The opinion of the court was delivered by: John D. Bates United States District Judge
Plaintiff Sweetgreen, Inc., brings this action against defendant Sweet Leaf, Inc., and its owners Shifteh Matini, Arash Matini, and Arita Matini for trademark infringement and unfair competition. Plaintiff asserts six claims against defendants: (1) trademark infringement under 15 U.S.C. § 1114; (2) unfair competition, false designation of origin, and false and misleading representation under 15 U.S.C. § 1125(a); (3) trade dress infringement under 15 U.S.C. § 1125(a); (4) unfair competition under 28 D.C. Code § 3904(a), (b), (s); (5) trademark infringement and unfair competition under District of Columbia common law; and (6) a claim for an accounting of damages under 15 U.S.C. § 1117. Now before the Court is defendants' motion to dismiss the suit for lack of personal jurisdiction and improper venue, or in the alternative, to transfer the case to the United States District Court for the Eastern District of Virginia. Upon consideration of the parties' memoranda, the applicable law, and the entire record herein, and for the reasons stated below, the Court will grant defendants' motion and transfer this action to the United States District Court for the Eastern District of Virginia.
Plaintiff, a Delaware corporation doing business in Washington, D.C., operates a restaurant chain specializing in salads, wraps, and frozen yogurt. Compl. ¶¶ 1, 12 [Docket Entry 1]. In connection with this business, plaintiff owns and uses several federally registered trademarks, including the "SWEETGREEN" mark and a two-toned leaf design. Compl.
¶¶ 12--25. Plaintiff also owns the domain . Compl. ¶ 29. Plaintiff opened its first store in August 2007, and presently operates four stores in Washington, D.C., one store in Maryland, two stores in Virginia, and two stores in the Philadelphia, Pennsylvania area. Pl.'s Opp'n to Defs.' Mot. to Dismiss or Transfer at 1--2 [Docket Entry 14] ("Pl.'s Opp'n").
Defendants, a Virginia corporation doing business in Virginia and its owners, operate a restaurant in McLean, Virginia, which features salads, sandwiches, and yogurt.*fn1
Compl. ¶ 2. Defendants operate the domain and use their website to advertise their goods and services. Compl. ¶ 37. Defendants began operating their business on June 1, 2009. Defs.' Mot. to Dismiss or Transfer at 2 [Docket Entry 13-1] ("Defs.'MTD").
At some point, plaintiff became aware of defendants' use of a similar mark and two-toned leaf design in connection with defendants' competing restaurant business. Compl. ¶¶ 30--31. Plaintiff asserts that defendants' marks are confusingly similar to those on which plaintiff holds superior rights, and that defendants' intention is to misappropriate plaintiff's goodwill. Compl. ¶¶ 30--36, 43. Plaintiff filed this action after its attempts to reach an agreement with defendants regarding the use of the marks were unsuccessful. Compl. ¶ 39.
Defendants have now filed a motion to dismiss or transfer the case, arguing that this Court lacks personal jurisdiction over them and that venue in the District of Columbia is improper. Plaintiff opposes the motion, arguing that this Court has jurisdiction under the District of Columbia's long-arm statute. See D.C. Code § 13-423.
Under Federal Rule of Civil Procedure 12(b)(2), a plaintiff bears the burden of establishing a court's personal jurisdiction over a defendant. Where, as here, there has been no jurisdictional discovery, a plaintiff need only make a prima facie showing of the pertinent jurisdictional facts in order to meet that burden. See Mwani v. bin Laden, 417 F.3d 1, 7 (D.C. Cir. 2005); see also Brunson v. Kalil & Co., Inc., 404 F. Supp. 2d 221, 226 (D.D.C. 2005). "Moreover, to establish a prima facie case, plaintiffs are not limited to evidence that meets the standards of admissibility required by the district court. Rather, they may rest their argument on their pleadings, bolstered by such affidavits and other written materials as they can otherwise obtain." Mwani, 417 F.3d at 7. Nevertheless, a plaintiff must allege "specific facts upon which personal jurisdiction may be based," Blumenthal v. Drudge, 992 F. Supp. 44, 53 (D.D.C. 1998), and cannot rely on conclusory allegations, see Elemary v. Philipp Holzmann A.G., 533 F. Supp. 2d 116, 121 (D.D.C. 2008).
The Court may exercise personal jurisdiction over a non-resident defendant either by (1) finding general jurisdiction over the party, allowing the court to entertain a suit against a defendant "without regard to the claim's relationship vel non to the defendant's forum-linked activity," or (2) finding specific jurisdiction based on "acts of a defendant that touch and concern the forum." Steinberg v. Int'l Criminal Police Org., 672 F.2d 927, 928 (D.C. Cir. 1981); accord Kopff v. Battaglia, 425 F. Supp. 2d 76, 81 (D.D.C. 2006).
Here, plaintiff asserts that either general or specific jurisdiction over defendants is appropriate in light of the totality of defendants' contacts with the District of Columbia. First, plaintiff contends that defendants maintain an interactive website targeted toward residents of the District of Columbia and thereby offer their goods and services for sale to District of Columbia residents. See Compl. ¶ 10. Next, plaintiff argues, defendants maintain several pages on Facebook and Twitter that advertise their goods and services and can be viewed from Washington, D.C. See Pl.'s Opp'n at 2--3. In addition, defendants' business is listed on Yelp, a third-party website that allows users to review local businesses. Id. at 6. The business was also reviewed by the Washingtonian, a magazine catering to the Washington, D.C. region; defendants posted a link to that article on their Facebook page. Id. at 3. Finally, plaintiff asserts that defendants have contacted a real estate broker to consider the possibility of opening a store in Washington. Id.
To establish general jurisdiction over a non-resident defendant corporation, a plaintiff must show that the corporation is "doing business" in the District of Columbia. See D.C. Code § 13-334(a).*fn2 A plaintiff must further show that the defendant has "continuous and systematic" business contact with the forum state such that general jurisdiction over the defendant is "reasonable and just." See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 415 (1984); see also Gorman, 293 F.3d at 510 (noting that the reach of general jurisdiction under § 13-334(a) is "co-extensive with the reach of constitutional due process"). Due process requires that the defendants' "conduct and connection with the forum State" is such that they should "reasonably anticipate being haled into court there." World-Wide Volkswagon Corp. v. Woodson, 444 U.S. 286, 297 (1980).
Theseconditions are not met here. Defendants' website, Twitter, and Facebook pages are all informational in nature; no business is conducted on or through the websites. See Defs.' MTD at 5--6; see also Decl. of Arash Matini ¶¶ 9--10 [Docket Entry 13-5]. "Mere accessibility" of a website in the forum is not a sufficient "foundation upon which to base personal jurisdiction." GTE New Media Servs. Inc. v. BellSouth Corp., 199 F.3d 1343, 1346 (D.C. Cir. 2000). Defendants' contact with a real estate broker involved only one phone inquiry in which the defendants reached the broker's voicemail. See Decl. of John Asadoorian ¶ 3 [Docket Entry 14-7]. Plaintiff has not alleged that defendants had any serious discussion with the broker about the possibility of branching out into D.C., or that they actually did so. Taken together, then, defendants' actions do not constitute the kind of ...