Love Your Brain Foundation, Inc. v. Epilepsy Foundation of Greater Los Angeles

MOTION to Dismiss Case for Lack of Jurisdiction

D. Vt.October 6, 2016

UNITED STATES DISTRICT COURT FOR THE STATE OF VERMONT LOVE YOUR BRAIN FOUNDATION, INC., ) ) Plaintiff ) ) Civil Action No. 2:16-cv-221 v. ) ) EPILEPSY FOUNDATION OF GREATER ) LOS ANGELES, ) ) Defendant. ) DEFENDANT’S MOTION TO DISMISS NOW COMES Defendant Epilepsy Foundation of Greater Los Angeles (“LA Foundation”), by and through its counsel Paul Frank + Collins P.C., and hereby moves to dismiss plaintiff’s Complaint, in accordance with Fed. R. Civ. P. 12(b)(2), on the basis that the Court is without personal jurisdiction over the defendant. LA Foundation offers the following memorandum of law and accompanying Affidavit of Susan Pietsch-Escueta in support thereof. Memorandum of Law LA Foundation lacks the necessary contacts with the State of Vermont for this Court to exercise jurisdiction over it. The Complaint itself fails to allege sufficient contacts – a deficiency bolstered by the facts outlined in the accompanying Affidavit of Ms. Pietsch-Escueta (“Pietsch- Escueta Aff.”). Even if such contacts existed, exercising jurisdiction over LA Foundation would be unreasonable. Because this Court lacks jurisdiction over LA Foundation, it must grant the Foundation’s motion and dismiss the Complaint in its entirety. I. Factual Background The Epilepsy Foundation of Greater Los Angeles is a non-profit, 501(c)(3) charitable organization incorporated in the State of California. Complaint [ECF No. 1] ¶ 2; Pietsch-Escueta Aff. ¶ 1. LA Foundation maintains its only office in Los Angeles. Complaint ¶ 2; Pietsch-Escueta PAUL FRANK + COLLINS P.C. ATTORNEYS AT LAW BURLINGTON, VERMONT PLATTSBURGH, NEW YORK CAMBRIDGE, MASSACHUSETTS 1 Case 2:16-cv-00221-wks Document 6 Filed 10/06/16 Page 1 of 15 Aff. ¶ 5. Including its Executive Director, Ms. Susan Pietsch-Escueta, LA Foundation has 12 employees (full-time and part-time), all based in the Los Angeles office. Pietsch-Escueta Aff. ¶ 6. Members of its Board of Directors and Board of Advisors are primarily from the Los Angeles area. Id at ¶ 7. From its sole office in Los Angeles, LA Foundation serves individuals and families affected by epilepsy and seizure disorders across the counties of Los Angeles, Orange, San Bernardino, and Ventura, all located in the State of California. Id at ¶ 8. These services include administration and support of educational programs on epilepsy and seizure disorders. Id. LA Foundation raises funds through donors and charity events. Id at ¶ 11. It conducts charity events in Los Angeles and throughout the State of California. Id. Donors include individuals and organizations found in the State of California, as well as in other parts of the United States, but none reside or are headquartered in the State of Vermont. Id at ¶ 11, 23, and 38. LA Foundation has not participated in any events in and/or received monetary donations from within the State of Vermont. Id at ¶¶ 11 and 38. LA Foundation does not actively seek donations from residents in the State of Vermont. Id at ¶ 37. LA Foundation operates websites with pages that can be accessed via the Internet. Id at ¶ 14. Its primary website is accessible at the URL (or “domain name”) www.endepilepsy.org. Id at ¶ 15. LA Foundation owns several other domain names through which it directs Internet traffic to various pages of its primary website. Id. LA Foundation also operates a secondary website with pages accessible at the domain names www.loveyourbrainnow.com and www.loveyourbrainnow.org. Id at ¶ 19. The pages of the principal and secondary websites allow individuals to make donations to LA Foundation. Id at ¶ 21. PAUL FRANK + COLLINS P.C. ATTORNEYS AT LAW BURLINGTON, VERMONT PLATTSBURGH, NEW YORK CAMBRIDGE, MASSACHUSETTS 2 Case 2:16-cv-00221-wks Document 6 Filed 10/06/16 Page 2 of 15 All websites identify and provide information about LA Foundation’s LOVE YOUR BRAIN NOW education initiative (“LYBN Initiative”) and “Big Brain” exhibit. Id at ¶ 16 and 19. The LYBN Initiative provides education about the brain. Id at ¶ 17. The Big Brain exhibit includes a large, inflatable “Big Brain” that is brought on location. Id. The webpages dedicated to the LYBN Initiative and the Big Brain exhibit solicit requests from schools and organizations for LA Foundation to bring the Big Brain exhibit and LYBN Initiative program to their location. Id at ¶ 18. All websites identify the LA Foundation by name and includes its trademarks, EPILEPSY FOUNDATION GREATER LOS ANGELESTM and END EPILEPSY®. Id at ¶ 20. As early as July 2012, LA Foundation began to promote the LYBN Initiative. Id at ¶ 22. At that time, LA Foundation began to solicit participants and donors for the official launch of the LYBN Initiative in October 2012. Id. Between July 2012 and October 2012, LA Foundation secured a number of national corporate sponsors, none of whom are headquartered in Vermont. Id at ¶ 23. On October 9, 2012, LA Foundation issued a press release via PrWeb.com to further promote the LYBN Initiative. Id at ¶ 24. The press release identified national corporate sponsors for the LYBN Initiative. Id at ¶ Id. On October 28, 2012, LA Foundation launched the LYBN Initiative at its Walk to End Epilepsy event at the Rose Bowl in Pasadena, California. The launch included a wrapped and branded tour bus and the Big Brain exhibit, both brought to the event at the Rose Bowl. Id at ¶ 25. Between October 2012 and August 2014, LA Foundation delivered the LYBN Initiative to approximately 34 venues, all in the State of California. Id. In or around August 2014, LA Foundation became aware of plaintiff, Love Your Brain Foundation (“LYB Foundation”), and contacted LYB Foundation via an electronic submission form accessed on LYB Foundation’s website at www.loveyourbrain.com. Id at ¶ 27. On the electronic PAUL FRANK + COLLINS P.C. ATTORNEYS AT LAW BURLINGTON, VERMONT PLATTSBURGH, NEW YORK CAMBRIDGE, MASSACHUSETTS 3 Case 2:16-cv-00221-wks Document 6 Filed 10/06/16 Page 3 of 15 submission form, LA Foundation explained the LYBN Initiative. Id. The LA Foundation received an email response from LYB Foundation. Id at ¶ 28. Between August 2014 and July 2015, the LA Foundation had no other contact with LYB Foundation. Id at ¶ 29. On or around May 29, 2015, the LA Foundation purchased the domain name www.loveyourbrain.org at an open auction at the registrar GoDaddy.com. Id at ¶ 30. The LA Foundation directs traffic through this domain name to pages of its principal website at www.endepilepsy.org. The pages identify the LYBN Initiative. Id. On or around July 2015, LYB Foundation contacted the LA Foundation about the domain name www.loveyourbrain.org. Subsequently, LA Foundation received a letter from LYB Foundation’s counsel dated July 28, 2015, and addressed to Ms. Pietsch-Escueta, making a demand on LA Foundation. Id at ¶ 31. Outside of this limited contact with LYB Foundation, LA Foundation has no contact with the State of Vermont. Id at ¶ 32. It has no office and is not registered to do business in the State of Vermont. Id at ¶ 33. It has no employees, board members, advisors, or volunteers residing in or working remotely in the State of Vermont. Id at ¶ 34. LA Foundation does not provide any services or administer any programs, including the LYBN Initiative, in the State of Vermont or any neighboring state. Id at ¶ 36. LA Foundation does not solicit funds within the State of Vermont and, at least since the launch of the LYBN Initiative in 2012, has no known listed donors and received no known monetary donations from within the State of Vermont. Id at ¶ 37 and II. Legal Standards On a 12(b)(2) motion to dismiss, LYB Foundation bears the burden of demonstrating that LA Foundation’s contacts with Vermont are sufficient to establish jurisdiction with respect to each asserted claim. Country Home Products, Inc. v. Schiller-Pfeiffer, Inc., 350 F.Supp. 2d 561, 566-67 PAUL FRANK + COLLINS P.C. ATTORNEYS AT LAW BURLINGTON, VERMONT PLATTSBURGH, NEW YORK CAMBRIDGE, MASSACHUSETTS 4 Case 2:16-cv-00221-wks Document 6 Filed 10/06/16 Page 4 of 15 (D. Vt. 2004); see also, Sunward Elecs., Inc. v. McDonald, 362 F.3d 17, 24 (2nd Cir. 2004). This Court’s analysis rests on a two-part inquiry: “first, it must determine whether the plaintiff has shown that the defendant is amendable to service of process under the forum state’s laws; and second, it must assess whether the court’s assertion of jurisdiction under these laws comports with the requirements of due process.” Metropolitan Life Ins. Co v. Robertson-Ceco Corp., 84 F.3d 560, 567 (2nd Cir. 1996). Because LA Foundation does not dispute service, this Court’s analysis focuses on due process. Due process ensures that a foreign defendant is not subject to a binding judgment of a forum with which it has insufficient contacts. Ben & Jerry’s Homemade, Inc. v. Coronet Priscilla Ice Cream Corp., 921 F.Supp. 1206, 1209 (D. Vt. 1996). Intentional and affirmative action by a non- resident in the “forum state” is the key to personal jurisdiction. Id. at 1210. In determining whether exercise of personal jurisdiction is consistent with due process, the Court must first determine whether the defendant has sufficient “minimum contacts” with the forum. Renzello v. Nelson, No. 1:05-cv-153, 2005 WL 1459683 (D. Vt. June 21, 2005). The “minimum contacts” analysis distinguishes between general and specific jurisdiction. Metropolitan Life Ins. Co., 84 F.3d at 567. General jurisdiction “permits a court to exercise its power in a case where the subject matter of the suit is unrelated to those contacts.” Paul Viko v World Vision, Inc., No. 2:08-cv-221, 2009 WL 2230919 at *2 (D. Vt. July 24, 2009) (J. Sessions)(citing Metropolitan Life, 84 F.3d at 567-68). For general jurisdiction to attach, the Court applies a stringent test whereby LYB Foundation must “demonstrate the defendant’s general business contacts with Vermont were continuous, systematic and of a sufficiently substantial nature as to permit a Vermont court to entertain a cause of action.” Bechard v. Constanzo, 810 F. Supp. 579, 583 (D. Vt. 1992); see also, Silpe v. LCA-Vision, Inc., No. 02:05-cv-049, 2005 WL 1026616 at PAUL FRANK + COLLINS P.C. ATTORNEYS AT LAW BURLINGTON, VERMONT PLATTSBURGH, NEW YORK CAMBRIDGE, MASSACHUSETTS 5 Case 2:16-cv-00221-wks Document 6 Filed 10/06/16 Page 5 of 15 *2 (D. Vt. April 19, 2005) (quoting Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 416 (1984)). “Specific jurisdiction exists when a state exercises personal jurisdiction over a defendant in a suit arising out of or relating to the defendant’s contacts with the forum.” Viko, 2009 WL 2230919 at *2 (internal quotations omitted) (citing Metropolitan Life 84 F.3d at 567-68). “[S]pecific jurisdiction is confined to adjudication of issues deriving from, or connected with, the very controversy that establishes jurisdiction.” Gaffney v. Shelton, No. 2:11-cv-189, 2012 WL 368683 at *3 (D. Vt. Feb. 3, 2012). “Defendants have ‘minimum contacts’ with the forum state for the purposes of specific jurisdiction if the claim arises directly out of their contacts there and if they have ‘purposefully availed’ themselves of the privilege of doing business in the forum.” Real Good Toys, Inc. v XL Machine Ltd., 163 F.Supp.2d 421, 424 (D. Vt. 2001)(J. Sessions)(citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174). “Jurisdiction based on such action is justified because the defendant should reasonably anticipate being haled into court there.” Anichini, Inc. v. Campbell, No. 1:05-cv-55, 2005 WL 2464191 at *2 (D. Vt. Oct. 4, 2005). Finally, the Court must apply a reasonableness test to determine whether the exercise of jurisdiction over a foreign corporation is just. Even if the analysis establishes the requisite minimum contacts, the Court can forgo jurisdiction under a reasonableness inquiry that determines whether the assertion of jurisdiction over the defendant would offend “traditional notions of fair play and substantial justice.” Id. III. Argument LYB Foundation can assert no facts to establish any nexus or relationship between LA Foundation and the State of Vermont for purposes of jurisdiction. This is because none exist. LA Foundation focuses its activities in California, and more specifically, as its name implies, in the PAUL FRANK + COLLINS P.C. ATTORNEYS AT LAW BURLINGTON, VERMONT PLATTSBURGH, NEW YORK CAMBRIDGE, MASSACHUSETTS 6 Case 2:16-cv-00221-wks Document 6 Filed 10/06/16 Page 6 of 15 greater Los Angeles area. See Pietsch-Escueta Aff. It has no activities or contacts with the State of Vermont substantial enough to confer jurisdiction. Id. A. LYB Foundation cannot meet its burden to demonstrate that this Court maintains general jurisdiction over LA Foundation because LA Foundation has insufficient contacts with the State of Vermont. This Court lacks general jurisdiction over LA Foundation because LA Foundation simply lacks any contacts with the State of Vermont. Indeed, LYB Foundation has neither alleged, nor can it offer, any facts to show that LA Foundation has contacts with the State of Vermont that are continuous, systematic, or substantial, as required for this Court to exercise general jurisdiction under the minimum contacts due process analysis. LYB Foundation alleges only that it “relies on the claim by Epilepsy Foundation that it has national use of its infringing slogan for purposes of jurisdiction in this Court.” Complaint ¶ 18. This, however, remains insufficient. LA Foundation has no ongoing business relationship with the State of Vermont. It has no office or employees in the State of Vermont. Pietsch-Escueta Aff. ¶ 33 and 34. It derives no known monetary donations from the State of Vermont. Id. at ¶ 38. It is not registered to do business in the State of Vermont, and conducts no business here. Id. at ¶ 33 and 35. At most, LA Foundation operates websites accessible in Vermont, but this too remains insufficient. In Viko, this Court addressed general jurisdiction as relates to contacts with Vermont by a non-profit, out-of-state defendant through a website. The Court noted that “in order to demonstrate jurisdiction a plaintiff cannot merely show the existence of website – even one that is ‘active’ or ‘interactive’ – but must show actual substantial and continuous contact through the website with the forum state.” Viko, 2009 WL 2230919 at *12. The Court gave little deference to facts that the website promoted the defendant or that Internet users could make donations via online transactions. Id. PAUL FRANK + COLLINS P.C. ATTORNEYS AT LAW BURLINGTON, VERMONT PLATTSBURGH, NEW YORK CAMBRIDGE, MASSACHUSETTS 7 Case 2:16-cv-00221-wks Document 6 Filed 10/06/16 Page 7 of 15 In this regard, the facts here align with those in Viko. LA Foundation engages in no Internet activities purposely directed at Vermont. Its websites merely permit donations and provide information that relates to the organization, its services, and its events. Id. at ¶ 15 and 19. As this Court reasoned in Viko, “although [defendant’s] website may be a ‘continuous’ contact in the sense that it is available to Vermonters 24 hours of every day, it is not ‘substantial’ and is therefore not a significant contact for purposes of asserting general personal jurisdiction.” Viko, 2009 WL 2230919 at *13. B. LYB Foundation cannot meet its burden to demonstrate that this Court maintains specific jurisdiction over LA Foundation because LA Foundation has insufficient contacts with the State of Vermont. Similarly, LYB Foundation cannot establish that this Court maintains specific jurisdiction over LA Foundation. LYB Foundation merely alleges that LA Foundation “provides services and operates websites under or bearing marks that are at least substantially similar, if not identical to, the LOVE YOUR BRAIN trademark” and uses “LOVE YOUR BRAIN NOW on its promotional materials and on the internet.” Complaint ¶¶ 27, 38. Such broad allegations, however, fail to show that LA Foundation has “purposefully avail[ed] itself of the privilege of conducting activities within [Vermont], thus invoking the benefits and protections of its laws.” Tom and Sally’s Handmade Chocolates, Inc. v. Gasworks, Inc., 977 F.Supp. 297, 300 (D. Vt. 1997) (J. Sessions) (citing Burger King, 471 U.S. at 475). Without additional facts, of which there are none, LA Foundation should not reasonably anticipate being haled into court here. Anichini, 2005 WL 2464191 at *3. While this Court regularly exercises jurisdiction over foreign entities, such cases involve deliberate conduct within the State of Vermont not present here. For example, in Tom and Sally’s, this Court exercised jurisdiction over a Florida company that allegedly infringed trademarks of plaintiff, a Vermont company. This Court found that the defendant’s contacts – four mail-order PAUL FRANK + COLLINS P.C. ATTORNEYS AT LAW BURLINGTON, VERMONT PLATTSBURGH, NEW YORK CAMBRIDGE, MASSACHUSETTS 8 Case 2:16-cv-00221-wks Document 6 Filed 10/06/16 Page 8 of 15 catalogs distributed in Vermont, two wholesale customers in Vermont, and $982.57 of sales in Vermont – were facts that “establish sufficient acts by which the defendant purposefully availed itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protection of its laws.” (internal quotations omitted) 977 F.Supp. 297, 301. In other cases, this Court exercised jurisdiction over non-Vermont residents on causes of action that address copyright infringement, but again, those cases involved deliberate conduct within the State of Vermont not present here. In Sollinger v. Nasco Intern., Inc., this Court exercised jurisdiction over a Wisconsin company on allegations of copyright infringement by plaintiff, a Vermont resident. 655 F.Supp. 1385 (D. Vt. 1987). This Court found that the defendant expected “to do business with Vermont residents and Vermont thus has an interest in adjudicating disputes which concern [its] business” because the defendant sent catalogs to Vermont and entered into a transaction with a Vermont resident. Sollinger, 655 F.Supp. at 1388. In Real Good Toys¸ this Court exercised specific jurisdiction over a Chinese corporation and its employee (a resident of Minnesota) that allegedly infringed copyrights and trade dress of the plaintiff, a Vermont corporation. Real Good Toys, 163 F.Supp.2d at 422. The Court held that the defendants satisfied the “minimum contacts” test for specific jurisdiction based on allegations that Defendant had engaged national retailers to market the alleged infringing product and completed 88 sales in Vermont. The Court determined that this conduct showed “the state has been the focal point both of the [alleged tort] and of the harm suffered, the defendants knew the plaintiff would suffer the brunt of the harm there, and they expressly aimed their actions at the state.” Real Good Toys, 163 F.Supp.2d at 424. In Anichini, this Court exercised specific jurisdiction over a former employee (a resident of Virginia) of the plaintiff, a Vermont corporation, on allegations of copyright infringement. 2005 PAUL FRANK + COLLINS P.C. ATTORNEYS AT LAW BURLINGTON, VERMONT PLATTSBURGH, NEW YORK CAMBRIDGE, MASSACHUSETTS 9 Case 2:16-cv-00221-wks Document 6 Filed 10/06/16 Page 9 of 15 WL 2464191 at *1. The Court found that the defendant should have reasonably anticipated being haled into court in Vermont based on provisions of, and the “interdependent relationship” created by, the parties’ employment agreement. Id. at *3. The Court held that specific jurisdiction was proper based on the allegations of conduct by the defendant “because the brunt of the injury resulting from the alleged copyright infringement was sustained by Anichini in Vermont.” Id. at *4. Perhaps most importantly, this Court recognizes that “[a] defendant may not be haled into court simply because the defendant owns or operates a website that is accessible in the forum state, even if that site is ‘interactive.’” Revision Military, Inc. v. Balboa Mfg. Co., No. 5:11-cv-149, 2011 WL 3875624 at *7 (D. Vt. Aug. 31, 2011)(vacated on other grounds in 700 F.3d 524 (Fed. Cir. 2012))(citing Illinois v. Hemi Group, LLC, 622 F.3d 754, 760 (7th Cir. 2010) (“the operation of a commercially interactive website accessible in the forum state is insufficient to support specific jurisdiction” and “the mere operation of a commercially interactive website should not subject the operation to jurisdiction anywhere in the world”). In its analysis, this Court required “something more” in Vermont to reflect the purposeful direction of business activities towards this forum. Id. at *9; see also, Hyperkinetics Corp. v. Flotec, Inc., No. 1:03-cv-33, 2003 WL 25278086 *1-6 (D. Vt. Sept. 25, 2003) (no jurisdiction in light of a “passive website that merely makes information about [defendant’s] products and how to purchase them available to the general public…. [Defendant did] not use its website to enter into contracts with businesses or individuals in Vermont.”). The Court applied this requirement in Revision, a patent infringement dispute, to exercise specific jurisdiction over a California company because of the combination of (1) offers for sale of infringing product on PAUL FRANK + COLLINS P.C. ATTORNEYS AT LAW BURLINGTON, VERMONT PLATTSBURGH, NEW YORK CAMBRIDGE, MASSACHUSETTS 10 Case 2:16-cv-00221-wks Document 6 Filed 10/06/16 Page 10 of 15 the defendant’s website; and (2) several activities that reflected the defendant’s purposeful direction of business activities towards the forum state. Revision, 2011 WL 3875624 at *7.1 This follows Second Circuit law. Id. at *8. For example, in Chloe v. Queen Bee of Beverly Hills, LLC, a trademark case, the Second Circuit reversed the lower court. It found that the lower court’s exercise of jurisdiction was appropriate, because sales of handbags on the defendant’s website demonstrated “a larger business plan purposefully directed at New York consumers.” 616 F.3d 158, 167 (2nd Cir. 2010); compare with, Toys “R” Us, Inc. v. Step Two, S.A., 318 F.3d 446 (3rd Cir. 2003) (no jurisdiction where the defendant’s website did not appear to be designed or intended to reach customers in New Jersey, with only two recognized sales to U.S. residents). The facts here are distinguishable from Tom and Sally’s, Sollinger, Real Good Toys, Anichini, Chloe, and Revision. Unlike the plaintiff in these cases, LYB Foundation fails to allege facts to show that the “focal point” of this dispute rests in Vermont. In fact, all alleged facts show that LA Foundation limits its activities to the State of California. Complaint ¶¶ 5-7, 11, and 13. Nor does the Complaint allege facts that LA Foundation “aimed” any actions at Vermont. This is because LA Foundation has not engaged in such activities. LA Foundation has neither administered the LYBN Initiative in Vermont, nor has the tour bus or Big Brain exhibit entered Vermont. Pietsch-Escueta Aff. ¶ 26. LA Foundation has never directed any efforts to solicit donations from within Vermont - and it has no known donors and received no known monetary donations from within Vermont. Id. at ¶¶ 37, 38. LA Foundation’s only actions reasonably directed 1 This Court noted that “[t]hese activities include Balboa’s (1) direct website and non-website sale and shipment of approximately ninety-nine eyewear products to Vermont residents over an approximate three year period; (2) website links that lead to twenty-seven dealers who offer Balboa's products for sale in Vermont; (3) sales of Balboa eyewear products through Vermont dealers in undetermined amounts; and (4) authorization to Vermont dealers to ‘special order’ for sale in Vermont any Balboa product, including the allegedly infringing Bravo goggles.” Revision, 2011 WL 3875624 at *9. PAUL FRANK + COLLINS P.C. ATTORNEYS AT LAW BURLINGTON, VERMONT PLATTSBURGH, NEW YORK CAMBRIDGE, MASSACHUSETTS 11 Case 2:16-cv-00221-wks Document 6 Filed 10/06/16 Page 11 of 15 at Vermont occurred by way of contact directly with LYB Foundation in August 2014, by its submission via LYB Foundation’s website that informed LYB Foundation of the LYBN Initiative. Id. at ¶ 38. Accordingly, the facts here remain most analogous to the facts in Toys “R” Us, Inc. Like the defendant in Toys “R” Us, Inc., LA Foundation’s only reasonable contacts with the State of Vermont arise from operating its websites, which are not intended to solicit interest or contacts from the State of Vermont. For example, the websites clearly identify the Epilepsy Foundation of Greater Los Angeles (and its END EPILEPSY® trademark) and describe events and activities – including the LYBN Initiative and the Big Brain exhibit – that occur in the greater Los Angeles area, the State of California, and areas well outside the State of Vermont. Complaint ¶ 20; Pietsch-Escueta Aff. ¶¶ 11, 25, and 26. C. LYB Foundation cannot demonstrate that this Court’s exercise of jurisdiction over LA Foundation would be reasonable. Even if LYB Foundation could show that “minimum contacts” exist to establish specific or general jurisdiction over LA Foundation, the Court must still avoid exercising jurisdiction, because doing so “offend[s] the ‘traditional notions of fair play and substantial justice.” Tom and Sally’s Handmade Chocolates, Inc., 977 F. Supp. at 300. The Supreme Court has identified five factors a court must evaluate to determine whether an exercise of jurisdiction is reasonable: (1) the burden that the exercise of jurisdiction will impose on the defendant; (2) the interests of the forum state in adjudicating the case; (3) the plaintiff’s interest in obtaining convenient and effective relief; (4) the interstate judicial system’s interest in obtaining the most efficient resolution of the controversy; and (5) the shared interest of the states in furthering substantive social policies. Revision Military, Inc., 2011 WL 3875624 at *10 (citing Asahi Metal Indus. Co., Ltd. V. Superior Court, 480 U.S. 102, 113-14 (1987). PAUL FRANK + COLLINS P.C. ATTORNEYS AT LAW BURLINGTON, VERMONT PLATTSBURGH, NEW YORK CAMBRIDGE, MASSACHUSETTS 12 Case 2:16-cv-00221-wks Document 6 Filed 10/06/16 Page 12 of 15 Reviewing these factors confirms that the Court should not exercise jurisdiction and require LA Foundation to defend this action in Vermont. First, the burden on LA Foundation to litigate in this forum would be significant, as it is based in California. All of the key witnesses and evidence in this case are located in California. Pietsch-Escueta Aff. ¶¶ 6 and 7. Second, it is reasonable to conclude that Vermont’s interest in this dispute is, at most, on par with that of California. No outward considerations weigh in favor of retaining jurisdiction in Vermont. The second factor gives way to the third and fourth factors, both of which weigh in favor of the Court not exercising jurisdiction. Taking LA Foundation’s websites out of consideration, per the analysis above, it follows that convenient, effective, and efficient resolution of this trademark and unfair completion dispute should take place in California. It is in California, and not Vermont, where consumer confusion and name recognition is at issue. It is in California where LA Foundation consistently operates and administers its LYBN Initiative under the allegedly infringing LOVE YOUR BRAIN NOW name, and as such, the only state in which LA Foundation’s use collides with that of the LYB Foundation.2 Finally, this Court has no substantive social policy or interest in determining issues of trademark infringement that, even according to LYB Foundation, will likely only occur in California. Accordingly, the factors of the “reasonableness test” weigh heavily against a finding of personal jurisdiction over LA Foundation in Vermont. Conclusion Plaintiff LYB Foundation cannot demonstrate that LA Foundation maintains the contacts with the State of Vermont sufficient for this Court to exercise jurisdiction over LA Foundation. LA 2 LYB Foundation makes clear and repeated reference to its own national use of its LOVE YOUR BRAIN trademark outside of the proposed forum of Vermont and particularly identifies its use in California. Complaint ¶¶ 5-7, 13. PAUL FRANK + COLLINS P.C. ATTORNEYS AT LAW BURLINGTON, VERMONT PLATTSBURGH, NEW YORK CAMBRIDGE, MASSACHUSETTS 13 Case 2:16-cv-00221-wks Document 6 Filed 10/06/16 Page 13 of 15 Foundation focuses all of its activities in the State of California. As a result, any allege confusion with LYB Foundation’s marks could only occur in California. Accordingly, any exercise of jurisdiction over LA Foundation in Vermont would be unreasonable. WHEREFORE, Defendant respectfully requests that this suit be dismissed in its entirety for lack of jurisdiction. DATED at Burlington, Vermont this 6th day of October, 2016. EPILEPSY FOUNDATION OF GREATER LOS ANGELES By: PAUL FRANK + COLLINS P.C. By: /s/ Michael J. Wasco Michael J. Wasco, Esq. /s/ David Pocius David Pocius, Esq. PAUL FRANK + COLLINS P.C. One Church Street PO Box 1307 Burlington, VT 05402 Tel. 802.658.2311 Fax. 802.658.0042 mwasco@pfclaw.com dpocius@pfclaw.com PAUL FRANK + COLLINS P.C. ATTORNEYS AT LAW BURLINGTON, VERMONT PLATTSBURGH, NEW YORK CAMBRIDGE, MASSACHUSETTS 14 Case 2:16-cv-00221-wks Document 6 Filed 10/06/16 Page 14 of 15 CERTIFICATE OF SERVICE I hereby certify that on this 6th day of October, 2016, I electronically filed Defendant’s Motion to Dismiss and supporting Affidavit of Susan Pietsch-Escueta with the Clerk of the Court using the CM/ECF system. The CM/ECF system will provide such filing(s) via Notice of Electronic Filing (NEF) to the following NEF parties: Geoffrey J. Vitt, Esq. Vitt & Associates 8 Beaver Meadow Road Norwich, VT 05055 gvitt@vittandassociates.com Cynthia E. Kernick, Esq. Reed Smith LLP 225 Fifth Avenue Pittsburgh, PA 15222 ckernick@reedsmith.com DATED: October 6, 2016 EPILESPY FOUNDATION OF GREATER LOS ANGELES BY: PAUL FRANK + COLLINS P.C. BY: /s/ David M. Pocius David M. Pocius, Esq. BY: /s Michael J. Wasco, Esq. Michael J. Wasco, Esq. P.O. BOX 1307 Burlington, VT 05402-1307 802.658.2311 dpocius@pfclaw.com mwasco@pfclaw.com 6855753_13:09126-00019 PAUL FRANK + COLLINS P.C. ATTORNEYS AT LAW BURLINGTON, VERMONT PLATTSBURGH, NEW YORK CAMBRIDGE, MASSACHUSETTS 15 Case 2:16-cv-00221-wks Document 6 Filed 10/06/16 Page 15 of 15 PAUL FRANK + COLLINS P.C. ATTORNEYS AT LAW BURLINGTON, VERMONT PLATTSBURGH, NEW YORK CAMBRIDGE, MASSACHUSETTS UNITED STATES DISTRICT COURT FOR THE STATE OF VERMONT LOVE YOUR BRAIN FOUNDATION, INC., ) ) Plaintiff ) ) Civil Action No. 2:16-cv-221 v. ) ) EPILEPSY FOUNDATION OF GREATER ) LOS ANGELES, ) ) Defendant. ) AFFIDAVIT OF SUSAN PIETSCH-ESCUETA 1. My name is Susan Pietsch-Escueta. I am the Executive Director for the Epilepsy Foundation of Greater Los Angeles (“LA Foundation”), a non-profit 501(3)(c) charitable organization incorporated in the State of California. 2. I have been employed as the Executive Director since 1996. 3. As the Executive Director, I am familiar with all of LA Foundation’s operations and the geographic scope of its work. 4. I base this affidavit and its contents on my personal knowledge, knowledge gained from other LA Foundation employees, and records of LA Foundation. To the best of my knowledge, it is accurate and complete. 5. LA Foundation has one office, currently located at 5777 W. Century Blvd., Suite 820, Los Angeles, CA 90045. 6. LA Foundation currently employs 12 people on both a part-time and full-time basis. All employees work from the Los Angeles office. 7. LA Foundation has a Board of Directors and a Board of Professional Advisors. Members of each are primarily residents of Los Angeles County and surrounding counties in Southern California. Case 2:16-cv-00221-wks Document 6-1 Filed 10/06/16 Page 1 of 6 PAUL FRANK + COLLINS P.C. ATTORNEYS AT LAW BURLINGTON, VERMONT PLATTSBURGH, NEW YORK CAMBRIDGE, MASSACHUSETTS 8. LA Foundation offers a range of services and programs to help, support, advocate for, and empower those affected by epilepsy and their caregivers across the counties of Los Angeles, Orange, San Bernardino, and Ventura and throughout the State of California through its outreach and statewide advocacy. LA Foundation also supports research to accelerate cures for the epilepsies, supports the training and work of new pediatric epilepsy specialists, and also seeks to educate the general public to better understand epilepsy/seizure disorders and provide seizure first aid. 9. LA Foundation is an affiliate of the Epilepsy Foundation, a separate, independent organization located in Maryland. 10. LA Foundation does not pay dues to the national office of the Epilepsy Foundation. Instead, LA Foundation elects to allocate a portion of funds to support research grants. LA Foundation gives these funds to the national office of the Epilepsy Foundation. 11. LA Foundation raises funds through donors and charity events. It conducts charity events primarily in Los Angeles County and, occasionally, in counties around Los Angeles. LA Foundation has not participated in or been affiliated with any event within Vermont, actively fundraised within Vermont, and/or received donations from within Vermont. 12. LA Foundation owns the domain names www.endepilepsy.org, www.endepilepsy.com, www.endepilepsy.net, www.end-epilepsy.org, www.loveyourbrainnow.com, www.loveyourbrainnow.org, and www.loveyourbrain.org. 13. LA Foundation registered the domain names www.loveyourbrainnow.com and www.loveyourbrainnow.org around or before July 2012. 14. LA Foundation operates websites with pages that can be accessed via the Internet. Case 2:16-cv-00221-wks Document 6-1 Filed 10/06/16 Page 2 of 6 PAUL FRANK + COLLINS P.C. ATTORNEYS AT LAW BURLINGTON, VERMONT PLATTSBURGH, NEW YORK CAMBRIDGE, MASSACHUSETTS 15. LA Foundation operates a primary website with pages that can be accessed via the Internet at the domain names www.endepilepsy.org, www.end-epilepsy.org, and www.loveyourbrain.org. The primary website includes information about LA Foundation, its mission, services, call to action, and organization. 16. The primary website includes pages that identify the LOVE YOUR BRAIN NOW education initiative (“LYBN Initiative”) and “Big Brain” exhibit. 17. The LYBN Initiative provides education about the brain. The Big Brain exhibit includes a large, inflatable “Big Brain” that can be brought on location. 18. The primary website solicits requests from schools and organizations for LA Foundation to bring the Big Brain exhibit and deliver the LYBN education at their location. 19. LA Foundation operates a secondary website with pages that can be accessed via the Internet at the domain names www.loveyourbrainnow.com and www.loveyourbrainnow.org. The secondary website provides information about the LYBN Initiative and the Big Brain exhibit. 20. Each of the primary and secondary websites identifies LA Foundation and its trademarks, EPILEPSY FOUNDATION GREATER LOS ANGELESTM and END EPILEPSY®. 21. Each of the primary website and the secondary website allow individuals to make donations to LA Foundation. 22. As early as July 2012, LA Foundation began to promote the LYBN Initiative. LA Foundation emailed and mailed appeals to potential donors and corporate sponsors. LA Foundation also leveraged Convio’s (now Blackbaud Inc.) Internet marketing platform at that time to solicit participants and donors for the “official” launch of the LYBN Initiative in October 2012. Case 2:16-cv-00221-wks Document 6-1 Filed 10/06/16 Page 3 of 6 PAUL FRANK + COLLINS P.C. ATTORNEYS AT LAW BURLINGTON, VERMONT PLATTSBURGH, NEW YORK CAMBRIDGE, MASSACHUSETTS 23. Between July 2012, and October 2012, the LA Foundation secured national corporate sponsors for the LYBN Initiative. None of these national corporate sponsors are headquartered in Vermont. 24. On October 9, 2012, LA Foundation issued a press release via PrWeb.com to further promote the LYBN Initiative. The press release identified national corporate sponsors for the LYBN Initiative. 25. On October 28, 2012, LA Foundation launched the LYBN Initiative at its Walk to End Epilepsy event at the Rose Bowl in Pasadena in the State of California. The launch included a wrapped and branded tour bus and the Big Brain exhibit, both brought to the event at the Rose Bowl. The LA Foundation ceased use of the tour bus on or around January 2013. 26. From October 28, 2012, to August 2014, LA Foundation delivered the LYBN Initiative at approximately 34 venues in the State of California. As of the date of this Affidavit, LA Foundation has delivered the LYBN Initiative at approximately 48 venues in the State of California and at no venues outside of the State of California. 27. In or around August 2014, LA Foundation became aware of the Love Your Brain Foundation, Inc. (“LYB Foundation”), and contacted LYB Foundation via an electronic submission form accessed on LYB Foundation’s website found at the domain name www.loveyourbrain.com. On the electronic submission form, LA Foundation explained the LYBN Initiative. 28. The Foundation received an email from LYB Foundation dated August 28, 2014, and addressed to Nathan Jones (an employee of the LA Foundation). Exhibit 1. The email was sent from Ms. Marianna Sackler. Id. Ms. Sackler is identified in the email as the Director of Development and Charitable Planning at LYB Foundation. Id. Case 2:16-cv-00221-wks Document 6-1 Filed 10/06/16 Page 4 of 6 PAUL FRANK + COLLINS P.C. ATTORNEYS AT LAW BURLINGTON, VERMONT PLATTSBURGH, NEW YORK CAMBRIDGE, MASSACHUSETTS 29. From around August 28, 2014 to July 2015, LA Foundation had no other contact with LYB Foundation. 30. On or around May 29, 2015, LA Foundation purchased the domain name www.loveyourbrain.org on public auction at GoDaddy.com. LA Foundation directs traffic through this domain name to pages of its principal website (at www.endepilepsy.org). These pages identify the LYBN Initiative and show and describe the Big Brain exhibit. 31. On or around July 2015, LA Foundation was contacted by LYB Foundation about the domain name www.loveyourbrain.org and, subsequently, received a demand letter from LYB Foundation’s counsel. 32. Outside of contact with LYB Foundation, LA Foundation has no other contact with the State of Vermont. 33. LA Foundation has neither an office nor is it registered to do business in the State of Vermont. 34. LA Foundation has no employees, board members, advisors, or volunteers residing in or working remotely from the State of Vermont. 35. LA Foundation conducts no business and holds no meetings within the State of Vermont. 36. LA Foundation does not provide or render any services or administer any programs, including the LYBN Initiative, in the State of Vermont or in any adjacent or neighboring states. 37. LA Foundation does not solicit funds within the State of Vermont. 38. Since 2012, the LA Foundation has no known donors from within the State of Vermont and received no known monetary donations from within the State of Vermont. Case 2:16-cv-00221-wks Document 6-1 Filed 10/06/16 Page 5 of 6 Case 2:16-cv-00221-wks Document 6-1 Filed 10/06/16 Page 6 of 6