Grant McKee v. Audible, Inc et al

NOTICE OF MOTION AND MOTION to Dismiss for Lack of Jurisdiction as to Plaintiffs Taylor Fisse and Bryan Rees

C.D. Cal.January 22, 2018

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AUDIBLE’S MTN TO DISMISS FOR LACK OF PERSONAL JURISDICTION Case No. 2:17-cv-1941 GW(Ex) FE N W IC K & W E ST L L P A T T O R N E Y S A T L A W M O U N T A IN V IE W JEDEDIAH WAKEFIELD (CSB No. 178058) jwakefield@fenwick.com FENWICK & WEST LLP 555 California Street, 12th Floor San Francisco, CA 94104 Telephone: 415.875.2300 Facsimile: 415.281.1350 ANNASARA G. PURCELL (CSB No. 295512) apurcell@fenwick.com FENWICK & WEST LLP 1191 Second Avenue, 10th Floor Seattle, WA 98101 Telephone: 206.389.4510 Facsimile: 206.389.451 ARMEN NERCESSIAN (CSB No. 284906) anercessian@fenwick.com FENWICK & WEST LLP 801 California Street Mountain View, CA 94041 Telephone: 650.988.8500 Facsimile: 650.938.5200 Attorneys for AUDIBLE, INC. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA (WESTERN DIVISION – LOS ANGELES) GRANT MCKEE, TAYLOR FISSE, BRYAN REES, ERIC WEBER, and MICHAEL ROGAWSKI, individually and on behalf of all others similarly situated, Plaintiffs, v. AUDIBLE, INC., Defendant. Case No.: 2:17-cv-01941 GW(Ex) AUDIBLE’S NOTICE OF MOTION AND MOTION TO DISMISS THE SECOND AMENDED COMPLAINT AS TO PLAINTIFFS TAYLOR FISSE AND BRYAN REES FOR LACK OF PERSONAL JURISDICTION; SUPPORTING MEMORANDUM OF POINTS AND AUTHORITIES Date: March 12, 2018 Time: 8:30 AM Crtm: 9D Judge: George H. Wu Trial Date: NONE SET Case 2:17-cv-01941-GW-E Document 70 Filed 01/22/18 Page 1 of 23 Page ID #:1696 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AUDIBLE’S MTN TO DISMISS FOR LACK OF PERSONAL JURISDICTION i Case No. 2:17-cv-1941 GW(Ex) FE N W IC K & W E ST L L P A T T O R N E Y S A T L A W M O U N T A IN V IE W TABLE OF CONTENTS Page INTRODUCTION ..................................................................................................... 2 BACKGROUND ....................................................................................................... 3 I. AUDIBLE ............................................................................................. 3 II. THE NONRESIDENT PLAINTIFFS AND THEIR CLAIMS ............ 3 ARGUMENT ............................................................................................................. 4 I. THE NONRESIDENT PLAINTIFFS MUST SHOW THAT PERSONAL JURISDICTION OVER AUDIBLE IS PROPER WITH RESPECT TO THEIR CLAIMS. .......................................................... 6 II. AUDIBLE IS NOT SUBJECT TO GENERAL JURISDICTION BECAUSE IT IS NOT “AT HOME” IN CALIFORNIA. .................... 9 III. THERE IS NO SPECIFIC JURISDICTION OVER AUDIBLE FOR MS. FISSE’S OR MR. REES’S CLAIMS. ......................................... 11 A. The Nonresident Plaintiffs’ Claims Do Not Arise From Any California Contacts of Audible. ................................... 11 B. The Exercise of Specific Jurisdiction Would Be Unreasonable. ...................................................................... 13 CONCLUSION ........................................................................................................ 17 Case 2:17-cv-01941-GW-E Document 70 Filed 01/22/18 Page 2 of 23 Page ID #:1697 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AUDIBLE’S MTN TO DISMISS FOR LACK OF PERSONAL JURISDICTION ii Case No. 2:17-cv-1941 GW(Ex) FE N W IC K & W E ST L L P A T T O R N E Y S A T L A W M O U N T A IN V IE W TABLE OF AUTHORITIES CASES PAGE(S): Abrams Shell v. Shell Oil Co., 165 F. Supp. 2d 1096 (C.D. Cal. 2001) ................................................................. 6 Addington v. U.S. Airline Pilots Ass’n, No. CV 08-1633-PHX-NVW, 2008 WL 5382409 (D. Ariz. Dec. 24, 2008) ...................................................................................................................... 6 Alvarez v. NBTY, Inc., No. 17-CV-00567-BAS-BGS, 2017 WL 6059159 (S.D. Cal. Dec. 6, 2017) .................................................................................................................. 6, 8 Amba Mktg. Sys., Inc. v. Jobar Int’l, Inc., 551 F.2d 784 (9th Cir. 1977) ................................................................................. 5 Asahi Metal Indus. Co. v. Superior Court of California, Solano Cty., 480 U.S. 102 (1987) ............................................................................................ 14 Bancroft & Masters, 223 F.3d 1082 (9th Cir. 2000) ....................................................................... 11, 12 Barry v. Mortg. Servicing Acquisition Corp., 909 F. Supp. 65 (D.R.I. 1995) ............................................................................... 7 BNSF Ry. Co. v. Tyrrell, 137 S. Ct. 1549 (2017) ........................................................................................ 10 Brand v. Menlove Dodge, 796 F.2d 1070 (9th Cir. 1986) ............................................................................... 9 Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco Cnty., 137 S. Ct. 1773 (2017) ................................................................................. passim Congoleum Corp. v. DLW Aktiengesellschaft, 729 F.2d 1240 (9th Cir. 1984) ............................................................................... 9 Daimler AG v. Bauman, 134 S. Ct. 746 (2014) .............................................................................. 5, 6, 9, 10 Case 2:17-cv-01941-GW-E Document 70 Filed 01/22/18 Page 3 of 23 Page ID #:1698 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AUDIBLE’S MTN TO DISMISS FOR LACK OF PERSONAL JURISDICTION iii Case No. 2:17-cv-1941 GW(Ex) FE N W IC K & W E ST L L P A T T O R N E Y S A T L A W M O U N T A IN V IE W TABLE OF AUTHORITIES (continued) CASES PAGE(S): Doe v. Unocal Corp., 248 F.3d 915 (9th Cir. 2001) ............................................................................... 12 FDIC v. British-Am. Ins. Co., 828 F.2d 1439 (9th Cir. 1987) ......................................................................... 5, 14 Feller v. Transamerica Life Ins., No. 2:16-cv-01378-CAS(AJWx), 2017 WL 6453262 (C.D. Cal. Dec. 11, 2017) ....................................................................................................... 5 Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011) .................................................................................. 6, 10, 11 Gucci Am., Inc. v. Weixing Li, 768 F.3d 122 (2d Cir. 2014) ................................................................................ 10 Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408 (1984) .............................................................................................. 5 In re Dental Supplies Antitrust Litig., No. 16 CIV. 696 (BMC)(GRB), 2017 WL 4217115 (E.D.N.Y. Sept. 20, 2017) ................................................................................................................ 7 Insurance Co. of North Am. v. Marina Salina Cruz, 649 F.2d 1266 (9th Cir. 1981) ....................................................................... 14, 15 International Shoe Company v. Washington, 326 U.S. 310 (1945) .............................................................................................. 5 Invivo Research, Inc. v. Magnetic Resonance Equip. Corp., 119 F. Supp. 2d 433 (S.D.N.Y. 2000) ................................................................. 16 Jung v. Ass’n of Am. Med. Colleges, 300 F. Supp. 2d 119 (D.D.C. 2004) ...................................................................... 7 Karsten Mfg. Corp. v. U.S. Golf Ass’n, 728 F. Supp. 1429 (D. Ariz. 1990) ...................................................................... 14 Case 2:17-cv-01941-GW-E Document 70 Filed 01/22/18 Page 4 of 23 Page ID #:1699 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AUDIBLE’S MTN TO DISMISS FOR LACK OF PERSONAL JURISDICTION iv Case No. 2:17-cv-1941 GW(Ex) FE N W IC K & W E ST L L P A T T O R N E Y S A T L A W M O U N T A IN V IE W TABLE OF AUTHORITIES (continued) CASES PAGE(S): Lake v. Lake, 817 F.2d 1416 (9th Cir. 1987) ............................................................................. 14 Martinez v. Aero Caribbean, 764 F.3d 1062 (9th Cir. 2014) ....................................................................... 10, 11 Micro/sys, Inc. v. DRS Techs., Inc., No. CV 14-3441-DMG, 2014 WL 12591918 (C.D. Cal. Nov. 21, 2014) .................................................................................................................... 12 Noll v. eBay Inc., No. 5:11-cv-04585- EJD, 2013 WL 2384250 (N.D. Cal. May 30, 2013) .................................................................................................................... 15 Pac. Atl. Trading Co. v. M/V Main Exp., 758 F.2d 1325 (9th Cir. 1985) ............................................................................. 15 Ranza v. Nike, Inc., 793 F.3d 1059, 1071 (9th Cir. 2015) ............................................................... 9, 10 Rashidi v. Veritiss, LLC, No. 2:16-cv-04761-CAS(JPRx), 2016 WL 5219448 (C.D. Cal. Sept. 19, 2016) ..................................................................................................... 12 Republic of Kazakhstan v. Ketebaev, No. 17-CV-00246-LHK, 2017 WL 6539897 (N.D. Cal. Dec. 21, 2017) ...................................................................................................................... 8 Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797 (9th Cir. 2004) ............................................................................. 5, 9 Selman v. Harvard Med. Sch., 494 F. Supp. 603 (S.D.N.Y. 1980), aff’d, 636 F.2d 1204 (2d Cir. 1980) ...................................................................................................................... 7 Walden v. Fiore, 134 S. Ct. 1115 (2014) .................................................................................... 6, 13 Case 2:17-cv-01941-GW-E Document 70 Filed 01/22/18 Page 5 of 23 Page ID #:1700 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AUDIBLE’S MTN TO DISMISS FOR LACK OF PERSONAL JURISDICTION v Case No. 2:17-cv-1941 GW(Ex) FE N W IC K & W E ST L L P A T T O R N E Y S A T L A W M O U N T A IN V IE W TABLE OF AUTHORITIES (continued) CASES PAGE(S): Waldman v. Palestine Liberation Org., 835 F.3d 317 (2d Cir. 2016) .................................................................................. 9 Williams v. FirstPlus Home Loan Tr. 1996-2, 209 F.R.D. 404 (W.D. Tenn. 2002) ......................................................... 7 Wilson v. Frito-Lay N. Am., Inc., 961 F. Supp. 2d 1134 (N.D. Cal. 2013) ............................................................... 15 STATUTES Cal. Civ. Proc. Code § 410.10 .................................................................................... 5 Federal Employers’ Liability Act, 45 U.S.C. § 51 et seq. ........................................ 10 North Carolina Unfair Competition Law ................................................................. 16 OTHER AUTHORITIES Fourteenth Amendment ............................................................................................ 10 Fed. R. Civ. P. 12(b)(2) .......................................................................................... 2, 5 Newberg on Class Actions § 6:25 (5th ed.) ................................................................ 6 Case 2:17-cv-01941-GW-E Document 70 Filed 01/22/18 Page 6 of 23 Page ID #:1701 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AUDIBLE’S MTN TO DISMISS FOR LACK OF PERSONAL JURISDICTION 1 Case No. 2:17-cv-1941 GW(Ex) FE N W IC K & W E ST L L P A T T O R N E Y S A T L A W M O U N T A IN V IE W NOTICE OF MOTION AND MOTION PLEASE TAKE NOTICE that on March 12, 2018 at 8:30 a.m., or as soon thereafter as the matter may be heard in Courtroom 9(D) of the U.S. District Court for the Central District of California, located at 350 West First Street, Los Angeles, CA, 90012, Defendant Audible, Inc. (“Audible”) will and hereby does move the Court for an order dismissing Plaintiffs’ Second Amended Complaint as to Plaintiffs Taylor Fisse and Bryan Rees in its entirety for lack of personal jurisdiction. Audible brings this Motion pursuant to Federal Rules of Civil Procedure 12(b)(2). Audible bases this Motion on this Notice of Motion and Motion, Audible’s Memorandum of Points and Authorities, the Declaration of Jason A. Massello in Support of Audible’s Motion to Dismiss Second Amended Complaint As to Plaintiffs Taylor Fisse and Bryan Rees for Lack of Personal Jurisdiction (“Massello Decl.”) and all exhibits thereto, all documents in the Court’s file, and on such other argument as may be presented to the Court. This motion is made following the conference of counsel pursuant to Local Rule 7-3, which took place on January 10, 2018. Dated: January 22, 2018 FENWICK & WEST LLP By: /s/ Jedediah Wakefield Jedediah Wakefield Annasara G. Purcell Armen Nercessian Attorneys for AUDIBLE, INC. Case 2:17-cv-01941-GW-E Document 70 Filed 01/22/18 Page 7 of 23 Page ID #:1702 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AUDIBLE’S MTN TO DISMISS FOR LACK OF PERSONAL JURISDICTION 2 Case No. 2:17-cv-1941 GW(Ex) FE N W IC K & W E ST L L P A T T O R N E Y S A T L A W M O U N T A IN V IE W MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION Defendant Audible, Inc. brings this motion to dismiss the Second Amended Complaint as to Plaintiffs Taylor Fisse and Bryan Rees under Fed. R. Civ. P. 12(b)(2) for lack of personal jurisdiction. Audible is a New Jersey-based company incorporated in Delaware. Its parent company, Amazon.com, Inc., has its principal place of business in the state of Washington. Ms. Fisse and Mr. Rees are North Carolina residents suing over conduct occurring outside of California. Specifically, they claim that Audible charged Mr. Rees’s debit card for Ms. Fisse’s Audible membership, and that Ms. Fisse lost a membership credit when she cancelled her Audible account before redeeming that credit for an audiobook. Because Audible is not headquartered or incorporated in California, it is not “at home” in this state or subject to general jurisdiction here. Audible is also not subject to specific personal jurisdiction as to the nonresident plaintiffs’ claims. The Second Amended Complaint contains no allegation that any of the activities, transactions, or occurrences giving rise to the nonresident plaintiffs’ claims occurred in California. They did not. Ms. Fisse and Mr. Rees did not sign up for Audible (or Amazon) in California, did not read and rely on any advertising in California, did not incur charges on any account in California, and were not injured by Audible’s alleged conduct in California. As the Supreme Court’s recent decision in Bristol-Myers makes clear, the mere fact that other plaintiffs signed up for and used Audible services in California does not create specific jurisdiction over the nonresidents’ claims. Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco Cnty., 137 S. Ct. 1773 (2017). In short, Plaintiffs Fisse and Rees cannot establish any basis to maintain their action against Audible in this forum. Accordingly, Audible respectfully asks this Court to grant this motion and dismiss their claims against Audible in their entirety. Case 2:17-cv-01941-GW-E Document 70 Filed 01/22/18 Page 8 of 23 Page ID #:1703 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AUDIBLE’S MTN TO DISMISS FOR LACK OF PERSONAL JURISDICTION 3 Case No. 2:17-cv-1941 GW(Ex) FE N W IC K & W E ST L L P A T T O R N E Y S A T L A W M O U N T A IN V IE W BACKGROUND I. AUDIBLE Audible is a New Jersey-based company incorporated in Delaware. Massello Decl. at ¶ 5. Its parent company, Amazon, is incorporated in Delaware, and has its principal place of business in the state of Washington. Id. at ¶ 5. Audible operates an online service that provides access to audiobooks and other spoken audio content. Id. at ¶ 2. In addition to allowing customers to purchase audiobooks through its online storefront, Audible offers membership plans that provide discounts on audiobooks, access to selected free audiobooks, the ability to exchange audiobooks for any reason, daily narrated versions of major newspaper stories, and credits that members can redeem for audiobooks. Id. at ¶¶ 2-3. To sign up for a membership, a customer must either use an existing Amazon account or create a new one. Id. at ¶ 4. When a user signs up for a membership, Audible allows the user to designate any of the payment methods on file for his or her Amazon account to pay for the membership or to add a new payment method to his or her Amazon account. Id. II. THE NONRESIDENT PLAINTIFFS AND THEIR CLAIMS Taylor Fisse and her boyfriend, Bryan Rees, are residents of the state of North Carolina. See Dkt. No. 65 (“SAC”) at ¶¶ 8, 13. They do not allege any connection with California. See generally SAC at ¶¶ 8-15. Ms. Fisse and Mr. Rees base their claims on transactions involving Ms. Fisse’s Audible account. SAC at ¶¶ 8-15. Ms. Fisse is a longtime Audible customer that has signed up for, and cancelled, Audible memberships many times since her first sign-up on October 10, 2013, allowing her to take advantage of free trial benefits, including free membership credits, repeatedly. Massello Decl. at ¶ 7; see also SAC at ¶¶ 8-12. Ms. Fisse most recently started an Audible membership on July 21, 2017, when she signed up for a “Gold Monthly” membership that Case 2:17-cv-01941-GW-E Document 70 Filed 01/22/18 Page 9 of 23 Page ID #:1704 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AUDIBLE’S MTN TO DISMISS FOR LACK OF PERSONAL JURISDICTION 4 Case No. 2:17-cv-1941 GW(Ex) FE N W IC K & W E ST L L P A T T O R N E Y S A T L A W M O U N T A IN V IE W included a 30-day free trial and bonus credit. Massello Decl. at ¶ 7. Ms. Fisse signed up for the membership using her existing Amazon account. Id. She claims that this membership resulted in allegedly unauthorized charges on Mr. Rees’s debit card, which he had apparently added to Ms. Fisse’s Amazon account. See SAC at ¶¶ 9, 11, 14-15. Ms. Fisse also challenges disclosures and advertising she allegedly saw about Audible’s membership services, and Audible’s policies concerning membership credits. Ms. Fisse and Mr. Rees do not allege that any of the transactions on Ms. Fisse’s account occurred in California. See generally SAC at ¶¶ 8-15. They do not claim that Audible developed any of the policies, disclosures, or advertising at issue in California. See id. Moreover, none of the payment methods that Ms. Fisse had on file with Audible use any California addresses. Massello Decl. at ¶ 8. These nonresident plaintiffs’ claims do not arise from any activities Audible performed in California. Audible did not process any payments from Ms. Fisse’s Audible membership in California; it did not make any decisions relating to the charging of credit cards in California; and it did not develop or implement any of its policies concerning membership credits, or its practices and policies for storing and charging payment methods, in California. Massello Decl. at ¶ 8-9. Nor did Audible develop any materials explaining these policies, such as the information that appears in the Audible online “Help Center,” in California, and the nonresident plaintiffs do not claim that they read any such materials in California. Id. at ¶ 9; see generally SAC at ¶¶ 8-15. Audible performed the decision-making regarding its processing of payments, and the approval and implementation of Audible policies and disclosures, from its principal place of business in New Jersey. Massello Decl. at ¶¶ 8-10. The actual processing of payments occurred in Washington, D.C., where Audible processes payments for U.S. customers of Audible. Id. \\ Case 2:17-cv-01941-GW-E Document 70 Filed 01/22/18 Page 10 of 23 Page ID #:1705 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AUDIBLE’S MTN TO DISMISS FOR LACK OF PERSONAL JURISDICTION 5 Case No. 2:17-cv-1941 GW(Ex) FE N W IC K & W E ST L L P A T T O R N E Y S A T L A W M O U N T A IN V IE W ARGUMENT Rule 12(b)(2) of the Federal of Civil Procedure authorizes defendants to seek dismissal of an action for lack of personal jurisdiction. Fed. R. Civ. P. 12(b)(2). To survive a Rule 12(b)(2) motion, a “plaintiff bears the burden of demonstrating that jurisdiction is appropriate.” Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004) (internal citations omitted). To satisfy this burden, a plaintiff may not simply rest on the “bare allegations of [the] complaint.” Id. (quoting Amba Mktg. Sys., Inc. v. Jobar Int’l, Inc., 551 F.2d 784, 787 (9th Cir. 1977)). “Federal courts ordinarily follow state law in determining the bounds of their jurisdiction over persons.” Daimler AG v. Bauman, 134 S. Ct. 746, 753 (2014). California’s long-arm statute is coextensive with federal requirements under the Due Process Clause, so the jurisdictional analysis is the same under both state and federal law. Cal. Civ. Proc. Code § 410.10; Daimler, 134 S. Ct. at 753; FDIC v. British-Am. Ins. Co., 828 F.2d 1439, 1441 (9th Cir. 1987). International Shoe Company v. Washington, 326 U.S. 310 (1945), and its progeny establish the doctrinal test under the Due Process Clause: for a court to exercise personal jurisdiction over a nonresident defendant such as Audible, the defendant must have sufficient “minimum contacts” with the forum state so that the exercise of jurisdiction comports with “traditional notions of fair play and substantial justice.” Int’l. Shoe, 326 U.S. at 316. Depending on the nature of a defendant’s contacts with the forum state, “personal jurisdiction is characterized as either general or specific.” Feller v. Transamerica Life Ins., No. 2:16-cv-01378-CAS(AJWx), 2017 WL 6453262, at *2 (C.D. Cal. Dec. 11, 2017). General jurisdiction relates to a defendant’s general business activities within the forum state. E.g., Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416 (1984). Specific jurisdiction, by Case 2:17-cv-01941-GW-E Document 70 Filed 01/22/18 Page 11 of 23 Page ID #:1706 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AUDIBLE’S MTN TO DISMISS FOR LACK OF PERSONAL JURISDICTION 6 Case No. 2:17-cv-1941 GW(Ex) FE N W IC K & W E ST L L P A T T O R N E Y S A T L A W M O U N T A IN V IE W contrast, relates to the connection between a defendant’s contacts with the forum state and the underlying controversy. Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011). The United States Supreme Court has recently limited the scope of both general personal jurisdiction and specific personal jurisdiction. See Daimler, 134 S. Ct. 746 (general personal jurisdiction); Walden v. Fiore, 134 S. Ct. 1115 (2014) (specific personal jurisdiction). In Bristol-Myers, the Supreme Court further clarified that courts cannot exercise specific personal jurisdiction over a nonresident defendant with respect to a nonresident’s claims, based merely on the defendant’s contacts with other individuals that reside in the forum state. Bristol-Myers, 137 S. Ct. at 1781. Under these standards, Ms. Fisse and Mr. Rees cannot establish any basis for exercising personal jurisdiction over Audible with respect to their claims. I. THE NONRESIDENT PLAINTIFFS MUST SHOW THAT PERSONAL JURISDICTION OVER AUDIBLE IS PROPER WITH RESPECT TO THEIR CLAIMS. It is “well settled” that the requirements of personal jurisdiction “must be satisfied for each and every named plaintiff” for a putative class action to go forward. Abrams Shell v. Shell Oil Co., 165 F. Supp. 2d 1096, 1107 n.5 (C.D. Cal. 2001) (collecting cases) (emphasis in original); see also Addington v. U.S. Airline Pilots Ass’n, No. CV 08-1633-PHX-NVW, 2008 WL 5382409, at *1 (D. Ariz. Dec. 24, 2008) (“In a class action such as this one, the test is whether the named defendants meet jurisdictional criteria.”); accord Alvarez v. NBTY, Inc., No. 17-CV- 00567-BAS-BGS, 2017 WL 6059159, at *5 (S.D. Cal. Dec. 6, 2017). As with any lawsuit, a “putative class representative seeking to hale a defendant into court to answer to the class must have personal jurisdiction over that defendant just like any individual litigant must . . . .” Newberg on Class Actions § 6:25 (5th ed.); see also Case 2:17-cv-01941-GW-E Document 70 Filed 01/22/18 Page 12 of 23 Page ID #:1707 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AUDIBLE’S MTN TO DISMISS FOR LACK OF PERSONAL JURISDICTION 7 Case No. 2:17-cv-1941 GW(Ex) FE N W IC K & W E ST L L P A T T O R N E Y S A T L A W M O U N T A IN V IE W In re Dental Supplies Antitrust Litig., No. 16 CIV. 696 (BMC)(GRB), 2017 WL 4217115, at *6 (E.D.N.Y. Sept. 20, 2017) (no personal jurisdiction based on defendant’s sales in New York where defendant did not make any sales to any named plaintiff in New York). A named plaintiff cannot rely on alleged injury to putative class members to carry this burden. Jung v. Ass’n of Am. Med. Colleges, 300 F. Supp. 2d 119, 136 & n.8 (D.D.C. 2004) (no personal jurisdiction where plaintiffs failed to allege injury within forum and instead relied on theory of “nationwide” harm); see also Selman v. Harvard Med. Sch., 494 F. Supp. 603, 613 n.6 (S.D.N.Y. 1980), aff’d, 636 F.2d 1204 (2d Cir. 1980) (rejecting contention that “injuries to and facts relevant to other members of the class should be used in determining jurisdiction” because “the named class representative himself must satisfy all jurisdictional prerequisites before the action can go forward”); accord Williams v. FirstPlus Home Loan Tr. 1996-2, 209 F.R.D. 404, 412–13 (W.D. Tenn. 2002); Barry v. Mortg. Servicing Acquisition Corp., 909 F. Supp. 65, 73 (D.R.I. 1995). In any case, as no class has been certified here, “it would be inappropriate to consider the jurisdictional basis of other class members’ claims” anyway. Selman, 494 F. Supp. at 613 n.6. The Supreme Court’s recent decision in Bristol-Myers reaffirms these well- settled due process principles. There, the Court considered claims for misleading advertising and products liability by a large group of plaintiffs—including 86 California residents and 592 nonresidents—concerning the prescription drug Plavix. Bristol-Myers, 137 S. Ct. at 1778. The California Supreme Court had applied a “sliding scale approach to specific jurisdiction,” wherein the more connections a defendant had with a forum, the less direct the connections had to be with respect to an individual plaintiff’s claims for purposes of specific jurisdiction. Id. at 1778-79. Given the similarity between the claims of the resident plaintiffs and the nonresident plaintiffs, the California court found personal jurisdiction was Case 2:17-cv-01941-GW-E Document 70 Filed 01/22/18 Page 13 of 23 Page ID #:1708 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AUDIBLE’S MTN TO DISMISS FOR LACK OF PERSONAL JURISDICTION 8 Case No. 2:17-cv-1941 GW(Ex) FE N W IC K & W E ST L L P A T T O R N E Y S A T L A W M O U N T A IN V IE W proper over the entire action. Id. In an 8-1 opinion authored by Justice Alito, the Supreme Court reversed, holding that “[t]he mere fact that other plaintiffs were prescribed, obtained, and ingested Plavix in California—and allegedly sustained the same injuries as did the nonresidents—does not allow the State to assert specific jurisdiction over the nonresidents’ claims.” Id. at 1781. On this issue, the Bristol-Myers Court did not venture into uncharted territory but merely undertook a “straightforward application in this case of settled principles of personal jurisdiction.” 137 S. Ct. at 1783; see also Alvarez, 2017 WL 6059159, at *5-6 & n.4 (“[T]he law on that issue [i.e. that personal jurisdiction must be satisfied as to each named plaintiff] is well-settled, and it differs from any new law Bristol-Myers may have created.”). The teaching of Bristol-Myers is simple: “a defendant’s activities supporting personal jurisdiction over one set of claims (a non- resident defendant’s in-state activities relating to the in-state plaintiffs) [does] not confer specific jurisdiction over the same defendant for claims related to other activities (a defendant’s out-of-state activities relating to the out-of-state plaintiffs).” Alvarez, 2017 WL 6059159, at *5 (discussing Bristol-Myers); accord Republic of Kazakhstan v. Ketebaev, No. 17-CV-00246-LHK, 2017 WL 6539897, at *9 (N.D. Cal. Dec. 21, 2017) (discussing Bristol-Myers).1 In short, the putative class action context does not relieve Plaintiffs Fisse and Rees of the burden of establishing that the exercise of personal jurisdiction over Audible is proper. Because there is no basis for exercising general jurisdiction over Audible, and because the nonresident plaintiffs’ claims do not arise from any California-based contacts or conduct of Audible, the Court should grant this motion and dismiss the Second Amended Complaint as to nonresident plaintiffs in its 1 As the dissent in Bristol-Myers noted, the Supreme Court in that case left open the issue of whether its opinion would apply to a class action in which a resident plaintiff (like Mr. McKee in this case) seeks to represent a nationwide class of plaintiffs, not all of whom were injured there. See Bristol-Myers, 137 S. Ct. at 1789, n. 4. Audible intends to address this issue in connection with class certification briefing. Case 2:17-cv-01941-GW-E Document 70 Filed 01/22/18 Page 14 of 23 Page ID #:1709 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AUDIBLE’S MTN TO DISMISS FOR LACK OF PERSONAL JURISDICTION 9 Case No. 2:17-cv-1941 GW(Ex) FE N W IC K & W E ST L L P A T T O R N E Y S A T L A W M O U N T A IN V IE W entirety. II. AUDIBLE IS NOT SUBJECT TO GENERAL JURISDICTION BECAUSE IT IS NOT “AT HOME” IN CALIFORNIA. A corporation may be subject to general jurisdiction in a state only if its contacts within the state are so “continuous and systematic”—in comparison to its national and global activities—that it is “essentially at home” there. Daimler, 134 S. Ct. at 761-62 & n.20. Even before Daimler, this standard was an “exacting” one, “because a finding of general jurisdiction permits a defendant to be haled into court in the forum state to answer for any of its activities anywhere in the world.” Schwarzenegger, 374 F.3d at 801; see also Brand v. Menlove Dodge, 796 F.2d 1070, 1073 (9th Cir. 1986) (no general jurisdiction in California over Utah auto dealer, despite knowledge that vehicles would be resold in California and occasional direct sales to California residents) (collecting cases where no general jurisdiction despite significant forum contacts); Congoleum Corp. v. DLW Aktiengesellschaft, 729 F.2d 1240, 1243 (9th Cir. 1984) (developing sales force in forum state insufficient). The Daimler decision, however, “significantly narrowed” the test for general personal jurisdiction. Waldman v. Palestine Liberation Org., 835 F.3d 317, 326 (2d Cir. 2016); see also Ranza v. Nike, Inc., 793 F.3d 1059, 1071 (9th Cir. 2015) (noting that Daimler invalidated Ninth Circuit’s agency test for “imputed” general jurisdiction). In Daimler, the United States Supreme Court considered whether the California contacts of a New Jersey-based corporate subsidiary that was the largest supplier of luxury vehicles to the California market and maintained multiple California-based facilities, including a regional office, furnished a sufficient basis for exercising general jurisdiction over the nonresident parent company. Daimler, 134 S. Ct. at 752. The Daimler Court held that it did not, even assuming the subsidiary’s contacts could be imputed to the parent company, because of the Case 2:17-cv-01941-GW-E Document 70 Filed 01/22/18 Page 15 of 23 Page ID #:1710 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AUDIBLE’S MTN TO DISMISS FOR LACK OF PERSONAL JURISDICTION 10 Case No. 2:17-cv-1941 GW(Ex) FE N W IC K & W E ST L L P A T T O R N E Y S A T L A W M O U N T A IN V IE W parent company’s overall global operations. Id. at 760. “A corporation that operates in many places,” the Daimler Court reasoned, “can scarcely be deemed at home in all of them.” 134 S. Ct. at 762 n.20. After Daimler, “only a limited set of affiliations with a forum will render a defendant amenable to all-purpose jurisdiction there.”2 Daimler, 134 S. Ct. at 760 (discussing Goodyear, 564 U.S. at 131). “The paradigmatic locations where general jurisdiction is appropriate over a corporation are its place of incorporation and its principal place of business.” Ranza, 793 F.3d at 1069; see also Gucci Am., Inc. v. Weixing Li, 768 F.3d 122, 135 (2d Cir. 2014) (“[A] corporation is at home (and thus subject to general jurisdiction, consistent with due process) only in a state that is the company’s formal place of incorporation or its principal place of business.”) (discussing Daimler, 134 S. Ct. at 761 & n.19). “Only in an ‘exceptional case’ will general jurisdiction be available anywhere else.” Martinez v. Aero Caribbean, 764 F.3d 1062, 1070 (9th Cir. 2014) (no general personal jurisdiction over corporation organized under laws of, and with principal place of business in, France, where California contacts were minor compared to its other worldwide contacts) (quoting Daimler, 134 S. Ct. at n.19). Here, there is no basis for the Court to exercise general personal jurisdiction over Audible. Neither Audible’s place of incorporation nor its principal place of business is in California. Massello Decl. at ¶ 5. Its parent company, Amazon, does not reside in California either. Id. Nor is this an exceptional case, as Audible’s 2 The Supreme Court recently reaffirmed the due process holding of Daimler in BNSF Ry. Co. v. Tyrrell, 137 S. Ct. 1549 (2017). In BNSF Railway, the Montana Supreme Court had found that Daimler’s limitations on general jurisdiction did not apply to claims brought under the Federal Employers’ Liability Act, 45 U.S.C. § 51 et seq., against railroad defendants. BNSF Ry., 137 S. Ct. at 1558. In an 8-1 decision written by Justice Ginsburg, the Supreme Court reversed and held that “[t]he Fourteenth Amendment due process constraint described in Daimler . . . applies to all state-court assertions of general jurisdiction over nonresident defendants; the constraint does not vary with the type of claim asserted or business enterprise sued.” Id. at 1559. Case 2:17-cv-01941-GW-E Document 70 Filed 01/22/18 Page 16 of 23 Page ID #:1711 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AUDIBLE’S MTN TO DISMISS FOR LACK OF PERSONAL JURISDICTION 11 Case No. 2:17-cv-1941 GW(Ex) FE N W IC K & W E ST L L P A T T O R N E Y S A T L A W M O U N T A IN V IE W California contacts are minor in comparison to its other nationwide and worldwide contacts. See Massello Decl. at ¶¶ 5-11; cf. Martinez, 764 F.3d at 1070. In short, Audible’s limited contacts with California are “insufficient to establish general jurisdiction.” See Bancroft & Masters, 223 F.3d 1082, 1086 (9th Cir. 2000) (general jurisdiction in California “lacking”, based on licensing agreements with California vendors, and sales of tournament tickets and merchandise to California residents). Since Audible is not “essentially at home” in California, the Court lacks general personal jurisdiction over Audible. III. THERE IS NO SPECIFIC JURISDICTION OVER AUDIBLE FOR MS. FISSE’S OR MR. REES’S CLAIMS. Unlike general jurisdiction, specific jurisdiction is “confined to adjudication of issues deriving from, or connected with, the very controversy that establishes jurisdiction.” Bristol–Myers, 137 S. Ct. at 1780 (internal quotations and citations omitted). Specific jurisdiction requires “an affiliation between the forum and the underlying controversy, principally, [an] activity or an occurrence that takes place in the forum State and is therefore subject to the State’s regulation.” Bristol-Myers Squibb, 137 S. Ct. at 1780 (quoting Goodyear, 564 U.S., at 919, 131 S.Ct. 2846 (internal quotation marks and brackets omitted). A. The Nonresident Plaintiffs’ Claims Do Not Arise From Any California Contacts of Audible. Bristol-Myers reinforced the point that, for a court to exercise specific jurisdiction, the plaintiffs’ claims must “aris[e] out of or relat[e] to the defendant’s contacts with the forum.” Id. This rule is consistent with the Ninth Circuit’s longstanding requirement that, for specific jurisdiction to exist, a plaintiff’s claim must arise from a defendant’s forum-related conduct. The Ninth Circuit has long held that specific jurisdiction exists only where “(1) the defendant has performed some act or consummated some transaction within the forum or otherwise Case 2:17-cv-01941-GW-E Document 70 Filed 01/22/18 Page 17 of 23 Page ID #:1712 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AUDIBLE’S MTN TO DISMISS FOR LACK OF PERSONAL JURISDICTION 12 Case No. 2:17-cv-1941 GW(Ex) FE N W IC K & W E ST L L P A T T O R N E Y S A T L A W M O U N T A IN V IE W purposefully availed [itself] of the privileges of conducting activities in the forum; (2) the claim arises out of or results from the defendant’s forum-related activities; and (3) the exercise of jurisdiction is reasonable.” Bancroft & Masters, 223 F.3d at 1086 (emphasis added). The Ninth Circuit uses a “but for” test to determine whether a plaintiff’s claim arises out of a nonresident defendant’s forum-related activities. E.g., Rashidi v. Veritiss, LLC, No. 2:16-cv-04761-CAS(JPRx), 2016 WL 5219448, at *6 (C.D. Cal. Sept. 19, 2016) (citing Doe v. Unocal Corp., 248 F.3d 915, 924 (9th Cir. 2001)). Thus, for purposes of causation, the appropriate question becomes: but for the defendant’s contacts with the forum state, would the nonresident claims have arisen? See Micro/sys, Inc. v. DRS Techs., Inc., No. CV 14-3441-DMG (CWx), 2014 WL 12591918, at *3-6 (C.D. Cal. Nov. 21, 2014) (no specific personal jurisdiction over Kansas company in California, because its business contacts with third-party customers residing in California and its operation of interactive website through which California residents could place orders were not “but for” cause of plaintiff’s copyright, trademark, and unfair competition claims). Here, the nonresident plaintiffs’ claims would have arisen regardless of Audible’s contacts with California, and therefore specific personal jurisdiction is lacking as to those claims. The Supreme Court’s decision in Bristol-Myers is instructive here. The defendant in that case had substantial operations in California, including five research and laboratory facilities employing a total of around 160 employees, sales and marketing operations with roughly 250 sales representatives, and a state- government advocacy office in Sacramento. 137 S. Ct. at 1777-78. It also marketed and sold the drug at issue in that case, Plavix, to individuals in California, including several dozen named California plaintiffs and other third-party residents. Id. Nevertheless, the Supreme Court in Bristol-Myers held that these contacts were Case 2:17-cv-01941-GW-E Document 70 Filed 01/22/18 Page 18 of 23 Page ID #:1713 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AUDIBLE’S MTN TO DISMISS FOR LACK OF PERSONAL JURISDICTION 13 Case No. 2:17-cv-1941 GW(Ex) FE N W IC K & W E ST L L P A T T O R N E Y S A T L A W M O U N T A IN V IE W insufficient to justify the exercise of specific jurisdiction because there was no “adequate link between the State and the nonresidents’ claims.” Id. at 1776 (emphasis added). Thus, Bristol-Myers makes clear that a court may not assert specific jurisdiction over a nonresident’s claim where the connection to the forum state relates to a resident plaintiff, rather than the nonresident plaintiff. As in Bristol-Myers, Ms. Fisse and Mr. Rees are unable to point to any California conduct by Audible that gave rise to their specific claims. Any transactions between the nonresident plaintiffs and Audible occurred outside of California. See Massello Decl. at ¶¶ 5-11. Ms. Fisse and Mr. Rees were outside of California, interacting with a company in New Jersey, or (in the case of their Amazon accounts) Washington. The payments on all these transactions were paid from and received outside of California. Id. at ¶ 8. And all decision-making about Audible’s policies, advertising, and disclosures occurred outside of California. Id. at ¶ 10. Any conduct by Audible within the state of California relates to its contacts with other third-parties residing within California, and not to the nonresident plaintiffs’ claims as the test for personal jurisdiction under Walden and Bristol- Myers requires. At root, Ms. Fisse and Mr. Rees complain of alleged conduct by an out-of- state defendant that occurred outside of California and allegedly injured them outside of California. Because their claims do not arise from any California contacts of Audible, the Court should dismiss the Second Amended Complaint with respect to the nonresident plaintiffs for lack of personal jurisdiction. B. The Exercise of Specific Jurisdiction Would Be Unreasonable. Because Ms. Fisse and Mr. Rees’s claims do not arise from Audible’s forum- related activity, the Court need not address the issue of “reasonableness” and Case 2:17-cv-01941-GW-E Document 70 Filed 01/22/18 Page 19 of 23 Page ID #:1714 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AUDIBLE’S MTN TO DISMISS FOR LACK OF PERSONAL JURISDICTION 14 Case No. 2:17-cv-1941 GW(Ex) FE N W IC K & W E ST L L P A T T O R N E Y S A T L A W M O U N T A IN V IE W “traditional notions of fair play and substantial justice.”3 But even if Ms. Fisse and Mr. Rees could meet their burden of showing that their claims arise from Audible’s contacts with California (and they cannot), dismissal of their claims would be warranted because the exercise of personal jurisdiction over Audible with respect to those claims would be unreasonable. Courts in the Ninth Circuit consider the following seven factors to evaluate the reasonableness of jurisdiction over a nonresident defendant: “(1) The extent of purposeful interjection into the forum state; (2) The burden on the defendant of defending in the forum; (3) The extent of conflict with the sovereignty of defendant’s state; (4) The forum state’s interest in adjudicating the dispute; (5) The most efficient judicial resolution of the controversy; (6) The importance of the forum to plaintiff’s interest in convenient and effective relief; (7) The existence of an alternative forum.” FDIC, 828 F.2d at 1442; accord Karsten Mfg. Corp. v. U.S. Golf Ass’n, 728 F. Supp. 1429, 1435 (D. Ariz. 1990) (quoting Lake v. Lake, 817 F.2d 1416, 1422 (9th Cir. 1987)); see also Asahi Metal Indus. Co. v. Superior Court of California, Solano Cty., 480 U.S. 102, 113 (1987) (identifying factors for evaluating reasonableness of exercising personal jurisdiction). Here, a majority of the factors favor dismissal for lack of personal jurisdiction. Purposeful Interjection. Even where a plaintiff satisfies the requirement of “purposeful direction” under the specific jurisdiction analysis, a court would still have to consider the degree of interjection in assessing the overall reasonableness of jurisdiction: “The smaller the element of purposeful interjection, the less is jurisdiction to be anticipated and the less reasonable is its exercise.” Insurance Co. of North Am. v. Marina Salina Cruz, 649 F.2d 1266, 1271 (9th Cir. 1981). As explained above, Audible’s California contacts have nothing to do with the 3 Underscoring this point, the 8-1 majority opinion in Bristol–Myers made no reference to “reasonableness” or “traditional notions of fair play and substantial justice.” 137 S. Ct. at 1785. Case 2:17-cv-01941-GW-E Document 70 Filed 01/22/18 Page 20 of 23 Page ID #:1715 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AUDIBLE’S MTN TO DISMISS FOR LACK OF PERSONAL JURISDICTION 15 Case No. 2:17-cv-1941 GW(Ex) FE N W IC K & W E ST L L P A T T O R N E Y S A T L A W M O U N T A IN V IE W nonresident plaintiffs’ claims (Massello Decl. at ¶¶ 5-11) and thus are too attenuated for jurisdiction to be reasonable. This factor favors Audible. Burden to the Defendant. The law of personal jurisdiction is “asymmetrical,” and the burden on the defendant is the “primary concern.” Pac. Atl. Trading Co. v. M/V Main Exp., 758 F.2d 1325, 1330 (9th Cir. 1985). “If the burdens of trial are too great for a plaintiff, the plaintiff can decide not to sue or, perhaps, to sue elsewhere.” Ins. Co. of N. Am., 649 F.2d at 1272. “A defendant,” by contrast, “has no such luxury.” Id. Litigating the nonresident plaintiffs’ claims in California poses a significant burden for Audible, a New Jersey-based company with no relevant operations, personnel, or documents, in California. See Massello Decl. at ¶¶ 5-11. The fact that this lawsuit includes other claims against Audible does little to mitigate the burdens of maintaining a lawsuit in this forum, as these claims are distinct from those of the other named plaintiffs, arising from Audible’s alleged unauthorized charging of payment methods based on facts unique to these plaintiffs.4 See SAC at ¶¶ 53-55. This factor favors Audible. Conflict with Sovereignty. This factor is neutral. Forum State’s Interest. Nonresidents of California cannot bring claims under California’s consumer protection statutes unless the conduct at issue took place in California. See, e.g., Wilson v. Frito-Lay N. Am., Inc., 961 F. Supp. 2d 1134, 1147 (N.D. Cal. 2013) (dismissing UCL, FAL, and CLRA claims with respect to nonresident plaintiffs); Noll v. eBay Inc., No. 5:11-cv-04585- EJD, 2013 WL 2384250, at *6 (N.D. Cal. May 30, 2013) (dismissing CAPRL claim without leave to amend because plaintiff was not a California resident). Accordingly, California has no special interest in resolving claims brought by nonresidents seeking to claim 4 Only one other named plaintiff, Eric Weber, raises a claim based on allegedly authorized charges to payment methods. See SAC at ¶¶ 16-19, 56. Concurrently with this motion, Audible has moved to compel arbitration with respect to Mr. Weber based on his repeated assent to Audible’s Conditions of Use. Case 2:17-cv-01941-GW-E Document 70 Filed 01/22/18 Page 21 of 23 Page ID #:1716 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AUDIBLE’S MTN TO DISMISS FOR LACK OF PERSONAL JURISDICTION 16 Case No. 2:17-cv-1941 GW(Ex) FE N W IC K & W E ST L L P A T T O R N E Y S A T L A W M O U N T A IN V IE W the benefits of California law. Nor do California courts have an interest in resolving disputes between nonresidents concerning the application of another state’s consumer protection law, such as the North Carolina Unfair Competition Law that the nonresident plaintiffs raise in the Second Amended Complaint. See SAC at ¶¶ 145-149 (Tenth Cause of Action). Since plaintiffs Fisse and Rees are North Carolina residents with no relevant connection to California, and who are suing based on conduct by Audible, another nonresident, that did not occur in California, the nonresident plaintiffs cannot claim the benefits of California’s consumer protection laws, and this forum does not have any compelling interest in hearing their case. This factor favors Audible. Efficiency of Judicial Resolution. The nonresident plaintiffs may attempt to argue that California is the most efficient forum to resolve their dispute with Audible, because Audible is already litigating other claims regarding its policies and practice in this jurisdiction. But this argument disregards the fact that their claims are distinct from those of the other named plaintiffs. See SAC at ¶¶ 8-15, 53-55 (claims primarily based on allegedly unauthorized charging of payment methods). On balance, this factor favors Audible. Plaintiffs’ Interest in Forum. Like Audible, neither Plaintiff Fisse nor Plaintiff Rees reside in California, and they have no particular connection with, or interest in, this forum. Indeed, their only apparent link to California is that their attorney lives there. That is not a sufficient basis to make the exercise of personal jurisdiction reasonable. Cf. Invivo Research, Inc. v. Magnetic Resonance Equip. Corp., 119 F. Supp. 2d 433, 438 (S.D.N.Y. 2000) (“[T]he convenience of counsel is not an appropriate factor to consider on a motion to transfer.”) (granting motion to transfer venue where “sole connection between this action and the Southern District of New York is the sale of a minute percentage of the accused products and the location of plaintiff’s counsel”). This factor favors Audible. Case 2:17-cv-01941-GW-E Document 70 Filed 01/22/18 Page 22 of 23 Page ID #:1717 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AUDIBLE’S MTN TO DISMISS FOR LACK OF PERSONAL JURISDICTION 17 Case No. 2:17-cv-1941 GW(Ex) FE N W IC K & W E ST L L P A T T O R N E Y S A T L A W M O U N T A IN V IE W Existence of Alternative Forum. The nonresident plaintiffs’ could properly bring their claims against Audible in New Jersey (where Audible is based), or Delaware (its place of incorporation). This factor favors Audible. In sum, the Court should dismiss Ms. Fisse’s and Mr. Rees’s claims against Audible because the exercise of personal jurisdiction over Audible is unreasonable. and offends traditional notions of fair play and substantial justice. CONCLUSION For the reasons stated above, Audible asks this Court to dismiss the Second Amended Complaint with respect to the nonresident plaintiffs’ claims in its entirety. Dated: January 22, 2018 FENWICK & WEST LLP By: /s/ Jedediah Wakefield Jedediah Wakefield Attorneys for AUDIBLE, INC. Case 2:17-cv-01941-GW-E Document 70 Filed 01/22/18 Page 23 of 23 Page ID #:1718