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Envirocare Technologies, LLC v. Roman Simanovsky and Alex Shlaen (D/B/A Nw Class Vacuum

June 4, 2012


The opinion of the court was delivered by: Seybert, District Judge:


Plaintiff EnviroCare Technologies, LLC ("Plaintiff" or "Envirocare") commenced this action on July 19, 2011 against Roman Simanovsky and Alex Shlaen d/b/a NW Class Vacuum Supplies (collectively, "Defendants") asserting a trademark infringement claim and various state law claims arising out of Defendants' sale of ENVIROCARE-branded vacuum supplies. Presently before the Court is Defendants' motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction and pursuant to Rule 12(b)(3) for improper venue, or, in the alternative, requesting a transfer of venue pursuant to 28 U.S.C. § 1404(a). For the reasons stated below, Defendants' motion is DENIED.


Plaintiff is a New York limited liability company that manufactures, markets, and sells vacuum cleaner bags, filters, and other replacement accessories under the registered trademark ENVIROCARE. (Compl. ¶¶ 10, 14.) It is organized under the laws of New York, and its principle place of business is in Bohemia, New York. (Compl. ¶ 1.) Defendants, both Oregon residents, operate an "internet store" called NW Class, through which they market and sell accessories for vacuum cleaners, including ENVIROCARE-branded products. (Compl. ¶¶ 2-4, 17; Dunne Decl. Exs. 1-2; Shlaen Aff. ¶ 1(A), (D), (F); Simanovsky Aff. ¶ 1(A),

(D), (F).) This "internet store" is not a physical store or even an independent website. Rather, customers access it through "storefronts" hosted by and (Dunne Decl. ¶¶ 2-3 & Exs. 1, 2.) As of October 3, 2011, NW Class had 40,312 reviewed transactions on and 5,658 transactions on (Dunne Decl. ¶¶ 2-3 & Exs. 1, 2.)

In June 2011, Greg Seck, the president and founder of Envirocare, had his son purchase an ENVIROCARE-branded vacuum bag from Defendants' Amazon-based store. (Seck Decl. ¶ 4.) The order confirmation stated that the product was "[s]old by Roman Simanovsky," and the item was shipped by Amazon to Plaintiff's office in Bohemia, New York. (Seck Decl. Ex. 1.)*fn1 After receiving the vacuum bag, Mr. Seck compared it to Envirocare's vacuum bags and "several discrepancies were detected," which, according to Mr. Seck, "indicate[d] that the bags shipped by Roman Simanovsky and NW Class were not genuine Envirocare-branded products." (Seck Decl. ¶ 5.) Plaintiff commenced this trademark infringement action shortly thereafter.

On September 20, 2011, Defendants moved to dismiss or, in the alternative, change venue. Plaintiff filed its opposition on October 4, 2011. Defendants did not file a reply.


Defendants move to dismiss on two grounds: for lack of personal jurisdiction and for improper venue. In the alternative, Defendants move for a change of venue in the interest of justice.

I. Lack of Personal Jurisdiction

A. Legal Standard under Rule 12(b)(2)

A plaintiff bears the burden of demonstrating personal

jurisdiction over the persons or entities sued. Penguin Grp. (USA), Inc. v. Am. Buddha, 609 F.3d 30, 34 (2d Cir. 2010) (citation omitted). The Court has "considerable procedural leeway" in resolving these motions: it may decide the motion on the basis of the parties' affidavits, "permit discovery in aid of the motion, or . . . conduct an evidentiary hearing on the merits of the motion." Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981). A plaintiff's precise burden depends on how the Court elects to address the jurisdiction issue. Id. Short of a "full-blown evidentiary hearing on the motion, the plaintiff need make only a prima facie showing of jurisdiction through its own affidavits and supporting materials." Id. While a plaintiff will eventually have to establish jurisdiction by a preponderance of the evidence at trial or a pretrial evidentiary hearing, "until such a hearing is held, a prima facie showing suffices, notwithstanding any controverting presentation by the moving party, to defeat the motion." Id.

"A plaintiff can make this showing through [its] own affidavits and supporting materials, containing [a good faith] averment of facts that, if credited . . . would suffice to establish jurisdiction over the defendant." In re Methyl Tertiary Butyl Ether Prod. Liab. Litig., 399 F. Supp. 2d 325, 330 (S.D.N.Y. 2005) (alterations in original) (quoting Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 208 (2d Cir. 2001)) (internal quotation marks omitted). When the issue is addressed on affidavits, all allegations are construed in the light most favorable to the plaintiff and all doubts are resolved in the plaintiff's favor. Id.; DiStefano v. Carozzi N. Am., Inc., 286 F.3d 81, 85 (2d Cir. 2001). Thus, the Court accepts Plaintiff's evidence as true. See In re Ski Train Fire in Kaprun, ...

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