United States District Court, E.D. Texas, Marshall Division
MEMORANDUM OPINION AND ORDER
PAYNE, UNITED STATES MAGISTRATE JUDGE
defendants move to transfer this patent infringement lawsuit
to the District of New Jersey pursuant to 28 U.S.C. §
1404(a). Dkt. No. 48. Because the LG defendants have not met
their burden of showing that the District of New Jersey would
have had personal jurisdiction over one of the defendants, LG
Electronics Alabama, Inc. (“LG Alabama”), the
motion to transfer is denied.
threshold inquiry under § 1404(a) is “whether the
judicial district to which transfer is sought would have been
a district in which the claim could have been filed.”
In re Volkswagen AG (Volkswagen I), 371
F.3d 201, 203 (5th Cir. 2004). This requires a showing that
the transferee court would have had personal jurisdiction
over all the defendants, and that venue would have been
proper for all the defendants. In re Genentech,
Inc., 566 F.3d 1338, 1346 (Fed. Cir. 2009) (discussing
“requirement that the transferee court have
jurisdiction over the defendants in the transferred
complaint.”); Self v. M&M Chemical Co.,
177 F.3d 977 (5th Cir. 1999) (noting that the possible
transferee courts would likely be able to assert jurisdiction
“over all of the defendants”). A transfer motion
should be denied when this threshold burden has not been met.
See, e.g., Grynberg v. Ivanhoe Energy,
Inc., 490 Fed.Appx. 86, 106 (10th Cir. 2012), cert.
denied, 133 S.Ct. 941 (2013) (“Accordingly, the
plaintiffs have not met their burden to show that the United
States District Court for the Eastern District of California
would have personal jurisdiction over the defendants, so the
district court rightly declined to transfer this action
federal court may exercise personal jurisdiction over a
nonresident to the extent authorized by the law of the state.
Marten v. Godwin, 499 F.3d 290, 296 (3d Cir. 2007).
In New Jersey, “courts may exercise jurisdiction over a
nonresident defendant to the uttermost limits permitted by
the United States Constitution.” Nicastro v.
McIntyre Mach. Am., Ltd., 201 N.J. 48, 72 (2010)
(internal quotation marks omitted), rev'd on other
grounds sub nom., J. McIntyre Mach., Ltd. v.
Nicastro, 564 U.S. 873 (2011). Accordingly, New Jersey
courts ask “whether, under the Due Process Clause, the
defendant has certain minimum contacts with [New Jersey] such
that the maintenance of the suit does not offend traditional
notions of fair play and substantial justice.”
O'Connor v. Sandy Lane Hotel Co., 496 F.3d 312,
316 (3d Cir. 2007) (citation omitted).
jurisdiction may be general or specific. Goodyear Dunlop
Tires Operations, S.A. v. Brown, 564 U.S. 915, 919
(2011). “With respect to a corporation, the place of
incorporation and principal place of business are paradigm
bases for general jurisdiction.” Daimler AG v.
Bauman, 134 S.Ct. 746, 760 (2014). (internal quotation
marks omitted). A corporation's principal place of
business is where the corporation's “affiliations
with the State are so continuous and systematic as to render
it essentially at home in the forum State.”
Id. at 761 (citation omitted).
jurisdiction requires that the defendant “has
purposefully directed his activities at residents of the
forum and the litigation results from alleged injuries that
arise out of or relate to those activities.” Burger
King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985)
(citation omitted). Additionally, due process requires that
“maintenance of the suit does not offend
‘traditional notions of fair play and substantial
justice.'” Helicopteros Nacionales de Colombia,
S.A. v. Hall, 466 U.S. 408, 414 (1984) (quoting
Int'l Shoe Co. v. Washington, 326 U.S. 310, 316
(1945)). Presence in the forum by itself “is
insufficient to establish personal jurisdiction” over a
defendant. Choi v. Damul Corp., No. 12-2440, 2014 WL
314669, at *7 (D.N.J. Jan. 27, 2014).
complaint alleges that LG Alabama is an Alabama corporation
with a principal place of business in Huntsville, Alabama.
Compl. ¶ 7, Dkt. No. 33. The complaint also alleges that
LG Alabama “provides customer service for all official
LG brand products purchased in the United States.”
Id. These allegations are consistent with the
declaration submitted by LG Electronics' Director and
Senior IP Counsel, Hongsun Yoon. Dkt. No. 48-1. Mr. Yoon
states that LG Alabama is in fact an Alabama corporation
headquartered in Huntsville, and that LG Alabama services and
repairs LG products sold in the United States. Id.
¶ 5. Mr. Yoon further states that LG Alabama “has
been registered to do business in New Jersey since March
defendants rely primarily on LG Alabama's registration to
do business in New Jersey to support the conclusion that the
District of New Jersey would have had personal jurisdiction
over LG Alabama. Consistent with Mr. Yoon's declaration,
the LG defendants' original motion highlights that LG
Alabama is “registered to do business in New
Jersey.” See Dkt. No. 48. After FISI
challenged whether the LG defendants had met their threshold
burden for transfer, the LG defendants again only emphasized
that LG Alabama “is registered to do business in New
Jersey and has a registered agent for service of process in
New Jersey, and is therefore subject to personal jurisdiction
in D.N.J.” See Dkt. No. 73.
reliance on LG Alabama's registration to do business in
New Jersey is not enough. New Jersey courts have held that
after the Supreme Court's decision in Daimler,
registering to do business in New Jersey or appointing an
agent for service of process is not sufficient to confer
general jurisdiction. See, e.g., Boswell v.
Cable Servs. Co., Inc., No. CV 16-4498, 2017 WL 2815077,
at *4-*6 (D.N.J. June 29, 2017) (“[T]he mere fact that
Cable Services is registered to do business in New Jersey and
appointed an agent to receive process does not mean that it
is subject to general jurisdiction in New Jersey.”).
Nor are such contacts sufficient to confer specific
jurisdiction when the claims do not arise out of or relate to
the defendant's contacts with the forum state. See
Burger King, 471 U.S. at 472.
Alabama may share officers with the corporate parent, and
those officers may have a New Jersey business address or
conduct business from New Jersey. But this is also not
enough. For purposes of jurisdiction (and venue), each
corporation must be assessed separately, absent disregard for
corporate separateness. See, e.g., Soverain IP,
LLC v. AT&T, Inc., No. 217-cv-00293-RWS-RSP, 2017 WL
5126158, at *1 (E.D. Tex. Oct. 31, 2017), report and
recommendation adopted, No. 2:17-CV-00293-RWS, 2017 WL
6452802 (E.D. Tex. Dec. 18, 2017); Symbology Innovations,
LLC, v. Lego Systems, Inc., No. 2:17-cv-86, 2017 WL
4324841 (E.D. Va. Sept. 28, 2017). The LG defendants do not
argue that each LG corporate entity is effectively the same,
or that the separateness between the corporate parent and LG
Alabama should be disregarded. Finally, there is nothing in
the record to suggest that LG Alabama owns, leases, or
maintains the corporate parent's facility in Englewood
Cliffs, New Jersey. Nor is there anything in the record
suggesting that LG Alabama's officers do business related
to FISI's claims from New Jersey.
defendants argue that the District of New Jersey would have
had personal jurisdiction (presumably specific jurisdiction)
over all the LG defendants because of the allegations in
FISI's complaint, namely allegations that the LG
corporate parent sells accused products through its website
and through authorized retailers and distributors. Comp.
¶ 22, Dkt. No. 33. But there is nothing in the record to
support the conclusion that LG Alabama has any role in the
sale of the accused products through LG's website. Nor is
there anything in the record that would permit the conclusion
that there is an authorized retailer or distributor located
in New Jersey that sells the accused products. FISI's
complaint makes no such allegation specific to New Jersey. In
fact, there is nothing in the record to permit the Court to
even conclude that LG Alabama services or repairs any product
that was sold from or had any relation to the state of New
defendants contend that a defendant could consent to
jurisdiction or venue in the transferee forum. This,
according to the LG defendants, can cure any defect with the
LG defendants' initial burden regarding LG Alabama. The
LG defendants' argument about consent was rejected by the
Supreme Court almost 60 years ago. See Hoffman v.
Blaski, 363 U.S. 335, 340-44 (1960). The LG defendants
have the burden of showing that the case could have been
bought in the transferee forum irrespective of consent or
waiver. See id.
remainder of defendants' arguments about LG Alabama can
be summarized as follows: if it is good enough for Texas, it
is good enough for New Jersey. In other words, the LG
defendants emphasize that FISI's complaint groups the LG
defendants into one category for purposes of pleading
personal jurisdiction and venue. Thus, according to the LG
defendants, if jurisdiction and venue are adequate here,
jurisdiction and venue should be adequate in New Jersey. But
there has never been any determination, nor challenge,
regarding FISI's complaint. The LG defendants moved to
transfer under § 1404(a) on June 9, 2017, Dkt. No. 48,
about two weeks after the Supreme Court decided TC
Heartland LLC v. Kraft Foods Group Brands LLC, 137 S.Ct.
1514 (2017), on May 22, 2017. No LG defendant has since moved
to dismiss the lawsuit for lack of personal jurisdiction or
improper venue. The motion to transfer under § 1404(a)
would not have prevented the LG defendants from doing so.
See Aralez Pharm. Inc. v. Teva Pharm. USA, Inc., No.
2:17-cv-00071-JRG-RSP, 2017 WL 3446543, at *2 (E.D. Tex. July
17, 2017) (“[A] party's motion to transfer under
§ 1404(a) is not an admission that venue is
proper.”) (citing Bentz v. Recile, 778 F.2d
1026, 1028 (5th Cir. 1985)).
terms of convenience, the LG defendants stress that LG
Alabama really does not have much to do with this lawsuit. LG
Alabama, according to defendants, merely services and repairs
products, which may include accused products. As a named
defendant, however, LG Alabama matters for purposes of
defendants' initial burden to show that the case could
have been brought in the transferee forum. See
Genentech, 566 F.3d at 1346; Self, 177 F.3d at
*4. Moreover, while it is possible, pursuant to Federal Rule
of Civil Procedure 21, to sever and retain a defendant when
it “unclear whether the entire action could have been
brought in ...