Kobe Falco v. Nissan North America Inc et al
Filing
114
ORDER DENYING DEFENDANTS MOTIONS TO DISMISS UNDER RULES 12(b)(2) AND 12(b)(6) 99 , 100 by Judge Dean D. Pregerson: The Court DENIES the motions to dismiss as to all claims except the Fifth Cause of Action (Fraud), which is DISMISSED as to NML. (lc). Modified on 4/6/2015 (lc).
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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KOBE FALCO, individually,
and on behalf of a class
similarly situated
individuals,
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Plaintiff,
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v.
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NISSAN NORTH AMERICA INC.,
NISSAN MOTOR CO.LTD, a
Japanese Company,
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Defendants.
___________________________
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Case No. CV 13-00686 DDP (MANx)
ORDER DENYING DEFENDANT’S MOTIONS
TO DISMISS UNDER RULES 12(b)(2)
AND 12(b)(6)
[Dkt. Nos. 99, 100]
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Presently before the Court are two Motions to Dismiss the
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Second Amended Complaint as to Nissan Motor Co. Ltd (“NML”), one
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for lack of personal jurisdiction and one for failure to state a
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claim.
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considered the parties’ submissions, the Court adopts the following
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order.
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I.
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(Dkt. Nos. 99, 100.)
Having heard oral arguments and
BACKGROUND
The Court has already set out the background facts of this
case in its order of October 10, 2013, and they remain largely the
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same.
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between 2005 and 2007 that shared in common a particular kind of
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timing chain system, which they allege was prone to failure and put
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consumers at risk.
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DDP MANX, 2013 WL 5575065, at *1-2 (C.D. Cal. Oct. 10, 2013).
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bring this action under various California and Washington consumer
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protection statutes on behalf of themselves and others similar
8
situated.
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Briefly, the named Plaintiffs purchased four Nissan vehicles
Falco v. Nissan N. Am. Inc., No. CV 13-00686
They
(Second Amended Complaint (“SAC”) at 1.)
NML is the parent company of Nissan North America (“NNA”),
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which sells Nissan products in the United States.
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NML was a Defendant in the original state complaint in this case.
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(Dkt. No. 1.)
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lacked jurisdiction over it, (Dkt. No. 27), the Court ordered
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limited discovery to establish the jurisdictional facts.
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65.)
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its opinion in Daimler AG v. Bauman, 134 S. Ct. 746 (2014).
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argued Bauman foreclosed any possibility of general jurisdiction.
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(Dkt. No. 78.)
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a defendant, but with leave for Plaintiffs to re-add NML in a
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future amended complaint.
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Plaintiffs filed the SAC, which did add NML back as a defendant.
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(Dkt. No. 90.)
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II.
LEGAL STANDARD
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A.
Personal Jurisdiction
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(Id. at ¶ 21.)
After NML filed a motion asserting that the Court
(Dkt. No.
While that discovery was under way, the Supreme Court issued
NML
The parties therefore stipulated to dismiss NML as
(Dkt. Nos. 83, 86.)
A few months later,
The present motions followed.
A court in a given “forum state” may exercise specific
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personal jurisdiction over a non-resident defendant if the
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following conditions are met:
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2
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(1) The non-resident defendant must purposefully direct his
2
activities or consummate some transaction with the forum or
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resident thereof; or perform some act by which he purposefully
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avails himself of the privilege of conducting activities in
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the forum, thereby invoking the benefits and protections of
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its laws;
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(2) the claim must be one which arises out of or relates to
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the defendant's forum-related activities; and
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(3) the exercise of jurisdiction must comport with fair play
10
and substantial justice, i.e. it must be reasonable.
11
Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th
12
Cir.2004).
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two prongs; the burden then shifts to the defendant to show that
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the exercise of jurisdiction would be unreasonable.
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B.
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A plaintiff bears the burden of establishing the first
Id.
Motions to Dismiss
A complaint will survive a motion to dismiss when it contains
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“sufficient factual matter, accepted as true, to state a claim to
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relief that is plausible on its face.”
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662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
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570 (2007)).
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“accept as true all allegations of material fact and must construe
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those facts in the light most favorable to the plaintiff.”
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v. Hayes, 213 F.3d 443, 447 (9th Cir.2000).
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well-pleaded factual allegations, a court should assume their
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veracity and then determine whether they plausibly give rise to an
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entitlement of relief.”
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whether a complaint states a plausible claim for relief” is a
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“context-specific task that requires the reviewing court to draw on
Ashcroft v. Iqbal, 556 U.S.
When considering a Rule 12(b)(6) motion, a court must
“When there are
Iqbal, 556 U.S. at 679.
3
Resnick
“Determining
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its judicial experience and common sense.”
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not include “detailed factual allegations,” but it must offer “more
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than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
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Id. at 678.
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the assumption of truth.”
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C.
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Id.
A complaint need
Statements of legal conclusions “are not entitled to
Id. at 679.
Rule 9(b)
Claims sounding in fraud are subject to the heightened
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pleading requirements of Federal Rule of Civil Procedure 9(b),
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which requires that a plaintiff alleging fraud “must state with
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particularity the circumstances constituting fraud.”
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Rule 9(b), a pleading must identify the who, what, when, where, and
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how of the misconduct charged, as well as what is false or
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misleading about [the purportedly fraudulent] statement, and why it
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is false.”
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1055 (9th Cir.2011) (internal quotation marks and citations
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omitted).
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III. DISCUSSION
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A.
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“To satisfy
Cafasso v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047,
Personal Jurisdiction over NML
Plaintiffs, having conducted limited discovery against NML as
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to jurisdiction, have filed the SAC adding NML back in as a
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Defendant in this action.
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specific jurisdiction, because, as the parties appear to agree,1
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NML was intimately involved with the design and testing of the
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timing chain system at issue.
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jurisdiction, because it only participated in design choices and
Plaintiffs proceed under a theory of
NML argues that there is no specific
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See Reply ISO Mot. Dismiss Rule 12(b)(2) at 1:7-9 (NML has
“never denied” that it “had design ‘release responsibility’ for the
design of the vehicles”).
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“never manufactured, distributed, sold, or warranted” any of the
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vehicles in question.
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1:10-11.)
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personal jurisdiction on which Plaintiff relies only applies to an
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entity that “actually placed the product into the stream of
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commerce.”
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(Reply ISO Mot. Dismiss Rule 12(b)(2) at
Defendant argues that the “stream of commerce” theory of
(Id. at 3:1-2.)
At the outset, the Court notes that Plaintiffs do not concede
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that all physical fabrication was done solely by NNA.
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20, n.4.)
(Opp’n at
But even if it was, that does not foreclose a finding
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that NML “manufactured” the vehicles and components in question.
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Design is a critical portion of the manufacturing process; without
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design, there is simply nothing to manufacture.
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defining characteristic of a manufactured good is the imposition of
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a man-made pattern, form, or design onto raw materials.2
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attempt to separate its control over the design and testing phases
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of manufacturing from the physical act of fabricating the vehicles,
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and to insist that only the latter qualifies as “manufacturing” or
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“putting a product into the stream of commerce,” is therefore
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unconvincing – at least on these facts.
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a case where a wholly independent designer sells a product design
Indeed, the
NML’s
This is not, for example,
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Black’s Law Dictionary 1109 (10th ed. 2014) (defining a
“manufacture” as “any material form produced . . . from an unshaped
composition of matter”). A district court in Kansas, confronted
with a case in which a foreign company had provided the design for
a motorcycle built by a sibling U.S. company, held that it had
personal jurisdiction because “Honda R & D's design was a product .
. . . Honda R & D's design may be likened to a component of the
Honda motorcycle; in fact, it is a component which controls all
other components.” Wessinger v. Vetter Corp., 685 F. Supp. 769,
777 (D. Kan. 1987) (emphases added). The Court need not adopt the
holding of Wessinger to resolve this case, but that holding does
provide one metaphor for thinking about the key role of design in
manufacturing.
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to another company and is completely uninvolved in the production
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of the physical product thereafter.3
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shows that NML took almost total responsibility for the relevant
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components up through the initial production release,4 NML
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conducted testing of the components,5 NML had authority over the
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manufacturing process, because parts and vehicles could not be
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manufactured without NML’s “release,”6 NML appears to have been
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involved in monitoring the manufacturing plant,7 and NML had the
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final authority to change or decline to change the manufacture of
Rather, Plaintiff’s evidence
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faulty parts, including for pricing reasons.8
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evidence to the contrary on any of these points.
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NML has produced no
Thus, the Court finds that NML, at the very least,
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participated in manufacturing the vehicles in question (and
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possibly warranting them as well), and has therefore placed them
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into the stream of commerce.
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See, e.g., Lyons v. Rienzi & Sons, Inc., 856 F. Supp. 2d 501,
506, 510 (E.D.N.Y. 2012) (declining to find specific jurisdiction
over Italian company that sold its yacht design to an unrelated
Wisconsin firm for $30,000 and had no further hand in the process).
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4
Decl. Mark Pifko, Ex. 1 at transcript page 54.
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5
Pifko Decl., Ex. 1 at transcript page 56.
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Pifko Decl., Ex. 1 at transcript pages 25-26 (NML was the
entity that gave “approval to use [particular] parts on an engine
or a vehicle”).
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Pifko Decl., Ex. 1 at transcript page 27.
Pifko Decl., Ex. 2 (NML had authority to reject a proposed
“countermeasure” in 2003); Id., Ex. 5 at transcript page 140
(same); Id., Ex. 7 (manufacturing change proposed by NNA and thirdparty contractor, but NML “resisted” and the change was not
adopted); Id., Ex. 5 at transcript pages 81-82 (NNA’s design team
did not have “budgetary responsibility” for the components in
question because they didn’t have “design responsibility,” while
NML did have design responsibility and took into account the impact
of design changes on the budgeted “piece price”).
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1
That would not matter, of course, if NML had not aimed its
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efforts at the California market.
See, e.g., J. McIntyre Mach.,
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Ltd. v. Nicastro, 131 S. Ct. 2780, 2790, 180 L. Ed. 2d 765 (2011)
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(Kennedy, J., plurality opinion) (no jurisdiction because
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“[r]espondent has not established that J. McIntyre engaged in
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conduct purposefully directed at” the forum state).
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of a product into the stream of commerce, without more, is not an
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act purposefully directed toward a forum state.”
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v. Wärtsilä North America, Inc., 485 F.3d 450, 459 (9th Cir.2007).
“The placement
Holland America
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In this case, however, the Court concludes that this requirement is
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satisfied, because NML “purposely direct[ed]” its activities at the
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forum state.
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797, 802 (9th Cir.2004).
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Schwarzenegger v. Fred Martin Motor Co., 374 F.3d
NML appears to have used NNA as a “distributor who has agreed
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to serve as the sales agent in the forum State” for the vehicles
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that NML helped to manufacture.
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Court of California, Solano Cnty., 480 U.S. 102, 112 (1987)
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(O’Connor, J., plurality opinion).
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testimony, NML intends for the components at issue to be sold in
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California.
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NNA is “the sole authorized distributor of Nissan and Infiniti
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vehicles in the United States, including California.”
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27-1, Decl. Shiho Kobayashi, ¶ 17.)
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relationship is not simply a hands-off parent-subsidiary
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relationship.
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sit on NML’s Board of Directors.
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Kobayashi, ¶ 13-14.)
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that NML and NNA worked closely together on “the distribution,
Asahi Metal Indus. Co. v. Superior
According to deposition
(Decl. Mark Pifko, Ex. 5 at transcript pages 35-36.)
(Dkt. No.
And that distribution
Half the members of NNA’s Board of Directors also
(Dkt. No. 27-1, Decl. Shiho
Plaintiffs allege, and NML does not deny,
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sale, lease, servicing, and warranting of the Subject Nissan
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Vehicles.”
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advertising aimed at the American market, including California, for
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at least some of the vehicles at issue–which are necessarily
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distributed by NNA.
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releases touting the activities of NNA (often referred to simply as
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“Nissan”) in the United States, including in California.
8
Mark Pifko, Exs. 10-11.)
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“additional conduct” that “indicate[s] an intent or purpose to
(SAC, ¶ 23.)
NML appears to engage in direct
(Dkt. No. 40-3.)
NML also puts out press
(Decl.
Taken as a whole, the evidence shows
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serve the market in the forum State.”
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(1987).9
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Asahi, 480 U.S. 102, 112
The rest of the elements of specific jurisdiction follow
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naturally.
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manufacturing process, used NNA as its distribution agent, and
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appears to have taken part in the marketing of the vehicles, with
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the intent of selling them in California, Plaintiffs’ claims under
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various consumer protection statutes arise out of and/or relate to
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NML’s forum-related activities.
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Because NML was involved in and had authority over the
Schwarzenegger, 374 F.3d at 802.
Finally, given all the above, NML has not shown that it would
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be unreasonable for the Court to exercise jurisdiction.
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Ninth Circuit, “[t]he court examines seven factors to determine
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reasonableness: [1] the extent of purposeful interjection; [2] the
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burden on the defendant; [3] the extent of conflict with
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sovereignty of the defendant's state; [4] the forum state's
In the
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See also World-Wide Volkswagen Corp. v. Woodson, 444 U.S.
286, 297 (1980) (“[I]f the sale of a product . . . is not simply an
isolated occurrence, but arises from the efforts of the
manufacturer or distributor to serve directly or indirectly, the
market for its product in [the forum state], it is not unreasonable
to subject it to suit [there] . . . .”).
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interest in adjudicating the suit; [5] the most efficient judicial
2
resolution of the dispute; [6] the convenience and effectiveness of
3
relief for the plaintiff; and [7] the existence of an alternative
4
forum.”
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(9th Cir. 1988).
6
Sinatra v. Nat'l Enquirer, Inc., 854 F.2d 1191, 1198-99
The first factor is closely tied with the purposeful direction
7
analysis.
8
Nonetheless, [e]ven if there is sufficient ‘interjection’ into the
9
state to satisfy the purposeful availment prong, the degree of
Sinatra v. Nat'l Enquirer, Inc., 854 F.2d at 1199.
10
interjection is a factor to be weighed in assessing the overall
11
reasonableness of jurisdiction . . . .”
12
Indus. AB, 11 F.3d 1482, 1488 (9th Cir. 1993).
13
purposeful interjection is present, it does not appear to be
14
particularly strong; NML does not, for example, have offices or
15
other physical presence in the forum state.
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against reasonableness.
17
Core-Vent Corp. v. Nobel
Here, although the
This factor tilts
The second factor is something of a wash with the sixth,
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because convenience for the defendant will usually result in
19
inconvenience for the plaintiff.
20
relevant to change of venue analysis than jurisdictional analysis.
21
Shute v. Carnival Cruise Lines, 897 F.2d 377, 386-87 (9th Cir.
22
1990) rev'd as to other matters sub nom. Carnival Cruise Lines,
23
Inc. v. Shute, 499 U.S. 585 (1991).
24
given little weight, although some courts have distinguished
25
between corporate and individual plaintiffs, as the latter do not
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necessarily have the “considerable resources” that would be needed
27
to “litigate elsewhere.”
28
Grokster, Ltd., 243 F. Supp. 2d 1073, 1094 (C.D. Cal. 2003).
Thus, this factor is usually more
The sixth factor is similarly
Metro-Goldwyn-Mayer Studios Inc. v.
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Overall, these factors are neutral or tilt slightly in favor or
2
reasonableness.
3
As to the third factor, the Court does not lightly consider
4
exercising jurisdiction over a foreign corporation.
“Great care
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and reserve should be exercised when extending our notions of
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personal jurisdiction into the international field.” Asahi, 480
7
U.S. at 115.
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exerts significant control over the manufacturing operations of a
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U.S. subsidiary and takes active steps to do business in the forum
On the other hand, where, as here, the foreign entity
10
state, concerns about conflicts of sovereignty are reduced, because
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the foreign entity has volunteered to be subject to (as well as to
12
benefit from) the laws of the forum state.10
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The fourth factor strongly favors reasonableness.
California
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has a significant interest in having the dispute resolved, because
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most of Plaintiffs’ claims arise under California laws designed to
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protect California consumers from unfair business practices.11
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NML points to the Supreme Court’s recent call for U.S.
courts to consider “international comity” and the theories of
jurisdiction applied by other countries when deciding whether to
assert jurisdiction. Daimler AG v. Bauman, 134 S. Ct. 746, 763
(2014). However, NML identifies no particular Japanese notion of
jurisdiction, nor any particular “consideration[] of international
rapport,” that counsels against exercising jurisdiction. Id.
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Defendants argue that the California consumer protection
statutes – the Consumers Legal Remedies Act (“CLRA”), Unfair
Competition Law (“UCL”), and Song-Beverly Consumer Warranty Act
(“Song”) – only apply to those with whom potential plaintiffs have
had a direct transaction – essentially, the final seller. But that
is not true – the California statutes allow manufacturer liability
even if the manufacturer is not the retail seller. See Cal. Civ.
Code § 1792 (“[E]very sale of consumer goods that are sold at
retail in this state shall be accompanied by the manufacturer's and
the retail seller's implied warranty that the goods are
merchantable.”) (emphasis added); Delarosa v. Boiron, Inc., 275
F.R.D. 582, 588 (C.D. Cal. 2011) (plaintiff could establish
numerosity in class action against drug manufacturer under the CLRA
(continued...)
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Finally, efficiency of resolution and the existence of
2
alternative fora are in this case linked.
NML proposes no
3
alternative forum in which this case could be heard, but on NML’s
4
theory that it is not subject to American jurisdiction at all,
5
presumably Plaintiffs could only seek justice in a Japanese court.
6
It is not clear that there exists a Japanese court that would
7
enforce California consumer protection laws, but even if there
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were, both the Plaintiffs and NNA would be massively hindered in
9
presenting their cases, as the witnesses and physical evidence in
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this case are likely to be located primarily in the United States.
11
These factors also support a finding of reasonableness.
12
Taken as a whole, the factors weigh in favor of finding that
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the exercise of personal jurisdiction over NML is reasonable in
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this case.
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For all of the above reasons, the Court finds that it has
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personal jurisdiction over NML.
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B.
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Rule 8 Pleading
NML alleges that Plaintiffs have not adequately stated a claim
19
against it because the SAC frequently “fail[s] to differentiate
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between [NML] and NNA” and “Plaintiff’s claims are against NNA
21
alone.”
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point is, of course, the legal conclusion NML wishes to reach and
23
cannot be assumed at this stage in the litigation, when the Court
24
must presume that Plaintiffs’ factual allegations are true.
25
the former point, NML argues that because Plaintiffs frequently
(Mot. Dismiss Rule 12(b)(6) at 1:10, 1:22.)
The latter
As to
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27
28
11
(...continued)
and UCL by alleging that drug was sold in retail pharmacies around
the state). See Part III.C. infra.
11
1
refer to NML and NNA collectively as “Nissan,” the SAC lacks
2
specificity.
3
But plaintiffs routinely refer to defendants under some
4
collective name, as it would be tedious to list each defendant
5
separately every time one wished to make an allegation against them
6
all.
7
NML or its agents or employees are alleged to have done.
8
38-57 (describing NML’s role in designing the allegedly faulty
9
system).)
And Plaintiffs’ SAC spells out in quite a bit of detail what
(SAC, ¶¶
To the degree that the SAC alleges actions taken by
10
“Nissan,” the Court reads that as it would any other complaint
11
making allegations against defendants named collectively – either
12
as an allegation that the defendants acted in concert or as a
13
general allegation against all defendants (subject to narrowing
14
after discovery), depending on the context.
15
C.
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Rule 9(b) Pleading
NML also argues that Plaintiffs' pleadings against it are
17
insufficiently specific to satisfy the pleading requirements of
18
Rule 9(b), which states that "[i]n alleging fraud . . . a party
19
must state with particularity the circumstances constituting fraud
20
. . . ."
21
sound in fraud, and that they therefore must be pled "with
22
particularity" - a phrase the Ninth Circuit has interpreted as
23
meaning, essentially, "the who, what, when, where, and how of the
24
misconduct charged."
25
1106 (9th Cir. 2003) (internal quotation marks omitted).
26
Specifically, NML argues that Rule 9(b) is not satisfied because
27
(1) Plaintiffs' allegations do not adequately distinguish between
NML argues that Plaintiffs' claims largely or entirely
Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097,
28
12
1
NML and NNA generally and (2) Plaintiffs cannot assert that NML (as
2
distinct from NNA) entered into a "transaction" with them.
3
Although the Causes of Action speak somewhat broadly of
4
actions taken by "Nissan," Plaintiffs' background allegations
5
contain plenty of specifics as to acts NML is alleged to have taken
6
separate from (and even in opposition to) NNA.
7
49-50 and ¶¶ 52-53 allege that specific officers at NML were aware
8
of alleged flaws in the timing chain in 2003, declined to test a
9
solution because of cost concerns, and "sought to bury the
In particular, ¶¶
10
problems."
11
misconduct," and they give NML adequate notice of the acts it is
12
alleged to have committed.
13
1120, 1124 (9th Cir. 2009) (the purpose of Rule 9(b) is "to give
14
defendants notice of the particular misconduct so that they can
15
defend against the charge") (ellipsis omitted).
16
"sought to bury the problems" is not perfectly precise, it is
17
nonetheless sufficient for Rule 9(b) purposes to indicate that
18
NML's officers undertook to hide reports of the alleged flaw.
19
"[I]n cases of corporate fraud, the plaintiffs cannot be expected
20
to have personal knowledge of the facts constituting the
21
wrongdoing."
22
(9th Cir. 1987).
23
These are the "who, what, when, where, and how of the
Kearns v. Ford Motor Co., 567 F.3d
To the degree that
Wool v. Tandem Computers Inc., 818 F.2d 1433, 1439
NML also argues that Plaintiffs cannot show that they have
24
entered into a "transaction" with it, which it claims is required
25
for a claim under the consumer protection statutes.
26
that a common law fraud claim requires a direct relationship, such
27
as that of a “seller and buyer,” between the manufacturer and the
28
plaintiff.
It is true
LiMandri v. Judkins, 52 Cal. App. 4th 326, 336-37
13
1
(1997).
But “[w]hile . . . tort standards at times may be relevant
2
to a court's evaluation of CLRA actions,” that does not mean “that
3
CLRA actions must fulfill the same elements as common law fraud
4
claims.”
5
(N.D. Cal. 2005).
6
contention that a direct sale is not required to allege a CLRA
7
claim."
8
5781673, at *10 (E.D. Cal. Oct. 25, 2013).
9
protection extends to the manufacturer as well, regardless of
Chamberlan v. Ford Motor Co., 369 F. Supp. 2d 1138, 1144
There are "numerous cases supporting [the]
Rossi v. Whirlpool Corp., No. 2:12-CV-00125, 2013 WL
"[T]he CLRA's
10
whether the consumer dealt directly with the manufacturer."
11
See also McAdams v. Monier, Inc., 182 Cal. App. 4th 174, 188 (2010)
12
("A cause of action for unfair competition under the UCL may be
13
established independent of any contractual relationship between the
14
parties.").
15
the direct seller may be held liable for failure to disclose
16
material defects under the CLRA and the UCL, although not for
17
common law fraud.12
18
Id.
The Court concludes that a manufacturer that is not
Nonetheless, not just any failure to disclose a defect can
19
support a claim against a manufacturer under the CLRA and UCL.
20
Only when the manufacturer has a specific obligation to disclose
21
the defect can a plaintiff allege actionable fraud under the
22
statutes.
23
exclusive knowledge of material facts not known to the plaintiff,”
24
and/or “actively conceal[ed] a material fact from the plaintiff.”
25
Smith v. Ford Motor Co., 749 F. Supp. 2d 980, 987 (N.D. Cal. 2010)
An obligation arises when a defendant manufacturer “had
26
27
28
12
To the extent that NML’s argument rests on the contention
that it is not the "manufacturer" of the vehicles or components in
question, the Court has already rejected that argument above.
14
1
aff'd, 462 F. App'x 660 (9th Cir. 2011).
2
obligation, for the fact of a defect to be “material,” it must
3
involve a “safety issue.”
4
manufacturer can be sued under the CLRA and/or the UCL if it had
5
exclusive knowledge of a safety-related defect or if it actively
6
concealed such a defect.
7
Id.
Apart from a warranty
Thus, under California law, a
Plaintiffs have alleged that the timing chain defect in this
8
case “places the driver and passengers at a risk of harm . . . .
9
What the Timing Chain Tensioning System fails, it can cause . . .
10
the inability to accelerate and maintain speed, as well as
11
catastrophic engine failure . . . . [O]ccupants of the vehicles are
12
exposed to rear end collisions and other accidents . . . .”
13
¶ 10.)
14
the alleged defect and that it attempted to conceal the defect, are
15
sufficiently particular to allege an obligation to disclose and
16
therefore to state a claim under the statutes.
17
(SAC,
This allegation, combined with allegations that NML knew of
Thus Plaintiffs can assert statutory causes of action against
18
NML, apart from the final sales transaction that they may have
19
entered into with NNA.
20
asserted only against NNA – at least on the facts currently pled.
21
IV.
The common law fraud claim, however, may be
CONCLUSION
22
The Court DENIES the motions to dismiss as to all claims
23
except the Fifth Cause of Action (Fraud), which is DISMISSED as to
24
NML.
25
26
IT IS SO ORDERED.
27
Dated: April 6, 2015
DEAN D. PREGERSON
United States District Judge
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15
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