Illuminate Labs, Inc. v. Choq, LLC et al
| Matthew Dorsey and John Doe |
| Illuminate Labs, Inc. |
| Choq, LLC |
| 1:2024cv00083 |
| January 23, 2024 |
| US District Court for the Western District of Texas |
| Docket - Austin |
| Contract: Other |
| 15 U.S.C. § 1125 Trademark Infringement (Lanham Act) |
| Both |
Docket Report
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This docket was last retrieved on March 19, 2024. A more recent docket listing may be available from PACER.
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| Reset Deadlines: Illuminate Labs, Inc. answer due 3/28/2024. (klw) |
Text Order GRANTING #31 Unopposed Motion for Extension of Time to File Response/Reply entered by Judge Robert Pitman. IT IS ORDERED that Plaintiff/Counterclaimant Illuminate Labs Inc. shall answer or otherwise respond to the Defendants' Counterclaims, (Dkt. 28), on or before March 28, 2024. (This is a text-only entry generated by the court. There is no document associated with this entry.) (sslc)
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Filing 33
SCHEDULING ORDER: Jury Trial set for 7/14/2025 09:30 AM before Judge Docket II - Austin, ADR Report Deadline due by 7/15/2024, Amended Pleadings due by 8/19/2024, Discovery due by 2/10/2025, Joinder of Parties due by 8/19/2024, Motions due by 3/10/2025,. Signed by Judge Robert Pitman. (klw)
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| Filing 32 Minute Entry for proceedings held before Judge Dustin M. Howell: Initial Pretrial Conference held on 3/18/2024 (Minute entry documents are not available electronically.). (Court Reporter AT&T Conference Line.)(klw) |
| Filing 31 MOTION for Extension of Time to File Response/Reply as to #28 Amended Answer to Complaint, Counterclaim by Illuminate Labs, Inc.. (Cornell, Timothy) |
| Filing 30 NOTICE of Non-Consent to Magistrate by Illuminate Labs, Inc. (Melton, John) |
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Filing 29
ORDER GRANTING #25 Motion for Timothy Cornell to Appear Pro Hac Vice for Illuminate Labs. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. Registration is managed by the PACER Service Center Signed by Judge Robert Pitman. (klw)
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| Filing 28 AMENDED ANSWER to #4 Amended Complaint and Original, COUNTERCLAIM against Illuminate Labs, Inc. by Choq, LLC. (Attachments: #1 Exhibit A, #2 Exhibit B)(Vanderhider, David) |
| Filing 27 NOTICE of Attorney Appearance by John F. Melton on behalf of Illuminate Labs, Inc.. Attorney John F. Melton added to party Illuminate Labs, Inc.(pty:pla) (Melton, John) |
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Filing 26
ORDER Setting Initial Pretrial Conference for 3/18/2024 03:30 PM before Judge Dustin M. Howell. Signed by Judge Dustin M. Howell. (klw)
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| Filing 24 Proposed Scheduling Order AGREED SCHEDULING ORDER by Choq, LLC, Matthew Dorsey. (Mosqueda, Priscila) |
| Filing 25 MOTION for Timothy Cornell to Appear Pro Hac Vice by Illuminate Labs, Inc. (klw) |
| Filing 23 Defendant Matthew Dorsey's Original ANSWER to #4 Amended Complaint with Jury Demand . Attorney David A. Vanderhider added to party Matthew Dorsey(pty:dft) by Matthew Dorsey.(Vanderhider, David) |
| Filing 22 Defendant CHOQ, LLC's Original ANSWER to #4 Amended Complaint with Jury Demand . Attorney David A. Vanderhider added to party Choq, LLC(pty:dft) by Choq, LLC.(Vanderhider, David) |
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Filing 21
Order for Scheduling Recommendations/Proposed Scheduling Order. Scheduling recommendations/proposed scheduling order due to the Court within sixty (60) days after the appearance of any defendant.Joint Proposed Scheduling Order due by 2/15/2024. Signed by Judge Dustin M. Howell. (jv2)
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| Filing 20 Case Transfer Letter to all counsel of record. (kp) |
| Filing 19 Pro Hac Vice Letter to Peter L. Bosse. (kp) |
| Filing 18 Pro Hac Vice Letter to Patrick J. Dolan and Timothy Cornell. (kp) |
| Filing 17 Case electronically transferred in from District of Massachusetts-Springfield Division; Case Number 3:23-cv-30088. |
| If ordered by the court, all referrals and consents in this case will be assigned to Magistrate Judge Dustin Howell. (kp) |
| DEMAND for Trial by Jury by Illuminate Labs, Inc.. (kp) |
| Case assigned to Judge Docket II - Austin. CM WILL NOW REFLECT THE JUDGE INITIALS AS PART OF THE CASE NUMBER. PLEASE APPEND THESE JUDGE INITIALS TO THE CASE NUMBER ON EACH DOCUMENT THAT YOU FILE IN THIS CASE. (kp) |
| Filing 16 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered GRANTING in part and DENYING in part #5 Defendants' Motion to Dismiss for Lack of Personal Jurisdiction or Transfer of Venue to the United States District Court for the Western District of Texas. For the following reasons, the court grants Defendants' Motion to Transfer Venue to the Western District of Texas but denies Defendants' request to dismiss the action. Defendants request dismissal for lack of personal jurisdiction or alternatively transfer to the Western District of Texas. While Defendants cite 28 U.S.C. 1404(a) to justify the transfer, the correct provision is 28 U.S.C. 1631. See Fed. Home Loan Bank of Bos. v. Moody's Corp., 821 F.3d 102, 114-19 (1st Cir. 2016), abrogated on other grounds by Lightfoot v. Cendant Mortg. Corp., 580 U.S. 82 (2017) (noting every Circuit to address whether Section 1631 applies to personal jurisdiction has answered in the affirmative). Section 1631 provides: "[w]henever a civil action is filed in a court...and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court...in which the action or appeal could have been brought at the time it was filed or notice...." In enacting Section 1631, "Congress intended to create a presumption--albeit a rebuttable one--in favor of transfer." Britell v. United States, 318 F.3d 70, 73 (1st Cir. 2003); see also Lewis v. Hill, -- F.Supp.3d --, No. CV 19-12500-DPW, 2023 WL 4706575, at *16 (D. Mass. July 24, 2023); Nardi v. Breeze-E., LLC, No. CV 19-11306-GAO, 2022 WL 20403423, at *2 (D. Mass. Aug. 26, 2022); TargetSmart Holdings, LLC v. GHP Advisors, LLC, 366 F. Supp. 3d 195, 214 (D. Mass. 2019) ("The presumption may be rebutted if the record, taken as a whole, indicates that 'the administration of justice would be better served by dismissal.") (internal citation omitted). The court determines that it cannot exercise personal jurisdiction over Defendants. Plaintiff's allegations and the record before the court are sufficient to justify invocation of the Massachusetts long-arm statute, Mass. Gen. L. ch. 223A, 3, because the tortious injury was completed in the Commonwealth. Keeton v. Hustler Mag., Inc., 465 U.S. 770, 777 (1984) ("The tort of libel is generally held to occur wherever the offending material is circulated."). By noting that at least 36 Massachusetts ISP addresses viewed the allegedly defamatory blog, Defendants admit as much. (Dkt. No. 5-1, 15). These Massachusetts views are also sufficient to establish the first prong -- relatedness -- of the constitutional jurisdiction inquiry. See Brown v. Dash, 2020 WL 6806433, at *8 (D. Mass. Nov. 18, 2020); accord Ching-Yi Lin v. TipRanks, Ltd., 2019 WL 6211246, at *4 (D. Mass. Nov. 21, 2019); Mullane v. Breaking Media, Inc., 2019 WL 5588961, at *9 (D. Mass. Aug. 13, 2019). Plaintiff flounders, however, on the second prong -- purposeful availment. Purposeful availment requires more than "[t]he mere existence of a website that is visible in a forum... Given the 'omnipresence' of Internet websites, such a rule would 'eviscerate' the limits on personal jurisdiction over out-of-state defendants." Brown, 2020 WL 6806433, at *11 (internal quotation and citations omitted). Something more is required, see A Corp. v. All Am. Plumbing, Inc., 812 F.3d 54, 60 (1st Cir. 2016); and in the context of internet defamation, something more requires "some evidence that defendants' online actions aimed at, targeted, specifically communicated with, solicited business in, or (at the very least) mentioned the forum state and its residents," Brown, 2020 WL 6806433, at *12. Here, Plaintiff fails to demonstrate the "something more" necessary for this court to exercise jurisdiction. Of course, the offending blog was viewed in the Commonwealth, but it could have been freely viewed in any of the fifty states. Defendants assert that only roughly two percent of their sales occur in the Commonwealth. (Dkt. No. 5-1, 12). Standing alone, this is not enough to meet the constitutional threshold. See, e.g., Gillis v. PBV Inc., No. CV 22-11733-NMG, 2023 WL 8935233, at *7 (D. Mass. Nov. 27, 2023) (explaining that a "stream of commerce" theory of purposeful availment requires "plus factors, including designing the product for the market in the forum State, advertising in the forum State, establishing channels for providing regular advice to customers in the forum State, or marketing the product through a distributor who has agreed to serve as the sales agent in the forum State."(internal quotation omitted)). The sales are not the result of a campaign specifically targeted at the Commonwealth. Moreover, Defendants' blog was not aimed at specifically influencing Massachusetts consumers, it was not directly targeted at Massachusetts consumers, and it was not specifically communicated to Massachusetts consumers. The record does not indicate the blog relied on Massachusetts sources or even that the post specifically references the Commonwealth. Its mere presence on the internet is insufficient to establish jurisdiction. Plaintiff points to Plixer Int'l, Inc. v. Scrutinizer GmbH, 905 F.3d 1 (1st Cir. 2018), but Plixer does not change the calculus. The Plixer court was examining whether the defendant had sufficient ties with the entire United States to justify jurisdiction, a form of analysis under the Fifth Amendment, and a significantly broader question than the one before this court. See Plixer, 905 F.3d at 7-8. Plaintiff, however, is entitled to the rebuttable presumption against dismissal. Generally, the presumption may only be rebutted where "an action or appeal is fanciful or frivolous, [because] it is in the interest of justice to dismiss it rather than to keep it on life support (with the inevitable result that the transferee court will pull the plug)." Britell, 318 F.3d at 75. While leaving true assessment of the merits of this claim to the Western District of Texas, the court concludes the action is not fanciful or frivolous. Similarly, this case contains no indicia sufficient to demonstrate that Plaintiff filed in the Commonwealth to benefit from gamesmanship; this is not a forum shopping case. Plaintiff filed here because it is a Massachusetts corporation, and while the court disagrees with Plaintiff's jurisdictional argument, it cannot say that it was frivolous or unreasonable based on the current state of the law with respect to internet defamation claims. Consequently, transfer to the Western District of Texas to cure this court's lack of jurisdiction is the proper prophylactic remedy. (Figueroa, Tamara) [Transferred from Massachusetts on 1/24/2024.] |
| Filing 15 NOTICE of Withdrawal of Appearance by Tanya T. Austin (Austin, Tanya) [Transferred from Massachusetts on 1/24/2024.] |
| Filing 14 NOTICE of Appearance by Peter L. Bosse on behalf of Choq, LLC, Matthew Dorsey (Bosse, Peter) [Transferred from Massachusetts on 1/24/2024.] |
| Filing 13 ELECTRONIC NOTICE Canceling Hearing. Motion Hearing previously scheduled for 12/18/2023 at 1:30 PM before District Judge Timothy S. Hillman is canceled. The case has been reassigned. Please consult the new judge's session for scheduling information. (Burgos, Sandra) Modified on 12/15/2023 (Burgos, Sandra). [Transferred from Massachusetts on 1/24/2024.] |
| Filing 12 ELECTRONIC NOTICE of Reassignment. Judge Mark G. Mastroianni added. Case redrawn according to Local Rule 40.1(i). District Judge Timothy S. Hillman no longer assigned to case. (Burgos, Sandra) [Transferred from Massachusetts on 1/24/2024.] |
| Filing 11 ELECTRONIC NOTICE Rescheduling Hearing on #5 MOTION to Dismiss for Lack of Jurisdiction . Motion Hearing RESCHEDULED to 12/18/2023 at 1:30 PM in Courtroom 4 - Worcester (Remote only) before District Judge Timothy S. Hillman. (NOTE: CHANGE IS TO TIME ONLY. Previously set for 2:00PM. Updated Zoom invitation to issue.) (Alba, Robert) [Transferred from Massachusetts on 1/24/2024.] |
| Filing 10 ELECTRONIC NOTICE Setting Hearing on #5 MOTION to Dismiss for Lack of Jurisdiction by Choq, LLC, Matthew Dorsey. This hearing will be conducted by video conference. Counsel of record will receive a video conference invite at the email registered in CM/ECF. If you have technical or compatibility issues with the technology, please notify the courtroom deputy of the session as soon as possible.Audio access to the hearing may be available to the media and public. Please check the #Court schedule. In order to gain access to the hearing, you must sign up at the following address: #https://forms.mad.uscourts.gov/courtlist.html.For questions regarding access to hearings, you may refer to the general orders and public notices of the Court available on #www.mad.uscourts.gov or contact media@mad.uscourts.gov. Motion Hearing set for 12/18/2023 at 2:00 PM in Courtroom 4 - Worcester (Remote only) before District Judge Timothy S. Hillman. (Alba, Robert) [Transferred from Massachusetts on 1/24/2024.] |
| Filing 9 NOTICE of Appearance by Patrick J. Dolan on behalf of Illuminate Labs, Inc. (Dolan, Patrick) [Transferred from Massachusetts on 1/24/2024.] |
| Filing 8 MEMORANDUM in Opposition re #5 MOTION to Dismiss for Lack of Jurisdiction filed by Illuminate Labs, Inc.. (Attachments: #1 Affidavit affidavit of Patrick J. Dolan)(Dolan, Patrick) [Transferred from Massachusetts on 1/24/2024.] |
| Filing 7 Notice of correction to docket made by Court staff. Motion to Dismiss (Dkt.#5) was edited to remove the attached Memorandum in Support which was incorrectly filed as one document. The CM/ECF procedures require that memorandums must be attached separately and identified accordingly. The Memorandum has been docketed separately. (Figueroa, Tamara) [Transferred from Massachusetts on 1/24/2024.] |
| Filing 6 MEMORANDUM in Support re #5 MOTION to Dismiss for Lack of Jurisdiction (Austin, Tanya) (Figueroa, Tamara) [Transferred from Massachusetts on 1/24/2024.] |
| Filing 5 MOTION to Dismiss for Lack of Jurisdiction by Choq, LLC, Matthew Dorsey. (Attachments: #1 Affidavit Declaration of Seaton Collard, #2 Affidavit Declaration of Matthew Dorsey, #3 Rule 7.1 Certification of Tanya T. Austin)(Austin, Tanya) (Main Document 5 replaced on 10/26/2023) (Figueroa, Tamara). [Transferred from Massachusetts on 1/24/2024.] |
| Filing 4 AMENDED COMPLAINT against All Defendants, filed by Illuminate Labs, Inc..(Cornell, Timothy) [Transferred from Massachusetts on 1/24/2024.] |
| Filing 3 Summons Issued as to All Defendants. Counsel receiving this notice electronically should download this summons, complete one for each defendant and serve it in accordance with Fed.R.Civ.P. 4 and LR 4.1. Summons will be mailed to plaintiff(s) not receiving notice electronically for completion of service. (Figueroa, Tamara) [Transferred from Massachusetts on 1/24/2024.] |
| Filing 2 ELECTRONIC NOTICE of Case Assignment. District Judge Timothy S. Hillman assigned to case. If the trial Judge issues an Order of Reference of any matter in this case to a Magistrate Judge, the matter will be transmitted to Magistrate Judge Katherine A. Robertson. (Horvath, Courtney) [Transferred from Massachusetts on 1/24/2024.] |
| Filing 1 COMPLAINT against All Defendants Filing fee: $ 402, receipt number AMADC-10018292 (Fee Status: Filing Fee paid), filed by Illuminate Labs, Inc.. (Attachments: #1 Civil Cover Sheet, #2 Category Form)(Cornell, Timothy) [Transferred from Massachusetts on 1/24/2024.] |
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