Stricker v. Shor et al

Filing 35

ORDER by Judge Haywood S. Gilliam, Jr. GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS; ORDER SETTING CASE MANAGEMENT CONFERENCE. Case Management Statement due by 4/17/2018; Case Management Conference set for 4/24/2018 02:00 PM in Oakland, Courtroom 2, 4th Floor. (ndrS, COURT STAFF) (Filed on 4/11/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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RAPHAEL STRICKER,
Plaintiff,

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v.

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SAMUEL SHOR, et al.,
Defendants.

United States District Court
Northern District of California

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Case No. 17-cv-03491-HSG
ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO
DISMISS; ORDER SETTING CASE
MANAGEMENT CONFERENCE
Re: Dkt. No. 13

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Pending before the Court is Defendants’ motion to dismiss for lack of personal jurisdiction

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and for improper venue. Dkt. No. 13. The Court finds this matter appropriate for disposition

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without oral argument and the matter is deemed submitted. See Civil L.R. 7-1(b). For the reasons

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detailed below, the Court GRANTS the motion as to Defendants Samuel Shor and Betty Maloney,

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and DENIES the motion as to Defendants Barbara Buchman and the International Lyme and

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Associated Diseases Society (“ILADS”).

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I.

BACKGROUND

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Plaintiff Raphael Stricker filed this action against Defendants Samuel Shor, Betty

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Maloney, Barbara Buchman, and ILADS, asserting causes of action for copyright infringement,

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declaratory relief, and defamation. See Dkt. No. 1. Plaintiff is a doctor specializing in Lyme and

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associated diseases, with a practice based in San Francisco, California. Id. ¶ 7. He is a member

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and on the board of directors of ILADS, along with the individual Defendants in this case. Id.

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¶¶ 7–10. According to Plaintiff, the individual Defendants plagiarized an article he authored about

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Chronic Lyme Disease, and then accused Plaintiff of plagiarizing it himself, including by

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contacting the ILADS membership and the journal that was publishing Plaintiff’s article. Id.

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¶¶ 13–38. The journal, consequently, decided not to publish the accused article. Id. Of the

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Defendants, only Barbara Buchman resides in California. Dkt. No. 13-1 at 2.
II.

DISCUSSION

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The Court first addresses Defendants’ contention that the Court lacks personal jurisdiction

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over this action and then turns to Defendants’ contention that the Northern District of California is

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an improper venue. See Leroy v. Great W. United Corp., 443 U.S. 173, 180 (1979) (“The question

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of personal jurisdiction, which goes to the court’s power to exercise control over the parties, is

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typically decided in advance of venue, which is primarily a matter of choosing a convenient

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forum.”).

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A.

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United States District Court
Northern District of California

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Personal Jurisdiction
i.

Legal Standard

“Personal jurisdiction must exist for each claim asserted against a defendant.” Action

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Embroidery Corp. v. Atl. Embroidery, Inc., 368 F.3d 1174, 1180 (9th Cir. 2004). However, under

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the doctrine of pendent personal jurisdiction, “a court may assert pendent personal jurisdiction

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over a defendant with respect to a claim for which there is no independent basis of personal

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jurisdiction so long as it arises out of a common nucleus of operative facts with a claim in the

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same suit over which the court does have personal jurisdiction.” Id. Therefore, in a case like this

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one, in which all of plaintiff's claims arise out of a common nucleus of operative facts, if personal

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jurisdiction exists for one claim, the Court may exercise jurisdiction over all the other claims. Id.

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In analyzing personal jurisdiction, the Court must engage in a two-part inquiry:

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(1) whether the state’s long-arm statute confers personal jurisdiction over the nonresident

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defendant, and (2) whether the exercise of jurisdiction comports with due process. See Lake v.

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Lake, 817 F.2d 1416, 1420 (9th Cir. 1987).

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Where a state authorizes “jurisdiction on any basis not inconsistent with the Constitution of

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this state or of the United States,” as does California, see Cal. Civ. Proc. Code § 410.10, federal

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courts must determine whether the exercise of jurisdiction over a defendant “comports with the

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limits imposed by federal due process.” Daimler AG v. Bauman, 134 S. Ct. 746, 753 (2014);

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Inamed Corp. v. Kuzmak, 249 F.3d 1356, 1360 (Fed. Cir. 2001) (“[B]ecause California’s long-arm

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statute is coextensive with the limits of due process, the two inquiries collapse into a single
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inquiry: whether jurisdiction comports with due process.”). “Due process requires that the

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defendant have sufficient minimum contacts with [the forum state] such that maintenance of the

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suit does not offend traditional notions of fair play and substantial justice.” Celgard, LLC v. SK

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Innovation Co., 792 F.3d 1373, 1377 (Fed. Cir. 2015) (quoting Int’l Shoe Co. v. Washington, 326

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U.S. 310, 316 (1945)) (internal quotation marks omitted).

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A plaintiff may invoke either general or specific personal jurisdiction. Ranza v. Nike, Inc.,

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793 F.3d 1059, 1068 (9th Cir. 2015). Specific jurisdiction exists if: (1) the defendant has

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performed some act or consummated some transaction with the forum by which it purposefully

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availed itself of the privilege of conducting business in California; (2) the plaintiff’s claims arise
out of or result from the defendant’s forum-related activities; and (3) the exercise of jurisdiction is

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United States District Court
Northern District of California

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reasonable. Rio Properties, Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002) (citing

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Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475–76 (1985)). “When a defendant moves to

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dismiss for lack of personal jurisdiction, the plaintiff bears the burden of demonstrating that the

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court has jurisdiction over the defendant.” Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1154 (9th

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Cir. 2006). Although the court “may not assume the truth of allegations in a pleading which are

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contradicted by affidavit,” CollegeSource, Inc. v. AcademyOne, Inc., 653 F.3d 1066, 1073 (9th

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Cir. 2011) (internal quotation marks omitted), the court must resolve conflicts between the facts

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contained in the parties’ affidavits in plaintiff’s favor. See Schwarzenegger v. Fred Martin Motor

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Co., 374 F.3d 797, 800 (9th Cir. 2004). “[I]n the absence of an evidentiary hearing, the plaintiff

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need only make a prima facie showing of jurisdictional facts to withstand the motion to dismiss.”

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Washington Shoe Co. v. A-Z Sporting Goods Inc., 704 F.3d 668, 671–72 (9th Cir. 2012) (internal

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quotation marks omitted).

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ii.

General Jurisdiction

Defendant Buchman resides in California. Therefore, the Court has personal jurisdiction

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over her. See Artas Film & TV Prods. GMBH v. Shepherd, 959 F.2d 239 (9th Cir. 1992)

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(“General jurisdiction is easily established when the defendant is a resident of the forum state.”)

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(citing Pennoyer v. Neff, 95 U.S. 714, 720 (1878)). Defendants offer no authority for their novel

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suggestion that the location of Ms. Buchman’s alleged activities somehow alters this rule.
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Plaintiff contends that the Court should find general jurisdiction over ILADS because it is

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registered as a foreign corporation with California and has designated an agent for service of

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process. This is not sufficient because “California does not require corporations to consent to

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general personal jurisdiction in that state when they designate an agent for service of process or

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register to do business.” AM Tr. v. UBS AG, 681 F. App’x 587, 588–89 (9th Cir. 2017).1

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iii.

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a. Purposeful Availment
Defendants assert that they did not have sufficient contacts with California to justify the

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Specific Jurisdiction

Court’s exercise of personal jurisdiction. Dkt. No. 13-1 at 4–7. “The purposeful availment
requirement ensures that a non-resident defendant will not be haled into court based upon random,

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United States District Court
Northern District of California

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fortuitous, or attenuated contacts with the forum state.” Rio Properties, 284 F.3d at 1019. A non-

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resident defendant purposefully avails itself of the forum if its contacts with the forum are

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attributable to (1) intentional acts; (2) expressly aimed at the forum; (3) that cause harm, the brunt

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of which is suffered—and which the defendant knows is likely to be suffered—in the forum. Id.

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A “foreign act that is both aimed at and has effect in the forum satisfies the first prong of the

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specific jurisdiction analysis.” Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1156 (9th Cir. 2006)

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(citing Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984)).

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1. ILADS
Plaintiff’s allegations sufficiently make the required prima facie showing that the ILADS

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organization has committed such acts, subjecting it to jurisdiction in this district. For example,

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Plaintiff alleges that defamatory statements were emailed on behalf of ILADS to executives and

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members of ILADS, over 10% of whose membership resides in California. See Dkt. No. 1 ¶¶ 36,

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48; Dkt. No. 1-3 at 3, 11; Dkt. No. 28 at 4–5. Additionally, Plaintiff alleges that an attorney

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representing ILADS sent a demand letter to Dr. Stricker.2 Dkt. No. 1 ¶ 37. The record

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adequately makes a prima facie showing that the ILADS organization knew that its actions would

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While it is not binding authority, the Court may rely on the Ninth Circuit’s decision in AM Tr. v.
UBS AG 681 F. App’x 587 (9th Cir. 2017) as persuasive authority.
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Though not explicitly alleged by Plaintiff, presumably ILADS sent this demand letter to
California, where Dr. Stricker lives and works.
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have a harmful effect on the plaintiff, who resided in California, and that the brunt of the injury

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caused by its actions would be felt in California, where Plaintiff practices medicine. Thus, ILADS

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is subject to the jurisdiction of the California courts. Calder, 465 U.S. at 788–89, 104 S.Ct. at

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1486–87. The fact that certain actions took place in other states does not defeat personal

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jurisdiction where the effects of ILADS’s out-of-state conduct were felt in California. Id.

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2. Drs. Shor and Maloney
Plaintiff’s allegations are insufficient to establish specific jurisdiction over Drs. Shor and

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Maloney. Drs. Shor and Maloney reside in Virginia and Minnesota, respectively. Dkt. No. 13-1 at

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7. Plaintiff’s allegations that Dr. Shor contacted Dove Press and Chronic Diseases International,

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neither of which is located in California, see Dkt. No. 1 ¶¶ 25, 30, 32; Dkt. No. 30 at 4, and that

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United States District Court
Northern District of California

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Dr. Maloney replied to Dr. Stricker’s email to a private group, see Dkt. No. 1 ¶ 36, do not

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demonstrate that these defendants specifically aimed their acts toward California. At most,

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Plaintiff alleges “random, fortuitous, or attenuated contacts with the forum state,” and such

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contacts do not support jurisdiction. Rio Properties, 284 F.3d at 1019. 3

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b. Claims Arise out of Forum-Related Conduct

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In determining whether a plaintiff’s claims arise out of a defendant’s forum-related

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conduct, a plaintiff must show that it would not have suffered an injury “but for” the defendant’s

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forum-related activities. See Myers v. Bennett Law Offices, 238 F.3d 1068, 1075 (9th Cir. 2001).

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Plaintiff’s claims arise, at least in part, from ILADS’s conduct directed at California. Therefore,

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the Court finds that the “but for” requirement is met here. Plaintiff has made a prima facie

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showing that the reputation-based effects of the alleged defamation connect ILADS to California,

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because the reputational injury would not have occurred “but for” the multiple emails and other

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communications made on behalf of ILADS to Plaintiff directly, see Dkt. No. 1 ¶¶ 36, 37, 48, and

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to the ILADS membership, many of whom reside in California, see Dkt. No. 28 at 1. See Walden

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v. Fiore, 134 S. Ct. 1115, 1124, 188 L. Ed. 2d 12 (2014).

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Moreover, even if these actions were sufficient show purposeful availment by Drs. Shor and
Maloney, it would be unreasonable for the Court to assert jurisdiction over these defendants in
California on this thin basis. See Rio Properties, 284 F.3d at 1021 (listing reasonableness factors).
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c. Reasonableness
The exercise of jurisdiction is reasonable if it comports with “traditional notions of fair

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play and substantial justice.” Int’l Shoe Co., 326 U.S. at 316. The Court must consider several
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factors in determining reasonableness: (1) the extent of a defendant’s purposeful interjection;

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(2) the burden on the defendant in defending in the forum; (3) the extent of conflict with the
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sovereignty of the defendant’s state; (4) the forum state’s interest in adjudicating the dispute;

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(5) the most efficient judicial resolution of the controversy; (6) the importance of the forum to the
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plaintiff’s interest in convenient and effective relief; and (7) the existence of an alternative forum.

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Rio Properties, 284 F.3d at 1021. No single factor is dispositive. Id.
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These factors weigh in favor of the Court exercising personal jurisdiction over ILADS. As
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discussed above, ILADS interjected itself into California by making the allegedly defamatory
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United States District Court
Northern District of California

statements to the ILADS membership, and by directing certain communications to Dr. Stricker in
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California. See Sinatra v. National Enquirer, 854 F.2d 1191, 1199 (9th Cir.1988) (“The factor of
purposeful interjection is analogous to the purposeful direction analysis.”). Because the alleged
defamation was directed, at least in part, toward California, California’s interest in adjudicating
this dispute is as strong as any other forum’s. Defendants’ argument that the burden would be
substantial to defend outside Maryland is similarly unavailing. Moreover, “with the advances in

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transportation and telecommunications and the increasing interstate practice of law, any burden [of
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out-of-state litigation] is substantially less than in days past.” Menken v. Emm, 503 F.3d 1050,

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1060 (9th Cir. 2007) (internal quotation marks omitted). Defendants have not identified any other
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basis for the Court to conclude that exercising personal jurisdiction would be unreasonable given
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the facts of this case. Further, Plaintiff notes that ILADS is registered as a foreign corporation
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with California, which requires a representation that ILADS “transact[s] intrastate business”

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within California. Dkt. No. 28 at 3; Cal. Corp. Code § 2105. While, as noted above, such
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registration does not necessarily subject ILADS to general jurisdiction, it does suggest that
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specific jurisdiction in California is reasonable.
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B.

Venue

Here, the Northern District of California is a proper venue under 28 U.S.C. § 1400(a). It is
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undisputed that Ms. Buchman resides in the Northern District of California. See Dkt. No. 13-1

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n.2; Dkt. No. 28 at 1. The Court may, in its discretion, transfer a civil action to any other district

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or division where it might have been brought “[f]or the convenience of the parties and witnesses

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[or] in the interest of justice.” 28 U.S.C. § 1404(a); see also Van Dusen v. Barrack, 376 U.S. 612,

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616 (1964), superseded by statute on other grounds. The moving party first must show that the

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transferee forum is “one in which the action might have been brought.” Hoffman v. Blaski, 363

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U.S. 335, 343–44 (1960). Next, the moving party must “demonstrate that a transfer of venue

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would promote the convenience of parties and witnesses and the interests of justice.” Kannar v.

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Alticor, Inc., No. C-08-5505 MMC, 2009 WL 975426, at *1 (N.D. Cal. Apr. 9, 2009). At the

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second step, “the district court has discretion to adjudicate motions for transfer according to an

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United States District Court
Northern District of California

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individualized, case-by-case consideration of convenience and fairness.” Jones v. GNC

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Franchising, Inc., 211 F.3d 495, 498 (9th Cir. 2000) (internal quotation marks omitted). The

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Court may consider:

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(1) the location where the relevant agreements were negotiated and
executed, (2) the state that is most familiar with the governing law,
(3) the plaintiff’s choice of forum, (4) the respective parties’
contacts with the forum, (5) the contacts relating to the plaintiff's
cause of action in the chosen forum, (6) the differences in the costs
of litigation in the two forums, (7) the availability of compulsory
process to compel attendance of unwilling non-party witnesses, and
(8) the ease of access to sources of proof.

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Id. at 498–99.
These factors weigh in favor of maintaining the case in this district. Defendants have not

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demonstrated sufficient cause to transfer, and the Court declines in its discretion to transfer this

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case.

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III.

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CONCLUSION
For the foregoing reasons, the Court GRANTS the motion to dismiss for lack of personal

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jurisdiction as to Defendants Samuel Shor and Betty Maloney, and DENIES the motion to dismiss

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for lack of personal jurisdiction as to Defendants Barbara Buchman and ILADS. The Court

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DENIES the motion to dismiss for improper venue. The Court SETS a case management

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conference for April 24, 2018 at 2:00 p.m. The Court directs the parties to meet and confer and
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file on or before April 17, 2018 a joint case management statement that includes a proposed case

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schedule, including a trial date.

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IT IS SO ORDERED.

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Dated: 4/11/2018
______________________________________
HAYWOOD S. GILLIAM, JR.
United States District Judge

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United States District Court
Northern District of California

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