IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

UNDER A FOOT PLANT, CO., an 

Oregon corporation 

Plaintiff, 

v. 

EXTERIOR DESIGN, INC., a 

Maryland corporation, doing 

business as THE PERENNIAL FARM, 

TREADWELL PERENNIALS, and 

PERENNIAL FARM MARKETPLACE, 

Defendant. 

ROBERT SWIDER 

MICHAEL DELL LONG 

ANDREA A. SELKREGG 

Swider Haver 

621 SW Morrison, Suite 1420 

Portland, Oregon 97205 

Attorneys for plaintiff 

BARRY J. GOEHLER 

Law office of Barry Goehler 

1001 SW Fifth Avenue, Suite 1530 

Portland, Oregon 97204 

Attorney for defendant 

Page 1 - OPINION AND ORDER 

Case No. 6:14-cv-01371-AA 

OPINION AND ORDER 

Case 6:14-cv-01371-AA Document 17 Filed 03/24/15 Page 1 of 13
AIKEN, Chief Judge: 

Defendant Exterior Design, Inc. filed a motion to dismiss 

plaintiff Under A Foot Plant, Co.'s complaint for lack of personal 

jurisdiction pursuant to Fed. R. Civ. P. (12) (b) (2). In the 

alternative, defendant moves to transfer venue to the District of 

Maryland. Additionally, plaintiff requests judicial notice of a 

printout from defendant's website. For the reasons set forth below, 

the parties' motions are granted. 

BACKGROUND 

Plaintiff, an Oregon corporation with its principal place of 

business in Salem, Oregon, is in the wholesale business of 

marketing and distributing groundcover plants. In 1999, plaintiff 

developed a product line entitled STEPABLES®. In the course of 

marketing STEPABLES®, plaintiff took a number of photographs for 

use in its promotional materials. Among these photographs are the 

nineteen copyrighted images ("Copyrighted Works") at issue in this 

case. 

Defendant, a Maryland corporation with its principal place of 

business in Glenn Arm, Maryland, is also in the wholesale plant 

business. Sometime around 2010, defendant developed a product line, 

entitled Treadwell Plants, that is similar in nature to plaintiff's 

STEP ABLES®. 

On August 26, 2014, plaintiff filed a complaint in this Court 

against defendant alleging copyright infringement, unfair and 

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Case 6:14-cv-01371-AA Document 17 Filed 03/24/15 Page 2 of 13
deceptive trade practices, and unjust enrichment. Specifically, 

plaintiff alleges that, beginning in March 2011, defendant 

impermissibly began using, and continues to use, the Copyrighted 

Works in promoting Treadwell Plants. On September 17, 2014, 

defendant filed the present motion to dismiss or transfer venue. 

STANDARDS 

Where the court lacks personal jurisdiction, the action must 

be dismissed. Fed. R. Ci v. P. 12 (b) ( 2) . When a defendant moves to 

dismiss for lack of personal jurisdiction, the plaintiff bears the 

burden of establishing that such jurisdiction is appropriate. 

Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th 

Cir. 2004) (citation omitted). Where the court makes its 

jurisdictional finding based on pleadings and affidavits rather 

than an evidentiary hearing, the plaintiff need only make a prima 

facie showing of jurisdictional facts. Caruth v. Int'l 

Psychoanalytical Ass'n, 59 F.3d 126, 127-28 (9th Cir. 1995). 

"Although the plaintiff cannot rest solely on the allegations of 

the complaint to establish that jurisdiction is proper, the 

complaint's uncontroverted factual allegations must be accepted as 

true and any factual conflicts in the parties' declarations must be 

resolved in the plaintiff's favor." Ukrvaktsina v. Olden Grp., LLC, 

2011 WL 5244697, *2 (D.Or. Oct. 30, 2011) (citations omitted). 

DISCUSSION 

Defendant asserts that dismissal or transfer of venue is 

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Case 6:14-cv-01371-AA Document 17 Filed 03/24/15 Page 3 of 13
warranted because plaintiff failed to allege facts that would 

support personal jurisdiction in this forum. Conversely, plaintiff 

argues that this District has both general and specific 

jurisdiction over defendant pursuant to Oregon's long arm statute. 

I. Request for Judicial Notice 

Plaintiff requests judicial notice of an archived printout 

from defendant's website, which was generated by The Internet 

Archive on November 30, 2010. This printout describes the shipping 

services provided by defendant. According to plaintiff, defendant 

"does not object to the Court taking judicial notice of the 

existence of the document, [but] does not consent to the Court 

taking judicial notice of the facts contained within the document." 

Pl.'s Mot. Jud. Notice 2. Defendant did not file an opposition to 

plaintiff's request for judicial notice. 

A court may take judicial notice of "a fact that is not 

subject to reasonable dispute" because it "is generally known 

within the trial court's territorial jurisdiction" or "can be 

accurately and readily determined from sources whose accuracy 

cannot reasonably be questioned." Fed. R. Evid. 201(b). District 

courts have routinely taken judicial notice of content from The 

Internet Archive pursuant to this rule. See, e.g., Pond Guy, Inc. 

v. Aguascape Designs, Inc., 2014 WL 2863871, *4 (E.D.Mich. June 24, 

2014); Martins v. 3PD, Inc., 2013 WL 1320454, *16 (D.Mass. Mar. 28, 

2013); In re Methyl Tertiary Butyl Ether (MTBE) Products Liab. 

Page 4 - OPINION AND ORDER 

Case 6:14-cv-01371-AA Document 17 Filed 03/24/15 Page 4 of 13
Litig., 2013 WL 6869410, *4 (S.D.N.Y. Dec. 30, 2013). Accordingly, 

plaintiff's request for judicial notice is granted. 

II. Motion to Dismiss 

When no applicable federal statute governs personal 

jurisdiction, the district court applies the law of the state in 

which it sits. Schwarzenegqer, 374 F.3d at 800 (citations omitted). 

Because Oregon's long-arm statute is coextensive with federal due 

process requirements, the jurisdictional analyses under state law 

and federal due process are the same. Id. at 801; Or. R. Civ. P. 

4L. Thus, the two inquiries merge and this Court need only 

determine whether the assertion of personal jurisdiction over 

defendant violates the due process clause. 

In order for a court to have the power to render judgment 

against a defendant, the plaintiff must show that the nature and 

quality of the non-resident's contacts are sufficient to establish 

either "general" or "specific" personal jurisdiction. Helicopteros 

Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 414-15 (1984). 

A. General Jurisdiction 

The due process clause permits a court to exercise general 

personal jurisdiction if the non-resident defendant's activities 

within the forum state are "substantial" or "continuous and 

systematic," even if the cause of action is unrelated to those 

activities. 

1171 (9th 

Tuazon v. R.J. Reynolds Tobacco Co., 433 F.3d 1163, 

Cir. 2006) (citation omitted). The standard for 

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Case 6:14-cv-01371-AA Document 17 Filed 03/24/15 Page 5 of 13
establishing general jurisdiction is "exacting" and requires that 

the defendant's contacts be of the sort that "approximate physical 

presence" in the forum state. Schwarzenegger, 37 4 F. 3d at 8 01 

(citation omitted). "Longevity, continuity, volume, economic 

impact, physical presence, and integration into the state's 

regulatory or economic markets are among the indica of such a 

presence." Tuazon, 433 F.3d at 1172; see also Bancroft & Masters, 

Inc. V. Augusta Nat'l, Inc., 223 F.3d 1082, 1086 (9th Cir. 2000) 

("[f]actors to be taken into consideration are whether the 

defendant makes sales, solicits or engages in business in the 

state, serves the state's markets, designates an agent for service 

of process, holds a license, or is incorporated there") (citation 

omitted). 

Plaintiff asserts that general jurisdiction exists because 

defendant makes purchases from Oregon nurseries, employs a 

consultant - i.e. Dr. Armitage - who attended a trade show in 

Oregon, and sells to national chains that "likely" distribute their 

products to Oregon. Pl.'s Resp. to Mot. Dismiss 12-13. The Court 

finds, to the contrary, that the contacts alleged by plaintiff 

cannot be said to be so continuous and systematic as to approximate 

defendant's physical presence in Oregon for four reasons. First, it 

is well established that purchasing products from a forum state is 

not enough to establish general jurisdiction over a defendant. See 

Helicopteros, 466 U.S. at 418 ("mere purchases, even if occurring 

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Case 6:14-cv-01371-AA Document 17 Filed 03/24/15 Page 6 of 13
at regular intervals, are not enough to warrant a State's assertion 

of in personam jurisdiction over a nonresident corporation in a 

cause of action not related to those purchase transactions") 

(citation omitted); Bancroft, 223 F. 3d at 1086 ("engaging in 

commerce with residents of the forum state is not in and of itself 

the kind of activity that approximates physical presence within the 

states borders") ( citation omitted) . 

Second, Dr. Armitage offered sworn testimony that he is not an 

agent or employee of defendant. Armitage Decl. ~ 2. He also stated 

that any time spent in Oregon at trade shows and other events was 

for the benefit of his own career. Id. In other words, he never 

represented defendant or conducted any business on its behalf while 

in Oregon. Id. Third, plaintiff's vague assertion that defendant 

has national customers that "likely" distribute their products to 

Oregon does not support its argument for general jurisdiction. 

Pl.'s Resp. to Mot. Dismiss 13 (citing Long Decl. ~ 7). Even 

assuming that some of defendant's products reach Oregon through its 

national customers, occasional, unsolicited sales to forum 

residents are insufficient to create general jurisdiction over a 

non-resident. Bancroft, 223 F.3d at 1086 (citation omitted). 

Finally, other evidence indicates defendant lacks the contacts 

with Oregon that would warrant general jurisdiction. See generally 

Watson Decl. Specifically, defendant is not licensed to do business 

in Oregon, does not have any agents or employees in Oregon, does 

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Case 6:14-cv-01371-AA Document 17 Filed 03/24/15 Page 7 of 13
not own any real estate or operate any facilities in Oregon, and 

does not own any Oregon bank accounts. Id. at~ 4. These facts are 

unrefuted by plaintiff and provide further evidence that 

defendant's contact with Oregon is not systematic and continuous. 

Accordingly, this Court lacks general personal jurisdiction over 

defendant. 

B. Specific Jurisdiction 

Where general personal jurisdiction is lacking, a court may 

still exercise specific jurisdiction if the defendant has minimum 

contacts with the forum state such that the maintenance of the suit 

does not offend traditional notions of fair play and substantial 

justice. Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1155 (9th Cir. 

2006) (citation omitted) . Under the minimum contacts test, a court 

can exercise specific personal jurisdiction over a non-resident if: 

1) the defendant performs an act or consummates a transaction 

within the forum, purposefully availing itself of the privilege of 

conducting activities there; 2) the plaintiff's claim arises out of 

or results from the defendant's forum-related activities; and 3) 

the exercise of personal jurisdiction over the defendant is 

reasonable. Id. ( citation omitted) . The plaintiff "bears the burden 

of satisfying the first two prongs of the 'minimum contacts' test." 

Id. (citation omitted). "If the plaintiff fails to satisfy either 

of these prongs, personal jurisdiction is not established." 

Schwarzenegger, 374 F.3d at 802 (citations omitted). 

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Case 6:14-cv-01371-AA Document 17 Filed 03/24/15 Page 8 of 13
The Ninth Circuit typically treats the first element of the 

minimum contacts test differently in tort and contract cases. 

Yahoo! Inc. v. La Ligue Contre Le Racisme Et L'Antisemitisme, 433 

F.3d 1199, 1206 (9th Cir.), cert. denied, 547 U.S. 1163 (2006). In 

contract cases, the court inquires whether the defendant 

"purposefully avails itself of the privilege of conducting 

activities or consummate[s] [a] transaction in the forum, focusing 

on activities such as delivering goods or executing a contract." 

Id. (citation and internal quotations omitted). In tort cases, the 

court generally applies the effects test to determine whether the 

defendant purposefully directs its activities at the forum state, 

regardless of whether the actions themselves occurred within the 

forum. Id. 

Because plaintiff's allegations are based in tort, the effects 

test governs. Accordingly, plaintiff must demonstrate, in relevant 

part, that defendant committed an intentional act expressly aimed 

at this forum, which caused harm herein. Harris Rutsky & Co. Ins. 

Servs., Inc. v. Bell & Clements Ltd., 328 F.3d 1122, 1131 (9th Cir. 

2003) (citation omitted). For purposes of the effects test, 

"intentional act" refers to "an intent to perform an actual, 

physical act in the real world, rather than an intent to accomplish 

a result or consequence of that act." Schwarzenegger, 374 F.3d at 

806. Thus, in a copyright action, a defendant acts intentionally 

when it reproduces and distributes the protected work, regardless 

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Case 6:14-cv-01371-AA Document 17 Filed 03/24/15 Page 9 of 13
of whether or not it intended to violate the copyright. Herer v. Ah 

Ha Pub., LLC, 927 F.Supp.2d 1080, 1086 (D.Or. 2013). An intentional 

act with foreseeable effects in a forum state alone will not give 

rise to specific jurisdiction; rather, the intentional act must be 

"expressly aimed" at the forum state. Bancroft, 223 F.3d at 1087. 

Here, the Court finds that defendant committed an intentional 

act within the meaning of the effects test when it allegedly 

reproduced and displayed the Copyrighted Works. Herer, 927 

F.Supp.2d at 1086. The more difficult question is whether 

defendant's conduct was "expressly aimed" at this forum. Plaintiff 

argues that defendant wilfully violated its rights in the 

Copyrighted Works despite being informed of its interest. Further, 

plaintiff contends that, based on email correspondences and the 

transmittal of its copyright registrations and a cease and desist 

letter, defendant had knowledge of its Salem, Oregon, location. 1 

1 As such, plaintiff argues that Wash. Shoe Co. v. A-Z 

Sporting Goods Inc., 704 F.3d 668 (9th Cir. 2012), controls this 

Court's analysis. Pl.'s Resp. to Mot. Dismiss 9-11. That case 

held that when a plaintiff "allege[s] willful infringement of 

[its] copyright, and [the defendant's] knowledge of both the 

existence of the copyright and the forum of the copyright 

holder," the "expressly aimed" prong is satisfied. Wash. Shoe, 

704 F.3d at 678-79. As defendant notes, however, the Supreme 

Court recently examined the Ninth Circuit's application of the 

effects test and held that a plaintiff cannot be the only 

connection between the defendant and the forum: "it is the 

defendant's conduct that must form the necessary connection with 

the forum State that is the basis for jurisdiction over him." 

Walden v. Fiore, 134 S.Ct. 1115, 1122 (2014) (citations omitted). 

Thus, intentional conduct directed at an individual who is known 

to reside in a particular forum is not enough, on its own, to 

satisfy the minimum contacts test. Id. at 1125. "The proper 

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Case 6:14-cv-01371-AA Document 17 Filed 03/24/15 Page 10 of 13
Plaintiff's argument is problematic because it shifts the 

focus of the minimum contacts analysis from defendant's connection 

with Oregon to defendant's connection with plaintiff; yet this is 

precisely what the Court found improper in Walden. Here, 

defendant's intentional conduct did not create the necessary 

contacts with the forum to allow for the exercise of specific 

jurisdiction. It is undisputed that defendant's conduct did not 

occur within the State of Oregon. Indeed, plaintiff alleges the 

reproduction and display of the Copyrighted Works took place in 

Maryland, Massachusetts, and on defendant's websites. 

The "maintenance of a passive website alone cannot satisfy the 

express aiming prong"; only operating "a passive website in 

conjunction with 'something more' - conduct directly targeting the 

forum - is sufficient." Marvix Photo, Inc. v. Brand Technologies, 

Inc., 647 F. 3d 1218, 1229 (9th Cir. 2011) (citations omitted). 

Courts consider multiple factors when determining if a defendant 

has done "something more," including: "the interactivity of 

defendant's website, the geographic scope of the defendant's 

commercial ambitions, and whether the defendant individually 

targeted a plaintiff known to be a forum resident." Id. (citation 

and internal quotations omitted). 

An analysis of these factors establishes that defendant's 

question is not where the plaintiff experienced a particular 

injury or effect but whether the defendant's conduct connects him 

to the forum in a meaningful way." Id. 

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Case 6:14-cv-01371-AA Document 17 Filed 03/24/15 Page 11 of 13
conduct lacked the requisite "something more." Defendant's websites 

have a low degree of interactivity. They allow a visitor to submit 

questions via a "contact us" page and sign up for an electronic 

newsletter but they do not allow visitors to purchase products 

online. See Willis v. Debt Care, USA, Inc., 2011 WL 7121288, *8 

(D.Or. Oct. 24, 2011) (defendant's website was passive because it 

only allowed customers to log-in and access their accounts, and 

maintained a "contact us" page) (citations omitted) . In addition, 

Richard Watson, defendant's general manager, testified that 

defendant's business is conducted almost exclusively in the 

Northeast and Mid-Atlantic regions of the United States. Watson 

Decl. ~ 2. Plaintiff has produced no evidence that defendant made 

sales in Oregon. There is also no evidence that defendant's alleged 

infringement was targeted at plaintiff's customers or other Oregon 

residents. These facts show a general absence of commercial 

ambition in this forum, as well as a lack of individualized 

targeting directed at Oregon and its citizens. 

In sum, plaintiff failed to establish that defendant 

"expressly aimed" its conduct at Oregon. Because plaintiff did not 

satisfy the first prong of the minimum contacts analysis, the Court 

need not examine the other two elements to determine that specific 

jurisdiction is lacking. Schwarzenegger, 374 F.3d at 802. 

III. Motion to Transfer Venue 

Even assuming defendant was subject to personal jurisdiction 

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Case 6:14-cv-01371-AA Document 17 Filed 03/24/15 Page 12 of 13
in this District, a transfer of venue would nonetheless be 

appropriate. See Jones v. GNC Franchising, Inc., 211 F.3d 495, 498-

99 (9th Cir.), cert. denied, 531 U.S. 928 (2000) (articulating nonexclusive factors in determining whether to transfer venue pursuant 

to 28 U.S.C. § 1404(a)). Initially, this action could have been 

instituted in the District of Maryland because defendant is a 

Maryland corporation. 28 U.S.C. 1400(a). Moreover, to the extent 

applicable, the factors determining venue weigh in favor of a 

transfer, as defendant has no contact with this forum outside of 

its dispute with plaintiff. As a result, defendant would be 

inconvenienced to a degree that outweighs the deference typically 

given to a plaintiff's choice of forum. For these reasons, 

defendant's motion is granted. 

CONCLUSION 

Plaintiff's request for judicial notice (doc. 11) is GRANTED. 

Defendant's motion to dismiss or transfer venue (doc. 8) is 

GRANTED. This case shall be transferred to the District of 

Maryland. 

IT IS SO ORDERED. 

Dated this ~11Jay of March, 2015. 

Ann Aiken 

United States District Judge 

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