Cybersitter, LLC v. People's Republic of China

• Decision Date: 01 August 2011
• Docket Number: Case No. CV 10–00038–JST (SHx).
• Citation: 805 F.Supp.2d 958
• Parties: CYBERSITTER, LLC, d/b/a Solid Oak Software, Plaintiff, v. The PEOPLE'S REPUBLIC OF CHINA, Zhengzhou Jinhui Computer System Engineering Ltd., Beijing Dazheng Human Language Technology Academy, Ltd., Lenovo Group Limited, ASUSTek Computer, Inc., BenQ Corporation, Haier Group Corporation, Defendants.
• Court: U.S. District Court — Central District of California

805 F.Supp.2d 958

CYBERSITTER, LLC, d/b/a Solid Oak Software, Plaintiff,

v.The PEOPLE'S REPUBLIC OF CHINA, Zhengzhou Jinhui Computer System Engineering Ltd., Beijing Dazheng Human Language Technology Academy, Ltd., Lenovo Group Limited, ASUSTek Computer, Inc., BenQ Corporation, Haier Group Corporation, Defendants.

Case No. CV 10–00038–JST (SHx).

United States District Court, C.D. California.

Aug. 1, 2011.

Elliot Brandt Gipson, Gregory Alan Fayer, Fayer Gipson LLP, Los Angeles, CA, for Plaintiff.

Christopher A. Hughes, Jeffrey Liao, Tod M. Melgar, Tony V. Pezzano, Cadwalader Wickersham & Taft LLP, New York, NY, Gabriel D. Miller, Richard B. Kendall, Kendall Brill and Klieger, LLP, Michael A. Garabed, Reed Smith LLP, Bethany L. Hengsbach, Joseph Francis Coyne, Jr., Mary E. Tarduno, Sheppard Mullin Richter & Hampton LLP, Paul J. Loh, Willenken Wilson Loh and Lieb, Los Angeles, CA, Kent R. Stevens, Cadwalader Wickersham & Taft LLP, Washington, DC, Ping Gu, Unitalen Attorneys at Law, Beijing, China, Karen I. Boyd, Turner Boyd LLP, Elizabeth H. Rader, Palo Alto, CA, Yitai Hu, Alston & Bird LLP, Menlo Park, CA, for Defendants.

ORDER DENYING: (1) HAIER GROUP CORPORATION'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION AND FAILURE TO JOIN A NECESSARY AND INDISPENSABLE PARTY (Doc. 139); (2) BEIJING DAZHENG HUMAN LANGUAGE TECHNOLOGY ACADEMY, LTD.'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION (Doc. 143); (3) BEIJING DAZHENG HUMAN LANGUAGE TECHNOLOGY ACADEMY, LTD.'S MOTION TO DISMISS OR STAY CASE FOR FORUM NON CONVENIENS (Doc. 144); AND (4) ZHENGZHOU JINHUI COMPUTER SYSTEM ENGINEERING, LTD.'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION (Doc. 150)

JOSEPHINE STATON TUCKER, District Judge.I. INTRODUCTION AND BACKGROUND

This case concerns the alleged intentional misappropriation of computer software code belonging to Plaintiff CYBERsitter, LLC, d/b/a Solid Oak Software, by numerous Defendants in China and Taiwan. Before the Court are five separate motions: three motions to dismiss for lack of personal jurisdiction filed individually by Defendants Haier Group Corporation (“Haier”), Beijing Dazheng Human Language Technology Academy, Ltd. (“Dazheng”), and Zhengzhou Jinhui Computer System Engineering Ltd. (“Jinhui”), (Docs. 139, 143, 150); a motion to dismiss for forum non conveniens filed by Dazheng and joined by Jinhui, (Docs. 144, 151); and a motion to dismiss for failure to join a necessary and indispensable party filed by Haier (Doc. 139). Plaintiff has opposed each of the motions. Having considered the parties' briefs and heard oral argument, the Court DENIES each of the motions.

II. PRELIMINARY MATTERSA. Evidentiary Objections

The parties have filed multiple evidentiary objections to numerous declarations submitted by the opposing side on various grounds, including relevancy, lack of foundation, and lack of personal knowledge. (Docs. 166, 170, 175, 185.) To the extent the Court relies on any evidence, it relies only on admissible, relevant evidence. Thus, the objections are OVERRULED.

B. Request for Judicial Notice

Plaintiff requests that the Court take judicial notice of several facts. First, as related to Defendant Haier, Plaintiff seeks judicial notice of Haier's registered patents and trademarks in the United States, the fact that Haier allegedly has a design center located in Los Angeles and subsidiaries in New York and Delaware, the fact that Haier allegedly is an official sponsor of the National Basketball Association (“NBA”), and the fact that Haier allegedly sells its products in the Central District of California and throughout the United States at Best Buy and Wal–Mart retail stores. (Doc. 163.) Plaintiff also requests that the Court take judicial notice of such related facts as the number of teams in the NBA and the number of Best Buy and Wal–Mart stores in the United States. Second, Plaintiff requests judicial notice of the fact that Defendants' counsel, Alston & Bird LLP, Cadwalader, Wickersham & Taft LLP, and Reed Smith LLP, each appear on the AmLaw 100 2010 list of the highest grossing revenue law firms in the United States. Finally, Plaintiff requests that the Court take judicial notice of the supposed fact that “California is the center of the U.S. software industry.” ( Id. ¶ 18.)

Defendant Jinhui objects to Plaintiff's requests for judicial notice regarding both the financial standing of their aforementioned counsel and the purported fact that California is the center of the U.S. software industry because the former is irrelevant and the latter is subject to reasonable dispute. (Doc. 169.) Defendant Haier objects to Plaintiff's request, echoing Jinhui's concerns and arguing that Plaintiff misguidedly asks the Court to take judicial notice of statements appearing on corporate websites that are irrelevant, subject to reasonable dispute, or both. (Doc. 177.)

Under Federal Rule of Evidence 201(b), a court may only take judicial notice of a fact “not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201(b). The Court takes judicial notice of Haier's trademark and patent applications and registrations in the United States and the fact that Haier has subsidiaries located in New York and Delaware, as Haier does not dispute the existence or veracity of those facts. ( See Doc. 163 ¶¶ 1, 3, 5, 6, 8, 9.) As to the remaining facts, however, the Court denies Plaintiff's request. For many of the facts for which Plaintiff requests judicial notice, Plaintiff submits statements or images appearing on undated, unverified websites without an accompanying declaration as to when, where, and how such images or statements were obtained. Thus, whether Haier is an official sponsor of the NBA, has a design center in Los Angeles, or sells its products in the Central District of California and throughout the United States at Best Buy and Wal–Mart retail stores is subject to reasonable dispute. Moreover, whether Defendants' counsel appeared in the AmLaw 100 2010 list of the highest grossing revenue law firms in the United States is irrelevant to the instant motions, so the Court declines to take judicial notice of such fact. ( See Forum Non Conveniens Order (“FNC Order”), Doc. 88, at 4 n. 3, 2010 WL 4909958 (explaining that the Court takes judicial notice only of relevant facts).) Finally, Plaintiff fails to provide any basis for the purported fact that “California is the center of the U.S. software industry.” Accordingly, Plaintiff's request for judicial notice is GRANTED in part and DENIED in part.

C. Request for Leave to Submit Sur–Reply and Motion to Strike

Plaintiff requests leave to file a sur-reply alleging that Defendants submitted new evidence and relied on new legal authorities in their reply papers. (Doc. 183.) Specifically, Plaintiff asserts that Jinhui submitted new evidence in the Declaration of Jerry Liao and the attachments thereto (Doc. 168–1) and that Haier and Dazheng cited and relied heavily upon two United States Supreme Court decisions that were issued on June 27, 2011, the same day Plaintiff filed its opposition papers. ( See Docs. 172, 178.) Alternatively, Plaintiff requests the Court strike the Liao Declaration. (Doc. 185.) The Liao Declaration, however, merely rebuts evidence proffered by Plaintiff in Jenna DiPasquale's declaration. ( See DiPasquale Decl., Doc. 160.) Plaintiff's Motion to Strike the Liao Declaration is therefore DENIED. Nonetheless, because Defendants relied on new legal authority in their reply papers, the Court GRANTS in part and DENIES in part Plaintiff's request and admits its sur-reply in part. See Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir.2007) (A “district court need not consider arguments raised for the first time in a reply brief.”); C.D. Cal. R. 7–10 (“Absent prior written order of the Court, the opposing party shall not file a response to the reply.”). To the extent the sur-reply addresses the Liao Declaration and attempts to submit additional evidence in that regard, ( see Supplemental Milburn Decl., Doc. 184,) such arguments and evidence are struck and not considered by the Court. To the extent the sur-reply addresses the newly cited legal authority and related arguments, (Doc. 183–1 at 4–6), the Court considers the sur-reply.

III. DISCUSSIONA. Forum Non Conveniens

Dazheng and Jinhui move to dismiss the action for forum non conveniens arguing that California is an inconvenient forum and the dispute should be heard in China. (Dazheng FNC Mot., Doc. 144; Jinhui's FNC Mot., Doc. 151.) On November 18, 2010, 2010 WL 4909958, the Court denied a motion to dismiss for forum non conveniens brought by since-dismissed Defendants Sony Corporation and Acer, Inc., and Defendants BenQ Corporation and ASUSTek Computer, Inc. (“Sony et al.”), which asserted largely the same arguments that Dazheng and Jinhui assert here.¹ ( See FNC Order.) “Under the ‘law of the case’ doctrine, a court is ordinarily precluded from reexamining an issue previously decided by the same court, or a higher court, in the same case.” Richardson v. United States, 841 F.2d 993, 996 (9th Cir.1988). Application of the doctrine is discretionary and for it to apply, “the issue in question must have been ‘decided explicitly or by necessary implication in [the] previous disposition.’ ” United States v. Lummi Indian Tribe, 235 F.3d 443, 452 (9th Cir.2000) (quoting Liberty Mutual Ins. Co. v. EEOC, 691 F.2d 438, 441 (9th Cir.1982)) (alteration in original). A district court's decision to apply the doctrine will be an abuse of discretion if “(1) the first decision was clearly erroneous; (2) an intervening change in the law occurred; (3) the evidence on remand was substantially different; (4) other changed circumstances exist; or (5) a manifest injustice would otherwise result.” Id....