Mha, Llc v. Siemens Healthcare Diagnostics, Inc. et al

REPLY BRIEF to Opposition to Motion

D.N.J.December 27, 2016

BRYAN CAVE LLP Megan Pierson 1290 Avenue of the Americas New York, NY 10104 Tel: (212) 541-2000 Fax: (212) 541-4630 Megan.Pierson@bryancave.com Attorneys for Defendant Inpeco S.A. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY MHA LLC, Plaintiff, v. SIEMENS HEALTHCARE DIAGNSOTICS, INC.; SIEMENS HEALTH DIAGNOSTICS, LTD.; INPECO S.A.; AND JOHN DOES 1-100, Defendants. Civil Action No. 15-01573-JLL-JAD DEFENDANT INPECO S.A.’S REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF ITS MOTION TO DISMISS PLAINTIFF’S SECOND AMENDED COMPLAINT PURSUANT TO RULES 12(B)(2) AND (6) Case 2:15-cv-01573-JLL-JAD Document 71 Filed 12/27/16 Page 1 of 18 PageID: 1064 i TABLE OF CONTENTS Pages I. INTRODUCTION .............................................................................................................. 1 II. ARGUMENT...................................................................................................................... 1 A. Plaintiff Fails To Carry Its Burden In Proving That Inpeco Has Sufficient Minimum Contacts With New Jersey To Permit The Exercise Of Personal Jurisdiction.............................................................................................................. 1 1. It Is Undisputed That Inpeco Has No Business Presence In The State Of New Jersey. ................................................................................................. 4 2. Inpeco’s Subsidiary’s Contacts With New Jersey Cannot Form The Basis For Personal Jurisdiction Over Inpeco........................................................ 5 3. Inpeco’s Single Contact With New Jersey Is Not Sufficient To Establish Specific Personal Jurisdiction. .................................................................... 7 B. Plaintiff Should Not Be Granted Limited, Jurisdictional Discovery. ..................... 8 C. Plaintiff’s Second Amended Complaint Against Inpeco Is Still Insufficiently Pled. ............................................................................................................................... 11 III. CONCLUSION................................................................................................................. 12 Case 2:15-cv-01573-JLL-JAD Document 71 Filed 12/27/16 Page 2 of 18 PageID: 1065 ii TABLE OF AUTHORITIES Pages Cases Abulkhair v. President of U.S., No. 120-cv-2476, 2012 WL 3743338 (3d Cir. Aug. 20, 2012)................................................. 13 Ashcroft v. Iqbal, 556 U.S. 662 (2009) .................................................................................................................. 13 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) .................................................................................................................. 13 Decker v. Circus Circus Hotel, 49 F. Supp. 2d 743 (D.N.J. 1999) ............................................................................................... 7 Exxon Mobile Corp. v. Saudi Basic Indus. Corp., 941 F. Supp. 2d 513 (D.N.J. 2005) ........................................................................................... 11 Garshman v. Universal Resources Holding, Inc., 641 F. Supp. 1359 (D.N.J. 1986) ........................................................................................ 2, 6, 9 Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408 (1984) .................................................................................................................... 8 In re Auto. Refinishing Paint Antitrust Litig., No. 1426, 2002 WL 31261330 (E.D. Pa. July 31, 2002) .......................................................... 10 J. McIntyre Machinery, Ltd. v. Nicastro¸ 564 U.S. 873 (2011) ........................................................................................................ 2, 3, 4, 5 Lee-Peckham v. Runa, LLC, No. 14-cv-6635, 2015 WL 150120 (D.N.J. Jan. 12, 2015) ....................................................... 12 Lottotron, Inc. v. Athila Station, No. 10-cv-4318, 2011 WL 2784570 (D.N.J. July 11, 2011)....................................................... 9 Oliver v. Funai Corp., No. 14-cv-4532, 2015 WL 9304541 (D.N.J. Dec. 21, 2015) ........................................................................... 2, 11 Osteotech, Inc. v. Gensci Regeneration Sciences, Inc., 6 F. Supp. 2d 349 (D.N.J. 1998) ................................................................................................. 8 Reliable Volkswagen Sales & Serv. Co. v. World-Wide Auto. Corp., 26 F.R.D 592 (D.N.J. 196) ........................................................................................................ 11 Singh v. Diesel Transp., LLC, No. 16-cv-2311, 2016 WL 3647992 (D.N.J. July 7, 2016)......................................................... 9 Smith v. S & S Dundalk Eng’g Works, Ltd., 139 F. Supp. 2d 610 (D.N.J. 2001) ......................................................................................... 2, 6 Case 2:15-cv-01573-JLL-JAD Document 71 Filed 12/27/16 Page 3 of 18 PageID: 1066 iii Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61, n.9 (3d Cir. 1984)................................................................................................... 2 Toys “R” Us, Inc. v. Step Two. S.A., 318 F.3d 446 (3d Cir. 2003)...................................................................................................... 10 Rules FED. R. CIV. P. 12(b)(2) .................................................................................................................. 1 FED. R. CIV. P. 12(b)(6) ............................................................................................................ 1, 12 FED. R. CIV. P. 4(k)(2) .................................................................................................................... 9 FED. R. CIV. P. 45(c)(1)(a) ............................................................................................................ 10 Case 2:15-cv-01573-JLL-JAD Document 71 Filed 12/27/16 Page 4 of 18 PageID: 1067 Defendant Inpeco S.A. (“Inpeco”), by and through its undersigned counsel, submits this Reply Memorandum of Law in Further Support of its Motion to Dismiss Plaintiff MHA, LLC (“Plaintiff”)’s Second Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(2) and 12(b)(6) (the “Motion”). I. INTRODUCTION Plaintiff’s opposition fails to establish any fact or introduce a shred of evidence from which this Court could conclude that the exercise of personal jurisdiction over Inpeco in New Jersey is appropriate. This was Plaintiff’s burden. At no time relevant to the Second Amended Complaint or the Motion has Inpeco had a business presence in the State of New Jersey, let alone one legally sufficient to require that Inpeco submit to jurisdiction in this Court. Plaintiff resorts to mischaracterizing the governing legal standards and case law, making wholly conclusory assertions absent from Plaintiff’s Second Amended Complaint, and imploring the Court, in the alternative, to allow costly jurisdictional discovery where Plaintiff has failed to make the requisite showing of personal jurisdiction over Inpeco. Inpeco’s Motion should be granted. II. ARGUMENT A. Plaintiff Fails To Carry Its Burden In Proving That Inpeco Has Sufficient Minimum Contacts With New Jersey To Permit The Exercise Of Personal Jurisdiction. Inpeco’s Motion challenged the exercise of personal jurisdiction over it in this case and in this Court. Plaintiff had not even pled a conclusory allegation that jurisdiction is proper in its Second Amended Complaint. Plaintiff cannot make this allegation as jurisdiction is not proper. Yet, Plaintiff must “plead[] and prov[e] facts which support the court’s exercise of personal jurisdiction [over the defendant]” upon a challenge to the exercise of personal jurisdiction. Garshman v. Universal Resources Holding, Inc., 641 F. Supp. 1359, 1363 (D.N.J. 1986) Case 2:15-cv-01573-JLL-JAD Document 71 Filed 12/27/16 Page 5 of 18 PageID: 1068 2 (emphasis added) (dismissing claims where it was not shown that parent corporation transacted business in New Jersey). (See also Motion, § II.A.1.) A prima facie case of personal jurisdiction cannot be established with “bare pleadings alone.” Smith v. S & S Dundalk Eng’g Works, Ltd., 139 F. Supp. 2d 610, 618 (D.N.J. 2001) (granting motion to dismiss). Rather, Plaintiff is required to provide proof that Inpeco is subject to personal jurisdiction through competent evidence or sworn affidavits and “with reasonably particularity.” Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61, 66 n.9 (3d Cir. 1984); Oliver v. Funai Corp., No. 14-cv- 4532, 2015 WL 9304541, *4 (D.N.J. Dec. 21, 2015) (Linares, J.) (granting motion to dismiss for lack of personal jurisdiction). Plaintiff offers none. Plaintiff instead relies on a “stream of commerce theory” in arguing that “the [Second Amended] Complaint makes out a claim against Inpeco for Inpeco’s involvement in the stream of commerce and sale of the device in New Jersey.” (Response, p. 4.) In doing so, Plaintiff purportedly quotes from J. McIntyre Machinery, Ltd. v. Nicastro¸ 564 U.S. 873 (2011), for the proposition that there are “three familiar ‘principles’ for determining whether specific jurisdiction could be asserted based on the stream-of-commerce doctrine.” (Response, p. 4.) None of the quotes included in Plaintiff’s Response, however, are actually found in that case. See generally J. McIntyre Machinery, 564 U.S. 873.1 Specific personal jurisdiction could still not be asserted even if J. McIntrye Machinery actually stood for the three “principles” Plaintiffs cites. (Response, p. 4.) First, Plaintiff’s Second Amended Complaint does not allege and Plaintiff has not produced any evidence that Inpeco had extensive involvement in the downstream process. (See generally Second Amended 1 Key words from Plaintiff’s “quotes”-“extensiveness,” “downstream process,” and “quantity”-are not even found in the case. See generally J. McIntyre Machinery, 564 U.S. 873. Case 2:15-cv-01573-JLL-JAD Document 71 Filed 12/27/16 Page 6 of 18 PageID: 1069 3 Complaint; Response, p. 4.)2 Instead, Inpeco “does not conduct any business in New Jersey. Inpeco has never advertised or solicited business in New Jersey . . . Inpeco does not maintain any employees, sales agents or other representatives in New Jersey . . . All of Inpeco’s business operations are conducted outside the state of New Jersey.” (Declaration of Gianandrea Pedrazzini, Dkt. No. 54-1, ¶¶ 4-5, 10.)3 Second, Plaintiff’s Second Amended Complaint does not allege and Plaintiff has not produced any evidence that Inpeco sells products to entities in New Jersey in sizeable quantities. (See generally Second Amended Complaint; Response, p. 4.) Inpeco instead “does not sell products to end customers in New Jersey.” (Declaration of Gianandrea Pedrazzini, Dkt. No. 54-1, ¶ 4.) Third, Plaintiff’s Second Amended Complaint does not allege and Plaintiff has not produced any evidence that Inpeco even has sufficient contacts with the United States as a whole. (See generally Second Amended Complaint; Response, p. 4.) Regardless, Plaintiff fails to acknowledge that the “so-called ‘stream-of-commerce’ doctrine cannot displace” the rule that “the exercise of judicial power is not lawful unless the defendant “purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” J. McIntyre Machinery, 564 U.S. at 877-878 (holding that foreign manufacturer did not engage in conduct purposefully directed at New Jersey so as to support New Jersey’s exercise of jurisdiction over the manufacturer). Plaintiff has failed to present any evidence that supports the exercise of personal jurisdiction over 2 As reflected in the information from the U.S. Food and Drug Administration attached to Inpeco’s Motion, Siemens is identified in ‘Establishment Operations’ as the manufacturer. 3 Plaintiff claims that “[t]he test for jurisdiction is at the time of the filing of the action and not at the time of the contract, contrary to Inpeco’s arguments.” (Response, p. 5.). Notably, Mr. Pedrazzini’s declaration, filed after this action was initiated and in the present tense, is not limited to addressing Inpeco’s lack of contacts with New Jersey only as of the time of contracting. Case 2:15-cv-01573-JLL-JAD Document 71 Filed 12/27/16 Page 7 of 18 PageID: 1070 4 Inpeco, either specific or general, falling far short of its burden of proof. Inpeco’s Motion should be granted. 1. It Is Undisputed That Inpeco Has No Business Presence In The State Of New Jersey. Plaintiff must show either specific or general jurisdiction over Inpeco. Plaintiff does not do so. Inpeco has submitted unrebutted evidence that it does not have contacts with the State of New Jersey, much less ones that are “continuous,” “systematic,” and “substantial” or that are not “sporadic,” “occasional,” or “unilateral.” (See Motion, § II.A.2, pp. 6-7.) The Second Amended Complaint admits that Inpeco is not incorporated in New Jersey and that Inpeco does not have its principal place of business in New Jersey. (Second Amended Complaint, ¶ 8.) Plaintiff does not refute that Inpeco does not advertise or solicit business in New Jersey, does not sell any products in New Jersey, does not gain revenues from products or services sold in New Jersey, does not own or have any property interests in New Jersey, and does not have any employees in New Jersey. (See generally Response.) Nor does Plaintiff provide any additional information which might negate these general jurisdictional facts. Plaintiff provides no support or explanation for its argument that the facts of J. McIntrye Machinery “are not analogous to the instant matter and Inpeco’s contacts with the forum state are much less attenuated.” (Response, p. 5.) The facts of the two cases are actually quite similar. In both cases, the plaintiff failed to establish that the defendant manufacturer engaged in conduct purposefully directed at New Jersey. See 564 U.S. at 886. The defendant manufacturer “had no office in New Jersey; it neither paid taxes nor owned property there; and it neither advertised in, nor sent any employees to, the State.” (Compare id. with Declaration of Gianandrea Pedrazzini, Dkt. No. 54-1, ¶¶ 4-8.) In fact, in both cases, the defendant did “not have a single contact with New Jersey short of the machine in question ending up in this state.” (Compare 564 U.S. at 886 Case 2:15-cv-01573-JLL-JAD Document 71 Filed 12/27/16 Page 8 of 18 PageID: 1071 5 with Declaration of Gianandrea Pedrazzini, Dkt. No. 54-1, ¶¶ 4-11, 20.) This is not sufficient to establish general personal jurisdiction. 2. Inpeco’s Subsidiary’s Contacts With New Jersey Cannot Form The Basis For Personal Jurisdiction Over Inpeco. Plaintiff does not even attempt to argue that it can satisfy the standards for general or specific personal jurisdiction. Plaintiff instead focuses on Inpeco’s subsidiary, Inpeco North America, Inc. (“Inpeco N.A.”), which had no involvement with the StreamLAB equipment that is the subject of this action. (See Response, p. 5; Declaration of Gianandrea Pedrazzini, Dkt. No. 54-1, ¶ 15.) Plaintiff claims that Inpeco N.A. is Inpeco’s “primary asset in the United States,” but provides no support for such an allegation. (Response, p. 5.)4 Nor is any such allegation included in Plaintiff’s Second Amended Complaint. Plaintiff claims that “Inpeco is clearly doing business in the United States and its involvement in the downstream process has only increased over time,” but provides no support for such an allegation. (Response, p. 5.) Nor is any such allegation included in Plaintiff’s Second Amended Complaint. Plaintiff claims that Inpeco “decided to place its primary US headquarters in New Jersey,” but provides no support for such an allegation. (Response, p. 5; see also p. 8.) Nor is any such allegation included in Plaintiff’s Second Amended Complaint. Plaintiff’s Second Amended Complaint cannot survive the instant Motion by impermissibly assuming facts and making unsupported arguments about Inpeco’s relationship with a separate subsidiary corporation without evidentiary support. While Inpeco provided the Court and the parties with information regarding its subsidiary Inpeco N.A., it is well-established, that the presence of a domestic subsidiary is an insufficient basis upon which to exercise personal jurisdiction over a parent corporation. See Garshman, 4 Plaintiff’s claim that Inpeco N.A.’s existence “belies the fact that Inpeco has sufficient minimum contacts with the State of New Jersey” makes no sense. (Response, p. 5.) It is Inpeco’s lack of contacts with the State of New Jersey and the law that belie Plaintiff’s position that personal jurisdiction over Inpeco is appropriate. Case 2:15-cv-01573-JLL-JAD Document 71 Filed 12/27/16 Page 9 of 18 PageID: 1072 6 641 F. Supp. at 1364-1366 (dismissing claims where it had not been shown that parent corporation transacted business in New Jersey even though parent’s wholly owned subsidiary did transact business in New Jersey); S & S Dundalk, 139 F. Supp. 2d at 619-623 (holding that the fact that defendant’s indirect subsidiaries had sufficient contacts with New Jersey to justify assertion of personal jurisdiction over subsidiaries did not by itself permit assertion of jurisdiction over defendant, which had no such contacts). (See also Motion, § II.A.2, p. 7.) Nor does Plaintiff “satisfy the strict standard to pierce the corporate veil for purposes of jurisdiction” to impute the business activities of Inpeco’s subsidiary, Inpeco N.A., to Inpeco itself. S & S Dundalk, 139 F. Supp. 2d at 623. This too was Plaintiff’s burden. Id. at 620. Plaintiff claims that “Inpeco, N.A. is Inpeco’s agent under the common-law of agency.” (Response, p. 5.) What Plaintiff really tries to do is pierce the corporate veil. However, courts in the District of New Jersey “will not disregard the existence of separate corporate entities save some evidence that the defendant subsidiary is dominated or controlled by the parent corporation.” Decker v. Circus Circus Hotel, 49 F. Supp. 2d 743, 747 (D.N.J. 1999). No such evidence existed in the record in Decker. Id. And none exists here. Plaintiff lists a number of factors to be considered in determining whether a subsidiary is “acting as an agent of the parent.” (Response, p. 5.) But Plaintiff then fails to analyze a single one of these considerations. (See generally id., pp. 5-6.) Plaintiff fails to argue or offer evidence that Inpeco N.A. is “doing business in the forum that would otherwise be performed by” Inpeco. (Id., p. 5.) Plaintiff fails to argue or offer evidence that there is common ownership of Inpeco and Inpeco N.A. (Id.) Plaintiff fails to argue or offer evidence that Inpeco N.A. is financially dependent on Inpeco. (Id.) Plaintiff fails to argue or offer evidence that Inpeco “interferes with the subsidiary’s personnel.” (Id.) Plaintiff fails to argue or offer evidence that Inpeco disregards Case 2:15-cv-01573-JLL-JAD Document 71 Filed 12/27/16 Page 10 of 18 PageID: 1073 7 Inpeco N.A.’s corporate formalities. (Id., p. 6.) Plaintiff fails to argue or offer evidence that Inpeco controls Inpeco N.A.’s “marketing and operational policies.” (Id.) To the contrary, Inpeco and Inpeco N.A. are not one in the same. As such, Inpeco N.A.’s contacts with New Jersey cannot be imputed to Inpeco for purposes of the Court’s personal jurisdiction analysis. Plaintiff offers no rebuttal to Inpeco’s argument that “the notion that foreign corporation are ipso facto subject to general jurisdiction whenever they have an in-state affiliate . . . would sweep beyond even the sprawling view of general jurisdiction.” (Response, p. 6.) Inpeco’s Motion should be granted. 3. Inpeco’s Single Contact With New Jersey Is Not Sufficient To Establish Specific Personal Jurisdiction. To show specific jurisdiction, Plaintiff must prove that “the cause of action arose out of the defendant’s activities within the forum state.” Osteotech, Inc. v. Gensci Regeneration Sciences, Inc., 6 F. Supp. 2d 349, 353 (D.N.J. 1998) (citing Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 416 (1984)). Plaintiff does not make this showing. Plaintiff instead only asserts that “Siemens directed Inpeco to ship the StreamLAB equipment to MHA in New Jersey” and that “Siemens admits renegotiating its Supply Agreement in July 2015.” (Response, p. 6.) Plaintiff offers no explanation as to why such assertions support the exercise of personal jurisdiction over Inpeco. They do not. Rather, personal jurisdiction cannot be exercised specifically because Inpeco’s single contact with New Jersey was directed by Siemens. That single contact, the shipment to New Jersey, was-at most-based on the unilateral activity of Siemens, rendering the exercise of jurisdiction over Inpeco based on it improper. (See Motion, § II.A.3, pp. 8-9.) Plaintiff’s Response does not address or dispute this. Case 2:15-cv-01573-JLL-JAD Document 71 Filed 12/27/16 Page 11 of 18 PageID: 1074 8 Plaintiff’s claims also still do not arise out of or relate to any issues with the timing or manner of delivery of the StreamLab equipment. (See Motion, § II.A.3, p. 10.) Plaintiff does not plead in its Second Complaint its new theory that “this matter involves claims for . . . damages caused to the device in the transport of the device, resulting in the delivery of a defective device.” (Compare Response, p. 6 with generally Second Amended Complaint.) The Second Amended Complaint instead contradicts this theory. (Second Amended Complaint, ¶ 33 (“The StreamLAB unit was installed by Siemens and started fully functioning in or around February 2013.”).) It, therefore, cannot justify the exercise of specific personal jurisdiction. Plaintiff does not make any attempt to address the significant due process concerns raised by Inpeco. (Compare Response with Motion, § II.A.3, pp. 10-11.) Inpeco should not be unfairly forced to litigate in a forum, of which it did not purposefully avail itself, far from its Swiss home. Dismissal of the Second Amended Complaint is warranted. B. Plaintiff Should Not Be Granted Limited, Jurisdictional Discovery. Jurisdictional discovery is not warranted where, as here, there is an “utter absence of any hint” of the required facts or elements required for personal jurisdiction. Garshman, 641 F. Supp. at 1366. As this Court has held: Plaintiff has not presented any factual allegations that would suggest with the required particularity how discovery with respect to personal jurisdiction would unveil the requisite minimum contacts between Defendant[] and this forum . . . Given Plaintiff’s failure to allege any substantial contacts between Defendant[] and New Jersey, the Court founds that permitting jurisdictional discovery in this matter would be futile. Singh v. Diesel Transp., LLC. No. 16-cv-2311, 2016 WL 3647992, *5 (D.N.J. July 7, 2016) (Linares, J.) (denying request for jurisdictional discovery). “This is not a case where the existing record is inadequate to support personal jurisdiction, but rather is a case where the plaintiff has entirely failed to put evidence in the record to support personal jurisdiction.” Lottotron, Inc. v. Case 2:15-cv-01573-JLL-JAD Document 71 Filed 12/27/16 Page 12 of 18 PageID: 1075 9 Athila Station, No. 10-cv-4318, 2011 WL 2784570, *2 (D.N.J. July 11, 2011) (Linares, J.) (internal citations and quotations omitted). As such, jurisdictional discovery is not warranted. Id. at *3 (granting motion to dismiss without discovery). Plaintiff has not made the required threshold showing and has not presented facts-let alone with sufficient particularity-that would suggest this Court has proper jurisdiction over Inpeco. For this reason, the cases Plaintiff cites (see Response, p. 8), many of which are from other jurisdictions and are therefore not controlling, are distinguishable. See e.g., In re Auto. Refinishing Paint Antitrust Litig., No. 1426, 2002 WL 31261330, **4, 6 (E.D. Pa. July 31, 2002) (finding that plaintiff had made threshold prima facie showing of jurisdiction under the Federal Rule of Civil Procedure 4(k)(2) and the Rules for Multi-District Litigation, which are not applicable here); Toys “R” Us, Inc. v. Step Two. S.A., 318 F.3d 446, 456 (3d Cir. 2003) (allowing jurisdictional discovery where the record before the court “contained sufficient non- frivolous allegations (and admissions) to support the request for jurisdictional discovery”). Non- frivolous allegations are absent from Plaintiff’s Second Amended Complaint and its opposition. On December 12, 2016, counsel for Plaintiff wrote to the Court requesting that the Court hold Inpeco’s motion in abeyance given certain representations made by Siemens’s counsel. (Dkt. No. 67.) Plaintiff did not provide any legal basis or report for such a request. Any representations made by Siemens’s counsel have no bearing on whether Inpeco has sufficient contacts with the State of New Jersey to permit the Court’s exercise of personal jurisdiction and consequently has no relevance to Inpeco’s Motion (which as of the filing of this Reply has now been fully briefed). On December 22, 2016, Plaintiff’s counsel inexplicably sent a facsimile to Magistrate Judge Dickson (before whom Inpeco’s Motion is not pending) repeating its request to Case 2:15-cv-01573-JLL-JAD Document 71 Filed 12/27/16 Page 13 of 18 PageID: 1076 10 hold Inpeco’s Motion in abatement. Again, Plaintiff presented no legal grounds why such relief is warranted or necessary; again, it is not.5 To grant Plaintiff’s plea for discovery would condone a fishing expedition in violation of Inpeco’s due process rights. Discovery would still not change the “speculative and tenuous relationship between the claims, the parties, and [Inpeco]’s contacts with New Jersey” even if Plaintiff were “privy to discovery” on the items it requests (Response, p. 7). Oliver, 2015 WL 9304541, at *12 (denying request for jurisdictional discovery) (Linares, J.). Jurisdictional discovery would be a waste of both the parties’ and the Court’s time and resources. Plaintiff’s request should be denied. 5 In that correspondence, Plaintiff indicated that it might need the depositions of Inpeco representatives “depending on the outcome of Inpeco and Siemens UK’s Motions either by way of Notice or Third Party Subpoena from such entities.” Though Inpeco should not be required to participate in discovery at all because of the issues raised herein and others, any deposition of Inpeco would have to occur in Switzerland. See FED. R. CIV. P. 45(c)(1)(a); Exxon Mobile Corp. v. Saudi Basic Indus. Corp., 941 F. Supp. 2d 513, 519 (D.N.J. 2005) (“[T]here is a general presumption that the “deposition of a corporation by its agents and officers should ordinarily be taken at its principal place of business.”); Reliable Volkswagen Sales & Serv. Co. v. World-Wide Auto. Corp., 26 F.R.D 592 ,593-94 (D.N.J. 196) (holding that German residents, whose depositions were sought, were not required to come to New Jersey for purposes of being deposed in action against West German corporation and its wholly owned New Jersey subsidiary). Case 2:15-cv-01573-JLL-JAD Document 71 Filed 12/27/16 Page 14 of 18 PageID: 1077 11 C. Plaintiff’s Second Amended Complaint Against Inpeco Is Still Insufficiently Pled. Plaintiff fails to bolster its claims against Inpeco to meet the federal pleading standards. Inpeco cannot be deemed to have notice of Plaintiff’s claims against it. Plaintiff’s “Preliminary Statement” is illuminating in this respect. (Response, p. 1.) Plaintiff explains that “[t]he relief requested in the Second Amended is simple, to compel Siemens to accept a return of the StreamLab device . . . and to reimburse MHA for all amounts paid our pursuant to the Master Agreement relating to the StreamLab.” (Id.) Such relief has nothing to do with Inpeco, who is not Siemens and who was not a party to the Master Agreement. Fatal to Plaintiff’s Second Amended Complaint is Plaintiff’s failure to treat Siemens and Inpeco as separate entities. Plaintiff neglects to address the impropriety of its “group pleading” in its Response. (Compare Motion, § II.B.1, p. 12, § II.B.2, p. 14 with Response generally.) The Second Amended Complaint does not distinguish which claims are asserted against Inpeco and which are not, though required to do so. See Lee-Peckham v. Runa, LLC, No. 14-cv-6635, 2015 WL 150120, *3 (D.N.J. Jan. 12, 2015) (Linares, J.) (granting motion to dismiss and holding that there can be “no question that each count of a properly pled complaint must contain: (a) its own cause of action against a clearly identified defendant(s), and (b) how those particular factual allegations would allow the court to draw the reasonable inference that the defendant is liable for that cause of action.”). Though Plaintiff now claims that “this matter involves claims for Breach of Warranty, damage caused to the device in the transport of the device, resulting in the delivery of a defective device” (Response, p. 6), the Second Amended Complaint contains no allegations to this effect. Plaintiff does not allege, for example, when the device was delivered, how it was delivered, or what the condition of the device was at the time of the delivery-other than that it was “fully Case 2:15-cv-01573-JLL-JAD Document 71 Filed 12/27/16 Page 15 of 18 PageID: 1078 12 functioning.” (Second Amended Complaint, ¶ 33.) Plaintiff claims that it does not have to plead any facts (Response, p. 3), but Plaintiff must plead more than “[t]hreadbare recitals of the elements of a cause of action,” more than conclusory legal allegations, and more than allegations that do not rise about the “speculative level.” Ashcroft v. Iqbal, 556 U.S. 662, 663, 678-679 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Abulkhair v. President of U.S., No. 120-cv-2476, 2012 WL 3743338, *2 (3d Cir. Aug. 20, 2012). Plaintiff fails to do so. Plaintiff likewise offers no explanation as to how it can sustain a claim against Inpeco for a warranty “created by Siemens’ agreement with Meadowlands together with the implied warranties” (Second Amended Complaint, ¶ 65) where there is no allegation that Inpeco was a party to that agreement. (Compare Motion, § II.B.2, p. 14 with Response, p. 6.) To the extent Plaintiff seeks to premise a warranty claim based on some agreement between Inpeco and Siemens, let alone one to which Plaintiff was some sort of third party-beneficiary, such facts are missing in the Second Amended Complaint. This lack of particularity in Plaintiff’s Second Amended Complaint is the precise reason dismissal with prejudice is warranted under Federal Rule of Civil Procedure 12(b)(6). III. CONCLUSION WHEREFORE, for all of the foregoing reasons, Defendant Inpeco S.A. respectfully requests that the Court grant its Motion and enter an order dismissing the Second Amended Complaint against Inpeco S.A. with prejudice for lack of personal jurisdiction without allowing discovery and for failure to state a claim, and granting any such other relief as it deems just and necessary. Case 2:15-cv-01573-JLL-JAD Document 71 Filed 12/27/16 Page 16 of 18 PageID: 1079 13 DATED: December 27, 2016 /s/ Megan Pierson BRYAN CAVE LLP Megan Pierson 1290 Avenue of the Americas New York, NY 10104 Tel: (212) 541-2000 Fax: (212) 541-4630 Megan.Pierson@bryancave.com Attorneys for Defendant Inpeco S.A. /s/ Maria Z. Vathis (admitted pro hac vice) BRYAN CAVE LLP Maria Z. Vathis 161 N. Clark Street, Suite 4300 Chicago, IL 60601 Tel: (312) 602-5000 Fax: (312) 602-5050 Maria.Vathis@bryancave.com Attorneys for Defendant Inpeco S.A. Case 2:15-cv-01573-JLL-JAD Document 71 Filed 12/27/16 Page 17 of 18 PageID: 1080 14 CERTIFICATE OF SERVICE The undersigned counsel certifies that on December 27, 2016, a true and correct copy of the foregoing was served via the Court’s electronic filing system to all counsel of record. /s/ Megan Awerdick Pierson BRYAN CAVE LLP Megan Awerdick Pierson 1290 Avenue of the Americas New York, NY 10104 Tel: (212) 541-2000 Fax: (212) 541-4630 Megan.Pierson@bryancave.com ATTORNEYS FOR DEFENDANT INPECO S.A. Case 2:15-cv-01573-JLL-JAD Document 71 Filed 12/27/16 Page 18 of 18 PageID: 1081