Aurora Corporation of America v. Michilin Prosperity Co Ltd et al

Filing 48

ORDER re: DEFENDANT'S MOTION FOR ORDER DISMISSING ACTION AS AGAINST DEFENDANT, MICHILIN PROSPERITY CO., LTD., FOR LACK OF PERSONAL JURISDICTION (FRCP Rule 12(b)(2)) 39 by Judge Ronald S.W. Lew. The Court GRANTS Defendant's Motion to Dis miss pursuant to Federal Rule of Civil Procedure ("F.R.C.P.") 12(b)(2) 39 . The Court DENIES Plaintiff's Request for Judicial Notice 42 . The Court DENIES Defendants Request for Judicial Notice [44-1]. The Court DENIES Plaintiffs request, in the alternative, to conduct jurisdictional discovery. This action shall be dismissed for lack of personal jurisdiction. SEE ORDER FOR FURTHER AND COMPLETE DETAILS. (MD JS-6. Case Terminated) (jre)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 AURORA CORPORATION OF AMERICA, a California 13 corporation, 14 15 Plaintiff, v. 16 MICHLIN PROSPERITY CO., Ltd., a Taiwanese 17 corporation; DOES 1-20, inclusive, 18 19 Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CV 13-03516 RSWL (JCx) ORDER re: DEFENDANT’S MOTION FOR ORDER DISMISSING ACTION AS AGAINST DEFENDANT, MICHILIN PROSPERITY CO., LTD., FOR LACK OF PERSONAL JURISDICTION [FRCP Rule 12(b)(2)] [39] 20 Before the Court is Defendant’s Motion for Order 21 Dismissing Action as Against Defendant Michilin 22 Prosperity Co., Ltd., for Lack of Personal Jurisdiction 23 [39], Plaintiff’s Request for Judicial Notice [42], and 24 Defendant’s Request for Judicial Notice [44-1]. The 25 Court, having considered all arguments presented, NOW 26 FINDS AND RULES AS FOLLOWS: 27 The Court GRANTS Defendant’s Motion to Dismiss 28 1 1 pursuant to Federal Rule of Civil Procedure 2 (“F.R.C.P.”) 12(b)(2) [39]. The Court DENIES 3 Plaintiff’s Request for Judicial Notice [42]. The 4 Court DENIES Defendant’s Request for Judicial Notice 5 [44-1]. The Court DENIES Plaintiff’s request, in the 6 alternative, to conduct jurisdictional discovery. 7 8 I. BACKGROUND Plaintiff Aurora Corporation of America 9 (“Plaintiff”) is a California corporation authorized to 10 do business with the State of California. Compl. ¶ 1. 11 Defendant Michilin Prosperity Co., Ltd., (“Defendant”) 12 is a Taiwanese corporation with its principal place of 13 business in Taipei, Taiwan. Compl. ¶2. At all 14 relevant times, Defendant was the designer and 15 manufacturer of the Aurora AS1000X 10CC Cross Cut Paper 16 Shredder (“Shredder”). Compl. ¶ 3. 17 distributor of the Shredder. Plaintiff is the Compl. ¶ 12. The 18 Shredder was manufactured at Defendant’s plant located 19 in China. Compl. ¶ 13; See Compl., Ex. A, Affidavit of 20 Frank Chang (“Chang Affidavit”) ¶ 6. After the 21 Shredder was manufactured, the Shredder was then 22 shipped to Plaintiff in Torrance, California. Compl. ¶ 23 14; See Chang Aff. ¶ 6. 24 The present action arises out of a May 2008 25 incident involving a minor who was injured when she 26 stuck her hand into the Shredder. Compl. ¶ 8. As a 27 result of the incident, a lawsuit was filed with the 28 U.S. District Court for the Northern District of 2 1 Georgia. Id. See Askue v. Aurora Corporation, et al., 2 Civil Action File No. 1:10-cv-0948-JEC (“the Georgia 3 action”). Plaintiff and Defendant were named 4 defendants in the Georgia action. Mot., 2:11-12. 5 Defendant was dismissed from the Georgia action for 6 lack of personal jurisdiction pursuant to F.R.C.P. 7 12(b)(2). 8 Mot., 2:12-13. The present action is an indemnity action filed by 9 Plaintiff against Defendant for amounts paid by 10 Plaintiff to defend and settle the Georgia action. 11 Mot., 2:4-9. On July 17, 2015, Defendant filed the 12 instant motion, requesting the Court to dismiss this 13 action against Defendant for lack of personal 14 jurisdiction. On July 28, 2015, Plaintiff filed its 15 Request for Judicial Notice. On August 04, 2015, 16 Defendant filed its Request for Judicial Notice. 17 II. DISCUSSION 18 A. Legal Standard 19 1. 20 A court may take judicial notice of “a fact that is Judicial Notice 21 not subject to reasonable dispute because it: (1) is 22 generally known within the court’s territorial 23 jurisdiction; or (2) can be accurately and readily 24 determined from sources whose accuracy cannot 25 reasonably be questioned.” 26 27 28 2. Fed. R. Evid. 201(b). Motion to Dismiss Pursuant to Fed R. Civ. P. 12(b)(2) Pursuant to Federal Rule of Civil Procedure 3 1 12(b)(2), a district court cannot proceed against a 2 defendant over which it lacks personal jurisdiction, 3 unless that defendant has waived the requirement. See 4 Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites 5 de Guinee, 456 U.S. 694, 702–03 (1982). In states 6 where no applicable federal statute governs personal 7 jurisdiction, that state’s long-arm statute applies. 8 See Panavision Int’l, L.P. v. Toeppen, 141 F.3d 1316, 9 1320 (9th Cir. 1998). The exercise of personal 10 jurisdiction over a nonresident defendant requires the 11 presence of two factors: (1) California’s laws must 12 provide a basis for exercising personal jurisdiction, 13 and (2) the assertion of personal jurisdiction must 14 comport with due process. Hirsch v. Blue Cross, Blue 15 Shield of Kansas City, 800 F.2d 1474, 1477 (9th Cir. 16 1986). California’s long arm statute permits the 17 exercise of personal jurisdiction to the fullest extent 18 permitted by due process. See Cal. Civ. Proc. Code § 19 410.10; Panavision, 141 F.3d at 1320. “Because 20 California's long-arm jurisdictional statute is 21 coextensive with federal due process requirements, the 22 jurisdictional analyses under state law and federal due 23 process are the same.” Schwarzenegger v. Fred Martin 24 Motor Co., 374 F.3d 797, 800–01 (9th Cir. 2004). Thus, 25 only a due process analysis is required here. 26 Due process requires that a defendant have “certain 27 minimum contacts with [the forum state] such that the 28 maintenance of the suit does not offend traditional 4 1 notions of fair play and substantial justice.” Int’l 2 Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) 3 (internal quotation marks omitted). The plaintiff 4 bears the burden of proving that the defendant has 5 sufficient minimum contacts with the forum state that 6 warrant the court’s exercise of personal jurisdiction. 7 Harris Rutsky & Co. Ins. Servs., Inc. v. Bell & 8 Clements Ltd., 328 F.3d 1122, 1130 (9th Cir. 2003). 9 Depending on the nature and scope of the defendant’s 10 contacts with the forum, jurisdiction may be general or 11 specific to a cause of action. Roth v. Garcia Marquez, 12 942 F.2d 617, 620 (9th Cir. 1991). 13 When a defendant’s contacts with the forum state 14 are “substantial” or “continuous and systematic,” 15 general jurisdiction may be exercised over that 16 defendant for any cause of action, even if it is 17 unrelated to the defendant’s activities within the 18 forum state. Schwarzenegger, 374 F.3d at 801-02; Data 19 Disc, Inc. v. Sys. Tech. Assocs., 557 F.2d 1280, 1287 20 (9th Cir. 1977). In cases where a defendant’s contacts 21 are insufficient to support an exercise of general 22 jurisdiction, more limited specific jurisdiction may be 23 found where a cause of action arises out of or is 24 related to the defendant’s activities in the forum 25 state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 26 472–73 (1985); Ballard v. Savage, 65 F.3d 1495, 1498 27 (9th Cir. 1995). “Specific jurisdiction may be 28 exercised with a lesser showing of minimum contacts 5 1 than is required for the exercise of general 2 jurisdiction.” ACORN v. Household Int’l, Inc., 211 F. 3 Supp. 2d 1160, 1164 (C.D. Cal. 2002). The Ninth 4 Circuit uses a three-part test to determine whether 5 there is specific jurisdiction over a defendant: (1) 6 the defendant must purposefully avail herself of the 7 privilege of conducting activities in the forum by some 8 affirmative act or conduct; (2) the plaintiff’s claim 9 must arise out of, or result from, the defendant’s 10 forum-related contacts; and (3) the extension of 11 jurisdiction must be ‘reasonable.’” Adv. Skin & Hair, 12 Inc. v. Bancroft, 858 F. Supp. 2d 1084, 1089 (C.D. Cal. 13 2012) (citing Roth v. Garcia Marquez, 942 F.2d 617, 14 620-21 (9th Cir. 1991)). 15 As to the first prong, the Ninth Circuit generally 16 uses a purposeful direction analysis when an action 17 sounds in tort, whereas it uses a purposeful availment 18 analysis when an action sounds in contract. Wash. Shoe 19 Co. v. A-Z Sporting Goods Inc., 704 F.3d 668, 672-73, 20 n.2 (9th Cir. 2012). 21 “When a district court acts on a defendant’s motion 22 to dismiss under Rule 12(b)(2) without holding an 23 evidentiary hearing, the plaintiff need make only a 24 prima facie showing of jurisdictional facts to 25 withstand the motion to dismiss.” 26 1498. Ballard, 65 F.3d at In order to make a prima facie showing, the 27 plaintiff must produce admissible evidence, which, if 28 believed, would be sufficient to establish the Court’s 6 1 personal jurisdiction. Enriquez v. Interstate Grp., 2 LLC, No. 11-CV-05155 YGR, 2012 WL 3800801, at *3 (N.D. 3 Cal. Aug. 31, 2012). Accordingly, a district court is 4 to take uncontroverted allegations in the complaint as 5 true. AT&T Co. v. Compagnie Bruxelles Lambert, 94 F.3d 6 586, 588 (9th Cir. 1996). However, “mere allegations 7 of the complaint, when contradicted by affidavits, are 8 [not] enough to confer personal jurisdiction of a 9 nonresident defendant. In such a case, facts, not mere 10 allegations, must be the touchstone.” Taylor v. 11 Portland Paramount Corp., 383 F.2d 634, 639 (9th Cir. 12 1967). See also Chem Lab Prods., Inc. v. Stepanek, 554 13 F.2d 371, 372 (9th Cir. 1977); Cummings v. W. Trial 14 Lawyers Ass’n, 133 F. Supp. 2d 1144, 1154 (D. Ariz. 15 2001). Parties may go beyond the pleadings and support 16 their positions with discovery materials, affidavits, 17 or declarations. Am. Inst. of Intradermal Cosmetics, 18 Inc. v. Soc’y of Permanent Cosmetic Prof’s, No. CV 1219 06887 GAF JCGX, 2013 WL 1685558, at *4 (C.D. Cal. Apr. 20 16, 2013). “[C]onflicts between the facts contained in 21 the parties’ affidavits must be resolved in [the 22 plaintiff’s] favor for purposes of deciding whether a 23 prima facie case for personal jurisdiction exists.” 24 AT&T, 94 F.3d at 588. “At the same time, however, the 25 plaintiff must submit admissible evidence in support of 26 its prima facie case.” 27 B. Analysis 28 1. Id. Plaintiff’s Requests for Judicial Notice 7 1 a. Plaintiff’s request that the Court 2 judicially notice the Affidavit of Frank 3 Chang 4 In Plaintiff’s Request for Judicial Notice [42], 5 Plaintiff requests that the Court take judicial notice 6 of the Chang Affidavit, pursuant to Federal Rule of 7 Evidence (“F.R.E.”) 201(c)(2). 8 “There is a mistaken notion that taking judicial 9 notice of court records ... means taking judicial 10 notice of the existence of facts asserted in every 11 document of a court file, including pleadings and 12 affidavits. The concept of judicial notice requires 13 that the matter which is the proper subject of judicial 14 notice be a fact that is not reasonably subject to 15 dispute. Facts in the judicial record that are subject 16 to dispute, such as allegations in affidavits, 17 declarations, and probation reports, are not the proper 18 subjects of judicial notice even though they are in a 19 court record.” Rivera v. Hamlet, 2003 WL 22846114, at 20 *5 (N.D. Cal. Nov. 25, 2003) (citing B. Jefferson, 21 California Evidence Benchbook (3d ed.2003 update), § 22 47.10). 23 Accordingly, this Court takes judicial notice of 24 the existence of the Chang Affidavit, but declines to 25 take judicial notice of any facts or statements 26 contained in the Chang Affidavit. Specifically, the 27 Court cannot take judicial notice that any facts 28 recited in the Chang Affidavit are true. 8 The Court 1 hereby DENIES Plaintiff’s request that the Court take 2 judicial notice of the Chang Affidavit, as to its 3 substance. 4 b. Plaintiff’s request that the Court 5 judicially notice the Opinion and Order in 6 Fellowes 7 In Plaintiff’s Request for Judicial Notice [42], 8 Plaintiff further requests that the Court take judicial 9 notice of the Opinion and Order issued in Fellowes, 10 Inc. v. Michlin Prosperity Co., 491 F. Supp. 2d 571 11 (E.D. Va., June 22, 2007). 12 Generally, a court may take judicial notice of the 13 existence of a court file in another court, however, it 14 cannot take judicial notice of factual findings made by 15 that court. “As a general rule, a court may not take 16 judicial notice of proceedings or records in another 17 cause so as to supply, without formal introduction of 18 evidence, facts essential to support a contention in a 19 cause then before it.” M/V Am. Queen v. San Diego 20 Marine Constr. Corp., 708 F.2d 1483, 1491 (9th Cir. 21 1983); see also Wyatt v. Terhune, 315 F.3d at 1114 n. 5 22 (“Factual findings in one case ordinarily are not 23 admissible for their truth in another case through 24 judicial notice”) (overruled on other grounds). Other 25 circuits have followed this general rule, holding that 26 a court cannot take judicial notice of factual findings 27 made by another court. See United States v. Jones, 29 28 F. 3d 1549, 1553 (11th Cir. 1994) (holding that it is 9 1 improper to take judicial notice of another court’s 2 findings establishing nature of salary in dispute); 3 Liberty Mutual Ins. Co. v. Rotches Pork Packers, Inc., 4 969 F.2d 1384, 1388-89 (2d Cir. 1992) (holding that it 5 is improper to take judicial notice of bankruptcy 6 court’s finding that sellers provided notice to 7 preserve their trust rights and were cash sellers). 8 Accordingly, this Court will not take judicial 9 notice of any of the factual findings in the Fellowes 10 Opinion and Order. This Court cannot rely on the 11 findings of the Virginia court to establish facts 12 essential to support Plaintiff’s contentions in the 13 present action. The Court therefore DENIES Plaintiff’s 14 request to take judicial notice of the Opinion and 15 Order in Fellowes. 16 2. 17 Defendant requests that the Court take judicial Defendant’s Request for Judicial Notice 18 notice of the opinion of the United States District 19 Court, Northern District of Georgia, issued in the 20 Georgia action, Askue v. Aurora Corporation of America, 21 2012 U.S. Dist. LEXIS 32626 (N.D. Ga. 2012). Def.’s 22 Reply, Ex. A. 23 As previously discussed, “a court may not take 24 judicial notice of proceedings or records in another 25 cause so as to supply, without formal introduction of 26 evidence, facts essential to support a contention in a 27 cause then before it.” M/V Am. Queen v. San Diego 28 Marine Constr. Corp., 708 F.2d 1483, 1491 (9th Cir. 10 1 1983). As such, this Court DENIES Defendant’s request 2 to judicially notice the Georgia District Court’s 3 opinion in Askue. 4 3. Defendant’s Motion to Dismiss for Lack of 5 Personal Jurisdiction 6 a. 7 General Personal Jurisdiction Plaintiff asserts that it “could make an argument” 8 that this Court has general jurisdiction over Defendant 9 based on Defendant’s “significant presence and activity 10 in the United States and California,” but that this 11 argument is “unnecessary” because sufficient minimum 12 contacts have been established. Opp’n. 4:14-19. 13 Plaintiff does not make any further argument in support 14 of this contention, and thus does not meet its burden 15 of proving that this Court should exercise general 16 personal jurisdiction over Defendant. As such, this 17 Court finds that it does not have general personal 18 jurisdiction over Defendant. 19 20 b. Specific Personal Jurisdiction Specific jurisdiction is proper only when (1) the 21 defendant has performed some act by which he 22 purposefully avails himself of the privilege of 23 conducting activities in the forum, thereby invoking 24 the benefits and protections of its laws; (2) the claim 25 arises out of, or results from, the defendant’s forum26 related activities; and (3) the exercise of 27 jurisdiction is “reasonable.” Terracom v. Valley Nat’l 28 Bank, 49 F.3d 555, 560 (9th Cir. 1995) (citing Shute v. 11 1 Carnival Cruise Lines, 897 F.2d 377, 381 (9th Cir. 2 1990)). 3 Plaintiff bears the burden of satisfying the first 4 two prongs of the test. Schwarzenegger v. Fred Martin 5 Motor Co., 374 F.3d 797, 802 (citing Sher v. Johnson, 6 911 F.2d 1357, 1361 (9th Cir. 1990)). If the plaintiff 7 fails to satisfy either of these prongs, personal 8 jurisdiction is not established in the forum state. 9 Id. If the plaintiff succeeds in satisfying both of 10 the first two prongs, the burden then shifts to the 11 defendant to “present a compelling case” that the 12 exercise of jurisdiction would not be reasonable. Id. 13 “[A] plaintiff must make only a prima facie showing of 14 jurisdictional facts through the submitted materials in 15 order to avoid a defendant's motion to dismiss.” Data 16 Disc, Inc. v. Sys. Tech. Associates, Inc., 557 F.2d 17 1280, 1285 (9th Cir. 1977). 18 Plaintiff relies on the shipment of the Shredder 19 from China to California as the basis for its indemnity 20 claims. See Compl. ¶¶ 16-24. Because Plaintiff’s 21 claims are based on indemnity, the Court finds that 22 this action sounds primarily in contract. As such, the 23 first prong is analyzed under the “purposeful 24 availment” standard.1 25 26 27 28 1 See Repwest Ins. Co. v. Praetorian Ins. Co., 890 F. Supp. 2d 1168, 1188 (D. Ariz 2012) (“In cases arising out of contractual relationships, including those involving related tort claims, the Ninth Circuit applies the ‘purposeful availment’ test”). 12 1 2 i. Purposeful Availment “To have purposefully availed itself of the 3 privilege of doing business in the forum, a defendant 4 must have ‘performed some type of affirmative conduct 5 which allows or promotes the transaction of business 6 within the forum state.’” Boschetto v. Hansing, 539 7 F.3d 1011, 1016 (9th Cir. 2008). A purposeful 8 availment analysis considers “whether the defendant’s 9 contacts with the forum are attributable to his own 10 actions or are solely the actions of the plaintiff.” 11 Amini Innovation Corp. v. JS Imports, Inc., 497 12 F.Supp.2d 1093 (C.D. Cal. 2007) (citing Sinatra v. 13 National Enquirer, 854 F.2d 1191, 1195 (9th Cir. 14 1988)). 15 In the present case, Plaintiff has asserted claims 16 for contractual indemnity, equitable indemnity, and 17 indemnity through course of conduct. Plaintiff makes 18 the following allegations to support a finding of 19 specific jurisdiction over Defendant: Plaintiff alleges 20 that Defendant 21 (a) shipped the subject Shredder from 22 Taiwan to the Plaintiff in Torrance, 23 California; (b) set the price of the 24 shredders for sale in the United States; 25 (c) contracted with major retailers in 26 the 27 products; (d) sold the majority of its 28 shredders United in States the for United 13 sale of States; its (e) 1 advertised its shredders as receiving 2 awards from various office equipment 3 organizations in the United States; and 4 (f) profited significantly from the sale 5 of 6 California. products to and throughout 7 Opp’n 3:4-20, 8:23-26. 8 9 a. Shipment of the Shredder Plaintiff alleges that the Shredder was shipped by 10 Defendant from Taiwan to California, and thereby 11 Michilin established significant contact with “the 12 United States and California.” Id. at 3:1-6. 13 Plaintiff bases this allegation on statements contained 14 in paragraph five of the Chang Affidavit. 15 6. Opp’n, 3:4- As discussed above, the Court will not judicially 16 notice the substance of the Chang Affidavit, thereby 17 declaring the allegations made within as true. 18 Further, upon review of the Chang Affidavit, 19 Plaintiff’s claim that “the subject Shredder was 20 shipped by Michilin from Taiwan to Aurora in 21 Torr[a]nce, California” is not substantiated by the 22 language of the cited paragraph. Id. (emphasis added) 23 It appears from the language of the Affidavit that 24 Plaintiff intended to reference paragraph six of the 25 Chang Affidavit. Nonetheless, paragraph six does not 26 support Plaintiff’s contention that the Shredder was 27 shipped by Defendant from Taiwan to California, such 28 that the shipment was made at Defendant’s direction or 14 1 while it was within Defendant’s control. Rather, 2 paragraph six states that the “[S]hredder was then 3 shipped to Aurora Corporation of America...”, with no 4 indication of who directed the shipment of the product. 5 Chang Aff. ¶ 6. The Chang Affidavit simply states: 6 “After the paper shredder was delivered to Aurora 7 Corporation of America, Michilin had no further 8 involvement with the distribution or sale of the 9 product.” 10 Id. Plaintiff also cites paragraph five of the 11 Declaration of Frank Chang in Support of Defendant’s 12 Motion to Dismiss (“the Chang Declaration”) to support 13 its contention that Defendant shipped the Shredder to 14 California. Opp’n, 3:4-6. Again, the referenced 15 paragraph of the Chang Declaration does not 16 substantiate Plaintiff’s claim that Defendant directed 17 the shipment of the Shredder from Taiwan to California. 18 See Pl.’s Mot., Chang Decl. ¶ 5 [39-2]. Plaintiff does 19 not offer any further evidence regarding this 20 allegation, and therefore has not met its burden of 21 proving that Defendant purposefully availed itself of 22 doing business in California by shipping the subject 23 Shredder to California. Again, it appears from the 24 language of the Declaration that Plaintiff intended to 25 reference paragraph six of the Chang Declaration. 26 Still, paragraph six of the Chang Declaration does not 27 support the contention that Defendant directed the 28 shipment of the Shredder to California. 15 Rather, 1 paragraph six contradicts Plaintiff’s allegation, 2 stating, “The Michilin model AS1000X paper shredders 3 were manufactured at Michilin’s plant located in China. 4 Pursuant to specific order and direct instructions from 5 Aurora ... the AS1000x paper shredders were shipped 6 ‘Free on Board’ (F.O.B.) Yan-Tain, China.” Chang Decl. 7 ¶ 6. 8 Defendant argues that the Shredder was shipped 9 pursuant to Plaintiff’s orders and instructions, and 10 that ownership of the Shredder transferred to Aurora 11 before departing China as the shredders were shipped 12 “Free On Board” (F.O.B.) Yan-Tain, China. Mot. 9:15- 13 21. 14 In an “F.O.B.” contract, “[t]he seller’s delivery 15 is complete (and the risk of loss passes to the buyer) 16 when the goods pass into the transporter’s possession.” 17 FREE ON BOARD, Black’s Law Dictionary (10th ed. 2014). 18 The Ninth Circuit has yet to determine whether F.O.B. 19 shipments are sufficient to establish minimum contacts 20 in a state.2 The Fifth Circuit has held that an “F.O.B 21 22 23 24 25 26 27 28 2 The United States District Court for the District of Hawaii has held that “agreeing to delivery F.O.B. North Carolina does not negate purposeful availment of the laws of Hawaii.” Rudolph v. Topsider Bldg. Sys., Inc., No. CIV 07-00225 SOM-BMK, 2007 WL 2156089, at *4 (D. Haw. July 24, 2007). In Rudolph, the Court found that other factors despite the F.O.B. shipment subjected the defendant to personal jurisdiction, including discussions concerning using the shipped products in Hawaii, six separate shipments to Hawaii, and a warranty and offer for trouble-shooting that indicated contemplation of future consequences. Id. at *5. The Court in Rudolph cited a case in Maine, where minimum contacts were found despite shipment F.O.B. Honeoye, New York due to extensive negotiations, a thirty-day 16 1 term does not prevent a court from exercising personal 2 jurisdiction over a non-resident defendant where other 3 factors, such as quantity and regularity of shipments, 4 suggest that jurisdiction is proper.” Luv N’ care, 5 Ltd. v. Insta-Mix, Inc., 438 F.3d 465, 471-72 (5th Cir. 6 2006). Precedent regarding F.O.B. shipments and 7 personal jurisdiction have required “other factors” to 8 be present in order for the Court to find purposeful 9 availment to establish personal jurisdiction.3 10 Here, Plaintiff has not put forth evidence of any 11 “other factors” that would make this Court’s exercise 12 of personal jurisdiction over Defendant proper. 13 Plaintiff has not offered any admissible evidence of 14 extensive negotiations, warranties, multiple shipments, 15 or the amount of sales or revenue arising from 16 shipment(s) to California. Therefore, the Court finds 17 that the subject shipment, F.O.B. Yan-Tain, China, is 18 not joined by the requisite “other factors” to 19 establish sufficient minimum contacts to enable this 20 Court to exercise specific personal jurisdiction. 21 22 b. Setting the Price of the Shredder Plaintiff alleges that Defendant purposefully 23 24 warranty, start-up assistance, and significant shipment of goods into Maine. Id. at *4, see also Lucerne Farms v. Baling 25 Technologies, Inc., 226 F.Supp.2d, 25 (D.Me.2002). 26 3 In Luv N’ care, the court found the defendant derived substantial revenue from its shipments to the forum state through 27 evidence of sales of thousands of units into the forum state, 438 F.3d 465 (5 Cir. 2006). 17 28 makingthup 4.5% of the defendant’s total distribution. 1 availed itself of doing business in California by 2 maintaining control over its products after they are 3 shipped to the United States. Opp’n., 7:23-27. 4 Plaintiff bases this allegation on statements made in 5 the Fellowes Opinion. As discussed above, the Court 6 will not take judicial notice of the substance of the 7 Opinion, as it consists of factual findings reached in 8 another court’s proceeding. Even if the Court could 9 consider the findings of the Fellowes Opinion, the 10 Fellowes court’s findings establish that Defendant 11 maintained control of its products after they were 12 shipped to the United States generally, which does not 13 support a finding of purposeful availment in California 14 specifically. Plaintiff provides no further evidence 15 in support of this allegation. As such, the Court 16 finds that Plaintiff’s allegation that Defendant 17 maintained control over its products after the reached 18 the United States does not support a finding that 19 Defendant purposefully availed itself of California’s 20 jurisdiction. 21 22 c. Contracting with U.S. Retailers Plaintiff argues Defendant purposefully availed 23 itself of California’s jurisdiction because Defendant 24 “contracts with and sells its products through Target, 25 Wal-Mart, Big Lots and Office Depot, all of which 26 maintain multiple locations within the United States, 27 including California.” Opp’n, 4:23-26. To prove this 28 allegation, Plaintiff cites the same Fellowes Opinion 18 1 as discussed above, which the Court should not take 2 judicial notice of in order to establish its contents 3 as true. Plaintiff does not provide any further 4 evidence to support that Defendant contracts with 5 multiple stores located in California. Therefore, the 6 Court finds that Plaintiff’s allegation is not 7 supported by sufficient evidence to warrant a finding 8 of purposeful availment. 9 10 d. Majority of Shredders Sold in U.S. Plaintiff then argues Defendant purposefully 11 availed itself of California’s jurisdiction through 12 additional evidence derived from the Fellowes Opinion, 13 alleging that “about 85% of Michilin’s shredders [were] 14 available for sale in the United States in 2004.” 15 Opp’n, 8:1-3. As discussed above, the Court cannot 16 judicially notice the contents of this Opinion. The 17 Plaintiff does not offer any other evidence to support 18 this assertion. Therefore, the Court should find that 19 this allegation does not support a finding of 20 purposeful availment. 21 22 e. Advertisement of U.S. Awards Plaintiff asserts that Defendant’s advertisement of 23 awards received from United States based office 24 equipment organizations on Defendant’s website is 25 evidence of purposeful availment in California. 26 3:16-18. Opp’n, Plaintiff admits that Defendant’s use is a 27 “public advertisement to the world” but that since the 28 awards are from U.S. companies, the use functions as an 19 1 example of Defendant doing business in and with the 2 United States. Opp’n. 8:12-15. In J. McIntyre 3 Machinery, Ltd., v. Nicastro, the defendant directed 4 marketing and sales efforts at the United States. 5 S. Ct. 2780 (2011). 131 Justice Kennedy stated that “the 6 question concerns the authority of a New Jersey state 7 court to exercise jurisdiction, so it is petitioner’s 8 purposeful contacts with New Jersey, not with the 9 United States, that alone are relevant.” Id. at 2790. 10 Here, the question concerns California’s authority to 11 exercise jurisdiction, thus Defendant’s contacts with 12 the United States in general are not sufficient, as per 13 the Supreme Court’s holding in J. McIntyre, to 14 establish purposeful availment of California’s 15 jurisdiction. As such, the Court finds that 16 Defendant’s advertisement of awards from U.S. companies 17 for its product does not establish that Defendant 18 purposefully availed itself of California’s 19 jurisdiction specifically. 20 21 f. Significant Profits from California Plaintiff further alleges that Defendant’s contacts 22 with California include “significant profits from the 23 sale of products to and throughout California.” 24 3:19-20. Opp’n, Plaintiff does not present any evidence 25 regarding Defendant’s actual sales or profits arising 26 from California. Plaintiff relies solely on the above- 27 referenced allegation from the Fellowes Opinion that 28 because “85% of Michilin’s shredders [were] available 20 1 for sale in the United States in 2004", this amounts to 2 Defendant receiving substantial revenue from these 3 sales. Id. at 8:1-7. Plaintiff then asserts that 4 therefore Defendant “knew it was generating significant 5 revenue based on products that would be sold to 6 California users.” Id. Again, the Court will not 7 judicially notice the findings of the Fellowes court. 8 Plaintiff provides no further admissible evidence as to 9 the alleged “significant profits” Defendant acquires 10 “from the sale of products to an throughout 11 California.” Plaintiff instead supports its contention 12 with conclusory allegations. Without further evidence, 13 the Court finds that Plaintiff has failed to establish 14 that Defendant purposefully availed itself of 15 California through alleged significant profits from 16 California. 17 18 19 g. Entry of Products into Stream of Commerce Plaintiff then asserts that Defendant was aware its 20 products would reach California users because it sold a 21 “large amount of products” to Plaintiff, a wholly-owned 22 California distributor. Id. at 7:18-20. Defendant 23 contends that their contact with Plaintiff in 24 California, if any, was incidental: Defendant sold its 25 products “in China to a California distributor who 26 imported the products into California for distribution 27 and sale in the United States.” Reply 10:17-19. 28 Plaintiff does not offer any admissible evidence as to 21 1 its claim, but rather again simply cites the findings 2 of the Fellowes court. Id. at 7:12-22. Still, 3 evidence that Defendant engaged in transactions with a 4 California distributor for United States retailers is 5 insufficient to warrant the exercise of California’s 6 specific personal jurisdiction. The mere fact that 7 Defendant opted to participate in a business 8 relationship with Plaintiff knowing that Plaintiff had 9 an office in California is insufficient to create 10 minimum contacts. See Dynamic Software Servs. v. 11 Cyberbest Tech., Inc., 2014 WL 3373924 at *9 (N.D. Cal. 12 July 9, 2014) (“Mere knowledge that the plaintiff is 13 based in the forum state is insufficient to establish 14 purposeful availment.”) 15 Plaintiff argues that the “large volume of sales of 16 products that traveled to California end-users was not 17 random or fortuitous” and therefore Defendant “was 18 aware that a large amount of products it sold to 19 [Plaintiff] ... would reach California users.” 20 7:12-20. Opp’n Plaintiff relies on Bridgestone Corp. v. 21 Superior Court, in which a California court exercised 22 jurisdiction based on “a manufacturer’s placement of 23 goods in the stream of commerce with the expectation 24 that they will be purchased or used by consumers in 25 California [as] indicat[ing] an intention to serve the 26 California market ‘directly or indirectly.’” 99 Cal. 27 App. 4th 767, 777 (Cal. Ct. App. 2002) (citing World28 Wide Volkswagen Corporation v. Woodson, 444 U.S. 286, 22 1 297 (1980)). However, Plaintiff did not consider the 2 court’s whole statement. In the same sentence, the 3 California Court of Appeal explained that this 4 placement of goods in the stream of commerce 5 “constitutes purposeful availment if the income earned 6 by the manufacturer from sale or use of its product in 7 California is substantial.” 8 Id. Plaintiff has not submitted any evidence as to 9 Defendant’s income earned due to sales or use of the 10 product, if any, in California. Because the evidence 11 put forth by Plaintiff does not sufficiently prove 12 substantial income from sale or use of the product in 13 the state of California, the Court finds that Plaintiff 14 has not met its burden of proving purposeful availment 15 through the stream of commerce doctrine, as outlined in 16 Bridgestone. 17 Defendant argues that the Bridgestone court relied 18 on the “stream of commerce” doctrine of specific 19 jurisdiction.4 Reply 8:14-21. Defendant asserts that 20 the Court should apply the “stream of commerce plus” 21 doctrine, in which the Supreme Court reasoned that mere 22 foreseeability or awareness that a product may enter a 23 forum state is insufficient without “additional 24 25 4 The “stream of commerce” doctrine provides that “the forum 26 state does not exceed its powers under the Due Process Clause if 27 it asserts personal jurisdiction over a corporation that delivers products into the stream of commerce with the expectation that WorldWide Volkswagen Corp. v. Woodson, 444. U.S. 286, 297-298 (1980). 23 28 they will be purchased by consumers in the forum State.” 1 conduct.”5 Opp’n 8:27-28, 9:1-17. In the present case, 2 Plaintiff has not provided sufficient evidence that 3 Defendant has engaged in any direct contact with 4 California. Further, Plaintiff has failed to provide 5 evidence of additional conduct directed at California 6 necessary to satisfy the “stream of commerce plus” 7 doctrine enumerated in Asahi and J. McIntyre. 8 In the present case, in accordance with the 9 “stream of commerce plus” doctrine discussed in both 10 the plurality opinions from Asahi and J. McIntyre, and 11 Justice Breyer’s concurrence in J. McIntyre, the Court 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 Since World-Wide Volkswagen, Courts have differed as to what evidence is sufficient to establish the “expectation” that a product will be purchased by consumers in the forum State. The United States Supreme Court has attempted to clarify the “stream of commerce” doctrine in Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102 (1987), and J. McIntyre Machinery, Ltd. v. Nicastro, 131 S.Ct. 2780 (2011), with both plurality opinions noting that “something more” than “mere foreseeability” is needed. However, the lack of a majority in both cases has continued to leave circuits split as to the boundaries of the “stream of commerce” doctrine. Justice O’Connor’s plurality opinion in Asahi requires that the defendant engage in additional conduct other than mere awareness that a given product will reach the forum state. Justice Brennan’s concurrence in Asahi focuses instead on foreseeability, in that “as long as a participant [in the stream of commerce] is aware that the final product is being marketed in the forum State, the possibility of a lawsuit there cannot come as a surprise.” Asahi, 480 U.S. 102 at 117. In J. McIntyre, the Supreme Court attempted to clarify its earlier holding from Asahi. In Justice Kennedy’s plurality opinion in J. McIntyre, the Court reinforced the requirement of additional conduct purposefully directed at the forum state and rejected Justice Brennan’s concurrence in Asahi. Justice Breyer’s concurrence in J. McIntyre, followed by several Circuits as the “narrowest grounds” from the holding, rejected the plurality’s strict rule that limits jurisdiction “where a defendant does not ‘inten[d] to submit to the power of sovereign’ and cannot ‘be said to have targeted the forum.’” J. McIntyre, 131 S. Ct. 2780, 2793. 24 1 finds that Plaintiff has not made a sufficient showing 2 to establish that Defendant has purposefully availed 3 itself of California’s jurisdiction. 4 5 ii. Forum-Related Activities Plaintiff argues that the damages at issue in the 6 present action arose out of Defendant’s contacts with 7 the forum. Plaintiff asserts that this “lawsuit arose 8 directly out of Michilin’s contacts because all of 9 Michilin’s products, including the subject Shredder, 10 were initially shipped to California, which were then 11 distributed throughout the state and country.” Opp’n 12 8:23-26. 13 Defendant argues in response that Plaintiff fails 14 to establish that this action “[arose] out of or 15 relates activities”, as required by 16 Bridgestone. Reply 10:27-11:2. Defendant posits that, 17 even “assuming the ‘contact’ was Michilin’s sale of the 18 AS1000X paper shredders in China to Aurora, a 19 California distributor, with the knowledge or 20 expectation that the paper shredders would be sold in 21 the United States ... there is no evidence that 22 Aurora’s indemnification claim arises out of or has a 23 substantial connection with Michilin’s ‘contact’ with 24 California.” Id. at 11:9-15. 25 accordingly. Since the alleged accident occurred in The Court finds 26 Georgia, see Askue v. Aurora Corp. Of America, 2012 WL 27 843939 at *4 (N.D.Ga. 2012), it does not follow that 28 Plaintiff’s indemnification claims are related to 25 1 Defendant’s alleged activities in California. 2 The Court finds that Plaintiff failed to put forth 3 sufficient evidence that the indemnity action arose out 4 of any of Defendant’s alleged forum-related activities 5 to warrant the Court’s exercise of personal 6 jurisdiction. 7 iii. 8 9 Reasonableness of Court’s Exercise of Personal Jurisdiction Over Defendant “If the plaintiff succeeds in satisfying both of 10 the first two prongs, the burden then shifts to the 11 defendant to ‘present a compelling case’ that the 12 exercise of jurisdiction would not be reasonable.” 13 Adv. Skin & Hair, Inc. v. Bancroft, 858 F. Supp. 2d 14 1084, 1091 (C.D. Cal. 2012)(citing Schwarzenegger v. 15 Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 16 2004)). As discussed above, Plaintiff has not 17 satisfied either prong one or prong two of the specific 18 jurisdiction test, and thus the Defendant bears no 19 burden of proving prong three. Further, Plaintiff 20 applies the incorrect law in determining whether the 21 exercise of jurisdiction over a defendant is 22 reasonable. The Ninth Circuit has set forth seven 23 factors to be considered in determining whether the 24 exercise of jurisdiction over a nonresident defendant 25 is reasonable: (1) the extent to which the defendant 26 purposefully interjected itself into the affairs of the 27 forum state; (2) the burden on the defendant; (3) 28 conflicts of law between the forum and the defendant’s 26 1 home jurisdiction; (4) the forum’s interest in 2 adjudicating the dispute; (5) the most efficient 3 judicial resolution of the dispute; (6) the plaintiff’s 4 interest in convenient and effective relief; and (7) 5 the existence of an alternative forum. Roth v. Garcia 6 Marquez, 942 F.2d 617, 623 (9th Cir. 1991). 7 Plaintiff improperly relies on Illinois case law 8 indicating that “other jurisdictions” have “explicitly” 9 recognized that an insurer doing business within a 10 state has a “weighty interest” in litigating in that 11 state, where an insurer has suffered serious losses due 12 to the defendant’s product injuring one of its 13 insureds. Opp’n 9:11-18, Sentry Ins. Co. v. Bull HN 14 Info. Sys., Inc., No. 97 C 4211, 1999 WL 51801, at *2 15 (N.D. Ill. Jan. 29, 1999). Plaintiff calls attention 16 to Illinois’ interest in “protecting the interest of 17 insurers of businesses in Illinois, thereby encouraging 18 business growth and rational risk management” as 19 weighing in favor of asserting jurisdiction. 20 Id. Plaintiff asserts that because Defendant’s alleged 21 defective product harmed a minor child, Plaintiff paid 22 compensatory damages when a lawsuit was filed by the 23 child’s parents. Opp’n 9:19-22. Plaintiff argues that 24 Plaintiff and California both have a significant 25 interest in “protecting the interests of its businesses 26 from defective products that cause damages.” Id. 27 Plaintiff does not address any of Defendant’s arguments 28 in regards to reasonableness. 27 1 Defendant, in turn, references the test from World- 2 Wide Volkswagen. Defendant asks the Court to consider: 3 “(1) the burden on Michilin, (2) the interests of the 4 forum state, (3) plaintiff’s interest in obtaining 5 convenient and effective relief, (4) the interstate 6 judicial system’s interest in obtaining convenient and 7 effective relief, and (5) the shared interest of the 8 various jurisdictions in furthering fundamental 9 substantive social policies.” Mot. 14:14-22; See 10 World-Wide Volkswagen Corporation v. Woodson, 444 U.S. 11 286, 292 (1980). 12 The only instance of interjection into California 13 is the arrival of the Shredder to Plaintiff in 14 California. Compl. ¶14. Defendant contends that if it 15 is compelled to litigate in California, it will incur a 16 substantial burden by having to travel to California 17 for court appearances and to produce witnesses and 18 evidence for proceedings. Mot. 15:4-14. Defendant 19 does not address any of the prongs of the test other 20 than the burden on itself. 21 Applying the Ninth Circuit’s test as set forth in 22 Roth, the Court weighs each factor individually. 23 24 a. Purposeful Interjection In weighing the factor of purposeful interjection, 25 the extent of the defendant’s purposeful interjection 26 into the forum is considered in regards to “the smaller 27 the element of purposeful interjection, the less is 28 jurisdiction to be anticipated and the less reasonable 28 1 its exercise.” Core-Vent Corp. v. Nobel Indus. AB, 11 2 F.3d 1482, 1488 (9th Cir. 1993). Defendant argues that 3 its alleged wrongful conduct occurred in China, where 4 its business and employees are located, and that 5 Defendant has no physical sales force presence in the 6 state of California. Reply, 13:2-6. The only 7 interjection into California is a Defendant8 manufactured product, to which Defendant “surrendered 9 its custody, possession, and control in China.” 10 15:1-3. Mot. As this element of purposeful interjection is 11 relatively small, the exercise of jurisdiction over 12 Defendant is less reasonable. Thus, the Court finds 13 that this factor does not weigh in favor of 14 reasonableness. 15 b. 16 17 Burden on Defendant to Litigate in Forum Defendant argues that the burden of litigating in 18 California would be great because all of Defendant’s 19 documents, communication, and witnesses are located in 20 China. Reply, 13:11-15. Defendant also argues that 21 there is a large burden of travel due to the mandatory 22 attendance requirements of this Court and Defendant has 23 no employees, agents, or representatives in California. 24 Mot., 15:4-10. In light of the above, the Court finds 25 that this factor does not weigh in favor of 26 reasonableness. 27 28 c. Conflict with Sovereignty The third factor evaluates “the extent of any 29 1 conflict with sovereignty” of the defendant’s home 2 country or state. Id. Defendant acknowledges that the 3 Supreme Court “has recently emphasized the importance 4 of international comity as an important factor,” but 5 fails to provide any evidence that keeping this case in 6 California would affect “international comity.” 7 14:20-22. Mot. Defendant has not provided any evidence of a 8 conflict with any sovereignty and thus the Court finds 9 that this factor weighs in favor of reasonableness. 10 11 d. California’s Interest The fourth factor “considers California’s interest 12 in adjudicating the controversy.” 13 858 F. Supp. 2d at 1091. Adv. Skin & Hair, Plaintiff alleges that 14 “defendants’ defective product harmed a minor child” 15 which caused Plaintiff, a California corporation, to 16 pay compensatory damages in a lawsuit for the injury. 17 Plaintiff argues that California has a “significant 18 interest in protecting the interests of its businesses 19 from defective products that cause damages.” 20 9:19-22. Opp’n. Defendant argues that this is “not a personal 21 injury-product liability action brought by a California 22 consumer against a foreign manufacturer, but is rather 23 a claim for reimbursement, brought by “a sophisticated 24 commercial distributor located in California against a 25 Taiwanese manufacturer.” Reply 12:18-22. Because 26 California maintains a strong interest in “redressing 27 the injury of its citizen,” the Court finds that this 28 factor weighs in favor of reasonableness. 30 Adv. Skin & 1 Hair, 858 F. Supp. 2d at 1091. 2 3 e. Efficient Judicial Resolution The fifth factor, focusing on the most efficient 4 judicial resolution of the controversy, “primarily 5 focuses on the location of the evidence and the 6 witnesses.” Id. at 1092. Defendant argues that all of 7 the evidence relating to the subject product, as well 8 as Defendant’s witnesses, are located in China. 9 13:11-13. Reply, Plaintiff has not offered any evidence 10 relating to this matter. Accordingly, the Court finds 11 that this factor does not weigh in favor of 12 reasonableness. 13 14 f. Plaintiff’s Interest in Relief The sixth factor is the importance of the forum to 15 a plaintiff’s interest in convenient and effective 16 relief. Id. Nothing in the Parties’ papers 17 establishes that effective relief is not available to 18 Plaintiff in China, Defendant’s preferred choice of 19 forum. Defendant argues that there is “no contractual 20 obligation addressing the indemnification claim,” and 21 that Plaintiff “can and should pursue its 22 indemnification claim against Michilin in China.” 23 Reply 13:15-18. The Court finds that this factor 24 weighs slightly against a finding of reasonableness. 25 26 g. Alternative Forum The final factor is the availability of an 27 alternative forum. Plaintiff has not alleged that 28 there are no alternative forums for its claims or that 31 1 Plaintiff could not bring its claims in China. Again, 2 Defendant has advised that Plaintiff should bring its 3 indemnification claim against Defendant in China. As 4 such, the Court finds that this factor does not weigh 5 in favor of reasonableness. 6 Since the majority of these factors weigh against a 7 finding of reasonableness, this Court finds that it 8 would be unreasonable for it to exercise personal 9 jurisdiction over the Defendant. Based on the 10 foregoing reasons, the Court finds that it cannot 11 exercise specific jurisdiction over Defendant. 12 Accordingly, the Court GRANTS Defendant’s Motion 13 pursuant to Fed. R. Civ. P. 12(b)(2). This action 14 shall be dismissed for lack of personal jurisdiction. 15 16 17 4. Plaintiff’s Request, in the Alternative, for Jurisdictional Discovery In its Opposition, Plaintiff requests that if the 18 Court is inclined to grant Defendant’s motion to 19 dismiss, that Plaintiff be given an opportunity to 20 conduct jurisdictional discovery, in order to further 21 establish personal jurisdiction through minimum 22 contacts. Opp’n 10:2-8. Plaintiff has not proffered 23 any admissible evidence that Defendant has sufficient 24 minimum contacts with California to warrant the 25 exercise of specific personal jurisdiction over 26 Defendant. Plaintiff’s allegations stem largely from 27 the findings in another court’s proceeding and as such 28 do not rebut Defendant’s evidence as to minimum 32 1 contacts. 2 Furthermore, Plaintiff’s request for jurisdictional 3 discovery is not narrowly tailored to flesh out certain 4 instances of alleged minimum contacts, but rather 5 generally requests that the Plaintiff be given the 6 opportunity to further establish minimum contacts. Id. 7 See Dever v. Hentzen Coatings, Inc., 380 F.3d 1070, 8 1074, fn. 1 (8th Cir. 2004)(citing Carefirst of 9 Maryland, Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 10 F.3d 390, 402 (4th Cir.2003) (“When a plaintiff offers 11 only speculation or conclusory assertions about 12 contacts with a forum state, a court is within its 13 discretion in denying jurisdictional discovery.”)); see 14 also McLaughlin v. McPhail, 707 F.2d 800, 806 (4th 15 Cir.1983) (holding that district court *403 did not 16 abuse its discretion in denying jurisdictional 17 discovery when, “[a]gainst the defendants' affidavits,” 18 plaintiff “offered nothing beyond his bare allegations 19 that the defendants had had significant contacts with 20 the [forum] state of Maryland” (internal quotation 21 marks omitted)). Accordingly, this Court DENIES 22 Plaintiff’s request, in the alternative, to conduct 23 jurisdictional discovery. 24 IT IS SO ORDERED. 25 DATED: September 29, 2015 s/ HONORABLE RONALD S.W. LEW Senior U.S. District Judge 26 27 28 33

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