`Case 1:17-cv-00868—CFC-SRF Document 36 Filed 05/17/19 Page 1 of 4 PageID #: 1300
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF DELAWARE
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`UNIVERSITY OF
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`:
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`MASSACHUSETTS MEDICAL :
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`SCHOOL and CARMEL
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`LABORATORIES, LLC,
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`Plaintiffs,
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`v.
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`-
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`2
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`L’OREAL SA. and
`L’OREAL USA, INC.,
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`Civil Action No. 17-868-CFC
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`Defendants. :
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`MEMORANDUM ORDER
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`In this patent case, Defendant L’Oréal USA, Inc. (“L’Ore’al USA”) filed a
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`motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). DJ. 15.
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`Defendant L’Oréal S.A. (“L’Oréal S.A.”) filed a motion to dismiss pursuant to
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`Rule 12(b)(6) and Rule 12(b)(2). D.I. 23. Both motions were referred to a
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`Magistrate Judge who recommended in a Report and Recommendation (D.I. 31)
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`that the court (1) deny the motions insofar as they sought dismissal pursuant to
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`Rule 12(b)(6), and (2) grant L’Oréal S.A’s motion insofar as it sought dismissal
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`pursuant to Rule 12(b)(2) for lack of personal jurisdiction over L’Oréal S.A.
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`Case 1:17-cv-00868-CFC-SRF Document 36 Filed 05/17/19 Page 2 of 4 PageID #: 1301
`Case 1:17-cv-OO868—CFC-SRF Document 36 Filed 05/17/19 Page 2 of 4 PageID #: 1301
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`Plaintiffs object to the Magistrate Judge’s recommendation that the court
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`“grant L’Ore’al S.A.’s Rule 12(b)(2) motion to dismiss[,]” D.I. 31 at l, to the extent
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`the recommendation was based on the Magistrate Judge’s decision to “discredit[ ]
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`Plaintiffs’ argument that L’Oréal USA. is L’Oréal S.A.’s United States agent for
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`the purpose of designing and developing the accused [infringing] products[,]” D.I.
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`32 at 1. I review de novo the findings to which Plaintiffs object.
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`Personal jurisdiction analysis for patent claims is governed by Federal
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`Circuit law. Elecs. For Imaging, Inc. v. Coyle, 340 F.3d 1344, 1348 (Fed. Cir.
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`2003). Whether to grant jurisdictional discovery, however, is a question governed
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`by regional circuit law. See Autogenomics, Inc. v. Oxford Gene Tech. Ltd, 566
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`F.3d 1012, 1021—22 (Fed. Cir. 2009) (“We review the district court’s denial of
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`[jurisdictional] discovery, an issue not unique to patent law, for abuse of discretion,
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`applying the law of the regional circuit.” (citations omitted».
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`Under Federal Circuit law, in deciding whether personal jurisdiction exists,
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`“a district court must accept the uncontroverted allegations in the plaintiff’s
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`complaint as true and resolve any factual conflicts in [any] affidavits [submitted by
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`the parties] in the plaintiff s favor.” Coyle, 340 F.3d at 1349. When a motion to
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`dismiss for lack of personal jurisdiction is decided on the basis of affidavits and
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`other written materials in the absence of an evidentiary hearing, the plaintiff need
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`only make a primafacie showing that a defendant is subject to the court’s
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`Case 1:17-cv-00868-CFC-SRF Document 36 Filed 05/17/19 Page 3 of 4 PageID #: 1302
`Case 1:17-cv-OO868—CFC-SRF Document 36 Filed 05/17/19 Page 3 of 4 PageID #: 1302
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`jurisdiction. Id. To establish jurisdiction under an agency theory, Plaintiffs “must
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`show that [L’Oréal S.A.] exercises control over the activities of” L’Ore’al USA.
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`Celgard, LLC 12. SK Innovation Co., Ltd, 792 F.3d 1373, 1379 (Fed. Cir. 2015).
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`Under Third Circuit law, “courts are to assist the plaintiff by allowing
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`jurisdictional discovery unless the plaintiff 5 claim is ‘clearly fi'ivolous.
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`Toys
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`9”
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`“R ” Us, Inc. v. Step Two, S.A., 318 F.3d 446, 456 (3d Cir. 2003) (citation omitted).
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`If a plaintiff presents factual allegations that suggest with “reasonable
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`particularity” the possible existence of personal jurisdiction over a defendant, then >
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`“the plaintiff’s right to conduct jurisdictional discovery should be sustained.” Id.
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`Plaintiffs argue that the Magistrate Judge “brushed [
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`] aside” what Plaintiffs
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`describe as “substantial evidence that L’Oréal S.A. develops and sells the Accused
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`Products in the United States, and in Delaware, by designing and developing the
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`infringing Accused Products, which [L’Oréal USA] then manufactures and
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`distributes here.” D.I. 32 at 3—4. But the Magistrate Judge expressly addressed
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`and thoughtfully considered the evidence proffered by Plaintiffs, see DJ. 31 at 21-
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`24; and, having reviewed the proffered evidence myself, I agree with the
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`Magistrate Judge that the evidence in question, even when viewed most favorably
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`for Plaintiffs, does not constitute primafacia evidence, let alone substantial
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`evidence, that L’Oréal S.A. exercised control over L’Oréal USA’s manufacture
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`and/or distribution of the Accused Products in the United States.
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`Case 1:17-cv-00868-CFC-SRF Document 36 Filed 05/17/19 Page 4 of 4 PageID #: 1303
`Case 1:17-cv-00868-CFC-SRF Document 36 Filed 05/17/19 Page 4 of 4 PageID #: 1303
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`I also agree with the Magistrate Judge’s conclusion that Plaintiffs have failed
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`to suggest with reasonable particularity that this Court may have personal
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`jurisdiction over L’Oréal S.A. See D.I. 31 at 24. “A plaintiff may not [
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`]
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`undertake a fishing expedition based only upon bare allegations, under the guise of
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`jurisdictional discovery.” Eurofins Pharma US Holdings v. BioAllz'ance Pharma
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`SA, 623 F.3d 147, 157 (3d Cir. 2010) (citation omitted).
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`Accordingly, Plaintiffs’ objection (D1. 32) is OVERRULED; and, there
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`being no other objections to the Report and Recommendation, the Report and
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`Recommendation (D.I. 31) is ADOPTED. Defendant L’Oréal USA, Inc.’s motion
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`to dismiss (DJ. 15) is DENIED. Defendant L’Oréal S.A.’S motion to dismiss (D.I.
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`23) is GRANTED.
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`IT IS SO ORDERED.
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