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Delta Sigma Theta Sorority Inc. v. Bivins

United States District Court, District of Columbia

February 19, 2014

LETISHA D. BIVINS, et al. Defendants.


BERYL A. HOWELL, District Judge.

In this trademark infringement suit, the plaintiff, Delta Sigma Theta Sorority, Inc., seeks to enjoin the defendants, Letisha D. Bivins ("Bivins"), Alphonso D. Goins ("Goins"), and FratHouse Clothing, LLC ("FratHouse")[1] (collectively, "the defendants"), from selling merchandise that allegedly infringes upon its registered trademarks, as well as to recover damages from the defendants. See Compl., ECF No. 1, generally. Pending before the Court are Defendants Bivins and Goins' Joint Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(2) for lack of personal jurisdiction; 12(b)(3) for improper venue; and 12(b)(6), for failure to state a claim against Defendant Bivins. See Defs.' Joint Mot. Dismiss ("Defs.' Mot.") at 1, ECF No. 51. For the reasons discussed below, the motion is granted in part on grounds that venue in this district is improper and transfer of this case to the Middle District of Florida is warranted.


The defendants operate a clothing business in Naples, Florida, for which business they maintain a website. See Compl. ¶ 26. The plaintiff alleges that the defendants have engaged in the sale of merchandise bearing the plaintiff's trademarks without authorization. Id. ¶ 27. Despite serving the defendants with multiple cease and desist letters, the plaintiff alleges the defendants continued to sell the allegedly infringing merchandise. Id. ¶¶ 33-37.

The plaintiff initiated this lawsuit on February 26, 2013. See id. at 1. Defendants Bivins and FratHouse, proceeding pro se, timely moved to dismiss the complaint on grounds of lack of personal jurisdiction, improper venue, and, as to Defendant Bivins, failure to state a claim. See Mots. Dismiss, ECF Nos. 13 and 14. After the plaintiff improperly filed a Motion for Default against Defendant Goins, [2] Defendant Goins, who is also proceeding pro se, filed a Motion to Dismiss on similar grounds. See Mot. Dismiss, ECF No. 29.

In October, 2013 the plaintiff filed a Motion for Temporary Restraining Order ("TRO"), seeking, inter alia, the immediate removal of all allegedly infringing merchandise from the defendants' website and an immediate cessation of the allegedly infringing activity. See Pl.'s Mot. TRO, ECF No. 34. The Court set a prompt hearing date on the plaintiff's TRO motion and directed that the parties "be prepared to discuss whether this Court has the power to enter such an Order, given the jurisdictional and venue disputes raised by the defendants." Minute Order (October 21, 2013). In advance of the TRO hearing, the Court also denied the three pending motions to dismiss without prejudice and granted the plaintiff limited discovery "to determine if this Court has jurisdiction over the defendants and if venue is proper in this District." See Mem. Order at 4-6, ECF No. 36.[3]

Oral argument was heard on the plaintiff's TRO motion on October 23, 2013.[4] The Court granted the plaintiff's motion and imposed a Temporary Restraining Order on the defendants for the duration of the plaintiff's jurisdictional discovery period.[5] See Order Granting the Plaintiff's Mot. for TRO at 1, ECF No. 37; Minute Order (December 5, 2013). At the conclusion of jurisdictional discovery, the Court granted, with Defendant Bivin's consent, an extension of the temporary restraining order through the date of the Court's ruling on the anticipated renewed motions to dismiss. See Minute Order (December 23, 2013). Defendant Bivins and Defendant Goins subsequently filed a joint motion to dismiss for lack of personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2), improper venue under Rule 12(b)(3), and, as to Defendant Bivins, failure to state a claim upon which relief can be granted under Rule 12(b)(6). See Defs.' Mot. at 1.


Rule 12(b)(3) of the Federal Rules of Civil Procedure authorizes a party to move to dismiss a case for "improper venue." FED. R. CIV. P. 12(b)(3). Similarly, the federal venue statute, 28 U.S.C. § 1406(a), requires that a district court "dismiss, or if it be in the interest of justice, transfer" a case, which is filed "in the wrong division or district." 28 U.S.C. § 1406(a). Together, "Section 1406(a) and Rule 12(b)(3) allow dismissal only when venue is wrong' or improper'... in the forum in which [the case] was brought." Atl. Marine Constr. Co. v. U.S. Dist. Court, 134 S.Ct. 568, 577 (2013). The Supreme Court explained that "[w]hether venue is wrong' or improper' depends exclusively on whether the court in which the case was brought satisfies the requirements of federal venue laws." Id.

"When venue is challenged, the court must determine whether the case falls within one of the three categories set out in § 1391(b), " id., which governs "the venue of all civil actions brought in district courts of the United States." 28 U.S.C. § 1391(a)(1). Specifically, venue of a civil case is properly laid in the following three categories of judicial district: where "any defendant resides, if all defendants are residents of the State in which the district is located;" where "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 where "any defendant is subject to the court's personal jurisdiction with respect to such action, " so long as venue is unavailable in any other district. Id. § 1391(b).

The moving party objecting to venue must provide "sufficient specificity to put the plaintiff on notice of the defect" that the case fails to fall within one of the three categories set out in section 1391(b). 14D CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 3826, at 496 (4th ed. 2013). Nevertheless, the burden remains on the plaintiff to establish that venue is proper since it is "the plaintiff's obligation to institute the action in a permissible forum....'" Williams v. GEICO Corp., 792 F.Supp.2d 58, 62 (D.D.C. 2011) (quoting Freeman v. Fallin, 254 F.Supp.2d 52, 56 (D.D.C. 2003)); see also WRIGHT ET AL., § 3826, at 502, XXXXXXXXX ("[W]hen [an] objection has been raised, the burden is on the plaintiff to establish that the district he [or she] chose is a proper venue[, ]... consistent with the plaintiff's threshold obligation to show that the case belongs to the particular district court in which the suit has been instituted.").

In reviewing a motion to dismiss for improper venue, the court "accepts the plaintiff's well-pled factual allegations regarding venue as true, draws all reasonable inferences from those allegations in the plaintiff's favor and resolves any factual conflicts in the plaintiff's favor.'" Wilson v. Obama, 770 F.Supp.2d 188, 190 (D.D.C. 2011) (quoting James v. Verizon Servs. Corp., 639 F.Supp.2d 9, 11 (D.D.C. 2009)). The court may resolve the motion on the basis of the complaint alone, or, as necessary, examine facts outside the complaint that are presented by the parties, while drawing reasonable inferences in favor of the plaintiff. Herbert v. Sebelius, 925 F.Supp.2d 13, 17201218 (D.D.C. 2013).


Since the propriety of venue in this district has been challenged, the Court must evaluate whether venue is proper here under any of the three prongs of 28 U.S.C. § 1391(b). See Atl. Marine Constr. Co., 134 S.Ct. at 577. According to the allegations in the Complaint, all three defendants are residents of the Middle District of Florida, specifically, the city of Naples, Florida. See Compl. ¶¶ 4-6. This allegation renders venue improper in this district under both § 1391(b)(1), since none of the defendants reside in this district, and § 1391(b)(3), since all defendants reside in Florida, making venue available in another district, namely, the Middle District of Florida. See 28 U.S.C. § 1391(b)(3) (providing for jurisdiction over a civil action in "any ...

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