FPK Services LLC v. Does ( 2020 )

1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 FPK SERVICES LLC D/B/A Case No.: 20-CV-6141 YGR HEALTHLABS.COM, ET AL.; 7 ORDER DENYING PLAINTIFFS’ RENEWED Plaintiffs, EX PARTE MOTION FOR LEAVE TO TAKE 8 EXPEDITED DISCOVERY; v. 9 ORDER TO SHOW CAUSE RE: DISMISSAL FOR JOHN DOES 1-10, LACK OF JURISDICTION 10 Defendants. DKT. NO. 12 11 12 Plaintiffs FPK Services, LLC dba HealthLabs.com, et al., bring this renewed motion ex 13 parte seeking leave to take expedited discovery after having filed an amended complaint. The 14 Court has considered the renewed motion, supporting documents, and amended pleading in this 15 action, and DENIES the motion for the reasons stated herein. 16 Relatedly, and for the same reasons set forth below, plaintiffs FPK Services LLC D/B/A 17 Healthlabs.Com; Fiyyaz Pirani ;Mahvish Linares; and Travis Davis are hereby ORDERED TO 18 SHOW CAUSE why this action should not be dismissed for lack of personal jurisdiction. 19 Plaintiffs contend that this court has personal jurisdiction over the unnamed Doe defendant 20 based on the following alleged specific contacts with California: (1) Doe 1 directed activities 21 toward this Judicial District through the use of TextNow, and TextNow’s “computers and servers 22 located in this District” (First Amended Complaint, Dkt. No. 11, ¶ 8); and (2) Doe 1 unlawfully 23 accessed and used plaintiff HealthLabs.com’s computers, servers and/or data storage facilities 24 located in this Judicial District in order to obtain the cellular phone numbers to send the harassing 25 texts. (Id. ¶ 9.) In other words, plaintiffs argue that minimum contacts with a California forum are 26 established because defendant: (1) wrongfully accessed a non-California resident plaintiff’s servers 27 in California, and (2) contacted plaintiffs by using an internet-based message transmission system 28 1 operated by a non-party company based in California. Plaintiffs offer no authority for either novel 2 theory, nor do they appear to state a colorable basis for personal jurisdiction. 3 In the absence of an applicable federal statute concerning personal jurisdiction, the district 4 court applies the law of the state in which it sits. Schwarzenegger v. Fred Martin Motor Co., 374 5 F.3d 797, 800–01 (9th Cir. 2004); Fed.R.Civ.P. 4(k)(1)(A). “Because California’s long-arm 6 jurisdictional statute is coextensive with federal due process requirements, the jurisdictional 7 analyses under state law and federal due process are the same.” Id. 8 “[F]or a court to exercise specific jurisdiction over a claim, there must be an ‘affiliation 9 between the forum and the underlying controversy, principally, [an] activity or an occurrence that 10 takes place in the forum State.’” Bristol-Myers Squibb Co. v. Superior Court, 137 S.Ct. 1773, 1781 11 (2017) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)). 12 The Ninth Circuit applies a three-part test to determine whether a court has specific jurisdiction 13 over a defendant: (1) The non-resident defendant must purposefully direct his activities or 14 consummate some transaction with the forum or resident thereof; or perform some act by which he 15 purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking 16 the benefits and protections of its laws; (2) the plaintiff's claim must be one which arises out of or 17 relates to the defendant's forum-related activities; and (3) the exercise of jurisdiction must comport 18 with fair play and substantial justice, i.e., it must be reasonable. Axiom Foods, Inc. v. Acerchem 19 Int'l, Inc., 874 F.3d 1064, 1068 (9th Cir. 2017). To determine whether a defendant purposefully 20 directed its tortious activity toward the forum state, a court must apply the “effects test” from 21 Calder v. Jones, 465 U.S. 783 (1984). Id. This test examines whether: (1) the defendant committed 22 an intentional act; (2) the act was expressly aimed at the forum state; and (3) the act caused harm 23 the defendant knew would likely be suffered in the forum state. Id. 24 Here, plaintiffs’ allegations that defendant improperly accessed HealthLabs.com’s computer 25 servers located in this district do not state, on their face, purposeful direction of the alleged 26 activities to a California forum. “[T]he mere fact that [a defendant’s] conduct affected plaintiffs 27 with connections to the forum State does not suffice to authorize jurisdiction.” Walden v. Fiore, 28 571 U.S. 277, 291 (2014). “Such reasoning improperly attributes a plaintiff’s forum connections to 1 the defendant. . . . [and] obscures the reality that none of [defendant’s] challenged conduct had 2 anything to do with [the forum] itself.” Id. at 289; see also Morrill v. Scott Financial Corporation, 3 873 F.3d 1136, 1145 (9th Cir. 2017) (that mere fact that plaintiffs were from Arizona and some 4 incidental harm could arise from defendant’s actions in Nevada did not establish express aiming for 5 an Arizona forum). 6 Thus, for example, where plaintiffs’ claims under the Computer Fraud and Abuse Act were 7 based upon an alleged computer “phishing” and “hacking” scheme, the fact that plaintiffs’ 8 computer servers were located in California was insufficient to establish that defendants had 9 expressly aimed their conduct to a California forum. Broidy Capital Mgmt., LLC v. Qatar, No. CV 10 18-2421-JFW(EX), 2018 WL 9943551, at *7 (C.D. Cal. Aug. 22, 2018). The servers’ location was 11 “random,” “fortuitous,” or “attenuated” to defendants’ alleged actions of hacking plaintiffs’ 12 accounts and obtaining confidential and private information. Id. 13 As in Broidy, the Court finds the allegations here insufficient to establish minimum contacts 14 to support personal jurisdiction over defendant in California. Defendant’s alleged intentional act 15 was not “expressly aimed” at California, but instead was only randomly or fortuitously connected 16 to California by virtue of HealthLabs.com’s use of computer servers purportedly located in the 17 state. 18 With respect to defendant’s alleged use of the TextNow service to send messages to 19 plaintiffs, such facts likewise do not state a sufficient basis for personal jurisdiction. Defendant’s 20 use of a third-party internet service headquartered in California to accomplish the wrongful conduct 21 does not, on its own, establish minimum contacts with that forum. Burdick v. Superior Court, 233 22 Cal.App.4th 8, 13 (2015). In Burdick, a defendant posted defamatory statements on a social media 23 website based in California. Id. The court there held that this allegation was “insufficient in itself 24 to create the minimum contacts necessary to support specific personal jurisdiction in a lawsuit 25 arising out of that posting,” even when defendant knew that plaintiff, the target of the defamatory 26 post, resided in California. Id. “[I]t is necessary that the nonresident defendant not only 27 intentionally post the statements on the [social media] page, but that the defendant expressly aim or 28 specifically direct his or her intentional conduct at the forum.” Id. “[T]he exercise of personal 1 || jurisdiction must be based upon forum-related acts that were personally committed by the 2 || nonresident defendant, not upon the plaintiff's contacts with the forum or acts committed by 3 || codefendants or third parties.” Id. (emphasis supplied). 4 The Court notes that Rule 45 of the Federal Rules of Civil Procedure permits a party to 5 || serve a subpoena anywhere in the United States. Fed. R. Civ. P. 45(b)(2). Only in the event that 6 || the party must compel compliance with the subpoena outside the jurisdiction of the issuing court 7 || would a petition in the compliance court be necessary. See Fed. R. Civ. P. 45 (c), (d), (e), □□□□ (court 8 || for the district where compliance is required enforces duty to avoid imposing undue burden or 9 || expense and hears motions to quash or modify unless exceptional circumstances warranting transfer 10 || to issuing court). Such enforcement motions for cases not pending in this district are brought by 11 || the filing of a miscellaneous action. 12 For the foregoing reasons, the Court finds that plaintiffs have failed to allege a basis for E 13 || jurisdiction and it appears the First Amended Complaint herein should be dismissed. 14 The motion for expedited discovery is DENIED. 15 Plaintiffs are DIRECTED to file a response to the Order to Show Cause no later than Z 16 || October 23, 2020. 17 The Court SETS a compliance deadline on the Court’s 9:01am calendar for October 30, 18 || 2020, as a placeholder. No appearance will be required at that time. Should the Court find a 19 || hearing is necessary, it will provide further notice of the time and date for a hearing via 20 || videoconference on the Zoom platform. 21 This terminates Docket No. 12. 22 IT Is SO ORDERED. 23 || Date: October 8, 2020 Lopene Megtelf lces,— YVONNE GONZAEEZ ROGE 24 UNITED STATES DISTRICT COURT JUDGE 25 26 27 28