Fort Wayne, Indiana – Attorneys for Plaintiff, Vera Bradley Designs, Inc., of Roanoke, Indiana filed suit in the Northern District of Indiana alleging that Defendant, Austin Devin 2 Denny Boys, LLC, infringed multiple trademarks of the Plaintiff. Overhauser Law Offices, LLC represented the Defendant Austin Devin 2 Denny Boys LLC and Darlene Nicholas, who filed a Motion to Dismiss for improper venue and prevailed on July 30, 2018.
Plaintiff currently holds more than 900 copyright registrations, 35 federal trademark registrations, and has 17 pending federal trademark applications. The Plaintiff alleged in its complaint that the Defendants operate eBay accounts that they use to sell counterfeit Vera Bradley items and these acts infringe Vera Bradley’s trademarks and copyrights. All Defendants were sent cease and desist letters on behalf of the Plaintiff via counsel on July 26, 2017. On August 1, 2017, all Defendants party to the Motion to Dismiss responded through counsel and agreed to stop selling the counterfeit items, however, the Plaintiff alleged they did not cease their activities and filed suit.
The Defendants moved to dismiss Vera Bradley’s Complaint and claimed that because a substantial part of the events leading to the Plaintiff’s claims did not occur in the Northern District of Indiana, venue was improper. Further, Defendant Nicholas, claimed that the Court did not have personal jurisdiction over her. The Plaintiff countered that there were five specific instances in which the counterfeit merchandise was purchased by its employees within the Northern District of Indiana from the Defendants. They also claimed that venue was proper because they suffered harm in the District. As to Defendant Nicholas, the Court held that the Plaintiff did not give any persuasive argument as to how the Northern or Southern District Courts of Indiana could have general or specific personal jurisdiction over her in this case as she resides in Florida. Therefore, the Court was unable to transfer the case to the Southern District of Indiana, which may have been a proper venue for the other Defendants involved.
The Court held that in order for the Plaintiff to have had proper venue using substantial sales in the District, at minimum they would have had to allege some non-nominal amount of sales, which they did not do. Further, the Plaintiff did not show any evidence that the Defendants took an active step in soliciting business or advertising within the District. Due to these reasons and the lack of personal jurisdiction over Defendant Nicholas, the Court dismissed all claims against the Defendants party to the Motion to Dismiss.
Practice Tip: Venue is proper in “a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of the property that is the subject of the action is situated.” 28 U.S.C. § 1391(b)(2). Under this section, more than one district may be the proper venue, so long as a substantial part of the omissions or key events occurred in each district.
The case was filed in the Northern District of Indiana to Chief Judge Theresa Lazar Springmann and Magistrate Judge Susan L. Collins and assigned Case 1:18-cv-00070-TLS-SLC.