1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Smarthealth Incorporated, No. CV-25-00115-PHX-JJT
10 Plaintiff, ORDER
11 v.
12 Chemotechnique MB Diagnostics AB, et al.,
13 Defendants.
14 15 At issue is Plaintiff SmartHealth Incorporated’s Motion to Allow Limited 16 Jurisdictional Discovery (Doc. 19, Motion), to which Defendants Chemotechnique MB 17 Diagnostics AB (“Chemotechnique”) and Dormer Laboratories Incorporated (“Dormer”) 18 filed a Response (Doc. 26, Response) and Plaintiff filed a Reply (Doc. 27, Reply). The 19 Court finds this matter appropriate for resolution without oral argument. See LRCiv 7.2(f). 20 For the reasons set forth below, the Court grants Plaintiff’s Motion. 21 I. Background 22 Chemotechnique, a Swedish entity, filed a motion to dismiss Plaintiff’s claims 23 against it for lack of personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2). 24 (See Doc. 12.) Within the responsive timeline for that motion, Plaintiff filed the instant 25 Motion, wherein Plaintiff argues that it must be permitted to conduct limited jurisdictional 26 discovery if it is to meaningfully respond to Chemotechnique’s jurisdictional motion. 27 Plaintiff also sought a stay of the briefing deadlines for Chemotechnique’s jurisdictional 28 motion, which the Court granted. (See Doc. 22.) Separately, Defendants sought a stay of 1 all discovery in this case pending resolution of Chemotechnique’s jurisdictional motion 2 and Dormer’s 12(b)(6) motion, which stay the Court granted. (See Doc. 25.) The Court 3 must now decide whether to amend the stay of discovery for the purpose of permitting the 4 limited jurisdictional discovery sought by Plaintiff. 5 Chemotechnique’s jurisdictional motion is supported by 134 pages of attached 6 documentation purportedly showing that Chemotechnique’s contacts with Arizona and the 7 United States are insufficient to support personal jurisdiction in this forum or any other 8 forum in the nation. (See Doc. 12-1.) Plaintiff’s argument, reduced to its essence, is that 9 this documentation is incomplete and fails to paint a sufficiently holistic picture of 10 Chemotechnique’s contacts with Arizona and the United States. (See Motion at 2 (“For 11 example, the declaration fails to address the sales volume of Chemotechnique products into 12 the forums, only selectively addresses Chemotechnique’s contacts, does not fully describe 13 the extent of its relationships with and support of American professional societies and other 14 groups located in the United States, and in many cases is controverted by publicly available 15 information.”).) 16 Plaintiff seeks relief in the form of an Order permitting it to “issue written discovery 17 requests and take a deposition narrowly tailored to the nature, frequency and scope of 18 Chemotechnique’s contacts with the forums and to respond to the assertions in the 19 declaration submitted by Chemotechnique.” (Motion at 3.) 20 II. Legal Standard 21 District courts are “vested with broad discretion to permit or deny discovery,” and 22 “discovery should ordinarily be granted where pertinent facts bearing on the question of 23 jurisdiction are controverted or where a more satisfactory showing of the facts is 24 necessary.” Laub v. U.S. Dep’t of Interior, 342 F.3d 1080, 1093 (9th Cir. 2003) (quoting 25 Butcher’s Union Loc. No. 498 v. SDC Inv., Inc., 788 F.2d 535, 540 (9th Cir. 1986)). “Where 26 a plaintiff’s claim of personal jurisdiction appears to be both attenuated and based on bare 27 allegations in the face of specific denials made by the defendants, the Court need not permit 28 even limited discovery.” Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1160 (9th Cir. 2006) 1 (quoting Terracom v. Valley Nat. Bank, 49 F.3d 555, 562 (9th Cir.1995)). “Although a 2 refusal to grant discovery to establish jurisdiction is not an abuse of discretion when ‘it is 3 clear that further discovery would not demonstrate facts sufficient to constitute a basis for 4 jurisdiction,’ discovery should be granted when . . . the jurisdictional facts are contested or 5 more facts are needed.” Laub, 342 F.3d at 1093 (quoting Wells Fargo & Co. v. Wells Fargo 6 Express Co., 556 F.2d 406, 430 n.24 (9th Cir.1977)). 7 The crux of any dispute over the propriety of limited jurisdictional discovery is 8 whether the party seeking discovery has “provid[ed] an explanation of how discovery 9 might change the outcome of the Court’s jurisdictional findings.” See Hernandez v. Mimi’s 10 Rock Corp., 632 F. Supp. 3d 1052, 1062 (N.D. Cal. 2022). Where such showing is made, 11 discovery is proper. Where such showing is absent, the discovery request is tantamount to 12 a fishing expedition. See LNS Enters. LLC v. Cont’l Motors Inc., 464 F. Supp. 3d 1065, 13 1078 (D. Ariz. 2020) (denying a request to conduct limited jurisdictional discovery because 14 the plaintiffs failed to “provid[e] any affidavit or evidence substantiating their requests or 15 describe[e] with any precision how such discovery would be helpful to the Court.”). 16 Much of the parties’ dispute, and thus much of the Court’s analysis, centers upon 17 the question of whether personal jurisdiction exists under Federal Rule of Civil Procedure 18 4(k)(2), which provides for personal jurisdiction in American fora even in the absence of 19 ordinary personal jurisdiction in any particular American forum. See Fed. R. Civ. P. 4(k)(2) 20 (“For a claim that arises under federal law, serving a summons or filing a waiver of service 21 establishes personal jurisdiction over a defendant if the defendant is not subject to 22 jurisdiction in any state’s courts of general jurisdiction and exercising jurisdiction is 23 consistent with the United States Constitution and laws.” (cleaned up)). Defendants1 cite 24 an unreported district-court case holding that a plaintiff may only resort to Rule 4(k)(2) 25 when a defendant’s contacts with the United States are “unusually extensive.” (Response 26 at 6 & n.3 (citing AMA Multimedia LLC v. Wanat, No. CV-15-01674-PHX-ROS, 2017 WL 27 1 Although the jurisdictional motion to dismiss was filed by Chemotechnique alone, 28 (see Doc. 12), Defendants have jointly responded to the instant Motion for limited jurisdictional discovery. 1 5668025, at *5 (D. Ariz. Sept. 29, 2017)).) Plaintiff argues that that proposition is no longer 2 true, as four years later the Ninth Circuit held that “Rule 4(k)(2) is not disfavored in this 3 Circuit. [Although] courts have rarely exercised jurisdiction under 4(k)(2), . . . this rarity 4 simply reflects that situations where a defendant has the requisite contacts with the United 5 States but not with any one state are unusual. The rarity of the rule’s applicability does not 6 indicate that Rule 4(k)(2) imposes a higher standard for due process.” See Ayla, LLC v. 7 Alya Skin Pty. Ltd., 11 F.4th 972, 978 n.1 (9th Cir. 2021). Defendants contend that AMA’s 8 “unusually extensive” criterion is somehow consistent with Ayla’s subsequent clarification 9 that Rule 4(k)(2) does not impose a higher due-process standard on the assessment of a 10 defendant’s contacts with the forum.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Smarthealth Incorporated, No. CV-25-00115-PHX-JJT
10 Plaintiff, ORDER
11 v.
12 Chemotechnique MB Diagnostics AB, et al.,
13 Defendants.
14 15 At issue is Plaintiff SmartHealth Incorporated’s Motion to Allow Limited 16 Jurisdictional Discovery (Doc. 19, Motion), to which Defendants Chemotechnique MB 17 Diagnostics AB (“Chemotechnique”) and Dormer Laboratories Incorporated (“Dormer”) 18 filed a Response (Doc. 26, Response) and Plaintiff filed a Reply (Doc. 27, Reply). The 19 Court finds this matter appropriate for resolution without oral argument. See LRCiv 7.2(f). 20 For the reasons set forth below, the Court grants Plaintiff’s Motion. 21 I. Background 22 Chemotechnique, a Swedish entity, filed a motion to dismiss Plaintiff’s claims 23 against it for lack of personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2). 24 (See Doc. 12.) Within the responsive timeline for that motion, Plaintiff filed the instant 25 Motion, wherein Plaintiff argues that it must be permitted to conduct limited jurisdictional 26 discovery if it is to meaningfully respond to Chemotechnique’s jurisdictional motion. 27 Plaintiff also sought a stay of the briefing deadlines for Chemotechnique’s jurisdictional 28 motion, which the Court granted. (See Doc. 22.) Separately, Defendants sought a stay of 1 all discovery in this case pending resolution of Chemotechnique’s jurisdictional motion 2 and Dormer’s 12(b)(6) motion, which stay the Court granted. (See Doc. 25.) The Court 3 must now decide whether to amend the stay of discovery for the purpose of permitting the 4 limited jurisdictional discovery sought by Plaintiff. 5 Chemotechnique’s jurisdictional motion is supported by 134 pages of attached 6 documentation purportedly showing that Chemotechnique’s contacts with Arizona and the 7 United States are insufficient to support personal jurisdiction in this forum or any other 8 forum in the nation. (See Doc. 12-1.) Plaintiff’s argument, reduced to its essence, is that 9 this documentation is incomplete and fails to paint a sufficiently holistic picture of 10 Chemotechnique’s contacts with Arizona and the United States. (See Motion at 2 (“For 11 example, the declaration fails to address the sales volume of Chemotechnique products into 12 the forums, only selectively addresses Chemotechnique’s contacts, does not fully describe 13 the extent of its relationships with and support of American professional societies and other 14 groups located in the United States, and in many cases is controverted by publicly available 15 information.”).) 16 Plaintiff seeks relief in the form of an Order permitting it to “issue written discovery 17 requests and take a deposition narrowly tailored to the nature, frequency and scope of 18 Chemotechnique’s contacts with the forums and to respond to the assertions in the 19 declaration submitted by Chemotechnique.” (Motion at 3.) 20 II. Legal Standard 21 District courts are “vested with broad discretion to permit or deny discovery,” and 22 “discovery should ordinarily be granted where pertinent facts bearing on the question of 23 jurisdiction are controverted or where a more satisfactory showing of the facts is 24 necessary.” Laub v. U.S. Dep’t of Interior, 342 F.3d 1080, 1093 (9th Cir. 2003) (quoting 25 Butcher’s Union Loc. No. 498 v. SDC Inv., Inc., 788 F.2d 535, 540 (9th Cir. 1986)). “Where 26 a plaintiff’s claim of personal jurisdiction appears to be both attenuated and based on bare 27 allegations in the face of specific denials made by the defendants, the Court need not permit 28 even limited discovery.” Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1160 (9th Cir. 2006) 1 (quoting Terracom v. Valley Nat. Bank, 49 F.3d 555, 562 (9th Cir.1995)). “Although a 2 refusal to grant discovery to establish jurisdiction is not an abuse of discretion when ‘it is 3 clear that further discovery would not demonstrate facts sufficient to constitute a basis for 4 jurisdiction,’ discovery should be granted when . . . the jurisdictional facts are contested or 5 more facts are needed.” Laub, 342 F.3d at 1093 (quoting Wells Fargo & Co. v. Wells Fargo 6 Express Co., 556 F.2d 406, 430 n.24 (9th Cir.1977)). 7 The crux of any dispute over the propriety of limited jurisdictional discovery is 8 whether the party seeking discovery has “provid[ed] an explanation of how discovery 9 might change the outcome of the Court’s jurisdictional findings.” See Hernandez v. Mimi’s 10 Rock Corp., 632 F. Supp. 3d 1052, 1062 (N.D. Cal. 2022). Where such showing is made, 11 discovery is proper. Where such showing is absent, the discovery request is tantamount to 12 a fishing expedition. See LNS Enters. LLC v. Cont’l Motors Inc., 464 F. Supp. 3d 1065, 13 1078 (D. Ariz. 2020) (denying a request to conduct limited jurisdictional discovery because 14 the plaintiffs failed to “provid[e] any affidavit or evidence substantiating their requests or 15 describe[e] with any precision how such discovery would be helpful to the Court.”). 16 Much of the parties’ dispute, and thus much of the Court’s analysis, centers upon 17 the question of whether personal jurisdiction exists under Federal Rule of Civil Procedure 18 4(k)(2), which provides for personal jurisdiction in American fora even in the absence of 19 ordinary personal jurisdiction in any particular American forum. See Fed. R. Civ. P. 4(k)(2) 20 (“For a claim that arises under federal law, serving a summons or filing a waiver of service 21 establishes personal jurisdiction over a defendant if the defendant is not subject to 22 jurisdiction in any state’s courts of general jurisdiction and exercising jurisdiction is 23 consistent with the United States Constitution and laws.” (cleaned up)). Defendants1 cite 24 an unreported district-court case holding that a plaintiff may only resort to Rule 4(k)(2) 25 when a defendant’s contacts with the United States are “unusually extensive.” (Response 26 at 6 & n.3 (citing AMA Multimedia LLC v. Wanat, No. CV-15-01674-PHX-ROS, 2017 WL 27 1 Although the jurisdictional motion to dismiss was filed by Chemotechnique alone, 28 (see Doc. 12), Defendants have jointly responded to the instant Motion for limited jurisdictional discovery. 1 5668025, at *5 (D. Ariz. Sept. 29, 2017)).) Plaintiff argues that that proposition is no longer 2 true, as four years later the Ninth Circuit held that “Rule 4(k)(2) is not disfavored in this 3 Circuit. [Although] courts have rarely exercised jurisdiction under 4(k)(2), . . . this rarity 4 simply reflects that situations where a defendant has the requisite contacts with the United 5 States but not with any one state are unusual. The rarity of the rule’s applicability does not 6 indicate that Rule 4(k)(2) imposes a higher standard for due process.” See Ayla, LLC v. 7 Alya Skin Pty. Ltd., 11 F.4th 972, 978 n.1 (9th Cir. 2021). Defendants contend that AMA’s 8 “unusually extensive” criterion is somehow consistent with Ayla’s subsequent clarification 9 that Rule 4(k)(2) does not impose a higher due-process standard on the assessment of a 10 defendant’s contacts with the forum. (Response at 6 n.3.) Defendants’ position is 11 indefensible, as the only way in which the two cases could be consistent is if Ayla implicitly 12 held that every exercise of personal jurisdiction in every case requires unusually extensive 13 contacts with the forum state as a matter of constitutional due process, but that proposition 14 is plainly nonsensical—as a matter of arithmetic, contacts cannot be “unusually extensive” 15 in every instance. 16 In order to avail oneself of limited jurisdictional discovery, “[a] plaintiff must 17 merely present a colorable basis for jurisdiction, or some evidence constituting a lesser 18 showing than a prima facie case.” Hernandez, 632 F. Supp. 3d at 1062 (internal quotation 19 marks and citation omitted). In determining whether Plaintiff has presented the requisite 20 colorable basis for jurisdiction, the Court will apply the due-process standard dictated by 21 the Ninth Circuit, not the “unusually extensive” criterion advanced by Defendants. 22 III. Discussion 23 In its jurisdictional motion, Chemotechnique asserts that personal jurisdiction is 24 absent here because it does not directly sell its allergenic products in the United States, as 25 such products are sold exclusively through its distributor, Dormer. (Doc. 12 at 2–3.) That 26 point is not disputed. Neither are the facts that Chemotechnique has no office in the United 27 States, employs no personnel in the United States, maintains no bank accounts in the United 28 States, owns no property in the United States, and pays no taxes in the United States. What 1 is at issue is the extent to which Chemotechnique oversees Dormer’s marketing and 2 distribution of its products in the United States, as well as the extent to which 3 Chemotechnique directly markets its products to consumers in the United States. 4 Chemotechnique claims that its involvement in the marketing, distribution, and sale of its 5 products in the United States is essentially nonexistent. (Doc. 12 at 3.) Insofar as 6 Chemotechnique concedes that it engages in marketing activities, it contends that those 7 activities are global in nature and cannot support jurisdiction in any forum in the United 8 States. (Doc. 12 at 3.) Plaintiff disagrees. 9 Plaintiff asserts that Chemotechnique takes an active role in marketing its products 10 in the United States, including its “American Core Series,” which Plaintiff alleges 11 Chemotechnique developed specifically for sale in the United States. Plaintiff argues that 12 Chemotechnique’s jurisdictional motion and accompanying declaration misrepresent 13 and/or insufficiently describe several material factual issues. 14 Plaintiff argues that discovery is needed to ascertain the extent of Chemotechnique’s 15 business activities in Arizona and the United States. (Motion at 7–8.) Although 16 Chemotechnique states in its jurisdictional motion that it does not know how much of its 17 product is sold in Arizona, (see Doc. 12 at 3), Plaintiff presents evidence indicating that 18 Chemotechnique cannot possibly be ignorant of its sales volume in the United States as a 19 whole. Specifically, Plaintiff cites evidence indicating (1) that Chemotechnique has issued 20 financial statements recognizing that the United States is an important market and that a 21 substantial portion of Chemotechnique’s total sales are transacted in American dollars and 22 (2) that Chemotechnique has on two occasions anointed Dormer its “distributor of the 23 year,” which, in light of Dormer’s status as distributor only in the United States and 24 Canada, implies that the United States constitutes a substantial component of 25 Chemotechnique’s global market. Plaintiff cites Ayla for the proposition that “[a] foreign 26 defendant’s sales into the United States are highly relevant to establishing jurisdiction” and 27 that “a 10% U.S. sales volume compared to the defendant’s other worldwide sales 28 supported exercising personal jurisdiction over a foreign defendant under Rule 4(k)(2).” 1 (Motion at 8.) The Ninth Circuit’s holding in Ayla is not quite as Plaintiff describes it. 2 Rather than holding that a 10% sales volume is so large that it supports jurisdiction, the 3 Ninth Circuit actually held that a 10% sales volume is not so small that it precludes 4 jurisdiction where there exist other indicia of targeting. 11 F.4th at 981 (concluding that 5 “Alya Skin’s argument that its United States sales are ‘de minimis’ and preclude the 6 exercise of jurisdiction therefore fails”). There is also nothing special about the quantum 7 of 10%. For instance, Ayla cites to a Supreme Court opinion in which the high court held 8 that a sales volume of less than one percent is sufficient for jurisdiction in the presence of 9 purposeful direction of conduct to the forum. Id. (citing Keeton v. Hustler Mag., Inc., 465 10 U.S. 770 (1984)). 11 Defendants cite J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873 (2011), for the 12 proposition that “selling through a distributor is insufficient to establish personal 13 jurisdiction,” (Response at 7), but Defendants omit a crucial qualifier from that opinion. 14 The Supreme Court actually held that selling through a distributor is insufficient to 15 establish personal jurisdiction where the seller “at no time . . . advertised in, sent goods to, 16 or in any relevant sense targeted the [forum].” J. McIntyre, 564 U.S. at 877. Here, Plaintiff 17 asserts that Chemotechnique has targeted the United States. Therefore, J. McIntyre is 18 inapposite. See id. at 882 (“The defendant’s transmission of goods permits the exercise of 19 jurisdiction only where the defendant can be said to have targeted the forum; as a general 20 rule, it is not enough that the defendant might have predicted that its goods will reach the 21 forum [].”). 22 Thus, in light of the foregoing, the Court concludes that Chemotechnique’s U.S. 23 sales volume is not an important fact in the jurisdictional analysis, at least not in general, 24 as it is not meaningfully contested that Chemotechnique sells more than a de minimis 25 amount of allergenic product in the United States. Chemotechnique’s U.S. sales volume, 26 considered in a vacuum, will neither confer nor preclude jurisdiction. However, as 27 explained below, Chemotechnique’s U.S. sales volume is relevant to the targeting inquiry 28 due to a unique factual wrinkle of this case, not in the ipso facto manner asserted by 1 Plaintiff. Plaintiff next contends that limited jurisdictional discovery is necessary to 2 uncover the true extent of Chemotechnique’s involvement in the marketing and distribution 3 of its allergenic products in the United States. (Motion at 9–11.) Although Plaintiff’s 4 Motion expressly derogates this argument to a position of secondary importance, (see 5 Motion at 6), this point is actually of primary significance. As noted, the mere volume of 6 Chemotechnique’s sales in the United States is less relevant to the jurisdictional inquiry 7 than the extent of Chemotechnique’s targeting of the U.S. market. 8 Plaintiff presents several evidentiary arguments purportedly establishing that 9 Chemotechnique’s jurisdictional motion understates the scope of its marketing activities 10 directed at the United States. Plaintiff asserts that Chemotechnique’s development of an 11 “American Core Series” of allergens by itself constitutes targeting of the United States. 12 Plaintiff argues that that product line cannot reasonably be understood to refer to North 13 America generally, as Chemotechnique advertises it in its newsletter alongside an image 14 of Abraham Lincoln. Plaintiff also asserts that Chemotechnique advertised its American 15 Core Series in social and other media referring to the product line as “national” and 16 “country-specific,” thereby implying that Chemotechnique developed the series with the 17 U.S. market in mind, not some larger continental market. Insofar as Chemotechnique’s 18 advertisements can be construed as referencing North America, Plaintiff contends (1) that 19 jointly targeting the United States and Canada still constitutes targeting of the United States 20 sufficient to permit jurisdiction and (2) that discovery into the relative sizes of the U.S. and 21 Canadian markets is appropriate to determine whether, practically speaking, the U.S. 22 market in fact comprises the North American market. (Motion at 10–11 & n.9.) 23 Plaintiff also questions whether Chemotechnique’s jurisdictional motion and 24 accompanying declaration reveals the full extent of Chemotechnique’s interaction with 25 U.S. industry groups. (Motion at 11–13.) Although Chemotechnique admits attending 26 occasional trade events in the United States, as it does around the world, it denies that it 27 conducts any U.S.-specific marketing activities at these events. Plaintiff, on the other hand, 28 contends that Chemotechnique utilizes these industry events to, inter alia, negotiate the 1 price of its products with members of the North American Contact Dermatitis Group—an 2 organization that Chemotechnique is intimately involved with, as evidenced by its 3 recognition on its website that it develops its allergenic products based upon the stated 4 needs of the group. Plaintiff supports the allegation of price negotiation with the declaration 5 of Dr. Dathan Hamann. (See Doc. 19-5 ¶¶ 4–5.)2 Plaintiff also argues that “even taking 6 Chemotechnique’s allegations as true that it does not sell products at those trade shows, a 7 common purpose of those trade shows is to build good will and establish new business 8 relationships with consumers in the relevant market, leading to future sales.” (Motion 9 at 13.) In support of that contention, Plaintiff notes that Chemotechnique is a 10 “platinum-level” donor to such trade shows. 11 Plaintiff further argues that limited jurisdictional discovery is necessary to 12 determine whether Chemotechnique is as ignorant of the U.S. advertisements pushing its 13 product as Chemotechnique claims to be. Plaintiff contends that it is implausible that 14 Chemotechnique is not directing, or at least approving, advertisements of its product in 15 trade publications issued by entities with which Chemotechnique regularly interacts. 16 (Motion at 12–13.) Finally, Plaintiff argues that, assuming arguendo that Dormer is 17 responsible for all of the trade-show marketing described above, then the Court should 18 permit discovery into the contractual relationship between Chemotechnique and Dormer. 19 “For example, if the Defendants have an agreement whereby Dormer is responsible for all 20 marketing at the trade shows but Chemotechnique gives it a budget for these and similar 21 marketing endeavors, that would be a jurisdictionally-relevant fact that [Plaintiff] should 22 be allowed to discover.” (Motion at 13.) 23 In response, Defendants write that “[Plaintiff] argues that Chemotechnique’s 24 marketing and advertising are sufficient for personal jurisdiction, but the supposed 25 evidence it puts forward comes nowhere near showing that.” (Response at 9.) This 26 argument misses the point. In seeking leave to conduct limited discovery into the basis of
27 2 Defendants argue that Dr. Hamann’s declaration lacks foundation. (Response at 10). Although the Court agrees that the declaration’s foundation is sloppily presented 28 and must be assembled from scattershot assertions made throughout the document, the Court disagrees that it is wholly absent. 1 personal jurisdiction, Plaintiff does not need to establish the propriety of personal 2 jurisdiction. Defendants’ contention that jurisdiction is absent here is therefore of no 3 import, as it would be nonsensical to require that Plaintiff demonstrate the validity of 4 jurisdiction as a precondition to conducting discovery into whether jurisdiction is valid. All 5 that is required here is a showing of some colorable basis for jurisdiction and a 6 demonstration that some facts material to the jurisdictional analysis are either controverted 7 or unclear. See Hernandez, 632 F. Supp. 3d at 1062; see also Orchid Biosciences, Inc. v. 8 St. Louis Univ., 198 F.R.D. 670, 674 (S.D. Cal. 2001) (“To defeat the discovery sought 9 here, Defendant[s] must meet the relatively high burden of establishing that it is clear that 10 further discovery would not demonstrate facts sufficient to constitute a basis for 11 jurisdiction.” (internal quotation marks and citation omitted)). 12 Although much of Plaintiff’s Motion, like Defendant’s Response, constitutes an 13 argument that the Court ought to find jurisdiction on the facts as they currently stand, the 14 Court nevertheless finds that Plaintiff has identified a colorable basis for jurisdiction, as 15 well as at least three specific factual reasons that limited jurisdictional discovery is 16 appropriate here. First, Plaintiff has plainly presented a colorable basis for jurisdiction, 17 namely Chemotechnique’s alleged targeting of the U.S. forum. Plaintiff has averred that 18 Chemotechnique deliberately designed a line of products for the U.S. market and then 19 directly and/or indirectly advertised and distributed those products in the United States. 20 Although that allegation might not be true, it is unquestionably colorable. Second, Plaintiff 21 has identified the following factual questions for which limited discovery is necessary: 22 (1) the relative sizes of Chemotechnique’s U.S. market and whatever other national 23 markets Chemotechnique claims are the object of the American Core Series;3 (2) the extent 24 and nature of Chemotechnique’s attendance of trade shows in the United States and 25 Arizona; and (3) the extent and nature of Chemotechnique’s supervision of Dormer’s
26 3 This conclusion is not inconsistent with the Court’s prior conclusion that Chemotechnique’s U.S. sales volume is unimportant to the jurisdictional inquiry as a 27 general matter. Here, the Court finds that Chemotechnique’s U.S. sales volume is material because, insofar as it is undisputed that Chemotechnique targets North America and/or the 28 Americas, a showing that the U.S. market constitutes an overwhelming preponderance of those larger geographic aggregations could support an exercise of jurisdiction. 1 marketing and distribution activities relating to the sale of Chemotechnique’s allergenic 2 products in the United States and Arizona. The Court finds unpersuasive Defendants’ 3 contentions that the above-listed factual questions are immaterial. Limited jurisdictional 4 discovery is thus warranted. 5 Finally, Defendants argue that Plaintiff’s proposed discovery is overbroad and 6 unduly burdensome in a variety of ways. (Response at 11–13.) Defendants contend that 7 discovery on Dormer is unnecessary, as any information relevant to Chemotechnique’s 8 alleged targeting of the American forum must of necessity be held by Chemotechnique 9 itself, such that similar requests issued to Dormer would be duplicative and purposeless. 10 Defendants also assert that Plaintiff’s request for publicly available information, such as 11 screenshots of Chemotechnique’s social media posts, is unduly burdensome in light of the 12 fact that Plaintiff can already access such information itself. The Court agrees with both of 13 these arguments, neither of which Plaintiff responds to. (See Reply at 10–11.) 14 Defendants also contend that the identities of the employees who attend trade shows 15 in the United States are irrelevant, but the Court disagrees. The identify, status, and job 16 description of the employees who have attended trade shows in the United States is plainly 17 relevant to the issue of whether Chemotechnique has targeted the United States. Defendants 18 also contend that some of Plaintiff’s proposed requests for production are duplicative of 19 some of its interrogatories. The Court agrees with this argument, to which Plaintiff offers 20 no response. Defendants also assert that Plaintiff’s proposed discovery is overbroad in that 21 it contains no temporal limitation. This is false, as each of Plaintiff’s proposed discovery 22 requests states that “[u]nless otherwise designated, each [discovery item] requests 23 information and/or documents from 2015 to the present.” (See Doc. 19-1 ¶ 12; Doc. 19-3 24 ¶ 12.) Curiously, Plaintiff makes the equally false statement that “Chemotechnique ignores 25 the Definitions and Instructions that limit the discovery requests to a five-year time period 26 unless otherwise designated.” (Reply at 10.) As the parties appear to be in agreement that 27 a five-year limitation is appropriate, the Court holds that a five-year limitation is 28 appropriate. Defendants also contend that any discovery request seeking worldwide sales 1 information is overbroad. The Court agrees, except insofar as such information bears upon 2 the question of whether Chemotechnique’s American Core Series is targeted at the United 3 States, North America, North and South America, or some other geographic subset of the 4 New World. 5 Defendants conclude their Response by writing that “[a]t most, Defendants contend 6 discovery requests should be to Chemotechnique only and should be limited to the 7 distribution agreements between Chemotechnique and Dormer and their respective roles 8 in creating, marketing, and selling the Allergen Products in the United States over the last 9 five years, and the trade shows and conferences within Arizona and/or the United States 10 that Chemotechnique has attended in the last five years related to the Allergen Products.” 11 With the caveats described above, the Court finds Defendants’ contention reasonable, and 12 the Court further notes that Plaintiff did not meaningfully contest the limitation requested 13 by Defendants. 14 IT IS THEREFORE ORDERED granting Plaintiff’s Motion to Allow Limited 15 Jurisdictional Discovery (Doc. 19), subject to the limitations described hereinabove. 16 IT IS FURTHER ORDERED lifting the stay on discovery insofar as is necessary 17 to effectuate the limited jurisdictional discovery granted hereby and lifting the stay on 18 Plaintiff’s timeline for filing a responsive memorandum to Chemotechnique’s motion to 19 dismiss. Within sixty days from the date of this Order, Plaintiff shall file either its 20 responsive memorandum or a motion for extension of time to complete the limited 21 jurisdictional discovery. 22 IT IS FURTHER ORDERED that the following procedures shall apply to the 23 limited jurisdictional discovery. The parties shall not file written discovery motions 24 without leave of the Court. Except during a deposition, if a discovery dispute arises and 25 cannot be resolved despite sincere efforts to resolve the matter through personal 26 consultation (in person or by telephone), the parties shall jointly file (1) a brief written 27 summary of the dispute, not to exceed one page per side, with an explanation of the position 28 taken by each side; and (2) a joint written certification that counsel or the parties have 1 || attempted to resolve the matter through personal consultation and sincere effort as required 2|| by Local Rule of Civil Procedure 7.2(j) and have reached an impasse. If the opposing party || has refused to personally consult, the party seeking relief shall describe the efforts made to obtain personal consultation. Upon review of the filed written summary of the dispute, the 5 || Court may set a telephonic conference, order written briefing, or decide the dispute without 6 || conference or briefing. Any briefing ordered by the Court shall also comply with Local Rule 7.2q). If a discovery dispute arises in the course of a deposition and requires an 8 || immediate ruling of the Court—a circumstance that should be exceedingly rare—the 9|| parties shall jointly contact the Court telephonically. The Court will not entertain discovery 10 || disputes after the close of discovery absent truly extraordinary circumstances. 11 Dated this 17th day of June, 2025. CN 12 “wok: 13 wefflee— Unifgd State#District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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