Sectra Communications AB v. Absolute Software Inc

[5] 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON [7] AT SEATTLE [8] 9 SECTRA COMMUNICATIONS AB, Case No. C22-0353RSM [10] Plaintiff, ORDER GRANTING MOTION FOR 11 JURISDICTIONAL DISCOVERY v. [12] 13 ABSOLUTE SOFTWARE, INC. and NETMOTION SOFTWARE, INC., [14] Defendants. [16] This matter comes before the Court on Counterclaim Plaintiff NetMotion’s Motion for [17] leave to conduct jurisdictional discovery, Dkt. #109. Counterclaim defendant Sectra [18] 19 Communications AB opposes. Dkt. #113. Neither party requests oral argument. 20 On August 26, 2022, NetMotion moved to amend its counterclaim to add Columbitech, [21] Inc. as a counterclaim defendant. Dkt. #99. In response, Sectra filed an Opposition and [22] supporting declaration from Columbitech’s former CEO Tobias Englund in which Sectra [23] contests personal jurisdiction as to its wholly owned subsidiary Columbitech in the Western [24] 25 District of Washington. Dkt. #101; Dkt. #102-1. 26 In its proposed Second Amended Counterclaim, NetMotion pleads multiple bases for [27] personal jurisdiction over Columbitech in the Western District of Washington. See Dkt. #99-1 [28] at 2. NetMotion alleges that Columbitech made, used, sold, offered for sale, or imported [1] 2 infringing products in the Western District of Washington, and had pervasive, longstanding 3 business contacts in Washington related to the accused Columbitech Mobile VPN product, [4] including: (1) allegations that Columbitech partnered with Sprint (a nationwide mobile telecom [5] company with a location in Bellevue, Washington) to provide secure mobile VPN services; (2) [6] allegations that the Columbitech partnership continued with T-Mobile, a Washington-based [7] 8 company, after T-Mobile and Sprint merged; and (3) allegations and supporting evidence that 9 Columbitech partnered with Microsoft Corporation, a Washington-based company, as a [10] Microsoft certified partner to provide Columbitech Mobile VPN on Microsoft operating [11] systems. Id. [12] 13 “Jurisdictional discovery is appropriate where ‘pertinent facts bearing on the question of 14 jurisdiction are controverted or where a more satisfactory showing of the facts is necessary.’” 15 Cascade Yarns, Inc. v. Knitting Fever, Inc., No. C10-861RSM, 2011 WL 2470671 , at *5 (W.D. 16 Wash. 2011 ) (citing Butcher’s Union Local No. 498, United Food and Commercial Workers v. [17] SDC Inv., Inc., 788 F.2d 535 (9th Cir. 1986); see also Twentieth Century Fox Int’l Corp. v. [18] 19 Scriba, 385 F. App’x 651, 653 (9th Cir. 2010). A court may deny jurisdictional discovery 20 “when it is clear that further discovery would not demonstrate facts sufficient to constitute a [21] basis for jurisdiction.” Am. W. Airlines, Inc. v. GPA Group, Ltd., 877 F.2d 793 , 801 (9th Cir. [22] 1989) (quoting Wells Fargo & Co. v. Wells Fargo Express Co., 556 F.2d 406 , 430 n.24 (9th [23] Cir. 1977)). “District courts within the Ninth Circuit require a plaintiff to establish a ‘colorable [24] 25 basis’ for personal jurisdiction before granting jurisdictional discovery.” Chapman v. Krutonog, [26] 256 F.R.D. 645, 649 (D. Haw. 2009) (citing district court cases). “This ‘colorable’ showing [27] should be understood as something less than a prima facie showing, and could be equated as [28] requiring the plaintiff to come forward with ‘some evidence’ tending to establish personal [1] 2 jurisdiction over the defendant.” Id. 3 Defendants whose contacts with a state are “substantial” or “continuous and systematic” [4] can be haled into court in that state in any action, even if the action is unrelated to those [5] contacts. Tuazon v. R.J. Reynolds Tobacco Co., 433 F.3d 1163, 1171 (9th Cir. 2006). In [6] determining general jurisdiction, courts focus on the nature and extent of the defendant’s [7] 8 contacts and may consider, inter alia, longevity, continuity, volume, economic impact, physical 9 presence, and integration into the state’s regulatory or economic markets. Id. at 1172 . [10] Even if the court cannot exercise general jurisdiction over a defendant, it may still have [11] personal jurisdiction if the case arises out of certain forum-related acts. Cubbage v. Merchent, [13] 744 F.2d 665, 668 (9th Cir. 1984). In this inquiry, the court should evaluate “the nature and 14 quality of the defendant’s contacts in relation to the cause of action[,]” focusing “on the 15 relationship between the defendant, the forum, and the litigation.” Id. (citation omitted). [16] “Exercising specific jurisdiction over a nonresident company is consistent with due process if [17] the company directed acts at this forum, the plaintiff’s claims arise out of the company’s [18] 19 forum-related acts, and requiring the nonresident company to defend itself in this forum would 20 be reasonable.” TRC Tire Sales, LLC v. Extreme Tire & Serv., Inc., No. CV-08-015-FVS, 2008 21 WL 2725088 , at *2 (E.D. Wash. July 11, 2008). [22] In some instances, the defendant may not have sufficient contacts with any one state for [23] the court to exercise personal jurisdiction. In such instances, Rule 4(k)(2) permits nationwide [24] 25 aggregation of contacts for the exercise of personal jurisdiction if the claim arises under federal 26 law and there are sufficient minimum contacts with the United States as a whole. Read v. Moe, [28] 899 F. Supp. 2d 1024, 1033 (W.D. Wash. 2012); Wanacheck Mink Ranch v. Alaska Brokerage [1] 2 Int’l, Inc., No. C06-089RSM, 2009 WL 1247039 , at *4 (W.D. Wash. May 4, 2009). 3 NetMotion points to Wayback Archive screenshots of Columbitech’s website, which [4] listed a wide variety of government and business customers, arguing “Columbitech’s wide [5] client base and use of popular distribution channels, as shown on Columbitech’s website, [6] supports the plausibility of NetMotion’s allegations that the Columbitech Mobile VPN product [7] 8 was offered for sale to, sold to, and used by customers in Washington during the relevant 9 damages period.” Dkt. #109 at 8–9. NetMotion credibly argues that Columbitech must have [10] had some sales or business relationship with Sprint and T-Mobile. In its opposition, Sectra [11] relies on two declarations from Mr. Englund essentially stating that Columbitech has never sold [12] 13 its product or entered into any agreement with any entities in Washington. See Dkt. #102-1; 14 Dkt. #113-1. 15 The Court need not reach any conclusions about specific jurisdictional contacts to [16] resolve this Motion. Given the nature of Columbitech’s business and its apparent wide range of [17] clients, and based on the limited factual record here and the argument of the parties, the Court [18] 19 finds that NetMotion has established there are controverted facts pertinent to specific and 20 general personal jurisdiction, and that the above facts make “at least a colorable showing” of [21] personal jurisdiction. [22] Having reviewed the relevant pleadings, the declarations and exhibits attached thereto, [23] and the remainder of the record, the Court hereby finds and ORDERS that Plaintiff [24] 25 NetMotion’s Motion for leave to conduct jurisdictional discovery, Dkt. #109, is GRANTED. 26 NetMotion is granted leave to seek jurisdictional discovery via 5 interrogatories, and 10 [27] requests for production, in addition to a 30(b)(6) deposition and the deposition of Tobias [28] Englund. The Court further GRANTS NetMotion leave to file a 6-page supplemental reply to [1] 2 the Motion to Amend Counterclaim 14 days after completion of jurisdictional discovery. 3 Sectra is granted leave to file its own 6-page surreply as set forth in the Court’s most recent [4] Order. [6] DATED this 4th day of January, 2023. [7] 8 A [9] 10 RICARDO S. MARTINEZ UNITED STATES DISTRICT JUDGE