SHI v. NM - Motion To Dismiss

Brewster H. Jamieson, ABA No.
8411122
Hans N. Huggler, ABA No. 1505025
LANE POWELL LLC
1600 A Street, Suite 304
Anchorage, Alaska 99501
Telephone: 907-264-3325
907-264-3318
Facsimile: 907-276-2631
Email: jamiesonb@lanepowell.com
hugglerh@lanepowell.com
Attorneys for Defendants Neiman Marcus Group, Inc. and
MyTheresa.com, GMBH
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA
SEALASKA HERITAGE INSTITUTE,
INC.; LILY HOPE, individual; KAHLIL
HUDSON, individual; and URSALA
HUDSON, individual;
Case No. 1:20-CV-00002-SLG
Plaintiffs,
v.
NEIMAN MARCUS GROUP LTD, LLC;

NEIMAN MARCUS GROUP, LLC;
NEIMAN MARCUS GROUP, INC.;
MYTHERESA.COM, GMBH; NEW
GUARDS GROUP, S.p.A.; ALANUI,
S.r.L.; ODDI HOLDING, S.r.L.;
CARLOTTA ODDI; FARFETCH.COM,
LTD.; FARFETCH.COM US, LLC; and
FARFETCH, LTD.;
Defendants.
DEFENDANTS NEIMAN MARCUS GROUP, INC. AND

MYTHERESA.COM GMBH’S MOTION TO DISMISS, OR ALTERNATIVELY,
MOTION TO TRANSFER TO THE U.S. DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF TEXAS WITH REFERENCE TO THE
U.S. BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF TEXAS
Case 1:20-cv-00002-SLG Document 27 Filed 09/14/20 Page 1 of 36

TABLE OF CONTENTS
I. Preliminary Statement .............................................................................................. 1
II. Background............................................................................................................... 2
III. Argument .................................................................................................................. 4
A. The Court Lacks Personal Jurisdiction Over NMGI and MYT. ................... 4
1. Applicable Law .................................................................................. 4
2. NMGI and MYT Have No Contacts with Alaska .............................. 5
3. Alleged Harm to Alaskan Residents Does Not Create
Jurisdiction ....................................................................................... 10
B. The Amended Complaint Should Be Dismissed Pursuant to Rule
12(b)(6) ........................................................................................................ 11
1. Applicable Law ................................................................................ 11
2. The Amended Complaint Fails to Satisfy Rule 8 Notice
Pleading ............................................................................................ 12
3. The Amended Complaint Fails to Allege IACA Standing .............. 15
4. The Amended Complaint Fails to Plead an IACA Claim ................ 19
5. Plaintiffs Fail to Allege Ownership of Trademark Rights ............... 22
6. Plaintiffs Fail to Plead Copyright Infringement of a Useful
Article ............................................................................................... 25
C. Venue is Improper in this District because the Defendants Do Not
Reside in this District and No Alleged Acts Occurred in this District........ 27
D. If the Court Does Not Dismiss This Case, It Should Be Transferred
to the U.S. Bankruptcy Court for the Southern District of Texas ............... 28
IV. Conclusion .............................................................................................................. 34
Defendants Neiman Marcus Group, Inc. and MyTheresa.Com GMBH’s Motion to Dismiss
Sealaska Heritage Institute, et al. v. Neiman Marcus Group, et al. (Case No. 1:20-cv-00002-SLG) Page ii of 34

Defendants Neiman Marcus Group, Inc. (“NMGI”) and MyTheresa.com, GmbH
(“MYT”), by the undersigned, move to dismiss this action with prejudice pursuant to
Rule 12(b) of the Federal Rules of Civil Procedure, or alternatively, to transfer this action
to the U.S. District Court for the Southern District of Texas with reference to the U.S.
Bankruptcy Court for the Southern District of Texas pursuant to 28 U.S.C. §§ 1404(a)
and 1412.
I. PRELIMINARY STATEMENT
The Amended Complaint should be dismissed in its entirety, with prejudice,
pursuant to Fed. R. Civ. P. 12(b)(2), 12(b)(6), 12(b)(1), and/or 12(b)(3).
First, this Court does not have personal jurisdiction over either NMGI or MYT
because the Amended Complaint—like Plaintiff SHI’s Original Complaint (Dkt. 1)—
fails to allege that NMGI and MYT (or any of the 11 named defendants in Italy,
Germany, and the U.K.) have any connection to Alaska whatsoever.
Second, the Amended Complaint does not contain plausible allegations sufficient
to state a claim against NMGI or MYT. Plaintiffs’ Amended Complaint relies almost
exclusively on group pleadings that fail to distinguish between the four “Neiman Marcus
Defendants,” and which fail the general pleading requirements of Fed. R. Civ. P. 8, all in
a misguided attempt to circumvent this Court’s Order staying claims against Neiman
Marcus Group LTD, LLC and Neiman Marcus Group LLC (“Debtor Defendants”) (Dkt.
18).
Third, venue is improper in this District. Plaintiffs do not allege that Defendants
Sealaska Heritage Institute, et al. v. Neiman Marcus Group, et al. (Case No. 1:20-cv-00002-SLG) Page 1 of 34

reside, operate, or conduct business in the District of Alaska, or that any alleged
infringement or unlawful conduct occurred in this District, and as discussed above, this
Court lacks jurisdiction over NMGI and MYT. Accordingly, the case must be dismissed
for improper venue.
However, if the Court finds that it is in the interest of justice to transfer (rather
than dismiss) this case, it should be transferred to the U.S. District Court for the Southern
District of Texas with reference to the U.S. Bankruptcy Court for the Southern District of
Texas. A Texas bankruptcy court has already been tasked with administering pre-petition
claims against Debtor Defendants and their affiliates. Because Debtor Defendants and
NMGI are “at home” in Texas, and because Plaintiff Sealaska Heritage Institute (“SHI”)
consented to jurisdiction there when it filed proofs of claims against the Debtor
Defendants, jurisdiction and venue are proper in the U.S. District Court for the Southern
District of Texas.
II. BACKGROUND
On April 20, 2020, Plaintiffs filed suit against four Neiman Marcus entities:
Neiman Marcus Group LTD, LLC, Neiman Marcus Group, LLC, NMGI, and MYT.
On May 7, 2020, various Neiman Marcus entities, including defendants Neiman
Marcus Group LTD, LLC and Neiman Marcus Group, LLC, filed for bankruptcy under
Chapter 11 of the U.S. Code in the United States Bankruptcy Court for the Southern
District of Texas. In re Neiman Marcus Group LTD LLC, No. 4:20-BK-32519.
On June 1, 2020, this Court stayed this action against the Debtor Defendants

pursuant to the suggestion of bankruptcy filed with this Court on May 22, 2020. See Dkt.
13. But Plaintiffs continued to prosecute this action against the Debtor Defendants and
their parent (NMGI) and affiliate (MYT), filing an Amended Complaint against them and
a slew of foreign defendants on August 29, 2020. See Dkt. 23.
The Amended Complaint filed by Plaintiff Sealaska Heritage Institute (“SHI”) and
three individual plaintiffs asserts four causes of action for violation of the Indian Arts and
Crafts Act (“IACA”), copyright infringement, false designation of origin or sponsorship,
and violation of the Alaska Unfair Trade Practices and Consumer Protection Act.
Plaintiffs allege copyright infringement of a work authored by deceased Tlingit artist
Clarissa Rizal titled “Discovering the Angles of An Electrified Heart” (the “Work”).
Am. Compl. at ¶¶ 6-7. Plaintiffs claim that the four “Neiman Marcus Defendants,” as a
bloc and without specifying which defendant did what, sold via online merchandise a
garment titled “Ravenstail Knitted Coat” (the “Coat”). Id. at ¶ 50. Plaintiffs claim the
Coat infringes the Work and that the use of “Ravenstail” in the name of the Coat falsely
implies that Tlingit, Haida, and Tsimshian people of Southeast Alaska created the Coat
because “Ravenstail” is a particular style of knitting “exclusively associated” with such
people. Id. at ¶¶ 1-2. SHI also claims that it bought two Coats online, one from the
“Neiman Marcus Defendants” and another from “<mytheresa.com/en-us/>” and sent
them to Alaska. Id. at ¶¶ 52-53.
NMGI and MYT bring this motion to dismiss on multiple grounds, including lack

of personal jurisdiction, failure to state a claim, lack of standing, and improper venue. 1
Alternatively, NMGI and MYT move to transfer this case to the U.S. District Court for
the Southern District of Texas with reference to the U.S. Bankruptcy Court for the
Southern District of Texas.
III. ARGUMENT
A. The Court Lacks Personal Jurisdiction Over NMGI and MYT.
1. Applicable Law
“When a defendant moves to dismiss for lack of personal jurisdiction, the plaintiff
bears the burden of demonstrating that the court has jurisdiction over the defendant,” and
the plaintiff must make “a prima facie showing of jurisdictional facts to withstand the
motion to dismiss.” Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1154 (9th Cir. 2006)
(citations omitted); see also Axiom Foods, Inc. v. Acerchem Int’l, Inc., 874 F.3d 1064,
1068 (9th Cir. 2017).
It is well settled that this Court has jurisdiction over non-Alaskan defendants only
if the defendant has “certain minimum contacts with” Alaska such that the “maintenance
of the suit does not offend traditional notions of fair play and substantial justice.” Int’l
Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (internal quotation marks and citation
omitted.) Personal jurisdiction can be either general or specific. See Daimler AG v.
Bauman, 571 U.S. 117, 127 (2014) (personal jurisdiction is general where the defendant
is essentially “at home” and specific where the suit arises out of defendant’s contacts). In
1
NMGI and MYT reserve their right to join co-defendants’ Rule 12(b) motions, if any.

either case, the “primary concern” is “the burden on the defendant.” Bristol-Myers
Squibb Co. v. Superior Ct. of Cal., San Francisco Cty., 137 S. Ct. 1773, 1780 (2017). 2
Accordingly, specific jurisdiction must be based on defendant’s suit-related
conduct, and specifically, contacts that “the ‘defendant himself’ creates with the forum
State,” Walden v. Fiore, 571 U.S. 277, 284 (2014) (emphasis in original) (citation
omitted), as opposed to “persons who reside there.” See Axiom, 874 F.3d 1068. Thus,
“the plaintiff cannot be the only link between the defendant and the forum.” Walden, 571
U.S. 285-86 (2014) (finding it is “insufficient to rely on a defendant’s ‘random,
fortuitous, or attenuated contacts’ or on the ‘unilateral activity’ of a plaintiff.”)
2. NMGI and MYT Have No Contacts with Alaska
The Amended Complaint relies on hollow labels and vague group pleadings to
allege personal jurisdiction over NMGI and MYT, e.g., “Defendants physically or
virtually came to this district,” see Am. Compl. at ¶ 35 (emphasis added) but fails to
allege how NMGI or MYT actually “came to this district.” Am. Compl. at ¶ 35.
Tellingly, Plaintiffs allege that “Defendants” are subject to personal jurisdiction in Alaska
2
There is no doubt that this Court lacks general jurisdiction over NMGI and MYT, as
Plaintiffs do not allege—nor can they—that NMGI or MYT operate in Alaska, have any
continuous or systematic contacts with Alaska, or are essentially “at home” in Alaska.
See Ranza v. Nike, Inc., 793 F.3d 1059, 1069 (9th Cir. 2015) (“[A] plaintiff invoking
general jurisdiction must meet an ‘exacting standard’ for the minimum contacts required”
and must show “affiliations so continuous and systematic as to render the foreign
corporation essentially at home in the forum State.”) (quoting Daimler, 571 U.S. 133 n.11
(internal quotation marks and alterations omitted); Gunn v. Wild, 771 F. App’x 392, 392
(9th Cir. 2019) (affirming dismissal of complaint against nonresident defendant because
“the district court lacked general personal jurisdiction over [defendant] because he is not
domiciled or otherwise at home in Nevada.”).

because they “misappropriated intellectual and other property directly from Plaintiffs
who are located in this judicial district.” Id. But subsequent allegations exclude NMGI
and MYT from the alleged copying, attributing it to other defendants instead. See id. at
¶ 81 (excluding NMGI or MYT from allegations of copying and alleging that “[u]pon
information and belief, sometime prior to August 2019 the Alanui Defendants accessed
the Work which resides in Alaska for the purpose of copying the Work.”).
Importantly, Plaintiffs do not actually allege that NMGI stole, advertised, offered,
or sold any Coats. Indeed, it is beyond dispute that NMGI is a holding company that
does not conduct retail sales operations of any kind. See Declaration of Kim Yee at ¶¶ 4–
5 (“Yee Decl.”). Accordingly, NMGI could not have played a role in the alleged
misappropriation, sales, offers, and advertisements of Coats, or any of the things broadly
attributed to “Defendants” or “Neiman Marcus Defendants” throughout the Amended
Complaint.
This Court therefore lacks specific jurisdiction over NMGI. See ThermoLife Int’l,
Ltd. Liab. Co. v. NetNutri.com Ltd. Liab. Co., 813 Fed. App’x 316, 318 (9th Cir. 2020)
(affirming dismissal of complaint for lack of personal jurisdiction where defendant’s
“uncontroverted declaration rejected any other purposefully directed activities toward
Arizona or its residents that could constitute sufficient contacts regarding [plaintiff’s]
claims.”); Axiom Foods, 874 F.3d at 1071 (“[i]t is well established that, as a general rule,
where a parent and a subsidiary are separate and distinct corporate entities, the presence
of one . . . in a forum state may not be attributed to the other.”) (citation omitted); see

also Mavrix Photo, Inc. v. Brand Techs., Inc., 647 F.3d 1218, 1223 (9th Cir. 2011) (“We
may not assume the truth of allegations in a pleading which are contradicted by
affidavit.”) (citation omitted).
Even if Plaintiffs had plausibly alleged that NMGI undertook any of the specific
acts described in the Amended Complaint, Plaintiffs’ allegations could not support
jurisdiction over NMGI or MYT because they rely solely on Plaintiffs’ own conduct. See
Am. Compl. at ¶ at 30, 51, 52 (alleging that “SHI . . . caused to be purchased and
delivered in Alaska” the Coats at issue) (emphasis added). Plaintiffs’ alleged actions—
placing orders with NMGI and MYT to send infringing Coats to this District—cannot
create personal jurisdiction over NMGI and MYT. See Axiom Foods, 874 F.3d at 1068-
69 (“defendant must [] ‘purposefully direct his activities’ toward the forum” and the
claim “must be one which arises out of or relates to the defendant’s forum-related
activities”).
In Axiom Foods, the Ninth Circuit dismissed for lack of jurisdiction a copyright
infringement case against nonresident defendants that allegedly sent newsletters with
infringing logos to 343 email addresses, 55 of which were associated with California
companies. See Axiom Foods, 874 F.3d at 1070. The Court found this “suit-related
conduct” did not “create a substantial connection with [the forum State].” Id. (quoting
Walden, 571 U.S. at 285. In doing so, the Court applied the Supreme Court’s decision in
Walden v. Fiore, finding that “Walden requires more” than the plaintiffs’ “rel[iance] on
the strength of their own forum connections, coupled with evidence suggesting

[defendant] knew of those connections and [plaintiffs’] ownership of the logos’
copyright” to establish specific personal jurisdiction. See Axiom Foods, 874 F.3d at
1069. The Ninth Circuit also acknowledged that Walden overruled those Ninth Circuit
cases that found “‘individualized targeting’ satisfies the express aiming requirement,”
see, e.g., Brayton Purcell LLP v. Recordon & Recordon, 606 F.3d 1124, 1130 (9th Cir.
2010), as those cases “impermissibly allow[ed] a plaintiff’s contacts with the defendant
and forum to drive the jurisdictional analysis.” Axiom Foods, 874 F.3d at 1069–70.
As in Axiom Foods, Plaintiffs plead no facts that NMGI and MYT targeted the
forum or created any “substantial connection” with Alaska. Walden, 571 U.S. at 284–85
(citation and emphasis omitted); see also In re Crash of Aircraft N93PC at Soldotna,
Alaska, No. 3:15-cv-0112-HRH, 2018 WL 4905006, at *3, *6 (D. Alaska Oct. 9, 2018)
(dismissing tort claims against nonresident defendant for lack of specific jurisdiction
where plaintiff failed to allege prima facie case that defendant purposefully directed
conduct toward Alaska by selling one product at issue to a resident of Alaska or when
two employees visited Alaska to give advice to a customer).
Though Plaintiffs allegedly bought two Coats from NMGI and MYT, it is telling
that Plaintiffs “caused [them] to be purchased and delivered in Alaska”—not NMGI or
MYT. See Am. Compl. at ¶ at 30, 52–53. And “[plaintiff’s] own connections to [the
forum] do not give the court personal jurisdiction over [defendant].” Gunn, 771 F. App’x
393 (9th Cir. 2019) (citing Walden, 571 U.S. at 290); Axiom Foods, 874 F.3d at 1068;
Boschetto v. Hansing, 539 F.3d 1011, 1017, 1020 (9th Cir. 2008) (a “lone transaction for

the sale of one item” through an online portal “does not establish that the Defendants
purposefully availed themselves of the privilege of doing business” in the forum); Specter
v. Texas Turbine Conversions, Inc., No. 3:17-CV-00194-TMB, 2019 WL 1396426, at *3
(D. Alaska Mar. 25, 2019) (the “mere placement of a product into the stream of
commerce,” without “something more,” does not constitute purposeful availment).
Even if NMGI and MYT had actual notice that Plaintiffs had ordered Coats to
Alaska through their websites—and had notice of Plaintiffs’ alleged rights (see Am.
Compl. at ¶ 51)—Plaintiffs can only base jurisdiction on a theory of “individualized
targeting,” which no longer satisfies the express aiming requirement in the Ninth Circuit.
Axiom Foods, 874 F.3d at 1069–70 (plaintiff’s contacts cannot “drive the jurisdictional
analysis.”)
Plaintiffs’ allegations that the Coats were “advertised” and “offered for sale” on
“highly interactive websites” fare no better. Am. Compl. ¶¶ 19, 35, 53. Mere
advertisements for the product at issue do not satisfy the “purposeful direction” test for
specific jurisdiction, even if “geo-located,” i.e., targeting the forum in question. See
AMA Multimedia, LLC v. Wanat, No. 18-15051, --- F.3d ----, 2020 WL 4745032, at *8
(9th Cir. 2020). And, in the Ninth Circuit, allegations that a website is “highly
interactive” are “insufficient to show a prima facie case of specific personal jurisdiction.”
ThermoLife, 813 F. App’x at 318 (“For an interactive website to confer personal
jurisdiction, a plaintiff must allege ‘something more.’”) (citations omitted).

3. Alleged Harm to Alaskan Residents Does Not Create
Jurisdiction
Plaintiffs allege that “Defendants have specifically directed their actions at
individuals and property in this judicial district, and Defendants are knowingly and
intentionally causing irreparable harm to Plaintiffs and property located in this judicial
district.” Am. Compl. at ¶ 35. Ninth Circuit precedent is clear, however, that after the
Supreme Court’s decision in Walden, allegations that a defendant “engaged in wrongful
conduct targeted at a plaintiff whom the defendant knows to be a resident of the forum
state” are, “without more, insufficient to comply with due process.” Axiom Foods, 874
F.3d 1064, 1069–70 (citation omitted).
A “mere injury to a forum resident is not a sufficient connection to the forum” to
satisfy Plaintiffs’ burden to show that the exercise of specific personal jurisdiction would
be proper. Picot v. Weston, 780 F.3d 1206, 1214 (9th Cir. 2015) (quoting Walden, 571
U.S. at 278). Again, the Ninth Circuit’s decision in Axiom Foods is instructive on this
point. In that copyright infringement suit against nonresident defendants, the Ninth
Circuit explicitly rejected the argument that jurisdiction is proper where the copyright
holder resides simply because that is where the harm from the alleged copyright
infringement is felt. Axiom Foods, 874 F.3d at 1069–70.
Nor is it sufficient that the “Southeast Alaska Native peoples” are located in
Alaska. See Am. Compl. at ¶ 35. As the Supreme Court explained in Walden, courts
analyze the defendant’s contacts “with the forum State itself, not the defendant’s contacts
with persons who reside there.” Walden, 571 U.S. at 285. Plaintiffs’ and non-parties’

presence in Alaska, therefore, cannot create personal jurisdiction over NMGI or MYT
where neither purposefully directed suit-related conduct toward Alaska.
B. The Amended Complaint Should Be Dismissed Pursuant to Rule

12(b)(6)
Plaintiffs do not plausibly allege the elements of each pleaded cause of action
against NMGI or MYT. Instead, Plaintiffs make conclusory and incomplete allegations
and attempt to rely on group pleading, lumping all 11 Defendants together (7 of which
are not even Neiman Marcus entities), rather than providing notice as to what each of
NMGI and MYT allegedly did or failed to do, and when. As a result, Plaintiffs fail to
state claims against NMGI and MYT, so the Amended Complaint should be dismissed.
1. Applicable Law
“[T]o survive a Rule 12(b)(6) motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its
face.” Carreira v. Duvall, No. 3:12-CV-00138-SLG, 2013 WL 1683690, at *2 (D. Alaska
Apr. 16, 2013) (internal citations omitted); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). And “[w]hile legal conclusions can provide the framework of a complaint, they
must be supported by factual allegations.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
In addition, “[a] complaint must give the opposing party fair notice of the claims against
them as well as detail the grounds upon which each claim rests.” Sekerke v. City of Nat’l
City, No. 19CV1360-LAB (MSB), 2020 WL 4435416, at *5 (S.D. Cal. Aug. 3, 2020)
(citing Twombly, 550 U.S. at 555); Adobe Sys. Inc. v. Blue Source Grp., Inc., 125 F.
Supp. 3d 945, 964 (N.D. Cal. 2015) (“[A] complaint which ‘lump[s] together . . . multiple

defendants in one broad allegation fails to satisfy [the] notice requirement of Rule
8(a)(2)”) (citation omitted) (alteration in original). This notice requirement is imperative
as it “enable[s] the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d
1202, 1216 (9th Cir. 2011).
2. The Amended Complaint Fails to Satisfy Rule 8 Notice Pleading
Plaintiffs’ Amended Complaint fails to state a claim against NMGI and MYT, and
all other defendants for that matter, at least because the Amended Complaint relies on
group pleading and conclusory allegations that fail to meet the plausibility requirements
of Federal Rule of Civil Procedure 8. By lumping all 11 Defendants together, the
Amended Complaint fails to provide notice as to what each of NMGI and MYT allegedly
did or failed to do with respect to each of the claims described above.
For example, the Amended Complaint alleges that “Defendants sold, offered for
sale, advertised, distributed, imported, and reproduced copies of the Work” (Am. Compl.
at ¶ 1) (emphasis added); that Plaintiff SHI purchased the Coat “offered by Defendants
through use of the Neiman Marcus Defendants’ websites and online services and sales.”
(Id. at ¶ 30) (emphases added); and that the “Neiman Marcus Defendants” were contacted
regarding the “problematic and improper nature” of the Coat. Id. at ¶ 51.
None of these allegations even mention NMGI or MYT, much less plausibly state
a claim for relief against them. And it is well established that a litigant cannot rely on
group pleading, or other conclusory allegations, to meet the plausibility requirements
articulated by the Supreme Court in Twombly. See Twombly, 550 U.S. at 570; see also

Adobe Sys. Inc., 125 F. Supp. 3d at 964 (“As a general rule, when a pleading fails ‘to
allege what role each Defendant played in the alleged harm,’ this ‘makes it exceedingly
difficult, if not impossible, for individual Defendants to respond to Plaintiffs’
allegations.’”) (internal citations omitted); Sekerke, 2020 WL 4435416, at *5 (“When all
defendants are lumped together in factual allegations, such pleading does not provide the
defendants with notice of the basis for allegations.”) (citing Eunice v. United States, No.
12cv1635-GPC(BGS), 2013 WL 756168, at *3 (S.D. Cal. Feb. 26, 2013)); In re iPhone
Application Litig., No. 11-MD-02250-LHK, 2011 WL 4403963, at *8 (N.D. Cal. Sept.
20, 2011) (determining plaintiffs’ allegations were deficient because “Plaintiffs’ failure to
allege what role each Defendant played in the alleged harm ma[de] it exceedingly
difficult, if not impossible, for individual Defendants to respond to Plaintiffs’
allegations”); Gen-Probe, Inc. v. Amoco Corp., 926 F. Supp. 948, 961 (S.D. Cal. 1996)
(“Even were there no other deficiencies, this confusion of which claims apply to which
defendants would require that the complaint be dismissed”); Gauvin v. Trombatore, 682
F. Supp. 1067, 1071, 1988 WL 26794 (N.D. Cal. 1988) (lumping defendants “together in
a single, broad allegation” fails to satisfy the notice requirement of Federal Rule of Civil
Procedure 8(a)(2)).
As a holding company with no business operations, it is unclear why NMGI is a
party to this case. See Yee Decl. at ¶¶ 4-5. Aside from Plaintiffs’ improper group
allegations, Plaintiffs’ sole allegations against NMGI appear to be that it is the corporate
parent of the Debtor Defendants and MYT (i.e., entities that buy, market, and sell goods).

Am. Compl. ¶¶ 14, 17. Obviously, such allegations do not state a claim against NMGI.
Moreover, even if Plaintiffs’ allegations established that any of the Debtor Defendants or
MYT were present in Alaska—which they do not—“[i]t is well established that, as a
general rule, where a parent and a subsidiary are separate and distinct corporate entities,
the presence of one . . . in a forum state may not be attributed to the other.” Axiom
Foods, 874 F.3d at 1071 (citation omitted).
Plaintiffs allege that:
each of the Neiman Marcus Defendants was and is the agent, employee,
partner, alter ego, and/or joint venturer of each other, and in committing
the acts alleged herein, was and is acting within the course and scope of
that relationship and with permission and consent of the other Neiman
Marcus Defendants, and they have acted in concert with each other in
connection with the allegations herein.
Am. Compl. at ¶ 31. Yet it is a bedrock principle of law that courts respect a
corporation’s form, absent extraordinary facts not pleaded here. “To state a ‘veil-piercing
claim,’ the plaintiff must plead facts supporting an inference that the corporation, through
its alter-ego, has created a sham entity designed to defraud investors and creditors.” 3
Doberstein v. G-P Indus., Inc., No. CV 9995-VCP, 2015 WL 6606484, at *4 (Del. Ch.
Oct. 30, 2015) (dismissing claim under Rule 12(b)(6)); see also Wallace ex rel. Cencom
Cable Income Partners II, Inc., L.P. v. Wood, 752 A.2d 1175, 1184 (Del. Ch.1999)
3
Because NMGI is incorporated in Delaware, any attempt to pierce the corporate veil
and disregard NMGI’s corporate form is subject to the Delaware standard. See Fletcher
v. Atex, Inc., 68 F.3d 1451, 1456 (2d Cir. 1995) (“Because [the defendant] was a
Delaware corporation, Delaware law determines whether the corporate veil can be
pierced”).

(same) (“Piercing the corporate veil under the alter ego theory requires that the corporate
structure cause fraud or similar injustice. Effectively, the corporation must be a sham
and exist for no other purpose than as a vehicle for fraud.”) (internal quotation omitted)
(emphasis added); Seymour v. Hull & Moreland Eng’g, 605 F.2d 1105, 1113 (9th Cir.
1979) (in affirming the trial court’s decision not to pierce the corporate veil, the Ninth
Circuit observed that “[w]hile there was a substantial amount of evidence from which the
bad faith of (the defendant shareholders) might be inferred in disregarding their
obligations to the [plaintiffs], no evidence of bad faith or fraudulent intent in forming the
corporation was presented”) (emphasis added, footnote omitted).
Here, Plaintiffs’ conclusory allegation that the Neiman Marcus Defendants are
“alter ego[s]” of each other, unsupported by any well-pleaded facts, is plainly insufficient
under the law to pierce the corporate veil or plead alter ego liability. Doberstein, 2015
WL 6606484, at *4. Moreover, to satisfy the alter ego test, “a plaintiff must make out a
prima facie case (1) that there is such unity of interest and ownership that the separate
personalities of the two entities no longer exist and (2) that failure to disregard their
separate identities would result in fraud or injustice,” which Plaintiffs have not done.
Williams v. Yamaha Motor Co. Ltd., 851 F.3d 1015, 1021 (9th Cir. 2017) (citation
omitted).
3. The Amended Complaint Fails to Allege IACA Standing
The Supreme Court has established that standing contains three elements: “(1) the
plaintiff must have suffered an ‘injury in fact’. . . ; (2) a causal connection between the

injury and the conduct complained of . . . ; and (3) likelihood that the injury will be
redressed by a favorable decision.” Native Am. Arts, Inc. v. Specialty Merch. Corp., 451
F. Supp. 2d 1080, 1082 (E.D. Cal. Aug. 28, 2006) (citing Lujan v. Defs. of Wildlife, 504
U.S. 555, 560 (1992)). The injury in fact suffered by the plaintiff must be “a concrete
and particularized, actual or imminent invasion of a legally protected interest.” Lujan,
504 U.S. at 555.
“[A] threshold requirement in every federal case,” standing is required for a
plaintiff alleging a violation of the Indian Arts and Crafts Act. See id. (citing Warth v.
Seldin, 422 U.S. 490, 498 (1975)). Accordingly, where an IACA plaintiff cannot show a
concrete injury fairly traceable to the complained-of conduct, courts routinely dismiss
such IACA claims for lack of standing. Native Am. Arts, Inc. v. Peter Stone Co., U.S.A.,
No. 08 C 3908, 2015 WL 3561439, at *14 (N.D. Ill. June 9, 2015) (determining plaintiff
lacked standing when it failed to “demonstrate that it has suffered a concrete injury in
fact, personal to it, and fairly traceable to the activities of the defendants.”); Native Am.
Arts, Inc. v. Indio Prod., Inc., No. 06 C 4690, 2011 WL 13380353, at *4 (N.D. Ill. Oct. 4,
2011) (finding plaintiff lacked standing when plaintiff’s alleged injuries lacked
evidentiary support and parties were not direct competitors because “if [plaintiff] and
[defendant] are not competitors, then [plaintiff’s] injuries cannot be fairly traceable to
[defendant’s] allegedly wrongful acts.”); Specialty Merch. Corp., 451 F. Supp. 2d at
1082 (granting defendants’ motion to dismiss based on plaintiff’s lack of standing
because plaintiff’s conclusory allegations referring to “competitive injury,” “advertising

injury,” and “other damages” did not establish injury-in-fact).
Here, Plaintiffs fail to establish standing because they do not allege an injury in
fact. At best, Plaintiffs make conclusory allegations about damage to Plaintiffs’ “ability
to advertise and sell genuine and authentic Alaska Native products, and specifically
genuine and authentic Ravenstail robes or products with Ravenstail patterns.” Am.
Compl. at ¶ 71 (alleging that Plaintiffs “have, and will continue to suffer, injury and
damages through the actions of the Defendants.”). Such general conclusions are neither
concrete and particularized, nor actual or imminent, and are therefore insufficient to
allege an injury in fact. Specialty Merch. Corp., 451 F. Supp. 2d at 1082 (granting
motion to dismiss suit under IACA because plaintiff’s “conclusory allegations that refer
to ‘competitive injury,’ ‘advertising injury,’ and ‘other damages’. . . do not establish the
injury-in-fact requirement of standing.”).
Critically, nowhere in the Amended Complaint do the Plaintiffs allege to make or
sell products that actually use “Ravenstail weaving and pattern[s].” Am. Compl. ¶ 48.
Nor do they allege whether such weave or pattern is identical, similar to, or entirely
different from the weave and/or pattern found on the Coat. 4
Instead, Plaintiffs allege that SHI “maintains and conducts business through the
4
As such, Plaintiffs also fail to state a claim under AS 45.50.471(b)(32) and (b)(6), as the
Amended Complaint fails to allege the details, similarities, and “standard, quality, or
grade” of both Plaintiffs’ alleged goods and the Coat. AS 45.50.471(b)(6); see also AS
45.50.471(b)(32) (defining a violation as an unlabeled “reproduction” of a handicraft,
where “‘reproduction’ means a copy of an original if the copy is substantially the same as
the original[] and not made by the person who made the original.”) (emphasis added)).

Sealaska Heritage Store which primarily sells authentic American Indian and Alaska
Native arts, crafts, and products through a physical location in Juneau, Alaska and online
at <sealaskaheritage-store.myshopify.com>” (Am. Compl. at ¶ 40); that “Lily Hope
personally crafts genuine Alaska Native products, including those within the Ravenstail
tradition, and offers and sells those products to the public” (id. at ¶ 44); and that “Ursala
personally crafts genuine Alaska Native products, including those within the Ravenstail
tradition, offers and sells those products to the public.” (id. at ¶ 47).
None of these allegations describe “concrete and particularized harm” to a “legally
protected interest” that is “fairly traceable” to Defendants. Lujan, 504 U.S. at 560.
Rather, the Amended Complaint only leaves Defendants with more questions: What
products do the Plaintiffs make and sell that are “within the Ravenstail tradition”? Are
products “within the Ravenstail tradition” those that (a) use the Ravenstail weaving
technique (b) consist of the Ravenstail pattern (c) or both? What representations did
Defendant make that are alleged to “falsely suggest” (25 U.S.C. § 305e(b)) Alaskan
origin? Did Plaintiffs lose sales due to Defendants’ alleged conduct? If so, which of
Plaintiffs’ products were allegedly affected, and how?
These gaps in Plaintiffs’ allegations are compounded by the lack of any allegation
that the Plaintiffs compete in the same market or among the same consumers as Neiman
Marcus, MyTheresa, or the other defendants. Plaintiff’s allegations thus cannot support
IACA claims against NMGI, MYT or the other defendants. See Indio Prod., 2011 WL
13380353 at *4 (finding plaintiff lacked standing when both parties sold products on the

internet but were not direct competitors because “if [plaintiff] and [defendant] are not
competitors, then [plaintiff’s] injuries cannot be fairly traceable to [defendant’s] allegedly
wrongful acts.”).
4. The Amended Complaint Fails to Plead an IACA Claim
The Indian Arts and Crafts Act prohibits a person from “directly or indirectly,
offer[ing] or display[ing] for sale or sell[ing]a good . . . in a manner that falsely suggests
it is Indian produced, an Indian product, or the product of a particular Indian or Indian
tribe or Indian arts and crafts organization, resident within the United States.” 25 U.S.C.
§ 305e(b). As a truth-in-advertising law, the IACA is designed to prevent “marketing of
products in a manner that falsely suggests such products are produced by Indians when
the products are not[.]” Peter Stone Co., 2015 WL 3561439, at *1 .
Because “[f]raud is the sine qua non of an action brought under the IACA [] Rule
9(b) applies to the complaint.” Native Am. Arts, Inc. v. Aquino, No. 04 C 2540, 2004
U.S. Dist. LEXIS 21867, at *5 (N.D. Ill. Oct. 27, 2004); see also Native Am. Arts v. Vill.
Originals, 25 F. Supp. 2d 876, 880 (N.D. Ill. 1998) (determining plaintiffs’ allegations
are sufficient to apprise defendant of the basis of the plaintiffs’ IACA false suggestion
claim in accordance with Rule 9(b)); but see Native Am. Arts, Inc. v. Bundy-Howard,
Inc., No. 01 C 1618, 2001 U.S. Dist. LEXIS 13006, at *2 (N.D. Ill. Aug. 27, 2001)
(applying Rule 8). Plaintiffs’ allegations fail to give notice of the nature of its IACA
claims, and undoubtedly fail the heightened pleading requirements of Rule 9(b).
Plaintiffs allege that “Defendants’ use of the famous and distinctive Ravenstail

term in connection with the sale of the ‘Ravenstail Knitted Coat’ falsely suggests the
origin of the product as being the Tlingit, Haida, and Tsimshian peoples, and is likely to
cause confusion or deceive as to the affiliation, sponsorship, or approval of the
Defendants´ ‘Ravenstail Knitted Coat’ product.” Am. Compl. ¶ 94. However, Plaintiffs
do not attach a copy of the product listing in question, or even describe it. And while
Plaintiffs allege that “Defendants” used the term “Ravenstail,” they allege nothing about
how consumers encountered each use. Absent such allegations, Plaintiffs cannot
plausibly allege consumer deception. See, e.g., Vess v. Ciba-Geigy Corp. USA, 317 F.3d
1097, 1106 (9th Cir. 2003) (“The plaintiff must set forth what is false or misleading about
a statement, and why it is false.”); Alaska Stock, LLC v. Pearson Educ., Inc., No. 3:11-
CV-00162-TMB, 2012 WL 7801875, at *4 (D. Alaska Apr. 20, 2012) (same).
In fact, when Plaintiffs’ allegations regarding Defendants’ use of the term
“Ravenstail” are considered in the context of the actual product listings for the Coat, it is
clear they do not support a claim that such listing “falsely suggest[s] that the [Coat] is
produced by Alaska Natives.” Am. Compl. ¶ 68. That is at least because such listings
clearly describe its origin, i.e., “Made in Italy.” See Request for Judicial Notice, Ex. 1-4.
Because IACA claims must be based on a false suggestion of Indian origin, such
cases have only arisen in two scenarios. The first involves a defendant making use of an
Indian tribe name to describe its non-Indian products. See Native Am. Arts, Inc. v.
Waldron Corp., 399 F.3d 871, 873 (7th Cir. 2005) (Indian-style jewelry advertised under
tribe names such as “Navajo,” “Crow,” “Southwest Tribes,” and “Zuni Bear” and sold

with informational tags about the tribe); Navajo Nation v. Urban Outfitters, Inc., 918 F.
Supp. 2d 1245, 1250 (D.N.M. 2013) (use of the “Navajo” tribe name in connection with
the sale of clothing, jewelry, houseware, and footwear).
The second scenario involves a defendant using the terms “Indian,” “authentic,” or
“genuine” to describe its non-Indian products. See Native Am. Arts, Inc. v. Mangalick
Enters., 633 F. Supp. 2d 591, 593 (N.D. Ill. 2009) (Indian-style goods promoted as
“Indian” without any qualifying language); Native Am. Arts v. J.C. Penney Co., 5
F. Supp. 2d 599, 600 (N.D. Ill. 1998) (Indian-style baskets, feather earrings, necklaces,
pendants, and statues misrepresented as genuine or authentic).
This case falls into neither category. Here, Plaintiffs allege that Defendants made
use of the “Ravenstail term” and that this somehow falsely suggested that the Coat came
from indigenous Southeastern Alaskan peoples. Am. Compl. at ¶ 94 (emphasis added).
Plaintiffs concede that “Ravenstail” is not the name of an Indian tribe when they describe
it as an “artform,” and, specifically, a “style of weaving and pattern.” Am. Compl. at
¶¶ 2, 44. And Plaintiffs never allege that “Ravenstail” actually refers to Tlingit, Haida,
and Tsimshian people of Southeast Alaska, only to a “style of weaving and pattern” that
it claims is “exclusively associated” with them.
Plaintiffs’ claim that Defendants used the “Ravenstail” term to describe its knitted
coat does not plausibly allege a false designation of origin or production any more than
the use of the term “plaid” to describe a product would suggest it originates in Scotland,
or was crafted by Scots, or that the use of the term “fleur-de-lis” falsely suggests an

article of clothing was made in France. While such terms describe styles and designs that
have cultural underpinnings in specific geographic locations, the use of such terms in
connection with clothing items simply would not “falsely suggest” that such clothing
item came from those locations. See Cluett, Peabody & Co. v. Savatux Facing Co., 277
F.2d 944, 945 n. 1 (C.C.P.A. 1960) (finding that “plaid” is a “generic term in the textile
industry” but recognizing that the term is defined as “any fabric with a woven or printed
design imitating a tartan pattern or similarly cross-barred; as, a stock of Scottish plaids.”)
For this reason, courts have found that “[a] non-Indian maker of jewelry designed
to look like jewelry made by Indians is free to advertise the similarity but if he uses the
word ‘Indian’ he must qualify the usage so that consumers aren’t confused and think
they’re buying not only the kind of jewelry that Indians make, but jewelry that Indians in
fact made.” Waldron Corp., 399 F.3d at 874 (emphasis added). While the Coat is
arguably perceived as “the kind of clothing” that Southeastern Alaskan peoples make,
Plaintiffs cannot plausibly allege that Defendants’ luxury goods listings (qualified as
“Made in Italy”) are perceived by consumers as clothing “that Indians in fact made.” Id.
Accordingly, Plaintiffs’ IACA claims should be dismissed as to NMGI, MYT, and
all defendants for failure to state a claim upon which relief may be granted under Rule
12(b)(6), or, in the alternative, for failure to satisfy even the general pleading
requirements of Rule 8(a).
5. Plaintiffs Fail to Allege Ownership of Trademark Rights
In deciding a motion to dismiss, the pertinent question is whether the complaint

alleges “enough facts to state a claim to relief that is plausible on its face.” Perfect 10,
Inc. v. Giganews, Inc., 847 F.3d 657, 668 (9th Cir. 2017) (citing Twombly, 550 U.S. at
570). In the Lanham Act context, a false designation of origin claim under 15 U.S.C.
§ 1125 must “plausibly allege” that Plaintiffs “own[] a valid trademark.” Pinterest Inc. v.
Pintrips Inc., 15 F. Supp. 3d 992, 997–98 (N.D. Cal. 2014); see also Brookfield
Commc’ns, Inc. v. W. Coast Entm’t Corp., 174 F.3d 1036, 1046–47 (9th Cir. 1999); Left
Coast Wrestling, LLC v. Dearborn Int’l LLC, No. 317 CV 00466-LAB-NLS, 2018 WL
2328471, at *5 (S.D. Cal. May 23, 2018); Manley Toys Ltd. v. Radco Ltd. HK, No. CV
09-3129-VBF(AJWX), 2009 WL 10674981, at *2 (C.D. Cal. Oct. 1, 2009).
A Lanham Act false designation of origin plaintiff must allege ownership of a
valid mark because trademark law seeks to “prevent[] others from copying a source-
identifying mark.” Qualitex Co. v. Jacobson Prod. Co., 514 U.S. 159, 163 (1995). A
trademark must indicate the source of a particular product; otherwise, it is not a
trademark. See id. When determining ownership of a trademark, the Ninth Circuit
employs a “standard test” of ownership by looking to the claimant’s “priority of use” of
the mark in question. Brookfield Commc’ns, 174 F.3d at 1047.
Plaintiffs do not allege ownership of the RAVENSTAIL mark, either as a federal
trademark registration or common law trademark right. Rather, Plaintiffs allege that
“Ravenstail is a specific, defined, and famous style of weaving and pattern exclusively
associated with the Tlingit, Haida, and Tsimshian people of Southeast Alaska and with a
documented history stretching back well over 200 years.” Am. Compl. at ¶ 2 (emphases

added). And while other IACA plaintiffs have successfully pleaded trademark claims,
they did so based on ownership of a valid federal trademark registration. See generally,
Navajo Nation, 918 F. Supp. 2d 1245.
Here, Plaintiffs’ allegations are entirely inconsistent with ownership of trademark
rights in the term “Ravenstail.” For example, Plaintiffs allege such term is “exclusively
associated” not with Plaintiffs or their businesses but with the entire “Tlingit, Haida, and
Tsimshian people of Southeast Alaska.” Id. Thus, as alleged, the term “Ravenstail” is
incapable of functioning as a trademark, as Plaintiffs’ own allegations confirm that the
term “Ravenstail” is associated with a style of weaving and/or design that could come
from hundreds, if not thousands of different sources, each of different and varying
quality. See Qualitex Co., 514 U.S. at 163; see also 1 J. THOMAS MCCARTHY,
MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 3:1 (5th ed. 2019); 15 U.S.C.
§ 1127. Moreover, Plaintiffs allege that “Ravenstail” has been used for over 200 years,
which long predates Plaintiffs’ existence. See Brookfield Commc’ns, Inc., 174 F.3d at
1047. In sum, Plaintiffs fail to properly allege trademark ownership, such that Plaintiffs’
Lanham Act claims must be dismissed.
To the extent Plaintiffs’ state law claims under AS 45.50.471 of the Alaska Unfair
Trade Practices and Consumer Protection Act are essentially trademark claims, and rely
on the same facts as Plaintiffs’ trademark claims, they too should be dismissed. See Am.
Compl. ¶ 99 (alleging Defendants’ conduct “falsely suggests the origin of the product as
being the Tlingit, Haida, and Tsimshian peoples, and is likely to cause confusion.”)

(emphases added).
6. Plaintiffs Fail to Plead Copyright Infringement of a Useful

Article
Plaintiffs have sued for copyright infringement of the design of a robe, which is a
“useful article” entitled to limited protection under the Copyright Act. See 17 U.S.C.
§ 101. Accordingly, “[t]o state a claim for copyright infringement, [plaintiff] must
plausibly allege . . . that [Defendants] copied protected aspects of [the Subject Work]’s
expression.” Malibu Textiles, Inc. v. Label Lane Int’l, Inc., 922 F.3d 946, 951 (9th Cir.
2019); see also Star Fabrics Inc v. Zinga, Inc., No. CV 17-1277-GW (GJSX), 2017 WL
10439029, at *3 (C.D. Cal. Nov. 13, 2017) (stating that in a copyright infringement
claim, “[p]laintiff must also adequately allege copying of the design’s protected
elements.”).
Here, the Amended Complaint is devoid of any description of the Work’s
protected elements and allegations that Defendants copied the Work’s protected
elements. And where Plaintiffs do generally allege copying, e.g. “the Defendants’
product ‘Ravenstail Knitted Coat’ was copied from the Work, Defendants distributed
copies of the Work, and Defendants prepared derivative works based upon the Work for
use in their online sales, advertising, and promotional materials,” Am. Compl. 84, such
allegations are “too broad and sweeping to satisfy Rule 8.” In re “Santa Barbara Like It
Is Today” Copyright Infringement Litigation, supra, 94 F.R.D. 105, 108 (D. Nev. 1982);
see also Marvullo v. Gruner & Jahr, 105 F. Supp.2d 225, 230 (S.D.N.Y. 2000); see also
Hartman v. Hallmark Cards, Inc., 639 F. Supp. 816, 820 (W.D.Mo. 1986) (“broad,

sweeping allegation of infringement does not comply with Rule 8’s requirement that
specific mention of the acts which infringe are necessary in order to assert a cause of
action and are required so that the defendant can adequately respond”).
That said, even if Plaintiffs’ copyright infringement claim is plausible, Plaintiffs’
request for statutory damages and attorneys’ fees should be dismissed. Am. Compl. ¶ 92,
Prayer for Relief sections (B), (L). 17 U.S.C. § 412 prohibits an award of statutory
damages or attorneys’ fees for “any infringement of copyright in an unpublished work
commenced before the effective date of its registration.” Plaintiffs’ copyright
Registration No. VAu001380817 5 registered on September 6, 2019, and is unpublished.
See Request for Judicial Notice, at Ex. 5. Plaintiffs’ allege that the Coat was offered for
sale on neimanmarcus.com at least as early as August 30, 2019, see Am. Compl. ¶ 50,
i.e., that the alleged infringement “commenced” before registration, and cannot support
statutory damages or attorney’s fees under the Copyright Act. 17 U.S.C. § 412.
Nor can Plaintiffs’ recover statutory attorneys’ fees and costs for any infringement
that occurred after September 6, 2019. Polar Bear Prods., Inc. v. Timex Corp., 384 F.3d
700, 707 n. 5 (9th Cir. 2004) (“Because Polar Bear did not register its copyright before
infringement, it can recover only actual damages and profits under § 504(b), not statutory
damages under § 504(c)”); see also City of Carlsbad v. Shah, 850 F. Supp. 2d 1087, 1102
5
The lowercase “u” in Plaintiffs’ copyright registration number “indicates that the
registration is for an unpublished work.” Determined Prods., Inc. v. Koster, No. C 92-
1697 BAC, 1993 WL 120463, at *1 (N.D. Cal. Apr. 13, 1993).

(S.D. Cal. 2012) (quoting Johnson v. Jones, 149 F.3d 494, 506 (6th Cir. 1998))
(“[I]nfringement ‘commences’ for the purposes of § 412 when the first act in a series of
acts constituting continuing infringement occurs.”)
C. Venue is Improper in this District because the Defendants Do Not

Reside in this District and No Alleged Acts Occurred in this District
Under 28 U.S.C. § 1391(b), a civil action may only be brought in:
(1) a judicial district in which any defendant resides, if all defendants are
residents of the State in which the district is located;
(2) a judicial district in which a substantial part of the events or

omissions giving rise to the claim occurred, or a substantial part of
property that is the subject of the action is situated; or
(3) if there is no district in which an action may otherwise be brought as

provided in this section, any judicial district in which any defendant is
subject to the court’s personal jurisdiction with respect to such action.
28 U.S.C. § 1391(b). Plaintiffs do not satisfy any of these requirements. To begin with,
the Amended Complaint concedes that none of the Defendants reside in this District.
Am. Compl. at ¶¶ 14, 17.
Regarding the second element, there is no allegation that any events occurred in
Alaska, other than that Plaintiff SHI placed two online orders from Alaska and had Coats
there. Indeed, the Amended Complaint does not, and cannot, allege that (i) the Coat was
designed, made, or sold from Alaska, (ii) the websites from which Plaintiff SHI ordered
the product were operated out of Alaska, (iii) the products at issue were sold or
distributed from Alaska, or (iv) any of Defendants’ employees who were involved with
these transactions were themselves in Alaska.
Venue is therefore improper in this District because none of the events relevant to

Plaintiffs’ claims occurred here. K’oyitl’ots’ina, Ltd. v. Gottschalk, No. 4:19-CV-0030-
HRH, 2019 WL 6257723, at *3 (D. Alaska Nov. 22, 2019) (explaining that venue exists
“where a substantial part of the events took place”) (internal citations omitted). That
Plaintiffs allege harm that was “felt in Alaska” (Am. Compl. at ¶ 37) does not change this
result. Id. at *4 (“[I]t is not sufficient for venue purposes that the alleged harm from
defendant’s alleged tortious interference was felt in Alaska.”).
Lastly, Plaintiffs cannot satisfy the third element of 28 U.S.C. § 1391(b) at least
because this Court lacks personal jurisdiction over NMGI and MYT (and the other
defendants as well), as discussed above. Accordingly, this District cannot qualify under
28 U.S.C. § 1391(b)(3) as “any judicial district in which any defendant is subject to the
court’s personal jurisdiction.” (Emphasis added). Plaintiffs could have attempted to sue
NMGI in Texas, where it is headquartered, or Delaware, where NMGI is organized, but
decided instead to improperly sue in this District. Accordingly, the Amended Complaint
should be dismissed for improper venue.
D. If the Court Does Not Dismiss This Case, It Should Be Transferred to

the U.S. Bankruptcy Court for the Southern District of Texas
Should this Court decide not to dismiss the Amended Complaint, it must transfer
this case to the U.S. District Court for the Southern District of Texas with reference to the
U.S. Bankruptcy Court for the Southern District of Texas.
“Change of venue is governed by 28 U.S.C. § 1412, which permits ‘a district
court [to] transfer a case or proceeding under title 11 to a district court for another
district, in the interest of justice or for the convenience of the parties.” In re Fountain

Vill. Dev., 2014 WL 4656506, at *4 (Bankr. D. Alaska Sept. 16, 2014). Each standard
“provides an independent basis for transferring venue,” which Defendants can
demonstrate by a preponderance of the evidence. Id.
Applying the “interest of justice” factors, 6 this action should be transferred to the
U.S. Bankruptcy Court for the Southern District of Texas, because not only does that
court have the “home court presumption,” but also because the outcome of this case will
directly affect the administration of the Debtor Defendants’ bankruptcy estate. See id. at
*4 (stating that the “interest of justice” analysis “often begins with the recognition of a
‘home court presumption,’ by which the location of the original bankruptcy is given some
weight” and transferring suit to the bankruptcy court where the “outcome of the
proceeding could conceivably have any effect on the estate being administered in
bankruptcy.”); see also Baca v. Patriot Nat’l, Inc., 2018 WL 10435228, at *1, 3 (N.D.
Cal. June 19, 2018) (transferring plaintiff’s suit alleging California state-law claims
against his employers and supervisor to the bankruptcy court administering defendants’
chapter 11 proceedings where “the economics of estate administration favor[ed] transfer
6
To determine whether the “interest of justice” is served by transferring an action to the
court where a defendant’s bankruptcy case is pending, the Court will weigh six (6)
factors including: 1) whether transfer would promote the economic and efficient
administration of the bankruptcy estate; 2) whether the interests of judicial economy
would be served by the transfer; 3) whether the parties would be able to receive a fair
trial in each of the possible venues; 4) whether either forum has an interest in having the
controversy decided within its borders; 5) whether the enforceability of any judgment
would be affected by the transfer; and 6) whether the plaintiff’s original choice of forum
should be disturbed. See id. at *4-5.

because the action against [plaintiff’s supervisor] is related to the bankruptcy
proceedings.”).
The “most important consideration” of the “interest of justice” analysis is
“whether the requested transfer would promote the economic and efficient administration
of the estate.” In re Fountain Vill. Dev., 2014 WL 4656506 at *5. Here, the interest of
justice can only be served by having the claims in this case adjudicated in one forum.
Because Plaintiffs filed proofs of claims in the Houston Bankruptcy Court for $1 million
against each of the Debtor Defendants and simultaneously sought to prosecute their
claims against NMGI and MYT in this Court, there are now two (2) parallel proceedings
pending in two (2) different jurisdiction concerning the exact same facts and allegations.
See Request for Judicial Notice, Ex. 6.
Plaintiffs’ claims against NMGI and MYT are nearly identical to those to be
litigated against the Debtor Defendants’ bankruptcy estate. Plaintiffs’ lawsuit has forced
all of the Defendants—including the Debtor Defendants—to expend resources to defend
those claims in the bankruptcy court and in this Court. Because the claims against the
Debtor Defendants, on one hand, and the remaining Defendants, on the other hand, are
inextricably intertwined, the Texas Bankruptcy Court may extend U.S. Bankruptcy Code
Section 362(a)’s automatic stay to include NMGI, MYT, and the other named
defendants. 7
7
Courts within the Fifth Circuit will extend the United States Bankruptcy Code’s
automatic stay “when the liability of the nonbankrupt is not independent of the debtor’s

In fact, the only reason that Plaintiffs’ case against NMGI has not already been
stayed is because NMGI is a mere holding company that is separate and distinct from the
Debtor Defendants. See Yee Decl. at ¶¶ 4-5. But should this Court decline to dismiss the
Amended Complaint against NMGI—allowing Plaintiffs’ case to proceed on claims that
NMGI is liable for the Debtor Defendants’ conduct—this would necessarily violate the
automatic bankruptcy stay. As such, if not dismissed, this case must be moved to Texas.
Moreover, the only way to “promote the economic and efficient administration of
the estate” is to transfer this case to the Southern District of Texas Bankruptcy Court and
allow one forum to determine this and other common issues of fact and law asserted
against all of the Defendants, such as those briefed supra in Section III(B). See Baca,
2018 WL 10435228, at *3 (where there are “common issues of fact and law” and an
“identity of claims” against the debtor and non-debtor defendants “they should take place
in one forum.”).
Further, there can be no doubt that the Bankruptcy Court has “related to” subject
matter jurisdiction to hear this action because it impacts the amount of property
potentially available for distribution among the creditors. See Baca, 2018 WL 10435228,
at *2. Critically, Plaintiffs have also consented to the U.S. Bankruptcy Court for the
liability and a judgment against the nonbankrupt will be binding on the debtor.” In re
Medina, 413 B.R. 583, 594 (Bankr. W.D. Tex. 2009) (quoting In re S.I. Acquisition,
Inc., 817 F.2d 1142, 1148 (5th Cir. 1987)); see also In re Xenon Anesthesia of Texas,
PLLC, 510 B.R. 106, 111 (Bankr. S.D. Tex. 2014) (the automatic stay may apply to non-
debtor third parties “in situations where assets of the bankruptcy estate would be at risk in
allowing a court proceeding to continue against a codefendant”).

Southern District of Texas exercising personal jurisdiction over them in connection with
their claims in this case as a result of their filing proofs of claims against the Debtor
Defendants’ bankruptcy estate. See Request for Judicial Notice, Ex. 6; Durkin v.
Benedor Corp. (In re G.I. Indus., Inc.), 204 F.3d 1276, 1281 (9th Cir. 2000) (“[b]y filing
the proof of claim, Benedor voluntarily subjected the agreement to the bankruptcy court’s
jurisdiction as well, because the agreement is an integral component of the bankruptcy
court’s consideration of Benedor’s claim.”); In re LLS Am., LLC, No. 09-06194-PCW11,
2012 WL 11860945, at *7 (Bankr. E.D. Wash. July 2, 2012) (finding that the Supreme
Court’s decision in Stern v. Marshall, 131 S.Ct. 2594 (2011) “did not abrogate existing
decisional authority that the filing of a proof of claim in bankruptcy is a consent to
personal jurisdiction over claims held by the estate which arise under bankruptcy law or
are related to the creditor’s claim against the estate”); see also In re PNP Holdings Corp.,
184 B.R. 805, 806 (B.A.P. 9th Cir. 1995), aff’d, 99 F.3d 910 (9th Cir. 1996) (“It is well
settled that a creditor consents to jurisdiction over related counterclaims by filing a proof
of claim.”) (collecting cases).
Indeed, the filing of a proof of claim is more than a mere formality. Rather “[b]y
filing a proof of claim in a bankruptcy proceeding, the creditor is affirmatively seeking
relief from the bankruptcy court on that claim, i.e., payment on the claim” and “[a]
consent to personal jurisdiction is necessary for the bankruptcy court to entertain the
claim and determine the right to payment in accordance with the statutory bankruptcy
scheme.” In re LLS Am., LLC, 2012 WL 11860945, at *5. Thus, because the Plaintiffs

have consented to the exercise of personal jurisdiction by the U.S. Bankruptcy Court for
the Southern District of Texas, and that court has “related to” subject matter jurisdiction
over this case, transfer to that court is proper.
Finally, the “convenience of the parties” test also weighs in favor of transferring
this action to the Bankruptcy Court for the Southern District of Texas. 8 In particular,
neither NMGI nor MYT (or the other named defendants, or any potential witnesses to
Defendants’ alleged conduct) have any connections to or presence in Alaska, none of the
allegedly infringing conduct occurred in Alaska, and the principals, operations and entire
nexus of operational and financial affairs of NMGI and the Debtor Defendants are
centered in Texas. In other words, the only forum that will facilitate the ease of access to
the necessary proof and the convenience of the witnesses and the parties (factors 2 and 3)
is Texas. Moreover, as previously stated, the financial condition of the Debtor
Defendants and their affiliates, which is clearly evidenced by the filings for Chapter 11
bankruptcy protection, further cuts in the favor of Texas being a more convenient and
appropriate forum for the adjudication of this action (factor 3). And Plaintiffs cannot
claim Texas is inconvenient given that their counsel used his Texas address to file claims
8
When considering the convenience of the parties, courts examine: (1) the location of the
plaintiff and defendant, (2) the ease of access to the necessary proof, (3) the convenience
of the witnesses and the parties and their relative physical and financial condition, (4) the
availability of the subpoena power for unwilling witnesses, and (5) the expense of
obtaining unwilling witnesses. See In re Fountain Vill. Dev., 2014 WL 4656506 at * 4.

in Texas against the Debtor Defendants’ bankruptcy estate. 9
For at least the above reasons, this action should be transferred to the U.S.
Bankruptcy Court for the Southern District of Texas, where venue is proper.
IV. CONCLUSION
For the foregoing reasons, the Amended Complaint should be dismissed with
prejudice as to NMGI and MYT for (i) lack of jurisdiction, (ii) failure to state a claim
upon which relief may be granted under Rule 12(b)(6), or to satisfy even the general
pleading requirements of Rule 8, and (iii) improper venue under 28 U.S.C. § 1391(b). In
the alternative, this Court should grant NMGI and MYT’s motion to transfer venue
pursuant to 28 U.S.C. §§ 1404, 1412 to the U.S. District Court for the Southern District
of Texas with reference to the U.S. Bankruptcy Court for the Southern District of Texas.
DATED this 14th day of September, 2020.
LANE POWELL LLC

Attorneys for Defendants Neiman Marcus
Group, Inc. and MyTheresa.com, GMBH
I certify that on September 14, 2020, a copy of the
By s/ Brewster H. Jamieson
foregoing was served electronically on:
Brewster H. Jamieson, ABA No. 8411122
Jacob R. Adams, jra@dumkelaw; Hans N. Huggler, ABA No. 1505025
Ezekiel Ryker Dumke, edumke@dumkelaw.com;
Ivan Laurence London, ivan.london@bclplaw.com;
Gregory D. Phillips, gdp@phillipswinchecter.com;
James Joseph Sheehan, jsheehan@stsl.com.
s/ Brewster H. Jamieson
9
Counsel for Plaintiffs Jacob R. Adams is a member of Dumke Law and lists an address
in Austin, Texas on the proofs of claims submitted to the U.S. Bankruptcy Court for the
Southern District of Texas. See Request for Judicial Notice, Ex. 6.

SHI v. NM - Motion To Dismiss

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SHI v. NM - Motion To Dismiss

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Brewster H. Jamieson, ABA No.

IN THE UNITED STATES DISTRICT COURT

NEIMAN MARCUS GROUP LTD, LLC;

DEFENDANTS NEIMAN MARCUS GROUP, INC. AND

Case 1:20-cv-00002-SLG Document 27 Filed 09/14/20 Page 1 of 36

I. Preliminary Statement .............................................................................................. 1

III. Argument .................................................................................................................. 4

IV. Conclusion .............................................................................................................. 34

Case 1:20-cv-00002-SLG Document 27 Filed 09/14/20 Page 2 of 36

The Amended Complaint should be dismissed in its entirety, with prejudice,

pursuant to Fed. R. Civ. P. 12(b)(2), 12(b)(6), 12(b)(1), and/or 12(b)(3).

Germany, and the U.K.) have any connection to Alaska whatsoever.

Case 1:20-cv-00002-SLG Document 27 Filed 09/14/20 Page 3 of 36

for improper venue.

On May 7, 2020, various Neiman Marcus entities, including defendants Neiman

District of Texas. In re Neiman Marcus Group LTD LLC, No. 4:20-BK-32519.

Case 1:20-cv-00002-SLG Document 27 Filed 09/14/20 Page 4 of 36

a slew of foreign defendants on August 29, 2020. See Dkt. 23.

Crafts Act (“IACA”), copyright infringement, false designation of origin or sponsorship,

Plaintiffs allege copyright infringement of a work authored by deceased Tlingit artist

because “Ravenstail” is a particular style of knitting “exclusively associated” with such

“Neiman Marcus Defendants” and another from “<mytheresa.com/en-us/>” and sent

them to Alaska. Id. at ¶¶ 52-53.

Case 1:20-cv-00002-SLG Document 27 Filed 09/14/20 Page 5 of 36

Southern District of Texas.

A. The Court Lacks Personal Jurisdiction Over NMGI and MYT.

1068 (9th Cir. 2017).

omitted.) Personal jurisdiction can be either general or specific. See Daimler AG v.

Case 1:20-cv-00002-SLG Document 27 Filed 09/14/20 Page 6 of 36

Accordingly, specific jurisdiction must be based on defendant’s suit-related

U.S. 285-86 (2014) (finding it is “insufficient to rely on a defendant’s ‘random,

fortuitous, or attenuated contacts’ or on the ‘unilateral activity’ of a plaintiff.”)

2. NMGI and MYT Have No Contacts with Alaska

Case 1:20-cv-00002-SLG Document 27 Filed 09/14/20 Page 7 of 36

attributed to “Defendants” or “Neiman Marcus Defendants” throughout the Amended

(affirming dismissal of complaint for lack of personal jurisdiction where defendant’s

“uncontroverted declaration rejected any other purposefully directed activities toward

Case 1:20-cv-00002-SLG Document 27 Filed 09/14/20 Page 8 of 36

affidavit.”) (citation omitted).

Case 1:20-cv-00002-SLG Document 27 Filed 09/14/20 Page 9 of 36

two employees visited Alaska to give advice to a customer).

that Plaintiffs “caused [them] to be purchased and delivered in Alaska”—not NMGI or

Case 1:20-cv-00002-SLG Document 27 Filed 09/14/20 Page 10 of 36

v. Texas Turbine Conversions, Inc., No. 3:17-CV-00194-TMB, 2019 WL 1396426, at *3

commerce,” without “something more,” does not constitute purposeful availment).

Compl. at ¶ 51)—Plaintiffs can only base jurisdiction on a theory of “individualized

ThermoLife, 813 F. App’x at 318 (“For an interactive website to confer personal

jurisdiction, a plaintiff must allege ‘something more.’”) (citations omitted).

Case 1:20-cv-00002-SLG Document 27 Filed 09/14/20 Page 11 of 36

Plaintiffs allege that “Defendants have specifically directed their actions at

Supreme Court’s decision in Walden, allegations that a defendant “engaged in wrongful

F.3d 1064, 1069–70 (citation omitted).

A “mere injury to a forum resident is not a sufficient connection to the forum” to

infringement is felt. Axiom Foods, 874 F.3d at 1069–70.

Case 1:20-cv-00002-SLG Document 27 Filed 09/14/20 Page 12 of 36

where neither purposefully directed suit-related conduct toward Alaska.

B. The Amended Complaint Should Be Dismissed Pursuant to Rule

“[T]o survive a Rule 12(b)(6) motion to dismiss, a complaint must contain

face.” Carreira v. Duvall, No. 3:12-CV-00138-SLG, 2013 WL 1683690, at *2 (D. Alaska

Case 1:20-cv-00002-SLG Document 27 Filed 09/14/20 Page 13 of 36

8(a)(2)”) (citation omitted) (alteration in original). This notice requirement is imperative

1202, 1216 (9th Cir. 2011).

2. The Amended Complaint Fails to Satisfy Rule 8 Notice Pleading

of Federal Rule of Civil Procedure 8. By lumping all 11 Defendants together, the

did or failed to do with respect to each of the claims described above.

group pleading, or other conclusory allegations, to meet the plausibility requirements