Opinion

Fluidigm Corporation v. BioMerieux, SA

Court
District Court, N.D. California
Filed
Dec 5, 2019
Cited by
0 cases
Authority
More cited than 18.6%

“[D]iscovery should ordinarily be granted where 21 pertinent facts bearing on the question of jurisdiction are controverted or where a more satisfactory 22 showing of the facts is necessary.” (quotation marks omitted)

How later courts described this case

  • “[D]iscovery should ordinarily be granted where 21 pertinent facts bearing on the question of jurisdiction are controverted or where a more satisfactory 22 showing of the facts is necessary.” (quotation marks omitted)
  • “The court may consider evidence presented in affidavits to assist it in its 22 determination and may order discovery on the jurisdictional issues.”
  • “The court may consider evidence presented in 13 affidavits to assist it in its determination and may order discovery on the jurisdictional issues.”
  • “Because 12 California’s long-arm statute is co-extensive with federal due process requirements, the 13 jurisdictional analyses under California law and federal law are the same.”

Written by the judges who cited it.

The opinion

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8 UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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12 FLUIDIGM CORPORATION, Case No. 19-CV-02716-LHK

13 Plaintiff,

ORDER GRANTING MOTION TO

DISMISS FOR LACK OF PERSONAL

14 v.

JURISDICTION WITH LEAVE TO

AMEND

15 BIOMERIEUX, SA,

Re: Dkt. No. 21

16 Defendant.

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18 bioMérieux SA (“Defendant”) moves to dismiss Fluidigm’s (“Plaintiff”) complaint for

19 patent infringement of U.S. Patent No. 10,131,934 (the “’934 Patent”). Having considered the

20 parties’ submissions, the relevant law, and the record in this case, the Court hereby GRANTS

21 Defendant’s motion to dismiss with leave to amend.

22 I. BACKGROUND

23 A. Factual Background

24 Plaintiff, a Delaware corporation with its principal place of business in San Francisco,

25 California, owns the ’934 Patent, issued on November 20, 2018. ECF No. 1 ¶¶ 2, 12 (“Compl.”).

26 The inventions claimed in the ’934 Patent broadly “pertain to methods for carrying out nucleic

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1 amplification reactions and detecting polynucleotide sequences.” Id. ¶ 15. Plaintiff contends that

2 Defendant “markets, makes, uses, sells, offers to sell, and induces and contributes to the use of the

3 Infringing Instrumentalities.” Id. ¶ 16. The “Infringing Instrumentalities” relate to BioFire

4 FilmArray system. Id. ¶¶ 16-18. Plaintiff alleges that Defendant made the BioFire FilmArray

5 system available in the United States, and that Defendant reported financial results that

6 incorporated revenues related to “FilmArray sales.” ECF No. 1-2; ECF No. 1-3 (“For the year, the

7 firm’s FilmArray sales contributed €483 million in revenues, and the Americas region contributed

8 revenues of €1.1 billion, up 6 percent from €1.0 million in 2017.”). Finally, Plaintiff alleges that

9 Defendant participated in the Southern California American Society for Microbiology Annual

10 Meeting in 2016, ECF No. 1-5, and that Defendant “directs its activities toward residents of

11 [California], by partnering with and even acquiring companies [here],” Compl. ¶ 9.

12 Defendant bioMérieux SA is a foreign corporation, formed under the laws of France, with

13 headquarters at F-69280 Marcy l’Etoile, France. Id. ¶ 3; ECF No. 21-1 ¶ 4 (“Aelbrecht Decl.”).

14 Defendant submitted a declaration from Nadia Aelbrecht, bioMérieux SA’s FilmArray Business

15 Director for Europe, the Middle East and Africa. Aelbrecht Decl. ¶ 1. Aelbrecht stated that

16 Defendant does not have a physical corporate presence in the United States, and Defendant does

17 not make, use, offer to sell, or sell within the United States, or import into the United States, the

18 BioFire FilmArray system. Id. ¶¶ 5, 9-10. Indeed, in the United States, Defendant has no

19 customers for the FilmArray system or any associated products. Id. ¶ 10.

20 Instead, BioFire Diagnostics, LLC (“BioFire”), designed, developed, manufactures, and

21 sells the FilmArray system and associated products in the United States. Id. ¶¶ 11, 13. BioFire is

22 a wholly owned subsidiary of Defendant with headquarters in Salt Lake City, Utah, and is a

23 separate legal entity from Defendant, with its own separate management, board of directors, and

24 accounting system. Id. ¶¶ 6-8. Plaintiff’s own exhibit, a FilmArray instruction booklet, directs

25 U.S. customers to contact BioFire for customer and technical support, whereas customers outside

26 the United States are to contact a “local bioMérieux sales representative or an authorized

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1 distributor for technical support.” ECF No. 1-11 at 3.

2 B. Procedural History

3 On May 17, 2019, Plaintiff filed a complaint against Defendant that alleged Defendant

4 directly infringed the ’934 Patent and was liable for induced and contributory infringement.

5 Compl. ¶¶ 29-32. On August 15, 2019, Defendant filed a motion to dismiss along with a

6 supporting affidavit. ECF No. 21 (“Mot.”); ECF No. 21-1 (“Aelbrecht Decl.”). On September 20,

7 2019, Plaintiff filed an opposition, but did not file any supporting affidavits. ECF No. 28

8 (“Opp.”). On October 7, 2019, Defendant filed a reply. ECF No. 29 (“Reply”).

9 II. LEGAL STANDARD

10 In the instant motion, Defendant raises three arguments for dismissing Plaintiff’s

11 Complaint: (1) lack of personal jurisdiction, under Rule 12(b)(2); (2) improper venue, under Rule

12 12(b)(3); and (3) failure to state a claim, under Rule 12(b)(6). Because the Court resolves the

13 instant motion by addressing only personal jurisdiction, the Court confines its review of the

14 applicable legal standards to those under Rule 12(b)(2).

15 A. Motion to Dismiss under Rule 12(b)(2)

16 In a motion challenging personal jurisdiction under Federal Rule of Civil Procedure

17 12(b)(2), the plaintiff, as the party seeking to invoke the jurisdiction of the federal court, has the

18 burden of establishing that jurisdiction exists. See Schwarzenegger v. Fred Martin Motor Co., 374

19 F.3d 797, 800 (9th Cir. 2004). Courts may consider declarations and other evidence outside the

20 pleadings in determining whether it has personal jurisdiction. Doe v. Unocal Corp., 248 F.3d 915,

21 922 (9th Cir. 2001) (“The court may consider evidence presented in affidavits to assist it in its

22 determination and may order discovery on the jurisdictional issues.”). “Where, as here, the

23 defendant’s motion is based on written materials rather than an evidentiary hearing, the plaintiff

24 need only make a prima facie showing of jurisdictional facts to withstand the motion to dismiss.”

25 Ranza v. Nike, Inc., 793 F.3d 1059, 1068 (9th Cir. 2015) (quotation marks omitted). At this stage

26 of the proceeding, “uncontroverted allegations in plaintiff’s complaint must be taken as true, and

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1 conflicts between the facts contained in the parties’ affidavits must be resolved in plaintiff’s

2 favor.” Brayton Purcell LLP v. Recordon & Recordon, 606 F.3d 1124, 1127 (9th Cir. 2010)

3 (internal quotation marks, citations, and alterations omitted). Courts, however, “may not assume

4 the truth of allegations in a pleading which are contradicted by affidavit.” Mavrix Photo, Inc. v.

5 Brand Techs., Inc., 647 F.3d 1218, 1223 (9th Cir. 2011).

6 B. Leave to Amend

7 If the Court determines that a complaint should be dismissed, it must then decide whether

8 to grant leave to amend. Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to

9 amend “shall be freely given when justice so requires,” bearing in mind “the underlying purpose

10 of Rule 15 to facilitate decisions on the merits, rather than on the pleadings or technicalities.”

11 Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (alterations and internal quotation

12 marks omitted). When dismissing a complaint for failure to state a claim, “a district court should

13 grant leave to amend even if no request to amend the pleading was made, unless it determines that

14 the pleading could not possibly be cured by the allegation of other facts.” Id. at 1130 (internal

15 quotation marks omitted). Accordingly, leave to amend generally shall be denied only if allowing

16 amendment would unduly prejudice the opposing party, cause undue delay, or be futile, or if the

17 moving party has acted in bad faith. Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522, 532

18 (9th Cir. 2008).

19 III. DISCUSSION

20 Defendant moves to dismiss Plaintiff’s Complaint for lack of personal jurisdiction,

21 improper venue, and failure to state a claim. Plaintiffs responds that if personal jurisdiction is

22 lacking in this District, Federal Rule of Civil Procedure 4(k)(2) provides an alternative basis for

23 asserting personal jurisdiction over Defendant. As explained below, the Court concludes that

24 personal jurisdiction is absent, and consequently, the Court does not reach Defendant’s arguments

25 concerning improper venue and failure to state a claim.

26 A. Personal Jurisdiction

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1 Because the jurisdictional issue is “intimately involved with the substance of the patent

2 laws,” Federal Circuit law governs. Autogenomics, Inc. v. Oxford Gene Tech. Ltd., 566 F.3d 1012,

3 1016 (Fed. Cir. 2009) (quotation marks omitted).

4 To determine the propriety of asserting personal jurisdiction over a defendant, the Court

5 examines whether such jurisdiction is permitted by the applicable state’s long-arm statute and

6 comports with the demands of federal due process. Nuance Commc’ns, Inc. v. Abbyy Software

7 House, 626 F.3d 1222, 1230 (Fed. Cir. 2010). California’s long-arm statute, Cal. Civ. Proc. Code

8 § 410.10, is coextensive with federal due process requirements, and therefore the jurisdictional

9 analyses under state law and federal due process coalesce into a single inquiry. See Cal. Civ. Proc.

10 Code § 410.10 (“[A] court of this state may exercise jurisdiction on any basis not inconsistent with

11 the Constitution of this state or of the United States.”); Nuance, 626 F.3d at 1230 (“Because

12 California’s long-arm statute is co-extensive with federal due process requirements, the

13 jurisdictional analyses under California law and federal law are the same.”). “The constitutional

14 touchstone for determining whether an exercise of personal jurisdiction comports with due process

15 remains whether the defendant purposefully established ‘minimum contacts’ in the forum State.”

16 Nuance, 626 F.3d at 1230-31 (quotation marks omitted).

17 Courts “recognize[] two types of personal jurisdiction: ‘general’ (sometimes called ‘all-

18 purpose’) jurisdiction and ‘specific’ (sometimes called ‘case-linked’) jurisdiction.” Bristol-Myers

19 Squibb Co. v. Superior Court of Cal., San Francisco Cty., 137 S. Ct. 1773, 1779 (2017) (quoting

20 Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 918 (2011)). “To be subject to

21 general jurisdiction, a defendant business entity must maintain ‘continuous and systematic general

22 business contacts’ with the forum, even when the cause of action has no relation to those

23 contacts.” Synthes (U.S.A.) v. G.M. Dos Reis Jr. Ind. Com de Equip. Medico, 563 F.3d 1285, 1297

24 (Fed. Cir. 2009) (citation omitted). “A court with general jurisdiction may hear any claim against

25 that defendant, even if all the incidents underlying the claim occurred in a different State,” “[b]ut

26 only a limited set of affiliations with a forum will render a defendant amenable to general

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1 jurisdiction in that State.” Bristol-Myers Squibb, 137 S. Ct. at 1780. Plaintiff does not allege that

2 general jurisdiction is proper here.

3 Rather, Plaintiff contends that the Court has specific jurisdiction over Defendant. Opp. at

4 6. Specific jurisdiction is proper when a suit “aris[es] out of or relate[s] to the defendant’s

5 contacts with the forum.” Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414

6 n.8 (1984). Whether a court has specific jurisdiction over a nonresident defendant “focuses on the

7 relationship among the defendant, the forum, and the litigation,” and “the defendant’s suit-related

8 conduct must create a substantial connection with the forum.” Walden v. Fiore, 571 U.S. 277, 285

9 (2014). “When there is no such connection, specific jurisdiction is lacking regardless of the extent

10 of a defendant’s unconnected activities in the State.” Bristol-Myers, 137 S. Ct. at 1781; see

11 Goodyear, 564 U.S. at 931 n.6 (“[E]ven regularly occurring sales of a product in a State do not

12 justify the exercise of jurisdiction over claims unrelated to those sales.” (emphasis added)).

13 1. Specific Jurisdiction

14 For specific jurisdiction, the Federal Circuit has adopted a three-prong test analyzing “(1)

15 whether the defendant ‘purposefully directed’ its activities at residents of the forum; (2) whether

16 the claim ‘arises out of or relates to’ the defendant’s activities with the forum; and (3) whether

17 assertion of personal jurisdiction is ‘reasonable and fair.’” Inamed Corp. v. Kuzmak, 249 F.3d

18 1356, 1360 (Fed. Cir. 2001). “The first two factors correspond with the ‘minimum contacts’

19 prong of the International Shoe Co. v. Washington, 326 U.S. 310 (1945), analysis, and the third

20 factor corresponds with the ‘fair play and substantial justice’ prong of the analysis.” Xilinx, Inc. v.

21 Papst Licensing GmbH & Co. KG, 848 F.3d 1346, 1353 (Fed. Cir. 2017) (internal alterations

22 omitted). In regards to the first factor, “it is essential in each case that there be some act by which

23 the defendant purposefully avails itself of the privilege of conducting activities within the forum

24 State, thus invoking the benefits and protections of its laws.” Id. (quoting Hanson v. Denckla, 357

25 U.S. 235, 253 (1958)). “As to the second factor, also part of the minimum contacts analysis, the

26 court must determine whether the suit arises out of or relates to the defendant’s contacts with the

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1 forum.” Id. (quotation marks and internal alterations omitted).

2 Plaintiff argues that it satisfies the first two “minimum contacts” factors, and that the “fair

3 play and substantial justice” prong does not prohibit the exercise of personal jurisdiction.

4 Specifically, Plaintiff contends that Defendant “placed the infringing products into the stream of

5 commerce with the expectation that they would be purchased by customers in this District,”

6 “[took] credit for sales in the District,” offered to sell the infringing products at trade shows in

7 California, and “partner[ed] with and enter[ed] into agreements with companies in this District.”

8 Mot. at 6-7; Compl. ¶ 8.

9 Plaintiff’s allegations fail because they are controverted by the Aelbrecht Declaration.

10 Contrary to Plaintiff’s position, courts can consider “affidavits and other written materials” when

11 answering “the personal jurisdiction question.” Elecs. For Imaging, Inc. v. Coyle, 340 F.3d 1344,

12 1349 (Fed. Cir. 2003); Unocal, 248 F.3d at 922 (“The court may consider evidence presented in

13 affidavits to assist it in its determination and may order discovery on the jurisdictional issues.”).

14 While “a district court must accept the uncontroverted allegations in the plaintiff's complaint as

15 true” and resolve conflicts between dueling affidavits “in plaintiff’s favor,” Autogenomics, 566

16 F.3d at 1017, courts “may not assume the truth of allegations in a pleading which are contradicted

17 by affidavit,” Mavrix Photo, 647 F.3d at 1223.

18 Here, the Aelbrecht Declaration states that Defendant “does not make, use, offer to sell, or

19 sell within the United States, or import [the infringing products] into the United States.”

20 Aelbrecht Decl. ¶ 9. Rather, “BioFire Diagnostics, LLC designed, developed[,] and manufactures

21 the FilmArray[] System and associated products,” and is the “manufacturer and seller” of the

22 infringing products in the United States. Id. ¶¶ 11, 13. The Aelbrecht Declaration further notes

23 that Defendant “has no customers for the FilmArray[] System or any associated FilmArray[]

24 products in the United States.” Id. ¶ 10. Indeed, Plaintiff’s own exhibit to the Complaint

25 acknowledges that BioFire Diagnostics, LLC is responsible for customer and technical support in

26 the United States, whereas Defendant is responsible for any issues related to the FilmArray

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1 product overseas. ECF No. 1-11 at 3. Plaintiff cannot impute BioFire Diagnostics, LLC’s

2 contacts to Defendant, as “[i]t is well-established that a parent-subsidiary relationship alone is

3 insufficient to attribute the contacts of the subsidiary to the parent for jurisdictional purposes.”

4 Harris Rutsky & Co. Ins. Servs. v. Bell & Clements Ltd., 328 F.3d 1122, 1134 (9th Cir. 2003).

5 Furthermore, although Plaintiff’s Complaint alleged that Defendant was a platinum

6 sponsor of the Southern California American Society for Microbiology Annual Meeting in 2016,

7 Compl. ¶ 8; ECF No. 1-5, Plaintiff’s opposition also alleges that Defendant “demonstrated its

8 infringing products” at this meeting, Opp. at 5. This allegation regarding the demonstration of the

9 infringing products is not in the Complaint. See Compl. ¶ 8. Moreover, Plaintiff’s exhibit, ECF

10 No. 1-5, does not show that Defendant demonstrated its infringing products at the meeting. In

11 addition, as noted above, the Aelbrecht Declaration claims that Defendant “does not make, use,

12 offer to sell, or sell within the United States, or import into the United States” the infringing

13 products. Aelbrecht Decl. ¶ 9.

14 Finally, the allegations that are not in conflict with the Aelbrecht Declaration are still

15 insufficient to establish specific jurisdiction. In particular, Plaintiff alleges that Defendant

16 “partner[ed] with and enter[ed] into agreements with companies in this District.” Mot. at 6;

17 Compl. ¶ 9 (“Defendant further regularly directs its activities toward residents of this Forum, such

18 as partnering with and even acquiring companies in this Forum.”); ECF No. 1-6. It is unclear,

19 however, from the Complaint or the attached exhibit, whether these “agreements with companies

20 in this District” have anything to do with the infringing products. Moreover, Plaintiff’s allegation

21 that Defendant was a platinum sponsor of the Southern California American Society for

22 Microbiology Annual Meeting in 2016 also does not indicate whether the meeting had anything to

23 do with the infringing products. Failure to tie the agreements and the platinum sponsorship to the

24 infringing products is fatal because in order for the Court to find that Defendant has sufficient

25 minimum contacts for personal jurisdiction, “the suit [must] aris[e] out of or relat[e] to” those

26 contacts. Xilinx, 848 F.3d at 1353; Goodyear, 564 U.S. at 931 n.6 (“[E]ven regularly occurring

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1 sales of a product in a State do not justify the exercise of jurisdiction over claims unrelated to

2 those sales.” (emphasis added)).

3 Plaintiff nonetheless persists, and relies on two cases, Synthes (U.S.A.) v. G.M. Dos Reis

4 Jr. Ind. Com de Equip. Medico, 563 F.3d 1285, 1297 (Fed. Cir. 2009), and Polar Electro Oy v.

5 Suunto Oy, 829 F.3d 1343 (Fed. Cir. 2016), to contend that personal jurisdiction is altogether

6 proper. Synthes and Polar Electro, however, do not alter the Court’s conclusion.

7 In Synthes, the Federal Circuit held that a California district court had personal jurisdiction

8 over a Brazilian company in a patent infringement suit when that Brazilian company imported the

9 infringing products into the United States, displayed them at trade shows, and attempted to

10 generate interest in those products among attendees of the trade show. 563 F.3d at 1298. Though

11 the Brazilian company expressly discouraged United States residents from purchasing its products,

12 the Federal Circuit concluded that (1) the company’s importation of the infringing product into the

13 United States, and (2) the company’s travel to the United States for the purpose of displaying

14 infringing products at trade shows in the United States and attended by United States residents was

15 sufficient to show purposeful direction. Id. The present case is distinguishable. Here, Defendant

16 claims that it “does not make, use, offer to sell, or sell within the United States, or import into the

17 United States” the infringing products. Aelbrecht Decl.¶ 9.

18 Polar Electro is also inapposite. In Polar Electro, the Federal Circuit found that personal

19 jurisdiction was proper over a Suunto, a Finnish company that supplied its products from Finland

20 and provided “outbound logistics services,” even though Suunto’s sister company was the one that

21 distributed Suunto’s products in the United States. 829 F.3d at 1346. The Federal Circuit noted

22 that “Suunto purposefully shipped at least ninety-four accused products to Delaware retailers, fully

23 expecting that its products would then be sold in Delaware as a result of its activities.” Id. 1350.

24 Not only that, but Suunto conceded that it “physically fulfilled the orders, packaged the products,

25 and prepared the shipments in Finland” to be sent to Delaware. Id. at 1351. “Through its own

26 conduct, Suunto purposefully availed itself of the Delaware market.” Id.

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1 No analogous facts are present in the instant case. There is no evidence that California

2 residents purchased the infringing products from Defendant, as opposed to BioFire Diagnostics,

3 LLC. Likewise, there are no allegations or evidence that Defendant shipped its products to

4 California, physically fulfilled orders to California, packaged the products, or prepared shipments

5 for California. See Polar Electro, 829 F.3d at 1346. Again, the Aelbrecht Declaration explains

6 that Defendant “does not make, use, offer to sell, or sell within the United States, or import into

7 the United States” the infringing products, Aelbrecht Decl. ¶ 9, and Plaintiff’s exhibits

8 acknowledge that BioFire Diagnostics, LLC is responsible for customer and technical support in

9 the United States, whereas Defendant is responsible for any issues related to the FilmArray

10 product overseas, ECF No. 1-11 at 3. Accordingly, Polar Electro is also distinguishable from the

11 instant case.

12 Instead, the instant case is most analogous to Colida v. LG Elecs., Inc., 77 Fed. App’x 523,

13 524 (Fed. Cir. 2003), where the Federal Circuit affirmed the dismissal of patent infringement

14 claims against a foreign parent company on the grounds that personal jurisdiction was lacking.

15 Based in part on an affidavit from the foreign parent company, the Federal Circuit held that even

16 though the foreign company had a subsidiary in New Jersey, personal jurisdiction was improper

17 where the foreign company did not conduct business in New Jersey, did not solicit customers in

18 New Jersey, did not maintain offices in New Jersey, and did not have employees in New Jersey.

19 Id. at 526. Those same facts are true here, and as a result, the same conclusion follows.

20 Therefore, Defendant has not “‘purposefully directed’ its activities at residents of the

21 forum,” nor does Plaintiff’s “claim ‘aris[e] out of or relat[e] to’” Defendant’s activities with the

22 forum. Inamed Corp., 249 F.3d at 1360. In other words, the Court lacks personal jurisdiction

23 over Defendant because Defendant does not have any relevant contacts with California.

24 2. Federal Rule of Civil Procedure 4(k)(2)

25 Nonetheless, Plaintiff contends that even if Defendant lacks relevant contacts with

26 California, Federal Rule of Civil Procedure 4(k)(2) allows the Court to exercise personal

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1 jurisdiction based on Defendant’s “contacts with the entire United States, as opposed to the state

2 in which the district court sits.” Mot. at 8-9 (quoting Touchcom, Inc. v. Bereskin & Parr, 574 F.3d

3 1403, 1416 (Fed. Cir. 2009).

4 Rule 4(k)(2) states, in relevant part: “For a claim that arises under federal law, serving a

5 summons . . . establishes personal jurisdiction over a defendant if: (A) the defendant is not subject

6 to jurisdiction in any state’s courts of general jurisdiction; and (B) exercising jurisdiction is

7 consistent with the United States Constitution and laws.” Fed. R. Civ. P. 4(k)(2). The Federal

8 Circuit thus reads Rule 4(k)(2) to require three elements: “the plaintiff’s claim must arise under

9 federal law, the defendant must not be subject to jurisdiction in any state’s courts of general

10 jurisdiction, and exercise of jurisdiction must comport with due process.” Touchcom, 574 F.3d at

11 1412 (citing Synthes, 563 F.3d at 1293-94).

12 Defendant contests only the second element of the Rule 4(k)(2) personal jurisdiction test—

13 namely, that defendant is not subject to jurisdiction in any state’s courts of general jurisdiction.

14 Under Federal Circuit precedent, a “federal court is entitled to use Rule 4(k)(2)” “if the defendant

15 contends that he cannot be sued in the forum state and refuses to identify any other where suit is

16 possible.” Id. at 1415 (quotation omitted). Here, however, Defendant explicitly concedes that

17 Defendant is subject to jurisdiction in other states’ courts of general jurisdiction.

18 Specifically, Defendant acknowledges that “it has continuous and systematic contacts with

19 its subsidiaries in” Utah and North Carolina, and that these two States “provid[e] . . . possible

20 [fora] for a case against [Defendant] (if and when [Defendant] might be a proper defendant).”

21 Reply at 8-9. “Naming a more appropriate state [amounts] to a consent to personal jurisdiction

22 there,” and therefore, Defendant consents to personal jurisdiction in Utah and North Carolina.

23 Touchcom, 574 F.3d at 1414 (quoting ISI Int’l, Inc. v. Borden Ladner Gervais LLP, 256 F.3d 548,

24 552 (7th Cir. 2001)); Bradford Co. v. Conteyor N. Am., Inc., 603 F.3d 1262, 1272 (Fed. Cir. 2010)

25 (holding that conceding personal jurisdiction in another State “in its briefing” amounts to consent

26 to personal jurisdiction in that State); Bradford, 603 F.3d at 1272 (“[A] district court [may] use

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1 Rule 4(k)(2) whenever a foreign defendant contends that he cannot be sued in the forum state and

2 refuses to identify any other state where suit is possible.”). Accordingly, because Defendant

3 consents to personal jurisdiction in Utah and North Carolina, Rule 4(k)(2) does not supply a basis

4 for this Court to exercise personal jurisdiction over Defendant.

5 As a result the Court lacks personal jurisdiction over Defendant and therefore GRANTS

6 Defendant’s motion to dismiss on that basis. Nonetheless, because granting Plaintiff an additional

7 opportunity to amend the Complaint would not be futile, cause undue delay, or unduly prejudice

8 Defendant, and Plaintiff has not acted in bad faith, the Court GRANTS Plaintiff leave to amend.

9 See Leadsinger, Inc., 512 F.3d at 532.

10 3. Jurisdictional Discovery

11 Ninth Circuit law governs jurisdictional discovery because “discovery[] [is] an issue not

12 unique to patent law.” Autogenomics, 566 F.3d at 1021 (“We review the district court’s denial of

13 discovery, an issue not unique to patent law, for abuse of discretion, applying the law of the

14 regional circuit.”). In any event, Federal Circuit case law mirrors Ninth Circuit case law.

15 Compare Trintec Indus., Inc. v. Pedre Promotional Prods., Inc., 395 F.3d 1275, 1283 (Fed. Cir.

16 2005) (“If the district court concludes that the existing record is insufficient to support personal

17 jurisdiction . . . [jurisdictional] discovery is appropriate where the existing record is inadequate to

18 support personal jurisdiction and a party demonstrates that it can supplement its jurisdictional

19 allegations through discovery.” (quotation and citation omitted), with Laub v. U.S. Dep’t of the

20 Interior, 342 F.3d 1080, 1093 (9th Cir. 2003) (“[D]iscovery should ordinarily be granted where

21 pertinent facts bearing on the question of jurisdiction are controverted or where a more satisfactory

22 showing of the facts is necessary.” (quotation marks omitted)).

23 Though Plaintiff did not make a request for jurisdictional discovery, “[a] district court is

24 vested with broad discretion to permit or deny [jurisdictional] discovery.” Laub, 243 F.3d at 1093.

25 A court can deny jurisdictional discovery “when it is clear that further discovery would not

26 demonstrate facts sufficient to constitute a basis for jurisdiction,” Am. W. Airlines, Inc. v. GPA

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1 Group, Ltd., 877 F.2d 793, 801 (9th Cir. 1989) (quotation marks omitted), or where the request for

2 discovery is “based on little more than a hunch that it might yield jurisdictionally relevant facts,”

3 Boschetto v. Hansing, 539 F.3d 1011, 1020 (9th Cir. 2008). “[D]iscovery should ordinarily be

4 granted,” however, “where pertinent facts bearing on the question of jurisdiction are controverted

5 or where a more satisfactory showing of the facts is necessary.” Laub, 342 F.3d at 1093

6 (quotation marks omitted). Because some pertinent facts bearing on the question of jurisdiction

7 are controverted and discovery could demonstrate facts sufficient to confer jurisdiction, the Court

8 therefore permits jurisdictional discovery.

9 IV. CONCLUSION

10 For the foregoing reasons, the Court GRANTS Defendant’s motion to dismiss for lack of

11 personal jurisdiction with leave to amend and GRANTS jurisdictional discovery. Plaintiff shall

12 file any amended complaint within 60 days of this Order. Failure to file an amended complaint

13 within 60 days or failure to cure the deficiencies identified herein or in Defendant’s motion to

14 dismiss will result in dismissal of Plaintiff’s claims against Defendant with prejudice. Plaintiff

15 may not add new causes of action or parties without a stipulation or leave of the Court.

16 IT IS SO ORDERED.

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18 Dated: December 5, 2019

19 ______________________________________

LUCY H. KOH

20 United States District Judge

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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