United States District Court, D. Kansas
CRAZY DEBBIE'S FIREWORKS LLC d/b/a RED RHINO FIREWORKS, Plaintiff,
DYNOMITE FIREWORKS, LLC, et al., Defendants.
MEMORANDUM AND ORDER
L. TEETER, UNITED STATES DISTRICT JUDGE.
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, 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.
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
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.
Dynomite Fireworks, LLC (“Dynomite Retail”)-a
retail-seller of fireworks- is a Missouri limited liability
company whose sole member resides in Missouri. 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.
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.
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.
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.
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.