The opinion of the court was delivered by: PHYLLIS HAMILTON, District Judge
ORDER GRANTING MOTIONS TO DISMISS AND DENYING JURISDICTIONAL
Before this court are several defendants' motions to dismiss
for lack of personal jurisdiction. The moving defendants include
the following: Hynix Semiconductor Inc. ("HSI"); Elpida Memory,
Inc. ("Elpida Japan"); Elpida Memory (USA) Inc. ("Elpida USA");
NEC Electronics Corporation ("NEC Japan"); NEC Electronics
America, Inc. ("NECELAM"); Nanya Technology Corporation
("Nanya"); Winbond Electronics Corporation ("Winbond Taiwan"),
and Winbond Electronics Corporation America ("WECA")
(collectively "defendants"). Defendants' motions, which were
individually filed, seek dismissal as to various of the
underlying complaints against them.*fn1
Given the common questions of law and fact among defendants,
the motions to dismiss were consolidated for briefing and
hearing. The motions came on for hearing on October 19, 2005
before this court. Defendants appeared through their respective
counsel, Steven H. Morrissett, Ian Simmons, Jonathan E. Swartz, and Howard
M. Ullman. Plaintiffs appeared through their respective counsel,
Josef Cooper, and Allan Steyer.
Having read the papers and carefully considered the relevant
legal authority, the court hereby rules as follows on the motions
to dismiss, for the reasons stated below and for the reasons
stated at the hearing: Defendants' motions to dismiss are
GRANTED, and plaintiffs' request for jurisdictional discovery is
Defendants are either foreign corporations, or U.S.
subsidiaries of foreign corporations, all of whom engage in the
manufacture and sale of dynamic random access memory (i.e.,
"DRAM"). Plaintiffs are indirect purchasers of DRAM residing in
either North Carolina, Tennessee, or Vermont.
Plaintiffs filed the various underlying actions in these three
states, alleging that defendants (along with other co-defendants
not before the court on these motions) conspired to unlawfully
fix prices for DRAM, in violation of state antitrust laws.
Subsequently, each of the actions was transferred to this court
for consolidated pre-trial proceedings, pursuant to the
multidistrict litigation ("MDL") procedures set forth in
28 U.S.C. § 1407.
Defendants now seek an order pursuant to Federal Rule of Civil
Procedure 12(b)(2) dismissing the claims asserted against them
for lack of personal jurisdiction. Plaintiffs oppose the motion,
and assert that they are entitled to jurisdictional discovery in
any event, prior to the grant of any of defendants' motions.
On a motion to dismiss the complaint for lack of personal
jurisdiction pursuant to Fed.R.Civ.P. 12(b)(2), the plaintiff
bears the burden of demonstrating that the court has jurisdiction
over the defendant. See, e.g., Harris Rutsky & Co Ins. Serv.,
Inc. v. Bell & Clement Ltd., 328 F.3d 1122, 1128-29 (9th
Cir. 2003). Where the court decides the jurisdictional issue on
the basis of the pleadings and supporting declarations, without
holding an evidentiary hearing on the issue, "the plaintiff need only demonstrate facts
that if true would support jurisdiction over the defendant." Doe
v. Unocal, 248 F.3d 915, 922 (9th Cir. 2001). The court will
resolve all disputed facts in favor of the plaintiff, and
plaintiff's version of the facts is accepted as true. Id. The
court need not, however, assume the truth of allegations in a
pleading that is contradicted by sworn affidavit. See Data Disc,
Inc. v. Systems Tech. Assoc., Inc., 557 F.2d 1280, 1289 n. 5
(9th Cir. 1977).
In MDL actions such as this one, the court is entitled to
exercise personal jurisdiction over each defendant only to the
same degree that the original transferor court could have. See
Maricopa County v. Am. Petrofina, Inc., 322 F. Supp. 467, 469
(N.D. Cal. 1971). Accordingly, this court must evaluate the
nature of defendants' contacts in the relevant forum states with
regard to the long-arm statutes of those states. Since North
Carolina, Tennessee, and Vermont all have long-arm statutes that
authorize the exercise of personal jurisdiction to the fullest
extent authorized by constitutional due process, personal
jurisdiction is to be assessed with regards to federal due
process law. And since federal law accordingly controls, this
court will look to its own circuit as the source for federal law.
See, e.g., Menowitz v. Brown, 991 F.2d 36, 40 (2d Cir. 1993)
("a transferee federal court should apply its interpretations of
federal law, not the constructions of federal law of the
With this in mind, it is well-established that federal due
process requires that a non-resident defendant have sufficient
minimum contacts with the forum state such that imposition of
personal jurisdiction "does not offend traditional notions of
fair play and substantial justice." Int'l Shoe Co. v.
Washington, 326 U.S. 310, 315 (1945). Furthermore, the
relationship between the defendant and the forum must be such
that it is "reasonable . . . to require the [defendant] to defend
the particular suit which is brought there." Id. at 317.
Due process is traditionally determined under either a general
or specific jurisdiction analysis. Helicopteros Nacionales de
Colombia S.A. v. Hall, 466 U.S. 408, 414 (1984). Plaintiffs
stated at the hearing, and defendants raised no objection, that
they are proceeding before the court here only on specific
jurisdiction grounds. As such, the only relevant inquiry is
whether plaintiffs have made, or can make, a factual showing that
warrants the exercise of specific personal jurisdiction under the standards espoused by
the Ninth Circuit.
B. The Parties' Factual Showing
Accordingly, the crux of these motions comes down to the
factual showing made by both parties regarding defendants'
minimum contacts, and whether that showing is sufficient to
confer specific jurisdiction over defendants. Defendants set
forth, through numerous affidavits, their showing as to why
plaintiffs cannot establish specific personal jurisdiction.
Plaintiffs, in their consolidated opposition, offer up additional
evidence with the aim of proving the opposite.
Taken as a whole, the factual showing as to each defendant is
a. Hynix Semiconductor Inc. ("HSI").
HSI is a South Korean corporation with its principal place of
business in South Korea. HSI is not registered to do business in,
and does not own any property in, the states of North Carolina,
Tennessee, or Vermont. It has not manufactured DRAM, or any other
product, in any of those states, nor has it operated any offices,
plants, or warehouses there. It has not delivered, distributed or
sold DRAM to any customers in those states. HSI has not
advertised any product or otherwise solicited business there, nor
has it employed representatives or sales agents there. HSI does
not maintain a shipping address, telephone listing, or bank
accounts there, and has not paid income or property taxes in the
those states. HSI has no designated agent for service of process
HSI owns substantially all shares of its subsidiary company,
Hynix Semiconductor America ("HSA"). The two companies have two
directors in common who serve on the board. Otherwise, the two
companies are separately incorporated and direct their own day to
day activities. HSI sells DRAM to HSA, a California corporation,
who in turn sells DRAM to manufacturers in the United States. HSA
is a registered foreign corporation in North Carolina, and one of
HSA's distributors has an office in North Carolina and provides a
toll-free number for manufacturers that covers North Carolina,
Tennessee, and Vermont.
b. Nanya Technology Corp. ("Nanya").
Nanya is a Taiwanese corporation with headquarters in Taiwan.
Nanya has not sold or contracted to sell any goods or services (including DRAM) in
either North Carolina or Tennessee, nor has it advertised any
goods or services there. It does not conduct or transact any
business there. Nanya does not own or rent property in those
states, and it has no offices, facilities, bank accounts,
telephone listings, mailing addresses, or agents or employees in
those states. It pays no taxes to either state, and has no
designated agent for service of process there.
Nanya owns its subsidiary company, Nanya USA, although the two
companies are separately incorporated and direct their own day to
day activities. Nanya USA is listed as one of Nanya's worldwide
sales offices on Nanya's website. Nanya sells the DRAM that it
manufactures in Taiwan through Nanya USA. Nanya USA markets and
distributes its DRAM product to a network of manufacturers
throughout the United States. One of Nanya USA's distributors has
an office in North Carolina and offices throughout the US that
serve a "worldwide" region.
c. Elpida Memory (USA) Inc. ("Elpida USA").
Elpida USA is a Delaware corporation with its principal place
of business in Santa Clara, California. Elpida USA sells DRAM to
manufacturers in selected states within the United States. Elpida
USA has never sold DRAM or any other products or services to
Vermont residents, nor has it ever regularly transacted or
solicited any business in Vermont, or derived substantial revenue
from the sale of any goods or services in Vermont. It has never
employed anyone in the state. Elpida USA does not maintain
telephone listings, mailing addresses, or bank accounts in
Vermont, nor does it own, ...