Sz Dji Technology Co., Ltd. et al v. Autel Robotics USA Llc et al

REPLY BRIEF re MOTION to Dismiss for Lack of Jurisdiction Over the Person and for Insufficient Service of Process

D. Del.February 8, 2017

01:21530621.1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE SZ DJI TECHNOLOGY CO., LTD. AND DJI EUROPE B.V., Plaintiffs, v. AUTEL ROBOTICS USA LLC, AUTEL AERIAL TECHNOLOGY CO., LTD., and AUTEL INTELLIGENT TECHNOLOGY CO., LTD., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) C. A. No. 16-706-LPS-CJB REPLY BRIEF IN SUPPORT OF DEFENDANTS AUTEL AERIAL TECHNOLOGY CO., LTD. AND AUTEL INTELLIGENT TECHNOLOGY CO., LTD’S MOTION TO DISMISS PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE 12(b)(2) AND 12(b)(5) Of Counsel: STEPTOE & JOHNSON LLP Timothy C. Bickham John Caracappa 1330 Connecticut Avenue, NW Washington DC 20036 (202) 429-3000 tbickham@steptoe.com jcaracap@steptoe.com Dated: February 8, 2017 YOUNG CONAWAY STARGATT & TAYLOR, LLP Anne Shea Gaza (No. 4093) Robert M. Vrana (No. 5666) Rodney Square 1000 North King Street Wilmington, DE 19801 (302) 571-6600 agaza@ycst.com rvrana@ycst.com Attorneys for Defendants Autel Robotics USA LLC, Autel Aerial Technology Co., Ltd., and Autel Intelligent Technology Co., Ltd. Case 1:16-cv-00706-LPS-CJB Document 46 Filed 02/08/17 Page 1 of 17 PageID #: 534 i 01:21530621.1 TABLE OF CONTENTS TABLE OF AUTHORITIES .......................................................................................................... ii I. INTRODUCTION ................................................................................................................... 1 II. ARGUMENT........................................................................................................................... 1 A. There is No Personal Jurisdiction Over ITC ................................................................... 1 1. There is No Personal Jurisdiction Over ITC Under the Dual Jurisdiction Theory ......................................................................................... 1 2. There is No Evidence that ATC or Robotics USA Are Agents on Behalf of ITC ......................................................................................... 4 3. Exercising Jurisdiction Over ITC Violates the Requirements of Due Process ........................................................................................................ 5 4. Previous Cases ........................................................................................................ 6 B. Jurisdictional Discovery is Not Appropriate .................................................................. 7 C. Service of Process .......................................................................................................... 7 1. Service Upon a Receptionist Was Not Sufficient to Serve ITC and ATC ............. 8 2. By Serving Autel US, Plaintiffs Served an Incorrect Entity and Thus Did Not Sufficiently Serve ITC or ATC ................................................................ 9 III. CONCLUSION ..................................................................................................................... 10 Case 1:16-cv-00706-LPS-CJB Document 46 Filed 02/08/17 Page 2 of 17 PageID #: 535 - ii - 01:21530621.1 TABLE OF AUTHORITIES Cases Adtile Techs. Inc. v. Perion Network Ltd., 192 F. Supp. 3d 515 (D. Del. 2016) ........................................................................................ 4, 5 AICPA v. Affinity Card, Inc., 8 F. Supp. 2d 372 (S.D.N.Y. 1998) ......................................................................................... 8, 9 Amnay v. Del Labs., 117 F. Supp. 2d 283 (E.D.N.Y. 2000) ........................................................................................ 8 Applied Biosystems Inc. v. Cruachem, Ltd., 772 F. Supp. 1458 (D. Del. 1991) ........................................................................................... 4, 5 Asahi Metal. Ind. Co. v. Superior Court of Cal., 480 U.S. 102 (1987) .................................................................................................................... 5 Belden Techs., Inc. v. LS Corp., 829 F. Supp. 2d 260 (D. Del. 2010) ............................................................................................ 1 C.R. Bard, Inc. v. Guidant Corp., 997 F. Supp. 556 (D. Del. 1998) ............................................................................................. 4, 5 Colbert v. Int’l Sec. Bureau Inc., 79 A.D.2d 448 (N.Y. App. Div. 1981) ....................................................................................... 8 Darden v. DaimlerChrysler N. Am. Holding Corp., 191 F. Supp. 2d 382 (S.D.N.Y. 2002) ....................................................................................... 10 In re Ameriserve Food Distribution, Inc., 267 B.R. 668 (D. Del. 2001). ...................................................................................................... 7 Intel Corp. v. Broadcom Corp, 167 F. Supp. 2d 692 (D. Del. 2001) ............................................................................................ 7 Mass. Sch. of Law at Andover v. Am. Bar Ass’n, 107 F.3d 1026 (3d Cir. 1997)...................................................................................................... 7 McKibben v. Credit Lyonnais, No. 98 Civ. 3358, 1999 WL 604883 (S.D.N.Y. Aug. 10, 1999) ................................................ 8 Mugno v. SITA, No. 05-cv-2037, 2007 WL 316573 (E.D.N.Y. Jan. 30, 2007) .................................................... 9 Pope v. Rice, No. 04 Civ. 4171, 2005 WL 613085 (S.D.N.Y. Mar. 2005) ...................................................... 8 Case 1:16-cv-00706-LPS-CJB Document 46 Filed 02/08/17 Page 3 of 17 PageID #: 536 - iii - 01:21530621.1 Rinzler v. Jafco Assocs., 21 A.D.3d 360 (N.Y. App. 2005) ............................................................................................... 9 Service Solutions US v. Autel U.S. Inc., Civ. No. 4:13-10534, 2013 WL 5701063 (E.D. Mich. Oct. 18, 2013) ............................. 6, 9, 10 World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980) .................................................................................................................... 5 Statutes N.Y.C.P.L.R. § 311 ......................................................................................................................... 8 Rules Federal Rule of Civil Procedure 4(h) .............................................................................................. 8 Case 1:16-cv-00706-LPS-CJB Document 46 Filed 02/08/17 Page 4 of 17 PageID #: 537 - 1 - 01:21530621.1 I. INTRODUCTION Defendant Autel Intelligent Technology Co., Ltd. (“ITC”) does not design, manufacture, import or sell the accused products. For at least this reason, ITC moved to dismiss this case for lack of personal jurisdiction. ITC also was not properly served. Defendant Autel Aerial Technology Co., Ltd. (“ATC”) 1 no longer contests personal jurisdiction because ATC is the Autel entity that designs and manufactures the accused products. However, like ITC, ATC was also not properly served. For at least these reasons, moving Defendants respectfully submit that their motion to dismiss should be granted. II. ARGUMENT A. There is No Personal Jurisdiction Over ITC Plaintiffs argue that the Court has jurisdiction over ITC based on both the dual jurisdiction theory and the theory of agency. 1. There is No Personal Jurisdiction Over ITC Under the Dual Jurisdiction Theory Under the dual jurisdiction theory, personal jurisdiction exists where (1) the defendant has an intent to serve the Delaware market; (2) this intent results in the introduction of the accused products into Delaware; and (3) Plaintiff’s cause of action arises from injuries caused by the sale of the accused products in Delaware. Belden Techs., Inc. v. LS Corp., 829 F. Supp. 2d 260, 267 (D. Del. 2010). ITC does not design, manufacture, import, or sell any of the accused products. Zou Reply Decl., ¶ 12. 2 Instead, ITC produces automotive diagnostic tools. Zou Reply Decl., ¶ 6. These facts are confirmed by Plaintiffs’ own exhibits. For example, Wu Decl., D.I. 31, Ex. L-T states 1 Autel Aerial Technology Co., Ltd. is the former name of Autel Robotics Co., Ltd., a Chinese corporation for which all information, other than the name, remains the same. Bai Reply Decl., ¶ 14. For continuity and clarity, the entity will continue to be referred to as “ATC” for the remainder of this brief, with “Robotics USA” referring to Autel Robotics USA LLC. 2 The Zou, Zhang, Hung, and Bai Reply Declarations referenced herein are filed contemporaneously herewith. Case 1:16-cv-00706-LPS-CJB Document 46 Filed 02/08/17 Page 5 of 17 PageID #: 538 - 2 - 01:21530621.1 that ITC’s release of the DS708, “the new generation of portable intelligent automotive diagnostic system”, “allows Autel ITC to be officially ranked among the world’s top automotive diagnostic testing system suppliers”. It is ITC’s subsidiary, ATC, that manufactures the accused unmanned aerial vehicles (“UAVs” or “accused products”). Bai Reply Decl., ¶ 8. ATC’s subsidiary, Autel Robotics USA (“Robotics USA”), then sells and distributes these UAVs throughout the United States. Bai Reply Decl., ¶ 12; Zhang Reply Decl., ¶ 12. Plaintiffs’ own documents confirm these facts as well. For example, Wu Decl., D.I. 31, Exs. A and B, and the Pazuniak Decl., each include pictures in which it can be clearly seen that the accused products are labeled Robotics USA, not ITC. D.I. 31, 33, ¶¶ 3-4. Wang D.I. 34, Ex. A-T states that ITC established ATC as a subsidiary, and that it is ATC, not ITC, that “is dedicated to the industry of unmanned aerial vehicles, and strives to become one of the world leaders in the development and production of unmanned aerial vehicle control systems and solutions using unmanned aerial vehicles.” Id., at 8 (emphasis added). Wu Decl., D.I. 31, Ex. A-T states that ATC, not ITC, participated in the “AUVSI XPOENTIAL 2016” and that “Autel ATC is hastily fabricating their products in order to satisfy the customer demand both at home and abroad.” Wu Decl., D.I. 31, Ex. B-T discusses ATC’s attendance at the Las Vegas Tradeshow, and states that “[p]reviously, Autel ATC had attended many trade shows in the United States”. Wu Decl., D.I. 31,Ex. F-T establishes ATC as the company “dedicated to providing intelligent flight control products…[and striving] to become the global leading developer and manufacturer of UAV control system solutions to the drones.” Wu Decl., D.I. 31, Ex. G-T states that “[a]fter research and development, the Autel ATC drones have ranked top regarding the technical level of some modules.” Accordingly, all of the Case 1:16-cv-00706-LPS-CJB Document 46 Filed 02/08/17 Page 6 of 17 PageID #: 539 - 3 - 01:21530621.1 evidence confirms that ATC, and not ITC, is the entity involved with the design and development of the accused products and the proper defendant along with Robotics USA. Plaintiffs disagree, and cite to various other articles that they claim quote Mr. Li, the CEO of ITC, as stating that ITC designs, manufactures and sells the accused product in the United States. But these are not accurate representations of the press releases. For example, Plaintiffs cite to a press release where Mr. Li “announced that Autel ATC and Autel ITC are one of the only three Chinese companies that work with Best Buy in selling UAV products in the United States.” D.I. 31, at 9. This is not accurate. The press release actually states that Mr. Li “introduced the research and development, production, and sales conditions of drones produced by Autel Aerial Technology Co., Ltd., a subsidiary of Autel Intelligent Technology Corp., Ltd.” Wu Decl., D.I. 31, Ex. C-T. Mr. Li, in addition to being the CEO of ITC, also sits on the board of directors of Robotics USA. Zhang Reply Decl., ¶¶ 18-19. As such, Mr. Li can, and sometimes does, speak for both entities. Zou Reply Decl., ¶ 17; Zhang Reply Decl., ¶ 20. It is unsurprising that Mr. Li would at times fail to note the legal distinction between ITC, ATC, or Robotics USA when speaking about these various entities. Referring to these entities separately and pointing out that one does business solely in China, and one solely exists in the United States, would be unnecessary and nonsensical, especially when talking to reporters in either of the countries. ITC does not design, manufacture, import and/or sell the accused products and therefore does not have an intent to serve the Delaware market with the accused products. For at least this reason, there is no basis for asserting jurisdiction over ITC in Delaware based on the theory of dual jurisdiction. Case 1:16-cv-00706-LPS-CJB Document 46 Filed 02/08/17 Page 7 of 17 PageID #: 540 - 4 - 01:21530621.1 2. There is No Evidence that ATC or Robotics USA Are Agents on Behalf of ITC Plaintiffs argue that ITC, ATC, and Robotics USA are a single entity and that the actions of each entity should be imputed to the other entities, or alternatively, that ATC and Robotics USA are agents of ITC. Other than unsupported attorney argument, Plaintiffs cite no facts that would give rise to jurisdiction over ITC based on an alter ego or agency theory.3 To hold a parent company responsible for the actions of its subsidiary, the Plaintiffs must convince the Court to pierce the corporate veil, as “mere ownership of a subsidiary does not subject the parent corporation to personal jurisdiction in the state of the subsidiary.” Adtile Techs. Inc. v. Perion Network Ltd., 192 F. Supp. 3d 515, 522 (D. Del. 2016). To pierce the veil, the “Third Circuit test is composed of two parts: the alter ego test and the agency test.” Id. In applying the alter ego theory, “a court may attribute the actions of a subsidiary to its parent and ignore corporate boundaries if the court finds that the subsidiary is a mere ‘alter ego’ of the parent”, but to reach a parent corporation under this theory, the “party asserting jurisdiction must establish some fraud, injustice, or inequity in the use of the corporate form.” C.R. Bard, Inc. v. Guidant Corp., 997 F. Supp. 556, 559 (D. Del. 1998). Moreover, in applying the agency theory, a subsidiary’s actions are only imputed to the parent company if “the subsidiary acts on the parent’s behalf or at the parent’s direction.” Id. at 560. To determine whether an agency relationship exists, factors including overlap of officers and directors and division of responsibility for day-to-day management must be analyzed. Applied Biosystems Inc. v. Cruachem, Ltd., 772 F. Supp. 1458, 1463 (D. Del. 1991). “No one 3 Plaintiffs cite to a purported change in website ownership for www.autelrobotics.com. However, rather than a change in ownership, it was purely a change in registration information. The website is operated by Autel Robotics USA LLC. Zhang Reply Decl., ¶¶ 23-24. This mistake was rectified upon notice of the error, which occurred with the filing of the Complaint. Case 1:16-cv-00706-LPS-CJB Document 46 Filed 02/08/17 Page 8 of 17 PageID #: 541 - 5 - 01:21530621.1 factor is either necessary or determinative; rather it is the specific combination of elements which is significant.” Id. Here, the day-to-day management of each company is handled by each company separately. Zou Reply Decl., ¶ 14; Zhang Reply Decl., ¶ 10. In addition, each company has a separate and distinct board of directors. Bai Reply Decl., ¶¶ 18-19; Zhang Reply Decl., ¶¶ 18-19, 21-22.4 Robotics USA is a wholly-owned distributor for the UAVs manufactured by ATC, and makes its own decisions about day-to-day activities. Zhang Reply Decl., ¶¶ 8, 10, 12. For at least these reasons, the Court should find that Robotics USA is not acting as an agent of ATC or ITC. See, e.g., C.R. Bard, 997 F. Supp. at 556 (stating that because “ACS makes its own decisions about day-to-day activities… [and] designed, manufactured, marketed and distributed the catheters at issue…”, ACS was not acting as an agent of Guidant and the Court declined to impute the actions of ACS to Guidant under the agency theory). 3. Exercising Jurisdiction Over ITC Violates the Requirements of Due Process The exercise of jurisdiction comports with the defendant’s right to due process when the non-resident defendant has the requisite minimum contacts with the forum state, and when the assertion of personal jurisdiction over the defendant is fair and reasonable. Asahi Metal. Ind. Co. v. Superior Court of Cal., 480 U.S. 102, 105 (1987). The plaintiff must demonstrate that defendant “purposefully avail[ed] itself of the privilege of conducting activities within the forum state,” which could lead to defendant being able to “reasonably anticipate being haled into court there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980). 4 While there is one common director between Robotics and ITC, and one common director between Robotics and ATC, this is insufficient to pierce the corporate veil. See. e.g., Adtile, 192 F. Supp. 3d at 522. Case 1:16-cv-00706-LPS-CJB Document 46 Filed 02/08/17 Page 9 of 17 PageID #: 542 - 6 - 01:21530621.1 Plaintiffs’ Opposition sets forth no assertions that ITC does anything that subjects it to personal jurisdiction that would comport with due process. The only references to ITC are unspecified accusations that attempt to conflate the conduct of ATC and/or Robotics USA with that of ITC.5 As set forth above, conduct of ATC and Robotics USA cannot be imputed to ITC. As such, ITC does not have sufficient minimum contacts to confer jurisdiction as it does not design, manufacture, import, or sell the accused products, transact any business, or execute any contracts in the forum state. D.I. 25, ¶¶ 17-23; Zou Reply Decl., ¶ 13. Thus, Plaintiffs in this case have not demonstrated that ITC purposefully availed itself of the privilege of conducting activities within the forum state, and therefore any exercise of jurisdiction over ITC in Delaware would violate ITC’s right to due process. 4. Previous Cases Finally, Plaintiffs contend that ITC’s appearance in other lawsuits in the United States somehow subjects ITC to jurisdiction in Delaware. However, all three cases cited by Plaintiffs took place in the Eastern District of Michigan, and were related to tire pressure monitoring system components, entirely different products than those accused of infringement here. Zou Reply Decl., ¶¶ 19-21; Hung Decl., ¶¶ 16-18. In each case, the Eastern District of Michigan found that ITC had directed activities toward Michigan in that ITC’s website allowed users to download updates for the tire pressure monitoring system components, and it was that action that led the courts in those cases to determine that jurisdiction was appropriate. See, e.g., Service 5 D.I. 31, at 3 (“Autel ITC and Autel ATC specifically design, manufacture, and market the X- star products to the U.S. market.”); D.I. 31, at 10 (“Autel ATC and Autel ITC have also shown an intent to serve the U.S. market, including Delaware, because they appear to have registered and operated the domain www.autelrobotics.com, from which the X-Star products are advertised and available for sale to U.S. customers.”); D.I. 31, at 15 (“The X-Star products are shipped with user guides and instruction manuals created by Autel ITC or Autel ATC”); D.I. 31, at 16 (“Autel ATC and Autel ITC have already established several distribution channels into, and within Delaware”). Case 1:16-cv-00706-LPS-CJB Document 46 Filed 02/08/17 Page 10 of 17 PageID #: 543 - 7 - 01:21530621.1 Solutions US v. Autel U.S. Inc., Civ. No. 4:13-10534, 2013 WL 5701063 (E.D. Mich. Oct. 18, 2013). There are no such facts here. As discussed above, Robotics USA performs this function, not ITC. B. Jurisdictional Discovery is Not Appropriate Plaintiffs have not established a prima facie case for jurisdictional discovery. When personal jurisdiction is challenged by a non-resident defendant, “the plaintiff has the burden to show the basis for the court’s jurisdiction over that defendant” and can do so through sworn affidavits or other competent evidence. Intel Corp. v. Broadcom Corp, 167 F. Supp. 2d 692, 699 (D. Del. 2001). Plaintiffs’ meager support for their position consists of conclusory statements attempting to attribute acts by ATC or Robotics USA to ITC and a collection of web page printouts. In re Ameriserve Food Distribution, Inc., 267 B.R. 668, 672 (D. Del. 2001) (i.e., a “compilation of hearsay”). Unsupported allegations that a defendant ‘transacts business’ in the forum are insufficient to justify a claim for jurisdictional discovery, Mass. Sch. of Law at Andover v. Am. Bar Ass’n, 107 F.3d 1026, 1042 (3d Cir. 1997). Because Plaintiffs have done nothing more than put forth allegations supported by incompetent evidence that ITC transacts business in Delaware, unambiguously refuted through sworn affidavits submitted by ITC, see D.I. 25, Plaintiffs’ request for jurisdictional discovery should be denied. C. Service of Process Neither ATC nor ITC were properly served.6 6 In an effort to remedy Plaintiffs’ deficient service and obviate the necessity of this Reply, Defendants offered Plaintiffs a proposal by which Defendants would have accepted service on ATC in return for Plaintiffs’ voluntary dismissal of ITC, without prejudice, so that ITC could be rejoined to the litigation if deemed a necessary party. Plaintiffs declined, requesting ITC’s availability for both Rule 30(b)(6) depositions and, if necessary, indemnification of ATC and Robotics. Defendants resubmitted the proposal with Plaintiffs’ requested changes, but Plaintiffs denied the proposal with no explanation. Case 1:16-cv-00706-LPS-CJB Document 46 Filed 02/08/17 Page 11 of 17 PageID #: 544 - 8 - 01:21530621.1 1. Service Upon a Receptionist Was Not Sufficient to Serve ITC and ATC Federal Rule of Civil Procedure 4(h) allows service under the law of the forum where service was attempted. Under N.Y.C.P.L.R. § 311, service on a corporation can be effected by delivery to “an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent by appointment or by law to receive service.” Plaintiffs did not serve any of these designated officials; instead, they served a receptionist of an independent company that conducts no business related to the accused products. D.I. 32, ¶ 10; Hung Decl., ¶ 14. The “burden is on the plaintiff to show a basis for an inference that the defendant has authorized a particular person to accept service of process on its behalf”, AICPA v. Affinity Card, Inc., 8 F. Supp. 2d 372, 376 (S.D.N.Y. 1998), and New York courts have been reluctant to find that service on a receptionist is sufficient for providing notice to a corporation. See Amnay v. Del Labs., 117 F. Supp. 2d 283 (E.D.N.Y. 2000) (stating that “New York State courts have held that a receptionist is generally not authorized by a corporation to receive service”); Pope v. Rice, No. 04 Civ. 4171, 2005 WL 613085 (S.D.N.Y. Mar. 2005) (stating that service on a receptionist does not meet the requirements of §311); Colbert v. Int’l Sec. Bureau Inc., 79 A.D.2d 448 (N.Y. App. Div. 1981) (stating that a receptionist is not a ‘managing agent’ within the meaning of N.Y.C.P.L.R. §311). Here, Ms. Cipoletti is the receptionist for Autel US, a company that conducts no business relating to the accused products. D.I. 24, ¶ 3; Hung Reply Decl., ¶ 14. Ms. Cipoletti is not authorized to accept service on behalf of ATC or ITC. D.I. 24, ¶ 6; Bai Reply Decl., ¶ 23; Zou Reply Decl., ¶ 23. Just as the court found that service on “an individual without authority to accept service for a corporation…was inadequate under both New York’s and the Federal Rules of Civil Procedure” in McKibben v. Credit Lyonnais, No. 98 Civ. 3358, 1999 WL 604883 at *3 Case 1:16-cv-00706-LPS-CJB Document 46 Filed 02/08/17 Page 12 of 17 PageID #: 545 - 9 - 01:21530621.1 (S.D.N.Y. Aug. 10, 1999), the service in this case should be deemed inadequate under both FRCP 4(h) and N.Y.C.P.L.R. § 311. 2. By Serving Autel US, Plaintiffs Served an Incorrect Entity and Thus Did Not Sufficiently Serve ITC or ATC Not only did Plaintiffs improperly serve the receptionist, they served the receptionist at the wrong company. Autel US does not design, manufacture, import, or sell the accused products and is not a party to this litigation. Hung Reply Decl., ¶ 14; Complaint ¶¶ 1-5. There is a presumption of independence given to corporate entities and, absent evidence of intermingling of corporate activities or pervasive control of one entity by the other leading to fraudulent results, the Court must treat the defendants as separate entities. AICPA, 8 F. Supp. 2d at 377-78. Put another way, “service on one is not the same as service on the other.” Mugno v. SITA, No. 05-cv- 2037, 2007 WL 316573 at *14 (E.D.N.Y. Jan. 30, 2007). ATC and ITC are independent entities with separate records, tax returns, and businesses from Autel US. Bai Reply Decl., ¶ 10; Hung Reply Decl., ¶¶ 8-11. While ITC is the parent company of Autel US, Plaintiffs have not put forth any evidence of intermingling of corporate activities or pervasive control of Autel US with fraudulent results. As such, the Court must treat ITC, ATC, and Autel US as separate entities. Service on Autel US is therefore not sufficient to confer service on ITC or ATC. See Rinzler v. Jafco Assocs., 21 A.D.3d 360, 362 (N.Y. App. 2005) (holding that entities with the same address and shared shareholders and officers must be served separately); AICPA, 8 F. Supp. 2d at 377 (holding that service on one entity does not confer service on another despite corporations’ sharing of employees, and address). Plaintiffs cite Service Solutions to support their argument that ITC and ATC were properly served by serving the receptionist at Autel US. D.I. 31, at 18. However, Plaintiffs omit that the process server in Service Solutions asked for, and was directed to, a person authorized to Case 1:16-cv-00706-LPS-CJB Document 46 Filed 02/08/17 Page 13 of 17 PageID #: 546 - 10 - 01:21530621.1 accept service. Service Solutions, at *8. Unlike the circumstances found in Service Solutions, Mr. Zyats, without making any inquiries as to who to serve, D.I. 32, ¶¶ 8-10, merely handed the Summons to the receptionist who, as stated supra, is not someone through whom a corporation, much less ATC, could be served in those circumstances. Here, ATC and ITC are foreign entities, and therefore must be served under the Hague Convention, which preempts contrary state law and requires that Plaintiffs serve both the New York Department of State and the foreign corporation at its foreign offices. Darden v. DaimlerChrysler N. Am. Holding Corp., 191 F. Supp. 2d 382, 387 (S.D.N.Y. 2002). As ITC and ATC were not served in accordance with the Hague Convention, service was insufficient. III. CONCLUSION As ITC does not design, manufacture, import, or sell the accused products, ITC cannot intend to serve the Delaware market with the accused products as required under the dual jurisdiction theory, thus rendering Plaintiffs’ dual jurisdiction theory unsupportable. There is also no proof that ATC or Robotics USA are acting on behalf or at the direction of ITC, thus rendering Plaintiffs’ agency argument unsupportable. Jurisdiction over ITC would violate due process. For these reasons, there is no personal jurisdiction over ITC in this case. Plaintiffs also have not met their burden to show that jurisdictional discovery is appropriate because conclusory statements as to ITC’s transacting of business in the forum supported only by hearsay are an insufficient basis for a claim of jurisdictional discovery. As to service, Plaintiffs have put forth no evidence to show that Ms. Cipoletti, as a receptionist at an independent corporation, was authorized to receive service on behalf of ITC or ATC. Plaintiffs also have not shown that Autel US is an agent of ITC or has any relation to ATC. Therefore, Plaintiffs’ service as to both ITC and ATC was deficient. Accordingly, Defendants respectfully submit the motion should be granted. Case 1:16-cv-00706-LPS-CJB Document 46 Filed 02/08/17 Page 14 of 17 PageID #: 547 - 11 - 01:21530621.1 Of Counsel: STEPTOE & JOHNSON LLP John Caracappa Timothy C. Bickham 1330 Connecticut Avenue, NW Washington DC 20036 (202) 429-3000 jcaracap@steptoe.com tbickham@steptoe.com Dated: February 8, 2017 YOUNG CONAWAY STARGATT & TAYLOR, LLP /s/ Anne Shea Gaza Anne Shea Gaza (No. 4093) Robert M. Vrana (No. 5666) Rodney Square 1000 North King Street Wilmington, DE 19801 (302) 571-6600 agaza@ycst.com rvrana@ycst.com Attorneys for Defendants Autel Robotics USA LLC, Autel Aerial Technology Co., Ltd., and Autel Intelligent Technology Co., Ltd. Case 1:16-cv-00706-LPS-CJB Document 46 Filed 02/08/17 Page 15 of 17 PageID #: 548 01:21439596.1 CERTIFICATE OF SERVICE I, Anne Shea Gaza, hereby certify that on February 8, 2017, I caused to be electronically filed a true and correct copy of the foregoing document with the Clerk of the Court using CM/ECF, which will send notification that such filing is available for viewing and downloading to the following counsel of record: George Pazuniak, Esquire O’Kelly & Ernst, LLC 901 N. Market Street, Suite 1000 Wilmington, DE 19801 GP@del-iplaw.com Attorneys for Plaintiffs I further certify that on February 8, 2017, I caused the foregoing document to be served via electronic mail upon the above-listed counsel and on the following: Sherry X. Wu, Esquire David M. Farnum, Esquire Anova Law Group, PLLC 21351 Gentry Drive, Suite 150 Sterling, VA 20166 sherry.wu@anovalaw.com david.farnum@anovalaw.com Jonathan M. James, Esquire Perkins Coie LLP 2901 North Central Avenue, Suite 2000 Phoenix, AZ 85012-2788 jjames@perkinscoie.com Attorneys for Plaintiffs Case 1:16-cv-00706-LPS-CJB Document 46 Filed 02/08/17 Page 16 of 17 PageID #: 549 2 01:21439596.1 Dated: February 8, 2017 YOUNG CONAWAY STARGATT & TAYLOR, LLP /s/ Anne Shea Gaza Anne Shea Gaza (No. 4093) Robert M. Vrana (No. 5666) Rodney Square 1000 N. King Street Wilmington, Delaware 19801 302-571-6600 agaza@ycst.com rvrana@ycst.com Attorneys for Defendants Case 1:16-cv-00706-LPS-CJB Document 46 Filed 02/08/17 Page 17 of 17 PageID #: 550