Case 1:15-cv-00661-SLR Document 115 Filed 12/14/16 Page 1 of 14 PageID #: 3180
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`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE DISTRICT OF DELAWARE
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`DNA GENOTEK INC.,
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`Plaintiff,
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`v.
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`SPECTRUM DNA, SPECTRUM
`SOLUTIONS L.L.C., and SPECTRUM
`PACKAGING L.L.C.,
`
`Defendants.
`
`)
`)
`)
`)
`)
`) Civ. No. 15-661-SLR
`)
`)
`)
`)
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`John W. Shaw, Esquire, and Karen E. Keller, Esquire of Shaw Keller LLP,
`Wilmington, Delaware. Counsel for Plaintiff. Of Counsel: David C. Doyle, Esquire,
`Brian M. Kramer, Esquire, John R. Lanham, Esquire, and Dean S. Atyia, Esquire of
`Morrison Foerster LLP San Diego, California.
`
`David E. Moore, Esquire, Bindu A Palapura, Esquire, and Stephanie E. O'Byrne,
`Esquire of Potter Anderson & Corroon LLP, Wilmington, Delaware. Counsel for
`Defendants. Of Counsel: Jeffrey E. Ostro, Esquire, Jonathan C. Sanders, Esquire,
`and JaeWon Lee, Esquire of Simpson Thacher Bartlett LLP, Palo Alto, California.
`
`MEMORANDUM OPINION
`
`Dated: December J±_, 2016
`Wilmington, Delaware
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`

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`Case 1:15-cv-00661-SLR Document 115 Filed 12/14/16 Page 2 of 14 PageID #: 3181
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`~~udge
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`I.
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`INTRODUCTION
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`Plaintiff DNA Genotek Inc. ("Genotek") sued defendants Spectrum DNA,
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`Spectrum Solutions L.L.C., and Spectrum Packaging L.L.C. (collectively, "Spectrum")
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`for patent infringement. (D.I. 1) Spectrum moved to dismiss for lack of personal
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`jurisdiction. (D.I. 19) Although the court did not find persuasive Genotek's argument
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`that the record supported statutory jurisdiction under Delaware's "dual jurisdiction"
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`theory, the court denied the motion and ordered jurisdictional discovery. DNA Genotek
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`Inc. v. Spectrum DNA, 159 F. Supp. 3d 477, 483 (D. Del. 2016). The parties have
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`completed discovery, and Spectrum renewed its motion to dismiss for lack of personal
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`jurisdiction. (D.I. 87) The court has subject matter jurisdiction over this action pursuant
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`to 28 U.S.C. §§ 1331 and 1338(a). For the reasons discussed below, Spectrum's
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`motion to dismiss is granted.
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`II.
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`BACKGROUND
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`Genotek is a leading provider of products for biological sample collection, and the
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`owner by assignment of United States Patent No. 8,221,381 82 (the "'381 patent").
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`(D.I. 701J1J 8, 10) Spectrum manufactures a saliva collection device ("the accused
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`product") that, according to Genotek, infringes on the '381 patent. (Id. at 1J 6)
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`Spectrum's principal place of business is in Utah, and it manufactures the accused
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`product in Utah and Malaysia. (Id.; D.I. 88 at 3) Spectrum does not have any offices,
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`employees, or other physical presence in Delaware. (Id.) It does not own any property
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`(real or personal) in Delaware, and it does not maintain any facilities or equipment in
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`Delaware. (Id.) Spectrum is not registered to do business in Delaware. (D.I. 88 at 8)
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`Spectrum owns three websites, none of which contain any pricing information or allow
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`for direct purchases of the accused product.
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`Spectrum manufactures the saliva collection device for Ancestry.com DNA LLC
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`("Ancestry") pursuant to an October 2012 manufacturing agreement, as amended in
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`September 2014. (D.I. 88 at 4) Ancestry sells a DNA testing service. (Id.) When a
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`customer signs up for the service, Ancestry sends the customer a kit with the saliva
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`collection device. (Id.) The customer deposits a saliva sample in the device and
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`returns it for testing. (Id.) Spectrum and Ancestry operate independently and keep
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`separate finances. (Id. at 4-5) Spectrum does not share any officers or directors with
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`Ancestry. (Id. at 4) Neither company has an ownership interest in the other. (Id. at 5)
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`Under the manufacturing agreement, Ancestry owns the intellectual property
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`rights to the accused product. (D. I. 88 at 4; D. I. 99, Ex. 6 §§ 1.17, 2.6, 13.2) Spectrum
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`or its affiliates must manufacture, package, and label the accused products in
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`accordance with Ancestry's specifications. (D.I. 99, Ex. 6 §§ 1.13, 2.3) Ancestry is
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`obligated to indemnify Spectrum for "[a]ny claim that the manufacture, use, sale, offer
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`for sale, import, or other distribution of the Product infringes a patent. ... " (Id. at§
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`10.1 (b)) Spectrum must indemnify Ancestry for any product liability claims. (Id. at§
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`10.2) Ancestry pays for and owns any custom tooling Spectrum uses to manufacture
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`the accused product. (Id. at § 2.10) Spectrum must manufacture enough accused
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`products to meet Ancestry's product forecasts. (Id. at§ 2.2) In January 2016,
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`Ancestry's Global Operations Manager sent an email with a draft forecast predicting the
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`2
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`Case 1:15-cv-00661-SLR Document 115 Filed 12/14/16 Page 4 of 14 PageID #: 3183
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`sale of approximately 1,500,000 units of the accused product in the United States for
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`year 2016. 1 (D.I. 99, Ex. 12)
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`Finally, the manufacturing agreement requires Spectrum to ship the accused
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`products F.O.B. either to Ancestry's location in Utah or another location designated by
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`Ancestry. (D.I. 99, Ex. 6 § 3) Genotek does not dispute Spectrum's assertion that it
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`has not shipped any accused products to Delaware. (D.I. 88 at 3) Ancestry admits that
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`it has sent "one or more" of the accused product to customers with addresses in
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`Delaware. (D.I. 99, Ex. 22 at 3-4) In addition, two of Spectrum's counsel ordered
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`Ancestry's genetic testing kit, which includes the accused product, from a storefront
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`Ancestry maintains on the Amazon.com website. 2 (D.I. 100; D.I. 101) Thus, Genotek
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`has presented evidence that at least three of the accused products have reached
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`Delaware.
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`Ancestry and Spectrum are parties to a separate Purchase and Sales
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`Commission Agreement, dated December 31, 2014, that permits Spectrum to buy some
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`of the kits it manufactures for Ancestry and resell them to third parties. (D.I. 99, Ex. 10)
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`Under that agreement, Spectrum pays Ancestry a fixed price per kit, plus a percentage
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`Genotek also relies on an email from a Spectrum sales manager stating "over 2
`million kits tested." (D.I. 98 at 10 (citing D.I. 99, Ex 8)) But it is not clear whether a
`tested kit equates to a sold kit. It is also unclear over what time span the 2 million kits
`were tested, making it hard to gauge the significance of this fact.
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`2
`There is some doubt whether the sales to Spectrum's counsel qualifies as
`competent evidence. The purchases occurred more than a year after the complaint was
`filed and after the court's resolution of the first motion to dismiss. (D.I. 100; D.I. 101) At
`a minimum, "the jurisdiction of the Court depends upon the state of things at the time of
`the action brought." Forest Lab. Inc. v. Cobalt Lab. Inc., 2009 WL 605745, at *10 (D.
`Del. Mar. 9, 2009). Thus, evidence that the product has been introduced into the forum
`state "must have occurred prior to the filing of the complaint." Id. Because resolution of
`this motion does not depend on this particular evidence, the court need not resolve the
`issue.
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`3
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`

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`of the net price to the end customer. (Id.) Spectrum has sold the accused product to
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`five third-party customers, none in Delaware. (D.I. 88 at 5) At least ninety-nine percent
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`of Spectrum's sales are to Ancestry. (D.I. 106 at 5; D.I. 98 at 4)
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`Ill.
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`STANDARD OF REVIEW
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`Rule 12(b)(2) of the Federal Rules of Civil Procedure directs the court to dismiss
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`a case when the court lacks personal jurisdiction over the defendant. Fed. R. Civ. P.
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`12(b)(2). Plaintiff bears the burden of establishing that sufficient minimum contacts
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`have occurred between the defendant and the forum to support jurisdiction. See
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`Provident Nat'/ Bank v. Cal. Fed. Sav. & Loan Ass'n, 819 F.2d 434, 437 (3d Cir. 1987).
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`To meet this burden, the plaintiff cannot "rely on the bare pleadings alone," Quantum
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`Loyalty Sys., Inc. v. TPG Rewards, Inc., 2009 WL 5184350, at *2 (D. Del. Dec. 23,
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`2009), but must produce "sworn affidavits or other competent evidence," Time Share
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`Vacation Club v. At/. Resorts, Ltd., 735 F.2d 61, 67 n.9 (3d Cir. 1984). In reviewing the
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`evidence, the court must accept as true all allegations of jurisdictional fact made by the
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`plaintiff and resolve all factual disputes in the plaintiff's favor. Miller Yacht Sales, Inc. v.
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`Smith, 384 F.3d 93, 97 (3d Cir. 2004); Traynor v. Liu, 495 F. Supp. 2d 444, 448 (D. Del.
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`2007). A plaintiff "need only establish a prima facie case of personal jurisdiction" when
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`the court has not held an evidentiary hearing. O'Connor v. Sandy Lane Hotel Co., 496
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`F.3d 312, 316 (3d Cir. 2007).
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`IV.
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`DISCUSSION
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`There are two requirements to exercising personal jurisdiction over a defendant,
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`one statutory and the other constitutional. Plaintiff must show that: ( 1) "there is a
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`statutory basis for jurisdiction under the forum state's long arm statute;" and (2) "the
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`4
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`exercise of jurisdiction comports with the defendant's right to due process." L'Athene,
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`Inc. v. EarthSpring LLC, 570 F. Supp. 2d 588, 590 (D. Del. 2008); Max Daetwyler Corp.
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`v. R. Meyer, 762 F.2d 290, 293 (3d Cir. 1985). Although Delaware's long-arm statute is
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`"construed to the maximum extent possible under the due process clause," LaNuova D
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`& B S.p.A. v. Bowe Co., 513 A.2d 764, 768 (Del. 1986), these two tests are
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`"independent," Wright v. Am. Home Prod. Corp., 768 A.2d 518, 527 (Del. Super. 2000),
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`and cannot be "collapsed into a single constitutional inquiry," Tell v. Roman Catholic
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`Bishops of Diocese of Allentown, 2010 WL 1691199, at *8 (Del. Super. Apr. 26, 2010).
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`Delaware's long arm statute allows a court to exercise personal jurisdiction over
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`a defendant when the defendant or its agent:
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`(1) Transacts any business or performs any character of work or service in
`the State;
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`(2) Contracts to supply services or things in this State;
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`(3) Causes tortious injury in the State by an act or omission in this State; or
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`(4) Causes tortious injury in the State or outside of the State by an act or
`omission outside the State if the person regularly does or solicits business,
`engages in any other persistent course of conduct in the State or derives
`substantial revenue from services, or things used or consumed in the State.
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`10 Del. C. § 3104(c)(1)-(4). Subsections (c)(1) through (c)(3) are specific jurisdiction
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`provisions, where there must be a nexus between the cause of action and the conduct
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`of the defendant. Quantum Loyalty, 2009 WL 5184350, at *3. Subsection (c)(4) is a
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`general jurisdiction provision, which requires a greater extent of contacts, but applies
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`when the claim is unrelated to forum contacts. Id.
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`Genotek does not argue that Spectrum fits under any one specific prong of the
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`long arm statute. Instead, Genotek asserts that the court has personal jurisdiction over
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`Spectrum based on either Delaware's "dual jurisdiction" theory or Spectrum's agency
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`5
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`relationship with Ancestry. (D.I. 98 at 8-12) Each of these theories are addressed in
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`turn.
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`A.
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`Dual Jurisdiction Theory
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`Dual jurisdiction is a theory unique to Delaware that applies stream-of-commerce
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`jurisprudence to Delaware's long arm statute. Eastman Chem. Co. v. AlphaPet Inc.,
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`2011 WL 6004079, at *15 (D. Del. Nov. 4, 2011 ). The central premise is that a non(cid:173)
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`resident may have sufficient contacts for the purposes of Delaware's long arm statute
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`where, through the stream of commerce, its products have been introduced into the
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`forum state. Id. The dual jurisdiction theory relies on partial satisfaction of subsections
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`(c)(1) and (c)(4). Belden Techs., Inc. v. LS Corp., 829 F. Supp. 2d 260, 267 (D. Del.
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`2010). Under this theory, plaintiff has the burden of demonstrating that: (1) defendant
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`has an intent to serve the Delaware market; (2) this intent results in the introduction of
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`the accused product into Delaware; and (3) plaintiff's cause of action arises from injuries
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`caused by the sale of the accused products in Delaware. Id.
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`Genotek argues that "[n]othing more is required to meet the [intent] prong of the
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`dual jurisdictional test" than showing that: (1) "millions of the accused products have
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`been sold all over the United States;" (2) Spectrum "participated in the development and
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`manufacturing of the accused products; and (3) Spectrum "sends the accused products
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`to distributors who ship the product nationwide." (D.I. 98 at 10) These broad assertions
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`do not accurately reflect the facts of the case or legal precedent and, upon closer
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`scrutiny, are insufficient to find intent.
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`It is true, as Genotek points out, that several cases have found dual jurisdiction
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`based on the principle that "a non-resident firm's intent to serve the United States
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`market is sufficient to establish an intent to serve the Delaware market, unless there is
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`evidence that the firm intended to exclude from its marketing and distribution efforts
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`some portion of the country that includes Delaware." Power Integrations, Inc. v. BCD
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`Semiconductor Corp., 547 F. Supp. 2d 365, 373 (D. Del. 2008). Nevertheless, a survey
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`of those cases shows that stream of commerce jurisprudence cannot be reduced to
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`bright line rules. 3 Accordingly, this principle should not be divorced from the factual
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`context of the cases applying it.
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`In several of those cases, defendant sold a product directly to national resellers
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`who added nothing significant to the product before selling it through well-established
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`sales channels, often with physical locations in Delaware, to consumers or end-users.
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`See Godo Kaisha IP Bridge 1 v. TCL Commc'n Tech. Holdings Ltd., 2016 WL 4413140,
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`at *7 (D. Del. Aug. 17, 2016) (defendant sold its product directly to national retailers like
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`Best Buy and Walmart); Segway Inc. v. lnventist, Inc., 2016 WL 1650468, at *2 (D. Del.
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`Apr. 25, 2016) (defendant sold its product directly to national retail chains, such as
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`Kmart and Target, and national internet retailers, such as Amazon.com); Boone v. Oy
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`Partek Ab, 724 A.2d 1150, 1158 (Del. Super. 1997) (defendant engaged an "exclusive
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`distributor" to sell its products in the United States).
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`Occasionally, defendant's wholly-owned subsidiary, which presumably would
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`have been under defendant's control, was responsible for selling defendant's products
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`to a national reseller. See Graphics Prop. Holdings, Inc. v. ASUS Comput. Int'/, 70 F.
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`Supp. 3d 654, 662 (D. Del. 2014) (foreign defendant targeted the United States market
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`3
`For example, the Supreme Court has never garnered more than a plurality for
`any one stream of commerce test. See Asahi Metal Indus. Co. v. Super. Ct. of Cal.,
`480 U.S. 102 (1987); J. Mcintyre Machinery, Ltd. v. Nicastro, 564 U.S. 873 (2011).
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`by selling products to its wholly-owned California subsidiary, which then sold the
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`accused products to United States resellers, such as Best Buy); Sony Corp. v. Pace
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`PLC, 2016 WL 593455, at *4 (D. Del. Feb. 12, 2016) (defendant demonstrated an intent
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`to serve the Delaware market by transferring title of accused products to a wholly
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`owned Delaware subsidiary, which then sold the accused products to national
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`distributors, including Comcast and DirecTV). The court, however, has found no intent
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`where a subsidiary's "manufacturing operations [were] directed by its parent," the
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`finished products were sold exclusively to the parent, and the parent sold the product
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`throughout the United States, including Delaware. Intellectual Ventures I LLC v. Nikon,
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`935 F. Supp. 2d 787, 792-94 (D. Del. 2013).
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`Here, Spectrum has not sold a product (either directly or through a subsidiary) to
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`a national reseller.4 Instead, Spectrum manufacturers a saliva collection device per
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`Ancestry's specifications, using intellectual property and tooling owned by Ancestry, in a
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`4
`Even if Spectrum had sold the product directly to a national reseller, this bare fact
`alone would not be sufficient to infer intent. Each case that found intent based on
`national distribution recognized additional facts that supported the finding. See Godo
`Kaisha, 2016 WL 4413140, at *7 (defendant also sold directly to U.S. customers
`through a storefront it maintained on Amazon.com); Segway, 2016 WL 1650468, at *4
`(finding "[m]ost significantly" that defendant maintained "an interactive website through
`which the accused products can be purchased, including by consumers located in
`Delaware"); Boone, 724 A.2d at 1158 (noting that defendant shipped up to 50 tons per
`month of asbestos into Delaware over ten years, resulting in a "persistent course of
`conduct in this State" from which defendant "derived substantial revenue"); Graphics
`Prop., 70 F. Supp. 3d at 662 (finding "[o]f key significance ... the fact that there are at
`least three physical resale outlets (Best Buy stores) inside Delaware that stock and sell
`the accused devices"); Sony, 2016 WL 593455, at *1 (noting that defendant derived
`over $1.5 billion in revenue from U.S. sales, was a "major supplier" of equipment to
`DirecTV and Comcast, and Comcast maintained several physical service centers
`throughout Delaware). Spectrum does not maintain a website where its products may
`be purchased directly by consumers. (D.I. 88 at 4) Genotek has not shown that
`Spectrum regularly ships products into Delaware, derives substantial revenue from
`products sold in Delaware, or has its products stocked in Delaware stores.
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`8
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`quantity sufficient to meet Ancestry's estimated product forecast, and then sells the
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`product exclusively to Ancestry. (D.I. 99, Ex. 6 §§ 2.1, 2.2, 2.6, 2.10 & Recital B)
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`Spectrum has no control over what happens to the accused products once shipped to
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`Ancestry. (D.I. 88 at 4) If Spectrum wants to sell the accused products to someone
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`other than Ancestry, it must first purchase the accused products it manufactures for
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`Ancestry from Ancestry. (D.I. 90, Ex. F) Accordingly, this case is more akin to the facts
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`in Nikon than any of the cases cited by Genotek. (D.I. 98 at 8-12)
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`The facts supporting intent are even more attenuated if the court takes into
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`account that there is no evidence the accused product has reached Delaware except as
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`a part of Ancestry's testing service, making Spectrum's role analogous to that of a
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`component manufacturer. "[T]he fact that [Spectrum] supplies only components and not
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`the final assembly does not insulate [Spectrum] from jurisdiction." Robert Bosch LLC v.
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`Alberee Prod., Inc., 70 F. Supp. 3d 665, 680 (D. Del. 2014). But in cases finding dual
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`jurisdiction over a component manufacturer, something more than the mere presence of
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`millions of the accused products in the United States is needed to demonstrate intent.
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`See, e.g., id. (finding insufficient evidence of intent, even though API sold "millions" of
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`components to Alberee, who along with Saver, sold the finished products to Costco,
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`because "[a]side from the components appearing in Delaware as finished products,
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`there is no evidence that API has any ties to Delaware other than this suit").
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`Two opinions written in Power Integrations, Inc. v. BCD Semiconductor Corp.
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`illustrate the several different kinds of facts that can help establish intent for a
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`component manufacturer. 547 F. Supp. 2d 365 (D. Del. 2008) (the "April" opinion);
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`2008 WL 3850871 (D. Del. Aug. 21, 2008) (the "August" opinion). BCD, a Chinese
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`company, sold chips accused of patent infringement to Korean distributors, who in turn
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`sold them to Korean manufacturers, who incorporated the chips into chargers made for
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`Samsung phones, which were then sold throughout the United States. April Opinion,
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`547 F. Supp. 2d at 369. At least four companies independent of BCD were responsible
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`for the final destination of the accused chips after they left BC D's control in China.
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`August Opinion, 2008 WL 3850871, at *6. Nevertheless, the court found that BCD had
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`an intent to serve the Delaware market because: (1) BCD custom designed accused
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`chips to meet U.S. specifications; (2) BCD provided customers with indemnification from
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`patent liability; (3) "tens of thousands of chargers containing the accused chips have
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`been shipped into Delaware through established sales channels, including
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`approximately 17,000 of the incorporating chargers that were sold in Delaware in the
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`third quarter of 2007 alone;" and (4) there was no evidence BCD intended to exclude
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`Delaware from its efforts to penetrate the U.S. market. Id. at *2-*4 (internal punctuation
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`omitted).
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`Genotek has presented no evidence similar to the facts giving rise to dual
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`jurisdiction in Power Integrations. Deposition testimony shows that Spectrum
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`employees advised Ancestry on its manufacturing capabilities, such as the limits of
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`ejection molding. (D.I. 98 at 10) But this is not the same as customizing a product
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`specifically so it can be sold in Delaware. See Power Integrations, 2008 WL 3850871,
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`at *1 (finding intent where component manufacturer with worldwide sales designed
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`accused chips to meet U.S. specifications); WL. Gore & Assoc., Inc. v. Label Tech.,
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`Inc., 2009 WL 1372106, at *3 (D. Del. May 15, 2009) (finding intent where defendant
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`10
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`knowingly manufactured a component for automotive headlamps designed specifically
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`for use in the Dodge Durango and Chrysler Aspen manufactured at plants in Delaware).
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`In an attempt to suggest that Spectrum sells its products to national resellers,
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`Genotek makes the assertion that Spectrum "sends the accused products to distributors
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`who ship the product nationwide." (D.I. 98 at 10) In fact, Spectrum did not sell the
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`product to Amazon.com. In compliance with the manufacturing agreement, Spectrum
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`shipped the accused products at Ancestry's direction to Amazon.com in Joliet, Illinois.
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`(D.I. 88 at 13) This is not the same as a company shipping a product to a national
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`reseller as part of its own marketing and distribution plan. For this and other reasons,
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`the cases on which Genotek relies are distinguishable. 5
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`(D.I. 98 (citing Bosch, 70 F.
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`Supp. 3d at 676; Sony Corp., 2016 WL 593455, at *4)).
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`Finally, the court notes that the manufacturing agreement obligates Ancestry to
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`indemnify Spectrum for patent infringement claims, not the other way around. (D.I. 99,
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`Ex. 6 § 10.1) Dual jurisdiction is "a basis for specific personal jurisdiction under
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`Delaware law." Segway, 2016 WL 1650468, at *3. Thus, there must be a nexus
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`between the cause of action and defendant's conduct. Quantum Loyalty, 2009 WL
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`5184350, at *3. For example, in Power Integrations, BCD indemnified customers for
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`claims based on patent infringement, and plaintiff's claim in that case was patent
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`5
`The two other cases Genotek cites are inapplicable to dual jurisdiction. Renner
`arises under the long-arm statute of Pennsylvania, not Delaware, and addresses only
`the constitutional prong of personal jurisdiction. Renner v. Lanard Toys Ltd., 33 F.3d
`277, 279 (3rd Cir. 1994). Pennsylvania has not adopted the dual jurisdiction theory.
`Moreover, Delaware law instructs courts to not collapse the constitutional prong of
`personal jurisdiction into the statutory prong. Tell, 2010 WL 1691199, at *8. Philips was
`decided under subsection (c)(1) of Delaware's long-arm statute, not dual jurisdiction.
`Philips Elec. N. Am. Corp. v. Contee Corp., 2004 WL 503602, at *3 (D. Del. Mar. 11,
`2004).
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`11
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`Case 1:15-cv-00661-SLR Document 115 Filed 12/14/16 Page 13 of 14 PageID #: 3192
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`infringement. 547 F. Supp. 2d at 367. Thus, Spectrum's obligation to indemnify
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`Ancestry for product liability claims would be insufficient evidence of intent to serve the
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`Delaware market where Genotek's claim is based on patent infringement.
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`B.
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`Agency Theory
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`Genotek argues that Spectrum is also subject to jurisdiction in Delaware,
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`because Ancestry is an agent of Spectrum. (D.I. 98 at 12-13) Under Delaware's long(cid:173)
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`arm statute, the court may exercise personal jurisdiction over a nonresident that makes
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`contact with the state "through an agent." 10 Del. C. § 3104(c). Courts that have relied
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`upon the agency theory of jurisdiction have required, at minimum, the existence of some
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`corporate affiliation or control. See, e.g., Cephalon, Inc. v. Watson Pharm., Inc., 629 F.
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`Supp. 2d 338, 348 (D. Del. 2009) (explaining that the agency theory applies to parents
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`and subsidiaries or subsidies that are "two arms of the same business group"); Waters
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`v. Deutz Corp., 460 A.2d 1332, 1337-38 (Del. Super. 1983) (holding that 10 Del. C. §
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`3104 authorized jurisdiction over a foreign manufacturer "based on the commercial
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`marketing activities of its subsidiary"); Wesley-Jessen Corp. v. Pilkington Visioncare,
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`Inc., 863 F. Supp. 186, 188 (D. Del. 1993) (finding jurisdiction based on an agency
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`relationship where both companies were wholly owned affiliates of the same parent);
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`Celgard, LLC v. SK Innovation Co., 792 F.3d 1373, 1379 (Fed. Cir. 2015) (stating that to
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`"establish jurisdiction under an agency theory," plaintiffs must "show that the defendant
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`exercises control over the activities of the third-party"); Del. Mktg Partners, LLC. v.
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`Creditron Fin. Serv., Inc., 2004 WL 1999973, at *3 (D. Del. Aug. 31, 2004) ("In order for
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`actions by an agent to meet the requirements of§ 3104, the plaintiff must show that the
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`defendants were directing or controlling the activities within Delaware.").
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`Case 1:15-cv-00661-SLR Document 115 Filed 12/14/16 Page 14 of 14 PageID #: 3193
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`Genotek has not carried its burden of showing an agency relationship. Spectrum
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`and Ancestry do not have a parent/subsidiary relationship and are not subsidiaries
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`under control of a common parent. (D.I. 88 at 4-5) Instead, Spectrum and Ancestry are
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`two wholly independent unaffiliated corporations. (Id.) In addition, Genotek has not
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`provided any evidence that Spectrum controls Ancestry. Indeed, Genotek admits that
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`control is working in the opposite direction; "Ancestry is controlling [Spectrum]." (D.I.
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`114 at 45) Genotek argues that Ancestry and Spectrum have an "open dialogue" and
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`"collaborate" on the design, shipping, warehousing, and tracking of the accused
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`products. (D.I. 98 at 2, 16) But cooperation between the two corporations is not the
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`same as control. Genotek has not provided any authority showing that a court will find
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`an agency relationship in the absence of a corporate affiliation or control by the principal
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`over the purported agent. Accordingly, Ancestry's contacts with Delaware cannot be
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`attributed to Spectrum under an agency theory.
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`Because Genotek has not shown that either the dual jurisdiction theory or agency
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`theory apply to Spectrum, there is no statutory basis for personal jurisdiction over
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`Spectrum. The court need not address the Constitutional analysis. Brennerman v.
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`Guardian News & Media Ltd., 2015 WL 9484466, at *4 (D. Del. Dec. 29, 2015) (stating
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`that where there is no basis for jurisdiction under the long-arm statute, the court need
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`not address the Due Process Clause).
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`V.
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`CONCLUSION
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`For the foregoing reasons, Spectrum's motion to dismiss is granted. (D.I. 87) An
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`appropriate order shall issue.
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