Tv Ears, Inc. v. Syk Group, Llc et al

MOTION to Dismiss for Lack of Jurisdiction , MOTION to Dismiss for Failure to State a Claim

S.D. Cal.August 19, 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 NOTICE OF MOTION AND MOTION OF DEFENDANTS SYK GROUP, LLC AND SAM Y. KIM TO DISMISS CASE NO. 3:16-CV-0867 28494266v.1 SEYFARTH SHAW LLP Kenneth L. Wilton (SBN 126557) kwilton@seyfarth.com Joseph A. Escarez (SBN 266644) jescarez@seyfarth.com 2029 Century Park East, Suite 3500 Los Angeles, California 90067-3021 Telephone: (310) 277-7200 Facsimile: (310) 201-5219 Attorneys for Defendants SYK GROUP, LLC, LIBERTY HEALTH SUPPLY, LLC, TRUEDIO, LLC, and SAM Y. KIM UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA TV EARS, INC., Plaintiff, v. SYK GROUP, LLC, LIBERTY HEALTH SUPPLY, LLC, TRUEDIO LLC, and SAM Y. KIM, an individual, Defendant. Case No. 3:16-cv-0867-GPC-WVG NOTICE OF MOTION AND MOTION OF DEFENDANTS SYK GROUP, LLC AND SAM Y. KIM TO DISMISS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Date: October 28, 2016 Time: 1:30 p.m. Judge: Hon. Gonzalo P. Curiel Courtroom: 2D Action Filed: April 11, 2016 Case 3:16-cv-00867-GPC-WVG Document 15 Filed 08/19/16 Page 1 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 NOTICE OF MOTION AND MOTION OF DEFENDANTS SYK GROUP, LLC AND SAM Y. KIM TO DISMISS CASE NO. 3:16-CV-0867 28494266v.1 TO PLAINTIFF AND HER ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on October 28, 2016, or as soon thereafter as counsel may be heard in Courtroom 2D (Second Floor - Schwartz), of the above-entitled Court, located at Suite 2190, 221 West Broadway, San Diego, CA 92101, defendants SYK Group, LLC and Sam Y. Kim (“Nonresident Defendants”) will move and hereby do move this Court for an order dismissing Nonresident Defendants from this lawsuit under Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction. Alternatively, Nonresident Defendants move to dismiss the Complaint in its entirety for failure to state a claim under Rule 12(b)(6).1 This motion is made on the grounds that Nonresident Defendants have none of the minimum contacts necessary to allow the exercise of general or specific jurisdiction over them, and this Court’s exercise of personal jurisdiction over Nonresident Defendants would, therefore, offend traditional notions of fair play and substantial justice that the Due Process Clause seeks to protect. This Motion is made on the alternative grounds that the Complaint fails to allege any conduct by Nonresident Defendants to support any of the claims asserted against them, and the Complaint must be dismissed for this independent reason. // // // 1 By moving to dismiss pursuant to Rule 12(b)(6), Nonresident Defendants do not consent to personal jurisdiction in California and reserve all of their jurisdictional objections. Dynamis, Inc. v. Dynamis.com, 780 F. Supp. 2d 465, 471(E.D. Va. 2011) (“Federal Rules of Civil Procedure allow a party denying jurisdiction and service to bring a Rule 12(b)(6) challenge without waiving the jurisdictional objection.”); Fed. R. Civ. P. 12(b)(“No defense or objection is waived by joining it with one or more other defenses or objections in a responsive pleading or in a motion”). Case 3:16-cv-00867-GPC-WVG Document 15 Filed 08/19/16 Page 2 of 3 2 NOTICE OF MOTION AND MOTION OF DEFENDANTS SYK GROUP, LLC AND SAM Y. KIM TO DISMISS CASE NO. 3:16-CV-0867 28494266v.1 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 The Motion is based on this Notice of Motion and Motion, the accompanying Memorandum of Points and Authorities, the accompanying Declaration of Sam Y. Kim, all pleadings and papers on file in this action, and upon such evidence, argument, and authorities as may be presented to the Court prior to or at the time of the hearing. DATED: August 19, 2016 Respectfully submitted, SEYFARTH SHAW LLP By: /s/ Joseph A. Escarez Kenneth L. Wilton Joseph A. Escarez Attorneys for Defendants SYK GROUP, LLC, LIBERTY HEALTH SUPPLY, LLC, TRUEDIO, LLC, and SAM Y. KIM Case 3:16-cv-00867-GPC-WVG Document 15 Filed 08/19/16 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 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS CASE NO. 3:16-CV-0867 28440285v.2 SEYFARTH SHAW LLP Kenneth L. Wilton (SBN 126557) kwilton@seyfarth.com Joseph A. Escarez (SBN 266644) jescarez@seyfarth.com 2029 Century Park East, Suite 3500 Los Angeles, California 90067-3021 Telephone: (310) 277-7200 Facsimile: (310) 201-5219 Attorneys for Defendants SYK GROUP, LLC, LIBERTY HEALTH SUPPLY, LLC, TRUEDIO, LLC, and SAM Y. KIM UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA TV EARS, INC., Plaintiff, v. SYK GROUP, LLC, LIBERTY HEALTH SUPPLY, LLC, TRUEDIO LLC, and SAM Y. KIM, an individual, Defendant. Case No. 3:16-cv-0867-GPC-WVG MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION OF DEFENDANTS SYK GROUP, LLC AND SAM Y. KIM TO DISMISS Date: October 28 2016 Time: 1:30 p.m. Judge: Hon. Gonzalo P. Curiel Courtroom: 2D Action Filed: April 11, 2016 Case 3:16-cv-00867-GPC-WVG Document 15-1 Filed 08/19/16 Page 1 of 19 i MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS CASE NO. 3:16-CV-0867 28440285v.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 TABLE OF CONTENTS Page I. INTRODUCTION .....................................................................................................1 II. STATEMENT OF RELEVANT FACTS..................................................................1 A. The Parties .......................................................................................................1 B. Allegations Of The Complaint ........................................................................3 III. ARGUMENT.............................................................................................................4 A. This Court Lacks Personal Jurisdiction Over Nonresident Defendants..........4 1. Due Process Permits Jurisdiction Only If The Court Has Either General Or Specific Jurisdiction Over Nonresident Defendants..........4 2. The Court Cannot Exercise General Jurisdiction Over Nonresident Defendants........................................................................5 a. Nonresident Defendants Lack Sufficient Minimum Contacts with California to Support General Jurisdiction. ........5 b. TrueDio’s And Liberty Health’s Contacts Cannot Be Imputed To Nonresident Defendants..........................................6 3. The Court Cannot Exercise Specific Jurisdiction Over Nonresident Defendants........................................................................8 a. Nonresident Defendants Have Not Purposefully Directed Conduct To California. ...............................................................9 b. Plaintiff’s Claims Do Not Arise Out Of Or Relate To Nonresident Defendants’ California-Related Conduct.............10 c. The Exercise Of Personal Jurisdiction Over Nonresident Defendants Would Be Unreasonable........................................11 B. Plaintiff Fails To State Any Claim For Relief Against Nonresident Defendants.....................................................................................................12 IV. CONCLUSION........................................................................................................14 Case 3:16-cv-00867-GPC-WVG Document 15-1 Filed 08/19/16 Page 2 of 19 ii MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS CASE NO. 3:16-CV-0867 28440285v.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 TABLE OF AUTHORITIES Page(s) Federal Cases Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) .....................................12, 13 Bancroft & Masters, Inc. v. Augusta Nat’l Inc., 223 F.3d 1082 (9th Cir. 2000) .................................................................................. 5, 10 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) .....................................12, 13 Boschetto v. Hansing, 539 F.3d 1011 (9th Cir. 2008) ........................................................................................ 4 Brown v. Gen. Steel Domestic Sales, LLC, 2008 WL 2128057 (C.D. Cal. May 19, 2008)............................................................ 6, 7 Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985).................................................................................................. 9, 11 Calder v. Jones, 465 U.S. 783 (1984)........................................................................................................ 7 Calvert v. Huckins, 875 F. Supp. 674 (E.D. Cal. 1995) ................................................................................. 7 Core-Vent Corp. v. Nobel Industries, AB, 11 F.3d 1482 (9th Cir. 1993) ........................................................................................ 11 Daimler AG v. Bauman, 134 S. Ct. 746, 187 L. Ed. 2d 624 (2014).............................................................5, 6, 10 Data Disc, Inc. v. Sys. Tech. Assocs., 557 F.2d 1280 (9th Cir. 1977) ........................................................................................ 5 Doe v. Unocal Corp., 248 F.3d 915 (9th Cir. 2001) .......................................................................................... 7 Dynamis, Inc. v. Dynamis.com, 780 F. Supp. 2d 465 (E.D. Va. 2011) ........................................................................... 12 Case 3:16-cv-00867-GPC-WVG Document 15-1 Filed 08/19/16 Page 3 of 19 iii MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS CASE NO. 3:16-CV-0867 28440285v.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 Federal Deposit Ins. Corp. v. British-American Ins. Co., Ltd., 828 F.2d 1439 (9th Cir. 1987) ...................................................................................... 11 Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846 (2011).................................................................................................... 5 Gustavson v. Wrigley Sales Co., 961 F. Supp. 2d 1100 (N.D. Cal. 2013).......................................................................... 8 Int’l Shoe Co. v. Washington, 326 U.S. 310 (1945)........................................................................................................ 4 Mountain View Pharm. v. Abbott Labs., 630 F.2d 1383 (10th Cir. 1980) .................................................................................... 13 NuCal Foods, Inc. v. Quality Egg LLC, 2012 WL 3528162 (E.D. Cal. Aug. 15, 2012)................................................................ 7 Panavision Int’l, L.P. v. Toeppen, 141 F.3d 1316 (9th Cir. 1998) ........................................................................................ 4 In re Parmalat Secs. Litig., 501 F. Supp. 2d 560 (S.D.N.Y. 2007) .......................................................................... 13 Perkins v. Benguet Consol. Mining Co., 342 U.S. 437 (1952)........................................................................................................ 5 Rano v. Sipa Press, Inc., 987 F.2d 580 (9th Cir. 1993) .......................................................................................... 8 Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797 (9th Cir. 2004) ..................................................................................4, 8, 9 Tuttle v. Sky Bell Asset Mgmt., LLC, 2011 WL 4713233 (N.D. Cal. Oct. 7, 2011) .................................................................. 8 Washington v. Thomas, No. 09-11302, 2009 WL 1424193 (E.D. Mich. May 18, 2009)................................... 13 Yahoo! Inc. v. La Ligue Contre Le Racisme Et L’Antisemitisme, 433 F.3d 1199 (9th Cir. 2006) (en banc) ........................................................................ 9 Case 3:16-cv-00867-GPC-WVG Document 15-1 Filed 08/19/16 Page 4 of 19 iv MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS CASE NO. 3:16-CV-0867 28440285v.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 State Cases Shearer v. Superior Court, 70 Cal. App. 3d 424 (1977) ............................................................................................ 7 Sonora Diamond Corp. v. Superior Court, 83 Cal. App. 4th 523 (2000) ....................................................................................... 7, 9 Federal Statutes 15 U.S.C. § 1117.................................................................................................................. 4 15 U.S.C. § 1125.................................................................................................................. 4 State Statutes CAL. CIV. PROC. CODE § 410.10........................................................................................... 4 California Business and Professions Code § 17200, et seq. ................................................ 4 Rules Fed. R. Civ. P. 4(k)(1)(A) .................................................................................................... 4 Fed. R. Civ. P. 8 ................................................................................................................. 12 Fed. R. Civ. P. 12(b)(2)........................................................................................................ 1 Fed. R. Civ. P. 12(b)(6).................................................................................................. 1, 12 Case 3:16-cv-00867-GPC-WVG Document 15-1 Filed 08/19/16 Page 5 of 19 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 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS CASE NO. 3:16-CV-0867 28440285v.2 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Due process requires Plaintiff TV Ears, Inc. (“Plaintiff” or “TV Ears”) to establish that defendants Sam Y. Kim (“Mr. Kim”) and SYK Group, LLC (“SYK Group”) (together, “Nonresident Defendants”) have sufficient “minimum contacts” with California before this Court properly may exercise personal jurisdiction over them. Because Plaintiff has not, and cannot, establish Nonresident Defendants’ minimum contacts with California, this Court must dismiss Plaintiff’s claims against them. Plaintiff filed suit against defendants Liberty Health, LLC (“Liberty Health”), TrueDio, LLC (“TrueDio”), and Nonresident Defendants alleging that their advertising, marketing, and sale of an assistive listening device called “TrueDio Ears” violates trademark and unfair competition laws. However, Nonresident Defendants do not have sufficient contacts with California to support the exercise of general jurisdiction. Nor did Nonresident Defendants purposefully direct the alleged wrongful conduct at California residents, such that the exercise of specific jurisdiction over them is proper. Accordingly, Nonresident Defendants respectfully request this Court grant their motion to dismiss under Federal Rule of Civil Procedure 12(b)(2), and dismiss them from this case for lack of personal jurisdiction. Plaintiff’s Complaint should also be dismissed because it is wholly devoid of any allegations as to Nonresident Defendants. Thus, Plaintiff fails to state any claim against Nonresident Defendants, and the Complaint should be dismissed under Rule 12(b)(6). For these reasons, as discussed below, the Court should dismiss the Complaint as to Nonresident Defendants with prejudice and without leave to amend. II. STATEMENT OF RELEVANT FACTS A. The Parties Plaintiff is a Nevada corporation with its principal place of business located in Spring Valley, California. (Compl. ¶ 1.) Nonresident Defendant Kim is an individual residing in Illinois. (Id. ¶ 2; Kim Case 3:16-cv-00867-GPC-WVG Document 15-1 Filed 08/19/16 Page 6 of 19 2 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS CASE NO. 3:16-CV-0867 28440285v.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 Decl. ¶ 6.) Mr. Kim is the founder and Chief Executive Officer of SYK Group. (Compl.. ¶ 6; Kim Decl., ¶ 4.) Nonresident Defendant SYK Group is, and at all times relevant was, a limited company organized and existing under the laws of the State of Illinois, with its principal place of business in Libertyville, Illinois. (Compl. ¶ 3; Kim Decl. ¶ 4.) SYK maintains no other offices, and Mr. Kim is its sole member. (Id.) SYK Group is an investment and growth advisory group specializing in early stage companies and internet commerce based business models. (Kim Decl. ¶ 5.) SYK Group is an investor in, among other companies, defendants TrueDio and Liberty. (Id.) Defendant Liberty Health is an Illinois limited liability company with its principal place of business in Libertyville, Illinois. (Kim Decl. ¶ 6.) Mr. Kim founded Liberty Health in February 2011 and is its Chief Executive Officer. (Id.) Liberty Health is an online distributor and retailer of dependable solutions to protect, assist, and enhance the lives of individuals seeking to lead an active, independent lifestyle, including individuals in need of assistive devices and solutions for help with hearing, visual, or mobility loss. (Id.) Liberty Health offers over 4,000 products that span across many health and wellness categories such as audio, visual, mobility, sports and fitness. Liberty Health’s customer service center and main warehouse is located in Libertyville, Illinois. (Id. ¶ 7.) Liberty Health advertises, markets and sells products to customers in all 50 states, including California. (Id.) Defendant TrueDio was founded by Mr. Kim in September 2013 and is an Illinois limited liability company with its principal place of business is in Libertyville, Illinois. (Kim Decl. ¶ 8.) TrueDio is an e-commerce electronics retailer and private label OEM of television and audio assistive products. (Id. ¶ 9.) TrueDio advertises, markets and sells products to customers in all 50 states, including California. (Id.) Unlike Liberty Health and TrueDio, SYK Group does not advertise, market, buy, sell, distribute or otherwise provide any goods or services in California or any state other than Illinois. (Id. ¶ 10.) SYK Group does not decide any aspect of Liberty Health’s or Case 3:16-cv-00867-GPC-WVG Document 15-1 Filed 08/19/16 Page 7 of 19 3 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS CASE NO. 3:16-CV-0867 28440285v.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 TrueDio’s operations, and does it not receive any money directly from customers who purchase goods or services from Liberty Health or TrueDio. (Id. ¶¶ 11-12.) SYK Group does not conduct or transact any business in California and does not maintain any office in California. (Id. ¶¶ 13-14.) SYK Group is not qualified to do business in California, and it has not appointed any agent or public official to accept service of process on its behalf in California. (Id. ¶ 15.) SYK Group does not maintain any books or records in California, and it has no bank accounts or other tangible personal or real property in California. (Id. ¶ 16.) Finally, SYK Group does not pay income or other taxes in California. (Id. ¶17.) Like SYK Group, Nonresident Defendant Mr. Kim does not receive any money directly from customers who purchase goods or services from Liberty Health or TrueDio. (Id. ¶ 18.) He does not have an office in California. (Id. ¶ 20.) He does not maintain any books or records in California, and he has no bank accounts or other tangible personal or real property in California. (Id. ¶ 21.) He does not pay income or other taxes in California. (Id. ¶ 22.) He does not conduct or transact any business in California, other than in his capacity as an officer and/or representative of Liberty Health, TrueDio, or SYK Group’s other portfolio companies. (Id. ¶ 19.) Indeed, his only contacts with California outside of his capacity as an officer and/or representative of these companies include a vacation every couple of years. (Id. ¶ 23.) B. Allegations Of The Complaint Plaintiff alleges that its owner, George Dennis, came up with the idea “in the early 90’s” for “TV EARS,” an “assistive listening device designed for clear and distinct television listening and dialogue comprehension.” (Compl. ¶¶ 13-14; see also ¶¶ 15-19.) Plaintiff further alleges that George Dennis developed the “TV EARS” brand, including by registering various trademarks relating to the TV EARS product. (Id. ¶¶ 20-22.) Plaintiff alleges that in 2013, all Defendants, including Nonresident Defendants, developed a business model to copy Plaintiff’s product designs, trademarks, functionality, customer support material, marketing materials and advertising model, that Case 3:16-cv-00867-GPC-WVG Document 15-1 Filed 08/19/16 Page 8 of 19 4 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS CASE NO. 3:16-CV-0867 28440285v.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 Defendants targeted TV EARS with the specific intent to market and sell off Plaintiff’s established goodwill,” and that Defendants’ purpose was to, among other things, cause customer confusion about source and origin and divert Internet traffic from TV EARS. (Id. ¶ 34-36.) Plaintiff asserts six claims against all Defendants, including Nonresident Defendants: (1) cybersquatting in violation of the Anticybersquatting Consumer Protection Act, 15 U.S.C. § 1125(d); (2) trademark infringement in violation of 15 U.S.C. § 1125(a); (3) trade dress infringement in violation of 15 U.S.C. § 1125; (4) unfair competition and false designation in violation of 15 U.S.C. §1125(a); (5) dilution by blurring in violation of 15 U.S.C. § 1125(c); and (6) unfair competition in violation of California Business and Professions Code § 17200, et seq. (“UCL”). (Compl. ¶¶ 53-83.) Plaintiff seeks actual damages, statutory damages under 15 U.S.C. § 1117(d), injunctive relief, and attorneys’ fees and costs. (Id. at 19-20.) III. ARGUMENT A. This Court Lacks Personal Jurisdiction Over Nonresident Defendants. 1. Due Process Permits Jurisdiction Only If The Court Has Either General Or Specific Jurisdiction Over Nonresident Defendants. Because this Court sits in California and no federal law governs personal jurisdiction over this case, the Court must apply California's long-arm jurisdictional statute. FED. R. CIV. P. 4(k)(1)(A); Panavision Int'l, L.P. v. Toeppen, 141 F.3d 1316, 1320 (9th Cir. 1998). “California's long-arm statute is co-extensive with federal standards, so a federal court may exercise personal jurisdiction if doing so comports with federal constitutional due process.” Boschetto v. Hansing, 539 F.3d 1011, 1015 (9th Cir. 2008); see also CAL. CIV. PROC. CODE § 410.10. Under federal due process standards, to exercise personal jurisdiction over a nonresident defendant, “that defendant must have at least ‘minimum contacts’ with the relevant forum such that the exercise of jurisdiction ‘does not offend traditional notions of fair play and substantial justice.’” Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 801 (9th Cir. 2004) (quoting Int'l Shoe Co. v. Case 3:16-cv-00867-GPC-WVG Document 15-1 Filed 08/19/16 Page 9 of 19 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS CASE NO. 3:16-CV-0867 28440285v.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 Washington, 326 U.S. 310, 316 (1945)). The extent and type of contacts a defendant may have with the forum state can give rise to two types of jurisdiction: general or specific. Data Disc, Inc. v. Sys. Tech. Assocs., 557 F.2d 1280, 1285 (9th Cir. 1977). Nonresident Defendants lack the constitutionality required minimum contacts with California for this Court to assert either type of jurisdiction over them. 2. The Court Cannot Exercise General Jurisdiction Over Nonresident Defendants. a. Nonresident Defendants Lack Sufficient Minimum Contacts with California to Support General Jurisdiction. A court has general jurisdiction over a nonresident defendant when that defendant’s activities within the forum state are “substantial” or “continuous and systematic,” even if the cause of action is “unrelated to the defendant’s forum activities.” Perkins v. Benguet Consol. Mining Co., 342 U.S. 437, 446-47 (1952); Data Disc, Inc. v. Sys. Tech. Assocs., Inc., 557 F.2d 1280, 1287 (9th Cir. 1977). The standard for establishing general jurisdiction is “fairly high” and requires that the defendant’s contacts be substantial enough to approximate physical presence. Bancroft & Masters, Inc. v. Augusta Nat'l Inc., 223 F.3d 1082, 1086 (9th Cir. 2000). Indeed, “general jurisdiction requires affiliations so continuous and systematic as to render [the defendant] essentially at home in the forum State.” Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846, 2851 (2011); Daimler AG v. Bauman, 134 S. Ct. 746, 754, 187 L. Ed. 2d 624 (2014). “For an individual, the paradigm forum for the exercise of general jurisdiction is the individual’s domicile.” Goodyear, 131 S. Ct. at 2853. As established by the Kim Declaration, Nonresident Defendants’ contacts with the State of California are insufficient to support general jurisdiction. SYK Group has no contacts with California to support general jurisdiction. It is neither original nor maintains its principal place of business in California (Kim Decl. ¶¶ 8, 14). It is not licensed, registered or qualified to do business in California (Id. ¶¶ 13, 15). It does not own or operate any stores in California (Id. ¶¶ 13-14). It does not advertise, market, sell, or distribute any products in California, nor does it solicit business in the state (Id. ¶¶ 10, Case 3:16-cv-00867-GPC-WVG Document 15-1 Filed 08/19/16 Page 10 of 19 6 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS CASE NO. 3:16-CV-0867 28440285v.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 13). It does not maintain offices in California (Id. ¶ 14). It does not maintain any books or records in California (Id. ¶ 16). It has no bank accounts or other tangible personal or real property in California (Id. ¶16). It pays no income or other taxes in California (Id. ¶¶ 17). And it has not appointed any agent or public official to accept service of process on its behalf in California (Id. ¶15). Similarly, Mr. Kim lacks sufficient contacts with California to support general jurisdiction. Mr. Kim is a resident of Illinois, not California (Kim Decl. ¶ 2), and there can be no serious argument that California is anything remotely analogous to a domicile for Mr. Kim. (Id. ¶¶2, 18-23.) He has never lived in California, and all of his dealings with or in California -- outside of personal visits -- have all been in his capacity as an officer and/or representative of SYK Group or its investment companies. (Id. ¶¶ 2, 19, 23.) Because Nonresident Defendants lack any contacts with California that can be characterized as “substantial” or “continuous and systematic,” the exercise of general jurisdiction over them would violate due process. b. TrueDio’s And Liberty Health’s Contacts Cannot Be Imputed To Nonresident Defendants. As the United States Supreme Court observed, a subsidiary’s in-state contacts cannot support general jurisdiction over its parent corporation. See Bauman, 134 S. Ct. at 758-59; see also Id. at 749 (reiterating that general jurisdiction requires affiliations “so continuous and systematic as to render [the foreign corporation] essentially at home in the forum State”). Here, SYK Group is merely a passive investor in TrueDio and Liberty. The fact that TrueDio and Liberty conduct business and are subject to personal jurisdiction in California is insufficient to establish general jurisdiction as to SYK Group. Similarly, TrueDio’s and Liberty’s contacts with California are insufficient to establish general jurisdiction over Mr. Kim. The fact that a company is subject to jurisdiction in the forum state does not necessarily confer jurisdiction over its individual officers or representatives. See Brown v. Gen. Steel Domestic Sales, LLC, 2008 WL Case 3:16-cv-00867-GPC-WVG Document 15-1 Filed 08/19/16 Page 11 of 19 7 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS CASE NO. 3:16-CV-0867 28440285v.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 2128057, at *10 (C.D. Cal. May 19, 2008); see also NuCal Foods, Inc. v. Quality Egg LLC, 2012 WL 3528162, at *13 (E.D. Cal. Aug. 15, 2012) (“The mere fact that a corporation is subject to local jurisdiction does not necessarily mean its nonresident officers, directors, agents, and employees are subject to jurisdiction as well.”) (citing Calder v. Jones, 465 U.S. 783, 790 (1984)). The court must examine the individual’s contacts with the forum to determine if they are sufficient to warrant the exercise of jurisdiction over him in connection with forum-related claims. See Brown, 2008 WL 2128057, at *11 (holding that the mere fact an individual is a corporation’s president is not sufficient to subject that individual to jurisdiction in California based on the corporation’s alleged conduct). “[T]he acts of corporate officers and directors in their official capacities are the acts of the corporation exclusively and are thus not material for purposes of establishing minimum contacts as to the individuals.” NuCal Foods, 2012 WL 3528162, at *13 (quoting Shearer v. Superior Court, 70 Cal. App. 3d 424, 430 (1977)). Accordingly, the acts of Mr. Kim, in his official capacity for SYK Group, TrueDio and/or Liberty Health, cannot be attributed to him as individual acts creating personal jurisdiction. See Id. Plaintiff also cannot rely on its conclusory alter ego allegations (See Compl. ¶¶ 7, 10) to create personal jurisdiction as to SYK Group and Mr. Kim, even if there is jurisdiction over TrueDio and Liberty. “Disregarding the corporate entity is recognized as an extreme remedy, and courts will pierce the corporate veil only in exceptional circumstances.” Calvert v. Huckins, 875 F. Supp. 674, 678 (E.D. Cal. 1995) (internal quotations and citations omitted); see also Sonora Diamond Corp. v. Superior Court, 83 Cal. App. 4th 523, 539 (2000) (“Alter ego is an extreme remedy, sparingly used.”). To demonstrate that the alter ego doctrine applies, Plaintiff “must make out a prima facie case (1) that there is such unity of interest and ownership that the separate personalities [of the two entities] no longer exist and (2) that failure to disregard [their separate entities] would result in fraud or injustice.” Doe v. Unocal Corp., 248 F.3d 915, 926 (9th Cir. 2001) (citations omitted). Case 3:16-cv-00867-GPC-WVG Document 15-1 Filed 08/19/16 Page 12 of 19 8 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS CASE NO. 3:16-CV-0867 28440285v.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 Here, Plaintiff has not satisfied, and cannot satisfy, the alter ego test. The only allegations in the Complaint attempting to establish that TrueDio and Liberty are the alter egos of SYK Group and/or Mr. Kim are the conclusory statements that “SYK owns and operates TrueDio and Liberty at the direction of Kim” and “[a]t all times, Defendants were working at the direction of each other, and for their individual and mutual benefit.” (Compl. ¶¶ 7, 10.) These statements simply are inadequate, and the Complaint never attempts to substantiate how or why the elements of the alter ego test are satisfied. Such bare-bones allegations are insufficient to establish that TrueDio and Liberty are the alter egos of SYK Group or Mr. Kim. See Tuttle v. Sky Bell Asset Mgmt., LLC, 2011 WL 4713233, at *8 (N.D. Cal. Oct. 7, 2011) (“Plaintiffs’ complaint includes no allegations concerning alter ego/agency and plaintiffs simply put in no record whatsoever as to the actual relationships between the [entities]”); see also Gustavson v. Wrigley Sales Co., 961 F. Supp. 2d 1100, 1133 (N.D. Cal. 2013) (holding that parent-subsidiary relationship between two producers of food products, standing alone, provided insufficient basis for piercing corporate veil and holding parent liable for subsidiary's conduct). 3. The Court Cannot Exercise Specific Jurisdiction Over Nonresident Defendants. In the absence of general jurisdiction, a court may nevertheless assert specific jurisdiction over a claim that arises out of a defendant’s activities within the forum. Rano v. Sipa Press, Inc., 987 F.2d 580, 588 (9th Cir. 1993). The test for specific jurisdiction has three parts: (1) the defendant must have done 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 arise out of the defendant’s forum- related activities; and (3) the exercise of jurisdiction must be reasonable. Id.; see also Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475-76 (1985). Plaintiff bears the burden of satisfying the first two prongs, and if either of these prongs is not satisfied, personal jurisdiction is not established. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 2004). Plaintiff has not met its burden and cannot do so. Case 3:16-cv-00867-GPC-WVG Document 15-1 Filed 08/19/16 Page 13 of 19 9 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS CASE NO. 3:16-CV-0867 28440285v.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 a. Nonresident Defendants Have Not Purposefully Directed Conduct To California. To satisfy the “purposeful availment” prong, Plaintiff must establish that Nonresident Defendants either purposefully availed themselves of the privilege of conducting activities in California, or purposefully directed their activities toward California.1 Schwarzenegger, 374 F.3d at 802. The purpose of this requirement is to protect nonresidents from being hailed into local courts solely as a result of “random, fortuitous or attenuated” contacts over which it had no control. Burger King Corp., 471 U.S. at 476. Here, Plaintiff alleges no conduct by Nonresident Defendants demonstrating that they purposefully availed themselves of the privilege of doing business in California. As discussed above, SYK Group and Mr. Kim have no presence or operations in California whatsoever. Indeed, SYK Group is not qualified to do business in California, and neither SYK Group nor Mr. Kim actually conduct or transact any business in the state. And although TrueDio and Liberty Health both conduct business in California, again this is not sufficient to establish jurisdiction over Nonresident Defendants. See, e.g., Sonora Diamond Corp. v. Superior Court, 83 Cal. App. 4th 523, 540 (2000) (“neither ownership nor control of a subsidiary corporation by a foreign parent corporation, without more, subjects the parent to the jurisdiction of the state where the subsidiary does business.”). Furthermore, Nonresident Defendants have not purposefully directed any activities at California or its residents. To establish purposeful direction, Plaintiff must establish that Nonresident Defendants “(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.” Yahoo! Inc. v. La Ligue Contre Le Racisme Et L'Antisemitisme, 433 F.3d 1 A showing that a defendant purposefully availed himself of the privilege of doing business in a forum state typically consists of evidence of the defendant's actions in the forum; it is most often used in suits sounding in contract. Schwarzenneger, 374 F.3d at 809. A purposeful direction analysis, on the other hand, is most often used in suits sounding in tort. Id. Case 3:16-cv-00867-GPC-WVG Document 15-1 Filed 08/19/16 Page 14 of 19 10 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS CASE NO. 3:16-CV-0867 28440285v.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 1199, 1206 (9th Cir. 2006) (en banc). Again, there are no allegations or evidence that Nonresident Defendants specifically targeted California consumers or expressly aimed their purported wrongful conduct at California residents. Indeed, Plaintiff fails to allege any conduct whatsoever by Nonresident Defendants. Moreover, while “a parent corporation may be amenable to specific jurisdiction in a forum state, through an agency relationship, if it itself targeted the forum or it purposefully availed itself of a forum by directing its agents or distributors to take action there,” (see Bauman, 134 S. Ct. at 759 n.13), there are no allegations in the Complaint that either SYK Group or Mr. Kim (either in his individual capacity or as an officer of SYK Group) directed any of the alleged conduct by TrueDio and Liberty Health that gives rise to Plaintiff’s purported claims. Because Nonresident Defendants did not take any deliberate actions within California or purposefully and voluntarily direct conduct toward California or its residents, the exercise of specific jurisdiction over them is improper. b. Plaintiff’s Claims Do Not Arise Out Of Or Relate To Nonresident Defendants’ California-Related Conduct. “The second requirement for specific jurisdiction is that the contacts constituting purposeful availment must be the ones that give rise to the current suit.” Bancroft, 223 F.3d at 1088. The Ninth Circuit applies a “but for” causation standard; i.e., Plaintiff would not have suffered a loss “but for” Nonresident Defendants’ forum-related conduct. Id. Plaintiff’s failure to establish Nonresident Defendants’ “purposeful availment” or “purposeful direction” renders moot the second prong of the specific jurisdiction test. Plaintiff does not allege, nor does any evidence exist, that Nonresident Defendants engaged in any California-related activities-let alone that Plaintiff’s alleged harm was caused by those activities. Neither Plaintiff’s allegations nor the evidence establish that Plaintiff’s claims arise out of or relate to Nonresident Defendants’ California-related Case 3:16-cv-00867-GPC-WVG Document 15-1 Filed 08/19/16 Page 15 of 19 11 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS CASE NO. 3:16-CV-0867 28440285v.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 conduct because no such forum-related activity exists. c. The Exercise Of Personal Jurisdiction Over Nonresident Defendants Would Be Unreasonable. Finally, notions of “fair play and substantial justice” also mandate that Nonresident Defendants be dismissed from this lawsuit for lack of personal jurisdiction. Because Plaintiff has not met its burden of demonstrating Nonresident Defendants’ “minimum contacts” with California, Nonresident Defendants need not demonstrate that the exercise of personal jurisdictional would be unreasonable. Schwarzenegger, 374 F.3d at 802. But even if Plaintiff could demonstrate that Nonresident Defendants had the requisite minimum contacts sufficient to support general or specific jurisdiction, which it cannot, the Court may nonetheless determine that jurisdiction is lacking if it would appear unreasonable under the relevant circumstances. Burger King Corp., 471 U.S. at 477. In determining reasonableness, this circuit examines seven factors: (1) the extent of purposeful interjection; (2) the burden on the defendant to defend the suit in the chosen forum; (3) the extent of conflict with the sovereignty of the defendant's state; (4) the forum state's interest in the dispute; (5) the most efficient forum for judicial resolution of the dispute; (6) the importance of the chosen forum to the plaintiff's interest in convenient and effective relief; and (7) and the existence of an alternative forum. Federal Deposit Ins. Corp. v. British-American Ins. Co., Ltd., 828 F.2d 1439, 1442 (9th Cir. 1987). The weaker the plaintiff’s showing of “minimum contacts,” the less a defendant need show to support a finding that the assertion of jurisdiction is unreasonable. Core-Vent Corp. v. Nobel Industries, AB, 11 F.3d 1482, 1488 (9th Cir. 1993) (“[t]he smaller the element of purposeful injection, the less is jurisdiction to be anticipated and the less reasonable is its exercise.”). Under these circumstances, the exercise of jurisdiction would be unreasonable. First, Nonresident Defendants did not purposefully interject themselves into California; they have no “substantial” or “continuous and systematic” contacts with California, nor did they purposefully avail themselves of the privilege of conducting Case 3:16-cv-00867-GPC-WVG Document 15-1 Filed 08/19/16 Page 16 of 19 12 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS CASE NO. 3:16-CV-0867 28440285v.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 activities in or directed at California. Moreover, requiring them to defend themselves in California would be unduly burdensome as neither Nonresident Defendant is a California resident, nor do they maintain employees or records in California. Given Nonresident Defendants’ lack of connection to California, subjecting them to personal jurisdiction in this state would be unreasonable and would amount to a violation of due process. “Fair play and substantial justice,” therefore, mandate that Nonresident Defendants be dismissed from this lawsuit for lack of personal jurisdiction. B. Plaintiff Fails To State Any Claim For Relief Against Nonresident Defendants.2 To survive a motion to dismiss pursuant to Rule 12(b)(6), a complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678-79, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). A complaint does not suffice “if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (citation omitted). Also, a “claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Where “the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not ‘show[n]’-‘that the pleader is entitled to relief.’” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)). “To provide adequate notice, a complaint in a complex, multi-party suit may 2 By moving to dismiss pursuant to Rule 12(b)(6), Nonresident Defendants do not consent to personal jurisdiction in California and reserve all of their jurisdictional objections. Dynamis, Inc. v. Dynamis.com, 780 F. Supp. 2d 465, 471 (E.D. Va. 2011) (“Federal Rules of Civil Procedure allow a party denying jurisdiction and service to bring a Rule 12(b)(6) challenge without waiving the jurisdictional objection.”); Fed. R. Civ. P. 12(b)(“No defense or objection is waived by joining it with one or more other defenses or objections in a responsive pleading or in a motion”). Case 3:16-cv-00867-GPC-WVG Document 15-1 Filed 08/19/16 Page 17 of 19 13 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS CASE NO. 3:16-CV-0867 28440285v.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 require more information than a simple, single party case.” Mountain View Pharm. v. Abbott Labs., 630 F.2d 1383, 1386-87 (10th Cir. 1980). “When a complaint involves multiple parties and multiple claims, each claim should make it clear which defendant or defendants are alleged to have committed which wrong.” Washington v. Thomas, No. 09-11302, 2009 WL 1424193, at *2 (E.D. Mich. May 18, 2009); In re Parmalat Secs. Litig., 501 F. Supp. 2d 560, 565 (S.D.N.Y. 2007) (admonishing against non-distinguished allegations, making it “unclear which particular defendants are the subject of certain allegations . . . .”). “If it is ‘impossible to tell from the face of the complaint which defendants were accused of which violations, what specific acts constituted violations, or when alleged violations occurred,’ such a complaint fails to state a claim upon which relief can be granted.” See Washington, 2009 WL 1424193, at *2; Here, the Complaint fails to allege any actionable conduct by Nonresident Defendants. Plaintiff asserts multiple violations of law against multiple defendants. However, none of the allegations upon which Plaintiff’s purported claims are based are specific to SYK Group or Mr. Kim. Instead, the Complaint lumps all of the Defendants together and purports to allege that all of them engaged in the conduct alleged in the Complaint - a factual implausibility. Such collective factual allegations and claims do not meet the liberal pleading standard under Rule 8, let alone the heightened pleading standard articulated in Iqbal and Twombly. Accordingly, the Complaint should be dismissed as to Nonresident Defendants. // // // // // // // // Case 3:16-cv-00867-GPC-WVG Document 15-1 Filed 08/19/16 Page 18 of 19 14 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS CASE NO. 3:16-CV-0867 28440285v.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 IV. CONCLUSION For each of the foregoing reasons, Nonresident Defendants respectfully request that the Court grant the Motion in its entirety and without leave to amend. DATED: August 19, 2016 Respectfully submitted, SEYFARTH SHAW LLP By: /s/ Joseph A. Escarez Kenneth L. Wilton Joseph A. Escarez Attorneys for Defendants SYK GROUP, LLC, LIBERTY HEALTH SUPPLY, LLC, TRUEDIO, LLC, and SAM Y. KIM Case 3:16-cv-00867-GPC-WVG Document 15-1 Filed 08/19/16 Page 19 of 19 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA TV EARS, INC., Plaintiff, v. SKY GROUP, LLC, LIBERTY HEALTH SUPPLY, LLC, TRUEDIO LLC, and SAM Y. KIM, an individual, Defendant. Case No. 3:16-cv-0867-GPC-WVG DECLARATION OF SAMUEL Y. KIM Date Action Filed: April 11, 2016 SEYFARTH SHAW LLP Kenneth L. Wilton (SBN 126557) kwilton@seyfarth.com Joseph A. Escarez (SBN 266644) jescarez@seyfarth.com 2029 Century Park East, Suite 3500 Los Angeles, California 90067-3021 Telephone: (310) 277-7200 Facsimile: (310) 201-5219 Attorneys for Defendants SYK GROUP, LLC LIBERTY HEALTH SUPPLY, LLC, TRUEDIO, LLC, and SAM Y. KIM DECLARATION OF SAMUEL Y. KIM CASE NO. 3:16-CV-0867 28495194v.2 1 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 Case 3:16-cv-00867-GPC-WVG Document 15-2 Filed 08/19/16 Page 1 of 4 1 2 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 DECLARATION OF SAMUEL Y. KIM I, Samuel Y. Kim, declare as follows: 1. I am the founder and Chief Executive Officer of SYK Group, LLC ("SYK Group"). This declaration is made in support of the Motion of Defendants SYK Group, LLC and Sam Y. Kim To Dismiss. I make this declaration based on my personal knowledge, and if called to do so, I could and would testify competently to the facts stated herein. 2. I currently reside in Green Oaks, Illinois, where I have lived since 1999. I have never lived in California. 3. In my capacity as Chief Executive Officer of SYK Group, I have personal knowledge regarding the legal status, form of organization, and activities of SYK Group, as well as the companies of which SYK Group owns shares. 4. I founded SYK Group in October 2010. SYK Group is, and at all times was, a limited liability company organized and existing under the laws of the State of Illinois. Its main office and principal place of business currently is in Libertyville, Illinois. SYK maintains no other offices. I am the sole member of SYK Group. 5. SYK Group is an investment and growth advisory group specializing in early stage companies and internet commerce based business models. SYK Group is an investor in several such companies, including Liberty Health Supply, LLC ("Liberty Health") and TrueDio, LLC ("TrueDio"). 6. I founded Liberty Health in February 2011 and am the company's Chief Executive Officer. Liberty Health is, and at all times was, a limited liability company organized and existing under the laws of the State of Illinois. Its principal place of business is in Libertyville, Illinois. My wife, Elizabeth Kim and I am currently the sole members of Liberty Health. 7. Liberty Health is an online distributor and retailer of dependable solutions to protect, assist, and enhance the lives of individuals seeking to lead an active, independent DECLARATION OF SAMUEL Y. KIM CASE NO. 3:16-CV-0867 28495194v.2 Case 3:16-cv-00867-GPC-WVG Document 15-2 Filed 08/19/16 Page 2 of 4 lifestyle, including individuals in need of assistive devices and solutions for help with hearing, visual, or mobility loss. Liberty Health offers over 4,000 products that span across many health and wellness categories such as audio, visual, mobility, sports and fitness. Liberty Health's customer service center and main warehouse is located in Libertyville, Illinois. Liberty Health advertises, markets and sells products to customers in all 50 states, including California. 8. I founded TrueDio in September 2013. TrueDio is, and at all times was, a limited liability company organized and existing under the laws of the State of Illinois. Its principal place of business is in Libertyville, Illinois. I am TrueDio's sole member. 9. TrueDio is an e-commerce electronics retailer and private label OEM of television and audio assistive products. TrueDio advertises, markets and sells products to customers in all 50 states, including California. 10. Unlike Liberty Health and TrueDio, SYK Group does not advertise, market, buy, sell, distribute or otherwise provide any goods or services in California or any state other than Illinois. 11. SYK Group does not decide any aspect of Liberty Health's or TrueDio's operations. 12. SYK Group does not receive any money directly from customers who purchase goods or services from Liberty Health or TrueDio. 13. SYK Group does not conduct or transact any business in California. 14. SYK Group does not maintain any office in California 15. SYK Group is not qualified to do business in California nor has it appointed any agent or public official to accept service of process on its behalf in California. 16. SYK Group does not maintain any books or records in California, and it has no bank accounts or other tangible personal or real property in California. 17. SYK Group does not pay income or other taxes in California. 2 DECLARATION OF SAMUEL Y. KIM CASE NO. 3:16-CV-0867 28495194v.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 Case 3:16-cv-00867-GPC-WVG Document 15-2 Filed 08/19/16 Page 3 of 4 18. I do not receive any money directly from customers who purchase goods or services from Liberty Health or TrueDio. 19. I do not conduct or transact any business in California, other than in my capacity as an officer and/or representative of Liberty Health, TrueDio, or SYK Group's other portfolio companies. 20. I do not maintain any office in California. 21. I do not maintain any books or records in California, and I have no bank accounts or other tangible personal or real property in California. 22. I do not pay income or other taxes in California. 23. I occasionally vacation in California every couple of years. I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. Executed this day of August 2016, at Los Angeles, California. gam kte4 )/. Samuel . Kim 3 DECLARATION OF SAMUEL Y. KIM CASE NO. 3:16-CV-0867 28495194v.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 Case 3:16-cv-00867-GPC-WVG Document 15-2 Filed 08/19/16 Page 4 of 4 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 CERTIFICATE OF SERVICE RE MOTION OF DEFENDANTS SYK GROUP, LLC AND SAM Y. KIM TO DISMISS CASE NO. 3:16-CV-0867 28552586v.1 SEYFARTH SHAW LLP Kenneth L. Wilton (SBN 126557) kwilton@seyfarth.com Joseph A. Escarez (SBN 266644) jescarez@seyfarth.com 2029 Century Park East, Suite 3500 Los Angeles, California 90067-3021 Telephone: (310) 277-7200 Facsimile: (310) 201-5219 Attorneys for Defendants SYK GROUP, LLC, LIBERTY HEALTH SUPPLY, LLC, TRUEDIO, LLC, and SAM Y. KIM UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA TV EARS, INC., Plaintiff, v. SYK GROUP, LLC, LIBERTY HEALTH SUPPLY, LLC, TRUEDIO LLC, and SAM Y. KIM, an individual, Defendant. Case No. 3:16-cv-0867-GPC-WVG CERTIFICATE OF SERVICE RE MOTION OF DEFENDANTS SYK GROUP, LLC AND SAM Y. KIM TO DISMISS Case 3:16-cv-00867-GPC-WVG Document 15-3 Filed 08/19/16 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 CERTIFICATE OF SERVICE RE MOTION OF DEFENDANTS SYK GROUP, LLC AND SAM Y. KIM TO DISMISS CASE NO. 3:16-CV-0867 28552586v.1 CERTIFICATE OF SERVICE STATE OF CALIFORNIA ) ) ss COUNTY OF LOS ANGELES ) The undersigned hereby certifies that a true and correct copy of (1) NOTICE OF MOTION AND MOTION OF DEFENDANTS SYK GROUP, LLC AND SAM Y. KIM TO DISMISS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; (2) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION OF DEFENDANTS SYK GROUP, LLC AND SAM Y. KIM TO DISMISS; and (3) DECLARATION OF SAMUEL Y. KIM were served on August 19, 2016, to all counsel of record who are deemed to have consented to electronic service via the Court’s CM/ECF system per Civil Local Rule 5.4. Any other counsel of record will be served by U.S. Mail. Executed on August 19, 2016, at Los Angeles, California. /s/ Joseph A. Escarez Joseph A. Escarez Case 3:16-cv-00867-GPC-WVG Document 15-3 Filed 08/19/16 Page 2 of 2