FILED
NOT FOR PUBLICATION MAY 21 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MGA ENTERTAINMENT, INC., No. 11-55813
Plaintiff - Appellant, D.C. No. 2:10-cv-08368-CBM-
JCG
v.
INNOVATION FIRST, INC.; et al., MEMORANDUM *
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Consuelo B. Marshall, Senior District Judge, Presiding
Argued January 11, 2013
Submitted May 20, 2013
Pasadena, California
Before: GOODWIN, HAWKINS, and WARDLAW, Circuit Judges.
MGA Entertainment, Inc. appeals from the district court’s order dismissing
MGA’s claims against Innovation First, Inc., Innovation First Labs, Inc., and
Innovation First International, Inc. (collectively, “IFI”) for lack of personal
jurisdiction. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1. The district court did not err by concluding that MGA failed to allege
sufficient facts to make a prima facie showing that IFI has adequate “continuous
and systematic” contact with California to support a finding of general personal
jurisdiction. Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846,
2854 (2011). While MGA alleged that IFI maintains contacts with various
California entities and actively contracts to sell their products in California, the
alleged continuous activity is not sufficiently substantial to support the demand
that IFI be amenable to suits unrelated to that activity. Int’l Shoe Co. v.
Washington, 326 U.S. 310, 318 (1945); see also Bancroft & Masters, Inc. v.
Augusta Nat’l Inc., 223 F.3d 1082, 1086 (9th Cir. 2000) (holding that licensing
agreements and other contracts with California companies were insufficient to
confer general jurisdiction because they “constitute doing business with California,
but do not constitute doing business in California”).
MGA argues that general jurisdiction is proper because Defendant IP
Defenders (“IPD”), a California corporation that holds all claims IFI has against
MGA arising under Texas law, is the “alter ego” of IFI for jurisdictional purposes.
See Doe v. Unocal Corp., 248 F.3d 915, 926 (9th Cir. 2001). IFI’s sworn affidavit
disclaiming an ownership interest in IPD sufficiently rebuts MGA’s conclusory
allegations that such an ownership relationship exists. See Amba Mktg. Sys., Inc. v.
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Jobar Int'l, Inc., 551 F.2d 784, 787-88 (9th Cir. 1977) (holding that “the party
asserting jurisdiction has the burden of establishing its existence when challenged,”
and “[can]not simply rest on the bare allegations of its complaint, but rather [is]
obligated to come forward with facts, by affidavit or otherwise, supporting
personal jurisdiction”). MGA argues that an ownership relationship is unnecessary
to support an alter ego relationship for jurisdictional purposes, but it cites no cases
for this proposition in its cursory argument on this point. Accordingly, this
argument was insufficiently developed to merit appellate review. See Cruz v. Int’l
Collection Corp., 673 F.3d 991, 998 (9th Cir. 2012) (“We review only issues
which are argued specifically and distinctly in a party’s opening brief.” (citation
omitted)).
2. Nor did the district court err in concluding that it lacked specific
personal jurisdiction over IFI. IFI did not “expressly aim” its press release at
California or MGA. Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1153 (9th Cir.
2006). The press release was directed to the general public and did not mention
MGA or any other California entity. See Washington Shoe Co. v. A-Z Sporting
Goods Inc., 704 F.3d 668, 673 (9th Cir. 2012) (laying out the “purposeful
direction” test for specific personal jurisdiction); see also Schwarzenegger v. Fred
Martin Motor Co., 374 F.3d 797, 807 (9th Cir. 2004) (concluding that an
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advertisement published in an Ohio newspaper was not expressly aimed at
California and did not give rise to specific jurisdiction). Further, IFI had no reason
to foresee that the press release, which stated that IFI would “Defend Popular
HEXBUG Nano Toys Vigorously Across the Entire Supply Chain,” would cause
harm to MGA or any other California resident. See Panavision Int’l, L.P. v.
Toeppen, 141 F.3d 1316, 1321 (9th Cir. 1998).
Although IFI “availed itself of the privilege of conducting activities in the
forum,” Washington Shoe, 704 F.3d at 672, when it incorporated IPD in California,
MGA’s various claims each accrued prior to IPD’s incorporation. Accordingly,
MGA’s claims did not “arise from” the creation of IPD, and thus cannot form the
basis for specific jurisdiction over IFI. Unocal, 248 F.3d at 924-25.
MGA’s allegations that IFI “directly communicat[ed] false and misleading
statements to MGA customers and retailers” are insufficiently supported to
overcome the rule that a plaintiff cannot “simply rest on the bare allegations of its
complaint, but rather [is] obligated to come forward with facts, by affidavit or
otherwise, supporting personal jurisdiction.” Amba, 551 F.2d at 787; see also
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“A pleading that offers labels and
conclusions or a formulaic recitation of the elements of a cause of action will not
do. Nor does a complaint suffice if it tenders naked assertions devoid of further
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factual enhancement.”) (internal citations and quotation marks omitted).
Accordingly, MGA failed to allege sufficient facts to make a prima facie showing
that specific jurisdiction over IFI is proper.
AFFIRMED.
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