United States District Court, W.D. Washington, Tacoma
B. LEIGHTON, UNITED STATES DISTRICT JUDGE
MATTER is before the Court on Defendant nDivision
Service's Motion to Dismiss for Lack of Personal
Jurisdiction [Dkt. # 10]. Plaintiff DiscoverOrg is a
Vancouver, Washington-based company that compiles
“business intelligence” software (databases,
including contact information) and sells access to it, in the
form of a license. It also has four other U.S. offices, and
three overseas offices.
is a Dallas, Texas-based provider of “autonomic manages
services and end user help desk services, ” helping its
clients to replace human labor with digital. It has no
employees or agents who live or work in Washington. It has
done work with a limited number of national clients that have
stores or some presence in Washington, and it worked with a
Washington-based law firm as a client (unrelated to this
non-party nDivision employ (Mario Tanchez) previously worked
for a different Texas company which was licensed to access
DiscoverOrg's data. Tanchez used his old password to
access DiscoverOrg's data while he was employed by
nDivision. nDivision claims the employee did so from his
home, without its knowledge, and that the unauthorized access
did not lead to any sales. DiscoverOrg claims the employee
stole access to 64, 000 files in its database.
sued, claiming that nDivision is liable for its
employee's unlawful access and theft of data through its
online interface. It asserted eight state law and one federal
law claims, including claims related to trade secrets. [Dkt.
moves to dismiss for lack of personal jurisdiction, arguing
that this court does not have general or specific
jurisdiction over it. As is usually the case, the real
contested issue is specific jurisdiction.
defendant moves to dismiss a complaint for lack of personal
jurisdiction, the plaintiff bears the initial burden of
demonstrating that jurisdiction is appropriate, after which
the burden shifts to the defendant to demonstrate that
jurisdiction is unreasonable. Schwarzenegger v. Fred
Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004). A
plaintiff cannot simply rest on the bare allegations of its
complaint, but rather is obligated to come forward with
facts, by affidavit or otherwise, supporting personal
jurisdiction. Amba Marketing Systems, Inc. v. Jobar
International, Inc., 551 F.2d 784, 787 (9th Cir. 1977).
Where the motion is based on written materials rather than an
evidentiary hearing, the plaintiff need only make a prima
facie showing of jurisdictional facts.
Schwarzenegger, 374 F.3d at 800. A prima facie
showing means that the plaintiff has produced admissible
evidence, which, if believed, is sufficient to establish the
existence of personal jurisdiction. Ballard v.
Savage, 65 F.3d 1495, 1498 (9th Cir. 1995).
“Conflicts between parties over statements contained in
affidavits must be resolved in the plaintiff's
favor.” Schwarzenegger, 374 F.3d at 800.
However, a district court also may order discovery where
“pertinent facts bearing on the question of
jurisdiction are controverted or where a more satisfactory
showing of the facts is necessary.” Laub v. U.S.
Dep't of Interior, 342 F.3d 1080, 1093 (9th Cir.
2003) (quoting Butcher's Union Local No. 498 v. SDC
Inv., Inc., 788 F.2d 535, 540 (9th Cir.1986)).
court's personal jurisdiction analysis begins with the
“long-arm” statute of the state in which the
court sits. Glencore Grain Rotterdam B.V. v. Shivnath Rai
Harnarain Co., 284 F.3d 1114, 1123 (9th Cir. 2002).
Washington's long-arm statute extends the court's
personal jurisdiction to the broadest reach that the United
States Constitution permits, so the jurisdictional analysis
under state law and federal due process are the same.
Byron Nelson Co. v. Orchard Management Corp., 95
Wn.App. 462, 465 (1999); Schwarzenegger, 374 F.3d at
jurisdiction exists in two forms: general and specific.
Dole Food Co. v. Watts, 303 F.3d 1104, 1111 (9th
Cir.2002). For specific jurisdiction, which is at issue here,
the Ninth Circuit applies a three-prong test.
Schwarzenegger, 374 F.3d at 802. First, “[t]he
non-resident defendant must purposefully direct his
activities or consummate some transaction with the forum or
resident thereof; or perform some act by which he
purposefully avails himself of the privilege of conducting
activities in the forum, thereby invoking the benefits and
protections of its laws.” Id. Second,
“the claim must be one which arises out of or relates
to the defendant's forum-related activities.”
Id. Finally, “the exercise of jurisdiction
must comport with fair play and substantial justice, i.e. it
must be reasonable.” Id.
first prong, the “purposeful direction” analysis
typically applies in tort cases and “usually consists
of evidence of the defendant's actions outside the forum
state that are directed at the forum, such as the
distribution in the forum state of goods originating
elsewhere.” Id. at 803. To determine if the
defendant purposefully directed activities at the forum, the
Ninth Circuit applies the “effects test” from
Calder v. Jones, 465 U.S. 783 (1984). Under this
test, “the defendant allegedly must have (1) committed
an intentional act, (2) expressly aimed at the forum state,
(3) causing harm that the defendant knows is likely to be
suffered in the forum state.” Mavrix Photo, Inc. v.
Brand Techs., Inc., 647 F.3d 1218, 1228 (9th Cir. 2011)
(quoting Brayton Purcell LLP v. Recordon &
Recordon, 606 F.3d 1124, 1128 (9th Cir. 2010)).
cases involving online commerce, the Ninth Circuit has held
that simply maintaining a passive website is not enough to
satisfy the express aiming prong. Id. at 1229. But
“a passive website in conjunction with ‘something
more'-conduct directly targeting the forum-is
sufficient.” Id. (quoting Rio Properties,
Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1020
(9th Cir. 2002)). Knowingly taking advantage of the forum
state's consumer market, id. at 1230, or
competing directly with the plaintiff in the forum state may
qualify as “something more.” See
CollegeSource, Inc. v. AcademyOne, Inc., 653 F.3d 1066,
1077 (9th Cir. 2011). However, it is not enough that the
defendant merely infringed on the plaintiff's
intellectual property rights while knowing of the
plaintiff's location in the forum state. Axiom Foods,
Inc. v. Acerchem Int'l, Inc., 874 F.3d 1064, 1070
(9th Cir. 2017).
argues that DiscoverOrg's conclusory claims about
tortious acts “committed in Washington” and its
claim that” nDivision directs its products and services
through the stream of commerce into Washington” are not
enough to establish specific personal jurisdiction. It argues
that it has no connection with Washington; even the servers
upon which DiscoverOrg's files are stored are located
outside of Washington. It argues that the fact the harm may
have been suffered in Washington is not by itself enough,
where the employee had no knowledge that he was stealing
information from Washington. It disputes that the harm was
felt in Washington any more than it was felt in any of
DiscoverOrg's other offices or “HQs.” It also
argues that sending an email to a Washington recipient is
“too attenuated and isolated” to ...