Bralich v. Sullivan et al

Filing 139

ORDER GRANTING DEFENDANTS STANFORD UNIVERSITY AND NUANCE COMMUNICATION, INC.'S MOTIONS TO DISMISS re 12 MOTION to Dismiss, re 15 MOTION to Dismiss. Signed by JUDGE ALAN C. KAY on 04/23/2018. Th e Court GRANTS Defendants Stanford University and Nuance Communication's Motions to Dismiss, ECF Nos. 12, 15. Both Stanford and Nuance are DISMISSED WITH PREJUDICE for lack of personal jurisdiction, subject to discovery revealing a basis for per sonal jurisdiction over them consistent with the Court's discussion above regarding the elements of personal jurisdiction. The Court previously granted Plaintiff leave to file an amended complaint to add Twitter back as a defendant and to add ress the deficiencies noted in the Salesforce Order. See generally ECF Nos. 130 (granting leave to amend to add Twitter), 134 (Salesforce Order). The Court now specifies that Plaintiff is GRANTED 30 days from the date of this Order to file an ame nded complaint. In amending, Plaintiff should not include any claims or any defendants who have been dismissed with prejudice. (eps, )COURTS CERTIFICATE of Service - Non-Registered CM/ECF Participants have been served by First Class Mail to: Philip A. Bralich; 815 Filmore St; Monterey, CA 93940 and William O'Grady; 6770 Hawaii Kai Dr #709; Honolulu, HI 96825 to the addresses of record listed on the Notice of Electronic Filing (NEF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
)
)
)
Plaintiff,
)
)
vs.
) Civ. No. 17-00547 ACK-RLP
)
BARRY A. SULLIVAN, ESQ.; MARK )
PIESNER; CHRIS FRY; JOHN
)
)
BATALI; WILLIAM O’GRADY;
PETER MORRELI; CRAIG
)
)
WEISSMAN; SAM PULLARA; SCOTT
ZIEGLER; TWITTER; THROWNET A. )
CA-CORP.; THROWNET B. MA)
CORP.; SALESFORCE.COM INC.;
)
MICROSOFT; STANFORD
)
)
UNIVERSITY; NUANCE
)
COMMUNICATIONS,
)
Defendants.
)
)
PHILIP BRALICH, PH.D,

ORDER GRANTING DEFENDANTS STANFORD UNIVERSITY AND NUANCE
COMMUNICATION, INC.’S MOTIONS TO DISMISS
For the reasons set forth below, the Court GRANTS
Defendants Stanford University and Nuance Communications’
Motions to Dismiss, ECF Nos. 12, 15.

Both Stanford and Nuance

are DISMISSED WITH PREJUDICE for lack of personal jurisdiction,
subject to discovery showing that Stanford or Nuance committed
acts which would establish either general or specific personal
jurisdiction consistent with the Court’s discussion of personal
jurisdiction in this Order.

If the Court had personal

jurisdiction over them, it would be inclined to dismiss the

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RICO, fraud, and conspiracy claims against Stanford and Nuance,
as it does not appear Plaintiff has a factual basis for
plausibly stating such claims against them at this time.
FACTUAL AND PROCEDURAL BACKGROUND
This case has an extensive factual and procedural
background, with which the Court and the parties are all
familiar.

The Court incorporates the factual and procedural

background sections of its prior Order from April 10, 2018
addressing the motions and joinder by Defendants Salesforce.com,
Craig Weissman, Chris Fry, and Microsoft, ECF No. 134,
(“Salesforce Order”), and declines to repeat those sections here
except as relevant.
Plaintiff alleges that Defendants Stanford University
(“Stanford”) and Nuance Communications, Inc. (“Nuance”) were
both “named as participants in the theft, conspiracy,
conversion, chain of misappropriation, and fraud by Sullivan.”
Third Am. Compl. ¶¶ 12, 62, 191, ECF No. 1-5 (“TAC”).

The

apparent basis of these allegations is Exhibit L to the Third
Amended Complaint, a print-out of a ZoomInfo.com company profile
for Thrownet, as of an unknown date.

See TAC ¶ 191 & Ex. L.

The Court notes that in quoting this exhibit in another
allegation, Plaintiff does not mention Stanford or Nuance.
id. ¶ 103.

See

Nuance also allegedly participated in an

international virtual reality conference in 1998 where Plaintiff
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won first prize for “Best Innovation.”

Id. ¶ 72

Stanford and Nuance both filed motions to dismiss,
which were reinstated in the instant case.
(“Stanford Mot.”), 15 (“Nuance Mot.”).

See ECF Nos. 8, 12

Plaintiff’s previously

filed responses were also reinstated in this case.

See ECF Nos.

8, 20 (“Opp. to Stanford”), 21 (“Opp. to Nuance”).

Plaintiff

also filed a “Further Response and Further Evidence to Counter
Initial Motions,” ECF No. 92 (“Pl. Supp. Resp.”), which this
Court has declined to strike.

See Salesforce Order at 8 n.4.

Replies were filed on April 9, 2018.

ECF Nos. 131 (“Stanford

Reply”), 133 (“Nuance Reply”). 1
The Court held a hearing on Stanford and Nuance’s
Motions on April 23, 2018.
STANDARD
Federal Rule of Civil Procedure 12(b)(6) authorizes
the Court to dismiss a complaint that fails “to state a claim
upon which relief can be granted.”

Fed. R. Civ. P. 12(b)(6).

Rule 12(b)(6) is read in conjunction with Rule 8(a), which
requires only “a short and plain statement of the claim showing
that the pleader is entitled to relief.”
8(a)(2).

Fed. R. Civ. P.

The Court may dismiss a complaint either because it

1

Contrary to Stanford’s Reply, Plaintiff did oppose Stanford’s
motion to dismiss, albeit briefly, but filed his opposition
while this case was first removed, well in advance of the
required deadline. See Salesforce Order at 8 & n.3.
- 3 -

lacks a cognizable legal theory or because it lacks sufficient
factual allegations to support a cognizable legal theory.
Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.
1988).
In resolving a Rule 12(b)(6) motion, the Court must
construe the complaint in the light most favorable to the
plaintiff and accept all well-pleaded factual allegations as
true.

Sateriale v. R.J. Reynolds Tobacco Co., 697 F.3d 777, 783

(9th Cir. 2012).

The complaint “must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)).

“The plausibility standard . . . asks for more than a

sheer possibility that a defendant has acted unlawfully.”

Id.

“Where a complaint pleads facts that are ‘merely consistent
with’ a defendant’s liability, it ‘stops short of the line
between possibility and plausibility of entitlement to relief.’”
Id. (quoting Twombly, 550 U.S. at 557).
Pro se pleadings and briefs are to be construed
liberally.

Balistreri, 901 F.2d at 699.

However, “a pro se

litigant is not excused from knowing the most basic pleading
requirements.”

Am. Ass’n of Naturopathic Physicians v.

Hayhurst, 227 F.3d 1104, 1107 (9th Cir. 2000).

Before a

district court may dismiss a pro se complaint the court must
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provide the pro se litigant “with notice of the deficiencies in
his complaint in order to ensure that the litigant uses the
opportunity to amend effectively.”

Akhtar v. Mesa, 698 F.3d

1202, 1212 (9th Cir. 2012) (citation omitted).

However, the

court may deny a pro se litigant leave to amend where amendment
would be futile.

Flowers v. First Hawaiian Bank, 295 F.3d 966,

976 (9th Cir. 2002) (citation omitted).
DISCUSSION
Both Stanford and Nuance raise the issue of whether
Plaintiff has established personal jurisdiction over them, as
well as whether Plaintiff has stated claims for RICO,
conspiracy, and fraud.

See generally Stanford Mot.; Nuance Mot.

Nuance also contests Plaintiff’s ability to bring a patent
infringement claim.

Nuance Mot. at 5.

The Court has already

addressed the arguments Nuance raises regarding the
recoverability of patent damages and Plaintiff’s standing for a
patent claim in its prior Order and dismissed Plaintiff’s patent
infringement claims with prejudice.
31.

See Salesforce Order at 18-

The Court declines to repeat its discussion here and will

only briefly address Nuance’s suggestion that because Plaintiff
has no standing for a patent infringement claim, he also “has no
standing to assert claims sounding in fraud, conspiracy,
conversion, and/or chain of misappropriation resulting from the
alleged patent infringement.”

Nuance Mot. at 5.
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First, to the extent that these claims belong to Ergo,
rather than Plaintiff, Ergo currently lacks capacity to bring
suit.

See Salesforce Order at 31.

In addition, the Court has

not determined whether Plaintiff would have standing for a
patent infringement claim, but even if it had, such a conclusion
would not necessarily be dispositive of standing for the other
claims.

Standing is analyzed on a claim by claim basis.

See

California ex rel. Imperial Cty. Air Pollution Control Dist. v.
U.S. Dep’t of the Interior, 767 F.3d 781, 789 (9th Cir. 2014)
(citing Lewis v. Casey, 518 U.S. 343, 358 n.6 (1996)).

If

Plaintiff’s theory of standing and injury for patent
infringement and the other claims was similar, the same
determination might result.

However, even if Plaintiff has to

substantively show patent infringement occurred in order to
prove his other claims, his standing for fraud, conversion,
misappropriation or conspiracy claims is not necessarily
controlled by or dependent on having standing for patent
infringement, especially if his claimed injury is different.
Nuance’s unsupported and unexplained assertion that Plaintiff
lacks standing for any claim “resulting from an alleged patent
infringement,” Nuance Mot. at 5, does not provide a sufficient
basis for the Court to conclude that this is the case.

Thus, to

the extent that Nuance is seeking to dismiss these other claims
for lack of standing, the Court DENIES Nuance’s Motion.
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The Court will next turn to the issue of personal
jurisdiction before briefly addressing Nuance and Salesforce’s
arguments about particular claims.
I.

Personal Jurisdiction 2
“Where a defendant moves to dismiss a complaint for

lack of personal jurisdiction, the plaintiff bears the burden of
demonstrating that jurisdiction is appropriate.”

Schwarzenegger

v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004)).
“Where, as here, the motion is based on written materials rather
than an evidentiary hearing, the plaintiff need only make a
prima facie showing of jurisdictional facts.”

Id. (internal

citation and quotation omitted).
“Federal courts apply state law to determine the
bounds of their jurisdiction over a party.”

Williams v. Yamaha

Motor Co., 851 F.3d 1015, 1020 (9th Cir. 2017) (citing Fed. R.

2

The Court notes that in his opposition to Stanford’s Motion,
Plaintiff states that “[w]hile the Court may not be able to
assert Personal Jurisdiction over Stanford, Diversity
Jurisdiction does apply in this case....” Opp. to Stanford at
2. In his opposition to Nuance’s motion, Plaintiff does not
mention Nuance by name in discussing personal jurisdiction. See
Opp. to Nuance at 8-14. However, the Court reads these filings
together with Plaintiff’s supplemental response, which does
mention Stanford and Nuance by name, albeit briefly. See Pl.
Supp. Resp. at 6-7. The Court therefore will construe Plaintiff
as attempting to establish personal jurisdiction over both
Nuance and Stanford here, notwithstanding the paucity of the
arguments in his Oppositions.
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Civ. P. 4(k)(1)(A)). 3

Hawaii’s long-arm statute allows service

on a defendant to the full extent permissible by the Due Process
Clause of the Fourteenth Amendment of the U.S. Constitution.
Kowalski v. Anova Food, LLC, Civ. No. 11-00795 HG-RLP, 2012 WL
3308884, at *3 (D. Haw. Aug. 10, 2012) (citing Haw. Rev. Stat.
(“HRS”) § 634-35 and Cisneros v. Trans Union, LLC, 293 F. Supp.
2d 1156, 1164 (D. Haw. 2003)).

As such, this Court need only

decide whether federal constitutional due process permits the
exercise of personal jurisdiction over Defendants. 4
Schwarzenegger, 374 F.3d at 800-01.

See

“A court’s exercise of

personal jurisdiction over a nonresident defendant may be either
general or specific.”

Doe v. Am. Nat’l Red Cross, 112 F.3d

1048, 1050 (9th Cir. 1997).

“Each defendant’s contacts with the

forum State must be assessed individually.”

Calder v. Jones,

465 U.S. 783, 790 (1984).
A. Consent to Personal Jurisdiction
In his Opposition to Nuance’s Motion, Plaintiff makes
several arguments which he suggests show that Nuance, as well as
3

As the Court has previously dismissed Plaintiff’s patent
infringement claims with prejudice, the Court applies Ninth
Circuit law, rather than Federal Circuit law. See Salesforce
Order at 11-12 (Federal Circuit law on personal jurisdiction
only applies to claims intimately linked with patent law).
4
The Court therefore need not address any argument Plaintiff is
attempting to make directly under Hawaii’s Long-Arm Statute.
See Opp. to Nuance at 14 (quoting HRS § 634-35 and stating that
the defendants all “participated in the torts and do conduct
business in Hawaii.”).
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the other corporate and institutional defendants, have consented
to personal jurisdiction in Hawaii.

See generally Opp. to

Nuance at 8-14.
Plaintiff first states that aside from Microsoft who
entered a special appearance, the other non-resident defendants
waived their right to object to personal jurisdiction by
entering general appearances.

Id. at 9.

However, the

distinction between special and general appearances has been
eliminated; Rule 12 makes no reference to either and instead
makes clear that no defense is waived by joining it with any
other defense.

See 5B Wright & Miller, Fed. Prac. & Proc. Civ.

§ 1344 (3d ed.); see also Romero v. Star Markets, Ltd., 82 Haw.
405, 415, 922 P.2d 1018, 1028 (Haw. Ct. App. 1996) (holding that
the distinction between special and general appearances has also
been eliminated in the Hawaii rules such that a party need not
make a special appearance to assert lack of personal
jurisdiction).

Rather, only a party who fails to dispute

personal jurisdiction in making a general appearance or
responsive pleading will waive such defense.

See Benny v.

Pipes, 799 F.2d 489, 492 (9th Cir. 1986), amended, 807 F.2d 1514
(9th Cir. 1987) (“A general appearance or responsive pleading by
a defendant that fails to dispute personal jurisdiction will
waive any defect in service or personal jurisdiction.” (citing
Fed. R. Civ. P. 12(h)(1))).

Because both Stanford and Nuance
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have asserted the lack of personal jurisdiction in their motions
to dismiss, Stanford Mot. at 7-14; Nuance Mot. at 4, they have
not waived the defense of personal jurisdiction despite making
general appearances.
Plaintiff next seems to suggest that by registering to
do business in Hawaii, the corporate defendants may have
consented to jurisdiction through the designation of an agent
for service of process and/or through a possible written consent
to jurisdiction.

See Opp. to Nuance at 13.

The Ninth Circuit

has suggested that “[i]t is an open question whether...a state
may require a corporation to consent to general jurisdiction as
a condition of registering to do business in the state.”

See AM

Trust v. UBS AG, 681 F. App’x 587, 588-89 (9th Cir. 2017).
However, Plaintiff has pointed to no Hawaii statute, nor has the
Court been able to locate one, requiring such consent as a
condition of registering to do business in Hawaii.

Indeed,

Hawaii specifically provides that “[t]he appointment or
maintenance of a registered agent in the State does not by
itself create the basis for personal jurisdiction over the
represented entity in the State.”

HRS § 425R-12.

As such,

regardless of whether Stanford or Nuance has a registered agent

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in Hawaii, 5 the existence of such agent alone appears
insufficient to establish personal jurisdiction.
Plaintiff also suggests that there may be written
consents to personal jurisdiction in Hawaii, the existence of
which could be revealed in discovery.

Opp. to Nuance at 13.

The existence of such consents does not appear to be anything
more than speculation on Plaintiff’s part.

In the first place,

the Court has been unable to locate any Hawaii authority
providing for or requiring such consents.

Even if such

authority existed, it would make little sense to not make such
consents publicly available.

If non-public consents existed, it

would require all plaintiffs to engage in jurisdictional
discovery to determine whether any given corporate defendant had
been required to consent to personal jurisdiction here.

Such a

result would hardly be efficient and would rather seem to defeat
the apparent purpose of requiring such consents in the first
place: making personal jurisdiction simple to establish.
Even were the Court to construe Plaintiff’s suggestion

5

Based on the Hawaii Business Registration Division database,
Stanford does not appear to be registered in Hawaii, but Nuance
is a registered foreign profit corporation whose agent is the
Corporation Company. See
https://hbe.ehawaii.gov/documents/business.html?fileNumber=41552
F1 (last accessed April 11, 2018). In the Salesforce Order, the
Court found it appropriate to take judicial notice of
information in this database, Salesforce Order at 29 n.11, and
likewise finds it appropriate here.
- 11 -

that these consents exist as a request for jurisdictional
discovery, such a request can only be granted “where pertinent
facts bearing on the question of jurisdiction are controverted
or where a more satisfactory showing of the facts is necessary.”
Butcher’s Union Local No. 498, United Food & Commercial Workers
v. SDC Inv., Inc., 788 F.2d 535, 540 (9th Cir. 1986) (internal
citation and quotation omitted).

“The trial court still has

broad discretion to permit or deny discovery, however, and its
decision will not be reversed except upon the clearest showing
that denial of discovery results in actual and substantial
prejudice to the complaining litigant.”
and quotation omitted).

Id. (internal citation

A stated “belie[f]” that discovery will

enable a plaintiff to demonstrate personal jurisdiction
constitutes “speculation [which] does not satisfy the
requirement that [he] make ‘the clearest showing’ of actual and
substantial prejudice.”

Id.

Plaintiff has made no showing sufficient for the Court
to delay a decision on personal jurisdiction in order to permit
jurisdictional discovery regarding the existence of possible
written consents to jurisdiction.

Plaintiff has not even stated

that he believes such consents exist, and admits that he “is
unaware at this point” if they exist or not.
13.

Opp. to Nuance at

Such a statement is even more speculative than the “belief”

found insufficient in Butcher’s Union.
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The Court is not

inclined to permit a fishing expedition into the existence of
such consents in the absence of any showing that Hawaii requires
such consents in the first place, much less keeps any such
consents non-public.
The Court therefore concludes that Plaintiff has made
no showing that either Stanford or Nuance has consented to
personal jurisdiction in Hawaii or that the Court should delay a
decision on personal jurisdiction to enable Plaintiff to engage
in discovery on this subject.
B. General Jurisdiction
Plaintiff also contends that there is general
jurisdiction over Nuance and Stanford, arguing that that the
state court erred in previously dismissing other defendants by
“apply[ing] the principle of specific personal jurisdiction but
ignor[ing] the general jurisdiction under which this case
falls.” 6

See Opp. to Nuance at 8.

6

Plaintiff also asks this Court to “reverse the findings of the
lower court on the matter of personal jurisdiction for all
defendants” based on his arguments here. Opp. to Nuance at 8.
The Court first notes that the state court is not a lower court
to this one; as the Supreme Court has recognized, state courts
have coequal stature with federal courts. Ruhrgas AG v.
Marathon Oil Co., 526 U.S. 574, 587-88 (1999) (recognizing that
for questions of subject-matter jurisdiction “both expedition
and sensitivity to state court’s coequal stature should impel
the federal court to dispose of that issue first.”). This Court
also does not sit in review of state court decisions and has no
power to reverse any decision made by the state court in this
matter. See Kougasian v. TMSL, Inc., 359 F.3d 1136, 1139 (9th
(Continued...)
- 13 -

Plaintiff appears to suggest that general jurisdiction
exists based on a “stream of commerce” theory and the test for
minimum contacts based on Internet presence established in Zippo
Manufacturing Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119
(W.D. Pa. 1997).
at 6-8.

See Opp. to Nuance at 12-13; Pl. Supp. Resp.

However, both of these tests are tests of specific, not

general jurisdiction.

The Ninth Circuit has stated that the

Supreme Court has “reject[ed] [] the ‘stream of commerce’ theory
for general jurisdiction.”

Williams, 851 F.3d at 1022 n.1

(citing Goodyear Dunlop Tires Operations, S.A. v. Brown, 564
U.S. 915, 927-29 (2011)); see also Haw. Airboards, LLC v.
Northwest River Supplies, Inc., 887 F. Supp. 2d 1068, 1076 n.3
(D. Haw. 2012) (“The stream of commerce theory is applicable
only to specific jurisdiction, not general jurisdiction.”).

The

Ninth Circuit has also specifically concluded that the Zippo
test, while followed in this circuit, is a test of specific, not
general, jurisdiction.

See Mavrix Photo, Inc. v. Brand Techs.,

Inc., 647 F.3d 1218, 1226-27 (9th Cir. 2011) (finding that
Cir. 2004) (lower federal courts are impliedly prohibited from
hearing an appeal of a state court judgment, as 28 U.S.C. § 1257
only authorizes the U.S. Supreme Court to do so); MacKay v.
Pfeil, 827 F.2d 540, 543 (9th Cir. 1987) (per curiam) (“Federal
district courts, as courts of original jurisdiction, may not
serve as appellate tribunals to review errors allegedly
committed by state courts.”) (emphasis in original). To the
extent the state court dismissed certain parties for lack of
personal jurisdiction without prejudice, the Court may consider
those issues if properly presented.
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operation of even a highly interactive website does not confer
general jurisdiction as the Zippo test was formulated in the
context of specific jurisdiction).

As such, neither of these

tests establishes general jurisdiction, and the Court only will
consider them below with respect to specific jurisdiction.
The Court thus turns to whether Plaintiff has alleged
any facts supporting the existence of general jurisdiction
outside of the “stream of commerce” and Zippo theories.

“For

general jurisdiction to exist over a nonresident defendant...the
defendant must engage in “‘continuous and systematic general
business contacts’ that ‘approximate physical presence’ in the
forum state.”

Schwarzenegger, 374 F.3d at 801 (quoting

Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408,
416 (1984) and Bancroft & Masters, Inc. v. Augusta Nat’l, Inc.,
223 F.3d 1082, 1086 (9th Cir. 2000)).

“General jurisdiction []

calls for an appraisal of a corporation’s activities in their
entirety, nationwide and worldwide.

A corporation that operates

in many places can scarcely be deemed at home in all of them.”
Daimler AG v. Bauman, 571 U.S. 117, 139 n.20 (2014).

“This is

an exacting standard, as it should be, because a finding of
general jurisdiction permits a defendant to be haled into court
in the forum state to answer for any of its activities anywhere
in the world.”

Schwarzenegger, 374 F.3d at 801.

Both Stanford and Nuance are non-resident defendants.
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Stanford is located in California. 7

Nuance appears to be a

Delaware corporation whose principal place of business is
Massachusetts. 8

While Plaintiff has implied that both Stanford

and Nuance have some presence in Hawaii, Plaintiff has not
detailed the nature of their contacts.

Nor do Plaintiff’s

generic suggestions that defendants generally “recruit employees
or students, share research efforts, grants, and publications”
suffice.

See Opp. to Nuance at 12; see also id. at 9-10 (the

defendants also send salespeople, marketers, trainers and
technologists to Hawaii and have business partnerships and
contracts here).

As personal jurisdiction must be assessed as

to each defendant, the Court cannot use these blanket collective
allegations to satisfy the “exacting standard” of general
jurisdiction with respect to either Stanford or Nuance.
7

Pursuant to Stanford's request, Stanford Mot. at 7 n.3, the
Court will take judicial notice of the fact that Stanford
University is located in or around Palo Alto, California, and is
not located in the District of Hawaii. Pralinsky v. Mut. of
Omaha Ins., No. C 08-03191 MHP, 2008 WL 4532563, at *2 n.3 (N.D.
Cal. Oct. 9, 2008) (taking evidence of the fact that certain
locations were not in the Northern District of California); Fed.
R. Evid. 201.
8
Nuance is listed in the Hawaii Business Registration database
as a foreign profit corporation incorporated in Delaware whose
principal place of business is Massachusetts. See
https://hbe.ehawaii.gov/documents/business.html?fileNumber=41552
F1 (last accessed April 5, 2018); see also Nathan v. Fry’s
Electronics Inc., 607 F. App’x 623, 623 (9th Cir. 2015) (noting
that the parties agreed there was minimal diversity as the
plaintiff was a California citizen and Nuance incorporated in
Delaware and had its principal place of business in
Massachusetts).
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Nor does it appear that general jurisdiction could be
found even if there were factual allegations supporting these
blanket statements.

The Ninth Circuit found that allegations

that a company regularly purchased cars imported by California
entities, had contracts including a choice-of-law provision
specifying California law, regularly retained a California
marketing company, hired a training company incorporated in
California, and maintained a website accessible by people in
California fell “well short” of establishing general
jurisdiction.

See Schwarzenegger, 374 F.3d at 801.

Nor is the

presence of employees working in the state, employees
temporarily visiting the state, and contracts with local
business sufficient to support general jurisdiction.

See Ranza

v. Nike, Inc., 793 F.3d 1059, 1069-70 (9th Cir. 2015).

In

addition, courts have specifically concluded that out-of-state
schools are not subject to general jurisdiction based on
matriculation of out-of-state students from the forum, receipt
of tuition or fund-raising revenue, or a website allowing online
application submission.

See Chira v. Columbia Univ., CV 05-1964

MMM, 2005 WL 8156561, at *6-7 (C.D. Cal. May 3, 2005)
(collecting cases); see also Norris v. Okla. City Univ., No. C93-1626-VRW, 1993 WL 313122, at *2 (N.D. Cal. Aug. 3, 1993).
Research affiliation with an entity in the forum is also not
sufficient for general jurisdiction.
- 17 -

See Nanoexa Corp. v. Univ.

of Chi., No. 10-CV-2631-LHK, 2010 WL 4236855, at *4 (N.D. Cal.
Oct. 21, 2010).
Simply put, the kinds of facts Plaintiff suggests
exist for these defendants, even if factually established in
more detail as to each one, are not enough to subject them to
general jurisdiction in Hawaii.

The Court therefore finds that

Plaintiff has not alleged and cannot allege that either Stanford
or Nuance has had continuous or systematic contact with Hawaii
that approximates physical presence.

Therefore, the Court finds

Plaintiff cannot establish general jurisdiction over Stanford or
Nuance here.

See Schwarzenegger, 374 F.3d at 801.

C. Specific Jurisdiction
For specific jurisdiction, the Ninth Circuit has
established a three-prong test:
(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 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.

“The plaintiff bears the

burden of satisfying the first two prongs of the test.”
- 18 -

Id.

If

the plaintiff fails to satisfy either of these prongs, personal
jurisdiction is not established in the forum state.”

Id.

“If

the plaintiff succeeds in satisfying both of the first two
prongs, the burden shifts to the defendant to ‘present a
compelling case’ that the exercise of jurisdiction would not be
reasonable.”

Id. (quoting Burger King Corp. v. Rudzewicz, 471

U.S. 462, 476-78 (1985)).

Plaintiff’s contentions regarding

both the Zippo test and “stream of commerce” theory are
evaluated as part of the first prong.

See Cybersell, Inc. v.

Cybersell, Inc., 130 F.3d 414, 418-20 (9th Cir. 1997)
(discussing the Zippo test as part of purposeful availment
analysis); Holland Am. Line Inc. v. Wartsila N. Am., Inc., 485
F.3d 450, 459 (9th Cir. 2007) (discussing stream of commerce as
part of purposeful availment analysis).
The Ninth Circuit has approvingly repeated the
guidance from Zippo “that ‘the likelihood that personal
jurisdiction can be constitutionally exercised is directly
proportionate to the nature and quality of commercial activity
that an entity conducts over the Internet.’”

Cybersell, 130

F.3d at 419 (quoting Zippo, 952 F. Supp. at 1124).

A passive

website, even if accessible by anyone anywhere, does not
demonstrate purposeful availment.

See id. at 420.

There has to

be “something more” to demonstrate that the defendant directed
his activity toward the forum state.
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Panavision Int’l, L.P. v.

Toeppan, 141 F.3d 1316, 1322 (9th Cir. 1998) (citing Cybersell,
130 F.3d at 418).

For interactive websites where a user can

exchange information with a host computer, the appropriateness
of personal jurisdiction depends on the level of interactivity
and commercial nature of the exchange of information.
952 F. Supp. at 1124.

Zippo,

Where a defendant “clearly does business

over the Internet,” by entering into contracts with forum
residents and involving the knowing and repeated transmission of
computer files over the Internet,” Zippo suggests that personal
jurisdiction is most likely appropriate.

See id.

Plaintiff asserts that all of the corporate defendants
here fall into the third category of clearly doing commercial
business over the Internet regularly.

Opp. to Nuance at 12-13.

This appears to be based on “significant marketing efforts,” as
well as corporate partnerships and possibly research efforts.
See id.

Plaintiff makes some specific allegations as to

Microsoft conducting business in the “cloud.”

Id.

However,

with respect to Stanford and Nuance, Plaintiff has provided
nothing more than generic factual allegations and conclusory
statements that Nuance and Stanford sufficiently conduct
commercial operations in Hawaii over the Internet that they have
purposefully availed themselves of the privilege of doing
business here.

See id.

The lack of factual allegations

specific to either Nuance or Stanford prevents this Court from
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determining whether Plaintiff is correct in his conclusory
assertion that the level of interactivity and commercial nature
of their websites constitutes purposeful availment.

As such,

the Court cannot conclude that he has satisfied the first prong
of specific jurisdiction based on the Zippo test.
Moreover, even if purposeful availment could be shown
based on the Zippo test, it is not apparent that Plaintiff can
satisfy the second prong of specific jurisdiction, requiring a
nexus between the forum-related contacts and the claims alleged.
It does not appear that any of the claims alleged against either
Stanford or Nuance in the Third Amended Complaint arose out of
the kind of Internet activity suggested here, such as marketing
and research.

It thus does not appear that specific

jurisdiction can be established on this basis either.
Turning to Plaintiff’s “stream of commerce theory,”
the Ninth Circuit has held that “[t]he placement of a product
into the stream of commerce, without more, is not an act
purposefully directed toward a forum state.”

Holland, 485 F.3d

at 459 (citing Asahi Metal Indus. Co. v. Superior Court, 480
U.S. 102, 112 (1987)).

“Even 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 of commerce into an act purposefully directed toward
the forum state.”

Id.

Rather, the plaintiff must allege
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“something more” in order to support a theory of purposeful
availment.

Id.
Plaintiff seems to imply that Nuance and Stanford have

engaged in purposeful marketing efforts in Hawaii, so they have
each done “something more” than simply participate in the stream
of commerce.

See Opp. to Nuance at 12.

Plaintiff notably has

not even alleged what “product” Nuance and Stanford each put
into the stream of commerce and which was the subject of their
marketing efforts, much less the nature and extent of the
marketing efforts.

Rather, he has only argued very generally

that the defendants have engaged in marketing efforts connected
to the stream of commerce in Hawaii.

Such vague assertions

prevent the Court from determining whether or not Nuance or
Stanford did anything which provided some “knowledge or
expectation” that their products could end up in Hawaii.

See

Ass'n of Apartment Owners of Hokua @ 1288 Ala Moana v. Watts
Water Techs., Inc., No. CIV. 08-00463, 2010 WL 3853279, at *5
(D. Haw. Sept. 27, 2010) (finding no purposeful availment where
the product at issue was purchased indirectly from a
distribution chain, not directly from the manufacturer, whose
website did not even provide the means to do so).
Plaintiff’s generic, collective allegations about
stream of commerce and marketing of unspecified products also
make it difficult to determine how Plaintiff’s claims arise out
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of those contacts sufficient to satisfy the second prong of
specific jurisdiction.

Indeed, it is difficult to imagine how

Plaintiff could allege any set of facts supporting a stream of
commerce theory which could be related to his claims here,
consistent with what he has alleged thus far.
Nor has anything Plaintiff alleged against Nuance or
Stanford satisfied the Ninth Circuit’s purposeful direction
test.

To show purposeful direction, the defendant allegedly

must 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.”

Schwarzenegger, 374

F.3d at 803 (internal citation and quotation omitted).
Plaintiff has not alleged that Nuance or Stanford committed an
intentional act, much less that such act was expressly aimed at
Hawaii or that they knew it would cause harm likely to be
suffered here.

All Plaintiff has alleged is that Sullivan

supposedly named them as participants in the schemes at issue
here, and that allegation is based on a document which does not
even mention either Nuance or Stanford by name.
62, 191 & Ex. L.

See TAC ¶¶ 12,

The allegations in the Third Amended Complaint

thus simply do not support that either Nuance or Stanford
committed any intentional act, much less a tortious act aimed at
Plaintiff in Hawaii.
Finally, the court addresses Plaintiff’s suggestion
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that there is an email that shows a meeting concerning Ergo and
the Ergo software occurred on Stanford’s campus.
Resp. at 7.

See Pl. Supp.

In the first place, Plaintiff has neither alleged

in his Third Amended Complaint that such meeting took place, nor
attached a copy of the email supporting that it occurred.

In

addition, that a single meeting about Ergo occurred on campus
grounds does not show an intentional act by Stanford; indeed, it
is not apparent the university itself even knew about this
meeting, much less that in allowing the meeting to happen was an
act aimed at Hawaii or that it knew harm would be suffered here.
Based on the facts Plaintiff has put forth, this meeting is thus
insufficient to establish personal jurisdiction.

See Axiom

Foods, Inc. v. Acerchem Int’l, Inc., 874 F.3d 1064, 1068 (9th
Cir. 2017) (single or occasional acts related to the forum are
not sufficient to establish jurisdiction if they only create an
attenuated affiliation with the forum).
In light of the foregoing, the Court finds that
Plaintiff has not established personal jurisdiction over either
Stanford or Nuance.

Their Motions on this issue are GRANTED.

The Court notes that Plaintiff asks if Stanford must be
dismissed it be without prejudice “as further discovery in this
matter will only bring more evidence to light on the matter and
Stanford’s involvement will become apparent.”
at 4.

Opp. to Stanford

However, having made only three substantive allegations
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against Stanford and Nuance, based on a document which does not
name either one, Plaintiff appears to merely be seeking to
engage in a fishing expedition hoping to uncover something
against Stanford or Nuance.

See TAC ¶¶ 12, 62, 191 & Ex. L.

There is no reasonable basis to believe he can demonstrate
personal jurisdiction over them. 9

The Court therefore DISMISSES

Stanford and Nuance WITH PREJUDICE, subject to discovery showing
that the exercise of either general or specific personal
jurisdiction over Stanford or Nuance is appropriate consistent
with the foregoing discussion.
II.

RICO Claim
Both Stanford and Nuance also argue that Plaintiff has

failed to state a RICO claim against them.
17; Nuance Mot. at 5.

Stanford Mot. at 16-

In opposition, Plaintiff makes the same

arguments regarding each element of a RICO claim that he made in
opposition to the motions addressed in the Salesforce Order.
See Opp. to Stanford at 3; Opp. to Nuance at 22-27; Pl. Supp.
Resp. at 13-14.

The Court therefore incorporates its prior

discussion in the Salesforce Order of Plaintiff’s RICO claims.

9

At the hearing, Plaintiff claimed that he had reasons for
including Stanford and Nuance as defendants and may have
inadvertently omitted documentation supporting their inclusion.
However, Plaintiff did not offer any hint of what the basis for
including Stanford or Nuance might be, and the Court is
therefore unable to conclude with any confidence that Plaintiff
can articulate such a basis on amendment.
- 25 -

Salesforce Order at 31-53.
Plaintiff’s allegations against Stanford and Nuance do
not establish that either one engaged in racketeering activity,
much less a pattern.

All he has alleged is that Sullivan

allegedly named them as “participants in the theft, conspiracy,
conversion, chain of misappropriation, and fraud by Sullivan.”
TAC ¶¶ 12, 62, 191.

These allegations are not sufficient to

establish that either Stanford or Nuance committed any of the
racketeering acts the parties contend are at issue, much less
that they each committed at least two predicate acts, for the
same reasons as stated in the Salesforce Order.

See Salesforce

Order at 39-48.
The Court’s previously stated concerns about
Plaintiff’s conduct and enterprise pleadings are heightened with
respect to Stanford and Nuance because of the very minimal and
very general allegations made against them.

Taking as true that

Sullivan named them as participants, Plaintiff still has not
alleged that either Stanford or Nuance associated together with
Sullivan for the common purpose of taking the Ergo code.
id. at 49-52.

See

Nor has Plaintiff suggested that Stanford or

Nuance participated in the operation or management of the
enterprise in any way.

See id. at 48-49.

Especially because Plaintiff’s belief that Stanford
and Nuance were allegedly involved is based on Exhibit L to the
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Third Amended Complaint, which the Court has previously noted
does not actually name either of these defendants, the Court is
concerned that Plaintiff has no factual basis for alleging that
either Stanford or Nuance was involved in any racketeering
activity.

Accordingly, even if the Court had personal

jurisdiction over Stanford or Nuance, it would be inclined to
dismiss the RICO claims against them without prejudice but also
without leave to amend, pending a motion for leave to amend
based on discovery suggesting a RICO claim can plausibly be
stated against either one.
III. Fraud Claims
Next, both Stanford and Nuance argue that Plaintiff
has failed to allege fraud with particularity against either of
them.

Stanford Mot. at 17; Nuance Mot. at 5.

Plaintiff has not

responded to the arguments concerning his fraud claim.

See

generally Opp. to Stanford; Opp. to Nuance; Pl. Supp. Resp.
The Court incorporates its fraud discussion from the
Salesforce Order.

See Salesforce Order at 66-72.

Applying that

discussion here, Plaintiff has not alleged that Stanford or
Nuance has made any false misrepresentation or omission for
which they owed a duty to disclose to Plaintiff.

Plaintiff also

has not alleged that any such statement or omission was made in
contemplation of Plaintiff’s reliance, or that Plaintiff did
rely on it.

Nor is it apparent how Plaintiff could ever allege
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that he relied on any statement or omission by Stanford or
Nuance, as he claims to not have discovered their alleged
involvement in the scheme until 2015.

As with Plaintiff’s RICO

claim, even if the Court had personal jurisdiction here, it
would be inclined to dismiss the fraud claims against Stanford
and Nuance without prejudice and without leave to amend, pending
a motion for leave to amend based on discovery suggesting a
fraud claim can plausibly be stated against either one.
IV.

Conspiracy
Finally, Stanford has argued that Plaintiff has not

alleged a conspiracy to steal Plaintiff’s property, much less
one that includes Stanford.

Stanford Mot. at 15.

Nuance also

argues that to the extent Plaintiff is attempting to plead
conspiracy to defraud, he has also failed to state a claim.
Nuance Mot. at 5.

Plaintiff has not responded to arguments

concerning whether he has stated a claim for conspiracy.

See

generally Opp. to Stanford; Opp. to Nuance; Pl. Supp. Resp.
Under Hawaii Law, “the accepted definition of a
conspiracy is a combination of two or more persons [or entities]
by concerted action to accomplish a criminal or unlawful
purpose, or to accomplish some purpose not in itself criminal or
unlawful by criminal or unlawful means.”

Robert's Haw. Sch.

Bus, Inc. v. Laupahoehoe Transp. Co., 91 Haw. 224, 252 n. 28,
982 P.2d 853, 881 n. 28 (Haw. 1999), superseded by statute on
- 28 -

other grounds as stated in Davis v. Four Seasons Hotel Ltd., 122
Haw.423, 429, 228 P.3d 303, 309 (Haw. 2010).

“[M]ere

acquiescence or knowledge is insufficient to constitute a
conspiracy, absent approval, cooperation, or agreement.”

Id.

“Because ‘there can be no civil claim based upon a conspiracy
alone,’ ‘a plaintiff must allege an underlying actionable
claim.’”

Menashe v. Bank of New York, 850 F. Supp. 2d 1120,

1138 (D. Haw. 2012) (quoting Weinberg v. Mauch, 78 Haw. 40, 49,
890 P.2d 277, 286 (Haw. 1995) and Ellis v. Crockett, 51 Haw. 45,
57-58, 451 P.2d 814, 822-23 (Haw. 1969)).

“A civil conspiracy

claim therefore has three elements: (1) the formation of a
conspiracy; (2) wrongful conduct in furtherance of the
conspiracy, i.e., an actionable claim based upon deceit; and (3)
damage.”

Id. (internal citation and quotation omitted).
“The essence of a conspiracy is in an agreement.”

Dowkin v. Honolulu Police Dep't, No. CIV. 10-00087 SOM-RLP, 2011
WL 5038916, at *2 (D. Haw. Oct. 24, 2011), as amended (Oct. 27,
2011).

However, all that Plaintiff has alleged here is that

Sullivan named Stanford and Nuance as participants.
12, 62, 191.

See TAC ¶¶

Taking as true that Sullivan named them as

participants, such allegation does not support an inference of
conspiracy because it does not suggest Stanford or Nuance even
had knowledge of or acquiesced in any fraud or theft, much less
that they agreed, cooperated, or approved of the fraud or theft,
- 29 -

as required to establish a conspiracy. 10

As such, Plaintiff has

not stated a claim for conspiracy against either Stanford or
Nuance.

If the Court had personal jurisdiction over them, it

would be inclined to dismiss the conspiracy claims against them
without prejudice but also without leave to amend, pending a
motion for leave to amend based on discovery suggesting a
conspiracy claim can plausibly be stated against either one.
CONCLUSION
For the foregoing reasons, the Court GRANTS Defendants
Stanford University and Nuance Communication’s Motions to
Dismiss, ECF Nos. 12, 15.

Both Stanford and Nuance are

DISMISSED WITH PREJUDICE for lack of personal jurisdiction,
subject to discovery revealing a basis for personal jurisdiction
over them consistent with the Court’s discussion above regarding
the elements of personal jurisdiction.

Even if personal

jurisdiction can be established at some point later in
discovery, Plaintiff should note the Court’s concern that he
does not appear to be able to state a plausible factual basis
for the claims discussed here based on the facts he currently
appears to have, as well as the Court’s prior discussion of Rule
10

The Court declines to address whether there is an underlying
actionable claim for fraud or conversion against any of the
defendants, as neither party squarely raises that issue. See
Stanford Mot. at 15 (only addressing conspiracy not underlying
wrongful conduct); Nuance Mot. at 5 (arguing only generally that
Plaintiff has not stated a claim for fraud with particularity).
- 30 -

8’s pleading standards, see Salesforce Order at 72-74.

Should

Plaintiff seek in the future to show that personal jurisdiction
can be exercised over Nuance or Stanford, he should also
identify what claims he seeks to bring and sufficient facts to
reasonably suggest that such claims can be plausibly stated, in
addition to complying with the scheduling order and all
applicable rules.
Finally, the Court previously granted Plaintiff leave
to file an amended complaint to add Twitter back as a defendant
and to address the deficiencies noted in the Salesforce Order.
See generally ECF Nos. 130 (granting leave to amend to add
Twitter), 134 (Salesforce Order).

The Court now specifies that

Plaintiff is GRANTED 30 days from the date of this Order to file
an amended complaint.

In amending, Plaintiff should not include

any claims or any defendants who have been dismissed with
prejudice.
IT IS SO ORDERED.
DATED:

Honolulu, Hawaii, April 23, 2018.

________________________________
Alan C. Kay
Sr. United States District Judge

Bralich v. Sullivan, et al., Civ. No. 17-00547 ACK-RLP, Order Granting
Defendants Stanford University and Nuance Communication, Inc.’s Motions to
Dismiss.

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