Benjamin T Hogen v. X Corporation, et al.

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Benjamin T Hogen, No. CV-24-03308-PHX-MTL 10 Plaintiff, ORDER 11 v. 12 X Corporation, et al., 13 Defendants. [14] 15 Before the Court are Defendant Meta Platforms, Inc.’s (“Meta”) Motion to Dismiss 16 (Doc. 32) and Defendant X Corp.’s Motion to Dismiss (Doc. 24). The Court will grant both 17 Motions. 18 I. BACKGOUND 19 The following facts are taken from Plaintiff Benjamin T Hogen’s First Amended 20 Complaint (“FAC”) (Doc. 30). This case arises out of a trademark dispute concerning 21 Plaintiff’s registered word mark PHRONT. (See generally id.) Under the PHRONT name, 22 Plaintiff offers “anonymous spiritual consulting services” on various online platforms. (Id. 23 ¶¶ 23-26.) Through preaching on these platforms, he has amassed a community of 24 thousands of users who listen to him preach and occasionally wish to purchase his spiritual 25 consulting services. (Id. ¶¶ 25-27.) But because anonymity is critical, users can’t connect 26 with Plaintiff directly. (Id. ¶ 27.) Users must instead first “join[] the PHRONT spiritual 27 community.” (Id.) 28 To do so, users enter PHRONT into various search engines and, by nature of its 1 unique name, expect to be directed to Plaintiff and the PHRONT community. (Id. 2 ¶¶ 29-30.) These search results yield Facebook, Instagram, and X accounts with the 3 username PHRONT. (Id. ¶ 30.) These accounts appear official and post various statements 4 relating to and on behalf of the PHRONT community. (Id. ¶¶ 39-43.) But despite his 5 trademark, these accounts are controlled by unknown third parties—not Plaintiff. (Id. 6 ¶¶ 19-21, 30, 39.) Troubled by this, Plaintiff twice notified Defendants that he holds the 7 PHRONT trademark and asked them to reassign the PHRONT usernames to him. (Id. 8 ¶¶ 5, 44.) Defendants have not done so. (Id. ¶ 45.) Plaintiff then initiated this suit pro se 9 seeking declaratory and injunctive relief. (Id. ¶¶ 44, 56.) 10 Plaintiff alleges that by permitting third parties to use PHRONT usernames on their 11 platforms Defendants have directly, or in the alternative contributorily, infringed his 12 trademark. (Id. ¶¶ 32-55.) Defendants moved to dismiss his original complaint for lack of 13 personal jurisdiction and for failure to state a claim for which relief could be granted. 14 (Docs. 13, 18.) After some unorthodox motion practice, Plaintiff filed the FAC with leave 15 of the Court. (Docs. 21, 25, 29, 30.) Defendants moved to dismiss the FAC on the same 16 grounds. (Docs. 24, 32, 33.) Plaintiff responded. (Doc. 34.) Defendants replied. (Docs. 35, 17 36.) 18 Because this Court lacks personal jurisdiction over Defendants it will grant 19 Defendants’ Motions.1 Thus, the Court will not address the merits. 20 II. LEGAL STANDARDS 21 Under the Federal Rules of Civil Procedure, a defendant may move “to dismiss the 22 complaint for lack of personal jurisdiction.” Data Disc, Inc. v. Sys. Tech. Assocs. Inc., 557 23 F.2d 1280 , 1285 (9th Cir. 1977). In response, a plaintiff bears the burden of establishing 24 personal jurisdiction. Herbal Brands, Inc. v. Photoplaza, Inc., 72 F.4th 1085, 1090 (9th 25 Cir. 2023). “The plaintiff cannot simply rest on the bare allegations of its complaint, but 26 uncontroverted allegations in the complaint must be taken as true.” Mavrix Photo, Inc. v. [27] 1 The Court finds a hearing unnecessary because the parties fully briefed the issue, and oral 28 argument would not aid the decisional process. Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998); see also Fed. R. Civ. P. 78(b); LRCiv 7.2(f). 1 Brand Techs., Inc., 647 F.3d 1218, 1223 (9th Cir. 2011) (citation modified). Pro se 2 pleadings are construed liberally. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). “A 3 liberal construction of a pro se complaint, however, does not mean that the court will 4 supply essential elements of a claim that are absent from the complaint.” Boquist v. 5 Courtney, 32 F.4th 764 , 774 (9th Cir. 2022). Here, the Court looks to the FAC as the 6 operative complaint. See Askins v. U.S. Dep’t of Homeland Sec., 899 F.3d 1035, 1043 (9th 7 Cir. 2018). 8 When no applicable federal statute confers personal jurisdiction upon a district 9 court, the district court applies the law of the state in which the district court sits. Herbal 10 Brands, 72 F.4th at 1089 . Arizona’s long-arm statute allows courts to exercise personal 11 jurisdiction over a person to the extent allowed by the Arizona and United States 12 Constitutions. Ariz. R. Civ. P. 4.2(a). Arizona’s constitutional requirements for personal 13 jurisdiction are coextensive with the limits of federal due process. Herbal Brands, 72 F.4th 14 at 1089. 15 For a court to have personal jurisdiction over a defendant, federal due process 16 requires that nonresident defendants have “certain minimum contacts” with the forum state 17 so that the lawsuit “does not offend traditional notions of fair play and substantial justice.” 18 Briskin v. Shopify, Inc., 135 F.4th 739, 750 (9th Cir. 2025) (en banc) (citation modified); 19 Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). Personal jurisdiction can be either 20 general or specific. Briskin, 135 F.4th at 750 . 21 General jurisdiction extends to any lawsuit where a defendant is “essentially at 22 home in the forum state.” Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 23 915, 919 (2011). Corporations are “essentially at home” in their states of incorporation, 24 their principal places of business, or where they otherwise have “continuous and systematic 25 contacts.” Daimler AG v. Bauman, 571 U.S. 117, 137-39 (2014). Neither Defendant is 26 incorporated in Arizona nor has its principal place of business in Arizona. (Doc. 30 ¶¶ 2-3.) 27 And “[o]nly in an ‘exceptional case’ will general jurisdiction be available” outside the state 28 of incorporation or the principal place of business. Martinez v. Aero Caribbean, 764 F.3d 1 1062, 1070 (9th Cir. 2014) (quoting Daimler, 571 U.S. at 139 n.19)). Plaintiff’s 2 jurisdictional allegations do not suggest that Defendants are otherwise essentially at home 3 in Arizona. Thus, this Court does not have general jurisdiction over Defendants. 4 The Court can then only exercise jurisdiction over Defendants if there is specific 5 jurisdiction. Specific jurisdiction extends to lawsuits where the defendant’s suit-related 6 conduct creates a substantial connection to the forum state. Walden v. Fiore, 571 U.S. 277 , 7 284 (2014). The Ninth Circuit analyzes specific jurisdiction under a three-prong test: 8 (1) The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or 9 resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the 10 forum, thereby invoking the benefits and protections of its laws; [11] (2) the claim must be one which arises out of or relates to the 12 defendant's forum-related activities; and 13 (3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable. [14] 15 Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 2004). If Plaintiff 16 establishes the first two prongs, the burden shifts to Defendants to show that the third is 17 not met. Id. 18 III. DISCUSSION 19 Plaintiff contends that Defendants are subject to personal jurisdiction in this district 20 for three reasons. First, Plaintiff put Defendants on notice of his trademark and their 21 infringement before filing this lawsuit. (Doc. 30 ¶ 5.) Second, Defendants assist advertisers 22 in targeting Arizona residents, and Defendants conduct business in Arizona. (Id. ¶¶ 10-16.) 23 Third, Defendants knew that permitting their users to use PHRONT usernames would 24 significantly impact the Arizona marketplace. (Id. ¶¶ 6-9.) The Court will address each of 25 these jurisdictional allegations in turn. 26 A. Plaintiff’s Notice to Defendants 27 Plaintiff first argues that this Court has personal jurisdiction over Defendants 28 because he put them on notice of their alleged infringement before filing the lawsuit, yet 1 they continued to illegally use his mark. (Id. ¶ 5.) But notice cannot create personal 2 jurisdiction because notifying Defendants was Plaintiff’s action—not Defendants’. See 3 Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 417 (1984) 4 (“[U]nilateral activity of another party or a third person is not an appropriate consideration 5 when determining whether a defendant has sufficient contacts with a forum State to justify 6 an assertion of jurisdiction.”); Walden, 571 U.S. at 284 . Thus, this allegation of notice is 7 not relevant to the Court’s consideration of personal jurisdiction. 8 B. Defendants’ Arizona-Specific Advertising and Contracts 9 Plaintiff’s next jurisdictional allegations focus on Defendants’ connections with 10 advertisers as well as Defendants’ own commercial transactions in Arizona. Plaintiff 11 explains that Defendants use browser, device, and location data to allow advertisers to 12 target users that may be particularly interested in specific products or services. (Doc. 30 13 ¶¶ 10-11.) Plaintiff alleges that Defendants take steps to alter users’ advertising 14 experiences to comply with local law. (Id. ¶ 12.) He alleges that Defendants can target 15 Arizona residents specifically and allow their advertisers to do the same. (Id. ¶ 13.) And 16 Defendants customize their website, and advertisers customize their ads to be 17 Arizona-specific. (Id. ¶¶ 14, 16.) Finally, Defendants have various contracts that 18 contemplate this type of targeted advertising, and Defendants engage in various types of 19 Arizona-specific commerce. (Id. ¶¶ 11, 15.) Plaintiff believes these allegations rise to 20 purposeful direction and/or availment and meet the first prong of specific jurisdiction. (Id. 21 ¶¶ 10, 12.) 22 But without reaching the first Schwarzenegger prong, Plaintiff’s claims do not meet 23 the second because they do not arise out of or relate to these alleged forum-related 24 activities. See Schwarzenegger, 374 F.3d at 802 . Crucially, Plaintiff does not allege that 25 the PHRONT mark has appeared in any advertising. And Plaintiff does not allege that any 26 of Defendant’s contracts or agreements acknowledge the PHRONT mark in any way. At 27 most, Plaintiff suggests that an advertiser could request to “target only users in Arizona 28 aged 18-25 interested in spiritual consulting” on Defendants’ platforms. (Doc. 30 ¶ 11.) 1 But Plaintiff does not allege that any advertisers or third parties have done so—much less 2 the individuals that use the PHRONT usernames. 3 Plaintiff’s other allegations, suggesting that Defendants do business in Arizona and 4 advertisers generally target Arizona residents on Defendants’ platforms, are also unrelated. 5 Again, specific jurisdiction requires more than forum-related activities. See 6 Schwarzenegger, 374 F.3d at 802 . Plaintiff must also allege that his claims arise out of or 7 relate to those activities. Id. He has not done so. Because these jurisdictional allegations 8 are unrelated to his claims, they have no bearing on whether this Court has specific personal 9 jurisdiction over Defendants. 10 C. Third Parties’ Use of PHRONT Usernames on Defendants’ Platforms 11 Finally, Plaintiff alleges that by permitting third parties to use PHRONT usernames 12 on their platforms “Defendants knew their continued actions would have a significant 13 impact on the Arizona marketplace (for instance, by causing confusion among local 14 consumers regarding the origin of goods).” (Doc. 30 ¶ 6.) He also notes that despite 15 allowing third parties to use the PHRONT usernames, Defendants retain the proprietary 16 rights over the usernames and accounts. (Id. ¶¶ 7-9.) 17 Unlike the previous allegations, Plaintiff’s infringement claims do arise out of 18 Defendants’ alleged misappropriation of PRHONT usernames. So, the first 19 Schwarzenegger prong is met. But to satisfy his initial burden, Plaintiff must still show that 20 Defendants either purposefully directed this misappropriation to Arizona or have somehow 21 purposefully availed themselves of Arizona’s laws. Schwarzenegger, 374 F.3d at 802 . 22 There is no indication that Defendants availed themselves of any benefits or protections of 23 Arizona by allegedly misappropriating the PHRONT usernames. (See Doc. 34 at 8-9 24 (Plaintiff recites the legal standard for purposeful availment but not apply it).) Plaintiff 25 does, however, argue that Defendants have purposefully directed their actions at Arizona. 26 (Id. at 9-10.) 27 Courts within the Ninth Circuit analyze purposeful direction under the test set out 28 in Calder v. Jones, 465 U.S. 783 (1984). Briskin, 135 F.4th at 751 (calling this the Calder 1 effects test, which “focuses on the forum in which the defendant’s actions were felt, 2 whether or not the actions themselves occurred within the forum”). This requires that a 3 defendant “(1) commit an intentional act, that is (2) expressly aimed at the forum state, and 4 (3) which causes harm that the defendant knows will be suffered in the forum state.” 5 Briskin, 135 F.4th at 751 . Plaintiff describes Defendants’ actions as both negligent and 6 intentional. (Doc. 34 at 9-10.) So, the Court will assume without deciding that the first 7 Calder effects element is met. But the Court cannot conclude that the other two elements 8 are met because this allegation is entirely conclusory. 9 Interactive websites, like Defendants’, expressly aim wrongful conduct toward a 10 forum state when “its contacts are its own choice and not random, isolated, or fortuitous, 11 even if that platform cultivates a nationwide audience for commercial gain.” Briskin, 135 12 F.4th at 758 (citation modified). In Briskin, the Ninth Circuit found there was specific 13 jurisdiction over Shopify where it allegedly misappropriated users’ data through embedded 14 tracking software. Id. at 746. Shopify argued that the effect on the plaintiff was “mere 15 happenstance” because it was “agnostic” as to a user’s location: it data-mined everyone, so 16 it could not have targeted the California user specifically. Id. at 756-57. But the court 17 rejected that argument. Because the data-mining happened on the plaintiff’s device in 18 California, Spotify knew the device was in California, and it was doing so in violation of 19 California law, Spotify had expressly aimed its actions at California, thus there was specific 20 jurisdiction. Id. at 756-60. 21 Here, Plaintiff does not allege where the users of the PHRONT usernames are 22 located, or if the accounts have been used in Arizona. Instead, Plaintiff’s only relevant 23 allegation is that Defendants knew their misappropriation of the usernames would impact 24 the Arizona marketplace. But he does not explain how or why this is the case. This 25 conclusory allegation is not enough to establish personal jurisdiction. Swartz v. KPMG 26 LLP, 476 F.3d 756 (9th Cir. 2007) (“Mere bare bones assertions of minimum contacts with 27 the forum or legal conclusions unsupported by specific factual allegations will not satisfy 28 a plaintiff’s pleading burden.” (citation modified)); see also Discovery Land Co. LLC v. 1 Discovery Glob. LLC, No. CV-20-01940-PHX-MTL, 2021 WL 148641 , at *5 (D. Ariz. 2 Jan 15, 2021) (“[T]he Court will not construe the Complaint’s bare allegations, including 3 that [the defendants] intended to cause harm, have caused harm, and misappropriated 4 Plaintiff’s intellectual property, as sufficient to demonstrate personal jurisdiction.”). 5 Plaintiff has not pled allegations sufficient to establish personal jurisdiction over 6 Defendants. 7 IV. LEAVE TO AMEND 8 Under Federal Rule of Civil Procedure 15(a)(2), leave to amend should be given 9 freely “when justice so requires.” But it is not required when amendment “would cause the 10 opposing party undue prejudice, is sought in bad faith, constitutes an exercise in futility, or 11 creates undue delay.” Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149 , 1160 (9th Cir. 12 1989). “[I]t is the consideration of prejudice to the opposing party that carries the greatest 13 weight.” Eminence Cap., LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). 14 A district court has discretion whether to grant or deny leave to amend. Foman v. 15 Davis, 371 U.S. 178, 182 (1962). And “a district court’s discretion over amendments is 16 especially broad ‘where the court has already given a plaintiff one or more opportunities 17 to amend his complaint.’” DCD Programs, Ltd. v. Leighton, 833 F.2d 183 , 186 n.3 (1987) 18 (quoting Mir v. Fosburg, 646 F.2d 342, 347 (9th Cir. 1980)). 19 The Court granted Plaintiff’s first motion to amend his complaint. (Doc. 29.) But 20 the Court denied Plaintiff’s second motion to amend citing unfair prejudice to Defendants. 21 (Id.) The Court noted multiple good faith consultations between the parties where 22 Defendants conveyed various deficiencies with the original complaint, yet Plaintiff refused 23 to amend or otherwise respond. (Id. at 2.) Only after Defendants moved to dismiss did 24 Plaintiff first seek to amend his complaint. (Docs. 13, 18, 21.) And once Defendant X Corp. 25 moved to dismiss that proposed amended complaint, Plaintiff yet again moved to amend. 26 (Docs. 24, 25.) The Court voiced its concern of Plaintiff turning his complaint into a 27 “moving target” which would require Defendants to expend “significant time and resources 28 in order to understand and respond to [the complaint’s] evolving allegations.” (Doc. 29 at 1|| 2 (citing Hanks v. Harper, No. CV-19-03174-PHX-DLR, 2019 WL 6050229 , at *2 (D. 2|| Ariz. Nov. 15, 2019)).) Accordingly, the Court ordered that no further amendment will be 3 || allowed without a strong showing of good cause and leave of court. (Doc. 29 at 3.) 4 Now, both Defendants have asked the Court to dismiss the FAC with prejudice. 5|| (Doc. 24 at 17-18; Doc. 32 at 16-18.) Plaintiff has not sought to leave to amend, let alone || demonstrated good cause to do so. (Doc. 34.) Thus, the Court’s previous concerns of unfair prejudice to Defendants remain unchanged. Moreover, the pleading stage has now 8 || exceeded eight months. For these reasons the Court will not grant leave to amend and will 9|| dismiss the FAC with prejudice. V. CONCLUSION 11 Accordingly, 12 IT IS ORDERED granting Defendant X Corp.’s Motion to Dismiss (Doc. 24) and granting Defendant Meta’s Motion to Dismiss (Doc. 32). Plaintiff's First Amended □□ Complaint (Doc. 30) is dismissed with prejudice. 15 Dated this 24th day of October, 2025. [16] 18 Michael T. Liburdi 19 United States District Judge [28] -9-