PER CURIAM:[fn*] [fn*] Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Maria Elena Conklin, a citizen of Honduras, has filed a petition for review of a decision of the Board of Immigration Appeals. The BIA agreed with an immigration judge's denial of her motion to reconsider its prior denial of her motion to reopen the proceedings. We DISMISS the petition for review.
Conklin entered the United States at Miami as a non-immigrant student in 1981. The following year, she adjusted her status to lawful permanent resident after marrying a United States citizen. In 1985, Conklin was convicted of embezzlement. In October of 1986, proceedings for her removal began. After multiple changes of venue, Conklin finally appeared with counsel at a deportation hearing in New Orleans in May 1987. Conklin conceded that she could be removed but requested a waiver under then-applicable law. This led to the eventual scheduling of a new hearing just on the waiver grounds.
On October 7, 1987, a hearing concerning the waiver was held. Although Conklin did not attend the hearing, her attorney was present. The immigration judge determined that Conklin was properly served, had been notified of the time and place of the hearing, and had failed to appear without just cause. The immigration judge held that grounds for her removal were established by clear and convincing evidence at the May 1987 hearing. Since Conklin failed to appear at the hearing on the waiver, she did not establish her eligibility for discretionary relief. Therefore, the application for a waiver was denied, and Conklin was ordered removed.
Conklin nonetheless remained in the United States. In 2004, she applied in Miami to become a naturalized citizen. She asserted that she had never been excluded or deported and that she had never applied for any relief from exclusion or deportation. Her application was denied in light of the October 7, 1987 deportation order and accompanying warrant of deportation.
On May 13, 2008, over twenty years after being ordered deported, Conklin filed a motion in immigration court in New Orleans to reopen her proceedings. As a basis, Conklin claims that she did not receive proper notice of the October 7, 1987 hearing on her waiver application, the in absentia order, or the warrant of deportation. The immigration judge denied Conklin's motion to reopen, and later denied her motion to reconsider the denial. The BIA affirmed.
Before this court, Conklin contends that the immigration judge erred by applying an "exceptional circumstances" standard to her motion to reopen instead of the "reasonable cause" standard that applies in deportation proceedings initiated before 1992. She asserts that she meets the reasonable cause test because confusing circumstances caused her to miss her deportation hearing in 1987. In addition, Conklin asserts that the immigration judge erred by deciding her motion to reconsider based upon a reconstituted record after the original record was destroyed. She argues that the reconstituted record did not provide enough factual information to support a proper determination on the motion to reopen and that the record would have been more complete if she had received an evidentiary hearing. Conklin also contends that the BIA erred in finding that her motion to reopen was time barred because there is no time limitation for a motion to reopen when the deportation order was issued before June 13, 1992.
Section 1252 of Title 8 prohibits this court from reviewing a final order of removal unless "the alien has exhausted all administrative remedies available to the alien as of right." § 1252(d)(1); Roy v. Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004). An alien fails to exhaust administrative remedies for an issue when that issue "is not raised in the first instance before the BIA — either on direct appeal or in a motion to reopen." Roy, 389 F.3d at 137 (internal quotation marks and citation omitted). Because Conklin did not raise these claims initially before the BIA, we lack jurisdiction to consider them. See § 1252(d)(1); Roy, 389 F.3d at 137.
The petition for review is DISMISSED.
r. Adams does not have personal knowledge regarding the letter Marrs Printing allegedly received, and the testimony is inadmissible hearsay. The Court agrees, and
SUSTAINS Defendants' objections to paragraph nine for purposes of this motion only.
Similarly, Mr. Adams testifies in paragraph eight that Mr. Song likely sent similar letters to approximately 29 other companies because SDS USA shared the same database with Adams Technology. [Adams Decl. ¶ 8.] Defendants object to this statement on several grounds, including: Mr. Adams lacks personal knowledge that other SDS USA customers received similar letters; Mr. Adams's statements are hearsay because he is offering other customers' statements that they received the letter for the truth of the matter asserted; and Mr. Adams's statement that SDS USA likely sent the letter to approximately 29 companies is speculative. [Doc. No. 30, p. 3-5.] The Court agrees the testimony in paragraph eight is inadmissible. Mr. Adams does not identify the "several other customers" that presumably contacted Adams Technologies, how the customers contacted Adams Technologies, who the customers spoke to, what was said during the conversation, or why the letters were not forwarded to Adams Technology. Accordingly, for purposes of this motion, Defendants' objections are
SUSTAINED. Even if the Court considers the email and attached letter, however, the documents do not support a finding of general jurisdiction over Mr. Song. At best, the unsigned letter demonstrates Mr. Song may have sent a form letter to a "Valued Customer" in his capacity as president of SDS USA; the letter is written on SDS USA letterhead, and "President" appears below Mr. Song's signature block. Thus, nothing indicates Mr. Song acted in his individual capacity. In addition, the letter is not addressed to a California resident or business. Although Mr. Adams testifies he received the email and attached letter from David Reynolds — who is allegedly associated with a California business — the email from Mr. Reynolds to Mr. Adams merely states, "I am traveling up North but received this email." [Adams Decl. ¶ 6; Exh. A.] Mr. Reynolds does not indicate he actually received the correspondence from Mr. Song, and the forwarded portion of the original email identifies both the sender and the recipient as "info@iBEND.net." [ Id.]
The second email correspondence allegedly sent by Mr. Song is similarly unhelpful to Plaintiff. Mr. Adams testifies that, "On May 14, 2009, I received an email forwarded by a leasing agent. Adams Tech sold a machine in Sacramento, Simon Song sent this forwarded email to try and get the customer to cancel the order and purchase an iBend instead." [Adams Decl. ¶ 10; Exh. C.] In support of Mr. Adams's testimony, Plaintiff offers a string of email correspondence, beginning with an email from Mr. Song on April 29, 2009, addressed to "Whom it may concern." [Adams Decl. ¶ 10; Exh. C.] Defendants object to Mr. Adams's testimony and the supporting documents in Exhibit C, in part, on the grounds his testimony lacks foundation, and he does not have personal knowledge regarding the accuracy and authenticity of the email correspondence or Mr. Song's reasons for sending it. [Doc. No. 30, p. 7-8.] The Court agrees Mr. Adams's statement that, "Simon Song sent this forwarded email to try and get the customer to cancel the order and purchase an iBend instead" is not admissible, and SUSTAINS Defendants' objections to this portion of paragraph ten and Exhibit C. Mr. Adams does not appear as a recipient on the email correspondence, nor does Mr. Adams establish how he knows why Mr. Song sent the initial email.
Even if admissible, however, the email correspondence in Exhibit C does not demonstrate Mr. Song engaged in contact with the forum. Although it appears the email was ultimately received by companies that have California offices, this fact does not indicate Mr. Song directed his email to California. In addition, the correspondence reveals Mr. Song's email was repeatedly forwarded before ending up in the hands of the "leasing agent" who forwarded it to Mr. Adams. Thus, even viewed in the light most favorable to Plaintiff, Mr. Song's email does not provide an adequate basis for personal jurisdiction.
Based on the record before the Court, Plaintiff has not satisfied its burden to establish Mr. Song is subject to general jurisdiction in California. Not only has Plaintiff failed to produce any evidence Mr. Song engaged in contact with the forum in his individual capacity, the only admissible evidence even involving Mr. Song is his alleged attendance at a trade show in Las Vegas, Nevada — outside of California. It is undisputed Mr. Song is a New Jersey resident, who does not own or lease any property in California. Mr. Song does not maintain any telephone, fax, or answering services in California, he does not have a California driver's license, nor does he have a California bank account. Mr. Song's actions taken on behalf of SDS USA and iBend at the out-of-state trade show do not demonstrate he engaged in continuous or systematic contacts with California. Accordingly, this Court does not have general jurisdiction over Mr. Song.
(B) SDS USA
SDS USA similarly asserts it "lacks sufficient contacts with California to be subject to this Court's jurisdiction." [Doc. No. 14, p. 9.] SDS USA is a New Jersey corporation, with its principal place of business in Norwood, New Jersey. [SDS USA Decl. ¶ 3.] SDS USA is not qualified to do business in California, nor does it have any subsidiaries in California. [ Id. at ¶ 4.] "None of SDS USA's officers or directors reside or are domiciled in California," nor do any of SDS USA's employees reside or conduct business in California. [ Id. at ¶¶ 5-6.] In addition, SDS has not held any of its board meetings in California, or attended business conferences in California. [ Id. at ¶¶ 15.] SDS USA does not maintain a bank account in California, does not have any vehicles registered in California, and does not maintain any telephone, facsimile, or answering services in California. [ Id. at ¶¶ 7, 10-12.] SDS USA does not lease any storage space nor own any real property in California. [ Id. at ¶¶ 9, 13.] "SDS USA does not direct any of its advertising specifically toward California residents, nor does it advertise in any publications that are targeted or directed primarily toward California residents." [ Id. at 14.]
Declaration of Simon Song in his capacity as president and CEO of SDS USA, Inc.
Plaintiff asserts SDS USA's statements regarding its advertising are untrue because: SDS USA participated in a trade show in Long Beach, California in 2008 [Doc. No. 19, p. 5]; SDS USA advertises that it has two tool sharpening locations available to its clients, one of which is "ABL" in San Diego, California [ Id.; Exh. F]; and SDS USA advertises on Advanced Dye Supplies's website, a company which has an office in Santa Fe Springs, California [Doc. No. 19, p. 4-5]. Plaintiff also alleges SDS USA and iBend provided a quote for a machine to a company located in San Diego, California. [Doc. No. 19, p. 2, 5 n. 1.] (i) 2008 Trade Show in Long Beach, California
Plaintiff also relies on the two emails Mr. Song allegedly sent on behalf of SDS USA to solicit business from California companies. [ Id. at p. 5.] However, because the Court sustained Defendants' objections to these emails and related testimony, it will not consider the emails in its jurisdictional analysis.
Mr. Lim testifies that in 2008, one of SDS USA's distributors, Arete Corp., participated in "The Sign Business Digital Graphics Show" in Long Beach, California, and "SDS USA was displaying their products at this show." [Lim Decl. ¶ 8.] Mr. Lim spoke to Jeff Brown, of SDS USA, at the booth during the event. [ Id.] Because this trade show took place in California, the Court finds Mr. Lim's testimony adequately demonstrates SDS USA engaged in contact with the forum through its participation in the Long Beach show. Without more, however, SDS USA's presence at a single event does not establish sufficient systematic and continuous contacts to create general jurisdiction. See Kransco Manufacturing, 656 F.2d at 1377.
(ii) Quote to California Business
With respect to the alleged quote SDS USA and iBend provided to Sign Graphix in San Diego, California, Plaintiff provides testimony from Mr. Adams stating, "I have discovered that Jolly Limqueco of SIGN GRAPHIX received a quote for an iBEND machine from SDS USA in July 2009." [Adams Decl. ¶ 16.] Defendants object to this testimony on the grounds that it lacks foundation, Mr. Adams does not have personal knowledge regarding the quote, and it constitutes inadmissible hearsay. [Doc. No. 30, p. 15.] The Court agrees, and SUSTAINS Defendants' objections for purposes of this motion only. See Fed.R.Evid. 602. Mr. Adams does not demonstrate the requisite personal knowledge required to testify that Sign Graphix received a quote from the Defendants.
(iii) Website Advertisement Referral for Services
SDS USA's alleged marketing activities with two different companies that maintain California offices are likewise unhelpful to Plaintiff. Mr. Lim testifies, "I have discovered that SDS USA advertises on the website for Advanced Die Supplies . . . Advanced Die Supplies['s] west coast office is located in Santa Fe Springs, California." [Doc. No. 19, p. 4-5; Lim Decl. ¶ 10.] Plaintiff asserts this advertisement is "highly relevant to establish that SDS USA does business in California with Advanced Die Supplies." [Doc. No. 33, p. 10.] While SDS USA's logo appears on the website, the logo does not link to information about SDS USA, it does not invite people to contact SDS USA, and it does not provide an opportunity to interact with SDS USA in any way. In addition, that Advanced Die Supplies has a California location is inapposite. Plaintiff provides no evidence SDS USA has had any contact with the California office, nor that any contacts with potential customers in California arose from this advertisement.
Similarly, Mr. Lim testifies that SDS USA refers customers who need tools sharpened to SDS USA's New Jersey location, or to a company named ABL, Inc. in San Diego, California, depending on the customer's location. [Doc. No. 19, p. 5; Lim Decl. ¶¶ 12-14.] Mr. Lim states, in relevant part, "it is my understanding that in some instances a customer who has purchased an EasyBender sends [a] purchase order to SDS USA for the sharpening which is done in San Diego by ABL, Inc. It is my understanding that SDS USA then pays ABL, Inc. for the service." [Lim Decl. ¶ 13.] Defendants object to these statements on the grounds that the testimony lacks foundation and Mr. Lim lacks personal knowledge. [Doc. No. 30, p. 27.] For the following reasons, the Court SUSTAINS Defendants' objections.
Mr. Lim is not affiliated with SDS USA or ABL, Inc. — he is the president of Plaintiff SDS Korea. [Lim Decl. ¶ 1.] Mr. Lim's declaration does not establish how he has personal knowledge regarding SDS USA's relationship (if any) with ABL, Inc. Nor does he indicate how he has personal knowledge of SDS USA's alleged practices for coordinating the sharpening services provided by ABL, Inc. In the absence of evidence to establish Mr. Lim has personal knowledge regarding these matters, his testimony is inadmissible. Fed.R.Evid. 602.
For similar reasons, Exhibit "G" to Mr. Lim's declaration lacks foundation and is inadmissible. Although Mr. Lim declares, "I have knowledge that SDS USA has corresponded with ABL, Inc. discussing making attempts to lure service customers away from SDS Korea's distributor Adams Technology" [Lim Decl. ¶ 14], he fails to authenticate the supporting email correspondence in Exhibit G, and Mr. Lim is not an identified recipient on any of the correspondence.
Accordingly, in the absence of admissible evidence beyond SDS USA's isolated attendance at the Long Beach trade show in 2008, the Court finds SDS USA has not engaged in contact with California that can reasonably be considered equivalent to physical presence in the forum. See Bancroft Masters, 223 F.3d at 1086. Thus, this Court does not have general jurisdiction over SDS USA.
(C) iBend, LLC
iBend also moves to dismiss Plaintiff's complaint for lack of jurisdiction because it has not engaged in sufficient contacts with California to establish personal jurisdiction. iBend is a Missouri limited liability company with its principal place of business in Riverside, Missouri. [Declaration of Jay Joo ¶ 3.] None of iBend's employees, officers or directors are domiciled in California, nor do they conduct business for iBend or attend meetings or seminars on its behalf in California. [ Id. at ¶¶ 4-6, 15.] iBend does not maintain any office space in California, nor a mailing address, telephone or facsimile number in California. [ Id. at ¶¶ 11-12.] In addition, iBend does not maintain any bank accounts in California, does not own any vehicles registered in California, and does not own or lease any property in California. [ Id. at ¶¶ 7, 8-10, 12-13.] Nor does iBend direct any advertising specifically toward California. [ Id. at ¶ 14.]
Jay Joo is the president and sole member of iBend, LLC. [Joo Decl. ¶ 1.]
Plaintiff asserts Mr. Joo's testimony is untruthful because Mr. Song exhibited iBend's equipment at the trade show in Las Vegas, which was attended by over two thousand California residents, and for the past two years iBend has advertised in a monthly trade publication, Cutting Edge, which has a "large subscription base in California." [Doc. No. 19, p. 4, 12; Adams Decl. ¶¶ 12-13; Exh. D.] In addition, Plaintiff asserts iBend entered at least one contract with a California business, and that iBend currently advertises on Advanced Dye Supplies's website, which has an office in Santa Fe Springs, California. [Doc. No. 19, p. 4-5.] (i) Trade Show in Las Vegas, Nevada
Plaintiff also refers to an "attempted sale" where iBend allegedly attempted to convince a customer in Sacramento, California to cancel its order with Adams Technology and purchase a machine from iBend instead. [Adams Decl. ¶ 10.] Because the Court previously sustained Defendants' objections to paragraph ten of Mr. Adams's testimony and the corresponding emails in Exhibit "C" thereto, the Court does not consider this alleged contact in its jurisdictional analysis.
The Court also notes the FAC alleges — without elaboration — that iBend advertises infringing products on its website, http://ibend.net [FAC ¶ 39], but Plaintiff does not raise the iBend website in its opposition to Defendants' motion to dismiss. However, without more, a passive informational website that has not resulted in any identifiable contacts or sales with California residents does not create personal jurisdiction. See CollegeSource, Inc. v. AcademyOne, Inc., 2009 U.S. Dist. LEXIS *11-12, 15-16 (S.D. Cal.) (citing Bancroft, 223 F.3d at 1082; Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414 (9th Cir. 1997)).
Mr. Adams testifies he witnessed Mr. Song exhibiting iBend's equipment at the 2009 trade show in Las Vegas, Nevada. [Adams Decl. ¶ 12.] Plaintiff argues that because over 2,400 California residents attended the Las Vegas trade show, iBend purposefully directed its conduct toward California. For the reasons previously set forth above in section II(A)(i), iBend's presence at the Las Vegas trade show, through Mr. Song, does not demonstrate contact with California.
(ii) Trade Publication
Plaintiff argues iBend actively directs advertisements toward the forum because the trade publication, Cutting Edge, has a "large subscription based in California." [Adams Decl. ¶ 13.] However, there is nothing in the record to support this statement. Plaintiff asserts the "distribution list for the Cutting Edge magazine is posted on the internet and a listing of the Southern California recipients was attached as Exhibit "D" to Plaintiff's Notice of Lodgement." [Doc. No. 33, p. 9.] But Exhibit D, which consists of excerpts from Cutting Edge, including copies of iBend's advertisements in October 2009 and February 2010, do not indicate any significant connection to California. [Adams Decl. ¶ 13; Exh. D.] Accordingly, iBend's advertisements in Cutting Edge do not establish contact with the forum.
The Court notes several portions of Exhibit D are illegible.
(iii) Sale to California Business
Plaintiff also contends iBend engaged in contact with California because it has identified at least one allegedly infringing device sold to a California business. [Doc. No. 19, p. 12.] iBend asserts the identified device "was sold by a non-party distributor in North Hollywood, California." [Doc. No. 14, p. 3; Nielson Decl. ¶ 11.] Plaintiff interprets this statement as an admission that iBend "entered into at least one contract with a California business." [Doc. No. 19, p. 12.] Based on the record, however, iBend merely acknowledges that a third party distributor — not iBend — sold the device identified by Plaintiff. Without more, a single sale by an unidentified distributor to a California business does not establish that iBend had contact with the forum.
Accordingly, because iBend is not registered to do business in California, has no employees in California, and has no assets in California, the Court finds the contacts alleged by Plaintiff are not sufficient to support general jurisdiction over iBend.
III. SPECIFIC JURISDICTION "Where general jurisdiction is inappropriate, a court may still exercise specific jurisdiction if the defendant has sufficient contacts with the forum state in relation to the cause[s] of action." Sher, 911 F.2d at 1361 (citing Data Disc, Inc., 557 F.2d at 1286). Specific jurisdiction is analyzed using a three-prong test: (1) the non-resident defendant must purposefully direct its activities towards, or consummate some transaction with, the forum or a resident thereof, or perform some act by which it purposefully avails itself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) the claim must be one which arises out of or results from the defendant's forum-related activities; and (3) the exercise of jurisdiction must be reasonable. Lake v. Lake, 817 F.2d 1416, 1421 (9th Cir. 1987). Each of these conditions is required to assert jurisdiction. Insurance Co. of N. Am. v. Marina Salina Cruz, 649 F.2d 1266, 1270 (9th Cir. 1981).
Plaintiffs may satisfy the first prong in the analysis by demonstrating that the defendant "purposefully directed" its conduct toward the forum state, or "purposefully availed" itself of the privilege of doing business in the forum. Schwarzenegger, 374 F.3d at 802. Courts typically utilize the purposefully directed standard in tort cases, whereas the purposeful availment test is most useful for contract-based claims. Id.
To establish the defendant "purposefully directed" its conduct toward the forum, the plaintiff usually produces "evidence of the defendant's actions outside the forum state that are directed at the forum, such as the distribution in the forum state of goods originating elsewhere." Id. at 803. Conversely, the "purposeful availment" inquiry usually involves evidence of the defendant's actions in the forum to determine whether the defendant should reasonably anticipate being haled into the forum state court based on its contacts. Schwarzenegger, 374 F.3d at 802; World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980). The purposeful availment test is met where "the defendant has taken deliberate action within the forum state or if he has created continuing obligations to forum residents." Ballard, 65 F.3d at 1498.
The second prong in the analysis requires that the claim arise out of or result from the defendant's forum-related activities. A claim arises out of a defendant's conduct if the claim would not have arisen "but for" the defendant's forum-related contacts. Panavision Int'l v. L.P.v. Toeppa, 141 F.3d 1316, 1322 (9th Cir. 1998).
If the plaintiff satisfies the first two factors, the defendant bears the burden of overcoming a presumption that jurisdiction is reasonable, by presenting a compelling case that specific jurisdiction would be unreasonable. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477 (1985); Haisten v. Grass Valley Medical Fund, Ltd., 784 F.2d 1392, 1397 (9th Cir. 1986). Seven factors are considered in assessing whether the exercise of jurisdiction over a non-resident defendant is reasonable: (1) the extent of the defendant's purposeful interjection into the forum state's affairs; (2) the burden on the defendant of defending in the forum; (3) conflicts of law between the forum state and the defendant's home jurisdiction; (4) the forum state's interest in adjudicating the dispute; (5) the most efficient judicial resolution of the dispute; (6) the plaintiff's interest in convenient and effective relief; and (7) the existence of an alternative forum. Caruth v. International Psychoanalytical Ass'n, 59 F.3d 126, 128 (9th Cir. 1995).
(A) Simon Song
The only admissible evidence in the record regarding Mr. Song's contact with California involves his presence at the 2009 trade show in Las Vegas, Nevada. But, as previously discussed, Plaintiff has not demonstrated Mr. Song acted in his individual capacity at the show, and the Court may not assert jurisdiction over him based only on his association with iBend. Accordingly, this Court lacks specific jurisdiction over Mr. Song.
(B) SDS USA
Plaintiff asserts this Court has specific personal jurisdiction over SDS USA, because the company attended a trade show in 2008 in Long Beach, California, and it currently advertises on the website for Advanced Die Supplies, which has an office in Santa Fe Springs, California. As Plaintiff acknowledges, however, it is not merely the number of contacts the defendants have with California, it is "the quality and nature of those contacts which is important for establishing jurisdiction." [Doc. No. 19, p. 7-8; see Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985).]
The Court does not consider evidence of the other alleged contacts previously deemed inadmissible in section II(B), supra.
Plaintiff asserts SDS USA directly solicited business from California through its advertisement on Advanced Die Supplies's website. [Doc. No. 19, p. 13.] The Court disagrees. First, the record does not contain any evidence SDS USA's advertisement was deliberately directed toward the forum. Although Advanced Die Supplies has a California location, SDS USA's placement of its logo on the company's website, which is accessible nationwide, does not establish SDS USA was specifically seeking business from California. SDS USA's mere presence on a website that is accessible nationwide does establish personal jurisdiction in California. See, e.g., CollegeSource, 2009 U.S. Dist. LEXIS at *15 (citing Cybersell, 130 F.3d at 419). Second, Plaintiff has not demonstrated SDS USA purposefully availed itself of the benefits of conducting business in the forum through the placement of its logo on Advanced Die Supplies's website. The record contains no evidence the ad resulted in any interaction with potential customers in the forum, nor any sales to California residents or businesses.
Plaintiff's reliance on iBend's presence at the Long Beach trade show is similarly unavailing. According to Mr. Lim's testimony, SDS USA displayed its products at one of its distributor's booths at the Long Beach show; SDS USA did not purchase its own booth. [Lim Decl. ¶ 8.] Plaintiff does not offer evidence that SDS USA sold any products at the show to California residents or businesses, or that SDS USA otherwise entered any negotiations, agreements, or contracts with any California customers. Thus, the location of the trade show, which SDS USA had no control over, is the only evidence indicating any contact with the forum.
In addition, even assuming SDS USA's participation in the Long Beach trade show is sufficient to satisfy the first prong in the specific jurisdiction analysis, Plaintiff has not demonstrated its claims arise out of or relate to SDS USA's exhibition at the Long Beach show. "To satisfy th[e] second prong, the Ninth Circuit requires a plaintiff to show that [it] would not have suffered an injury "but for" the defendant's forum-related conduct." CollegeSource, Inc., 2009 U.S. Dist. LEXIS at *18-19 (citing Menken v. Emm, 503 F.3d 1050, 1058 (9th Cir. 2007)). Here, Plaintiff does not assert any of its alleged injuries resulted from SDS USA's participation in the Long Beach trade show. Notably, although Mr. Lim testifies SDS USA displayed its products at the show, he does not specify whether the products displayed were those that allegedly infringe Plaintiff's patents. Accordingly, Plaintiff has not satisfied the second prong in the specific jurisdiction analysis because Plaintiff's claims do not arise out of SDS USA's attendance at the show. SDS USA is not subject to specific personal jurisdiction in California.
(C) iBend, LLC
Finally, Plaintiff asserts iBend's exhibition at the Las Vegas trade show, its monthly advertisements in the trade publication, Cutting Edge, and one sale involving an allegedly infringing iBend machine in northern California establish specific jurisdiction over iBend. The Court disagrees.
As previously discussed, Mr. Adams testified he saw Mr. Song exhibiting "iBend equipment in the ARETE booth" at the trade show in Las Vegas, Nevada. [Adams Decl. ¶ 12.] Notably, this trade show took place outside of California. Although there were California residents in attendance at the trade show, there is no indication the potential access to California's residents motivated iBend's participation. In addition, Plaintiff does not assert iBend interacted with any California residents or businesses at the trade show, sold any products to California attendees, nor entered any negotiations or other agreements involving California consumers. The Ninth Circuit has held, "that a non-resident defendant's act of soliciting business in the forum state will generally be considered purposeful availment if that solicitation results in contract negotiations or the transaction of business." Shute v. Carnival Cruise Lines, 897 F.2d 377, 381 (9th Cir. 1990) (emphasis added) (citation omitted). Thus, iBend's mere presence at a trade show in Las Vegas, Nevada does not establish it purposefully directed any conduct toward California.
Similarly, Plaintiff asserts iBend specifically directed marketing activities toward the forum by placing monthly ads in Cutting Edge for the past two years. Because the record contains no evidence indicating where the publication is distributed, the existence of iBend's advertisements in Cutting Edge do not establish any contact with California. Lastly, Plaintiff identifies one sale of an allegedly infringing iBend machine to a business in San Francisco, California. While Plaintiff asserts iBend admits it entered this sales contract in California, the evidence demonstrates that an unidentified third-party distributor actually sold the iBend machine. Without more, the Court concludes the sale of an iBend machine by an unnamed third party does not establish iBend purposefully availed itself to the benefits and protections of California's laws such that it could reasonably be expected to be haled into California's courts. Accordingly, the conduct identified by Plaintiff does not demonstrate iBend is subject to specific jurisdiction.
IV. VENUE Even if Plaintiff had produced admissible evidence of sufficient contacts with California to exercise personal jurisdiction over any of the Defendants, venue in the Southern District is not proper. Plaintiff asserts it properly initiated this action in San Diego under 28 U.S.C. § 1391(b)(2) because a "substantial part of the events giv[ing] rise to the claim occurred" in this district. [Doc. No. 19, p. 14.] The record, however, belies Plaintiff's position.
Setting aside the admissibility problems with Plaintiff's evidence, none of the alleged events that give rise to Plaintiff's claims occurred in the Southern District of California. Indeed, the only link Plaintiff provides to the Southern District is an alleged quote from iBend to a San Diego company (Sign Graphix). Yet Plaintiff does not even allege the quote was given for an infringing machine. Accordingly, even if Plaintiff's allegations are taken as true, which they need not be on a motion to dismiss for improper venue, the facts before the Court do not demonstrate that any events, let alone a substantial part of the events, giving rise to Plaintiff's claims occurred in the Southern District. Because the Southern District of California is not a proper venue for Plaintiff's claims, its complaint is subject to dismissal.
See Argueta v. Banco Mexicano, S.A., 87 F.3d 320, 324 (9th Cir. 1996).
For the same reasons, venue is not proper in San Diego under the patent venue statute, 28 U.S.C. § 1400(b), which provides: "Any civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business." (emphasis added).
Although the Court agrees with Plaintiff that transferring the case to an appropriate venue is often preferable to dismissing the action, Plaintiff has not identified an appropriate venue for transfer. Similarly, Defendants did not identify a potentially acceptable venue until their reply brief, which identifies the Eastern District of New York. Because the record is devoid of any reference to parties or events in New York, the Court does not find New York to be an acceptable venue for transfer. Accordingly, dismissal is appropriate.
V. PLAINTIFF'S REQUEST FOR JURISDICTIONAL DISCOVERY Lastly, Plaintiff requests that it be granted an opportunity to conduct jurisdictional discovery if the Court finds the existing evidence does not demonstrate an adequate basis for personal jurisdiction over the Defendants. [Doc. No. 19, p. 18-19.] "Courts are afforded a significant amount of leeway in deciding whether parties may conduct discovery relating to jurisdictional issues while a motion to dismiss is pending. It is clear that the question of whether to allow discovery is generally within the discretion of the trial judge. However, where pertinent facts bearing on the question of jurisdiction are in dispute, discovery should be allowed." Orchid Biosciences, Inc. v. St. Louis Univ., 198 F.R.D. 670, 672 (S.D. Cal. 2001) (emphasis added) (internal marks and citations omitted).
Here, Plaintiff has not shown that pertinent facts bearing on jurisdiction are in dispute. Plaintiff asserts there are inconsistencies between Mr. Song's and Mr. Joo's declarations that warrant discovery, but fails to identify a single discrepancy between the two declarations. Similarly, Plaintiff unsuccessfully attempts to contradict Defendants' assertions that they have not engaged in advertising activities specifically directed toward California. As discussed more fully above, Plaintiff is unable to identify any advertising that specifically targeted the forum. Sheer speculation and conclusory statements regarding Defendants' alleged activities are insufficient to
satisfy the showing require by Orchid Biosciences. Thus, in the absence of any credible evidence that pertinent facts are in dispute, the Court DENIES Plaintiff's request for jurisdictional discovery.
Magistrate Judge McCurine recently permitted briefing on Plaintiff's request for jurisdictional discovery, and denied the request on June 11, 2010. [Doc. No. 28; see also Doc. No. 29-1, Exhs. 10-13.]
CONCLUSION Because the Court lacks personal jurisdiction over each of the Defendants, and none of the events giving rise to Plaintiff's claims occurred in the Southern District of California, the Court DISMISSES Plaintiff's complaint for lack of jurisdiction and improper venue. The Clerk of Court is instructed to terminate the case file.
IT IS SO ORDERED.