Hogen v. X Corporation et al

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