United States District Court, N.D. California, San Jose Division
ORDER GRANTING MOTION TO DISMISS FOR LACK OF PERSONAL
JURISDICTION WITH LEAVE TO AMEND RE: DKT. NO. 21
H. KOH United States District Judge
SA (“Defendant”) moves to dismiss Fluidigm's
(“Plaintiff”) complaint for patent infringement
of U.S. Patent No. 10, 131, 934 (the “'934
Patent”). Having considered the parties'
submissions, the relevant law, and the record in this case,
the Court hereby GRANTS Defendant's motion to dismiss
with leave to amend.
a Delaware corporation with its principal place of business
in San Francisco, California, owns the '934 Patent,
issued on November 20, 2018. ECF No. 1 ¶¶ 2, 12
(“Compl.”). The inventions claimed in the
'934 Patent broadly “pertain to methods for
carrying out nucleic amplification reactions and detecting
polynucleotide sequences.” Id. ¶ 15.
Plaintiff contends that Defendant “markets, makes,
uses, sells, offers to sell, and induces and contributes to
the use of the Infringing Instrumentalities.”
Id. ¶ 16. The “Infringing
Instrumentalities” relate to BioFire FilmArray system.
Id. ¶¶ 16-18. Plaintiff alleges that
Defendant made the BioFire FilmArray system available in the
United States, and that Defendant reported financial results
that incorporated revenues related to “FilmArray
sales.” ECF No. 1-2; ECF No. 1-3 (“For the year,
the firm's FilmArray sales contributed €483 million
in revenues, and the Americas region contributed revenues of
€1.1 billion, up 6 percent from €1.0 million in
2017.”). Finally, Plaintiff alleges that Defendant
participated in the Southern California American Society for
Microbiology Annual Meeting in 2016, ECF No. 1-5, and that
Defendant “directs its activities toward residents of
[California], by partnering with and even acquiring companies
[here], ” Compl. ¶ 9.
bioMérieux SA is a foreign corporation, formed under
the laws of France, with headquarters at F-69280 Marcy
l'Etoile, France. Id. ¶ 3; ECF No. 21-1
¶ 4 (“Aelbrecht Decl.”). Defendant submitted
a declaration from Nadia Aelbrecht, bioMérieux
SA's FilmArray Business Director for Europe, the Middle
East and Africa. Aelbrecht Decl. ¶ 1. Aelbrecht stated
that Defendant does not have a physical corporate presence in
the United States, and Defendant does not make, use, offer to
sell, or sell within the United States, or import into the
United States, the BioFire FilmArray system. Id.
¶¶ 5, 9-10. Indeed, in the United States, Defendant
has no customers for the FilmArray system or any associated
products. Id. ¶ 10.
BioFire Diagnostics, LLC (“BioFire”), designed,
developed, manufactures, and sells the FilmArray system and
associated products in the United States. Id.
¶¶ 11, 13. BioFire is a wholly owned subsidiary of
Defendant with headquarters in Salt Lake City, Utah, and is a
separate legal entity from Defendant, with its own separate
management, board of directors, and accounting system.
Id. ¶¶ 6-8. Plaintiff's own exhibit, a
FilmArray instruction booklet, directs U.S. customers to
contact BioFire for customer and technical support, whereas
customers outside the United States are to contact a
“local bioMérieux sales representative or an
authorized distributor for technical support.” ECF No.
1-11 at 3.
17, 2019, Plaintiff filed a complaint against Defendant that
alleged Defendant directly infringed the '934 Patent and
was liable for induced and contributory infringement. Compl.
¶¶ 29-32. On August 15, 2019, Defendant filed a
motion to dismiss along with a supporting affidavit. ECF No.
21 (“Mot.”); ECF No. 21-1 (“Aelbrecht
Decl.”). On September 20, 2019, Plaintiff filed an
opposition, but did not file any supporting affidavits. ECF
No. 28 (“Opp.”). On October 7, 2019, Defendant
filed a reply. ECF No. 29 (“Reply”).
instant motion, Defendant raises three arguments for
dismissing Plaintiff's Complaint: (1) lack of personal
jurisdiction, under Rule 12(b)(2); (2) improper venue, under
Rule 12(b)(3); and (3) failure to state a claim, under Rule
12(b)(6). Because the Court resolves the instant motion by
addressing only personal jurisdiction, the Court confines its
review of the applicable legal standards to those under Rule
Motion to Dismiss under Rule 12(b)(2)
motion challenging personal jurisdiction under Federal Rule
of Civil Procedure 12(b)(2), the plaintiff, as the party
seeking to invoke the jurisdiction of the federal court, has
the burden of establishing that jurisdiction exists. See
Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797,
800 (9th Cir. 2004). Courts may consider declarations and
other evidence outside the pleadings in determining whether
it has personal jurisdiction. Doe v. Unocal Corp.,
248 F.3d 915, 922 (9th Cir. 2001) (“The court may
consider evidence presented in affidavits to assist it in its
determination and may order discovery on the jurisdictional
issues.”). “Where, as here, the defendant's
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.” Ranza v. Nike, Inc., 793 F.3d
1059, 1068 (9th Cir. 2015) (quotation marks omitted). At this
stage of the proceeding, “uncontroverted allegations in
plaintiff's complaint must be taken as true, and
conflicts between the facts contained in the parties'
affidavits must be resolved in plaintiff's favor.”
Brayton Purcell LLP v. Recordon & Recordon, 606
F.3d 1124, 1127 (9th Cir. 2010) (internal quotation marks,
citations, and alterations omitted). Courts, however,
“may not assume the truth of allegations in a pleading
which are contradicted by affidavit.” Mavrix Photo,
Inc. v. Brand Techs., Inc., 647 F.3d 1218, 1223 (9th