Commerce and Industry Insurance Company v. Durofix, Inc.

Filing 170

ORDER GRANTING SPECIALLY APPEARING THIRD-PARTY DEFENDANT'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION re 115 MOTION to Dismiss for Lack of Jurisdiction Specially Appearing Third-Party Defendant E-One Moli Energy Corp.'s Motion to Dismiss for Lack of Personal Jurisdiction filed by E-One Moli Energy Corp., re 154 MOTION to Dismiss for Lack of Jurisdiction Specially Appearing Third-Party Defendant E-One Moli Energy Corp.'s Motion to Dismiss Defe ndant Durofix, Inc.'s Third-Party Complaint for Lack of Personal Jurisdiction filed by E-One Moli Energy Corp.. Signed by JUDGE LESLIE E. KOBAYASHI on 04/18/2018. E-One's Motion to Dismiss for Lack of Personal Jurisdiction, filed January 25, 2018, is HEREBY GRANTED insofar as Durofix's Third-Party Complaint Against E-One Moli Energy Corp., filed February 2, 2018, [dkt. no. 118,] is HEREBY DISMISSED WITH PREJUDICE. E-One's Motion to Dismi ss Defendant Durofix, Inc.'s Third-Party Complaint for Lack of Personal Jurisdiction, filed April 3, 2018, [dkt. no. 154,] is HEREBY DENIED AS MOOT.E-One's Motion to Dismiss Defendant Regitar USA, Inc.'s Cross-Claim for Lack of Personal Jurisdiction, also filed April 3, 2018, [dkt. no. 155,] and Regitar's Motion to Dismiss for Lack of Personal Jurisdiction, filed April 4, 2018, [dkt.no. 159,] remain set for hearing on June 18, 2018 at 9:45 am. (eps, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
)
)
)
)
)
)
Plaintiff,
)
)
vs.
)
)
DUROFIX, INC.,
)
)
Defendant.
_____________________________ )
)
DUROFIX, INC.,
)
)
Defendant and
)
Third-Party
)
Plaintiff,
)
)
vs.
)
)
E-ONE MOLI ENERGY CORP.,
)
)
Third-Party
)
Defendant.
_____________________________ )
COMMERCE AND INDUSTRY
INSURANCE COMPANY, as
subrogee of Duane and Kelly
Roberts,

CIVIL 16-00111 LEK-RLP

ORDER GRANTING SPECIALLY APPEARING THIRD-PARTY
DEFENDANT’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION
Specially Appearing Third-Party Defendant E-One Moli
Energy Corp. (“E-One”) filed its Motion to Dismiss for Lack of
Personal Jurisdiction (“Motion”) on January 25, 2018.
no. 115.]

[Dkt.

Defendant/Third-Party Plaintiff Durofix, Inc.

(“Durofix”) filed its memorandum in opposition on February 12,
2018, and E-One filed its reply on February 16, 2018.
nos. 122, 123.]

[Dkt.

This matter came on for hearing on March 5,

2018.

On March 27, 2018, an entering order was issued ruling on

the Motion.
ruling.

[Dkt. no. 132.]

The instant Order supersedes that

E-One’s Motion is hereby granted for the reasons set

forth below.
BACKGROUND
On March 11, 2016, Plaintiff Commerce and Industry
Insurance Co. (“Commerce and Industry”), as subrogee of Duane and
Kelly Roberts (“Insureds”), filed its Complaint.

[Dkt. no. 1.]

On January 12, 2018, Commerce and Industry filed its First
Amended Complaint, which alleges a Durofix LED outlet light,
Model No. RL435, caused a fire on March 14, 2014, which damaged
the Insureds’ home in Kihei, Hawai`i (“Subject Light” and,
generally “RL435 LED Lights”).

[Dkt. no. 109 at ¶¶ 8-12.]

According to Durofix, the Subject Light “was designed,
manufactured and/or sold by others, including” Defendants Regitar
USA, Inc. (“Regitar”), Mobiletron Electronic Co., Ltd.
(“Mobiletron”), and Mobiletron Electronics (Ningbo) Co., Ltd.
(“Mobiletron Ningbo”).

[Id. at ¶ 14.]

The fire caused damage

requiring Commerce and Industry to pay $1,385,329.84 to the
Insureds.

[Id. at ¶ 16.]

As a result, Commerce and Industry has

become subrogated to the Insureds’ rights against the at-fault
parties.

[Id. at ¶ 17.]
On January 17, 2017, the magistrate judge granted

Durofix leave to file a third-party complaint.

2

[Minutes, dkt.

no. 47.]

On January 20, 23, and 25, 2017, respectively, Durofix

filed its Third-Party Complaint, First Amended Third-Party
Complaint, and Second Amended Third-Party Complaint against
E-One.

[Dkt. nos. 54, 56, 59.]

According to the Second Amended

Third-Party Complaint, E-One “manufactured, supplied,
distributed, and/or sold the battery” which caused the Subject
Light to catch fire.

[Dkt. no. 59 at ¶ 3.]

Durofix demands

contribution or indemnity from E-One for any judgment arising
from Commerce and Industry’s Complaint.

[Id. at ¶¶ 6-7.]

According to Durofix, the RL435 LED Lights were
manufactured by Mobiletron, a Taiwan corporation.

In March 2009,

Mobiletron purchased 300,000 lithium-ion batteries from E-One to
manufacture the RL435 LED Lights.

[Mem. in Opp., Decl. of Chad

P. Love (“Love Decl.”), Exh. 5 (Decl. of Isaac Shih (“Shih
Decl.”)) at ¶¶ 3-4.1]

Mobiletron distributed the RL435 LED

Lights to Costco Wholesale (“Costco”) in Washington and Alabama.
Costco distributed the RL435 LED Lights to its retail stores in
Hawai`i and sold the RL435 LED Lights to Hawai`i consumers.

[Id.

at ¶ 24.]

1

Isaac Shih is “the Representative and Officer of
Mobiletron Electronics Co., Ltd.” [Shih Decl. at ¶ 3.] The Shih
Declaration is silent as to any involvement of Mobiletron Ningbo.
E-One points out that Durofix is seeking to rely on Mobiletron’s
statements, and argues the Shih Declaration “is inadmissible
unsubstantiated hearsay from a witness with no personal
knowledge.” [Reply at 4 (citing Fed. R. Evid. 602, 701, 802).]
In light of the Court’s disposition of the Motion, E-One’s
evidentiary objections are not reached.
3

In the instant Motion, E-One argues the Second Amended
Third-Party Complaint must be dismissed for lack of personal
jurisdiction.

See Fed. R. Civ. P. 12(b)(2).

E-One states it is

a corporation formed under the laws of Taiwan.

Its corporate

headquarters and manufacturing facilities are located exclusively
in Taiwan.

E-One contends it has no contacts with Hawai`i, and

specifically states that, in Hawai`i, it has never:

manufactured

products; sold or distributed any products; had employees; been
licensed to do business; had an agent for service of process;
paid taxes; had a business address or telephone number; owned or
leased any real property; had a bank account; or consented to, or
waived, personal jurisdiction.

[Motion, Decl. of Yin-Chang Hsiao

(“Hsiao Decl.”) at ¶¶ 2-18.2]
STANDARD
Rule 12(b)(2) allows a defendant to assert the defense
of lack of personal jurisdiction by motion.

This Court has

stated:
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

2

Yin-Chang Hsiao is E-One’s associate general manager.
[Hsiao Decl. at ¶ 1.]
4

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.
Barranco v. 3D Sys. Corp., 6 F. Supp. 3d 1068, 1076 (D. Hawai`i
2014) (citation omitted).
DISCUSSION
I.

Preliminary Matters
Before addressing the merits of the Motion, the Court

addresses the filing of other relevant pleadings.

On January 4,

2018, Commerce and Industry was granted leave to file an amended
complaint adding Regitar, Mobiletron, and Mobiletron Ningbo as
defendants, and on January 12, 2018, filed its First Amended
Complaint.

[Dkt. nos. 108, 109.]

On February 2, 2018, a week

after E-One had filed the instant Motion, Durofix filed its
answer to the First Amended Complaint, and its Third-Party
Complaint Against E-One Moli Energy Corp. (“2/2/18 Third-Party
Complaint”).

[Dkt. nos. 117, 118].

The 2/2/18 Third-Party

Complaint was not mentioned in Durofix’s memorandum in

5

opposition, in E-One’s reply, or at the March 5, 2018 hearing on
the Motion.
In the 2/2/18 Third-Party Complaint, Durofix alleges
entitlement to contribution or indemnity from E-One for any
judgment arising from Commerce and Industry’s First Amended
Complaint.

[2/2/18 Third-Party Complaint at ¶¶ 5-7.]

Durofix

continues to allege the same basis for personal jurisdiction over
E-One.

Compare id. at ¶ 4 with Second Amended Third-Party

Complaint, filed 1/25/17 (dkt. no. 59), at ¶ 4.
“Because a party can waive personal jurisdiction, [a
court is] not required to consider it sua sponte.”

Pakootas v.

Teck Cominco Metals, Ltd., 452 F.3d 1066, 1076 (9th Cir. 2006).
E-One has not waived personal jurisdiction, and the parties have
fully briefed and argued the issue of whether Durofix has
established jurisdiction for purposes of its claims for
contribution and indemnification against E-One.

In addition, in

light of the filing of the 2/2/18 Third-Party Complaint, the
Second Amended Third-Party Complaint is considered to be nonexistent.

See Lacey v. Maricopa Cty., 693 F.3d 896, 925 (9th

Cir. 2012) (en banc) (stating that an “amended complaint
supersedes the original, the latter being treated thereafter as
non-existent” (citations and internal quotation marks omitted)).
The Court therefore exercises its discretion to consider whether
Durofix has established personal jurisdiction over E-One for

6

purposes of its 2/2/18 Third-Party Complaint.

See, e.g. Foley v.

Marquez, No. C 03-2481 SI, 2004 WL 603566, at *1 (N.D. Cal.
Mar. 22, 2004) (dismissing sua sponte action against certain
defendants for lack of personal jurisdiction).
II.

General Jurisdiction
“A court may assert 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.”

Goodyear Dunlop Tires Operations,

S.A. v. Brown, 564 U.S. 915, 919 (2011) (quoting International
Shoe Co. v. Washington, 326 U.S. 310, 317 (1945)).

But “‘mere

purchases [made in the forum State], even if occurring at regular
intervals, are not enough to warrant a State’s assertion of
[general] jurisdiction over a nonresident corporation in a cause
of action not related to those purchase transactions.’”

Id. at

929 (alterations in Goodyear) (quoting Helicopteros Nacionales de
Colombia, S.A. v. Hall, 466 U.S. 408, 418 (1984)).

According to

Durofix, certain power tools containing E-One batteries are sold
at The Home Depot in Honolulu, Hawai`i.

[Love Decl., Exh. 9

(Decl. of Marie Justine Ganoot (“Ganoot Decl.”)) at ¶ 4.3]

3

Marie Justine Ganoot, a paralegal for Durofix’s counsel,
conducted online research regarding where products containing
E-One batteries are sold in Hawai`i. [Ganoot Decl. at ¶¶ 1-2.]
The Ganoot Declaration was originally filed on December 14, 2017,
(continued...)
7

Durofix does not contend The Home Depot’s Hawai`i sales of
certain power tools are related to its cause of action against EOne.

Therefore, even regular sales of such power tools in

Hawai`i are insufficient to warrant an assertion of general
jurisdiction over E-One in Hawai`i.

See Goodyear, 564 U.S. at

929.
Durofix also points to E-One’s website.

The website is

accessible in Hawai`i and describes E-One as a leading battery
manufacturer, capable of supplying customers worldwide.
Decl., Exh. 7 (screenshots of E-One website).]

[Love

However, E-One’s

maintenance of a website accessible in Hawai`i is insufficient to
establish general jurisdiction in Hawai`i.

See CollegeSource,

Inc. v. AcademyOne, Inc., 653 F.3d 1066, 1075–76 (9th Cir. 2011)
(“If the maintenance of an interactive website were sufficient to
support general jurisdiction in every forum in which users
interacted with the website, the eventual demise of all
restrictions on the personal jurisdiction of state courts would
be the inevitable result.” (internal quotation marks and citation
omitted)).

Further, because regular purchases in the forum state

are insufficient to establish general jurisdiction, E-One’s
stated willingness to supply customers worldwide is likewise
insufficient to establish general jurisdiction in Hawai`i.

3

(...continued)
in connection with a motion to compel.
(citing Doc. #100-6).]
8

[Love Decl. at ¶ 9

See

Goodyear, 564 U.S. at 929.

Durofix has not shown E-One is

“essentially at home” in Hawai`i, and therefore has not shown an
assertion of general jurisdiction over E-One is warranted in the
forum of Hawai`i.

See id. at 919.

III. Specific Jurisdiction
Specific jurisdiction may be established by “the
commission of certain ‘single or occasional acts’ in a State
. . . sufficient to render a corporation answerable in that State
with respect to those acts, though not with respect to matters
unrelated to the forum connections.”
International Shoe, 326 U.S. at 318).

Id. at 923 (quoting
In evaluating specific

jurisdiction, the United States Supreme Court
has inquired whether there was “some act by which
the defendant purposefully avail[ed] itself of the
privilege of conducting activities within the
forum State, thus invoking the benefits and
protections of its laws.” Hanson v. Denckla, 357
U.S. 235, 253, 78 S. Ct. 1228, 2 L. Ed.2d 1283
(1958). See, e.g., World–Wide Volkswagen Corp. v.
Woodson, 444 U.S. 286, 287, 297, 100 S. Ct. 559,
62 L. Ed. 2d 490 (1980) (Oklahoma court may not
exercise personal jurisdiction “over a nonresident
automobile retailer and its wholesale distributor
in a products-liability action, when the
defendants’ only connection with Oklahoma is the
fact that an automobile sold in New York to New
York residents became involved in an accident in
Oklahoma”); Burger King Corp. v. Rudzewicz, 471
U.S. 462, 474–475, 105 S. Ct. 2174, 85 L. Ed. 2d
528 (1985) (franchisor headquartered in Florida
may maintain breach-of-contract action in Florida
against Michigan franchisees, where agreement
contemplated on-going interactions between
franchisees and franchisor’s headquarters); Asahi
Metal Industry Co. v. Superior Court of Cal.,
Solano Cty., 480 U.S. 102, 105, 107 S. Ct. 1026,
9

94 L. Ed. 2d 92 (1987) (Taiwanese tire
manufacturer settled product liability action
brought in California and sought indemnification
there from Japanese valve assembly manufacturer;
Japanese company’s “mere awareness . . . that the
components it manufactured, sold, and delivered
outside the United States would reach the forum
State in the stream of commerce” held insufficient
to permit California court’s adjudication of
Taiwanese company’s cross-complaint); id., at 109,
107 S. Ct. 1026 (opinion of O’Connor, J.); id., at
116–117, 107 S. Ct. 1026 (Brennan, J., concurring
in part and concurring in judgment).
Id. at 924-25 (alterations in Goodyear) (some citations omitted).
Durofix argues specific jurisdiction is established
because, when E-One placed its batteries into the stream of
commerce, E-One knew some would be purchased or used by consumers
in Hawai`i.

Specifically, Durofix asserts:

when E-One sold

300,000 batteries to Mobiletron, E-One knew Mobiletron planned to
ship the assembled RL435 LED Lights to Costco, which would
distribute the RL435 LED Lights in Hawai`i.
¶¶ 10, 16-17.]

[Shih Decl. at

Durofix does not contend E-One brought the RL435

LED Lights to Hawai`i or sold them directly to Hawai`i consumers.
The foreseeability to E-One that consumers would bring
any of the RL435 LED Lights to Hawai`i is insufficient to
establish specific jurisdiction.

See World-Wide Volkswagen, 444

U.S. at 297 (“the foreseeability . . . that a product will find
its way into the forum State” is not sufficient to establish
specific jurisdiction).

In World-Wide Volkswagen, consumers

purchased an automobile and drove it to forum state.

10

Id. at 288.

Further, specific jurisdiction is not established when a foreign
manufacturer’s forum contacts are limited to knowing others will
distribute its product in the forum state.

See Williams v.

Yamaha Motor Co., 851 F.3d 1015, 1023 & n.3 (9th Cir. 2017).
In Williams, the Ninth Circuit stated exercising
specific jurisdiction
over a non-resident defendant requires that the
defendant “have certain minimum contacts . . .
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, 66 S. Ct. 154 (internal quotation marks
omitted). In order for a court to have specific
jurisdiction over a defendant, “the defendant’s
suit-related conduct must create a substantial
connection with the forum State.” Walden v.
Fiore, ––– U.S. ––––, 134 S. Ct. 1115, 1121, 188
L. Ed. 2d 12 (2014). The relationship between the
defendant and the forum state “must arise out of
contacts that the ‘defendant [itself]’ creates
with the forum State.” Id. at 1122 (quoting
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475,
105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985)).
Additionally, the requisite “minimum contacts”
must be “with the forum State itself, not . . .
with persons who reside there.” Id.
We will exercise specific jurisdiction over a
non-resident defendant only when three
requirements are satisfied: (1) the defendant
either “purposefully direct[s]” its activities or
“purposefully avails” itself of the benefits
afforded by the forum’s laws; (2) the claim
“arises out of or relates to the defendant’s
forum-related activities; and (3) the exercise of
jurisdiction [] comport[s] with fair play and
substantial justice, i.e., it [is] reasonable.”
Dole Food Co. v. Watts, 303 F.3d 1104, 1111 (9th
Cir. 2002).
Id. at 1022–23 (alterations in Williams).

11

The first Williams prong, purposeful direction or
targeting of the forum, is not satisfied.

In Williams, the

plaintiffs sued the foreign manufacturer of a defective boat
motor and its wholly-owned United States subsidiary and
distributor.

Id. at 1019.

The foreign manufacturer itself had

no contacts with the forum state, aside from its ties to the
domestic distributor.

Id. at 1023.

The Ninth Circuit held a

domestic distributor’s forum contacts are not automatically
attributed to its foreign parent corporation.

Id. at 1024-25.

The pertinent inquiry is whether the foreign manufacturer itself
has purposely directed any activity at the forum state, such as
by engaging in solicitation or promotional conduct targeting the
forum state, or by actively directing the efforts of forum state
distributors.

Id. at 1023 & n.3.

The Hawai`i contacts of other corporations, which
distributed the RL435 LED Lights, are not automatically
attributed to E-One.

See id. at 1023-25.

RL435 LED Lights were not agents of E-One.4

4

Distributors of the
See id. at 1024-25.

Williams did not foreclose the theoretical possibility
that the forum contacts of a domestic subsidiary could be
attributed to its foreign parent on an agency theory. See 851
F.3d at 1024-25 (declining to announce a standard for
sufficiently establishing such an agency theory, but stating that
the standard would at least require “the parent company [to] have
the right to substantially control its subsidiary’s activities”).
In this case, Durofix does not contend, or present evidence
showing, that the distributors of the RL435 LED Lights were
agents of E-One.
12

At most, Durofix shows E-One placed its batteries into the stream
of commerce and expected to benefit from other corporations’
plans to sell the RL435 LED Lights in Hawai`i.

Without more,

this does not show E-One purposefully directed any activity at
Hawai`i and is insufficient to satisfy the first Williams prong.
See id. at 1023 (a defendant’s forum contacts “must arise out of
contacts that the ‘defendant [itself]’ creates with the forum
State” (alteration in Williams) (quoting Walden, 134 S. Ct. at
1122)).

Because all three of the Williams prongs must be met to

establish specific jurisdiction, it is not necessary to address
the second and third prongs.

Durofix has failed to establish

specific jurisdiction over E-One.
Because Durofix fails to establish either general
jurisdiction or specific jurisdiction over E-One, its 2/2/18
Third-Party Complaint must be dismissed.

See Rule 12(b)(2).

Because any amendment would be futile, the dismissal must be with
prejudice.

See Sonoma Cty. Ass’n of Retired Emps. v. Sonoma

Cty., 708 F.3d 1109, 1118 (9th Cir. 2013) (“As a general rule,
dismissal without leave to amend is improper unless it is clear,
upon de novo review, that the complaint could not be saved by any
amendment.” (brackets, citation and internal quotation marks
omitted)).

13

CONCLUSION
On the basis of the foregoing, E-One’s Motion to
Dismiss for Lack of Personal Jurisdiction, filed January 25,
2018, is HEREBY GRANTED insofar as Durofix’s Third-Party
Complaint Against E-One Moli Energy Corp., filed February 2,
2018, [dkt. no. 118,] is HEREBY DISMISSED WITH PREJUDICE.
E-One’s Motion to Dismiss Defendant Durofix, Inc.’s Third-Party
Complaint for Lack of Personal Jurisdiction, filed April 3, 2018,
[dkt. no. 154,] is HEREBY DENIED AS MOOT.
E-One’s Motion to Dismiss Defendant Regitar USA, Inc.’s
Cross-Claim for Lack of Personal Jurisdiction, also filed
April 3, 2018, [dkt. no. 155,] and Regitar’s Motion to Dismiss
for Lack of Personal Jurisdiction, filed April 4, 2018, [dkt.
no. 159,] remain set for hearing on June 18, 2018 at 9:45 am.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, April 18, 2018.

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

COMMERCE AND INDUSTRY INSURANCE COMPANY VS. DUROFIX, ETC; CIVIL
16-00111 LEK-RLP; ORDER GRANTING SPECIALLY APPEARING THIRD-PARTY
DEFENDANT’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION

14