United States District Court, N.D. California
November 7, 2005.
In re DYNAMIC RANDOM ACCESS MEMORY (DRAM) ANTITRUST LITIGATION. This document Relates to: Elias
Micron et al. (C 05-475 PJH) Weisburgh v. Micron et al. (C 05-1227 PJH) Kongkham v. Micron et al. (C 05-2013 PJH) Kinkade v. Micron et al. (C 05-1883 PJH) Greene v. Elpida et al. (C 05-1884 PJH) Microprocessor Designs v. Micron et al. (C 05-2903 PJH) Kaplan v. Micron et al. (C 05-2907 PJH).
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.
I. Motions to Dismiss
A. Legal Standard
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, lease, or possess any property there.
It is not licensed or authorized to do business in the state, and
has no registered agent for service of process there.
Elpida USA is a subsidiary of Elpida Japan. The two are
separate and distinct entities, with independent control over
their day to day activities.
d. Elpida Memory Inc. ("Elpida Japan").
Elpida Japan is a Japanese corporation with its principal place
of business in Tokyo. It manufactures DRAM. It has never sold
DRAM or any other products or services to Vermont residents, it has never transacted or solicited business in
Vermont, and it has never received any revenue from goods used or
consumed in Vermont. Elpida Japan has never directed any
advertising or marketing efforts to Vermont residents. It does
not own, lease, or possess any property in the state of Vermont,
nor does it maintain telephone listings, mailing addresses, or
bank accounts there. Elpida Japan pays no taxes to the state of
Vermont, is not licensed or authorized to do business there, and
has no registered agent for service of process.
Elpida Japan owns Elpida USA, though the two are separate and
distinct entities, with independent control over their day to day
e. NEC Electronics America, Inc. ("NECELAM").
NECELAM is a California corporation with its headquarters and
principal place of business in California. NECELAM has never sold
DRAM to any Vermont residents, nor has it sold any goods or
services at all to Vermont residents since 1999. It has not
transacted or solicited any significant business in Vermont, nor
derived substantial revenue from the sale of goods or services in
Vermont since 1999. It does not own, lease, or possess any
property in the state of Vermont, and has never paid any taxes
there. It does not maintain telephone listings, mailing
addresses, or bank accounts there. NECELAM has never employed
anyone in Vermont, is not licensed or authorized to do business
there, and does not maintain any registered agent there for the
service of process.
NECELAM is a wholly owned subsidiary of NEC Japan. NECELAM has
an extensive sales, representative, and distributor network that
serves customers throughout the United States. Any customer from
anywhere in the United States can purchase electronic components
from NECELAM online, although DRAM itself is not available for
sale online, and no online sales of any product have ever been
made by NECELAM to Vermont residents.
f. NEC Electronics Corp. ("NEC Japan").
NEC Japan is a Japanese corporation with headquarters and
principal place of business in Kanagawa, Japan. It was formed on
November 1, 2002. It does not own, lease, or possess any property
in the state of Vermont, does not regularly transact or solicit
substantial business with the state of Vermont, and does not
maintain any registered agent for the service of process there.
g. Winbond Electronics Corp. ("Winbond Taiwan").
Winbond Taiwan is a Taiwanese corporation with headquarters in
Hsinchu, Taiwan. It manufactures and sells DRAM in Taiwan. It
conducts no business in North Carolina, Tennessee, or Vermont,
and has never received any revenue from any of the three states.
It does not make any products using DRAM there nor does it
receive any income from sales of DRAM products in North Carolina,
Tennessee, or Vermont. Winbond Taiwan has no business license,
employees, sales representatives, or agents in those states, nor
does it have any property there. It maintains no addresses,
telephone numbers, or physical presence of any sort in those
states. It has never contracted for any goods or services there,
has never paid taxes there, and conducts no advertising or
Winbond Taiwan sells the DRAM it makes in Taiwan to its
subsidiary and sole US distributor, Winbond Electronics Corp.
America ("WECA"). Both companies share two directors on their
WECA, a Delaware corporation, in turn markets and sells Winbond
Taiwan's DRAM to others in the United States.
h. Winbond Electronics Corp. America ("WECA").
WECA is a Delaware corporation, with its headquarters in San
Jose, California. WECA conducts no business at all in the states
of Tennessee and Vermont, and has sold no DRAM in those states
from 1999 to the present. It does not sell any products or
services there or obtain products or services there, and it has
no business license or employees in those states. WECA maintains
no addresses, telephone numbers, or physical presence of any sort
there, and has never paid taxes there. WECA maintains a passive
internet site, but conducts no business through the internet with
any Tennessee or Vermont residents. WECA does not conduct
advertising or marketing for sales of any product in Tennessee
and Vermont, and receives no revenue from either state.
WECA is a wholly owned subsidiary of Winbond Taiwan. WECA and
Winbond Taiwan share two directors on their respective boards.
Otherwise, the two companies are separate entities that maintain their own books and day to day activities.
WECA has distributors that in turn service Vermont and
C. Legal Analysis
Plaintiffs contend that the above showing sufficiently
establishes specific jurisdiction. The Ninth Circuit applies a
three-part test to determine whether a defendant's activities are
sufficiently related to the forum state to establish specific
jurisdiction: (1) whether the defendant purposefully availed
itself of the privileges of conducting activities within the
forum state; (2) whether the underlying claims arise out of or
result from the defendant's forum-related conduct; and (3)
whether the exercise of personal jurisdiction would be
reasonable. See Glencore Grain Rotterdam B.V. v. Shivnath Rai
Harnarain Co., 284 F.3d 1114, 1123 (9th Cir. 2002).
1. Purposeful Availment
Even a cursory review of the facts here demonstrates that
insufficient minimum contacts exist to satisfy the "purposeful
availment" element of the Ninth Circuit test. This is because, in
view of defendants' affidavits and declarations (which plaintiffs
fail to controvert), plaintiffs can make no showing that
defendants have "performed [any] type of affirmative conduct
which allows or promotes the transaction of business within the
forum state[s]." Doe v. Unocal Corp., 248 F.3d 915, 924 (9th
Cir. 2001). Indeed, defendants' affidavits and declarations
affirmatively establish the opposite, and prove that defendants
have never availed themselves of the privileges of doing business
in any of the foreign states.
Despite this, plaintiffs argue that purposeful availment can be
shown under (1) the effects test, (2) the stream of commerce
theory, (3) the agency test, and (4) the conspiracy theory
doctrine. For the reasons explained below, plaintiffs' argument
fails as to each.
a. The Effects Test
Plaintiffs argue that minimum contacts are satisfied here
even though defendants have no physical contact with the forum
states under the `effects' test, first enunciated by the U.S.
Supreme Court in Calder v. Jones. See 465 U.S. 783 (1984).
Specifically, plaintiffs argue that under Calder, defendants'
alleged intentional participation in the underlying price-fixing conspiracy constitutes a foreign act that is both aimed at and
has effect in the forum states, such that the purposeful
availment prong is satisfied. See generally id.
Under the Ninth Circuit's interpretation of Calder, a
defendant meets the `effects' test if (1) the defendant has
committed an intentional act, which is (2) expressly aimed at the
forum state, and (3) causes harm, the brunt of which is suffered
and which the defendant knows is likely to be suffered in the
forum state. See Bancroft & Masters, Inc. v. Augusta Nat. Inc.,
223 F.3d 1082, 1087 (9th Cir. 2000). With respect to the "express
aiming" requirement in particular, the Ninth Circuit has held
that it is satisfied only when the defendant is alleged to have
engaged in wrongful conduct targeted at a plaintiff whom the
defendant knows to be a resident of the forum state. Id.
This test is not satisfied here. Although plaintiffs allege
that defendants have committed an intentional act by way of their
participation in a price-fixing conspiracy, plaintiffs fail to
allege that defendants' conspiratorial acts were individually
targeted towards any plaintiff whom defendants knew to be
residents of North Carolina, Tennessee, or Vermont. Nor can
plaintiffs do so, given the uncontroverted testimony offered by
defendants demonstrating that they have never manufactured nor
sold any DRAM in any of the forum states, nor do they maintain
any business or corporate formalities in the forum states, nor do
they receive any substantial revenue from the sale of DRAM (or
any other products) in the forum states. In short, nothing exists
here that can establish the wrongful targeting of a known forum
resident, as required by Ninth Circuit law. See also Cybersell,
Inc. v. Cybersell, Inc., 130 F.3d 414, 419-420 (9th Cir. 1997)
(describing similar fact pattern and holding no personal
jurisdiction exists under effects test).
Accordingly, jurisdiction cannot be conferred under the effects
b. Stream of Commerce
Plaintiffs next try to prove purposeful availment through the
stream of commerce theory. Under this theory, a nonresident
defendant's placement of a product into the stream of commerce,
with the expectation that the product will end up in the forum
state (and the product does injury in the forum state), suffices
to establish purposeful availment for purposes of the jurisdictional analysis. See World-Wide Volkswagen Corp. v.
Woodson, 444 U.S. 286 (1980); Asahi Metal Indus. Co., Ltd. v.
Superior Court, 480 U.S. 102, 112 (1987) (plurality opinion).
Mere placement into the stream of commerce, however, is not
enough. In Asahi, the Supreme Court held that additional
conduct on the defendant's part indicating an intent or purpose
to serve the market in the forum state, was required to establish
personal jurisdiction. Asahi, 480 U.S. at 112-13. While Asahi
was a plurality opinion, the Ninth Circuit has since adopted
similar reasoning, and held that defendant must have actually
known that a given product would reach a forum state, before the
stream of commerce theory will support an exercise of
jurisdiction. See, e.g., Terracom v. Valley Nat'l. Bank,
49 F.3d 555, 560-61 (9th Cir. 1995).
Here, plaintiffs' failure to offer any evidence that defendants
knew that DRAM products related to them would reach the forum
states prohibits application of the stream of commerce theory.
The best plaintiffs offer up in their opposition are several
website pages that indicate a general intent to serve the United
States market, or at the very most indicate the presence of
third party connections to the forum states. This is plainly
insufficient to overcome defendants' sworn testimony, which (1)
demonstrates only the barest of contacts with the forum states at
issue, and (2) expressly disclaims any and all attempts to
market, advertise, or sell any DRAM product to the forum states.
Accordingly, no purposeful availment can be found based on
stream of commerce.
c. Agency Test
Next, plaintiffs argue that purposeful availment, and therefore
personal jurisdiction, may be found upon closer look at the
parent/subsidiary relationships that the defendants have.
Specifically, plaintiffs argue that the foreign parent defendants
(all except for WECA, NECELAM, and Elpida USA, who are the
American subsidiary defendants) use their subsidiaries as agents,
such that the subsidiary agent's minimum contacts may be imputed
to the foreign parent defendants, and personal jurisdiction may
be exercised under the agency theory of jurisdiction. Preliminarily, the court notes that this argument presupposes
that the subsidiary defendants have sufficient minimum contacts
with the forum states, such that those contacts may confer
jurisdiction. As described here and elsewhere in this order,
however, this is simply not the case, particularly in view of
defendants' uncontroverted factual showing. Nonetheless, even
considering the merits of the agency test as plaintiffs purport
to apply it here, plaintiffs argument fails as described below.
The Ninth Circuit has held that the agency test is satisfied by
a showing that the subsidiary functions as the parent
corporation's representative in that it performs services that
are "sufficiently important to the foreign corporation that if it
did not have a representative to perform them, the corporation's
own officials would undertake to perform substantially similar
services." Doe v. Unocal Corp., 248 F.3d at 928. The essence of
this inquiry is whether, "in the truest sense, the subsidiaries'
presence substitutes for the presence of the parent" in the forum
state. Id. at 929. At an "irreducible minimum," the subsidiary
must "perform some service or engage in some meaningful activity
in the forum state on behalf of its principal." Id. at 930.
That cannot be said here. None of plaintiffs' evidence is
sufficient to refute defendants' sworn testimony demonstrating
that each foreign parent defendant who maintains an American
subsidiary also maintains an independent and separate existence,
controls its own day to day activities, controls its own books,
and maintains its own revenues.
Indeed, the only real evidence plaintiffs point to for support
is the fact that both HSI and HSA have two directors that overlap
on their boards, as do Winbond Taiwan and WECA. But a mere
overlap in directors is insufficient as a matter of law to prove
the type of parental control that approximates physical presence
in the forum state. See Doe, 248 F.3d at 926. As for the rest
of plaintiffs' purported proof, it consists only of vague
references on the foreign parent corporations' websites, in which
they allude to the generalized duties of their American
subsidiaries (e.g., WECA is responsible for marketing and selling
all Winbond products in the U.S., and Elpida USA is referred to
as one of Elpida Japan's "sales and marketing operations"). This
generalized proof is not enough to overcome defendants' sworn
testimony that none of the parent/subsidiary relationships among the
defendants should be viewed through the agency prism.
Accordingly, specific jurisdiction may not be premised on
d. Conspiracy Theory Doctrine
Finally, plaintiffs attempt to establish purposeful availment
by way of the conspiracy theory doctrine. Specifically,
plaintiffs argue that the allegedly criminal acts of defendants'
alleged co-conspirators (co-defendants in the underlying actions)
in the forum states are sufficient to impute jurisdiction to
defendants in the forum states.
The conspiracy theory doctrine is not a generally accepted
theory. There is a split among circuits between those who have
adopted it as a valid means of invoking personal jurisdiction,
and those who have rejected it. The Ninth Circuit has not
directly ruled on the merits of the theory, though it considered
it fairly recently, in Underwager v. Channel 9 Australia,
69 F.3d 361, 364 (9th Cir. 1995). Underwager, however, is of
limited value, as the Ninth Circuit refused to reach the merits
of the conspiracy theory, since no conspiracy allegations had
been made. Nonetheless, consideration of Ninth Circuit district
court case law argues in favor of rejecting this theory of
jurisdiction. See, e.g., Kipperman v. McCone, 422 F. Supp. 860,
873 n. 14 (N.D. Cal. 1976) ("[P]ersonal jurisdiction over any
non-resident individual must be premised upon forum-related acts
personally committed by the individual. Imputed conduct is a
connection too tenuous to warrant the exercise of personal
jurisdiction."). Moreover, it is at least somewhat persuasive
that in Piedmont Label Co. v. Sun Garden Packing Co.,
598 F.2d 491, 492 (9th Cir. 1979), the Ninth Circuit rejected an analogous
conspiracy theory to establish venue.
Accordingly, the court declines plaintiffs' invitation to adopt
the conspiracy theory of personal jurisdiction. Furthermore, not
only does the court believe that precedent warrants its
rejection, but plaintiffs' conspiracy allegations are
insufficient in that they are wholly conclusory. As defendants
pointed out in their papers and at the hearing, plaintiffs'
allegations in the underlying actions are overly generalized and
make almost no reference to specific or individualized
allegations of participation in the conspiracy on the part of
these defendants. Accordingly, no personal jurisdiction exists based on
plaintiffs' conspiracy allegations.
2. Arise out of, Relate to
Given that plaintiffs have failed to make a prima facie showing
that any minimum contacts exist under any theory it is not
possible for plaintiffs to satisfy the second requirement for
specific jurisdiction; there is no claim that can arise out of,
or relate to, non-existent contacts with the forum states at
issue. See, e.g., Glencore Grain, 284 F.3d at 1123.
The court need not consider this final requirement, given
plaintiffs' failure to establish the first two requirements for
specific jurisdiction. Even if it did, however, the court would
find that the exercise of jurisdiction over defendants here would
be unreasonable. Given the lack of defendants' minimum contacts
with the forum states, the majority of defendants' status as
foreign corporations (and the corresponding hardship to
defendants in litigating the underlying actions), and the
continuation of the underlying suit as to all other defendants in
the underlying cases, the balance of factors weighs in favor of a
finding that personal jurisdiction is not reasonable in this
instance. See, e.g., CE Distribution, LLC v. New Sensor Corp.,
380 F.3d 1107, 1112 (9th Cir. 2004) (setting forth factors to be
considered in assessing reasonableness).
Accordingly, and for all the reasons enumerated above, the
court finds that personal jurisdiction cannot be asserted over
the moving defendants.
II. Jurisdictional Discovery
A. Legal Standard
The court has discretion to order jurisdictional discovery.
Jurisdictional discovery "should be granted where pertinent facts
bearing on the question of jurisdiction are controverted . . . or
where a more satisfactory showing of the facts is necessary."
Wells Fargo & Co 13. v. Wells Fargo Express Co., 556 F.2d 406,
430 n. 24 (9th Cir. 1977). Where, however, a plaintiff's
claim of personal jurisdiction appears to be "attenuated and
based on bare allegations in the face of specific denials made by
defendants," the court need not permit even limited discovery.
See Terracom v. Valley Nat'l Bank, 49 F.3d at 562. B. Legal Analysis
Plaintiffs argue that they are entitled to jurisdictional
discovery as a matter of course prior to the grant of defendants'
motions to dismiss. Specifically, plaintiffs argued at the
hearing that they are entitled to test the credibility of
defendants' declarants and affiants, in order to determine
whether jurisdictional facts exist. Defendants, for their part,
argue that jurisdictional discovery is not to be had for the
taking. Rather, plaintiffs must first make some showing as to the
facts that plaintiff expects to uncover through jurisdictional
discovery something that plaintiffs have not done here.
Defendants are correct. Where, as here, plaintiffs have made no
showing that any sworn testimony presented by defendants is
disputed, and have not pointed out the existence of any facts
that, if shown, would warrant the exercise of personal
jurisdiction, the court is within its discretion to deny
discovery. See, e.g., Terracom v. Valley Nat'l Bank,
49 F.3d at 562. This court does so now.
Rutsky & Co. Insurance Services v. Bell & Clements, cited by
plaintiffs at the hearing on defendants' motions, does not change
this result. See 328 F.3d 1122 (9th Cir. 2003). In Rutsky,
although the appellate court reversed the district court's denial
of jurisdictional discovery, it did so because the record was not
sufficiently developed to enable the court to determine whether a
jurisdictional basis was met. That is not the case here.
For the reasons set forth above, the court hereby GRANTS
defendants' motions to dismiss plaintiffs' complaints as follows:
1. HSI, Nanya, and Winbond Taiwan's motions to
dismiss, as filed in Kaplan v. Micron et al., Case
No. C 05-2907 PJH, and Kongkham v. Micron et al.,
Case No. C 05-2013 PJH, are GRANTED. Plaintiffs'
complaints are dismissed with prejudice as to these
2. HSI, Nanya, Winbond Taiwan, and WECA's motions to
dismiss, as filed in Greene v. Elpida et al., Case
No. C 05-1884 PJH, Kinkade v. Micron et al., Case
No. C 05-1883 PJH, and Elias v. Micron et al., Case
No. C 05-475 PJH, are GRANTED. Plaintiffs' complaints are dismissed with
prejudice as to these defendants.
3. HSI, Elpida Japan, Elpida USA, NECELAM, NEC Japan,
Winbond Taiwan, and WECA's motions to dismiss, as
filed in Weisburgh v. Micron et al., Case No. C
05-1227 PJH, and Microprocessor Designs v. Micron et
al., Case No. C 05-2903 PJH, are GRANTED.
Plaintiffs' complaints are dismissed with prejudice
as to these defendants.
Plaintiffs' request for jurisdictional discovery is DENIED.
IT IS SO ORDERED.
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