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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

TARA FARRELL, HENLY VELARDE, 

and DOUGLAS WELLS, 

individually and on behalf of 

all others similarly 

situated,

Plaintiffs,

v.

NEW MILLENNIUM CONCEPTS, 

LTD.,

Defendant.

No. 2:21-cv-01691-JAM-JPD

ORDER GRANTING DEFENDANT’S

MOTION TO CHANGE VENUE AND 

DENYING AS MOOT DEFENDANT’S 

MOTIONS TO DISMISS

Before the Court is New Millennium Concepts, LTD’s (“NMCL” 

or “Defendant”) Motion to Dismiss under Rule 12(b)(2) for lack of 

personal jurisdiction; Motion to Dismiss under 12(b)(6) for 

failure to state a claim; and Motion to Change Venue. See

12(b)(2) Mot., ECF No. 11; Mot. to Change Venue, ECF No. 12; 

12(b)(6) Mot., ECF No. 13. Tara Farrell, Henly Velarde, and 

Douglas Wells (collectively “Plaintiffs”) opposed these Motions.

See Opp’n to 12(b)(2) Mot., ECF No. 18; Opp’n to Mot. to Change 

Venue, ECF No. 19; Opp’n to 12(b)(6) Mot., ECF No. 17. Defendant 

replied. See 12(b)(2) Mot. Reply, ECF No. 24; Mot. to Change 

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Venue Reply, ECF No. 25; 12(b)(6) Mot. Reply, ECF No. 26. For 

the reasons set forth below, the Court finds it lacks personal 

jurisdiction over NMCL and therefore transfers the case to the 

Northern District of Texas pursuant to 28 U.S.C. § 1631.1

I. BACKGROUND

NMCL is a Texas based supplier of gravity-fed water 

filtration systems, best known for its water filter systems under 

the “Berkey” brand name. Compl. ¶¶ 2, 3, 12, ECF No. 1. 

Plaintiffs Tara Farrell, Henly Velarde, and Douglas Wells are 

California residents who purchased NMCL products through Amazon 

and other resellers. Id. ¶¶ 8-10. NMCL advertises these 

purification systems as water purifiers that last for 3,000 

gallons of water per filter. Id. ¶ 2. However, Plaintiffs 

allege this is false and misleading as the filters fail to 

adequately reduce contaminants. Id. ¶ 4. 

Accordingly, Plaintiffs brought this action in the Eastern 

District of California individually, and on behalf of those 

similarly situated for: (1) breach of express warranty; 

(2) breach of the implied warranty of merchantability; (3) unjust 

enrichment and restitution; (4) violation of California’s Unfair 

Competition Law; (5) violation of California’s False Advertising 

Law; and (6) violation of California’s Consumer Legal Remedies 

Act. 

NMCL now moves to dismiss for lack of personal jurisdiction 

and failure to state a claim, or to transfer the case to the 

1 This motion was determined to be suitable for decision without 

oral argument. E.D. Cal. L.R. 230(g). The hearing was 

scheduled for January 25, 2022.

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Northern District of Texas. 12(b)(2) Mot. to Dismiss; 12(b)(6) 

Mot. to Dismiss; Mot. to Change Venue. 

II. OPINION

A. Legal Standard

Rule 12(b)(2) of the Federal Rules of Civil Procedure 

authorizes a defendant to seek dismissal of an action for lack 

of personal jurisdiction. Fed. R. Civ. P. 12(b)(2). Plaintiff 

bears the burden of showing jurisdiction is proper. Morrill v. 

Scott Fin. Corp., 873 F.3d 1136, 1141 (9th Cir. 2017). Because 

no evidentiary hearing occurred in this action, “the plaintiff 

need only make a prima facie showing of jurisdictional facts.” 

Id. (citing to Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 

797, 800 (9th Cir. 2004)). In such a case, the court does not 

assume the truth of allegations in the pleading that are 

contradicted by affidavit. Marvix Photo, Inc. v. Brand Tech., 

Inc., 647 F.3d 1218, 1123 (9th Cir. 2011). Factual disputes, 

however, are resolved in the plaintiff’s favor. Id. If a court 

concludes it lacks jurisdiction, it may transfer the action to 

another court in which the action could have been brought to 

cure a want of jurisdiction if doing so is in the interest of 

justice. 28 U.S.C. § 1631. 

B. Analysis

In California, federal due process principles determine 

whether a court may assert personal jurisdiction over a nonconsenting defendant. See Daimler AG v. Bauman, 571 U.S. 117, 

125 (2014) (“California’s long-arm statute allows the exercise 

of personal jurisdiction to the full extent permissible under 

the U.S. Constitution.”). Due process requires that the 

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“defendant must have at least ‘minimum contacts’ with the 

relevant forum such that the exercise of jurisdiction ‘does not 

offend traditional notions of fair play and substantial 

justice.’” Schwarzenegger, 374 F.3d at 801 (quoting Int’l Shoe 

Co. v. Washington, 326 U.S. 310, 316 (1945)). There are two 

kinds of personal jurisdiction a forum state may exercise over a 

defendant: general and specific. Morrill, 873 F.3d at 1142. 

1. General Jurisdiction

The first type of personal jurisdiction, general 

jurisdiction, exists only “if the defendant has ‘continuous and 

systematic general business contacts’ with a forum state” so as 

to render them essentially at home in the forum. Id. (internal 

citations omitted). For a corporation, the paradigm forum for 

the exercise of general jurisdiction is its place of 

incorporation and principal place of business. Daimler AG, 571 

U.S. at 137. Only in an “exceptional” case will a 

“corporation’s operations in a forum other than its formal place 

of incorporation or principal place of business [. . .] be so 

substantial and of such a nature as to render the corporation at 

home in that State.” Id. at 139 n.19. 

NMCL is not “at home” in California. It is a Texas limited 

partnership with its principal place of business in Bedford, 

Texas. Ex 1. to 12(b)(2) Mot. (“Elliott Decl.”) ¶ 2, ECF No. 

11-1. This is not an “exceptional” case where NMCL’s contacts 

with California are so substantial and of such a nature that 

they render NMCL subject to general jurisdiction in California, 

as it has no offices, operations, or employees here. Id. ¶ 4. 

Plaintiffs do not contend otherwise. See Opp’n to 12(b)(2) Mot.

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at 2. Accordingly, the Court finds general jurisdiction does 

not exist over Defendant. 

2. Specific Jurisdiction

The second type of jurisdiction, specific jurisdiction, 

permits a court to exercise jurisdiction when the suit arises 

out of or relates to the defendant’s contacts with the forum. 

Bristol-Myers Squibb Co. v. Superior Ct. of Cal., S.F. Cty., 137 

S. Ct. 1773, 1780 (2017). In the Ninth Circuit, specific 

jurisdiction is appropriate if: (1) a non-resident defendant 

purposefully directs their activities towards the forum or 

performs some act by which they purposefully avail themselves of 

the privilege of conducting activities in the forum, thereby 

invoking the benefits and protections of its laws; (2) the claim 

arises out of or relates to the defendant’s forum related 

activities; and (3) the exercise of jurisdiction comports with 

fair play and substantial justice. Schwarzenegger, 374 F.3d at 

802. The plaintiff bears the burden of satisfying the first two 

prongs of the test. Id. If the plaintiff fails to satisfy 

either of these prongs, personal jurisdiction is not established 

in the forum state. Id. If the plaintiff does satisfy the 

first two prongs, the burden then shifts to the defendant to 

present a compelling case that the exercise of jurisdiction 

would not be reasonable. Id.

Plaintiffs contend NMCL purposefully directed its activities 

toward California. Opp’n to 12(b)(2) Mot. at 4-5. Purposeful 

direction requires (1) an intentional act, (2) expressly aimed at 

the forum state, (3) causing harm that the defendant knows is 

likely to be suffered in the forum state. Yahoo! Inc. v. La 

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Ligue Contre Le Racisme Et L’Antisemitisme, 433 F.3d 1199, 1206 

(9th Cir. 2006). NMCL concedes it committed an intentional act –

selling and advertising its products. See Opp’n to 12(b)(2) Mot. 

at 4; 12(b)(2) Mot. Reply at 1. The issue is whether it 

expressly aimed such conduct at California. 

In assessing specific jurisdiction through Internet conduct, 

“the common thread [. . .] is that the likelihood that personal 

jurisdiction can be constitutionally exercised is directly 

proportionate to the nature and quality of the commercial 

activity that an entity conducts over the Internet.” Cybersell, 

Inc. v. Cybersell, Inc., 130 F.3d 414, 419 (9th Cir. 1997)

(internal quotation marks and citation omitted). Courts have 

adopted a sliding scale when assessing whether operating a 

website can give rise to sufficient minimum contacts with the 

forum: 

At one end of the scale are “passive” websites which 

merely display information, such as an advertisement. 

Personal jurisdiction is not appropriate when a website 

is merely [. . .] passive. At the other end of the 

scale are “interactive” websites which function for 

commercial purposes and where users exchange 

information. Personal jurisdiction is appropriate when 

an entity is conducting business over the internet. 

j2 Cloud Servs., Inc. v. Fax87, No. 13-05353 DDP (AJWX), 2017 WL

1535083, at *6 (C.D. Cal. Apr. 27, 2017) (quoting American Auto. 

Ass’n, Inc. v. Darba Enter., Inc., No. C 09-510, 2009 WL 1066506, 

at *4 (N.D. Cal. Apr. 21, 2009)). Internet advertisements alone 

are insufficient. Cybersell, Inc., 130 F.3d 414 at 418. 

Something more is required. Id.

Plaintiffs, relying on Loomis v. Slendertone Dist., Inc., 

420 F.Supp.3d 1046 (S.D. Cal. 2019), argue NMCL’s website, at the 

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time, provided enough interactive features such that personal 

jurisdiction in California is appropriate. Opp’n to 12(b)(2) 

Mot. at 6. These interactive features were tailored to customer 

support. Specifically, the website enabled a consumer to report 

a defective product under warranty. Ex. 7 to Opp’n to Mot. to 

Change Venue at 10-122, ECF No. 23-1. If approved, the website 

indicated the consumer would be contacted by email with return 

instructions. Id. at 12-13. Additionally, the website provided 

customer services’ contact information, information about the 

products, and a store locator that provided information of where 

authorized dealers’ stores could be found, including in 

California. Id.

In Loomis, the Court found specific jurisdiction over Flex 

Belt was warranted in California. 420 F.Supp.3d at 1070. 

Specifically, the Court found Flex Belt maintained an interactive 

website, since its products were sold through the site. Id. 

Moreover, Flex Belt directly targeted California through its 

advertisements by stating “We put The Flex Belt in the hands of 

the best Trainers in Los Angeles” and “Ellen K from the Ryan 

Seacrest Show uses The Flex Belt - #1 Female DJ in Los Angeles.” 

Id. The Court noted that “[b]y placing Flex Belt in the hands of 

California-specific individuals, Defendant ha[d] targeted a 

California fitness community to help advertise its product and 

thus went beyond merely making a connection between Defendant and 

Plaintiff.” Id. Because “Defendant operated an interactive, 

commercial website that expressly targeted California through 

2 The page numbers referenced are to those issued by the Court on 

top of the exhibit. 

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capitalizing on its influential fitness community”, and had a 

designated agent for service of process and registration with the 

California Secretary of State, the Court found Flex Belt had 

purposefully directed its activities towards California. Id.

Here, unlike Loomis, NMCL does not sell its products online

nor have marketing or advertising campaigns deliberately 

targeting California consumers. Elliott Decl. ¶¶ 5-7, 18-19. 

That California residents could go online and submit a warranty 

claim or contact customer support is insufficient to establish 

personal jurisdiction in California. See Marvix Photo, Inc., 647 

F.3d at 1231 (“Not all material placed on the Internet is, solely 

by virtue of its universal accessibility, expressly aimed at 

every state in which it is accessed.”). Plaintiffs point to 

various blogposts on NMCL’s website discussing current events 

concerning water and their impact on various states, including 

California. Ex. 1 to Opp’n to Mot. to Change Venue ¶¶ 3(i)-(t) 

(“Bruce Decl.”), ECF No. 19-1. The Court finds this insufficient 

to conclude NMCL targeted California. 

Plaintiffs also argue that specific jurisdiction is 

warranted under an agency theory. Opp’n to 12(b)(2) Mot. at 6-8. 

Specifically, that because authorized dealers sold NMCL’s 

products in California, those contacts should be imputed to NMCL. 

Id. As NMCL points out, while the Supreme Court left open 

whether a plaintiff may establish specific jurisdiction under an 

agency theory, the Ninth Circuit “has expressed serious doubts as 

to whether any agency theory creates specific jurisdiction under 

the Daimler standard.” 12(b)(2) Reply at 3 (quoting Doe v. 

Compania Panamena de Aviacion, No. CV 21-2536 PSG (PLAx), 2021 WL 

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3012849, at *3 (C.D. Cal. July 14, 2021)). Regardless, 

Plaintiffs have failed to make out a prima facie case for any 

agency relationship. “Fundamental tenets of agency theory 

require that an agent ‘act on the principal’s behalf and subject 

to the principal’s control.’” Williams v. Yamaha Motor Co. Ltd., 

851 F.3d 1015, 1024 (9th Cir. 2017) (quoting Restatement (Third) 

of Agency § 1.01 (2006)). Plaintiffs have failed to demonstrate 

that NMCL had the right to control the authorized dealers’

activities. See Elliott Decl. ¶¶ 20, 21. Accordingly, they have 

failed to establish purposeful direction or availment. See LNS 

Enter. LLC v. Cont’l Motors, Inc., 22 F.4th 852, 863 (9th Cir. 

2022) (finding relationship with third party repair shops 

insufficient to supply minimum contacts with the forum). 

Because Plaintiffs have not carried their burden on the 

first two prongs, they have not demonstrated personal 

jurisdiction over NMCL is proper in this state. Schwarzenegger, 

374 F.3d at 802. NMCL is a Texas limited partnership with its 

principal place of business in Bedford, Texas. See Mot. to 

Change Venue at 2. Thus, the Northern District of Texas will 

have general jurisdiction over it. Accordingly, transfer to the 

Northern District of Texas is appropriate. See Miller v. 

Hambrick, 905 F.2d 259, 262 (9th Cir. 1990) (noting that usually 

transfer will be in the interest of justice because dismissal of 

an action that could be brought elsewhere is time consuming and 

justice defeating). 

III. ORDER

For the reasons set forth above, Defendant’s Motion to 

Change Venue is GRANTED and this action shall be transferred to 

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the Northern District of Texas pursuant to 28 U.S.C. § 1631 to 

cure a lack of personal jurisdiction. Defendants’ Motions to 

Dismiss and Plaintiffs’ request for jurisdictional discovery are 

DENIED as MOOT. 

IT IS SO ORDERED.

Dated: March 29, 2022

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