Case 1:22-cv-22706-RNS Document 150 Entered on FLSD Docket 03/09/2023 Page 1 of 12
`
`United States District Court
`for the
`Southern District of Florida
`
`
`Bell Northern Research, LLC,
`Plaintiff,
`
`v.
`
`HMD America, Inc., and others,
`Defendants.
`
`)
`)
`)
`)
`)
`)
`)
`Order on Motion to Dismiss
`This matter is before the Court on the motion to dismiss filed by
`Defendant Unisoc Technologies Co. Ltd. (“Unisoc”).1 (Mot. to Dismiss, ECF No.
`91). Plaintiff Bell Northern Research, LLC (“BNR”) has responded in opposition.
`(Resp., ECF No. 127.) Defendant Unisoc timely replied. (ECF No. 133.) Having
`reviewed the briefing, the record, and the relevant authorities, the Court grants
`Defendant Unisoc’s motion to dismiss. (ECF No. 91.)
`
`Civil Action No. 22-22706-Civ-Scola
`
`
`
`
`1. Background
`The Plaintiff brings this case asserting thirteen separate claims for patent
`infringement against each of the Defendants. (Compl. ¶¶ 114-388, ECF No. 1.)
`BNR’s claims all relate to certain Nokia mobile phones and tablets, which BNR
`alleges infringe on multiple of its patents, all related to mobile phones and
`other similar devices. (Id. ¶¶ 41, 113.) Each individual claim is asserted against
`all of the Defendants and relates to one specific patent that BNR alleges each of
`the Defendants is infringing. (Id. ¶¶ 114-388.) BNR generally alleges that the
`Defendants in this case “make, use, sell, import and/or provide or cause to be
`used” the infringing Nokia phones and tablets.2 (Id. ¶ 41.)
`Unisoc, BNR alleges, is a Chinese corporation with its principal place of
`business in Shanghai, China. (Id. ¶ 10.) BNR alleges that Unisoc “sells and
`offers to sell products and services into the stream of commerce that
`incorporate infringing technology, knowing that they would be sold in this
`judicial district and elsewhere in the United States.” (Id.) Other than identifying
`certain Nokia phones and tablets that it alleges infringe on its patents, BNR
`
`1 Defendant Spreadtrum Communications USA, Inc. (“Spreadtrum”) originally joined the
`motion, but the Plaintiff has since moved to voluntarily dismiss its claims against Spreadtrum,
`which the Court granted. (Pl.’s Mot. to Dismiss, ECF No. 131; Order Granting Mot. to Dismiss,
`ECF No. 132.)
`
` Curiously, BNR does not name Nokia as a Defendant in this action.
`
` 2
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`never pleads any facts stating what “infringing technology” Unisoc actually
`manufactures. (See generally id.) In its individual counts, BNR alleges that
`Unisoc “ha[s] been aware” of the specific patent alleged to be infringed, at least
`as of the filing of this case (or a previous case which BNR voluntarily
`dismissed).3 (Id. ¶¶ 129, 151, 173, 197, 217, 237, 256, 278, 299, 358, 382.)
`BNR’s complaint contains no other allegations specifically directed at Unisoc.
`In support of its motion to dismiss, Unisoc offers the jurisdictional
`declaration of Zhang Zhen, a vice president at the company. (Decl. of Z. Zhang
`¶ 1, ECF No. 91-1.) Mr. Zhang’s declaration, although short, establishes that
`Unisoc manufactures “chipsets” that customers incorporate into mobile phones
`and similar devices. (Id. ¶ 11.) Mr. Zhang states that Unisoc has no operations
`in Florida (or the United States generally), does not distribute products in
`Florida (or the United States), does not provide “post-sales service or support”
`in Florida (or the United States), has no employees in Florida (or the United
`States), does not maintain any real property in Florida (or the United States),
`and does not own a bank account or pay taxes in Florida (or the United States).
`(Id. ¶¶ 5-10.) Rather, Unisoc sells its chipsets to other companies that then
`incorporate those chips into their mobile phones and tablets. (Id. ¶ 11.) Unisoc
`has no control over its chipsets once those customers purchase them, and
`those customers do not inform Unisoc of the ultimate destination of their
`finished products. (Id.) Finally, Mr. Zhang states that “Unisoc does not
`specifically design its chipsets to meet the requirements of the market of the
`United States.” (Id. ¶ 12.)
`In response, BNR offers the jurisdictional declaration of Christopher
`Clayton, one of its attorneys. (Decl. of C. Clayton ¶ 1, ECF No. 127-1.)
`Effectively, Mr. Clayton’s declaration serves as a vehicle to introduce screen
`captures of the webpages of several Defendants, including Unisoc. (Id. ¶¶ 3-17.)
`Theses webpage captures serve to establish the following facts. First, Unisoc
`maintains a website, on which it advertises its chipsets and promotes the fact
`that its chipsets are incorporated into multiple Nokia devices. (Id. Ex. A at 1-4,
`10-11, 13-15, 18-20.) Unisoc does not, however, offer its chipsets or the
`identified Nokia devices for sale on its website. (Id.) Instead, its website
`includes links to Nokia’s website where it references those devices. (Id.) Nokia’s
`website also appears to advertise the existence of the mobile phones and
`tablets in question, although like Unisoc, it does not appear to offer the devices
`for sale online. (Id. Ex. A at 5, 8, 12, 16-17, 21-23.) Instead, BNR provides links
`
`
`3 That prior case, Case Number 1:22-cv-21035-RNS, was filed on April 6, 2022, and voluntarily
`dismissed by BNR on August 25, 2022. BNR refiled this case, as it currently stands, on the
`same day it dismissed the prior case. (ECF No. 1.)
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`to Best Buy and Walmart’s websites, where the relevant Nokia devices may be
`purchased in the United States.4 (Id. Ex. A at 6-7, 9, 24.)
`Based upon the allegations of the complaint and the statements in Mr.
`Zhang’s jurisdictional declaration, Unisoc argues that the Court lacks both
`general and specific jurisdiction over it because (1) Unisoc lacks sufficient
`minimum contacts with Florida and (2) the exercise of personal jurisdiction
`would not comport with due process.5 (Mot. at 6-8.) In response, BNR argues
`that its jurisdictional allegations and the supplements in Mr. Clayton’s
`jurisdictional declaration satisfy the requirements to establish personal
`jurisdiction, especially under the “stream of commerce” test.6 (Resp. at 3-7.)
`
`2. Legal Standard
`On a motion to dismiss for lack of personal jurisdiction under
`Rule 12(b)(2), the plaintiff must initially establish a prima facie case of personal
`jurisdiction, after which the burden shifts to the defendant to counter the
`plaintiff’s allegations. See id. at *7. If the defendant meets this burden, the
`plaintiff must produce evidence to support jurisdiction—merely rearticulating
`its allegations is not sufficient. See id. (quoting Polskie Linie Oceaniczne v.
`Seasafe Transp. A/S, 795 F.2d 968, 972 (11th Cir. 1986)). Where evidence
`conflicts, the court must “construe all reasonable inferences in favor of the
`non-movant plaintiff.” PVC Windoors, Inc. v. Babbitbay Beach Const., N.V., 598
`F.3d 802, 810 (11th Cir. 2010).
`
`3. Discussion
`Unisoc presents sufficient evidence through its jurisdictional declaration
`to overcome any of BNR’s jurisdictional allegations, and BNR fails to present
`sufficient evidence in turn to support its allegations. While BNR’s allegations
`satisfy Florida’s long-arm statute, the constitutional requirements of due
`process do not support the Court’s ability to exercise personal jurisdiction.
`Rather, BNR fails to establish that Unisoc has sufficient minimum contacts
`with Florida, and Unisoc sufficiently demonstrates that the exercise of personal
`
`
`4 Best Buy Co., Inc., Best Buy Stores L.P., and Walmart Inc. are also Defendants in this action,
`but do not join in this motion.
`
` 5
`
` Unisoc also argues that BNR fails to state a claim upon which relief can be granted in each of
`its claims for patent infringement, but the Court declines to address those arguments because,
`as it discusses later, it cannot exercise personal jurisdiction over Unisoc. (Mot. at 8-12.)
`
` 6
`
` BNR never argues in response that the Court may assert general personal jurisdiction over
`Unisoc, so the Court does not it.
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`jurisdiction here would not comport with traditional notions of fair play and
`substantial justice.
`“A plaintiff seeking the exercise of personal jurisdiction over a
`nonresident defendant bears the initial burden of alleging in the complaint
`sufficient facts to make out a prima facie case of jurisdiction.” United Techs.
`Corp. v. Mazer, 556 F.3d 1260, 1274 (11th Cir. 2009). A defendant challenging
`personal jurisdiction must present evidence to counter the plaintiff’s
`allegations. See Internet Solutions Corp. v. Marshall, 557 F.3d 1293, 1295 (11th
`Cir. 2009). Once the defendant has presented sufficient evidence, “the burden
`shifts to the plaintiff to prove jurisdiction by affidavits, testimony or
`documents.” Id.
`In federal-question cases, such as patent-infringement lawsuits, a court
`must first ensure that it has personal jurisdiction over the defendant under the
`relevant state’s long-arm statute. See Cable/Home Commc’n Corp. v. Network
`Prods., Inc., 902 F.2d 829, 855–56 (11th Cir. 1990); see Fed. R. Civ.
`P. 4(k)(1)(A). Florida’s long-arm statute “must be strictly construed, and any
`doubts about the applicability of the statute are resolved in favor of the
`defendant and against a conclusion that personal jurisdiction exists.” See
`Interim Healthcare, 2020 WL 3078531, at *8 (quoting Gadea v. Star Cruises,
`Ltd., 949 So.2d 1143, 1150 (Fla. 3d DCA 2007)). If personal jurisdiction is
`appropriate under the state long-arm statute, the court must then “analyze
`this long-arm jurisdiction under the due process requirements of the federal
`constitution.” Cable/Home Commc’n, 902 F.2d at 857.
`
`A. Florida Long-Arm Statute
`Under Fla. Stat. § 48.193(1)(a)(2), a nonresident is subject to personal
`jurisdiction in Florida “for any cause of action arising from . . . committing a
`tortious act within Florida.” See Fla. Stat. § 48.193(1)(a)(2) (cleaned up). This
`long-arm jurisdiction even extends to defendants who committed their tortious
`acts outside the state if their acts “cause injury in Florida.” Posner v. Essex Ins.
`Co., Ltd., 178 F.3d 1209, 1216 (11th Cir. 1999). For the purposes of this
`analysis, patent infringement is considered a tort. Elite Aluminum Corp. v.
`Trout, 451 F. Supp. 2d 1311, 1314 (S.D. Fla. 2006) (Dimitrouleas, J.) (“In
`determining whether jurisdiction can be established under tortious conduct
`provisions of a state long-arm statute, courts have held that patent
`infringement constitutes a tortious act for the purposes of establishing
`personal jurisdiction.”)
`The Plaintiff alleges that Unisoc “sells and offers to sell products and
`services into the stream of commerce that incorporate infringing technology,
`knowing that they would be sold in this judicial district and elsewhere in the
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`United States.” (Compl. ¶ 10.) Although Unisoc rebuts the allegation that it
`sells the allegedly infringing Nokia phones and tablets, it does not specifically
`challenge that the devices are sold in some form in Florida. (Decl. of Z. Zhang.)
`This allegation, then, although threadbare and nearly conclusory, offers just
`enough to meet the requirements of Florida’s long-arm statue: it alleges that
`Unisoc makes an infringing product, and that product is sold in Florida, so
`Unisoc is alleged to be committing a tort in Florida. Fla. Stat. § 48.193(1)(a)(2);
`Elite Aluminum, 451 F. Supp. 2d at 1314.7
`
`B. Due Process
`While personal jurisdiction is warranted under Florida’s long-arm
`statute, the Court must assure itself that the exercise of personal jurisdiction
`is consistent with due process. Due process “protects an individual’s liberty
`interest in not being subject to the binding judgments of a forum with which he
`has established no meaningful contacts, ties, or relations.” Burger King Corp. v.
`Rudzewicz, 471 U.S. 462, 471–72 (1985) (internal quotations omitted). This
`liberty interest is particularly acute where the alleged contacts at issue
`occurred through the Internet. Activity posted online could be shared across
`hundreds of jurisdictions without the defendant’s intent or knowledge. Such
`activity could easily bring a defendant into a jurisdiction based only on
`“random, fortuitous, or attenuated contacts” with the forum. See id. at 475
`(cleaned up). That, due process does not permit.
`With that in mind, the Eleventh Circuit uses a three-part test8 to
`determine whether the exercise of personal jurisdiction comports with due
`process:
`
`(1) whether the plaintiff’s claims arise out of or relate to at least
`one of the defendant’s contacts with the forum;
`
`
`7 The Plaintiff argues in the alternative that the “national long-arm statute” of Rule 4(k)(2) also
`confers personal jurisdiction in this district. (Resp. at 11.) The Court declines to consider this
`argument for two reasons. First, the Plaintiff does not plead jurisdiction under Rule 4(k)(2) in
`the complaint. (Compl. ¶ 26.) Second, courts have expressed doubt whether “general
`jurisdiction over a foreign defendant could ever be available under Rule 4(k)(2).” Esterina
`Giuliani v. NCL (Bahamas) Ltd., No. 1:20-cv-22006, 2021 WL 4099502, at *9 (S.D. Fla. Sept. 8,
`2021) (Gayles, J.). Nonetheless, because Florida’s long-arm statute is met, the Court need not
`address this point.
`
` While the unique difficulties of determining personal jurisdiction where the contacts occurred
`online may necessitate a different test, the Eleventh Circuit has continued to apply this three-
`part test where the website is “commercial and fully interactive.” Louis Vuitton, 736 at 1355
`n.10.
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` 8
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`(2) whether the nonresident defendant purposefully availed himself
`of the privilege of conducting activities within the forum state, thus
`invoking the benefit of the forum state’s laws; and
`(3) whether the exercise of personal jurisdiction comports with
`traditional notions of fair play and substantial justice.
`
`Louis Vuitton, 736 F.3d at 1355 (internal quotation marks omitted).
`As to the first prong (arising out of or relatedness), a court should “focus
`on the direct causal relationship between the defendant, the forum, and the
`litigation.” Id. at 1355–56. As to the second prong (purposeful availment), a
`court may apply the traditional minimum-contacts test, or, in intentional-tort
`cases, may utilize the effects test. “Under the ‘effects test,’ a nonresident
`defendant’s single tortious act can establish purposeful availment, without
`regard to whether the defendant had any other contacts with the forum state.”
`Id. at 1356 (citation omitted). “This occurs when the tort: (1) was intentional;
`(2) was aimed at the forum state; and (3) caused harm that the defendant
`should have anticipated would be suffered in the forum state.” Id. (cleaned
`up). As to the third prong (fair play and substantial justice), a court should
`“consider these factors: (1) the burden on the defendant; (2) the forum’s
`interest in adjudicating the dispute; (3) the plaintiff’s interest in obtaining
`convenient and effective relief; and (4) the judicial system’s interest in resolving
`the dispute.” Id. at 1358 (quotation marks omitted).
`Therefore, the Court turns to the three tests identified above: (1) arising
`out of or relatedness; (2) purposeful availment; and (3) fair play and substantial
`justice.
`
`(1) Arising Out of or Relatedness
`“A fundamental element of the specific jurisdiction calculus is that
`plaintiff’s claim must arise out of or relate to at least one of the defendant’s
`contacts with the forum.” Fraser v. Smith, 594 F.3d 842, 850 (11th Cir. 2010)
`(cleaned up). Unisoc has no contacts with Florida, however, other than a
`website that is accessible in Florida. (Decl. of Z. Zhang ¶ 1-12; Decl. of C.
`Clayton Ex. A.). Because this Court has previously assumed the existence of a
`website accessible in Florida is sufficient to meet the relatedness test, however,
`the Court will do so again here.9 Frida Kahlo Corp. v. Pinedo, No. 18-21826-Civ,
`2021 WL 4147876, at *5 (S.D. Fla. Sept. 13, 2021) (Scola, J.).
`
`9 The Court must note that it assumes this portion without deciding it for two reasons: first,
`the courts are still contested on whether the existence of a non-interactive website is sufficient
`to meet the relatedness test; and second, the Court finds that the purposeful availment and
`substantial justice tests are not met here, in any case.
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`(2) Purposeful Availment – Minimum Contacts Test and the Stream of
`Commerce
`Applying the “minimum contacts” test—specifically, the “stream of
`commerce” test discussed by the Supreme Court in Asahi—the Court finds that
`BNR has not met its burden, either in its jurisdictional allegations or in its
`supplementary jurisdictional evidence. Asahi Metal Indus. Co. v. Sup. Ct. of
`Cal., 480 U.S. 102, 113-14 (1987). Under the “minimum contacts” test, the
`contacts must “(1) [be] related to the plaintiff’s cause of action; (2) involve some
`act by which the defendant purposefully availed [itself] of the privileges of doing
`business within the forum; and (3) [be] such that the defendant should
`reasonably anticipate being haled into court in the forum.” Louis Vuitton, 736
`F.3d at 1357. In particular, the Court finds that the Plaintiff has not met the
`second and third prongs, because BNR cannot point to a specific act where
`Unisoc purposefully availed itself of doing business in Florida, and nothing in
`BNR’s allegations or supplemental evidence demonstrates that Unisoc could
`have reasonably anticipated being haled into court in Florida.
`Before explaining why BNR fails to satisfy these two prongs, the Court
`must first address the “stream of commerce” test, how it affects the Court’s
`minimum contacts analysis, and explain why the primary case that BNR relies
`on for its argument—Viavi Solutions Inc. v. Zhejiang Crystal-Optech Co Ltd.—is
`not helpful in addressing the parties’ dispute here. No. 21-00378-Civ, 2022
`U.S. Dist. Lexis 205106 (E.D. Tex. Nov. 10, 2022).
`The Court begins with the Supreme Court’s discussion of the “stream of
`commerce” test in Asahi because the parties rely heavily on it in their briefing
`(likely because, absent this consideration, Unisoc completely lacks any
`meaningful contacts with Florida). 480 U.S. at 113-14. In Asahi, Petitioner
`Asahi Metal Industry Co., Ltd. (“Asahi,” a Japanese corporation) manufactured
`tire valve assemblies in Japan. Id. at 105-06. One of its valve assemblies was
`eventually involved in a motorcycle accident in California, allegedly causing the
`accident at least in part when the motorcycle’s tire exploded. Id. The victim of
`the motorcycle accident named Cheng Shin Rubber Industrial Co., Ltd. (“Cheng
`Shin,” a Taiwanese corporation) as a defendant in a California state-court
`action because Cheng Shin had manufactured the motorcycle’s tire. Id. Cheng
`Shin, in turn, sought indemnity from Asahi because it had purchased the tire’s
`valve assembly from Asahi. Id.
`Of relevance to the Court here, Asahi challenged the California court’s
`jurisdiction over it based on several facts: (1) it was a Japanese corporation,
`based in Japan, that operated in Japan; (2) its sales to Cheng Shin took place
`in Taiwan; and (3) it delivered the tire valve assemblies to Cheng Shin in
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`Taiwan. Id. at 106-07. While the California courts determined that they could
`exercise personal jurisdiction over Asahi based on Asahi’s status as a company
`doing “business on an international scale,” the Supreme Court ultimately held
`that Asahi was not subject personal jurisdiction in California under the due
`process protections of the Fourteenth Amendment. Id. at 113-14.
`In arriving at this conclusion, however, the Supreme Court fractured into
`several pluralities and reached three different outcomes with regards to
`whether Asahi had “sufficient minimum contacts” with California to justify the
`exercise of specific personal jurisdiction.10 Id. at 113-14, 121-22.
`Writing for the plurality with regards to minimum contacts, Justice
`O’Connor developed what has since been termed the “stream of commerce” test
`or more clearly the “stream of commerce plus” test. Id. at 113. Under this test,
`a finding of specific personal jurisdiction requires “something more than that
`the defendant was aware of its product’s entry into the forum State through the
`stream of commerce in order for the State to exert jurisdiction over the
`defendant.” Id. at 111 (emphasis added). In other words, “a defendant’s
`awareness that the stream of commerce may or will sweep the product into the
`forum State does not convert the mere act of placing the product into the
`stream into an act purposefully directed toward the forum State.” Id. at 112.
`Rather, a defendant must undertake some additional act meant to purposefully
`direct its conduct toward the forum state, such as designing its product for
`that state’s market, advertising in the state, or marketing through a specific
`distributor in that state. Id. Based on this formulation of the minimum
`contacts requirement, the plurality determined that Asahi did not have
`sufficient minimum contacts with California. Id.
`In his concurrence, Justice Stevens neither affirmatively endorsed nor
`expressly disavowed the plurality’s test, but instead found that the plurality
`misapplied its own test on the facts of the case. Id. at 121-22. Justice Stevens
`thought that the large number of units of valve assemblies that Asahi produced
`(over 100,000 annually, for several years) was sufficient to find purposeful
`availment. Id.
`Finally, Justice Brennan (joined by Justices White, Marshall, and
`Blackmun) disagreed with the plurality’s formulation of the “stream of
`commerce plus” test. Rather, he thought that Asahi’s awareness of the
`likelihood that its valve assemblies would reach California through the stream
`of commerce after it sold them to Cheng Shin, knowing that Cheng Shin did
`
`10 Of note, however, and as the Court addresses in greater detail later, the Justices
`unanimously agreed that Asahi could not be subject to specific personal jurisdiction because
`the facts presented failed to satisfy the “fair play and substantial justice” requirement. Id. at
`114, 121.
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`business in California, was sufficient on its own to establish minimum
`contacts. Id. at 120-21.
`This brings the Court to why Viavi—the case upon which the Plaintiff
`bases its jurisdictional argument—is not particularly helpful under these
`circumstances. (Resp. at 3-7); 2022 U.S. Dist. Lexis 205106. In Viavi, the
`Eastern District of Texas found that a Chinese manufacturer of camera filters
`for Samsung phones was subject to specific personal jurisdiction on the
`plaintiff’s patent-infringement claims under both Asahi “stream of commerce”
`tests. 2022 U.S. Dist. Lexis 205106 at *9, 14-15.
`There are two key distinctions between Viavi and this case. First, Viavi
`does not conduct much analysis of the Asahi tests—instead, it simply finds
`that both tests would be satisfied, without exploring the distinctions between
`them. Id. at 14-15. Second, Viavi expressly observed that the defendant in that
`case was alleged to have specifically designed the camera filters in question for
`sale in the United States and Texas markets. Id. at *9. Although Viavi does not
`explicitly point this out, that key fact meant the defendant there met one of the
`possible “plus” factors required in the Asahi plurality’s test. Id.; Asahi, 480
`U.S. at 113-14.
`Here, instead, the Court is left with jurisdictional allegations and
`evidence that establish, at best, only that Unisoc was aware that its chipsets
`might be sold in the United States and Florida. (Compl. ¶ 10; Decl. of Z. Zhang
`¶¶ 1-12; Decl. of C. Clayton Ex. A.) The Plaintiff never alleges or demonstrates
`that Unisoc designed the chipsets for the American market or for sale in
`Florida in particular, and Unisoc expressly states that it does not design the
`chipsets at issue for the American market. (See generally Compl.; see also Decl.
`of C. Clayton; Decl. of Z. Zhang ¶ 12.) Although BNR alleges that Unisoc sells
`its products in the United States, Unisoc’s jurisdictional declaration contests
`that allegation. (Compare Compl. ¶ 10 (“Upon information and belief, Defendant
`[Unisoc] sells and offers to sell products and services throughout the United
`States, including in this judicial district . . . .”) with Decl. of Z. Zhang ¶ 5
`(“Unisoc does not develop, design, manufacture, advertise, market, sell, import,
`or distribute products in the United States.”).) BNR attempts to rebut Unisoc’s
`declaration by offering screenshots of Unisoc’s webpage, but the screenshots
`actually prove Unisoc’s case: Unisoc does not offer Nokia phones with the
`allegedly infringing chipsets for sale on its website. (Decl. of C. Clayton Ex. A.)
`Instead, through a complicated commercial chain, one may eventually buy a
`Nokia phone in Florida (that may or may not have a Unisoc chip) through Best
`Buy and Walmart’s websites. (Id.) And Unisoc’s website does not even link
`directly to these websites; rather, it only links to Nokia’s website. (Id.)
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`Simply put, Unisoc lacks any meaningful contacts with Florida or with
`the United States generally. BNR fails to rebut Unisoc’s jurisdictional evidence
`in its response, and Unisoc contests the only allegation that could have created
`a sufficient contact with Florida. (Compl. ¶ 10; Decl. of Z. Zhang ¶ 5.) There is
`no “plus” factor here that would meet Justice O’Connor’s test. Asahi, 480 U.S.
`at 113-14. The Court cannot determine any act by which Unisoc purposefully
`availed itself of the privilege of doing business in Florida. Id. It could,
`conceivably, find that Unisoc may have reasonably anticipated being haled into
`court in Florida if it applied Justice Brennan’s simpler test from Asahi. Id. at
`121. But that determination alone would not support a finding that personal
`jurisdiction may appropriately be exercised here.
`Ultimately, the Court need not decide which Asahi test to definitively
`apply here because, as it observes below, the allegations and jurisdictional
`evidence presented here do not meet the “fair play and substantial justice”
`prong of the specific personal jurisdiction analysis, just as in Asahi. Id. at 114-
`15.11 The fact that the only test the Plaintiff can possibly hope to meet here is
`the lesser, “awareness alone is enough” Asahi test—not the more stringent
`“stream of commerce plus” test—bolsters the Court’s conclusion that it would
`not comport with due process to exercise specific personal jurisdiction over
`Unisoc. Id. at 113-14, 121. Accordingly, the Court finds that BNR has failed to
`meet both the second (“purposeful availment”) and third (“reasonable
`anticipation”) prongs of the minimum contacts test.
`
`(3) Fair Play and Substantial Justice
`A defendant must show that personal jurisdiction offends “fair play and
`substantial justice” only if the plaintiff meets its burden on the two first prongs
`of the three-part due process test. See Louis Vuitton, 736 F.3d at 1355. The
`Plaintiff fails to meet its burden, above, and Unisoc meets its burden on this
`last test. To establish that outcome, the Court looks to the following: “(1) the
`burden on the defendant; (2) the forum’s interest in adjudicating the dispute;
`(3) the plaintiff’s interest in obtaining convenient and effective relief; and (4) the
`judicial system’s interest in resolving the dispute.” Id. at 1358 (cleaned up).
`
`11 The Court’s determination on this point is not aided by the fact that the Eleventh Circuit,
`and other circuits whose opinions might be persuasive here, have not decided which Asahi test
`should be applied in a minimum contacts analysis. See, e.g., Vermeulen v. Renault, U.S.A., Inc,
`985 F.2d 1534, 1548 n.17, 1549-50 (11th Cir. 1993) (observing conflicts among courts about
`which Asahi test to apply and declining to choose because, in that case, the defendant-appellee
`had enough contacts with the United States and Georgia to satisfy the “stream of commerce
`plus” test); see also Beverly Hills Fan Co. v. Royal Sovereign Corp., 21 F.3d 1558, 1566-67 (Fed.
`Cir. 1994) (similarly observing the conflict and applying both Asahi tests in a patent-
`infringement claims context).
`
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`Case 1:22-cv-22706-RNS Document 150 Entered on FLSD Docket 03/09/2023 Page 11 of 12
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`First, the Court finds that litigation in Florida would be burdensome for
`the Defendant—a Chinese corporation that has no connection to Florida.
`(Compl. ¶ 10; Decl. of Z. Zhang ¶¶ 1-12.) Second, Florida’s interest in this
`dispute—at least, with regards to Defendant Unisoc—is minimal. While some of
`the other Defendants are alleged to have offices or operations in Florida and are
`alleged to have offered infringing products for sale in Florida, there has been no
`showing of the impact any specific actions in Florida by Defendant Unisoc to
`raise Florida’s interest beyond a generalized interest in enforcing federal law.
`(Decl. of Z. Zhang; Decl. of C. Clayton Ex. A.) Third, while the Plaintiffs have an
`interest in obtaining convenient and effective relief, that factor alone does not
`override the substantial burden that would be placed on Unisoc to litigate in
`Florida or Florida’s relatively low interest in this dispute with regards to
`Unisoc. Fourth, the judicial system has an interest in resolving the dispute, as
`the Plaintiffs’ claims arise from federal law. But this factor is also not sufficient
`to tip the scales in the Plaintiff’s favor.
`In total, these factors weigh against the exercise of personal jurisdiction.
`The Court finds this to be the case based, importantly, on the Supreme Court’s
`unanimous holding in Asahi. There, the Supreme Court held that the exercise
`of personal jurisdiction would not comport with the requirements of fair play
`and substantial justice based on nearly identical facts to those here. 480 U.S.
`at 113-14, 121.12 Accordingly, the Court finds that the exercise of personal
`jurisdiction over Defendant Unisoc is incompatible with the Due Process
`Clause and the protections that it affords. Therefore, the Court grants Unisoc’s
`motion to dismiss for lack of personal jurisdiction.
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`C. The Plaintiff is Not Entitled to Jurisdictional Discovery
`Finally, the Court declines to grant BNR’s belated and improper request
`for jurisdictional discovery. (Resp. at 13.) BNR inserts its request at the end of
`its response to Unisoc’s motion, does not elaborate what documents or
`information it would seek through jurisdictional discovery, and never makes a
`separate motion to conduct jurisdictional discovery. Wolf v. Celebrity Cruises,
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`12 Although the Justices could not reach a majority opinion on the exact application (or
`outcome) of the “stream of commerce” test, all Justices agreed that Asahi was not subject to
`personal jurisdiction because the fair play and substantial justice prong could not be met.
`Justice O’Connor, writing for the plurality, determined the fair play and substantial justice
`prong could not be met because the burden on Asahi (a Japanese corporation) to litigate in
`California would be “severe.” Id. at 113-14. Justice Brennan (joined by Justices White,
`Marshall, and Blackmun) and Justice Stevens (also joined by Justices White and Blackmun)
`agreed with Justice O’Connor’s opinion with regards to the fair play and substantial justice
`prong and, as such, concurred in the Court’s judgment that Asahi was not subject to specific
`personal jurisdiction. Id. at 121.
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`Case 1:22-cv-22706-RNS Document 150 Entered on FLSD Docket 03/09/2023 Page 12 of 12
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`Inc., 683 F. App’x 786, 792 (11th Cir. 2017) (affirming district court’s denial of
`request for jurisdictional discovery where the plaintiff made only a “general
`request for jurisdictional discovery” that was “buried withing his response to
`[the defendant’s] motion to dismi