Match Group, LLC v. Bumble Trading Inc.

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

MOTION to Dismiss for Lack of Jurisdiction Motion to Dismiss Plaintiff Match Group, LLCs Fourth Amended Complaint Under Rule 12(b)(2) by Badoo Limited, Badoo Software Limited, Badoo Technologies Limited, Badoo Trading Ltd.

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2 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. DEFENDANTS BADOO TRADING LIMITED, BADOO LIMITED, BADOO SOFTWARE LIMITED, AND BADOO TECHNOLOGIES LIMITED'S MOTION TO DISMISS PLAINTIFF MATCH GROUP, LLC'S FOURTH AMENDED COMPLAINT UNDER RULE 12(b)(2) 2 TABLE OF CONTENTS Page I. INTRODUCTION ............................................................................................................. 1 II. STATEMENT OF FACTS ................................................................................................ 2 A. Match's Fourth Amended Complaint .................................................................... 2 B. Badoo Trading Limited Has No Contacts with Texas. .......................................... 4 C. Badoo Limited Has No Contacts with Texas. ........................................................ 4 D. Badoo Software Limited Has No Contacts with Texas. ........................................ 5 E. Badoo Technologies Limited Has No Contacts with Texas. ................................. 6 III. LEGAL STANDARD ........................................................................................................ 7 IV. ARGUMENT ..................................................................................................................... 9 A. Match Fails to Show a Basis for the Court to Exercise General Jurisdiction Over Any of the Badoo Defendants. ...................................................................... 9 B. Match Fails to Show a Basis to Exercise Specific Jurisdiction Over Any of the Badoo Defendants .......................................................................................... 11 1. Match's allegations improperly group the Badoo Defendants. ............... 11 2. Match fails to show a basis to exercise specific jurisdiction over the Patent Claims alleged against the Badoo Defendants. ....................... 12 a. Match fails to show a basis for jurisdiction over the Patent Claims alleged against Badoo Trading Limited........................... 12 b. Match fails to show a basis for jurisdiction over the Patent Claims alleged against Badoo Limited. ....................................... 16 c. Match fails to show a basis for jurisdiction over the Patent Claims alleged against Badoo Software Limited. ........................ 17 d. Match fails to show a basis for jurisdiction over the Patent Claims alleged against Badoo Technologies Limited. ................. 17 3. Match fails to show a basis to exercise specific jurisdiction over the Tenth Cause of Action alleged against the Badoo Defendants. ......... 18 a. Match does not allege the Badoo Defendants caused any injury in Texas. ............................................................................ 18 b. Match's negotiation allegations are irrelevant and are not attributable to the Badoo Defendants. .......................................... 20 C. It Would Be Unreasonable to Exercise Jurisdiction Over Any of the Badoo Defendants. .......................................................................................................... 22 D. Section 1367(c)(3) Permits the Court to Dismiss the Tenth Cause of Action as to the Badoo Defendants. ..................................................................... 23 V. CONCLUSION ................................................................................................................ 25 -i- 2 TABLE OF AUTHORITIES Page(s) Cases Access Telecom, Inc. v. MCI Telecommc'ns Corp., 197 F.3d 694 (5th Cir. 1999) ...................................................................................................10 Asahi Metal Indus. Co., Ltd. v. Super. Ct., 480 U.S. 102 (1987) .............................................................................................................8, 23 Avocent Huntsville Corp. v. Aten Int'l Co., Ltd., 552 F.3d 1324 (Fed. Cir. 2008)................................................................................................15 BASF Corp. v. Willowood, LLC, 359 F. Supp. 3d 1018 (D. Colo. 2019) .....................................................................................15 Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017) .......................................................................................................24, 25 Calder v. Jones, 465 U.S. 783 (1984) ...................................................................................................................8 Cent. States, Se. & Sw. Areas Pension Fund v. Reimer Express World Corp., 230 F.3d 934 (7th Cir. 2000) ...................................................................................................10 Daimler AG v. Bauman, 571 U.S. 117 (2014) ...................................................................................................................9 Freescale Semiconductor, Inc. v. Amtran Tech. Co., Ltd., No. 12-cv-0644, 2013 WL 12121034 (W.D. Tex. June 12, 2013) ..........................................10 G&H Partners, Ltd. v. Boer Goats Int'l Ltd., 896 F. Supp. 660 (W.D. Tex. 1995).........................................................................................21 Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011) ...................................................................................................................9 Guidry v. U.S. Tobacco Co., Inc., 188 F.3d 619 (5th Cir. 1999) ...................................................................................................23 Gundle Lining Constr. Corp. v. Adams Cty. Asphalt, Inc., 85 F.3d 201 (5th Cir. 1996) .......................................................................................................8 Head v. Las Vegas Sands, LLC, 760 F. App'x 281 (5th Cir. 2019) ..................................................................................8, 11, 12 Helicopteros Nacionales de Colom., S.A. v. Hall, 466 U.S. 408 (1984) .................................................................................................................22 -ii- 2 TABLE OF AUTHORITIES (continued) Page(s) Int'l Energy Ventures Mgmt., L.L.C. v. United Energy Grp., Ltd., 818 F.3d 193 (5th Cir. 2016) ...................................................................................................11 Johnston v. Multidata Sys. Int'l Corp., 523 F.3d 602 (5th Cir. 2008) ........................................................................................... passim Jonathan Paul Eyewear, Inc. v. Live Eyewear, Inc., No. 12-cv-0908, 2013 WL 12090073 (W.D. Tex. Aug. 5, 2013) ...........................................12 Kitt Holdings, Inc. v. Mobileye B.V., No. 17-cv-2421, 2018 WL 3389747 (S.D. Ind. July 11, 2018) ...............................................15 Monkton Ins. Servs., Ltd. v. Ritter, 768 F.3d 429 (5th Cir. 2014) ...................................................................................................21 Nat. Dynamics, LLC v. Conquest Int'l, Inc., No. 12-cv-0965, 2013 WL 12077798 (W.D. Tex. July 3, 2013) .......................................14, 16 Nuance Commc'ns, Inc. v Abbyy Software House, 626 F.3d 1222 (Fed. Cir. 2010)................................................................................................13 Panda Brandywine Corp. v. Potomac Elec. Power Co., 253 F.3d 865 (5th Cir. 2001) .............................................................................................13, 16 Parker & Parsley Petroleum Co. v. Dresser Indus., 972 F.2d 580 (5th Cir. 1992) ...................................................................................................24 Patin v. Thoroughbred Power Boats, Inc., 294 F.3d 640 (5th Cir. 2002) ...................................................................................................10 Rowan Cos., Inc. v. Griffin, 876 F.2d 26 (5th Cir. 1989) .....................................................................................................19 Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574 (1999) .................................................................................................................25 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) .....................................................................................................8 Stuart v. Spademan, 772 F.2d 1185 (5th Cir. 1985) ...................................................................................................8 -iii- 2 TABLE OF AUTHORITIES (continued) Page(s) United States ex rel. Sullivan v. Atrium Med. Corp., No. 13-cv-0244, 2014 WL 12879671 (W.D. Tex. Dec. 31, 2014) ....................................14, 16 In re Takata Airbag Prods. Liab. Litig., --- F. Supp. 3d ---, MDL No. 2599, 2019 WL 2570616 (S.D. Fla. June 21, 2019) ........................................................................................................................................13 Tera Grp., Inc. v. Citigroup, Inc., No. 17-cv-4302, 2018 WL 4732426 (S.D.N.Y. Sept. 28, 2018) .............................................12 TV Azteca v. Ruiz, 490 S.W.3d 29 (Tex. 2016) ........................................................................................................7 Walden v. Fiore, 571 U.S. 277 (2014) .................................................................................................................21 Walk Haydel & Assocs., Inc. v. Coastal Power Prod. Co., 517 F.3d 235 (5th Cir. 2008) ...................................................................................................11 Wien Air Alaska, Inc. v. Brandt, 195 F.3d 208 (5th Cir. 1999) .............................................................................................11, 22 Wilson v. Belin, 20 F.3d 644 (5th Cir. 1994) .......................................................................................................7 Statutes 28 U.S.C. § 1367(c)(3) .........................................................................................................2, 23, 24 Tex. Civ. Prac. & Rem. Code § 17.042(2) .......................................................................................7 Other Authorities Fed. R. Civ. P. 4(k) .............................................................................................................................................7 12(b)(2) ................................................................................................................................7, 25 -iv- 2 I. INTRODUCTION Match Group, LLC's Fourth Amended Complaint ("Fourth Am. Compl.") attempts to add four affiliated companies—Badoo Trading Limited ("Badoo Trading"), Badoo Limited, Badoo Technologies Limited ("Badoo Technologies"), and Badoo Software Limited ("Badoo Software"; collectively, "the Badoo Defendants")—to this litigation.1 Match, however, fails to allege or proffer any facts that would allow this Court to exercise personal jurisdiction over these foreign entities who have no presence in Texas and have directed no conduct toward this forum. To overcome this problem, Match relies on two improper pleading tactics. First, Match groups all of these entities, along with two others, together, conflating their alleged conduct. On no less than twenty-two occasions, Match alleges that all of the Badoo Defendants, and Worldwide Vision and Magic Lab (which is not even an entity), collectively engaged in alleged conduct, without differentiating which entity did what. But the case law is clear: this form of "group pleading" is improper and these allegations should be ignored. Once these allegations are removed, Match alleges next to nothing about the Badoo Defendants—and certainly not facts sufficient to make a prima facie showing of personal jurisdiction. Second, the Fourth Amended Complaint relies almost exclusively on vague and conclusory allegations against the Badoo Defendants. These allegations, chalk full of "and/ors" and generic lists of types of infringement, never specify what any Badoo Defendant did that could give rise to personal jurisdiction. Again, the case law is unequivocal: a plaintiff must make a clear statement of non-conclusory facts to carry its burden of showing personal jurisdiction. 1 Match's Fourth Amended Complaint also attempts to add Worldwide Vision Limited as a party to this litigation. Worldwide Vision Limited already filed a motion to dismiss Match's Fourth Amended Complaint, which is currently pending. (D.I. 116; see also D.I. 123 and 127.) 1 2 Nowhere does Match explain what the Badoo Defendants, as compared to the Bumble Defendants, have done that would merit personal jurisdiction over Match's patent claims. And because these patent claims are the only ones that the Court has original jurisdiction over, this alone is a basis to dismiss all of the claims, pursuant to 28 U.S.C. 1367(c)(3). Moreover, Match fails to allege any conduct attributable to the Badoo Defendants that could give rise to personal jurisdiction over Match's non-patent Tenth Cause of Action. For these reasons, Match has failed to meet its burden of demonstrating that this Court can exercise personal jurisdiction over the Badoo Defendants and the Fourth Amended Complaint should be dismissed as to these defendants as a result. II. STATEMENT OF FACTS A. Match's Fourth Amended Complaint Match's Fourth Amended Complaint contains ten separate causes of action. Seven of the claims are brought under federal intellectual property statutes: three claims for patent infringement, 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 the Badoo Defendants— 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 the Badoo Defendants in four causes of action. Match alleges under its first, second, and third causes of action (the "Patent Claims") that the Badoo Defendants are directly liable for patent infringement, to the extent that they "own or control" Bumble's servers 2 2 (Fourth Am. Compl. at ¶¶ 123, 153, 199), and are also liable for indirect patent infringement— although the allegations of indirect infringement are vague, confusing, and indefinite (id. at ¶¶ 124, 127, 154, 157, 200, 203). The fourth claim against the Badoo Defendants 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 the Badoo Defendants for the Patent Claims because they "have committed acts of patent infringement and/or induced and/or have 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. . . ." (Fourth Am. Compl. at ¶ 16.) Match alleges the Court has personal jurisdiction over the Badoo Defendants for the declaratory relief claim because Idan Wallichman, supposedly a representative of all of the Badoo Defendants, 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"—including the Badoo 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.) 3 2 B. Badoo Trading Limited Has No Contacts with Texas. Badoo Trading is alleged to be a foreign company incorporated and registered to do business in the United Kingdom. (Fourth Am. Compl. at ¶ 4.) Badoo Trading is the parent company of Bumble Holding, Limited. (Id. at ¶ 80.) The Fourth Amended Complaint makes virtually no other allegations specific to Badoo Trading. Badoo Trading submits the declaration of Idan Wallichman ("Wallichman Decl.") in support of this Motion. The Wallichman Declaration explains that while Badoo Trading is the parent company of Bumble Holding, Limited, (Wallichman Decl. at ¶ 6), Badoo Trading does not: (1) market or manage distribution of the accused Bumble app, (id. at ¶ 16), or (2) retain any revenue from the accused Bumble app, (id. at ¶ 17). In fact, Badoo Trading does not have any jurisdictional ties to the state of Texas. For example, the company does not own any property in Texas; 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 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. (Id. at ¶¶ 7-15.) C. Badoo Limited Has No Contacts with Texas. Like Badoo Trading, Badoo Limited is alleged to be a foreign company incorporated and registered to do business in the United Kingdom. (Fourth Am. Compl. at ¶ 7.) The Fourth Amended Complaint alleges that "Badoo Limited's principal activity is to provide mobile development services to Badoo Software Limited." (Id. at ¶ 85.) And it further alleges, "[o]n information and belief, at least some of the services provided by Badoo Limited and Badoo Software Limited are related to the Bumble app." (Id.) The Fourth Amended Complaint makes no other allegations specific to Badoo Limited. 4 2 Badoo Limited submits the declaration of Vladimir Kornilovski ("First Kornilovski Decl.") in support of this Motion. The First Kornilovski Declaration explains that Badoo Limited has no headquarters, let alone offices, or any place of business in the United States. (First Kornilovski Decl. at ¶ 4.) Badoo Limited has no ownership relationship to Bumble Trading, Inc. or Bumble Holding, Limited. (Id. at ¶ 5.) Moreover, Badoo Limited does not: (1) operate, market, or manage distribution of the accused Bumble app, (id. at ¶ 15), or (2) receive any revenue from the accused Bumble app, (id. at ¶ 16). Badoo Limited does not have any jurisdictional ties to the state of Texas. For example, the company does not own any property in Texas; 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 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. (Id. at ¶¶ 6-14.) D. Badoo Software Limited Has No Contacts with Texas. Badoo Software is alleged to be a foreign company incorporated and registered in Malta. (See Fourth Am. Compl. ¶ 8.) As noted in Section II C, supra, the Fourth Amended Complaint alleges, on information and belief, that Badoo Software provides "at least some" "services" that "are related to the Bumble app." (Fourth Am. Compl. at ¶ 85.) Beyond this, the Fourth Amended Complaint makes no allegations specific to Badoo Software. Badoo Software submits the declaration of Luke Frendo in support of this Motion. The Frendo Declaration explains that Badoo Software has no headquarters, let alone offices, or any place of business in the United States. (Frendo Decl. at ¶ 5.) Badoo Software has no ownership relationship to Bumble Trading, Inc. or Bumble Holding, Limited. (Id. at ¶ 6.) Badoo Software does not operate, market, or manage distribution of the accused Bumble app. (Id. at ¶ 16.) Badoo 5 2 Software does not have any jurisdictional ties to the state of Texas. For example, the company: does not own any property in Texas; 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 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. (Id. at ¶¶ 7-15.) E. Badoo Technologies Limited Has No Contacts with Texas. Badoo Technologies is alleged to be a foreign company incorporated and registered to do business in Cyprus. (Fourth Am. Compl. at ¶ 9.) The Fourth Amended Complaint alleges: "Badoo Technologies Limited's principal activity is the provision of technology and other services to related companies, including Badoo Trading Limited. On information and belief, at least some of the services provided by Badoo Technologies Limited are related to the Bumble app." (Id. at ¶ 84.) The Fourth Amended Complaint makes no other allegations specific to Badoo Technologies. Badoo Technologies submits the declaration of Vladimir Kornilovski ("Second Kornilovski Decl.") in support of this Motion. The Second Kornilovski Declaration explains Badoo Technologies, like the other Badoo Defendants, has no headquarters, let alone offices, or any place of business in the United States. (Second Kornilovski Decl. at ¶ 5.) As with Badoo Software, Badoo Technologies has no ownership relationship to Bumble Trading, Inc. or Bumble Holding, Limited. (Id. at ¶ 6.) Badoo Technologies does not operate, market, or manage distribution of the accused Bumble app. (Id. at ¶ 16) Badoo Technologies does not have any jurisdictional ties to the state of Texas. For example, the company: does not own any property in Texas; 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 6 2 not registered to do business 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. (Id. at ¶¶ 7-15.) 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)(2). "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 § 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.") (citation 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 7 2 644, 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) (citation omitted). Plaintiffs are therefore "require[d] . . . to submit evidence supporting personal jurisdiction over each defendant without grouping them together." 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 8 2 exercised when extending our notions of personal jurisdiction into the international field.") (internal quotation and citation omitted). IV. ARGUMENT A. Match Fails to Show a Basis for the Court to Exercise General Jurisdiction Over Any of the Badoo Defendants. None of the Badoo Defendants are 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). None of the Badoo Defendants are at home in Texas. None of the Badoo Defendants are incorporated or registered to do business in Texas, have property or offices in Texas, have employees or contractors in Texas, or have a bank account or pay taxes in Texas. (Wallichman Decl. at ¶ 7-14; First Kornilovski Decl. at ¶ 6-13; Frendo Decl. at ¶¶ 7-14; Second Kornilovski Decl. at ¶¶ 7-14). Accordingly, none of the Badoo Defendants have "continuous and systematic" affiliations with the forum state which would "render [them] essentially at home" in Texas, and therefore they are 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 9 2 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"). Nor are any of the Badoo Defendants subject to general jurisdiction in Texas by their alleged involvement in negotiations with Match. A "contemplated transaction" that "would have" created a "long term, continuous relationship" with a Texas company (Fourth Am. Compl. at ¶ 17), 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[es] 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)). Nor can any of the Badoo Defendants' alleged affiliation with the Bumble entities create general jurisdiction. Bumble Trading's jurisdictional contacts with Texas would only be imputed to the Badoo Defendants 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 egos" 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, 944 (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 10 2 forum to defend against liability for the errors of the corporation."). None of the other Badoo Defendants are even alleged to be the corporate parent of either Bumble entity. B. Match Fails to Show a Basis to Exercise Specific Jurisdiction Over Any of the Badoo Defendants. 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). Match has not and cannot establish a prima facie case that specific jurisdiction exists for the Patent Claims or the Tenth Cause of Action as to any of the Badoo Defendants. 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). 1. Match's allegations improperly group the Badoo Defendants. Match must make a prima facie showing that exercising personal jurisdiction is proper for each of the Badoo Defendants individually. See Head, 760 F. App'x at 284. This means that Match must "submit evidence supporting personal jurisdiction over each defendant without grouping them together." Id. (citation omitted) (emphasis added). But the Fourth Amended Complaint relies almost exclusively on group allegations that do not distinguish between the different Badoo Defendants. (See, e.g., Fourth Am. Compl. at ¶ 16 ("Badoo Trading Limited, Magic Lab Co., Badoo Limited, Badoo Software Limited, and Badoo Technologies Limited have committed acts of patent infringement and/or induced and/or have contributed to acts of patent infringement by Bumble and/or others"); ¶ 124 ("Badoo Trading, Badoo Limited, Badoo Technologies Limited, Badoo Software Limited, Magic Lab, and Worldwide Vision also indirectly 11 2 infringe the '811 Patent by inducing infringement by others, such as Bumble and Bumble's end- user customers, by, for example, encouraging, instructing, directing, controlling, and/or assisting Bumble with the technical implantation of the Bumble app. . .").) 2 This form of pleading is improper and denies each of the Defendants the right to contest personal jurisdiction on an individual basis. These allegations should be ignored and, as a result, Match fails to meet its burden of showing personal jurisdiction over any of the Badoo Defendant, with regard to any claim, given the dearth of individualized allegations. See Head, 760 F. App'x at 284; Jonathan Paul Eyewear, Inc. v. Live Eyewear, Inc., No. 12-cv-0908, 2013 WL 12090073, at *4 (W.D. Tex. Aug. 5, 2013) (finding "generalized, collective allegations" of unlawful conduct "insufficient to justify exercising specific jurisdiction over" defendant) (citation omitted); see also Tera Grp., Inc. v. Citigroup, Inc., No. 17-cv-4302, 2018 WL 4732426, at *2 (S.D.N.Y. Sept. 28, 2018) ("This group pleading. . . fails to establish personal jurisdiction over 'each defendant.'") (citations omitted). This mandates dismissal of all of the claims against the Badoo Defendants, without more. Id. 2. Match fails to show a basis to exercise specific jurisdiction over the Patent Claims alleged against the Badoo Defendants. a. Match fails to show a basis for jurisdiction over the Patent Claims alleged against Badoo Trading Limited. To determine personal jurisdiction over Match's Patent Claims, the Court must consider whether: (1) the defendant purposefully directed activities at residents of the forum; (2) the patent claim arises out of those activities; and (3) whether assertion of personal jurisdiction is reasonable 2 Paragraphs 124 through 129, 153-159, 199-205, and 287 of the Fourth Amended Complaint use this same group pleading approach and each should be disregarded. 12 2 and fair. Nuance Commc'ns, Inc. v Abbyy Software House, 626 F.3d 1222, 1231 (Fed. Cir. 2010).3 The Fourth Amended Complaint fails to allege facts showing sufficient forum contacts to find personal jurisdiction over Badoo Trading for Match's Patent Claims. Match alleges that this Court has personal jurisdiction over Badoo Trading and all of the other Badoo Defendants—because they "have committed acts of patent infringement and/or induced and/or have contributed to acts of patent infringement by Bumble and/or others." (Fourth Am. Compl. at ¶ 16.) These allegations are improper insofar as they group all of the Badoo Defendants together without distinguishing between individual defendants. (See Section IV B(1), supra.) But even putting that issue aside, these allegations cannot support personal jurisdiction because they are nothing more than conclusory statements of infringement, devoid of any facts showing purposeful availment. See Panda Brandywine Corp. v. Potomac Elec. Power Co., 253 F.3d 865, 869 (5th Cir. 2001) ("[T]he district court correctly held that the prima-facie-case requirement does not require the court to credit conclusory allegations. . . .") (citations omitted). Moreover, these allegations are too vague and generalized to support a finding of personal jurisdiction. See, e.g., Sangha, 882 F.3d at 102 ("overgeneralized assertions" are insufficient to bear plaintiff's jurisdictional burden) (citing Johnston, 523 F.3d at 609); In re Takata Airbag Prods. Liab. Litig., --- F. Supp. 3d ---, MDL No. 2599, 2019 WL 2570616, at *35 (S.D. Fla. June 21, 2019) (collecting cases and finding "the weight of federal Circuit authority demonstrates that specific jurisdiction under the stream of commerce theory will not be sustained upon unspecific and generalized allegations"). 3 Federal Circuit law governs whether this Court has personal jurisdiction over Match's Patent Claims against the Badoo Defendants. See Nuance Commc'ns, 626 F.3d at 1231. 13 2 The other allegations in the Fourth Amended Complaint are more of the same. For example, continuing to group all of the Badoo Defendants, the Fourth Amended Complaint alleges: [The Badoo Defendants] also indirectly infringe the '811 Patent by inducing infringement by others, such as Bumble and Bumble's end-user customers, by, for example, encouraging, instructing, directing, controlling, and/or assisting Bumble with the technical implantation [sic] of the Bumble app, and/or encouraging and instructing end-user customers to install and use the Bumble app in the United States. (Fourth Amend. Compl. at ¶ 124.) Even putting aside that these allegations are conclusory and improperly conflate the Badoo Defendants, this vague and confusing language, and the repeated use of "and/or," renders these allegations nugatory. There is no way to know what, if anything, is actually being alleged against Badoo Trading. This style of pleading cannot carry Match's burden to show personal jurisdiction. See United States ex rel. Sullivan v. Atrium Med. Corp., No. 13-cv- 0244, 2014 WL 12879671, at *11 (W.D. Tex. Dec. 31, 2014), report and recommendation adopted, 2015 WL 13799755 (W.D. Tex. Mar. 18, 2015) (holding, absent "particularized statement of facts," "generalized, confusing" allegations of forum contacts insufficient to carry plaintiff's burden of showing specific jurisdiction) (citations omitted); Nat. Dynamics, LLC v. Conquest Int'l, Inc., No. 12-cv-0965, 2013 WL 12077798, at *3 (W.D. Tex. July 3, 2013) (finding "conclusory" and "vague" allegations of forum contacts insufficient to show purposeful availment) (internal quotation and citations omitted). Virtually all of the Fourth Amended Complaint's allegations regarding Badoo Trading are defective in this way. In fact, other than the party description (Fourth Am. Compl. at ¶ 4) and the assertion that Badoo Trading is the immediate parent of Bumble Holding (id. at ¶ 83), there is not a single allegation in the Fourth Amended Complaint specific to Badoo Trading, let alone one that 14 2 clearly alleges any concrete act or practice Badoo Trading has engaged in that could give rise to personal jurisdiction.4 This is likely so because the truth is that Badoo Trading is not involved in the marketing or distribution of the Bumble app in Texas and does not retain revenues from the same. (Wallichman Decl. at ¶¶ 16-17.) As such, there is no basis for personal jurisdiction over Badoo Trading in connection with patent claims concerning the Bumble app marketed by Badoo Trading's subsidiary in Texas. 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). It is just not enough that Badoo Trading is Bumble Holding's corporate parent. (Fourth Am. Compl. at ¶ 83), as Match does not allege facts showing that Badoo Trading is a mere alter- ego of Bumble Holding or even that Badoo Trading controls Bumble Holding's allegedly infringing conduct.5 See Avocent Huntsville Corp. v. Aten Int'l Co., Ltd., 552 F.3d 1324, 1337-39 4 The Fourth Amended Complaint also alleges that "[t]o the extent that any Bumble's servers are owned or controlled by any company in the Worldwide Vision Group. . . that company also directly infringes." (Fourth Am. Compl. at ¶¶ 123, 153, 199.) This is not an allegation of any fact at all, but rather an assertion of a supposed legal principal. The Fourth Amended Complaint does not allege that Badoo Trading owns or controls any such servers. 5 The Fourth Amended Complaint alleges in conclusory terms that "Bumble" is "under the direction and control of the Worldwide Vision Group. . . ." (Fourth Am. Compl. at ¶ 80.) But Match alleges no facts showing as much. Regardless, Badoo Trading is not the "Worldwide Vision 15 2 (Fed. Cir. 2008), cert. denied, 557 U.S. 904 (2009) (holding that absent clear evidence parent was controlling activities of subsidiary there was no specific jurisdiction over patent claims); see also Section IV A, supra (explaining parent-subsidiary relationship insufficient for establishing general jurisdiction). b. Match fails to show a basis for jurisdiction over the Patent Claims alleged against Badoo Limited. For all the same reasons Match fails to make a prima facie showing of personal jurisdiction over Badoo Trading (see Section IV B(2)(b), supra), it fails to do so with regard to Badoo Limited. In fact, the only allegation specific to Badoo Limited in the Fourth Amended Complaint is that Badoo Limited provides "services" to Badoo Software Limited and, "[o]n information and belief, at least some of the services provided by Badoo Limited and Badoo Software Limited are related to the Bumble app." (Fourth Am. Compl. at ¶ 85.) Alleging—on information and belief—that a defendant provides unspecified "services" that are "related" to an accused product is a far cry from a prima facie showing that a defendant has purposefully availed itself of a Texas forum. See United States ex rel. Sullivan, 2014 WL 12879671, at *11; Nat. Dynamics, 2013 WL 12077798, at *3; Panda Brandywine, 253 F.3d at 869. Nor does the Fourth Amended Complaint explain how these unspecified "services" were directed at Texas in any way. Badoo Limited does not operate, market, or distribute the Bumble app in Texas or anywhere else and does not profit from revenue received from the same. (First Kornilovski Decl. at ¶¶ 15-16.) Moreover, Badoo Limited is even further removed from the alleged Patent Claims insofar as Badoo Limited is not alleged to be even a parent of the Bumble entities. (See id. at ¶ 5.) Group" and the Fourth Amended Complaint nowhere alleges that Badoo Trading specifically controls Bumble Holding or Bumble Trading. 16 2 These facts, and the Fourth Amended Complaint's failure to identify sufficient forum contacts, defeat any argument of specific jurisdiction over Badoo Limited. c. Match fails to show a basis for jurisdiction over the Patent Claims alleged against Badoo Software Limited. The same holds true of Badoo Software. Match's only specific allegations against Badoo Software in the Fourth Amended Complaint are identical to those against Badoo Limited: "[o]n information and belief, at least some of the services provided by Badoo Limited and Badoo Software Limited are related to the Bumble app." (Fourth Am. Compl. at ¶ 85.) As discussed above, these vague allegations do not meet the standard of a prima facie showing required for personal jurisdiction in this district. (See Section VI B(2)(c), supra.) Moreover, Badoo Software also does not operate, market, or distribute the Bumble app. (Frendo Decl. at ¶ 16.) Nor is Badoo Software a parent company of the Bumble entities, and Match does not allege otherwise. (Id. at ¶ 6.) As with Badoo Limited, these facts, coupled with the dearth of concrete allegations in the Fourth Amended Complaint, preclude specific jurisdiction over Badoo Software. d. Match fails to show a basis for jurisdiction over the Patent Claims alleged against Badoo Technologies Limited. The allegations against Badoo Technologies fare no better for the same reasons. The Fourth Amended Complaint's only allegation regarding Badoo Technologies conduct is the vague statement that "Badoo Technologies Limited's principal activity is the provision of technology and other services to related companies, including Badoo Trading Limited," and that―again, "on information and belief"―"at least some of the services provided by Badoo Technologies Limited are related to the Bumble app." (Fourth Am. Compl. at ¶ 84.) Once more, Match's tenuous and ambiguous allegations do not meet the standard of a prima facie showing necessary to demonstrate 17 2 that Badoo Technologies has purposefully availed itself of this forum. (See Section IV B(2)(b), supra.) Just as with the three other Badoo entities discussed above, Badoo Technologies also does not market or distribute the Bumble app. (Second Kornilovski Decl. at ¶ 16.) Nor is Badoo Technology a parent company of the Bumble entities, and Match does not allege otherwise. (Id. at ¶ 6.) There is no basis for a finding of specific jurisdiction over Badoo Technologies. 3. Match fails to show a basis to exercise specific jurisdiction over the Tenth Cause of Action alleged against the Badoo Defendants. 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.) a. Match does not allege the Badoo Defendants caused any injury in Texas. At the outset, Match does not allege that the Badoo Defendants' actions caused an injury in Texas. 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). The Fourth Amended Complaint does much to confuse this issue. According to the Fourth Amended Complaint, "[t]o 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 18 2 to be bound by any adverse judgment against Bumble," there is a "case and controversy concerning whether these entities will allege substantively similar claims. . . in the future." (Fourth Am. Compl. at ¶¶ 284-288.) In other words, the injury at issue is supposedly the injury suffered by the Badoo Defendants—an injury not suffered in Texas. Match requests the Court to declare it is not liable to Bumble (an issue already properly pending before the Court),6 and that the "relevant entities," including the Badoo Defendants, should be bound by that judgment. (See Fourth Am. Compl. at ¶ 288.) Match's Tenth Cause of Action is effectively asking the Court to prematurely apply collateral estoppel or claim preclusion. However, the question of who should be bound by a potential future ruling on Bumble's counterclaims does not present a live "controversy" between the Badoo Defendants 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 the Badoo Defendants' activities directed at Texas. (Fourth Am. Compl. at ¶ 288.) Even if Match's alleged "uncertainty" (see id. at ¶ 17) were the kind of injury that could serve as a predicate, which is not so, nowhere does Match allege that the Badoo Defendants took any action to create this uncertainty—let alone such action directed at Texas. The only allegation on this issue in the Fourth Amended Complaint is that "[c]ounsel of record declined to enter an agreement in which other relevant entities. . . agreed to be bound by an adverse judgment against Bumble." (Id. at ¶ 288.) 6 The Court granted Bumble's motion to dismiss Match's Tenth Cause of Action as to Bumble, as it merely seeks a declaration that Match is not liable under already pending claims. (See September 17, 2019 text order granting Motion to Dismiss.) 19 2 Notably, this alleged declination took place before the present claims were alleged against the Badoo Defendants, meaning that the "counsel of record" were counsel of record for Bumble. Obviously the refusal of Bumble's counsel to agree that any judgment against Bumble will bind other, foreign non-parties cannot serve as the basis for personal jurisdiction over those foreign entities. b. Match's negotiation allegations are irrelevant and are not attributable to the Badoo Defendants. Match alleges specific jurisdiction for its Tenth Cause of Action is proper over the Badoo Defendants because Idan Wallichman, "CFO of 'Badoo,'" traveled to Texas "in connection with [the] acquisition discussions complained of in Bumble's counterclaims." (Fourth Am. Compl. at ¶ 17.) These allegations fail to support personal jurisdiction over the Badoo Defendants for three reasons. First, the Fourth Amended Complaint fails to allege facts allowing the Court to impute Mr. Wallichman's conduct to each Badoo Defendants. The Fourth Amended Complaint appears to allege, albeit vaguely, that Mr. Wallichman acted on behalf of all of the Defendants when he traveled to Texas and entered alleged negotiations. (Id.) But the Fourth Amended Complaint alleges no facts that would support this conclusory assertion of representation—including on what basis Match knows that Mr. Wallichman acted on behalf of all of these myriad entities. 7 Second, there was no transaction ultimately consummated between the Badoo Defendants and Match. (See Fourth Am. Compl. 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 7 The Fourth Amended Complaint also makes various vague allegations about the negotiating conduct of Andrey Andreev (e.g., ¶¶ 17, 289), but nowhere alleges facts that would allow the Court to impute this conduct to the Badoo Defendants. 20 2 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. at ¶¶ 289, 298, 300.) These are all contacts initiated by Match (and none even implicate the Badoo Defendants). These allegations over a potential acquisition do not show that the Badoo Defendants "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 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). Third, the fact that Mr. Wallichman traveled once to Texas in 2017 during a negotiation with Match is not enough to establish jurisdiction over any Badoo Defendant. The November 2017 visit is unrelated to the tortious conduct alleged in Bumble's counterclaims, hence it cannot 21 2 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 Answer and Countercls., ¶¶ 55-76, ECF No. 66.) Match does not and cannot contradict this. (See Fourth Am. Compl. at ¶ 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 and constituted the action actually challenged by the claims, a single visit to the forum state cannot and should not give rise to jurisdiction over a foreign defendant. Cf. Helicopteros Nacionales de Colom., S.A. v. Hall, 466 U.S. 408, 416-17 (1984) (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 Any of the Badoo Defendants. If Match were somehow able to make a "prima facie case for personal jurisdiction," the equities dictate that exercising jurisdiction over the Badoo Defendants 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 (citations omitted). Additionally, when foreign defendants are involved, courts "must 'consider the procedural and substantive policies of other nations whose interests are affected by the 22 2 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, 630-31 (5th Cir. 1999) (citation omitted). Here, it would be unfair and unreasonable to require the Badoo Defendants to defend these particular claims in Texas. The burden on the Badoo Defendants would be significant and costly— the Badoo Defendants are all based abroad and all of their potential witnesses and relevant records and files are located outside the United States. (Wallichman Decl. at ¶¶ 4, 19; First Kornilovski Decl. at ¶¶ 3, 17; Frendo Decl. at ¶¶ 4, 19; Second Kornilovski Decl. at ¶¶ 4, 20.) As explained in the Sections above, there are simply not the requisite contacts to establish personal jurisdiction over the Badoo Defendants, 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. 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 the Badoo Defendants. 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 the Badoo Defendants. Match states in the Fourth Amended Complaint that "[t]he 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. at ¶ 10.) Not so. The Court has not "ruled" that supplemental 23 2 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. (Order Den. Match/IAC's Mot. to Dismiss Defs.' Countercls. at 6, ECF No. 98 (finding that the Court has "supplemental jurisdiction over Bumble's Texas-law claims" and also 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 the Badoo Defendants because it does not have personal jurisdiction over the Badoo Defendants for the Patent Claims. Pursuant to 28 U.S.C. Section 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 the Badoo Defendants for which this Court has original subject matter jurisdiction—should be dismissed as to the Badoo Defendants, the court should decline to exercise jurisdiction over Match's supplemental state law claim against the same. 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(2) (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 24 2 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 the Badoo Defendants over the Patent Claims—"the very controversy that establishes [this Court's] jurisdiction"—it is not only within 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 the Badoo Defendants 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. . . .") (citations omitted). V. CONCLUSION For the foregoing reasons, Match's Fourth Amended Complaint against the Badoo Defendants should be dismissed under Rule 12(b)(2). Dated: October 8, 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 25 2 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 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 Defendants Badoo Trading Limited, Badoo Limited, Badoo Software Limited, and Badoo Technologies Limited 26 2 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 October 8, 2019. /s/ Joseph M. Drayton Joseph M. Drayton 27