Iconlab, Inc. v. Bausch Health Companies, Inc. ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 22 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ICONLAB, INC., a California corporation; No. 19-55683
et al.,
D.C. No.
Plaintiffs-Appellants, 8:16-cv-01321-JLS-KES
v.
MEMORANDUM*
BAUSCH HEALTH COMPANIES, INC.,
FKA Valeant Pharmaceuticals International,
Inc., a Canadian corporation; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Josephine L. Staton, District Judge, Presiding
Submitted August 14, 2020**
Pasadena, California
Before: CALLAHAN, BUMATAY, and VANDYKE, Circuit Judges.
Iconlab, Inc., Icon Lab GmbH, and Reper-NN, Co., Ltd. (collectively,
“Iconlab”) appeal from the grant of Bausch Health Companies, Inc.’s motions to
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
dismiss for lack of personal jurisdiction and for failure to join indispensable parties.
We affirm.
1. We review personal jurisdiction determinations de novo, Dole Food Co. v.
Watts, 303 F.3d 1104, 1108 (9th Cir. 2002), and factual questions involved in the
application of alter ego and agency tests for clear error. Towe Antique Ford Found.
v. I.R.S., 999 F.2d 1387, 1391 (9th Cir. 1993); Penthouse Int’l, Ltd. v. Barnes, 792
F.2d 943, 947 (9th Cir. 1986). We apply state law to questions of jurisdiction.
Williams v. Yamaha Motor Co., 851 F.3d 1015, 1020 (9th Cir. 2017). In this case,
the district court, after months of jurisdictional discovery, granted Bausch’s Federal
Rule of Civil Procedure 12(b)(2) motion to dismiss Bausch’s foreign subsidiaries,
Valeant Ireland and B&L Saglik, for lack of jurisdiction over both Iconlab’s alter
ego and agency theories. The district court did not err.
To support personal jurisdiction under an alter ego theory, Iconlab must show
(1) “such unity of interest and ownership” between parent and subsidiary “that the
separate personalities of the two entities no longer exist” and (2) the “failure to
disregard” the separate entities “would result in fraud or injustice.” Ranza v. Nike,
Inc., 793 F.3d 1059, 1073 (9th Cir. 2015) (simplified) (quoting Doe v. Unocal Corp.,
248 F.3d 915, 926 (9th Cir. 2001)). Iconlab argues there is sufficient unity of interest
between Bausch and its two foreign subsidiaries because Bausch approved their
large purchases, financed their activity, issued collective media releases, and
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submitted consolidated earnings reports. The district court was correct that none of
these allegations show Bausch’s day-to-day involvement in its subsidiaries’
governance. See Ranza, 793 F.3d at 1073 (recognizing that the “test envisions
pervasive control over the subsidiary, . . . from broad policy decision to routine
matters of day-to-day operation”) (simplified). Instead, these activities reflect
routine operations between a parent and its subsidiary.1 Furthermore, Iconlab fails
the second part of the test: it has not shown that injustice would result here from
“recognition of the corporate form.” Tomaselli v. Transamerica Ins. Co., 31 Cal.
Rptr. 2d 433, 443 (Ct. App. 1994) (finding “inadequate capitalization, commingling
of assets, [and] disregard of corporate formalities” can satisfy the standard).
The district court also correctly rejected Iconlab’s effort to support
jurisdiction under an agency theory. Iconlab asserted that the two foreign
subsidiaries are Bausch’s agents, but it relies on a theory of agency, Bowoto v.
Chevron Texaco Corp., 312 F. Supp. 2d 1229, 1238–46 (N.D. Cal. 2004), that was
rejected by the Court in Daimler AG v. Bauman, 571 U.S. 117, 136 (2014). See also
Yamaha Motor, 851 F.3d at 1021 (recognizing that the test for general jurisdiction
1
See, e.g., Unocal Corp., 248 F.3d at 927, abrogated on other grounds by Williams
v. Yamaha Motor Co., 851 F.3d 1015 (9th Cir. 2017) (financing and approval of
large purchases); Sonora Diamond Corp. v. Superior Court, 99 Cal. Rptr. 2d 824,
844 (Ct. App. 2000) (consolidated reporting); Kramer Motors, Inc. v. British
Leyland, Ltd., 628 F.2d 1175, 1177 (9th Cir. 1980) (guarantor); F. Hoffman-La
Roche, Ltd. v. Superior Court, 30 Cal. Rptr. 3d 407, 422 (Ct. App. 2005) (collective
media releases).
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asks whether a corporation is essentially “at home” in the forum state). Even
assuming Iconlab’s agency theory is still actionable, Iconlab employs a novel
“reverse-agency” theory with no legal support: attributing to the agents (foreign
subsidiaries) the contacts of the principal (Bausch). See Strasner v. Touchstone
Wireless Repair & Logistics, LP, 210 Cal. Rptr. 3d 16, 24 (Ct. App. 2016) (rejecting
jurisdictional imputation through reverse agency). We decline to approve this theory
here.
2. Next, the district court did not abuse its discretion by dismissing Iconlab’s
lawsuit under Federal Rule of Civil Procedure 19. The Rule 19 inquiry involves: (1)
identifying the necessary absent parties; (2) determining if joinder is feasible;2 and
(3) choosing whether to proceed without them. See Fed R. Civ. P. 19(a)–(b);
E.E.O.C. v. Peabody W. Coal Co., 400 F.3d 774, 779–80 (9th Cir. 2005). The absent
parties consisted of Bausch’s foreign subsidiaries Valeant Ireland, B&L Saglik, and
Valeant International Luxembourg (collectively, “Valeant subsidiaries”), Turkish
company Boyut, and UAE-incorporated Mediworld.
Under Rule 19(a)(1)(B), a party must be joined if:
That person claims an interest relating to the subject of the action and
is so situated that disposing of the action in the person’s absence may:
(i) as a practical matter impair or impede the person’s ability to protect
the interest; or (ii) leave an existing party subject to a substantial risk
2
Iconlab does not challenge this prong of the Rule 19 inquiry and we do not
address it here.
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of incurring double, multiple, or otherwise inconsistent obligations
because of the interest.
Fed R. Civ. P. 19(a)(1)(B). Here, the district court ruled that the absent parties were
necessary to determine the ownership of the technology at the heart of the dispute
between Iconlab and Bausch. According to Bausch, the Valeant subsidiaries were
the purported buyers of the commercial technology and Boyut and Mediworld were
the purported sellers. But Iconlab sought damages, declaratory relief naming it the
rightful owner of the technology, and injunctive relief prohibiting the Bausch entities
from misappropriating the technology.
We agree with the district court that such a claim implicates the absent parties.
As the district court observed, if Iconlab prevails and is declared the proper owner
of the technology, it may require the district court to order the dissolution of
contracts between the absent parties. Without unwinding the contract here, the
parties could be subject to inconsistent obligations—one under the district court’s
order and one under the contract. The absent parties could even obtain a dueling
declaration from a different tribunal. Such parties are, thus, the quintessential
necessary parties. See Lomayaktewa v. Hathaway, 520 F.2d 1324, 1325 (9th Cir.
1975) (holding that “in an action to set aside . . . a contract, all parties who may be
affected by the determination . . . are indispensable”); Dawavendewa v. Salt River
Project Agric. Improvement & Power Dist., 276 F.3d 1150, 1157 (9th Cir. 2002)
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(holding that “a party to a contract is necessary, and if not susceptible to joinder,
indispensable to litigation seeking to decimate that contract”).
Having found that absent parties have legally protectable interests, the district
court did not abuse its discretion in holding the absent parties indispensable. Rule
19(b)(4) provides four factors to determine whether dismissal is required in an action
in which necessary parties cannot be joined, but Iconlab challenges only the fourth:
whether Iconlab would have a remedy if its suit was dismissed. Fed. R. Civ. P.
19(b)(4). As the district court found, Iconlab could still sue in other jurisdictions,
and, in fact, it was already litigating the dispute in several foreign courts at the time
of dismissal. The district court was thus correct that Iconlab is capable of bringing
its claims elsewhere and properly dismissed Iconlab’s case pursuant to Rule 19.3 See
Creative Tech., Ltd. v. Aztech Sys. PTE, 61 F.3d 696, 702 (9th Cir. 1995) (holding
that when a company has filed suit in an alternate forum, it has generally waived any
argument that it cannot file there).
AFFIRMED.
3
Iconlab admits that it does not want to bring suit in Turkey because it would not be
cost effective. But the Federal Rules don’t make an allowance for this concern. See
Ziegler v. Indian River Cty., 64 F.3d 470, 476 (9th Cir. 1995) (explaining that
convenience is not an important concern in the jurisdiction analysis).
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