Smart Toys And Games, Inc. v. Magformers, Llc

MOTION to Dismiss for Lack of Jurisdiction

N.D. Cal.October 7, 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 DMWEST #14968238 v5 Case No. 16-cv-03735-CW DEFENDANT’S MOTION TO DISMISS B al la rd S pa hr L LP 20 29 C en tu ry P ar k Ea st , S ui te 8 00 Lo s A ng el es , C A 9 00 67 -2 90 9 Jason D. Boren (pro hac application forthcoming) borenj@ballardspahr.com Quinton J. Stephens (pro hac application forthcoming) stephensq@ballardspahr.com BALLARD SPAHR LLP One Utah Center, Suite 800 201 South Main Street Salt Lake City, Utah 84111-2221 Telephone: 801.531.3000 Facsimile: 801.531.3001 Alan S. Petlak (SBN 179362) petlaka@ballardspahr.com BALLARD SPAHR LLP 2029 Century Park East, Suite 800 Los Angeles, CA 90067-2909 Telephone: 424.204.4400 Facsimile: 424.204.4350 Attorneys for Defendant, MAGFORMERS, LLC UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SMART TOYS AND GAMES, INC., a Delaware corporation, Plaintiff, v. MAGFORMERS, LLC, a Michigan limited liability company, Defendant. Case No. 16-cv-03735-CW NOTICE OF MOTION AND DEFENDANT’S MOTION TO DISMISS Date: December 6, 2016 Time: 2:30 p.m. Ctrm: 2 Action Filed: July 1, 2016 Case 4:16-cv-03735-CW Document 30 Filed 10/07/16 Page 1 of 10 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 DMWEST #14968238 v5 ii Case No. 16-cv-03735-CW DEFENDANT’S MOTION TO DISMISS B al la rd S pa hr L LP 20 29 C en tu ry P ar k Ea st , S ui te 8 00 Lo s A ng el es , C A 9 00 67 -2 90 9 TO ALL PARTIES AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE THAT on December 6, 2016, at 2:30 p.m. in Courtroom 2, 4th Floor of the above-entitled Court, located at 1301 Clay Street, Suite 400S, Oakland, California, 94612, the Honorable Claudia Wilken presiding, Defendant Magformers, LLC (“Magformers”) will and hereby does move this Court for an order, pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure, dismissing the claims against it. This motion is made on the grounds that this Court lacks personal jurisdiction over Magformers. The motion is based on this Notice of Motion and Motion, the Memorandum of Points and Authorities, the Declaration of Chris Tidwell, all of the papers on file in this action, and such other and further evidence or argument that the Court may consider. DATED: October 7, 2016 Alan S. Petlak BALLARD SPAHR LLP /s/ Alan S. Petlak Alan S. Petlak Attorneys for Defendant, MAGFORMERS, LLC Case 4:16-cv-03735-CW Document 30 Filed 10/07/16 Page 2 of 10 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 DMWEST #14968238 v5 1 Case No. 16-cv-03735-CW DEFENDANT’S MOTION TO DISMISS B al la rd S pa hr L LP 99 9 Pe ac ht re e St re et Su ite 1 00 0 A tla nt a, G A 3 03 09 -3 91 5 Te le ph on e: 6 78 .4 20 .9 30 0 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Magformers, the leader in magnetic children’s toys, is a Utah limited liability company with its headquarters in Michigan. Nearly all of Magformers’ employees work in Michigan and none of them work in California. Furthermore, Magformers’ products are manufactured in China and imported through Oregon ports. In short, Magformers has no substantial connection to California. Nevertheless, the Plaintiff has filed the Complaint in a California court, and alleges Magformers is subject to general jurisdiction in California. (Complaint, Doc. No. 1, ¶ 9.) Not so. Magformers is not at home in California and subjecting Magformers to suit in California would violate the United States Constitution and Magformers’ due process rights. Magformers has no physical presence in California, has engaged in no California-specific marketing, and has minimal ties to California.1 As a result, Magformers is not subject to a California court’s jurisdiction and this action must be dismissed. The Complaint does not allege this Court has specific jurisdiction over Magformers, but even if it did, such a claim would fail. The Complaint arises from a different company’s pursuit of a German legal action, Magformers’ communications with the organizers of a Colorado trade show, statements from Magformers’ website, and statements made in Magformers’ internal newsletters. Plaintiff’s claims did not arise from any California-related activity. Therefore, subjecting Magformers to California jurisdiction would offend traditional notions of fair play and substantial justice. See Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). As a result, Magformers’ motion to dismiss for lack of personal jurisdiction should be granted. II. STATEMENT OF RELEVANT FACTS2 Magformers is a Utah limited liability company. (Declaration of Chris Tidwell (“Tidwell Dec.”) ¶ 5.) Magformers’ principal place of business and headquarters are in Michigan. (Id. ¶ 1 Magformers acknowledges that, as a national/international product, its products are sold in California. That said, Magformers has no California specific marketing. 2 Solely for purposes of moving to dismiss the Complaint for lack of personal jurisdiction, Magformers accepts certain allegations of the Complaint as true. Magformers reserves the right to deny, dispute, disprove, or otherwise contest all allegations of the Complaint in subsequent proceedings. Case 4:16-cv-03735-CW Document 30 Filed 10/07/16 Page 3 of 10 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 DMWEST #14968238 v5 2 Case No. 16-cv-03735-CW DEFENDANT’S MOTION TO DISMISS B al la rd S pa hr L LP 20 29 C en tu ry P ar k Ea st , S ui te 8 00 Lo s A ng el es , C A 9 00 67 -2 90 9 6.) Magformers has fewer than 20 employees, all but one of whom work in its Michigan office. (Id. ¶ 7.) The lone remaining employee is based in Oregon. (Id. ¶ 8.) Magformers is one of the leading manufacturers of magnetic children’s toys. (Id. ¶ 9.) Magformers’ products are manufactured in China, and imported into the United States through ports in Oregon. (Id. ¶ 10.) Plaintiff is a direct competitor of Magformers and Magformers’ related entities. (Complaint, Doc. No. 1, ¶ 4.) It has now sued to target Magformers’ actions at certain trade shows—one in Colorado and another in Florida—and some of Magformers’ internal newsletters and marketing efforts. According to the Complaint, Gymworld Inc. obtained a preliminary injunction barring Plaintiff from displaying and/or selling certain toys at the 2016 Nuremberg Toy Fair. (Compl. ¶¶ 11–16.) This preliminary injunction was later lifted. (Compl. ¶ 24.) The Complaint does not claim Magformers did anything actionable or illegal at the 2016 Nuremberg Toy Fair. Rather, the Complaint alleges that Magformers improperly relied on the Nuremberg proceeding when one of Plaintiff’s products was removed from voting for an award at a Colorado trade show. (Compl. ¶¶27–38.) (And, in a single paragraph, that there was some activity at a Florida trade show. (Compl. ¶ 49.)) The Complaint next takes issue with some of Magformers’ newsletters. (Compl. ¶¶ 40– 43.) These newsletters were, with a single exception, exclusively distributed to Magformers’ employees. (Tidwell Dec. ¶ 14.) They were not distributed to customers, as alleged by Plaintiff. On the sole occasion where one newsletter was distributed outside of Magformers’ employees, it was provided to individuals associated with the ASTRA Trade Show, which was held in Denver, Colorado. (Tidwell Dec. ¶¶ 12, 15–16.) Finally, the Complaint challenges a statement on Magformers’ website that “GENUINE MAGFORMERS ARE THE ONLY MAGNETIC CONSTRUCTION SET OF ITS KIND TO MEET ALL U.S. AND INTERNATIONAL TOY SAFETY STANDARDS.” (Compl. ¶ 46.) Magformers’ website, like its newsletters, does not specifically target California. And the website and newsletters were created, approved, and distributed from Michigan. (Tidwell Dec. ¶ 18.) Case 4:16-cv-03735-CW Document 30 Filed 10/07/16 Page 4 of 10 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 DMWEST #14968238 v5 3 Case No. 16-cv-03735-CW DEFENDANT’S MOTION TO DISMISS B al la rd S pa hr L LP 20 29 C en tu ry P ar k Ea st , S ui te 8 00 Lo s A ng el es , C A 9 00 67 -2 90 9 III. ARGUMENT Where there is no applicable federal statute governing personal jurisdiction, the law of the state in which the district court sits applies. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004). California’s long-arm statute allows courts to exercise personal jurisdiction over defendants to the extent permitted by the Due Process Clause of the United States Constitution. See id; Cal. Code Civ. Proc. § 410.10. Accordingly, this Court may only exercise personal jurisdiction over Magformers if such jurisdiction meets the requirements of due process. See Brainerd v. Governors of the Univ. of Alberta, 873 F.2d 1257, 1258 (9th Cir. 1989). Plaintiff bears the burden of establishing jurisdiction. Schwarzenegger, 374 F.3d at 800. A. Magformers is Not Subject to General Jurisdiction in California In order to meet the requirements of due process, jurisdiction can only be exercised over parties that have certain minimum contacts with the forum state such that the suit does not offend the traditional notions of fair play and substantial justice. See Int’l Shoe, 326 U.S. at 316. Personal jurisdiction that satisfies this due process requirement can be based on either general or specific jurisdiction. See Gator.com Corp. v. L.L. Bean, Inc., 341 F.3d 1072, 1076 (9th Cir. 2000). A court has general personal jurisdiction over a defendant whose contacts with the forum are “so ‘continuous and systematic’ as to render them essentially at home in the forum state.” Daimler AG v. Bauman, ––– U.S. –––, 134 S. Ct. 746, 754 (2014) (citing Goodyear v. Dunlop Tires Operations, S.A. v. Brown, ––– U.S. –––, 131 S. Ct. 2846, 2851 (2011)). This occurs where the defendant’s contacts with the state are so substantial or continuous and systematic that the contacts approximate physical presence within the state. See Bancroft & Masters, Inc. v. Augusta Nat’l, Inc., 223 F.3d 1082, 1086 (9th Cir. 2000). In such a scenario, a party can be subject to personal jurisdiction even if the defendant’s contacts are unrelated to the dispute that forms the basis of the claim. See Heliocopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 415 n.9 (1984). For corporations, “[t]he paradigmatic locations where general jurisdiction is appropriate . . . are its place of incorporation and its principal place of business.” Ranza v. Nike, Inc., 793 F.3d 1059, 1069 (9th Cir.2015) (citing Daimler, 571 U.S. –––, 134 S. Ct. at 760). Case 4:16-cv-03735-CW Document 30 Filed 10/07/16 Page 5 of 10 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 DMWEST #14968238 v5 4 Case No. 16-cv-03735-CW DEFENDANT’S MOTION TO DISMISS B al la rd S pa hr L LP 20 29 C en tu ry P ar k Ea st , S ui te 8 00 Lo s A ng el es , C A 9 00 67 -2 90 9 “Only in an ‘exceptional case’ will general jurisdiction be available anywhere else.” Martinez v. Aero Caribbean, 764 F.3d 1062, 1070 (9th Cir.2014) (quoting Daimler, 571 U.S. –––, 134 S.Ct. 746 at 761 n. 19); see, e.g., Martinez v. Aero Caribbean, 764 F.3d 1062, 1070 (9th Cir. 2014), cert. denied, 135 S. Ct. 2310 (2015) (affirming district court's finding of no general jurisdiction over defendant who had contracts with California companies worth between $225 and $450 million, sent employees to California, and advertised in trade publications with distribution in California); Cubbage v. Merchent, 744 F.2d 665, 667–68 (9th Cir.1984) (holding no jurisdiction over doctors despite significant numbers of patients in forum, use of forum's state medical insurance system and telephone directory listing that reached forum); Congoleum Corp. v. DLW Aktiengesellschaft, 729 F.2d 1240, 1242–43 (9th Cir.1984) (holding no general jurisdiction despite solicitation of orders, promotion of products to potential customers through the mail and through showroom displays, and attendance at trade shows and sales meetings); Lindora, LLC v. Isagenix Int’l, LLC, ––– F. Supp. 3d –––, 2016 WL 4077712 (S.D. Cal. Aug. 1, 2016) (holding no general jurisdiction over a company primarily located in another state, which had no offices, salaried employees, or real property in the forum state, even though the forum state was a key market, the company employed more sales associates in that state than any other, and the company sold more products to purchasers in the forum state than any other); Cahen v. Toyota Motor Corp., 147 F. Supp. 3d 955, 964 (N.D. Cal. 2015) (concluding no general jurisdiction with respect to defendant car manufacturer who had 302 employees in California and over one hundred thousand cars registered in California in the past year). Magformers is incorporated in Utah and has a principal place of business in Michigan. Under Daimler, these are the “paradigmatic locations” for general jurisdiction, not California. See Daimler, 571 U.S. —, 134 S. Ct. at 760. Magformers most natural home is Michigan, where it is headquartered, where the overwhelming majority of its employees are located, where it prepares and distributes its marketing materials, and where its primary operations take place. Contrary to the allegations of the Complaint, Magformers does not have sufficiently continuous or systematic contacts with California to establish personal jurisdiction in a California court. Therefore, this action must be dismissed. Case 4:16-cv-03735-CW Document 30 Filed 10/07/16 Page 6 of 10 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 DMWEST #14968238 v5 5 Case No. 16-cv-03735-CW DEFENDANT’S MOTION TO DISMISS B al la rd S pa hr L LP 20 29 C en tu ry P ar k Ea st , S ui te 8 00 Lo s A ng el es , C A 9 00 67 -2 90 9 B. Magformers is Not Subject to Specific Jurisdiction in California Alternatively, personal jurisdiction can be specific, although the Complaint does not allege that a California Court has specific jurisdiction over Magformers. (See Compl. ¶ 9.) Even if it did, Magformers is not subject to specific jurisdiction in California. The Ninth Circuit employs a three prong test to evaluate whether specific personal jurisdiction is consistent with due process: (1) The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or a resident thereof; or perform some act by which he purposefully avails himself 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 relates to the defendant’s forum related activities; and (3) the exercise of jurisdiction must be reasonable. See Lake v. Lake, 817 F.2d 1416, 1421 (9th Cir. 1987). The plaintiff bears the burden on this test. If the plaintiff fails to satisfy either of the first two prongs, the motion to dismiss for lack of jurisdiction must be granted. See Schwarzenegger, 374 F.3d at 802. 1. Magformers Did Not Purposefully Direct Any Activities To California Magformers neither purposefully availed itself of the advantages of conducting activities in California, nor did it purposefully direct any activities towards California. Plaintiff’s action alleges tortious activity, or at least statutory violations that sound in tort. (See Compl. ¶¶ 52–95.) In cases involving allegedly tortious conduct, the Ninth Circuit employs a purposeful direction analysis. See CollegeSource, Inc. v. AcademyOne, Inc. 653 F.3d 1066, 1076–77 (9th Cir. 2011) (applying purposeful direction analysis to alleged tortious misappropriation of catalogs and course descriptions). Under this analysis, a plaintiff must establish that a defendant “purposefully direct[ed] his activities at the forum state, applying an effects test that focuses on the forum in which the defendant’s actions were felt.” Yahoo! Inc v. La Ligue Contre Le Racisme, 433 F.3d 1199, 1206 (9th Cir. 2006) (en banc) (citations and internal quotation marks omitted). The “effects” test requires that a defendant must have “(1) committed an intentional act, (2) expressly aimed at the forum state, (3) causing harm that the defendant knows is likely to be suffered in the forum state.” CollegeSource, 653 F.3d at 1077. Plaintiff fails both the second and third prongs of the effects test. The second prong of Case 4:16-cv-03735-CW Document 30 Filed 10/07/16 Page 7 of 10 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 DMWEST #14968238 v5 6 Case No. 16-cv-03735-CW DEFENDANT’S MOTION TO DISMISS B al la rd S pa hr L LP 20 29 C en tu ry P ar k Ea st , S ui te 8 00 Lo s A ng el es , C A 9 00 67 -2 90 9 the effects test, whether intentional acts were expressly aimed at the forum state, requires a review of “the defendant’s contacts with the forum State itself, not the defendant’s contacts with persons who reside there. . . . [T]he plaintiff cannot be the only link between the defendant and the forum.” Walden v. Fiore, 134 S. Ct. 1115, 1122 (2014); see also Picot v. Weston, 780 F.3d 1206, 1211–15 (9th Cir. 2015) (holding no personal jurisdiction in California where three business partners, two from California and one from Michigan, developed a new technology and the Michigan partner’s allegedly improper statements caused a sale to an Ohio company to fall through because the injury was “not tethered to California in any meaningful way” and “would follow [the plaintiff] wherever he might choose to live or travel”); Sec. Alarm Fin. Enters., L.P. v. Nebel, No. C 15-04341-SBA, 2016 U.S. Dist. LEXIS 32715, at *14-15 (N.D. Cal. March 10, 2016) (unpublished) (holding there was no jurisdiction because a professional boxer’s social media pages and posts were not directed at California and the email exchanges with the plaintiff were contacts with the plaintiff, not with the forum state). Walden involved gamblers from California and Nevada who sued a California police officer for confiscating $97,000 in gambling winnings. 134 S. Ct. at 1122. The Supreme Court held that a Nevada court had no personal jurisdiction over the officer because there was no meaningful connection to Nevada. Id. at 1122–25. The injury was not tethered to Nevada and the gamblers would have experienced the same injury regardless of where they lived. Id. at 1125. Likewise, here, there is no meaningful connection between Magformers’ activities and California. The trade show at issue took place in Colorado, and the challenged statements were made in newsletters and on a website that have no California-specific content, and were not directed towards California. For instance, the newsletters were solely distributed to Magformers employees, all of whom are located outside of California, and two individuals in Colorado. Plaintiff’s vague and unspecified alleged injuries are not tethered to California and would have been the same regardless of Plaintiff’s citizenship. Because Plaintiff provides “the only link” between Magformers and California, this Court lacks personal jurisdiction over Magformers. See Picot, 780 F.3d at 1214–15. Case 4:16-cv-03735-CW Document 30 Filed 10/07/16 Page 8 of 10 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 DMWEST #14968238 v5 7 Case No. 16-cv-03735-CW DEFENDANT’S MOTION TO DISMISS B al la rd S pa hr L LP 20 29 C en tu ry P ar k Ea st , S ui te 8 00 Lo s A ng el es , C A 9 00 67 -2 90 9 The third prong of the effects test asks whether the challenged acts caused harm “that the defendant [knew] is likely to be suffered in the forum state.” CollegeSource, 653 F.3d at 1077. Here, a plaintiff must establish that the “defendant’s intentional act has foreseeable effects in the forum.” Brayton Purcel LLP v. Recordon & Recordon, 606 F.3d 1124, 1131 (9th Cir. 2010) (internal quotation marks omitted). The Complaint contains no allegations that any of Magformers’ actions had any effect in California. For instance, Plaintiff does not allege any damages that occurred in California. Or any loss of California customers. This is somewhat surprising, as damages are essential elements of Plaintiff’s claim for relief. Nonetheless, even if Plaintiff could muster evidence that it suffered a harm in California, it cannot show that the alleged harm was foreseeable. Plaintiff cannot show that it was foreseeable that not winning an award at a Colorado trade show would cause an impact in California. And Plaintiff cannot show that it was foreseeable that any alleged harm suffered from statements on Magformers’ website and in newsletters would occur in California. 2. Plaintiff’s Claims Do Not Arise Out of Magformers’ Contacts with California Even if Plaintiff could establish that any of Magformers’ activities were directed towards California, Plaintiff’s claims did not arise out of those activities. A claim “arises out of” a defendant’s contacts with a jurisdiction if, “but for” those contacts, Plaintiff’s suit would not have arisen. See Farmers Ins. Exchange v. Portage La Prairie Mut. Ins. Co., 907 F.2d 911, 9143 (9th Cir. 1990). Plaintiff’s claims against Magformers would have arisen even if Magformers had absolutely no contacts with California. Plaintiff brings five claims for relief: Unfair Competition (Compl. ¶¶ 52–61.), Intentional Interference with Prospective Economic Relations (Compl. ¶¶ 62–75.); Trade Libel (Compl. ¶¶ 76–83.); Declaratory Relief of Non-Infringement – Trade Dress (Compl. ¶¶ 84–91.); and Declaratory Relief of Invalidity/Unenforceability – Trade Dress (Compl. ¶¶ 92–95.). None of the elements of these claims turn on any of Magformers’ possible contacts with California. Instead, they arise from Magformers’ actions at trade shows in Colorado and Florida, statements made to individuals in Colorado and Magformers’ employees, and a nationally-available website. Case 4:16-cv-03735-CW Document 30 Filed 10/07/16 Page 9 of 10 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 DMWEST #14968238 v5 8 Case No. 16-cv-03735-CW DEFENDANT’S MOTION TO DISMISS B al la rd S pa hr L LP 20 29 C en tu ry P ar k Ea st , S ui te 8 00 Lo s A ng el es , C A 9 00 67 -2 90 9 3. Exercising Jurisdiction Over Magformers in California Would Be Unreasonable Even if Plaintiff could establish the first two prongs of the specific jurisdiction analysis, it must still demonstrate that exercising personal jurisdiction over Magformers in California would be reasonable. To determine reasonableness, courts consider “(1) the extent of the defendants' purposeful interjection into the forum state's affairs; (2) the burden on the defendant of defending in the forum; (3) the extent of conflict with the sovereignty of the defendants' state; (4) the forum state's interest in adjudicating the dispute; (5) the most efficient judicial resolution of the controversy; (6) the importance of the forum to the plaintiff's interest in convenient and effective relief; and (7) the existence of an alternative forum.” Core-Vent Corp. v. Nobel Indus. AB, 11 F.3d 1482, 1487–88 (9th Cir. 1993). These factors weigh against exercising personal jurisdiction. Magformers did not purposefully interject itself into California’s affairs, and California has little interest in adjudicating this dispute. As noted, the challenged activities took place in Michigan or Colorado, and Magformers is a Utah LLC based almost exclusively in Michigan. It would also be burdensome to require Magformers to litigate in California, halfway across the country from its headquarters, where all but one of its 20 employees are located. California litigation is also less efficient, as the witnesses in this action are likely located in some combination of Colorado and Michigan (and, possibly, Florida). Moreover, a California forum is unnecessary, because Michigan courts provide an effective alternative forum for the dispute. IV. CONCLUSION For the foregoing reasons, Defendant Magformers requests this Court issue an order dismissing Plaintiff’s Complaint for lack of personal jurisdiction. DATED: October 7, 2016 Alan S. Petlak BALLARD SPAHR LLP /s/ Alan S. Petlak Alan S. Petlak Attorneys for Defendant, MAGFORMERS, LLC Case 4:16-cv-03735-CW Document 30 Filed 10/07/16 Page 10 of 10 1 2 3 4 5 6 7 8 9 Jason D. Boren (pro hac application forthcoming) bor_enj @ballardspahr .com Qumton J. Stephens (pro hac application forthcoming) stephens~ballardspahr .com BALLA SPAHR LLP One Utah Center, Suite 800 20 1 South Main Street Salt Lake City, Utah 84111-2221 Telephone: 801.531.3000 Facsimile: 801.531.3001 Alan S. Petlak (SBN 179362) petlaka~llardspahr.com BALLA SPAHR LLP 2029 Century Park East, Suite 800 Los Angeles, CA 90067-2909 Telephone: 424-204-4400 Facsimile: 424-204-4350 10 11 12 13 14 -Attorneys for Defendant Magformers, LLC 15 16 17 18 19 20 21 22 4 23 2 2 2 2 5 6 7 2 8 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SMART TOYS AND GAMES, INC., a Case No. 16-cv-03735-CW Delaware corporation, Plaintiff, DECLARATION OF CHRIS v. TIDWELL IN SUPPORT OF MAGFORMERS, LLC, a Michigan limited DEFENDANT'S MOTION TO liability company, DISMISS Defendant. 1 DMWEST #14983239 v3 , 0 D SMISS DECLARATION OF CHRIS TIDWELL IN SUPPORT OF DEFENDANTS MOTION T I -- Case 4:16-cv-03735-CW Document 30-1 Filed 10/07/16 Page 1 of 3 1 DECLARATION OF CHRIS TIDWELL 2 I, Chris Tidwell, declare as follows: 3 1. I have personal knowledge of the matters set forth herein and would 4 competently testify thereto if called upon. I am a United States Citizen, and am more 5 than eighteen years old. 6 2. I am the Chief Executive Officer (CEO) of Magformers, LLC 7 ("Magformers"). 8 9 3. 4. I submit this Declaration in support ofMagformers ' Motion to Dismiss. Magformers does not consent to this Court' s jurisdiction, but is instead 10 appearing specially and solely to seek dismissal of this case. 11 12 13 5. 6. 7. Magformers is a Utah limited liability company. Magformers' principal place of business and headquarters are in Michigan. Magformers has fewer than 20 employees, all but one of whom work in its 14 Michigan office. 15 16 17 toys. 8. 9. The lone remaining employee is based in Oregon. Magformers is one of the leading manufacturers of magnetic children's 18 10. Magformers ' products are manufactured in China, and imported into the 19 United States primarily through ports in Oregon. 20 11. Typically, once products are imported, Magformers brings them into a 21 third-party fulfillment center, which is located in Oregon, from which products are 22 shipped to retailers. 23 12. The ASTRA Trade Show was held in Denver, Colorado. 24 13. Magformers ' website does not specifically market towards or target 25 California. 26 14. The newsletters referred to in the Complaint were, with only a single 27 exception, solely distributed to Magformers employees. 28 15. The only time Magformers ' newsletter was distributed in any other way DMWEST #14983239 v3 2 DECLARATION OF CHRIS TIDWELL IN SUPPORT OF DEFENDANT' S MOTION TO DISMISS Case 4:16-cv-03735-CW Document 30-1 Filed 10/07/16 Page 2 of 3 1 was when it was shared with the ASTRA President, Kim Mosley, when Magformers had 2 a concern about ASTRA nominating a Smart Toy product for Toy of the Year. 3 16. On this occasion, the newsletter was also shared with Steven Aarons, the 4 owner ofBarstons Child's Play, a company located in Washington, D.C., Maryland, and 5 Virginia. Mr. Aarons is also involved with ASTRA. 6 17. In any event, none of Magformers' newsletters were specifically marketed 7 towards or targeted towards California. 8 18. Magformers' website and newsletters were created, approved, and 9 distributed from Michigan. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DATED this 7th day of October, DMWEST #14983239 v3 3 DECLARATION OF CHRIS TIDWELL IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS Case 4:16-cv-03735-CW Document 30-1 Filed 10/07/16 Page 3 of 3 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 DMWEST #14985429 v1 [PROPOSED] ORDER GRANTING DEFENDANT’S MOTION TO DISMISS UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SMART TOYS AND GAMES, INC., a Delaware corporation, Plaintiff, v. MAGFORMERS, LLC, a Michigan limited liability company, Defendant. Case No. 16-cv-03735-CW [PROPOSED] ORDER GRANTING DEFENDANT’S MOTION TO DISMISS Case 4:16-cv-03735-CW Document 30-2 Filed 10/07/16 Page 1 of 2 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 DMWEST #14985429 v1 2 [PROPOSED] ORDER GRANTING DEFENDANT’S MOTION TO DISMISS After consideration of the pleadings, briefs and oral argument, as well as all other matters presented to the Court, and good cause having been shown, the Court rules as follows: The Court finds that it lacks personal jurisdiction over Defendant Magformers, LLC. The Court therefore GRANTS Defendant Magformers, LLC’s Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(2). IT IS SO ORDERED. DATED: _________________________ __________________________________ Honorable Claudia Wilkin United States District Judge Case 4:16-cv-03735-CW Document 30-2 Filed 10/07/16 Page 2 of 2