United States District Court, S.D. California
CRITICAL CARE DIAGNOSTICS, INC., dba CRITICAL CARE DIAGNOSTICS, Plaintiff,
AMERICAN ASSOCIATION FOR CLINICAL CHEMISTRY, INC., et al. Defendants.
ORDER GRANTING DEFENDANTS' REQUEST FOR JUDICIAL NOTICE, GRANTING DEFENDANTS' MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION [doc. #19]; DENYING AS MOOT MOTION TO DISMISS UNDER RULE 12(b)(6) and DENYING AS MOOT MOTION TO STRIKE [doc. #38]
M. JAMES LORENZ, District Judge.
Defendants Lu Q. Chen ("Chen"), James A. de Lemos (de Lemos"), Sandeep R. Das ("Das"), Colby R. Ayers ("Ayers") and Anand Rohatgi ("Rohatgi") (collectively "Author Defendants") move to dismiss Plaintiff's Complaint for lack of personal jurisdiction, or alternatively, for failure to state a claim. In connection with their Motion, Author Defendants request judicial notice. (RJN [Doc 19-5].) This Motion has been fully briefed and is considered without oral argument.
For the following reasons, the Court GRANTS Author Defendants' Request for Judicial Notice, and GRANTS Author Defendants' Motion to Dismiss for Lack of Personal Jurisdiction.
Plaintiff is a Delaware corporation with its principal place of business in San Diego, California. (Compl. ¶ 1 [Doc 1].) Plaintiff is a biomarker company, focused on cardiovascular diseases, and holds several patents surrounding the ST2 protein in the field of cardiac biomarkers and their use in heart failure as well as primary disease prevention. ( Id. ¶ 15.) Plaintiff produces the Presage® ST2 Assay ("Presage Assay"), which is used to measure the level of ST2 protein in the blood in order to predict complications associated with cardiovascular disease. ( Id. ¶¶ 16-17.) The Presage Assay is the only FDA-cleared ST2 assay, and therefore, the only commercially marketed ST2 assay for clinical use as a cardiac biomarker. ( Id. ¶ 18.) Alere, Inc. ("Alere"), another biomarker company, has also developed an ST2 assay ("Alere ST2 Assay"), which is not FDA cleared or commercially available. ( Id. ¶ 19.)
Author Defendants each worked on research for the Dallas Heart Study during the period relevant to this lawsuit. (Ayers Decl. ¶ 3 [Doc. 19-2]; Chen Decl. ¶ 5 [Doc. 19-3]; Das Decl. ¶ 4 [Doc. 19-4]; de Lemos Decl. ¶ 2 [Doc. 40-2]; Rohatgi Decl. ¶ 4 [Doc. 20-1].) Together, Author Defendants wrote an article titled "Soluble ST2 Is Associated with All-Cause and Cardiovascular Mortality in a Population-Based Cohort: The Dallas Heart Study, " ("Article"). (Compl. ¶¶ 28, 29, 30.) The Article evaluated the use of ST2 as a cardiac biomarker in the general population. ( See Id. ¶ 37.) Although Author Defendants performed their analysis and wrote the Article in Texas, the underlying testing to generate the data for the analysis was provided by Alere, in San Diego, California, using the Alere ST2 Assay. ( Id. ¶ 36; Opp'n 7 [Doc 47].)
In December 2012 and March 2013, the Article was published online and in print, respectively, in CLINICAL CHEMISTRY, a peer-reviewed journal ("the Journal"). (Compl. ¶ 28.) The Article contains a single reference to the Presage Assay, and two other statements which Plaintiff alleges are false statements of fact. ( Id. ¶¶ 37-44.)
On April 22, 2013, Plaintiff initiated this action in the Superior Court for the State of California, County of San Diego. In its Complaint, Plaintiff alleges four causes of action: (1) Libel Per Se; (2) Libel Per Quod; (3) Trade Libel; and (4) Unlawful, Fraudulent, and/or Unfair Business Practices. On June 5, 2013, Author Defendants removed the action to this Court.
On June 22, 2013, Author Defendants filed a Motion to Dismiss for Lack of Personal Jurisdiction under Federal Rule of Civil Procedure 12(b)(2), or alternatively, to Dismiss for Failure to State a Claim under Federal Rule of Civil Procedure 12(b)(6). In connection with the Motion, Author Defendants also filed a Request for Judicial Notice of seven exhibits. (RJN.) Plaintiff opposes the Motions to Dismiss, and opposes judicial notice of all but one of the requested exhibits, to the extent that Defendants offer such exhibits for the truth of contents contained therein.
II. LEGAL STANDARD
Under Rule 12(b)(2), a court may dismiss a suit for "lack of jurisdiction over the person." FED. R. CIV. P. 12(b)(2). When the parties dispute whether personal jurisdiction over a foreign defendant is proper, "the plaintiff bears the burden of establishing that jurisdiction exists." Rios Props. Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002). In ruling on a motion brought under 12(b)(2), the "court may consider evidence presented in affidavits to assist in its determination and may order discovery on the jurisdictional issues." Doe v. Unocal Corp., 248 F.3d 915, 922 (9th Cir. 2001). Where the motion is based on written materials rather than an evidentiary hearing, the plaintiff need only make "a prima facie showing of jurisdictional facts to withstand the motion to dismiss." Bryton Purcell LLP v. Recordon & Recordon, 575 F.3d 981, 985 (9th Cir. 2009). "In determining whether the plaintiff has met this burden, the Court must take the allegations in the plaintiff's complaint as true and resolve the disputed jurisdictional facts in the plaintiff's favor." Nissan Motor Co., Ltd. v. Nissan Computer Corp., 89 F.Supp.2d 1154, 1158 (C.D. Cal. 2000) (citing Ziegler v. Indian River Cnty., 64 F.3d 470, 473 (9th Cir. 1995)). A prima facie showing means that "the plaintiff need only demonstrate facts that if true would support jurisdiction over the defendant." Unocal, 248 F.3d at 922.
A. Judicial Notice
In support of their Motions to Dismiss, Author Defendants ask the Court to take judicial notice pursuant to Federal Rule of Evidence 201(b)(2) of seven ...