DEAN L. KNUTH v. CAP PATROL, LLC OHIO; CAP PATROL, LLC KENTUCKY; GEORGE E. THURNER, III
Case No. 23-cv-1676-BAS-DEB
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
August 1, 2025
Hon. Cynthia Bashant, Chief Judge
- DENYING MOTION TO DISMISS (ECF No. 33);
- GRANTING IN PART, DENYING IN PART MOTION TO STRIKE (ECF No. 33);
- DENYING MOTION FOR RECONSIDERATION (ECF No. 38)
In this case, Plaintiff has already filed a Complaint (ECF No. 1) and an Amended Complaint as a matter of right (ECF No. 4). The Court dismissed the Amended Complaint with leave to amend, outlining very specific deficiencies in the Amended Complaint, including those related to standing, personal jurisdiction, venue, and failure to allege a claim under
Plaintiff has filed a Third Amended Complaint (“TAC“). (ECF No. 31.) Plaintiff‘s TAC brings allegations against Defendants George E. Thurner, III (“Thurner“), Cap Patrol, LLC Ohio (“Cap Patrol Ohio“), and Cap Patrol, LLC Kentucky (“Cap Patrol-KY“) for “violation of common law and
Defendant again moves to dismiss and moves to strike Plaintiff‘s request for punitive damages and attorneys’ fees (ECF No. 33), which Plaintiff opposes (ECF No. 34), and Defendant replies (ECF No. 37). In addition, after briefing on the Motion to Dismiss was completed, Plaintiff filed a Motion for Reconsideration under
The Court finds this motion suitable for determination on the papers submitted and without oral argument. See CivLR 7.1(d)(1). For the reasons stated below, the Court DENIES the Motion to Dismiss (ECF No. 33), GRANTS in part and DENIES in part the Motion to Strike (ECF No. 33), and DENIES the Motion for Reconsideration. (ECF No. 38).
I. BACKGROUND
The facts leading to this dispute have been summarized in earlier orders. Of note to this Motion, Plaintiff now adds allegations with respect to both of the Cap Patrol Defendants. With respect to Cap Patrol-KY Plaintiff now alleges that it “operates an interactive website . . . that promotes Plaintiff‘s Sandbagging Systems” throughout the world, including California and this District. (TAC ¶ 21). This interactive website “invites contact from prospective customers, including customers located in California and this District.” (Id. ¶ 22.) Cap Patrol-KY “promotes and advertises” the website “to golfers and golf clubs in California, and specifically in this District.” (Id. ¶ 28.) And finally, Cap
With respect to Cap Patrol, Ohio LLC (“Cap Patrol-OH“), Plaintiff additionally alleges that Cap Patrol-OH has four golf club customers in San Diego and fifty-seven golf customers in California. (Id. ¶ 36.) And Plaintiff similarly alleges that Cap Patrol-OH has “contacted golf clubs and golfers within California, and specifically within this District, to advertise, promote and sell Plaintiff‘s Sandbagging Systems . . . .” (Id. ¶ 44.)
II. LEGAL STANDARD
Pursuant to
In ruling on a motion to dismiss, a court may consider only “the complaint, materials incorporated into the complaint by reference, and matters [subject to] judicial notice.” UFCW Loc. 1500 Pension Fund v. Mayer, 895 F.3d 695, 698 (9th Cir. 2018) (citation omitted). Mere “conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss.” Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004) (citations omitted); accord Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (“[T]he tenet that a court must accept a complaint‘s allegations as true is inapplicable to threadbare recitals of a cause of action‘s elements, supported by mere conclusory statements.“).
III. ANALYSIS
Defendants make several arguments in their Motion to Dismiss. First, Defendants argue that Plaintiff still fails to allege personal jurisdiction with respect to the two Cap Patrol defendants. Defendants claim that Plaintiff‘s sole allegations of a website, a
Second, Defendants argue that the remaining causes of action are preempted by patent law. And, finally, Defendant requests that the damages requested under
A. Motion to Dismiss
1. Personal Jurisdiction
“Where a defendant moves to dismiss a complaint for lack of personal jurisdiction, the plaintiff bears the burden of demonstrating that jurisdiction is appropriate.” Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004). If the court considers the motion on written materials alone, rather than a full-blown evidentiary hearing, the plaintiff need make only a “prima facie showing” of personal jurisdiction to survive the motion. Id. Whichever allegations in the complaint are uncontroverted, the court must take as true. Id. Any conflict between the parties as to these facts must be resolved in the plaintiff‘s favor. Id. (citing Bancroft & Masters, Inc. v. Augusta Nat. Inc., 223 F.3d 1082, 1087 (9th Cir. 2000), holding modified by Yahoo! Inc. v. La Ligue Contre Le Racisme Et L‘Antisemitisme, 433 F.3d 1199 (9th Cir. 2006) (“Because the prima facie jurisdictional analysis requires us to accept the plaintiff‘s allegations as true, we must adopt [the plaintiff‘s] version of events . . . .“).
The Ninth Circuit employs a three-part test to determine whether a defendant‘s contacts with the forum state are sufficient to subject it to specific jurisdiction. Ballard v. Savage, 65 F.3d 1495, 1498 (9th Cir. 1995). Under this three-part inquiry, specific jurisdiction exists only if: (1) the out-of-state defendant purposefully availed itself of the
The plaintiff bears the burden of satisfying the first two prongs of this specific jurisdiction test. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 2004). “‘Bare bones’ assertions of minimum contacts with the forum or legal conclusions unsupported by factual allegations will not satisfy a plaintiff‘s pleading burden.” Swartz v. KPMG, LLP, 476 F.3d 756, 766 (9th Cir. 2007). “But uncontroverted allegations [in the complaint] must be taken as true” and any conflicts between the parties should be resolved in the plaintiff‘s favor. Ranza v. Nike, Inc., 793 F.3d 1059, 1068 (9th Cir. 2015).
An interactive website alone is insufficient to show purposeful availment. Herbal Brands, Inc. v. Photoplaza, Inc., 72 F.4th 1085, 1091 (9th Cir. 2023), cert. denied, 144 S. Ct. 693 (2024). “But operating a[n interactive] website ‘in conjunction with something more—conduct directly targeting the forum—is sufficient’ to satisfy the express aiming prong.” Id. at 1092 (quoting Mavrix Photo, Inc. v. Brand Techs., Inc., 647 F.3d 1218, 1229 (9th Cir. 2011)). The Court should look at “whether the site had a forum-specific focus or the defendant exhibited an intent to cultivate an audience in the forum.” Id.
“If the plaintiff succeeds in satisfying both of the first two prongs, the burden then shifts to the defendant to ‘present a compelling case’ that the exercise of jurisdiction would not be reasonable.” Id. “If any of the three requirements is not satisfied, jurisdiction in the forum would deprive the defendant of due process of law.” Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1155 (9th Cir. 2006).
In this case, Plaintiff alleges Cap Patrol-KY operated an interactive website. (TAC ¶¶ 21, 22.) The “something more” alleged by Plaintiff is that Cap Patrol-KY “has contacted golf clubs and golfers” within this district “to advertise, promote and sell Plaintiff‘s Sandbagging System.” (Id. ¶ 34.) With respect to Cap Patrol-OH, Plaintiff similarly alleges that it “has contacted golf clubs and golfers” within this district “to advertise,
Although it is a close call, the Court finds these allegations, assuming they are true, as the Court must, are sufficient to show both Defendants purposely availed themselves of the privilege of conducting business in this forum. Plaintiff alleges Defendants were specifically targeting golf clubs in this district and, with respect to Cap Patrol-OH, this targeting bore four golf club customers within the district. This evidences an intent to cultivate customers in this forum. In addition, since the allegations involve unauthorized use of Plaintiff‘s name when marketing this system in this forum, and misappropriation of Plaintiff‘s Sandbagging System, which was marketed within this forum, the Court finds these claims arose out of forum-related activities.
The burden then shifts to Defendants to show that the exercise of jurisdiction would be unreasonable. Since Defendants make no arguments about unreasonableness, the Court finds Defendants have failed to meet this burden.
Accordingly, Defendants’ motion to dismiss for lack of personal jurisdiction is DENIED.
2. Preemption
Defendants argue Plaintiff‘s remaining claims of unauthorized use of name in violation of
The federal Copyright Act defines the rights of copyright holders. See Laws v. Sony Music Ent., Inc., 448 F.3d 1134, 1137 (9th Cir. 2006). Courts have adopted a two-part test
Use of another‘s name for purposes of advertising or selling or soliciting under
In addition, although the federal Copyright Act “preempts all state copyright law, it does not preempt all state common law protecting intellectual property.” U.S. Golf Ass‘n v. Arroyo Software Corp., 69 Cal. App. 4th 607, 621 (1999) (emphasis omitted). “[S]tate common law claims seeking to protect subject matter not copyrightable under the Act are not preempted.” Id. at 622. Therefore, since “processes” and “systems” do not fall within the category of copyrightable material, allegations of misappropriation of these systems are not preempted by copyright law. Id.
Plaintiff‘s TAC alleges that Defendants used his name to promote their sandbagging systems without his permission. (TAC ¶¶ 134–62 (Claim I).) Since this claim is targeting Defendants’ non-consensual use of his name in advertising, the claim does not fall within the subject matter of the Federal Copyright Act and is not preempted.
Similarly, Plaintiff‘s TAC alleges Defendants misappropriated his processes or systems. The Court previously found this did not fall within the category of copyrightable material. Hence, it does not fall within the subject matter of the Federal Copyright Act, and the state law claim is not preempted. Defendants’ Motion to Dismiss on preemption grounds is DENIED.
Defendants move under
In this case, Plaintiff provides notice to Defendants that, as a result of the conduct alleged, he will be seeking punitive damages and attorneys’ fees. (TAC ¶ 179.) Plaintiff then adds “See California Sections 3426.3 and 3426.4.” (Id..) Defendants argue, and Plaintiff does not seem to dispute, that these code sections refer to damages for trade secrets. Because Plaintiff alleges no causes of action for a violation of trade secrets, the reference to the code sections is “immaterial” and “impertinent.” Hence, the Court will strike the reference to the
C. Motion for Reconsideration
Plaintiff moves for reconsideration of the Court‘s earlier order of dismissal under
Other than disagreeing with the Court‘s previous order dismissing several causes of action, Plaintiff appears primarily to argue that the Court‘s dismissal of two of the causes of action (copyright and trademark infringement) without leave to amend resulted in a manifest injustice.
However, in the first order dismissing these causes of action, the Court gave very specific guidance to Plaintiff as to what must be alleged to avoid further dismissal. With respect to the allegation of copyright infringement, the Court explained:
“[I]t is unclear from the FAC what [plaintiff] has copyrighted.” . . . [G]olf handicap systems are “not the type of subject matter for which copyright protection is available.” In any Amended Complaint, Plaintiff must explain what literary, graphic, artistic description, explanation or illustration of this system he is relying on to claim a copyright. To the extent Plaintiff is claiming that Defendants have copied the text of his Tournament Point System, there must be allegations supporting this claim. Instead, Plaintiff alleges
Defendants infringed on his “systems.” Such a claim is not cognizable under copyright law.”
(ECF No. 21 at 15 (citation omitted).)
With respect to trademark infringement, the Court explained: “Missing, however, are factual allegations that plausibly show consumers in the relevant marketplace would be confused by” the part of Defendants’ website that claims its product incorporates Plaintiff‘s system. (Id. at 17.) “Plaintiff must plausibly allege consumers would have believed Plaintiff sponsored or endorsed Defendants’ service. . . . Any amended complaint must include sufficient allegations to support consumer confusion.” (Id. at 18.) And yet, despite, this very specific guidance, Plaintiff filed a SAC with virtually the same allegations. The Court was forced to conclude that Plaintiff did so because he could not allege sufficient facts to support these two causes of action.
Notably absent from the Motion for Reconsideration are any additional alleged facts that would lead the Court to conclude that Plaintiff could have alleged additional facts in an amended complaint. Although Plaintiff argues dismissal without leave to amend resulted in a manifest in justice, he fails to explain what he would allege in any amended complaint that would lead to a different result.
Hence, the Motion for Reconsideration is DENIED.
IV. CONCLUSION
For the reasons stated above, Defendants’ Motion to Dismiss is DENIED. (ECF No. 33.) Defendants’ Motion to Strike is granted in part: any reference to
IT IS SO ORDERED.
DATED: August 1, 2025
Hon. Cynthia Bashant, Chief Judge
United States District Court