Tippsy, Inc. v. Tipsy, LLC

• Court: District Court, C.D. California
• Decided: November 14, 2024
• Docket: 2:24-cv-04025
• Status: Unknown

Opinion

O 1 JS-6 2 3 4 5 6 7

8 United States District Court 9 Central District of California

11 TIPPSY, INC. et al., Case № 2:24-cv-04025-ODW (SKx)

12 Plaintiffs, ORDER GRANTING

13 v. DEFENDANTS’ MOTION TO DISMISS FOR LACK OF 14 TIPSY, LLC et al., PERSONAL JURISDICTION [16]

15 Defendants.

16 17 18 I. INTRODUCTION 19 Plaintiffs Tippsy, Inc. (“Tippsy California”) and Genki Ito filed this action 20 against Defendants Tipsy, LLC (“Tipsy New York”) and Amanda L. Neville to resolve 21 a trademark dispute. (Compl., ECF No. 1.) Defendants now move to dismiss this action 22 for lack of personal jurisdiction. (Mot. Dismiss (“Motion” or “Mot.”), ECF No. 16-1.) 23 For the reasons discussed below, the Court GRANTS Defendants’ Motion.1 24 25 26 27

28 1 After considering the papers filed in connection with the Motion, the Court deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78(b); C.D. Cal. L.R. 7-15. 1 II. BACKGROUND2 2 Tippsy California, a Delaware Corporation with its principal place of business in 3 California, specializes in the sale of Japanese alcoholic beverages, including sake and 4 sake-related goods, such as sake glasses, cups, carafes, snacks, and warmer bottles. 5 (Compl. ¶¶ 1–2.) Tippsy California has offered these beverages and goods in its store 6 and on its website since November 2018. (Id. ¶¶ 2–3.) Ito is Tippsy California’s Chief 7 Executive Officer and owner. (Id. ¶ 1.) 8 Tipsy New York, a New York limited liability company, has operated a wine 9 store in New York since 2013. (Decl. Amanda L. Neville ISO Mot. (“Neville Decl.”) 10 ¶¶ 1, 5, 8, ECF No. 16-1; see Compl. ¶¶ 4–5.) Tipsy New York also hosts a website, 11 where it offers wines and other goods in specified U.S. states. (Neville Decl. ¶ 11.) 12 Neville, who resides in New York, is Tipsy New York’s owner, operator, and founder. 13 (Compl. ¶ 5; Neville Decl. ¶¶ 1, 5.) According to Neville, from 2014 to 2020, Tipsy 14 New York averaged roughly 19,600 transactions each year. (Neville Decl. ¶ 20.) On 15 average, nineteen of these yearly sales—representing less than one-tenth of one percent 16 of sales—were to California residents. (Id.) Per Neville, Tipsy New York made two 17 sales to California residents in 2021, and since 2022, has made zero such sales, except 18 for one gift card sale to a California resident for a New York resident. (Id. ¶ 21.) Tipsy 19 New York’s website previously listed California as one of six U.S. states and territories 20 to which it shipped wine. (See Decl. R. Joseph Trokan ISO Opp’n (“Trokan Decl.”) 21 Ex. 1, ECF Nos. 20-1 to 20-2; Decl. Amanda L. Neville ISO Reply (“Neville Reply 22 Decl.”) ¶ 3, ECF No. 21.) However, Neville declares that in 2023 she removed 23 California as a shipping option from Tipsy New York’s website after she learned that 24 FedEx prohibits wine shipments to California. (Neville Decl. ¶ 22; Neville Reply Decl. 25 ¶¶ 4–5.) 26 27 2 All factual references derive from Tippsy California and Ito’s Complaint or attached exhibits, unless 28 otherwise noted, and well-pleaded factual allegations are accepted as true for purposes of this Motion. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 1 In 2023 and 2024, Tipsy New York, Neville, and their counsel sent cease-and- 2 desist letters to Tippsy California and Ito, alleging that they were infringing Tipsy New 3 York and Neville’s trademarks. (Compl. ¶¶ 5, 14, 21, 35, 49; Neville Decl. ¶¶ 25–26.) 4 Later, Tippsy California and Ito filed this action in the Central District of California. 5 (See Compl.) They assert five causes of action: three seeking declaratory relief of 6 trademark non-infringement, (id. ¶¶ 10–46), one seeking declaratory relief of trademark 7 concurrent use rights, (id. ¶¶ 47–53), and one alleging trademark infringement, (id. 8 ¶¶ 54–57). Tipsy New York and Neville moved to dismiss this case for lack of personal 9 jurisdiction. (Mot. 6.) The Motion is fully briefed. (Opp’n Mot. (“Opp’n”), ECF 10 No. 20; Reply ISO Mot. (“Reply”), ECF No. 21.) 11 III. LEGAL STANDARD 12 Pursuant to Federal Rule (“Rule”) of Civil Procedure 12(b)(2), a party may seek 13 dismissal of an action for lack of personal jurisdiction. Once a party seeks dismissal 14 under Rule 12(b)(2), the plaintiff has the burden of demonstrating that the court’s 15 exercise of personal jurisdiction is proper. Menken v. Emm, 503 F.3d 1050, 1056 16 (9th Cir. 2007). Where the motion is based on written materials rather than an 17 evidentiary hearing, as here, “the plaintiff need only make a prima facie showing of 18 jurisdictional facts.” Sher v. Johnson, 911 F.2d 1357, 1361 (9th Cir. 1990). 19 Accordingly, a court only “inquire[s] into whether [the plaintiff’s] pleadings and 20 affidavits make a prima facie showing of personal jurisdiction.” Caruth v. Int’l 21 Psychoanalytical Ass’n, 59 F.3d 126, 128 (9th Cir. 1995). 22 Although a plaintiff cannot “simply rest on the bare allegations of its complaint,” 23 Amba Mktg. Sys., Inc. v. Jobar Int’l, Inc., 551 F.2d 784, 787 (9th Cir. 1977), 24 “uncontroverted allegations in [the] complaint must be taken as true,” AT&T v. 25 Compagnie Bruxelles Lambert, 94 F.3d 586, 588 (9th Cir. 1996). Courts resolve factual 26 disputes in the plaintiff’s favor. Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1154 27 (9th Cir. 2006). 28 1 A federal district court may exercise personal jurisdiction over a non-resident 2 defendant if the defendant has “at least ‘minimum contacts’ with the relevant forum 3 such that the exercise of jurisdiction ‘does not offend traditional notions of fair play and 4 substantial justice.’” Dole Food Co. v. Watts, 303 F.3d 1104, 1110–11 (9th Cir. 2002) 5 (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). A district court “may 6 exercise either general or specific personal jurisdiction over nonresident defendants.” 7 Fed. Deposit Ins. Corp. v. British-Am. Ins. Co., 828 F.2d 1439, 1442 (9th Cir. 1987). 8 IV. DISCUSSION 9 Tippsy California and Ito do not contend that this Court has general personal 10 jurisdiction over Tipsy New York and Neville. (See Opp’n; see also Mot. 13–14; 11 Reply 1); Star Fabrics, Inc. v. Ross Stores, Inc., No. 2:17-cv-05877-PA (PLAx), 12 2017 WL 10439691, at *3 (C.D. Cal. Nov. 20, 2017) (“Where a party fails to oppose 13 arguments made in a motion, a court may find that the party has conceded those 14 arguments . . . .”). Instead, the parties dispute whether the Court has specific personal 15 jurisdiction over Tipsy New York and Neville. (See Mot. 14–16; Opp’n 1–8; Reply 1.) 16 The Ninth Circuit has formulated three requirements for establishing specific 17 jurisdiction over a non-resident defendant: 18 (1) the defendant must either purposefully direct his activities toward the 19 forum or purposefully avail himself of the privileges of conducting activities in the forum; (2) the claim must be one which arises out of or 20 relates to the defendant’s forum-related activities; and (3) the exercise of 21 jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable. 22 23 Axiom Foods, Inc. v. Acerchem Int’l, Inc., 874 F.3d 1064, 1068 (9th Cir. 2017) (cleaned 24 up). While “[t]he plaintiff bears the burden on the first two prongs,” once these prongs 25 are met, “the defendant must come forward with a ‘compelling case’ that the exercise 26 of jurisdiction would not be reasonable.” Ayla, LLC v. Alya Skin Pty. Ltd., 11 F.4th 27 972, 979 (9th Cir. 2021). The Court begins with the first prong. 28 1] A. Purposeful Direction and Purposeful Availment 2 Under the first prong, “to be subject to specific jurisdiction the defendant must 3 || purposefully direct its activities toward the forum state, purposefully avail itself of the 4|| privileges of conducting activities there, or engage in some combination thereof.” 5 || Impossible Foods Inc. v. Impossible X LLC, 80 F 4th 1079, 1088 (9th Cir. 2023) 6 || (anternal quotation marks omitted), cert denied, 144 S. Ct. 2561 (2024). Whether a 7 || court evaluates “‘a defendant’s contacts under the purposeful direction or purposeful 8 | availment test turns on the nature of the underlying claims.” J/d. (internal quotation 9 || marks omitted). “Outside the declaratory judgment context,” the Ninth Circuit has 10 | found “the purposeful direction framework is most applicable” for trademark 11 || infringement claims. /d. (collecting cases). 12 Recently, the Ninth Circuit commented that the “doctrinal dichotomy” created by 13 || these two tests “could be an ill-fit for evaluating a declaratory judgment case in which 14 || the traditional roles of plaintiff and defendant are reversed.” /d. at 1089. In Impossible 15 || Foods, the Ninth Circuit noted that this 1s “especially” the case where “the defendant’s 16 || actions were largely taken from within the state.” Jd. Therefore, in that case—where 17 || the defendant company had operated out of the forum state for years and its sole member 18 || maintained a residence and workspace and conducted his business activities on behalf 19 | of the company in the forum state—the Ninth Circuit collapsed the purposeful 20 || availment and purposeful direction tests to inquire into the defendant’s “purposefulness 21 || vis-a-vis the forum state, ensuring that defendants are not haled into a jurisdiction solely 22 || as aresult of random, fortuitous, or attenuated contacts.” /d. (internal quotation marks 23 || omitted). 24 However, this case is unlike Impossible Foods, and the Court finds it appropriate 25 || to use the traditionally applied purposeful direction test for trademark infringement. 26 || See, e.g., San Diego Cnty. Credit Union v. Citizens Equity First Credit Union, 65 F.4th 27 || 1012, 1035 (9th Cir. 2023); Herbal Brands, Inc. vy. Photoplaza, Inc., 72 F.4th 1085, 28 || 1090-91 (9th Cir. 2023). First, this case does not solely concern trademark

1 non-infringement, but also a claim for trademark infringement. (See Compl. ¶¶ 54–57.) 2 Second, the parties agree that the purposeful direction test applies. (See Mot. 12–13; 3 Opp’n 1.) Finally, this case is distinct from the unique circumstances of Impossible 4 Foods, where the Ninth Circuit found the “doctrinal dichotomy” was “especially” 5 unhelpful: where “the defendant’s actions were largely taken from within the state.” 6 Impossible Foods, 80 F.4th at 1089. While Tipsy New York’s past sales and shipments 7 to California are relevant, Tippsy California and Ito do not allege that Tipsy New York 8 and Neville sold their products from within California or ever held their headquarters 9 or residences there. (See Compl.); Impossible Foods, 80 F.4th at 1089, 1091 10 (concluding that defendant’s “trademark building activities” in the forum state “are 11 sufficient to satisfy” the first prong). Accordingly, as the Ninth Circuit has done in 12 some declaratory judgment trademark cases, the Court applies the purposeful direction 13 test. Cf. San Diego Cnty. Credit Union, 65 F.4th at 1035 (analyzing purposeful 14 direction in declaratory judgment non-infringement action). 15 To determine whether a defendant “purposefully directed” its activities toward 16 the forum, courts apply the “effects” test derived from Calder v. Jones, 465 U.S. 783 17 (1984). Herbal Brands, 72 F.4th at 1091. That “test asks whether the defendant: 18 (1) committed an intentional act, (2) expressly aimed at the forum state, (3) causing 19 harm that the defendant knows is likely to be suffered in the forum state.” Id. (internal 20 quotation marks omitted). 21 1. Intentional Act 22 In their Complaint, Tippsy California and Ito identify at least one intentional act 23 by Tippsy New York and Neville: Tipsy New York’s California sales. (Compl. ¶ 8); 24 see Herbal Brands, 72 F.4th at 1091 (finding defendants’ sale of products to forum state 25 residents to be an intentional act). 26 27 28 1 2. Expressly Aiming 2 Tipsy New York and Neville argue that they “did not expressly aim their conduct 3 at” California through their website. (Reply 4; see Mot. 14–16.) Tippsy California and 4 Ito disagree.3 (Opp’n 1–4.) 5 The Ninth Circuit has said that “operation of an interactive website does not, by 6 itself, establish express aiming.” Herbal Brands, 72 F.4th at 1091. However, 7 “operating a website in conjunction with something more—conduct directly targeting 8 the forum—is sufficient to satisfy the express aiming prong.” Id. at 1092 (internal 9 quotation marks omitted). Therefore, in Herbal Brands, the Ninth Circuit held “that if 10 a defendant, in its regular course of business, sells a physical product via an interactive 11 website and causes that product to be delivered to the forum, the defendant ‘expressly 12 aimed’ its conduct at that forum.” Id. at 1093. Whether a sale is in “the defendant’s 13 regular course of business instead of being random, isolated, or fortuitous,” is a “case- 14 specific question” based on “factors such as the seller’s identity (individual or a business 15 entity), the nature of the website used, the defendant’s total volume of online sales 16 including sales outside the forum, the number or variety of products offered on the 17 defendant’s website, and the defendant’s online advertising.” Id. at 1094 (internal 18 quotation marks omitted). Moreover, “the defendant must exercise some level of 19 control over the ultimate distribution of its products beyond simply placing its products 20 into the stream of commerce.” Id. The Court evaluates both factors. 21 22

23 3 In the Complaint, Tippsy California and Ito also allege that this Court has personal jurisdiction over Tipsy New York and Neville, in part, “because they have made accusations of infringement directed 24 at [Tippsy California and Ito] within this judicial district.” (Compl. ¶ 8.) In the Motion, Tipsy New 25 York and Neville contend that sending cease-and-desist letters to Tippsy California and Ito does not establish personal jurisdiction. (Mot. 14–16.) Tippsy California and Ito do not argue otherwise. (See 26 Opp’n.) Therefore, the Court finds these letters do not establish personal jurisdiction. See Impossible Foods, 80 F.4th at 1091 (noting “that in the usual case, a cease and desist letter is not in and of itself 27 sufficient to establishing personal jurisdiction over the sender of the letter” (alteration and internal 28 quotation marks omitted)); Star Fabrics, Inc., 2017 WL 10439691, at *3 (holding that courts may deem unopposed arguments waived). 1 a. Regular Course of Business 2 The parties disagree about the implications of the Ninth Circuit’s ruling in Herbal 3 Brands and the relevance of Tipsy New York ’s wine sales and shipments to California 4 before 2022. (See Mot. 16–17; Opp’n 1–6; Reply 3–7.) First, the parties dispute the 5 relevance of the “the volume of sales” from the express aiming analysis. (See Opp’n 5– 6 6; Reply 3–4.) Second, Tippsy California and Ito assert that Tipsy New York’s 7 pre-2022 California sales support express aiming, while Tipsy New York and Neville 8 highlight Tipsy New York’s lack of sales since 2022. (See Opp’n 4–5; Reply 4–5.) 9 In Herbal Brands, one factor the Ninth Circuit identified as relevant to the regular 10 course of business analysis is “the defendant’s total volume of online sales including 11 sales outside the forum.” Herbal Brands, 72 F.4th at 1094. Elsewhere in that case, the 12 Ninth Circuit stated that “the outcome of the express-aiming inquiry does not depend 13 on the number of sales made to customers in the forum,” and “[i]nstead of taking on an 14 arbitrary line-drawing task,” the inquiry “require[s] only that the sale must occur in the 15 defendant’s regular course of business.” Id. at 1095. Thus, courts look to the total 16 volume of online sales of the business as a whole—not those solely made in the forum 17 state—to determine whether the type of sales made in the forum state are in the regular 18 course of business. See Oceanside Health Prods., LLC v. Dvir Deri, LLC, No. 23- 19 55481, 2024 WL 2269270, at *2 (9th Cir. May 20, 2024) (rejecting argument that 20 personal jurisdiction does not exist where plaintiff “does not allege Defendants’ 21 sales . . . into California occurred in their regular course of business . . . . because the 22 relevant inquiry for express aiming is whether selling these products . . . occurred as 23 part of Defendants’ regular course of business—that is, the total volume of online sales, 24 both in and out of the forum”); Airhawk Int’l, LLC v. Air Seat Innovations LLC, 25 No. 3:23-CV-1068-AGS-BLM, 2024 WL 4048863, at *3 (S.D. Cal. Sept. 4, 2024) 26 (holding that defendants only having sold nineteen products, representing 0.175% of 27 total sales in the forum state, “is irrelevant” because the “‘number of sales made to 28 1 customers in the forum’ does not matter for” the regular course of business analysis 2 (quoting Herbal Brands, 72 F.4th at 1095)). 3 Here, there can be no dispute that sales of wine and related products are part of 4 Tipsy New York’s regular course of business. (See Neville Decl. ¶ 11 (stating Tipsy 5 New York “has a website, Shoptipsy.com, which offers various wines, gifts, spirits, and 6 sake for purchase and shipment all over the United States depending on the regulation 7 of a particular state”).) Tipsy New York also does not contest that it made California 8 sales before 2022. (Neville Decl. ¶¶ 20–21.) Instead, Tipsy New York and Neville 9 argue that the relevant time period is from 2022 to the present—when Tipsy New York 10 made zero such transactions with California residents—and that it should be credited 11 with taking “an extra step and intentionally avoid[ing] sales from Californians by telling 12 them they do not ship wines in California.” (Mot. 17.) While potentially relevant to 13 other factors within the personal jurisdiction inquiry, see Impossible Foods, 80 F.4th 14 at 1098, this does not alter the express aiming analysis. Tipsy New York and Neville 15 offer no case law to support a contrary conclusion. (See Mot.; Reply.) Tipsy New York 16 sells wine and other goods (including on its website) as part of its regular course of 17 business and made such sales to California residents. Therefore, Tipsy New York’s 18 California sales satisfy the regular course of business requirement. See Airhawk Int’l, 19 2024 WL 4048863, at *3 (“If anything, these California transactions over multiple years 20 show that the online sales were not truly isolated and thus were in the regular course of 21 business.” (internal quotation marks omitted)). 22 b. Control 23 The parties also dispute whether Tipsy New York and Neville exercised “some 24 level of control over the ultimate distribution of its products beyond simply placing its 25 products into the stream of commerce.” Herbal Brands, 72 F.4th at 1094. Tipsy New 26 York and Neville assert that they “exercise[d] control to avoid shipments to California” 27 starting in 2023. (Mot. 17.) If true, then the converse is as well: prior to 2023, Tipsy 28 New York and Neville exercised control by permitting sales and shipments to California 1 and using a third-party processing system to effectuate such sales and shipment. 2 (Neville Decl. ¶ 19); see Herbal Brands, 72 F.4th at 1094–95 (“Defendants exercised 3 control over distribution: they created and maintained a distribution network that 4 reached the relevant forum by choosing to operate on a universally accessible website 5 that accepts orders from residents of all fifty states and delivers products to all fifty 6 states.”). Tipsy New York and Neville need not have personally delivered the goods 7 themselves. Herbal Brands, 72 F.4th at 1092 n.4 (“Although Defendants are removed 8 from the process of handling orders, the use of [third-party] fulfillment service to handle 9 shipping logistics does not alter our jurisdictional analysis any more than a seller’s use 10 of the post office to ship its products would affect the inquiry.”). 11 Having found that Tipsy New York “sold products to [California] residents via 12 an interactive website in their regular course of business and causes those products to 13 be delivered to the forum,” the Court finds that Tipsy New York expressly aimed its 14 conduct at California.4 Id. at 1095. 15 3. Harm Suffered in California 16 The purposeful direction test’s third prong “asks whether the intentional acts 17 caused harm that the defendant knows is likely to be suffered in the forum state.” In re 18 W. States Wholesale Nat. Gas Antitrust Litig., 715 F.3d 716, 744 (9th Cir. 2013), aff’d 19 sub nom. Oneok, Inc. v. Learjet, Inc., 575 U.S. 373 (2015). In the trademark 20 infringement context, courts typically find this prong satisfied where a plaintiff alleges 21 that a defendant knew of a potential dispute connected to the forum state. For example, 22 23 24 25 26 27 4 As Tippsy California and Ito ultimately fail to show specific personal jurisdiction exists over Tipsy 28 New York, the Court need not—and does not—decide whether Tipsy New York’s California activities would be sufficient to support this Court’s personal jurisdiction over Neville. 1 where a defendant knew a plaintiff resided in the forum state and intentionally infringed 2 on their trademark,5 or had notice of potential dispute from a cease-and-desist letter.6 3 Tippsy California and Ito make no such allegations here. While Tippsy 4 California and Ito assert a cause of action for trademark infringement, they do not allege 5 that Tipsy New York and Neville’s infringement was done intentionally, willfully, or 6 knowingly. (See Compl. ¶¶ 54–57.) Tippsy California and Ito’s Complaint contains no 7 allegations that Tipsy New York and Neville even knew of the existence of Tippsy 8 California, Ito, and their trademark when Tipsy New York and Neville were still selling 9 goods to California residents. (See Compl.; Neville Decl. ¶ 25 (declaring that Neville 10 received a call regarding Tippsy California in November 2023, after Tipsy New York 11 and Neville had ceased California wine sales).) And Tippsy California and Ito have not 12 alleged they made Tipsy New York and Neville aware of potential infringement through 13 cease-and-desist letters. (See Compl.) While Tipsy New York and Neville sent such 14 letters to Tippsy California and Ito, (Neville Decl. ¶¶ 25–26), Tipsy New York and 15 Neville did so only after they had ceased California wine sales. As the Ninth Circuit 16 has explained, “[W]ithout the letters Defendants might not have known that Plaintiff[s] 17 would be harmed in” the forum state. Herbal Brands, 72 F.4th at 1091 n.2. Here, Tipsy 18 New York and Neville had no such notice. 19 20 5 See, e.g., Panavision Int’l., L.P. v. Toeppen, 141 F.3d 1316, 1321 (9th Cir. 1998) (finding prong met 21 where plaintiff alleged defendant “engaged in a scheme to register [plaintiff’s] trademarks . . . for the 22 purpose of extorting money from” plaintiff); Proximo Spirits, Inc. v. Green Lake Brewing Co., LLC, No. 2:22-cv-02879-SPG (SKx), 2022 WL 17224545, at *7 (C.D. Cal. Sept. 9, 2022) (finding prong 23 met where defendant was familiar with plaintiff and plaintiff alleged defendant “willfully infringed Plaintiff’s mark in California by intentionally selling the alleged infringing beer product in the forum 24 state”); Activision Publ’g Inc. v. Activision TV Inc., No. 2:12-cv-08964-SVW (JEMx), 2013 WL 25 1003546, at *5 (C.D. Cal. Feb. 25, 2013) (“[I]t was foreseeable that such harm would be exacted in California, the place where Plaintiff was known by Defendants to reside.”). 26 6 See, e.g., Herbal Brands, 72 F.4th at 1091 & n.2 (finding cease-and-desist letters provided notice to defendants that their actions were causing harm in the forum state); San Diego Cnty. Credit Union, 27 65 F.4th at 1035 (defendant’s filing of a cancellation petition with the Trademark Trial and Appeal 28 Board alleging the registration for the mark (used solely in the forum state) must be cancelled satisfied the first prong). 1 This case is unlike Jmpossible Foods. There, in the declaratory judgment context, 2 || the Ninth Circuit stated that “there is no further requirement that the defendant have 3 || specific knowledge that its in-state conduct would eventually cause harm in that 4 || jurisdiction” where “defendant’s conduct indisputably occurred in the forum state—and 5 || where the defendant was in fact based there.” Impossible Foods, 80 F Ath at 1090. 6 || Here, Tippsy California and Ito do not allege that Tipsy New York and Neville’s 7 || conduct occurred in California or that Tipsy New York and Neville were based in 8 | California. Because Tipsy New York and Neville have not “operated from within” 9 | California, the Court does not focus on their “entire course of dealing” to “establish 10 || sufficient minimum contacts.” Jd. As the Ninth Circuit noted, “[I]t is hardly novel to 11 || say that a company that operated from California for years availed itself of that state’s 12 || privileges.” Jd. Tippsy California and Ito make no such allegation. Jmpossible Foods 13 || is thus inapplicable here. 14 The Court finds that Tippsy California and Ito have not alleged that Tipsy New 15 || York and Neville caused harm that they knew was likely to be suffered in California. 16 || Thus, Plaintiffs fail to satisfy the Ca/der effects test, and this Court lacks personal 17 || jurisdiction. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 807 (9th Cir. 18 || 2004) (concluding personal jurisdiction analysis after finding plaintiff failed to satisfy 19 || first prong). 20| B. Jurisdictional Discovery 21 Tippsy California and Ito seek discovery “if the Court is considering granting the 22 || motion.” (Opp’n 8.) In particular, they identify the following fact issues: 23 e The identity of Tipsy New York’s California licenses importer; 24 e Whether Tipsy New York’s California sales were “single bottles, cases of wine, 25 or truck loads;” 26 e Whether California consumers made purchases as part of the Tipsy New York 27 wine club; and 28

1 e The extent of Tipsy New York’s marketing to California customers who were 2 part of Tipsy New York’s wine club. (Ud. at 8-9.) 3 | Whether to grant jurisdictional discovery is subject to the Court’s discretion. Wells 4|| Fargo & Co. v. Wells Fargo Express Co., 556 F.2d 406, 430 n.24 (9th Cir. 1977) 5 || (‘[R]efusal [to grant discovery] is not an abuse of discretion when it is clear that further 6 || discovery would not demonstrate facts sufficient to constitute a basis for jurisdiction.”). “Where a plaintiff's claim of personal jurisdiction appears to be both attenuated and 8 | based on bare allegations in the face of specific denials made by defendants, the Court 9 || need not permit even limited discovery.” Terracom v. Valley Nat’l Bank, 49 F.3d 555, 10 || 562 (9th Cir. 1995) (alterations omitted). 11 Here, discovery is unnecessary because none of the identified facts would alter 12 | the fatal flaw in the personal jurisdiction analysis: Tippsy California and Ito fail to 13 | allege that Tipsy New York and Neville’s conduct caused foreseeable harm in 14|| California. Accordingly, the Court DENIES Tippsy California and Ito’s request for 15 || jurisdictional discovery. 16 Vv. CONCLUSION 17 For the foregoing reasons, the Court GRANTS Defendants’ Motion. (ECF 18 || No. 16.) The action is dismissed without prejudice. 19 20 IT IS SO ORDERED. 21 22 November 14, 2024 N . 23 3 24 Udi 5 OTIS WRIGHT, II UNITED STATES DISTRICT JUDGE

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