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Gemini Bioproducts, Inc. v. Serum Source International, Inc.

United States District Court, E.D. California

April 2, 2018

GEMINI BIOPRODUCTS, INC., a California Corporation, Plaintiff,
SERUM SOURCE INTERNATIONAL, INC., a North Carolina corporation; and DOES 1-50, Inclusive, Defendants.



         In this 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 prejudice.[1]


         Gemini 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.

         Since 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.

         Gemini 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.

         In 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.

         Gemini 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.

         II. OPINION

         A. Personal Jurisdiction

         When a 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).

         There 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).

         B. Discussion

         1. Genera ...

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