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First Aid Cellular LLC v. We Fix It Cellular Repair

United States District Court, District of Nebraska

November 3, 2014




This matter is before the Court on the Motion to Dismiss, or, in the alternative, Motion to Transfer Venue (Filing No. 8) filed by Defendants We Fix It Cellular Repair, We Fix It Repair, [1] Andrew Harberts, and Does (collectively “Defendants”). For the reasons discussed, the Motion will be granted, and the Plaintiffs’ claims will be dismissed.


For purposes of the pending Motion, the Court accepts as true all well-pled factual allegations in the Plaintiffs’ Complaint (Filing No. 1), although the Court need not accept Plaintiffs’ legal conclusions.

Plaintiffs First Aid Cellular, LLC (“FAC”), Jeffrey Wharton, and Max L. Wharton (collectively “Plaintiffs”) allege that Defendants’ use of the term “You Break It . . . We Fix It!” constitutes infringement of Plaintiffs’ registered mark. FAC is a Delaware Corporation with its principal place of business in Nebraska. Jeffrey Wharton is identified as the COO of FAC, and Max Wharton its CEO.[2] We Fix it Cellular is an Iowa Corporation with its principal place of business in Iowa, and Defendant Andrew Harberts (“Harberts”)[3] is an individual residing in Iowa. Plaintiffs allege that Harberts owns and operates We Fix It Cellular, as well as the We Fix It Cellular website and facebook account.

Plaintiffs are in the business of repairing electronic devices such as smartphones, gaming consoles, tablets, and computers in Omaha, Nebraska, and surrounding communities in Iowa. Several companies offer Plaintiffs’ services to their employees through discount programs, leading to some world-wide notoriety. Defendants also offer smartphone and tablet repair services. Defendants have not purchased any products from FAC, and FAC has not licensed its brand or permitted Defendants to represent that they are affiliated in any way with FAC.

Plaintiffs discovered that, in the course of their business, Defendants were using the phrase “You Break It, We Fix It.” Plaintiffs allege that the phrase “You Break It, We Fix It, ” is a trademark registered to FAC. Plaintiffs contacted Defendants regarding Defendants’ use of the phrase, and Defendants represented to Plaintiffs that they would discontinue use of the phrase. Plaintiffs allege that despite their representations, Defendants continued to use the phrase in commerce.

Plaintiffs assert claims under the Lanham Act for trademark infringement, 15 U.S.C. § 1114, and false designation, 15 U.S.C. § 1125(a). Plaintiffs seek an injunction against Defendants, treble damages under 15 U.S.C. § 1117(a), and attorney fees and costs.


I. FAC Cannot Proceed Pro Se in Federal Court

In the cover sheet for their pro se civil complaint, Plaintiffs identify FAC as a pro se party. “[T]he law does not allow a corporation to proceed pro se.Ackra Direct Mktg. Corp. v. Fingerhut Corp., 86 F.3d 852, 857 (8th Cir. 1996) (citing 28 U.S.C. § 1654); see also Rowland v. California Men's Colony, Unit II Men's Advisory Council, 506 U.S. 194, 201-02, (1993) (“It has been the law for the better part of two centuries, for example, that a corporation may appear in the federal courts only through licensed counsel.”) Both Max and Jeffrey Wharton signed the verification of the coversheet (Filing No. 1 at ECF 7), and Jeffrey Wharton signed the Complaint on behalf of FAC, apparently in his capacity as Chief Operating Officer.[4] (Filing No. 1 at ECF 19.) The Court takes judicial notice that neither Jeffrey nor Max Wharton is a registered user of this Court’s CM/ECF system, and their names are not found within the Nebraska Bar Directory[5] nor in the Nebraska Supreme Court Attorney Services Division’s licensed lawyer search.[6]Defendants’ Motion should have alerted Plaintiffs to the need to find counsel for FAC, yet no attorney has entered an appearance for FAC, nor have Plaintiffs otherwise responded. FAC cannot proceed pro se in this matter, and all claims asserted by FAC must be dismissed.

II. Personal Jurisdiction Over Defendants

A. Standard of Review

“To survive a motion to dismiss for lack of personal jurisdiction, a plaintiff need only make a prima facie case showing there is personal jurisdiction over the defendant.” Pecoraro v. Sky Ranch for Boys, Inc., 340 F.3d 558, 561 (8th Cir. 2003). The Court “views the evidence in the light most favorable to the plaintiff and resolves all factual conflicts in the plaintiff's favor.” Id. To withstand Defendants’ motion under Fed.R.Civ.P. 12(b)(2), Plaintiffs “must state sufficient facts in the complaint to support a reasonable inference that [Defendants] may be subjected to the jurisdiction of the forum state.” Steinbuch v. Cutler, 518 F.3d 580, 585 (8th Cir. 2008) (citing Dever v. Hentzen Coatings, Inc., 380 F.3d 1070, 1072 (8th Cir. 2004)). Plaintiffs’ prima facie case “must be tested, not by the ...

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