MONSTER, INCS MEMORANDUM IN OPPOSITION TO APPLICATION FOR
TEMPORARY RESTRAINING ORDER AND MOTION FOR EXPEDITED DISCOVERY
JAMES E. GERINGER, OSB No. 951783 james.geringer@klarquist.com NORMAN ANDREW SFEIR, OSB No. 131787 andy.sfeir@klarquist.com KLARQUIST SPARKMAN, LLP 121 S.W. Salmon Street, Suite 1600 Portland, Oregon 97204 Telephone: (503) 595-5300 Fax: (503) 595-5301
Attorneys for MONSTER, INC. UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION CARBON AUDIO, LLC, a Delaware limited liability company, and HEADBOX, LLC, d/b/a BOOMPHONES, a Delaware limited liability company,
Plaintiffs,
v.
MONSTER, INC., a California corporation,
Defendant. Case No. 3:14-cv-00332-PK
JURY TRIAL DEMANDED
MONSTER, INC.S MEMORANDUM IN OPPOSITION TO APPLICATION FOR TEMPORARY RESTRAINING ORDER AND MOTION FOR EXPEDITED DISCOVERY
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Page i MONSTER, INC.S MEMO IN OPPOSITION TO APPLICATION FOR TEMPORARY RESTRAINING ORDER AND MOTION FOR EXPEDITED DISCOVERY TABLE OF CONTENTS Page
I. INTRODUCTION .............................................................................................................. 1 II. PLAINTIFFS FAIL TO SHOW EVIDENCE TO SUPPORT THEIR CLAIMS, MUCH LESS A LIKELIHOOD OF SUCCESS .................................. 1 A. Plaintiffs Fail To Identify Any Trade Secrets, Or Any Misappropriation, And Fail To Explain Why Oregon Law Should Apply To Actions Outside Oregon ................. 1 B. Plaintiffs Offer No Evidence To Support Their Allegation That Monster Intentionally Interfered With Carbon Audios Alleged Contract With 3NOD ................... 4 C. Plaintiffs Fail To Identify Any Misrepresentation Under The Lanham Act ....................... 5 III. PLAINTIFFS FAIL TO RECOGNIZE THE PUBLIC INTERESTS REFLECTED IN LEATHERMAN AND IN ORS 646.461(2)(C) ................................................................... 6 IV. PLAINTIFFS OFFER NO EXPLANATION WHY THEY WAITED SO LONG TO SEEK EMERGENCY RELIEF ..................................... 6 V. BALANCE OF EQUITIES AND BOND........................................................................... 7 VI. OBJECTIONS TO HEARSAY .......................................................................................... 7 VII. PLAINTIFFS MOTION FOR EXPEDITED DISCOVERY SHOULD BE DENIED, OR IF GRANTED, MADE RECIPROCAL .............................. 8 VIII. PLAINTIFFS DO NOT ALLEGE FACTS SUFFICIENT TO SUPPORT THE ASSERTION OF PERSONAL JURISDICTION OVER MONSTER ...................... 9 IX. CONCLUSION ................................................................................................................. 11
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Page ii MONSTER, INC.S MEMO IN OPPOSITION TO APPLICATION FOR TEMPORARY RESTRAINING ORDER AND MOTION FOR EXPEDITED DISCOVERY TABLE OF AUTHORITIES Page !"#$# Contour Design, Inc. v. Chance Mold Steel Co., Ltd., et al., 2010 WL 4774283 (D.N.H.) ................................................................................................... 2, 4 Farmers Ins. Exch. v. Portage La Prairie Mut. Ins. Co., 907 F.2d 911 (9th Cir. 1990) .................................................................................................... 11 Gray & Co. v. Firstenberg Mach. Co., 913 F.2d 758 (9th Cir. 1990) ...................................................................................................... 9 Holland Am. Line Inc. v. Wrtsil N. Am., Inc., 485 F.3d 450 (9th Cir. 2007) .................................................................................................... 10 In re W. States Wholesale Natural Gas Antitrust Litig., 715 F.3d 716 (9th Cir. 2013) .................................................................................................... 10 Leatherman Tool Group v. Cooper Industries, Inc., 199 F.3d 1009 (9th Cir. 1999) .................................................................................................... 6 Mavrix Photo, Inc. v. Brand Techs., Inc., 647 F.3d 1218 (9th Cir. 2011) .................................................................................................... 9 Pebble Beach Co. v. Caddy, 453 F.3d 1151 (9th Cir. 2006) .................................................................................................... 9 Precision Automation, Inc. v. Technical Servs., Inc., No. 07-CV-707-AS, 2007 WL 4480736, (D. Or. Dec. 14, 2007).............................................. 5 Qiang Wang v. Palo Alto Networks, Inc., 2013 WL 415615 (N.D. Ca. 2013)5) .......................................................................................... 5 Vigilante.com, Inc. v. Argus Test.com, Inc., No. 04-413-MO, 2005 WL 2218405, (D. Or. Sept. 6, 2005) .................................................... 5 Walden v. Fiore, No. 12-574, slip op. at 5 (S. Ct. Feb. 25, 2014) ........................................................................ 10 %&"&'&$# Lanham Act, Title 15 U.S.C. .......................................................................................................... 1 (&)$* ,'&)-*.&.$# ORS 646.475 ................................................................................................................................... 5 ORS 646.473 ................................................................................................................................ 5 Case 3:l4-cv-00332-PK Document l8 Filed 03/05/l4 Page 3 of l6 Page lD#: 248
Page iii MONSTER, INC.S MEMO IN OPPOSITION TO APPLICATION FOR TEMPORARY RESTRAINING ORDER AND MOTION FOR EXPEDITED DISCOVERY /'0$# Or. R. Civ. P. 4 ................................................................................................................................ 9
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Page 1 MONSTER, INC.S MEMO IN OPPOSITION TO APPLICATION FOR TEMPORARY RESTRAINING ORDER AND MOTION FOR EXPEDITED DISCOVERY I. INTRODUCTION Plaintiffs rely on three claims for the extraordinary emergency relief they seek: alleged trade secret misappropriation under Oregon law, alleged interference with contract under Oregon law, and alleged false description of goods under the Lanham Act, Title 15 U.S.C. None of these claims has merit. Furthermore, Plaintiffs offer no explanation for their lengthy delay in bringing their motion for emergency relief, or any explanation why they never shared any of their suspicions or documents with Monster before springing their surprise motion. Plaintiffs also fail to acknowledge the strong public interests that weigh against a patent-like injunction in this case, where no patents exist, no trade secrets have actually been identified, and plaintiffs hearsay and information and belief allegations regarding Monsters intent are directly contradicted by affirmative evidence showing that Monster designed its own product with no knowledge or reason to suspect that doing so trespassed upon any intellectual property or interfered in any way with Plaintiffs. II. PLAINTIFFS FAIL TO SHOW EVIDENCE TO SUPPORT THEIR CLAIMS, MUCH LESS A LIKELIHOOD OF SUCCESS A. Plaintiffs Fail To Identify Any Trade Secrets, Or Any Misappropriation, And Fail To Explain Why Oregon Law Should Apply To Actions Outside Oregon Plaintiffs alleged new idea of a Bluetooth speaker that had the look, feel, and size of a smartphone with room-filling, high-quality sound 1 is too general to qualify for trade secret protection. As documented in the accompany Declaration of Elbert Lee (Elbert Lee Decl.), smartphone-sized wireless speakers had already been sold to the American public by the time of any alleged improper disclosure to Monster of that idea by 3NOD. Indeed, smartphone-sized wireless speakers had already been sold in the American marketplace before Carbon Audio
1 Dkt. 8, Page ID# 75. Case 3:l4-cv-00332-PK Document l8 Filed 03/05/l4 Page 5 of l6 Page lD#: 250
Page 2 MONSTER, INC.S MEMO IN OPPOSITION TO APPLICATION FOR TEMPORARY RESTRAINING ORDER AND MOTION FOR EXPEDITED DISCOVERY allegedly disclosed its Pocket Speaker prototype to 3NOD in January 2013. Monster itself has made portable wireless speakers since before Carbon Audio was born. Neither have Plaintiffs shown that Carbon Audio treated the external design of their device as a trade secret. For example, Carbon Audio showed the Pocket Speaker to at least one other company in the industry, Sol Republic, in June 2013, without any obligation to keep it confidential. (Kevin Lee Decl. 2-3; Elbert Lee Decl. 40). Moreover, the external shape of the Pocket Speaker itself is not original mimicking, as it does, the Apple iPhone 5. And as the Contour case cited by plaintiffs makes clear, there is no trade secret protection in generalities (or in the look of products exposed to others under no duty of confidentiality). Instead, trade secret protection in Uniform Trade Secret Act (UTSA) jurisdictions must be specific, and the secret must actually be kept secret. See Contour Design, Inc. v. Chance Mold Steel Co., Ltd., et al., 2010 WL 4774283, *5 (D.N.H.) (Plaintiff has not, as required under UTSA, identified with reasonable specificity the trade secrets that [defendant] allegedly misappropriated); id. at *8 (physical appearance of products not confidential where treated in nonconfidential manner prior to alleged misappropriation). Plaintiffs have also failed to show that 3NOD owed any duty of confidentiality to Carbon Audio regarding the external shape of the Pocket Speaker. 2 Exhibit A to the Complaint is the only purported support for this claim, and Exhibit A is conspicuously blank in the critical spot where the Product must be described on the Statement of Work. 3 This is fatal, because the only intellectual property assigned to Carbon Audio under the terms of the Agreement is
2 Plaintiffs alleged Nondisclosure Agreement (Dkt 1-2) is not with the 3NOD entity that signed the Manufacturing Agreement (Dkt 1-1), but with a similarly-named but apparently different legal entity, Shenzen 3NOD Electronics Co., Ltd. 3 See Dkt. 1-1 Page ID # 39 (Exh. A page 8); id., Page ID # 33 (definitions of Statement of Work and Product(s). Case 3:l4-cv-00332-PK Document l8 Filed 03/05/l4 Page 6 of l6 Page lD#: 25l
Page 3 MONSTER, INC.S MEMO IN OPPOSITION TO APPLICATION FOR TEMPORARY RESTRAINING ORDER AND MOTION FOR EXPEDITED DISCOVERY Created Intellectual Property, a term whose definition is expressly limited to intellectual property rights relating to the Product. 4 Moreover, Plaintiffs admit that this undated Agreement (which by its own terms must be dated in order to be effective at all) 5 was executed in early 2012 (Riggs Decl. 12), before Carbon Audio claims to have first started working on the design concept in September 2012, and even longer before Carbon Audio allegedly showed a prototype to 3NOD in January 2013. (Riggs Decl. 5, 10). Further, Plaintiffs ignore the fact that Monster 6 materially changed its position in the months since it committed, in good faith, to using 3NOD and others to make and assemble the SuperStar speaker. 7 See Elbert Lee Decl. 42. As the Elbert Lee Declaration makes painstakingly clear, the SuperStar speaker is a new device, quite different both inside and out from the Pocket Speaker (Elbert Lee Decl., 24-31), and Monster did not move ahead in having 3NOD manufacture the new design until Monster received 3NODs express written assurance that 3NOD was free and clear to make the SuperStar device to Monsters specifications. (Elbert Lee Decl., 21; see also Declaration of Steven Zhang and Exhibit A thereto). As a result, if Oregon trade secret law applies in this case, plaintiffs trade secret claim must fail, both because plaintiffs do not identify any actual trade secrets in their papers, and because Plaintiffs identify nothing to suggest that Monster knew or had reason to know that 3NOD had disclosed any Carbon Audio trade secrets, or that 3NOD would need to use Carbon Audio trade secrets in order
4 See Dkt. 1-1 Page ID# 32-33 (Exhibit A at pp. 1-2), Section 1, definitions of Created Intellectual Property and Manufacturing Services (which in turn references Product). 5 See Dkt. 1-1 Page ID# 32 (Exhibit A at p. 1), Section 1, definition of Effective Date. 6 Monster, LLC, a Nevada entity, not Monster, Inc., the California corporation named as a defendant, is the Monster entity that designed the SuperStar speaker. 7 Besides 3NODs assembly work, Monster engaged a different company (not 3NOD) to make the plastic housing of the device, and spent tens of thousands of dollars on tooling. Case 3:l4-cv-00332-PK Document l8 Filed 03/05/l4 Page 7 of l6 Page lD#: 252
Page 4 MONSTER, INC.S MEMO IN OPPOSITION TO APPLICATION FOR TEMPORARY RESTRAINING ORDER AND MOTION FOR EXPEDITED DISCOVERY to make the SuperStar device. 8 Plaintiffs claim thus fails under ORS 646.461(2) (a), (b) and (d). Plaintiffs claim also fails under ORS 646.461(2)(c), because by the time Plaintiffs belatedly shared their accusations with Monster (something Plaintiffs did only by filing this suit, after inexplicably waiting in silence for at least four months after supposedly learning that Monster was marketing its own portable speaker design 9 ), Monster had materially changed its position. See ORS 646.461(2)(c) (governing disclosures to persons who materially change position before knowing or having reason to know a trade secret was acquired by accident or mistake). Monster had no way of knowing, and no reason to suspect, that the short beep noises that 3NOD used in the preliminary model shown at the Consumer Electronics Show (CES) allegedly came from Carbon Audio. In any case, the production models do not use these beeps, but instead use a female voice with a British accent, something Monster has done before. Elbert Lee Decl. 35. B. Plaintiffs Offer No Evidence To Support Their Allegation That Monster Intentionally Interfered With Carbon Audios Alleged Contract With 3NOD The Contour case also illustrates the weakness of Plaintiffs contract interference claim. Specifically, in Contour, the manufacturer entered an agreement not to compete with the plaintiff. Contour, 2010 WL 4774283, *2, *10 (finding breach of non-compete provision agreed to by defendant manufacturer). There is no such agreement here, and no reason why Monster should have assumed one. Indeed, in light of the clearly widespread capability of American and Chinese industry to make small wireless speakers (and to make them in the same kind of useful shapes that are popular for smartphones), Monster had no reason to think that 3NOD would require Carbon Audio trade secrets to make a speaker the size and shape of the Super Star.
8 Plaintiffs offer no word to explain why Oregon law should apply to actions outside Oregon. While Carbon Audios contract with 3NOD (Dkt. 1-1) provides for Oregon law (and venue) to apply to disputes over that agreement, that provides no reason to apply Oregon law to actions in China or California. 9 Dkt. 8 at Page ID # 88 (alleging Case 3:l4-cv-00332-PK Document l8 Filed 03/05/l4 Page 8 of l6 Page lD#: 253
Page 5 MONSTER, INC.S MEMO IN OPPOSITION TO APPLICATION FOR TEMPORARY RESTRAINING ORDER AND MOTION FOR EXPEDITED DISCOVERY Plaintiffs claim for intentional interference with contract fails for lack of any showing of knowledge or intent by Monster to do anything to disrupt Carbon Audios contract with 3NOD. Plaintiffs fail to identify any clause of any agreement that Monster caused or induced 3NOD to breach, other than confidentiality. And plaintiffs fail to show that any breach of confidentiality was necessary or expected. Rather, as illustrated in detail in the Declaration of Elbert Lee, it is clear that small wireless speakers can be designed and made without interfering in any way with the contract between 3NOD and Carbon Audio. Carbon Audios claim is nothing more than a hindsight attempt to cast its 3NOD agreement as having a noncompete clause, which it does not. Monster also notes that, if Oregon law applies, Plaintiffs interference claim is preempted by ORS 646.473 ((1) Except as provided in subsection (2) of this section, ORS 646.461 to 646.475 supersede conflicting tort, restitution or other law of Oregon providing civil remedies for misappropriation of a trade secret.) See, e.g., Qiang Wang v. Palo Alto Networks, Inc., 2013 WL 415615, *3-5 (N.D. Ca. 2013) (applying Californias version of UTSA); Precision Automation, Inc. v. Technical Servs., Inc., No. 07-CV-707-AS, 2007 WL 4480736, *1-2 (D. Or. Dec. 14, 2007) (a tortious interference claim is preempted if its essence relates primarily to the alleged misappropriation of a trade secret); Vigilante.com, Inc. v. Argus Test.com, Inc., No. 04- 413-MO, 2005 WL 2218405, *13 (D. Or. Sept. 6, 2005) (plaintiff's unfair competition claim preempted because it alleged that defendant competed unfairly by misappropriating and exploiting plaintiff's confidential information (i.e., trade secrets) and using a misappropriated customer list). C. Plaintiffs Fail To Identify Any Misrepresentation Under The Lanham Act Plaintiffs dont point to any specific fact they allege Monster has misstated. They cite a sales pitch thats opinionated but accurate. (See Elbert Lee Decl. 44-46). The press release (Dkt. 1-3) is also accurate. (See Elbert Lee Decl. 39). Neither, in any event, is a Section 43(a) Case 3:l4-cv-00332-PK Document l8 Filed 03/05/l4 Page 9 of l6 Page lD#: 254
Page 6 MONSTER, INC.S MEMO IN OPPOSITION TO APPLICATION FOR TEMPORARY RESTRAINING ORDER AND MOTION FOR EXPEDITED DISCOVERY claim under the Lanham Act stated merely by asserting that the accused goods were made in violation of someones trade secrets. III. PLAINTIFFS FAIL TO RECOGNIZE THE PUBLIC INTERESTS REFLECTED IN LEATHERMAN AND IN ORS 646.461(2)(C) Plaintiffs memorandum pays short shrift to the public notice factor of the TRO analysis. One specific public interest that Plaintiffs ignore is the policy expressed in section (2)c) of ORS 646.461. As noted above, the Oregon UTSA expressly provides protection for parties in Monsters position, who are accused long after the fact of having received some alleged trade secret by mistake or accident. There is a strong public interest against allowing such secrets to threaten the work and investment of parties who had no reason to know at the time of the alleged disclosure that any kind of trade secret was being disclosed. There is also a strong public interest against granting patent-like monopolies on the basis of alleged trade dress. See, e.g., Leatherman Tool Group v. Cooper Industries, Inc., 199 F.3d 1009 (9th Cir. 1999) (overall appearance of a useful article is not protectable trade dress). IV. PLAINTIFFS OFFER NO EXPLANATION WHY THEY WAITED SO LONG TO SEEK EMERGENCY RELIEF Plaintiffs admit that they were told months prior to the January 2014 CES trade show that Monster had a new speaker design. (Martin Decl., Dkt 11, 31-32; Dkt. 8 at Page ID# 78). Indeed, the SuperStar speaker generated considerable publicity, including in the English language trade press. (Elbert Lee Decl. 41). Yet despite their awareness which the January 7-10 CES tradeshow in Las Vegas reinforced nearly two months before this suit Plaintiffs did not file suit against Monster, did not communicate their allegations to Monster, and did not initiate the mandatory arbitration with 3NOD clearly provided for in the Manufacturing Agreement (if that Agreement is effective at all). See Dkt. 1-1 at Page ID# 37, 13.13 Case 3:l4-cv-00332-PK Document l8 Filed 03/05/l4 Page l0 of l6 Page lD#: 255
Page 7 MONSTER, INC.S MEMO IN OPPOSITION TO APPLICATION FOR TEMPORARY RESTRAINING ORDER AND MOTION FOR EXPEDITED DISCOVERY (agreement to mandatory arbitration in Multnomah County). Plaintiffs delay severely undercuts their professed need for emergency relief. V. BALANCE OF EQUITIES AND BOND The harm that a TRO would do to Monster is irreparable, not only to Monster but also to the many third parties in Monsters supply and distribution chains. Launching a new product requires the coordinated efforts of many people, including not least the retailers who are planning on receiving Monsters already-announced product. As explained in paragraph 42 of the Elbert Lee Declaration, if Monsters shipments are delayed, it will likely miss an entire sales cycle with at least some retailers. For major retailers like Best Buy, missing the deadline for spring could mean the product will not be stocked until fall. In the fast-moving, innovative market for small wireless speakers, Monsters large investment in design, tooling, and promotions would be largely lost, and the lost market share would be hard to recapture. In contrast, Carbon Audios product has already been available (Plaintiffs say) for months. If any preliminary injunction relief is granted, the bond should be commensurate to the harm that plaintiffs seem to impose on Monster. VI. OBJECTIONS TO HEARSAY Monster objects to Plaintiffs reliance on hearsay and double hearsay statements improperly cited by plaintiffs for their alleged truth. Examples include: Martin Decl. 31-32 (quoting for truth the alleged statement of an unnamed alleged Sol Republic employee). Riggs Decl. 29 (quoting for truth the alleged statement of an unnamed Monster employee). Riggs Decl. 28, Martin Decl. 45 (quoting for truth the alleged statements of unnamed tradeshows attendees to unnamed Carbon Audio or Boomphones people). Case 3:l4-cv-00332-PK Document l8 Filed 03/05/l4 Page ll of l6 Page lD#: 256
Page 8 MONSTER, INC.S MEMO IN OPPOSITION TO APPLICATION FOR TEMPORARY RESTRAINING ORDER AND MOTION FOR EXPEDITED DISCOVERY Martin Decl. 33 (alleged statement by non-party). VII. PLAINTIFFS MOTION FOR EXPEDITED DISCOVERY SHOULD BE DENIED, OR IF GRANTED, MADE RECIPROCAL Because this case lacks a basis for emergency relief, discovery should proceed expeditiously under the normal rules. Monster is ready to meet with plaintiffs anytime to discuss Initial Disclosures, to discuss depositions, and work out an appropriate proposed Protective Order to protect confidential information. If expedited discovery is ordered, Monster asks that it be reciprocal and that confidential information be protected. Some deposition topics and documents plaintiffs should provide immediate discovery on in that circumstance are listed below: 1. The identity of plaintiffs alleged trade secrets, if any, including in particular any trade secret plaintiffs allege is necessary to make a small speaker like the Super Star device. 2. What information did Carbon Audio disclose to 3NOD, and what contributions did 3NOD make in its collaboration with Carbon Audio? What aspects of the Pocket Speaker are allegedly licensed from 3NOD (rather than assigned) under the 3NOD-Carbon Audio agreement? 3. What features, if any, of the Pocket Speaker does Carbon Audio claim to be nonfunctional? 4. Why did Carbon Audio choose to work with 3NOD? What did 3NOD do to earn the trust that Carbon Audio now claims has been damaged? 5. What has Carbon Audio said (if anything) to 3NOD? And why hasnt Carbon Audio invoked arbitration in Multnomah County with 3NOD? (See Dkt. 1-1, para. 13-13). 6. Is the Pocket Speaker currently sold by Apple? If not, why not? Case 3:l4-cv-00332-PK Document l8 Filed 03/05/l4 Page l2 of l6 Page lD#: 257
Page 9 MONSTER, INC.S MEMO IN OPPOSITION TO APPLICATION FOR TEMPORARY RESTRAINING ORDER AND MOTION FOR EXPEDITED DISCOVERY 7. To what companies and individuals did Carbon Audio or Boomphones show the Pocket Speaker before its commercial release? 8. Documents and things that 3NOD should produce include the Pocket Speaker that Carbon Audio showed to Sol Republic in June, and anything that either Plaintiff contends rebuts the fact that Carbon Audio disclosed the Pocket Speaker to Sol Republic in June 2013 without a non-disclosure agreement. VIII. PLAINTIFFS DO NOT ALLEGE FACTS SUFFICIENT TO SUPPORT THE ASSERTION OF PERSONAL JURISDICTION OVER MONSTER Plaintiffs have failed to plead any facts that would justify the exercise of personal jurisdiction over Monster, Inc. in this case. Personal jurisdiction exists if permitted by a States long-arm statute and if exercising that jurisdiction does not violate federal due process. Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1154 (9th Cir. 2006). Oregons long-arm statute confers jurisdiction to the extent permitted by due process. Or. R. Civ. P. 4; Gray & Co. v. Firstenberg Mach. Co., 913 F.2d 758, 760 (9th Cir. 1990). Thus, this court may exercise personal jurisdiction only if due process permits. Personal jurisdiction may be either specific or general. For a court to exercise general personal jurisdiction over a corporate defendant, that defendant must engage in continuous and systematic general business contacts that approximate physical presence in the forum state. Mavrix Photo, Inc. v. Brand Techs., Inc., 647 F.3d 1218, 1223-24 (9th Cir. 2011) (quotations omitted). Plaintiffs allege only that Monster conducts business in this District, and is causing injury to Plaintiffs in this District. (Complaint, Dkt 1, 13). Plaintiffs do not, and cannot, allege that Monster, Inc. has the kind of continuous and systematic general business presence in Oregon that general jurisdiction requires. Case 3:l4-cv-00332-PK Document l8 Filed 03/05/l4 Page l3 of l6 Page lD#: 258
Page 10 MONSTER, INC.S MEMO IN OPPOSITION TO APPLICATION FOR TEMPORARY RESTRAINING ORDER AND MOTION FOR EXPEDITED DISCOVERY Neither does specific personal jurisdiction exist. To exercise specific jurisdiction, there must be minimum contacts between the State and the defendant. Walden v. Fiore, No. 12-574, slip op. at 5 (S. Ct. Feb. 25, 2014). [T]he relationship must arise out of contacts that the defendant himself creates with the forum State. Id. at 6 (quotation omitted; emphasis in original). It does not turn on contacts between the plaintiff . . . and the forum State. Id. And, the minimum contacts analysis looks to the defendants contacts with the forum State itself, not the defendants contacts with persons who reside there. Id. at 7. Plaintiffs allege no contacts between Monster and Oregon. That Plaintiffs allegedly will be injured in Oregon (see Dkt. 1 13(d)) is insufficient, because the jurisdictional inquiry is not on defendants contacts with the plaintiff, but with the forum state, as Walden emphasized. That Monster may have sold other products in Oregon that are not accused in this action (see Dkt. 1 13(a)) is also insufficient, because specific jurisdiction is claim-specific. That is, the claim must be one which arises out of or relates to the defendants forum-related activities. In re W. States Wholesale Natural Gas Antitrust Litig., 715 F.3d 716, 742 (9th Cir. 2013) (quotation omitted). Any such other products sold are irrelevant to Plaintiffs claims here. Lastly, that Monster allegedly has marketed and is prepared to sell the Superstar speaker here (see Dkt. 1 13(b)) is also insufficient. Plaintiff identifies no such marketing. That Monster has posted advertisements to YouTube does not create specific personal jurisdiction, because an Internet advertisement is not action purposefully directed to a forum state. See Holland Am. Line Inc. v. Wrtsil N. Am., Inc., 485 F.3d 450, 460 (9th Cir. 2007) (finding website advertisement insufficient to create personal jurisdiction, where it does not provide any direct means for purchasing parts or requesting services and instead simply provides information on the various products manufactured . . .and redirects potential customers to the appropriate subsidiary.). Speculated Case 3:l4-cv-00332-PK Document l8 Filed 03/05/l4 Page l4 of l6 Page lD#: 259
Page 11 MONSTER, INC.S MEMO IN OPPOSITION TO APPLICATION FOR TEMPORARY RESTRAINING ORDER AND MOTION FOR EXPEDITED DISCOVERY future sales of the Superstar speaker are irrelevant, because specific jurisdiction must rely on actions already taken, not potential future acts within a State. See Farmers Ins. Exch. v. Portage La Prairie Mut. Ins. Co., 907 F.2d 911, 913 (9th Cir. 1990) (Only contacts occurring prior to the event causing the litigation may be considered.). Because these allegations are insufficient, personal jurisdiction over Monster has not been established. IX. CONCLUSION For the reasons stated above, even a narrowly drawn injunction would be inappropriate on this record. Even the narrowest of injunctions would basically give plaintiffs something Carbon Audio never bargained for with 3NOD a de facto non-compete. Moreover, Plaintiffs have failed to establish that they have any trade secrets relating to the Pocket Speaker, and offer no evidence that the SuperStar speaker contains anything but the fruits of Monsters own hard work. Further, as noted above, Monster sought and received express assurances from 3NOD that 3NOD owned all needed know how rights in the design of the device 3NOD showed Monster in June 2013. At its core, Plaintiffs suit faults Monster for accepting the word of the same company that Carbon Audio asked to manufacture its own designs. Plaintiffs delay also speaks volumes. Plaintiffs themselves allege that they were advised of Monsters product at least four months ago. Yet Plaintiffs offer no explanation why they waited nearly two months to seek this emergency relief after inspecting (and videotaping) Monsters SuperStar product at the trade show. Instead they allowed Monster to continue to materially change its position, to Monsters increasing prejudice, announcing the product and putting suppliers, retailers, and other third parties in harms way of an injunction, if one is entered. Plaintiffs application for emergency injunctive relief has been brought late and lacks merit, and should be denied.
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Page 12 MONSTER, INC.S MEMO IN OPPOSITION TO APPLICATION FOR TEMPORARY RESTRAINING ORDER AND MOTION FOR EXPEDITED DISCOVERY
Dated: March 5, 2014
s/James E. Geringer/ James E. Geringer, OSB No. 951783 james.geringer@klarquist.com Norman Andrew Sfeir, OSB No. 131787 andy.sfeir@klarquist.com KLARQUIST SPARKMAN, LLP 121 S.W. Salmon Street, Suite 1600 Portland, Oregon 97204 Telephone: (503) 595-5300 Fax: (503) 595-5301
Attorneys for MONSTER, INC.
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Silvia Moroder Leon Y Castillo Inigo Coca Moroder Francisco De Borja Coca Moroder Alvaro Coca Moroder Victor Coca Moroder Otilia Coca Moroder ("Coca Family") Cia. De Inversionses De Castilla Y Leon, S.A. (Coinsa) and Agricola Industrial Ganadera, S.A. (Aigsa) v. First City Bancorporation of Texas, Inc., Keck, Mahin & Cate and Henry S. Landan, 43 F.3d 953, 1st Cir. (1994)