Westerngeco L.L.C. v. Ion Geophysical Corp..
| Decision Date | 02 March 2011 |
| Docket Number | Case No. 4:09–cv–1827. |
| Citation | 776 F.Supp.2d 342 |
| Parties | WESTERNGECO L.L.C., Plaintiff,v.ION GEOPHYSICAL CORPORATION, et al., Defendants. |
| Court | U.S. District Court — Southern District of Texas |
OPINION TEXT STARTS HERE
Lee L. Kaplan, Smyser Kaplan & Veselka, Houston, TX, Gregg Locascio, Kirkland & Ellis LLP, Washington, DC, Sarah K. Tsou, Xiaoyan Zhang, Rochelle H. Lee, Simeon G. Papcostas, Timothy K. Gilman, Kirkland and Ellis LLP, New York, NY, for Plaintiff.Gordon T. Arnold, Jason Allan Saunders, Arnold Knobloch LLP, John M. Elsley, Royston Rayzor, David Lee Burgert, Paul Andrew Dyson, Ray Thomas Torgerson, Porter & Hedges, Houston, TX, for Defendants.
Pending before the Court are: (1) the Motion to Dismiss Pursuant to Rule 12(b)(6) and, in the Alternative, Rule 12(e) Motion for a More Definite Statement filed by Defendants FugroGeoteam, Inc., Fugro, Inc., Fugro (USA), Inc., and Fugro Geoservices, Inc., and joined by Fugro–Geoteam AS and Fugro Norway Marine Services (Doc. No. 123); and (2) the Motion to Dismiss for lack of personal jurisdiction filed by Fugro–Geoteam AS and Fugro Norway Marine Services (Doc. No. 133).1
Upon considering the Motions, all responses thereto, and the applicable law, the Court finds that the Motion to Dismiss Pursuant to and, in the Alternative, Rule 12(e) Motion for a More Definite Statement (Doc. No. 123) must be granted in part and denied in part, and the Motion to Dismiss for lack of personal jurisdiction (Doc. No. 133) must be denied.
This is a patent infringement case originally brought by WesternGeco L.L.C. (“Plaintiff” or “WesternGeco”) against Ion Geophysical Corporation (“Ion”) in 2009. WesternGeco alleges that Ion has infringed on five of its U.S. patents—U.S. Patent No. 6,932,017 (the “'017 Patent”), 7,080,607 (the “'607 Patent”), 7,162,967 (the “'967 Patent”), and 7,293,520 (the “'520 Patent”) (“Bittleston Patents” collectively); and U.S. Patent No. 6,691,038 (the “'038 Patent” or “Zajac Patent”). At issue in this case is marine seismic streamer technology that is deployed behind ships. These streamers, essentially long cables, use acoustic signals and sensors to create three-dimensional maps of the subsurface of the ocean floor in order to facilitate natural resource exploration and management. For many seismic studies, greater control over the depth and lateral position of streamers is important in order to achieve optimal imagery from the signals and to maneuver around impediments such as rocks and oil rigs. WesternGeco's patents all pertain to streamer positioning devices, or devices that are used to control the position of a streamer as it is towed.
In June 2010, WesternGeco filed suit against the following six entities: (1) FugroGeoteam, Inc.; (2) Fugro, Inc.; (3) Fugro (USA), Inc.; (4) Fugro Geoservices, Inc.; (5) FugroGeoteam AS; and (6) Fugro Norway Marine Services. (Case No. 4:10–cv–2120). For purposes of these motions, the following four entities will be referred to as the “Fugro U.S. Defendants”: (1) Fugro–Geoteam, Inc.; (2) Fugro, Inc.; (3) Fugro (USA), Inc.; (4) Fugro Geoservices, Inc. The entities Fugro–Geoteam AS and Fugro Norway Marine Services will be referred to as the “Fugro Norway Defendants.” When referring to all six entities, we will use the term the “Fugro Defendants.” The case brought by WesternGeco against Fugro Defendants was consolidated with WesternGeco's suit against Ion.
For purposes of the motions to dismiss, the Court accepts the following factual allegations in Plaintiff's complaint as true. Frame v. City of Arlington, 575 F.3d 432, 434 (5th Cir.2009). The Fugro U.S. Defendants and the Fugro Norway Defendants are companies that conduct marine towed streamer surveys. (Compl. ¶ 22.) The Fugro U.S. Defendants are located at a Houston, Texas office (the “Houston Office”). ( Id. ¶ 30.) In December 2009, a company named Statoil USA E & P, Inc. (“Statoil”) applied for and received a Geological & Geophysical Permit from the U.S. Department of the Interior in order to conduct a three-dimensional (3D) marine seismic survey in the Chukchi Sea, off the coast of Alaska. (Compl. Exh. F at 1.) The permit application listed Statoil as the applicant and Fugro–Geoteam, Inc. as the “Service Company or Purchaser” that would be conducting the survey. ( Id. at 46, 47.) A seismic vessel, the marine vessel Geo Celtic towing an airgun array of airgun and hydrophone streamers for data acquisition, would conduct the survey along with two support vessels. ( Id. at 6.) The specifications for the Geo Celtic state that its “Operator” is “Fugro–Geoteam AS” and that “Seismic Management” is conducted by “Fugro Norway Marine Services AS.” The survey would utilize Ion's DigiFIN and Compass Birds or DigiBIRD and/or Orca command and control software for streamer control and streamer positioning. (Compl. ¶ 31; Exh. F at 21, 23.) WesternGeco states that both the Fugro U.S. Defendants and the Fugro Norway Defendants have offered for sale products and services for use in the Chukchi Sea survey relying, in part, on equipment, services, and/or support provided from the Houston Office. (Compl. ¶ 32.)
The survey would explore Statoil's lease holdings in the Chukchi Sea. ( Id. at 6, 8.) These lease holdings are located in the Outer Continental Shelf (“OCS”), approximately 100 miles northwest of Wainwright, Alaska and 150 miles west of Barrow, Alaska. ( Id. at 8.) The Geo Celtic would arrive at Dutch Harbor, Alaska for the load of crew and supplies, before heading to the lease holdings for the seismic survey. ( Id.) Nome would be the main port for refueling, resupply and crew changes, with Barrow or Wainwright as backup ports for resupply and crew. ( Id. at 7.) After the survey was completed, the Geo Celtic would demobilize to Dutch Harbor. ( Id. at 8.)
WesternGeco filed suit against the Fugro Defendants, alleging that the Chukchi Sea survey and other activities constitute infringement of the same five U.S. patents at issue in its suit against Ion. Specifically, WesternGeco claims that the Fugro U.S. Defendants and the Fugro Norway Defendants have violated 35 U.S.C. §§ 271(a), (b), (c), and/or (f) by “making, using, offering to sell, selling and/or supplying in or from the United States products and services relating to steerable streamers (including but not limited to products and services incorporating DigiFIN and ORCA) and/or inducing and/or contributing to such conduct ....” (Compl. ¶¶ 34.) In addition, WesternGeco claims that the alleged infringement has been willful, rendering this an exceptional case pursuant to 35 U.S.C. § 285.
WesternGeco served both the Fugro U.S. Defendants and the Fugro Norway Defendants, the latter pursuant to the Convention of November 15, 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the “Hague Service Convention.”) The Fugro U.S. Defendants filed a motion to dismiss WesternGeco's complaint pursuant to Rule 12(b)(6) and, in the alternative, a Rule 12(e) motion for a more definite statement. (Doc. No. 123.) The Fugro Norway Defendants joined in this motion to dismiss and asserted lack of personal jurisdiction as a separate ground for dismissal that is specific to the Fugro Norway Defendants. (Doc. No. 133.). The motions to dismiss have been briefed and are ripe for disposition.
WesternGeco avers the following facts in its complaint to support the exercise of personal jurisdiction over the Fugro Norway Defendants. The Fugro Norway Defendants are subsidiary companies that share a common owner, Fugro N.V., with the Fugro U.S. Defendants. The “Fugro–Geoteam” designation is a business or marketing brand that encompasses some or all of the Fugro entities and has worldwide responsibility for marine seismic data acquisition services within Fugro. Both the Fugro Norway Defendants and the Fugro U.S. Defendants operate as a single, world-wide, integrated company with substantial contacts in Houston, Texas. First, the Fugro Norway Defendants regularly sell products and services, including infringing products and services, to customers within the Southern District. For example, a Fugro Norway Defendant operated the vessel using the allegedly infringing equipment that conducted the Chukchi Sea seismic survey in order to provide seismic 3D data to Statoil, a company doing business in Houston, Texas. The seismic survey was managed by another Fugro Norway Defendant. Second, the Fugro Norway Defendants have offered for sale infringing products and services relying upon equipment, services, and/or support provided from the Southern District. A Fugro U.S. Defendant—Fugro–Geoteam, Inc.—is listed in the permit application for the Chukchi Sea survey as the “Service Company” who will be conducting exploration activity for Statoil, who is listed as the “Purchaser of Data.” Third, both the Fugro Norway Defendants and the Fugro U.S. Defendants share overlapping directors and management with each other and with their parent, Fugro N.V. Fourth, the 2009 Annual Report of Fugro N.V. states that “effective cooperation” between the Fugro subsidiaries is promoted at various levels, including “the exchange of equipment, employees and expertise between the various activities.” Fifth, both the Fugro Norway Defendants and the Fugro U.S. Defendants share the same website, which is accessible nationally and internationally and is active in interstate commerce. The Fugro Norway Defendants have not submitted any affidavits to controvert WesternGeco's averments.
WesternGeco has also offered the following facts via affidavit. The Fugro Norway Defendants have regular contacts within this District involving their marine surveys. Such contacts include advertising their seismic data acquisition services in a Houston-based oil and gas magazine, advertising and demonstrating their products and services at industry...
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