1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 RICHARD X ZAWITZ, et al., Case No. 20-cv-07121-DMR

8 Plaintiffs, ORDER ON DEFENDANT'S MOTION 9 v. TO DISMISS

10 STAR MAGIC, et al., Re: Dkt. No. 16 11 Defendants.

12 Plaintiffs Tangle, Inc. and Richard X. Zawitz filed this action against Defendants Star Magic 13 and Shlomo Ayal alleging copyright infringement, trademark infringement, unfair competition, and 14 tortious interference with economic advantage. [Docket No. 1 (“Compl.”).] Defendants move to 15 dismiss the complaint on the basis that the court lacks personal jurisdiction over them. [Docket Nos. 16 16 (“MTD”), 23 (“Reply”).] Plaintiffs oppose. [Docket No. 20. (“Opp.”).] The court held a hearing 17 on February 25, 2021. 18 For the reasons stated below, the motion is granted. I. BACKGROUND 19 20 A. Parties 21 Tangle is a California corporation and the exclusive master licensee for the manufacture and 22 marketing of the Tangle Sculpture, a unique sculptural design used for play, therapy, and educational 23 purposes. Compl. ¶¶ 2, 6; id., Ex. 2. Zawitz is the founder of Tangle and the creator and owner of 24 the Tangle Sculpture. Id. ¶ 1. Star Magic is a business entity with its principal place of business in 25 New York. MTD at 1. Ayal is the President of Star Magic and in charge of Star Magic’s business 26 operations. Id. 27 Star Magic has purchased Tangle Sculptures from Tangle since the 1980s. Compl. ¶ 8. Star 1 brick-and-mortar retail stores in the early 2000s and began selling Tangle products exclusively 2 online, including on Amazon. Id. Ayal asserts that neither he nor other Star Magic representatives 3 have ever traveled to California for purposes related to Star Magic’s business. [Docket No. 16-1, 4 Declaration of Shlomo Ayal (“Ayal Decl.”) ¶ 6.] All meetings between Plaintiffs and Defendants 5 have taken place in New York. Id. Additionally, no Star Magic entity has been incorporated in 6 California, is registered to do business here, or has a principal place of business in this state. Id. 7 Star Magic does not operate any physical stores in California and does not have any offices or 8 warehouses here. Id. According to Ayal, Star Magic does not have any employees in California 9 and does not engage in any direct advertising of its products, much less any advertising directed to 10 California customers specifically. Id. ¶¶ 6-7. Ayal avers that Star Magic lists the products it sells 11 on Amazon and similar platforms and ships the products wherever the purchasers are located. Id. ¶ 12 9. 13 B. Allegations and Claims 14 When Plaintiffs began considering selling Tangle products on Amazon, they discovered that 15 Defendants were already using the Tangle name to sell over ten brands through Amazon. Compl. ¶ 16 9. Plaintiffs further discovered that Defendants were mislabeling Tangle products using inaccurate 17 Universal Product Code (“UPC”) and Amazon Standard Identification Number (“ASIN”) numbers. 18 Id. UPCs are 12-digit bar codes used for retail packaging in the United States. Plaintiffs used UPCs 19 to distinguish Tangle products according to size, material, texture, color, etc. Id. ¶ 10. An ASIN is 20 a unique block of 10 letters and/or numbers that Amazon assigns to an item when a third-party seller 21 places a product with a UPC for sale on Amazon. Id. ¶¶ 11-12. Once the ASIN is assigned, Amazon 22 requires all other sellers of the same item to use the same UPC and ASIN established by the first 23 seller. Id. ¶ 12. Defendants’ mislabeling resulted in Plaintiffs’ inability to create the correct listings 24 for their own Tangle products. Id. ¶¶ 13-14. In addition to mislabeling items, Defendants allegedly 25 used an unauthorized name and mark for Tangle products on Amazon and falsely listed Star Magic 26 as the brand for these items. Id. ¶ 15. Defendants used names like “Tangle Magic Twister” and 27 other variations of Tangle marks combined with the words “Star” and “Magic.” Id. ¶¶ 16-17. 1 Tangle Products with Defendants’ business. Compl. ¶ 17. Plaintiffs further allege that Defendants 2 intentionally placed incorrect listings of Tangle products on Amazon and intentionally refused to 3 correct them in order to suppress Tangle’s own sales. Id. ¶¶ 17-19. As a result of Defendants’ 4 conduct, Plaintiffs eventually stopped selling Tangle Sculptures to Defendants. Id. ¶ 20. In 5 response, Defendants wrongfully copied and sold “cheap imitations” of Tangle products using the 6 Tangle name and product designations. Id. 7 On July 6, 2020, Ayal sent an email to Plaintiffs offering to place an order for Tangle 8 products and informing Plaintiffs that if they did not accept the offer, he would begin to sell a Star 9 Magic version of the Tangle Sculpture called the “Star Magic Twister.” Compl., Ex. 1. Ayal 10 claimed that he had consulted an attorney who assured him that the Star Magic Twister did not 11 violate Tangle’s trademark rights. Compl. ¶ 22; id., Ex. 1. Plaintiffs allege that the Star Magic 12 products are “exact duplicates” of the Tangle products and are “likely to create confusion” among 13 consumers. Id. ¶¶ 22, 24. Defendants have allegedly sold Star Magic Twister products to people 14 located in California through Amazon. Id. ¶¶ 25-26. Plaintiffs bring claims for copyright 15 infringement under

et seq.; trademark infringement under 15 U.S.C § 1114 et seq.; 16 violations of the Lanham Act,

(a); tortious interference with prospective economic 17 advantage; and violations of California and New York’s unfair competition laws. Compl. ¶¶ 35- 18 101. 19 Defendants move to dismiss the claims for lack of personal jurisdiction. 20 II. DISCUSSION 21 A. Legal Standards for Personal Jurisdiction 22 “Where . . . there is no applicable federal statute governing personal jurisdiction, the district 23 court applies the law of the state in which the district court sits.” Yahoo! Inc. v. La Ligue Contre Le 24 Racisme Et L’Antisemitisme,

(9th Cir. 2006). Because California’s long-arm 25 statute allows a court to exercise personal jurisdiction to the extent permitted by the Due Process 26 Clause of the United States Constitution, “the jurisdictional analyses under state law and federal due 27 process are the same.” Id.; see also

(“A court of this state may 1 States.”). 2 In a motion to dismiss for lack of personal jurisdiction, the non-moving party “bears the 3 burden of establishing that jurisdiction is proper.” Boschetto v. Hansing,

(9th 4 Cir. 2008). Where, as here, a district court rules on a motion to dismiss without holding an 5 evidentiary hearing, the non-moving party “need only demonstrate facts that if true would support 6 jurisdiction over the defendant.” Ballard v. Savage,

(9th Cir. 1995). 7 “[U]ncontroverted allegations in the complaint must be taken as true . . . [and] [c]onflicts between 8 parties over statements contained in affidavits must be resolved in the plaintiff’s favor.” 9 Schwarzenegger v. Fred Martin Motor Co.,

(9th Cir. 2004). 10 Personal jurisdiction may be either general or specific. Bristol-Myers Squibb Co. v. Sup. Ct. 11 Cal., San Francisco Cty.,

(2017). “For an individual, the paradigm forum for 12 the exercise of general jurisdiction is the individual’s domicile; for a corporation, it is an equivalent 13 place, one in which the corporation is fairly regarded as at home.” Goodyear Dunlop Tires 14 Operations, S.A. v. Brown,

(U.S. 2011). Plaintiffs do not assert nor do the 15 pleadings support the existence of general jurisdiction. Accordingly, the only issue is whether the 16 court may exercise specific jurisdiction over Defendants. 17 Due process requires that a defendant have “certain minimum contacts with it such that the 18 maintenance of the suit does not offend traditional notions of fair play and substantial justice.” Int’l 19 Shoe Co. v. Washington,

(1945) (internal quotations omitted). The Ninth Circuit 20 uses a three-part test to analyze whether a party’s “minimum contacts” comport with the doctrine 21 articulated in International Shoe: 22 (1) The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or 23 perform some act by which he purposefully avails himself of the privilege 24 of conducting activities in the forum, thereby invoking the benefits and protections of its laws; 25 (2) the claim must be one which arises out of or relates to the defendant’s 26 forum-related activities; and

27 (3) the exercise of jurisdiction must comport with fair play and substantial 1 Glob. Commodities Trading Grp., Inc. v. Beneficio de Arroz Choloma, S.A.,

, 1107 2 (9th Cir. 2020) (quoting Schwarzenegger v. Fred Martin Motor Co.,

(9th Cir. 3 2004)). “The plaintiff bears the burden of satisfying the first two prongs of the test.”

(citing 4 Sher v. Johnson,

(9th Cir. 1990)). If the plaintiff meets its burden on the first 5 two prongs, “the burden then shifts to the defendant to ‘present a compelling case’ that the exercise 6 of jurisdiction would not be reasonable.”

(quoting Burger King Corp. v. Rudzewicz,

462, 476-78 (1985)). If any of the three factors are not met, “jurisdiction in the forum would deprive 8 the defendant of due process of law.” Omeluk v. Langsten Slip & Batbyggeri A/S,

, 270 9 (9th Cir. 1995). 10 B. Purposeful Direction and the Calder Test 11 Under the first prong of the specific jurisdiction test, purposeful availment and purposeful 12 direction are distinct concepts. Schwarzenegger,

. Purposeful availment is most 13 often used in cases related to contract disputes, and purposeful direction is used in cases, such as 14 this intellectual property action, that sound in tort.1 Id.; see Axiom Foods, Inc. v. Acerchem Int’l, 15 Inc.,

(9th Cir. 2017) (copyright infringement action sounds in tort). Purposeful 16 direction is analyzed under the three-part test derived from Calder v. Jones,

(1984): 17 “that the defendant allegedly ha[s] (1) committed an intentional act, (2) expressly aimed at the forum 18 state, (3) causing harm that the defendant knows is likely to be suffered in the forum state.” Dole 19 Food Co. v. Watts,

(9th Cir. 2002). The Calder test is appropriate here because 20 Plaintiffs allege tortious conduct by Defendants. 21 1. Intentional Act 22 In the Ninth Circuit, an “intentional act” is “an external manifestation of the actor’s intent to 23 perform an actual, physical act in the real world, not including any of its actual or intended results.” 24 Washington Shoe Co. v. A-Z Sporting Goods Inc.,

(9th Cir. 2012) (“Washington 25 Shoe”) (abrogation on other grounds recognized by Axiom Foods, Inc.,

). 26

27 1 At the hearing, Plaintiffs argued that the “purposeful availment” and “purposeful direction” tests 1 Here, Plaintiffs allege that Defendants committed several intentional acts, including creating 2 unauthorized, misleading listings on Amazon and manufacturing and distributing infringing copies 3 of the Tangle Sculpture. Defendants do not dispute that this prong of the Calder test is satisfied. 4 See Adobe Sys. Inc. v. Nwubah, No. 18-cv-06063-LHK,

, at *6 (N.D. Cal. Dec. 5 5, 2019) (“In the Ninth Circuit, an ‘intentional act’ includes selling an allegedly infringing product.”). 6 2. Express Aiming 7 The second prong of the Calder test requires that the non-forum defendant “expressly aimed” 8 the intentional act(s) at the forum state. Dole Food Co.,

. The Supreme Court has 9 established that the “express aiming” prong requires a showing that “the defendant’s conduct 10 connects him to the forum in a meaningful way,” not merely to a forum resident. Walden v. Fiore, 11

(2014) (emphasis added); see also Morrill v. Scott Fin. Corp.,

, 12 1148 (9th Cir. 2017) (“Plaintiffs were required to make a prima facie showing that Defendants’ 13 alleged actions were directed at [the forum state], not just at individuals who reside there.”). Mere 14 “knowledge of the plaintiffs’ strong forum connections, plus the foreseeable harm the plaintiffs 15 suffered in the forum” is not sufficient to establish minimum contacts. Axiom Foods, Inc.,

at 1069 (cleaned up). 17 Here, Defendants argue that that the “express aiming” prong is not met because they did not 18 “target third-party purchasers in California or in any other specific forum and the products offered 19 for sale are available for purchase worldwide.” Mot. at 8. They point out that they have no stores, 20 warehouses, or employees in California, and do not engage in “any direct marketing or advertising 21 of products . . . , whether to California or otherwise.” Ayal Decl. ¶ 6. Plaintiffs respond that 22 Defendants have had a long-standing relationship with Tangle (which is located in California), 23 purchased Tangle products from Tangle, sold and shipped “substantial amounts” of Tangle products 24 to people in California, interfered with Tangle’s ability to complete their own sales in California, 25 and used Tangle’s name to confuse consumers in California. Opp. at 7-8. 26 The Ninth Circuit has “struggled with the question whether tortious conduct on a nationally 27 1 viewed.” Mavrix Photo, Inc. v. Brand Techs., Inc.,

(9th Cir. 2011). However, 2 the caselaw makes clear that a defendant must do “something more” than merely operate a passive 3 website; there must also be “conduct directly targeting the forum.”

(internal quotation marks 4 and citations omitted). In Mavrix, a celebrity photo agency sued an Ohio company for copyright 5 infringement in a California district court. The complaint alleged that the defendant had posted the 6 plaintiff’s copyrighted photographs on its celebrity gossip website.

. The district 7 court granted the defendant’s motion to dismiss for lack of personal jurisdiction, but the Ninth 8 Circuit reversed. The court observed that the defendant “operated a very popular website with a 9 specific focus on the California-centered celebrity and entertainment industries.”

. The 10 defendant also knew about its substantial California user base and “exploit[ed] that base for 11 commercial gain by selling space on its websites for advertisements” that were directly targeted to 12 Californians.

The Ninth Circuit determined that the defendant “anticipated, desired, and 13 achieved a substantial California viewer base” and a California audience was “an integral 14 component of [the defendant’s] business model and profitability.”

These factors were sufficient 15 for the court to find personal jurisdiction over the defendant in California. 16 By contrast, district courts in California have “declined to find express aiming based on 17 alleged sales of products that infringe intellectual property rights through commercial, interactive 18 websites accessible to California consumers.” Graco Minnesota Inc. v. PF Brands, Inc.,

1746580, at *4 (S.D. Cal. Apr. 17, 2019) (citing cases). In Graco, for example, the defendants sold 20 and distributed allegedly infringing products on eBay, Amazon, and other online platforms.

. At least some of the products were sold to California customers.

. Additionally, the 21 defendants knew the plaintiff was located in California, since the plaintiff had sent a cease and desist 22 letter informing the defendants that it intended to file a lawsuit in California. See

. The 23 court held that these contacts were not sufficient to support personal jurisdiction over the defendants 24 in California. It noted that although the defendant sold some of the allegedly infringing products to 25 California customers, “[t]he record does not show that Defendants’ business is targeted at a 26 California-specific market or industry.”

. In other words, selling infringing products online 27 where anyone could buy them was not conduct that was expressly aimed at California. See

1 Recently, a court in this district granted a Rule 12(b)(2) motion where the defendant had 2 allegedly distributed an app-based videogame that was a “blatant clone” of the plaintiff’s 3 copyrighted videogame. See Good Job Games Bilism Yazilim Ve Pazarlama A.S. v. SayGames LLC, 4

, 1205 (N.D. Cal. May 7, 2020) (Chen, J.). In relevant part, the court held that 5 “[t]he mere availability of downloading [the infringing content] in California, by itself, does not create personal jurisdiction.”

. The court distinguished Mavrix on the basis that the 6 celebrity gossip website in that case “focused on California-based celebrities,” whereas the allegedly 7 infringing game in Good Job Games had “no specific focus in California; the app-based videogame 8 is not about California or anything in/from California.”

. None of the defendant’s 9 advertisements were directed at California or even mentioned this state.

The court also noted 10 that there was no evidence that the downloads of the infringing game were “concentrated in 11 California” and no allegations that there was “anything unique about the California-consumer 12 market” that directed the defendant’s activities to this forum. See

. 13 Like Graco and Good Job Games, this case is distinguishable from Mavrix. Plaintiffs do 14 not allege or present evidence that Defendants’ business is targeted to a California-specific market 15 or industry, that the allegedly infringing products have any particular connection to California other 16 than their similarity to Plaintiffs’ products which are manufactured in California, or that Defendants 17 advertise or provide services to California customers specifically. See Adobe Sys. Inc. v. Cardinal 18 Camera & Video Ctr., Inc., No. 15-cv-02991-JST,

, at *5 (N.D. Cal. Oct. 7, 2015) 19 (finding the express aiming requirement not met where the plaintiff did not allege or present 20 evidence that the defendant “advertise[d] in California, market[ed] products specifically intended 21 for a California audience, or in any other way direct[ed] its sales activities to California.”). 22 Plaintiffs’ allegations do not connect Defendants to California; they connect Defendants to Tangle 23 and Zawitz, who are forum residents. However, under Ninth Circuit law, the court must look to 24 Defendants’ “own contacts” in the forum, not the Defendants’ knowledge of Tangle’s connections 25 to California. Axiom Foods, Inc,

; see also Graco,

(“A plaintiff 26 does not show express aiming by alleging injuries that are ‘entirely personal to him and would 27 follow him wherever he might choose to live or travel’ and ‘not tethered to California in any 1 Plaintiffs’ arguments to the contrary are unavailing. First, they rely heavily on Calder, but 2 that case is distinguishable. In Calder, the defendant wrote an allegedly libelous story about a 3 California resident that was circulated within California.

. The court held 4 that jurisdiction over the defendant was proper in California because “California is the focal point 5 both of the story and of the harm suffered.”

. Plaintiffs argue that this case is similar to Calder because Defendants directly sold infringing products to California residents and that conduct 6 harmed Plaintiffs in California. Opp. at 8. Plaintiffs’ argument is not compelling. In Walden, the 7 Supreme Court clarified that its decision in Calder was narrowly focused on libel actions. See 8 Walden,

(stating that, in Calder, “[t]he strength of [the defendant’s] connection [to 9 California] was largely a function of the nature of the libel tort”). Specifically, a claim for libel 10 necessarily requires publication to third parties as well as reputational injury.

. Because 11 the plaintiff’s reputational injury was based on the perception of the California public, the 12 defendant’s conduct was connected to the state itself and not just a plaintiff who resided there.2

13 at 288 (finding that “the defendants’ intentional tort actually occurred in California” because 14 “publication to third persons is a necessary element of libel”). Unlike in Calder, where the plaintiff’s 15 claims arose only because he suffered reputation loss in California, Plaintiffs acknowledge that “Star 16 Magic’s sale of infringing products in any jurisdiction would harm Tangle in California . . . .” Mot. 17 at 8. Since Plaintiffs could have brought this case regardless of whether Defendants sold any 18 products in California, Defendants’ conduct is not directed at the state itself.3 19 Second, Plaintiffs cite cases that were decided before Walden and relied on Ninth Circuit 20 cases that were—in relevant part—abrogated by that opinion. See Beachbody, LLC v. Estrada, 2011

(C.D. Cal. Apr. 26, 2011); Sennheiser Elec. Corp. v. Chutkowski,

13012471, at *4 (C.D. Cal. Apr. 20, 2012). Both Beachbody and Sennheiser cited Dole Food Co., 23 Inc. v. Watts,

(9th Cir. 2002) and Bancroft & Masters, Inc. v. Augusta National, Inc., 24

25 2 Keeton v. Hustler Magazine, Inc., also cited by Plaintiffs, was similarly a libel case and is 26 distinguishable for the same reasons.

(1984).

27 3 Plaintiffs also understate the extent of relevant contacts in Calder, since the defendants in that case wrote the allegedly defamatory article based on information provided by California sources. See 1

(9th Cir. 2000), for the proposition that specific jurisdiction can be found where a 2 defendant directs wrongful conduct at a plaintiff it knows resides in the forum state. However, “the 3 Ninth Circuit’s reasoning in Dole and Bancroft . . . is simply not consistent with the Supreme Court's 4 decision in Walden,” which requires a connection to the forum state itself. CWT Canada II Ltd. 5 P’ship v. Danzik, WL 571797, at *8 (D. Ariz. Jan. 26, 2018). Third, the parties’ alleged “decades-long relationship” does not change the analysis. See 6 Opp. at 10. While a longstanding relationship between the parties might be relevant to a purposeful 7 availment analysis, Plaintiffs do not provide authority that a prior business relationship is relevant 8 to the express aiming prong of the purposeful direction test.4 Thus, the parties’ past dealings only 9 serve to connect Defendants to Plaintiffs rather than to California. Because a defendant’s conduct 10 must be connected to the forum state and not merely a forum resident, the parties’ prior business 11 relationship does not establish the minimum contacts necessary to exercise personal jurisdiction 12 over Defendants. See Walden,

. 13 Finally, Plaintiffs’ allegations that Defendants sell infringing Tangle products in California 14 are likewise unavailing. The Ninth Circuit has held that a sale in a forum state is not a substantial 15 connection where the sale “involved the forum state only because that is where the purchaser 16 happened to reside.” Boschetto,

. Although Boschetto involved only a single sale 17 into California, district courts have applied this principle to include multiple sales to forum residents 18 that “were not specifically directed contacts, but instead occurred only because the purchasers of 19 Defendants’ goods happened to reside in California.” Imageline, Inc. v. Hendricks,

10286181, at *4 (C.D. Cal. Aug. 12, 2009) (granting a Rule 12(b)(2) motion in a copyright 21 infringement action where 10% of the defendants’ sales were made to California residents); see also 22 Adobe Sys. Inc.,

, at *7 (“[A] limited number of products shipped into a forum 23 flowing from a defendant’s online sales activity is insufficient to establish express aiming.”); Athena 24 Cosmetics, Inc. v. U.S. Warehouse, et al. Additional Party Names: Tim Pham, Warehouse USA, 25

26 4 Plaintiffs cited several cases examining whether the defendant knew its conduct would cause harm 27 to a forum resident. However, whether a defendant knows their harm will likely be suffered in the forum state goes to the third prong of the Calder effects test. Those considerations are not relevant 1 LLC,

, at *8 (C.D. Cal. Mar. 5, 2020) (“The sale of items from third-party 2 websites to California consumers does not target California.”).5 3 These cases are particularly compelling here since Plaintiffs do not allege or present 4 evidence of the extent of Defendants’ sales of infringing products to California residents. Instead, 5 Plaintiffs summarily assert that 10% of all Tangle products sold on Amazon in 2019 and 2020 were shipped to customers in California and surmise that “it is highly likely that Star Magic’s sales to 6 California are similarly significant.” Zawitz Decl. ¶ 24. As a preliminary matter, there is no 7 evidence that the percentage of Amazon sales of Tangle products in California is a reliable proxy 8 for Star Magic sales in California. Further, even if that inference could be drawn, there is no 9 evidence regarding how many infringing products Star Magic sold to California customers.6 Since 10 Plaintiffs must show that their claims “arise[] out of” Defendants’ forum-related activities, 11 Schwarzenegger,

, the relevant contacts are Defendants’ sales of infringing products, 12 not their total sales. See Adobe Sys. Inc. v. Cardinal Camera & Video Ctr., Inc., No. 15-cv-02991- 13 JST,

, at *5 n. 5 (N.D. Cal. Oct. 7, 2015) (“Although [the defendant] admits to 14 sending 1.2% of its sales to California, there is no reason to believe that any of the products making 15 up the 1.2% of sales are infringing . . . products.”). Finally, Plaintiffs do not assert that Defendants 16 sell a disproportionately high number of products to California customers. See Tart Optical 17 Enterprises, LLC v. Light Co.,

, at *13 (C.D. Cal. Aug. 7, 2019) (holding that the 18 19 20 5 At the hearing, Plaintiffs explained that distributors can sell through Amazon in various ways, including: (1) Amazon buys products from the distributors and the consumers in turn buy those 21 products from Amazon; (2) the consumers buy products from the distributors but Amazon ships the products; or (3) the consumers buy products from the distributors and the distributors ship the 22 products. Defendants allegedly use the third method, selling and shipping their products directly to consumers. Plaintiffs seemed to argue that this “direct shipping” model shows express aiming 23 because Defendants knew they were selling infringing products to California customers. Plaintiffs do not cite any authority for the proposition that direct shipping is jurisdictionally relevant. In 24 Imageline, the district court found that the express aiming prong was not met where the defendants sold the allegedly infringing products through eBay, even though the defendants directly shipped 25 the products to California customers. See

, at *1, 4. The fact that Defendants knew that some of their products were being shipped to California does not alter the basic analysis. 26 Plaintiffs’ argument with respect to direct shipping is not persuasive.

27 6 Defendants state that they sold a total of fifty of the “Star Magic Twister” products, and of these, sold ten units to customers who gave a California address. Ayal Decl. ¶ 10. However, the 1 defendants did not expressly aim their conduct at California where “a material portion of total sales, 2 || but not necessarily more than would be expected by an online retailer who ships to many domestic 3 and foreign locations, was shipped to customers located in California”). Thus, Defendants’ alleged 4 sales of infringing products in California do not establish a substantial connection to this state. See 5 || Zmageline, Inc.,

, at *5 (“The listings did not target California, but simply went 6 || California residents who happened to be the eBay purchasers.”). 4 In sum, Plaintiffs have not met their burden of showing that Defendants expressly aimed 8 their conduct at California. Accordingly, the court need not reach the remaining aspects of the 9 Calder or minimal contacts tests. 10 □□□ CONCLUSION ll For the reasons stated above, Defendants’ motion to dismiss under Rule 12(b)(2) is granted. 2 Plaintiffs’ complaint is dismissed without leave to amend. The Clerk of Court shall enter judgment Ss oe IST, S13 for Defendants and against Plaintiffs and close this case. KS D 144 A) □□ &) IT IS SO ORDERED. IS 50 ORDERED | tT A 16 Dated: May 5, 2021 5 \ < 5 17 7 [op ve M □ A \ Aad eson SY Z 18 Nigitkdl SHiicdlettiate Judge □□

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