conduct business activity
directed to or in Georgia except “that Giantex Inc.
sometimes sells products to Georgia based on Internet orders
placed by buyers through third party Internet website [sic]
that is accessible from anywhere in the United States, such
as Amazon.com.” (Xu Decl. ¶ 3). Similarly,
“GoPlus ships products to Georgia occasionally for
Internet orders placed by buyers through third party Internet
website [sic] that is accessible from anywhere in the United
States, such as Amazon.com.” (Wu Decl. ¶ 3).
Personal Jurisdiction Principles
plaintiff bears the burden of establishing personal
jurisdiction over the defendants against which it files an
action. Consolidated Dev. Corp. v. Sherritt, Inc.,
216 F.3d 1286, 1291 (11th Cir. 2000); Diamond Crystal
Brands, Inc. v. Food Movers Intern., Inc., 593 F.3d
1249, 1257 (11th Cir. 2010).
federal court undertakes a two-step inquiry in determining
whether personal jurisdiction exists: “the exercise of
jurisdiction must (1) be appropriate under the state long-arm
statute and (2) not violate the Due Process Clause of the
Fourteenth Amendment to the United States
Constitution.” United Techs. Corp. v. Mazer,
556 F.3d 1260, 1274 (11th Cir. 2009). Georgia's long-arm
statute provides limited circumstances in which a court may
exercise personal jurisdiction over a nonresident defendant
“in the same manner as if he or she were a resident of
this state, if in person or through an agent, he or she . . .
[t]ransacts any business within this state.” O.C.G.A
Due Process Clause requires that the defendant's conduct
and connection with the forum State be such that he should
reasonably anticipate being haled into court there.”
Diamond Crystal, 593 F.3d at 1267 (internal
quotation marks omitted) (quoting Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 474 (1985)). “The heart
of this protection is fair warning” to the defendant.
Id.; see Licciardello v. Lovelady, 544 F.3d
1280, 1284 (11th Cir. 2008) (“The Constitution
prohibits the exercise of personal jurisdiction over a
nonresident defendant unless his contact with the state is
such that he has ‘fair warning' that he may be
subject to suit there.”). “Therefore, states may
exercise jurisdiction over only those who have established
certain minimum contacts with the forum such that the
maintenance of the suit does not offend traditional notions
of fair play and substantial justice.” Diamond
Crystal, 593 F.3d at 1267 (quoting Helicopteros
Nacionales de Colombia S.A. v. Hall, 466 U.S. 408, 414
(1984)). “The presence of minimum contacts raises a
presumption that the court may constitutionally exercise
jurisdiction” and, to rebut that presumption, the
defendant “must present a compelling case that the
presence of some other considerations would render
jurisdiction unreasonable.” Oldfield v. Pueblo De
Bahia Lora, S.A., 558 F.3d 1210, 1221 n.29 (11th Cir.
2009) (internal quotation marks omitted) (quoting Burger
King, 471 U.S. at 477).
defendant files a motion to dismiss for lack of personal
jurisdiction and an evidentiary hearing is not held,
“the plaintiff bears the burden of establishing a
prima facie case of jurisdiction over the movant,
non-resident defendant.” Morris v. SSE, Inc.,
843 F.2d 489, 492 (11th Cir. 1988). “A prima facie case
is established if the plaintiff presents enough evidence to
withstand a motion for directed verdict.” Madara v.
Hall, 916 F.2d 1510, 1514 (11th Cir. 1990). A party
presents enough evidence to withstand a motion for directed
verdict by putting forth substantial evidence “of such
quality and weight that reasonable and fair-minded persons in
the exercise of impartial judgment might reach different
conclusions.'” Walker v. NationsBank of
Florida, 53 F.3d 1548, 1554 (11th Cir. 1995).
deciding a motion to dismiss “[t]he district court must
accept the facts alleged in the complaint as true, to the
extent they are uncontroverted by the defendant's
affidavits.” Madara, 916 F.2d at 1514. If a
defendant “challenges jurisdiction by submitting
affidavit evidence in support of its position, the burden
traditionally shifts back to the plaintiff to produce
evidence supporting jurisdiction.” Diamond
Crystal, 593 F.3d at 1257. “Where the
plaintiff's complaint and supporting evidence conflict
with the defendant's affidavits, the court must construe
all reasonable inferences in favor of the plaintiff.”
Personal Jurisdiction Under Georgia's ...