Match Group, LLC v. Bumble Trading Inc.

Western District of Texas, txwd-6:2018-cv-00080

MOTION to Dismiss Plaintiff Match Group, LLCs Fourth Amended Complaint by Worldwide Vision Limited.

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8 IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS WACO DIVISION MATCH GROUP, LLC, Plaintiff, vs. BUMBLE TRADING, INC., BUMBLE HOLDING, LTD., BADOO TRADING LIMITED, MAGIC LAB CO., WORLDWIDE VISION LIMITED, BADOO LIMITED, BADOO SOFTWARE LIMITED, and BADOO TECHNOLOGIES Case No.: 6:18-cv-00080-ADA-JCM LIMITED, JURY TRIAL Defendants. BUMBLE TRADING, INC. and BUMBLE HOLDING, LTD., Cross-Plaintiffs, vs. MATCH GROUP, LLC and IAC/INTERACTIVE CORP., Cross-Defendants. DEFENDANT WORLDWIDE VISION LIMITED'S MOTION TO DISMISS PLAINTIFF MATCH GROUP, LLC'S FOURTH AMENDED COMPLAINT UNDER RULE 12(b)(1), OR IN THE ALTERNATIVE, MOTION TO STRIKE UNDER RULE 12(f) 8 TABLE OF CONTENTS Page I. INTRODUCTION ............................................................................................................. 1 II. STATEMENT OF FACTS ................................................................................................ 1 A. Match's Allegations Against Worldwide Vision ................................................... 1 B. Worldwide Vision Is a Foreign Entity and Does Not Do Business in Texas ........ 3 C. Worldwide Vision Does Not Own or Control the Bumble App ............................ 4 D. Match Does Not Allege Sufficient Worldwide Vision Contacts with Texas ........ 5 III. LEGAL STANDARD........................................................................................................ 5 IV. ARGUMENT ..................................................................................................................... 7 A. The Court Cannot Exercise General Jurisdiction Over Worldwide Vision ........... 7 B. There is No Basis to Exercise Specific Jurisdiction Over Worldwide Vision ..................................................................................................................... 9 1. Specific jurisdiction does not exist for Match's Patent Claims because Worldwide Vision does not operate or manage the Bumble app ............................................................................................................ 10 2. Match's Tenth Cause of Action does not allege an injury resulting from Worldwide Vision's contacts with Texas sufficient for specific jurisdiction .................................................................................. 12 C. It Would Be Unreasonable to Exercise Jurisdiction Over Worldwide Vision ................................................................................................................... 16 D. Section 1367(c)(3) Permits the Court to Dismiss the Tenth Cause of Action as to Worldwide Vision............................................................................ 17 E. Match's Tenth Cause of Action Violates the Scheduling Order.......................... 19 V. CONCLUSION ................................................................................................................ 20 i 8 TABLE OF AUTHORITIES Page Cases Access Telecom, Inc. v. MCI Telecommc'ns Corp., 197 F.3d 694 (5th Cir. 1999) .....................................................................................................8 Asahi Metal Indus. Co., Ltd. v. Super. Ct., 480 U.S. 102 (1987) .............................................................................................................7, 16 Avocent Huntsville Corp. v. Aten Int'l Co., 552 F.3d 1324 (Fed. Cir. 2008)..........................................................................................11, 12 BASF Corp. v. Willowood, LLC, 359 F. Supp. 3d 1018 (D. Colo. 2019) .....................................................................................11 Beverly Hills Fan Co. v. Royal Sovereign Corp., 21 F.3d 1558 (Fed. Cir. 1994)..................................................................................................12 Bristol-Myers Squibb Co. v. Super. Ct., 137 S. Ct. 1773 (2017) .......................................................................................................18, 19 Calder v. Jones, 465 U.S. 783 (1984) ...................................................................................................................6 Cent. States, Se. & Sw. Areas Pension Fund v. Reimer Express World Corp., 230 F.3d 934 (7th Cir. 2000) .....................................................................................................9 Daimler AG v. Bauman, 571 U.S. 117 (2014) ...............................................................................................................7, 8 Filgueira v. U.S. Bank Nat'l Ass'n, 734 F.3d 420 (5th Cir. 2013) ...................................................................................................19 Freescale Semiconductor, Inc. v. Amtran Tech. Co., Ltd., No. 12-cv-0644, 2013 WL 12121034 (W.D. Tex. June 12, 2013) ............................................9 G&H Partners, Ltd. v. Boer Goats Int'l Ltd., 896 F. Supp. 660 (W.D. Tex. 1995).........................................................................................15 Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011) ...................................................................................................................7 Guidry v. U.S. Tobacco Co., Inc., 188 F.3d 619 (5th Cir. 1999) ...................................................................................................17 ii 8 TABLE OF AUTHORITIES (continued) Page Gundle Lining Constr. Corp. v. Adams Cty. Asphalt, Inc., 85 F.3d 201 (5th Cir. 1996) .......................................................................................................6 Head v. Las Vegas Sands, LLC, 760 F. App'x 281 (5th Cir. 2019) ........................................................................................7, 11 Helicopteros Nacionales de Colom., S.A. v. Hall, 466 U.S. 408 (1984) ...........................................................................................................15, 16 Int'l Energy Ventures Mgmt., L.L.C. v. United Energy Grp., Ltd., 818 F.3d 193 (5th Cir. 2016) .....................................................................................................9 Johnson v. Mammoth Recreations, Inc., 975 F.2d 604 (9th Cir. 1992) ...................................................................................................20 Johnston v. Multidata Sys. Int'l Corp., 523 F.3d 602 (5th Cir. 2008) ........................................................................................... passim Kitt Holdings, Inc. v. Mobileye B.V., No. 17-cv-2421, 2018 WL 3389747 (S.D. Ind. July 11, 2018) ...............................................11 Monkton Ins. Servs., Ltd. v. Ritter, 768 F.3d 429 (5th Cir. 2014) ...................................................................................................14 Novikova v. Puig, No. 09-cv-1655, 2012 WL 13026810 (N.D. Tex. July 20, 2012) ............................................20 Nuance Commc'ns, Inc. v Abbyy Software House, 626 F.3d 1222 (Fed. Cir. 2010)................................................................................................10 Panda Brandywine Corp. v. Potomac Elec. Power Co., 253 F.3d 865 (5th Cir. 2001) ...................................................................................................15 Parker & Parsley Petroleum Co. v. Dresser Indus., 972 F.2d 580 (5th Cir. 1992) ...................................................................................................18 Patin v. Thoroughbred Power Boats, Inc., 294 F.3d 640 (5th Cir. 2002) .....................................................................................................9 Rowan Cos., Inc. v. Griffin, 876 F.2d 26 (5th Cir. 1989) .....................................................................................................13 Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574 (1999) .................................................................................................................19 iii 8 TABLE OF AUTHORITIES (continued) Page S&W Enters., L.L.C. v. SouthTrust Bank of Ala. NA, 315 F.3d 533 (5th Cir. 2003) ...................................................................................................19 Sangha v. Navig8 ShipMgmt. Private, Ltd., 882 F.3d 96 (5th Cir. 2018) ............................................................................................. passim Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d 266 (5th Cir. 2006) .....................................................................................................6 Slocum v. Livington, No. 11-cv-0486, 2012 WL 2088953 (S.D. Tex. June 8, 2012) ................................................19 Stuart v. Spademan, 772 F.2d 1185 (5th Cir. 1985) ...................................................................................................6 TV Azteca v. Ruiz, 490 S.W.3d 29 (Tex. 2016)........................................................................................................5 Walden v. Fiore, 571 U.S. 277 (2014) .................................................................................................................14 Walk Haydel & Assocs., Inc. v. Coastal Power Prod. Co., 517 F.3d 235 (5th Cir. 2008) .....................................................................................................9 Wien Air Alaska, Inc. v. Brandt, 195 F.3d 208 (5th Cir. 1999) ...............................................................................................9, 16 Wilson v. Belin, 20 F.3d 644 (5th Cir. 1994) .......................................................................................................6 Statutes 28 U.S.C. § 1367(c)(3).............................................................................................................17, 18 Tex. Civ. Prac. & Rem. Code § 17.042(2) .......................................................................................5 iv 8 TABLE OF AUTHORITIES (continued) Page Other Authorities Fed. R. Civ. P. 4(k)(1) ........................................................................................................................................5 4(k)(2) ........................................................................................................................................5 12(b)(1) ................................................................................................................................5, 20 12(f)....................................................................................................................................19, 20 15..............................................................................................................................................19 15(a) .........................................................................................................................................20 16..............................................................................................................................................19 16(b)(4) ....................................................................................................................................19 v 8 I. INTRODUCTION After litigating this case for over a year, plaintiff Match Group, LLC ("Match") in its Fourth Amended Complaint (ECF No. 100) added a number of defendants that are foreign parents and / or affiliates of the two previously named defendants, Bumble Trading, Inc. and Bumble Holding, Ltd. (collectively, "Bumble"). This motion to dismiss is brought on behalf of one of those entities, a Bermuda company Worldwide Vision Limited ("Worldwide Vision"), because the Court cannot exercise personal jurisdiction over it. Worldwide Vision does not do business in Texas and does not control, operate, support, or distribute the Bumble mobile-application at the heart of the dispute between Bumble and Match. Therefore, there is no basis for general jurisdiction in Texas or specific jurisdiction over Match's patent claims related to the Bumble app. Match's request for declaratory judgment related to Bumble's counterclaims also does not support an exercise of personal jurisdiction. Match does not and cannot allege facts sufficient to hale Worldwide Vision into a Texas court because there are no relevant connections between Worldwide Vision and Texas. In any event, if the Court agrees that it cannot exercise personal jurisdiction for Match's patent claims against Worldwide Vision, it should also dismiss the declaratory relief claim because the Court only has original jurisdiction over the patent claims. Simply put, Match has not met its burden to establish this Court's ability to exercise personal jurisdiction over Worldwide Vision, and, as a result, the Court should dismiss all claims asserted against Worldwide Vision. II. STATEMENT OF FACTS A. Match's Allegations Against Worldwide Vision Match's Fourth Amended Complaint alleges ten separate causes of action. Seven of the claims are brought under federal intellectual property statutes: three claims for patent infringement, 1 8 two claims for trademark infringement, one for trade dress infringement, and one for trademark dilution. (Fourth Am. Compl. at ¶¶ 87-245.) Two causes of action are brought under Texas law: one for unfair competition and one for trade secret misappropriation. (Id. at ¶¶ 246-278.) And the tenth cause of action—added to Match's complaint when it added Worldwide Vision and other new defendants on August 2, 2019—requests a declaration of "non-liability arising out of Bumble's claims related to the alleged false and misleading representations made to Bumble during the course of Match Group, Inc.'s evaluation of a potential acquisition of Bumble." (See id. at ¶¶ 279-313.) Match only names Worldwide Vision as a defendant to four causes of action. Match alleges under its first, second, and third causes of action (the "Patent Claims") that Worldwide Vision is directly liable for patent infringement to the extent that it "own[s] or control[s]" Bumble's servers (id. at ¶¶ 123, 153, 199), and indirectly infringes on Match's patents by assisting Bumble with the technical implementation of the Bumble app or by encouraging end-users to install and use the app in the United States (id. at ¶¶ 124, 127, 154, 157, 200, 203). The fourth claim against Worldwide Vision is the tenth cause of action for declaratory relief (the "Tenth Cause of Action"), seeking a judgment that Match "has not defrauded, engaged in negligent misrepresentation, unfair competition, or tortious interference with prospective business relations." (Id. at 82, Prayer for Relief no. 8.) Match alleges that this Court has personal jurisdiction over Worldwide Vision for the Patent Claims because, along with the other newly named defendants, it "ha[s] committed acts of patent infringement and/or induced and/or ha[s] contributed to acts of patent infringement by Bumble and/or others in the Western District of the Texas [sic], the State of Texas, and elsewhere in the United States." (Id. at ¶ 16.) Match alleges the Court has personal jurisdiction over 2 8 Worldwide Vision for the declaratory relief claim because Idan Wallichman, a "representative of Worldwide Vision," traveled to Texas "in connection with [the] acquisition discussions complained of in Bumble's counterclaims," and because Mr. Wallichman and Andrey Andreev, "the ultimate controlling member of the entire Worldwide Vision Group," engaged in discussions with Match "in connection with a contemplated transaction that would have created a continuous and systematic relationship with Match Group, Inc. in Texas." (Id. at ¶ 17.) According to Match, jurisdiction inures over the Tenth Cause of Action because "[t]hese entities"—Worldwide Vision and the other new defendants—"seek to maintain uncertainty about whether they may in the future raise claims" relating to their "alleged reliance on alleged representations from Match Group, Inc. concerning Match Group, Inc.'s intentions to create this long term, continuous relationship between itself in Texas and Worldwide Vision Group." (Id.) B. Worldwide Vision Is a Foreign Entity and Does Not Do Business in Texas Worldwide Vision is a foreign holding company incorporated and registered to do business in the British territory of Bermuda. (Decl. of Kevin Insley ("Insley Decl.") at ¶ 3; see Fourth Am. Compl. ¶ 6.) Worldwide Vision has no headquarters, let alone offices, or any place of business in the United States. (Insley Decl. at ¶ 4.) Worldwide Vision is the ultimate parent company of, among other things, successful dating websites and dating applications around the world. (Id. at ¶ 5.) Relevant to this action, Worldwide Vision's portfolio includes Badoo Trading Limited, Badoo Limited, Badoo Software Limited, and Badoo Technologies Limited. (Id.) None of these subsidiaries are formed under the laws of the United States. (Id.) The Bumble entities that are parties to this action are subsidiaries of Badoo Trading Limited. (Id.) Worldwide Vision does not have jurisdictional ties to the state of Texas. For example, the company:  Does not own any property in Texas; 3 8  Does not lease any property in Texas;  Does not have any offices in Texas;  Does not have a bank account in Texas;  Does not have employees in Texas;  Does not have contractors in Texas;  Is not registered to do business in Texas;  Does not provide any services to persons in Texas;  Does not pay taxes either to the State of Texas or to any city in Texas; and  Does not have an agent for service of process in Texas. (Insley Decl. at ¶¶ 6-15.) Additionally, litigating this case in Texas would be burdensome on Worldwide Vision because its potential witnesses reside outside of the state, and none of the company's files or records are located in Texas. (Id. at ¶ 22.) C. Worldwide Vision Does Not Own or Control the Bumble App Worldwide Vision does not have any direct ownership interest in the intellectual property supporting the Bumble mobile application ("the Bumble app") at issue in this litigation. (Id. at ¶ 15.) The company was not involved in the design or development of the Bumble app, it provides no assistance or support for the app, it does not in any way operate or manage distribution of the app, and does not own or control any of the servers used by the Bumble app. (Id. at ¶¶ 16-18.) Additionally, Worldwide Vision does not receive any revenue from purchases made on the Bumble app. (Id. at ¶ 19.) 4 8 D. Match Does Not Allege Sufficient Worldwide Vision Contacts with Texas Match's only allegation of a direct contact between Worldwide Vision and Texas is that Idan Wallichman, the alleged "CFO of 'Badoo,'" travelled to Texas to meet with Match on behalf of Worldwide Vision. (See Fourth Am. Compl. at ¶ 17.) Mr. Wallichman, however, did not travel to Texas on behalf of Worldwide Vision. (See Insley Decl. at ¶ 21.) In fact, Worldwide Vision never authorized any representative to travel to Texas to represent the company in discussions regarding a potential acquisition of Bumble Trading, Inc. or Bumble Holding, Ltd. by Match. (Id.) Additionally, the meeting that Match references took place in November 2017, prior to the predicate for Match's liability set forth in Bumble's counterclaims. (See Fourth Am. Compl. at ¶ 17; ECF No. 66, Counterclaims at ¶¶ 55-76.) III. LEGAL STANDARD A federal court may exercise personal jurisdiction over a defendant "who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located; . . . who is. . . served within a judicial district of the United States. . .; or. . . when authorized by a federal statute." Fed. R. Civ. P. 4(k)(1). For federal claims outside state-court jurisdiction, serving a defendant establishes jurisdiction if "the defendant is not subject to jurisdiction in any state's courts of general jurisdiction; and. . . exercising jurisdiction is consistent with the United States Constitution and laws." Fed. R. Civ. P. 4(k)(2). Lack of personal jurisdiction over a defendant mandates dismissal. See Fed. R. Civ. P. 12(b)(1). "Courts have personal jurisdiction over a nonresident defendant when the state's long-arm statute permits such jurisdiction and the exercise of jurisdiction is consistent with federal and state due-process guarantees." TV Azteca v. Ruiz, 490 S.W.3d 29, 36 (Tex. 2016) (citation omitted). Texas's long-arm statute extends Texas courts' power to exercise personal jurisdiction to the limits of due process under the Constitution of the United States. See Tex. Civ. Prac. & Rem. Code § 5 8 17.042(2) (the Texas "long-arm statute"); Johnston v. Multidata Sys. Int'l Corp., 523 F.3d 602, 609 (5th Cir. 2008) ("Because the Texas long-arm statute extends to the limits of federal due process, the two-step inquiry collapses into one federal due process analysis.") (citations omitted). Federal due process requires a plaintiff to prove: (1) that the non-resident "purposely availed himself of the benefits and protections of the forum state by establishing 'minimum contacts' with the state; and (2) that the exercise of jurisdiction does not offend 'traditional notions of fair play and substantial justice.'" Johnston, 523 F.3d at 609 (citing Wilson v. Belin, 20 F.3d 644, 647 (5th Cir. 1994)). A defendant's "contacts" to the forum state "can give rise to either specific jurisdiction or general jurisdiction." Sangha v. Navig8 ShipMgmt. Private, Ltd., 882 F.3d 96, 101 (5th Cir. 2018) (citation omitted). A court may assert general jurisdiction over non- resident defendants only "when their affiliations with the State are so continuous and systematic as to render them essentially at home in the forum State." Id. at 101-02 (internal quotation and citations omitted). While specific jurisdiction exists "when a nonresident defendant has purposefully directed its activities at the forum state and the litigation results from alleged injuries that arise out of or relate to those activities." Id. at 101 (internal quotation and citations omitted). "[T]he plaintiff bears the burden of establishing the district court's jurisdiction over the nonresident" defendant. Gundle Lining Constr. Corp. v. Adams Cty. Asphalt, Inc., 85 F.3d 201, 204 (5th Cir. 1996) (citing Stuart v. Spademan, 772 F.2d 1185, 1192 (5th Cir. 1985)). A plaintiff bringing multiple claims "that arise out of different forum contacts" must establish jurisdiction "for each claim." Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d 266, 274 (5th Cir. 2006). Furthermore, "[e]ach defendant's contacts with the forum State must be assessed individually." Calder v. Jones, 465 U.S. 783, 790 (1984). Plaintiffs are therefore "require[d] . . . to submit evidence supporting personal jurisdiction over each defendant without grouping them together." 6 8 Head v. Las Vegas Sands, LLC, 760 F. App'x 281, 284 (5th Cir. 2019) (citation omitted). The plaintiff's burden is also greater as applied to defendants residing outside of the United States. See Asahi Metal Indus. Co., Ltd. v. Super. Ct., 480 U.S. 102, 114 (1987) ("The unique burdens placed upon one who must defend oneself in a foreign legal system should have significant weight in assessing the reasonableness of stretching the long arm of personal jurisdiction over national borders."); Johnston, 523 F.3d at 615 ("Great care and reserve should be exercised when extending our notions of personal jurisdiction into the international field.") (internal quotation and citations omitted). IV. ARGUMENT A. The Court Cannot Exercise General Jurisdiction Over Worldwide Vision Worldwide Vision is not subject to general jurisdiction in Texas. "[A] court may assert jurisdiction over a foreign corporation 'to hear any and all claims against [it]' only when the corporation's affiliations with the State in which suit is brought are so constant and pervasive 'as to render [the corporation] essentially at home in the forum State.'" Daimler AG v. Bauman, 571 U.S. 117, 122 (2014) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)). "Establishing general jurisdiction is 'difficult' and requires 'extensive contacts between a defendant and a forum.'" Sangha, 882 F.3d at 101-02 (citing Johnston, 523 F.3d at 609). A foreign entity is "essentially at home in the forum State" only if it has "continuous and systematic" affiliations with the State that are "comparable to a domestic enterprise in that State"— e.g., the entity is incorporated in, or has its principal place of business in the forum State. Daimler AG, 571 U.S. at 122, 133 n.11 (internal quotation and citation omitted). Worldwide Vision is not at home in Texas. Worldwide Vision is not incorporated or registered to do business in Texas, has no property or offices in Texas, has no employees or contractors in Texas, and does not have a bank account 7 8 or pay taxes in Texas. (Insley Decl. ¶¶ 3-14); see also supra Section II.B (describing additional lack of contacts with forum). Accordingly, Worldwide Vision does not have "continuous and systematic" affiliations with the forum state which would "render [it] essentially at home" in Texas, and therefore it is not subject to this Court's general jurisdiction. Daimler AG, 571 U.S. at 122, 133 n.11 (internal quotation and citation omitted); see Sangha, 882 F.3d at 102 (holding no general jurisdiction over defendant that was "not incorporated in Texas, ha[d] a foreign principal place of business, ha[d] no officers or shareholders in Texas, d[id] not pay taxes in Texas, and d[id] not have an agent for service of process in Texas"). To the extent Match believes general jurisdiction inures because Worldwide Vision engaged in negotiations with Match about "a contemplated transaction that would have created a continuous and systematic relationship with Match Group, Inc. in Texas," it is wrong. (Fourth Am. Compl. ¶ 17 (emphasis added).) A "contemplated transaction" that "would have" created a "long term, continuous relationship" with a Texas company (id.), is not enough to establish general jurisdiction over a defendant. Indeed, even if the transaction were consummated, "in order to confer general jurisdiction a defendant must have a business presence in Texas. It is not enough that a corporation do business with Texas." Johnston, 523 F.3d at 611 (citing Access Telecom, Inc. v. MCI Telecommc'ns Corp., 197 F.3d 694, 717 (5th Cir. 1999)). The fact that Worldwide Vision allegedly engaged in negotiations with a Texas company does not amount to "continuous and systematic" contacts with the forum—"comparable to a domestic enterprise" in the State— giving rise to general jurisdiction. Daimler AG, 571 U.S. at 122, 133 n.11 (internal quotation and citation omitted). Match is also incorrect if it intends to argue that Worldwide Vision's affiliation with the Texas-based Bumble entity creates sufficient contacts for general jurisdiction. (See, e.g., Fourth 8 8 Am. Compl. ¶ 82 (alleging facts about the corporate structure of "the Worldwide Vision Limited group of companies")). Bumble Trading Inc.'s jurisdictional contacts with Texas would only be imputed to Worldwide Vision if Match could establish that the companies are functionally "the same entity," which it has not done and cannot do. Patin v. Thoroughbred Power Boats, Inc., 294 F.3d 640, 649-50, 653 (5th Cir. 2002) (only where corporations are "alter ego[s]" can jurisdictional contacts be imputed); see, e.g., Freescale Semiconductor, Inc. v. Amtran Tech. Co., Ltd., No. 12- cv-0644, 2013 WL 12121034, at *4 (W.D. Tex. June 12, 2013) (where record did not "conclusively demonstrate an alter-ego relationship" there was no jurisdiction over foreign parent company); see also Cent. States, Se. & Sw. Areas Pension Fund v. Reimer Express World Corp., 230 F.3d 934, 943 (7th Cir. 2000) ("[T]he primary purpose of the corporate form is to prevent a company's owners, whether they are persons or other corporations, from being liable for the activities of the company. . . . [As a result,] such owners do not reasonably anticipate being hailed into a foreign forum to defend against liability for the errors of the corporation."). B. There is No Basis to Exercise Specific Jurisdiction Over Worldwide Vision Specific jurisdiction exists when a defendant has "purposefully directed its activities at the forum state and the litigation results from alleged injuries that arise out of or relate to those activities." Walk Haydel & Assocs., Inc. v. Coastal Power Prod. Co., 517 F.3d 235, 243 (5th Cir. 2008) (internal quotation and citation omitted); see also Int'l Energy Ventures Mgmt., L.L.C. v. United Energy Grp., Ltd., 818 F.3d 193, 212 (5th Cir. 2016) (specific jurisdiction may exist "over a nonresident defendant whose contacts with the forum state are singular or sporadic only if the cause of action asserted arises out of or is related to those contacts") (citations omitted). Match has not and cannot establish a prima facie case that specific jurisdiction exists for the Patent Claims or the Tenth Cause of Action. See Wien Air Alaska, Inc. v. Brandt, 195 F.3d 208, 215 (5th Cir. 1999) (plaintiff bears burden of establishing prima facie case for jurisdiction over defendant). 9 8 1. Specific jurisdiction does not exist for Match's Patent Claims because Worldwide Vision does not operate or manage the Bumble app. Federal Circuit law governs whether this Court has personal jurisdiction over Match's Patent Claims against Worldwide Vision. Nuance Commc'ns, Inc. v Abbyy Software House, 626 F.3d 1222, 1231 (Fed. Cir. 2010). To determine personal jurisdiction, the Court must consider whether: (1) the defendant purposefully directed activities at residents of the forum; (2) the claim arises out of or relates to those activities; and (3) whether assertion of personal jurisdiction is reasonable and fair. See id. The Court cannot find personal jurisdiction over Worldwide Vision under this test because Worldwide Vision has no activities directed at residents of this district. To find personal jurisdiction then would be unreasonable and unfair. Worldwide Vision has not participated in any forum-related activities sufficient to give rise to personal jurisdiction over Match's Patent Claims. Match alleges that this Court has personal jurisdiction over Worldwide Vision because members of the "Worldwide Vision Group" "committed acts of patent infringement and/or induced and/or [has] contributed to acts of patent infringement by Bumble and/or others in the Western District of Texas." (Fourth Am. Compl. ¶ 16.) According to Match, Worldwide Vision: (1) "own[s] or control[s]" Bumble's servers; (2) "encourage[s], instruct[s], direct[s], control[s], and/or assist[s] Bumble with the technical implantation of the Bumble app, and/or encourage[s] and instruct[s] end-user customers to install and use the Bumble app in the United States;" and (3) "provide[s] within the United States software components," such as "the Bumble app and the download package that contains the Bumble app for interacting with Bumble's servers," "for operating Bumble's app and interacting with the servers associated with Bumble's app." (Id. at ¶¶ 123-24, 127; see also id. at ¶¶ 153-54, 157, 199- 200, 203.) These allegations are not only false, as explained below, but lack the requisite specificity to establish jurisdiction. See Head, 760 F. App'x at 284 (plaintiffs cannot establish 10 8 jurisdiction by "grouping. . . together" evidence supporting personal jurisdiction against defendants); Sangha, 882 F.3d at 102 ("overgeneralized assertions" are insufficient to bear plaintiff's jurisdictional burden) (quoting Johnston, 523 F.3d at 609). Contrary to Match's assertions, Worldwide Vision was not and is not involved in the design or development of the Bumble app. (Insley Decl. at ¶ 17.) Nor does Worldwide Vision have any role in operating or managing the distribution of the Bumble app, including in the technical implementation of the app. (Id. at ¶ 19.) Worldwide Vision also does not own or control any of Bumble's servers. (Id. at ¶ 18.) Worldwide Vision provides no assistance or support for the Bumble app, and it does not receive any revenue from Bumble's in-app purchases. (Id. at ¶¶ 17- 19.) Accordingly, Worldwide Vision has not directed any activities at residents of this forum and Match's allegations cannot overcome the declaration submitted by Worldwide Vision. See, e.g., BASF Corp. v. Willowood, LLC, 359 F. Supp. 3d 1018, 1029 (D. Colo. 2019) (granting motion to dismiss foreign parent because patentee could not show that the Hong Kong parent purposefully sold or was involved with the selling of the infringing product and the patentee's claims were directly contradicted by affidavits from the parent corporation); Kitt Holdings, Inc. v. Mobileye B.V., No. 17-cv-2421, 2018 WL 3389747, at *2-3 (S.D. Ind. July 11, 2018) (dismissing for lack of personal jurisdiction infringement action brought against a Dutch holding company because the patentee failed to "point[] to evidence showing that Mobileye B.V., as opposed to its subsidiaries, has the minimum contacts with the forum" required). Moreover, Worldwide Vision's mere status as a parent corporation is insufficient for the Court to exercise personal jurisdiction over Worldwide Vision for Match's Patent Claims. See Avocent Huntsville Corp. v. Aten Int'l Co., 552 F.3d 1324, 1337-39 (Fed. Cir. 2008), cert. denied, 557 U.S. 904 (2009) (holding that absent clear evidence parent was controlling activities of 11 8 subsidiary there was no specific jurisdiction over patent claims); see also supra Section IV.A (explaining parent-subsidiary relationship insufficient for establishing general jurisdiction). As explained above, Worldwide Vision is a Bermuda-based holding company that does not design, deliver, or receive revenue from any of the allegedly infringing products to consumers in Texas. See supra Section II.B. Match's allegations as to Worldwide Vision fall well short of establishing personal jurisdiction over Worldwide Vision as to the Patent Claims. See Avocent, 552 F.3d at 1138-39 (complaint's unspecified allegations concerning parent company's relationship to products at issue not sufficient to make prima facie showing of jurisdiction). 2. Match's Tenth Cause of Action does not allege an injury resulting from Worldwide Vision's contacts with Texas sufficient for specific jurisdiction. Match's Tenth Cause of Action is fundamentally ill-defined and the allegations in the Fourth Amended Complaint do not support an exercise of specific jurisdiction. Match seeks a declaration "against the entities in the Worldwide Vision Group," that Match "has not defrauded, engaged in negligent misrepresentation, unfair competition, or tortious interference with prospective business relations." (Fourth Am. Compl. at 82, Prayer for Relief no. 8.) At the outset, Match does not allege that Worldwide Vision's actions (let alone any actions in Texas) resulted in an alleged injury. This alone is enough to defeat jurisdiction. See Sangha, 882 F.3d at 101 (specific jurisdiction over a nonresident defendant exists where its "purposefully[- ]directed" activities in the state result in the "alleged injuries" giving rise to the litigation) (internal quotation and citations omitted). According to the Fourth Amended Complaint, "To the extent Bumble suffered cognizable harm based on a failure for its ultimate parent to receive money from an acquisition or investment," and "the remaining members of the Worldwide Vision Group. . . logically suffered identical alleged harm" and have not "agreed to be bound by any adverse judgment against Bumble," there is a "case and controversy concerning whether these entities will 12 8 allege substantively similar claims. . . in the future." (Fourth Am. Compl. ¶¶ 284-288.) In other words, Match wants the Court to declare it is not liable to Bumble (an issue already properly pending before the Court),1 and that the "relevant entities," including Worldwide Vision, should be bound by that judgment. Match's Tenth Cause of Action is effectively asking the Court to prematurely apply collateral estoppel or claim preclusion. The question of who should be bound by a potential future ruling on Bumble's counterclaims does not present a live "controversy" between Worldwide Vision and Match. See Rowan Cos., Inc. v. Griffin, 876 F.2d 26, 28 (5th Cir. 1989) (controversy underlying declaratory relief claim must not be "hypothetical, conjectural, conditional or based upon the possibility of a factual situation that may never develop") (internal quotation and citation omitted). And for jurisdictional purposes, the uncertain possibility that "members of the Worldwide Vision Group" will allege claims against Match is not an injury connected to Worldwide Vision's activities directed at Texas. (Fourth Am. Compl. ¶ 288.) Furthermore, the allegations Match does make related to the Match-Bumble acquisition negotiations do not "connect[] [Worldwide Vision] to the forum in a meaningful way" sufficient to establish specific jurisdiction. Sangha, 882 F.3d at 103-04. Match alleges the Court has personal jurisdiction over Worldwide Vision for the declaratory relief claim because Idan Wallichman, "CFO of 'Badoo,'" and a "representative of Worldwide Vision," traveled to Texas "in connection with [the] acquisition discussions complained of in Bumble's counterclaims." (Id. at ¶ 17.) Match also alleges Mr. Wallichman and Andrey Andreev, "the ultimate controlling member of the entire Worldwide Vision Group," engaged in acquisition discussions with Match that would have formed a business relationship with Match Group, Inc. in Texas. (Id.) These 1 Bumble has brought a motion pointing out the impropriety of Match's Tenth Cause of Action— it merely seeks a declaration that Match is not liable under already pending claims. (See ECF No. 109 at 4-5.) 13 8 contacts, even if they could be proved and be credited specifically to Worldwide Vision—not, as they are alleged, to the collection of entities Match has dubbed "the Worldwide Vision Group"— do not establish jurisdiction. First, there was no transaction ultimately consummated between Worldwide Vision and Match. (See id. at ¶ 300.) But even if there were, as the Fifth Circuit has consistently held, it is not proper to exercise specific jurisdiction over a defendant merely because the defendant did business or contracted with a company located in the forum state. See Monkton Ins. Servs., Ltd. v. Ritter, 768 F.3d 429, 433-34 (5th Cir. 2014) (summarizing circuit case law holding likewise). This is so because a "plaintiff's own contacts with the forum" cannot be used to "demonstrate contacts by the defendant." Sangha, 882 F.3d at 103 (citation omitted). The proper analysis is what actions the defendant "took to establish contacts with the forum." Id. at 104; see Walden v. Fiore, 571 U.S. 277, 284 (2014) ("We have consistently rejected attempts to satisfy the defendant-focused 'minimum contacts' inquiry by demonstrating contacts between the plaintiff (or third parties) and the forum State. . . . [T]he relationship must arise out of contacts that the defendant himself creates with the forum state.") (internal quotation and citations omitted). The Fourth Amended Complaint alleges that Match "began negotiations with Andrey Andreev" regarding the potential acquisition, that Match sent a letter of intent, and that Match "eventually made an [acquisition] offer." (Fourth Am. Compl. ¶¶ 289, 298, 300.) These are all contacts initiated by Match, not by any of the entities in the "Worldwide Vision Group," let alone specifically on behalf of Worldwide Vision. These allegations over a potential acquisition do not show that Worldwide Vision "reach[ed] out" to initiate contacts with Texas, and thus are insufficient to satisfy specific jurisdiction. See Walden, 571 U.S. at 285 (internal quotation and citations omitted); see also G&H Partners, Ltd. v. Boer Goats Int'l Ltd., 896 F. Supp. 660, 665 (W.D. Tex. 1995) ("exchange of communications" between 14 8 Texas company and foreign defendant "in the course of developing [a] contract and carrying out the contract was in and of itself" insufficient to establish specific jurisdiction) (internal quotation and citation omitted). Second, the non-disclosure agreement Match previously put before the Court shows that specific jurisdiction in Texas would be improper. (ECF No. 80, Ex. C.) That agreement between Worldwide Vision and non-party Match Group, Inc. over information exchanged during potential acquisition discussions is governed by "the law of England and Wales." (Id. at 14, § 22.1.) This serves as further evidence that Worldwide Vision did not purposefully avail itself of the laws and protections offered by the State of Texas. See Panda Brandywine Corp. v. Potomac Elec. Power Co., 253 F.3d 865, 868-69 (5th Cir. 2001) (district court correctly held that allegations based on agreements not governed by Texas law were insufficient for establishing specific jurisdiction); see also Helicopteros Nacionales de Colom., S.A. v. Hall, 466 U.S. 408, 411 (1984) (contract expressly governed by Peruvian law considered evidence that jurisdiction in Texas was inappropriate as to foreign defendant). Finally, the fact that Mr. Wallichman, "CFO of 'Badoo,'" traveled once to Texas during a negotiation with Match is not enough to establish jurisdiction over Worldwide Vision. (Fourth Am. Compl. at ¶ 17.) Crucially, Mr. Wallichman did not travel to Texas on behalf of Worldwide Vision and no other representatives of the company were otherwise authorized to travel to Texas in connection with acquisition discussions. (See Insely Decl. at ¶ 21.) Additionally, the November 2017 visit is unrelated to the tortious conduct alleged in Bumble's counterclaims, hence it cannot form the jurisdictional basis of Match's duplicative Tenth Cause of Action. Indeed, Bumble alleges that Match's misrepresentations during the acquisition negotiations started in 2018, months after Mr. Wallichman traveled to Texas. (See ECF No. 66, ¶¶ 55-76.) Match does not and cannot 15 8 contradict this. (See Fourth Am. Compl. ¶ 17 (lacking any allegations concerning when Mr. Wallichman traveled to Texas or how the trip related to the "acquisition discussions complained of in Bumble's counterclaims").) Furthermore, even had Mr. Wallichman's trip to Texas taken place during the relevant time period in 2018, a single visit to the forum state, from someone who does not even hold a position at the defendant company, cannot and should not give rise to jurisdiction over a foreign defendant. Cf. Helicopteros, 466 U.S. at 416-17 (one trip to Texas by foreign company's executive for purpose of negotiating contract was "not a sufficient basis for [Texas's] assertion of jurisdiction"). C. It Would Be Unreasonable to Exercise Jurisdiction Over Worldwide Vision If Match were somehow able to make a "prima facie case for personal jurisdiction," the equities dictate that exercising jurisdiction over Worldwide Vision would be unreasonable in this case. See Wien Air, 195 F.3d at 215 (even if plaintiff establishes minimum contacts between defendant and the forum state, defendant may make a showing that assertion of jurisdiction is "unfair and unreasonable"). To evaluate whether exercising jurisdiction is fair to a non-resident defendant, courts must balance: (1) the burden upon the nonresident defendant to litigate in the forum; (2) the interests of the forum; (3) the plaintiff's interest in obtaining convenient and effective relief; and (4) the several states' shared interest in furthering substantive state policies. See Johnston, 523 F.3d at 615. Additionally, when foreign defendants are involved, courts "must 'consider the procedural and substantive policies of other nations whose interests are affected by the assertion of jurisdiction by the [forum state].'" Id. (quoting Asahi, 480 U.S. at 115). In short, "[t]he relationship between the defendant and the forum must be such that it is reasonable to require the defendant to defend the particular suit which is brought there." Guidry v. U.S. Tobacco Co., Inc., 188 F.3d 619, 630 (5th Cir. 1999) (citation omitted). 16 8 Here, it would be unfair and unreasonable to require Worldwide Vision to defend these particular claims in Texas. The burden on Worldwide Vision would be significant and costly— the company is based in Bermuda and all of its potential witnesses and relevant records and files are located outside the United States. (Insley Decl. ¶ 22.) As explained in the Sections above, there are simply not the requisite contacts to establish personal jurisdiction over Worldwide Vision, and Match has certainly not reached the higher burden associated with establishing jurisdiction over a foreign defendant. See Johnston, 523 F.3d at 615. On the other hand, the State of Texas has no discernible substantive policy interest in this case and Match is already engaged in litigation with Bumble to obtain relief for these exact claims. Worldwide Vision does not offer any products that compete against Match's dating apps in the Texas or United States and does not receive any money from Bumble in-app purchases. (See Insley Decl. ¶¶ 5-21.) The Bumble entity that does have contacts with Texas is already subject to this Court's jurisdiction and any injunction related to the Patent Claims would apply to the Bumble app, a product designed and distributed by Bumble, not Worldwide Vision. In sum, each of the relevant equitable factors weigh against exercising personal jurisdiction. D. Section 1367(c)(3) Permits the Court to Dismiss the Tenth Cause of Action as to Worldwide Vision Match states in the Fourth Amended Complaint that, "The Court has ruled that it [sic] supplemental jurisdiction exists over Match's Claim 10 raising a declaratory judgment action concerning various state law claims when it declined to dismiss Bumble's allegations concerning these claims." (Fourth Am. Compl. ¶ 10.) Not so. The Court has not "ruled" that supplemental jurisdiction exists over Match's Tenth Cause of Action; the Court determined that Bumble's counterclaims should not be dismissed for lack of subject matter jurisdiction. (ECF No. 98 at 6 (finding that the Court has "supplemental jurisdiction over Bumble's Texas-law claims" and also 17 8 noting that Match "complete[ly] revers[ed]" its position on the issue).) Whether the Court chooses to exercise supplemental jurisdiction over Match's Tenth Cause of Action is a separate issue. The Court may and should decline to exercise jurisdiction over Match's Tenth Cause of Action with respect to Worldwide Vision because it does not have personal jurisdiction over Worldwide Vision for the Patent Claims. Pursuant to 28 U.S.C. 1367(c)(3), a district court may decline to exercise supplemental jurisdiction over a claim if it "has dismissed all [the] claims over which it has original jurisdiction." Because the Patent Claims—the only claims asserted against Worldwide Vision for which this Court has original subject matter jurisdiction—should be dismissed as to Worldwide Vision, the court should decline to exercise jurisdiction over Match's supplemental state law claim against the company. See Parker & Parsley Petroleum Co. v. Dresser Indus., 972 F.2d 580, 585 (5th Cir. 1992) (the general rule in the Fifth Circuit is "to dismiss state claims when the federal claims to which they are pendent are dismissed") (citation omitted). This is especially true because Match has done little to establish grounds for specific personal jurisdiction over the Patent Claims. See supra Section IV.B.1 (demonstrating lack of any relevant contacts for jurisdictional purposes related to Bumble app). As the Supreme Court recently explained in Bristol-Myers Squibb Co. v. Superior Court, where exercise of specific jurisdiction is at issue, "there must be an affiliation between the forum and the underlying controversy, principally, [an] activity or an occurrence that takes place in the forum State and is therefore subject to the State's regulation. For this reason, specific jurisdiction is confined to adjudication of issues deriving from, or connected with, the very controversy that establishes jurisdiction." 137 S. Ct. 1773, 1780 (2017) (internal quotation and citations omitted) (emphasis added). Where, as here, there is no specific jurisdiction for Worldwide Vision over the Patent Claims—"the very controversy that establishes [this Court's] jurisdiction"—it is not only within 18 8 the Court's discretion to decline supplemental jurisdiction over the Tenth Cause of Action, it is the more just outcome. Id.; see supra Section IV.C (explaining why unreasonable and unfair to hale Worldwide Vision to court considering weight of competing interests); cf. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 585 (1999) ("It is hardly novel for a federal court to choose among threshold grounds for denying audience to a case on the merits. . . . [D]istrict courts do not overstep Article III limits when they decline jurisdiction of state-law claims on discretionary grounds without determining whether those claims fall within their pendent jurisdiction."). E. Match's Tenth Cause of Action Violates the Scheduling Order In addition to the reasons articulated above justifying dismissal, the Court may also strike the Tenth Cause of Action against Worldwide Vision under Federal Rule of Civil Procedure 12(f) for violating the June 17, 2019 scheduling order (the "Scheduling Order"). (ECF No. 96.) Federal Rule of Civil Procedure 16 governs scheduling orders. Rule 16(b)(4) requires good cause and the court's consent before a scheduling order can be modified. The Fifth Circuit has held that this good cause requirement to modify a scheduling order trumps the standard for amendment under Rule 15. Filgueira v. U.S. Bank Nat'l Ass'n, 734 F.3d 420, 422 (5th Cir. 2013). "Only upon the movant's demonstration of good cause to modify the scheduling order will the more liberal standard of Rule 15(a) apply to the district court's decision to grant or deny leave." S&W Enters., L.L.C. v. SouthTrust Bank of Ala., NA, 315 F.3d 533, 536 (5th Cir. 2003). The Scheduling Order permits parties to amend their pleadings before September 13, 2019, unless the amendment would add a new claim. (ECF No. 96 at 1.) If a party seeks to add a new claim, the Scheduling Order requires the party to file a motion for leave to amend. (Id. ("A motion is not required unless the amendment adds patents or claims.").) Match's Fourth Amended Complaint violates the Scheduling Order by adding the Tenth Cause of Action without leave. (See Fourth Am. Compl., at ¶¶ 279-313.) This violation of the Scheduling Order should not be allowed. 19 8 Cf. Slocum v. Livington, No. 11-cv-0486, 2012 WL 2088953, at *15 (S.D. Tex. June 8, 2012) ("Disregard of the scheduling order [] undermine[s] the court's ability to control its docket, disrupt[s] the agreed-upon course of the litigation, and reward[s] the indolent and the cavalier.") (quoting Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 610 (9th Cir. 1992)). Instead, the Tenth Cause of Action should be dismissed for the reasons articulated above, or struck under Rule 12(f) as improperly alleged without leave of Court. See Novikova v. Puig, No. 09-cv-1655, 2012 WL 13026810, at *2 (N.D. Tex. July 20, 2012) (striking amended pleadings filed in violation of scheduling order). V. CONCLUSION For the foregoing reasons, Match's Fourth Amended Complaint against Worldwide Vision should be dismissed under Rule 12(b)(1). In the alternative, Match's Tenth Cause of Action should be struck under Rule 12(f). Dated: September 12, 2019 Respectfully submitted, By: /s/ Joseph M. Drayton Joseph M. Drayton (pro hac vice) NY Bar No. 2875318 COOLEY LLP 1114 Avenue of the Americas New York, NY 10036 Telephone: (212) 479-6000 Facsimile: (212) 479-6275 jdrayton@cooley.com Michael G. Rhodes (pro hac vice) CA Bar No. 116127 Matthew Caplan (pro hac vice) CA Bar No. 260388 COOLEY LLP 101 California Street, 5th Floor San Francisco, CA 94111-5800 20 8 Telephone (415) 693-2000 Facsimile: (415) 693-2222 mrhodes@cooley.com mcaplan@cooley.com Rose S. Whelan (Pro Hac Vice) DC Bar No. 999367 COOLEY LLP 1299 Pennsylvania Ave., N.W. Suite 700 Washington, DC 20004 Telephone: (202) 842-7800 Facsimile: (202) 842-7899 rwhelan@cooley.com Deron R. Dacus (TX 00790553) THE DACUS FIRM, PC 821 ESE Loop 323, Suite 430 Tyler, TX 75701 Telephone: (903) 705-1117 Facsimile: (903) 581-2543 ddacus@dacusfirm.com Attorneys for Defendant Worldwide Vision Limited 21 8 CERTIFICATE OF SERVICE The undersigned certifies that the foregoing document was filed electronically with the Clerk of Court using the CM/ECF system which will send notification of such filing to all counsel of record on September 12, 2019. /s/ Joseph M. Drayton Joseph M. Drayton 210447036 22