Axiom Foods, Inc., a California corporation; Growing Naturals, LLC, an Arizona limited liability company, Plaintiffs-Appellants,
Acerchem International, Inc., an entity of unknown origin, Defendant, and Acerchem UK Limited, a United Kingdom limited company, Defendant-Appellee.
Submitted April 3, 2017
from the United States District Court for the Central
District of California Percy Anderson, District Judge,
Presiding D.C. No. 2:15-cv-00870-PA-AJW
Bauch (argued) and Daniel C. Lapidus, Lapidus & Lapidus
PLC, Beverly Hills, California, for Plaintiffs-Appellants.
L. Self III (argued) and Brian G. Wolf, Lavely & Singer
P.C., Los Angeles, California, for Defendant-Appellee.
Before: DAVID M. EBEL, [*] MILAN D. SMITH, JR., and N. RANDY
SMITH, Circuit Judges.
panel affirmed the dismissal of a copyright infringement
action for lack of personal jurisdiction over a defendant
United Kingdom limited company.
the "effects" test, the panel concluded that the
nonresident defendant committed an intentional act by adding
plaintiffs' logos to a newsletter and sending it to a
list of recipients. The defendant did not, however, expressly
aim its intentional act at the forum state of California.
Following Walden v. Fiore, 134 S.Ct. 1115 (2014),
the panel held that while a theory of individualized
targeting may remain relevant to the minimum contacts
inquiry, it will not, on its own, support the exercise of
panel held that Federal Rule of Civil Procedure 4(k)(2) did
not permit the district court to exercise personal
jurisdiction over the United Kingdom company. The panel
concluded that such an exercise of jurisdiction would not
comport with due process because there were insufficient
contacts between the defendant and the United States.
Milan D. Smith, Jr.
Foods, Inc. and Growing Naturals, LLC (collectively,
Appellants) appeal from the district court's dismissal of
their copyright infringement action against Acerchem UK
Limited for lack of personal jurisdiction. We affirm.
AND PROCEDURAL BACKGROUND
Axiom Foods, Inc. (Axiom) is a California corporation that
supplies organic and chemical-free products made from
whole-grain brown rice, peas, and other "superfoods,
" to the food, beverage, and nutraceutical industries.
Appellant Growing Naturals, LLC (GN) is an Arizona limited
liability company that develops and sells natural food
products, such as plant-based proteins and rice milk powders.
GN partners with Axiom to produce and sell goods containing
Axiom's products. Appellants do business in California.
International, Inc. (Acerchem International), which is based
in Shanghai, China, is a wholesale manufacturer of health and
nutritional products, including rice protein. Appellee
Acerchem UK Limited (Acerchem UK), a United Kingdom limited
company, is a wholly-owned subsidiary of Acerchem
International. Acerchem UK maintains its principal place of
business in the United Kingdom, and does not conduct business
in the United States.
November 20, 2014, Elva Li, an employee of Acerchem UK, sent
a newsletter promoting Acerchem UK's rice protein
products to 343 email addresses. Appellants' "As
Good as Whey" and "Non-GMO" logos were used in
the newsletter. Most of the newsletter's recipients were
located in Western Europe. No more than ten recipients were
located in California.
subsequently registered their copyrights for the "As
Good As Whey" and "Non-GMO" logos with the
United States Copyright Office. After the registrations
became effective, Appellants filed a complaint against
Acerchem International and Acerchem UK in the Central
District of California, on February 6, 2015. The complaint
asserted two claims for copyright infringement pursuant to 17
U.S.C. § 501 based on Acerchem UK's use of
Appellants' logos in its November 20, 2014 newsletter.
UK filed a motion to dismiss the complaint for lack of
personal jurisdiction and failure to state a claim.
district court ordered jurisdictional discovery and granted
the parties leave to file supplemental briefing.
September 11, 2015, the district court granted Acerchem
UK's motion to dismiss for lack of personal
jurisdiction. The district court declined to rule on
Acerchem UK's motion to dismiss for failure to state a
claim. Appellants timely appealed.