Notice of Motion And Motion To Quash Service of Summons

Motion

Cal. Super. - 4th Dist.November 25, 2019

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 235 26 27 28 Stephen E. Abraham =~ LAW QEFICES = 1592 Pegasus Street Newport Beach, CA 92660 (949) 878-8608 Law Offices of Stephen Abraham Stephen E. Abraham, Esq. (State Bar No. 172054) stephen@abraham-lawoffices.com 1592 Pegasus Street Newport Beach, California 92660 Telephone: (949) 878-8608 Facsimile: (714) 852-3366 Attorney for Specially-Appearing Defendant Ink’d Threads, LLC SUPERIOR COURT OF CALIFORNIA COUNTY OF ORANGE CENTRAL JUSTICE CENTER DOMINICK MARTIN, an individual, Plaintiff, V. INK’D THREADS, LLC, a North Carolina limited liability company; and DOES 1-10, inclusive, Defendants. Case No. 30-2019-01114192-CU-CR-CJC SPECIALLY APPEARING DEFENDANT INK’D THREADS, LLC’S NOTICE OF MOTION AND MOTION TO QUASH SERVICE OF SUMMONS AND DISMISS; MEMORANDUM OF POINTS AND AUTHORITIES [Declaration Filed Concurrently] Honorable James Crandall Orange County Superior Court 700 Civic Center Drive West Department C-33 Santa Ana, CA 92701 Date: February 27, 2020 Time: 1:30 pm Location: Dept. C-33 RESERVATION NO. 73196652 TO ALL INTERESTED PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on February 27, 2020 at 1:30 pm in Department C-33 of the above-entitled Court, located at 700 Civic Center Drive West, Santa Ana, California, Defendant Ink’d Threads, LLC (“Ink’d Threads” or “Defendant”), will appear specially and Mtn to Quash 1 MOTION TO QUASH SUMMONS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 235 26 27 28 Stephen E. Abraham =~ LAW QEFICES = 1592 Pegasus Street Newport Beach, CA 92660 (949) 878-8608 move the Court for an order quashing the service of summons in this action on the ground of lack of personal jurisdiction over Ink’d Threads. The motion will be made on the basis that there are insufficient contacts between Ink’d Threads and this State to support any Constitutional basis for assertion of jurisdiction over the person of Defendant. This motion will be based on this Notice, the attached Memorandum in support and the Declaration of Andy Swaggerty, the files and records in this action and any further evidence and argument that the Court may receive at or before the hearing. Dated: January 6, 2020 LAW OFFICES OF STEPHEN ABRAHAM By: _ /s/ Stephen E. Abraham Stephen E. Abraham, Esq. Attorney for Specially-Appearing Defendant Ink’d Threads, LLC Mtn to Quash 2 MOTION TO QUASH SUMMONS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 235 26 27 28 Stephen E. Abraham =~ LAW QEFICES = 1592 Pegasus Street Newport Beach, CA 92660 (949) 878-8608 TABLE OF CONTENTS L INTRODUCTION ..ccuiiuiiruicnessecssessesssesssssssessesssessesssssssssssssssssssssssssssssssssessasssssssssssssassses II. STATEMENT OF RELEVANT FACTS ananassae III. DISCUSSION ..couiiruiiriisrecseessessanssanssasssecsssssessssssssssssssesssssssssssssssssssssssssssssssssssssssssssssssssssss I. Constitutional Limitations Upon the Exercise of Personal JULISAICHION e eee eee eae sree 2, Plaintiff Must Factually Prove Sufficient Grounds for Assertion of Personal Jurisdiction in Response to a Challenge ............ccccccevvieviecieenceeninnn, 3s Assertion of General or Specific Jurisdiction Against Ink’d Threads Does Not Comport With Constitutional Limitations ............cccceveeveenneene A. General Jurisdiction is Absent in this Case...........cccevevveineerievienieneneenn 1) General Jurisdiction DIEFDEA, sss osm im ammo 2) There is No Basis for Exercise of General Personal Jurisdiction over Ink’d Threads ..........ccoceeveriiniininiiniciecee, B. The Grounds for Specific Jurisdiction Do Not Exist in this CASE... cee eee eee eee sre eae eee 1) Specific Jurisdiction Defined...........cccovveviiiiiiiiiinieiiecieeeee 2) Exercise of Specific Personal Jurisdiction over Ink’d Threads Would be Unjustified Under the Facts Presented in This Case.........cocevveeveeierienieniniieneeiecieeeee IV: CONCLUSION iunnossmeosmnimensmvessssessesss mosses sassssess ass assiss ess sors ess esssne ssosessss sssess simes Mtn to Quash i MOTION TO QUASH SUMMONS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 235 26 27 28 Stephen E. Abraham =~ LAW QEFICES = 1592 Pegasus Street Newport Beach, CA 92660 (949) 878-8608 I. INTRODUCTION The action as to which this motion is directed is brought based on claims arising or derived from the Americans with Disabilities Act and California’s Unruh Civil Rights Act. To be clear, this motion is not an attack upon either of those acts nor of the general principles underlying actions taken to eliminate barriers to access. However, this action has little to do with disabled access. Rather, seemingly unsatisfied with the thousands or even hundreds of thousands of potential targets within the borders of this State, Plaintiff and his attorney have seen fit to sue a small business located in North Carolina, claiming its website is not disabled-friendly. Ink’d Threads is a small business located in Greenville, North Carolina. It has no offices nor operations in California. It does not advertise nor solicit customers in California. While its website offers products to the general public, examination of its site reveals the vast majority of its customers to be local teams, schools, and businesses. Unsurprisingly, Plaintiff does not claim that Defendant reached out to him. Quite to the contrary, Plaintiff appears to have specifically targeted Defendant’s website, not for the purpose of actually purchasing anything but, rather, in the capacity of a “tester.” By the reasoning of Plaintiff and his attorneys, there is no website beyond their reach, no business that cannot be targeted no matter the improbability or even impossibility of actual patronage on Plaintiff’s part. Simply put, allowing Plaintiff to force Ink’d Threads before this Court cements its role in a potentially multi-trillion dollar litigation enterprise targeting every business on the planet with a website. Fortunately, there are limits to such schemes, not least of which are Constitutional standards of Due Process. Ink’d Threads does not have systematic and continuous contacts with this State; thus, this Court lacks general jurisdiction over Ink’d Threads. Because Ink’d Threads did not purposefully avail itself of the benefits of doing business in California, Plaintiff’s claims do not arise out of Ink’d Threads limited contacts with California, and invoking jurisdiction over Ink’d Threads would offend traditional notices of due process, specific jurisdiction over Ink’d Threads is absent. On the basis of the foregoing, the summons should be QUASHED. Mtn to Quash 1 MOTION TO QUASH SUMMONS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 77 28 Stephen E. Abraham =~ LAW QEFICES = 1592 Pegasus Street Newport Beach, CA 92660 (949) 878-8608 II. STATEMENT OF RELEVANT FACTS Ink’d Threads is a small apparel printer specializing in creating online apparel stores for schools, businesses, and other groups. (Declaration of Andy Swaggerty (“Swaggerty Decl.”), 93). It is headquartered in Greenville, North Carolina. It has no other offices. (/d., 94) Its employees all operate out of the Greenville location. (/d.) It creates custom designed printed apparel. (1d., 45) The print on apparel work is done in North Carolina. (/d.) Ink’d Threads does not engage in direct personal marketing outside of North Carolina. (/d., 46) It does not advertise nor solicit business in California. Its customers are distinctly local. (/d.) Ink’d Threads is not licensed nor registered to conduct business in California. (/d., 47) It holds no bank accounts in California, and has no employees in California. (/d., 98) During 2018 and 2019, Ink’d Threads’ gross sales through its website were as follows: Year Gross Sales | California Total (3) Sales (8) 2018 80,826.00 40.00 2019 149,387.00 98.00 Total 230,213.00 138.00 (1d, 99) With respect to Sandbox Threads, the website previously maintained by Ink’d Threads but now closed (Id., 410), the numbers are even more revealing in terms of the wrongfulness of Plaintiffs action, targeting such a small business with almost no sales in California. During 2018 and 2019, Sandbox Threads’ gross sales were as follows: Year Gross Sales | California Total ($) Sales ($) 2018 2,540.00 240.00 2019 1,105 0.00 Total 3,645.00 240.00 (Id., 11) In the face of this lawsuit, Sandbox Threads has ceased business altogether. (/d., 12) Based on the Complaint, Plaintiff’s sole alleged contact with Ink’d Threads has been to Mtn to Quash 2 MOTION TO QUASH SUMMONS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 235 26 27 28 Stephen E. Abraham =~ LAW QEFICES = 1592 Pegasus Street Newport Beach, CA 92660 (949) 878-8608 visit its website and engage with that website in a passive manner. (Complaint § 20) Plaintiff does not allege that he actually transacted business with Ink’d Threads (See Complaint, 12-20) nor even attempted to do so. Rather, Plaintiff’s sole motivation for visiting the site is to “independently and privately investigate Defendant’s products, services, privileges, advantages, accommodations, and amenities...” (Complaint, 19) but, conspicuously, not to actually purchase anything. Plaintiff does not even profess a desire to patronize Ink’d Threads or Sandbox Threads, an essential aspect of standing to pursue an accessibility claim. III. DISCUSSION 1. CONSTITUTIONAL LIMITATIONS UPON THE EXERCISE OF PERSONAL JURISDICTION “California’s long-arm statute - Code of Civil Procedure section §410.10 - authorizes California courts to exercise jurisdiction on any basis not inconsistent with the Constitution of the United States or the Constitution of California.” Vons Companies, Inc. v. Seabest Foods, Inc., 14 Cal.4th 434, 444 (1996). Put another way, a California court cannot assert personal jurisdiction over a non-resident defendant who has not been served with process within the state unless “the defendant has such minimum contacts with the state that the assertion of jurisdiction does not violate ‘traditional notions of fair play and substantial justice.” Vons, 14 Cal. 4th at 444, quoting Int’l Shoe Co. v. Washington, 326 U.S. 310 (1945); Civ. Proc. CODE §410.10; Snowney v. Harrah's Entertainment, Inc., 35 Cal.4th 1054, 1061 (2005). The United States Supreme Court describes two bases for limiting a state’s exercise of personal jurisdiction over nonresidents. Vons at 445. “The first recognizes limits on a state’s assertion of jurisdiction designed to ensure fairness to nonresident defendants. The second recognizes the mutual limits on the states’ sovereign power to exercise jurisdiction in a federal system.” Ibid. !'In challenging the Constitutionality of service of summons, Defendant does not ask this Court to reach the merits of Plaintiff’s claims but merely notes the superficial nature of Plaintiffs trolling websites beyond California’s geographic borders. Mtn to Quash 3 MOTION TO QUASH SUMMONS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 235 26 27 28 Stephen E. Abraham =~ LAW QEFICES = 1592 Pegasus Street Newport Beach, CA 92660 (949) 878-8608 2, PLAINTIFF MUST FACTUALLY PROVE SUFFICIENT GROUNDS FOR ASSERTION OF PERSONAL JURISDICTION IN RESPONSE TO A CHALLENGE “When a motion to quash is properly brought, the burden of proof is placed upon the plaintiff to establish the facts of jurisdiction by a preponderance of the evidence.” Aquila, Inc. v. Superior Court, 148 Cal.App.4th 556, 568 (2007), quoting Vons, supra, 14 Cal.4th at 444-445; Felix v. Bomoro Kommanditgesellschaft, 196 Cal.App.3d 106, 110 (1987); As You Sow v. Crawford Lab's, Inc., 50 Cal. App.4th 1859, 1866 (1996). “When a defendant challenges the court’s personal jurisdiction on the ground of improper service of process the burden is on the plaintiff to prove...the facts requisite to an effective service.” Summers v. McClanahan, 140 Cal. App.4th 403, 413 (2006); see also Lebel v. Mai, 210 Cal.App.4th 1154, 1163 (2012). Bare allegations of jurisdiction will not suffice; a plaintiff must come forward with facts, by affidavit or otherwise, to show that exercise of personal jurisdiction over defendants is appropriate. Nobel Floral, Inc. v. Palero, 106 Cal.App.4th 654, 657 (2003); Amba Marketing Systems, Inc. v. Jobar Intern, Inc., 551 F.2d 784, 787 (9th Cir. 1977). 3. ASSERTION OF GENERAL OR SPECIFIC JURISDICTION AGAINST INK’D THREADS DOES NOT COMPORT WITH CONSTITUTIONAL LIMITATIONS Personal jurisdiction may be either general or specific. Shisler v. Sanfer Sports Cars, Inc., 146 Cal. App.4th 1254, 1258 (2006). “The nature and the quality of the defendant’s contacts determine whether jurisdiction, if exercised, is general or specific. F. Hoffman-La Roche, Inc. v. Superior Court, 130 Cal.App.4th 782, 796 (2005). Exercise of jurisdiction over Ink’d Threads would be unfair, unreasonable, unduly burdensome, and would violate due process under the circumstances of this case. “[T]he degree to which a foreign corporation interjects itself into the forum state directly affects the fairness of subjecting it to jurisdiction. The smaller the element of purposeful interjection, the less is jurisdiction to be anticipated and the less reasonable is its exercise.” Felix, supra, 196 Cal. App.3d at 115. Even if the Court finds some degree of purposeful availment, as discussed above, it is far too insignificant to serve as a basis for exercising personal jurisdiction against a small North Carolina-based company. Mtn to Quash 4 MOTION TO QUASH SUMMONS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 77 28 Stephen E. Abraham =~ LAW QEFICES = 1592 Pegasus Street Newport Beach, CA 92660 (949) 878-8608 A. General Jurisdiction is Absent in this Case 1) General Jurisdiction Defined “A nonresident defendant may be subject to the general jurisdiction of the forum if his or 295 her contacts in the forum state are ‘substantial . . . continuous and systematic.” Vons, supra, 14 Cal.4th at 445. The “defendant’s contacts with the forum [must be] so wide-ranging that they take the place of physical presence in the forum as a basis for jurisdiction.” Id. at 446. “[Clonduct of single or isolated items of activities” in a state are not sufficient to subject a party to suit on causes of action unconnected from the forum activities. International Shoe, supra, 326 U.S. at 317. “[C]ontacts that are random, fortuitous, or attenuated do not rise to the minimum level, and general jurisdiction cannot be exercised under these circumstances.” F. Hoffman-La Roche, supra, 130 Cal.App.4th at 795. “The standard for establishing general jurisdiction is ‘fairly high,” [citation], and requires that the defendant’s contacts be of the sort that approximate physical presence. [Citation.] Factors to be taken into consideration are whether the defendant makes sales, solicits or engages in business in the state, serves the state’s markets, designates an agent for service of process, holds a license, or is incorporated there.” Bancroft & Masters, Inc. v. Augusta Nat. Inc., 223 F.3d 1082, 1086 (9th Cir. 2000). 2) There is No Basis for Exercise of General Personal Jurisdiction over Ink’d Threads “Factors to be taken into consideration are whether the defendant makes sales, solicits or engages business in the state, serves the state’s markets, designates an agent for service of process, holds a license or is incorporated there.” Coremetrics, Inc. v. Atomic Park.com, 370 F.Supp.2d 1013, 1017 (N.D. Cal. 2005). Even if a court finds continuous and systematic contacts, the assertion of general jurisdiction must still be reasonable. /d. The courts that have considered the jurisdictional impact of a website have uniformly held that a website is not, alone, a sufficient contact to establish jurisdiction. Shisler, supra, 146 Cal. App.4th at 1259-60; Pavlovich v. Superior Court, 29 Cal.4th 262, 274 (2002); DFSB Kollective Co. Ltd. v. Bourne, 897 F.Supp.2d 871, 881 (N.D. Cal. 2012); Coremetrics, Inc., Mtn to Quash 5 MOTION TO QUASH SUMMONS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 235 26 27 28 Stephen E. Abraham =~ LAW QEFICES = 1592 Pegasus Street Newport Beach, CA 92660 (949) 878-8608 supra, 370 F.Supp.2d at 1019-20. This is particularly true if the website is passive and does not allow users in the forum state to engage in transactions. Shisler, supra, 146 Cal.App.4th at 1261; Pavlovich, supra, 29 Cal.4th at p. 274; citing Zippo Mfg. Co. v. Zippo Dot Com, Inc., 942 F.Supp. 1119, 1124 (W.D. Pa. 1997) is an oft-cited case that considered the jurisdictional impact of a website in depth. In that case, the court held that there is a spectrum from websites where a defendant has simply posted information which is accessible to users in foreign jurisdictions to highly interactive websites where the defendant enters into “contracts with residents of a foreign jurisdiction that involve the knowing and repeated transmission of computer files over the internet.” Zippo, supra, 952 F.Supp. at 1124. “A passive web site does little more than make information available to those who are interested in it,” and is not grounds for the exercise of personal jurisdiction. Shisler, supra, 146 Cal.App.4th at 1261. Even websites that are interactive are not sufficient, by themselves, to support general jurisdiction. Id. at 1259 (sale of ten vehicles to California residents insufficient for general jurisdiction); Silicon Economics, Inc. v. Financial Accounting Foundation, (N.D. Cal. 2010) 2010 WL 4942468 *4 (holding that website that sold products to California residents did not support a finding of general jurisdiction); L.4. Gem & Jewelry Design, Inc. v. Reese (C.D. Cal. 2015) 2015 WL 4163336, *3-4 (same). Shisler, supra, applies the foregoing standards in the context of internet sales. In Shisler, the defendant, a Florida car dealer, maintained a website in Florida on which it listed cars for sale. Plaintiff, a California resident, saw a car on the website, contacted the seller, and purchased the car. After a dispute arose over the condition of the car, the purchaser sued in a California court. /d. at 1257-58. The court quashed service on the Florida seller, finding that the seller lacked minimum contacts with California. /d. at 1262. Of importance, the seller had never owned or leased property in California, had never directly advertised in the state, had never intentionally targeted any California resident as a prospective customer, and had sold only 70 vehicles to California residents out of a total of more than 40,000 vehicles sold. Id. at 1259-60. On these facts, the court concluded that there was no evidence of continuous and systematic contact with California and that the seller’s maintenance of its website alone was insufficient to establish Mtn to Quash 6 MOTION TO QUASH SUMMONS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 235 26 27 28 Stephen E. Abraham =~ LAW QEFICES = 1592 Pegasus Street Newport Beach, CA 92660 (949) 878-8608 general personal jurisdiction. Plaintiff does do not allege and cannot show contacts “so continuous and systematic as to render [it] essentially at home in” California. Daimler AG v. Bauman, 571 U.S. 117, 127 (2014), citing Goodyear Dunlop Tires Operations. SA. v, Brown, 564 U.S. 915, 919 (2011). Plaintiff simply cannot meet his burden to show that Ink’d Threads is subject to general jurisdiction. B. The Grounds for Specific Jurisdiction Do Not Exist in this Case 1) Specific Jurisdiction Defined “A court may exercise specific jurisdiction over a nonresident defendant only if: (1) ‘the defendant has purposefully availed himself or herself of forum benefits’ [citation]; (2) ‘the controversy is related to or arises out of [the] defendant’s contacts with the forum’ [citations]; and (3) ‘the assertion of personal jurisdiction would comport with “fair play and substantial justice’ [citations].” Snowney, supra, 35 Cal.4th at 1062 (internal quotations and citations omitted); DVI, Inc. v. Superior Court, 104 Cal.App.4th 1080, 1090 (2002); Pavlovich v. Superior Court, 29 Cal.4th 262, 269 (2002); Vons, supra, 14 Cal.4th at 446-447; see also Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 476 (1985). “When determining whether specific jurisdiction exists, courts consider the ‘relationship among the defendant, the forum, and the litigation.”” Snowney, supra, 35 Cal.4th at 1062. “The purposeful availment inquiry . . . focuses on the defendant’s intentionality. [Citation.] This prong is only satisfied when the defendant purposefully and voluntarily directs [its] activities toward the forum so that [it] should expect, by virtue of the benefit [it] receives, to be subject to the court’s jurisdiction based on” [its] contacts with the forum.’ [Citations.]” Id. at 1062-1063 (internal quotations and citations omitted.) In other words, it creates a substantial connection with the forum, or engages in significant activities within the forum. Id. at 1063. The mere fact that a non-resident’s acts cause an effect within California, or even that such an effect was foreseeable is not enough to support a finding of personal jurisdiction. World- Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295 (1980); see also Pavlovich, 29 Cal.4th at 272-273. Rather it must be shown that the non-resident defendant purposefully directed its activities at California with knowledge that its conduct would cause harm in the state. Pavlovich Mtn to Quash 7 MOTION TO QUASH SUMMONS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 235 26 27 28 Stephen E. Abraham =~ LAW QEFICES = 1592 Pegasus Street Newport Beach, CA 92660 (949) 878-8608 at 272-273. Unilateral activity by persons or entities over whom the non-resident defendant has no control does not themselves satisfy the purposeful availment requirement. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 417 (1984). 2) Exercise of Specific Personal Jurisdiction over Ink’d Threads Would be Unjustified Under the Facts Presented in This Case Specific jurisdiction arises when, though the defendant lacks such “substantial, continuous, and systematic’ forum contacts that he may be treated as present for all purposes, it is nonetheless proper to subject him to the forum state’s jurisdiction in connection with a particular controversy.” Epic Communications, Inc. v. Richwave Technology, Inc., 179 Cal. App. 4th 314, 327 (2009) (internal quotes omitted). “When determining whether specific jurisdiction exists, courts consider the relationship among the defendant, the forum, and the litigation. A court may exercise specific jurisdiction over a nonresident defendant only if: (1) the defendant has purposefully availed himself or herself of forum benefits; (2) the controversy is related to or arises out of defendant’s contacts with the forum; and (3) the assertion of personal jurisdiction would comport with fair play and substantial justice.” Pavlovich, 29 Cal.4th at 269 (internal quotation marks omitted). Purposeful availment of forum benefits “‘is only satisfied when the defendant purposefully and voluntarily directs his [or her] activities toward the forum so that he [or she] should expect, by virtue of the benefit he [or she] receives, to be subject to the court’s jurisdiction based on’ his [or her] contacts with the forum.” Pavlovich. In this case, there were only $138 dollars in sales in California over the past two years out of total sales of $230,213 for Ink’d Threads and only $240 in sales in California for the now- closed Sandbox Threads. To be clear, Plaintiff demands that Ink’d Threads defend itself in this jurisdiction where this Court’s filing fee is nearly the amount of all of Ink’d Threads’ and Sandbox Threads’ sales in the state. Plaintiff’s demand of jurisdiction over Ink’d Threads is not just fundamentally but profoundly unfair. Discussed, supra, in the context of general jurisdiction, Shisler is instructive for its discussion of the reasoning behind the denial of specific jurisdiction. In Shisler, the court further Mtn to Quash 8 MOTION TO QUASH SUMMONS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 235 26 27 28 Stephen E. Abraham =~ LAW QEFICES = 1592 Pegasus Street Newport Beach, CA 92660 (949) 878-8608 held that specific jurisdiction did not arise because defendant did not “purposefully avail” itself of the benefits of the California forum. /d. at 1261. Defendant’s website did not target or solicit California residents. Further, the parties had no ongoing business relationship whereby the Florida defendant made regular contact with the California plaintiff. /d. at 1261-62; cf. Hall v. LaRonde, 56 Cal. App.4th 1342, 1344 (1997) (purposeful available where parties’ contract required out-of-state defendant to work together with California plaintiff in continuing relationship). Ink’d Threads did not purposefully and voluntarily direct its activities toward California, such that it could reasonably expect to be haled into court in California. See Burger King v. Rudzewicz, 471 U.S. 462, 478 (1985) (rejecting the notion that “an individual’s contract with an out-of-state party alone can automatically establish sufficient minimum contacts in the other party’s home forum.”). In considering whether a contract can constitute a sufficient minimum contact for purposes of personal jurisdiction, the Burger King court instructed lower courts to consider factors such as “prior negotiations and contemplated future consequences, along with the terms of the contract and the parties’ actual course of dealing. ...” Id. at 479. In Aquila, supra, the court held, “It is not enough for a nonresident defendant to become subject to the specific jurisdiction of this state simply by entering into a contract with a California resident. ... a party’s entry into a contract with an out-of-state party does not automatically demonstrate purposeful availment in the other party’s home forum, particularly where the agreements were governed by out-of-state law.” Aquila at 572. Here, Ink’d Threads offered a site, almost entirely focused on commerce inside of North Carolina. It offered printing on clothing. It had minimal sales outside of North Carolina; in 2019, 99.16% of its total sales were in North Carolina leaving a fraction of one percent for all sales everywhere else and not just California. Nor can Plaintiff establish the second element necessary for specific jurisdiction, i.e., that his claim ‘“arise out of or be ‘related to’ the defendant’s forum activity.” Vons, supra, 14 Cal.4th at 451. Plaintiff must establish that his claims arise out of an in-state act personally committed by the non-resident defendant. Mansour v. Sup. Ct. (Eidem), 38 Cal. App.4th 1750, 1760 (1995). Mtn to Quash 9 MOTION TO QUASH SUMMONS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 235 26 27 28 Stephen E. Abraham =~ LAW QEFICES = 1592 Pegasus Street Newport Beach, CA 92660 (949) 878-8608 Plaintiff does not come close to satisfying this requirement. The Complaint does not contain a single allegation concerning acts committed by Defendant in California. Rather, it is Plaintiff who reached out to Defendant through its website and North Carolina-based business. As in Shisler, Ink’d Threads did not target or solicit California purchasers. Ink’d Threads certainly did nothing to target nor solicit Plaintiff’s business. In fact, Plaintiff does not even appear to have contacted Ink’d Threads, thereby attenuating any conceivable contact between the two. There was no business relationship let alone an ongoing one. Moreover, the work on any products crafted would be performed in North Carolina. Ink’d Threads would have no reason to expect that by selling one item to a California purchaser, it could be forced to defend itself in a California court,. On these facts, Plaintiff cannot meet his burden of demonstrating specific jurisdiction over Ink’d Threads. IV. CONCLUSION Based on the foregoing, Specially-Appearing Defendant Ink’d Threads respectfully requests that its motion to quash service of summons be GRANTED. Respectfully submitted, Dated: January 6, 2020 LAW OFFICES OF STEPHEN ABRAHAM By: _ /s/ Stephen E. Abraham Stephen E. Abraham, Esq. Attorney for Specially-Appearing Defendant Ink’d Threads, LLC Mtn to Quash 10 MOTION TO QUASH SUMMONS 10 11 12 13 14 15 16 17 18 19 20 21 79 23 24 25 26 27 28 Stephen E. Abraham == LAWOFEICES -- 1592 Pegasus Street Newport Beach, CA 92660 (949) 878-8608 PROOF OF SERVICE [10132 (3) CCP Revised 06/01/05] I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action. My business address is: 1592 Pegasus Street, Newport Beach, California 92660. On January 6, 2020, I served the foregoing document described as: SPECIALLY APPEARING DEFENDANT INK’D THREADS, LLC’S NOTICE OF MOTION AND MOTION TO QUASH SERVICE OF SUMMONS AND DISMISS; MEMORANDUM OF POINTS AND AUTHORITIES thereon on all interested parties in this action by the method as indicated: PACIFIC TRIAL ATTORNEYS Representing: Plaintiff A Professional Corporation Scott J. Ferrell, Bar No. 202091 sferrell@pacifictrialattorneys.com 4100 Newport Place Drive, Ste. 800 Newport Beach, CA 92660 Tel: (949) 706-6464 Fax: (949) 706-6469 [X] BY MAIL - by addressing a true copy of the above document as set forth above. I am “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. Under that practice it would be deposited with U.S. Postal Service on that same day with postage thereon fully prepaid at Los Angeles, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. [1 BY OVERNIGHT DELIVERY - Depositing copies of the above document(s) in a box or other facility regularly maintained by , in an envelope or package designated by the afore mentioned carrier with delivery fees paid or provided for. [] VIA E-MAIL the receipt of which was confirmed by such means as were reasonably calculated to ensure actual receipt by the recipient of the document. [] BY PERSONAL DELIVERY - I caused such envelope to be hand delivered to the offices of the addressee. Executed on January 6, 2020, at Newport Beach, California. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. /s/ Stephen E. Abraham Stephen E. Abraham Mtn to Quash PROOF OF SERVICE