United States District Court, N.D. California
ORDER ON MOTIONS TO DISMISS AND MOTION FOR
PRELIMINARY INJUNCTION RE: DKT. NOS. 12, 23, 35, 45
Haywood S. Gilliam, Jr. United States District Judge.
the Court are three motions: (1) Defendant Fast Choice
LLC's motion to dismiss for lack of personal jurisdiction
and based on forum non conveniens, Dkt. No. 12; (2)
Defendant Inspiring Trading Apps LLC's motion to dismiss
for lack of personal jurisdiction, improper service, and
failure to state a claim, Dkt. No. 35; and (3)
Plaintiff's motion for preliminary injunction, Dkt. No.
23. Because the Court finds that it does not have personal
jurisdiction over Defendants, the Court
GRANTS Defendants' motions to dismiss
and DENIES Plaintiff's motion for
Hungerstation LLC, Defendant Fast Choice LLC d/b/a Pace, and
Defendant Inspiring Trading Apps LLC d/b/a Swyft are all
limited liability companies formed under the laws of the
Kingdom of Saudi Arabia. Dkt. No. 1 (“Compl.”)
¶¶ 4-6. All parties have their principal place of
business in Saudi Arabia. Id.
is one of the leading online food delivery services in Saudi
Arabia. Id. ¶ 11. It developed three software
apps in connection with its food delivery service: (1) a
customer-facing app, on which customers can order food from
local restaurants; (2) a restaurant-facing app, which
restaurants use to accept customer orders; and (3) a
rider-facing app, which couriers use to pick up and deliver
the food. Id. ¶ 13. Plaintiff owns the source
code for all three apps and has registered the copyrighted
materials with the U.S. Copyright Office. Id. ¶
31. It “creates, stores, and updates its copyrighted
source code” on GitHub servers. Id. ¶ 32.
GitHub is a third party based in the United States with
servers in California, Washington, and Virginia. Id.
result of operating these apps and accumulating data over
time, Plaintiff has developed “valuable confidential
information, ” which includes customer databases,
restaurant databases, key contacts, and marketing strategies.
Id. ¶ 14. Its confidential data is stored on
Amazon Web Services, Inc. servers, which are in the United
States and controlled through Cloudflare, Inc. Id.
¶ 51. Cloudflare is also a U.S.-based company.
owns and operates a rider-facing food delivery mobile app,
and Swyft owns and operates a customer-facing food delivery
mobile app. Id. ¶¶ 16, 18. Swyft is a
direct competitor of Plaintiff. Id. ¶ 18.
According to the complaint, Pace and Swyft operate
financially as one entity and “should be treated as
alter egos of each other.” Id. ¶¶
issue here is the alleged unlawful theft of Plaintiff's
source code and confidential data. Plaintiff alleges that
Defendants “launched a plan to raid Hungerstation's
intellectual property for the benefit of Defendants, who were
direct competitors of Hungerstation.” Id.
¶ 43. Specifically, Defendants allegedly
“attempted to recruit or exploit key members of
Hungerstation's senior management team and software
development team to either join Defendants … or to
transfer confidential information to Defendants.”
Id. This purported scheme involved
“penetrating Hungerstation's computer servers in
the United States in order to steal Hungerstation's trade
secrets.” Id. ¶ 44. According to
Plaintiff, Defendants' employees used “their
then-valid Hungerstation credentials to wrongfully access,
copy, and steal Hungerstation's GitHub repositories of
copyrighted and proprietary source code, ” and
“accessed Hungerstation's confidential data”
stored on Amazon Web Services. Id. ¶¶ 46,
51. Defendants allegedly stored the “copycat source
code on GitHub's U.S. servers.” Id. ¶
then purportedly “contracted with California-based
Apple, Inc. and Google LLC, and transmitted executable files
created using the infringing source code to those companies
to be stored on their California-based servers, to distribute
Defendant's infringing apps to smart phone users across
the world.” Id. ¶ 50. According to
Plaintiff, Defendants “signed terms of services and/or
other contracts with Apple and Google … that
explicitly contained choice of law provisions stating that
California laws would govern the agreements.”
Id. At the time Plaintiff filed the complaint, the
apps were allegedly available for download in the United
States on Apple's AppStore and GooglePlay. Id.
on the allegations, Plaintiff brings six causes of action
against Defendants: (1) misappropriation of trade secrets
under the Defend Trade Secrets Act, 18 U.S.C. § 1836
et seq.; (2) misappropriation of trade secrets under
California Uniform Trade Secrets Act, Cal. Civ. Code §
3426 et seq.; (3) copyright infringement, 17 U.S.C.
§ 101 et seq.; (4) violation of Computer Fraud
and Abuse Act, 18 U.S.C. § 1030 et seq.; (5)
violation of California's Comprehensive Computer Data
Access and Fraud Act, Cal. Penal Code § 502(c); and (6)
unfair competition under Cal. Bus. and Prof. Code §
17200 et seq. Id. ¶¶ 67-117
MOTIONS TO DISMISS: PERSONAL JURISDICTION
personal jurisdiction is a threshold issue and relevant to
the likelihood of success factor of a preliminary injunction
analysis, the Court first considers whether it has
jurisdiction over the parties.
a defendant moves to dismiss for lack of personal
jurisdiction, the plaintiff bears the burden of demonstrating
that the court has jurisdiction over the defendant.”
Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1154 (9th
Cir. 2006). When personal jurisdiction is challenged,
“the district judge has considerable procedural leeway
in choosing a methodology for deciding the motion.” 5B
Charles A. Wright & Arthur R. Miller, Federal
Practice and Procedure § 1351 (3d ed. 2018). The
court may rest on the allegations in the pleadings, weigh the
contents of affidavits and other evidence, or even hold a
hearing and resort to oral testimony. Id. Where, as
here, the motion is based on written materials rather than an
evidentiary hearing, Plaintiff need only make a prima facie
showing of jurisdictional facts. Bauman v.
DaimlerChrysler, 579 F.3d 1088, 1094 (9th Cir. 2009),
vacated on other grounds, 603 F.3d 1141 (9th Cir.
2010) (citations omitted).
court “may not assume the truth of allegations in a
pleading which are contradicted by affidavit.”
CollegeSource, Inc. v. AcademyOne, Inc., 653 F.3d
1066, 1073 (9th Cir. 2011) (quotations omitted); see also
Amba Mktg. Sys., Inc. v. Jobar Int'l, Inc., 551 F.2d
784, 787 (9th Cir. 1977) (plaintiff “could not simply
rest on the bare allegations of its complaint, but rather was
obligated to come forward with facts, by affidavit or
otherwise, supporting personal jurisdiction”). But, the
court must resolve conflicts between the facts contained in
the parties' affidavits in plaintiff's favor.
Schwarzenegger v. Fred Martin Motor Co., 374 F.3d
797, 800 (9th Cir. 2004).
process limits a court's power to “render a valid
personal judgment against a nonresident defendant.”
See World-Wide Volkswagen Corp. v. Woodson, 444 U.S.
286, 291 (1980). Where a state authorizes “jurisdiction
on any basis not inconsistent with the Constitution of this
state or of the United States, ” as does California,
see Cal. Civ. Proc. Code § 410.10, federal
courts must determine whether the exercise of jurisdiction
over a defendant “comports with the limits imposed by
federal due process.” Daimler AG v. Bauman,
571 U.S. 117, 126 (2014); see also Mavrix Photo, Inc. v.
Brand Techs., Inc., 647 F.3d 1218, 1223 (9th Cir. 2011)
(“California's long-arm statute . . . is
coextensive with federal due process requirements, so the
jurisdictional analyses under state law and federal due
process are the same.”). Due process requires that a
nonresident defendant have sufficient “‘minimum
contacts' with the forum such that the assertion of
jurisdiction ‘does not offend traditional notions of
fair play and substantial justice.'” Pebble
Beach, 453 F.3d at 1155 (quoting Int'l Shoe Co.
v. Washington, 326 U.S. 310, 315 (1945)).
are two categories of traditional personal jurisdiction a
plaintiff can invoke: general and specific. Ranza v.
Nike, Inc., 793 F.3d 1059, 1068 (9th Cir. 2015).
“If the defendant's activities in the forum are
substantial, continuous and systematic, general jurisdiction
is available; in other words, the foreign defendant is
subject to suit even on matters unrelated to his or her
contacts to the forum.” Doe v. Unocal Corp.,
248 F.3d 915, 923 (9th Cir. 2001). The Supreme Court has held
that the “paradigm forums” for the exercise of
general jurisdiction are an individual's domicile and a
corporation's place of incorporation and principal place
of business. Goodyear Dunlop Tires Operations, S.A. v.
Brown, 564 U.S. 915, 924 (2011); see Daimler,
571 U.S. at 134. This is in contrast to specific
jurisdiction, which “exists when a case arises out of
or relates to the defendant's contacts with the
forum.” Ranza, 793 F.3d at 1068 ...