Core-Vent Corp. v. Nobel Industries AB, CORE-VENT

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: O'SCANNLAIN; FERNANDEZ; WALLACE; We have in the past, as Judge O'Scannlain does now, referred to seven questions that may be raised in determining whether jurisdiction is reasonable. However
• Citation: 11 F.3d 1482
• Parties: , 27 Fed.R.Serv.3d 1230 CORP., Plaintiff-Appellant, v. NOBEL INDUSTRIES AB, Defendant, and Per-Ingvar Branemark; Tomas Albrektsson; Ulf Lekholm; Lars Sennerby, Defendants-Appellees.
• Docket Number: No. 91-56493,CORE-VENT
• Decision Date: 16 December 1993

Page 1482

11 F.3d 1482 62 USLW 2391, 27 Fed.R.Serv.3d 1230 CORE-VENT CORP., Plaintiff-Appellant,
v.
NOBEL INDUSTRIES AB, Defendant,
and
Per-Ingvar Branemark; Tomas Albrektsson; Ulf Lekholm;
Lars Sennerby, Defendants-Appellees. No. 91-56493. United States Court of Appeals,
Ninth Circuit. Argued and Submitted April 8, 1993.
Decided Dec. 16, 1993.

Page 1483

Patrick F. Bright, Bright & Lorig, Los Angeles, CA, for plaintiff-appellant.

Alan I. Becker, Burditt & Radzius, Chicago, IL, for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before: WALLACE, Chief Judge; O'SCANNLAIN and FERNANDEZ, Circuit Judges.

O'SCANNLAIN, Circuit Judge:

We are called upon to decide whether a federal district court in California should exercise personal jurisdiction over four doctors in Sweden who allegedly defamed a California corporation in articles published in international medical journals.

I

Until very recently, Core-Vent was a California corporation with its headquarters in Encino. ¹ Core-Vent and its principal competitor, Nobelpharma AB ("Nobelpharma"), a Swedish corporation, are the two largest manufacturers of dental implants in the world.

Branemark, Albrektsson, and Lekholm are professors at the University of Gothenburg in Gothenburg, Sweden. Sennerby is a doctoral candidate at the University of Gothenburg. (We will refer to the appellees collectively as "the Swedish doctors.") All are Swedish citizens and none has visited the United States, or, in particular, California more than a few times on random occasions. Branemark visited California most extensively of the four and is alleged to have visited only five times in the last four years. Branemark is a director of Nobelpharma, and also directs a research institute at the University that is allegedly financed by Nobelpharma. Albrektsson, Lekholm, and Sennerby work at the institute, and are alleged to be paid

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consultants to Nobelpharma. According to Core-Vent, Albrektsson and Lekholm co-authored, at the direction of Nobelpharma and Branemark, an article published in the October 1989 issue of Dental Clinics of North America that "contained false and misleading comparisons of Core-Vent and Nobelpharma implants." The journal is distributed worldwide, including within California. Albrektsson and Sennerby similarly are alleged to have written, at Nobelpharma's direction, an article defaming Core-Vent. Their article was published in the International Journal of Oral and Maxillofacial Implants, which is also distributed worldwide. Core-Vent alleges that Branemark controlled these and other studies in order to further an antitrust conspiracy.

Core-Vent brought suit against Nobelpharma, three individual American citizens, and five Swedish citizens, including the four Swedish doctors. In addition to various claims against the defendants that are not parties to this appeal, Core-Vent brought antitrust claims against Branemark and libel claims against Albrektsson, Lekholm, and Sennerby. The Swedish doctors moved to dismiss the claims against them for lack of personal jurisdiction. The district court granted the motion. Final judgment was entered pursuant to Federal Rule of Civil Procedure 54(b). Core-Vent appeals.

II

As a preliminary matter, we must consider the Swedish doctors' argument that the district court abused its discretion in granting Core-Vent's motion for the entry of final judgment.

Rule 54(b) of the Federal Rules of Civil Procedure provides in relevant part:

When more than one claim is presented in an action ... or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.

(Emphasis added.) Here, the district court expressly determined that there was no just reason for delay because the jurisdictional claims were easily severable from the merits of the lawsuit. The court also concluded that allowing for immediate appeal would serve the efficient administration of justice.

In Texaco, Inc. v. Ponsoldt, 939 F.2d 794, 797 (9th Cir.1991), we held that "Rule 54(b) certification is proper if it will aid 'expeditious decision' of the case." Id. (quoting Sheehan v. Atlanta Int'l Ins. Co., 812 F.2d 465, 468 (9th Cir.1987)). "However, Rule 54(b) certification is scrutinized to 'prevent piecemeal appeals in cases which should be reviewed only as single units.' " Id. at 797-98 (quoting McIntyre v. United States, 789 F.2d 1408, 1410 (9th Cir.1986) (internal citations and quotations omitted)).

We are satisfied that dealing with the jurisdictional issue now may obviate the need for a second trial, and thus aids expeditious decision of the case. The jurisdictional question at issue here is unrelated to the other issues in the case; thus, entry of final judgment will not lead to undesirable "piecemeal appeals." In short, the district court did not abuse its discretion in granting Core-Vent's motion under Rule 54(b).

III

The district court dismissed the claims against the Swedish doctors, concluding that it lacked personal jurisdiction over them.

Where, as here, there is no applicable federal statute governing personal jurisdiction, the law of the state in which the district court sits applies. See Hylwa, M.D., Inc. v. Palka, 823 F.2d 310, 312 (9th Cir.1987). This case was brought in the Central District of California; California's long-arm statute allows courts to exercise personal jurisdiction over defendants to the extent permitted by the Due Process Clause of the United States Constitution. Data Disc, Inc. v. Systems Tech. Assocs., Inc., 557 F.2d 1280, 1286 (9th Cir.1977). Thus, we "need only determine whether personal jurisdiction in this case would meet the requirements of due process." Brainerd v. Governors of the

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Univ. of Alberta, 873 F.2d 1257, 1258 (9th Cir.1989).

"[D]ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.' " International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945) (citations omitted). Where the defendant has not had continuous and systematic contacts with the state sufficient to subject him or her to general jurisdiction, the following three-part test is applied to determine whether the defendant has "minimum contacts" with the forum:

(1) The nonresident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) the claim must be one which arises out of or relates to the defendant's forum-related activities; and (3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable.

Lake v. Lake, 817 F.2d 1416, 1421 (9th Cir.1987). Here, Core-Vent claims that the Swedish doctors purposefully directed their activities into California by publishing or causing to be published libelous articles about Core-Vent's products in international medical journals. The libel claims clearly "arose out" of the publication of the articles; ² we thus need consider only the first and third elements of the minimum contacts test.

A

"The first step of the specific jurisdiction analysis involves a qualitative evaluation of the defendant's contact with the forum state," Lake, 817 F.2d at 1421, in order to determine whether the "defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there." Worldwide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980). Fulfilling this step is not necessarily precluded by a lack of physical contacts with the forum. Rather, "within the rubric of 'purposeful availment' the [Supreme] Court has allowed the exercise of jurisdiction over a defendant whose only 'contact' with the forum state is the 'purposeful direction' of a foreign act having effect in the forum state." Haisten v. Grass Valley Medical Reimbursement Fund, 784 F.2d 1392, 1397 (9th Cir.1986) (citing Calder v. Jones, 465 U.S. 783, 789, 104 S.Ct. 1482, 1487, 79 L.Ed.2d 804 (1984)).

Core-Vent claims that the Swedish doctors' contacts with California are analogous to those of the individual defendants in Calder. The plaintiff in Calder was an entertainer who lived and worked in California. She brought suit there, claiming that she had been libeled by an article written in Florida and published in the National Enquirer, a newspaper published in Florida with a large circulation in California. Two of the defendants in the case, the editor of the paper and the reporter who wrote the story, moved for dismissal for lack of personal jurisdiction on the ground that they lacked physical contacts with California. Calder, 465 U.S. at 784-85, 104 S.Ct. at 1484-85.

The Court concluded that because "California [was] the focal point both of the story and of the harm suffered," id. at 789, 104 S.Ct. at 1486-87, "[j]urisdiction over [the defendants was] ... proper in California based on the 'effects' of their Florida conduct in California." Id. The Court stressed that the defendants had not engaged in "untargeted negligence" but instead had "expressly aimed" their tortious actions at a California resident. Id. at 789, 104 S.Ct. at 1487. In determining that the actions were "expressly

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aimed" at the forum state, the Court considered the totality of the circumstances surrounding the events. Id. at 788, 104 S.Ct. at 1486. The...