United States District Court, D. Hawaii
ORDER GRANTING DEFENDANTS STANFORD UNIVERSITY AND
NUANCE COMMUNICATION, INC.'S MOTIONS TO DISMISS
C. Kay, Sr. United States District Judge.
reasons set forth below, the Court GRANTS Defendants Stanford
University and Nuance Communications' Motions to Dismiss,
ECF Nos. 12, 15. Both Stanford and Nuance are DISMISSED WITH
PREJUDICE for lack of personal jurisdiction, subject to
discovery showing that Stanford or Nuance committed acts
which would establish either general or specific personal
jurisdiction consistent with the Court's discussion of
personal jurisdiction in this Order. If the Court had
personal jurisdiction over them, it would be inclined to
dismiss the RICO, fraud, and conspiracy claims against
Stanford and Nuance, as it does not appear Plaintiff has a
factual basis for plausibly stating such claims against them
at this time.
AND PROCEDURAL BACKGROUND
case has an extensive factual and procedural background, with
which the Court and the parties are all familiar. The Court
incorporates the factual and procedural background sections
of its prior Order from April 10, 2018 addressing the motions
and joinder by Defendants Salesforce.com, Craig Weissman,
Chris Fry, and Microsoft, ECF No. 134, (“Salesforce
Order”), and declines to repeat those sections here
except as relevant.
alleges that Defendants Stanford University
(“Stanford”) and Nuance Communications, Inc.
(“Nuance”) were both “named as participants
in the theft, conspiracy, conversion, chain of
misappropriation, and fraud by Sullivan.” Third Am.
Compl. ¶¶ 12, 62, 191, ECF No. 1-5
(“TAC”). The apparent basis of these allegations
is Exhibit L to the Third Amended Complaint, a print-out of a
ZoomInfo.com company profile for Thrownet, as of an unknown
date. See TAC ¶ 191 & Ex. L. The Court
notes that in quoting this exhibit in another allegation,
Plaintiff does not mention Stanford or Nuance. See
id. ¶ 103. Nuance also allegedly participated in an
international virtual reality conference in 1998 where
Plaintiff won first prize for “Best Innovation.”
Id. ¶ 72
and Nuance both filed motions to dismiss, which were
reinstated in the instant case. See ECF Nos. 8, 12
(“Stanford Mot.”), 15 (“Nuance
Mot.”). Plaintiff's previously filed responses were
also reinstated in this case. See ECF Nos. 8, 20
(“Opp. to Stanford”), 21 (“Opp. to
Nuance”). Plaintiff also filed a “Further
Response and Further Evidence to Counter Initial Motions,
” ECF No. 92 (“Pl. Supp. Resp.”), which
this Court has declined to strike. See Salesforce
Order at 8 n.4. Replies were filed on April 9, 2018. ECF Nos.
131 (“Stanford Reply”), 133 (“Nuance
Court held a hearing on Stanford and Nuance's Motions on
April 23, 2018.
Rule of Civil Procedure 12(b)(6) authorizes the Court to
dismiss a complaint that fails “to state a claim upon
which relief can be granted.” Fed.R.Civ.P. 12(b)(6).
Rule 12(b)(6) is read in conjunction with Rule 8(a), which
requires only “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). The Court may dismiss a complaint
either because it lacks a cognizable legal theory or because
it lacks sufficient factual allegations to support a
cognizable legal theory. Balistreri v. Pacifica Police
Dep't, 901 F.2d 696, 699 (9th Cir. 1988).
resolving a Rule 12(b)(6) motion, the Court must construe the
complaint in the light most favorable to the plaintiff and
accept all well-pleaded factual allegations as true.
Sateriale v. R.J. Reynolds Tobacco Co., 697 F.3d
777, 783 (9th Cir. 2012). The complaint “must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “The plausibility standard . . . asks for more
than a sheer possibility that a defendant has acted
unlawfully.” Id. “Where a complaint
pleads facts that are ‘merely consistent with' a
defendant's liability, it ‘stops short of the line
between possibility and plausibility of entitlement to
relief.'” Id. (quoting Twombly,
550 U.S. at 557).
pleadings and briefs are to be construed liberally.
Balistreri, 901 F.2d at 699. However, “a pro
se litigant is not excused from knowing the most basic
pleading requirements.” Am. Ass'n of
Naturopathic Physicians v. Hayhurst, 227 F.3d 1104, 1107
(9th Cir. 2000). Before a district court may dismiss a pro se
complaint the court must provide the pro se litigant
“with notice of the deficiencies in his complaint in
order to ensure that the litigant uses the opportunity to
amend effectively.” Akhtar v. Mesa, 698 F.3d
1202, 1212 (9th Cir. 2012) (citation omitted). However, the
court may deny a pro se litigant leave to amend where
amendment would be futile. Flowers v. First Hawaiian
Bank, 295 F.3d 966, 976 (9th Cir. 2002) (citation
Stanford and Nuance raise the issue of whether Plaintiff has
established personal jurisdiction over them, as well as
whether Plaintiff has stated claims for RICO, conspiracy, and
fraud. See generally Stanford Mot.; Nuance Mot.
Nuance also contests Plaintiff's ability to bring a
patent infringement claim. Nuance Mot. at 5. The Court has
already addressed the arguments Nuance raises regarding the
recoverability of patent damages and Plaintiff's standing
for a patent claim in its prior Order and dismissed
Plaintiff's patent infringement claims with prejudice.
See Salesforce Order at 18-31. The Court declines to
repeat its discussion here and will only briefly address
Nuance's suggestion that because Plaintiff has no
standing for a patent infringement claim, he also “has
no standing to assert claims sounding in fraud, conspiracy,
conversion, and/or chain of misappropriation resulting from
the alleged patent infringement.” Nuance Mot. at 5.
to the extent that these claims belong to Ergo, rather than
Plaintiff, Ergo currently lacks capacity to bring suit.
See Salesforce Order at 31. In addition, the Court
has not determined whether Plaintiff would have standing for
a patent infringement claim, but even if it had, such a
conclusion would not necessarily be dispositive of standing
for the other claims. Standing is analyzed on a claim by
claim basis. See California ex rel. Imperial Cty. Air
Pollution Control Dist. v. U.S. Dep't of the
Interior, 767 F.3d 781, 789 (9th Cir. 2014) (citing
Lewis v. Casey, 518 U.S. 343, 358 n.6 (1996)). If
Plaintiff's theory of standing and injury for patent
infringement and the other claims was similar, the same
determination might result. However, even if Plaintiff has to
substantively show patent infringement occurred in order to
prove his other claims, his standing for fraud, conversion,
misappropriation or conspiracy claims is not necessarily
controlled by or dependent on having standing for patent
infringement, especially if his claimed injury is different.
Nuance's unsupported and unexplained assertion that
Plaintiff lacks standing for any claim “resulting from
an alleged patent infringement, ” Nuance Mot. at 5,
does not provide a sufficient basis for the Court to conclude
that this is the case. Thus, to the extent that Nuance is
seeking to dismiss these other claims for lack of standing,
the Court DENIES Nuance's Motion.
Court will next turn to the issue of personal jurisdiction
before briefly addressing Nuance and Salesforce's
arguments about particular claims.
a defendant moves to dismiss a complaint for lack of personal
jurisdiction, the plaintiff bears the burden of demonstrating
that jurisdiction is appropriate.” Schwarzenegger
v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir.
2004)). “Where, as here, the motion is based on written
materials rather than an evidentiary hearing, the plaintiff
need only make a prima facie showing of jurisdictional
facts.” Id. (internal citation and quotation
courts apply state law to determine the bounds of their
jurisdiction over a party.” Williams v. Yamaha
Motor Co., 851 F.3d 1015, 1020 (9th Cir. 2017) (citing
Fed.R.Civ.P. 4(k)(1)(A)). Hawaii's long-arm statute
allows service on a defendant to the full extent permissible
by the Due Process Clause of the Fourteenth Amendment of the
U.S. Constitution. Kowalski v. Anova Food, LLC, Civ.
No. 11-00795 HG-RLP, 2012 WL 3308884, at *3 (D. Haw. Aug. 10,
2012) (citing Haw. Rev. Stat. (“HRS”) §
634-35 and Cisneros v. Trans Union, LLC, 293
F.Supp.2d 1156, 1164 (D. Haw. 2003)). As such, this Court
need only decide whether federal constitutional due process
permits the exercise of personal jurisdiction over
Defendants. See Schwarzenegger, 374 F.3d
at 800-01. “A court's exercise of personal
jurisdiction over a nonresident defendant may be either
general or specific.” Doe v. Am. Nat'l Red
Cross, 112 F.3d 1048, 1050 (9th Cir. 1997). “Each
defendant's contacts with the forum State must be
assessed individually.” Calder v. Jones, 465
U.S. 783, 790 (1984).
Consent to Personal Jurisdiction
Opposition to Nuance's Motion, Plaintiff makes several
arguments which he suggests show that Nuance, as well as the
other corporate and institutional defendants, have consented
to personal jurisdiction in Hawaii. See generally
Opp. to Nuance at 8-14.
first states that aside from Microsoft who entered a special
appearance, the other non-resident defendants waived their
right to object to personal jurisdiction by entering general
appearances. Id. at 9. However, the distinction
between special and general appearances has been eliminated;
Rule 12 makes no reference to either and instead makes clear
that no defense is waived by joining it with any other
defense. See 5B Wright & Miller, Fed. Prac.
& Proc. Civ. § 1344 (3d ed.); see also Romero v.
Star Markets, Ltd., 82 Haw. 405, 415, 922 P.2d 1018,
1028 (Haw. Ct. App. 1996) (holding that the distinction
between special and general appearances has also been
eliminated in the Hawaii rules such that a party need not
make a special appearance to assert lack of personal
jurisdiction). Rather, only a party who fails to dispute
personal jurisdiction in making a general appearance or
responsive pleading will waive such defense. See Benny v.
Pipes, 799 F.2d 489, 492 (9th Cir. 1986),
amended, 807 F.2d 1514 (9th Cir. 1987) (“A
general appearance or responsive pleading by a defendant that
fails to dispute personal jurisdiction will waive any defect
in service or personal jurisdiction.” (citing
Fed.R.Civ.P. 12(h)(1))). Because both Stanford and Nuance
have asserted the lack of personal jurisdiction in their
motions to dismiss, Stanford Mot. at 7-14; Nuance Mot. at 4,
they have not waived the defense of personal jurisdiction
despite making general appearances.
next seems to suggest that by registering to do business in
Hawaii, the corporate defendants may have consented to
jurisdiction through the designation of an agent for service
of process and/or through a possible written consent to
jurisdiction. See Opp. to Nuance at 13. The Ninth
Circuit has suggested that “[i]t is an open question
whether...a state may require a corporation to consent to
general jurisdiction as a condition of registering to do
business in the state.” See AM Trust v. UBS
AG, 681 Fed.Appx. 587, 588-89 (9th Cir. 2017). However,
Plaintiff has pointed to no Hawaii statute, nor has the Court
been able to locate one, requiring such consent as a
condition of registering to do business in Hawaii. Indeed,
Hawaii specifically provides that “[t]he appointment or
maintenance of a registered agent in the State does not by
itself create the basis for personal jurisdiction over the