Case :-md-0-lhk Document 0 Filed // Page of 0 0 Craig A. Hoover, SBN E. Desmond Hogan (admitted pro hac vice) Peter R. Bisio (admitted pro hac vice) Allison M. Holt (admitted pro hac vice) Thirteenth Street, NW Washington, DC 00 Tel: () -00 Fax: () -0 craig.hoover@hoganlovells.com desmond.hogan@hoganlovells.com peter.bisio@hoganlovells.com allison.holt@hoganlovells.com Michael M. Maddigan, SBN 0 Avenue of the Stars, Suite 00 Los Angeles, CA 00 Tel: (0) -00 Fax: (0) -0 michael.maddigan@hoganlovells.com Attorneys for CareFirst of Maryland, Inc. d/b/a CareFirst BlueCross BlueShield Additional Defendants Counsel Listed on Signature Page UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION IN RE ANTHEM, INC. DATA BREACH LITIGATION Case No. :-MD-0-LHK DEFENDANT CAREFIRST OF MARYLAND, INC. d/b/a CAREFIRST BLUECROSS BLUESHIELD S NOTICE OF MOTION AND MOTION TO DISMISS CONSOLIDATED AMENDED CLASS ACTION COMPLAINT FOR LACK OF PERSONAL JURISDICTION The Honorable Lucy H. Koh Date: March, Time: :0 p.m. Courtroom:, th Floor A TTO RN EY S A T L A W Case No. -MD-0-LHK
Case :-md-0-lhk Document 0 Filed // Page of 0 0 NOTICE OF MOTION AND MOTION TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THAT Defendant CareFirst of Maryland, Inc. d/b/a CareFirst BlueCross BlueShield ( CareFirst ), will, and hereby does, move to dismiss the plaintiffs Consolidated Amended Class Action Complaint filed in this matter. Hearing on this motion will be held on March, at :0 p.m. in the Courtroom of the Honorable Lucy H. Koh, located at the Robert F. Peckham Federal Building & United States Courthouse, 0 South First Street, th Floor, San Jose, California. CareFirst brings this motion on the grounds that it is not subject to personal jurisdiction in California and therefore is entitled to dismissal pursuant to Federal Rule of Civil Procedure (b)(). Pursuant to Rule (g)(), CareFirst also joins in the separately noticed motion to dismiss filed by all Non-Anthem Defendants, which will be heard on February,. CareFirst bases this motion on this Notice of Motion and Motion, the attached Memorandum of Points and Authorities, the supporting declaration of Wanda Lessner, all pleadings and papers filed in this action, the oral argument of counsel, and any other matters the Court may wish to consider. Dated: November, By: /s/ Craig A. Hoover Craig A. Hoover Attorney for Defendant - i - Case No. -MD-0-LHK
Case :-md-0-lhk Document 0 Filed // Page of 0 ISSUE PRESENTED. Whether the Court should dismiss the claims against Defendant CareFirst of Maryland, Inc. d/b/a CareFirst BlueCross BlueShield for lack of personal jurisdiction? 0 - ii - Case No. -MD-0-LHK
Case :-md-0-lhk Document 0 Filed // Page of 0 0 MEMORANDUM OF POINTS AND AUTHORITIES Pursuant to Federal Rule of Civil Procedure (b)(), Defendant CareFirst of Maryland, Inc. d/b/a CareFirst BlueCross BlueShield ( CareFirst ) respectfully asks this Court to dismiss the claims asserted against it for lack of personal jurisdiction. CareFirst is a Maryland corporation with its principal place of business in Maryland. It was not named as a defendant in any of the underlying actions that were filed in other jurisdictions and then transferred to and consolidated before this Court. Instead, CareFirst was first named as a defendant in this litigation when Plaintiffs filed their Consolidated Amended Class Action Complaint ( CAC ) in this Court on October,. Two of the named plaintiffs in the CAC allege that they were enrolled in CareFirst health plans. These named plaintiffs are not California residents, however, and they do not allege any facts connecting their claims against CareFirst to California. Thus, this Court lacks personal jurisdiction over CareFirst, and it should dismiss the CAC as to CareFirst on that basis. Pursuant to Rule (g)(), CareFirst also joins in the Non-Anthem Defendants Motion to Dismiss, and the Court also should dismiss the claims asserted against CareFirst for all of the reasons set forth in that Motion. BACKGROUND The CAC alleges generally that [t]his Court has personal jurisdiction over Defendants because Defendants conduct business in the state of California, CAC 0, but it does not allege any specific facts to support that allegation as to CareFirst. Instead, Plaintiffs allege only that CareFirst is incorporated and headquartered in Maryland. Id.. CareFirst agrees that it is organized under the laws of Maryland and that its principal place of business is in Maryland. See Declaration of Wanda Lessner in Support of Defendant CareFirst of Maryland, Inc. d/b/a CareFirst BlueCross BlueShield s Motion to Dismiss for Lack of Personal Jurisdiction, (hereinafter Lessner Decl. ). CareFirst also states that it is not licensed to do business in California, it has no registered agent for service of process in California, it has no offices and owns no property in California, and it neither sells insurance nor solicits business in California. Id. -. None of the named plaintiffs in the CAC who are alleged to be citizens or residents of Case No. -MD-0-LHK
Case :-md-0-lhk Document 0 Filed // Page of 0 0 California alleges any connection or interaction with CareFirst. See CAC -. Instead, the CAC alleges only that two of the other named plaintiffs in the CAC were enrolled in CareFirst health plans. Specifically, the CAC alleges that Plaintiff Don West is a citizen and resident of the State of Maryland and was enrolled in a CareFirst Blue Choice, Inc. health plan, and that Plaintiff Michelle Kaseta-Collins is a citizen and resident of the State of Michigan and was enrolled in an Allegis CareFirst Blue Cross Blue Shield health plan. CAC,. ARGUMENT Federal courts, in the absence of a specific statutory provision conferring jurisdiction, apply the personal jurisdiction laws of the state in which they sit. Rupert v. Bond, F. Supp. d, (N.D. Cal. ). California s long-arm statute allows the exercise of personal jurisdiction to the full extent permissible under the U.S. Constitution. Daimler AG v. Bauman, S. Ct., (). Under the Constitution, due process requires that a defendant have certain minimum contacts with the forum such that maintenance of the suit does not offend traditional notions of fair play and substantial justice. Int l Shoe Co. v. State of Wash., Office of Unemployment Comp. & Placement, U.S. 0, () (quoting Milliken v. Meyer, U.S., (0)); see also Daimler, S. Ct. at (observing that International Shoe remains the canonical opinion on personal jurisdiction). Plaintiffs bear the burden of establishing that the Court has personal jurisdiction over CareFirst. Rupert, F. Supp. d at (citing Schwarzenegger v. Fred Martin Motor Co., F.d, 00-0 (th Cir. 0)). To satisfy that burden, Plaintiffs must show that CareFirst is subject to general or all-purpose jurisdiction in California or that the claims Plaintiffs are asserting against CareFirst in the CAC satisfy the requirements for specific or conduct-linked jurisdiction. Daimler, S. Ct. at. Plaintiffs cannot make either showing here. CareFirst is not subject to general jurisdiction in California because, among other reasons, it is a Maryland corporation with its principal place of business in Maryland and does not sell insurance in California and has no offices and owns no property in California. And it is not subject to specific jurisdiction because it has no contacts with California relating to the claims asserted against it in the CAC. Due process is not satisfied, therefore, and Plaintiffs claims against CareFirst should be dismissed for lack of - - Case No. -MD-0-LHK
Case :-md-0-lhk Document 0 Filed // Page of 0 0 personal jurisdiction. I. CAREFIRST IS NOT SUBJECT TO GENERAL JURISDICTION IN CALIFORNIA. Plaintiffs claims against CareFirst should be dismissed because CareFirst is not subject to general jurisdiction in California. A court may exercise general personal jurisdiction over a corporation only when its contacts render it essentially at home in the state. Martinez v. Aero Caribbean, F.d 0, 0 (th Cir. ) (quoting Daimler, S. Ct. at ). [T]he concept of home in the context of general jurisdiction should be understood narrowly, with the paradigm forum for an individual being his or her domicile and for a corporation being its principal place of business or place of incorporation. Senne v. Kansas City Royals Baseball Corp., No. -CV-000-JCS, WL, at * (N.D. Cal. May, ) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, S. Ct., ()). Only in an exceptional case will general jurisdiction be available anywhere else. Martinez, F.d at 00 (quoting Daimler, S. Ct. at n.). It is undisputed that CareFirst is not a California corporation and that its principal place of business is not in California. Instead, CareFirst is a Maryland corporation that is headquartered in Maryland. See CAC ; Lessner Decl.. Thus, this would have to be an exceptional case for CareFirst to be considered essentially at home in California such that it is subject to general personal jurisdiction. This case is nothing of the sort. CareFirst is not licensed to do business in California. Lessner Decl.. It has no registered agent for service of process in California. Id. It has no offices and owns no property in California. Id.. And it neither sells insurance nor solicits business in California. Id.. Thus, CareFirst is not subject to general personal jurisdiction in California, and Plaintiffs claims against it should be dismissed. See, e.g., Martinez, F.d at 00 (finding that no exceptional case exists where defendant has no offices, staff, or other physical presence in California, and it is not licensed to do business in the state ). - - Case No. -MD-0-LHK
Case :-md-0-lhk Document 0 Filed // Page of 0 0 II. CAREFIRST IS NOT SUBJECT TO SPECIFIC JURISDICTION IN CALIFORNIA. Plaintiffs claims against CareFirst also should be dismissed because CareFirst is not subject to specific jurisdiction in California. The inquiry whether a forum State may assert specific jurisdiction over a nonresident defendant focuses on the relationship among the defendant, the forum, and the litigation. See Walden v. Fiore, S. Ct., - () (internal quotation marks and citations omitted). The Ninth Circuit employs a three-part test to assess whether a defendant has sufficient contacts with the forum state to be subject to specific personal jurisdiction: () The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; () the claim must be one which arises out of or relates to the defendant's forumrelated activities; and () the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable. Picot v. Weston, 0 F.d, (th Cir. ) (citing Schwarzenegger, F.d at 0). In applying this test, the claims of unnamed class members are irrelevant to the question of specific jurisdiction. AM Trust v. UBS AG, F. Supp. d, (N.D. Cal. ). Instead, specific jurisdiction must be demonstrated by the named Plaintiffs. Senne, WL, at *; see also Ambriz v. Coca Cola Co., No. -CV-0-JST, WL, at * (N.D. Cal. Jan., ) ( The Court concludes that a defendant s contacts with the named plaintiff in a class action, without reference to the defendant s contacts with unnamed members of the proposed class, must be sufficient for the Court to exercise specific personal jurisdiction over the defendant. ). The named plaintiffs in the CAC cannot satisfy any of the three parts of this test here. First, the CAC does not allege any facts showing that CareFirst directed its activities towards California, engaged in any transactions with a California resident, or purposefully availed itself of the privilege of conducting activities in California. It simply makes the conclusory assertion that all of the Defendants conduct business in the state of California, CAC 0, which - - Case No. -MD-0-LHK
Case :-md-0-lhk Document 0 Filed // Page of 0 0 is insufficient to support a finding of personal jurisdiction as a matter of law. See Swartz v. KPMG et al., F.d, (th Cir. 0) ( [M]ere bare bones assertions of minimum contacts... or legal conclusions unsupported by specific factual allegations including conclusory allegations that defendants... conducted business in the forum state are insufficient to satisfy Plaintiffs pleading burden. ) (internal quotations omitted); see also In re Papst Licensing GMBH & Co. KG Litig., 0 F. Supp. d 0, (D.D.C. 0) (dismissing defendant from multidistrict litigation because plaintiff did not allege specific acts connecting the defendant with the forum and [b]are allegations and conclusory statements are insufficient to support exercise of personal jurisdiction). The only allegations of fact concerning the named plaintiffs and CareFirst are that two of the named plaintiffs who are citizens and residents of another state were enrolled in health plans administered by CareFirst. See CAC,. These allegations have nothing to do with California. Second, the CAC does not allege any facts showing that the claims asserted under California law or by California named plaintiffs have anything to do with any California-related activities by CareFirst. The CAC not only does not identify any such California-related activities, but it does not even allege that any named plaintiff who lives in California ever had any connection with CareFirst. As noted above, the only allegations regarding CareFirst relate to two named plaintiffs who allegedly live in Maryland and Michigan. These named plaintiffs are not alleged to have had anything to do with California or to be asserting claims against CareFirst under California law. See id. Third, the exercise of jurisdiction over CareFirst in California would not comport with fair play and substantial justice. As discussed above, there is absolutely no connection between California and the named plaintiffs claims against CareFirst. Thus, it would be wholly unfair and unjust to require CareFirst to litigate the claims asserted in the CAC through trial and during an appeal in California. Pursuant to Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, U.S. (), the defendants named in the CAC who were sued in other districts and then had their cases transferred to the Northern District of California by the Judicial Panel on Multidistrict Litigation have the right to have their cases transferred back to the districts in which - - Case No. -MD-0-LHK
Case :-md-0-lhk Document 0 Filed // Page of 0 0 they were sued for trial, to the extent there is anything left to try after pre-trial proceedings are completed. Plaintiffs attempt to add CareFirst as a defendant in this multidistrict litigation by naming it as a defendant in the CAC would deprive CareFirst of its right under Lexecon to have a trial in this case take place in a district in which it is subject to personal jurisdiction. CareFirst has no objection to participating in pre-trial proceedings before this Court as a defendant in In re Anthem, Inc. Data Breach Litigation to the extent CareFirst is properly before this Court. However, there is nothing about the multidistrict litigation process that requires CareFirst to waive its right to have a trial in this case take place in a district in which it is subject to personal jurisdiction. Because the exercise of personal jurisdiction over CareFirst by this Court would deprive CareFirst of that right, considerations of fair play and substantial justice favor granting CareFirst s motion to dismiss. CONCLUSION For all the reasons set forth above, CareFirst respectfully requests that the Court dismiss the claims asserted against CareFirst for lack of personal jurisdiction. CRAIG A. HOOVER E. DESMOND HOGAN PETER R. BISIO ALLISON M. HOLT Dated: November, By: /s/ Craig A. Hoover Craig A. Hoover (SBN ) craig.hoover@hoganlovells.com E. Desmond Hogan (admitted pro hac vice) desmond.hogan@hoganlovells.com Peter R. Bisio (admitted pro hac vice) peter.bisio@hoganlovells.com Allison M. Holt (admitted pro hac vice) allison.holt@hoganlovells.com Thirteenth Street, NW Washington, DC 00-0 Telephone: () -00 Facsimile: () -0 - - Case No. -MD-0-LHK
Case :-md-0-lhk Document 0 Filed // Page 0 of 0 Michael Maddigan (SBN 0) michael.maddigan@hoganlovells.com Avenue of the Stars, Suite 00 Los Angeles, CA 00 Telephone: (0) -00 Facsimile: (0) -0 Maren J. Clouse (SBN ) maren.clouse@hoganlovells.com 0 Campbell Ave., Suite 00 Menlo Park, CA 0 Telephone: (0) -000 Facsimile: (0) - Attorneys for CareFirst of Maryland, Inc. 0 - - Case No. -MD-0-LHK