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Crazy Debbies Fireworks LLC v. Dynomite Fireworks, LLC

United States District Court, D. Kansas

December 13, 2018

CRAZY DEBBIE'S FIREWORKS LLC d/b/a RED RHINO FIREWORKS, Plaintiff,
v.
DYNOMITE FIREWORKS, LLC, et al., Defendants.

          MEMORANDUM AND ORDER

          HOLLY L. TEETER, UNITED STATES DISTRICT JUDGE.

         Plaintiff Crazy Debbie's Fireworks LLC d/b/a Red Rhino Fireworks asserts claims against Defendants Dynomite Fireworks, LLC and Dynomite Wholesale, LLC for unfair competition and false designation of origin under federal law and for state-law trademark infringement and unfair competition based on Defendants' alleged appropriation of Plaintiff's mark in promoting and selling their product. Doc. 1. Defendants move to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction or, in the alternative, to transfer venue. Doc. 8. The Court concludes that it lacks personal jurisdiction over Defendant Dynomite Fireworks, LLC, [1]but, rather than dismissing this action, the Court transfers the case to the United States District Court for the Western District of Missouri pursuant to 28 U.S.C. § 1631.

         I. BACKGROUND

         Consistent with the standard for Rule 12(b)(2) motions, the following background accepts as true Plaintiff's well-pleaded factual allegations (unless controverted by affidavit) and resolves all factual disputes in the affidavits in Plaintiff's favor.

         A. The Parties

         Plaintiff is a wholesale fireworks distributor with its principal place of business in Joplin, Missouri. Doc. 1 ¶¶ 2, 9. Among its products, Plaintiff markets and sells fireworks bearing a mark entitled “ASSASSIN.” Id. at ¶ 10. Plaintiff uses this mark on its website and in its catalogs to advertise and promote its ASSASSIN-branded fireworks. Id. at ¶¶ 10-12.

         Defendant Dynomite Fireworks, LLC (“Dynomite Retail”)-a retail-seller of fireworks- is a Missouri limited liability company whose sole member resides in Missouri.[2] Doc. 8-2 ¶¶ 2-4. Dynomite Retail also sells fireworks with a mark entitled “ASSASSIN.” Doc. 1 ¶ 14. Dynomite Retail operates a storefront location in Seymour, Missouri, along with seasonal fireworks stands in Missouri and Arkansas. Doc. 8-2 ¶ 4. All of Dynomite Retail's third-party vendors are located in Missouri. Id. at ¶ 18. Dynomite Retail does not have any offices or physical locations in Kansas, it does not have any employees or sales representatives in Kansas, and its employees do not travel to Kansas to solicit business. Id. at ¶¶ 6-7, 14. Dynomite Retail does not direct its advertising to residents of, or businesses in, Kansas and has never sold any fireworks in Kansas. Id. at ¶¶ 12, 16.

         Defendant Dynomite Wholesale, LLC (“Dynomite Wholesale”) is a wholesale-seller of fireworks, which, like Dynomite Retail, is a Missouri limited liability company with a Missouri resident as its sole member. Id. at ¶¶ 2, 20-21. Dynomite Wholesale is the owner of USPTO Registration No. 4936828 for the trademark “ASSASSIN” for fireworks, and, like Dynomite Retail, markets and sells ASSASSIN-branded fireworks. Id. at ¶ 23; Doc. 1 ¶ 14. Dynomite Wholesale's only physical location is in Seymour, Missouri. Doc. 8-2 ¶ 22. All of Dynomite Wholesale's third-party vendors are located in Missouri. Id. at ¶ 41. Dynomite Wholesale does not have any offices or physical locations in Kansas, it does not have any employees or sales representatives in Kansas, and its employees do not travel to Kansas to solicit business. Id. at ¶¶ 25-26, 31. Dynomite Wholesale advertises its products nationwide and offers a print catalog that can be requested by customers or prospective customers. Id. at ¶¶ 33-34. Dynomite Wholesale's catalog has been requested by and mailed to eight customers with a Kansas address. Id. at ¶ 36. Since 2012, Dynomite Wholesale has received a total of $4, 565.00 for the sale of ASSASSIN-branded fireworks to customers with a Kansas address. Id. at ¶ 39. Kansas customers have accounted for less than one percent of Dynomite Wholesale's sales of its fireworks (regardless of branding) since 2012. Id. at ¶ 40.

         Dynomite Retail and Dynomite Wholesale also jointly operate a website where customers can purchase their products-including ASSASSIN-branded fireworks-at retail or wholesale. Doc. 11 at 2; Doc. 11-1 ¶ 3; Doc. 11-2.

         B. The Dispute

         Plaintiff filed this action on June 15, 2018, asserting claims against Defendants for unfair competition and false designation of origin under the Lanham Act, 15 U.S.C. §§ 1051, et seq., and claims for trademark infringement and unfair competition in violation of Kansas law. Doc. 1. Plaintiff alleges Defendants infringed upon its rights by using the ASSASSIN mark to promote and sell their fireworks. Id. at ¶ 14. Plaintiff claims Defendants' adoption of the mark to offer and sell ASSASSIN-branded fireworks is likely to cause confusion, mistake, or deception regarding the origin, sponsorship, or approval of Defendants' fireworks, causing consumers to incorrectly assume that Plaintiff is affiliated with Defendants. Id. at ¶¶ 29, 37.

         II. ANALYSIS

         Defendants move to dismiss this action pursuant to Rule 12(b)(2), arguing that the Court lacks personal jurisdiction. Doc. 9 at 6-17. In the alternative, Defendants request that the Court transfer venue to the United States District Court for the Western District of Missouri pursuant to 28 U.S.C. § 1404(a). Id. at 18-21. In its response, Plaintiff relies heavily on Defendants' website and Dynomite Wholesale's Kansas sales in arguing against dismissal. Doc. 11 at 8-12. Plaintiff does not, however, oppose transfer of venue. Id. at 12.

         A. ...


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