Focht v. Sol Melia S.A.

Filing 87

ORDER by Judge Edward M. Chen Granting 3 Defendant's Motion to Dismiss. (emcsec, COURT STAFF) (Filed on 1/19/2012)

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

NORTHERN DISTRICT OF CALIFORNIA

7
8

LINDSAY FOCHT,

9

11
For the Northern District of California

United States District Court

10

No. C-10-0906 EMC

Plaintiff,
v.
SOL MELIA S.A., dba Sol Melia Hotels &
Resorts,

ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS
(Docket No. 3)

12
13

Defendant.
___________________________________/

14
15
16

Plaintiff Lindsay Focht has filed suit against Defendant Sol Melia, S.A., (“SM”) asserting a

17

claim for negligence based on injuries that she sustained after falling from a zip line at the Hotel

18

Melia Puerto Vallarta, a hotel located in Mexico. In April 2010, SM moved to dismiss for lack of

19

personal jurisdiction or, in the alternative, for forum non conveniens.1 The parties stipulated to

20

limited written discovery on jurisdiction. Subsequently, Ms. Focht asked for leave to take additional

21

jurisdictional discovery, which the Court permitted. See Docket No. 33 (order). The jurisdictional

22

discovery now has been completed, and thus the motion to dismiss for lack of personal jurisdiction

23

is now ripe for resolution. Having considered the parties’ briefs and accompanying submissions, as

24

well as the oral argument of counsel and all other evidence of record, the Court hereby GRANTS

25

SM’s motion to dismiss for lack of personal jurisdiction.

26
27
28

1

In its moving papers, SM also asked for a dismissal based on insufficient service of
process. However, SM subsequently withdrew that part of the motion to dismiss. See Docket No.
30 (notice).

1
2

I.

FACTUAL & PROCEDURAL BACKGROUND

In conjunction with the motion to dismiss, both parties have submitted written materials for

3

the Court’s consideration, including materials that Ms. Focht obtained through discovery. Those

4

materials reflect as follows.

5

SM is a Spanish corporation with a principal place of business in Spain. See Docket No. 5

6

(Pardo Decl. ¶ 2). SM owns or manages, either directly or indirectly, hotels under a variety of

7

brands such as Sol, Melia, ME, and Paradisus. Collectively, the hotels are a part of the brand known

8

as the Sol Melia Hotels and Resorts. See Docket No. 72 (Blake Decl., Ex. 4) (response to

9

Interrogatory No. 9). These hotels shall hereinafter be referred to as the “Sol Melia brand hotels.”

11
For the Northern District of California

United States District Court

10

See Docket No. 5 (Pardo Decl. ¶ 2).
There is no dispute that SM does not directly own or directly operate the brand hotel in

12

Mexico where Ms. Focht was injured. See Docket No. 5 (Pardo Decl. ¶ 19). Rather, that hotel is

13

directly owned and directly operated by SM affiliates. More specifically, the hotel is owned by

14

Bisol Vallarta, S.A. de C.V., and the hotel is operated by Operadora Mesal, S.A. de C.V. Both

15

companies are Mexican corporations with principle places of business in Mexico. SM owns a

16

majority interest of the parent company of the parent company of Bisol Vallarta. SM directly and

17

indirectly owns 100% interest in Operadora Mesal. See Docket No. 5 (Pardo Decl. ¶ 21); Docket

18

No. 72 (Blake Decl., Ex. 4) (responses to Interrogatory Nos. 4-6).

19

In addition to the above, there is no dispute that SM does not own or manage, either directly

20

or indirectly, any hotel in California. See Docket No. 5 (Pardo Decl. ¶ 2). Indeed, consistent with

21

this fact, there is no dispute that SM is not authorized to do business in California, does not own real

22

or personal property in California, does not maintain any banking or financial account in California,

23

and does not pay taxes or file tax returns in California. See Docket No. 5 (Pardo Decl. ¶¶ 3-6).

24

While SM does not own or manage any hotel in California, California residents do stay at the

25

Sol Melia brand hotels. Relying on the opinion of an expert, Ms. Focht claims that, each year,

26

approximately 50,000 California residents stay at the brand hotels or purchase timeshares there,

27

resulting in $11 million in annual revenue. SM disputes these numbers. It also disputes that all of

28

the revenues made by the brand hotels can be attributed to SM for purposes of personal jurisdiction.

2

1

SM maintains a website at www.solmelia.com. The website, which is available in nine

2

languages, permits interested users to make reservations directly with the Sol Melia brand hotels.

3

Potential guests are not charged for booking a reservation; they pay at the hotel after their stay.

4

Besides www.solmelia.com, Sol Melia creates and owns websites for each hotel individually. Each

5

website is linked to www.solmelia.com. See Blake Decl., Ex. 4 (response to Interrogatory No. 42).

6

In 2008, there were approximately 4,000 website bookings from California; the same is true for

7

2009. See Blake Decl., Ex. 4 (responses to Interrogatories Nos. 46-48). There is no evidence that

8

any of the websites targets California residents.

9

In addition to the website, SM maintains two loyalty programs – a customer loyalty program
known as MAS and a travel agent loyalty program known as Club Amigos – plus a customer

11
For the Northern District of California

United States District Court

10

database, which contains information about customers of the Sol Melia brand hotels.

12

•

With respect to the MAS program, from 2007 to 2009, there were approximately 14,000 to

13

19,000 members who were California residents. See Blake Decl., Ex. 4 (response to

14

Interrogatory No. 19). During that same period, approximately 5,000 to 8,000 received e-

15

mail and newsletters about the program. See Blake Decl., Ex. 4 (response to Interrogatory

16

No. 20).

17

•

With respect to the Club Amigos program, from 2007 to 2009, there were approximately

18

1,100 to 1,400 members who were California residents. See Blake Decl., Ex. 4 (response to

19

Interrogatory No. 21). During the same period, approximately 200 to 500 received e-mail

20

and newsletters about the program. See Blake Decl., Ex. 4 (response to Interrogatory No.

21

22).

22

•

As for the customer database, in 2008, there were 4,463 California customers in the database

23

out of 6,049,265 customers total (i.e., 0.074% of the total). In 2009, there were 4,303

24

California customers in the database out of 3,356,959 customers total (0.13%). See Blake

25

Decl., Ex. 4 (response to Interrogatory No. 12).

26

Other contacts that SM has with California include a contract for internet advertising with

27

Google, a California-based company, and use of Facebook and Twitter, also California-based

28

companies, to promote the brand hotels.

3

1

Finally, SM has three affiliates which are specifically identified by Ms. Focht as having

2

contacts with California that are attributable to SM. Those affiliates are Sol Group Corporation

3

(“SGC”), Sol Melia Vacation Club LLC (“SMVC”), and Vacation Club Services Inc. (“VCSI”).

4

SMVC and VCSI are hereinafter referred to collectively as the Vacation Club entities.

5
6

II.
A.

7

DISCUSSION

Legal Standard
Under Federal Rule of Civil Procedure 12(b)(2), a defendant may move to dismiss for lack of

8

personal jurisdiction. The plaintiff has the burden of establishing that jurisdiction is proper. See

9

Mavrix Photo, Inc. v. Brand Techs., Inc., 647 F.3d 1218, 1223 (9th Cir. 2011). Where a court does
not conduct an evidentiary hearing, and only written materials are presented for the court’s

11
For the Northern District of California

United States District Court

10

consideration, then a plaintiff need only make a prima facie showing of jurisdictional facts to

12

withstand a motion to dismiss. See Fiore v. Walden, 657 F.3d 838, — (9th Cir. 2011); Mavrix, 647

13

F.3d at 1223. “[I]n deciding whether a prima facie showing has been made, ‘the court resolves all

14

disputed facts in favor of the plaintiff.’” Fiore, 657 F.3d at —.

15

B.

16

General Jurisdiction – General Principles
Because there is no federal statute authorizing personal jurisdiction, the Court must apply the

17

law of the state in which it sits. See Mavrix, 647 F.3d at 1223. California’s long-arm statute is

18

coextensive with federal due process requirements, see Cal. Code Civ. Proc. § 410.10 (providing

19

that “[a] court of this state may exercise jurisdiction on any basis not inconsistent with the

20

Constitution of this state or of the United States”), and therefore

21
22
23

the jurisdictional analyses under state law and federal due process are
the same. For a court to exercise personal jurisdiction over a
nonresident defendant consistent with due process, that defendant
must have “certain minimum contacts” with the relevant forum “such
that the maintenance of the suit does not offend ‘traditional notions of
fair play and substantial justice.’”

24
25
26

Mavrix, 647 F.3d at 1223.
In the instant case, Ms. Focht does not contend that there is specific jurisdiction over SM.

27

Rather, she claims only general jurisdiction. “In the context of general jurisdiction, minimum

28

contacts exist where a defendant has ‘substantial’ or ‘continuous and systematic’ contacts with the

4

1

forum state, even if the case is unrelated to those contacts.” Tuazon v. R.J. Reynolds Tobacco Co.,

2

433 F.3d 1163, 1171 (9th Cir. 2006). The contacts must “‘approximate physical presence.’” Id. at

3

1169.

4

To determine whether a nonresident defendant’s contacts are
sufficiently substantial, continuous, and systematic, [a court]
consider[s] their “[l]ongevity, continuity, volume, economic impact,
physical presence, and integration into the state’s regulatory or
economic markets.” The standard for general jurisdiction “is an
exacting standard, as it should be, because a finding of general
jurisdiction permits a defendant to be haled into court in the forum
state to answer for any of its activities anywhere in the world.”

5
6
7
8
9

Mavrix, 647 F.3d at 1223-24. In short, the level of contact with the forum state necessary to
establish general (as opposed to specific) jurisdiction is “quite high.” Shute v. Carnival Cruise

11
For the Northern District of California

United States District Court

10

Lines, 897 F.2d 377, 380 (9th Cir. 1990), rev’d on other grounds, 499 U.S. 585 (1991).

12

The Supreme Court has found general personal jurisdiction over a non-resident defendant in

13

only one case – Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437 (1952). See Mavrix, 647

14

F.3d at 1224. In fact, the Supreme Court

15

has recently described Perkins as the “textbook case of general
jurisdiction appropriately exercised over a foreign corporation that has
not consented to suit in the forum.” The facts of Perkins illustrate the
nature and extent of the contacts required for general jurisdiction. The
defendant was a Philippine corporation whose mining operations were
suspended while the Japanese occupied the Philippines during World
War II. The corporation’s president, who was also its general manager
and principal stockholder, returned to his home in Ohio, where he ran
a corporate office. The president kept business files in Ohio; handled
corporate correspondence from Ohio; drew employees’ salaries from
accounts in Ohio banks and distributed paychecks; held directors’
meetings while he was in Ohio; and “carried on in Ohio a continuous
and systematic supervision of the necessarily limited wartime
activities of the company.” Plaintiff’s “cause of action . . . did not
arise in Ohio and [did] not relate to the corporation’s activities there.”
But because of the nature and extent of the corporation’s activities in
the state, “Ohio was the corporation’s principal, if temporary, place of
business.” The Court therefore upheld the exercise of personal
jurisdiction over the corporation in Ohio.

16
17
18
19
20
21
22
23
24
25

Id.

26

///

27

///

28

///

5

1

In contrast, the Supreme Court declined to find general jurisdiction in Helicopteros

2

Nacionales De Colombia, S.A. v. Hall, 466 U.S. 408 (1984). There, the plaintiff argued that a

3

Colombian corporation was subject to general jurisdiction in Texas.

4

[E]ven though the corporation sent its CEO to Texas to negotiate a
contract; spent more than $4 million to purchase approximately 80
percent of its fleet of aircraft, as well as spare parts and accessories,
from a Texas supplier; sent pilots for training in Texas; sent
management and maintenance personnel to Texas for technical
consultation; and received over $5 million in contract payments from
funds drawn on a Texas bank,

5
6
7

Notably, the Court concluded that “mere purchases, even if occurring at regular intervals” and in

10

significant dollar volumes, were not sufficient to establish general jurisdiction. Helicopteros, 466

11
For the Northern District of California

Mavrix, 647 F.3d at 1225, the Supreme Court concluded that general jurisdiction was lacking.

9

United States District Court

8

U.S. at 418. The Court further held that such purchases even if accompanied by employee trips into

12

the forum were insufficient. See id. at 417 (citing Rosenberg Bros. & Co. v. Curtis Brown & Co.,

13

260 U.S. 516 (1923)).

14

C.

SM Contacts Identified by Ms. Focht

15

There is no dispute that SM is a Spanish corporation with its principal place of business in

16

Spain. See Compl. ¶ 2; see also Docket No. 5 (Pardo Decl. ¶ 2). Nevertheless, Ms. Focht argues

17

that there is general jurisdiction over SM in California based on the following alleged contacts with

18

the forum.2

19

•

Maintenance of sales offices in California.

20

•

Annual revenue of at least $11 million from 50,000 California residents who stay at the Sol

21
22

Melia brand hotels and/or purchase their timeshares.
•

23
24
25

Operation of an interactive website (www.solmelia.com), which is viewed and used in
California.

•

Operation of a customer loyalty program (MAS) and a travel agent loyalty program (Club
Amigos), which have thousands of California members who receive promotional materials.

26
27
28

2

Neither party has argued that the Court should look at SM’s contacts with the United States
rather than contacts with California in determining whether the courts of the United States should
have jurisdiction over SM.

6

1

•

Maintenance of a consumer database which includes thousands of California residents.

2

•

A contract for internet advertising with Google, a California-based corporation, and use of

3

Facebook and Twitter, both California-based corporations, to promote the brand hotels.

4

In addition to the contacts identified above, Ms. Focht argues that the contacts of three

5

entities affiliated with SM – i.e., SGC and the two Vacation Club entities (i.e., SMVC and VCSI) –

6

should be attributed to SM.

7

Each of these contacts is addressed below. The Court shall first evaluate the contacts

8

individually and only then collectively. It takes this approach because, as discussed below, in some

9

instances, there are serious deficiencies with the individual contacts which affect how the Court may
consider the contacts collectively.

11
For the Northern District of California

United States District Court

10

D.

12

Sales Offices in California
According to Ms. Focht, SM maintains sales offices in California and therefore has a

13

physical presence in California and is doing business in California. In support of this claim, Ms.

14

Focht relies primarily on the 2009 hotel directory and the www.solmelia.com website. See Docket

15

No. 72 (Blake Decl., Ex. 9) (page 210 of hotel directory); Docket No. 72 (Blake Decl., Ex. 10)

16

(website). The problem for Ms. Focht is that the above evidence does not indicate that SM

17

specifically holds itself out as having sales offices in California. Rather, the evidence simply reflects

18

that there are sales offices for the Sol Melia Hotels and Resorts (a brand), not that they belong to or

19

are operated by SM. It appears that the California sales offices at issue is maintained by SGC,

20

which is an entity legally separate from SM. Whether SGC’s contacts may nevertheless be

21

attributed to SM for purposes of personal jurisdiction are discussed in Part II.J, infra.

22

E.

Annual Revenue

23

Ms. Focht claims that SM has significant contacts with California because it derives at least

24

$11 million in annual revenue from 50,000 California residents who stay at Sol Melia brand hotels

25

and/or purchase their time-shares. SM contests these numbers, arguing that the expert opinion

26

///

27

///

28

///

7

1

offered by Ms. Focht is flawed.3 SM further argues that it is improper to attribute all of the revenues

2

earned by the brand hotels to SM.

3

Even if the Court were to accept Ms. Focht’s numbers, as it must in the context of this

4

motion, there are two problems. First, on this record, not all the revenues may be attributed to SM.

5

Second, even if they were attributable, the revenues earned from California and associated contacts

6

are not sufficient to establish general jurisdiction.

7

1.

8

There is a fundamental problem with Ms. Focht’s assumption that all of the revenues of the

Attribution of Affiliates’ Contacts

hotels that SM directly owns, attribution is reasonable. But SM does not directly own all of the

11
For the Northern District of California

Sol Melia brand hotels may be attributed to SM for purposes of personal jurisdiction. For those

10

United States District Court

9

brand hotels. The record reflects that, out of the Sol Melia brand hotels, only 30% are owned by

12

SM; the remainder are leased (17%), managed (48%), or franchised (5%). See Pardo Depo. at 61-

13

62; Docket No. 72 (Blake Decl., Ex. 8) (first page of 2009 sustainability report). For the 30% that

14

are owned, it appears that SM is the direct owner of only a fraction (e.g., some hotels in Spain); the

15

remaining hotels are owned indirectly through affiliates of SM. See Pardo Depo. at 61-62.

16

For purposes of this opinion, the Court assumes that, for the Sol Melia brand hotels that are

17

not directly owned, there is some sort of parent-subsidiary relationship (e.g., a hotel is a subsidiary

18

of a subsidiary of SM, or a management company is a subsidiary of SM). However, a parent-

19

subsidiary relationship by itself is not enough to attribute the contacts of the Sol Melia brand hotels

20

to SM. The Ninth Circuit has expressly stated that

21

[t]he existence of a relationship between a parent company and
its subsidiaries is not sufficient to establish personal jurisdiction over
the parent on the basis of the subsidiaries’ minimum contacts with the
forum. As the Supreme Court recently explained in the context of
assessing corporate separateness for purposes of liability:

22
23
24
25
26

3

In response to an interrogatory, SM stated that:

27

•
•
•

In 2007, 17,426 out of 46,419,730 total guests were California residents (0.0375%).
In 2008, 10,354 out of 43,750,992 total guests were California residents (0.0237%).
In 2009, 4,207 out of 22,742,215 total guests were California residents (0.0185%).

28

See Blake Decl., Ex. 4 (response to Interrogatory No. 11).

8

1

It is entirely appropriate for directors of a parent
corporation to serve as directors of its subsidiary, and
that fact alone may not serve to expose the parent
corporation to liability for its subsidiary’s acts. This
recognition that the corporate personalities remain
distinct has its corollary in the well established
principle of corporate law that directors and officers
holding positions with a parent and its subsidiary can
and do “change hats” to represent the two corporations
separately, despite their common ownership.

2
3
4
5
6

In considering a parent corporation’s potential liability under
CERCLA, the Supreme Court distinguished “a parental officer’s
oversight of a subsidiary from such an officer’s control over the
operation of the subsidiary’s facility.” In so doing, the Supreme Court
articulated a generally applicable principle that a parent corporation
may be directly involved in the activities of its subsidiaries without
incurring liability so long as that involvement is “consistent with the
parent’s investor status.” Appropriate parental involvement includes:
“monitoring of the subsidiary’s performance, supervision of the
subsidiary’s finance and capital budget decisions, and articulation of
general policies and procedures.”

7
8
9

11
For the Northern District of California

United States District Court

10

12
13
14

Doe v. Unocal Corp., 248 F.3d 915, 925-26 (9th Cir. 2001).
The Court acknowledges that, in certain circumstances, the contacts of a subsidiary may be

15

attributed to a parent for purposes of personal jurisdiction – more specifically, when the subsidiary is

16

the alter ego of the parent or when the subsidiary is the agent of the parent. See Bauman v.

17

DaimlerChrysler Corp., 644 F.3d 909, 920-21 (9th Cir. 2011). However, in the instant case, Ms.

18

Focht has made no attempt in her papers, or even at the hearing, to argue either alter ego or agency

19

for the brand hotels.4 Rather, she has made only an alter ego or agency argument for SGC and the

20

Vacation Club entities.

21

To the extent Ms. Focht contends that the mere fact that revenues eventually make their way

22

back to SM is sufficient for attribution of contacts, see Tr. at 7; see also Pardo Depo. at 34-39

23

(explaining that revenues go first to the hotel to cover its needs, then to another affiliated company

24
4

25
26
27
28

To the extent Ms. Focht argues that SM suggests the brand hotels are its hotels (e.g.,
through the www.solmelia.com website, the hotel directory, or the financial report), that is simply a
reflection of the parent-subsidiary relationship or sharing of a brand name. Neither is enough to
justify the attribution of the hotels’ contacts to SM for purposes of personal jurisdiction analysis.
See, e.g., Day v. Harrah’s Hotel & Casino Las Vegas, No. 10cv1746-WQH-JMA, 2010 U.S. Dist.
LEXIS 116817, at *9 (S.D. Cal. Nov. 2, 2010) (stating that evidence that companies share the same
brand name “is insufficient to establish that the . . . entities at issue have anything other than a
‘relationship between a parent company and its subsidiaries’”).

9

1

above the hotel, and only then to SM if there is any revenue left over), the Court does not agree.

2

First, she has cited no authority in support of that proposition. Second, that position is

3

fundamentally flawed because, in any parent-subsidiary relationship, at least some revenues will

4

presumably make their way back to the parent. Allowing attribution on this circumstance alone

5

would run counter to the baseline principle that a parent-subsidiary relationship in itself is not

6

enough to hold a parent responsible for its subsidiary’s contacts with the distant forum.

7

To be sure, attribution of revenue to SM might be reasonable for hotels that SM manages

8

where SM has control over the generation of such revenues. However, there is no evidence in the

9

record of what SM does as a management company. There is no evidence that SM directs and
controls marketing in California of the brand hotels in a manner which warrants attributing to SM

11
For the Northern District of California

United States District Court

10

the $11 million in purported California revenue earned by SM affiliates. Instead, Ms. Focht only

12

presented evidence as to California marketing by SGC, which as discussed below is not sufficient to

13

support general jurisdiction over SM.

14

Because there is no basis to attribute all of the Sol Melia brand hotel contacts to SM – at

15

least based on the record presented – the Court cannot attribute the brand hotels’ purported $11

16

million in annual revenue from California customers to SM. While some portion of that figure could

17

arguably be attributed to SM, Ms. Focht has offered no way for the Court to estimate with any

18

reasonable accuracy what that portion would be.

19

2.

20

Even if the $11 million annual revenue could be attributed to SM, it is not enough to

Revenues Not Sufficient to Establish General Jurisdiction

21

establish general jurisdiction. Although that volume of sales is substantial in absolute terms, it is

22

insignificant in relative terms. The $11 million figure represents only a tiny fraction – 0.75% – of

23

SM’s worldwide sales. See Opp’n at 3 (asserting that, in 2009, SM had revenues of over $1.5

24

billion). Moreover, the Court has no information indicating that this revenue is a significant portion

25

of the California travel market. Compare Tuazon, 433 F.3d at 1167 (finding general jurisdiction

26

where, among other things, defendant had net sales of $145-240 million each year and a market

27

share in the forum of 29-31%).

28

10

1

Ms. Focht contends that percentages (as opposed to absolute dollars) are meaningless, citing

2

in support Lakin v. Prudential Securities, Inc., 348 F.3d 704 (8th Cir. 2003). In Lakin, the Eighth

3

Circuit stated that the “[p]ercentage of a company’s sales in a given state are generally irrelevant”

4

because “[m]any companies conduct millions of dollars in sales worldwide yet only do a small

5

percentage of their sales in any one state.” Id. at 709. It added that “our relevant inquiry is not

6

whether the percentage of a company’s contacts is substantial for that company; rather, our inquiry

7

focuses on whether the company’s contacts are substantial for the forum.”

8

This Court acknowledges that the percentage of a defendant’s sales in the forum is not

9

dispositive. However, the Court disagrees with Ms. Focht’s position that relative significance of the
revenue is entirely irrelevant. Indeed, the Ninth Circuit has held to the contrary. In Shute, for

11
For the Northern District of California

United States District Court

10

example, the court found no general jurisdiction based on, among other factors (e.g., limited

12

marketing efforts in the forum), the fact that the sale of vacation cruises to residents of Washington

13

accounted for only 1% (approximately) of defendant’s business. See Shute, 897 F.2d at 381. In so

14

holding, the court cited its earlier decision in Congoleum Corp. v. DLW Aktiengesellschaft, 729 F.2d

15

1240 (9th Cir. 1984), which rejected general jurisdiction even where the defendant had engaged in

16

sales and marketing efforts in the forum. See Shute, 897 F.2d at 381.

17

Similarly, in Johnston v. Multidata Systems International Corp., 523 F.3d 602 (5th Cir.

18

2008), the Fifth Circuit found no general jurisdiction over the foreign defendant even though it had

19

$1.5-8.75 million in annual sales to Texas customers over a five-year period because sales accounted

20

for only 0.5-2.5% of total global sales of the defendant. See id. at 614. The court cited in support:

21

Access Telecom, Inc. v. MCI Telecommunications Corp., 197 F.3d 694 (5th Cir. 1999), where no

22

general jurisdiction was found even though the defendant derived millions of dollars a month in

23

revenue from Texas residents; Dalton v. R&W Marine, Inc., 897 F.2d 1359 (5th Cir. 1990), which

24

held that there was no general presence in the forum despite the fact that the defendant earned over

25

12% of its revenues from sales in the state; and Bearry v. Beech Aircraft Corp., 818 F.2d 370 (5th

26

Cir. 1987), which held that sale of over $250 million of products to Texas customers did not

27

constitute systematic and continuous contacts with Texas.

28

11

1

To establish general jurisdiction, more than the sale of $11 million to Californians is

2

required. Cf. Helicopteros, 466 U.S. 408 (finding purchases of significant dollar volume insufficient

3

to establish general jurisdiction).

4

F.

5

Website
Ms. Focht contends that the www.solmelia.com website is another significant contact that

6

SM has with California. The fact that the website is accessible by California residents is not enough

7

to establish general jurisdiction. See Mavrix, 647 F.3d at 1227 (stating that, “[t]o permit the exercise

8

of general jurisdiction based on the accessibility in the forum of a non-resident interactive website

9

would expose most large media entities to nationwide general jurisdiction”). While Ms. Focht
points out that hundreds of thousands of California residents have in fact accessed the website for

11
For the Northern District of California

United States District Court

10

one to two million page views, see Docket No. 72 (Blake Decl., Ex. 4) (response to Interrogatory

12

Nos. 46-47), she has failed to explain why those numbers have any real significance absent an

13

indication that, e.g., SM was targeting a California audience with its website (as opposed to an

14

international one, especially given the nine languages available on the website) or that the

15

interactive website produced a substantial portion of its revenue. See, e.g., Martino-Valdes v.

16

Renaissance Hotel Management Co. LLC, No. :10-1278 (DRD), 2011 U.S. Dist. LEXIS 127487

17

(D.P.R. Aug. 25, 2011) (taking into account whether the defendant “has done anything to encourage

18

people in [the forum] to visit the site” and examining whether the “web site was directed at [the

19

forum] more than any other place in the country”); In re Enterprise Rent-A-Car Wage & Hour

20

Employment Practices Litigation, 735 F. Supp. 2d 277 (W.D. Pa. 2010) (stating that, “‘[w]here a

21

website is interactive and general jurisdiction is at issue, the court must analyze whether the website

22

is targeted specifically to Pennsylvanians and whether the website is central to the defendant’s

23

business in Pennsylvania’”). Analogously, in Elayyan v. Melia, 571 F. Supp. 2d 886 (N.D. Ind.

24

2008), the court noted that “[c]ourts treat hotel websites that allow the placing of reservations

25

similarly to other forms of national advertising, such as toll-free reservation hotlines, which are

26

themselves insufficient to establish general jurisdiction.” Id. at 901; cf. Gonzales v. Palo Alto Labs,

27

Inc., No. C 10-2456 MEJ, 2010 U.S. Dist. LEXIS 110295, at *12-13 (N.D. Cal. Oct. 6, 2010)

28

12

1

(stating that “advertisements in national magazines do not rise to the level of purposeful contact with

2

a forum required by the Constitution in order to exercise personal jurisdiction over the advertiser”).

3

To be sure, California residents have not simply accessed the SM website; they have made

4

actual use of the website to book reservations for the Sol Melia brand hotels. See Coremetrics, Inc.

5

v. AtomicPark.com, LLC, 370 F. Supp. 2d 1013, 1022-24 (N.D. Cal. 2005) (looking at volume of

6

internet sales, as well as their frequency). However, the number of bookings is not that significant –

7

approximately 4,000 each year. See Manley v. Air Canada, 753 F. Supp. 2d 551, 558 n.2 (E.D.N.C.

8

2010) (indicating that personal jurisdiction could be based on internet sales but the sales would have

9

to be more than de minimis). As a point of comparison, in Keeton v. Hustler Magazine, Inc., 465
U.S. 770 (1984), the Supreme Court held there was no general jurisdiction over a Ohio corporation

11
For the Northern District of California

United States District Court

10

in New Hampshire even though that corporation circulated 10,000 to 15,000 copies of its magazines

12

per month in the forum. See id. at 772, 779 n.11. Moreover, presumably the California revenues

13

generated by these contacts is incorporated into the $11 million discussed above.

14

G.

15

Loyalty Programs
Ms. Focht argues next that SM has significant California contacts based on two loyalty

16

programs that it runs: (1) a customer loyalty program (MAS) and (2) a travel agent loyalty program

17

(Club Amigos).

18

With respect to the MAS program, from 2007 to 2009, there were approximately 14,000 to

19

19,000 members who were California residents. See Blake Decl., Ex. 4 (response to Interrogatory

20

No. 19). From 2007 to 2009, approximately 5,000 to 8,000 received e-mail and newsletters about

21

the program.5 See Blake Decl., Ex. 4 (response to Interrogatory No. 20). There is no information as

22

to how many total members there are in the MAS program or how many total members received e-

23

mail and newsletters.

24
25

With respect to the Club Amigos program, from 2007 to 2009, there were approximately
1,100 to 1,400 members who were California residents. See Blake Decl., Ex. 4 (response to

26
27
28

5

For both the MAS program and the Club Amigos program, there is no information as to
how often e-mail and/or newsletters were sent to California members, and therefore, to the extent
Ms. Focht claims that communications were regularly sent, that claim is rejected.

13

1

Interrogatory No. 21). From 2007 to 2009, approximately 200 to 500 received e-mail and

2

newsletters about the program. As above, there is no information as how many total members there

3

are in the Club Amigos program or how many total members received e-mail and newsletters.

4

While the absolute numbers of California members are not insignificant, the Court must bear

5

in mind that there are millions of residents in the state and thus these programs likely reach only a

6

tiny percentage of the California travel market. Similarly, although the Court is without information

7

about the total members in each program, it is likely that the California component of the total

8

program is small. The Sol Melia brand hotels have a worldwide audience and, even by Ms. Focht’s

9

calculations, California revenues make up only 0.75% of SM’s total sales. In contrast, in Cubbage
v. Merchent, 744 F.2d 665 (9th Cir. 1984), the Ninth Circuit held that general jurisdiction was

11
For the Northern District of California

United States District Court

10

lacking over a nonresident hospital even where, inter alia, approximately 26% of the hospital’s

12

patients (within a four-month period) were from the forum state. See id. at 667.

13

While the fact that only a small percentage of California members participate might be less

14

important if SM had actually targeted California residents to become members, but see id. (holding

15

no general jurisdiction even though, inter alia, approximately 26% of the hospital’s patients were

16

from the forum and the hospital advertised in a telephone directory distributed in the forum), the

17

record contains no evidence of such targeting. Nor does the record contain any information as to

18

how the California residents became members of the loyalty programs.

19

In the absence of this information, the Court is simply left with evidence that some of the

20

California members – numbering in the thousands – received email and/or newsletters. These

21

contacts are neither substantial nor systematic and continuous enough to give rise to general

22

jurisdiction. As noted above, in Keeton, the Supreme Court indicated that there was no general

23

jurisdiction over a Ohio corporation in New Hampshire even though that corporation circulated

24

10,000 to 15,000 copies of its magazines per month in the forum. See Keeton, 465 U.S. at 772, 779

25

n.11. In addition, in Gates Learjet Corp. v. Jensen, 743 F. 2d 1325 (9th Cir. 1984), the Ninth Circuit

26

held that simply making telephone calls and sending telexes and letters to the forum “are not

27

activities which support a finding of general jurisdiction.” Id. at 1331. Sending e-mails and

28

newsletters are ultimately no different from making telephone calls or sending telexes and letters.

14

1

H.

2

Customer Database
Ms. Focht also argues that SM has significant California contacts based on a database that

3

SM maintains which contains information about customers of the Sol Melia brand hotels. In

4

response to an interrogatory, SM stated that, in 2008, there were 4,463 California customers in the

5

database out of 6,049,265 customers total (0.074%). In 2009, there were 4,303 California customers

6

in the database out of 3,356,959 customers total (0.13%). See Blake Decl., Ex. 4 (response to

7

Interrogatory No. 12).

8
9

As above, the small number and percentage of California customers in the database weighs
against general jurisdiction, particularly in the absence of evidence suggesting that SM has targeted
California residents. Furthermore, the numbers above do not show that SM actually has contacts

11
For the Northern District of California

United States District Court

10

with the California customers as a result of maintaining the database. The 2009 sustainability report

12

cited by Ms. Focht simply states that 2 out of 6 million customers “have indicated that they are

13

willing to receive commercial information by e-mail.” Docket No. 72 (Blake Decl., Ex. 8) (2009

14

sustainability report) (simply stating that 2 out of 6 million customers “have indicated that they are

15

willing to receive commercial information by e-mail”).

16

I.

Google, Facebook, and Twitter

17

As additional California contacts, Ms. Focht points to the fact that SM has transacted

18

business with several California-based companies, i.e., Google, Facebook, and Twitter. The Ninth

19

Circuit has repeatedly made a distinction between doing business with California and doing business

20

in California. Only the latter gives rise to general jurisdiction. See Mavrix, 647 F.3d at 1226

21

(explaining that a defendant’s “business relationships with other California companies constitute

22

‘doing business with California,’ but not necessarily ‘doing business in California’”).

23

J.

24

SGC
Sol Group Corporation (“SGC”) is an entity owned entirely by Sol Group, B.V., a

25

Netherlands corporation. Sol Group, B.V. in turn is entirely owned by SM. In short, SGC is a

26

subsidiary of a subsidiary of SM. See Mateos Depo. at 10-11; Docket No. 81 (Mateos Decl. ¶ 4).

27

SGC provides services for SM for which SGC is paid by SM. SGC also provides services for

28

entities other than SM, more specifically, for Sol Melia brand hotels in the Americas (approximately

15

Americas. Like SM, these entities also pay SGC for its services. See Mateos Depo. at 11-13, 70;

3

Docket No. 81 (Mateos Decl. ¶ 6). The services that SGC provides for SM specifically are as

4

follows: (1) development; (2) legal work; and (3) sales, i.e., promotion for hotels in other areas

5

outside of the Americas. See Mateos Depo. at 71-72 (stating that “[s]ometimes they promote hotels

6

that are not located in the Americas, so whatever they can request[;] [i]f they need a certain

7

promotion in the U.S. for hotels in Europe, for example, this kind of things”). SGC currently has

8

one sales agent, Carlos Sosa, who is located in California. Mr. Sosa does sales/promotion for the

9

West Coast region, which includes California, Arizona, Nevada, Utah, Wyoming, Idaho, Montana,

10

Alaska, and Hawaii. See Sosa Depo at 26-27. Since 2004, SGC has had five other employees (now

11
For the Northern District of California

20 to 30 hotels, none of which SM owns directly) and for hotel management companies in the

2

United States District Court

1

terminated) who have resided in California. See Docket No. 72 (Blake Decl., Ex. 13) (Stip. Fact ¶

12

5).

13

Ms. Focht argues that, even though SGC is simply a subsidiary of a subsidiary of SM, its

14

contacts should be attributable to SM for personal jurisdiction purposes under either an alter ego or

15

agency theory. If Ms. Focht is correct, SGC’s activity and representation in California might add a

16

qualitative dimension to the jurisdictional analysis additional to the California revenues discussed

17

above. However, Ms. Focht fails to establish on this record the propriety of attribution here.

18

1.

19

Ms. Focht does not contend that SGC is SM’s alter ego on the basis that SM controls every

Alter Ego

20

facet of SGC’s business from broad policy decisions to routine matters of day-to-day operation.

21

Rather, Ms. Focht argues alter ego because SM and SGC have merged their identities under the

22

same brand name. See Opp’n at 21. This theory of alter ego is without merit. In Day, the court held

23

that the sharing of a brand name was not enough to make the subsidiary’s contacts attributable to the

24

parent. See Day, 2010 U.S. Dist. LEXIS 116817, at *9. The Court agrees. The authorities cited by

25

Ms. Focht are unavailing. For example, in Paneno v. Centres for Academic Learning Abroad Ltd.,

26

118 Cal. App. 4th 1447 (2004), the state court found that the agency test was met and not the alter

27

ego test. Furthermore, the court mentioned the companies “confusing use of the same generic trade

28

name” only in the context of finding that the companies were deliberately trying to game the system

16

1

by setting up two related entities to avoid answering a claim for liability in the forum. See id. at

2

1457. Here, Ms. Focht has failed to establish the requisite elements of alter ego (including an

3

increased level of control by SM over SGC).

4

2.

5

The Court also finds Ms. Focht’s agency theory unconvincing. The Ninth Circuit has

6

Agency

summarized the agency test as follows.

7

[The] test is predicated upon a showing of the special importance of
the services performed by the subsidiary:

8
The agency test is satisfied by a showing that the
subsidiary functions as the parent corporation’s
representative in that it performs services that are
sufficiently important to the foreign corporation that if
it did not have a representative to perform them, the
corporation’s own officials [or another entity
designated by the corporation] would undertake to
perform substantially similar services.

9

11
For the Northern District of California

United States District Court

10

12
13

Bauman, 644 F.3d at 920, 922 n.13 (emphasis in original). “In addition, this test requires the

14

plaintiffs to show an element of control, albeit not as much control as is required to satisfy the ‘alter

15

ego’ test.” Id.

16

In the instant case, Ms. Focht has not made out a prima facie case that SM would step in or

17

have another representative step in to perform SGC’s functions in SGC’s absence. Although SGC’s

18

general counsel (Marisol Mateos) testified in her deposition that SM does not handle any of the

19

promotional and marketing services that SGC provides in the United States, see Mateos Depo. at 49-

20

50, that does not necessarily mean that SM would step in or have someone else step in to do the

21

work if SGC was not there. For instance, there is no evidence about how often SM asked SGC to do

22

promotional work. In addition, there is no evidence about, e.g., the number of United States sales

23

that SGC made with respect to hotels outside of the Americas or the portion of SM’s business

24

generated by SGC. See Bauman, 644 F.3d at 922 (noting that, “[w]hen this suit was filed, the

25

United States market accounted for 19% of the sales of Mercedes-Benz vehicles worldwide, and [the

26

subsidiary’s] sales in California alone accounted for 2.4% of [the parent’s] total worldwide sales [–]

27

[the parent] simply could not afford to be without a U.S. distribution system”); Modesto City

28

Schools v. Riso Kagaku Corp., 157 F. Supp. 2d 1128, 1133, 1135 (E.D. Cal. 2001) (finding that the

17

1

subsidiary was the parent’s sole sales and marketing conduit in the United States and that the United

2

States was “a vitally important market”; “[n]early 20% of [the parent’s] production moves through

3

[the subsidiary] [;] [t]hus, the United States’ market and [the subsidiary’s] role in servicing it is

4

crucial to [the parent’s] organizational life”).

control), that would not in and of itself establish personal jurisdiction. The Court would simply be

7

permitted to attribute the agent’s contacts to the principal. It must still independently evaluate

8

whether those contacts give rise to personal jurisdiction. In terms of the contacts that may be

9

considered, the Court may look at only those contacts that SGC made on behalf of SM, and not those

10

contacts that SGC made on behalf of its other clients, (i.e., the Sol Melia brand hotels located in the

11
For the Northern District of California

Even if the Court were to find a prima facie case of agency (including the element of

6

United States District Court

5

Americas and the hotel management companies in the Americas) whose business cannot on the basis

12

of the current record be attributed to SM. In other words, the Court may not take into account the

13

contacts that SGC made on behalf of its other clients in the absence of evidence indicating that they

14

too were agents of SM.

15

In terms of SGC’s contacts with California, it does have a sales agent, i.e., Mr. Sosa, located

16

in California. It also has had, in the past, five other California-based employees. But even assuming

17

that all of these employees performed some work on behalf of SM (in addition to other entities), the

18

Ninth Circuit has held that the physical presence in the forum state of a sales agent, or even a

19

substantial sales force, is not enough to give rise to general jurisdiction. See Mavrix, 647 F.3d at

20

1226 (stating that “we have held that even the physical presence in the forum state of a sales agent or

21

a ‘substantial sales force’ is insufficient to establish general jurisdiction”); see also Shute, 897 F.3d

22

at 381 (holding that active marketing in the forum was insufficient to establish general jurisdiction);

23

cf. Helicopteros, 466 U.S. at 418 (finding sales accompanied by employee trips into the forum

24

insufficient to establish general jurisdiction).

25

Furthermore, Mr. Sosa’s total sales for California amounted to approximately $2.3 million in

26

2008 and $880,000 in 2009 (see Docket No. 72 (Blake Decl., Ex. 28)); this magnitude is not

27

substantial in relative terms. Moreover, there is no evidence as to what portions of these sales went

28

to SM rather than its affiliates.

18

1

As a final point, the Court notes that, in its analysis, it has taken into account the sur-reply

2

that Ms. Focht filed.6 It has also taken into consideration the Eleventh Circuit decisions in Meier v.

3

Sun International Hotels, Ltd., 288 F.3d 1264 (11th Cir. 2002), and Stubbs v. Wyndham Nassau

4

Resort & Crystal Palace Casino, 447 F.3d 1357 (11th Cir. 2006). Like the instant case, Meier and

5

Stubbs each involved a plaintiff who filed suit in the United States against a foreign entity(ies) after

6

he suffered a personal injury at a hotel located abroad. In each case, the appellate court concluded

7

that there was general jurisdiction in Florida over the nonresident defendant(s) based on direct

8

contacts by the defendant(s) and indirect contacts of entities which were properly considered agents

9

of the defendant(s) for personal jurisdiction purposes. But the record facts here are distinguishable
from Meier and Stubbs.

11
For the Northern District of California

United States District Court

10

For example, in Meier, the subsidiaries were actually located within the forum. See Meier,

12

288 F.3d at 1267. Similarly in Stubbs v. Wyndham Nassau Resort & Crystal Palace Casino, 447

13

F.3d 1357 (11th Cir. 2006), the subsidiary was incorporated in the forum. See id. at 1361. In the

14

instant case, SGC is not located within California.

15

In addition, in Meier, the defendants’ wholly-owned subsidiaries in Florida solicited and

16

coordinated hotel reservations for visitors to the Atlantis resort in the Bahamas, coordinating over

17

50% of all guests, the majority of whom were from the United States. See id. at 1272. One

18

subsidiary coordinated all advertising and marketing for Atlantis, purchased goods in the United

19

States for Atlantis, and provided day-to-day accounting services for Atlantis. See id. The subsidiary

20

maintained and managed bank accounts in Florida and conducted business solely for the defendant

21

group. See id. at 1273. As such, the Court concluded the subsidiaries were “mere instrumentalities”

22

of the defendants. No comparable record was made in the instant case with respect to the brand

23

hotels.

24
25

Furthermore, in Meier as well as in Stubbs, the direct contacts by the nonresident defendant
differed in material ways. In Meier, the nonresident defendant had seven bank accounts in the

26
27
28

6

SM objected to the filing of the sur-reply. While the objection was warranted, the Court
has decided, in the interest of justice, to consider the sur-reply to ensure that there is nothing in the
brief that affects its personal jurisdiction analysis.

19

number, and had an attorney/agent for service in the forum. See Meier, 288 F.3d at 1274 n.13. In

3

Stubbs, the nonresident defendant had extensive direct contacts, for example, the defendant

4

“maintained numerous separate commercial relationships with Florida-based entities, including

5

travel and vacation agencies, lawyers, insurance brokers, advertisers, and a host of construction and

6

home decor companies”; “a significant portion of [the defendant’s] vendors operated in Florida” (the

7

list of Florida vendors was hundreds of pages long); and the defendant “held at least six bank

8

accounts in Florida through which it issued over 1,600 checks in the fourteen months before the

9

district court's ruling.” Stubbs, 447 F.3d at 1362. The direct contacts asserted by Ms. Focht in the

10

instant case are markedly weaker than in Meier and Stubbs. All of the circumstances above render

11
For the Northern District of California

forum, issued a press release directing all inquiries to a company officer with a forum telephone

2

United States District Court

1

Meier and Stubbs distinguishable.

12

K.

13

Sol Melia Vacation Club
Time-share units are available for sale in at least some of the Sol Melia brand hotels. The

14

time-share units are owned in the first instance by the hotels. They are then sold by each hotel to a

15

local time-share entity. The time-share entities taken collectively are known by the trade name Sol

16

Melia Vacation Club. See Henry Depo. at 37, 43-44. Sol Melia Vacation Club LLC (“SMVC”) is a

17

holding company for the various time-share entities, plus another entity known as Vacation Club

18

Services, Inc. (“VCSI”). See Henry Depo. at 44. VCSI provides services to the various time-share

19

entities, such as sales and marketing, human resources, intellectual technology, and financial

20

services. See Henry Depo. at 45. VCSI has a call center which it uses to make calls to prospective

21

buyers. See Henry Depo. at 49-50. VCSI has a telemarketing license in California so that it may

22

conduct these calls to California residents. See Henry Depo. at 72. SMVC – which as noted above

23

covers VCSI as well as the various time-share entities – is owned by Hoteles Sol Melia, S.L., which

24

in turn is owned by SM. See Henry Depo. at 20-21; see also Docket No. 72 (Blake Decl., Ex. 4)

25

(response to Interrogatory No. 18).

26

When a person buys a time share, he or she becomes a member of the Sol Melia Vacation

27

Club. See Henry Depo. at 24. In 2009, there were approximately 350 California residents who were

28

members of that club. In addition to the Sol Melia Vacation Club, there is another vacation club

20

1

known as the Melia Vacation Club. The Melia Vacation Club has approximately 876 California

2

members.7 See Docket No. 72 (Blake Decl., Ex. 4) (response to Interrogatory No. 17). In response

3

to an interrogatory, SM states that, for the years 2007 to 2009, California residents generated the

4

following revenue for SMVC (not SM) for purchase of memberships in the Sol Melia Vacation

5

Club.8

6

2007

$1,648,516.20

7

2008

$2,212,218.00

8

2009

$1,835,288.47

9

Similar to above, Ms. Focht argues that the contacts of SMVC/VCSI should be attributed to

11
For the Northern District of California

United States District Court

10

See Blake Decl., Ex. 4 (response to Interrogatory No. 18).

SM under an alter ego or agency theory. The alter ego argument is problematic for the same reasons

12

as stated above. As for the agency argument, SMVC cannot be considered an agent as it is simply a

13

holding company. See Modesto, 157 F. Supp. 2d at 1132 (pointing out that, in Doe, the Ninth

14

Circuit “found that plaintiffs failed to make out a prima facie case that the foreign corporation’s

15

holding company subsidiaries were its general agents for jurisdictional purposes where neither

16

performed any services or activities for the foreign corporations; but rather, merely held assets”). As

17

for VCSI, even if it should be considered SM’s agent for jurisdictional purposes, its contacts are not

18

substantial or continuous and systematic enough to give rise to general jurisdiction. VCSI’s

19

telemarketing license simply establishes that VCSI does business with California and not in

20

California. See Mavrix, 647 F.3d at 1226 (explaining that a defendant’s “business relationships with

21

other California companies constitute ‘doing business with California,’ but not necessarily ‘doing

22

business in California’”). There is no evidence that VCSI targets California residents for sales,

23

including through the call center. Nor is there any evidence about what sales to California residents

24
25
7

26
27

It appears that there are no new members for the Melia Vacation Club because owners of
time-shares now become members of SMVC (i.e., the Melia Vacation Club is the old vacation club
but still in existence). See Henry Depo. at 33-35.
8

28

Although not entirely clear, it appears that the figures do not include revenue related to the
Melia Vacation Club.

21

1

came from VCSI’s actions specifically (as opposed, e.g., to actions taken by the local time-share

2

entities).

3

L.

4

Contacts Taken Collectively
The contacts discussed above have essentially been considered individually. But even taking

5

into account the contacts collectively – as the Court must – many of them must be disregarded

6

because of the problems identified above (e.g., the California revenue is based on revenue made by

7

all Sol Melia brand hotels; there does not appear to any concrete evidence that SM has used the

8

consumer database to contact California customers; SGC’s contacts should not all be attributed to

9

SM by virtue of SGC’s actions taken on behalf of other SM affiliates).
The remaining contacts (e.g., unknown revenues made by Sol Melia brand hotels directly

11
For the Northern District of California

United States District Court

10

owned by SM, website bookings, communications with loyalty program customers, business with

12

Google, use of Facebook and Twitter, VGSI’s contacts, those SGC contacts made on behalf of SM

13

specifically) even if aggregated, are not enough to approximate SM’s physical presence in California

14

necessary for general jurisdiction. At best, SM generates $11 million in annual revenue from

15

California for its worldwide operations – a tiny fraction of SM’s global revenue and in all likelihood

16

a small portion of the California travel market.

17

The circumstances here constitute a less substantial showing than that in cases in which the

18

Ninth Circuit has refused general jurisdiction. For instance, as noted above, in Shute, the court

19

found no general jurisdiction even though the defendant advertised in the local media, mailed

20

brochures and paid commissions to travel agents, conducted promotional seminars, and sold

21

vacation cruises to residents of Washington, which accounted for approximately 1% of defendant’s

22

business. See Shute, 897 F.2d at 381. In Cubbage, the court found no general jurisdiction over the

23

defendant hospital even though, inter alia, 18% of the hospital’s employees were California

24

residents, the hospital maintained a yellow pages listing in a telephone directory distributed in

25

California, and approximately 26% of the hospital’s patients were California residents (during a

26

four-month period). The court also found no general jurisdiction over the defendant doctors even

27

though the doctors maintained white page listings in the same directory, one doctor saw about 14

28

California patients per week (12%), and the doctors had California Medi-Cal numbers and received

22

1

reimbursement from state of California for a small number of patients covered by the Medi-Cal

2

program. See Cubbage, 44 F.2d at 667. Finally, as noted above, the Supreme Court has rejected an

3

assertion of general jurisdiction despite a showing of substantial financial connection with the forum

4

(Helicopteros) and has found general jurisdiction in only one case (Perkins) where the defendant

5

had located central aspects of its business in the forum.

6

III.

CONCLUSION

7

For the foregoing reasons, the Court concludes that, based on the record presented, Ms.

8

Focht has failed to make out a prima facie case of general jurisdiction. Accordingly, SM’s motion to

9

dismiss for lack of personal jurisdiction is dismissed. The Court emphasizes that it is not
unsympathetic to Ms. Focht’s circumstances and that it does not hold that there could never be

11
For the Northern District of California

United States District Court

10

personal jurisdiction over SM in this forum. Moreover, it does not address specific jurisdiction.9

12

The Court only holds that, based on the record presented before it, Ms. Focht has not made an

13

adequate showing to establish general jurisdiction under the applicable “exacting standards.”

14

Mavrix, 647 F.3d at 1223-24.

15

The only issue remaining is whether the dismissal should be with or without leave to amend.

16

The Court concludes that, under the circumstances, a dismissal without leave to amend is proper.

17

SM first filed its motion to dismiss on April 29, 2010 – i.e., more than a year and a half ago. Ms.

18

Focht has had more than a year to conduct jurisdictional discovery, and she has never contended that

19

///

20

///

21

///

22

///

23

///

24

///

25

///

26

///

27
9

28

Ms. Focht does not assert specific jurisdiction under a “tortious striking distance” theory of
the “arising out of” prong of that test. Cf. Shute, 897 F.3d at 386.

23

1

she was not given an adequate opportunity to take jurisdictional discovery or that she needed

2

additional discovery in order to oppose SM’s motion. Given this situation and the fact that this is a

3

12(b)(2) motion, not a 12(b)(6) motion, a dismissal without leave to amend is appropriate.

4
5
6

The Clerk of the Court is directed to enter judgment in favor of SM and close the file in this
case.
This order disposes of Docket No. 3.

7
8

IT IS SO ORDERED.

9
Dated: January 19, 2012

11
For the Northern District of California

United States District Court

10

_________________________
EDWARD M. CHEN
United States District Judge

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

24