Pandigital, Inc. v. DistriPartners B.V.

Filing 33

ORDER by Judge Claudia Wilken DENYING DEFENDANTS 20 MOTION TO DISMISS. (ndr, COURT STAFF) (Filed on 12/14/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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ORDER DENYING
DEFENDANT’S MOTION
TO DISMISS

Plaintiff,
v.

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United States District Court
For the Northern District of California

No. C 12-01588 CW

PANDIGITAL, INC.,

DISTRIPARTNERS B.V.,

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Defendant.

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________________________________/

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Defendant DistriPartners B.V. moves to dismiss Plaintiff

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Pandigital Inc.’s First Amended Complaint.

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dismissal based on lack of personal jurisdiction and the doctrine

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of forum non conveniens.

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motion will be decided on the papers.

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papers filed by the parties, the Court hereby denies Defendant’s

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motion.

Plaintiff opposes the motion.1

Having considered the

Plaintiff Pandigital is a Delaware corporation with its

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principal place of business in California.

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Complaint (FAC) at ¶ 1.

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The

BACKGROUND

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Defendant seeks

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First Amended

Plaintiff manufactures consumer

Plaintiff objects to various statements contained in
declarations filed in support of Defendant’s motion. The Court
has reviewed Plaintiff’s evidentiary objections and has not relied
on any inadmissible evidence. The Court will not discuss each
objection individually.

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electronics.

FAC at ¶ 8.

Defendant DistriPartners is a

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Netherlands company.

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an agreement between the parties under which Defendant acted as a

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distributor for Plaintiff’s products in various European

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countries.

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permitted to purchase Plaintiff’s products on credit and to remit

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payment at a later date.

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failed to pay for over $270,000 worth of products provided under

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this agreement.

See FAC at ¶ 2.

FAC at ¶ 8.

This dispute arises out of

Through this agreement, Defendant was

Id.

FAC at ¶ 9.

Plaintiff claims that Defendant

Defendant argues that the Court

United States District Court
For the Northern District of California

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lacks personal jurisdiction over it.

In the alternative,

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Defendant argues that the complaint should be dismissed pursuant

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to the doctrine of forum non conveniens.

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Plaintiff alleges that Guido Liber, a representative of

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Defendant, emailed Plaintiff’s sales department, inquiring about

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opportunities to distribute Plaintiff’s products in Europe.

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Dalesio Dec. at ¶ 4.

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between Liber and Alex Dalesio, Vice President of International

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Business Development for Plaintiff, Dalesio and another

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representative of Plaintiff met with Liber in Belgium.

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Dec. at ¶¶ 5-7.

Following email and telephone correspondence

Dalesio

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Plaintiff asserts that, during that meeting, Liber proposed

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that DistriPartners act as a sales representative for Pandigital

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in Germany and there was no discussion of DistriPartners acting as

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a distributor of Pandigital products.

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parties did not reach any agreement at the meeting in Belgium but,

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when Plaintiff’s relationship with its sales representative in

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Germany ended, it began negotiating with Defendant to fill that

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role.

Dalesio Dec. at ¶ 9.

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Dalesio Dec. at ¶ 7.

The

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Defendant began acting as a sales representative for

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Defendant in May 2010.

Dalesio Dec. at ¶ 14.

In November 2010

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Defendant asked to operate as a distributor for Plaintiff.

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Dalesio Dec. at ¶ 15.

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products from Pandigital and re-sell them to customers in Europe.

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Dalesio Dec. at ¶ 15.

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Defendant applied for credit with Sourcing Network Sales LLC,

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doing business as Pandigital, in order to receive products on

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credit.

In that role, Defendant would purchase

In furtherance of its role as distributor,

Dalesio Dec. at ¶ 15.

Defendant subsequently submitted

United States District Court
For the Northern District of California

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purchase orders for Plaintiff’s products between November 2010 and

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February 2011.

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generated invoices dated between November 2010 and May 2011 for

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the amounts owed by Defendant for the products supplied.

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Dec. at ¶ 18 and Ex. A-10.

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Dalesio Dec. at ¶ 17 and Ex. A-9.

Plaintiff then

Dalesio

In March 2011, Rene Durieux and Liber traveled to Plaintiff’s

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headquarters in Dublin, California to meet with Plaintiff to

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discuss the parties’ relationship and to plan for future

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developments.

Dalesio Dec. ¶ 20

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Plaintiff alleges that Defendant owes it $277,322.98 for

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products it supplied to Defendant for which Defendant has not paid

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it.

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breach of contract, quantum valebant, and account stated.

FAC at ¶¶ 9-11.

Plaintiff alleges three causes of action:

DISCUSSION

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A.

Personal Jurisdiction
Under Rule 12(b)(2) of the Federal Rules of Civil Procedure,

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a defendant may move to dismiss for lack of personal jurisdiction.

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The plaintiff then bears the burden of demonstrating that the

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court has jurisdiction.

Schwarzenegger v. Fred Martin Motor Co.,

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374 F.3d 797, 800 (9th Cir. 2004).

To satisfy this burden, the

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plaintiff “need only demonstrate facts that if true would support

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jurisdiction over the defendant.”

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1495, 1498 (9th Cir. 1995).

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complaint must be taken as true.

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Lambert, 94 F.3d 586, 588 (9th Cir. 1996).

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not assume the truth of such allegations if they are contradicted

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by affidavit.

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Inc., 557 F.2d 1280, 1284 (9th Cir. 1977).

Ballard v. Savage, 65 F.3d

Uncontroverted allegations in the
AT&T v. Compagnie Bruxelles
However, the court may

Data Disc, Inc. v. Systems Technology Assocs.,
If the plaintiff also

United States District Court
For the Northern District of California

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submits admissible evidence, conflicts in the evidence must be

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resolved in the plaintiff’s favor.

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AT&T, 94 F.3d at 588.

There are two independent limitations on a court’s power to

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exercise personal jurisdiction over a non-resident defendant: the

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applicable state personal jurisdiction rule and constitutional

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principles of due process.

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(9th Cir. 1990); Data Disc, Inc., 557 F.2d at 1286.

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California’s jurisdictional statute is co-extensive with federal

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due process requirements, jurisdictional inquiries under state law

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and federal due process standards merge into one analysis.

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v. Sipa Press, Inc., 987 F.2d 580, 587 (9th Cir. 1993).

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Sher v. Johnson, 911 F.2d 1357, 1361
Because

Rano

The exercise of jurisdiction over a non-resident defendant

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violates the protections created by the due process clause unless

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the defendant has sufficient “minimum contacts” with the forum

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state that the exercise of jurisdiction “does not offend

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traditional notions of fair play and substantial justice.”

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International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).

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Personal jurisdiction may be either general or specific.

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Plaintiff does not argue that the Court has general

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jurisdiction over Defendant.

Specific jurisdiction is analyzed

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using a three-prong test: (1) the non-resident defendant must

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purposefully direct its activities or consummate some transaction

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with the forum or a resident thereof; or perform some act by which

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it purposefully avails itself of the privilege of conducting

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activities in the forum, thereby invoking the benefits and

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protections of its laws; (2) the claim must be one which arises

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out of or results from the defendant's forum-related activities;

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and (3) the exercise of jurisdiction must be reasonable.

Lake v.

United States District Court
For the Northern District of California

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Lake, 817 F.2d 1416, 1421 (9th Cir. 1987).

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conditions is required for asserting specific jurisdiction.

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Insurance Co. of N. Am. v. Marina Salina Cruz, 649 F.2d 1266, 1270

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(9th Cir. 1981).

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Each of these

A showing that a defendant “purposefully availed” itself of

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the privilege of doing business in a forum state typically

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consists of evidence of the defendant's actions in the forum, such

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as executing or performing a contract there.

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F.3d at 802.

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the defendant should reasonably anticipate being haled into the

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forum state court based on its contacts.

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Corp. v. Woodson, 444 U.S. 286, 297 (1980).

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availment test is met where “the defendant has taken deliberate

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action within the forum state or if he has created continuing

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obligations to forum residents.”

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Schwarzenegger, 374

The requirement of purposeful availment ensures that

World-Wide Volkswagen
The purposeful

Ballard, 65 F.3d at 1498.

The second factor requires that the claim arise out of or

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result from the defendant's forum-related activities.

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arises out of a defendant's conduct if the claim would not have

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arisen “but for” the defendant's forum-related contacts.

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A claim

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Panavision Int'l v. L.P.v. Toeppa, 141 F.3d 1316, 1322 (9th Cir.

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1998).

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Once the plaintiff has satisfied the first two factors, the

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defendant bears the burden of overcoming a presumption that

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jurisdiction is reasonable by presenting a compelling case that

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specific jurisdiction would be unreasonable.

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Rudzewicz, 471 U.S. 462, 472-73 (1985); Haisten v. Grass Valley

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Medical Fund, Ltd., 784 F.2d 1392, 1397 (9th Cir. 1986).

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United States District Court
For the Northern District of California

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a.

Burger King Corp. v.

Purposeful Availment and Arising Out Of

Here, it is undisputed that Defendant, a foreign company,

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acted as a distributor for Plaintiff, a California company.

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also undisputed that Defendant had extremely limited physical

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contacts with the state of California.

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communications between the parties occurred by telephone or email,

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or at in-person meetings in Europe.

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parties took place in California.

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According to Defendant, that visit was the only time that any

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representative of Defendant has ever been to California.

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Dec. at ¶ 15.

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It is

Virtually all of the

Only one meeting between the

Dalesio Dec. at ¶ 20.

Durieux

In support of its argument that the Court has specific

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jurisdiction over Defendant, Plaintiff argues that Defendant

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purposely availed itself of the privilege of doing business in

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California when it approached Plaintiff about establishing a

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business relationship and later entered into an ongoing business

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relationship with Plaintiff.

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the defendant engage in some form of affirmative conduct allowing

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or promoting the transaction of business within the forum state.”

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Shute v. Carnival Cruise Lines, 897 F.3d 377, 381 (9th Cir. 1990),

“Purposeful availment requires that

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rev’d on other grounds, 499 U.S. 585 (1991).
The Ninth Circuit has held that “a non-resident defendant’s

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act of soliciting business in the foreign state will generally be

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considered purposeful availment if that solicitation results in

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contract negoitations or the transaction of business.”

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F.2d at 381, citing Sinatra v. National Enquirer, Inc., 854 F.2d

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1191, 1195 (9th Cir. 1988); Decker Coal Co. v. Commonwealth Edison

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Co.; see also Gates Learjet Corp. v. Jensen, 743 F.2d 1325, 1331

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(9th Cir. 1984); Taubler v. Giraud, 655 F.2d 991, 994 (9th Cir.

Shute, 897

United States District Court
For the Northern District of California

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1981).

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California company, constitutes purposeful availment, and the

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claims arise out of the business transactions that resulted from

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that solicitation.

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criteria for specific jurisdiction.

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Defendant’s solicitation of business from Plaintiff, a

Accordingly, Plaintiff has met the first two

The cases cited by Defendant in support of its argument that

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personal jurisdiction cannot be established are unavailing.

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Several of Defendant’s citations concern general jurisdiction.

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See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S.

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408, 418 (1984); Gates Learjet, 743 F.2d at 1331; Thomas P.

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Gonzales Corp. v. Consejo Nacional de Produccion de Costa Rica,

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614 F.2d 1247, 1254 (9th Cir. 1980).

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involves a defendant soliciting business within the forum state.
b.
Reasonableness

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Moreover, none of the cases

The final step of the specific jurisdiction inquiry requires
a court’s exercise of jurisdiction to be reasonable.
Inc., 577 F.2d at 1287.

Data Disc,

The Ninth Circuit considers seven factors

in assessing whether the exercise of jurisdiction over a nonresident defendant is reasonable: (1) the extent of the

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defendant's purposeful interjection into the forum state's

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affairs, (2) the burden on the defendant of defending in the

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forum, (3) conflicts of law between the forum state and the

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defendant's home jurisdiction, (4) the forum state's interest in

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adjudicating the dispute, (5) the most efficient judicial

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resolution of the dispute, (6) the plaintiff's interest in

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convenient and effective relief, and (7) the existence of an

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alternative forum.

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Ass'n, 59 F.3d 126, 128 (9th Cir. 1995); Roth v. Garcia Marquez,

United States District Court
For the Northern District of California

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Caruth v. International Psychoanalytical

942 F.2d 617, 623 (9th Cir. 1991).

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Defendant’s primary argument is that forcing it to litigate

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in California “would impose a heavy burden” on it because it “is

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located and operates in the Netherlands, and has no resources to

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be in California.”

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the courts have long noted that “[i]mprovements in communication

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and transportation have reduced much of the historical burden of

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litigating in a distant forum.”

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citing Hanson v. Denckla, 357 U.S. 235, 250-51 (1958); Raffaele v.

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Compagnie Generale Maritime, S.A., 707 F.2d 395, 398 (1983).

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Moreover, the Ninth Circuit has held that unless the inconvenience

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to a defendant “is so great as to constitute a deprivation of due

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process, it will not overcome clear justifications for the

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exercise of jurisdiction.”

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on Defendant to litigate in California would be significant, but

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Defendant has not shown that it would be so great as to deprive it

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of due process.

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successfully used technology and transportation to carry on the

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business relationship at issue in this case.

Defendant’s Motion to Dismiss at 18.

However,

Decker Coal Co., 805 F.2d at 841,

Caruth, 59 F.3d at 128-29.

The burden

As Plaintiff points out, Defendant has

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Defendant further argues that it has not purposefully

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interjected itself into the state.

However, as discussed above,

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the Court has found that Defendant has sufficiently interjected

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itself into California to satisfy the purposeful availment prong

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of the specific jurisdiction analysis.

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which Defendant has interjected itself into the state is not

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great, the Court finds that the limited nature of the interjection

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is not sufficient to overcome the presumption of reasonableness.

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Accordingly, the Court denies Defendant’s motion to dismiss

United States District Court
For the Northern District of California

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based on lack of personal jurisdiction.

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C.

Although the degree to

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Forum non Conveniens
Defendant also moves to dismiss Plaintiff’s complaint on the

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grounds of forum non conveniens.

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conveniens, the district court has discretion to decline to

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exercise jurisdiction in a case where litigation in an alternative

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forum would be more convenient for the parties.

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on forum non conveniens is “an exceptional tool to be employed

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sparingly.”

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2000).

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appropriate only where “the plaintiff's chosen forum imposes a

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heavy burden on the defendant or the court, and where the

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plaintiff is unable to offer any specific reasons of convenience

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supporting his choice.”

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235, 249 (1981).

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Under the doctrine of forum non

Dismissal based

Ravelo Monegro v. Rosa, 211 F.3d 509, 514 (9th Cir.

The Supreme Court instructs that dismissal is ordinarily

Piper Aircraft Co. v. Reyno, 454 U.S.

In deciding whether to dismiss an action due to forum non

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conveniens, the district court must “consider the availability of

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an adequate alternative forum, and then . . . whether several

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'private' and 'public' interest factors favor dismissal.”

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Leetsch

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v. Freedman, 260 F.3d 1100, 1103 (9th Cir. 2001).

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Defendant’s primary argument is, again, that it is a small

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company, and the need for its employees to travel to the United

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States would negatively impact its business.

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argues that travel to the Netherlands would not be burdensome for

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Plaintiff.

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the Netherlands that “are more than competent” to resolve

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Plaintiff’s claims.

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Defendant has not addressed any of the other private or public

Defendant also

Finally, Defendant asserts that there are courts in

Defendant’s Motion to Dismiss at 19.

United States District Court
For the Northern District of California

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interest factors the Court must consider.

See Lueck v. Sundstrand

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Corp., 236 F.3d 1137, 1147-47 (9th Cir. 2001) (enumerating a non-

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exclusive list of seven private interest and five public interest

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factors to be considered by courts in evaluating forum non

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conveniens arguments).

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There is a strong presumption in favor of the domestic

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plaintiff’s choice of forum, which can be overcome only when the

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private and public factors clearly point towards trial in the

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alternative forum.

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Monegro, 211 F.3d at 514.

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argument or evidence to overcome this presumption.

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Piper Aircraft, 454 U.S. at 265-66; Ravelo
Defendant has not provided sufficient

Because the Court finds that it has specific jurisdiction

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over Defendant and rejects Defendant’s forum non conveniens

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argument, it need not consider Plaintiff’s alternative argument

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that this dispute is governed by a valid forum selection clause

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identifying the state and federal courts of the State of

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California as the exclusive fora.

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CONCLUSION
For the foregoing reasons, the Court DENIES Defendant’s

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motion to dismiss.

A case management conference will be held in

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this case on Wednesday, January 9, 2013 at 2:00 p.m. in Courtroom

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2, 4th Floor, 1301 Clay Street, Oakland, CA 94612.

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Civil L.R. 16-9(a), a joint Case Management Statement will be due

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seven (7) days prior to the conference.

Pursuant to

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IT IS SO ORDERED.

United States District Court
For the Northern District of California

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Dated: 12/14/2012
CLAUDIA WILKEN
United States District Judge

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