Case 1:20-cv-01560-JLT Document 38 Filed 05/26/21 Page 1 of 16
`
`UNITED STATES DISTRICT COURT
`
`EASTERN DISTRICT OF CALIFORNIA
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`DAKOTAH MASSIE, et al.,
`
`
`
`
`
` Plaintiffs,
`
`v.
`
`GENERAL MOTORS COMPANY, et al.,
`
`
`
`Defendants.
`
`
`
`Case No.: 1:20-cv-01560-JLT
`
`ORDER GRANTING DEFENDANTS’ MOTIONS
`TO DISMISS AND TRANSFERRING THE
`ACTION TO THE DISTRICT OF DELAWARE
`
`(Docs. 29, 30)
`
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`
`
`On April 12, 2021, Defendants General Motors LLC and Decibel Insight, Inc. moved the Court
`
`to dismiss the action for lack of personal jurisdiction, or in the alternative, seek transfer of this action.
`
`(Docs. 29, 30.) Plaintiffs filed oppositions on May 3, 2021. (Docs. 31, 32.) On May 17, 2021, GM
`
`filed a reply (Doc. 33) and Decibel filed a reply (Doc. 34). For the reasons set forth below, the Court
`
`GRANTS Defendants’ motion to dismiss for lack of personal jurisdiction and TRANSFERS the
`
`action to the United States District Court for the District of Delaware.
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`I.
`
`Factual Allegations
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
` General Motors LLC operates websites that are accessible throughout the United States (and
`
`internationally), including by California residents. (See Doc. 29 at 8.) Plaintiffs allege that GM owns
`
`and operates websites for its Chevrolet, Buick, GMC, and Cadillac brands. (See Doc. 25, First
`
`Amended Complaint, at ¶¶ 1, 8.) Defendant Decibel developed a software of the same name that
`
`provides marketing analytics, and one of Decibel’s features is called Session Replay. (Id. at ¶¶ 18-19.)
`
`
`
`1
`
`

`

`Case 1:20-cv-01560-JLT Document 38 Filed 05/26/21 Page 2 of 16
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`Plaintiffs allege that GM partnered with Decibel to use Decibel’s Session Replay software. (Id. ¶¶ 19-
`
`20, 33-37.) According to the first amended complaint, the Session Replay software captures website
`
`visitors’ mouse clicks, keystrokes, names, zip codes, phone numbers, email addresses, IP addresses,
`
`and locations at the time of the visit. (Id. ¶ 44.) Plaintiffs allege that GM captured their own
`
`information using Session Replay when they purportedly visited the Chevrolet website in August and
`
`September 2020. (Id. ¶¶ 2, 4-5, 39-41.) Plaintiffs allege that they are California residents and that they
`
`were physically located in California when they visited GM’s nationally accessible Chevrolet website.
`
`(Id. ¶¶ 4-5.) Based on these allegations, Plaintiffs assert claims against both Defendants for violations
`
`of the California Invasion of Privacy Act, Cal. Penal Code §§ 631 and 635, and for invasion of privacy
`
`under the California Constitution, and a claim against Decibel for violation of the Federal Wiretap
`
`Act, 18 U.S.C. § 2512. (See id. ¶¶ 59-96.)
`
`12
`
`II.
`
`Legal Standards
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`A. Motion to Dismiss Under Federal Rule of Civil Procedure 12(b)(2)
`
`Federal Rule of Civil Procedure 12(b)(2) allows a party to file a motion to dismiss for lack
`
`of personal jurisdiction. When there is no federal statute authorizing personal jurisdiction, the district
`
`court applies the law of the state in which the district court sits. Mavrix Photo, Inc. v. Brand Techs.,
`
`Inc., 647 F.3d 1218, 1223 (9th Cir. 2011). California's long-arm statute is coextensive with federal due
`
`process requirements. Cal. Code Civ. Proc. § 410.10. Accordingly, the "jurisdictional analyses under
`
`state law and federal due process are the same." Mavrix Photo, Inc., 647 F.3d at 1223
`
`(citing Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800-01 (2004)). "For a court to
`
`exercise personal jurisdiction over a nonresident defendant, that defendant must have at least 'minimum
`
`contacts' with the relevant forum such that the exercise of jurisdiction 'does not offend traditional
`
`notions of fair play and substantial justice.'" Schwarzenegger, 374 F.3d at 801 (quoting Int'l Shoe Co. v.
`
`Washington, 326 U.S. 310, 316 (1945)). Under the minimum contacts test, there are two categories
`
`of personal jurisdiction: general jurisdiction and specific jurisdiction. Daimler AG v. Bauman, 571 U.S.
`
`117, 126-27 (2014).
`
`A court may assert general personal jurisdiction over corporations "when their affiliations with
`
`the State are so 'continuous and systematic' as to render them essentially at home in the forum
`
`
`
`2
`
`

`

`Case 1:20-cv-01560-JLT Document 38 Filed 05/26/21 Page 3 of 16
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`State." Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011). There are two
`
`"paradigm all-purpose forums" in which a corporation will primarily be "at home" for the purposes
`
`of general jurisdiction: its place of incorporation and its principal place of business. Daimler, 571 U.S.
`
`at 137. General jurisdiction is not limited to these two forums, but it will only be available elsewhere in
`
`the "exceptional case" that a corporation's affiliations with a forum are "so substantial and of such a
`
`nature as to render the corporation at home in that State." Id. at 139 n.19; see also Martinez v. Aero
`
`Caribbean, 764 F.3d 1062, 1070 (9th Cir. 2014) ("Only in an 'exceptional case' will general
`
`jurisdiction be available anywhere else."). Indeed, under the modern jurisdiction theory, general
`
`jurisdiction "has played a reduced role," and "[the Supreme Court's] post-International Shoe opinions
`
`on general jurisdiction . . . are few." Daimler, 571 U.S. at 128-29.
`
`Specific jurisdiction, on the other hand, is satisfied when the defendant's activities are directed
`
`toward the forum state and the defendant's liability arises out of or relates to those activities. Id. at 127.
`
`In the Ninth Circuit, courts employ a three-part test to determine whether a defendant's contacts suffice
`
`to establish specific jurisdiction: "(1) the nonresident defendant must have purposefully availed himself
`
`of the privilege of conducting activities in the forum by some affirmative act or conduct; (2) plaintiff's
`
`claim must arise out of or result from the defendant's forum-related activities; and (3) exercise of
`
`jurisdiction must be reasonable." Roth v. Garcia Marquez, 942 F.2d 617, 620-21 (9th Cir. 1991)
`
`(emphasis omitted). The plaintiff bears the burden of satisfying the first two prongs, and if they are met,
`
`the burden shifts to the defendant "to set forth a 'compelling case' that the exercise of jurisdiction would
`
`not be reasonable." Mavrix Photo Inc., 647 F.3d at 1228.
`
`In opposing a defendant's motion to dismiss for lack of personal jurisdiction, the plaintiff bears
`
`the burden of establishing the court's jurisdiction over the defendant. Wash. Shoe Co. v. A-Z Sporting
`
`Goods Inc., 704 F.3d 668, 671-72 (9th Cir. 2012). However, when the defendant's motion is based on
`
`written materials rather than an evidentiary hearing, the plaintiff need only make a "prima facie
`
`showing of jurisdictional facts to withstand the motion to dismiss." Id. (quoting Pebble Beach Co. v.
`
`Caddy, 453 F.3d 1151, 1154 (9th Cir. 2006)). The court resolves all disputed facts in favor of the
`
`plaintiff. Id. at 672.
`
`28
`
`///
`
`
`
`
`
`3
`
`

`

`Case 1:20-cv-01560-JLT Document 38 Filed 05/26/21 Page 4 of 16
`
`
`
`B. Motion to Dismiss Under Rule 12(b)(3)
`
`A party may move to dismiss an action based on improper venue pursuant to Rule
`
`12(b)(3). Fed. R. Civ. P. 12(b)(3). Once a defendant challenges venue, the plaintiff bears the burden of
`
`demonstrating that the chosen venue is proper. Piedmont Label Co. v. Sun Garden Packing Co., 598
`
`F.2d 491, 496 (9th Cir. 1979). In determining whether venue is proper, the pleadings need not be
`
`accepted as true and the court may consider facts outside of the pleadings. Doe 1 v. AOL, LLC, 552
`
`F.3d 1077, 1081 (9th Cir. 2009).
`
`Venue in a civil action is proper in:
`
`(1) a judicial district in which any defendant resides, if all defendants are residents of
`the State in which the district is located;
`
`(2) a judicial district in which a substantial part of the events or omissions giving rise to
`the claim occurred, or a substantial part of property that is the subject of the action is
`situated; or
`
`
`
`(3) if there is no district in which an action may otherwise be brought as provided in this
`section, any judicial district in which any defendant is subject to the court’s personal
`jurisdiction with respect to such action.
`
`
`28 U.S.C. § 1391(b)(1)-(3). "The first two paragraphs of §1391(b) define the preferred judicial districts
`
`for venue in a typical case, [while] the third paragraph provides a fallback option." Atl. Marine Constr.
`
`Co. v. U.S. Dist. Court for W. Dist. of Tex., 571 U.S. 49, 56 (2013). When venue is improper, the
`
`district court can either dismiss the action, "or if it be in the interest of justice, transfer such case to any
`
`district or division in which it could have been brought." 28 U.S.C. § 1406(a). "A determination of
`
`improper venue does not go to the merits of the case and therefore [dismissal] must be without
`
`prejudice." In re Hall, Bayoutree Assocs., Ltd., 939 F.2d 802, 804 (9th Cir. 1991).
`
`III. Discussion and Analysis
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`
`
`A.
`
`1.
`
`Personal Jurisdiction
`
`General Jurisdiction
`
`a.
`
`GM
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`Plaintiffs admit that GM is a Delaware limited liability company with its principal place of
`
`business in Detroit, Michigan. (Doc. 25 at ¶ 6; see also Doc. 29-1, Burnell Decl., at ¶ 3.) GM alleges
`
`that Plaintiffs do not and cannot allege the type of “constant and pervasive” contacts that are required
`
`
`
`4
`
`

`

`Case 1:20-cv-01560-JLT Document 38 Filed 05/26/21 Page 5 of 16
`
`
`
`for this Court to conclude that this is an “exceptional” case in which general jurisdiction is
`
`nevertheless present. (Doc. 29 at 11, citing Ranza v. Nike, Inc., 793 F.3d 1059, 1069-70 (9th Cir.
`
`2015).) GM further alleges that Plaintiffs’ allegations that GM owns and operates websites accessed
`
`by California residents (Doc. 25 at ¶¶ 1, 4-5) are not enough to establish general jurisdiction. (Doc. 29
`
`at 11-12.) Plaintiffs note that GM argues the Court lacks general personal jurisdiction over it, but
`
`Plaintiffs do not contend general jurisdiction applies here. (Doc. 32 at 6, n.2.)
`
`b.
`
`Decibel
`
`Decibel is a corporation formed under the laws of Delaware with its principal place of business
`
`in the United Kingdom, and thus, Decibel alleges under the traditional “paradigm,” California does not
`
`have general jurisdiction over Decibel. (Doc. 30 at 9-10; Doc. 30-1, Harris Decl., at ¶ 11.) Decibel
`
`further argues that this is not an “exceptional” case, as Plaintiffs have failed to allege facts that reveal
`
`any activity by Decibel that amounts to “substantial” or “continuous . . . and systematic” contacts
`
`necessary to find it “at home” in California. (Doc. 30 at 10.) According to Decibel, Decibel currently
`
`has only three employees within California, out of 39 nationwide, and Decibel has never had executive
`
`officers in California and does not pay California state sales taxes. (Harris Decl. ¶¶ 12-13.) Plaintiffs
`
`note that Decibel argues the Court lacks general personal jurisdiction over it, but Plaintiffs do not
`
`contend general jurisdiction applies here. (Doc. 31 at 6, n.2.)
`
`c.
`
`Analysis
`
`General jurisdiction requires Plaintiffs to show that Defendants’ own affiliations with
`
`California are sufficiently “continuous and systematic” and that California essentially operates as
`
`Defendants’ home. Goodyear, 564 U.S. at 919 (internal citation and quotation marks omitted). “This is
`
`an exacting standard, as it should be, because a finding of general jurisdiction permits a defendant to
`
`be hauled into court in the forum state to answer for any of its activities anywhere in the
`
`world.” Schwarzenegger, 374 F.3d at 801 (internal citation omitted). Plaintiffs must prove that
`
`Defendants’ contacts with California are of the type that “approximate physical presence.” Bancroft &
`
`Masters, Inc. v. Augusta Nat’l Inc., 223 F.3d 1082, 1086 (9th Cir. 2000) (internal citation
`
`omitted), holding modified by Yahoo! Inc. v. La Ligue Contre Le Racisme, 433 F.3d 1199 (9th Cir.
`
`2006). Only a limited set of affiliations that effectively render a corporate defendant at home in the
`
`
`
`5
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`

`

`Case 1:20-cv-01560-JLT Document 38 Filed 05/26/21 Page 6 of 16
`
`
`
`forum state will result in general jurisdiction lying over that defendant. Daimler, 134 S. Ct. at 760.
`
`Neither GM nor Decibel are incorporated in California, and they do not have their principal
`
`places of business here. GM is a Delaware limited liability company with its principal place of
`
`business in Detroit, Michigan. (Doc. 25 at ¶ 6.) Decibel is a corporation formed under the laws of
`
`Delaware with its principal place of business in the United Kingdom. (Doc. 30 at 9.) Consequently,
`
`only in an “exceptional case” could they be subject to general jurisdiction in California. Ranza v. Nike,
`
`Inc., 793 F.3d 1059, 1069 (9th Cir. 2015). Plaintiffs have not met their burden of showing that this is
`
`an exceptional case.
`
`Plaintiffs’ allegations do not satisfy the standard set out by the Supreme Court. Daimler, 134 S.
`
`Ct. at 758 n.11 (writing that conduct should be so continuous and systematic as to render the foreign
`
`corporation essentially at home in the forum State); see also Martinez v. Aero Caribbean, 764 F.3d
`
`1062, 1070 (9th Cir. 2014) (finding that a company’s “sending of representatives to California to
`
`attend industry conferences, promote . . . products, and meet with suppliers” was insufficient to subject
`
`the company to general jurisdiction). In fact, Plaintiffs do not contend general jurisdiction applies
`
`here. (Doc. 31 at 6, n.2; Doc. 32 at 6, n.2.)
`
`
`
`
`
`2.
`
`
`
`Specific Jurisdiction
`
`a.
`
`GM
`
`GM operates websites that are accessible throughout the United States (and internationally),
`
`including by California residents. Plaintiffs’ allegations regarding Defendants’ website are insufficient
`
`to establish an express aim at California.
`
`The Ninth Circuit utilizes a sliding scale when examining whether a website provides grounds
`
`for personal jurisdiction. See Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414, 418-19 (9th Cir.
`
`1997). “At one end of the scale [are] active sites ‘where a defendant clearly does business over the
`
`Internet’ and ‘enters into contracts with residents of a foreign jurisdiction that involve the knowing
`
`and repeated transmission of computer files over the Internet,’ which support[s] jurisdiction.” Mavrix
`
`Photo, Inc., 647 F.3d at 1226 (quoting Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119,
`
`1124 (W.D. Pa. 1997)). “At the other end [are] passive sites ‘where a defendant has simply posted
`
`information on an Internet Web site which is accessible to users in foreign jurisdictions,’ and which
`
`
`
`6
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`

`

`Case 1:20-cv-01560-JLT Document 38 Filed 05/26/21 Page 7 of 16
`
`
`
`do[es] not support jurisdiction.” Id. at 1226-27 (quoting Zippo, 952 F.Supp. at 1124). Under this
`
`analysis, the Court determines jurisdiction by examining the “level of interactivity and commercial
`
`nature of the exchange . . . that occurs on the Web site.” Id. at 1227 (quoting Zippo, 952 F.Supp. at
`
`1124). The evidence provided about GM’s website puts it solidly on the passive end of the website
`
`spectrum and does not support jurisdiction. There is no evidence of file exchange through GM’s
`
`website or interactive features targeting California customers. Without facts showing GM specifically
`
`targeted California, the operation of an internationally accessible website is insufficient to serve as a
`
`ground for personal jurisdiction. See Advanced Tactical Ordnance Sys., LLC v. Real Action Paintball,
`
`Inc., 751 F.3d 796, 803 (7th Cir. 2014) (citing be2 LLC v. Ivanov, 642 F.3d 555, 558 (7th Cir. 2011)
`
`(“The interactivity of a website is . . . a poor proxy for adequate in-state contacts [and] should not open
`
`a defendant up to personal jurisdiction in every spot on the planet where that interactive website is
`
`accessible.”)
`
`GM claims that Plaintiffs cannot establish that GM’s alleged intentional acts—the installation
`
`of Session Replay software and purported interception of website users’ electronic communications on
`
`GM’s websites, (Doc. 25 at ¶ 15)—were expressly aimed at California. (Doc. 29 at 14.) GM’s
`
`websites are accessible throughout the United States, not just in California. (Burnell Decl. ¶ 12; Doc.
`
`25 at ¶ 17.) GM argues that Plaintiffs do not and cannot allege any intentional conduct designed
`
`specifically to target and attract Californians (rather than customers nationwide) to GM’s websites.
`
`(Doc. 29 at 15; see Burnell Decl. ¶ 12.) The Session Replay software at issue records a random
`
`selection of website sessions from users nationwide; no geographic criteria affect which website
`
`sessions the software captures. (Doc. 33 at 4; Burnell Decl. ¶¶ 7-8.) The purpose of Session Replay
`
`software is to improve website functionality nationwide; it does not target California or distinguish
`
`California from any other state where GM’s website is accessible. (Doc. 33 at 4.) GM contends that
`
`the mere interactivity of GM’s website is not enough. (Doc. 29 at 15.) Therefore, GM argues, there is
`
`no basis to conclude that GM has “expressly aimed” the operation of its websites, let alone its use of
`
`Session Replay, at California in a manner sufficient to confer jurisdiction. (Doc. 29 at 16.)
`
`The first amended complaint contains lengthy allegations that GM knew and foresaw that the
`
`wiretapping would impact Californians because they “form a significant portion of GM’s customer
`
`
`
`7
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`

`

`Case 1:20-cv-01560-JLT Document 38 Filed 05/26/21 Page 8 of 16
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`base,” and because of the size of the California market and economy. (Doc. 25 at ¶ 15.) “The
`
`Websites’ Privacy Policies include a specific section dedicated to California law, and the Websites
`
`each include a web page specifically referencing California law and directed specifically at
`
`Californians who visit the website[s].” (Id. at ¶ 16.) Further, it is alleged that “[b]ecause of the
`
`substantial California market, Defendants anticipated, desired, and achieved a substantial California
`
`viewer base.” (Id. at ¶ 17.) Finally, Plaintiffs allege that Decibel’s software collects users’ “location at
`
`the time of the visit,” meaning Defendants knew they were wiretapping California consumers. (Id. at ¶
`
`44.) However, GM counters that Walden v. Fiore, 571 U.S. 277, 289 (2014) holds that mere
`
`foreseeability that someone may be harmed in the forum state does not suffice to confer specific
`
`10
`
`personal jurisdiction.
`
`11
`
`
`
`Additionally, Plaintiffs, citing to Mavrix Photo, Inc. v. Brand Techs., Inc., 647 F.3d 1218, 1231
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`(9th Cir. 2011), assert that courts may exercise personal jurisdiction when a website “with national
`
`viewership and scope appeals to, and profits from, an audience in a particular state.” (Doc. 32 at 11.)
`
`However, as GM correctly claims, GM’s websites lack a forum specific focus as the market for GM’s
`
`automobiles is nationwide. (Doc. 29 at 17, citing AMA Multimedia, Ltd. Liab. Co. v. Wanat, 970 F.3d
`
`1201, 1210 (9th Cir. 2020).) GM distinguishes Mavrix because in that case, the defendant’s website
`
`deliberately profited from California-based website traffic because the website used a particular
`
`advertising structure, under which “the more California viewers [the defendant] could bring to its
`
`website, the more money it would make from its advertisements directed to Californians.” (Doc. 29 at
`
`17-18.) GM asserts that there is no similar advertising structure in this case, and the fact that some
`
`visitors to GM’s websites are from California “does not establish that [GM] tailored the website to
`
`attract [California] traffic.” (Id. at 18.) Moreover, GM argues that any profits that it receives from
`
`California website visitors have nothing to do with GM’s alleged use of Session Replay software. (Id.)
`
`GM contends that those profits result from those “’users who access the site rather than from [GM’s]
`
`targeting of forum users who access the site,’ and so they do not support personal jurisdiction.” (Id.)
`
`26
`
`
`
`Plaintiffs contend that Ford Motor Co. v. Mont. Eighth Judicial Dist. Court, 141 S. Ct. 1017
`
`27
`
`28
`
`
`
`(2021), is dispositive of GM’s arguments. (Doc. 32 at 7-9.) In Ford, the Supreme Court held that, in
`
`some instances, a court can assert personal jurisdiction over a defendant where there does not exist the
`
`
`
`8
`
`

`

`Case 1:20-cv-01560-JLT Document 38 Filed 05/26/21 Page 9 of 16
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`type of “strict causal relationship” that the defendant originally argued was lacking here. See Ford,
`
`141 S. Ct. at 1026. One of these cases arose out of a car accident in Montana involving a Ford
`
`Explorer and the other out of a car accident in Minnesota involving a Crown Victoria. Id. at
`
`1023. Both cars were designed in Michigan, the Explorer was manufactured in Kentucky and sold in
`
`Washington, and the Crown Victoria was manufactured in Canada and sold in North Dakota. Id.
`
`Ford argued that a state only has jurisdiction over Ford if its “conduct in the State had given
`
`rise to the plaintiff’s claims,” meaning that Ford had “designed, manufactured, or—most likely—sold
`
`in the State the particular vehicle involved in the accident.” Id. Because neither plaintiff could make
`
`that showing in the two cases at issue, Ford argued that neither Montana nor Minnesota could assert
`
`personal jurisdiction over it in these cases. Id.
`
`The Supreme Court disagreed. The Court concluded that “Ford’s causation-only approach
`
`finds no support in [the] Court’s requirement of a ‘connection’ between a plaintiff’s suit and a
`
`defendant’s activities” and that “[n]one of [the Court’s] precedents has suggested that only a strict
`
`causal relationship between the defendant’s in-state activity and the litigation will do.” Id. at
`
`1026 (quoting Bristol-Myers Squibb Co. v. Super. Ct., 137 S. Ct. 1773, 1776 (2017)). Rather, in some
`
`cases, specific jurisdiction can attach “when a company like Ford serves a market for a product in the
`
`forum State and the product malfunctions there.” Id. at 1027.
`
`Citing to Ford, Plaintiffs allege that GM extensively marketed its products and services to
`
`Californians. (Doc. 32 at 8; Doc. 25 at ¶¶ 13, 15.) Plaintiffs claim that GM knows it is marketing to
`
`Californians because its websites contain disclaimers related to California law. (Doc. 25 at ¶ 16.)
`
`Plaintiffs contend that this marketing attracted consumers like Plaintiffs to GM’s websites, where they
`
`perused GM’s selection of vehicles. (Doc. 25 at ¶¶ 2, 39-40.) Plaintiffs claim that during those visits,
`
`GM enabled Decibel to wiretap California consumers. (Doc. 25 at ¶¶ 33-38, 41-44.) Plaintiffs argue
`
`that under Ford, GM “reach[ed] out beyond its home” and “exploit[ed] a market” in California,
`
`therefore, Plaintiffs’ lawsuit “arises out of” and “relates to” GM’s extensive connections with
`
`California. (Doc. 32 at 8, citing Ford, 141 S. Ct. at 1025-26, 1028.)
`
`27
`
`
`
`However, in Ford, the Supreme Court stated that its holding, which involved physical
`
`28
`
`
`
`purchases of cars, did not bear on the “doctrinal questions” associated with personal jurisdiction in the
`
`
`
`9
`
`

`

`Case 1:20-cv-01560-JLT Document 38 Filed 05/26/21 Page 10 of 16
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`online context. Ford, 141 S. Ct. at 1028 n.4 (“And we do not here consider internet transactions,
`
`which may raise doctrinal questions of their own.”) (citing Walden v. Fiore, 571 U. S. 277, 290, n. 9
`
`(2014)). Moreover, unlike in Ford, Plaintiffs’ claims have nothing to do with GM’s sales of vehicles
`
`in California or any other conduct by GM aimed at California. Indeed, as GM points out, neither
`
`Plaintiff even made a purchase on GM’s websites. (Doc. 29 at 19.) The plaintiffs in Ford alleged
`
`product liability claims based on allegedly defective vehicles that Ford had urged Montana and
`
`Minnesota residents to buy and that then caused injury in the forum state. Although GM seeks to serve
`
`the market for automobiles in California, the sales of those automobiles, unlike in Ford, are not related
`
`to this suit. Plaintiffs here allege claims for invasion of privacy based on software used to improve
`
`user experience and functionality on a nationally accessible website that is operated from Michigan.
`
`The relevant events and alleged injury all occurred online. (Doc. 29 at 20.)
`
`12
`
`
`
`The Court finds the Northern District cases cited by GM in reply to be persuasive. (Doc. 33 at
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`3, n.1.) Specifically, in Johnson v. Blue Nile, Inc., 2021 WL 1312771, at *3 (N.D. Cal. Apr. 8, 2021),
`
`the court rejected specific jurisdiction where plaintiffs raised nearly identical claims as here. These
`
`types of claims were also rejected in Electro Scan, Inc. v. Henrich, 2019 WL 1299010, at *5
`
`(E.D.Cal., 2019), when this Court held that a passive website, which “lacks file exchange through
`
`[the] website or interactive features targeting California customers,” or where the website owner
`
`“specifically targeted California,” do not establish personal jurisdiction. Thus, the Court finds there is
`
`no specific personal jurisdiction here.
`
`Additionally, GM contends that Plaintiffs do not, and cannot, allege any facts suggesting that
`
`their claims “arise out of or relate to” GM’s conduct in California. (Doc. 29 at 18.) Instead, Plaintiffs’
`
`claims arise from and relate to session recording software allegedly installed on GM’s nationally
`
`accessible websites, software that GM licensed and used outside California, which allegedly assisted
`
`Decibel’s interception of interactions with GM’s websites. (Doc. 29 at 19; Doc. 33 at 7.) GM itself is
`
`not alleged to have intercepted its website users’ communications and it actually cannot do so. (Doc.
`
`33 at 7.) GM asserts in reply that Plaintiffs’ claims against GM are predicated on GM’s decision to
`
`enter a license agreement with a non-California vendor to provide software for its websites, and that
`
`transaction took place entirely outside of California and has nothing to do with GM’s California sales
`
`
`
`10
`
`

`

`Case 1:20-cv-01560-JLT Document 38 Filed 05/26/21 Page 11 of 16
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`of vehicles. (Doc. 33 at 7.)
`
`Accordingly, GM’s operation of broadly accessible websites does not constitute the type of
`
`minimum contacts with the forum needed for specific personal jurisdiction. See Matus v. Premium
`
`Nutraceuticals, LLC, 715 F. App’x 662, 663 (9th Cir. 2018) (“If Premium can be haled into California
`
`merely on the basis of its universally accessible website, then, under Matus’s proposed rule, it can be
`
`haled into every state, and respectively, every online advertiser worldwide can be haled into
`
`California.”).
`
`
`
`
`
`
`
`b.
`
`Decibel
`
`Decibel entered into a software license agreement for GM’s use of Decibel software, including
`
`a tool called Session Replay. (See Doc. 30 at 7; Doc. 31 at 6.) Decibel claims that the allegations do
`
`not establish forum-directed conduct. (Doc. 30 at 12.) The Court agrees.
`
`Decibel’s Session Replay feature was created in England, not in California (Harris Decl. ¶ 10),
`
`and Decibel did not embed or use Decibel software on any website owned or operated by GM (Harris
`
`Decl. ¶ 8). Additionally, Decibel asserts GM is not a California entity (Doc. 25 at ¶ 6), and the license
`
`by which GM uses Decibel software was entered into outside of California (Harris Decl. ¶ 9).
`
`Importantly, Decibel argues that it is one or more steps removed from the website activities alleged to
`
`permit the exercise of personal jurisdiction over it. (Doc. 30 at 13.) Decibel is in the business of
`
`licensing software for commercial use to companies—not for use on specific websites—and the
`
`decision of whether or how to implement Decibel software on any particular website is that of the
`
`customer, not Decibel. (Harris Decl. ¶ 3.) The website at issue here, chevrolet.com, is a GM website
`
`(see Doc. 25 at ¶¶ 8, 35), not a Decibel website. Accordingly, Decibel contends, Decibel had nothing
`
`to do with the content of the website, the privacy policy on that website, or whether Plaintiffs (or any
`
`other California residents) accessed the website. (Doc. 30 at 13.)
`
`24
`
`
`
`Decibel further argues that even if Plaintiffs’ allegations about GM’s website were somehow
`
`25
`
`26
`
`27
`
`28
`
`
`
`attributable to Decibel, those allegations still fail to demonstrate personal jurisdiction exists. (Doc. 30
`
`at 13.) Plaintiffs’ allegations related to the size of the California market, defendants’ alleged
`
`knowledge that some California residents would visit the site, and statements in GM’s privacy policy
`
`related to California law on GM’s national website, do not amount to the directly targeted conduct
`
`
`
`11
`
`

`

`Case 1:20-cv-01560-JLT Document 38 Filed 05/26/21 Page 12 of 16
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`sufficient to establish jurisdiction over Decibel in California. (Doc. 30 at 13-14.) Operation of such a
`
`site must be combined with “something more—conduct directly targeting the forum”—to establish
`
`personal jurisdiction. Wanat, 970 F.3d at 1210 (quoting Mavrix Photo, Inc., 647 F.3d at 1229).
`
`According to Decibel, Plaintiffs do not allege that GM’s websites have a forum-specific focus and
`
`contends that this would be implausible because the automobile industry is not California-centered,
`
`but national (and even international). (Doc. 30 at 15.) Decibel asserts that Plaintiffs also do not allege
`
`that GM’s websites contain advertisements specifically targeting California customers. (Doc. 30 at
`
`15.) Rather, Decibel argues, the allegations in the first amended complaint, even if true, only support
`
`the notion that Defendants might foresee that a number of website visitors might be California
`
`residents, but that is insufficient to establish express aiming at the forum. (Doc. 30 at 15.) See Axiom
`
`Foods, Inc. v. Acerchem Int’l, Inc., 874 F.3d 1064, 1069-70 (9th Cir. 2017) (“In Walden, the Supreme
`
`Court rejected our conclusion that the defendants’ knowledge of the plaintiffs’ strong forum
`
`connections, plus the foreseeable harm the plaintiffs suffered in the forum, comprised sufficient
`
`minimum contacts.”) (internal quotation marks omitted).
`
`15
`
`
`
`In opposition, Plaintiffs allege that (1) Decibel entered into a contract with GM for the
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`provision of Decibel’s software; (2) Decibel intentionally provided its Session Replay software to
`
`GM; (3) “Decibel purposefully intercepted electronic transmissions from users of GM’s Websites;”
`
`and (4) “[t]he conduct also was expressly aimed at California residents.” (Doc. 31 at 8, citing Doc. 25
`
`at ¶¶ 15-17, 33-38, 64-66, 74, 81, 91-93.) Decibel concedes in reply that the first two allegations recite
`
`intentional acts on the part of Decibel relating to an alleged contractual relationship with, and
`
`provision of software to, GM; however, Decibel asserts, these two alleged activities have nothing to do
`
`with California. (Doc. 34 at 6.) As previously stated, GM is a Delaware corporation with its principal
`
`place of business in Michigan (Doc. 25 at ¶ 6; see also Burnell Decl. ¶¶ 3-5), and neither the creation
`
`of the Session Replay feature, nor the contract under which GM uses Decibel software, h