UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA SOUTHERN DIVISION ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

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1 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA SOUTHERN DIVISION RED.COM, INC. dba RED DIGITAL CINEMA, a Washington corporation, v. Plaintiff, JINNI TECH LTD., a United Kingdom corporation, and BRUCE ROYCE, an individual, Defendants. Case No.: SACV 1-00-CJC(KESx ORDER DENYING DEFENDANTS MOTION TO DISMISS I. INTRODUCTION Plaintiff Red.com brings this action against Defendants Jinni Tech Ltd. ( Jinni Tech and Bruce Royce alleging thirteen causes of action including patent infringement, trademark infringement, false advertising, unfair competition, unjust enrichment, and breach of contract. (See generally Dkt. [First Amended Complaint, hereinafter FAC ]. Before the Court is Defendants motion to dismiss for lack of personal -1-

2 jurisdiction, lack of subject matter jurisdiction as to Count 1, improper venue as to Count 1, failure to state a claim as to Counts 1 and 1, or, in the alternative, to transfer this action to the Western District of Washington. (See generally Dkt. [Defendants Motion, hereinafter Mot. ]. After receiving the parties initial briefing on the motion, the Court issued an order directing the parties to filed supplemental briefing on two issues: (1 the substantive unconsionability and enforceability of the forum selection clauses at issue, and ( Defendants knowledge of Plaintiff s presence in California when the alleged infringement took place. (Dkt.. Accordingly, both Plaintiff and Defendants filed supplemental briefing. (Dkts. [Plaintiff s Supplemental Brief, hereinafter Pl. Supp. ], [Defendants Supplemental Brief, hereinafter Def. Supp. ]. For the following reasons, Defendants motion to dismiss is DENIED II. BACKGROUND Plaintiff Red.com is a limited liability company formed and existing in Nevada and having its principal place of business in Irvine, CA. (FAC. Plaintiff manufactures and sells high performance video cameras and accessories. (Id. 1. Plaintiff designs and manufactures its products at its headquarters in Irvine. (Dkt. - [Supplemental Declaration of Jarred Land, hereinafter Land Supp. Decl. ]. One of the accessories Plaintiff makes and sells is the RED Mini-Mag, which is a memory storage device known as a solid state drive ( SSD. (FAC 1. Plaintiff owns various trademarks and patents related to the RED Mini-Mag, including the patent. (Id. 0 1, Exs.. 1 Having read and considered the papers presented by the parties, the Court finds this matter appropriate for disposition without a hearing. See Fed. R. Civ. P. ; Local Rule -1. Accordingly, the hearing set for October, 01, at 1:0 p.m. is hereby vacated and off calendar. --

3 Plaintiff has a substantial presence in Hollywood, as its products are used in the movie industry. (Dkt. 1-1 [Declaration of Jarred Land, hereinafter Land Decl. ]. One-fifth of RED camera owners and users are located in California. (Id. Plaintiff has a large public presence, as indicated by a feature article on the company in the August 00 issue of WIRED magazine as well as Plaintiff s social media presence on Facebook, Instagram, LinkedIn, and its own website. (Land Supp. Decl.,, Exs. ; Dkt. -1 [Supplemental Declaration of Theodore Nguyen, hereinafter Nguyen Supp. Decl. ] Ex.. Both the WIRED article and the websites clearly state that Plaintiff is located in Irvine. (Id Mr. Bruce Royce resides in the United Kingdom. (FAC 1; Mot. at. He started Jinni Tech in 01. (Mot. at 1, ; Dkt. [Declaration of Bruce Royce, hereinafter Royce Decl. ]. Jinni Tech is a limited liability company formed and existing in the United Kingdom. (FAC ; Mot. at ; Royce Decl.. Jinni Tech manufactures and sells products for professional cameras and computer systems used in the film production industry. (Mot. at 1 ; Royce Decl.. Jinni Tech globally advertises and sells its products online through its website (FAC ; Mot. at,. Defendants also use PayPal and Facebook, both California companies, to sell and market their products. (Opp. at 1; Land Decl.. Jinni Tech has no predecessor in interest, parent company, or subsidiary, nor any bank accounts, employees, warehouses, facilities or any other business function operating in the United States. (Mot. at ; Royce Decl.. Mr. Royce owns no property in California nor has any other assets in California. (Mot. at ; Royce Decl. 1. A Google search of RED CAMERA, RED DIGITAL, or RED DIGITAL CINEMA indicate that Plaintiff is located in Irvine in the top of the search results. (Land. Supp. Decl., Exs.. The Wikipedia page for Plaintiff also indicates its location in Irvine. (Dkt. - [Supplemental Declaration of Gregory K. Nelson, hereinafter Nelson Supp. Decl. ] Ex.. Defendants argue that they accept payments using the PayPal service provided by PayPal Europe, which is a Luxembourg credit institution. (Dkt.. --

4 Defendants manufacture and sell a SSD called JinniMag that purports to be compatible with certain cameras, including Plaintiff s cameras. (FAC. Defendants website refers to Plaintiff s products and when doing so, displays Plaintiff s registered trademarks. (Nelson Supp. Decl.,, Ex. 1. Defendants website states that [a]ll patents as held by RED (as listed online were considered to avoid any possible conflict. There is no known patent filed by RED for components used in development of JinniMag. (Id. To review ownership of a patent, a person can search USPTO.gov for patent assignments. (Id.. Assignment information includes the location of the patent owner. (Id., Exs., Plaintiff alleges that in order for Defendants JinniMag to be compatible with Plaintiff s devices, Defendants must have examined the software code allowing RED Mini-Mag card to digitally communicate with RED cameras. (FAC ; Dkt. 1- [Declaration of Matt Biederman, hereinafter Biederman Decl. ]. This software code, known as Firmware, is the only way that the RED camera s operating software system can communicate with a memory card with compatible software. (FAC,, ; Biederman Decl.. The RED Firmware License Agreement ( FLA contains terms that the user agreed not to, or cause or permit, directly or indirectly the modification, disassembly, recompilation, or reverse engineering of the Software or any part thereto, or otherwise attempt to gain access to the source code to the Software. (FAC, [emphasis in original]. In order for the JinniMag to be digitally recognized by Plaintiff s cameras, Plaintiff alleges that Defendants necessarily had to reverse engineer these programs in direct violation of the terms of this and other agreements. (FAC,, ; Biederman Decl.. The FLA also contains a forum selection clause that advises the user they will be subject to jurisdiction in California. (Nguyen Decl.. Defendants Facebook page advertises the JinniMag as a high quality, affordable, fully Mini-Mag compatible third party media for RED cameras. (Land. Decl.. --

5 1 1 To acquire a license for use of RED s firmware and software, an individual must visit the Red website and open an online account with Red.com by agreeing to Red s Terms of Use. (FAC ; Dkt. 1- [Declaration of Theodore Nguyen, hereinafter Nguyen Decl. ]. The Terms of Use refer to Plaintiff being located in California three times. (Nguyen Supp. Decl., Ex. 1. The terms unequivocally state that RED administers and operates the Site from its location in Irvine, California in the United States of America. (Id. After a user creates an account on Red.com, the user receives an from Plaintiff that includes, among other things, Plaintiff s business address in Irvine. (Id., Ex.. Mr. Royce created a user account on Red.com and as part of the sign up process accepted the website s Terms of Use. (FAC,,, ; Nguyen Decl.. Mr. Royce used this account to download multiple RED software products and manuals individually and as an agent for and on behalf of Defendant Jinni. (FAC, 1, ; Nguyen Decl In February 01, Defendants filed a lawsuit against Plaintiff in the United States District Court, Western District of Washington, alleging defamation based on comments made by Plaintiff s President about the JinniMag. Jinni Tech LTD v. Red.com, Inc., et al., No. :1-cv-1-JLR (W.D. Wash.. Plaintiff then filed this action in March 01 bringing thirteen claims against Defendants related to the JinniMag: (1 Patent Infringement of the patent (id., ( Trademark Infringement under 1 U.S.C 1 of RED (id., ( Trademark Infringement under 1 U.S.C 1 of RED RAVEN (id., ( Trademark Infringement under 1 U.S.C 1 of RED Mini-Mag (id., ( Trademark Infringement under 1 U.S.C 1 of RED MINI-MAG (id. 0, ( False Designation of Origin, Unfair Competition, and False Description under 1 U.S.C. (a (id. 1, ( False Advertising under 1 U.S.C. (id. 1, ( False Advertising under Cal. Bus. & Prof. Code 0 (id. 1, ( False Advertising and Unfair Competition under 1 U.S.C. (id. 1, ( Unfair Competition under 1 --

6 U.S.C. (a (id. 1 0, ( Unfair Competition under Cal. Bus. & Prof. Code 0 (id., (1 Unjust Enrichment (id. 1 0, and (1 Breach of Contract (id.. Defendants filed this motion to dismiss on various grounds, or in the alternative, to transfer this case to the Western District of Washington. (See generally Mot Defendants claim that they had no knowledge of Plaintiff s presence in California until this action was filed. (Def. Supp. at 1. Mr. Royce has worked in the television broadcasting industry for over years and has generally used Sony camera equipment. (Pl. Supp. at. Defendants allege that Mr. Royce s television experience has been mostly local or regional and dissimilar to the motion picture industry headquartered in Hollywood. (Id. Plaintiff entered the international market recently and even upon learning of Plaintiff, Mr. Royce had no reason to investigate where Red conducted its corporate operations or maintains its business locations. (Id. at. Jinni Tech allegedly developed and was selling the JinniMag before the patent had been filed. (Dkt. ; Def. Supp. at. Defendants allegedly target prosumers who are not at the top of the market like big-screen movie makers of Hollywood. (Def. Supp. at 1. Additionally, the vast majority of Defendants products have been sold in Europe and [o]nly a handful of products have ever been sold to the entire United States. (Id. at. Mr. Royce s research before filing the Washington action made him aware of Plaintiff s incorporation in Washington. (Id. at. III. DISCUSSION A. The Court Has Personal Jurisdiction Over Defendants A party may move to dismiss an action for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 1(b(. Federal courts may only decide cases over --

7 which they have statutory jurisdiction and where the exercise of jurisdiction comports with due process. Glencore Grain Rotterdam B.V. v. Shivnath Rai Harnarain Co., F.d 1, (th Cir. 00. Where, as here, there is no applicable federal statute governing personal jurisdiction, the district court applies the law of the state in which the court sits. Yahoo! Inc. v. La Ligue Contre Le Racisme Et L Antisemitisme, F.d 1, (th Cir. 00. Because California s long-arm statute, California Civil Procedure Code section., extends jurisdiction to the limit of federal due process, the Court need only consider due process. See id.; Glencore, F.d at Constitutional due process is satisfied when a nonresident defendant has certain minimum contacts with the forum state such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. Doe v. Unocal Corp., F.d 1, (th Cir. 001 (quoting Int l Shoe Co. v. Washington, U.S., 1 (. It is the plaintiff s burden to establish the court s personal jurisdiction over a defendant. Id. at. In the Ninth Circuit, courts employ a three-part test to assess whether a defendant has sufficient contacts with the forum state to be subject to specific personal jurisdiction. Id. at 1. The requirements are: (1 the non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; ( the claim must be one which arises out of or relates to the defendant s forum-related activities; and ( the exercise of jurisdiction must comport with fair play and substantial justice, i.e., it must be reasonable. Id. The plaintiff has the burden of proving the first two prongs. CollegeSource, Inc. v. AcademyOne, Inc., F.d, (th Cir. 0. If a plaintiff is able to successfully do so, the burden shifts to the defendant to set forth a compelling case that the exercise of jurisdiction would not be reasonable. Picot v. Weston, 0 F.d, Plaintiff does not argue that the Court has general jurisdiction over the Defendants. --

8 1 (th Cir. 01. Where the motion is based on written materials, the plaintiff need only make a prima facie showing of jurisdictional facts. Sher v. Johnson, F.d 1, (th Cir. 0. In such cases the Court only inquire[s] into whether [the plaintiff s] pleadings and affidavits make a prima facie showing of personal jurisdiction. Schwarzenegger, F.d at 00, quoting Caruth v. International Psychoanalytical Ass n, F.d 1, 1 (th Cir.. The plaintiff cannot simply rest on the bare allegations of its complaint, Amba Marketing Systems, Inc. v. Jobar International, Inc., 1 F.d, (th Cir., but uncontroverted allegations in the complaint must be taken as true. AT & T v. Compagnie Bruxelles Lambert, F.d, (th Cir.. Conflicts between parties over statements contained in affidavits must be resolved in the plaintiff s favor. Schwarzenegger, F.d at 00 (citations omitted The purposeful availment requirement is satisfied when a non-resident defendant commits an intentional act expressly aimed at the forum state, which causes harm that the defendant knew or should have known was likely to be suffered in the forum state. Calder v. Jones, US, 0 ( (finding the exercise of personal jurisdiction proper over a non-resident whose intentional conduct was directed at and caused injury to an in-state plaintiff; see also Bancroft & Masters, Inc. v. Augusta Nat l Inc., Fd, (th Cir. 000 (exercising personal jurisdiction over nonresident defendant who allegedly infringed on the resident plaintiff s trademark and attempted to misappropriate resident s Internet domain name. Under Calder, purposeful availment is satisfied even by a defendant whose only contact with the forum state is the purposeful direction of a foreign act having effect in the forum state. Haisten v. Grass Valley Med. Reimbursement Fund, F.d, (th Cir. (emphasis in original. --

9 Defendants have committed intentional acts directed at the forum which they knew would have a direct effect on Plaintiff in the forum. As alleged, Defendants intentionally infringed Plaintiff s patents and trademarks. While Defendants now deny knowing that Plaintiff was headquartered in California and had a substantial presence here, Plaintiff provides ample evidence that Defendants knew of Plaintiff s California presence or were willfully blind to it. Defendants own website purports to have reviewed all of Plaintiff s patents, which would have included a statement of Plaintiff s location in Irvine, CA. Defendants downloaded and accepted the terms of multiple software agreements that stated on their face that Plaintiff was headquartered in California. Given this compelling evidence, Defendants must have known Plaintiff was located in California and that any patent or trademark infringement would harm Plaintiff in California Defendants also advertised the JinniMag as a competitor to Plaintiff s SSD drives, placing their allegedly infringing product in direct competition in Plaintiff s market, which is centered in California. Plaintiff s cameras are used in Hollywood and owned by many California residents. Public knowledge that Plaintiff and its products are present in California supports the conclusion that Defendants must have known not only where Plaintiff and its products were located, but also that the harm from Defendants alleged infringement would be felt in California. See Mavrix Photo, Inc. v. Brand Techs., Inc., F.d, (th Cir. 0 (holding that personal jurisdiction in California was 1 Defendants argue that their alleged infringement of the patent could not have been willful because the JinniMag was developed and on the market before Plaintiff filed the patent. (Def. Supp. at. This is of no consequence to the Court s jurisdictional analysis because Plaintiff alleges multiple trademark infringement claims that stand independent of the patent infringement claim. Plaintiff also argues that Defendants use of Facebook and PayPal, both California companies, to promote its products to the entertainment industry make them subject to jurisdiction in California based on the holding in Rosen v. Masterpiece Mktg. Grp., LLC, No. CVSJOASX, 01 WL (C.D. Cal. Dec., 01. (Pl. Supp. at. Plaintiff overstates the district court s holding in Rosen, which noted that the defendant s use of interactive, California-based websites to advertise and promote its products is a factor weighing in support of the exercise of personal jurisdiction. Rosen, 01 WL at *. The Court agrees that this fact supports the exercise of personal jurisdiction over Defendants, but it is not dispositive. --

10 warranted where the defendant had engaged in the intentional act of posting copyrighted photos on its website outside of California with the knowledge that the impact, direct competition in the California market, would be felt by the Plaintiff who kept an office with employees in California (approved of by Washington Shoe Co. v. A-Z Sporting Goods Inc., 0 F.d, (th Cir The Ninth Circuit has held that specific jurisdiction exists in similar cases where a plaintiff files suit in its home state against an out-of-state defendant and alleges that defendant intentionally infringed its intellectual property rights knowing [the plaintiff] was located in the forum state. Amini Innovation Corp. v. JS Imports, Inc., F. Supp. d, 0 0 (C.D. Cal. 00 (citing Columbia Pictures Television v. Krypton Broadcasting of Birmingham, Inc., F.d, (th Cir. ( [Plaintiff] alleged, and the district court found, that [defendant] willfully infringed copyrights owned by [plaintiff], which, as [defendant] knew, had its principal place of business in the Central District. This fact alone is sufficient to satisfy the purposeful availment requirement. ; Panavision Intern., L.P. v. Toeppen, F.d, (th Cir. (holding that the effects test was satisfied in a trademark infringement case as defendant knew that plaintiff would suffer harm in California, since its principal place of business was in California, and the heart of the theatrical motion picture and television industry is located there. District courts have applied these principles to foreign national defendants as well. See Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., F. Supp. d, (C.D. Cal. 00 (holding that the court had personal jurisdiction over a foreign national defendant who distributed allegedly infringing software into California. Defendants argue that Walden v. Fiore, 1 S. Ct. 1 (01 overruled Washington Shoe and that intellectual property harm no longer supports a finding that a defendant expressly aimed its actions at the forum state. Walden v. Fiore, 1 S. Ct. --

11 , (01. Defendants argue that at most, a willful infringer may aim its actions at a resident of the forum, but not the forum itself. (Dkt. [Defendants Reply, hereinafter Reply ] at. See Walden, 1 S. Ct. at ( [O]ur minimum contacts analysis looks to the defendant s contacts with the forum State itself, not the defendant s contacts with persons who reside there. District courts within the Ninth Circuit are divided as to Walden s effect on Washington Shoe and the Ninth Circuit s jurisprudence regarding the express aiming prong. Compare Adobe Sys. Inc. v. Cardinal Camera & Video Ctr., Inc., No. 1-CV-01-JST, 01 WL 1, at * (N.D. Cal. Oct., 01 ( the holding in Washington Shoe cannot be reconciled with Walden and that Walden effectively overrules Washington Shoe and Erickson v. Neb. Mach. Co., No. 1-cv-0-JD, 01 WL0, at * (N.D. Cal. July, 01 (same and Under a Foot Plant, Co. v. Exterior Design, Inc., No. :1-cv-0-AA, 01 WL, at * n.1 (D. Or. Mar., 01 (same with Exobox Techs. Corp. v. Tsambis, No. :1-cv- 0001, 01 WL, at * (D. Nev. Jan., 01 (holding that prior Ninth Circuit precedent regarding the express aiming prong is still good law because Walden was narrowly decided and is factually distinguishable and Leibman v. Prupes, No. :1-cv- 000, 01 WL, at * (C.D. Cal. Mar., 01 (holding that, despite Walden, the express aiming requirement is still satisfied when a defendant allegedly engaged in wrongful conduct targeted at a plaintiff whom the defendant knows to be a resident of the forum state. 1 Defendants have purposefully directed their actions at this forum with the knowledge that Plaintiff resided in California and in all likelihood, with the knowledge that Plaintiff s products were widely used in California. Defendants alleged acts of infringement give rise to Plaintiff s claims. There is a close connection between Defendants alleged infringement and California coupled with strong evidence that Defendants knew Plaintiff resided in California, where its products were sold and used. Defendants affiliation with California is not based on random, fortuitous, or --

12 attenuated contacts [they] make[] by interacting with other persons affiliated with the State. Walden, 1 S. Ct. at (quoting Burger King Corp. v. Rudzewicz, 1 U.S., ( (internal quotation marks omitted Defendants actions are factually distinguishable from Walden, where the only connection to the forum state of Nevada was that... the plaintiff happened to reside in Nevada and the defendant s intentional acts occurred in Georgia. Leibman, 01 WL at * (citing Walden, 1 S. Ct. at 1. The Court also finds the Ninth Circuit s application of Walden in Picot v. Weston, 0 F.d, (th Cir. 01 distinguishable in that the defendant s sole connection to the forum of California relied on a chain of actions, none of which occurred in or were directed at a resident of California, to affect the plaintiff California resident s out-of-state funds. Picot v. Weston, 0 F.d, (th Cir. 01 ( Picot s injury, an inability to access out-of-state funds, is not tethered to California in any meaningful way. Defendants connected themselves to California when they allegedly infringed on Plaintiff s patent and trademarks knowing Plaintiff, its products, and its market were located in California Plaintiff has established the first two prongs of the specific jurisdiction analysis and Defendants have failed to make a compelling case that the Court s exercise of jurisdiction over them would be unreasonable. While Defendants argue that they should not be forced to litigate thousands of miles away from their residence, (Mot. at, Defendants have indicated their willingness to travel by filing a lawsuit on the West Coast of the United States, (Opp. at 0. Defendants have directed their activity at the forum and all of the witnesses and evidence are in California. (Opp. at 0. Defendants have presented no reason why litigating this dispute in California would be so gravely -1-

13 difficult and inconvenient for Defendants such that they would be placed at a severe disadvantage in comparison to [their] opponent. Burger King, 1 U.S. at. B. The Court Has Subject Matter Jurisdiction over Plaintiff s Patent Infringement Claim Under the well-pleaded complaint rule, federal question jurisdiction is present only when a federal question is presented on the face of the plaintiff s properly pleaded complaint. Caterpillar Inc. v. Williams, U.S., (. A well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff s right to relief necessarily depends on resolution of a substantial question of federal law. Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation Trust for S. Cal., U.S. 1, (. If it appears that the district court lacks subject matter jurisdiction at any time prior to the entry of final judgment, the case must be remanded to state court. See U.S.C. 1(c U.S.C. 1(a grants district courts original jurisdiction of any civil action arising under any Act of Congress relating to patents. Section 1(a jurisdiction inures when a well-pleaded complaint establishes that federal patent law creates the cause of action or that the plaintiff s right to relief necessarily depends on resolution of a substantial question of federal patent law, in that patent law is a necessary element of one of the well-pleaded claims. Exxon Chem. Patents, Inc. v. Lubrizol Corp., F.d 1, 1 (Fed. Cir. (quoting Christianson v. Colt Industries Operating Corp., U.S. 00, 0 0 (. The proper focus is on whether the plaintiff actually pleaded the elements required by the patent laws for a patent infringement claim. Exxon The Court finds it unnecessary to address whether it has personal jurisdiction over the Defendants on the basis of the licensing agreements forum selection clauses, (Mot. at 1; Opp. at 1, or that Defendants placed an infringing product in the stream of commerce knowing and anticipating that it would reach California, (Opp. at

14 Chem. Patents, F.d at 1 (citing Kunkel v. Topmaster International, Inc., 0 F.d, (Fed. Cir. 0. When a challenge to jurisdiction is in fact directed only to the merits of a question of patent law, it is proper for the district court to accept jurisdiction under 1(a. Exxon Chem. Patents, F.d at Plaintiff s first claim for patent infringement of the patent arises under U.S.C 1 et seq. and thus presents a federal question on the face of the FAC. (FAC. Defendants allege that because Plaintiff s patent was not issued until twelve days after Plaintiff filed the original complaint, the Court lacks subject matter jurisdiction. (Mot. at. Plaintiff s patent had issued before the filing of the FAC, which absolved any ripeness concerns regarding Plaintiff s patent infringement claim. Defendants cited case law does not support the Court finding otherwise. Black & Decker Inc. v. Robert Bosch Tool Corp., 1 F. Supp. d, 1 (N.D. Ill. 00 (finding the court [did] not have jurisdiction over a pending patent application when declaratory judgment of noninfringement or invalidity is at issue and that no case or controversy existed regarding patent claims that the patentee did not assert, even when the patentee was asserting other claims from that same patent. ; Sepehry-Fard v. Countrywide Home Loans. Inc., No. 1-CV-0-BLF, 01 WL 0, at * (N.D. Cal. June 1, 01 ( a plaintiff [cannot seek] amendment to assert a federal claim in an effort to create jurisdiction where jurisdiction was lacking over an original complaint that alleged only state law claims ; Morongo Band of Mission Indians v. California State Bd. of Equalization, F.d 1, (th Cir. (same. On the other hand, Exxon Chem. Patents supports the Court s conclusion. Exxon Chem. Patents, F.d at 1 (finding the court had subject matter jurisdiction over a patent infringement claim where the complaint was filed on the day the patent was publicized as having issued, but the issued patent was not received until two months after filing. -1-

15 There is no issue regarding the ripeness of Plaintiff s claim as the patent has issued. Because Plaintiff has sufficiently pled the elements of a patent infringement claim, the Court has subject matter jurisdiction over Claim 1. C. Venue is Proper In general, venue is proper in a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred. U.S.C. 1(b(. Defendants alleged acts of infringement were directed at Plaintiff whose principal place of business and website servers are located in this judicial district, making venue proper Defendants argument that TC Heartland LLC, 1 S. Ct. (01 held that U.S.C. 0(b is the exclusive provision concerning proper venue for patent infringement actions is unsupported. (Mot. at 1 1. TC Heartland LLC affirmed the rule that U.S.C. 0(b is the exclusive provision controlling venue in patent infringement actions for domestic corporations, but clearly stated that its holding did not address the application of 0(b to foreign corporations. TC Heartland LLC v. Kraft Food Grp. Brands LLC, 1 S. Ct., n. (01. Rather, the general venue provision of 1 applies to foreign entities and persons sued for patent infringement. Brunette Mach. Works, Ltd. v. Kockum Indus., Inc., 0 U.S. 0, 1 (. 1 D. Plaintiff Has Sufficiently Pled Claims 1 and 1 Defendants argument that Plaintiff has failed to state a claim for patent infringement in Claim 1 recycles their argument that Plaintiff could not sue on the twelve days before the patent issued. (Mot. at 1. This is unpersuasive. The fact that Plaintiff s patent had not been issued when the Complaint was originally filed does not mean that Plaintiff has not sufficiently pled the elements of this cause of action. -1-

16 Defendants argue that Plaintiff has failed to state a claim for breach of contract in Claim 1 because (1 Plaintiff did not sufficiently plead the terms of the contract and ( Plaintiff did not attach a copy of the contract at issue. (Mot The Court finds these arguments unavailing. Plaintiff was not required to attach the contract at issue in order to meet the pleading standard. See Langan v. United Servs. Auto. Ass n, F. Supp. d, (N.D. Cal. 01 ( A plaintiff fails to sufficiently plead the terms of the contract if he does not allege in the complaint the terms of the contract or attach a copy of the contract to the complaint. [emphasis added] (citing Twaite v. Allstate Ins. Co., 1 Cal. App. d, (. Plaintiff s FAC makes clear that Mr. Royce accepted the terms of the FLA licensing agreement on June, 01, (FAC, before Defendants allegedly completed the JinniMag in July 01, (Mot. at 1. In the FAC, Plaintiff sufficiently alleges the terms of the contracts at issue, that Defendants accepted the terms of those contracts, and that Defendants breached the terms of those contracts by reverse engineering Plaintiff s software to make the JinniMag compatible with RED cameras. (FAC,, 1, Defendants argument that Plaintiff fails to make a prima facie case for breach of the Website Agreement, the RD SDK, or the Redlink SDK is beside the point, as Plaintiff is alleging breach of the FLA. (Reply at. Additionally, Defendants argue that a breach of the FLA was not required to make a SSD compatible with Plaintiff s cameras because the Mini-Mag SSD s proprietary keys were what allowed the devices to communicate. (Reply at 1. The Court finds this argument unavailing, as Plaintiff alleges that both the software of the Mini-Mag SSD and the firmware in Plaintiff s camera were reverse engineered to accomplish the communication between the JinniMag and Plaintiff s cameras. (Biederman Decl.. // // -1-

17 1 1 E. The Court Declines to Transfer Venue to the Western District of Washington A district court has discretion to transfer a civil action for the convenience of parties and witnesses, in the interest of justice, to any other district or division where it might have been brought. U.S.C. (a. The moving party bears the burden of demonstrating that transfer is appropriate. Williams v. Bowman, 1 F. Supp. d 0, 0 (N.D. Cal Defendants request that the Court transfer the case to the Western District of Washington relies on the premise that this Court lacks personal jurisdiction over the Defendants. (Mot. at 1. The Court has now determined otherwise and there is no evidence that witnesses, documents, or evidence related to this matter are in Washington. (Opp. at.. The Court will not transfer this case to the Western District of Washington. 1 1 IV. CONCLUSION 1 1 For the foregoing reasons, Defendants motion to dismiss is DENIED DATED: October, 01 CORMAC J. CARNEY UNITED STATES DISTRICT JUDGE -1-