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Tracie J. Renfroe (admitted pro hac vice)
Carol M. Wood (admitted pro hac vice)
KING & SPALDING LLP
1100 Louisiana Street, Suite 4000
Houston, TX 77002
Telephone: (713) 751-3209
Facsimile: (713) 751-3290
Email: trenfroe@kslaw.com
Email: cwood@kslaw.com
Justin Torres (admitted 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 (SBN 271670)
Nicholas Miller-Stratton (SBN 319240)
KING & SPALDING LLP
101 Second Street, Suite 2300
San Francisco, CA 94105
Telephone: (415) 318-1200
Facsimile: (415) 318-1300
Email: mnishikawa@kslaw.com
Email: nstratton@kslaw.com
George R. Morris (SBN 249930)
KING & SPALDING LLP
601 South California Avenue, Suite 100
Palo Alto, CA 94304
Telephone: (650) 422-6700
Facsimile: (650) 422-6800
Email: gmorris@kslaw.com
Attorneys for Defendant
CONOCOPHILLIPS
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
CITY OF OAKLAND, a Municipal Corporation,
and THE PEOPLE OF THE STATE OF
CALIFORNIA, acting by and through the
Oakland City Attorney,
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
FIRST AMENDED COMPLAINT FOR
LACK OF PERSONAL
JURISDICTION OF DEFENDANT
CONOCOPHILLIPS;
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT
THEREOF
Case No. 3:17-cv-06011-WHA
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CITY AND COUNTY OF SAN FRANCISCO,
a Municipal Corporation, and 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: May 24, 2018
Time: 8:00 a.m.
Location: Courtroom 12, 19th Floor
The Honorable William H. Alsup
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 May 24, 2018 at 8:00 a.m., 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 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, 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 First Amended Complaints, and all records and
pleadings as may be presented at or before the hearing on this motion.
DATED: April 19, 2018 KING & SPALDING LLP
By: /s/ George Morris
GEORGE MORRIS
Attorney for Defendant ConocoPhillips
Case 3:17-cv-06011-WHA Document 220 Filed 04/19/18 Page 2 of 22
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TABLE OF CONTENTS
MEMORANDUM OF POINTS AND AUTHORITIES .................................................................1
INTRODUCTION ...........................................................................................................................1
STATEMENT OF RELEVANT FACTS ........................................................................................1
ARGUMENT ...................................................................................................................................3
I. The Court Cannot Exercise General Jurisdiction Over ConocoPhillips. .................4
II. This Court May Not Exercise Specific Jurisdiction Over ConocoPhillips. .............5
A. ConocoPhillips Did Not Purposefully Direct Any Activities Into
California. ....................................................................................................6
B. Plaintiff’s Claim Does Not Arise Out Of Or Relate to
ConocoPhillips’ Alleged Contacts With the Forum. .................................10
C. The Exercise of Specific Jurisdiction Over ConocoPhillips Here Is
Unreasonable..............................................................................................14
CONCLUSION ..............................................................................................................................15
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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) ........................ 4
Asahi Metal Industry Co. v. Super. Ct. of Solano Cnty.,
480 U.S. 102 (1987) ............................................................................................................. 7, 11
Axiom Foods, Inc. v. Acerchem Int’l, Inc.,
874 F.3d 1064 (9th Cir. 2017) ................................................................................................. 11
Ballard v. Savage,
65 F.3d 1495 (9th Cir. 1995) ................................................................................................... 11
Bancroft & Masters, Inc. v. Augusta National, Inc.,
223 F.3d 1082 (9th Cir. 2000) ................................................................................................... 7
Bristol-Myers Squibb Co. v. Super. Ct. of Cal., S.F. Cnty.,
137 S. Ct. 1773 (2017) ..................................................................................................... 3, 5, 11
Bui v. Golden Biotechnology Corp.,
2014 WL 4072112 (N.D. Cal. Aug. 14, 2014) .......................................................................... 8
Burger King Corp. v. Rudzewicz,
471 U.S. 462 (1985) ................................................................................................................... 6
Core-Vent Corp. v. Nobel Industries AB,
11 F.3d 1482 (9th Cir. 1993) ................................................................................................... 14
Cybersell, Inc. v. Cybersell, Inc.,
130 F.3d 414 (9th Cir. 1997) ..................................................................................................... 8
Daimler AG v. Bauman,
134 S. Ct. 746 (2014) ................................................................................................... 4, 5, 6, 14
Data Disc, Inc. v. Sys. Tech. Assocs., Inc.,
557 F.2d 1280 (9th Cir. 1977) ............................................................................................. 9, 10
Doe v. American Nat’l Red Cross,
112 F.3d 1048 (9th Cir. 1997) ........................................................................................... 10, 13
Doe v. Unocal Corp.,
248 F.3d 915 (9th Cir. 2001) ................................................................................................... 12
Dole Food Co. v. Watts,
303 F.3d 1104 (9th Cir. 2002) ................................................................................................... 6
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Goodyear Dunlop Tires Operations, S.A. v. Brown,
564 U.S. 915 (2011) ................................................................................................................... 4
Harris Rutsky & Co. Ins. Servs., Inc. v. Bell & Clements Ltd.,
328 F.3d 1122 (9th Cir. 2003) ................................................................................................... 3
In re Nexus 6P Prod. Liab. Litig.,
No. 17-CV-02185-BLF, 2018 WL 827958 (N.D. Cal. Feb. 12, 2018).................................... 13
Int’l Shoe Co. v. Wash.,
326 U.S. 310 (1945) ................................................................................................................... 3
Lovesy v. Armed Forces Benefit Ass’n,
2008 WL 4856144 (N.D. Cal. Nov. 7, 2008) ........................................................................ 8, 9
Martinez v. Aero Caribbean,
764 F.3d 1062 (9th Cir. 2014) ................................................................................................... 4
Mavrix Photo, Inc. v. Brand Techs., Inc.,
647 F.3d 1218 (9th Cir. 2011) ................................................................................................. 11
Naiman v. TranzVia LLC,
No. 17-CV-4813-PJH, 2017 WL 5992123 (N.D. Cal. Dec. 4, 2017) ........................................ 9
Pebble Beach Co. v. Caddy,
453 F.3d 1151 (9th Cir. 2006) ................................................................................................... 7
Perkins v. Benguet Consol. Mining Co.,
342 U.S. 437 (1952) ................................................................................................................... 4
Schwarzenegger v. Fred Martin Motor Co.,
374 F.3d 797 (9th Cir. 2004) ................................................................................................. 4, 7
Sinatra v. Nat’l Enquirer, Inc.,
854 F.2d 1191 (9th Cir. 1988) ................................................................................................... 7
Terracom v. Valley Nat’l Bank,
49 F.3d 555 (9th Cir. 1995) ..................................................................................................... 14
Walden v. Fiore,
134 S. Ct. 1115 (2014) ..................................................................................................... 5, 6, 11
Williams v. Yamaha Motor Co. Ltd.,
851 F.3d 1015 (9th Cir. 2017) ............................................................................................... 6, 8
Rules
Fed. R. Civ. P. 12(b)(2).................................................................................................................. 1
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MEMORANDUM OF POINTS AND AUTHORITIES
Defendant ConocoPhillips respectfully submits this motion to dismiss the First Amended
Complaints for lack of personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2).
INTRODUCTION
The People of the State of California and the city of Oakland and city and county of San
Francisco (together, “Plaintiff”) have brought claims for public nuisance against five oil and gas
companies, including ConocoPhillips. Plaintiff’s claims and allegations will be subject to
extensive briefing on the merits. But Defendant ConocoPhillips must separately be dismissed
from this action because this Court cannot exercise personal jurisdiction over it. ConocoPhillips
is a Delaware company headquartered in Houston, Texas and has no operations in California,
maintains no offices or employees there, and has no assets in the State. More to the point,
ConocoPhillips has no oil and gas exploration, production, or marketing operations anywhere: it
is solely a holding company with a single subsidiary (ConocoPhillips Company). This is an
insufficient basis on which to exercise either general or specific jurisdiction over a foreign
defendant with no systematic or continuous operations in the forum state. The forum contacts of
ConocoPhillips’ direct and indirect subsidiaries cannot be attributed to the parent company;
Plaintiff’s allegations of “control” over these subsidiaries are conclusory, without an identifiable
basis, entirely devoid of specific factual detail, and directly contradicted by a sworn declaration.
Even if these contacts could be attributed to ConocoPhillips, Plaintiff’s claims do not arise from
any substantial, forum-related activity. Plaintiff’s allegations fail as a matter of law, and
ConocoPhillips’ motion to dismiss must be granted.
STATEMENT OF RELEVANT FACTS
Defendant ConocoPhillips is a corporation organized under Delaware law, with its
principal place of business in Houston, Texas. Declaration of Christopher J. Dodson
(hereinafter, “Dodson Decl.”) ¶ 2; Oak. First Amended Complaint (“FAC”) ¶ 22; SF FAC ¶ 22.
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ConocoPhillips operates as a holding company and does not have any active operations or
produce goods or services itself. Dodson Decl. ¶ 3-4. ConocoPhillips does not have any
employees based in California. Dodson Decl. ¶ 10. It has no facilities, operations, or offices in
California; no telephone or facsimile listings or mailing addresses in California; and it maintains
no books or records in California. Dodson Decl. ¶ 11. ConocoPhillips has no bank accounts or
tangible personal or real property in California; has no sales in California; has no California
income and has not paid any California income tax. Dodson Decl. ¶ 12. It does not direct any
advertising toward California residents, and has not caused oil or natural gas to be shipped into
California or sold oil or natural gas products in California. Dodson Decl. ¶¶ 4, 13.
Plaintiff does not allege negligent or intentional acts by ConocoPhillips in California.
Instead, ConocoPhillips appears to have been named as a defendant almost entirely because of its
subsidiaries’ activities. Plaintiff alleges:
• ConocoPhillips is “responsible for its subsidiaries’ past and current production and
promotion of fossil fuel products,” Oak. FAC ¶ 23; SF FAC ¶ 23;
• ConocoPhillips’ subsidiaries do business in California and have registered agents in
California, Oak. FAC ¶ 52; SF FAC ¶ 52;
• ConocoPhillips’ subsidiaries and their predecessors (allegedly “Tosco Corp.” and
“Phillips Petroleum”) owned and operated refineries in California, though Plaintiff
acknowledges that this activity ceased no later than 2012, Oak. FAC ¶ 53; SF FAC ¶
53;
• ConocoPhillips’ subsidiaries produce oil in Alaska, ship that oil to California, and
“owned and/or operated” port facilities in California in the past (but not currently) for
the receipt of oil, Oak. FAC ¶ 54; SF FAC ¶ 54; and
• ConocoPhillips’ subsidiaries “previously” operated Conoco-branded gas stations in
California, and “upon information and belief ConocoPhillips entered into contracts
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with operators of Conoco-branded retail stations in California, and/or distributors,
which, among other things, required these operators to sell only gasoline with Conoco
proprietary additives, and for supply of certain volumes of such gasoline to Conoco-
branded stations,” Oak. FAC ¶ 55; SF FAC ¶ 55.
ConocoPhillips Company has its own management team, offices, and bank accounts; it is
separately (and sufficiently) capitalized; and ConocoPhillips follows all corporate formalities and
respects the corporate separateness of its direct and indirect subsidiaries. Dodson Decl. ¶¶ 14-15.
Tosco Corporation was acquired by Phillips Petroleum Company in 2001. In 2002,
Phillips Petroleum Company changed its name to ConocoPhillips Company; this is
ConocoPhillips’ sole subsidiary. Dodson Decl. ¶ 16. In 2003, Tosco Corporation merged with
ConocoPhillips Company, with ConocoPhillips Company as the surviving entity. Dodson Decl.
¶ 17. Neither Phillips Petroleum Company nor any of its successors-in-interest ever merged or
otherwise consolidated with ConocoPhillips. Dodson Decl. ¶ 16.
ARGUMENT
Plaintiff bears the burden of proving that minimum contacts exist between
ConocoPhillips 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
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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.
I. THE COURT CANNOT EXERCISE GENERAL JURISDICTION OVER
CONOCOPHILLIPS.
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
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).1
Plaintiff does not even attempt to meet this exacting test. Instead, it readily
acknowledges that ConocoPhillips is organized under Delaware law and headquartered in Texas.
Oak. FAC ¶ 22; SF FAC ¶ 22. Plaintiff does allege that ConocoPhillips “controls company-wide
1 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).
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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, shipping,
and sales activities by subsidiaries within California. Oak. FAC ¶¶ 23, 52-55; SF FAC ¶¶ 23,
52-55 (emphasis added). 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 general 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 this approach as “unacceptably grasping.” Daimler, 134 S. Ct. at
760–61. The Court noted that a 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
is subject to general jurisdiction in California must therefore fail.
II. THIS COURT MAY NOT EXERCISE SPECIFIC JURISDICTION OVER
CONOCOPHILLIPS.
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,
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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. A defendant may “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,
1023 (9th Cir. 2017) (quoting Dole Food Co. v. Watts, 303 F.3d 1104, 1111 (9th Cir. 2002)). No
part of this test is not satisfied here. Plaintiff does not adequately allege that ConocoPhillips
purposefully directed its activities into the forum, or that any California-directed conduct has a
substantial connection to Plaintiff’s alleged injury or that this Court’s exercise of jurisdiction
over ConocoPhillips is reasonable.
A. ConocoPhillips Did Not Purposefully Direct Any Activities Into California.
Plaintiff does not satisfy the first prong of the Ninth Circuit’s three-part test for specific
jurisdiction, which requires the defendant to “purposefully direct” its activities to the forum or
“purposefully avail” itself of the benefits afforded by the forum’s laws.” “Purposeful availment”
and “purposeful direction” are distinct concepts. Purposeful availment is “most often used in
suits sounding in contract” and “typically consists of evidence of the defendant’s actions in the
forum, such as executing or performing a contract there” by which a defendant “purposefully
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avails itself of the privilege of conducting activities within the forum state, thus invoking the
benefits and protections of its laws.” Schwarzenegger, 374 F.3d at 802 (citations omitted).
Plaintiff cannot satisfy this test. The climate change allegations in the First Amended
Complaints do not arise from any contract ConocoPhillips entered into from which it received
any “benefit, privilege, or protection from California.” Id. at 803. “[T]he traditional quid pro
quo justification for finding purposeful availment thus does not apply.” Id.
In contrast to “purposeful availment,” the “purposeful direction” standard is most often
employed in suits sounding in tort. Schwarzenegger, 374 F.3d at 802. This showing “usually
consists of evidence of the defendant’s actions outside the forum state that are directed at the
forum.” Id. at 803. Simply placing a product such as oil or natural gas into a stream of
commerce, even with the knowledge that it will be sold and used in California, is not sufficient;
rather, there must be “additional conduct” 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). As the Ninth Circuit has stated, the defendant’s conduct must
be “expressly aimed” at the forum state for specific jurisdiction to comport with due process.
Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1156 (9th Cir. 2006); see also Sinatra v. Nat’l
Enquirer, Inc., 854 F.2d 1191, 1197 (9th Cir. 1988) (tortfeasor may only be sued in California if
it intentionally “aims its conduct” at California). Here, ConocoPhillips does not conduct oil and
natural gas activities in California and is not the successor-in-interest to any entity that conducted
such activities in the State. Dodson Decl. ¶¶ 4-13, 16-17.
Plaintiff cannot show that ConocoPhillips committed any alleged intentional act that was
“expressly aimed” at California, because there was no “individualized targeting” of California
residents with respect to the conduct at issue. Bancroft & Masters, Inc. v. Augusta National,
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Inc., 223 F.3d 1082, 1088 (9th Cir. 2000). The First Amended Complaints contain no allegations
that ConocoPhillips directed exploration, production, or sales activities at California; rather, they
allege limited contacts between ConocoPhillips’ direct and indirect subsidiaries and California.
Oak. FAC ¶ 35, 52-55; SF FAC ¶ 35, 52-55. Furthermore, Plaintiff concedes that certain
activities of ConocoPhillips’ direct and indirect subsidiaries in California ceased no later than
2012. Oak. FAC ¶ 53; SF FAC ¶ 53. Those subsidiary-forum contacts are not enough for
specific jurisdiction over the parent, since “[i]t 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. And while the First Amended
Complaints allege general statements made by ConocoPhillips, either directly or through
industry associations, there is no allegation that any of these statements were directed
specifically towards California or any California resident. See Cybersell, Inc. v. Cybersell, Inc.,
130 F.3d 414, 419 (9th Cir. 1997) (posting information on “essentially passive” website not
directed towards state’s residents not sufficient to establish minimum contacts).
Nor does Plaintiff adequately allege that ConocoPhillips controlled its subsidiaries as
agents; Plaintiff’s conclusory allegations of control 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 a prima facie
case). At a minimum, 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. However, 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., 2014 WL 4072112, at *3 (N.D. Cal. Aug. 14, 2014)
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(“[T]he court need not assume mere conclusory allegations [of control] to be true”); Lovesy v.
Armed Forces Benefit Ass’n, 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, acting through employees or agents, “manages, directs, conducts, and/or
controls operations” of subsidiaries or “exercises control over company-wide decisions” through
means such as “its employees’ and/or agents’ implementation of policies, procedures, and
programs.” Oak. FAC ¶ 23; SF FAC ¶ 23. The First Amended Complaints merely repeat, in a
rote and conclusory manner, that through “its subsidiaries acting as its agents,” ConocoPhillips
refined oil in California, shipped oil and natural gas into California, and directed the sale of gas
in Conoco-branded gas stations. Oak. FAC ¶¶ 52-55; SF FAC ¶¶ 52-55. But Plaintiff provides
no factual detail on which specific operations ConocoPhillips supposedly controlled, of which
subsidiary, or how ConocoPhillips exercised that control or through what specific means.2 And
Plaintiff provides no attribution at all for these control allegations. This lack of detail and
attribution underscores 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). The threadbare nature of
2 The First Amended Complaints allege that “[u]pon information and belief, ConocoPhillips
entered into contracts with operators of Conoco-branded retail stations in California, and/or
distributors, which, among other things, required these operators to sell only gasoline with
Conoco proprietary additives, and for supply of certain volumes of such gasoline to Conoco-
branded stations.” Oak. FAC ¶ 55; SF FAC ¶ 55. This allegation is directly contradicted by the
Dodson Declaration at ¶¶ 7-8, and thus cannot be credited by the Court. See Data Disc, Inc. v.
Sys. Tech. Assocs., Inc., 557 F.2d 1280, 1284 (9th Cir. 1977).
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Plaintiff’s allegations of control require dismissal under even the minimum standard stated by
the Ninth Circuit in Yamaha Motor Company.
Moreover, even to the extent that Plaintiff’s allegations rise above the level of
conclusory—and they do not—these allegations are contradicted by the Dodson Declaration.
Mr. Dodson attests that ConocoPhillips—as a holding company—has no oil and gas operations
in California, such that ConocoPhillips could reasonably be expected to be haled into court in
California. Dodson Decl. ¶¶ 4-6. ConocoPhillips Company, the sole subsidiary of
ConocoPhillips, is separately capitalized from ConocoPhillips. ConocoPhillips Company has its
own assets, cash flows, and income, separate from ConocoPhillips. Dodson Decl. ¶ 14.
ConocoPhillips follows all corporate formalities and respects the corporate separateness of its
direct and indirect subsidiaries. Dodson Decl. ¶ 15. The Court cannot credit allegations directly
contradicted by affidavit. See Data Disc, Inc. v. Sys. Tech. Assocs., Inc., 557 F.2d 1280, 1284
(9th Cir. 1977).
B. Plaintiff’s Claim Does Not Arise Out Of Or Relate to ConocoPhillips’
Alleged Contacts With the Forum.
Plaintiff also does not satisfy the second prong of the specific jurisdiction test by showing
that, but for ConocoPhillips’ California contacts, Plaintiff’s claims would not have arisen. See
Doe v. American Nat’l Red Cross, 112 F.3d 1048, 1051 (9th Cir. 1997). Since ConocoPhillips
does not engage in any relevant conduct in California (or any relevant conduct at all, as merely a
holding company), ConocoPhillips could not have caused any alleged harm there. Moreover, the
subsidiaries’ forum contacts cannot be attributed to ConocoPhillips, either on their own or by
operation of an “agency” allegation. See supra at § II.A. As such, Plaintiff’s claims do not
“arise out of or relate to the defendant’s contacts with the forum.” Bristol-Myers Squibb, 137 S.
Ct. at 1780 (2017) (quoting Daimler, 134 S. Ct. at 754).
However, even if the forum contacts of ConocoPhillips’ subsidiaries were attributed to it
(which, under binding law, they should not be), Plaintiff’s claims would still fail this prong of
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the test for specific jurisdiction. 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). Without an “adequate link” “between the forum and the
specific claims” asserted by plaintiff, a court may not exercise specific jurisdiction over an out-
of-state defendant “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
that it will be sold and used in California, is not sufficient; “additional conduct” is required.
Asahi Metal Industry, 480 U.S. at 107. Rather, in-state conduct must be a “but-for” cause of the
alleged injury suffered by plaintiff to justify specific jurisdiction. Ballard v. Savage, 65 F.3d
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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 direct and indirect subsidiaries of ConocoPhillips that are far from a “but-
for” cause of the global warming effects that are central to Plaintiff’s claims. According to the
First Amended 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. FAC ¶¶ 130-36; SF FAC ¶¶ 130-36. But sea-level rise is necessarily a
global effect of the global conduct of a variety of actors. Though the First Amended Complaints
attempt to downplay the point, Plaintiff cannot but acknowledge that “others”—i.e., other energy
companies, businesses, governments, and consumers—contribute to the greenhouse gas
emissions that cause climate change. See Oak. FAC ¶¶ 88, 140 145; SF FAC ¶¶ 88, 140, 145.
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. FAC ¶ 92; SF FAC ¶ 92 (alleging that consumers’
activities cause release of 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, are not a “but-for” cause of an injury in California. Even taking as true
the First Amended Complaints’ allegations “connecting” ConocoPhillips to California or
attributing the forum contacts of subsidiaries to the parent company, those limited connections
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are not a but-for cause of global sea-level rise, which is caused by a host of factors unconnected
to the activities of ConocoPhillips or its subsidiaries.
Moreover, even assuming that all California or U.S. activities of ConocoPhillips’
subsidiaries could be attributed to it, that would not satisfy the but-for test. According to a study
on which Plaintiff relies, the combustion of all of the fossil fuels that all of ConocoPhillips’
subsidiaries have allegedly ever produced and sold anywhere in the world, at any time, accounts
for just 1.16% of the greenhouse gases emitted from industrial sources since 1854.
ConocoPhillips rejects this analysis and the conclusions of this report, which also aggregates
global activities rather than focusing on forum contacts as case law and the Due Process clause
require. But even taking this analysis at face value, it makes clear that Plaintiff has not alleged
and cannot show that these alleged emissions have anything but an “attenuated” or “peripheral”
relationship to the alleged injuries. Doe, 112 F.3d at 1051.
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
First Amended Complaints fail to tie the alleged shipping by ConocoPhillips’ direct or indirect
subsidiaries of indeterminate amounts of crude oil into California, or their operation of refineries
in the State, 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 the activities of ConocoPhillips or its subsidiaries
are a but-for or necessary cause of its alleged injuries. Plaintiff’s allegations thus fall far short of
plausibly alleging the causal link needed to support specific jurisdiction.
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C. The Exercise of Specific Jurisdiction Over ConocoPhillips Here Is
Unreasonable.
Because Plaintiff cannot satisfy either of the first two prongs of the specific jurisdiction
inquiry for the parent company, Defendant ConocoPhillips should be dismissed from this case.
Even if the first two prongs could be satisfied, jurisdiction over ConocoPhillips nevertheless
would be unreasonable.
Courts consider seven factors to determine the reasonableness of exercising personal
jurisdiction over an out-of-state defendant:
(i) the extent of the defendant’s purposeful interjection into the
forum state’s affairs; (ii) the burden on the defendant of defending
in the forum; (iii) the extent of conflict with the sovereignty of the
defendant’s state; (iv) the forum state’s interest in adjudicating the
dispute; (v) the most efficient judicial resolution of the
controversy; (vi) the importance of the forum to the plaintiff’s
interest in convenient and effective relief; and (vii) the existence of
an alternative forum.
Core-Vent Corp. v. Nobel Industries AB, 11 F.3d 1482, 1487-88 (9th Cir. 1993). In this case, the
complete lack of “purposeful interjection” into California alone makes the exercise of specific
jurisdiction unreasonable. “[T]he smaller the element of purposeful interjection, the less is
jurisdiction to be anticipated and the less reasonable is its exercise.” Id. at 1488 (citation
omitted). As set forth above, ConocoPhillips has no oil or gas operations in California, has not
committed any relevant conduct anywhere in California, and has not established any presence in
or contacts with the forum. Accordingly, this factor strongly favors a finding that the exercise of
jurisdiction would be unreasonable.
Moreover, haling ConocoPhillips into a California court substantially burdens the
company and fail to promote efficient resolution of the dispute. “The law of personal
jurisdiction is asymmetrical and is primarily concerned with the defendant’s burden.” Terracom
v. Valley Nat’l Bank, 49 F.3d 555, 561 (9th Cir. 1995). One important concern is where the
witnesses and evidence will likely be located. Core-Vent, 11 F.3d at 1489. Here, the burden on
ConocoPhillips is considerable, given that it has no offices, personnel, facilities, or other ties to
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this forum, and it has no books and records located in this forum. Dodson Decl. ¶¶ 9-12.
Meanwhile, Plaintiff has not demonstrated that it would be unable to seek relief in another
forum; for example, both Delaware and Texas—which as the state of incorporation and principal
place of business are “paradigm[atic] all-purpose forums” for jurisdictional purposes, Daimler,
134 S. Ct. at 761—are available to Plaintiff and can afford any relief to which Plaintiff might be
entitled.
CONCLUSION
Considering the foregoing, the Court cannot exercise personal jurisdiction over
Defendant ConocoPhillips, and its motion to dismiss should be granted.
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Dated: April 19, 2018 Respectfully submitted,
By: /s/ George Morris
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 (SBN 271670)
Nicholas Miller-Stratton (SBN 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 (SBN 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
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Motion to Dismiss for Lack of Personal Jurisdiction No. 4:17-CV-04934 VC
CERTIFICATION OF SERVICE
I HERE CERTIFY that on April 19, 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/ George Morris
George Morris
Case 3:17-cv-06011-WHA Document 220 Filed 04/19/18 Page 22 of 22
