David Chang Motion To Dismiss PDF

Case 4:17-cv-05782-JSW Document 98 Filed 02/16/18 Page 1 of 20
1 Tracy M. Talbot (Cal. State Bar No. 259786)

BRYAN CAVE LLP
2 Three Embarcadero Center, 7th Floor
San Francisco, California 94111-4070
3 Telephone: (415) 675-3400
Facsimile: (415) 675-3434
4 E-mail: tracy.talbot@bryancave.com
5 Lawrence G. Scarborough (Arizona State Bar No. 006965)

BRYAN CAVE LLP
6 Two North Central Avenue, Suite 2100
Phoenix, Arizona 85004-4406
7 Telephone: (602) 364-7000
Facsimile: (602) 364-7070
8 E-mail: lgscarborough@bryancave.com
9 Attorneys for Defendants Momofuku

171 First Avenue, LLC and David Chang
10
11 UNITED STATES DISTRICT COURT

Three Embarcadero Center, 7th Floor
12 DISTRICT OF NORTHERN CALIFORNIA

13 OAKLAND DIVISION
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14 TIMOTHY BROWN, Case No. 4:17-cv-05782-JSW

15 Plaintiff and Putative Class Representative, Hon. Jeffrey S. White
16 vs. DEFENDANTS MOMOFUKU 171
FIRST AVENUE, LLC AND DAVID
17 140 NM LLC; BAR AGRICOLE, LLC; CHANG’S NOTICE OF MOTION;
THADDEUS M. VOGLER; HOPEMOORELAIN, JOINDER IN DEFENDANTS’ MOTION
18 LLC; RUSSELL MOORE; ALLISON TO DISMISS PURSUANT TO FED. R.
HOPELAIN; DUENDE, LLC; PAUL CANALAS; CIV. P. 12(b)(1) AND 12(b)(6); MOTION
19 ES VERDAD, LLC; JOHN PALUSKA; TO DISMISS FOR LACK OF
ANDREW HOFFMAN; GOLDEN GATE PERSONAL JURISDICTION AND
20 RESTAURANT ASSOCIATION; UNION IMPROPER VENUE; AND
SQUARE HOSPITALITY GROUP, LLC; MEMORANDUM OF POINTS AND
21 DANIEL MEYER; SABATO SAGARIA; AUTHORITIES IN SUPPORT
CRAFTED HOSPITALITY, LLC; THOMAS
22 COLICCHIO; MOMOFUKU 171 FIRST Date: April 6, 2018
AVENUE, LLC; DAVID CHANG; MARLOW, Time: 9:00 a.m.
23 INC.; ANDREW TARLOW; HAPPY COOKING Crtrm: 5
HOSPITALITY, INC.; GABRIEL STULMAN;
24 MOLINERO, LLC; JONAH MILLER; NATE
ADLER; BIRTH OF THE COOL, LLC; DANIEL Complaint Filed: October 6, 2017
25 HUMM; WILL GUIDARA; NEW YORK CITY Trial Date: Not Assigned
HOSPITALITY ALLIANCE, INC.; ANDREW
26 RIGIE, and DOES 1-500,
27 Defendants.
28
PX01DOCS\968545.12
DEFENDANTS MOMOFUKU 171 FIRST AVENUE, LLC AND DAVID CHANG’S MOTION TO DISMISS -
CASE NO. 4:17-CV-05782-JSW
1 SUMMARY OF ARGUMENT
2 In this action, Plaintiff Timothy Brown (“Plaintiff”)—a resident of Minnesota—asserts that
3 he was overcharged by virtue of a purported conspiracy among Defendants to eliminate tipping in
4 a handful of restaurants in the Bay Area and New York. (Complaint ¶¶ 1-3, 8.) Plaintiff’s
5 Complaint does not meet threshold requirements authorizing suit in federal court. As set forth in
6 Defendants’ Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6), Plaintiff’s
7 complaint neither establishes his standing nor states a claim upon which relief can be granted.
8 Moreover, as explained below, Plaintiff asserts that the Court may exercise personal
9 jurisdiction over Defendants Momofuku 171 First Avenue, LLC (“Momofuku 171”) and David
10 Chang (collectively, the “Momofuku Defendants”)—both citizens of New York—based on a sole,
11 conclusory allegation that “[u]pon information and belief, this court has personal jurisdiction over
12 the remaining defendants as well.” (Id. ¶ 46.) Standing alone, this allegation is facially
13 insufficient to satisfy Plaintiff’s burden to establish personal jurisdiction over the Momofuku
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14 Defendants. Boschetto v. Hansing, 539 F.3d 1011, 1015 (9th Cir. 2008) (sustaining dismissal for
15 lack of personal jurisdiction). As the declarations submitted with this Motion make even clearer,
16 Plaintiff cannot establish either general or specific jurisdiction over the Momofuku Defendants,
17 both of whom are based in New York and have had only limited contacts with California, none of
18 which relate to the facts giving rise to this litigation. Plaintiff is not entitled to go fishing with
19 jurisdictional discovery. Terracom v. Valley Nat’l Bank, 49 F.3d 555, 562 (9th Cir. 1995)
20 (“[W]here a plaintiff’s claim of personal jurisdiction appears to be both attenuated and based on
21 bare allegations in the face of specific denials made by defendants, the Court need not permit even
22 limited discovery[.]”) (citation omitted).
23 Even if Plaintiff could establish a basis for personal jurisdiction (and he cannot), venue is
24 improper because all of the allegations against the Momofuku Defendants relate exclusively to
25 conduct in New York, and Plaintiff cannot rely on conspiracy allegations to establish that venue is
26 appropriate in this district. Accordingly, the Momofuku Defendants respectfully move to be
27 dismissed from this action under both Fed. R. Civ. P. 12(b)(2) and 12(b)(3).
28
PX01DOCS\968545.12 i
1 TABLE OF CONTENTS
2 Page
3 SUMMARY OF ARGUMENT ....................................................................................... i
4 TABLE OF AUTHORITIES ........................................................................................... iii
5 STATEMENT OF THE ISSUES TO BE DECIDED ..................................................... 1
6 MEMORANDUM OF POINTS AND AUTHORITIES ................................................. 2
7 I. BACKGROUND ................................................................................................. 3
8 II. PLAINTIFF FAILS TO ESTABLISH A BASIS FOR PERSONAL

JURISDICTION OVER THE MOMOFUKU DEFENDANTS .......................... 5
9
A. Plaintiff Fails To Plead A Factual Basis For Personal Jurisdiction ......... 6
10
B. Plaintiff Cannot Establish General Personal Jurisdiction ........................ 7
11
1. California Courts Lack General Jurisdiction Over
12 Momofuku 171 ............................................................................ 7

2. California Courts Lack General Personal Jurisdiction Over
13 Chang ........................................................................................... 8
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14 C. Plaintiff Also Cannot Establish Specific Jurisdiction .............................. 8

15 1. Neither Momofuku Defendant Directed Activities at
California ..................................................................................... 9
16
2. Plaintiff’s Cause of Action Is Unrelated to the Momofuku
17 Defendants’ Limited Contacts With California ........................... 10
18 3. It Would be Unreasonable to Exercise Specific Jurisdiction ....... 11
19 III. PLAINTIFF IS NOT ENTITLED TO JURISDICTIONAL DISCOVERY ........ 12

IV. VENUE IS IMPROPER AS WELL .................................................................... 13
20
V. CONCLUSION .................................................................................................... 14
21
22
23
24
25
26
27
28
PX01DOCS\968545.12 ii
1 TABLE OF AUTHORITIES
2 Cases: Page(s)
3 Action Embroidery Corp. v. Atl. Embroidery, Inc.,

368 F.3d 1174 (9th Cir. 2004) ................................................................................... 13
4
Bell Atlantic Corp. v. Twombly,
5 550 U.S. 544 (2007) ................................................................................................... 2
6 Boschetto v. Hansing,
539 F.3d 1011 (9th Cir. 2008) ................................................................................... passim
7
Bristol-Meyers Squibb Co. v. Sup. Ct. of Cal.,
8 137 S. Ct. 1773 (2017) ............................................................................................... 6, 8, 9
9 Butcher’s Union Local No. 498, United Food & Commercial Workers
v. SDC Inv., Inc.,
10 788 F.2d 535 (9th Cir. 1986) ..................................................................................... 13
11 Cernansky v. Lebefvre,
88 F. Supp. 3d 299 (D. Vt. 2015) .............................................................................. 6

12
Daimler AG v. Bauman,
13 134 S. Ct. 746 (2014) ................................................................................................. 7, 8
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14 GEC US 1 L.L.C. v. Frontier Renewables, L.L.C.,

Case No. 16-cv-1276 YGR, 2016 WL 4677585 (N.D. Cal. Sept. 7, 2016) .............. 5
15
Gillespie v. Prestige Royal Liquors Corp.,
16 183 F. Supp. 3d 996 (N.D. Cal. 2016) ....................................................................... 9, 11
17 Goodyear Dunlop Tire Operations, S.A. v. Brown,

564 U.S. 915 (2011) ................................................................................................... 7
18
Headspace Int’l, LLC v. New Gen Agric. Servs., LLC,
19 No. CV163917RGKGJSX, 2016 WL 9275781 (C.D. Cal. Nov. 15, 2016) .............. 10
20 In re W. States Wholesale Nat. Gas Antitrust Litig.,

715 F.3d 716 (9th Cir. 2013),
21 aff’d, 135 S. Ct. 1591 (2015) ..................................................................................... 9-10
22 Logtale, Ltd. v. IKOR, Inc.,

No. C-11-05452(EDL), 2014 WL 1478901 (N.D. Cal. Apr. 14, 2014) .................... 6
23
Love v. Associated Newspapers, Ltd.,
24 611 F.3d 601 (9th Cir. 2010) ..................................................................................... 5
25 Michael v. New Century Fin. Servs.,

65 F. Supp. 3d 797 (N.D. Cal. 2014) ......................................................................... 7
26
Mora v. Wachovia Mortg.,
27 No. C 11-00109 PSG, 2011 WL 198160 (N.D. Cal. Jan. 14, 2011) .......................... 2
28
PX01DOCS\968545.12 iii
1 Page(s)
2 Piedmont Label Co. v. Sun Garden Packing Co.,

598 F.2d 491 (9th Cir. 1979) ..................................................................................... 14
3
Ralls v. Facebook,
4 221 F. Supp. 3d 1237 (W.D. Wash. 2016) ................................................................ 8
5 Residents of Bayview Hunter Point v. Lennar Hous. Dev. Inc.,

No. C 07-04135 WHA, 2007 WL 4126340 (N.D. Cal. Nov. 2007) .......................... 2
6
Schwarzenegger v. Fred Martin Motor Co.,
7 374 F.3d 797 (9th Cir. 2004) ..................................................................................... 7, 10
8 Sec. Alarm Fin. Enters., L.P. v. Nebel,

200 F. Supp. 3d 976 (N.D. Cal. 2016) ....................................................................... 8-9
9
Sheikh v. York,
10 No. 11-cv-15533, 2012 WL 1004853 (E.D. Mich. Mar. 26, 2012) ........................... 6
11 Terracom v. Valley Nat’l Bank,

49 F.3d 555 (9th Cir. 1995) ....................................................................................... i, 10, 11, 12

12
Williams v. Canon, Inc.,
13 432 F. Supp. 376 (C.D. Cal. 1977) ............................................................................ 14
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14
15 Statutes and Rules:
16 15 U.S.C. § 15(a) .......................................................................................................... 13
17 15 U.S.C. § 22 ............................................................................................................... 13
18 18 U.S.C. § 1965(a) ...................................................................................................... 14
19 28 U.S.C. § 1391(b)(2) ................................................................................................. 5, 13
20 28 U.S.C. § 1406(a) ...................................................................................................... 13
21 Fed. R. Civ. P. 12(b)(2) ................................................................................................ i, 1, 3
22 Fed. R. Civ. P. 12(b)(3) ................................................................................................ i, 1, 3
23
24
25
26
27
28
PX01DOCS\968545.12 iv
1 TO ALL PARTIES AND THE CLERK OF THE COURT:
2 PLEASE TAKE NOTICE that at 9:00 a.m. on April 6, 2018, in Courtroom 5 of the
3 above-titled Court, Defendants Momofuku 171 First Avenue, LLC and David Chang (“Momofuku
4 Defendants”) join in Defendants’ Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) and
5 12(b)(6) and will and hereby do further move this Court for an Order pursuant to Rules 12(b)(2)
6 and 12(b)(3) dismissing the Momofuku Defendants from this action, without leave to amend.
7 This Motion is based on this Notice, the attached Memorandum of Points and Authorities,
8 the Declarations of the Momofuku Defendants that accompany this Motion, the Proposed Order
9 filed concurrently herewith, and such further evidence as may be received by the Court.
10 STATEMENT OF THE ISSUES TO BE DECIDED
11 1. Whether Plaintiff satisfied his burden to establish personal jurisdiction over the Momofuku
12 Defendants through a single, speculative allegation made “upon information and belief”?
13 2. Whether venue over the Momofuku Defendants is proper in the Northern District of
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14 California when all allegations against them relate to conduct in New York?
15
Dated: February 16, 2018 BRYAN CAVE LLP
16
17
18 By: /s/ Tracy M. Talbot______________

Tracy M. Talbot
20 Telephone: (415) 675-3400
Facsimile: (415) 675-3434
21
Jacob A. Kramer (admitted pro hac vice)
22 BRYAN CAVE LLP
1155 F Street NW
23 Washington, DC 20004-1357
Telephone: (202) 508-6153
24 Facsimile: (202) 220-7453
25 Lawrence G. Scarborough
BRYAN CAVE LLP
27 Telephone: (602) 364-7000
Facsimile: (602) 364-7070
28
PX01DOCS\968545.12 1
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 In this action, Plaintiff Timothy Brown—a resident of Minnesota—asserts that he was
3 overcharged by virtue of a purported conspiracy among the Defendants to eliminate tipping in a
4 handful of restaurants in the Bay Area and New York. (Complaint ¶¶ 1-3, 8.)1 The Defendants in
5 this action include a group of restaurants and restaurant owners that represent a tiny fraction of
6 restaurants nationwide (and even within New York City and the Bay Area, different metropolitan
7 areas that are nearly 3,000 miles removed from one another), yet Plaintiff asserts a nationwide
8 conspiracy to raise prices on unwitting restaurant customers. Plaintiff levels these allegations by
9 describing a public dialogue about innovation in the industry and at the same time admitting a
10 number of procompetitive reasons for unilaterally implementing a no-tipping model. For
11 example, defendant David Chang allegedly stated that a no-tipping policy permits restaurant
12 owners to “remix the way their service charges are distributed to their staff,” which is imperative
13 “to hang onto the best kitchen talent.” (Id. ¶ 106 (emphasis added); see also id. ¶ 65.)
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14 Plaintiff’s Complaint falls far short of the pleading standard described in Bell Atlantic
15 Corp. v. Twombly, 550 U.S. 544 (2007). In a case involving allegations of an unlawful antitrust
16 conspiracy, allegations of “parallel conduct and a bare assertion of conspiracy” do not suffice. Id.
17 at 556. Here, as in Twombly, the Complaint is unsupported by any factual allegations suggesting
18 that certain defendants’ decisions to eliminate tipping is the result of an unlawful agreement, as
19 opposed to “rational and competitive business strategy unilaterally prompted by common
20 perceptions of the market.” Id. at 554. It is just as likely—indeed, far more likely—that certain
21 defendants unilaterally decided to end tipping after listening to the public dialogue, evaluating the
22 many procompetitive reasons to make such a decision (including those conceded in Plaintiff’s
23 complaint), and separately concluding that doing so would improve their own prospects in an
24
1
25 Plaintiff lists his state of residence as Minnesota in the civil cover sheet filed in
conjunction with the Complaint. The Court may consider the cover sheet in the context of a
26 motion to dismiss. See, e.g., Residents of Bayview Hunters Point v. Lennar Hous. Dev. Inc., No. C
07-04135 WHA, 2007 WL 4126340, at *1 (N.D. Cal. Nov. 20, 2007) (citing civil cover sheet and
27 granting motion to dismiss for lack of standing); see also Mora v. Wachovia Mortg., No. C 11-
00109 PSG, 2011 WL 198160, at *1 (N.D. Cal. Jan. 14, 2011) (granting motion to dismiss after
28 noting that civil cover sheet indicated an improper basis for jurisdiction).
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1 extremely competitive business. In short, Plaintiff merely speculates that there was a “conspiracy”
2 and cannot “nudge[ his] claims across the line from conceivable to plausible.” Id. at 570.
3 These and other substantive problems with Plaintiff’s claims are described in Defendants’
4 Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(2) (“Defendants’ Joint Motion”),
5 filed separately. In addition, for the reasons set forth below, Plaintiff’s Complaint does not meet
6 even basic requirements authorizing suit in federal court.
7 Plaintiff asserts that the Court may exercise personal jurisdiction over the Momofuku
8 Defendants—both citizens of New York—based on a single, threadbare allegation:
9 Upon information and belief, this court has personal jurisdiction over the remaining
defendants as well. Discovery will determine the nature and extent of defendants’
10 contacts with the State of California generally and that specifically concern the
charged conspiracy.
11
(Id. ¶ 46.)2 The Complaint supplements this speculation with a handful of similarly insufficient
12
factual allegations related to the Momofuku Defendants’ conduct in New York.
13
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In particular, Plaintiff alleges that the Momofuku Defendants should be held liable for a
14
nationwide antitrust conspiracy based upon (1) two tweets sent by Chang; (2) Chang’s supposed
15
attendance at a single industry meeting that took place in New York City; and (3) the temporary
16
adoption of the hospitality-included business model for a six-month period at a lone New York
17
City establishment, Nishi. (Id. ¶¶ 47, 59, 70-73, 84, 104, 106, 113, 139.)3 These meager
18
allegations fall far short of alleging participation in a nationwide conspiracy and also underscore
19
the impropriety of personal jurisdiction and venue in California. Thus, the Momofuku Defendants
20
respectfully request that the Court dismiss them from this action for lack of personal jurisdiction
21
and improper venue, pursuant to Fed. R. Civ. P. 12(b)(2) and 12(b)(3).
22
23
24 2
The Complaint acknowledges that Momofuku 171 is incorporated and based in New
York, but it does not allege Chang’s state of residency. (Complaint ¶¶ 26-27.) As stated in the
25 Declaration of David Chang (“Chang Decl.”) filed with this Motion, he is a resident of New York.
(Chang Decl. ¶ 2.)
26
3
Momofuku 171 does not own or control Nishi. Rather, as set forth in the Declaration of
27 Alejandro Munoz-Suarez (“Munoz-Suarez Decl.”), filed herewith, Momofuku 171 owns and
operates the Momofuku Noodle Bar. (Munoz-Suarez Decl. ¶ 4.) Nishi is owned by a different
28 entity, Momofuku 232 8th Avenue, LLC, which has not been named as a Defendant. (Id. ¶ 3.)
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1 I. BACKGROUND.
2 Plaintiff asserts that the Momofuku Defendants were involved in a wildly implausible
3 nationwide conspiracy to harm competition by eliminating tipping in restaurants, with the alleged
4 goal of “greater profit at the expense of workers and consumers.” (Complaint ¶ 3.) Plaintiff’s
5 Complaint spans 46 pages and 179 paragraphs, but the allegations against the Momofuku
6 Defendants are confined to just 10 paragraphs (some of which are inaccurate, and a number of
7 which fail to refer to the Momofuku Defendants specifically):
8  “Defendant, Momofuku 171 First Avenue, LLC (‘Momofuku’), is a limited liability

company organized under the laws of the state of New York with its principal place of
9 business at 171 First Avenue, New York City. It owns approximately fifteen restaurants
located in New York City, Washington, D.C., Las Vegas, Sydney, and Toronto, including
10 Nishi located at 232 Eighth Avenue in New York City.” (Id. ¶ 26.)
11  “Defendant, David Chang, is the chef, founder, managing member, and co-owner of
Momofuku.” (Id. ¶ 27.)

12
 “Upon information and belief, this court has personal jurisdiction over the remaining
13 defendants as well. Discovery will determine the nature and extent of defendants’ contacts
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with the State of California generally and that specifically concern the charged
14 conspiracy.” (Id. ¶ 46.)
15  “On July 9, 2013, Danny Meyer tweeted: ‘Considered eliminating tipping years ago, and
then servers asked to keep things as they were. Your opinion please.” Tom Colicchio
16 responded: ‘@dmeyer I’m thinking the same for craft.’ David Chang responded:
‘@tomcolicchio @dmeyer we are more than kicking around the idea at @momofuku of
17 figuring out how to increase prices removing tips w/o revolt.’” (Id. ¶ 47.)
18  “The Wall Street Journal reported that around August 2015, Meyer gathered together
fifteen of New York’s top restauranteurs, representing about eighty establishments, to tell
19 them that USHG was planning to end tipping and raise prices. The apparent purpose of the
meeting was to solicit participation by the attendees and, upon information and belief,
20 other participants did indicate they may follow USHG’s lead.” (Id. ¶ 59).
21  “On or about January 8, 2016, David Chang ended tipping at his new restaurant Nishi,
located in the Chelsea neighborhood in Manhattan. Upon information and belief, Chang
22 attended the meeting referenced in Par. 59, above.” (Id. ¶ 84.)
23  “On March 12, 2016, Chang tweeted ‘No tipping policy is advantageous for diner and
restaurants in places with larger dining rooms. I think 90-120 seats is sweet spot:
24 learning.” (Id. ¶ 104.)
25  “On or about March 29, 2016, Chang said that servers at no-tipping restaurants are
‘getting capped out’ and ‘could be making a lot more if they were taking tips,’ and that a
26 no-tipping policy ‘allows restaurant owners to remix the way their service charges are
distributed to their staff, which we gotta do if we’re going to hang onto the best kitchen
27 talent.’” (Id. ¶ 106.)
28
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1  “On or about June 4, 2016, Chang ended his no-tipping policy at Nishi and lowered the
menu prices. He said that ‘[t]his is by no means the end of the no-tipping discussion at
2 Momofuku. But at this moment, we think a tipping model will benefit our guests and
staff.’” (Id. ¶ 113.)
3
 “Upon information and belief, much of defendants’ price-fixing activity has been
4 conducted in secret. Formal discovery should reveal additional evidence of price fixing
and defendants’ real motives and efforts to conceal their illegal conduct.” (Id. ¶ 139.)
5
Consistent with these New York-centric allegations, the Complaint also classifies the Momofuku
6
Defendants as two of the “New York defendants” against whom Plaintiff asserts a violation of
7
New York’s Donnelly Act. (Id. at 44 n.8.)
8
Additionally, the Complaint generally alleges that venue is proper in this District pursuant
9
to 28 U.S.C. § 1391(b)(2), which provides that a civil action may be brought in “a judicial district
10
in which a substantial part of the events or omissions giv[ing] rise to the claim occurred[.]” (Id. ¶
11
43 (quoting 28 U.S.C. § 1391(b)(2)).)

12
II. PLAINTIFF FAILS TO ESTABLISH A BASIS FOR PERSONAL JURISDICTION
13 OVER THE MOMOFUKU DEFENDANTS.
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14 The Complaint is devoid of allegations sufficient to establish personal jurisdiction over the
15 Momofuku Defendants. Plaintiff bears the burden of establishing personal jurisdiction. Boschetto
16 v. Hansing, 539 F.3d 1011, 1015 (9th Cir. 2008) (sustaining dismissal for lack of personal
17 jurisdiction). When a motion to dismiss for lack of personal jurisdiction is based on written
18 materials rather than an evidentiary hearing, the plaintiff must make a prima facie showing of
19 jurisdictional facts. Love v. Associated Newspapers, Ltd., 611 F.3d 601, 608 (9th Cir. 2010)
20 (sustaining dismissal). “A plaintiff makes a ‘prima facie’ showing by producing admissible
21 evidence which, if believed, would be sufficient to establish the exercise of personal jurisdiction.”
22 GEC US 1 L.L.C. v. Frontier Renewables, L.L.C., Case No. 16-cv-1276 YGR, 2016 WL 4677585,
23 at *6 (N.D. Cal. Sept. 7, 2016) (dismissing counterclaims for lack of personal jurisdiction).
24 Plaintiff fails to allege a statutory or constitutional basis authorizing the Court to exercise
25 personal jurisdiction over the Momofuku Defendants. As to other Defendants, Plaintiff relies on
26 the Due Process Clause of the Fourteenth Amendment (Complaint ¶ 45), which requires analysis
27 of the law of the forum state, Boschetto, 539 F.3d at 1015. Because California’s long-arm statute
28 is co-extensive with federal standards, a federal court located in California may exercise personal
PX01DOCS\968545.12 5
1 jurisdiction if doing so comports with constitutional due process. Boschetto, 539 F.3d at 1015-16.
2 To exercise personal jurisdiction over a nonresident defendant, the Court must ensure that the
3 defendant has at least “minimum contacts” with the relevant forum, such that the exercise of
4 jurisdiction “does not offend traditional notions of fair play and substantial justice.” Id. (quoting
5 Int’l Shoe Co. v. Wash., 326 U.S. 310, 316 (1945)). “The primary focus of [the] personal
6 jurisdiction inquiry is the defendant’s relationship to the forum State.” Bristol-Meyers Squibb Co.
7 v. Sup. Ct. of Cal., 137 S. Ct. 1773, 1779 (2017). A defendant may be subject to either general
8 jurisdiction or specific jurisdiction. Id. at 1779-80.
9 A. Plaintiff Fails To Plead A Factual Basis For Personal Jurisdiction.
10 As a threshold (and dispositive) issue, Plaintiff has failed to plead any basis for general or
11 specific jurisdiction over the Momofuku Defendants. Instead, Plaintiff speculates “[u]pon
12 information and belief” that “this court has personal jurisdiction,” and “[d]iscovery will determine
13 the nature and extent of defendants’ contacts with the State of California generally and that
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14 specifically concern the charged conspiracy.” (Complaint ¶ 46 (emphasis added).)
15 “Conclusory allegations showing the presence of jurisdiction, particularly those stated only
16 upon information and belief, are insufficient to establish that the court has personal jurisdiction
17 over the defendant.” Cernansky v. Lebefvre, 88 F. Supp. 3d 299, 308 (D. Vt. 2015) (finding no
18 personal jurisdiction based upon conclusory allegations made upon information and belief); see
19 also Logtale, Ltd. v. IKOR, Inc., No. C-11-05452(EDL), 2014 WL 1478901, at *5 (N.D. Cal. Apr.
20 14, 2014) (denying motion to amend complaint and explaining that an “information and belief”
21 allegation that defendants transact business in California “is insufficient to establish [personal]
22 jurisdiction”); Sheikh v. York, No. 11-cv-15533, 2012 WL 1004853, at *2 (E.D. Mich. Mar. 26,
23 2012) (finding that a single allegation of personal jurisdiction “upon information and belief” was
24 conclusory and failed to satisfy plaintiff’s obligation to make a prima facie showing).
25 On the face of the Complaint, Plaintiff has failed to make a prima facie showing of
26 personal jurisdiction over the Momofuku Defendants. For this reason alone, they should be
27 dismissed from this action.
28
PX01DOCS\968545.12 6
1 B. Plaintiff Cannot Establish General Personal Jurisdiction.
2 Even if Plaintiff’s single “information and belief” allegation could serve as a basis for
3 personal jurisdiction (and it cannot), Plaintiff does not and cannot establish general personal
4 jurisdiction over the Momofuku Defendants. As evidenced in the declarations filed herewith, both
5 Momofuku 171 and Chang are New York citizens that have only limited contacts with California.
6 (Munoz-Suarez Decl. ¶¶ 2, 5-6; Chang Decl. ¶¶ 2, 5.) Neither is subject to general jurisdiction.
7 1. California Courts Lack General Jurisdiction Over Momofuku 171.
8 California courts lack general personal jurisdiction over Momofuku 171 as a matter of law.
9 As Plaintiff acknowledges, Momofuku 171 is incorporated in New York and maintains its
10 principal place of business in New York. (Complaint ¶ 26; Munoz-Suarez Decl. ¶ 2.) The
11 Supreme Court has repeatedly held that a corporation’s place of incorporation and principal place
12 of business are the paradigm bases for general jurisdiction. Daimler AG v. Bauman, 134 S. Ct.
13 746, 760 (2014) (finding no general personal jurisdiction over non-resident defendant in California
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14 suit); see also Goodyear Dunlop Tire Operations, S.A. v. Brown, 564 U.S. 915, 924 (2011)
15 (finding that state court lacked general personal jurisdiction over foreign subsidiaries). “Those
16 affiliations have the virtue of being unique—that is each ordinarily indicates only one place—as
17 well as easily ascertainable.” Daimler, 134 S. Ct. at 760 (citation omitted).
18 General jurisdiction may exist beyond these paradigm “all-purpose forums,” but only in
19 rare instances where the corporation’s affiliations with the forum state “are so ‘continuous and
20 systematic’ as to render [it] essentially at home in the forum State.” Id. at 761 (quoting Goodyear,
21 564 U.S. at 919); see also Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 801 (9th Cir.
22 2004) (sustaining trial dismissal for lack of personal jurisdiction); Michael v. New Century Fin.
23 Servs., 65 F. Supp. 3d 797, 804 (N.D. Cal. 2014) (granting motion to dismiss). “This is an
24 exacting standard, as it should be, because a finding of general jurisdiction permits a defendant to
25 be haled into court in the forum state to answer for any of its activities anywhere in the world.”
26 Schwarzenegger, 374 F.3d at 801 (citation omitted). A plaintiff’s “sheer speculation” or “vague
27 representations” of a defendant’s contacts with the forum are insufficient to subject the defendant
28 to general jurisdiction. Michael, 65 F. Supp. 3d at 804 (citation omitted).
PX01DOCS\968545.12 7
1 Plaintiff makes no attempt to allege a basis for general jurisdiction over Momofuku 171 (or
2 the different entity that owns Nishi), because no such basis exists. Momofuku 171 is not
3 incorporated in California. (Complaint ¶ 26; Munoz-Suarez Decl. ¶ 2.) Nor does Momofuku 171
4 maintain its principal place of business in California. (Complaint ¶ 26; Munoz-Suarez Decl. ¶ 2.)
5 Further, Momofuku 171 has no “continuous and systematic” affiliations with California that
6 would render the company essentially at home in this forum. Momofuku 171 does not own any
7 restaurants in California and does not conduct any substantive business in California. (Munoz-
8 Suarez Decl. ¶ 5.) Momofuku 171’s contacts with the state are limited to the occasional purchase
9 of ingredients and wine for use in its restaurant in New York. (Id. ¶ 6.) For all of these reasons,
10 the Court lacks general personal jurisdiction over Momofuku 171.
11 2. California Courts Lack General Personal Jurisdiction Over Chang.

12 The Court also lacks general personal jurisdiction over Chang. As an individual, Chang is
13 subject to general personal jurisdiction in his place of domicile. Bristol-Myers Squibb, 137 S.Ct.
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14 at 1780 (“For an individual, the paradigm forum for the exercise of general jurisdiction is the
15 individual’s domicile[.]”) (quoting Goodyear, 564 U.S. at 924); see also Daimler, 134 S. Ct. at
16 760 (“Goodyear made clear that only a limited set of affiliations with a forum will render a
17 defendant amenable to all-purpose jurisdiction there. ‘For an individual, the paradigm forum for
18 the exercise of general jurisdiction is the individual’s domicile[.]’”); Ralls v. Facebook, 221 F.
19 Supp. 3d 1237, 1243 (W.D. Wash. 2016) (granting motion to dismiss for lack of general
20 jurisdiction over individual defendant). Chang is a longtime resident of New York, and he is not
21 subject to general personal jurisdiction in California courts. (Chang Decl. ¶ 2.)
22 C. Plaintiff Also Cannot Establish Specific Jurisdiction.
23 Plaintiff also fails to establish any basis for the Court’s exercise of specific personal
24 jurisdiction over the Momofuku Defendants. In order for the Court to exercise specific
25 jurisdiction, “‘the suit’ must ‘aris[e] out of or relat[e] to the defendant’s contacts with the forum.’”
26 Bristol-Myers Squibb, 137 S. Ct. at 1780 (quoting Daimler). For this reason, specific jurisdiction
27 “is confined to adjudication of ‘issues deriving from, or connected with, the very controversy that
28 establishes jurisdiction.’” Sec. Alarm Fin. Enters., L.P. v. Nebel, 200 F. Supp. 3d 976, 983 (N.D.
PX01DOCS\968545.12 8
1 Cal. 2016) (quoting Goodyear, 564 U.S. at 919). “When there is no such connection, specific
2 jurisdiction is lacking, regardless of the extent of a defendant’s unconnected activities in the
3 State.” Bristol-Myers Squibb, 137 S.Ct. at 1781 (citing Goodyear, 564 U.S. at 931 n.6). The
4 Court’s jurisdiction “depends upon ‘the state of things at the time the action is brought,’” and “the
5 Court may only consider ‘contacts occurring prior to the event causing the litigation.’” Gillespie
6 v. Prestige Royal Liquors Corp., 183 F. Supp. 3d 996, 1002 (N.D. Cal. 2016) (quoting Grupo
7 Dataflux v. Atlas Glob. Grp., L.P., 541 U.S. 567, 570 (2004)) (citations omitted).
8 The Ninth Circuit applies a three-part test to determine whether a court may exercise
9 specific jurisdiction over a nonresident defendant. Boschetto, 539 F.3d at 1016. First, the court
10 must find that the defendant “purposefully direct[ed] his activities or consummate[d] some
11 transaction with the forum or resident thereof; or perform[ed] some act by which he purposefully
12 avail[ed] himself of the privilege of conducting activities in the forum, thereby invoking the
13 benefits and protections of its laws[.]” Id. (citing Schwarzenegger, 374 F.3d at 802). Second, the
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14 claim must be one that arises out of or relates to the defendant’s forum-related activities. Id.
15 Third, the exercise of jurisdiction must comport with fair play and substantial justice, i.e., it must
16 be reasonable. Id. Plaintiff bears the burden of establishing that the first two requirements are
17 satisfied. Id. If Plaintiff cannot do so, “the jurisdictional inquiry ends and the case must be
18 dismissed.” Id. (emphasis added). If Plaintiff satisfies the first two elements, then the burden
19 shifts to the defendant to show that the exercise of jurisdiction is unreasonable. Id.
20 1. Neither Momofuku Defendant Directed Activities at California.
21 As discussed above, Plaintiff has failed to plead a factual basis for the Court’s exercise of
22 personal jurisdiction over the Momofuku Defendants. In sum, Plaintiff alleges that the Momofuku
23 Defendants should be held liable for a nationwide conspiracy based upon (1) two tweets sent by
24 Chang; (2) an “information and belief” allegation that Chang attended a single industry meeting
25 that took place in New York City; and (3) a six-month trial of the hospitality-included business
26 model at a New York City restaurant, Nishi. (Complaint ¶¶ 47, 59, 84, 104, 113.)
27 In the antitrust context, the first prong of the specific-jurisdiction test requires a showing
28 that the nonresident defendant purposefully directed its acts at the forum state. In re W. States
PX01DOCS\968545.12 9
1 Wholesale Nat. Gas Antitrust Litig., 715 F.3d 716, 743-44 (9th Cir. 2013) (applying the purposeful
2 direction test rather than the purposeful availment test to antitrust claims, and explaining that these
3 tests are “two distinct concepts”), aff’d, 135 S. Ct. 1591 (2015). “Purposeful direction” requires
4 that the defendant allegedly (1) committed an intentional act, (2) expressly aimed at the forum
5 state, and (3) caused harm that the defendant knows is likely to be suffered in the forum state.
6 Schwarzenegger, 374 F.3d at 805.
7 None of Plaintiff’s factual allegations even suggest that the Momofuku Defendants
8 purposefully directed activities at the forum state. First, the meeting Plaintiff speculates that
9 Chang attended took place in New York and involved New York restauranteurs. (Complaint ¶
10 59.)4 Second, Nishi is located in New York. (Id. ¶ 26.) Third, Chang’s social media posts are
11 insufficient as a matter of law to establish conduct aimed at California. See Headspace Int'l, LLC
12 v. New Gen Agric. Servs., LLC, No. CV163917RGKGJSX, 2016 WL 9275781, at *4 (C.D. Cal.
13 Nov. 15, 2016) (“The Court cannot find that merely engaging in social media constitutes
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14 purposeful direction at California”). Thus, Plaintiff cannot satisfy the “purposeful direction” test.
15 2. Plaintiff’s Cause of Action Is Unrelated to the Momofuku Defendants’

Limited Contacts With California.
16
Even if Plaintiff could satisfy the first test (and he cannot), Plaintiff cannot show that the
17
cause of action arose out of the Momofuku Defendants’ contacts with California. The second
18
prong of the specific-jurisdiction test applies a “but-for” analysis and asks whether the cause of
19
action would have arisen but for the contacts between the defendant and the forum state.
20
Terracom v. Valley Nat’l Bank, 49 F.3d 555, 556 (9th Cir. 1995) (plaintiff failed to satisfy test).
21
As stated above, the Complaint does not allege any contacts between the Momofuku
22
Defendants and California, much less contacts related to Plaintiff’s claims. As stated in the
23
declarations submitted herewith, any limited contacts that the Defendants have with California are
24
far removed from this litigation. (Munoz-Suarez Decl. ¶ 6; Chang Decl. ¶ 5.) In addition,
25
26
27
4
28 To be clear, Chang did not actually attend this meeting. (Chang Decl. ¶ 6.)
PX01DOCS\968545.12 10
1 Defendant Momofuku 171 does not own, operate, or control Nishi. (Munoz-Suarez Decl. ¶ 3.)
2 For these reasons as well, the Court lacks specific jurisdiction over the Momofuku Defendants.5
3 While Chang recently had contacts with California while helping to open a new restaurant
4 in Los Angeles, such contacts bear no relation to the causes of action alleged, and they occurred
5 after the conduct described in the Complaint. (Chang Decl. ¶ 5.) Because jurisdiction is
6 determined “based on the state of things at the time the action is brought,” these recent contacts—
7 entirely unrelated to Plaintiff’s allegations—are not relevant. Gillespie, 183 F. Supp. 3d at 1002.
8 3. It Would be Unreasonable to Exercise Specific Jurisdiction.
9 Even if Plaintiff could satisfy his burden on the first two prongs (and he cannot), it would
10 be unreasonable to exercise jurisdiction over either of the Momofuku Defendants, based on the
11 following factors: (1) the extent of the defendant’s purposeful interjection into the forum state’s
12 affairs; (2) the burden on the defendant of defending in the forum; (3) the extent of conflict with
13 the sovereignty of the defendants’ state; (4) the forum state’s interest in adjudicating the dispute;
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14 (5) the most efficient judicial resolution of the controversy; (6) the importance of the forum to the
15 plaintiff’s interest in convenient and effective relief; and (7) the existence of an alternative forum.
16 Boschetto, 539 F.3d at 1016 (applying factors and holding that exercise of personal jurisdiction
17 was unreasonable). Courts balance these seven factors, and none is dispositive. Id.
18 These factors weigh heavily in favor of finding that the Court’s exercise of specific
19 jurisdiction over the Momofuku Defendants is unreasonable. First, neither Momofuku Defendant
20 has purposefully injected itself into California’s affairs in any meaningful way.6 Because Plaintiff
21 cannot demonstrate that the Momofuku Defendants did so, the first factor “weighs heavily” in the
22 Momofuku Defendants’ favor. Terracom, 49 F.3d at 561.
23 Second, both Momofuku Defendants would be burdened if forced to defend this suit in
24 California, because they are based in New York and would have to incur costs related to travel and
25
5
Even if Plaintiff had named the entity that owns Nishi as a defendant, Plaintiff still could
26 not establish specific jurisdiction in California based on conduct in New York.
6
27 Again, there is no nexus between Chang’s contacts with California and the allegations in
this case (Chang Decl. ¶ 5), which also pre-date his recent contact with the state, Gillespie, 183 F.
28 Supp. 3d at 1002 (jurisdiction is based on “‘the state of things at the time the action is brought’”).)
PX01DOCS\968545.12 11
1 other expenses. Plaintiff is also located out of state, in Minnesota. “Where the burdens are equal,
2 the second factor tips in favor of [the defendant] because the law of personal jurisdiction is
3 asymmetrical and is primarily concerned with the defendant’s burden.” Id.
4 The remaining factors weigh in favor of finding unreasonableness as well. The Complaint
5 itself alleges that “a handful of Bay Area restaurants agreed ‘as a group’ to eliminate tipping and
6 increase prices by twenty percent” and these restaurants “are part of a larger conspiracy
7 spearheaded by the Union Square Hospitality Group out of New York City[.]” (Complaint ¶ 2.)
8 Because Bay Area restaurants clearly do not compete with restaurants in New York, which is
9 3,000 miles away, there is no reasonable basis to join both sets of Defendants.
10 Finally, Plaintiff is a resident of Minnesota, and he thus lacks a basis to assert that his
11 interest in convenient and effective relief is best served by suit in California, where the majority of
12 Defendants and Plaintiff himself do not reside. See Terracom, 49 F.3d at 561 (explaining that a
13 state’s interest in adjudicating a suit arises from an obligation to “protect its residents from tortious
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14 acts of non-resident defendants”). For all of these reasons, it would be unreasonable for the Court
15 to exercise specific jurisdiction over the Momofuku Defendants.
16 III. PLAINTIFF IS NOT ENTITLED TO JURISDICTIONAL DISCOVERY.
17 Unable to satisfy his pleading obligations or to establish a prima face case for personal
18 jurisdiction, Plaintiff states that he intends to seek jurisdictional discovery. (Complaint ¶ 46
19 (“Discovery will determine the nature and extent of defendants’ contacts with the State of
20 California generally and that specifically concern the charged conspiracy”).) This request is based
21 entirely upon Plaintiff’s speculation that a discovery fishing expedition will yield information
22 establishing personal jurisdiction over the Momofuku Defendants (and others).
23 Given the lack of jurisdictional allegations and the denials contained in the Momofuku
24 Defendants’ declarations, Plaintiff is not entitled to subject the Momofuku Defendants to the
25 burden of discovery. “[W]here a plaintiff’s claim of personal jurisdiction appears to be both
26 attenuated and based on bare allegations in the face of specific denials made by defendants, the
27 Court need not permit even limited discovery[.]” Terracom, 49 F.3d at 562 (sustaining trial
28 court’s denial of continuance for jurisdictional discovery) (citation omitted). Requests for
PX01DOCS\968545.12 12
1 jurisdictional discovery are properly denied when they are “based on little more than a hunch that
2 [discovery] might yield jurisdictionally relevant facts[.]” Boschetto, 539 F.3d at 1020 (sustaining
3 denial of request for jurisdictional discovery); see also Butcher’s Union Local No. 498, United
4 Food & Commercial Workers v. SDC Inv., Inc., 788 F.2d 535, 540-41 (9th Cir. 1986) (sustaining
5 denial of jurisdictional discovery because plaintiffs “state only that they ‘believe’ that discovery
6 will enable them to demonstrate sufficient” contacts, and “speculation does not satisfy” the
7 required showing). The same is true here. Plaintiff’s one-sentence speculative assertion that
8 discovery might yield the necessary jurisdictional facts is insufficient to justify the burden of
9 subjecting the Momofuku Defendants to depositions or other discovery.
10 IV. VENUE IS IMPROPER AS WELL.
11 Plaintiff asserts that venue is proper in the Northern District of California pursuant to 28
12 U.S.C. § 1391(b)(2), which provides that venue is appropriate in “a judicial district in which a
13 substantial part of the events or omissions giving rise to the claim occurred[.]” Id. If the Court
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14 finds that personal jurisdiction exists over the Momofuku Defendants, venue is improper in
15 California for the same reasons discussed above. Again, the allegations related to the Momofuku
16 Defendants relate exclusively to conduct in New York.
17 While not alleged as a basis for venue in the Complaint, 15 U.S.C. § 22 governs venue
18 over corporate defendants in antitrust litigation. The statute provides that “[a]ny suit, action, or
19 proceeding under the antitrust laws against a corporation may be brought not only in the judicial
20 district whereof it is an inhabitant, but also in any district wherein it may be found or transacts
21 business[.]” 15 U.S.C. § 22. Analyses of personal jurisdiction and venue under this statute are
22 distinct. Action Embroidery Corp. v. Atl. Embroidery, Inc., 368 F.3d 1174, 1181 (9th Cir. 2004).
23 “A defendant over whom personal jurisdiction exists but for whom venue is improper may move
24 for dismissal or transfer for improper venue under 28 U.S.C. § 1406(a).” Id.7
25
26 7
For non-corporate, individual defendants, the Clayton Act provides for venue “in any
27 district court of the United States in the district in which the defendant resides or is found or has
an agent[.]” 15 U.S.C. § 15(a). As discussed above, Chang resides in New York, not the Bay
28 Area. Thus, venue as to Chang is improper in the Northern District of California.
PX01DOCS\968545.12 13
1 The Clayton Act does not “‘give plaintiffs freedom to subject defendants to venue in the
2 forum of their choice.’” Piedmont Label Co. v. Sun Garden Packing Co., 598 F.2d 491, 495 (9th
3 Cir. 1979) (reversing district court order denying motion for summary judgment based on
4 improper venue in antitrust suit) (citation omitted). Accordingly, “venue in a private antirust
5 action cannot be solely based on allegations that a defendant was a member of a conspiracy and
6 that a co-conspirator performed acts in the forum district.” Id. Once a defendant challenges
7 venue, the plaintiff has the burden of demonstrating that venue is proper in the chosen district. Id.
8 at 496. Dismissal is appropriate where, as here, Plaintiff attempts to establish venue “merely by
9 alleging that [the Momofuku Defendants] participated in a conspiracy with the other defendants to
10 violate the antitrust laws.” Williams v. Canon, Inc., 432 F. Supp. 376, 382 (C.D. Cal. 1977)
11 (dismissing defendant from antitrust action for improper venue).8

12 //
13 //
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14 //
15 //
16 //
17 //
18 //
19 //
20 //
21 //
22 //
23 //
24 //
25
26
8
For the same reasons, venue is improper under the RICO venue statute. Although not
27 pled as a basis for venue, 18 U.S.C. § 1965(a) states that “[a]ny civil action or proceeding under
this chapter against any person may be instituted in the district court of the United States for any
28 district in which such person resides, is found, has an agent, or transacts his affairs.”
PX01DOCS\968545.12 14
1 V. CONCLUSION.
2 For the foregoing reasons, the Momofuku Defendants respectfully request that the Court
3 dismiss them from this action without leave to amend, deny Plaintiff leave to conduct
4 jurisdictional discovery, and grant all other relief the Court deems necessary and proper.
5 Dated: February 16, 2018 BRYAN CAVE LLP

6
7
By: /s/ Tracy M. Talbot______________
8 Tracy M. Talbot
9 San Francisco, California 94111-4070
Telephone: (415) 675-3400
10 Facsimile: (415) 675-3434
11 Jacob A. Kramer (admitted pro hac vice)

BRYAN CAVE LLP

12 1155 F Street NW
Washington, DC 20004-1357
13 Telephone: (202) 508-6153
Bryan Cave LLP
Facsimile: (202) 220-7453

(415) 675-3400
14
Lawrence G. Scarborough
15 BRYAN CAVE LLP
Two North Central Avenue, Suite 2100
16 Phoenix, Arizona 85004-4406
Telephone: (602) 364-7000
17 Facsimile: (602) 364-7070
18
Attorneys for Defendant Momofuku
19 171 First Avenue, LLC and David Chang
20
21
22
23
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25
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PX01DOCS\968545.12 15
Case 4:17-cv-05782-JSW Document 98-1 Filed 02/16/18 Page 1 of 4
1 Tracy M. Talbot (SBN 259786)

BRYAN CAVE LLP
3 Telephone: (415) 675-3400
Facsimile: (415) 675-3434
4 E-mail: tracy.talbot@bryancave.com
5 Lawrence G. Scarborough (Arizona State Bar No. 006965)

BRYAN CAVE LLP
7 Telephone: (602) 364-7000
Facsimile: (602) 364-7070
8 E-mail: lgscarborough@bryancave.com
9 Attorneys for Defendants Momofuku

171 First Avenue, LLC and David Chang
10
11 UNITED STATES DISTRICT COURT

12 DISTRICT OF NORTHERN CALIFORNIA

13 OAKLAND DIVISION
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14 TIMOTHY BROWN, Case No. 4:17-cv-05782-JSW

15 Plaintiff and Putative Class Representative,
16 vs.
17 140 NM LLC; BAR AGRICOLE, LLC; [PROPOSED] ORDER GRANTING
THADDEUS M. VOGLER; HOPEMOORELAIN, DEFENDANTS MOMOFUKU 171
18 LLC; RUSSELL MOORE; ALLISON HOPELAIN; FIRST AVENUE, LLC AND DAVID
DUENDE, LLC; PAUL CANALAS; ES VERDAD, CHANG’S MOTION TO DISMISS FOR
19 LLC; JOHN PALUSKA; ANDREW HOFFMAN; LACK OF PERSONAL JURISDICTION
GOLDEN GATE RESTAURANT ASSOCIATION; AND IMPROPER VENUE
20 UNION SQUARE HOSPITALITY GROUP, LLC;
DANIEL MEYER; SABATO SAGARIA; [Filed concurrently with Defendants’
21 CRAFTED HOSPITALITY, LLC; THOMAS Notice of Motion and Motion to Dismiss;
COLICCHIO; MOMOFUKU 171 FIRST AVENUE, Memorandum of Points and Authorities
22 LLC; DAVID CHANG; MARLOW, INC.; in Support Thereof]
ANDREW TARLOW; HAPPY COOKING
23 HOSPITALITY, INC.; GABRIEL STULMAN; DATE: April 6, 2018
MOLINERO, LLC; JONAH MILLER; NATE TIME: 9:00 a.m.
24 ADLER; BIRTH OF THE COOL, LLC; DANIEL COURTROOM: 5
HUMM; WILL GUIDARA; NEW YORK CITY JUDGE: Hon. Jeffrey S. White
25 HOSPITALITY ALLIANCE, INC.; ANDREW
RIGIE, and DOES 1-500, Complaint Filed: October 6, 2017
26 Trial Date: Not Assigned
Defendants.
27
28
[PROPOSED] ORDER - CASE NO. 4:17-CV-05782-JSW

1 The Motion of Defendants Momofuku 171 First Avenue, LLC and David Chang
2 (collectively, the “Momofuku Defendants”) to Dismiss the Complaint of Plaintiff Timothy Brown
3 came on for the hearing on April 6, 2018 at 9 a.m. in the above-entitled Court.
4 The Court, having read and considered the Motion papers filed in support of and in
5 opposition to the Motion, the arguments of counsel at the hearing, and the case file in this action,
6 finds that the Court lacks personal jurisdiction over the Momofuku Defendants. In the alternative,
7 the Court finds that venue in the Northern District of California is improper as to the Momofuku
8 Defendants. Good cause appears for the requested relief,
9 IT IS HEREBY ORDERED THAT:
10 1. The Momofuku Defendants’ Motion to Dismiss Plaintiff’s Complaint is hereby
11 GRANTED in its entirety without leave to amend.

12 2. Judgment shall be entered in favor of the Momofuku Defendants, and Plaintiff shall
13 take nothing by his Complaint against the Momofuku Defendants.

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14 IT IS SO ORDERED.
15
16
Date: ______
17 JEFFREY S. WHITE
Judge of the United States District Court, Northern
18 District
19
20
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22
23
24
25
26
27
28
PX01DOCS\970213.1 1
[PROPOSED] ORDER - CASE NO. 4:17-CV-05782-JSW

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Case 4:17-cv-05782-JSW Document 98 Filed 02/16/18 Page 1 of 20

1 Tracy M. Talbot (Cal. State Bar No. 259786)

5 Lawrence G. Scarborough (Arizona State Bar No. 006965)

9 Attorneys for Defendants Momofuku

11 UNITED STATES DISTRICT COURT

12 DISTRICT OF NORTHERN CALIFORNIA

14 TIMOTHY BROWN, Case No. 4:17-cv-05782-JSW

2 In this action, Plaintiff Timothy Brown (“Plaintiff”)—a resident of Minnesota—asserts that

3 he was overcharged by virtue of a purported conspiracy among Defendants to eliminate tipping in

10 Chang (collectively, the “Momofuku Defendants”)—both citizens of New York—based on a sole,

22 limited discovery[.]”) (citation omitted).

26 appropriate in this district. Accordingly, the Momofuku Defendants respectfully move to be

3 SUMMARY OF ARGUMENT ....................................................................................... i

4 TABLE OF AUTHORITIES ........................................................................................... iii

5 STATEMENT OF THE ISSUES TO BE DECIDED ..................................................... 1

6 MEMORANDUM OF POINTS AND AUTHORITIES ................................................. 2

8 II. PLAINTIFF FAILS TO ESTABLISH A BASIS FOR PERSONAL

12 Momofuku 171 ............................................................................ 7

14 C. Plaintiff Also Cannot Establish Specific Jurisdiction .............................. 8

18 3. It Would be Unreasonable to Exercise Specific Jurisdiction ....... 11

19 III. PLAINTIFF IS NOT ENTITLED TO JURISDICTIONAL DISCOVERY ........ 12

3 Action Embroidery Corp. v. Atl. Embroidery, Inc.,

88 F. Supp. 3d 299 (D. Vt. 2015) .............................................................................. 6

14 GEC US 1 L.L.C. v. Frontier Renewables, L.L.C.,

17 Goodyear Dunlop Tire Operations, S.A. v. Brown,

20 In re W. States Wholesale Nat. Gas Antitrust Litig.,

22 Logtale, Ltd. v. IKOR, Inc.,

25 Michael v. New Century Fin. Servs.,

2 Piedmont Label Co. v. Sun Garden Packing Co.,

5 Residents of Bayview Hunter Point v. Lennar Hous. Dev. Inc.,

8 Sec. Alarm Fin. Enters., L.P. v. Nebel,

11 Terracom v. Valley Nat’l Bank,

49 F.3d 555 (9th Cir. 1995) ....................................................................................... i, 10, 11, 12

15 Statutes and Rules:

16 15 U.S.C. § 15(a) .......................................................................................................... 13

18 18 U.S.C. § 1965(a) ...................................................................................................... 14

19 28 U.S.C. § 1391(b)(2) ................................................................................................. 5, 13

20 28 U.S.C. § 1406(a) ...................................................................................................... 13

21 Fed. R. Civ. P. 12(b)(2) ................................................................................................ i, 1, 3

22 Fed. R. Civ. P. 12(b)(3) ................................................................................................ i, 1, 3

1 TO ALL PARTIES AND THE CLERK OF THE COURT:

10 STATEMENT OF THE ISSUES TO BE DECIDED

18 By: /s/ Tracy M. Talbot______________

1 MEMORANDUM OF POINTS AND AUTHORITIES

2 In this action, Plaintiff Timothy Brown—a resident of Minnesota—asserts that he was

3 overcharged by virtue of a purported conspiracy among the Defendants to eliminate tipping in a

10 number of procompetitive reasons for unilaterally implementing a no-tipping model. For

19 opposed to “rational and competitive business strategy unilaterally prompted by common

6 even basic requirements authorizing suit in federal court.

8 Defendants—both citizens of New York—based on a single, threadbare allegation:

7 which fail to refer to the Momofuku Defendants specifically):

8  “Defendant, Momofuku 171 First Avenue, LLC (‘Momofuku’), is a limited liability

Momofuku.” (Id. ¶ 27.)

43 (quoting 28 U.S.C. § 1391(b)(2)).)

20 (sustaining dismissal). “A plaintiff makes a ‘prima facie’ showing by producing admissible

8 jurisdiction or specific jurisdiction. Id. at 1779-80.

9 A. Plaintiff Fails To Plead A Factual Basis For Personal Jurisdiction.

14 specifically concern the charged conspiracy.” (Complaint ¶ 46 (emphasis added).)

27 dismissed from this action.

1 B. Plaintiff Cannot Establish General Personal Jurisdiction.

7 1. California Courts Lack General Jurisdiction Over Momofuku 171.

17 well as easily ascertainable.” Daimler, 134 S. Ct. at 760 (citation omitted).

28 to general jurisdiction. Michael, 65 F. Supp. 3d at 804 (citation omitted).