Zithromia Limited et al v. Gazeus Negocios De Internet SA et al

Filing 96

ORDER OF DISMISSAL. Signed by Judge James Donato on 11/21/2019. (jdlc1S, COURT STAFF) (Filed on 11/21/2019)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ZITHROMIA LIMITED et al.,
Plaintiffs,

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United States District Court
Northern District of California

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Case No. 17-cv-06475-JD
ORDER OF DISMISSAL

v.

Re: Dkt. No. 84
GAZEUS NEGOCIOS DE INTERNET SA
et al.,
Defendants.

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After the Court ordered discovery on the question of specific personal jurisdiction over

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defendant Gazeus in this district, Dkt. No. 63, plaintiff Zithromia filed an amended complaint,

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Dkt. No. 82. Zithromia has again failed to allege facts sufficient to plausibly demonstrate that the

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Court has personal jurisdiction over Gazeus. Nothing in the amended complaint, or the record as a

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whole before the Court, establishes any ties between the claims against Gazeus and defendant’s

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conduct in this forum. Consequently, Gazeus’s motion to dismiss is granted. Dkt. No. 84.

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The Court assumes the parties’ familiarity with the record and will not repeat the detailed

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discussion of the facts and governing case law in the prior order. After questioning whether

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personal jurisdiction over Gazeus could be shown in this district, the Court gave Zithromia free

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rein to look for evidence establishing a connection between Zithromia’s claim of an improper

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infringement notice under the Digital Millennium Copyright Act, 17 U.S.C. § 512(f), and

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Gazeus’s conduct in this forum. Dkt. No. 63 at 4-5. The discovery focused on Gazeus and non-

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party Apple Inc. because Zithromia’s main case theory is that Gazeus got Apple to take down

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Zithromia’s games from its platform in response to an arbitration award in Brazil. See generally

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Dkt. No. 82. Zithromia had more than 90 days to pursue the jurisdictional discovery, and did not

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ask to extend that time. In discovery dispute proceedings, the Court compelled Apple and Gazeus

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to produce documents over their objections. Dkt. No. 76.

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Even so, Zithromia’s work apparently did not yield anything to show a plausible basis for

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personal jurisdiction over Gazeus. If Gazeus had communicated or interacted with Apple in this

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district as Zithromia contends, the discovery should have uncovered at least some evidence in the

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form of a letter or email, meeting notes, travel records, or a host of other possibilities. But

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Zithromia has not proffered a single document or fact gleaned from discovery to support its

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allegation of personal jurisdiction. It again relies only on conclusory statements made on

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information and belief, see e.g., Dkt. No. 82 ¶¶ 24, 41, and other unsupported speculations about

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alleged jurisdictional ties to this forum.

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That will not do. In response to Gazeus’s jurisdiction challenge, Zithromia had the burden

United States District Court
Northern District of California

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of demonstrating with facts, in a manner consistent with Bristol-Myers Squibb Co. v. Superior

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Court, 137 S. Ct. 1773, 1780-81 (2017), and the other cases discussed in the prior order, that

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personal jurisdiction was present. Dkt. No. 63 at 2-4; see also Sharpe v. Puritan’s Pride, Inc., No.

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16-cv-06717-JD, 2019 WL188658, at *4-5 (N.D. Cal. Jan. 14, 2019). It has not done so, and its

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exclusive reliance on Gazeus’s general commercial conduct in California, or the foreseeability of

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alleged harm here, even if taken as true, do not cure this deficiency. Bristol-Myers Squibb Co.,

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137 S. Ct. at 1778; McDonald v. Kiloo APS, 385 F. Supp. 3d 1022, 1041-42 (N.D. Cal. 2019).

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In light of the opportunity for discovery and the fact that Zithromia has already amended

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the complaint once, the Court finds that further leave to amend is not warranted. Nguyen Gardner

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v. Chevron Capital Corp., No. 15-cv-01514-JD, 2016 WL 7888025, at *2 (N.D. Cal. July 19,

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2016), aff’d, 715 F. App’x 737 (9th Cir. 2018) (unpublished). The case is dismissed for lack of

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personal jurisdiction.

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IT IS SO ORDERED.
Dated: November 21, 2019

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JAMES DONATO
United States District Judge

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