The People of the State of California v. BP P.L.C. et al

MOTION to Dismiss for Lack of Jurisdiction

N.D. Cal.March 20, 2018

Motion to Dismiss; Memorandum of Points and Authorities Case No.: 3:17-cv-06011 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 Tracie J. Renfroe (pro hac vice) Carol M. Wood (pro hac vice) KING & SPALDING LLP 1100 Louisiana Street, Suite 4000 Houston, Texas 77002 Telephone: (713) 751-3200 Facsimile: (713) 751-3290 Email: cwood@kslaw.com Justin A. Torres (pro hac vice) KING & SPALDING LLP 1700 Pennsylvania Avenue, NW, Suite 200 Washington, DC 20006-4707 Telephone: (202) 737-0500 Facsimile: (202) 626-3737 Email: jtorres@kslaw.com Megan R. Nishikawa (Cal. Bar No. 271670) Nicholas Miller-Stratton (Cal. Bar. No. 319240) KING & SPALDING LLP 101 Second Street, Suite 2300 San Francisco, California 94105 Telephone: (415) 318-1267 Fax: (415) 318-1300 Email: mnishikawa@kslaw.com George Morris (Cal. Bar No. 249930) KING & SPALDING LLP 601 South California Avenue, Suite 100 Palo Alto, CA 94304 Telephone: (650) 422-6700 Fax: (650) 422-6800 Email: gmorris@kslaw.com Counsel for Defendant ConocoPhillips Company UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION The PEOPLE OF THE STATE OF CALIFORNIA, acting by and through Oakland City Attorney BARBARA J. PARKER, Plaintiff, v. BP P.L.C., et al., Defendants. First Filed Case: 3:17-cv-06011-WHA Related Case: 3:17-cv-06012-WHA NOTICE OF MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION OF DEFENDANT CONOCOPHILLIPS COMPANY; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Case No. 3:17-cv-06011-WHA Case 3:17-cv-06011-WHA Document 165 Filed 03/20/18 Page 1 of 18 Motion to Dismiss; Memorandum of Points and Authorities Case No.: 3:17-cv-06011 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 THE PEOPLE OF THE STATE OF CALIFORNIA, acting by and through the San Francisco City Attorney DENNIS J. HERRERA, Plaintiff, v. BP P.L.C., et al., Defendants. Case No. 3:17-cv-6012-WHA DATE: APRIL 26, 2018 TIME: 8:00 A.M. Case 3:17-cv-06011-WHA Document 165 Filed 03/20/18 Page 2 of 18 1 Motion to Dismiss; Memorandum of Points and Authorities Case No.: 3:17-cv-06011 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 NOTICE OF MOTION AND MOTION TO DISMISS TO THE CLERK OF THE COURT AND TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THAT, on April 26, 2018, at 8:00 A.M., or as soon thereafter as the matter may be heard, in the United States District Court, Northern District of California, San Francisco Courthouse, Courtroom 12, 19th Floor, 450 Golden Gate Avenue, San Francisco, CA 94102, before the Honorable William Alsup, Defendant ConocoPhillips Company will and hereby does move this Court to dismiss these related actions for lack of personal jurisdiction. The motion will be made on the grounds that this forum cannot exercise personal jurisdiction over ConocoPhillips Company, which is a Delaware company headquartered in Houston, Texas and does not have the requisite minimum contacts with the State of California. This Motion to Dismiss is based upon this Notice, the attached Memorandum of Points and Authorities, the Complaints, and all records and pleadings as may be presented at or before the hearing on this motion. DATED: March 20, 2018 KING & SPALDING LLP By: /s/ Carol M. Wood CAROL M. WOOD Attorney for Defendant ConocoPhillips Company Case 3:17-cv-06011-WHA Document 165 Filed 03/20/18 Page 3 of 18 i Motion to Dismiss; Memorandum of Points and Authorities Case No.: 3:17-cv-06011 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 TABLE OF CONTENTS INTRODUCTION AND STATEMENT OF ISSUES ....................................................................1 ARGUMENT ...................................................................................................................................2 I. The Court Cannot Exercise General Jurisdiction Over ConocoPhillips Company. .................................................................................................................2 II. This Court May Not Exercise Specific Jurisdiction Over ConocoPhillips Company. .................................................................................................................4 A. The Conduct of ConocoPhillips Company Was Not a “But-For” Cause of the Alleged Injury. ........................................................................5 B. The Forum Contacts of Subsidiaries Cannot Be Attributed to ConocoPhillips Company. ...........................................................................8 C. Plaintiff’s Alleged Injuries Arise From Alleged Decision-Making and Policy-Setting Conduct That Did Not Occur In California. ..................9 CONCLUSION ..............................................................................................................................10 Case 3:17-cv-06011-WHA Document 165 Filed 03/20/18 Page 4 of 18 ii Motion to Dismiss; Memorandum of Points and Authorities Case No.: 3:17-cv-06011 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 TABLE OF AUTHORITIES Page(s) CASES AM Tr. v. UBS AG, 78 F. Supp. 3d 977 (N.D. Cal. 2015), aff’d, 681 F. App’x 587 (9th Cir. 2017) ..................................................................................... 3 Asahi Metal Industry Co. v. Super. Ct. of Solano Cnty., 480 U.S. 102 (1987) ................................................................................................................... 6 Axiom Foods, Inc. v. Acerchem Int’l, Inc., 874 F.3d 1064 (9th Cir. 2017) ................................................................................................... 5 Ballard v. Savage, 65 F.3d 1495 (9th Cir. 1995) ..................................................................................................... 6 Bristol-Myers Squibb Co. v. Super. Ct. of Cal., S.F. Cnty., 137 S. Ct. 1773 (2017) ...................................................................................................... passim Buelow v. Plaza Motors of Brooklyn, Inc., No. 2:16-cv-02592-KJM-AC, 2017 WL 2813179 (E.D. Cal. June 29, 2017) ......................... 10 Bui v. Golden Biotechnology Corp., No. 5:13–CV–04939–EJD, 2014 WL 4072112 (N.D. Cal. Aug. 14, 2014) .............................. 8 Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985) ................................................................................................................... 4 Commc’ns Network Billing, Inc. v. ILD Telecomms., Inc., No. CV 17-10260, 2017 WL 3499869 (E.D. Mich. Aug. 16, 2017) ....................................... 10 Daimler AG v. Bauman, 134 S. Ct. 746 (2014) ............................................................................................................. 3, 4 Doe v. Unocal Corp., 248 F.3d 915 (9th Cir. 2001) ..................................................................................................... 6 Dole Food Co. v. Watts, 303 F.3d 1104 (9th Cir. 2002) ................................................................................................... 4 Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011) ........................................................................................................... 2, 4, 5 Harris Rutsky & Co. Ins. Servs., Inc. v. Bell & Clements Ltd., 328 F.3d 1122 (9th Cir. 2003) ............................................................................................... 2, 8 In re Nexus 6P Prod. Liab. Litig., No. 17-CV-02185-BLF, 2018 WL 827958 (N.D. Cal. Feb. 12, 2018) ..................................... 7 Int’l Shoe Co. v. Wash., 326 U.S. 310 (1945) ................................................................................................................... 2 Lovesy v. Armed Forces Benefit Ass’n, No. C 07-2745 SBA, 2008 WL 4856144 (N.D. Cal. Nov. 7, 2008) ...................................... 8, 9 Martinez v. Aero Caribbean, 764 F.3d 1062 (9th Cir. 2014) ................................................................................................... 3 Mavrix Photo, Inc. v. Brand Techs., Inc., 647 F.3d 1218 (9th Cir. 2011) ................................................................................................... 5 Naiman v. TranzVia LLC, No. 17-CV-4813-PJH, 2017 WL 5992123 (N.D. Cal. Dec. 4, 2017) ........................................ 8 Case 3:17-cv-06011-WHA Document 165 Filed 03/20/18 Page 5 of 18 iii Motion to Dismiss; Memorandum of Points and Authorities Case No.: 3:17-cv-06011 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 Perkins v. Benguet Consol. Mining Co., 342 U.S. 437 (1952) ................................................................................................................... 3 Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797 (9th Cir. 2004) ..................................................................................................... 2 Walden v. Fiore, 134 S. Ct. 1115 (2014) ........................................................................................................... 4, 5 Williams v. Yamaha Motor Co. Ltd., 851 F.3d 1015 (9th Cir. 2017) .............................................................................................. 4, 8 RULES Fed. R. Civ. P. 12(b)(2).................................................................................................................. 1 Case 3:17-cv-06011-WHA Document 165 Filed 03/20/18 Page 6 of 18 1 Motion to Dismiss; Memorandum of Points and Authorities Case No.: 3:17-cv-06011 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 MEMORANDUM OF POINTS AND AUTHORITIES Defendant ConocoPhillips Company respectfully submits this motion to dismiss for lack of personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2).1 INTRODUCTION AND STATEMENT OF ISSUES The People of the State of California through Oakland City Attorney Barbara J. Parker and San Francisco City Attorney Dennis J. Herrera (together, “Plaintiff”) have brought claims for public nuisance against five oil-and-gas companies, including ConocoPhillips Company. Plaintiff alleges that these companies’ federally authorized production and promotion of fossil fuels resulted in third parties using oil and gas, which resulted in greenhouse gas emissions, which has contributed to sea-level rise, which is damaging coastal communities in California. Plaintiff’s novel claims are not viable and must be dismissed pursuant to Rule 12(b)(6), as argued in the separate motion to dismiss filed today by Defendants in this case, including ConocoPhillips Company. See Dkt. No. 140 (Mar. 20, 2018). In addition, however, defendant ConocoPhillips Company must separately be dismissed from this action because this Court cannot exercise personal jurisdiction over it. ConocoPhillips Company is a Delaware company headquartered in Houston, Texas, making the exercise of general jurisdiction improper under the Supreme Court’s Daimler decision. Specific jurisdiction is also lacking: Plaintiff does not adequately allege that ConocoPhillips Company directly targeted California with conduct that created a substantial connection to California, out of which Plaintiff’s alleged injuries arise, as required under the Supreme Court’s recent Bristol-Myers Squibb decision. Instead, Plaintiff alleges that ConocoPhillips Company’s subsidiaries have engaged in conduct in California. But the forum contacts of ConocoPhillips Company’s subsidiaries cannot be attributed to it under black letter 1 The Court has invited the parties to participate in a tutorial explaining the current state of climate science on March 21, 2018, the day after this motion is filed. ConocoPhillips Company does not understand that this tutorial is designed to elicit arguments on the merits of this case or that participation in the tutorial could constitute waiver of any defense under Federal Rule of Civil Procedure Rule 12. Regardless, this motion is filed before the tutorial took place and thus ConocoPhillips Company does not waive its objection to personal jurisdiction by appearing at, or participating in, the tutorial. Case 3:17-cv-06011-WHA Document 165 Filed 03/20/18 Page 7 of 18 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 2 Motion to Dismiss; Memorandum of Points and Authorities Case No.: 3:17-cv-06011 law, and Plaintiff’s allegations of “control” are conclusory and devoid of specific factual detail. If anything, Plaintiff’s “control” allegations only underscore that Plaintiff’s claims rely on allegations about policy-setting and decision-making that occurred outside of California. Plaintiff’s inadequately pleaded jurisdictional allegations fail as a matter of law, and the claims against ConocoPhillips Company should be dismissed. ARGUMENT Plaintiff bears the burden of proving that minimum contacts exist between ConocoPhillips Company and California so as to justify an exercise of personal jurisdiction. See Bristol-Myers Squibb Co. v. Super. Ct. of Cal., S.F. Cnty., 137 S. Ct. 1773, 1779 (2017); Harris Rutsky & Co. Ins. Servs., Inc. v. Bell & Clements Ltd., 328 F.3d 1122, 1128–29 (9th Cir. 2003). The personal-jurisdiction inquiry centers on a defendant’s contacts with the forum state and is dictated by due-process concerns. See Bristol-Myers Squibb, 137 S. Ct. at 1779. Exercising personal jurisdiction over a nonresident defendant will comport with due process only if the defendant has sufficient “minimum contacts” with the forum state, such that maintaining the suit does not offend “traditional notions of fair play and substantial justice.” Int’l Shoe Co. v. Wash., 326 U.S. 310, 316 (1945). As this Court is aware, personal jurisdiction comes in two forms: (1) “general jurisdiction,” which applies where a defendant’s “continuous and systematic” activities make it so “at home” in the forum that a court may adjudicate any claims against that defendant arising from anywhere in the world; and (2) “specific jurisdiction,” which allows a court to adjudicate claims arising from the defendant’s suit-related contacts with the forum state. Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011). Plaintiff has not met its burden to establish either general or specific jurisdiction over ConocoPhillips Company. I. THE COURT CANNOT EXERCISE GENERAL JURISDICTION OVER CONOCOPHILLIPS COMPANY. Meeting the test for general jurisdiction is “exacting,” 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 v. Fred Martin Motor Co., 374 F.3d 797, 801 (9th Cir. 2004). It is only in the “exceptional” case that a company’s contacts with a forum Case 3:17-cv-06011-WHA Document 165 Filed 03/20/18 Page 8 of 18 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 3 Motion to Dismiss; Memorandum of Points and Authorities Case No.: 3:17-cv-06011 would be so continuous and systematic that it could be sued generally in some forum other than its place of incorporation or principal place of business. Daimler AG v. Bauman, 134 S. Ct. 746, 762 (2014); see also AM Tr. v. UBS AG, 78 F. Supp. 3d 977, 986 (N.D. Cal. 2015), aff’d, 681 F. App’x 587 (9th Cir. 2017) (“The only relevant considerations for purposes of determining general jurisdiction are place of incorporation and principal place of business.”). Few business activities in the normal course would constitute an “exceptional” circumstance that would alter the straightforward application of the Daimler test. See Martinez v. Aero Caribbean, 764 F.3d 1062, 1070 (9th Cir. 2014).2 Plaintiff does not even attempt to meet this exacting test. Instead, it readily acknowledges that ConocoPhillips Company is organized under Delaware law and headquartered in Texas. Oak. Compl. ¶ 21; SF Compl. ¶ 21. Plaintiff does allege that ConocoPhillips Company “controls company-wide climate change policies and fossil fuel production,” including “operations relating to its subsidiaries’ participation in the process by which fossil fuels . . . are produced, transported, refined, stored, distributed, marketed, and/or sold to consumers,” including refining and shipping activities by subsidiaries within California. Oak. Compl. ¶¶ 22, 35; SF Compl. ¶¶ 22, 35. But even if these control allegations are taken as true (which they should not be, for reasons explained below), merely being the corporate parent of a subsidiary with forum contacts in California cannot confer jurisdiction over the parent, since “‘only a limited set of affiliations with a forum will render a defendant amenable to’ general jurisdiction in that State.” Bristol-Myers Squibb, 137 S. Ct. at 1780 (quoting Daimler, 134 S. Ct. at 760). In Daimler, the U.S. Supreme Court considered whether a subsidiary’s activities within a state could be attributed to its parent, for the purpose of exercising general jurisdiction over the parent. The Court rejected as “unacceptably grasping” the approach of attributing a subsidiary’s forum contacts to its parent. Daimler, 134 S. Ct. at 760–61. The Court noted that a 2 The Supreme Court has found such exceptional circumstances only once, in Perkins v. Benguet Consol. Mining Co., 342 U.S. 437 (1952). There, the defendant had temporarily relocated its headquarters from the Philippines to Ohio during World War II. Id. at 447–48. As a result, the Court concluded that the defendant was “at home” in Ohio. See Daimler, 134 S. Ct. at 755–56 (describing the circumstances of Perkins). Case 3:17-cv-06011-WHA Document 165 Filed 03/20/18 Page 9 of 18 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 4 Motion to Dismiss; Memorandum of Points and Authorities Case No.: 3:17-cv-06011 corporation’s place of incorporation or principal place of business—which in this case are Delaware and Texas—constitute “paradigm[atic] all-purpose forums” and “afford plaintiffs recourse to at least one clear and certain forum in which a corporate defendant may be sued on any and all claims.” Id. at 760. Absent exceptional circumstances, the Court concluded, simply owning a subsidiary that does business in a forum state does not subject a parent to jurisdiction there. Id. Plaintiff has alleged no “exceptional” circumstances, and any claim that ConocoPhillips Company is subject to general jurisdiction in California must therefore fail. II. THIS COURT MAY NOT EXERCISE SPECIFIC JURISDICTION OVER CONOCOPHILLIPS COMPANY. Where, as here, a defendant’s activities within the state are not so pervasive to justify the exercise of general jurisdiction, “the defendant’s suit-related conduct [must] create a substantial connection with the forum State” to support specific jurisdiction. Walden v. Fiore, 134 S. Ct. 1115, 1121 (2014). “[S]pecific jurisdiction is confined to adjudication of issues deriving from, or connected with, the very controversy that establishes jurisdiction.” Bristol-Myers Squibb, 137 S. Ct. at 1780 (quoting Goodyear, 564 U.S. at 919). The suit itself must “aris[e] out of or relat[e] to the defendant's contacts with the forum.” Id. (quoting Daimler, 134 S. Ct. at 754); see also Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985). In addition, the requisite “minimum contacts” must be “with the forum State itself, not . . . with persons who reside there.” Walden, 134 S. Ct. at 1122. “This ‘purposeful availment’ requirement ensures that a defendant will not be haled into a jurisdiction solely as a result of ‘random,’ ‘fortuitous,’ or ‘attenuated’ contacts, or of the ‘unilateral activity of another party or a third person.’” Burger King, 471 U.S. at 475 (citation omitted). The Ninth Circuit has distilled these requirements into a three-part test: (1) the defendant must “purposefully direct” its activities to the forum or “purposefully avail” itself of the benefits afforded by the forum’s laws, (2) the claim must “arise[] out of or relate[] to the defendant’s forum-related activities,” and (3) “the exercise of jurisdiction [must] comport with fair play and substantial justice, i.e., it [is] reasonable.” Williams v. Yamaha Motor Co. Ltd., 851 F.3d 1015, Case 3:17-cv-06011-WHA Document 165 Filed 03/20/18 Page 10 of 18 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 5 Motion to Dismiss; Memorandum of Points and Authorities Case No.: 3:17-cv-06011 1023 (9th Cir. 2017) (quoting Dole Food Co. v. Watts, 303 F.3d 1104, 1111 (9th Cir. 2002)). This test is not satisfied here. Plaintiff does not adequately allege that ConocoPhillips Company’s California-directed conduct has a substantial connection to Plaintiff’s alleged injury. A. The Conduct of ConocoPhillips Company Was Not a “But-For” Cause of the Alleged Injury. Plaintiff’s claims fail the test for specific jurisdiction because it has not alleged any activity that is “directed at” California and is a “but-for” cause of its alleged injury. Specific jurisdiction requires a careful examination of the nature of the asserted claims to ensure that the underlying controversy arises out of or relates to the defendant’s contacts with the forum. Bristol-Myers, 137 S. Ct. at 1780–81. This careful examination is designed to uncover whether “the defendant’s suit-related conduct” had a “substantial connection with the forum State.” Walden, 134 S. Ct. at 1121; see also Bristol-Myers, 137 S. Ct. at 1780 (“[T]here must be ‘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.’” (quoting Goodyear, 564 U.S. at 919)). Importantly, this inquiry is defendant-focused, looking to the defendant’s allegedly tortious conduct, and not to the injury allegedly sustained by a plaintiff. See Axiom Foods, Inc. v. Acerchem Int’l, Inc., 874 F.3d 1064, 1068 (9th Cir. 2017). Absent an “adequate link” “between the forum and the specific claims” asserted by plaintiff, a court may not bind an out-of-state defendant based on specific personal jurisdiction “even if the defendant would suffer minimal or no inconvenience from being forced to litigate before the tribunals of another State; even if the forum State has a strong interest in applying its law to the controversy; [and] even if the forum State is the most convenient location for litigation.” Bristol-Myers, 137 S. Ct. at 1780–81 (citation and alterations omitted). The “substantial connection” test is not satisfied by “attenuated” or “isolated” activities within the forum state. Axiom Foods, 874 F.3d. at 1068. For example, the delivery or consumption of products in the forum state that are “random,” “fortuitous,” or “attenuated” does not satisfy this requirement. Mavrix Photo, Inc. v. Brand Techs., Inc., 647 F.3d 1218, 1230 (9th Cir. 2011). And simply placing a product into a stream of commerce, even with the knowledge Case 3:17-cv-06011-WHA Document 165 Filed 03/20/18 Page 11 of 18 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 6 Motion to Dismiss; Memorandum of Points and Authorities Case No.: 3:17-cv-06011 that it will be sold and used in California, is not sufficient. Instead, there must be “additional conduct” directed at the forum state, such as “designing the product for the market in the forum State, advertising in the forum State, establishing channels for providing regular advice to customers in the forum State, or marketing the product through a distributor who has agreed to serve as the sales agent in the forum State.” Asahi Metal Industry Co. v. Super. Ct. of Solano Cnty., 480 U.S. 102, 107 (1987). The Ninth Circuit has distilled these principles into a requirement that in-state conduct must be a “but-for” cause of the alleged injury suffered by plaintiff. Ballard v. Savage, 65 F.3d 1495, 1500 (9th Cir. 1995). Where the plaintiff presents “no evidence” that the defendant’s California activities were a “necessary” cause of that injury, the but-for requirement is not met. Doe v. Unocal Corp., 248 F.3d 915, 925 (9th Cir. 2001), abrogated in non-relevant part by Yamaha Motor Corp., 851 F.3d at 1023. Plaintiff’s allegations do not satisfy this test. Plaintiff alleges only attenuated activities within California by subsidiaries of ConocoPhillips Company that are far from a “but-for” cause of the global warming effects that are central to Plaintiff’s claims. According to the Complaints, Plaintiff’s claimed injuries consist of increased temperatures, rising sea levels, increased flooding from coastal storms, and “extreme precipitation events” that allegedly resulted from the greenhouse gas effect and require remediation and rebuilding of infrastructure. Oak. Compl. ¶¶ 84-87; SF Compl. ¶¶ 85-88. But sea-level rise is necessarily a global effect of the global conduct of a variety of actors. See Oak. Compl. ¶¶ 38–51; SF Compl. ¶¶ 38–51 (alleging that worldwide greenhouse gas emissions by Defendants and other parties have caused global temperatures to rise, and that this global warming is leading to “effects all around the world”). As the Court has acknowledged, these claims “attack behavior worldwide.” Dkt. No. 134 at 7 (Order Denying Mots. To Remand). Plaintiff also acknowledges that some of these actors are third parties not named in this suit. Oak. Compl. ¶ 52; SF Compl. ¶ 53 (alleging that consumers cause the combustion of fossil fuels that release gases that contribute to climate change); see also Dkt. No. 134 at 6 n.2 (the claims “are not localized . . . and instead concern fossil fuel consumption worldwide” by non-parties). The global effects caused by the global conduct of a variety of global actors, most not found in California, is not a “but-for” cause of an injury in Case 3:17-cv-06011-WHA Document 165 Filed 03/20/18 Page 12 of 18 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 7 Motion to Dismiss; Memorandum of Points and Authorities Case No.: 3:17-cv-06011 California. In Bristol-Myers, the defendant owned no fewer than five research and laboratory facilities, employed over 400 workers, and sold the challenged drug in California, 137 S. Ct. at 1778, but that was not sufficient to establish specific jurisdiction because there was no “substantial connection” between that conduct and the alleged injuries. Here, the in-forum conduct alleged by Plaintiff is far less substantial than in Bristol-Myers. Plaintiff alleges that ConocoPhillips Company’s subsidiaries own and/or operate “port facilities in California for receipt of crude oil” and “previously owned and operated a refinery” in California.3 Oak. Compl. ¶ 35; SF Compl. ¶ 35. Plaintiff also alleges that ConocoPhillips Company “through its subsidiaries also produces oil in Alaska, and transports some of this crude oil to California.” Id. Even taking as true the Complaints’ allegations “connecting” ConocoPhillips Company to California or attributing the forum contacts of subsidiaries to the parent company, those limited connections are not a but-for cause of global sea-level rise. As this Court noted in applying Bristol-Myers in a recent case, “Plaintiffs need more than conduct by [defendant] in California; they need ‘suit-related conduct’ by [defendant] that occurs in California or ‘create[s] a substantial connection’ with California.” In re Nexus 6P Prod. Liab. Litig., No. 17-CV-02185-BLF, 2018 WL 827958, at *5 (N.D. Cal. Feb. 12, 2018). Here, the Complaints fail to tie the shipping of indeterminate amounts of crude oil into California, or the operation of a single refinery there, to any particular sale of fossil fuels (in California or elsewhere); to any particular emissions of greenhouse gases (in California or elsewhere); to any purported climate event supposedly caused by those emissions (in California or elsewhere); or to any specific injury. Plaintiff has not even attempted to allege that these activities are a but-for or 3 Since April 2012, ConocoPhillips Company has been exclusively an exploration and production company, not a fuel refiner. See ConocoPhillips FY 2012 Form 10-K, at pt. 1, available at https://www.sec.gov/Archives/edgar/data/1163165/000119312513065426/ d452384d10k.htm (noting that “[o]n April 30, 2012, we completed the separation of our downstream businesses into an independent, publicly traded company.”). Case 3:17-cv-06011-WHA Document 165 Filed 03/20/18 Page 13 of 18 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 8 Motion to Dismiss; Memorandum of Points and Authorities Case No.: 3:17-cv-06011 necessary cause of its alleged injuries. Plaintiff’s allegations thus fall far short of plausibly alleging the causal link needed to support specific jurisdiction. B. The Forum Contacts of Subsidiaries Cannot Be Attributed to ConocoPhillips Company. Plaintiff does not even allege conduct by ConocoPhillips Company—highlighting just how “attenuated” these alleged forum contacts are. Plaintiff instead alleges limited contacts between ConocoPhillips Company’s subsidiaries and California. Oak. Compl. ¶ 35; SF Compl. ¶ 35. These contacts are insufficient: “It is well-established that a parent-subsidiary relationship alone is insufficient to attribute the contacts of the subsidiary to the parent for jurisdictional purposes.” Harris Rutsky, 328 F.3d at 1134. Plaintiff attempts to sidestep this problem by alleging that ConocoPhillips Company controls these subsidiaries, but its inadequate allegations cannot be credited on a motion to dismiss. Whether the “agency” theory of specific jurisdiction survived the Supreme Court’s Daimler decision has not been definitively settled by the Ninth Circuit. See Yamaha Motor Co., 851 F.3d at 1024 (assuming, without deciding, that “some standard of agency continues to be relevant” to the question of specific jurisdiction, but affirming dismissal for failure to make out prima facie case) (quotation marks omitted). But even if it does, to make out an agency case for specific jurisdiction, a plaintiff must adequately allege that “the parent company must have the right to substantially control its subsidiary’s activities.” Id. at 1025. The Court is not to credit “conclusory legal statement[s] unsupported by any factual assertion regarding . . . control.” Id. at 1025 n.5; see also Bui v. Golden Biotechnology Corp., No.: 5:13–CV–04939–EJD, 2014 WL 4072112, at *3 (N.D. Cal. Aug. 14, 2014) (“[T]he court need not assume mere conclusory allegations [of control] to be true”); Lovesy v. Armed Forces Benefit Ass’n, No. C 07-2745 SBA, 2008 WL 4856144, at *4 (N.D. Cal. Nov. 7, 2008) (“It is not sufficient, at the pleading stage, to make conclusory allegations of control.”). Plaintiff’s conclusory allegations of control amount to little more than bare allegations that ConocoPhillips Company, acting through employees or agents, “manages, directs, conducts, and/or controls operations” of subsidiaries or “exercises control over company-wide decisions” Case 3:17-cv-06011-WHA Document 165 Filed 03/20/18 Page 14 of 18 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 9 Motion to Dismiss; Memorandum of Points and Authorities Case No.: 3:17-cv-06011 through means such as “its employees’ and/or agents’ implementation of policies, procedures, and programs.” Oak. Compl. ¶ 22; SF Compl. ¶ 22. Plaintiff provides no factual detail on which operations ConocoPhillips Company supposedly controlled, of which subsidiary, in what manner, and through what specific means, or what sources of information these allegations are based on. This lack of detail and attribution underscore the conclusory nature of Plaintiff’s allegations. See, e.g., Naiman v. TranzVia LLC, No. 17-CV-4813-PJH, 2017 WL 5992123, at *11 (N.D. Cal. Dec. 4, 2017) (dismissing allegations of control that lacked “any facts showing how TranzVia did those things or how it knew those things, or what facts the allegations are based on”); Lovesy, 2008 WL 4856144 at *4 (“In order to withstand a motion to dismiss, the plaintiff must, at a minimum, se[t] forth some examples of alleged domination.”) (quotation omitted). Plaintiff’s allegations of “control” thus require dismissal under even the minimum standard stated by the Ninth Circuit in Yamaha Motor Company. C. Plaintiff’s Alleged Injuries Arise From Alleged Decision-Making and Policy- Setting Conduct That Did Not Occur In California. If anything, Plaintiff’s allegations of control by ConocoPhillips Company over company- wide conduct and decision-making only highlight that California is not an appropriate forum for adjudicating these claims. Plaintiff cannot deny that the production and use of fossil fuels are legal activities, highly regulated by the federal government (and by the State of California through agencies such as the California Air Resources Board). The gravamen of its claims, therefore, is that defendants allegedly misled the public and regulators by promoting continued use of fossil fuels in the face of their actual knowledge that this use would cause sea-level rise and attendant injuries. Oak. Compl. ¶ 97; SF Compl. ¶ 98. This scheme, Plaintiff alleges, included activities such as setting up industry-funded groups to lead advertising campaigns to mislead the public and regulators. Oak. Compl. ¶¶ 62–76; SF Compl. ¶¶ 63–77. Plaintiff also alleges direct statements by ConocoPhillips Company and the other defendants that it claims promoted use of fossil fuels. Oak. Compl. ¶ 78; SF Compl. ¶ 79. All of these activities will be subject to defenses on the merits. But the important point, for jurisdictional purposes, is that none of this policy- and decision-making or opinion-shaping Case 3:17-cv-06011-WHA Document 165 Filed 03/20/18 Page 15 of 18 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 10 Motion to Dismiss; Memorandum of Points and Authorities Case No.: 3:17-cv-06011 conduct, so central to Plaintiff’s claims, allegedly occurred in California. According to the Complaints’ allegations, ConocoPhillips Company “controls company-wide policies and fossil fuel production” and “exercises control over company-wide decisions on production and use of fossil fuel reserves considering climate change impacts.” Oak. Compl. ¶ 22; SF Compl. ¶ 22. But if ConocoPhillips Company exercises this control, as Plaintiff alleges, as a simple matter of common sense that conduct occurred in the company’s headquarters in Houston, Texas. See, e.g., Commc’ns Network Billing, Inc. v. ILD Telecomms., Inc., No. CV 17-10260, 2017 WL 3499869, at *4–5 (E.D. Mich. Aug. 16, 2017) (granting non-resident corporation’s motion to dismiss for lack of personal jurisdiction because the underlying controversy in the case was the defendant’s alleged failure to remit fees collected; “the critical question is where [d]efendant allegedly made the decision to withhold [plaintiff]’s payments,” and any decision to withhold money from plaintiff would have occurred outside of the forum); Buelow v. Plaza Motors of Brooklyn, Inc., No. 2:16-cv-02592-KJM-AC, 2017 WL 2813179, at *4 (E.D. Cal. June 29, 2017) (granting non-resident car dealership’s motion to dismiss under Bristol-Myers Squibb where all alleged wrongdoing occurred in online or telephonic communications or in New York, and none of the “defendant’s suit-related conduct” was connected to California). Plaintiff’s theory is that it (and every other person and municipality in the world) was harmed by a series of policies and decisions that were developed and made in places other than California. This suit can only be brought in a forum that has a “substantial connection” to that allegedly tortious conduct, and based on a fair reading of Plaintiff’s own allegations, California is not that forum. CONCLUSION The Court cannot exercise personal jurisdiction over Defendant ConocoPhillips Company and should therefore grant the motion to dismiss. Case 3:17-cv-06011-WHA Document 165 Filed 03/20/18 Page 16 of 18 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 11 Motion to Dismiss; Memorandum of Points and Authorities Case No.: 3:17-cv-06011 Dated: March 20, 2018 Respectfully submitted, By: /s/ Carol M. Wood Tracie J. Renfroe (pro hac vice) Carol M. Wood (pro hac vice) KING &SPALDING LLP 1100 Louisiana, Suite 4000 Houston, TX 77002 Telephone: (713) 751-3200 Facsimile: (713) 751-3290 Email: cwood@kslaw.com Justin A. Torres (pro hac vice) KING &SPALDING LLP 1700 Pennsylvania Ave. NW Washington, D.C. 20006 Telephone: (202) 626-2959 Facsimile: (202) 626-3737 Email: jtorres@kslaw.com Megan R. Nishikawa (Cal. Bar. No. 271670) Nicholas Miller-Stratton (Cal. Bar. No. 319240) KING & SPALDING LLP 101 Second Street, Suite 2300 San Francisco, CA 94105 Telephone: (415) 318-1267 Facsimile: (415) 318-1300 Email: mnishikawa@kslaw.com George Morris (Cal. Bar No. 249930) KING & SPALDING LLP 601 South California Avenue Suite 100 Palo Alto, CA 94304 Telephone: (650) 422-6700 Fax: (650) 422-6800 Email: gmorris@kslaw.com Counsel for Defendant ConocoPhillips Company Case 3:17-cv-06011-WHA Document 165 Filed 03/20/18 Page 17 of 18 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 12 Motion to Dismiss; Memorandum of Points and Authorities Case No.: 3:17-cv-06011 CERTIFICATION OF SERVICE I HERE CERTIFY that on March 20, 2018, I caused the foregoing to be filed with the Clerk of the Court via CM/ECF. Notice of this filing will be sent by email to all counsel of record by operation of the Court’s electronic filing systems. By: /s/ Carol M. Wood Carol M. Wood Case 3:17-cv-06011-WHA Document 165 Filed 03/20/18 Page 18 of 18