OEM Group Incorporated v. SEMSYSCO Incorporated et al

Filing 34

ORDER, Defendant SEMSYSCO, Inc.'s motion to dismiss for lack of personal jurisdiction 18 is granted; in light of this ruling, the Court will not enter a Case Management Order until SEMSYSCO Austria has been served and appears in this case. Signed by Judge David G Campbell on 2/14/14.(REW)

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WO

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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OEM Group Incorporated, an Arizona
corporation,

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Plaintiff,

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ORDER

v.

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No. CV13-1960 PHX DGC

SEMSYSCO Incorporated, a Montana
corporation, et al.,

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Defendants.

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Defendant SEMSYSCO, Inc. has filed a motion to dismiss for lack of personal

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jurisdiction. Doc. 18. The motion is fully briefed. Docs. 25, 29. The Court discussed

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the motion with the parties at the Case Management Conference held on

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February 13, 2014.

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This is a patent infringement case. SEMSYSCO’s motion asserts that it is a

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holding corporation located in Montana and does not make, use, sell, offer to sell, or

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import any products or services, including those alleged to be infringing of Plaintiff’s

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patents. In response, Plaintiff OEM Group, Inc. does not dispute this assertion. OEM

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presents no evidence that SEMSYSCO has taken any action that violated its patents or

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affected interests within the State of Arizona. Instead, OEM argues that SEMSYSCO

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may be an alter-ego of Co-defendant SEMSYSCO Austria, or that SEMSYSCO may be

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liable for inducing infringement. The Court finds neither argument persuasive.

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OEM presents no factual allegations in its complaint, and no factual assertions in

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its response, to show that SEMSYSCO is the alter-ego of SEMSYSCO Austria. Indeed,

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the words “alter-ego” do not even appear in OEM’s complaint. See Doc. 1. OEM’s

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response to the motion to dismiss does contain factual assertions and supporting

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documentation concerning a relationship between SEMSYSCO Austria and an entity

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known as The Thompson Group, but The Thompson Group is separate from

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SEMSYSCO and is not a party to this case. Doc. 25 at 2-4. OEM candidly states that “it

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is unknown” whether SEMSYSCO is the alter-ego of SEMSYSCO Austria. Doc. 25 at

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10.

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To defeat a motion to dismiss for lack of personal jurisdiction on the basis of

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pleadings and affidavits, a plaintiff must make only a prima facie showing of jurisdiction.

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Nuance Communications, Inc. v. Abbyy Software House, 626 F.3d 1222, 1231 (Fed. Cir.

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2010). But OEM has not made even a prima facie showing. Its complaint does not set

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forth any facts to show that SEMSYSCO is the alter-ego of SEMSYSCO Austria, and its

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response fails to provide such facts.

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OEM has also failed to make a prima facie showing that SEMSYSCO is subject to

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personal jurisdiction on the basis of having induced infringement. OEM argues that

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SEMSYSCO’s motion “does not rule out allegations that [SEMSYSCO] induced

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infringement,” and cites to paragraphs 20, 35, 50, and 65 of its complaint. Doc. 25 at 9.

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These paragraphs in the complaint, however, do not allege any facts upon which it could

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be asserted that SEMSYSCO is liable for inducing infringement. To the extent OEM is

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suggesting that SEMSYSCO Austria induced infringement by selling products to others,

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SEMSYSCO could be liable for that conduct only if it were the alter-ego of SEMSYSCO

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Austria, an assertion that has not been supported. To the extent OEM suggests that

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SEMSYSCO itself has undertaken actions that constitute inducement of infringement, it

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has pointed to no factual allegations and no supporting evidence to back up such a claim.

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Thus, OEM has failed to establish a prima facie case of jurisdiction over SEMSYSCO

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based on inducement of infringement.

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OEM asks the Court to permit jurisdictional discovery. The Federal Circuit has

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instructed that a request for jurisdictional discovery is to be decided on the basis of Ninth
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Circuit law, not Federal Circuit law. See Autogenomics, Inc. v. Oxford Gene Tech. Ltd.,

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566 F.3d 1012, 1021 (Fed. Cir. 2009).

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plaintiff’s claim of personal jurisdiction appears to be both attenuated and based on their

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allegations in the face of specific denials made by defendants, the Court need not permit

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even limited discovery[.]” Terracom v. Valley Nat’l Bank, 49 F.3d 555, 562 (9th Cir.

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1995).

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SEMSYSCO is an alter-ego of SEMSYSCO Austria, and no factual allegations that

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SEMSYSCO engaged in inducement of infringement. Nor has OEM provided factual

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support for such assertions in its response to the motion to dismiss. Given the utter lack

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of supporting facts for the suggestion that SEMSYSCO is subject to personal jurisdiction

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in Arizona, the Court will dismiss the claim against SEMSYSCO and deny OEM’s

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request for jurisdictional discovery under Terracom.

The Ninth Circuit has held that where “a

As discussed above, Plaintiff has not even made bare allegations that

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IT IS ORDERED that Defendant SEMSYSCO, Inc.’s motion to dismiss for lack

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of personal jurisdiction (Doc. 18) is granted. In light of this ruling, the Court will not

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enter a Case Management Order until SEMSYSCO Austria has been served and appears

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in this case.

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Dated this 14th day of February, 2014.

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