Mobile Telecommunications Technologies, LLC v. Bright House Networks, LLC et al

Filing 70

MEMORANDUM OPINION re pending motions to dismiss. Signed by Judge Leonard P. Stark on 3/20/17. Associated Cases: 1:16-md-02722-LPS-CJB, 1:16-cv-00693-LPS-CJB, 1:16-cv-00695-LPS-CJB (ntl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
· In Re· Mobile Telecommunications
Technologies, LLC,

Case No. 16-md-02722-LPS-GJB ..

MOBILE TELECOMMUNICATIONS
TECHNOLOGIES, LLC,
Plaintiff,

v.

Case No. 16-cv-693-LPS-CJB

BRIGHT HOUSENETWORKS, LLC,
Defendant.
MOBILE TELECOMMUNICATIONS
TECHNOLOGIES, LLC,
Plaintiff,
v.

Case No. 16-cv-695-LPS-CJB

COX COMMUNICATIONS, INC.,
Defendant.
Brian E. Farnan, Michael J. Farnan, FARNAN LLP, Wilmington, DE
Henning Schmidt, Daniel R. Scardino, Drew Zerdecki, Kyle Harter, REED & SCARDINO LLP,
Austin, TX
Counsel for Plaintiff Mobile Telecommunications Technologies, LLC.

Richard L. Renck, DUANE MORRIS LLP, Wilmington, DE
L. Norwood Jameson, Matthew C. Gaudet, Alison H. Hutton, DUANE MORRIS LLP, Atlanta,
GA
Joseph A. Powers, DUANE MORRIS LLP, Philadelphia, PA
Patrick S. Salceda, DUANE MORRIS LLP, Palo Alto, CA .
Joshua B. Long, DUANE MORRIS LLP, Houston, TX
Counsel for Defendants Bright House Networks, LLC and Cox Communications, Inc.

Michael E. Jones, POTTER MINTON, Tyler, TX
Counsel for Defendant Bright House Networks, LLC.

Mitchell G. Stockwell, Michael J. Turton, Richard W. Goldstucker, KILPATRICK TOWNSEND
& STOCKTON LLP, Atlanta, GA
Counsel for Defendant Cox Communications, Inc.

MEMORANDUM OPINION

March 20, 2017
Wilmington, Delaware

-~~~. ()_/
STARK, U.S. District Judge:.

Pending before the Court ·are motions to dismiss for lack of personal jurisdiction filed by
Defendants Bright House Networks, LLC ("BHN") and Cox Communications, Inc. ("Cox"). 1
(C.A. No. 16-693 D.I. 20; C.A. No. 16-695 D.I. 19)2 For the reasons below, the Court will grant
both motions.

I.

BACKGROUND
A.

Procedural History

On January 4, 2016, Plaintiff Mobile Telecommunications Technologies, LLC ("MTel")
filed seven suits in the United States District Court for the Eastern District of Texas (the "Eastern :
District of Texas"), each alleging infringement of U.S. Patent Nos. 5,590,403 ('"403 patent");
5,915,210 ("'210 patent"); and 5,659,891 ('"891

patent'~)

(collectively, the "patents-in-suit" m

"asserted patents"). 3 The seven actions were c~nsolidated into one lead case on April 11, 2016.
(C.A. No. 16-692 D.I. 30)
On April 13, 2016, declaratory judgment plaintiffs ARRIS Group-Inc. ("ARRIS") and
Ubee Interactive Inc. ("Ubee") (collectively, "DJ Plaintiffs") filed separate actions against MTel

1

Although MTel sued other defendants in addition to BHN and Cox, "Defendants" refers
to BHN and Cox in this Opinion.
2

The Court will refer to C.A. No. 16-693 as "BHN" and C.A. No. 16-695 as "Cox" when
citing the respective dockets in these cases.
3

The seven cases (and respective defendants) are: C.A. No. 16_:692 (Time Warner Cable
_LL~, Time Warner Cable Enterprises LLC, and Time Warner Cable Texas LLC (collectively,
"TWC")); .C.A. No. 16-693 (Bright House Networks, LLC ("BHN")); C.l\. No. 16-694 (Charter
Communications Inc. ("Charter")); C.A. No. 16-695 (Cox Communications, Inc. ("Cox")); C.A.
No. 16-696 (Aruba Networks, Irie., Hewlett Packard Enterprise Company, and HP Inc. ("HP"));
C.A. No. 16-697 (Brocade Communications Systems, Inc. ("Brocade")); and C.A. No. 16-698
(Juniper Networks, Inc. ("Juniper")).

1

in this Court, each seeking declaratory judgment of non-infringement of the patents-in-suit.
(C.A. No. 16-259 D.L 1; C.A. No. 16-260 D.I. 1.) On April 19, 2016, BHN filed a similar
declaratory judgment action in this Court. (C.A. No. 16-277 D.I. 1)
On May 3, 2016, MTel filed.four additional lawsuits in the Eastern District of Texas
against four new defendants, alleging infringement of the same three patents. 4 Three of these
cases were consolidated into one lead case on July 21, 2016 (C.A. No. 16-700 D.I. 6), and the
fourth was added on July 29, 2016 (id. at D.I. 7). (Hereinafter, the Court refers to the 11 actions
filed in the Eastern District of Texas as'the "Texas Actions" and the defendants in those actions,
collectively, as the "Texas Defendants.")
DJ Plaintiffs and the Texas Defendants fall into two general categories. Ruckus, ARRIS,
Ubee, Juniper, Aerohive, Brocade, HP, Firetide, and Xirrus are Wi-Fi equipment providers. Cox, .
BHN, Charter, and TWC are cable network operators.
On August 5, 2016, the Judicial Panel on Multidistrict Litigation ("JPML") determined
that centralization of the 14 actions involving MTel was appropriate, and transferred the cases to
this Court for coordinated or consolidated pretrial proceedings. (Case No. 16-md-2722 ("MDL") ·
D.I. 1) ·

B.

Patents-in-Suit5

The patents-in-suit generally relate to wireless telecommunications. The '403 patent is

4

The four cases (and respective defendants) are: C.A. No. 16-699 (Ruckus); CA. No. 16700 (Aerohive Networks, Inc; ("Aerohive")); C.A. No. 16-701 (Xirrus, fuc. ("Xirrus")); a~d C.A.
No. 16-702 (Firetide, Inc. ("Firetide")).
5

The patents-in-suit can be found in Exhibits 1, 2, and 3 to the Complaints in C.A. No.
16-693 and C.A. No. 16-695.
2

entitled "Method and System for Efficiently Providing Two Way Communication Between a
Central Ne.twork and Mobile Unit." The claims of the '403 patent cover methods for wirelessly
simulcasting information signals. ('403 patent at 33:11-30, 34:35-:-62)
The '210 patent is entitled "Method and System for Providing Multi carrier Simulcast
.

.

Transmission.;, The claims of the '210 patent cover systems for wirelessly transmitting
information via two sets of carrier signals in simulcast. ('210 patent at 33:47-62, 34:44-64, 36:724)
The '891 patent is entitled "Multicarrfor Techniques in Bandlimited Channels" and
claims a system and methods for transmitting wireless signals using specific frequency spacing
for carriers in a band-limited channel. ('891 patent at 6:4-44)

· C.

Defendants' Motions

BHN and Cox filed their motions to dismiss for lack of personal jurisdiction on March
18, 2016. (BHN D.I. 20; Cox D.I. 19) The parties completed an initial set ofbriefs on the
motions on May 9, 2016. (BHN D.I. 20, 26, 27, 28; Cox D.I. 19, 25, 26, 27) The Court which·
BHN and Cox claim lacks personal jurisdiction over them is the Eastern District of Texas.
On June 28, 2016, MTel moved for leave to file supplemental briefing on the effect of
Charter's acquisition ofBHN, and subsequent merger with TWC, on the Court's personal
jurisdiction over BHN. (BHN D.I. 29) 6 BHN and MTel completed briefing on the motion for
leave on July 21, 2016. (BHN D.I. 30, 31, 34, 35)
On October 11, 2016, MTel filed additional motions for leave to file supplemental

6

The Court will grant MTel's motion for leave. The Court has reviewed and taken into
consideration all supplemental briefing addressing the pending motions.
3

briefing on whether BHN and Cox implicitly consented to jurisdiction in Texas by supporting
centralization of pretrial proceedings in a multi district litigation and by actively participating in
_their respective cases. (BHN D.I. 44; Cox DJ. 36) The Colirt granted these motions for leave
(BHN D.I. 46; Cox D.I. 38) and the parties completed briefing on October 24, 2016 (BHN D.I.
44, 48; Cox D.I. 36, 40}.
The Court heard oral argument on October 26, 2016. (MDL DJ. 71 (Transcript ("Tr.")))
II.

LEGAL STANDARDS
Federal Rule of Civil Procedure 12(b)(2) directs the Court to dismiss a case when it lacks

personal jurisdiction over the defendant. In patent cases, Federal Circuit law governs analysis of
specific personal jurisdiction. 7 See Acorda Therapeutics Inc. v. Mylan Pharm. Inc., 817 .F .3d
755, 759 (Fed. Cir. 2016). "Determining whether specific personal jurisdiction over a
nonresident defendant is proper entails two inquiries: whether a forum state's long-arm statute
permits service of process, and whether the assertion of jurisdiction would be inconsistent with
due process." Elecs.for Imaging, Inc. v. Coyle, 340 F.3d 1344, 1349 (Fed. Cir. 2003) (citations
omitted). Texas's long-arm statute extends as far as the Fourteenth Ame!!-dment's Due Process
Clause permits. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 413
(1984) (citing Hall v. Helicopteros Nacionales de Colombia, S.A., 638 S.W.2d 870, 872 (Tex.
1982)). Due process is satisfied ifthe Court finds the existence of"minimum contacts" between
the nonresident defendant and the forum state, "such that the maintenance of the suit does not
offend traditional notions of fair play and substantial justice." Int'! Shoe Co. v. Washington, 326

7

MTel does not argue that the Court has general personal jurisdiction over either of the
Defendants.
4

U.S. 310, 316 (1945) (internal quotation m·arks omitted).

_In !named Corp. v. Kuzmak, 249 F.3d 1356, 1360 (Fed. Cir. 2001), the Federal Circuit set
forth "a three-factor test to determine whether asserting jurisdiction over an out-of-state
defendant comports with due process~" "The three factors are.: (1) whether the defendant
purposefully directed its activities at residents of the forum; (2) whether the claim arises out of or
relates to the defendant's activities with the forum; and (3) whether assertion of personal
jurisdiction is reasonable and fair." Id. (internal quotation marks omitted). "The first two factors ·
correspond with the 'minimum contacts' prong of the International Shoe analysis, and the third
factor corresponds with the 'fair play and substantial justice' prong of the analysis." Id. The first ·
two factors are both "necessary" for personal jurisdiction over a defendant, Akro Corp. v. Luker,
45 F3d 1541, 1545 (Fed. Cir. 1995), and plaintiff bears the burden ofpro'of on these factots,
!named, 249 F.3d at 1360.
"To survive a motion to dismiss in the absence of jurisdictional discovery, plaintiffs need
only make a prima facie showing of jurisdiction." Nuance Commc 'ns, Inc. v. Abbyy Software
House, 626 F.3d 1222, 1231 (Fed. Cir. 2010) (citation omitted). "Without discovery and a record·
onjurisdiction, [the] court must resolve all factual disputes in the plaintiffs favor." Id. (citation
omitted). "[W]here the plaintiffs factual allegations are not directly controverted, they are taken
as true for purposes of determining jurisdiction." Akro, 45 F.3d at 1543 (internal brackets and
quotation marks omitted). The Court may consider "affidavits and other written materials in the
absence of an evidentiary hearing" in determining whether it has personal jurisdiction. Coyle,
340 F.3d at 1349.

5

III.

DISCUSSION
Defendants argue that they have insufficient contacts with Texas for the Court to have

personal jurisdiction over them because they conducted no business in Texas and otherwise had
no relevant contacts with Texas duringthe relevant period~ (See BHN D.I. 20 at 1-4; CoxD.I. 19 .
at 1-4) MTel presents three primary arguments in opposition to Defendants' motions. First,
MTel argues that Defendants' arrangements with other cable network providers to supply WiFi
access to Defendants' customers when they travel to Texas confer personal jurisdiction over
Defendants. (See BHN D.I. 26 at 8-11; Cox D.I. 25 at 8-12) Second, MTel argues that
Defendants waived any objection to the Court exercising personal jurisdiction over them by
supporting consolidation of litigation in an MDL and by actively participating in these litigations
in Texas. ·(See BHN D.I. 44-1; Cox D.I. 36-1) Third, MTel argues that Charter's acquisition of
BHN confers personal jurisdiction over BHN because of Charter's contacts with Texas. (See
BHN D.I. 30, 34) The Court addresses each of these arguments below.

A.·

WiFi Hotspots

Defendants acknowledge that they contracted with other cable network providers that
operate in Texas to supply Defendants' customers with access to WiFi hotspots. (BHN D.I. 20 at
9; Cox D.I. 19 at 9) Defendants argue, however, that these arrangements are insufficient to
create personal jurisdiction over them in Texas because they are akin to roaming agreements that
courts have repeatedly found to be insufficient to create the mi.nimum contacts necessary to
establish personal jurisdiction. (BHN D .I. 20 at 9-13; Cox D .I. 19 at 9-11) (citing Garnet Dig.,

LLC v. Apple, Inc., 893 F. Supp. 2d 814, 817 (E.D. Tex. 2012) ("Other courts have considered
whether roaming agreements alone are sufficient to establish personal jurisdiction over a cellular

6

provider and have held these agreements alone are not sufficient to establish personal
jurisdiction.") (collecting cases))
According to MTel,. Defendants have "entered the Texas market" by "contracting for and
engaging in an aHiance to extend WiFi service" to their customers while they are in Texas.
(BHN D.I. 26 at 1; Cox D.I. 25 at 1) BHN is alleged to participate in the "Cable WiFi" and
"Time Warner Cable Passpoint" networks. (BHN D.I. 26 at 1) Cox is alleged to.participate in
only the "CableWiFi" network. (Cox D.I. 25 at 1) MTel does not argue that there is any
meaningful distinction between the CableWiFi and TWC networks for purposes of deciding
Defendants' motions.
MTel argues that Defendants' contacts amount to substantiallY.more than the "mere
roaming agreement" considered to be insufficient to establish minimum contacts in Garnet
Digital. (BHN D.I. 26 at 11; Cox D.I. 25 at 12) According to MTel, the roaming agreement in
Garnet Digital was not sufficiently related to the specific instrum~ntalities (mobile devices)

accused of infringement in that case, whereas the cable WiFi agreements at issue in this case are
related to "the very Wi-Fi access points that MTel accuses." (See BHN D.I. 26 at 12; Cox D.I.
25 at 13) Specifically, MTel argues that Defendants have minimum contacts with Texas because
they "authenticate" their customers' credentials when those customers attempt to access WiFi
hotspots in Texas. (BHN D.I. 26 at 6; Cox D.I. 25 at 7)
Defendants counter that "the patents-in-suit have nothing to do with 'authentication'
technology" and, therefore, that MTel has failed to make a prima facie showing under the second
factor in I named - i.e., Plaintiff has failed to show that its claim arises out of or relates to
Defendant's activities. (See BHN D.I. 27 at 3; Cox D.I. 26 at 8) On this point, the Court agrees
7

with Defendants.
The patents-in-suit relate to wireless communications rather than authentication, and
MTel makes no persuasive attempt to tie authentication to the asserted patents. MTel argues in its sur-reply brief that authentication of a user "necessarily must be communicated over-the-air
on the 802.11 downlink of the WiFi Access Point." (BHN D.I. 28 at 2-3; Cox D.I. 27 at 2-3; see
also Tr. at 93 (MTel arguing that "there is.an authentication procedure" involving "transmissions

that go through that WiFi access point in Texas that come from the authentication server" and
that said transmissions ''would be the subject of an infringement claim for these transmission
patents")) But to the extent that the patent claims do implicate an "authentication procedure,"
there is no evidence in the record that wireless communication of authentication is in any way
controlled or directed by Defendants.
To the contrary, the only evidence of record on this issue indicates that third parties in
Texas, and not Defendants, control how authentication procedures are transmitted wirelessly.
(See BHN D.I. 20-2, Declaration of Paul Woelk, Vice President at BHN; ifif 5-6 (stating BHN has

no control over WiFi equipment in Texas used by customers pursuant to WiFi collaborations);
Cox D.I. 19-3, Declaration of Robin Sangston, Vice President at Cox, ifif 18-19 (stating same
regarding Cox); ,Cox D.I. 25 at 7 (diagram depicting CableWiFi authentication process as userinitiated and indicating that Defendants' servers provide authentication in completely separate
network from network that communicates authentication result wirelessly to customers)) Even
when viewed in the light most favorable to MTel, the evidence and uncontroverted pleadings
cannot support a conclusion that Defendants have "'purposefully avail[ed] [themselves] ofthe
privilege of conducting activities within the forum State"' by authenticating their customers' user

8

r

; ...

credentials. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985) (quoting Hanson v.

Denckla, 357 U.S. 235, 253 (1958)).
MTel argues that the instant case is analogous to Centre One v. Vonage Holdings Corp.,
2009 WL 2461003, at *3

(E.D~

Tex. Aug. 10, 2009), in which the Court held that defendants who

"directly provide[ d] the allegedly infringing instrumentality" to customers "in order to facilitate
the use.ofthat instrumentality all over the country" were subject to the Court's personal
jurisdiction (see BHN D.I. 26 at 8-9; Cox D.I. 25 at 9-10). Centre One is distinguishable because
there is no allegation here that Defendants have controlled or-provided their customers with any
infringing instrumentality- such as WiFi equipment-intended to be used in Texas. As noted
above, the only record evidence on this issue indicates that Defendants do not operate any of the
accused equipment in Texas. (BHN D.I. 20-2 ifif 5-6 (stating BHN has no control over WiFi
equipment in Texas used by customers pursuant to WiFi collaborations); Cox D.I. 19-3 ifif 18-19
(stating same regarding Cox))
MTel also contends that the instant case is analogous to Freedom Wireless, Inc. v.

Cingular Wireless LLC, 2008 WL 4500698, at *1-2 (E.D. Tex. S.ept. 29, 2008), in which the
Court held that a defendant was subject to personal jurisdiction when the defendant used and
·. "directed changes" to a system managed by a Texas-based co-defendant (see BHN D.I. 26 at 910; Cox D.I. 25 at 10-11). As already discussed with respect to Centre One, there is no evidence
that Defendants here ever exercised any control over WiFi hotspots in Texas. Thus, Freedom

Wireless is similarly distinguishable.
MTel argues that Defendants have "collaborated" with other cable network providers to
"jointly create and maintain" Texas WiFi hotspots, some of which are in Texas. (See BHN D.I.

9

26 at 1, 3-4; Cox D.I. 25 at 1, 4) MTel adds that Defendants are part of~ "strategic alliance" like
the one found to exist in Novartis Vaccines & Diagnostics, Inc. v. Hoffman-La Roche Inc., 597 F.
Supp. 2d 706, 716 (E.D. Tex.), vac.ated on other grounds sub nom. In re Hoffmann-La R~che ·

Inc., 587 F.3d 1333 (Fed. Cir. 2009). The Court disagrees.· In Novartis, the Court held that a
party who derived substantial revenue from the sale of a drug should reasonably anticipate being
haled into court where the drug is sold, under a "stream of commerce" theory. See id. There is
no evidence that Defendants derive substantial revenue from their participation in the WiFi
collaborations. In fact,· the record indicates that Defendants have no control over whether any
WiFi hotspots will be available in Texas (see BHN D.I. 20-2 if 6; Cox D.I.

19~3

if 19) (BHN and

Cox Vice Presidents indicating that CableWiFi and TWC agreements were not contingenfon
hotspots being available in Texas), cutting against the notion that they have "played a crucial role"

in placing the [infringing instrumentality] into the stream of commerce" in Texas, or have
derived profits from Texas-related activity, Novartis, 597 F. Supp. 2d at 716. 8
At the hearing, MTel took its "strategic alliance" arguments even further and suggested ·
that a 'joint venture" or "general partnership" may exist among the cable network providers. (Tr.
at 86) There is no evidence in the record anci no uncontroverted allegation in the pleadings to
support this argument. At most, the WiFi collaborations maybe characterized as standard
business dealings among the cable network operators. But "doing business with a company that
does business in [a forum state] is not the same as doing business in [the forum state]." Red

8

MTel argues that Cox offers CableWiFi service only to certain customers who pay
"additional money for higher tier broadband plans." (Cox D.I. 25 at 5 n.11) However, there is
no evidence that any Cox customers - none of whom reside in Texas - were willing to (or did)
pay more for access to WiFi hotspots in Texas or that any such customers used the service in
Texas ..
10

Wing Shoe Co., Inc. v. Hockerson-Halberstadt, Inc., 148 F.3d 1355, 1361 (Fed. Cir. 1998); see
also Ctr. One, 2009 WL 2461003, at *4 ("[T]he fact that VCI owns or does business with
companies with contacts in Texas does not allow it to rely on those contacts for jurisdictional
purposes ...
")
MTel alleges that Defendants (1) direct customers to use WiFi hotspots in Texas via
coverage maps available on Defendants' websites and (2) provide reciprocal services to Texas
customers of other cable network providers when they travel to markets where Defendants
operate. (BHN D.I. 26 at 5, 12; Cox D.I. 25 at 6, 12) MTel only briefly mentions these
allegations in its briefing, providing the Court no basis to conclude that these acts are anything
more than mere extensions of the business dealings discussed above, which are insufficient to
confer personal jurisdiction.
In summary, Defendants' participation in the WiFi collaborations is an insufficient basis

for the Court to exercise personal jurisdiction over Defendants, because there is neither evidence
nor an uncontroverted allegation in the pleadings that would support an inference that Defendants
ever provided or controlled any WiFi system - or directed and controlled any device or
functionality accused of infringement- in Texas. 9

B.

Defendants' Support for Consolidation in an MDL

MTel contends that Defendants waived any objection to personal jurisdiction by

9

MTel pleads a number of speculative or conclusory allegations that have been rebutted
by record evidence and are unsupported by any evidence proffered by MT el. For example,
MTel's complaints allege that Defendants have "made, used, sold, and offered to sell" accused
WiFi equipmenfin Texas. (BHN D.I. 1 at if 27; Cox D.I. 1if26) Declarations submitted by
personnel at BHN and Cox have rebutted these allegations. (See generally BHN D.I. 20-2; Cox
D.I. 19-3)
11

(1) supporting consolidation of the Texas Actions into an MDL for resolution of pretrial
proceedings, knowing that the cases would thereafter be remanded to the Eastern District of
Texas for trial, and (2) actively participating in litigation in the Eastern District of Texas and in
the MDL (BHN D.I. 44-1at4-8; Cox D.I. 36-1at3-7) The Court disagrees. MTel has cited no
authority in support of the proposition that a party that timely moves to dismiss for lack of
personal jurisdiction, as Defendants have done here, waives· its motion by supporting
consolidation oflitigation in an MDL. (See generally BHN D.I. 48 at 2-8; Cox D.I. 40 at 3-8)
(distinguishing cases cited by MTel) By statute, transferee courts are authorized to decide issues
raised during all "pretrial proceedings," including motions to dismiss. See 28 U.S.C. § 1407(a).
There is no reason to infer from Defendants' support for creation of an MDL that they intended ·
to give up their challenge to the personal' jurisdiction of the transferor court. .
Likewise, Defendants did not waive their motions by participating in the litigation whil~
the pretrial proceedings were occurring in Texas. As explained by Defendants, the Eastern
District of Texas has promulgated a "No Excuses" rule, which requires that parties comply with
certain mandatory discovery deadlines, regardless of whether motions to dismiss are pending.
(BHN D.I. 48 at 3; Cox D.I. 40 at 8) Defendants did not waive their motions by complying with
Court-ordered deadlines in the Eastern District of Texas. Moreover, Defendants have done
nothing in this Court to support an inference of waiver. (BHN D.I. 48 at 7; Cox D.I. 40 at 3-4)
(describing litigation conduct preserving.Defendants' motions, including notification of JPML
and this Court of pendency of motions)

C.

Acquisition of BHN by Charter

MTel argues that the BHN-Charter merger, which MTel acknowledges was not

12

· completed until after MTel filed its complaint against BHN, is evidence that Charter "exerted
sufficient control over BHN such that Charter's jurisdictional contacts in Texas should be
imputed to BHN under an alter ego theory." (BHN D .I. 34 at 1) Courts must "consider the
existence of personal jurisdiction on the basis of the facts as they existed at the time the

complaint was filed." Diebold Election Sys., Inc. v. Al Tech., Inc., 562 F. Supp. 2d 866, 872
(E.D. Tex. 2008) (emphasis added) (citing Asarco, Inc. v. Glenara, Ltd., 912 F.2d 784, 787 n.1
(5th Cir. 1990)); accord Elcommerce.com, Inc. v. SAP AG, 745 F.3d 490, 496 (Fed. Cir. 2014).
Thus, the focus here must be on pre-complaint activity between BHN and Charter.
BHN argues that Charter exercised no control over BHN before the merger, as evidenced
in filings submitted to the Securities and Exchange. Commission cited in BHN' s brief. (See BHN
D.I. 35 at 3 (citing D.I. 30-2 at 28)) There is no evidence here of any pre-complaint "close
connections and arrangements" between BHN and Charter that would be "unusual for truly
independent companies." Pfizer Inc. v. Mylan Inc., 201 F. Supp. 3d 483, 2016 WL 4362115, at
*5 (D. Del. 2016) (internal quotation marks omitted). The speculative nature ofMTel's alter-ego
theory is highlighted by the fact that any pre-merger control exerted by Charter over BHN would
appear to have been a willful violation of federal antitrust laws, including the Hart-Scott-Rodino
Act, by transferring control to Charter before obtaining governmental authorization to do so.

(See BHN D.I. 35 at 3-4 (citing 15 U.S.C. § 18a))

D.

Jurisdictional Discovery

MTel asks the Court to permit jurisdictional discovery into MTel's WiFi-hotspot and
.BHN-Charter alter ego theories of personal jurisdiction before granting Defendants' motions.
(BHN D.I. 26 at 1; BHN D.I. 30 at 5; Cox D.I. 25 at 1) But MTel has failed to establish a "prima

13

facie showing of jurisdiction sufficient to require that [it] be permitted to conduct jurisdictional
discovery." Med. Sols., Inc. v. C Change Surgical LLC, 541F.3d1136, 1142 (Fed. Cir.. 2008);

see also Eurofins Pharma US Holdings v. BioAlliance Pharma SA, 623 F .3d 147, 157 (3d Cir.
2010) ("If the plaintiff presents factual allegations that suggest with reasonable particularity the
· possible existence of the requisite contacts between the party and the forum state, the plaintiffs
right to conduct jurisdictional discovery should be sustained.") (internal brackets and quotation
marks omitted). MTel's WiFi-hotspot and EHN-Charter-alter-ego theories of personal
jurisdiction are too speculative to justify the parties embarking on a search for jurisdictional facts
that, even if found, would be unlikely to support an exercise of personal jurisdiction over
Defendants under t~e second prong of International Shoe. 10
IV.

CONCLUSION
For the foregoing reasons, the Court will grant BHN and Cox's motions (BHN D.I. 20;

Cox D.I. 19) and will deny Plaintiffs request for jurisdictional discovery (BHN D.I. 26 at 1;
BHN D.I. 30 at 5; Cox D.I. 25 at 1). An appropriate Order follows.

10

The Court need not make an ultimate determination under the second prong of
International Shoe, as the Court's ruling is based solely on Plaintiffs failure to make a prima
facie showing of minimum contacts.
14