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Fluidigm Corp. v. Biomerieux, SA

United States District Court, N.D. California, San Jose Division

December 5, 2019

BIOMERIEUX, SA, Defendant.


          LUCY H. KOH United States District Judge

         bioMérieux 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.

         I. BACKGROUND

         A. Factual Background

         Plaintiff, 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.

         Defendant 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.

         Instead, 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.

         B. Procedural History

         On May 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”).


         In the 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 12(b)(2).

         A. Motion to Dismiss under Rule 12(b)(2)

         In a 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 Cir. 2011).

         B. ...

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