Carlisle et al v. USPlabs, LLC et al

Filing 144

ORDER GRANTING DEFENDANT S.K. LABORATORIES, INC.'S MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT re 16 Motion to Dismiss for Lack of Jurisdiction. Signed by JUDGE LESLIE E. KOBAYASHI on 04/30/2015. S.K.'s Motion to Dismiss or, in the Alternative, for Summary Judgment, filed December 30, 2014, is HEREBY GRANTED. Insofar as this Court has granted summary judgment in favor of S.K. based upon the Court's conclusion that it lacks p ersonal jurisdiction over S.K., this Court DIRECTS the Clerk's Office to terminate S.K. as a party in this case on May 21, 2015, unless Plaintiffs file a motion for reconsideration of this order by May 18, 2015. (eps )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
MEREANE CARLISLE, et al.,

)
)
Plaintiffs,
)
)
vs.
)
)
USPLABS, LLC, et al.,
)
)
)
Defendants.
_____________________________ )

CIVIL 14-00363 LEK-KSC

ORDER GRANTING DEFENDANT S.K. LABORATORIES, INC.’S MOTION
TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT
Before the Court is Defendant S.K. Laboratories, Inc.’s
(“S.K.”) Motion to Dismiss or, in the Alternative, for Summary
Judgment (“Motion”), filed on December 30, 2014.

[Dkt. no. 16.]

Plaintiffs Mereane Carlisle, Charles Paio, Chanelle Valdez,
Janice Fevella, and Christiano Mariano (collectively
“Plaintiffs”) filed their memorandum in opposition on February 2,
2015.1

[Dkt. no. 29.]

[Dkt. no. 122.]

1

S.K. filed its reply on March 30, 2015.

This matter came on for hearing on April 13,

Pursuant to this Court’s order, [Order Regarding Hearing
on Defendant S.K. Laboratories, Inc.’s Motions to Dismiss, filed
1/13/15 (dkt. no. 23) (“1/13/15 EO”),] Plaintiffs filed a joint
memorandum in opposition with the plaintiffs in Davidson, et al.
v. USPlabs, LLC, et al., CV 14-00364 LEK-KSC, Ofisa, et al. v.
USPlabs, LLC, et al., CV 14-00365 LEK-KSC, Pantohan, et al. v.
USPlabs, LLC, et al., CV 14-00366 LEK-KSC, and Pavao, et al. v.
USPlabs, LLC, et al., CV 14-00367 LEK-KSC. The plaintiffs in
these cases raise the same claims, and are represented by the
same counsel. S.K. filed a motion to dismiss in each case. This
Court therefore set the five motions for hearing on the same day
and directed the parties to file joint memoranda. This Court
will issue separate orders ruling on each of the five motions.

2015.

After careful consideration of the Motion, supporting and

opposing memoranda, and the arguments of counsel, S.K.’s Motion
is HEREBY GRANTED for the reasons set forth below.
BACKGROUND
Plaintiffs filed the underlying Complaint in this
district court on August 15, 2014, alleging diversity
jurisdiction pursuant to 28 U.S.C. § 1332.

[Complaint at ¶ 1.]

Each Plaintiff is a Hawai`i resident who ingested one
or more of the following versions of a dietary supplement OxyElite Pro Super Thermo, OxyElite Pro New Formula,2 or OxyElite
Pro Super Thermo Powder (collectively “the Product”) - between
May through November of 2013, after purchasing it from a GNC or
Vitamin Shoppe store located within the State of Hawai`i.
at ¶¶ 41-65.]

[Id.

Plaintiffs allege that, after ingesting the

Product, they suffered acute liver failure and/or hepatitis
related injuries.

Plaintiffs claim that they were exposed to,

and relied upon the advertising and marketing of Defendants
USPlabs, LLC (“USPlabs”), The Vitamin Shoppe (“VS”), or GNC
Corporation (“GNC”), and believed the Product to be safe for
consumption and effective in use.3

[Id.]

Plaintiffs allege that

2

Plaintiffs refer to products named “OxyElite Pro Ultra
Intense Thermo,” “OxyElite Pro Super Thermo,” and “OxyElite Pro
Super Thermo Powder” collectively as “OxyElite Pro New Formula.”
[Complaint at ¶ 3.]
3

The following are named Defendants in all five cases:
(continued...)
2

USPlabs regularly engaged in the business of producing and
distributing the Product to retail stores in Hawai`i, which led
to Plaintiffs purchasing and ingesting the Product in the state
of Hawai`i.

[Id. at ¶ 3-4.]

For further discussion of the

allegations regarding USPlabs, see Van Houten v. USPlabs, LLC,
Civ. No. 13-00635 LEK-KSC, Order Granting in Part and Denying in
Part Defendants’ Motion to Dismiss Plaintiff’s Complaint, 2014 WL
4956498 (D. Hawai`i Sept. 30, 2014).
S.K. is a contract manufacturer of the Product.
[Complaint at ¶ 28.]

Plaintiffs allege that:

There are three versions of the new OxyElite
product including: OxyElite Pro Ultra Intense
Thermo, OxyElite Pro Super Thermo, and OxyElite
Pro Super Thermo Powder (collectively “OxyElite
Pro New Formula”). OxyElite Pro Super Thermo is a
trademarked product designed, marketed,
manufactured, distributed and sold by USP, either
directly or at the direction and behest of USP.
USP contracts with [S.K.] who in turn contracts
with VITA-TECH, both of which manufacture OxyElite
Pro New Formula at the direction of and using
specifications set forth by USP. OxyElite Pro
Super Thermo contains the following ingredients in
its Proprietary Blend: Bauhinia Purpurea L. (Leaf

3

(...continued)
USPlabs; Jonathan Vincent Doyle (an individual); Jacob Geissler
(an individual), also known as Jacobo Geissler; USPlabs OxyElite,
LLC; USPlabs OxyElite PN, LLC; GNC; VS; Vitamin Shoppe Industries
Inc.; S.K.; and Vita-Tech International, Inc. Similar claims
against many of the same defendants been alleged in other cases
pending in this district court. These include: Van Houten v.
USPlabs, LLC, CV 13-00635 LEK-KSC; Waikiki v. USPlabs, LLC, et
al., CV 13-00639 LEK-KSC; Akau v. USPlabs, LLC, et al.; CV 1400029 LEK-KSC; Igafo v. USPlabs, LLC, et al., CV 14-00030 LEKKSC; Ishihara v. USPlabs, LLC, et al., CV 14-00031 LEK-KSC; and
Mattson v. USPlabs, LLC, et al., CV 14-00032 LEK-KSC.
3

and Pod) Extract, Aegeline, Norcoclaurine HCL,
Hemerecallis Fulva (Flower) Heat Concentrated
Extract, Yohimbe (Pausinystalia Johimbe) (Bark)
Extract (AlphaShred). It also contains caffeine.
[Id. at ¶ 60.]
S.K. is a California corporation, with its headquarters
in Anaheim, California, whom Plaintiffs allege was:
regularly engaged in the business of
manufacturing, formulating, packaging,
distributing, designing and/or selling, either
directly or indirectly, through third parties of
related entities, non-prescription dietary
supplement for sale to, and use by, members of the
general public, and as a part of their business,
said Defendant, directly or indirectly was and is
engaged in the manufacturing/formulating/
packaging/distributing/designing/selling of a
purported nutritional/dietary supplement under the
proprietary, trademarked name OxyElite Pro New
Formula in interstate commerce and in Hawaii,
which Plaintiffs ingested as alleged herein.
[Id. at ¶ 28.]

Plaintiffs further allege that, at all times, the

actions of individuals employed by S.K. were done on behalf of,
at the direction of, and ratified by S.K. in accordance with
S.K.’s company policy.

[Id. at ¶ 29.]

Plaintiffs allege that all versions of the Product are
“dangerous and untested dietary supplements that causes hepatic
injuries, ranging from acute, mild liver dysfunction to hepatitis
and liver failure requiring liver transplantation, or death.”
[Id. at ¶ 72.]

USPlabs developed the Product while it was

phasing out a prior formulation of the Product, which contained
1,3-Dimethylamylamine, a dangerous chemical (“OxyElite with

4

DMAA”).

[Id. at ¶¶ 75-90.4]

Plaintiffs allege that USPlabs

failed to learn its lesson from the previous sale of OxyElite
with DMAA, and did not adequately test the safety of the Product
at issue in this litigation.

USPlabs included phrases such as

“Scientifically Formulated” and “Pharmacist Formulated” on
certain versions of the Product that Plaintiffs allege “mislead[]
consumers in believing that the individual ingredients used have
been thoroughly investigated and are demonstrated to be safe,
when in fact, the ingredients have not been adequately tested for
safety.”

[Complaint at ¶ 34.]
On October 8, 2013, due to a number of reports related

to liver injuries related to use of the Product in Hawai`i, the
United States Food and Drug Administration (“FDA”) issued a
Health Advisory warning consumers to stop using the Product.
[Complaint at ¶ 95.]

The advisory noted “29 cases of non-viral

hepatitis in which other causes had been ruled out.

Of those, 24

were reported to be on an OxyElite Pro New Formula product.

Two

of the cases had liver transplants, one person died and 11 were
hospitalized.”

[Id.]

According to the Complaint, the number of

confirmed cases of liver injuries in Hawai`i related to the use
of the Product is now twenty seven.

4

[Id. at ¶ 96.]

The Product

For further discussion of the allegations regarding
OxyElite with DMAA, see Akau v. USPlabs, LLC, et al., CV 14-00029
LEK-KSC, Order Granting in Part and Denying in Part Defendants’
Motion to Dismiss, filed 9/9/14 (dkt. no. 44) at 5-6.
5

contained ageline, a new, synthetic ingredient.

On October 11,

2013, the FDA issued a warning letter to USPlabs that this
ingredient “lacked evidence of safety” and that the various
formulations of the Product were “deemed adulterated because they
contain a new dietary ingredient (an ingredient not previously
present in the food supply, and for which there is no history of
use or other evidence of safety when used as suggested in the
labeling) which lacks adequate information to provide reasonable
assurance of safety.”

[Id. at ¶ 97.]

By letter dated

November 6, 2013, the FDA also notified USPlabs about the
correlation between the Product and a number of liver illnesses
reported in Hawai`i, as well as related occurrences in other
states.

[Id.]
Even though USPlabs received warnings about the effects

of the Product, GNC continued to market it and did not remove it
from its shelves until an embargo in October 2013 and after
further threats from the State of Hawai`i Department of Health.
[Id. at ¶ 98.]

Following the FDA’s letter dated November 9,

2013, warning USPlabs that it would take all enforcement actions
against the Product, USPlabs finally initiated a full-scale
recall of all three versions of the Product.

As a part of the

recall, USPlabs conceded that the Product was hepatoxic.
¶ 100.]

6

[Id. at

USPlabs has raised the possibility that customers who
suffered liver injuries had ingested a counterfeit product.
Plaintiffs, however, argue that there is no evidence of any
existing counterfeit version of the Product, nor has the FDA
found any substantiation for such a claim.

[Id. at ¶ 99.]

Plaintiffs allege in the Complaint that USPlabs failed
to follow current good manufacturing practices (“CGMP”) in its
facilities according to the FDA.5

USPlabs’s manufacturers,

including S.K., were also cited by the FDA for similar CGMP
violations.

[Id. at ¶ 106.]

Plaintiffs allege that these

violations of both CGMP and federal law placed consumers at risk
for “exposure to untested, contaminated ingredients,” and that
“there are issues of contamination in [the Product], which are in
part of in the alternative wholly responsible for Plaintiff’s
injuries.”

[Id. at ¶ 107.]
Plaintiffs allege the following claims: negligence

against the USP Defendants (“Count I”); negligence against GNC
and VS (collectively, “the Retailers”6 and “Count II”);

5

On December 4, 2012, the USP entities received a letter
notifying it of its CGMP violations following a two-week
inspection of USPlabs’s facilities. The FDA noted that USPlabs
failed to: create a pure product free of contaminants, or to test
for any contaminants; review formulas for quality control; and
test raw ingredients used in its products before sending them to
third-party manufacturers. [Complaint at ¶ 105.]
6

Plaintiffs Fevella, Mariano, and Valdez’s claims against
the Retailers are against GNC, and Plaintiffs Carlisle and Paio’s
(continued...)
7

negligence against S.K. and Vita-tech (collectively, “the
Manufacturers” and “Count III”); strict products liability manufacturing defect against USPlabs (“Count IV”); strict
products liability - manufacturing defect against the Retailers
(“Count V”); strict products liability - manufacturing defect
against the Manufacturers (“Count VI”); strict products liability
- design defect against USPLabs and (“Count VII”); strict
products liability - design defect against the Retailers (“Count
VIII”); strict products liability - design defect against the
Manufacturers (“Count IX”); strict products liability - failure
to warn against USPLabs (“Count X”); strict products liability failure to warn against the Retailers (“Count XI”); strict
products liability - failure to warn against the Manufacturers
(“Count XII”); breach of implied warranty against USPlabs (“Count
XIII”); breach of implied warranty against the Retailers
(“Count XIV”); and breach of implied warranty against the
Manufacturers (“Count XV”).

[Id. at ¶¶ 108-233.]

The Complaint also includes specific allegations in
support of Plaintiffs’ request for punitive damages against
USPlabs, and Plaintiffs Fevella, Mariano, and Valdez’s request
against GNC.7

[Id. at ¶¶ 234-44.]

Plaintiffs ask for punitive

6

(...continued)
claims are against VS.
7

See Complaint at ¶¶ 45, 50, 55, 60, 65.

Plaintiffs Carlisle and Paio apparently do not seek
(continued...)
8

damages and treble damages as to Counts IV, V, VII, VIII, X, XI,
XIII, and XIV.

[Id. at pg. 85, Prayer for Relief ¶ e.]

Plaintiffs pray for the following relief as to all
counts and against all Defendants, jointly and severally: damages
- including past and future medical expenses, loss of past and
future earnings and/or profits, other economic losses; noneconomic damages - including physical pain, discomfort, and
emotional distress including fright, nervousness, anxiety, worry,
and apprehension; pre-judgment and post-judgment interest;
reasonable costs; and any other appropriate relief.

[Id. at pgs.

84-85, Prayer for Relief ¶¶ a-d, f.]
In the instant Motion, S.K. moves to dismiss this case
pursuant Fed. R. Civ. P. 12(b)(2) for lack of personal
jurisdiction, or in the alternative, for summary judgment
pursuant to Fed. R. Civ. P. 56.

[Mem. in Supp. of Motion at 2.]

S.K. asserts that it is a California company with no business
presence in Hawai`i, and it has never purposefully directed any
business or marketing activity toward Hawai`i.

As such, S.K.

argues that this Court does not have personal jurisdiction over
it, and therefore this Court must dismiss Plaintiffs’ claims
against it.

7

(...continued)
punitive damages against VS.

See Complaint at pg. 81.]
9

DISCUSSION
I.

Conversion of Motion to Dismiss
to Motion for Summary Judgment
S.K. filed its Motion pursuant to Rule 12(b)(2), which

allows for the filing of a motion to dismiss based on “lack of
personal jurisdiction.”

Generally, this Court’s scope of review

in considering a motion to dismiss is limited to the allegations
in the complaint.

See Daniels-Hall v. Nat’l Educ. Ass’n, 629

F.3d 992, 998 (9th Cir. 2010).8

However, S.K. submitted

additional materials, which the Court has considered.

This Court

therefore finds that its necessary to treat S.K.’s motion to
dismiss as a motion for summary judgment.

See Yamalov v. Bank of

Am. Corp., CV. No. 10-00590 DAE-BMK, 2011 WL 1875901, at *7 n.7
(D. Hawai`i, May 16, 2011) (citing Parrino v. FHP, Inc., 146 F.3d
699, 706 n.4 (9th Cir. 1998)).9
This Court now turns to the merits of S.K.’s Motion.
II.

Personal Jurisdiction
S.K. argues that summary judgment is proper because

this Court does not have personal jurisdiction over it.

This

8

“[A] court may consider evidence on which the complaint
necessarily relies if: (1) the complaint refers to the document;
(2) the document is central to the plaintiff’s claim; and (3) no
party questions the authenticity of the copy attached to the
12(b)(6) motion.” Daniels-Hall, 629 F.3d at 998 (citations and
internal quotation marks omitted).
9

Parrino was superseded by statute on other grounds, as
stated in Abrego Abrego v. The Dow Chemical Co., 443 F.3d 676,
681-82 (9th Cir. 2006) (per curiam).
10

district court evaluates the existence of personal jurisdiction
under the following standard:
A plaintiff has the burden of establishing
personal jurisdiction over a nonresident
defendant. See Love v. Associated Newspapers,
Ltd., 611 F.3d 601, 608 (9th Cir. 2010);
Schwarzenegger v. Fred Martin Motor Co., 374 F.3d
797, 800 (9th Cir. 2004). A plaintiff must
establish personal jurisdiction over a defendant
with respect to each claim. Action Embroidery
Corp. v. Atl. Embroidery, Inc., 368 F.3d 1174,
1180 (9th Cir. 2004) (“Personal jurisdiction must
exist for each claim asserted against a
defendant.” (citing Data Disc, Inc. v. Sys. Tech.
Assocs., Inc., 557 F.2d 1280, 1289 n.8 (9th Cir.
1977))).
When, as here, a district court acts on a
motion to dismiss without holding an evidentiary
hearing, a plaintiff need only make a prima facie
showing of jurisdictional facts to withstand the
motion to dismiss. Love, 611 F.3d at 608;
Schwarzenegger, 374 F.3d at 800. Although a
plaintiff may not simply rest on the bare
allegations of the complaint, uncontroverted
allegations in the complaint must be taken as
true, and conflicts between parties over
statements contained in affidavits or declarations
must be resolved in the plaintiff’s favor. See
Love, 611 F.3d at 608; Schwarzenegger, 374 F.3d at
800.
. . . .
The district court considers two factors
before exercising personal jurisdiction over a
nonresident defendant in a diversity of
citizenship case: “(1) whether an applicable state
rule or statute potentially confers jurisdiction
over the defendant; and (2) whether assertion of
such jurisdiction accords with constitutional
principles of due process.” Flynt Distrib. Co. v.
Harvey, 734 F.2d 1389, 1392 (9th Cir. 1984). “The
jurisdictional inquiries under state law and
federal due process merge into one analysis” when,
as here, the state’s long-arm statute is “co11

extensive with federal due process requirements.”
Roth v. Garcia Marquez, 942 F.2d 617, 620 (9th
Cir. 1991). See Cowan v. First Ins. Co. Of
Hawaii, 61 Haw. 644, 649, 608 P.2d 394, 399 (1980)
(Hawaii’s long-arm statute, Haw. Rev. Stat. § 63435, was adopted to expand the jurisdiction of
Hawaii’s courts to the extent permitted by the due
process clause of the Fourteenth Amendment). . . .
The Due Process Clause protects a person’s
“liberty interest in not being subject to the
binding judgments of a forum with which he has
established no meaningful ‘contacts, ties, or
relations.’” Burger King Corp. v. Rudzewicz, 471
U.S. 462, 471-72 (1985) (quoting Int’l Shoe Co. v.
Washington, 326 U.S. 310, 319 (1945)). The Due
Process Clause requires that defendants have
“certain minimum contacts with [Hawaii] such that
the maintenance of the suit does not offend
traditional notions of fair play and substantial
justice.” Int’l Shoe, 326 U.S. at 316; Data Disc,
Inc. v. Systems Tech. Assocs., Inc., 557 F.2d
1280, 1287 (9th Cir. 1977). The minimum contacts
required mean that the defendant must have
purposefully availed itself of the privilege of
conducting activities within the foreign
jurisdiction, thereby invoking the benefits and
protections of the foreign jurisdiction’s laws.
See Asahi Metal Indus. Co. v. Sup. Court of Cal.,
480 U.S. 102, 109 (1987). In applying Due Process
Clause requirements, courts have created two
jurisdictional concepts – general and specific
jurisdiction.
Maui Elec. Co. v. Chromalloy Gas Turbine, LLC, 942 F. Supp. 2d
1035, 1040-41 (D. Hawai`i 2013) (some alterations in Maui Elec.).
A.

General Jurisdiction
This Court first turns to whether it has general

jurisdiction over S.K..

“A court may exercise general

jurisdiction over the defendant when the defendant is a resident
or domiciliary of the forum state, or the defendant’s contacts
with the forum state are continuous, systematic, and
12

substantial.”

Id. at 1041 (some citations omitted) (citing

Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408,
414–16, 104 S. Ct. 1868, 80 L. Ed. 2d 404 (1984)).

In other

words, a court has “general jurisdiction over foreign
(sister-state or foreign-country) corporations to hear any and
all claims against them when their affiliations with the State
are so ‘continuous and systematic’ as to render them essentially
at home in the forum State.”

Daimler AG v. Bauman, 134 S. Ct.

746, 754 (2014) (citation and some quotation marks omitted).
S.K. has presented evidence that it: is not a citizen
of Hawai`i; lacks any business affiliations with the Hawai`i;
does not advertise in Hawai`i; owns no bank accounts, real
property, sales offices, or sales force in Hawai`i; and does not
engage in any direct sales in Hawai`i.

[Motion, Decl. of Sitesh

Patel (“Patel Decl.”) at ¶¶ 2-11.10]
Plaintiffs essentially concede that S.K. has no
physical presence in Hawai`i and that S.K. lacks the minimum
contacts necessary to establish general jurisdiction.

Plaintiffs

instead argue that this Court has specific jurisdiction over S.K.
purposefully availed itself of the forum by selling the Product
in Hawai`i.

Plaintiffs argue that S.K. did not merely release

the Product into the stream of commerce, it engaged in

10

Sitesh Patel is the Vice President of S.K.
at ¶ 1.]
13

[Patel Decl.

“additional, routine, systematic business practice of directly
shipping a significant portion of USPlabs’s products directly to
GNC.”

[Mem. in Opp. at 9.]
This Court FINDS that there are no genuine disputes of

material fact and, based on the undisputed record, S.K. did not
have continuous, systematic, and substantial contacts with
Hawai`i.

This Court therefore CONCLUDES that it does not have

general jurisdiction over S.K., and that S.K. is entitled to
judgment as a matter of law on the issue of general jurisdiction.
See Fed. R. Civ. P. 56(a) (stating that a party is entitled to
summary judgment “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law”).
This Court now turns to whether there is specific
jurisdiction.
B.

Specific Jurisdiction
In reviewing whether a court has specific jurisdiction

over a defendant, the Ninth Circuit has stated that:
This court uses the following three-part test
to analyze whether a party’s “minimum contacts”
meet the due process standard for the exercise of
specific personal jurisdiction:
(1) The non-resident defendant must
purposefully direct his activities or
consummate some transaction with the forum or
resident thereof; or perform some act by
which he purposefully avails himself of the
privilege of conducting activities in the
forum, thereby invoking the benefits and
14

protections of its laws; (2) the claim must
be one which arises out of or relates to the
defendant’s forum-related activities; and
(3) the exercise of jurisdiction must comport
with fair play and substantial justice, i.e.
it must be reasonable
Schwarzenegger, 374 F.3d at 802. “If any of the
three requirements is not satisfied, jurisdiction
in the forum would deprive the defendant of due
process of law.” Omeluk v. Langsten Slip &
Batbyggeri A/S, 52 F.3d 267, 270 (9th Cir. 1995).
While all three requirements must be met, this
court has stated that in its consideration of the
first two prongs, “[a] strong showing on one axis
will permit a lesser showing on the other.”
Yahoo! Inc. v. La Ligue Contre Le Racisme Et
L’Antisemitisme, 433 F.3d 1199, 1210 (9th Cir.
2006) (en banc). That means that a single forum
state contact can support jurisdiction if the
cause of action arises out of that particular
purposeful contact of the defendant with the forum
state. Id. (citing Lake v. Lake, 817 F.2d 1416,
1421 (9th Cir. 1987)). . . . This court has
referred to the second prong of the specific
jurisdiction test as a “but for” test. See Shute
v. Carnival Cruise Lines, 897 F.2d 377, 385 (9th
Cir. 1990), rev’d on other grounds, Carnival
Cruise Lines, Inc. v. Shute, 499 U.S. 585, 111 S.
Ct. 1522, 113 L. Ed. 2d 622 (1991). Under the
“but for” test, “a lawsuit arises out of a
defendant’s contacts with the forum state if a
direct nexus exists between those contacts and the
cause of action.” Fireman’s Fund Ins. Co. [v.
Nat’l Bank of Coops.], 103 F.3d [888,] 894 [(9th
Cir. 1996)]. . . .
In re W. States Wholesale Natural Gas Antitrust Litig., 715 F.3d
716, 741-42 (9th Cir. 2013) (some alterations in Western States).
“Once the Plaintiffs have shown that the exercise of personal
jurisdiction satisfies the first two prongs of the personal
jurisdiction test, the burden shifts to the defendant to make a
‘compelling case’ that the exercise of jurisdiction would be
15

unreasonable.”

Id. at 745 (quoting Burger King Corp. v.

Rudzewicz, 471 U.S. 462, 476–77, 105 S. Ct. 2174, 85 L. Ed. 2d
528 (1985)).
The Court finds that, even viewing the record in the
light most favorable to Plaintiffs, S.K.’s actions do not
sufficiently meet the three-prong test for specific jurisdiction.
See Maui Elec., 2015 WL 1442961, at *4 (stating that, in
considering a motion for summary judgment, “[a]ll evidence and
inferences must be construed in the light most favorable to the
nonmoving party” (citing T.W. Elec. Serv., Inc. v. Pac. Elec.
Contractors Ass’n, 809 F.2d 626, 631 (9th Cir. 1987))).

First,

Plaintiffs have failed to show how S.K. has “purposefully
avail[ed] [it]self of the privilege of conducting activities in
the forum.”

See id. at 741-42.

The Ninth Circuit has stated that a plaintiff may
satisfy the first prong by:
demonstrating that the defendant either
purposefully availed itself of the privilege of
conducting activities in the forum, or
purposefully directed its activities at the forum.
We have explained that although we have sometimes
used these two terms in shorthand fashion as a
single concept, they “are, in fact, two distinct
concepts.” Schwarzenegger, 374 F.3d at 802. We
have further explained that “[a] purposeful
availment analysis is most often used in suits
sounding in contract.” Id.; see also Burger King,
471 U.S. at 473, 475–76, 105 S. Ct. 2174; Hanson
v. Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228, 2
L. Ed. 2d 1283 (1958). By contrast, “[i]n tort
cases, we typically inquire whether a defendant
‘purposefully direct[s] his activities’ at the
16

forum state, applying an ‘effects’ test that
focuses on the forum in which the defendant’s
actions were felt, whether or not the actions
themselves occurred within the forum.” Yahoo!
Inc. v. La Ligue Contre Le Racisme, 433 F.3d 1199,
1206 (9th Cir. 2006) (en banc).
The “purposeful direction” or “effects” test
is based on Calder v. Jones, 465 U.S. 783, 104
S. Ct. 1482, 79 L. Ed. 2d 804 (1984). It
“requires that the defendant . . . have (1)
committed an intentional act, (2) expressly aimed
at the forum state, (3) causing harm that the
defendant knows is likely to be suffered in the
forum state.” Mavrix Photo[, Inc. v. Brand
Techs., Inc.], 647 F.3d [1218,] 1228 [(9th Cir.
2011)] (internal quotation marks omitted). Thus,
courts may exercise personal jurisdiction over a
defendant who engages in an intentional act that
causes harm in the forum state, even if that act
takes place outside of the forum state. See
Yahoo! Inc., 433 F.3d at 1206; Panavision [Int’l,
L.P. v. Toeppen], 141 F.3d [1316,] 1320 [(9th Cir.
1998)] (“It is not required that a defendant be
physically present or have physical contacts with
the forum, so long as his efforts are
‘purposefully directed’ toward forum residents.”).
Wash. Shoe Co. v. A-Z Sporting Goods Inc., 704 F.3d 668, 672-73
(9th Cir. 2012) (some alterations in Wash. Shoe) (footnote
omitted).
Plaintiffs allege in their Complaint that S.K.
purposefully availed itself of the benefits of conducting
business in Hawai`i when it placed the Product into the stream of
commerce, where it was foreseeable that it would reach Hawai`i
through GNC’s retail chain.

However, Defendants presented

evidence S.K. lacked any business connections with Hawai`i.
Patel Decl. at ¶¶ 2-11.

See

They also argue that Plaintiffs cannot

17

satisfy the more stringent stream of commerce “plus” theory of
purposeful direction toward the forum state.

See Asahi Metal

Indus. Co. v. Superior Court of Cal., Solano Cnty., 480 U.S. 102,
112 (1986) (O’Connor, J.).11

Plaintiffs have also been unable to

point to any specific actions pursuant to the Calder test.

While

S.K.’s manufacturing of the Product was intentional, Plaintiffs
have failed to show that S.K. “expressly aimed” the Product at
Hawai`i, or that S.K. knew - or reasonably should have known -

11

In Asahi, Justice O’Connor stated:
The “substantial connection,” Burger King, 471
U.S., at 475, 105 S. Ct., at 2184, between the
defendant and the forum State necessary for a
finding of minimum contacts must come about by an
action of the defendant purposefully directed
toward the forum State. Burger King, supra, 471
U.S., at 476, 105 S. Ct., at 2184; Keeton v.
Hustler Magazine, Inc., 465 U.S. 770, 774, 104 S.
Ct. 1473, 1478, 79 L. Ed. 2d 790 (1984). The
placement of a product into the stream of
commerce, without more, is not an act of the
defendant purposefully directed toward the forum
State. Additional conduct of the defendant may
indicate an intent or purpose to serve the market
in the forum State, for example, designing the
product for the market in the forum State,
advertising in the forum State, establishing
channels for providing regular advice to customers
in the forum State, or marketing the product
through a distributor who has agreed to serve as
the sales agent in the forum State. But a
defendant’s awareness that the stream of commerce
may or will sweep the product into the forum State
does not convert the mere act of placing the
product into the stream into an act purposefully
directed toward the forum State.

480 U.S. at 112 (some citations omitted).
18

that its actions would result in likely harm in the forum state.
S.K. denied any purposeful direction by presenting evidence that
it was merely a contracted manufacturer with no agency in the
sales and marketing or the Product.
The Court agrees, and finds that Plaintiffs have not
met the first prong of the specific jurisdiction test.
As noted previously, the second prong is a “but for”
test.

W. States, 715 F.3d at 742.

Since Plaintiffs have been

unable to make a prima facie showing that the S.K. purposefully
directed is activities toward Hawai`i, this Court finds that
Plaintiffs cannot establish that their claims would not have
arisen but for S.K.’s forum-related activities.
Finally, this Court finds that exercising specific
jurisdiction over the S.K. would be unreasonable based on the
current record.

The Ninth Circuit has stated:

This court considers the following seven factors
in determining whether the exercise of
jurisdiction would be reasonable:
(1) the extent of the defendant’s purposeful
interjection into the forum state, (2) the
burden on the defendant in defending in the
forum, (3) the extent of the conflict with
the sovereignty of the defendant’s state,
(4) the forum state’s interest in
adjudicating the dispute, (5) the most
efficient judicial resolution of the
controversy, (6) the importance of the forum
to the plaintiff’s interest in convenient and
effective relief, and (7) the existence of an
alternative forum.

19

Bancroft [& Masters, Inc. V. Augusta Nat’l Inc.],
223 F.3d [1082,] 1088 [(9th Cir. 2000)]. . . .
W. States, 715 F.3d at 745.

Because this Court has found that

S.K. has not purposefully interjected itself into the forum state
through its manufacturing responsibilities, and it has no
physical presence in Hawai`i, this Court also finds that S.K. has
presented a compelling case that the exercise of jurisdiction
over it in Hawai`i would be unreasonable.

The third and fifth

factors are considered neutral based on the parties’ United
States citizenship and the advent of modern technology.12

The

fourth factor, however, could possibly weigh in favor of
Plaintiffs, as Hawai`i has a “strong interest in providing an
effective means of redress for its residents who are tortiously
injured.”

Maui Elec., 942 F. Supp. 2d at 1045 (citation and

quotation marks omitted).

Further, “[a] state generally has a

‘manifest interest’ in providing its residents with a convenient
forum for redressing injuries inflicted by out-of-state actors.”
Barranco, 6 F. Supp. 3d at 1083 (citing Burger King, 471 U.S. at

12

This Court still considers the third factor in evaluating
challenges to personal jurisdiction, however, it is not the focus
of the analysis. See Barranco v. 3D Sys. Corp., 6 F. Supp. 3d
1068, 1083 (D. Hawai`i 2014) (“Moreover, the sovereignty of a
defendant’s state is not a significant consideration in actions
between citizens of the United States.” (citations and quotation
marks omitted)). Thus, this factor is neutral. See id. The
fifth factor focuses on the efficiency of judicial resolution
given the “location of the evidence and witnesses. This factor,
however, ‘is no longer weighed heavily given the modern advances
in communication and transportation.’” Maui Elec., 942 F. Supp.
2d at 1045 (citing and quoting Panavision, 141 F.3d at 1323-24).
20

473, 105 S. Ct. at 2174).

However, this general “manifest

interest” is juxtaposed with the sixth and seventh factors, which
looks to the effectiveness and availability of relief, and gives
“little weight to a plaintiff’s inconvenience.”

Spring Patents,

Inc. v. Avon Rubber & Plastics, Inc., 183 F. Supp. 2d 1198, 1208
(D. Hawai`i 2001) (“A court should place greater significance on
the possibility of effective relief.” (citing Core-Vent Corp. v.
Nobel Indus. AB, 11 F.3d 1482, 1489 (9th Cir. 1993)).

Moreover,

the seventh factor requires Plaintiffs to show the
“unavailability of an alternative forum.”

Maui Elec., 942 F.

Supp. 2d at 1045 (citing Core-Vent, 11 F.3d at 1490).

Since

Plaintiffs have not shown that their claim would be precluded in
any other forum that would provide effective relief, this Court
finds that the sixth and seventh factors do not weigh in favor of
Plaintiffs.

Even considering all of the factors in the light

most favorable to Plaintiffs, the Court finds that it would be
unreasonable to exercise specific jurisdiction.

This Court

therefore FINDS that there are no genuine disputes of material
fact as to the issue of specific jurisdiction, and CONCLUDES that
S.K. is entitled to judgment as a matter of law on that issue.
C.

Summary
Insofar as this Court has ruled that it has neither

general jurisdiction nor specific jurisdiction over S.K., this

21

Court CONCLUDES that it does not have personal jurisdiction over
S.K.
CONCLUSION
On the basis of the foregoing, S.K.’s Motion to Dismiss
or, in the Alternative, for Summary Judgment, filed December 30,
2014, is HEREBY GRANTED.

Insofar as this Court has granted

summary judgment in favor of S.K. based upon the Court’s
conclusion that it lacks personal jurisdiction over S.K., this
Court DIRECTS the Clerk’s Office to terminate S.K. as a party in
this case on May 21, 2015, unless Plaintiffs file a motion for
reconsideration of this order by May 18, 2015.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, April 30, 2015.

/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

MEREANE CARLISLE, ET AL. VS. USPLABS, LLC, ET AL.; CIVIL 14-00363
LEK-KSC; ORDER GRANTING DEFENDANT S.K. LABORATORIES, INC.’S
MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT

22