Kinnee v. TEI Biosciences Inc.

• Court: District Court, S.D. California
• Decided: October 24, 2022
• Docket: 3:22-cv-00604
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MICHELLE KINNEE, Case No.: 22-CV-604 JLS (AHG)

12 Plaintiff, ORDER (1) GRANTING 13 v. DEFENDANTS’ MOTIONS TO DISMISS AND DENYING WITHOUT 14 TEI BIOSCIENCES INC.; INTEGRA PREJUDICE SUPPORTING LIFESCIENCES CORPORATION; and 15 REQUEST FOR JUDICIAL NOTICE; LIFESCIENCES SALES LLC, AND (2) GRANTING PLAINTIFF’S 16 Defendants. REQUEST FOR JURISDICTIONAL 17 DISCOVERY

18 (ECF Nos. 10, 10-2, 11, 12) 19

20 Presently before the Court is Defendant Integra Lifesciences Sales LLC’s1 (“Integra 21 Sales”) Motion to Dismiss (“Integra Sales Mot.,” ECF No. 10) and Request for Judicial 22 Notice in support of the same (“RJN,” ECF No. 10-2). Defendants Integra Lifesciences 23 Corporation (“Integra Corp.”) and TEI Biosciences Inc. (“TEI”) filed Motions to Dismiss 24 and Joinder to Defendant Integra Lifesciences Sales LLC’s Motion (“Integra Corp. Mot.,” 25 ECF No. 11; “TEI Mot.,” ECF No. 12, respectively). Plaintiff Michelle Kinnee filed an 26

27 1 The Court notes that Defendant Integra Lifesciences Sales LLC is referred to as “Lifesciences Sales 28 LLC” in Plaintiff’s Complaint. See Compl. The Court refers to the relevant entity as “Integra Lifesciences 1 Omnibus Opposition to Defendants’ Motions to Dismiss (“Opp’n,” ECF No. 17), which 2 included a request for jurisdictional discovery in the event the Court finds that it lacks 3 personal jurisdiction over Integra Sales, Integra Corp., and TEI (collectively, 4 “Defendants”). Defendants each filed Replies to Plaintiff’s Omnibus Opposition (“Integra 5 Sales Reply,” ECF No. 19; “Integra Corp. Reply,” ECF No. 20; and “TEI Reply,” ECF No. 6 21). The Court vacated the hearing on the Motions and took them under submission 7 pursuant to Civil Local Rule 7.1(d)(1). See ECF No. 18. Having considered the Parties’ 8 arguments, the applicable legal authority, and Plaintiff’s Complaint (“Compl.,” ECF No. 9 1), the Court GRANTS Defendants’ Motions to Dismiss, GRANTS Plaintiff’s Request 10 for Jurisdictional Discovery, and DISMISSES WITHOUT PREJUDICE Defendants’ 11 Request for Judicial Notice. 12 BACKGROUND 13 On April 26, 2017, Plaintiff was implanted with the SurgiMend Collagen Matrix 14 (“SurgiMend”) for a ventral hernia repair. Compl. ¶ 1. Plaintiff alleges that the SurgiMend 15 device malfunctioned three years later, causing serious complications that necessitated 16 surgery and a week-long hospital stay. Id. ¶¶ 1, 30–31. Plaintiff consequently initiated 17 this action asserting claims of strict products liability, negligence, fraudulent concealment, 18 and breach of express warranty against Defendants. See generally id. 19 Plaintiff alleges TEI “designed, manufactured and engaged in post-market 20 surveillance” for the SurgiMend device, id. ¶ 2; Integra Corp. was “involved in and 21 maintained oversight over the post-market surveillance” of the device, id. ¶ 3; and Integra 22 Sales “was involved in the marketing and sale” of the device, id. ¶ 4. The crux of Plaintiff’s 23 claim is that Defendants marketed the SurgiMend device as a “safe and effective” means 24 of hernia repair, despite knowing it was not reasonably safe based on “internal data from 25 pre[-] and post-market bench testing, animal studies, and required post-market surveillance 26 investigations.” Id. ¶¶ 16–18. 27 / / / 28 / / / 1 Defendants responded with the instant motions to dismiss, primarily arguing that the 2 Court lacks personal jurisdiction over Defendants and that Plaintiff has failed to state a 3 claim. See generally Integra Sales Mot.; Integra Corp. Mot; TEI Mot. 4 PERSONAL JURISDICTION 5 I. Legal Standard 6 “There are two limitations on a court’s power to exercise personal jurisdiction over 7 a nonresident defendant: the applicable state personal jurisdiction rule and constitutional 8 principles of due process.” Sher v. Johnson, 911 F.2d 1357, 1360 (9th Cir. 1990). 9 California’s long-arm jurisdictional statute permits the exercise of personal jurisdiction so 10 long as it comports with federal due process. See Cal. Civ. Proc. Code § 410.10; 11 Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800–01 (9th Cir. 2004). 12 “[Federal] [d]ue process precludes a court from asserting jurisdiction over a defendant 13 unless the defendant has certain minimum contacts with the forum state,” Sher, 911 F.2d 14 at 1361, “such that the exercise of jurisdiction ‘does not offend traditional notions of fair 15 play and substantial justice,’” Schwarzenegger, 374 F.3d at 801 (quoting Int’l Shoe Co. v. 16 Washington, 326 U.S. 310, 316 (1945) (internal quotation marks omitted)). 17 Under the minimum contacts test, jurisdiction can be either “general” or “specific.” 18 Doe v. Unocal Corp., 248 F.3d 915, 923 (9th Cir. 2001). General jurisdiction depends on 19 the defendant’s “substantial, continuous and systematic” contacts with the forum, “even if 20 the suit concerns matters not arising out of his contacts with the forum.” Id. Specific 21 jurisdiction exists “where the cause of action arises out of or has substantial connection to 22 the defendant’s contact with the forum.” Glencore Grain Rotterdam B.V. v. Shivnath Rai 23 Harnarain Co., 284 F.3d 1114, 1123 (9th Cir. 2002). If a defendant has sufficient 24 minimum contacts for the court to exercise personal jurisdiction over the defendant, the 25 exercise of such jurisdiction must also be reasonable. Asahi Metal Indus. Co. v. Super. Ct. 26 of Cal., Solano Cnty., 480 U.S. 102, 113 (1987). 27 / / / 28 / / / 1 Federal Rule of Civil Procedure 12(b)(2) allows a district court to dismiss an action 2 for lack of personal jurisdiction. “When a defendant moves to dismiss for lack of personal 3 jurisdiction, the plaintiff is ‘obligated to come forward with facts, by affidavit or otherwise, 4 supporting personal jurisdiction.’” Scott v. Breeland, 792 F.2d 925, 927 (9th Cir. 1986) 5 (quoting Amba Mktg. Sys., Inc. v. Jobar Int’l, Inc., 551 F.2d 784, 787 (9th Cir. 1977)). “A 6 plaintiff must establish jurisdiction over each defendant individually.” Zuercher v. 7 Hoskins, No. 4:21-CV-05142-YGR, 2021 WL 6551433, at *2 (N.D. Cal. Dec. 16, 2021). 8 The court “may order discovery on the jurisdictional issues.” Unocal, 248 F.3d at 922 9 (citing Data Disc. Inc. v. Sys. Tech. Ass’n, Inc., 557 F.2d 1280, 1285 (9th Cir. 1977)). 10 “When a district court acts on the defendant’s motion to dismiss without holding an 11 evidentiary hearing, the plaintiff need make only a prima facie showing of jurisdictional 12 facts to withstand” the motion. Id. (citing Ballard v. Savage, 65 F.3d 1495, 1498 (9th Cir. 13 1995)); see also Data Disc, 557 F.2d at 1285 (“[I]t is necessary only for [the plaintiff] to 14 demonstrate facts which support a finding of jurisdiction in order to avoid a motion to 15 dismiss.”). 16 “Unless directly contravened, [the plaintiff’s] version of the facts is taken as true, 17 and ‘conflicts between the facts contained in the parties’ affidavits must be resolved in [the 18 plaintiff’s] favor for purposes of deciding whether a prima facie case for personal 19 jurisdiction exists.’” Harris Rutsky & Co. Ins. Servs., Inc. v. Bell & Clements Ltd., 328 20 F.3d 1122, 1129 (9th Cir. 2003) (citing Unocal, 248 F.3d at 922); see also Bancroft & 21 Masters, Inc. v. Augusta Nat’l, Inc., 223 F.3d 1082, 1087 (9th Cir. 2000). However, a court 22 “may not assume the truth of allegations in a pleading which are contradicted by affidavit.” 23 Alexander v. Circus Enters., Inc., 972 F.2d 261, 262 (9th Cir. 1992) (citations and internal 24 quotation marks omitted). 25 / / / 26 / / / 27 / / / 28 / / / 1 II. Analysis 2 A. General Personal Jurisdiction 3 Defendants contend that the Court lacks general personal jurisdiction as Defendants 4 are incorporated in Delaware and have their principal places of business in New Jersey. 5 Memorandum of Points and Authorities in Support of Defendant Integra Lifesciences Sales 6 LLC’s Motion to Dismiss (“Integra Sales MPA,” ECF No. 10-1) at 8; Memorandum of 7 Points and Authorities in Support of Defendant Integra Lifesciences Corporation’s Motion 8 to Dismiss (“Integra Corp. MPA,” ECF No. 11-1) at 4; Memorandum of Points and 9 Authorities in Support of Defendant TEI Biosciences Inc.’s Motion to Dismiss (“TEI 10 MPA,” ECF 12-1) at 5. Plaintiff, in her Opposition, poses no objections to Defendants’ 11 contentions regarding general personal jurisdiction, focusing instead on the Court’s basis 12 for specific personal jurisdiction. See Opp’n at 4–7. Plaintiff’s failure to object operates 13 as a concession that the Court lacks general jurisdiction over Defendants. See N.Y. Marine 14 & Gen. Ins. Co. v. Peters, No. 3:21-CV-1692 W (WVG), 2022 WL 1104741, at *1 (S.D. 15 Cal. Apr. 13, 2022) (noting failure to oppose argument raised in motion concedes the truth 16 of the argument) (citations omitted). Nonetheless, addressing the issue briefly on the 17 merits, the Court likewise concludes that general personal jurisdiction does not exist here. 18 Courts have general personal jurisdiction (or “general jurisdiction”) over 19 nonresident defendants whenever the defendants’ activities within the forum state are 20 “continuous and systematic.” Perkins v. Benguet Consol. Mining Co., 342 U.S. 437, 445 21 (1952); see also Yahoo! Inc. v. La Ligue Contre Le Racisme Et L’Antisemitisme, 433 F.3d 22 1199, 1205 (9th Cir. 2006) (finding general personal jurisdiction requires that the 23 defendant’s contacts with a forum be “so substantial, continuous, and systematic that the 24 defendant can be deemed to be present in that forum for all purposes”) (internal quotations 25 omitted). General jurisdiction has “an exacting standard . . . because a finding of general 26 jurisdiction permits a defendant to be haled into court in the forum state to answer for any 27 of its activities anywhere in the world.” Schwarzenegger, 374 F.3d at 801. Only when a 28 corporation’s contacts with a state are “so substantial and of such a nature as to render the 1 corporation at home in that State” may the Court exercise general jurisdiction when the 2 corporation’s place of incorporation and principal place of business are elsewhere. 3 Daimler AG v. Bauman, 571 U.S. 117, 139 n.19 (2014) (explaining that the “place of 4 incorporation and principal place of business are paradig[m] . . . bases for general 5 jurisdiction”) (citations and internal quotation marks omitted)). Only in an “exceptional 6 case” will general jurisdiction be available outside of where a corporation is incorporated 7 or has its principal place of business. Martinez v. Aero Caribbean, 764 F.3d 1062, 1070 8 (9th Cir. 2014). 9 Here, the Court finds it lacks general jurisdiction over Defendants. Plaintiff does 10 not allege that any Defendant is incorporated in California or has a principal place of 11 business in California. See generally Compl. Moreover, Defendants’ alleged in-state 12 activities are not so continuous and systematic to render them essentially at home in 13 California. Plaintiff asserts that TEI designed, manufactured, promoted, sold, and engaged 14 in post-market surveillance for the SurgiMend device. See id. ¶ 13. Plaintiff also asserts 15 Integra Corp. acquired TEI and became involved in the marketing and sales of the 16 SurgiMend device through Integra Sales. See id. ¶¶ 14–15. It is unclear from Plaintiff’s 17 Complaint, however, whether any of these activities occurred in California. Even if 18 Defendants conducted regular business in California, this fact alone, without more, would 19 be insufficient to render them “at home” in California. See Wagner v. Terumo Med. Corp., 20 No. 18CV1007-MMA (MSB), 2018 WL 6075951 at 5* (S.D. Cal. Nov. 21, 2018) (“[E]ven 21 if [p]laintiff could show that [defendant] conducted regular business in California, that fact 22 would still be insufficient to render it ‘at home’ in the state.”). Accordingly, based on 23 Plaintiff’s allegations and the present record, the Court concludes it lacks general 24 jurisdiction over Defendants. 25 B. Specific Personal Jurisdiction 26 Defendants argue the Court lacks specific personal jurisdiction because Plaintiff fails 27 to allege any facts that tie Defendants’ conduct to California. See Integra Sales MPA at 8; 28 Integra Corp. MPA at 4; TEI MPA at 5. Plaintiff contends that Defendants designed, 1 manufactured, marketed, and sold the SurgiMend device that was implanted in her, Compl. 2 ¶¶ 13–15, and further alleges that both the implantation of the device and the treatment 3 associated with the device’s malfunction occurred in Chula Vista, California, id. ¶ 8. 4 The Ninth Circuit has established a three-prong test for analyzing a claim of specific 5 personal jurisdiction (or “specific jurisdiction”): 6 (1) The non-resident defendant must purposefully direct his 7 activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully 8 avails himself of the privilege of conducting activities in the 9 forum, thereby invoking the benefits and protections of its laws; (2) the claim must be one which arises out of or relates to the 10 defendant’s forum-related activities; and (3) the exercise of 11 jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable. 12 13 Schwarzenegger, 374 F.3d at 801; see also Williams v. Yamaha Motor Co., 851 F.3d 1015, 14 1023 (9th Cir. 2017) (analyzing specific jurisdiction under identical framework). The 15 plaintiff bears the burden of establishing the first two prongs. See Mavrix Photo, Inc. v. 16 Brand Techs., Inc., 647 F.3d 1218, 1228 (9th Cir. 2011). If the plaintiff does so, the burden 17 shifts to the defendant to argue that exercise of jurisdiction would be unreasonable. Id. 18 The Ninth Circuit has emphasized that under the first prong of the specific personal 19 jurisdiction test, purposeful availment and purposeful direction are two distinct 20 concepts. “The exact form of our jurisdictional inquiry depends on the nature of the claim 21 at issue.” Picot v. Weston, 780 F.3d 1206, 1212. For claims sounding in contract, courts 22 generally apply the “purposeful availment” analysis, which considers whether a defendant 23 “‘purposefully avails itself of the privilege of conducting activities’ or ‘consummates a 24 transaction’ in the forum, focusing on activities such as delivering goods or executing a 25 contract.” Menken v. Emm, 503 F.3d 1050, 1057 (9th Cir. 2007) (quoting Schwarzenegger, 26 374 F.3d at 802)). 27 / / / 28 / / / 1 “‘For claims sounding in tort’ where the alleged conduct took place outside the 2 forum state,” courts in the Ninth Circuit apply a “purposeful direction test.” Strayer v. 3 Idaho State Patrol, No. 21-35247, 2022 WL 685422, at *2 (9th Cir. Mar. 8, 2022); 4 CollegeSource, Inc. v. AcademyOne, Inc., 653 F.3d 1066, 1076 (9th Cir. 2011) (“[I]n cases 5 involving tortious conduct, we most often employ a purposeful direction analysis.”); 6 Freestream Aircraft (Bermuda) Ltd. v. Aero L. Grp., 905 F.3d 597, 605 (9th Cir. 2018) 7 (“[P]urposeful direction analysis naturally applies in suits sounding in tort where the tort 8 was committed outside the forum state.”). This test analyzes whether the defendant “(1) 9 committed an intentional act, (2) expressly aimed at the forum state, (3) causing harm that 10 the defendant knows is likely to be suffered in the forum state.” Yahoo! Inc., 433 F.3d at 11 1206 (citing Schwarzenegger, 374 F.3d at 803). 12 “The placement of a product into the stream of commerce, without more, is not an 13 act purposefully directed toward a forum state.” Holland Am. Line Inc. v. Wartsila N. Am., 14 Inc., 485 F.3d 450, 459 (9th Cir. 2007). Nor does the mere act of placing a product into 15 the stream of commerce satisfy the purposeful availment test, “even if the defendant is 16 aware ‘that the stream of commerce may or will sweep the product into the forum state.’” 17 LNS Enters. LLC v. Cont’l Motors, Inc., 22 F.4th 852, 860 (9th Cir. 2022) (quoting Holland 18 Am. Line Inc., 485 F.3d at 459)); see also Macias v. LG Chem Ltd., No. 19 SACV2002416DOCADSX, 2021 WL 780478, at *4 (C.D. Cal. Feb. 28, 2021) (“A 20 defendant purposefully avails itself of the forum state when it takes action to ‘target’ that 21 specific state.”). For example, in Seedman v. Cochlear Americas, the court considered 22 whether it could exercise specific jurisdiction over a foreign manufacturer of cochlear 23 implants. No. SACV1500366JVSJCGX, 2015 WL 4768239, at *3–5 (C.D. Cal. Aug. 10, 24 2015). The foreign manufacturer conducted no manufacturing, marketing, or selling of 25 products in California, although its distributor sold the implants in California. Id. at *5. 26 The court concluded that the plaintiff had not sufficiently demonstrated specific 27 jurisdiction over the foreign manufacturer because he did not point to what “more” the 28 / / / 1 foreign manufacturer did to target its product in California, other than use a distributor who 2 marketed and sold the products in the state entirely on its own. Id. 3 Regarding the second prong, courts within the Ninth Circuit previously applied a 4 “but for” test to determine whether a claim “arises out of or relates to” a defendant’s 5 contacts with a forum. See, e.g., Henderson v. United Student Aid Funds, Inc., No. 13-CV- 6 1845 JLS (BLM), 2015 WL 12658485, at *4 (S.D. Cal. Apr. 8, 2015); Notorious B.I.G. 7 LLC v. Hutson, No. 14-02415 SJO (JCx), 2014 WL 12589626, at *4 (C.D. Cal. July 3, 8 2014). However, in Ford Motor Co. v. Montana Eighth Judicial District Court, the U.S. 9 Supreme Court held that proof of causation is not required to determine whether specific 10 jurisdiction exists. 141 S. Ct. 1017, 1026 (2021). Some courts within the Ninth Circuit 11 have interpreted this to mean that the traditional “but for” test is too narrow. See James 12 Lee Constr., Inc. v. Gov’t Emps. Ins. Co., No CV 20-68-M-DWM, 2021 WL 1139876, at 13 *2 (D. Mont. Mar. 25, 2021) (“[A]s the Supreme Court just made clear, such a ‘causation- 14 only approach’ improperly narrows the inquiry.”); Clarke v. Dutton Harris & Co., PLLC, 15 No. 2:20-cv-00160-JAD-BNW, 2021 WL 1225881, at *4 (D. Nev. Mar. 31, 2021) (“[T]he 16 Supreme Court appears to have recently done away with [the ‘but for’] approach.”). 17 Thus, the relevant question is whether Plaintiff’s claims “arise out of or relate to [the 18 Defaulted Defendants’] contacts with the forum.” Ford Motor Co., 141 S. Ct. at 1026 19 (emphasis removed) (quoting Bristol-Myers Squibb Co. v. Super. Ct. of Cal., S.F. Cnty., 20 137 S. Ct. 1773, 1780 (2017)). “The first half of the standard asks about causation, but the 21 back half, after the ‘or,’ contemplates that some relationships will support jurisdiction 22 without a causal showing.” Id. Nevertheless, “the phrase ‘relate to’ incorporates real 23 limits, as it must adequately protect defendants foreign to a forum.” Id. 24 Finally, the Ninth Circuit considers the following seven factors when determining 25 whether the exercise of specific jurisdiction over a defendant would be reasonable: 26 (1) the extent of the defendants’ purposeful interjection into the forum state’s affairs; (2) the burden on the defendant of 27 defending in the forum; (3) the extent of conflict with the 28 sovereignty of the defendants’ state; (4) the forum state’s interest 1 in adjudicating the dispute; (5) the most efficient judicial resolution of the controversy; (6) the importance of the forum to 2 the plaintiff’s interest in convenient and effective relief; and (7) 3 the existence of an alternative forum. 4 CE Distribution, LLC v. New Sensor Corp., 380 F.3d 1107, 1112 (9th Cir. 2004). 5 1. TEI 6 The Court finds that Plaintiff has failed to plead sufficient facts for the Court to 7 exercise specific jurisdiction over TEI. Because Plaintiff’s Complaint sounds in both tort 8 (strict products liability, negligence, fraudulent concealment) and contract (breach of 9 express warranty), both the purposeful direction and purposeful availment tests apply. See 10 Glob. Commodities Trading Grp., Inc. v. Beneficio de Arroz Choloma, S.A., 972 F.3d 1101, 11 1107 (9th Cir. 2020) (“When both contract and tort claims are at issue, both tests are 12 relevant.”); Sonneveldt v. Mazda Motor of Am., Inc., No. 819CV01298JLSKES, 2020 WL 13 9312379, at *3–4 (C.D. Cal. Apr. 22, 2020) (applying both tests where plaintiffs brought 14 “claims sounding in tort, such as fraud, and claims sounding in contract, such as breach of 15 express warranty”); see also Prudhel v. Endologix, Inc., No. CIV S-09-0661LKK/KJM, 16 2009 WL 2045559, at *4–5 (E.D. Cal. July 9, 2009) (noting a California claim for breach 17 of express warranty sounds in contract because it is “based on a violation of a voluntary 18 representation made by defendant”). 19 First, the Court concludes that Plaintiff’s Complaint fails to allege sufficient facts to 20 meet the purposeful direction test. Plaintiff seems to imply that TEI had sufficient 21 minimum contacts with California by alleging that TEI “designed, manufactured, promoted 22 sold, and engaged in post-market surveillance regarding the Surgimend device, including 23 the specific device implanted in Plaintiff on April 26, 2017,” Compl. ¶ 13 (emphasis 24 added), and that “Defendants marketed Surgimend to physicians, including Plaintiff’s 25 prescribing physician,” id. ¶ 16 (emphasis added). While such allegations arguably show 26 intentional conduct, they fail to demonstrate that TEI expressly aimed any of its efforts at 27 California. 28 / / / 1 Express aiming “asks whether the defendant’s allegedly tortious action was 2 ‘expressly aimed at the forum.’” Picot, 780 F.3d at 1214. “The exact form of our analysis 3 varies from case to case and ‘depends, to a significant degree, on the specific type of tort 4 or other wrongful conduct at issue.’” Id. (citing Schwarzenegger, 374 F.3d at 807). Here, 5 Plaintiff alleges strict products liability, negligence, and fraudulent concealment. Thus, the 6 question is whether Defendants expressly aimed such allegedly tortious actions at 7 California. Plaintiff’s Complaint, however, is devoid of allegations demonstrating 8 Defendants expressly aimed any of their actions at California. For example, Plaintiff 9 provides no information on whether the SurgiMend device was sold in California or 10 marketed to a California audience; whether the marketing and promotion of the SurgiMend 11 device was performed through a website, in-person sales efforts, or otherwise; or whether 12 the post-market surveillance entailed any contacts with or targeting of the California 13 market. See generally Compl.; see also Ariix, LLC, 2022 WL 837072, at *3 (“Noticeably 14 lacking from [plaintiff’s] complaint are any allegations about [defendant’s] forum-specific 15 conduct, such as, perhaps, any direct efforts to sell or advertise its products in California, 16 tailor its products or advertisements specifically for California audiences, or instruct its 17 sales representatives to focus on the California market.”). 18 The only link between Plaintiff’s claims and California, based on the allegations in 19 the Complaint, is that the implantation of the device and the subsequent treatment resulting 20 from the device’s malfunction occurred in Chula Vista, California. Compl. ¶ 8. Plaintiff 21 does not allege, however, that TEI was involved in either of these activities. Rather, 22 Plaintiff’s depiction of the facts merely tends to show that TEI placed the SurgiMend 23 device into the stream of commerce. Without more, this act is not sufficient to vest the 24 Court with specific jurisdiction over TEI. See Holland Am. Line Inc., 485 F.3d at 459; 25 Elliot v. Cessna Aircraft Co., No. 820CV00378SBADSX, 2021 WL 2153820, at *3 (C.D. 26 Cal. May 25, 2021) (“A defendant is required to do ‘something more’—namely, the 27 defendant must engage in ‘conduct directly targeting the forum,’ such as to display content 28 or advertisements that ‘appeal[ ] to, and profit[ ] from, an audience in a particular state.’” 1 (quoting AMA Multimedia, LLC v. Wanat, 970 F.3d 1201, 1210 (9th Cir. 2020) (alterations 2 in original)). 3 While Plaintiff attempted to buttress her jurisdictional pleadings through new 4 jurisdictional facts in her Opposition, see Opp’n at 6, the claims were not accompanied by 5 supporting affidavits or judicially noticeable evidence. “The Court . . . cannot rely on a 6 party’s unsworn statements in [her] memorandum to defeat a motion to dismiss for lack of 7 personal jurisdiction.” Williams v. Connecticut, No. 3:15-CV-627 (VAB), 2016 WL 8 4472935, at *4 (D. Conn. Aug. 24, 2016) (citing several cases for this proposition). 9 Therefore, the Court must conclude, based on the allegations in the Complaint, that 10 Plaintiff has failed to show TEI purposefully directed its activities to California. 11 Second, Plaintiff has also failed to demonstrate that TEI purposefully availed itself 12 of the privilege of conducting activities in California. As stated above, Plaintiff’s 13 Complaint is devoid of facts showing that TEI had any contacts with California, apart from 14 placing a product into the stream of commerce, see generally Compl., which, without more, 15 is insufficient for the Court to exercise specific personal jurisdiction over TEI, see LNS 16 Enters. LLC, 22 F.4th at 860. Consequently, the Court finds that Plaintiff has failed the 17 first prong of the specific jurisdiction test as to her contract claim. 18 Because the Court finds that Plaintiff has not met either the purposeful direction or 19 purposeful availment tests, Plaintiff has failed to make a prima facie showing of specific 20 jurisdiction over TEI; thus, the Court need not address whether Plaintiff’s claims arise out 21 of or relate to TEI’s forum-related activities or whether the exercise of specific jurisdiction 22 would comport with fair play and substantial justice. Pebble Beach Co. v. Caddy, 453 F.3d 23 1151, 1155 (9th Cir. 2006) (“Here, [plaintiff’s] arguments fail under the first prong. 24 Accordingly, we need not address whether the claim arose out of or resulted from 25 [defendant’s] forum-related activities or whether an exercise of jurisdiction is 26 reasonable.”); Estate of Daher v. LSH Co., 575 F. Supp. 3d 1231, 1238–41 (C.D. Cal. 2021) 27 (declining to address the second and third prongs of the specific jurisdiction test after 28 / / / 1 finding plaintiff failed to show defendant purposefully directed its activities to California); 2 Elliot, 2021 WL 2153820, at *3 (same). 3 Accordingly, the Court GRANTS Defendants’ Motions as to TEI and DISMISSES 4 WITHOUT PREJUDICE Plaintiff’s claims against TEI. 5 2. Integra Sales 6 The Court also finds that Plaintiff has failed to plead sufficient facts for the Court to 7 exercise specific jurisdiction over Integra Sales. Here, too, both the purposeful direction 8 and purposeful availment tests are applicable, as Plaintiff’s claims against Integra Sales 9 sound in tort and contract. 10 Plaintiff claims that “Integra Sales became involved in the marketing and sales of 11 the Surgimend after Integra [Corp.] acquired TEI in June 2015, including the Surgimend 12 device implanted in Plaintiff.” Compl. ¶ 15. This allegation alone, taken as true, fails to 13 satisfy the purposeful direction test because Plaintiff provides no supporting facts 14 demonstrating that Integra Sales’s acts were expressly aimed at California. See generally 15 id. Moreover, Plaintiff’s allegations do not satisfy the purposeful availment test because 16 they are unaccompanied by facts demonstrating that Integra Sales’s contacts with 17 California were such that it “performed some type of affirmative conduct which allow[ed] 18 or promote[d] the transaction of business within the forum state.” Sher v. Johnson, 911 19 F.2d 1357, 1362 (9th Cir. 1990); see generally id. Again, Plaintiff’s pleadings merely tend 20 to show that Integra Sales placed a product into the stream of commerce, which is 21 insufficient to satisfy either the purposeful direction or purposeful availment tests for 22 personal jurisdiction. LNS Enters. LLC, 22 F.4th at 860; Holland Am. Line Inc., 485 F.3d 23 at 459. Moreover, the fact that the SurgiMend device was implanted and caused injury in 24 California is insufficient to confer personal jurisdiction over Integra Sales in the absence 25 of facts showing Integra Sales was involved in either of these activities. Thus, Plaintiff has 26 failed to make a prima facie showing of specific jurisdiction over Integra Sales. 27 Accordingly, the Court GRANTS Defendants’ Motions as to Integra Sales and 28 DISMISSES WITHOUT PREJUDICE Plaintiff’s claims against Integra Sales. 1 3. Integra Corp. 2 Finally, the Court finds that Plaintiff has not demonstrated that Integra Corp. had 3 sufficient minimum contacts with California such that the Court could exercise specific 4 personal jurisdiction over it. Plaintiff alleges that Integra Corp. acquired TEI’s rights and 5 obligations relating to the SurgiMend device in or around June 2015 and “became involved 6 in overseeing the quality system, post-market surveillance and marketing of Surgimend, 7 including the Surgimend device implanted in Plaintiff.” Compl. ¶ 14. This allegation is 8 similarly unsupported by facts showing that Integra Corp. purposefully directed its actions 9 at California or purposefully availed itself of the benefits of operating in California. See 10 generally Compl. Thus, Plaintiff has failed to make a prima facie showing of specific 11 jurisdiction over Integra Corp. Accordingly, the Court GRANTS Defendants’ Motions as 12 to Integra Corp. and DISMISSES WITHOUT PREJUDICE Plaintiff’s claims against 13 Integra Corp. 14 III. Conclusion 15 The Court’s lack of general jurisdiction over Defendants is uncontroverted. 16 Moreover, Plaintiff has failed to show that Defendants purposefully directed their activities 17 to California or purposefully availed themselves of the privilege of doing business in 18 California. Therefore, Plaintiff has not made a prima facie showing of specific jurisdiction 19 as to any Defendant. Accordingly, because the Court finds it lacks personal jurisdiction 20 over Defendants, the Court GRANTS Defendants Motions to Dismiss and DISMISSES 21 WITHOUT PREJUDICE Plaintiff’s claims. In light of this decision, the Court declines 22 to address Defendants’ remaining bases for dismissal. Applied Underwriters, Inc. v. 23 Combined Mgmt., Inc., No. C07-5129 BZ, 2007 WL 4287322, at *2 (N.D. Cal. Dec. 5, 24 2007), aff’d, 371 F. App’x 834 (9th Cir. 2010) (“Because I have found that defendant did 25 not establish sufficient minimum contacts with California to constitute purposeful 26 availment, I do not need to address the parties remaining arguments.”); DeLima v. Burres, 27 No. 2:12-CV-00469-DBP, 2013 WL 690536, at *1 (D. Utah Feb. 26, 2013) (declining to 28 address defendant’s remaining arguments after granting motion to dismiss for lack of 1 personal jurisdiction). Further, as the Court grants Defendants’ Motions to Dismiss 2 without reference to the exhibits submitted by Integra Sales in its RJN, the Court DENIES 3 WITHOUT PREJUDICE the supporting RJN. 4 PLAINTIFF’S REQUEST FOR JURISDICTIONAL DISCOVERY 5 Plaintiff seeks leave to obtain jurisdictional discovery in the event the Court rules 6 that Plaintiff has not adequately pleaded facts establishing personal jurisdiction. Opp’n at 7 7. Defendants oppose Plaintiff’s request. Integra Sales Reply at 3; Integra Corp. Reply at 8 3; TEI Reply at 3. 9 Jurisdictional discovery “may be appropriately granted where [1] pertinent facts 10 bearing on the question of jurisdiction are controverted or [2] where a more satisfactory 11 showing of the facts is necessary.” Boschetto v. Hansing, 539 F.3d 1011, 1020 (9th Cir. 12 2008) (quoting Wells Fargo & Co. v. Wells Fargo Express Co., 556 F.2d 406, 430 n.24 13 (9th Cir. 1977)). The decision to permit or deny jurisdictional discovery lies in the Court’s 14 discretion. Id. In order for the Court to permit jurisdictional discovery, however, the 15 plaintiff “must at least make a ‘colorable’ showing that the Court can exercise personal 16 jurisdiction over the defendant.” Mitan v. Feeney, 497 F. Supp. 2d 1113, 1119 (C.D. Cal. 17 2007). Jurisdictional discovery should be denied where “it is clear that further discovery 18 would not demonstrate facts sufficient to constitute a basis for jurisdiction.” Wells Fargo 19 & Co., 556 F.2d at 430 n.24. A district court does not abuse its discretion by denying 20 jurisdictional discovery when the plaintiff’s request is “based on little more than a hunch 21 that it might yield jurisdictionally relevant facts.” Boschetto, 539 F.3d at 1020. 22 Here, the Court finds that jurisdictional discovery is warranted. On the one hand, 23 there are no pertinent facts on the question of jurisdiction that are controverted. It is 24 undisputed that the Court lacks general jurisdiction over Defendants, and rather than 25 specifically deny any of Plaintiff’s allegations as to specific jurisdiction, Defendants 26 instead argue that Plaintiff’s jurisdictional claims do not provide a basis for the Court to 27 exercise personal jurisdiction over Defendants. 28 / / / 1 On the other hand, however, a more satisfactory showing of the facts is necessary 2 for the Court to determine whether it can exercise personal jurisdiction over Defendants. 3 Specifically, the Court finds that more facts are needed regarding Defendants’ marketing, 4 sales, and other distribution-related activities in California. Laub v. U.S. Dep’t of Interior, 5 342 F.3d 1080, 1093 (9th Cir. 2003) (“[Jurisdictional] [d]iscovery should be granted 6 when . . . more facts are needed.”). Plaintiff’s Opposition contains more robust claims as 7 to personal jurisdiction that, if taken as true, could allow the Court to exercise personal 8 jurisdiction over at least some of the Defendants in a manner consistent with federal due 9 process. See Opp’n at 7. For example, Plaintiff alleges that “each Defendant promoted 10 and sold the Surgimend device in California for the purpose of implantation in California,” 11 id. at 6; “Defendants expected the Surgimend device implanted in Plaintiff would reach 12 Plaintiff and her prescribing physicians in California at the time Defendants distributed and 13 sold the device,” id.; that Defendants’ sales representative called on and made payments to 14 Plaintiff’s prescribing physician in California in 2017, id. at 7; and that “Defendants have 15 also posted job descriptions detailing the extensive sales and promotional activity they 16 expected their sales force to perform in California regarding its Surgimend devices,” id. 17 Such allegations demonstrate that Plaintiff’s request for jurisdictional discovery is not 18 based on a mere hunch that it might yield jurisdictionally relevant facts. See Boschetto, 19 539 F.3d at 1020. 20 Defendants are correct that, “[w]here a plaintiff’s claim of personal jurisdiction 21 appears to be both attenuated and based on bare allegations in the face of specific denials 22 made by defendants, the Court need not permit even limited discovery.” Terracom v. 23 Valley Nat. Bank, 49 F.3d 555, 562 (9th Cir. 1995) (citing Rich v. KIS Cal., Inc., 121 F.R.D. 24 254, 259 (M.D.N.C. 1988)). Here, however, Defendants have not denied any of Plaintiff’s 25 jurisdictional claims; rather, they have argued that Plaintiff’s jurisdictional allegations are 26 insufficient to meet the requirements of due process. While the Court agrees that the 27 present allegations are inadequate, Defendants have made no affirmative claims as to their 28 contacts, or lack thereof, with California. See generally Integra Sales MPA; Integra Sales 1 || Reply; Integra Corp. MPA; Integra Corp. Reply; TEI MPA; TEI Reply. Faced with this 2 ||dearth of jurisdictional facts, permitting discovery is the most appropriate response. 3 || Accordingly, the Court GRANTS Plaintiff's request for jurisdictional discovery. 4 CONCLUSION 5 In light of the foregoing, the Court GRANTS Defendants’ Motions to Dismiss (ECF 6 ||Nos. 10, 11, 12) and DISMISSES WITHOUT PREJUDICE Plaintiffs claims. The 7 ||Court GRANTS Plaintiffs request for jurisdictional discovery. Finally, the Court 8 || DENIES WITHOUT PREJUDICE Integra Sales’s Request for Judicial Notice (ECF No. 9 || 10-2). 10 Plaintiff does not specify how much time is needed for jurisdictional discovery. 11 || Accordingly, the Court grants Plaintiff 60 days in which to conduct jurisdictional discovery 12 ||to support her claim that the Court may exercise specific jurisdiction over Defendants.” 13 || Plaintiff MAY FILE an amended complaint on or before December 23, 2022. Plaintiff’s 14 || failure to file an amended complaint after 60 days of jurisdictional discovery will result in 15 dismissal without prejudice of this action. Should Plaintiff elect to file an amended 16 || complaint, it must cure the deficiencies noted herein and must be complete in itself without 17 ||reference to Plaintiff's prior Complaint. See S.D. Cal. CivLR 15.1. Any claims not 18 || realleged in the amended complaint will be considered waived. See Lacey v. Maricopa 19 || Caty., 693 F.3d 896, 925, 928 (9th Cir. 2012). 20 IT IS SO ORDERED. 21 Dated: October 24, 2022 tt 22 jen Janis L. Sammartino 3 United States District Judge 24 25 26 27 5g ||? Magistrate Judge David Leshner will schedule, in a separate order, a status conference to discuss how jurisdictional discovery shall proceed and its parameters.