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November 7, 2005.

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

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 DENIED.


  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 transferor circuit").

  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 as follows:
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 there.

  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, ...

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