Tevra Brands LLC v. Bayer HealthCare LLC
| Decision Date | 20 October 2020 |
| Docket Number | Case No. 19-cv-04312-BLF |
| Court | U.S. District Court — Northern District of California |
| Parties | TEVRA BRANDS LLC, Plaintiff, v. BAYER HEALTHCARE LLC, et al., Defendants. |
On September 15, 2020, the Court granted Bayer Animal Health GmbH and Bayer AG's ("the German Defendants") motion to dismiss Tevra's first amended complaint. ECF 157. As part of this order, the Court granted Tevra's request for leave to conduct jurisdictional discovery. ECF 157 at 5. The Court warned Tevra that its "proposed jurisdictional discovery request [was] overly broad" and ordered it to "file a narrowed jurisdictional discovery proposal, to include a timeline under which the proposal will be accomplished." ECF 157 at 5-6. Tevra filed its discovery request on September 29, 2020, which the Court denied without prejudice as "overly-broad and unreasonably time consuming." ECF 167 (request), ECF 169 (order). It then instructed that, while Tevra developed its third and final proposal, the parties proceed with the limited discovery proposed by Bayer Animal Health GmbH and Bayer AG, to include Jeriel Chua's documents that are "relevant hits on Tevra's search terms & parameters" and interrogatories related to a 2016 retail summit. See ECF 165 at 3. The Court also permitted Tevra to conduct two-hour depositions of Chua and David Zapatero. ECF 169 at 1.
On October 14, 2020, Tevra filed a whittled down discovery request. ECF 171-3. Tevra mainly asks that a list of 40 terms, comprised of retailer names and domains and phrases, be run across three additional custodians: David Zapatero, Imke Rottmann, and Oliver Aue. The German Defendants object that this request is overbroad given that the "individuals targeted by Tevra had roles involving high-level strategic guidance and planning." ECF 173 at 1. They also note that Tevra's request is burdensome due to foreign language review and the European Union's General Data Protection Regulation ("GDPR") privacy law. Id.
"A district court is vested with broad discretion to permit or deny discovery, and a decision to deny discovery will not be disturbed except upon the clearest showing that the denial of discovery results in actual and substantial prejudice to the complaining litigant." Laub v. U.S. Dep't of Interior, 342 F.3d 1080, 1093 (9th Cir. 2003) (quotation marks and citation omitted). The Ninth Circuit has stated that jurisdictional discovery "should ordinarily be granted where pertinent facts bearing on the question of jurisdiction are controverted or where a more satisfactory showing of the facts is necessary." Butcher's Union Local No. 498, United Food & Commercial Workers v. SDC Inv., Inc., 788 F.2d 535, 540 (9th Cir. 1986) (internal quotation omitted).
District courts within the Ninth Circuit require a plaintiff to establish a "colorable basis" for personal jurisdiction before granting jurisdictional discovery. See, e.g., Mitan v. Feeney, 497 F.Supp.2d 1113, 1119 (C.D. Cal. 2007). "This 'colorable' showing should be understood as something less than a prima facie showing, and could be equated as requiring the plaintiff to come forward with 'some evidence' tending to establish personal jurisdiction over the defendant." Id. at 1119 (citations omitted). A court may deny a request to conduct jurisdictional discovery if, for example, "a plaintiff's claim of personal jurisdiction appears to be both attenuated and based on bare allegations in the face of specific denials made by the defendants," Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1160 (9th Cir.2006), or "it is clear that further discovery would not demonstrate facts sufficient to constitute a basis for jurisdiction." Laub, 342 F.3d 1080, 1093 (9th Cir.2003) (quotation marks omitted).
Considering the liberal standard concerning jurisdictional discovery, the allegations in the complaint, the Court's previous ruling on jurisdictional discovery, the parties' arguments, and the Court's broad discretion, the Court GRANTS Tevra's discovery proposal.
Tevra has established a "colorable basis" for personal jurisdiction over the German Defendants. The first amended complaint ("FAC"), read in the light most favorable to Tevra, allegesa scheme in which the U.S. and German Defendants worked together to coordinate a web of anticompetitive agreements or understandings with retailers and distributors to block competition from generic Imidacloprid manufacturers in the United States. See FAC ¶¶ 4, 13-14. To this end, Tevra described the German Defendants' roles in research, development, and marketing the Imidacloprid topicals. See ECF 132 at 6-7; see, e.g. Shields v. Fed'n Internationale de Natation, 419 F. Supp. 3d 1188, 1210-11 (N.D. Cal. 2019) ().
Tevra also provided documents detailing how each proposed custodian was "involved in preventing generic imidacloprid topicals from entering the market and, therefore, would be highly relevant to the question of personal jurisdiction over the German Bayer entities." ECF 171-3 at 3. Zapatero, formerly the Marketing Companion Animal Products at Bayer Animal Health GmbH, instructed Bayer HealthCare LLC to "consider treatment of K9 generics as a risk 2018 and beyond. . . ." ECF 171-3 at 2-3 (quoting ECF 171, Exh. E); Rottmann, Global Pricing Excellence Manager at Bayer Animal Health GmbH, visited her Bayer HealthCare LLC colleagues in Shawnee, Kansas, and said she would "stay in close touch with regards to the new product launches, updates on global pricing guardrails, generic defense strategy etc in other markets," ECF 171-3 at 2-3 (quoting ECF 171, Exh. H); and Aue, Global Pricing Excellence Manager at Bayer Animal Health GmbH, authored a presentation regarding Advantix that proposed "maintain[i...
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