Aker Biomarine Antarcitic, as v. Luhua Biomarine (Shandong) Co., Ltd. et al

MOTION to Dismiss for Lack of Jurisdiction on Order Shortening Time

D. Neb.October 21, 2016

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 PA Y N E & F EA R S LL P A TT O R N E Y S A T LA W 72 51 W . L A K E M E A D B LV D ., S U IT E 5 25 LA S V E G A S , N E V A D A 8 91 28 (7 02 ) 85 1- 03 00 Matthew L. Durham Nevada Bar No. 10342 mld@paynefears.com PAYNE & FEARS LLP 7251 W. Lake Mead Blvd., Suite 525 Las Vegas, Nevada 89128 Telephone: (702) 851-0300 Facsimile: (702) 851-0315 Mark J. Rosenberg (Pro Hac Vice Motion Pending) mrosenberg@tarterkrinsky.com Jing Xia (Will comply with LR IA 10-2 within 10 days) jxia@tarterkrinsky.com TARTER KRINSKY & DROGIN LLP 1350 Broadway, 11th Flr. New York, New York 10018 Tel.: (212) 216-1127 Fax: (212) 216-8001 Attorneys for Defendant LUHUA BIOMARINE (SHANDONG) CO., LTD. UNITED STATES DISTRICT COURT DISTRICT OF NEVADA AKER BIOMARINE ANTARCTIC, AS, Plaintiff, v. LUHUA BIOMARINE (SHANDONG) CO., LTD., and INFINITI MARKETING GROUP, INC. d/b/a INFINITI NUTRACEUTICALS, Defendants. Case No. 2:16-cv-02314 LUHUA BIOMARINE (SHANDONG) CO. LTD.’S MOTION TO DISMISS ON ORDER SHORTENING TIME Defendant Luhua Biomarine (Shandon) Co. Ltd. hereby submits this Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(2) and (6) on Order Shortening Time pursuant to LR 6-1(d). This motion is based upon the attached Memorandum of Points and Authorities, the Declaration of Fujiang Zhao, the Declaration of Rick Zielomski, the Declaration of Mark J. Case 2:16-cv-02314-MMD-PAL Document 25 Filed 10/21/16 Page 1 of 17 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- PA Y N E & F EA R S LL P A TT O R N E Y S A T LA W 72 51 W . L A K E M E A D B LV D ., S U IT E 5 25 LA S V E G A S , N E V A D A 8 91 28 (7 02 ) 85 1- 03 00 Rosenberg, all pleadings and papers on file herein, and such oral argument as may be heard. DATED: October 21, 2016 Respectfully submitted, PAYNE & FEARS LLP By: /s/ Matthew L. Durham Matthew L. Durham, Esq., NV Bar No. 10342 7251 W. Lake Mead Blvd., Suite 525 Las Vegas, Nevada 89128 Telephone: (702) 851-0300 TARTER KRINSKY & DROGIN LLP /s/ Mark J. Rosenberg Mark J. Rosenberg, Esq. (Pro Hac Vice Application Pending) 1350 Broadway, 11th Flr. New York, New York 10018 Tel.: (212) 216-1127 Attorneys for Defendant Luhua Biomarine (Shando Co., Ltd. Case 2:16-cv-02314-MMD-PAL Document 25 Filed 10/21/16 Page 2 of 17 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- PA Y N E & F EA R S LL P A TT O R N E Y S A T LA W 72 51 W . L A K E M E A D B LV D ., S U IT E 5 25 LA S V E G A S , N E V A D A 8 91 28 (7 02 ) 85 1- 03 00 DECLARATION OF MARK J. ROSENBERG I Mark J. Rosenberg, hereby declare: 1. I am an attorney admitted to the Bar of the State of New York. My application to appear before this Court pro hac vice is currently pending. I am counsel to defendant Luhua Biomarine (Shandong) Co. Ltd. (“Luhua”). The facts set forth herein are of my own personal knowledge and if sworn I could and would testify competently thereto. 2. On October 3, 2016, Plaintiff filed an Emergency Motion for a Temporary Restraining Order and Preliminary Injunction. (ECF No. 4). The Court issued a Temporary Restraining Order on October 5, 2016, (ECF No. 9), and an Amended Temporary Restraining Order on October 6, 2016 (ECF No. 14). 3. Luhua’s opposition to Plaintiff’s Motion for a Preliminary Injunction is due on October 27, 2016, and Plaintiff’s reply, if any, is due on October 31, 2016. (ECF No. 17). The hearing on Plaintiff’s Motion for a Preliminary Injunction is scheduled for December 1, 2016. ( ECF No. 22). 4. Concurrently with this Declaration, Luhua is filing a motion to dismiss based, in part, on the Court’s lack of personal jurisdiction over Luhua. If the Court determines that personal jurisdiction does not exist, the Court will lack jurisdiction to hear or determine Plaintiff’s Motion for a Preliminary Injunction. 5. Accordingly, it is respectfully requested that an order be entered shortening the time for the hearing on Luhua’s Motion to Dismiss so that the Motion will be determined prior to the December 1, 2016 hearing on Plaintiff’s Motion for a Preliminary Injunction. I declare under penalty of perjury under the laws of the United States of America and the State of Nevada that the foregoing 5 numbered paragraphs are true and correct to the best of my knowledge, information and belief. Executed this 21st day of October 2016, in New York, New York. /s/ Mark J. Rosenberg Mark J. Rosenberg Case 2:16-cv-02314-MMD-PAL Document 25 Filed 10/21/16 Page 3 of 17 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- PA Y N E & F EA R S LL P A TT O R N E Y S A T LA W 72 51 W . L A K E M E A D B LV D ., S U IT E 5 25 LA S V E G A S , N E V A D A 8 91 28 (7 02 ) 85 1- 03 00 ORDER SHORTENING TIME GOOD CAUSE APPEARING THEREFORE, IT IS HEREBY ORDERED that the time for hearing of the above Motion to Dismiss is hereby shortened to the hour of ______________ a.m./p.m. on the ______ day of __________, 2016, in the above-entitled Court. DATED:___________________ __________________________________________ UNITED STATES DISTRICT COURT JUDGE Case 2:16-cv-02314-MMD-PAL Document 25 Filed 10/21/16 Page 4 of 17 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- PA Y N E & F EA R S LL P A TT O R N E Y S A T LA W 72 51 W . L A K E M E A D B LV D ., S U IT E 5 25 LA S V E G A S , N E V A D A 8 91 28 (7 02 ) 85 1- 03 00 DEFENDANT LUHUA BIOMARINE (SHANDONG) CO., LTD.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION AND FAILURE TO STATE A CLAIM I. PRELIMINARY STATEMENT In this case for patent infringement, this Court lacks personal jurisdiction over defendant Luhua Biomarine (Shandong) Co., Ltd. (“Luhua”). As more fully set forth below, Luhua is a Chinese manufacturer which does not have substantial, continuous or systematic presence in this District and has not committed any allegedly infringing acts in this District. As a result, neither general nor specific jurisdiction exists. Further, to the extent that the Court finds that personal jurisdiction does exist, Plaintiff has failed to plead its claim with the requisite specificity. For these reasons, the Complaint must be dismissed as against Luhua. II. FACTUAL BACKGROUND This action concerns the alleged infringement of U.S. Patent No. 9,320,765 (the “‘765 Patent”). The ‘765 Patent issued on April 26, 2016. (ECF No. 1-1 at 1-2). The ‘765 Patent relates to the composition of krill oil. By way of background, krill oil is an extract prepared from a species of Antarctic krill, Euphausia superba. Because krill oil is high in omega-3 fatty acids and has other beneficial components, it is used as an ingredient in nutritional supplements. (Declaration of Fujiang Zhao (“Zhao Decl.”) at ¶2, attached as Exhibit A). Luhua is a Chinese manufacturer of krill oil products, all of which are manufactured in China. Luhua is not registered to do business in Nevada. It does not have sales agents, distributors, employees, offices, manufacturing facilities, warehouses, bank accounts, or telephone listings located in that State. It does not own or control anything in Nevada. (Id. at ¶¶3-4). Luhua’s contacts with the State of Nevada are de minimus. Representatives of Luhua have visited Nevada on a total of two occasions. The first was for the SupplySide West trade show in Las Vegas in October 2015, which was six months before the issuance of the ‘765 Patent. At that time, the Luhua delegation, totaling three representatives, stayed in Nevada for three nights. The only other time representatives of Luhua visited Nevada was in October 2016, when Luhua was scheduled to have a booth at the October 2016 SupplySide West trade show in Las Vegas. Case 2:16-cv-02314-MMD-PAL Document 25 Filed 10/21/16 Page 5 of 17 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- PA Y N E & F EA R S LL P A TT O R N E Y S A T LA W 72 51 W . L A K E M E A D B LV D ., S U IT E 5 25 LA S V E G A S , N E V A D A 8 91 28 (7 02 ) 85 1- 03 00 However, Luhua did not end up attending that trade show or operating a booth there, although two representatives of Luhua did stay in Las Vegas for one night. While in Las Vegas, these representatives’ business activities were limited to a casual meeting over drinks with Rick Zielomski, of defendant Infiniti Marketing Group, Inc. (“Infiniti”). This lawsuit was the primary subject of the meeting, which lasted approximately thirty minutes. (Id. at ¶¶ 5-6; Declaration of Rick Zielomski (“Zielomski Decl.”) at ¶ 13, attached as Exhibit B). That is the totality of Luhua’s contacts with Nevada. Luhua has never manufactured or sold krill oil products in the United States, let alone Nevada, does not direct its marketing efforts towards persons or entities located in Nevada, has not generated any revenue from customers located in Nevada, and does not have any pending transactions or shipments with or to any person or entity located in Nevada. (Zhao Decl. at ¶¶ 13, 16-17). Likewise, Infiniti has never (i) sent product information or samples of Luhua’s products to any person or entity located in Nevada, (ii) engaged in marketing activities on behalf of Luhua in Nevada, (iii) distributed any marketing or advertising materials concerning Luhua’s products to any person or entity located in Nevada, (iii) displayed or promoted Luhua’s products in Nevada, whether at a trade show or any other location in Nevada, (iv) taken or received an order for Luhua’s products, or (v) sold any of Luhua’s products. (Zielomski Decl. at ¶ 13). III. ARGUMENT A. The Court Lacks Personal Jurisdiction over Luhua Dismissal for lack of personal jurisdiction is governed by Federal Rule of Civil Procedure 12(b)(2). On a motion to dismiss for lack of personal jurisdiction, it is the plaintiff who “bears the burden of demonstrating that jurisdiction exists.” SDS Korea Co., Ltd. v. SDS USA, Inc., 732 F. Supp. 2d 1062, 1069 (S.D. Cal. 2010) (citing Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004)). Here, Plaintiff cannot meet its burden. (1) General Jurisdiction does not Exist General jurisdiction may be asserted over causes of action unrelated to a nonresident defendant’s forum activities where that nonresident’s “forum contacts are sufficiently pervasive: ‘If the nonresident defendant’s activities within a state are ‘substantial’ or ‘continuous and systematic,’ Case 2:16-cv-02314-MMD-PAL Document 25 Filed 10/21/16 Page 6 of 17 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- PA Y N E & F EA R S LL P A TT O R N E Y S A T LA W 72 51 W . L A K E M E A D B LV D ., S U IT E 5 25 LA S V E G A S , N E V A D A 8 91 28 (7 02 ) 85 1- 03 00 there is a sufficient relationship between the defendant and the state to support jurisdiction even if the cause of action is unrelated to the defendant’s forum activities.’” Kransco Mfg., Inc. v. Markwitz, 656 F.2d 1376, 1378 (9th Cir. 1981) (quoting Data Disc, Inc. v. Systems Tech. Assoc., Inc., 557 F.2d 1280, 1287 (9th Cir. 1977)). That is not the case here. In order for a state to exercise jurisdiction consistent with due process, the defendant’s “conduct must create a substantial connection with the forum State.” Walden v. Fiore, 134 S. Ct. 1115, 1121 (2014) (emphasis added). But Luhua lacks any such the contacts with the State of Nevada. Its contacts with Nevada are not substantial, continuous nor systematic, and there is no relationship between Luhua and the State sufficient to support general jurisdiction here. Luhua’s “contacts” with Nevada consist of a total of two isolated events: (1) its attendance at the October 2015 SupplySide West trade show in Las Vegas (where Luhua sold nothing and three representatives stayed only three nights) and, (2) its participation in a 30-minute casual meeting in October 2016 in Las Vegas between representatives of Luhua and Infiniti (which is based in California and not registered to do business in Nevada), the primary subject of which was this lawsuit. (Zhao Decl. at ¶¶ 5-6, 10; Zielomski Decl. at ¶¶ 2-3, 13). Other than these two contacts, there is no relationship between Luhua and Nevada. (Zhao Decl. at ¶¶ 3-4, 12-18; Zielomski Decl. at ¶¶ 5-6, 8-12). Consistent with precedent, general jurisdiction does not exist in this case. See, e.g., Price & Sons v. Second Judicial Dist. Court of State, In & For Cty. of Washoe, 108 Nev. 387, 390, 831 P.2d 600, 601 (1992) (“Sales and marketing efforts in the forum by a foreign corporation, without more, are insufficient to establish general jurisdiction.”); Firouzabadi v. First Judicial Dist. Court In & For Carson City, 110 Nev. 1348, 1352, 885 P.2d 616, 619 (1994) (only when defendant’s forum activities are so substantial or continuous and systematic that defendant may be deemed present in the forum state does general personal jurisdiction exist); Trump v. Eighth Judicial Dist. Court of State of Nev. In & For Cty. of Clark, 109 Nev. 687, 699, 857 P.2d 740, 748 (1993) (only where the level of contact between the defendant and the forum is high will general jurisdiction exist). Luhua’s de minimus contacts with Nevada are far from “substantial,” warranting dismissal of this matter for lack of personal jurisdiction. Case 2:16-cv-02314-MMD-PAL Document 25 Filed 10/21/16 Page 7 of 17 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- PA Y N E & F EA R S LL P A TT O R N E Y S A T LA W 72 51 W . L A K E M E A D B LV D ., S U IT E 5 25 LA S V E G A S , N E V A D A 8 91 28 (7 02 ) 85 1- 03 00 (2) Maintenance of a Website is Insufficient to Confer General Jurisdiction Merely maintaining a website accessible to citizens of Nevada does not trigger jurisdiction. To the contrary, where, as here “a ‘website advertiser [does] nothing other than register a domain name and post an essentially passive website’ . . . there is no personal jurisdiction.” Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1157 (9th Cir. 2006) (quoting Rio Properties, Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1020 (9th Cir. 2000) (citing Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414, 418-20 (9th Cir. 1997)). Indeed, the Ninth Circuit “consistently have held that a mere web presence is insufficient to establish personal jurisdiction.” Holland Am. Line Inc. v. Wartsila N. Am., Inc., 485 F.3d 450, 460 (9th Cir. 2007) (citing Panavision Int’l, L.P. v. Toeppen, 141 F.3d 1316, 1322 (9th Cir. 1998)). The website that Luhua maintains is nothing more than an informational website. Zhao Decl. at ¶ 18. It is not possible to purchase Luhua’s products through this medium, no matter how motivated the purchaser. In fact, the website does not list - and never has listed - the prices of Luhua’s krill oil products. Id. Luhua’s “website is not directed at customers in . . . [Nevada], but instead is available to all customers throughout the country who have access to the Internet. Id. Thus, ‘the ability of District residents to access the defendants’ website[ ] . . . does not by itself show any persistent course of conduct by the defendants in the District.” Trintec Indus., Inc. v. Pedre Promotional Prod., Inc., 395 F.3d 1275, 1281 (Fed. Cir. 2005) (quoting GTE New Media Servs., Inc. v. BellSouth Corp., 199 F.3d 1343, 1349 (D.C. Cir. 2000)). In fact, “[g]eneral in personam jurisdiction must be based on more than a defendant’s mere presence on the Internet even if it is an ‘Interactive’ presence.” ESAB Grp., Inc. v. Centricut, LLC, 34 F. Supp. 2d 323, 330 (D.S.C. 1999) (citing Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414, 418 (9th Cir. 1997). Luhua has not done anything to encourage people in Nevada to visit its site, or directed the site at Nevada more than any other place in the country. Zhao Decl. at ¶ 18; see ESAB Grp., Inc., 34 F. Supp. 2d at 331; see also Amini Innovation Corp. v. JS Imports, Inc., 497 F. Supp. 2d 1093, 1104 (C.D. Cal. 2007) (holding plaintiff failed to make a prima facie showing that defendants purposefully availed themselves of the benefits of doing business in the forum through their maintenance and use of a website where there was no evidence defendants conducted actual Case 2:16-cv-02314-MMD-PAL Document 25 Filed 10/21/16 Page 8 of 17 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- PA Y N E & F EA R S LL P A TT O R N E Y S A T LA W 72 51 W . L A K E M E A D B LV D ., S U IT E 5 25 LA S V E G A S , N E V A D A 8 91 28 (7 02 ) 85 1- 03 00 commercial transactions through the site, or any evidence that defendants conducted business with residents of the forum via the site). In order to evaluate whether the operation of a website constitutes purposeful availment of the benefits of doing business in a forum state absent other contacts with that forum, “[t]he Ninth Circuit utilizes the ‘sliding scale’ analysis, first set forth in Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997). See Cybersell, 130 F.3d at 418 (citing Zippo, 952 F. Supp. at 1124).” Amini Innovation Corp., 497 F. Supp. 2d at 1103. As in Amini Innovation Corp., “[a]pplying this sliding scale [here], a passive website [like Luhua’s], i.e., one that ‘does little more than make information available to those who are interested in it,’ does not support the exercise of personal jurisdiction over its operators.” 497 F. Supp. 2d at 1103 (citations omitted). B. Specific Jurisdiction does not Exist Specific jurisdiction may be exercised if a “defendant has sufficient contacts with the forum state in relation to the cause[s] of action.” SDS Korea Co., Ltd., 732 F. Supp. 2d at 1078. Specific jurisdiction is analyzed using a three-prong test: (1) the non-resident defendant must purposefully direct its activities towards, or consummate some transaction with, the forum or a resident thereof, or perform some act by which it purposefully avails itself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) the claim must be one which arises out of or results from the defendant’s forum-related activities; and (3) the exercise of jurisdiction must be reasonable. . . . Each of these conditions is required to assert jurisdiction. . . . Plaintiffs may satisfy the first prong in the analysis by demonstrating that the defendant ‘purposefully directed’ its conduct toward the forum state, or ‘purposefully availed’ itself of the privilege of doing business in the forum. . . . The second prong in the analysis requires that the claim arise out of or result from the defendant’s forum-related activities. A claim arises out of a defendant’s conduct if the claim would not have arisen ‘but for’ the defendant’s forum-related contacts. … If the plaintiff satisfies the first two factors, the defendant bears the burden of overcoming a presumption that jurisdiction is reasonable, by presenting a compelling case that specific jurisdiction would be unreasonable. Id. at 1078 (emphasis added) (citations omitted); see also Patent Rights Prot. Grp., LLC v. Video Gaming Tech., Inc., 603 F.3d 1364, 1369 (Fed. Cir. 2010) (discussing the three-prong test); Synthes (U.S.A.) v. G.M. Dos Reis Jr. Ind. Com de Equip. Medico, 563 F.3d 1285, 1292 (Fed. Cir. 2009) (same); Omeluk v. Langsten Slip & Batbyggeri A/S, 52 F.3d 267, 270 (9th Cir. 1995) (“If any of the three requirements is not satisfied, jurisdiction in the forum would deprive the defendant of due Case 2:16-cv-02314-MMD-PAL Document 25 Filed 10/21/16 Page 9 of 17 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- PA Y N E & F EA R S LL P A TT O R N E Y S A T LA W 72 51 W . L A K E M E A D B LV D ., S U IT E 5 25 LA S V E G A S , N E V A D A 8 91 28 (7 02 ) 85 1- 03 00 process of law.”). As demonstrated below, specific jurisdiction over Luhua does not exist because Luhua has not purposefully directed its conduct toward Nevada or purposefully availed itself of the privilege of doing business in the state, and Plaintiff’s claims do not arise out of, or result from, any activity by Luhua in Nevada. First, any attempt made to establish specific jurisdiction by pointing to Luhua’s product display at the 2015 SupplySide West show - one of Luhua’s only two “contacts” with the forum- fails. Displaying a product at a trade show, without more, is insufficient to confer personal jurisdiction in a patent infringement matter. See Med. Sols., Inc. v. C Change Surgical LLC, 541 F.3d 1136, 1140 (Fed. Cir. 2008) (confirming the district court’s finding of no personal jurisdiction because the plaintiff did not prove that the defendant “used” the allegedly infringing product in the district). In SDS Korea Co., 732 F. Supp. 2d at 1079, the plaintiff asserted that the Court had specific jurisdiction over the defendant “because the company attended a trade show in . . . [the forum state], and it currently advertise[d] on . . . [a] website . . . which ha[d] an office in . . . [the forum].” However, the court held that “it is not merely the number of contacts the defendants have with . . . [the forum], it is the quality and nature of those contacts which is important for establishing jurisdiction.” Id. (Internal quotations and citations omitted.) The court concluded that the plaintiff’s reliance on the defendant’s presence at the trade show was unavailing, and recognized that the plaintiff had failed to offer evidence that the company sold any products at the trade show to residents or businesses in the forum, or that the company participated in any negotiations or entered into any agreements or contracts with any forum state customers. Id. at 1079-80. “Thus, the location of the trade show, which [defendant] had no control over, [wa]s the only evidence indicating any contact with the forum.” Id. at 1080. Similarly, Luhua did not purposefully direct its activities toward, or consummate any transaction with Nevada or any resident thereof or perform any act by which it purposefully availed itself of the privilege of conducting activities in Nevada, thereby invoking the benefits and protections of its laws. See Zhao Decl. at ¶¶ 16-17. Consequently, the first prong of the three- prong test utilized to assess specific jurisdiction is not satisfied. SDS Korea, 732 F. Supp. 2d 1062. Case 2:16-cv-02314-MMD-PAL Document 25 Filed 10/21/16 Page 10 of 17 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- PA Y N E & F EA R S LL P A TT O R N E Y S A T LA W 72 51 W . L A K E M E A D B LV D ., S U IT E 5 25 LA S V E G A S , N E V A D A 8 91 28 (7 02 ) 85 1- 03 00 at 1079-80. Even assuming Luhua’s participation in the 2015 SupplySide West show is sufficient to satisfy the first prong of the specific jurisdiction analysis (which it is not), Plaintiff has not, and cannot, demonstrate that its “claims arise out of or relate to . . . [Luhua’s] exhibition at [that show]. ‘To satisfy th[e] second prong, the Ninth Circuit requires a plaintiff to show that [it] would not have suffered an injury ‘but for’ the defendants forum-related conduct.’” SDS Korea, 732 F. Supp. 2d at 1080. Like the plaintiff in SDS Korea Co., Ltd., Plaintiff “does not assert any of its alleged injuries resulted from . . . [Luhua’s] participation in the . . . [2015 SupplySide West show].” Id. Nor could it since the ‘765 Patent did not issue until over six months after the 2015 show took place. Generally speaking, a patent that has not issued cannot be infringed. See 35 U.S.C. § 271(a) (“whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent.”) (emphasis added).1 The term of a patent begins on the date that it issues. 35 U.S.C. § 154(a)(2). Accordingly, the second prong in the specific jurisdiction analysis is not satisfied because Plaintiff’s claims cannot arise out of Luhua’s activities at the 2015 SupplySide West show. Nor can Plaintiff’s claims arise from Luhua’s activities in Las Vegas in October 2016 as Luhua did not make, use, offer to sell2 or sell the accused products in Nevada at that time, or import those products 1 In certain circumstances, a patentee may recover damages for infringement of provisional rights arising from a published patent application. Such rights exist only where (i) the alleged infringer had “actual notice” of the published application and (ii) “the invention as claimed in the patent is substantially identical to the invention as claimed in the published patent application.” 35 U.S.C. § 154(d)(1)-(2). Plaintiff does not claim, nor can it, that either of these factors is present in this case. 2 An “offer for sale” is defined according to the “norms of traditional contractual analysis,” Rotec Indus. Inc. v. Mitsubishi Corp., 215 F.3d 1246, 1254-55 (Fed. Cir. 2000), which, among other things, are that “[a]n offer is the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.” Linear Tech. Corp. v. Micrel, Inc., 275 F.3d 1040, 1050 (Fed. Cir. 2001). Here, there is no evidence of such an “offer” made in Nevada with respect to the accused products after the issuance of the ‘765 Patent. In this connection, it is noted that, “mere publication of preliminary data sheets and promotional information for . . . [a product] communicates nothing to customers about . . . [a manufacturer’s] intent, and thus cannot be an offer for sale.” Id. at 1050. Case 2:16-cv-02314-MMD-PAL Document 25 Filed 10/21/16 Page 11 of 17 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- PA Y N E & F EA R S LL P A TT O R N E Y S A T LA W 72 51 W . L A K E M E A D B LV D ., S U IT E 5 25 LA S V E G A S , N E V A D A 8 91 28 (7 02 ) 85 1- 03 00 into Nevada. Even if the requirements of the first and second prongs of the three-prong test were satisfied (which they are not), the inquiry would not end there. Luhua would then “bear[ ] the burden of overcoming a presumption that jurisdiction is reasonable, by presenting a compelling case that specific jurisdiction would be unreasonable.” As more fully set forth below, a compelling case exists. Personal jurisdiction over Luhua in this District would not be fair or reasonable. SDS Korea Co., Ltd., 732 F. Supp. 2d at 1078. There are seven factors that are considered in assessing whether the exercise of jurisdiction over a non-resident defendant is reasonable: (1) the extent of the defendant’s purposeful interjection into the forum state’s affairs; (2) the burden on the defendant of defending in the forum; (3) conflicts of law between the forum state and the defendant’s home jurisdiction; (4) the forum state’s interest in adjudicating the dispute; (5) the most efficient judicial resolution of the dispute; (6) the plaintiff’s interest in convenient and effective relief; and (7) the existence of an alternative forum. Id. at 1078-79. Application of these factors makes it clear that exercising jurisdiction over Luhua would be unreasonable. Any conclusion to the contrary would force Luhua to defend itself in a forum which has little or no interest in adjudicating this dispute and with which Luhua has (i) had virtually no contact and (ii) committed no allegedly infringing acts. That is unreasonable. In particular, as set forth in the Zhao and Zielomski declarations, Luhua has not purposefully injected itself into Nevada’s affairs. This dispute is of minimal interest to Nevada. No allegedly infringing acts took place in the State, Nevada does not have any particular significance to the krill oil industry and none of the parties are located here. (Zhao Decl. at ¶¶ 2-3, 12; Zielomski Decl. at ¶¶ 2-3, 14; ECF No. 1 at ¶ 1). Notably, Plaintiff, which is based in Norway, (ECF No. 1 at ¶ 1), has a subsidiary with a manufacturing plant and 55 employees located in Houston, Texas with which it “work[s] in concert to bring to market patented krill oil.” ( ECF No. 3-8 at ¶¶ 2-3, 7-8). Finally, two more appropriate forums exist: (1) the U.S. International Trade Commission, which exercises in rem jurisdiction over allegedly infringing goods and (2) the Central District of California where (i) Luhua’s distributor is located and (ii) Luhua has imported the accused products into the United States. Significantly, the approximate value of the krill oil samples that Luhua Case 2:16-cv-02314-MMD-PAL Document 25 Filed 10/21/16 Page 12 of 17 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 -13- PA Y N E & F EA R S LL P A TT O R N E Y S A T LA W 72 51 W . L A K E M E A D B LV D ., S U IT E 5 25 LA S V E G A S , N E V A D A 8 91 28 (7 02 ) 85 1- 03 00 provided to Infiniti, the only person in the United States to which it has provided such samples (other than Plaintiff’s attorney), was $100. (Zhao Decl. at ¶¶ 10-11; Zielomski Decl. at ¶ 7). In cases before this Court where specific jurisdiction was found to exist, the defendants had engaged in contacts with Nevada which were far more extensive than Luhua’s. See, e.g., Elan Microelectronics Corp. v. Pixir Microelectronics Co., No. 2:10-CV-00014-GMN, 2012 WL 523695, at *7 (D. Nev. Feb. 16, 2012) (“[The] burden is less onerous where, as has been shown, Pixir representatives travel to the United States frequently and conduct business in District of Nevada.” (emphasis added)); Corbo v. Laessig, No. 2:10-CV-0316-GMN-LRL, 2011 WL 1327680, at *4 (D. Nev. Apr. 6, 2011) (indicating defendant “traveled to Nevada 2 to 6 times per year over a period of 10 years” (emphasis added)); Bravo Co. USA v. Badger Ordnance LLC, No. 2:14-CV- 00387-RCJ, 2015 WL 1326420, at *2 (D. Nev. Mar. 25, 2015) (contacts with the forum included “selling his patented products to Nevada consumers and through Nevada distributors . . . annually attending the Shooting, Hunting, and Outdoors Tradeshow . . . directing his Nevada-based counsel to threaten legal action . . . and making the Nevada public aware of his patents through his ‘Web presence’ in Nevada.”) (emphasis added); Computerized Screening, Inc. v. Healthspot Inc., No. 2:14-CV-00573-RFB, 2015 WL 4562342, at *6 (D. Nev. July 28, 2015) (jurisdiction not unreasonable considering that defendant “has made at least five trips to Nevada in less than two years”) (emphasis added). The extensive contacts and activities of those defendants stand in stark contrast to Luhua’s extremely limited contacts with Nevada. C. In the Alternative, Plaintiff Fails to State a Claim for Patent Infringement Should the Court not dismiss this case on jurisdictional grounds, it should dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6). Federal Rule of Civil Procedure 8(a) require that a pleading contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Prior to December 2015, courts, when considering the sufficiency of patent infringement allegations looked to Federal Rule of Civil Procedure 84, which in turn referred to “forms in the Appendix.” Footbalance Sys. Inc. v. Zero Gravity Inside, Inc., No. 15-CV-1058-JLS, 2016 WL 5786936 at *2 (S.D. Cal. Oct. 4, 2016) (citation omitted). Form 18 of the Appendix provided a template for a Case 2:16-cv-02314-MMD-PAL Document 25 Filed 10/21/16 Page 13 of 17 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 -14- PA Y N E & F EA R S LL P A TT O R N E Y S A T LA W 72 51 W . L A K E M E A D B LV D ., S U IT E 5 25 LA S V E G A S , N E V A D A 8 91 28 (7 02 ) 85 1- 03 00 patent infringement complaint that “merely included an allegation that the defendant infringed the asserted patent by making, using, or selling ‘electric motors’ without specifying the model of the accused motors.” Id. The 2015 Amendments to the Federal Rules, which the Supreme Court submitted to Congress in April 2015 pursuant to 28 U.S.C. § 2072, abrogated Rule 84. Id. The 2015 Amendments took effect December 1, 2015. Id. While neither the Ninth Circuit nor the Federal Circuit has specifically addressed the impact of the abrogation of Rule 84 on complaints for patent infringement, district courts throughout the country, including those in the Ninth Circuit, which have considered the issue, have routinely held that the “abrogation of Rule 84 means that the Rule 8 pleading standards as construed by Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) govern in patent cases.” Id. (emphasis added) (citing Rembrandt Patent Innovations LLC v. Apple Inc., Nos. C 14-05094 (WHA), C 14-05093 WHA, 2015 WL 8607390, at *2 (N.D. Cal. Dec. 13, 2015) and RAH Color Techs. LLC v. Ricoh USA Inc., No. 2:15-CV-05203-JCJ, 2016 WL 3632720, at *2 (E.D. Pa. July 7, 2016)); see also Tannerite Sports, LLC v. Jerent Enterprises, LLC, No. 6:15-cv-00180, 2016 WL 1737740 (D. Or. May 2, 2016); e.Digital Corp. v. iBaby Labs, Inc., No. 15-cv-05790, 2016 WL 4427209 (N.D. Cal. Aug. 22, 2016); Avago Techn. Gen. IP (Singapore) PTE Ltd. v. Asustek Computer, Inc., No. 15-cv-4525-EMC, 2016 WL 1623920, at *4 (N.D. Cal. Apr. 25, 2016); Incom Corp. v. The Walt Disney Company, No. 15-cv-3011-PSG, ECF No. 39, at *3 (C.D. Cal. Feb. 4, 2016).3 3 There is one outlier of the cases applying the pleading standards set forth in Twombly and Iqbal to claims of patent infringement: Hologram USA, Inc. v. Pulse Evolution Corp., No. 14-cv-0772- GMN-NJK, 2016 WL 199417, at *2 (D. Nev. Jan. 15, 2016). In that case, the Court held that the Form 18 pleading standards still applied to a second amended complaint for patent infringement. That amended complaint was filed before the abrogation of Rule 84. The Hologram decision has been criticized by other courts on, among other, grounds that “a form that no longer exists can no longer control” (Tannerite Sports, 2016 WL 1737740, at *3), and that the Court misapplied the Advisory Committee note regarding the abrogation of Rule 84. e.Digital, 2016 WL 4427209 at 2-3; see also RAH Color Techs, 2016 WL 3632720, at *5-6 (criticizing Hologram and holding that “abandoning the Form 18 pleading standard and applying Twombly/Iqbal’s standard to a pleading filed after the amendments took effect is ‘practicable’ and necessary for the resolution of inconsistent case law.”) (quotation omitted). Case 2:16-cv-02314-MMD-PAL Document 25 Filed 10/21/16 Page 14 of 17 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 -15- PA Y N E & F EA R S LL P A TT O R N E Y S A T LA W 72 51 W . L A K E M E A D B LV D ., S U IT E 5 25 LA S V E G A S , N E V A D A 8 91 28 (7 02 ) 85 1- 03 00 Under this new pleading standard, “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of a cause of action’s elements will not do.” Twombly, 550 U.S. at 545 (alteration in original). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (alteration in original) (quoting Twombly, 550 U.S. at 557). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Id. (quoting Twombly, 550 U.S. at 570); see also Fed. R. Civ. P. 12(b)(6). A claim is facially plausible when the facts pleaded “allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). That is not to say that the claim must be probable, but there must be “more than a sheer possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556). “[F]acts that are ‘merely consistent with’ a defendant’s liability” fall short of a plausible entitlement to relief. Id. (quoting Twombly, 550 U.S. at 557). Further, the Court need not accept as true “legal conclusions” contained in the complaint. Id. at 678-79 (citing Twombly, 550 U.S. at 555). In the patent context, courts have required plaintiffs to plausibly allege that the accused product practices each of the limitations found in at least one asserted claim of the patent. eDigital, 2016 WL 4427209 at *3-4 citing Atlas IP LLC v. Pacific Gas and Electric Co., No. 15-cv-05469- EDL, 2016 WL 1719545, at *2 (N.D. Cal. Mar. 9, 2016) (“[S]imply reciting some of the elements of a representative claim and then describing generally how an accused product operates, without specifically tying the operation to any asserted claim or addressing all of the claim requirements, is insufficient.”); Atlas IP, LLC v. Exelon Corp., No. 15-cv-10746, 2016 WL 2866134, at *5 (N.D. Ill. May 17, 2016) (“[F]actual allegations that do not permit a court to infer that the accused product infringes each element of at least one claim are not suggestive of infringement-they are merely compatible with infringement.”); Raindance Techs., Inc. v. 10x Genomics, Inc., No. 15-cv-152, 2016 WL 927143, at *2 (D. Del. Mar. 4, 2016) (finding complaint failed to state a claim for direct patent infringement after conducting a limitation-by-limitation analysis, comparing the asserted claim to the factual allegations in the complaint). This requirement exists because “the failure to Case 2:16-cv-02314-MMD-PAL Document 25 Filed 10/21/16 Page 15 of 17 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 -16- PA Y N E & F EA R S LL P A TT O R N E Y S A T LA W 72 51 W . L A K E M E A D B LV D ., S U IT E 5 25 LA S V E G A S , N E V A D A 8 91 28 (7 02 ) 85 1- 03 00 meet a single limitation is sufficient to negate infringement of [a] claim.” eDigital, 2016 WL 4427209 at *3 (citing Laitram Corp. v. Rexnord, Inc., 939 F.2d 1533, 1535 (Fed. Cir. 1991)). Here, Plaintiff’s infringement allegations against Luhua amount to nothing more than “an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). Plaintiff merely alleges that (i) Luhua has “made, used, imported, provided, supplied, distributed, sold and/or offered to sell” the accused products and (ii) the “accused products practice each and every limitation of at least one claim of the ‘765 Patent.” (Complaint ¶¶12-13). The Complaint fails to identify which of the ‘765 Patent’s forty five claims are infringed and is completely devoid of any analysis as to why or how the accused products practice each and every limitation of such claims. Under Twombly and Iqbal, that is not enough. Accordingly, the Complaint must be dismissed pursuant to Fed. R. Civ. P. 12(b)(6). See eDigital, 2016 WL 4427209 at *5 (dismissing complaint where plaintiff attempted to map most, but not all, of the elements in the exemplary claim onto its description of the accused products in the complaint). IV. CONCLUSION For the foregoing reasons, Luhua’s brief and insignificant contacts with Nevada are far from the “substantial connection” required by Supreme Court precedent to confer personal jurisdiction. See Walden v. Fiore, 134 S. Ct. 1115, 1121 (2014). Accordingly, this action should be dismissed as against Luhua as the Court does not have personal jurisdiction over it. In the alternative, the Complaint should be dismissed because Plaintiff has failed to state a claim for patent infringement. Case 2:16-cv-02314-MMD-PAL Document 25 Filed 10/21/16 Page 16 of 17 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 -17- PA Y N E & F EA R S LL P A TT O R N E Y S A T LA W 72 51 W . L A K E M E A D B LV D ., S U IT E 5 25 LA S V E G A S , N E V A D A 8 91 28 (7 02 ) 85 1- 03 00 DATED: October 21, 2016 Respectfully submitted, PAYNE & FEARS LLP By: /s/ Matthew L. Durham Matthew L. Durham, Esq., NV Bar No. 10342 7251 W. Lake Mead Blvd., Suite 525 Las Vegas, Nevada 89128 Telephone: (702) 851-0300 TARTER KRINSKY & DROGIN LLP /s/ Mark J. Rosenberg Mark J. Rosenberg, Esq. (Pro Hac Vice Admission Pending) 1350 Broadway, 11th Flr. New York, New York 10018 Tel.: (212) 216-1127 Attorneys for Defendant Luhua Biomarine (Shandong) Co., Ltd. Case 2:16-cv-02314-MMD-PAL Document 25 Filed 10/21/16 Page 17 of 17 Case 2:16-cv-02314-MMD-PAL Document 25-1 Filed 10/21/16 Page 1 of 5 Case 2:16-cv-02314-MMD-PAL Document 25-1 Filed 10/21/16 Page 2 of 5 Case 2:16-cv-02314-MMD-PAL Document 25-1 Filed 10/21/16 Page 3 of 5 Case 2:16-cv-02314-MMD-PAL Document 25-1 Filed 10/21/16 Page 4 of 5 Case 2:16-cv-02314-MMD-PAL Document 25-1 Filed 10/21/16 Page 5 of 5 Case 2:16-cv-02314-MMD-PAL Document 25-2 Filed 10/21/16 Page 1 of 4 Case 2:16-cv-02314-MMD-PAL Document 25-2 Filed 10/21/16 Page 2 of 4 Case 2:16-cv-02314-MMD-PAL Document 25-2 Filed 10/21/16 Page 3 of 4 Case 2:16-cv-02314-MMD-PAL Document 25-2 Filed 10/21/16 Page 4 of 4