Synergy Drone, LLC v. Parrot S.A. et al

MOTION to Dismiss for Lack of Jurisdiction of the Amended Complaint Pursuant to Fed. R. Civ. P. 12

W.D. Tex.October 10, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION Synergy Drone LLC, Plaintiff, v. Parrot S.A., Parrot Drones S.A.S., and Parrot, Inc., Defendants. Civil Action No. 1:17-cv-00243-LY The Honorable Judge Lee Yeakel DEFENDANTS PARROT S.A.’S AND PARROT DRONES S.A.S’ MOTION TO DISMISS THE AMENDED COMPLAINT FOR LACK OF PERSONAL JURISDICTION PURSUANT TO FED. R. CIV. P. 12(b)(2) Case 1:17-cv-00243-LY Document 44 Filed 10/10/17 Page 1 of 30 i TABLE OF CONTENTS Page INTRODUCTION .......................................................................................................................... 1 STATEMENT OF FACTS ............................................................................................................. 2 LEGAL STANDARD ..................................................................................................................... 4 ARGUMENT .................................................................................................................................. 6 I. Synergy Drone Has Failed to Establish Personal Jurisdiction Over Parrot S.A. and Parrot Drones Based on a Stream-of-Commerce Theory. .................................................. 6 II. Synergy Drone Has Failed to Establish Personal Jurisdiction over Parrot S.A. and Parrot Drones Based on an Alter Ego Theory. ................................................................. 13 III. Synergy Drone Has Failed to Establish Personal Jurisdiction over Parrot S.A. and Parrot Drones Based on the Federal Long-Arm Statute. .................................................. 17 IV. Synergy Drone is Not Entitled to Jurisdictional Discovery. ................................................. 20 CONCLUSION ............................................................................................................................. 20 Case 1:17-cv-00243-LY Document 44 Filed 10/10/17 Page 2 of 30 ii TABLE OF AUTHORITIES Page Cases 3DSys. Inc. v. Aarotech Labs. Inc., 160 F.3d 1373 (Fed. Cir. 1998).............................................................................................. 13 Admin. of Tulane Educational Fund v. Ipsen, S.A., 450 F. App’x 326 (5th Cir. 2011) .......................................................................................... 15 AFTG-TG, LLC v. Nuvoton Tech. Corp., 689 F.3d 1358 (Fed. Cir. 2012)........................................................................................ 6, 7, 8 Anza Tech., Inc. v. D-Link Sys., Inc., No. 3:16-cv-01263-BEN-AGS, 2016 WL 8732647 (C.D. Cal. Nov. 4, 2016) ........................ 6 Asahi Metal Industry Co. v. Superior Court of Calif., Solano Cnty., 480 U.S. 102 (1987) ........................................................................................................ passim Asarco, Inc. v. Glenara, Ltd., 912 F.2d 784 (5th Cir. 1990) ................................................................................................. 14 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ................................................................................................................. 4 Autogenomics, Inc. v. Oxford Gene Technology, Ltd., 566 F.3d 1012 (Fed. Cir. 2009)................................................................................................ 4 Avocent Huntsville Corp. v. Aten Int’l Co., Ltd., 552 F.3d 1324 (Fed. Cir. 2008).............................................................................................. 12 Beverly Hills Fan Co. v. Royal Sovereign Corp., 21 F.3d 1558 (Fed. Cir. 1994).................................................................................................. 7 Blue Rhino Global Sourcing, Inc. v. Sanxin Int’l Ltd., No. 1:16cv581, 2017 WL 3588773 (M.D.N.C. Aug. 18, 2017) ............................................ 11 Calder v. Jones, 465 U.S. 783 (1984) ................................................................................................................. 5 Camo Clad, Inc. v. Latent Image, Inc., No. 00C278, 2000 WL 343324 (N.D. Ill. Mar. 31, 2000) ......................................................................................................................................... 9 Celgard, LLC v. SK Innovation Co., Ltd., 792 F.3d 1373 (Fed. Cir. 2015).................................................................................... 8, 10, 13 Case 1:17-cv-00243-LY Document 44 Filed 10/10/17 Page 3 of 30 iii Daimler AG v. Bauman, 134 S.Ct. 746 (2014) .................................................................................................. 2, 5, 6, 19 Fielding v. Hubert Burda Media, Inc., 415 F.3d 419 (5th Cir. 2005) ................................................................................................. 20 Fumuto Glicken Co., Ltd. v. Mistuoka, No. CV 14-9797 DMG(MRWx), 2015 WL 12766167 (C.D. Cal. Apr. 16, 2015)................ 18 Holland Am. Line Inc. v. Wartsila N. Am., Inc., 485 F.3d 450 (9th Cir. 2007) ................................................................................................. 20 Howard v. Everex Sys., Inc., 228 F.3d 1057 (9th Cir. 2000) ............................................................................................... 17 Int’l Shoe Co v. Washington, 326 U.S. 310 (1945) ................................................................................................................. 5 J. McIntryre Machinery, Ltd. v. Nicastro, 564 U.S. 873 (2011) ..................................................................................................... 7, 10, 13 Jackson v. Tanfoglio Giuseppe, S.R.L., 615 F.3d 579 (5th Cir. 2010) ............................................................................................... 8, 9 Johnson v. Verizon Commc’ns, Inc., No. 3:10-cv-01764-B, 2011 WL 1343390 (N.D. Tex. Apr. 7, 2011) .............................. 14, 15 Johnston v. Multidata Sys. Int’l Corp., 523 F.3d 602 (5th Cir. 2008) ................................................................................................... 5 Minnesota Mining & Mfg. Co. v. Eco Chem, Inc., 757 F.2d 1256 (Fed. Cir. 1985)........................................................................................ 13, 17 Monkton Ins. Serv’s, Ltd. v. Ritter, 768 F.3d 429 (5th Cir. 2014) ................................................................................................. 20 Next Technologies, Inc. v. ThermoGenisis, LLC, 121 F. Supp. 3d 671 (W.D. Tex. 2015).................................................................................. 20 Pharmacia Corp. v. Motor Carrier Servs. Corp., 309 F. App’x 666 (3d Cir. 2009) ........................................................................................... 15 Polar Electro Oy v. Suunto Oy, 829 F.3d 1343 (Fed. Cir. 2016).............................................................................................. 12 Simone v. VSL Pharm., Inc., No. TDC-15-1356, 2017 WL 658711 (D. Md. Feb. 16, 2017) ........................................ 18, 19 Case 1:17-cv-00243-LY Document 44 Filed 10/10/17 Page 4 of 30 iv Sys. Div., Inc. v. Teknek Elecs., Inc., 253 F. App’x 31 (Fed. Cir. 2007) .......................................................................................... 17 Tex. Mut. Ins. Co. v. Integrated Claims Sys’s, LLC, No. A-13-cv-128-LY, 2013 WL 11311776 (W.D. Tex. Apr. 29, 2013) ............................... 20 Touchcom, Inc. v. Breskin & Parr, 574 F.3d 1403 (Fed. Cir. 2009).............................................................................................. 17 Trinity Indus., Inc. v. Greenlease Holding Co., No. 08-1498, 2014 WL 1766083 (W.D. Pa. 2014) ................................................................ 15 Trustees of Nat’l Elevator Indus. Pension, Health Benefit & Educational Funds v. Lutyk, 332 F.3d 188 (3d Cir. 2003)................................................................................................... 16 United States v. Jon-T Chemicals, 768 F.2d 686 (5th Cir. 1985) ........................................................................................... 13, 14 Washington v. Norton Mfg., Inc., 588 F.2d 441 (5th Cir. 1979) ................................................................................................. 20 Xilinx, Inc. v. Papst Licensing GmbH & Co. KG, 848 F.3d 1346 (Fed. Cir. 2017).................................................................................. 4, 5, 6, 18 Rules/Statutes Fed. R. Civ. P. 4(k)(2)............................................................................................................... 1, 17 Other Authorities Fletcher Cyclopedia of the Law of Corporations .......................................................................... 16 Case 1:17-cv-00243-LY Document 44 Filed 10/10/17 Page 5 of 30 1 Defendants Parrot S.A. and Parrot Drones S.A.S. (“Parrot Drones”) respectfully move this Court to dismiss Plaintiff Synergy Drone LLC’s (“Synergy Drone”) Amended Complaint, Dkt. 36, for lack of personal jurisdiction. INTRODUCTION Just hours before its response to Parrot S.A.’s and Parrot Drones’ prior motion to dismiss for lack of personal jurisdiction, Dkt. 25, was due, Synergy Drone amended its complaint and then averred that its submission “addresses all concerns raised in [the] Motion to Dismiss.” Dkt. 37 at 1. Synergy Drone is wrong. Despite asserting multiple new theories of personal jurisdiction over Parrot S.A. and Parrot Drones, the Amended Complaint lacks proper support for any of these theories, and is a last-minute attempt to manufacture personal jurisdiction over two French corporations without any connection to this District. Specifically, the Amended Complaint is devoid of any allegations that either Parrot S.A. or Parrot Drones purposefully shipped, sent, or directed any of the accused products to this forum, which is the essential prerequisite for the viability of a stream-of-commerce theory of personal jurisdiction. Nor has Synergy Drone pled facts from which this Court could plausibly infer that either Parrot S.A. or Parrot Drones has completely dominated or controlled Parrot, Inc. such that piercing the corporate veil is warranted. Finally, Synergy Drone’s reliance on Federal Rule of Civil Procedure 4(k)(2) (“the federal long-arm statute”) is similarly fruitless, as neither Parrot S.A. nor Parrot Drones have sufficient contacts with the United States as a whole to warrant invocation of that provision. Indeed, Synergy Drone frequently and impermissibly lumps Parrot S.A. and Parrot Drones together, even though it has the burden of establishing personal jurisdiction for each distinct Defendant. Nor is Synergy Drone entitled to jurisdictional discovery. See Dkt. 37 at 2. This is Synergy Drone’s second attempt at conferring personal jurisdiction over both Parrot S.A. and Case 1:17-cv-00243-LY Document 44 Filed 10/10/17 Page 6 of 30 2 Parrot Drones, yet it still has not made the requisite showing-a preliminary showing of personal jurisdiction over either Defendant. Allowing jurisdictional discovery would enable Synergy Drone to embark on an unsupported fishing expedition while imposing significant burdens on Parrot S.A. and Parrot Drones. Indeed, the Supreme Court has urged courts to remain mindful of “risks to international comity” and “[c]onsiderations of international rapport” when considering whether personal jurisdiction over corporations residing on foreign soil is proper. Daimler AG v. Bauman, 134 S.Ct. 746, 763 (2014). These concerns are directly implicated here, and forcing either Parrot S.A. or Parrot Drones to litigate in this forum, or be subjected to jurisdictional discovery, is anathema to notions of fair play and substantial justice. Accordingly, Parrot S.A. and Parrot Drones should be dismissed from this case. STATEMENT OF FACTS Synergy Drone is a Texas corporation with its principal place of business in Austin, Texas. Dkt. 36, ¶ 1. It asserts infringement of five patents, all of which relate to “methods, systems, and devices for controlling radio-controlled vehicles, including helicopters and other aircraft ‘RC vehicles.’” Id., ¶ 49. Defendants Parrot S.A. and Parrot Drones are French corporations that both have their principal places of business in Paris, France. Dkt. 36, ¶¶ 2-3. Neither Defendant has designated an agent for service of process in the state of Texas. Id. The third named Defendant is Parrot, Inc., a New York corporation with its principal place of business in San Francisco, California. Id., ¶ 4. The Amended Complaint alleges three different theories of personal jurisdiction over Parrot S.A. and Parrot Drones. First, Synergy Drone asserts that “Defendants, acting in consort, placed the accused infringing drones in the stream of commerce directed to the United States, including the State of Texas” and “knew the likely destination of the products would include the State of Texas.” Id., ¶ 19. The Amended Complaint further alleges that: (1) Parrot, Inc. is Case 1:17-cv-00243-LY Document 44 Filed 10/10/17 Page 7 of 30 3 responsible for distribution in the United States of drones and drone-related products, and is part of the “distribution channels” used by Parrot S.A. and Parrot Drones to sell these products in Texas, id., ¶¶ 12-15, (2) that Parrot S.A. and Parrot Drones are listed on the packaging, manuals, and shipping invoices accompanying the accused products, id. ¶¶ 16-17, and (3) that Parrot S.A. and Parrot Drones own “all United States Parrot patents and trademarks, including the Parrot trademarks affixed to the accused infringing drones.” Id., ¶ 18. Synergy Drone’s second theory is that Parrot S.A. and Parrot Drones “have failed to observe corporate formalities, thus justifying piercing the corporate veil.” Id., ¶ 20. The allegations supporting this assertion are that: (1) the “Parrot entities” have “common officers and directors,” id., ¶ 21; (2) Parrot S.A. has offered “stock options as compensation to employees of Parrot, Inc.,” id., ¶ 22; (3) “[o]n information and belief,” Parrot S.A. has comingled its insurance on accounts receivable with Parrot Drones and Parrot, Inc., and that Parrot S.A. has “comingled operating funds with Parrot, Inc.” because of the possibility that, “on occasion,” the two companies may “pay expenses for one another,” id., ¶¶ 23-24; (4) “Parrot S.A. has grossly undercapitalized Parrot, Inc.” compared to other Parrot subsidiaries, id., ¶ 25; and (5) Parrot S.A. and Parrot Drones have “intentionally ignored corporate formalities” by directing customers to the legal department of “Parrot S.A. and/or Parrot Drones” for intellectual property issues, and by filing suit, with Parrot, Inc., in Delaware to protect their intellectual property, id. ¶¶ 26-27. The last personal jurisdiction theory the Amended Complaint asserts is based on the federal long-arm statute and the following allegations: the “United States is the primary geographical focus of Parrot S.A. and Parrot Drones S.A.S. for their drone technology,” that U.S. retailers are listed by Parrot S.A. as key retailers, that Parrot S.A. through Parrot, Inc., reported more than $82 million in United States sales in 2015, that Parrot S.A. paid salaries in the United Case 1:17-cv-00243-LY Document 44 Filed 10/10/17 Page 8 of 30 4 States of over $3 million in 2015, and that Parrot S.A. and Parrot Drones have protected their intellectual property in the United States and have, in the manuals accompanying the accused products, identified the legal department of Parrot S.A. and/or Parrot Drones as being responsible for intellectual property issues. Id., ¶¶ 30-38. Apart from these newfound allegations, the Amended Complaint is virtually identical to the initial complaint Synergy Drone filed. See Dkt. 1.1 LEGAL STANDARD The propriety of exercising personal jurisdiction over defendants in patent infringement suits is governed by Federal Circuit law because “the jurisdictional issue is intimately involved with the substance of the patent laws.” Xilinx, Inc. v. Papst Licensing GmbH & Co. KG, 848 F.3d 1346, 1352 (Fed. Cir. 2017) (internal quotation marks and citations omitted). On a motion to dismiss for lack of personal jurisdiction, a plaintiff must make a prima facie showing that Defendants are subject to personal jurisdiction based on “affidavits and other written materials.” Id. (internal quotation marks and citations omitted). The “uncontroverted allegations” in the Amended Complaint must be accepted as true. Id. (emphasis added) (internal quotation marks and citations omitted). Importantly, however, this Court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citations omitted). Personal jurisdiction has “two bases: general and specific jurisdiction.” Autogenomics, Inc. v. Oxford Gene Technology, Ltd., 566 F.3d 1012, 1017 (Fed. Cir. 2009). In the context of specific jurisdiction, “[d]etermining whether jurisdiction exists over an out-of-state defendant 1 The initial complaint Synergy Drone filed predicated personal jurisdiction solely on “the operation of a website that sells drones and drone-related products.” Dkt. 25 at 1. The website occupies a much less prominent role in the Amended Complaint. Case 1:17-cv-00243-LY Document 44 Filed 10/10/17 Page 9 of 30 5 involves two inquiries: whether a forum state’s long-arm statute permits service of process and whether assertion of personal jurisdiction violates due process.” Xilinx, 848 F.3d at 1352 (internal quotation marks and citations omitted). The “Texas long-arm statute extends to the limits of federal due process.” Johnston v. Multidata Sys. Int’l Corp., 523 F.3d 602, 609 (5th Cir. 2008). Thus, “the two inquires collapse into a single inquiry: whether jurisdiction comports with due process.” Xilinx, 848 F.3d at 1353 (internal quotation marks and citations omitted). The Federal Circuit has articulated a three-factor test to ascertain whether exercising specific personal jurisdiction comports with due process: “(1) whether the defendant purposefully directed its activities at residents of the forum; (2) whether the claim arises out of or relates to the defendant’s activities with the forum; and (3) whether assertion of personal jurisdiction is reasonable and fair.” Xilinx, 848 F.3d at 1353 (internal quotation marks and citations omitted). In other words, for both Parrot S.A. and Parrot Drones, Synergy Drone must satisfy all three preconditions to ensure that the two cornerstones of specific personal jurisdiction are met: (1) that each defendant has the requisite minimum contacts with the forum; and (2) that notions of fair play and substantial justice are not offended. See Int’l Shoe Co v. Washington, 326 U.S. 310, 316 (1945); Xilinx, 848 F.3d at 1353. And “[e]ach [D]efendant’s contacts with the forum state must be assessed individually.” Calder v. Jones, 465 U.S. 783, 790 (1984). The more exacting standard of general jurisdiction, meanwhile, demands that a corporation be “essentially at home in the forum state” such that the “corporation’s affiliations with the State in which suit is brought are so constant and pervasive” in order to justify the assertion of jurisdiction over a foreign corporation “to hear any and all claims against [it].” Daimler, 134 S.Ct. at 751 (alteration in original) (internal quotation marks and citations omitted). Case 1:17-cv-00243-LY Document 44 Filed 10/10/17 Page 10 of 30 6 Stated differently, the contacts must be so “continuous and systematic” to support exercising personal jurisdiction based on contacts unrelated to the claims at issue. Id. at 754. The distinction between specific and general jurisdiction has particular importance in this case, for it is well-established that to survive a motion to dismiss, the complaint must name “specifically identified products or product components [that] do what the patent does, thereby raising a plausible claim that the named products are infringing.” Anza Tech., Inc. v. D-Link Sys., Inc., No. 3:16-cv-01263-BEN-AGS, 2016 WL 8732647, at *4 (C.D. Cal. Nov. 4, 2016). The Amended Complaint only specifically identifies one accused product: the AR.Drone 2.0. See Dkt. 36, ¶¶ 17, 59, 72, 85, 98, 111. Accordingly, to the extent that Synergy Drone tries to rely on contacts unrelated to the AR.Drone 2.0, these contacts are relevant, if at all, to general jurisdiction, but immaterial for purposes of specific jurisdiction, which requires “the claim [to] arise[] out of or relate[] to the defendant’s activities with the forum.” Xilinx, 848 F.3d at 1353. ARGUMENT I. SYNERGY DRONE HAS FAILED TO ESTABLISH PERSONAL JURISDICTION OVER PARROT S.A. AND PARROT DRONES BASED ON A STREAM-OF- COMMERCE THEORY. The precise contours of the stream-of-commerce theory are unsettled, at best, as the “Supreme Court has yet to reach a consensus on the proper articulation of the theory.” AFTG- TG, LLC v. Nuvoton Tech. Corp., 689 F.3d 1358, 1362 (Fed. Cir. 2012). Courts accordingly assess “personal jurisdiction premised on the stream-of-commerce theory on a case-by-case basis by inquiring whether the particular facts of a case support the exercise of personal jurisdiction.” Id. The theory stems from the Supreme Court’s decision in Asahi Metal Industry Co. v. Superior Court of Calif., Solano Cnty., 480 U.S. 102 (1987). In Asahi, Justice O’Connor, writing for a plurality of four Justices, stated that the “substantial connection between the defendant and the forum State . . . must come about by an action of the defendant purposefully directed toward the Case 1:17-cv-00243-LY Document 44 Filed 10/10/17 Page 11 of 30 7 forum State. The placement of a product into the stream of commerce, without more, is not an act of the defendant purposefully directed toward the forum state.” AFTG-TG, 689 F.3d at 1362 (quoting Asahi, 480 U.S. at 112). Justice Brennan, on the other hand, articulated a different approach for another four-Justice plurality based on “considerations of foreseeability,” id.: The stream of commerce refers not to unpredictable currents or eddies, but to the regular and anticipated flow of products from manufacture to distribution to retail sale. As long as a participant is aware that the final product is being marketed in the forum State, the possibility of a lawsuit there cannot come as a surprise. Asahi, 480 U.S. at 117 (Brennan, J., concurring in part). The Supreme Court revisited the stream-of-commerce theory in J. McIntryre Machinery, Ltd. v. Nicastro, 564 U.S. 873 (2011), but ultimately “declined to resolve the Asahi split.” AFTG-TG, 689 F.3d at 1363. The Federal Circuit has accordingly abstained from “tak[ing] a side on the Asahi divide” and has instead repeatedly found that the “result [is] clear” in cases implicating the stream-of- commerce theory, irrespective of which formulation of the theory is applicable. AFTG-TG, 689 F.3d at 1364. For example, in Beverly Hills Fan Co. v. Royal Sovereign Corp., 21 F.3d 1558 (Fed. Cir. 1994), the Federal Circuit found that personal jurisdiction was proper based on the stream-of-commerce theory because the “defendants made ongoing and continuous shipments of the accused infringing product into Virginia and maintained an established distribution network that encompassed Virginia”; thus, “sufficient contacts with the forum state existed to support the exercise of personal jurisdiction on any articulation of the stream-of-commerce theory.” AFTG- TG, 689 F.3d at 1364. The court in AFTG-TG adhered to the same approach, finding it unnecessary to take a “position on the stream-of-commerce theory” because the “paltry allegations in the complaint” did not support application of the stream-of-commerce theory: “at most, one of the defendants made isolated shipments to Wyoming” and the plaintiff “proffered no evidence indicating that Wyoming was part of any defendant’s continuous, established Case 1:17-cv-00243-LY Document 44 Filed 10/10/17 Page 12 of 30 8 distribution channels.” 689 F.3d at 1365. Thus, the case was “not a close call, regardless of how one articulates the stream of commerce theory.” Id.; see also Celgard, LLC v. SK Innovation Co., Ltd., 792 F.3d 1373, 1382 (Fed. Cir. 2015) (“[T]he results of the case are the same under either formulation of the stream-of-commerce test . . . . [The] evidence fails to show . . . that [the Defendant] can foresee that [the accused products] will make their way [to the forum state] . . . . We hold that the district court correctly declined to exercise jurisdiction under a stream-of- commerce theory.”). It is similarly unnecessary for this Court to endorse either of the competing approaches elucidated in Asahi, for the Amended Complaint lacks two critical preconditions necessary to apply the theory: (1) the participation of Parrot S.A. and Parrot Drones in the relevant stream of commerce; and (2) the purposeful direction of the accused products to the state of Texas. The essence of the stream-of-commerce theory is that the particular defendant raising the defense of personal jurisdiction is a “participant” in the stream of commerce. Asahi, 480 U.S. at 117 (Brennan, J., concurring in part). Synergy Drone cannot meet this requirement for either Parrot S.A. or Parrot Drones, however, as neither play any role whatsoever in the sale and distribution of the accused products in the United States. Rather, Parrot, Inc. has exclusive responsibility for processing all United States sales and subsequently distributing and/or arranging for distribution of the accused products in the United States. See Second Floret Decl. ¶ 4. Thus, Synergy Drone’s attempts to confer personal jurisdiction over Parrot S.A. and Parrot Drones cannot get off the ground, for “there is no evidence that [these Defendants], as distinct from other [Defendant] entities . . . delivered the product into the stream of commerce with the expectation that it would be purchased or used by consumers in the forum state.” Jackson v. Case 1:17-cv-00243-LY Document 44 Filed 10/10/17 Page 13 of 30 9 Tanfoglio Giuseppe, S.R.L., 615 F.3d 579, 586 (5th Cir. 2010) (internal quotation marks and citations omitted). Indeed, the Amended Complaint confirms that Parrot, Inc. has exclusive responsibility for distributing and delivering the accused products in the stream of commerce. The Amended Complaint alleges that Parrot, Inc. was the distribution subsidiary set up by Parrot S.A. in the “United States,” that consequently, Parrot, Inc. “maintains a place of business in the Austin area”2 and most importantly, that any sale of accused products in the “U.S., including the State of Texas” occurs “through the[] U.S. distribution subsidiary, Parrot, Inc.” Dkt. 36, ¶¶ 12, 14-15 (emphasis added). As Synergy Drone has recognized, Parrot S.A. and Parrot Drones play no role in distributing the accused products themselves anywhere in the United States, which is fatal to its attempt to use the stream-of-commerce theory over both. See Second Floret Decl. ¶¶ 4-5. That the two companies allegedly “overs[aw] and commision[ed] the manufacture of the accused infringing drones” is legally insufficient to establish jurisdiction based on the stream-of- commerce theory, which focuses on actual delivery and distribution of the accused products. Id., ¶¶ 12-13; see also Camo Clad, Inc. v. Latent Image, Inc., No. 00C278, 2000 WL 343324, at *2 (N.D. Ill. Mar. 31, 2000) (finding that “purported oversight and control of a licensee network” failed to constitute minimum contacts under the stream-of-commerce theory). Distilled to its essence, Synergy Drone attempts to conflate its alter ego and stream-of-commerce theories, by attempting to impute the contacts of Parrot, Inc. to Parrot S.A. and Parrot Drones in arguing that the latter two distribute the accused products “through” Parrot, Inc. Id., ¶ 15. But Synergy 2 The Amended Complaint also incorrectly asserts “on information and belief” that “Parrot, Inc. still maintains a place of business in the Austin Area.” Dkt. 36, ¶ 14. To the contrary, Parrot, Inc. has no current business operations or remote staff working in Austin. See Second Floret Decl. ¶ 3. Case 1:17-cv-00243-LY Document 44 Filed 10/10/17 Page 14 of 30 10 Drone has not shown that Parrot, Inc. acts as the agent or alter ego of either Parrot S.A. or Parrot Drones, see Section II, infra, leaving undisturbed the conclusion that neither Parrot S.A. nor Parrot Drones play any role in distributing and delivering the accused products in the United States. For similar reasons, “Defendants[’]” listing of “at least ten (10) retailers within the Austin, Texas area” on the website “https://www.parrot.com/us/#drones” is immaterial because Parrot, Inc. has exclusive responsibility for operation of that website, see Dkt. 25-1 ¶¶ 7-8, something Synergy Drone is likely aware of given the allegation’s nebulous reference to “Defendants.” Dkt 36, ¶ 10.3 This allegation accordingly fails to show Parrot S.A.’s and Parrot Drones’ specific awareness “that the final product is being marketed in the forum state,” since Parrot, Inc., not Parrot S.A. or Parrot Drones, listed the retailers in Texas where the accused products are sold. Asahi, 480 U.S. at 117 (Brennan, J., concurring in part). The remaining allegations that Synergy Drone has proffered cannot support application of the stream-of-commerce theory because they lack a specific nexus to the state of Texas. Facts that “reveal an intent to serve the U.S. market” are irrelevant for stream-of-commerce purposes because “they do not show that [Defendants] purposefully availed [themselves] of the [forum state’s] market.” Nicastro, 564 U.S. at 886; see also Celgard, 792 F.3d at 1382 (“[Plaintiff’s] evidence fails to show . . . that [Defendant] can foresee that its [products] will actually make their way to [the forum state].”). The appearance of Parrot S.A. and Parrot Drones on the “packaging and manuals” accompanying the accused products, Dkt. 36, ¶¶ 16-17, falls precisely into the category of evidence that cannot support application of the stream-of-commerce theory. Synergy Drone fails to explain how this allegation shows specific foreseeability on the part of 3 The printout Synergy Drone has submitted on this point, see Dkt. 36-7 at 8, actually appears to be from the Parrot Mexico website, instead of the website referenced in the Amended Complaint. See goo.gl/8SJtDY. Case 1:17-cv-00243-LY Document 44 Filed 10/10/17 Page 15 of 30 11 either Defendant that the accused products would be sold in Texas, as opposed to other states. Nor could it provide such a explanation, as both Defendants are “similarly identified on products shipped and delivered by all Parrot subsidiaries worldwide.” Second Floret Decl. ¶ 6. A company’s mere appearance in the manuals accompanying products it does not physically sell cannot stretch so far. See, e.g., Blue Rhino Global Sourcing, Inc. v. Sanxin Int’l Ltd., No. 1:16cv581, 2017 WL 3588773, at *6 (M.D.N.C. Aug. 18, 2017) (“The Court . . . finds that Plaintiff has failed to show that [Defendant] . . . purposefully directed his activities at North Carolina. Plaintiff argues that [Defendant] . . . creat[ed] the Owner’s Manual provided with each Charcoal Grill . . . . [Defendant] played no role in the creating, printing, or publishing of Owner’s Manuals placed in each box containing a Charcoal Grill. Nor did [Defendant] place the Owner’s Manuals in boxes containing the Charcoal Grills.” (internal citation omitted)). The “direct involvement” of Parrot S.A. and Parrot Drones in the “development, design, and manufacture of the accused infringing drones . . . into the stream of commerce directed to the United States” is similarly of no help to Synergy Drone, especially since Parrot, Inc. exercises complete control over the ultimate destination of the accused products upon the completion of the manufacturing process. Dkt. 36, ¶ 16 (emphasis added); see Second Floret Decl. ¶ 5. The same deficiency plagues Synergy Drone’s allegations that the legal notice in the manuals sent with the accused products identifies Parrot S.A. and Parrot Drones regarding intellectual property issues, Dkt. 36, ¶ 17, and that Parrot S.A. and Parrot Drones “are the exclusive owners” of “Parrot trademarks affixed to the accused infringing drones.” Id., ¶ 18. Neither allegation evinces specific activities that either Defendant undertook towards the state of Texas. In fact, as with many international groups, Defendants’ intellectual property management is centralized; thus, the same legal department is regularly identified in the shipment of all Parrot Case 1:17-cv-00243-LY Document 44 Filed 10/10/17 Page 16 of 30 12 subsidiaries’ products worldwide, see Second Floret Decl. ¶ 6. More importantly, though the Amended Complaint alleges that Parrot S.A. is the “warranting entity” for the accused products because of its responsibility for intellectual property issues, Dkt. 36, ¶ 17, the true warranting entity for the accused products as that term is used in the products liability context is Parrot, Inc. See Dkt. 25-1 at 5, 9 (“Welcome to parrot.com website . . . published by Parrot, Inc., a New York corporation (“Parrot”, “us” or “we”) . . . . If the product is not working correctly, you must first contact Parrot’s customer service by phone at 1-877-9Parrot . . . or by email via www.Parrot.com/hotline.” (emphasis added)). Furthermore, the Amended Complaint is devoid of an explanation as to how trademark enforcement throughout the United States, see Dkt. 36, ¶ 18, is tethered to this forum, especially considering that intellectual property “enforcement activities in other fora” have no relevance to whether specific jurisdiction is appropriate. Avocent Huntsville Corp. v. Aten Int’l Co., Ltd., 552 F.3d 1324, 1339 (Fed. Cir. 2008). Polar Electro Oy v. Suunto Oy, 829 F.3d 1343, 1345 (Fed. Cir. 2016), which Synergy Drone cited in its response simultaneously filed with the Amended Complaint, see Dkt. 37 at 1-2, is completely inapposite. There, the defendant “purposefully shipped at least ninety-four accused products” to the forum state, Delaware. Id. at 1350. Thus, the defendant “did not simply place its products into the stream of commerce, with the products fortuitously reaching Delaware;” rather, the defendant “deliberately and purposefully shipped the accused products to Delaware retailers.” Id. Here, Parrot S.A. and Parrot Drones did not ship a single accused product to the state of Texas. See Second Floret Decl. ¶¶ 4-5. In sum, given that Parrot, Inc., not Parrot S.A. or Parrot Drones, is exclusively responsible for sales of the accused products in the United States, neither Parrot S.A. nor Parrot Drones foresaw “the regular and anticipated flow” of the accused products to Texas. Asahi, 480 Case 1:17-cv-00243-LY Document 44 Filed 10/10/17 Page 17 of 30 13 U.S. at 117 (Brennan, J., concurring in part). Any attempt to base personal jurisdiction on Parrot S.A. or Parrot Drones based on a stream-of-commerce theory must therefore be denied. Underscoring this conclusion is the fact that Synergy Drone cannot identify any “presence or minimum contacts” that Parrot S.A. or Parrot Drones have “in this state”; “the stream-of- commerce metaphor cannot supersede either the mandate of the Due Process Clause or the limits on judicial authority that Clause ensures.” Nicastro, 564 U.S. at 886. II. SYNERGY DRONE HAS FAILED TO ESTABLISH PERSONAL JURISDICTION OVER PARROT S.A. AND PARROT DRONES BASED ON AN ALTER EGO THEORY. “For purposes of specific personal jurisdiction, the contacts of a third-party may be imputed to the defendant under either an agency or alter ego theory.” Celgard, 792 F.3d at 1379. “In order to establish jurisdiction under the agency theory, the plaintiff must show that the defendant exercises control over the activities of the third party.” Id. “Alternatively, a plaintiff may establish personal jurisdiction under an alter ego theory.” Id. Indicia of an alter-ego relationship include a failure to adhere to “corporate formalities,” operation of a subsidiary “without the oversight of a formal board of directors,” and the purposeful manipulation of the corporation form to thwart “recovery of [a] judgment.” Minnesota Mining & Mfg. Co. v. Eco Chem, Inc., 757 F.2d 1256, 1265 (Fed. Cir. 1985). However, the “corporate form is not be lightly cast aside” and the general rule is that the corporate form “should be recognized and upheld, unless specific, unusual circumstances call for an exception.” 3D Sys. Inc. v. Aarotech Labs. Inc., 160 F.3d 1373, 1380-81 (Fed. Cir. 1998) (internal quotation marks and citations omitted). Moreover, where, as here, a “subsidiary is wholly-owned by the parent,” courts must exercise caution in inferring an alter ego relationship based on a normal parent-subsidiary relationship as in the case of a wholly-owned subsidiary, “operating the subsidiary independently of the parent company . . . has little practical meaning.” United States v. Jon-T Chemicals, 768 Case 1:17-cv-00243-LY Document 44 Filed 10/10/17 Page 18 of 30 14 F.2d 686, 690 (5th Cir. 1985). “[O]ne-hundred percent ownership and identity of directors and officers are, even together, an insufficient basis for applying the alter ego theory to pierce the corporate veil.” Id. Synergy Drone has failed to plausibly allege facts to pierce the corporate veil as to either Parrot S.A. or Parrot Drones. As a threshold matter, Synergy Drone does not proffer a single allegation as to how Parrot Drones has failed to observe corporate formalities. And the allegations pertaining to Parrot, Inc. fare no better. Synergy Drone first alleges that Parrot S.A. and Parrot, Inc. “share[] common officers and directors,” Dkt. 36, ¶ 21 an unremarkable fact since “one-hundred percent ownership and identity of directors and officers” does not suffice to “pierce the corporate veil.” Jon-T, 768 F.2d at 690. Critically, Synergy Drone does not even allege one-hundred percent identity of directors and officers, but merely that Defendants “share[]” officers and directors. Dkt. 36, ¶ 21. In fact, Edward Planchon, a director at Parrot, Inc. who Synergy Drone identifies as having past responsibilities at Parrot S.A. in June 2016, id., has no current “responsibilities at Parrot S.A. or Parrot Drones S.A.S,” evidence that Parrot, Inc. is a separate corporate entity.4 Dkt. 25-1 ¶ 12. The Amended Complaint also alleges that Parrot S.A. has “comingled” compensation, insurance on accounts receivable, and operating funds with Parrot, Inc., Dkt. 36, ¶¶ 22-24, but these conclusory allegations lack factual support and are not sufficient to pierce the corporate veil. As to compensation, Synergy Drone asserts that Parrot S.A. offers “stock options” “to employees of Parrot, Inc.” id., ¶ 22, but it is axiomatic that “offering stock options to subsidiary employees are common features of parent-subsidiary relationships.” Johnson v. Verizon 4 Mr. Planchon’s past responsibilities are irrelevant because “the relevant time for determining [personal] jurisdiction is the filing of the complaint.” Asarco, Inc. v. Glenara, Ltd., 912 F.2d 784, 787 n.1 (5th Cir. 1990). Case 1:17-cv-00243-LY Document 44 Filed 10/10/17 Page 19 of 30 15 Commc’ns, Inc., No. 3:10-cv-01764-B, 2011 WL 1343390, at *4 (N.D. Tex. Apr. 7, 2011). The allegation that Parrot S.A. has comingled insurance on accounts receivable, meanwhile, is made baldly “[o]n information and belief,” Dkt. 36, ¶ 23, and is untrue; Parrot Drones and Parrot, Inc. maintain separate insurance on accounts receivable. See Second Floret Decl. ¶ 8. Finally, Synergy Drone claims that Parrot S.A. and Parrot, Inc. comingle operating funds based on an “Information Document” in which Parrot S.A. noted that, with respect to Parrot, Inc., “the two companies will grant each other cash advances according to their needs and their financial possibilities. They may on occasion pay expenses for each other.” Dkt. 36-10 at 2, 260 (emphasis added). But “[t]he mere fact that [a parent company] exercises some budgeting control [over the subsidiary] is not enough to establish a prima facie case of alter ego.” Admin. of Tulane Educational Fund v. Ipsen, S.A., 450 F. App’x 326, 330 (5th Cir. 2011). In any event, Parrot, Inc. regularly pays its own expenses without assistance from either Parrot S.A. or Parrot Drones. See Second Floret Decl. ¶ 9. Nor is Parrot, Inc. “grossly undercapitalized.” Dkt. 36, ¶ 25. Synergy Drone misconstrues this factor, as the relevant inquiry is not the capitalization of the subsidiary at issue as compared to other subsidiaries-which is the only support the Amended Complaint avers on this point-but rather “whether the corporation’s ‘resources [are] reasonable in relation to the nature of the business of the corporation and the risks attendant to such businesses.” Trinity Indus., Inc. v. Greenlease Holding Co., No. 08-1498, 2014 WL 1766083, at *13 (W.D. Pa. 2014) (alteration in original) (quoting Pharmacia Corp. v. Motor Carrier Servs. Corp., 309 F. App’x 666, 672 (3d Cir. 2009)). The Amended Complaint does not allege that the resources at the disposal of Parrot, Inc. are unreasonable relative to the risks that it takes, nor does it account for the fact that Parrot, Inc. “pays its own operating expenses,” a factor that undermines any Case 1:17-cv-00243-LY Document 44 Filed 10/10/17 Page 20 of 30 16 assertion of gross undercapitalization. Second Floret Decl. ¶ 9. In any event, “the inquiry into corporate capitalization is most relevant for the inference it provides into whether the corporation was established to defraud its creditors or other improper purpose.” Trustees of Nat’l Elevator Indus. Pension, Health Benefit & Educational Funds v. Lutyk, 332 F.3d 188, 197 (3d Cir. 2003) (citing Fletcher Cyclopedia of the Law of Corporations § 41.33). No such improper purpose is alleged. And the identification of Parrot S.A. and Parrot Drones in the manuals and packaging for the accused products, as well as Defendants’ filing of a lawsuit in Delaware for declaratory relief, Dkt. 36, ¶¶ 26-27, are immaterial, as neither demonstrate that Parrot S.A. or Parrot Drones controlled Parrot, Inc. Synergy Drone’s attempt to base personal jurisdiction on the lawsuit in Delaware, id., ¶ 27, is particularly misplaced, as Defendants brought that declaratory relief action solely to mitigate against a threatened patent infringement suit against all three Defendants. See Dkt. 36-6 at 7. If such conduct in a different forum could subject corporate defendants to personal jurisdiction in judicial districts across the country, then defendants would be chilled from vindicating their intellectual property rights and protecting themselves from frivolous lawsuits, for fear of having their actions used against them as a basis for personal jurisdiction in a different lawsuit. Moreover, the Amended Complaint does not acknowledge or address the evidence Defendants submitted in connection with their previous motion to dismiss convincingly demonstrating that Parrot, Inc. is a separate and independent entity. Specifically, “Parrot S.A., Parrot Drones S.A.S., and Parrot, Inc. all file separate financial statements,” “Parrot, Inc. maintains separate books and records from both Parrot S.A. and Parrot Drones S.A.S.,” “Parrot, Inc. conducts its own shareholder meetings separate from any meetings occurring at Parrot S.A. and Parrot Drones S.A.S.,” and, as already mentioned, “Edward Planchon, a Director at Parrot, Case 1:17-cv-00243-LY Document 44 Filed 10/10/17 Page 21 of 30 17 Inc., has no responsibilities at Parrot S.A. or Parrot Drones S.A.S.” Dkt. 25-1 ¶¶ 9-12. These are precisely the “corporate formalities” that “buttress the recognition of the corporation as a separate entity.” Minn. Mining, 757 F.2d at 1265. Ultimately, Synergy Drone has not carried its burden as to the dispositive element necessary for piercing the corporate veil: “ ‘total[] control[] [over] the actions of the subsidiary’” such that the parent and the subsidiary “are the same entity.” Sys. Div., Inc. v. Teknek Elecs., Inc., 253 F. App’x 31, 37 (Fed. Cir. 2007) (emphasis in original) (quoting Howard v. Everex Sys., Inc., 228 F.3d 1057, 1069 n.17 (9th Cir. 2000)). Because Parrot S.A, Parrot Drones, and Parrot, Inc. are each distinct and independent entities, Synergy Drone cannot adduce allegations sufficient to warrant piercing the corporate veil. III. SYNERGY DRONE HAS FAILED TO ESTABLISH PERSONAL JURISDICTION OVER PARROT S.A. AND PARROT DRONES BASED ON THE FEDERAL LONG-ARM STATUTE. The federal long-arm statute permits the exercise of personal jurisdiction if: (1) the claim arises under federal law; (2) the defendant is not subject to the jurisdiction in any state’s court of general jurisdiction; and (3) “exercising jurisdiction is consistent with the United States Constitution and laws.” Fed. R. Civ. P. 4(k)(2). The first two requirements are satisfied, as patent infringement actions arise under federal law, and Parrot S.A. and Parrot Drones are not subject to personal jurisdiction in any state’s court of general jurisdiction. Thus, the propriety of subjecting Parrot S.A. and Parrot Drones to personal jurisdiction based on the federal long-arm statute, turns, once again, on due process, which is evaluated based on each Defendant’s “contacts with the entire United States, as opposed to the state in which the district court sits.” Touchcom, Inc. v. Breskin & Parr, 574 F.3d 1403, 1416 (Fed. Cir. 2009) (internal quotation marks and citations omitted). The analysis is otherwise unchanged. Case 1:17-cv-00243-LY Document 44 Filed 10/10/17 Page 22 of 30 18 Synergy Drone places undue emphasis on Parrot S.A.’s and Parrot Drones’ ownership of the “relevant Parrot registered U.S. trademarks,” the similar registration of and ownership of several United States patents in conjunction with the declaratory judgment action for patent infringement filed in Delaware, and both Defendants’ responsibility for intellectual property issues related to the accused products. Dkt. 36, ¶¶ 34-38. None of these allegations, though, either separately or collectively, satisfy the minimum contacts requirement under the federal long-arm statute. See Fumuto Glicken Co., Ltd. v. Mistuoka, No. CV 14-9797 DMG (MRWx), 2015 WL 12766167, at *6 (C.D. Cal. Apr. 16, 2015) (“[T]his Court is not persuaded that the mere registration of a trademark with the PTO, without more, amounts to the type of minimum contacts which would justify haling a foreign defendant into federal court.”). Axiomatically, the same result logically follows for patent registration. Indeed, it merits mention that accepting Synergy Drone’s argument on this point would result in defendants being subject to suit anywhere in the United States simply by virtue of registering for and obtaining trademarks and patents, a result that defies common sense, and would vitiate protection of intellectual property rights. The identification of Parrot S.A. and Parrot Drones in the packaging accompanying the accused product as responsible for intellectual property issues is similarly unavailing, as Synergy Drone has still failed to show that either Defendant “purposefully directed [its] activities” at the United States, since neither Parrot S.A. nor Parrot Drones sent packaging to the United States. Xilinx, 848 F.3d at 1353; see also Second Floret Decl. ¶¶ 4-5. The jurisdictional allegations averred under the federal long-arm statute must succumb for the separate reason that the bulk of the allegations are not specific to the accused products, confining Synergy Drone to a theory of general jurisdiction over Parrot S.A. and Parrot Drones based on federal long-arm statute. See Simone v. VSL Pharm., Inc., No. TDC-15-1356, 2017 WL Case 1:17-cv-00243-LY Document 44 Filed 10/10/17 Page 23 of 30 19 658711, at *8 (D. Md. Feb. 16, 2017) (“While a USPTO application might be a jurisdictionally significant contact under Rule 4(k)(2) if that filing is itself the basis for the alleged injury . . . that is not the situation here.”). Likewise, the trademarks and patents owned by Parrot S.A. and Parrot Drones are not the predicate for the injury Synergy Drone has allegedly suffered. The fact that the “United States is the primary geographical focus of Parrot S.A. and Parrot Drones” and that Parrot S.A. identifies a number of U.S. retailers as “key retailers,” Dkt. 36, ¶¶ 30-31, are not actually tangible contacts with the United States, and simply show that, predictably, Parrot S.A. and Parrot Drones view the United States as an important market. But the actual sales in the United States were conducted “through Parrot, Inc.” as the Amended Complaint concedes; given Synergy Drone’s inability to demonstrate an alter ego relationship, see Section II, supra, this allegation does not constitute a contact Parrot S.A. or Parrot Drones have with the United States. Id., ¶ 32. And Synergy Drone is wrong as a factual matter that Parrot S.A. paid, in 2015, “salaries in the United States of 2,874,367 Euros”; the cited exhibit notes that this figure is a group figure, which is unsurprising, since all United States salaries are paid by Parrot, Inc. Dkt. 36-11 at 31; see also Second Floret Decl. ¶ 7. Ultimately, Parrot S.A.’s and Parrot Drones’ limited contacts with the United States fall well short of being “so constant and pervasive” that both companies are “essentially at home” in the United States. Daimler, 134 S.Ct. at 751 (internal quotation marks omitted); see also Simone, 2017 WL 658711, at *7 (“Here . . . general jurisdiction is inappropriate.”). Indeed, neither Parrot S.A. nor Parrot Drones has “offices” or “employees” in the United States, and the mere fact that Parrot S.A. and Parrot Drones own trademarks and patents registered in the United States, and have taken a single “isolated” step, Dkt. 36 ¶ 38, to shield themselves from allegations of patent infringement is insufficient, without more, to meet the post-Daimler general Case 1:17-cv-00243-LY Document 44 Filed 10/10/17 Page 24 of 30 20 jurisdiction standard. Holland Am. Line Inc. v. Wartsila N. Am., Inc., 485 F.3d 450, 462 (9th Cir. 2007). Any contrary result is unfair, antithetical to due process, and incompatible with Daimler. IV. SYNERGY DRONE IS NOT ENTITLED TO JURISDICTIONAL DISCOVERY. Synergy Drone bears the burden of proving entitlement to jurisdictional discovery. See Monkton Ins. Serv’s, Ltd. v. Ritter, 768 F.3d 429, 434 (5th Cir. 2014). “To support a request for jurisdictional discovery, Plaintiff must first make a preliminary showing of jurisdiction. A preliminary showing does not require proof that personal jurisdiction exists, but ‘factual allegations that suggest with reasonable particularity the possible existence of the requisite contacts.’” Next Technologies, Inc. v. ThermoGenisis, LLC, 121 F. Supp. 3d 671, 676 (W.D. Tex. 2015) (quoting Fielding v. Hubert Burda Media, Inc., 415 F.3d 419, 429 (5th Cir. 2005)). “When the lack of personal jurisdiction is clear or where the discovery sought could not have added any significant facts, discovery is unnecessary.” Tex. Mut. Ins. Co. v. Integrated Claims Sys’s, LLC, No. A-13-cv-128-LY, 2013 WL 11311776, at *5 (W.D. Tex. Apr. 29, 2013). In view of the major deficiencies in all three personal jurisdiction theories Synergy Drone asserts- deficiencies that cannot be ameliorated in discovery, especially considering the evidence Defendants have submitted-any request for jurisdictional discovery would amount to an unsubstantiated “fishing expedition” that should be “decline[d]”. Id. “Further discovery” would not adduce “any significant facts” and would be “expensive and burdensome for the nonresident corporation(s),” especially since both Parrot S.A. and Parrot Drones are French corporations headquartered thousands of miles away possessing limited familiarity with the United States litigation system. Washington v. Norton Mfg., Inc., 588 F.2d 441, 447 (5th Cir. 1979). CONCLUSION Because this Court lacks personal jurisdiction over Parrot S.A. and Parrot Drones, both Defendants must be dismissed from this case. Case 1:17-cv-00243-LY Document 44 Filed 10/10/17 Page 25 of 30 21 Dated: October 10, 2017 Respectfully Submitted, /s/ B. Russell Horton B. Russell Horton (rhorton@gbkh.com) SNB 10014450 GEORGE BROTHERS KINCAID & HORTON, LLP 114 W. 7th Street, Ste. 1100 Austin, Texas 78701 Tel.: (512) 495-1400 Fax: (512) 499-0094 Matthew Traupman (pro hac vice) (matthewtraupman@quinnemanuel.com) James M. Glass (pro hac vice) (jimglass@quinnemanuel.com) Gregory C. Wyckoff (pro hac vice) (gregorywyckoff@quinnemanuel.com) QUINN EMANUEL URQUHART & SULLIVAN, LLP 51 Madison Ave., 22nd Floor New York, NY, 10010 Tel.: (212) 849-7000 Fax: (212) 849-7100 Attorneys for Defendants Parrot S.A. and Parrot Drones S.A.S. Case 1:17-cv-00243-LY Document 44 Filed 10/10/17 Page 26 of 30 22 CERTIFICATE OF SERVICE I hereby certify that on the 10th day of October, 2017, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to all counsel of record. /s/ B. Russell Horton B. Russell Horton Case 1:17-cv-00243-LY Document 44 Filed 10/10/17 Page 27 of 30 Synergy Drone LLC, v. IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION Plaintiff, Civi l Action No. I: 17-cv-00243-LY The Honorable Judge Lee Yeakel Parrot S.A., Parrot Drones S.A.S. , and Parrot, Inc., Defendants. SECOND DECLARATION OF LUDOVIC FLORET IN SUPPORT OF PARROT S.A.'S AND PARROT DRONES S.A.S.' MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION Case 1:17-cv-00243-LY Document 44 Filed 10/10/17 Page 28 of 30 I, Ludovic Floret, pursuant to 28 U.S.C. § 1746 declare as follows: I. I am a resident of the Republic of France and am Group General Counsel at Parrot S.A. 2. This Declaration is made based on my personal knowledge as well as facts and information available to me. 3. Parrot, Inc. has no current business operations or employees in Austin, Texas. 4. Parrot, Inc. has exc lusive responsibility for the sales, distribution, and delivery of products in the United States. Neither Parrot S.A. nor Parrot Drones S.A.S. ("Parrot Drones") play any role in selling, distributing, or delivering products to United States customers. 5. As a result, Parrot, Inc. , in connection with its United States distributors, determines the destinations of products sold in the United States, a process that neither Parrot S.A. nor Parrot Drones are involved in. 6. Parrot S.A. (and now Parrot Drones) are identified on the packaging and manuals accompanying products due to the centralization of intellectual property management within the Parrot entities- as I believe is common with many international groups-and are similarly identified on products shipped and de livered by all Parrot subsidiaries worldwide. 7. Parrot, Inc. pays the salaries of all United States employees, not Parrot S.A. or Parrot Drones. 8. Parrot, Inc. maintains separate insurance on accounts receivable from either Parrot S.A. or Parrot Drones. Case 1:17-cv-00243-LY Document 44 Filed 10/10/17 Page 29 of 30 9. Parrot, Inc. pays its own operating expenses. I declare under penalty of petjury that the foregoing is true and correct. Executed in Paris, France on October I 0, 2017. Ludovic Floret 2 Case 1:17-cv-00243-LY Document 44 Filed 10/10/17 Page 30 of 30