ORDER DENYING KIK INTERACTIVE, INC.'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION
JON S. TIGAR, District Judge.
Before the Court is Defendant Kik Interactive, Inc.'s ("Kik") Motion to Dismiss for Lack of Personal Jurisdiction, ECF No. 366. The Court will deny the motion.
I. FACTUAL BACKGROUND
This action was filed in the Western District of Texas on March 12, 2012, by Plaintiff Marc Opperman and others against Defendant Path, Inc. and sixteen other corporate Defendants, including Kik. On October 12, 2012, Kik moved to dismiss for lack of personal jurisdiction in the Western District of Texas. ECF No. 141. On the same day, several Defendants moved to dismiss the action or, alternatively, to transfer the action to the Northern District of California pursuant to 28 U.S.C. § 1404. ECF No. 124. Footnote 1 of that motion states: "Kik has separately filed a motion to dismiss for lack of personal jurisdiction. Kik joins this motion only in the event that the Court denies its motion to dismiss for lack of personal jurisdiction." Id. at 1 n.1.
The Texas court ordered the case transferred on January 15, 2013. ECF Nos 217, 218. In its memorandum opinion, the court "dismissed without prejudice" several motions to dismiss, including Kik's. ECF No. 217 at 8. The court also found that all Defendants are subject to personal jurisdiction in the Northern District of California, in part because the App Store "is the nexus of the allegations in this case, " and Apple is located here. Id. at 6.
Plaintiffs' claims arise out of the distribution of applications ("apps") by the App Developer Defendants, including Kik, that Plaintiffs allege secretly uploaded and disseminated user information from the devices on which they were installed. CACAO ¶ 7. Plaintiffs downloaded the apps from Defendant Apple, Inc.'s App Store. Id . Apple also manufactures the iPhones and i Pads on which the apps were instal led. The operative Consolidated Amended Class Action Complaint ("CACAO"), ECF No. 362, filed September 3, 2013, groups the claims asserted in the Opperman action with those asserted in three related cases, none of which name Kik as a Defendant.
The only named Plaintiffs who are alleged to have downloaded Kik's app reside in Virginia and Arkansas. Kik is a Canadian corporation headquartered in Waterloo, Ontario. Plaintiffs do not allege that Kik has a physical presence in California, but, relying on the Texas court's transfer order, argue that this Court has personal jurisdiction over Kik by virtue of the role Apple played in the design and distribution of Kik's app.
II. LEGAL STANDARD
Where a defendant objects to the Court's personal jurisdiction over it pursuant to Federal Rule of Civil Procedure 12(b)(2), the plaintiff bears the burden of establishing that jurisdiction is proper. Boschetto v. Hansing , 539 F.3d 1011, 1015 (9th Cir. 2008). Uncontroverted allegations in the plaintiff's complaint must betaken as true. Id . "Conflicts between the parties over statements contained in affidavits must be resolved in the plaintiffs favor." Schwarzenedger v. Fred Martin Motor Co. , 374 F.3d 797, 800 (9th Cir. 2004).
In response to Kik's motion to dismiss, Plaintiffs make three arguments as to why this Court has personal jurisdiction over Kik: (1) that Kik waived its right to object to this Court's exercise of personal jurisdiction; (2) that the law-of-the-case doctrine precludes this Court from deciding the question; and (3) that traditional personal jurisdiction principles support a finding of specific personal jurisdiction based on Kik's minimum contacts with this district.
A. Waiver and Consent
Plaintiffs argue that Kik "waived" its right to object to this Court's personal jurisdiction by seeking transfer of the case to this Court. Pursuant to Federal Rule of Civil Procedure Rule 12(g)(2), a party that makes a Rule 12 motion to dismiss "must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion, " subject to the limitations set forth in Rule 12(h). Rule 12(h)(1) applies the waiver rule to Rule 12(b)(2) motions to dismiss for lack of personal jurisdiction, such as Kik's motion here. Thus, for Kik to have waived its objection to this Court's jurisdiction, the objection must have been available to Kik at the time that it made a prior Rule 12 motion.
The only prior Rule 12 motion Kik filed was a motion to dismiss for lack of personal jurisdiction in the Western District of Texas. At that time, an objection to this Court's personal jurisdiction was not available to Kik, as the race had not yet been ...