United States District Court, E.D. California
ORDER GRANTING SERUM SOURCE INTERNATIONAL, INC.'S
MOTION TO DISMISS
A. MENDEZ, UNITED STATES DISTRICT JUDGE
action, Plaintiff, Gemini Bioproducts, Inc.
(“Gemini” or “Plaintiff”) claims it
bought a bad shipment of Fetal Bovine Serum
(“FBS”) for $209, 912.95 from Defendant Serum
Source, International (“SSI” or
“Defendant”). First Amended Compl.
(“FAC”), ECF No. 13, ¶¶ 13-15. SSI
rejected Gemini's request for a refund. FAC, ¶¶
16-20. As a result, Gemini filed its Complaint against
Defendant. See generally FAC. In November 2017, this
Court granted Defendant's previous motion to dismiss,
without prejudice, for lack of personal jurisdiction. Order,
ECF No. 12. Plaintiff filed its FAC in December and Defendant
again moves to dismiss for lack of personal jurisdiction.
Mot, ECF No. 16; Mem., ECF No. 16-1. Plaintiff opposes. Opp.,
ECF No. 17. For the reasons explained below, the Court grants
Defendant's motion-this time with
FACTUAL AND PROCEDURAL BACKGROUND
is a California corporation headquartered in West Sacramento.
Decl. of Bertram J. Polan In Support of Opp. (“Polan
Decl.”), ECF No. 9-2, ¶ 3. It manufactures and
sells cell culture sera like FBS. Id., ¶ 4. SSI
is a North Carolina corporation with its headquarters in
Charlotte. Decl. of Jonathan Jacobs In Support of Mot., ECF
No. 6-3, ¶ 2. SSI has done business with Gemini and at
least four other businesses in California that are not
parties to this litigation. Polan Decl., ¶¶ 7-8.
2006, Gemini has purchased 46 lots of FBS from SSI. FAC,
¶ 10. In February 2016, Gemini bought 967 bottles of FBS
from SSI for $209, 912.95. See id., ¶ 13. The
invoice consummating this transaction includes an
attorneys' fees provision and a return policy and
warranty by SSI. Id., ¶¶ 16, 22.
received the bottles of FBS a couple of weeks later. See
id. But when Gemini marketed the bottles to its
customers, they complained about cells dying or growing very
slowly in the FBS. See id., ¶¶ 14-15. In
over 30 years of being in business, this was the first time
Gemini did not have a 100% rate of acceptance of FBS.
Id., ¶ 14.
September 2016, Gemini complained to SSI that the FBS it
bought in February was not of the quality that SSI
represented or that was standard for the industry. FAC,
¶ 17. SSI told Gemini it was trying to resolve the
problem with the manufacturer but also reminded Gemini that
it knew the quality of the FBS it was buying. See
id., ¶ 19. Now Gemini wants a full refund and has
sued SSI on the following claims: (1) breach of contract; (2)
breach of the implied covenant of good faith and fair
dealing; (3) open book account; and (4) unfair competition.
See generally FAC.
filed suit in the Superior Court of California, County of
Yolo, on June 19, 2017, and served SSI a week later. Notice
of Removal, ECF No. 1. The case was removed to federal court
a month after SSI received the complaint, on the basis of
diversity jurisdiction and the amount in controversy being
more than $75, 000. See Notice of Removal at 2-3.
defendant moves to dismiss for lack of personal jurisdiction,
the plaintiff must make a prima facie showing that the court
has jurisdiction over the defendant. Pebble Beach Co. v.
Caddy, 453 F.3d 1151, 1154 (9th Cir. 2006). Still, a
plaintiff cannot simply rest on the bare allegations of the
complaint. Ranza v. Nike, Inc., 793 F.3d 1059, 1068
(9th Cir. 2015). In making its prima facie showing, the
plaintiff can offer affidavits that the Court can choose to
consider. Data Disc, Inc. v. Sys. Tech. Assocs., 557
F.2d 1280, 1285 (9th Cir. 1977).
are two types of personal jurisdiction: general and specific.
Goodyear Dunlop Tires Operations, S.A. v. Brown, 564
U.S. 915, 919-20 (2011) (internal citation omitted). General
jurisdiction lies where a foreign corporation's
affiliations with the forum state are sufficiently continuous
and systematic to render them at home in the forum state.
Goodyear, 564 U.S. at 919-20. A court may have
general jurisdiction over a defendant even when the claims at
issue are distinct from the defendant's activities in
that forum. Id. Specific jurisdiction lies where the
defendant has established minimum contacts with the forum
state and the dispute arises from those contacting activities
with the forum state. Yahoo! Inc. v. La Ligue Contre Le
Racisme Et L'Antisemitisme, 433 F.3d 1199, 1204-05
(9th Cir. 2006).