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Durward v. One Technologies LLC

United States District Court, C.D. California

October 3, 2019

Julia G. Durward
One Technologies LLC, et al .

          Attorneys Present for Plaintiffs: Ju-In Daniel Jung Thomas V. Anderson

          Attorneys Present for Defendants: Witt W. Chang Ari N. Rothman

          Present: The Honorable GEORGE H. WU, UNITED STATES DISTRICT JUDGE



         The Court's Tentative Ruling is circulated and attached hereto. Court hears oral argument. For reasons stated on the record, the Motions are TAKEN UNDER SUBMISSION. Court to issue ruling.

         The scheduling conference is taken off-calendar.

         I. Background

         Plaintiff Julia Durward sues Defendants One Technologies LLC (“OneTech”) and Does 1-50 inclusive for violations of the California Business and Professions Code §§ 17529.5(a)(1) and 17529.5(a)(2) arising from unsolicited emails. See generally Complaint, Docket No. 1-1. Plaintiff seeks statutory damages of $1, 000 per email, attorneys' fees, and costs. Id. ¶ 5.

         Plaintiff alleges the following: Plaintiff is an individual residing in Los Angeles County, in California. Id. ¶ 7. OneTech is a Delaware limited liability company headquartered in Dallas, Texas. Id. ¶ 8. OneTech, which owns and operates several websites, engages numerous third party affiliates (the “advertising affiliates”) to advertise for OneTech. Id. ¶ 3-4. Defendants or their agents sent at least 90 allegedly unlawful Unsolicited Commercial Emails (“spams”) to Plaintiff. Id. ¶ 1. OneTech's agents used self-destructing emails to hide both their and OneTech's identities in order to avoid liability for their illegal activities. Id. ¶ 2. The advertising affiliates send millions of unlawful commercial emails to recipients that did not give consent to receive them. Id. ¶ 4. Many of the emails include false and/or misrepresented headers, such as “from” names and email addresses that misrepresent or hide the identity of the sender. Id. ¶ 4. Defendants' emails were designed to trick recipients into opening them. Id. ¶ 23. Many of the emails contain remote-hosted images, which Defendants' agents used to “essentially self-destruct the emails after a short period of time, so as to prevent people from making complaints about Defendants and their agents.” Id. ¶ 26-28. At least 15 of the emails contain third-party domain names belonging to Walmart, Netflix, Ebay, Aliexpress, and Craigslist. Id. ¶ 30. The domain names were used without the permission of those entities. Id. ¶ 30. Plaintiff received the complained-of emails in a computer located within Los Angeles County. Id. ¶ 9.

         Plaintiff brought suit in Los Angeles Superior Court, and Defendants removed to this Court. See generally Notice of Removal, Docket No. 1. Defendants filed a Motion to Dismiss for lack of personal jurisdiction under Fed.R.Civ.P. 12(b)(2). See generally Motion to Dismiss (“MTD”), Docket No. 9. Plaintiff opposed, see Opposition to Motion to Dismiss (“MTD Opp'n”), Docket No. 19, and Defendant replied, see Reply in support of Motion to Dismiss (“MTD Reply”), Docket No. 21. Plaintiff filed a Motion to Remand for “lack of Article III standing.” See Motion to Remand (“MTR”), Docket No. 17. Defendant opposed, see Opposition to Motion to Remand (“MTR Opp'n”), Docket No. 18, and Plaintiff replied, see Reply to Defendant's Opposition to Notice to Remand (“MTR Reply”), Docket No. 25.

         II. Legal Standard

         A. Federal Rule of Civil Procedure 12(b)(2)

         Federal Rule of Civil Procedure (“Rule”) 12(b)(2) allows a court to dismiss a matter for “lack of jurisdiction over the person.” When a defendant moves to dismiss for lack of personal jurisdiction, the burden shifts to the plaintiff to establish the court's personal jurisdiction over the defendant. See Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1154 (9th Cir. 2006); Harris Rutsky & Co. Ins. Servs. v. Bell & Clements Ltd., 328 F.3d 1122, 1128-29 (9th Cir. 2003). The plaintiff may meet this burden by making a “prima facie showing of jurisdictional facts.” Pebble Beach, 453 F.3d at 1154. “Where not directly controverted, plaintiff's version of the facts is taken as true for the purposes of a 12(b)(2) motion to dismiss.” Doe v. Unocal Corp., 248 F.3d 915, 922 (9th Cir. 2001). “[C]onflicts between the facts contained in the parties' affidavits must be resolved in [the defendant's] favor for purposes of deciding whether a prima facie case for personal jurisdiction exists.” AT&T v. Compagnie Bruxelles Lambert, 94 F.3d 586, 588 (9th Cir. 1996) (quoting WNS, Inc. v. Farrow, 884 F.2d 200, 203 (5th Cir. 1989)).

         Where there is no applicable federal statute governing personal jurisdiction, the district court applies the law of the state in which the district court sits. SEC v. Ross, 504 F.3d 1130, 1138 (9th Cir. 2007). California permits “[a] court of [the] state [to] exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States.” Cal. Civ. Proc. C. § 410.10; Fireman's Fund Ins. Co. v. National Bank of Cooperatives, 103 F.3d 888, 893 (9th Cir. 1996) see also Sher v. Johnson, 911 F.2d 1357, 1361 (9th Cir. 1990) (California's statutory limitation is “coextensive with the outer limits of due process under the state and federal constitutions, as those limits have been defined by the United States Supreme Court”). A court may exercise personal jurisdiction over a nonresident defendant consistently with due process only so long as there exist “minimum contacts” between the defendant and the forum, such that maintenance of the suit “does not offend traditional notions of fair play and substantial justice.” Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (citations and quotations omitted).

         Personal jurisdiction may be either general or specific. See Helicopteros Nacionales De Colombia, S.A. v. Hall, 466 U.S. 408, 41, nn. 8 & 9 (1984). A defendant is present “generally” in the forum when its activities in the state are “substantial” or “continuous and systematic.” Sher 911 F.2d at 1361. Where general jurisdiction does not exist, the Ninth Circuit has established a three-factor test to evaluate whether the court may exercise specific jurisdiction over a defendant:

(1) The nonresident defendant must do some act or consummate some transaction with the forum state or perform some act by which it purposefully avails itself of the privilege of conducting activities in the forum state, thereby invoking the benefits and protections of its laws;
(2) the claim must arise out of or result from the defendant's forum-related activity; and/or
(3) the exercise of jurisdiction must be reasonable.

Ochoa v. J.B. Martin & Sons Farms, Inc., 287 F.3d 1182, 1188 (9th Cir. 2002) (footnote omitted). The first prong of the test may be satisfied by showing that a defendant either purposefully availed itself of the privilege of conducting activities in California, or purposefully directed its activities toward California. See Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 2004). The Ninth Circuit further explained this standard in Axiom Foods, Inc. v. Acerchem Int'l, Inc., 874 F.3d 1064 (9th Cir. 2017):

“The inquiry whether a forum State may assert specific jurisdiction over a nonresident defendant ‘focuses on the relationship among the defendant, the forum, and the litigation.'” Walden, 134 S.Ct. at 1121 (quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 775, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984)) (internal quotation marks omitted). Specifically, “the defendant's suit-related conduct must create a substantial connection with the forum State.” Id. Our “primary concern” is “the burden on the defendant.” Bristol-Myers Squibb Co. v. Superior Court, 1 ...

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