Emily Elson v. Ashley Black

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United States District Court

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Central District of California

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11 EMILY ELSON, et al., Case № 2:18-CV-00116-ODW (RAOx)

12 Plaintiff,

ORDER ON MOTIONS TO DISMISS

13 v. [45], [46], [47], [48], [63], and [64]

14 ASHLEY BLACK, et al.,

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Defendants.

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19 I. INTRODUCTION

20 Presently before the Court are Motions to Dismiss and a Motion to Strike filed

21 by Defendants ADB Innovations, ADB Interests, LLC, and Ashley Diana Black

22 International Holdings (collectively “Defendants”). In the interest of judicial

23 economy, the Court resolves only Defendants’ motions to dismiss concerning 12(b)(2)

24 and (4)–(5). For the reasons to follow, the Court STRIKES1 Defendants’ motion to

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1 The Court STRIKES Defendants’ motions (ECF Nos. 63–64.) because Defendants have blatantly

26 attempted to circumvent the Court’s Order (ECF No. 43) by submitting a 35-page motion with

130 footnotes and another 32-page motion with 113 footnotes. Clearly, Defendants’ motion would

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have exceeded the exceptionally generous page limitation of 35 pages had Defendants included their

28 footnotes in the body of the motions. Accordingly, Defendants’ motions are in deliberate violation

of C.D. Cal. L.R. 11-6. Therefore, the motions are stricken. See, e.g., Roberts v. Brown,

1 dismiss (ECF No. 63) and motion to strike (ECF No. 64); DENIES Defendants’

2 motion to dismiss for insufficient process and failure to timely serve (ECF No. 47);

3 DENIES Defendants’ motion to dismiss for lack of personal jurisdiction (ECF

4 No. 46); and TRANSFERS the matter to the Southern District of Texas to cure want

5 of personal jurisdiction and in the interest of justice.

6 II. FACTUAL BACKGROUND

7 The instant matter is a putative class action involving the FasciaBlaster, a self-

8 care product. According to Plaintiffs, Defendants market the product on

9 AshleyBlackGuru.com, which contains statements indicating that use of the

10 FasciaBlaster “lessens the look of cellulite,” “[i]mproves blood flow,” “[h]elps reduce

11 pain,” and “accelerates muscle recovery.” (Consolidated Am. Compl. (“CAC”) ¶ 181,

12 ECF No. 37.) Moreover, Plaintiffs maintain members of the class read the following

13 statement prior to purchasing a FasciaBlaster online: “FasciaBlaster® is designed for

14 self-treatment and can be used by anyone on any area of the body. With regular use of

15 the FasciaBlaster®, one can expect pain reduction and improved flexibility, joint

16 function, circulation, muscle definition and performance, nerve activity, posture, and

17 enhanced beauty including the virtual elimination of CELLULITE.” (CAC ¶ 4.)

18 Defendant Ashley Black is “an individual who is the founder and principal

19 owner of the corporate entity defendants and is the person primarily responsible for

20 the wrongdoing alleged herein.” (CAC ¶ 168.) At the time of filing, Plaintiffs

21 maintained Black resides in California and in the Central District. (Id.) Ms. Black is

22 actively involved as the spokesperson extolling the virtues of the FasciaBlaster. (Id.)

23 Plaintiffs maintain that all other defendants are corporate entities owned and

24 controlled by Ms. Black, but the precise role of each defendant in the alleged

25 wrongdoing is unclear, and hence will be the subject of discovery. (CAC ¶ 169.)

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28 No. 2:13-CV-07461-ODW (JCx), 2014 WL 2440008, at *1 (C.D. Cal. May 30, 2014) (noting brief

stricken for violating Local Rule 11-6).

1 Ashley Black Company (“ABC”) is a corporation with its principal place of

2 business in Texas, and “is jointly responsible for the manufacture, marketing,

3 advertising[,] and distribution of the FasciaBlaster throughout the United States.

4 [ABC] created and/or authorized the false, misleading[,] and deceptive statements

5 about the FasciaBlaster.” (CAC ¶ 170.)

6 Defendant ADB Interests, LLC (“ADB Interests”) is a Texas company based in

7 Pearlman[sic], Texas. (CAC ¶ 171.) ADB is “identified as the owner of the Ashley

8 Black website that carries the misrepresentations.” (CAC ¶ 171.)

9 Defendant ADB Innovations, LLC (“ADB Innovations”) “identifies itself in

10 corporate literature as the source of some of the Ashley Black products and is the

11 source of one of the disclaimers about the products.” (CAC ¶ 172.)

12 Defendant Ashley Black Guru is also located in Pearland, Texas, and “identifies

13 itself as a copyright holder on certain corporate literature on the Ashley Black

14 website.” (CAC ¶ 173.)

15 Defendant Ashley Diana Black International Holdings, LLC, (“ADBIH”) is a

16 Delaware corporation, “based, on information and belief, in Pearland, Texas.”

17 ADBIH “is the holder of certain intellectual property concerning the FasciaBlaster.”

18 (CAC ¶ 174.)

19 Defendant Ashley Black Fasciology, LLC, is “another corporate entity

20 controlled by Ashley Black.” The exact role of this entity in marketing and sale of the

21 FasciaBlaster is unknown. (CAC ¶ 175.)

22 Plaintiffs filed this suit in California State Court on October 23, 2017. (Notice

23 of Removal Ex. A, ECF No. 1-3.) Defendants removed the matter on January 5, 2018.

24 Plaintiffs filed a consolidated complaint under the Class Action Fairness Act on April

25 17, 2018, alleging thirty-five causes of action, which include violations of the

26 Magnuson-Moss Warranty Act, Song-Beverly Act, California Business and

27 Professions Code, Consumer Legal Remedies Act, as well as express and implied

28 warranty violations under the laws of at least eight states. (CAC ¶¶ 249–578.) On

1 August 14, 2018, Defendants filed their Motions to Dismiss (ECF Nos. 45–48) and

2 added another Motion to Dismiss and Strike on August 16, 2018. (ECF Nos. 63–64.)

3 The Motions were taken under submission on December 4, 2018. (ECF No. 93.)

4 III. DISCUSSION

5 A. SUBJECT MATTER JURISDICTION

6 Federal courts are courts of limited jurisdiction, having subject-matter

7 jurisdiction only over matters authorized by the Constitution and Congress. See e.g.,

8 U.S. Const. Art. III, § 2, cl. 1; Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.

9 375, 377 (1994). Federal courts have original jurisdiction where an action arises

10 under federal law, or where each plaintiff’s citizenship is diverse from each

11 defendant’s citizenship and the amount in controversy exceeds $75,000. 28 U.S.C.

12 §§ 1331, 1332(a). Also, a court has subject matter jurisdiction pursuant to Class

13 Action Fairness Act (“CAFA “) when any civil action in which the matter in

14 controversy exceeds the sum or value of $5,000,000, exclusive of interest and costs,

15 and is a class action in which any member of a class of plaintiffs is a citizen of a State

16 different from any defendant. 28 U.S.C. § 1332(d).

17 Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a defendant may

18 move to dismiss a complaint for lack of subject matter jurisdiction. Fed. R. Civ. P.

19 12(b)(1). “A Rule 12(b)(1) jurisdictional attack may be facial or factual.” Safe Air for

20 Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (citing White v. Lee, 227 F.3d

21 1214, 1242 (9th Cir. 2000)). A facial attack is based on the challenger’s assertion that

22 the allegations in the complaint are “insufficient on their face to invoke federal

23 jurisdiction.” Id. A factual attack disputes the validity of allegations that, if true,

24 would invoke federal jurisdiction. Id. In resolving a facial attack, a court must

25 consider the allegations of the complaint as true. Leite v. Crane Co., 749 F.3d 1117,

26 1121 (9th Cir. 2014) (quoting Safe Air, 373 F.3d at 1039) (“A ‘facial’ attack accepts

27 the truth of the plaintiff’s allegations but asserts that they ‘are insufficient on their face

28 to invoke federal jurisdiction.’”).

1 Here, the Court determines facially that it has subject matter jurisdiction.

2 Plaintiffs assert that the Court has subject matter jurisdiction under the Magnuson-

3 Moss Warranty Act and CAFA because: (1) this is a class action involving thousands

4 of class members; (2) Plaintiffs are citizens of the States of California, Florida,

5 Nevada, Arizona, Louisiana, Mississippi, New York and Ohio; Defendants are citizen

6 of the States of Texas and California; and on information and belief more than two-

7 thirds of class members reside outside of California; and (3) the amount in

8 controversy is in excess of $5,000,000, exclusive of interests and costs. (CAC ¶ 9); 15

9 U.S.C. § 2301; 8 U.S.C. § 1332(d). Moreover, Defendants removed this case from

10 Los Angeles Superior Court under CAFA; accordingly, Defendants do not challenge

11 the Court’s jurisdiction under CAFA. (See Notice of Removal ¶ 3.) Hence, for

12 purposes of transfer the Court determines that it has subject matter jurisdiction. See

13 Bookout v. Beck, 354 F2d 823, 825 (9th Cir. 1965) (“jurisdiction must be first found

14 over the subject matter and the person before one reaches venue.”).

15 B. SERVICE

16 1. Adequacy of Service Under 12(b)(4)

17 Defendants seek dismissal of claims brought against Ashley Black Fasciology,

18 LLC, Ashley Black Guru, ABC, and Ashley Black individually, maintaining that the

19 Plaintiffs failed to serve these entities and Ms. Black. (Mot. to Dismiss Pursuant to

20 12(b)(4)–(5) (“Mot. II”) 1, ECF No. 47.)

21 Under Federal Rule of Civil Procedure 12(b)(4) a party may seek dismissal of a

22 complaint for insufficient process. The sufficiency of process is governed by Federal

23 Rule of Civil Procedure 4, which requires, among other things, that a summons “name

24 the court and the parties” and “be directed to the defendant.” Fed. R. Civ.

25 P. 4(a)(1)(A), (B). The Ninth Circuit has held that “Rule 4 is a flexible rule that

26 should be liberally construed so long as a party receives sufficient notice of the

27 complaint.” United Food & Commercial Workers Union v. Alpha Beta Co., 736 F.2d

28 1371, 1382 (9th Cir. 1984). Thus, “[e]ven if the summons fails to name all of the

1 defendants, . . . dismissal is generally not justified absent a showing of prejudice.” Id.

2 (citations omitted). If service of process is insufficient, the district court has

3 discretion to dismiss an action or quash service. S.J. v. Issaquah Sch. Dist. No. 411,

4 470 F.3d 1288, 1293 (9th Cir. 2006).

5 Here, Defendants do not contend that the lack of service is prejudicial, arguing

6 instead that the Court lacks jurisdiction because the Plaintiffs did not serve the

7 aforementioned individuals and entities within ninety days as required by Federal

8 Rule of Civil Procedure 4(m). (Mot. II 1–2.) In the absence of prejudice, dismissal is

9 not warranted. See Alcatel-Lucent USA, Inc. v. Dugdale Commc’ns, Inc., No. CV 09-

10 2140 PSG (JCx), 2009 WL 3346784, at *3 (C.D. Cal. Oct. 13, 2009) (finding that

11 dismissal was not warranted in the absence of prejudice). Thus, Defendants’ Motion

12 to Dismiss under Federal Rule of Civil Procedure 12(b)(4) is DENIED.

13 2. Whether Service was Proper Under 12(b)(5)

14 Under Federal Rule of Civil Procedure 12(b)(5), a party may seek dismissal of a

15 complaint for insufficient service of process. Fed. R. Civ. P. 12(b)(5). “Once service

16 is challenged, [the] plaintiff[] bear[s] the burden of establishing that service was valid

17 under Rule 4. Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004). Pursuant to

18 Rule 4(e)(1), an individual may be served in a judicial district of the United States by

19 “following state law for serving a summons in an action brought in courts of general

20 jurisdiction in the state where the district court is located or where service is made.”

21 Fed. R. Civ. P 4(e)(1). The California Code of Civil Procedure permits “summons

22 [to] be served in a manner which is reasonably calculated to give actual notice to the

23 party to be served.” Cal. Civ. Proc. Code § 413.30.

24 The Ninth Circuit, considering service on foreign defendants, found that service

25 by email may be reasonably calculated to apprise a defendant without an “office [ ]or

26 a door” of the pendency of an action and afford it an opportunity to respond. Rio

27 Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1017–18 (9th Cir. 2002). Other

28 courts have also approved of service by messages to social media accounts. Shinde v.

1 Nithyananda Found., No. EDCV 13-00363-JGB (SPx), 2014 WL 12597121, at * 6–7

2 (C.D. Cal. Aug. 25, 2014) (service via Facebook). A party utilizing service through

3 email or social media must usually show that the party to be served “cannot with

4 reasonable diligence be served in another manner.” See Kohler v. Domainjet, Inc.,

5 No. 11-cv-1767-BEN MDD, 2012 WL 716883, at *2 (S.D. Cal. Mar. 5, 2012) (citing

6 Cal. Civ. Proc. Code § 415.50(a)(1)). “Reasonable diligence” means that “the

7 plaintiff ‘took those steps which a reasonable person who truly desired to give notice

8 would have taken under the circumstances.’” Torrison v. Thompson,

9 No. 2:12-CV-6939-ODW (MRWx), 2013 WL 12205580, at *2 (C.D. Cal. Sept. 16,

10 2013) (quoting Donel, Inc. v. Badalian, 87 Cal. App. 3d 327, 333 (1978)).

11 Here, on December 5, 2017, Plaintiffs attempted to serve Ms. Black personally

12 at three different locations in Manhattan Beach, California, and Hermosa Beach,

13 California. (Pls.’ Opp’n to Mot. II (“Opp’n II”) 2–3, ECF No. 81; Decl. of Perrin F.

14 Disner in Supp. of Opp’n II, (“Disner Decl. II”) ¶¶ 2–3, ECF No. 82.) Plaintiffs

15 maintain that Ms. Black’s social media accounts indicated her city of residence as

16 Tamarindo, Costa Rica, fact allegedly publicly offered by Ms. Black. (Opp’n II 2;

17 Disner Decl. II ¶ 5.) Plaintiffs also indicate that the original lawsuit was publicly

18 posted online in multiple Fasciablaster-themed Facebook discussion groups within

19 twenty-four hours of filing, and that Ms. Black made a public statement regarding the

20 lawsuit that was posted at www.AshleyBlackLawsuits.com. (Disner Decl. II ¶ 7.)

21 The Court finds that service by posting the Complaint on Facebook was

22 reasonably calculated to provide Black with actual notice of this action. See Shinde,

23 2014 WL 12597121, at * 6–7. Here, Plaintiffs have been unable to locate and serve

24 Ms. Black personally after repeated attempts to do so. The Court finds this is

25 sufficient to show that Ms. Black “cannot with reasonable diligence be served”

26 through non-electronic means. See Kohler, 2012 WL 716883, at *2 (finding

27 reasonable diligence after private investigator could not find valid physical address at

28 which to effectuate service). Further, Ms. Black’s social media accounts are actively

1 used. St. Francis Assisi v. Kuwait Fin. House, No. 3:16-cv-3240-LB, 2016 WL

2 5725002, at *2 (N.D. Cal. Sep. 30, 2016) (allowing service by Twitter when party

3 “has an active Twitter account and continues to use it to communicate with his

4 audience”). Here, Ms. Black publicly referenced this lawsuit on the internet to

5 communicate with her audience and share her view on the lawsuit. (Opp’n II 3–4.)

6 Under these circumstances, the Court finds that service by social media is the best

7 method for providing actual notice to Ms. Black, and service was therefore proper.

8 Accordingly, Defendants’ Motion to Dismiss for insufficient service of process

9 (ECF No. 47) is DENIED.

10 C. PERSONAL JURISDICTION

11 Defendants move to dismiss for lack of personal jurisdiction under 12(b)(2),

12 arguing that the Complaint fails to establish general jurisdiction over any Defendant

13 because they are not “at home” in California. (Mot. to Dismiss Pursuant to 12(b)(2)

14 (“Mot. I”) 8–9, ECF No. 46.) Defendants also argue that the Court lacks specific

15 personal jurisdiction due to a lack of minimum contacts by all Defendants generally,

16 and ADBIH specifically. (Mot. I 9–14.) Finally, Defendants maintain that the Court

17 lacks specific personal jurisdiction over California claims made by class members

18 who reside outside California. (Mot. I 13–17.)

19 A party seeking to establish jurisdiction over a person or entity can either:

20 (1) show each defendant’s sufficient, direct contacts with the forum state, or (2) use

21 the alter ego theory to “extend personal jurisdiction to a foreign parent or subsidiary

22 when, in actuality, the foreign entity is not really separate from its domestic affiliate.”

23 Ranza v. Nike, Inc., 793 F.3d 1059, 1073 (9th Cir. 2015). The party asserting

24 jurisdiction bears the burden to establish jurisdictional facts. Pebble Beach Co. v.

25 Caddy, 453 F.3d 1151, 1154 (9th Cir. 2006). When the party invoking jurisdiction

26 does not ask for jurisdictional discovery, courts must evaluate whether the “pleadings

27 and affidavits establish a prima facie showing of jurisdictional facts.” Data Disc, Inc.

28 v. Sys. Tech. Assocs., 557 F.2d 1280, 1286 (9th Cir. 1977). Accordingly, the party

1 asserting jurisdiction cannot “simply rest on the bare allegations of its complaint”;

2 however, “uncontroverted allegations in the complaint must be taken as true.”

3 Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004).

4 “When no federal statute governs personal jurisdiction, the district court applies

5 the law of the forum state.” Boschetto v. Hansing, 539 F.3d 1011, 1015 (9th Cir.

6 2008). “California’s long-arm statute is co-extensive with federal standards, so a

7 federal court may exercise personal jurisdiction if doing so comports with federal

8 constitutional due process.” Id. “There are two forms of personal jurisdiction that a

9 forum state may exercise over a nonresident defendant—general jurisdiction and

10 specific jurisdiction.” Id. at 1016. The Court begins with general personal

11 jurisdiction before addressing specific jurisdiction.

12 1. General Jurisdiction

13 A federal court can exercise general personal jurisdiction as to defendants

14 domiciled within the forum state at the time the action is commenced even if they are

15 absent from the state. J. McIntyre Machinery, Ltd. v. Nicastro, 564 U.S. 873, 880

16 (2011). “Residence” is simply the place where one lives, even temporarily, and

17 regardless of intent to remain. Williams v. North Carolina, 325 U.S. 226, 229 (1945).

18 On the other hand, “domicile” is the place where one resides with the intent to remain

19 indefinitely. Id. A corporation will be deemed “domiciled” in its state of

20 incorporation or where it has its principal place of business. Goodyear Dunlop Tires

21 Operations, S.A. v. Brown, 564 U.S. 915, 924 (2011). Only in “exceptional case” will

22 a corporation be deemed “at home” for purposes of general jurisdiction anywhere

23 other than place of incorporation and principal place of business. Daimler AG v.

24 Bauman, 571 U.S. 117, 139 n.19 (2014); see Bristol-Myers Squibb Co. v. Superior

25 Court of Cal., 137 S. Ct. 1773, 1781 (2017) (California court lacked personal

26 jurisdiction over claims by non-California residents against pharmaceutical company

27 despite company’s extensive sales, marketing and research in California).

28 In the Consolidated Amended Complaint, Plaintiffs maintain that the Court has

1 general jurisdiction because Defendant Ashley Black resides in California in this

2 district;2 is the founder and principal owner of Defendant corporate entities; and “is

3 the person primarily responsible for the alleged wrongdoing.” (CAC ¶¶ 168–69.)

4 Moreover, Plaintiffs assert that each corporate entity is owned by Ms. Black and does

5 not possess independent corporate existence. (Pl.’s Opp’n to Mot. I (“Opp’n I”) 2,

6 ECF No. 77.) Yet, Plaintiffs provide no other factual allegations to establish Ms.

7 Black’s domicile. (See generally CAC.)

8 The Court determines that Plaintiffs have not satisfied the “exacting” standard

9 necessary to establish general jurisdiction over Ms. Black or any corporate entity, as

10 they have offered no evidence demonstrating that Ms. Black is domiciled in California

11 or that any entity is registered or incorporated to do business in the state, has staff in

12 California, has a registered agent for service of process, or pays state taxes. See, e.g.,

13 Goodyear, 564 U.S. at 920–21; Helicopteros Nacionales de Colombia, S.A. v. Hall,

14 466 U.S. 408, 411 (1984).

15 2. Alter Ego

16 Even if the Court found general jurisdiction over Ms. Black, the alter ego theory

17 does not succeed in conveying that jurisdiction to the corporate Defendants because

18 Plaintiffs have fails to sufficiently allege alter ego for the reasons that follow.

19 The “alter ego rule” is an exception to the general jurisdiction rule, which “may

20 be used to extend personal jurisdiction to a foreign parent or subsidiary when, in

21 actuality, the foreign entity is not really separate from its domestic affiliate.” Ranza,

22 793 F.3d at 1073 (emphasis omitted). To satisfy this test, “a plaintiff must make out a

23 prima facie case (1) that there is such unity of interest and ownership that the separate

24 personalities of the two entities no longer exist and (2) that failure to disregard their

25 separate identities would result in fraud or injustice.” Id. (quotation marks and

26 alterations omitted).

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28 2 Plaintiffs note that they alleged Ms. Black resided in California at the time the acts and omissions

occurred and note that Ms. Black now resides in Costa Rica. (Opp’n II 2.)

1 “The ‘unity of interest and ownership’ prong of this test requires a showing that

2 the parent controls the subsidiary to such a degree as to render the latter the mere

3 instrumentality of the former.” Id. (internal quotation marks omitted). “This test

4 envisions pervasive control over the subsidiary, such as when a parent corporation

5 dictates every facet of the subsidiary’s business—from broad policy decisions to

6 routine matters of day-to-day operation.” Id. (internal quotation marks omitted;

7 emphasis added).

8 Routine interaction and coordination between a parent and its subsidiary is not

9 “pervasive control.” See, e.g., Corcoran v. CVS Health Corp., 169 F. Supp. 3d 970,

10 983 (N.D. Cal. 2016) (quoting Doe v. Unocal Corp., 248 F.3d 915, 928 (9th Cir.

11 2001)) (discussing that, so long as corporate formalities are observed, “an active

12 parent corporation involved directly in decision-making about its subsidiaries’

13 holdings” is insufficient to overcome presumption of corporate separateness). Indeed,

14 even “[t]otal ownership and shared management personnel are alone insufficient to

15 establish the requisite level of control.” Ranza, 793 F.3d at 1073.

16 Here, Plaintiffs contend that Ms. Black dictates every facet of the corporate

17 Defendants’ day-to-day operations, which is allegedly highlighted by Defendants’

18 counsel indicating that other Defendants are referenced as “an Ashley Black

19 Company.” (Opp’n I 3.) Defendants argue that the Court need not accept Plaintiffs’

20 controverted assertions, while ignoring that factual disputes shall be resolved in

21 Plaintiffs’ favor. (Defs.’ Reply to Pls.’ Opp’n to Mot. I (“Reply I”) 3, ECF No. 88.)

22 Even with this benefit, Plaintiffs’ argument fails because it is merely a conclusory

23 allegation buttressed by describing a parent-subsidiary relationship. See Williams v.

24 Yamaha Motor Co., 851 F.3d 1015, 1021–22 (9th Cir. 2017) (finding the plaintiff’s

25 conclusory allegations insufficient to establish prima facie case that parent and

26 subsidiary were alter egos). Establishing alter egos requires more, and Plaintiffs have

27 failed to establish the pervasive control necessary to establish a unity of interest. Id.

28 (noting that a plaintiff must assert factual allegations regarding the nature of the

1 parent-subsidiary relationship that show pervasive control to establish a prima facie

2 case of alter egos). Accordingly, even if the court found general jurisdiction over Ms.

3 Black, Plaintiffs’ alter ego theory fails.

4 3. Specific Jurisdiction

5 As a threshold matter, the Court must consider the personal jurisdiction of all

6 entities. Calder v. Jones, 465 U.S. 783, 790 (1984); Holland Am. Line Inc. v. Wärtsilä

7 North America, Inc., 485 F.3d 450, 459 (9th Cir. 2007) (“where a parent and a

8 subsidiary are separate and distinct corporate entities, the presence of one . . . in a

9 forum state may not be attributed to the other”). Accordingly, the Court must

10 determine whether Plaintiffs have established specific jurisdiction for each Defendant

11 and may not attribute specific jurisdiction from one Defendant to another. Holland

12 Am. Line, 485 F.3d at 459.

13 Also, Plaintiff acknowledge that the Court has only pendant personal

14 jurisdiction over Defendants for the non-California claims of non-California named

15 Plaintiffs. (Opp’n I 5.) Therefore, this Court may only exercise pendent personal

16 jurisdiction over those claims.3 Picot v. Weston, 780 F.3d 1206, 1211 (9th Cir. 2015);

17 Action Embroidery Corp. v. Atlantic Embroidery, Inc., 368 F.3d 1174, 1181 (9th Cir.

18 2004). However, to exercise pendent personal jurisdiction the court must first have

19 jurisdiction over Defendants for the California-claims that are brought by California

20 named Plaintiffs. Picot v. Weston, 780 F.3d at 1211.

21 Under the Ninth Circuit’s three-prong test, a court may exercise specific

22 personal jurisdiction over a non-resident defendant when:

23 (1) [t]he non-resident defendant must purposefully direct his activities or

consummate some transaction with the forum or resident thereof; or

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25 3 Defendants argue that the Court has no basis for asserting pendent personal jurisdiction because

Plaintiffs’ federal claims do not allow nationwide personal jurisdiction, as required by Action

26 Embroidery Corp. (Reply I 8.) However, the Ninth Circuit does not require nationwide personal

jurisdiction to assert pendent personal jurisdiction; rather “the district court may exercise pendent

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personal jurisdiction over any remaining claims that arise out of the same ‘common nucleus of

28 operative facts’ as the claim for which jurisdiction exists.” Picot v. Weston, 780 F.3d 1206, 1211

(9th Cir. 2015); CE Distrib. v. New Sensor Corp., 380 F.3d 1107, 1113 (9th Cir. 2004).

perform some act by which he purposefully avails himself of the

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privilege of conducting activities in the forum, thereby invoking the

2 benefits and protections of its laws; (2) the claim must be one which

3 arises out of or relates to the defendant’s forum-related activities; and

(3) the exercise of jurisdiction must comport with fair play and

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substantial justice, i.e. it must be reasonable.

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Schwarzenegger, 374 F.3d at 802.

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The plaintiff bears the burden of satisfying the first two prongs of the test. Sher

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v. Johnson, 911 F.2d 1357, 1361 (9th Cir. 1990). If the plaintiff fails to satisfy either

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of these prongs, personal jurisdiction is not established in the forum state. Boschetto,

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539 F.3d at 1016. If the plaintiff succeeds in satisfying both of the first two prongs,

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the burden then shifts to the defendant to “present a compelling case” that the exercise

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of jurisdiction would not be reasonable. Id. (quoting Burger King Corp. v. Rudzewicz,

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471 U.S. 462, 476–78 (1985)).

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As Plaintiffs allege that Defendants promote the FasciaBlaster online primarily,

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personal jurisdiction in the internet website context is particularly relevant here. “In

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the internet context, the Ninth Circuit utilizes a sliding scale analysis under which

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‘passive’ websites do not create sufficient contacts to establish purposeful availment,

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whereas interactive websites may create sufficient contacts, depending on how

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interactive the website is.” j2 Cloud Servs., Inc. v. Fax87, No. 13-05353 DDP

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(AJWx), 2017 WL 1535083, at *6 (C.D. Cal. Apr. 27, 2017). In determining

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interactivity, the critical inquiry is the “nature and quality,” not merely the quantity, of

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the contacts. Am. Auto. Ass’n, Inc. v. Darba Enterprises Inc., No. C 09–510 SI, 2009

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WL 1066506, *4 (N.D. Cal. Apr. 21, 2009) (quoting Cybersell, Inc. v. Cybersell, Inc.,

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130 F.3d 414, 418–19 (9th Cir. 1997).

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Here, Plaintiffs’ argue that Defendants have purposefully availed themselves by

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“conduct[ing] and transact[ing] business in the State of California, contract[ing] to

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supply goods within the State of California, and supply[ing] goods within the State of

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California.” (CAC ¶ 10.) However, Plaintiffs fail to discriminate with any specificity

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1 as to which of the named corporate Defendants have purposefully directed its

2 activities at the forum state by way of the alleged websites, leaving the Court to

3 speculate as to which Defendant availed itself. This is insufficient. Holland Am. Line,

4 485 F.3d at 459 (a plaintiff must establish specific jurisdiction for each defendant and

5 may not attribute specific jurisdiction from one defendant to another).

6 Without a further showing, Plaintiffs have not demonstrated which, if any,

7 corporate Defendants have purposefully availed themselves, byway of the alleged

8 websites, to the State of California. Nutrition Distrib. LLC v. Bigdansfitness, LLC,

9 No. 17CV00920 JAH-MDD, 2018 WL 1108041, at *3 (S.D. Cal. Feb. 26, 2018)

10 (finding conclusory allegations that defendant’s website was sufficiently interactive to

11 create requisite contacts is insufficient to establish purposeful availment).

12 Accordingly, Plaintiffs have failed to plead adequate facts as to each corporate

13 Defendant, necessary to satisfy the first prong. See Swartz v. KPMG LLP, 476 F.3d

14 756, 766 (9th Cir. 2007) (finding conclusory allegations that defendants “directed

15 communication into the [forum state] and otherwise conducted business therein”

16 insufficient to make a prima facie showing of personal jurisdiction).

17 By failing to satisfy the first prong, Plaintiffs have failed to establish that this

18 Court has specific personal jurisdiction over Defendants. See Boschetto, 539 F.3d at

19 1016. Accordingly, because this Court lacks personal jurisdiction over Defendants, it

20 may not exercise pendent personal jurisdiction over non-California Plaintiffs’ claims.

21 Picot, 780 F.3d at 1211 (personal jurisdiction must exist over one claim to exercise

22 pendent personal jurisdiction over claims that lack personal jurisdiction).

23 D. DISMISSAL OR TRANSFER

24 As the Court lacks personal jurisdiction over Defendants, it must determine

25 whether to dismiss or transfer the action. See 28 U.S.C. § 1631. Pursuant to section

26 1631, a court lacking jurisdiction shall transfer the action to a court in which it could

27 have been brought when filed, if transfer is in the interest of justice. Miller v.

28 Hambrick, 905 F.2d 259, 262 (9th Cir. 1990). “Normally transfer will be in the

1 || interest of justice because normally dismissal of an action that could be brought

2 | elsewhere is ‘time-consuming and justice-defeating.’” Jd. Here, all Defendants are

3 || domiciled in Houston, Harris County, Texas. (Decl. of John Ketter 4 10, ECF

4|| No. 49.) Pursuant to 28 U.S.C. §§ 1631 and 1404(a), the Court finds that transfer is

5 || appropriate to the Southern District of Texas, Houston Division because all of the

6 || Defendants are subject to general personal jurisdiction in the state of Texas.

7 || Moreover, dismissal of this action would not serve the interest of justice here because

8 | transfer is proper. Miller, 905 F.2d at 262.

9 Therefore, the court DENIES Defendants’ motion to dismiss pursuant to

10 || 12(b)(2), and instead TRANSFERS the matter to the Southern District of Texas.

11 | (ECF No. 46.)

12 IV. CONCLUSION

13 For the reasons discussed above, the Court STRIKES Defendants’ motions to

14 | dismiss and to strike (ECF Nos. 63-64); DENIES Defendants’ motion to dismiss for

15 || insufficient process and failure to timely serve (ECF No. 47); and DENIES

16 || Defendants’ motion to dismiss for lack of personal jurisdiction (ECF No. 46), but

17 || instead TRANSFERS the matter to the Southern District of Texas. Accordingly, the

18 | Clerk of Court shall TRANSFER the action to the United States District Court,

19 | Southern District of Texas, Houston Division, 515 Rusk Street, Houston, TX 77002.

20 | Motions to Dismiss (ECF Nos. 45, 48) are DENIED without prejudice in light of the

21 || Courts order to transfer.

22

23 IT IS SO ORDERED.

24

25 September 25, 2019

26 .

38 OTIS D. WRIGHT, II

UNITED STATES DISTRICT JUDGE