Bluestone Innovations Texas LLC
Filing
128
MEMORANDUM OPINION and ORDER - the court GRANTS defendant Walsins and Tekcores motions to dismiss (Dkt. Nos. 47 and 98). DENIES defendant ForEpis motion to dismiss because the court has concluded that it may exercise personal jurisdiction over ForEpi pursuant to Rule 4(k)(2) (Dkt. No. 41). Court GRANTS Defendants motions to strike Plaintiffs surreply to Defendants supplemental reply brief (Dkt. Nos. 124, 125, and 126) because the court did not grant Plaintiff permission to file a supplemental surreply brief. Signed by Judge T. John Ward on 9/30/11. (ehs, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
BLUESTONE INNOVATIONS TEXAS,
L.L.C.,
Plaintiff.
v.
FORMOSA EPITAXY INC., ET AL.,
Defendants.
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§ CIVIL ACTION NO. 2:10-cv-171-TJW-CE
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MEMORANDUM OPINION AND ORDER
Pending before the court are defendants Formosa Epitaxy, Inc.’s (ForEpi”), Tekcore Co.,
Ltd.’s (“Tekcore”), and Walsin Lihwa Corp.’s (“Walsin”) (collectively, “Defendants”) motions to
dismiss plaintiff Bluestone Innovations Texas, L.L.C.’s (“Bluestone”) amended complaint for lack
of personal jurisdiction (Dkt. Nos. 41, 47, and 98). For the following reasons, the court GRANTS
defendants Tekcore’s and Walsin’s motions to dismiss (Dkt. Nos. 47 and 98). The court,
however, DENIES defendant ForEpi’s motion to dismiss (Dkt. No. 41) because the court has
concluded that it may exercise personal jurisdiction over ForEpi pursuant to Rule 4(k)(2).
Finally, the court GRANTS Defendants’ motions to strike Plaintiff’s surreply to Defendants’
supplemental reply brief (Dkt. Nos. 124, 125, and 126) because the court did not grant Plaintiff
permission to file a supplemental surreply brief. See Dkt. No. 109.
I.
FACTUAL AND PROCEDURAL BACKGROUND
On May 26, 2010, Bluestone filed suit against Defendants, 1 alleging infringement of
United States Patent No. 6,163,557 (the “’557 Patent”) entitled “Fabrication of Group III-V
1
Bluestone has sued numerous other defendants as well.
1
Nitrides on Mesas.” With regard to jurisdiction and venue, Bluestone alleges that ForEpi,
Tekcore, and Walsin are foreign corporations existing under the laws of Taiwan with principal
places of business located in Taiwan. Bluestone alleges that Defendants are subject to this court’s
personal jurisdiction, pursuant to due process and/or the Texas Long Arm Statute, due at least to
their substantial business in this forum, including at least a portion of the infringements alleged
herein. Bluestone alleges that Defendants are subject to the court’s general jurisdiction because
they regularly do or solicit business, engage in other persistent courses of conduct, and/or derive
substantial revenue from goods and services provided to individuals in Texas.2 Bluestone further
alleges that Defendants are subject to the court’s specific jurisdiction because Defendants, directly
and/or through intermediaries, have advertised, offered to sell, sold, and/or distributed infringing
products, and/or have induced the sale and use of infringing products within this district.
II.
LEGAL STANDARD
Federal Circuit law controls personal jurisdiction issues in patent cases. Patent Rights
Prot. Grp., LLC v. Video Gaming Techs., Inc., 603 F.3d 1364, 1368 (Fed. Cir. 2010) (citing Akro
Corp. v. Luker, 45 F.3d 1541, 1543 (Fed. Cir. 1995)); Beverly Hills Fan Co. v. Royal Sovereign
Corp., 21 F.3d 1558, 1564 (Fed. Cir. 1994). A federal court may exercise personal jurisdiction
over a foreign defendant only if (1) the long-arm statute creates personal jurisdiction over the
foreign defendant, and (2) the exercise of personal jurisdiction over that defendant is consistent
with the due process guarantees of the U.S. Constitution. See Patent Rights Prot. Grp., LLC, 603
F.3d at 1368-69; see also Gundle Lining Constr. Corp. v. Adams Cnty. Asphalt, Inc., 85 F.3d 201,
2
Bluestone also alleges that ForEpi has maintained substantial contact with this forum
through the establishment of a plant in Point Comfort, Texas. However, ForEpi attested that no
such plant exists, and Bluestone, having provided no evidence to the contrary, apparently concedes
this point.
2
204 (5th Cir. 1996). The Texas long-arm statute extends to the full extent permitted by the Due
Process Clause of the U.S. Constitution. Religious Tech. Ctr. v. Liebreich, 339 F.3d 369, 373 (5th
Cir. 2003). The sole inquiry in this case, therefore, is whether the exercise of personal jurisdiction
would violate the Due Process Clause of the U.S. Constitution. Red Wing Shoe Co., Inc. v.
Hockerson-Halberstadt, Inc., 148 F.3d 1355, 1358 (Fed. Cir. 1998).
Thus, to establish that this court has personal jurisdiction over Defendants, Bluestone must
show that: (1) Defendants have purposefully availed themselves of the benefits and protections of
the forum state by establishing minimum contacts with the forum state; and (2) the exercise of
jurisdiction over Defendants does not offend traditional notions of fair play and substantial justice.
Int’l Shoe Co. v. Washington, 326 U.S. 310, 316-20 (1945); Burger King Corp. v. Rudzewicz, 471
U.S. 462, 474-77 (1985). Once a defendant challenges personal jurisdiction, the plaintiff bears
the burden of producing facts showing that the defendant is subject to personal jurisdiction. See
McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936). There are two types of
‘minimum contacts’: those that give rise to specific personal jurisdiction and those that give rise to
general personal jurisdiction. See J. McIntyre Mach., Ltd. v. Nicastro (“McIntyre”), 131 S. Ct.
2780, 2787-88 (2011); see also Red Wing Shoe Co., 148 F.3d at 1359.
General jurisdiction exists when a non-resident defendant’s contacts with the forum state
are substantial, continuous, and systematic. Helicopteros Nacionales de Colombia, S.A. v. Hall,
466 U.S. 408, 414-19 (1984). Random, fortuitous, or attenuated contacts are not sufficient to
establish general jurisdiction. Red Wing Shoe Co., 148 F.3d at 1359. “There is also a more
limited form of submission to a State’s authority for disputes that ‘arise out of or are connected
with the activities within the state.’” McIntyre, 131 S. Ct. at 2787-88 (quoting Int’l Shoe Co. v.
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Washington, 326 U.S. 310, 316 (1945)). Where a defendant “‘purposefully avails itself of the
privilege of conducting activities within the forum State, thus invoking the benefits and
protections of its laws,’ … it submits to the judicial power of an otherwise foreign sovereign to the
extent that power is exercised in connection with the defendant’s activities touching on the State.”
Id. (quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)). “The question is whether a defendant
has followed a course of conduct directed at the society or economy existing within the jurisdiction
of a given sovereign, so that the sovereign has the power to subject the defendant to judgment
concerning that conduct.” Id. at 2789.
III.
DISCUSSION
A.
FOREPI
ForEpi manufactures Light Emitting Diode (LED) products, including whole wafers for its
customers to dice and package, or bare chips, in Taiwan. The bare LED chips after dicing are not
useful until they are packaged and become LED lamps. ForEpi sells the wafers and/or chips it
manufactures to the packaging companies that package ForEpi products into LED lamps. Those
lamps are sold for further use by the customers of those packaging companies.
Bluestone relies on the following facts in support of its argument that the court has
jurisdiction of ForEpi: (1) ForEpi claims a large customer base throughout the United States; (2)
ForEpi claims to supply major manufacturers, including LG and Samsung; (3) both LG and
Samsung sell consumer products throughout the United States and specifically within the Eastern
District of Texas – for example, both have LED products available for sale at Sam’s Club in Tyler,
Texas; (4) over 50% of ForEpi’s third quarter capacity in 2009 was dedicated to Samsung and LG;
and (5) ForEpi chips have been made available for sale to customers across the country, including
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in the Eastern District of Texas, on multiple websites, such as Carry Beam Co., Ltd. and ez LED
USA. Bluestone, however, does not offer any evidence that any ForEpi products have actually
been purchased in the State of Texas.
According to ForEpi, one of the packaging companies that purchases ForEpi products is
LG Innotek in Korea.
LG Innotek is a separate company from LG Electronics which
manufactures consumer electronics devices. ForEpi attests that although it believes that LG
Innotek sells LED lamps containing ForEpi chips to other LG entities, ForEpi does not know the
particular models of LG end-user products that might include its LEDs. ForEpi further attests that
it does not sell its products directly to Samsung and does not know what Samsung products, if any,
include ForEpi LEDs. Finally, ForEpi attests that it has not sold any of its products to Carry
Beam Co., Ltd. or ez LED USA, and has no knowledge as to whether any of these companies has
ever sold any products, including ForEpi LEDs, in the United States.
Based on these facts, the court concludes that it does not have general personal jurisdiction
over ForEpi. As explained above, for this court to exercise general personal jurisdiction over
ForEpi, Bluestone must prove that ForEpi has continuous and systematic contact with the State of
Texas. Helicopteros, 466 U.S. at 416. Bluestone, however, fails to identify any contacts
between ForEpi and Texas. ForEpi is a foreign company with its principal place of business in a
foreign country. There is no evidence that ForEpi has maintained a place of business, any facility
or office, or other continuous presence in Texas. ForEpi does not have a business license in
Texas, nor does it have an agent for service of process or any employee in Texas. There is no
evidence that ForEpi employs any distributor for its products in Texas or that ForEpi advertises or
promotes its products in Texas. Simply put, there is no evidence that ForEpi regularly does or
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solicits business, engages in other persistent courses of conduct, and/or derives substantial revenue
from goods and services provided to individuals in Texas. The court, therefore, concludes that it
does not have general personal jurisdiction over ForEpi.
The court also concludes that Texas does not have specific personal jurisdiction over
ForEpi. The Supreme Court recently addressed allegations of specific personal jurisdiction in a
case with facts somewhat similar to those here. In McIntyre, J. McIntyre Machinery LTD (“J.
McIntyre”) was a scrap-metal machinery manufacturer based in England. McIntyre, 131 S. Ct. at
2786. Plaintiff Nicastro was an employee of a scrap metal company based in New Jersey who had
purchased a machine made by J. McIntyre. Id. Nicastro was seriously injured by the machine,
and he sued J. McIntyre for products liability in New Jersey. Id. J. McIntyre argued that New
Jersey courts did not have jurisdiction over it because it had never directed any of its activities to
New Jersey.
Id.
The Supreme Court of New Jersey, however, disagreed.
In asserting
jurisdiction over J. McIntyre, the Supreme Court of New Jersey relied most heavily on three
primary facts as providing constitutionally sufficient “contacts” with New Jersey: (1) an American
distributor agreed to sell J. McIntyre’s machines in the United States and on one occasion sold and
shipped one machine to a New Jersey customer – Mr. Nicastro’s employer; (2) J. McIntyre
permitted, indeed wanted, its independent American distributor to sell its machines to anyone in
America willing to buy them; and (3) representatives of J. McIntyre attended trade shows in such
cities as Chicago, Las Vegas, New Orleans, Orlando, San Diego, and San Francisco. Id. at 2791.
The controlling opinion 3 of the Supreme Court, however, concluded that these facts did not
establish contacts between J. McIntyre and the State of New Jersey constitutionally sufficient to
support New Jersey’s assertion of jurisdiction. Justice Beyer, writing for the concurrence,
3
Tennard v. Dretke, 542 U.S. 274, 286 n* (2004).
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explained that no Supreme Court precedent has concluded that “a single isolated sale” is sufficient
to support jurisdiction. He went on to conclude that:
the relevant facts found by the New Jersey Supreme Court show no “regular ...
flow” or “regular course” of sales in New Jersey; and there is no “something more,”
such as special state-related design, advertising, advice, marketing, or anything
else. Mr. Nicastro, who here bears the burden of proving jurisdiction, has shown
no specific effort by the British Manufacturer to sell in New Jersey. He has
introduced no list of potential New Jersey customers who might, for example, have
regularly attended trade shows. And he has not otherwise shown that the British
Manufacturer “purposefully avail[ed] itself of the privilege of conducting
activities” within New Jersey, or that it delivered its goods in the stream of
commerce “with the expectation that they will be purchased” by New Jersey users.
Id. at 2792 (internal quotation marks omitted).
Here, Bluestone has likewise failed to present any evidence that ForEpi made any effort to
direct its products to the Texas market – in fact, there is no direct evidence that ForEpi’s accused
products were ever actually sold in the State of Texas. In sum, if the contacts with the forum state
in McIntyre were insufficient to confer specific personal jurisdiction, then ForEpi’s contacts with
Texas are likewise insufficient.
As such, the court concludes that it does not have specific
personal jurisdiction over ForEpi.
The court, however, agrees with Bluestone that it has personal jurisdiction over ForEpi
under Rule 4(k)(2). Federal Rules of Civil Procedure 4(k)(2) states, in relevant part: “For a claim
that arises under federal law, serving a summons ... establishes personal jurisdiction over a
defendant if: (A) the defendant is not subject to jurisdiction in any state’s courts of general
jurisdiction; and (B) exercising jurisdiction is consistent with the United States Constitution and
laws.” FED. R. CIV. P. 4(k)(2). For a court to exercise personal jurisdiction over a defendant
under Rule4(k)(2): (1) the plaintiff's claim must arise under federal law; (2) the defendant must not
be subject to jurisdiction in any state’s courts of general jurisdiction; and (3) exercise of
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jurisdiction must comport with due process.” Touchcom, Inc. v. Bereskin & Parr, 574 F.3d 1403,
1414 (Fed. Cir. 2009). With regard to the second requirement of Rule 4(k)(2), the Federal Circuit
has explained that:
Before the adoption of Rule 4(k)(2), a non-resident defendant who did not have
‘minimum contacts’ with any individual state sufficient to support exercise of
jurisdiction, but did have sufficient contacts with the United States as a whole,
could escape jurisdiction in all fifty states. Rule 4(k)(2) was adopted to ensure that
federal claims will have a U.S. forum if sufficient national contacts exist.
Touchcom, 574 F.3d at 1414. Under Federal Circuit law, the burden is on the defendant to name
some other state in which the suit could proceed. In sum, if a “defendant contends that he cannot
be sued in the forum state and refuses to identify any other where suit is possible, then the federal
court is entitled to use Rule 4(k)(2).” Id. at 1415.
In analyzing the third requirement of Rule 4(k)(2), that the exercise of jurisdiction
comports with due process, the court must consider whether “‘(1) defendant has purposefully
directed its activities at residents of the forum, (2) the claim arises out of or relates to the
defendant’s activities with the forum, and (3) assertion of personal jurisdiction is reasonable and
fair.’” Id. at 1416 (quoting Synthes (U.S.A.) v. G.M. Dos Reis Jr. Ind. Com. de Equip. Medico,
563 F.3d 1285, 1297 (Fed. Cir. 2009)).
The due process analysis under Rule 4(k)(2)
“‘contemplates a defendant’s contacts with the entire United States, as opposed to the state in
which the district court sits.’” Id. (quoting Synthes, 563 F.3d at 1295). “Thus, while the test of
specific jurisdiction under 4(k)(2) involves the same steps as under 4(k)(1), …[the court]… must
consider …[the defendant’s]… ‘contacts with the nation as a whole.’” Id. (quoting Synthes, 563
F.3d at 1296).
Here, ForEpi does not concede that it is subject to jurisdiction in any state’s courts of
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general jurisdiction. Furthermore, having carefully reviewed all of the evidence presented by the
parties, the court concludes that this court’s exercise of jurisdiction over ForEpi comports with due
process. Bluestone has presented sufficient evidence to make a prima facie showing that ForEpi
delivered its allegedly infringing products into the stream of commerce with the expectation that
they would be purchased in the United States. As such, the court concludes that it has personal
jurisdiction over ForEpi under Rule 4(k)(2), and the court denies ForEpi’s motion to dismiss.
B.
TEKCORE
Tekcore manufactures LED products, including LED dies and LED wafers, in Taiwan.
Tekcore has submitted an affidavit attesting that it sells or has sold most of its products to its
customers in Asia, including Taiwan, China, Hong Kong, Japan, and Korea. After they are sold,
Tekcore does not control, track, or monitor the use or further sale of Tekcore’s products. Two of
Tekcore’s customers are Everlight Electronics Co. Ltd. (“Everlight”) and Epistar Corp.
(“Epistar”). Tekcore delivers product to these two companies in Taiwan and China. Tekcore,
however, attests that it has no input, control, or knowledge as to how the products sold to Everlight
and Epistar are integrated into or packaged with other products for resale by Everlight and Epistar.
Tekcore attests that it, therefore, does not know whether any of its products incorporated into
Everlight and Epistar products ever reach the United States or any particular state, such as Texas.
Bluestone relies on the following alleged facts to support its argument that the court has
personal jurisdiction over Tekcore: (1) Tekcore has admitted to one sale in Texas of its LED wafer
pieces in 2008; (2) Tekcore sells its products to Everlight Electronics Co. Ltd. (“Everlight”); (3)
Everlight operates an office in Carrollton, Texas, from which it distributes Tekcore products
throughout the United States; (4) in July 2011 Everlight acquired management rights and control
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over a majority of Tekcore’s board of directors; (5) Tekcore sells its products to Epistar Corp.
(“Epistar”); (6) Epistar incorporates the products into backlights in its televisions; (7) Epistar
provides Tekcore LED components to several manufacturers, including Samsung LED and
Samsung Electronics; and (8) other electronic devices incorporating Tekcore, Everlight, and
Epistar chips are sold across the United States, including in this district, from retailers such as
EC21 and Mouser Electronics.
Tekcore argues that many of Bluestone’s alleged facts are incorrect.
Specifically,
Tekcore has provided evidence that disputes Bluestone’s claim that Everlight has management
rights or control over a majority of Tekcore’s board of directors. See Ex. 2, attached to Dkt. No.
117; see also Ex. 1 at ¶¶ 41-43, attached to Dkt. No. 117. Tekcore admits that it held a general
meeting on July 29, 2011, during which Tekcore’s shareholders elected new board of directors and
supervisors. Tekcore attests that among Tekcore’s seven current directors, only two directors are
Everlight’s representatives and that among Tekcore’s three current supervisors, none of them are
Everlight’s representatives. Furthermore, in Tekcore’s responses to Bluestone’s requests for
admission, Tekcore denied that Everlight holds four of Tekcore’s seven director seats and that
Everlight holds two of Tekcore’s three supervisor seats. Considering the evidence provided by
Tekcore, the court concludes that Bluestone’s claim that Everlight has management rights or
control over a majority of Tekcore’s board of directors has not been established.
Even assuming arguendo that all of Bluestone’s other alleged facts are true, these facts do
not establish that the court has personal jurisdiction over Tekcore. First, with regard to general
personal jurisdiction, although Tekcore admits that, in 2008, it sold ten pieces of LED wafer to one
Texas customer for $1,500, such contacts with Texas are far from substantial, continuous, and
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systematic. See Helicopteros Nacionales de Colombia, S.A, 466 U.S. at 414-19. This one-time
sale “is a classic case of sporadic and insubstantial contacts with the forum state, which are not
sufficient to establish general jurisdiction over the defendants in the forum.” Autogenomics, Inc.
v. Oxford Gene Tech. Ltd., 566 F.3d 1012, 1017-18 (Fed. Cir. 2009) (internal quotation omitted).
In Helicopteros, the Supreme Court rejected the plaintiff’s assertion of personal jurisdiction in
Texas where the defendant did not have a place of business in Texas and had never been licensed
to do business in the state. 466 U.S. at 416. The Supreme Court reached this conclusion despite
the fact that the defendant “sen[t] its chief executive officer to Houston for a contract-negotiation
session; accept[ed] into its New York bank account checks drawn on a Houston bank; purchas[ed]
helicopters, equipment, and training services from Bell Helicopter for substantial sums; and sen[t]
personnel to Bell’s facilities in Fort Worth for training.” Id. Like the defendant in Helicopteros,
Tekcore has no actual physical presence or license to do business in Texas, and nothing here
exceeds the commercial contacts that the Supreme Court held were insufficient in Helicopteros.
See Autogenomics, Inc., 566 F.3d at 1018. Accordingly, the court concludes that it does not have
general jurisdiction over Tekcore.
Moreover, the alleged facts do not give rise to specific jurisdiction. The facts here are,
again, closely linked to those in McIntyre. In McIntyre, the Supreme Court concluded that a
single isolated sale, even when accompanied by the fact that the defendant employed an American
distributor who was permitted to sell the defendant’s products to anyone willing to buy them, was
not sufficient to support jurisdiction. Here, apart from Tekcore’s single isolated sale in Texas,
Bluestone has presented no evidence indicating that Tekcore made any special efforts to sell its
products in Texas. McIntyre, 131 S. Ct. at 2792. Furthermore, just as in McIntyre, Bluestone
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alleges no facts showing “regular ... flow” or “regular course” of sales in Texas; and there is no
evidence of “‘something more,’ such as special state-related design, advertising, advice,
marketing, or anything else.”
Id.
As such, Bluestone has failed to show that Tekcore
“‘purposefully avail[ed] itself of the privilege of conducting activities’” within Texas, or that it
delivered its goods in the stream of commerce “‘with the expectation that they will be purchased’”
by Texas users. Id. (citations omitted). It bears mention that, other than the 2008 sale, Bluestone
has not shown that any of Teckore’s products are incorporated into goods sold in Texas.
In conclusion, Bluestone has failed to prove that this court has personal jurisdiction over
Tekcore under Rule 12(b)(2). Furthermore, Tekcore has conceded that it is subject to suit under
the principle of general jurisdiction in at least California because of its business activities there.
Tekcore is, therefore, not subject to jurisdiction in Texas under Rule 4(k)(2). Accordingly, the
court grants Tekcore’s motion to dismiss.
C.
WALSIN
Walsin designs and manufactures its LED products in Taiwan. Walsin has submitted an
affidavit stating that all of its sales of LED products are to customers in Taiwan, Hong Kong, and
China. Walsin attests that it has no control over decisions as to where or to whom its customers
sell or distribute its LED products.
Bluestone argues that the following alleged facts give this court personal jurisdiction over
Walsin: (1) Walsin has availed itself of the privilege of doing business in Texas through its
subsidiary, Walsin Technology Corporation (“Walsin Tech.”), which manufactures and distributes
passive semiconductor components; (2) Walsin Tech. has a U.S. distributor in Mansfield, Texas;
(3) Walsin Tech. forecast growth for its LED applications through its supply to major electronics
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manufacturers – specifically, Sony, Sharp, LG, and Samsung; (4) Walsin has successfully
integrated its operations, officers, and directors with other high-tech companies, including
HannStar Board, HannStar Display Corp., Passive System Alliance, and Winbond Electronics; (5)
HannStar Display is engaged in the development, manufacture, and sale of TFT-LCDs; (6)
HannStar Display’s products are sold throughout the world, including in Houston Texas by
ScreenTek; and (7) HannStar’s director Yu-Chi Chiao is also the chairman of Hannspree, which
sells its LED displays and televisions throughout the United States.
Walsin argues that many of these alleged facts are erroneous.
But, again, even
assuming arguendo that Bluestone’s alleged facts are correct, these facts do not give rise to
personal jurisdiction in Texas. First, Bluestone has alleged no facts establishing that Walsin has
continuous and systematic contacts with the state of Texas. Indeed, it is undisputed that neither
Walsin nor any of its subsidiaries: (1) have ever maintained a place of business, facility, or office
in Texas; (2) have any employees in Texas; and (3) have ever had commercial advertisement or
promotions targeting the market in Texas for any product. Furthermore, Bluestone alleges no
facts indicating that Walsin has continuously transacted business in this state. Consequently,
Walsin is not subject to this court’s general jurisdiction.
Bluestone has also failed to allege facts establishing specific jurisdiction over Walsin.
Bluestone’s alleged facts essentially boil down to an allegation that Walsin has numerous
distributors of its products (or of products incorporating Walsin’s products) that might sell
Walsin’s products in the State of Texas. It remains undisputed, however, that Walsin has not sold
any LED products to these alleged distributors, including Walsin Tech. As such, there is no direct
evidence that Walsin or one of its distributors sold LED products in Texas, much less that the
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accused products were sold in Texas. This infringement dispute, therefore, does not arise out of,
and is not connected with, any of Walsin’s alleged activities in Texas – no matter how attenuated
those activities might be. McIntyre, 131 S. Ct. at 2797. Accordingly, this court does not have
specific personal jurisdiction over Walsin.
In sum, Bluestone has failed to prove that this court has personal jurisdiction over Walsin
under Rule 12(b)(2). Furthermore, Walsin concedes that it is subject to suit under the principle of
general jurisdiction in at least California because of its business activities there.
Walsin,
therefore, is not subject to jurisdiction in Texas under Rule 4(k)(2). As such, the court grants
Walsin’s motion to dismiss.
IV.
CONCLUSION
For the foregoing reasons, the court GRANTS defendant Walsin’s and Tekcore’s motions
to dismiss (Dkt. Nos. 47 and 98). The court, however, DENIES defendant ForEpi’s motion to
dismiss because the court has concluded that it may exercise personal jurisdiction over ForEpi
pursuant to Rule 4(k)(2) (Dkt. No. 41). Furthermore, the court GRANTS Defendants’ motions to
strike Plaintiff’s surreply to Defendants’ supplemental reply brief (Dkt. Nos. 124, 125, and 126)
because the court did not grant Plaintiff permission to file a supplemental surreply brief. See Dkt.
No. 109.
SIGNED this 30th day of September, 2011.
__________________________________________
T. JOHN WARD
UNITED STATES DISTRICT JUDGE
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