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Case No.: 5:17-cv-00017-EJD

ORDER DENYING PLAINTIFFS’ APPLICATION FOR PRELIMINARY INJUNCTION AND 

MOTION FOR EXPEDITED DISCOVERY

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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

OOO BRUNSWICK RAIL 

MANAGEMENT, et al.,

Plaintiffs,

v.

RICHARD SULTANOV, et al.,

Defendants.

Case No. 5:17-cv-00017-EJD

ORDER DENYING PLAINTIFFS’ 

APPLICATION FOR PRELIMINARY 

INJUNCTION AND MOTION FOR 

EXPEDITED DISCOVERY

Re: Dkt. Nos. 3, 23

Plaintiffs OOO Brunswick Rail Management and Brunswick Rail Group Limited (together, 

“Brunswick”) allege that defendants Paul Ostling and Richard Sultanov misappropriated 

Brunswick’s confidential information. Complaint ¶¶ 31–48, Dkt. No. 1. This Court previously 

granted Brunswick’s ex parte application to preserve evidence and for a temporary restraining 

order (“TRO”) to prevent Sultanov and Ostling from disseminating the confidential information at 

issue. Dkt. No. 15 (“TRO Order”). The order directed Sultanov and Ostling to show cause why a 

preliminary injunction should not issue. Id. Brunswick has also moved for expedited discovery.

The Court held a hearing on January 20, 2017, on Brunswick’s application for a 

preliminary injunction and its motion for expedited discovery. The Court will DENY both 

requests for lack of personal jurisdiction over Ostling and Sultanov.

Case 5:17-cv-00017-EJD Document 52 Filed 01/20/17 Page 1 of 7
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Case No.: 5:17-cv-00017-EJD

ORDER DENYING PLAINTIFFS’ APPLICATION FOR PRELIMINARY INJUNCTION AND 

MOTION FOR EXPEDITED DISCOVERY

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I. BACKGROUND

Defendants Sultanov and Ostling are former employees of Brunswick. Br. in Supp. of Pls.’ 

Ex Parte Appl. at 2–3, Dkt. No. 4. Brunswick alleges that Sultanov improperly sent confidential 

information to his personal email account; that Ostling improperly received confidential 

information at his personal email account from his former assistant; and that both Defendants

improperly forwarded that information to Brunswick’s creditors. Id. at 5–8. Brunswick also 

alleges that Sultanov has not returned a company-issued laptop and mobile phone containing 

sensitive information. Id. at 1.

To preserve evidence of the alleged misappropriation and to prevent further dissemination

of confidential materials, Brunswick filed an ex parte application for an order to seize and preserve 

evidence, for expedited discovery, for a TRO, and to show cause why a preliminary injunction 

should not issue. Dkt. No 3; TRO Order at 1–2. The Court ordered third parties Google and 

Rackspace (the companies that provided personal email accounts to Sultanov and Ostling) to 

preserve data associated with Defendants’ email accounts. TRO Order at 6. The Court further 

ordered Sultanov not to access or modify his company-issued laptop and phone, and to deliver 

those devices to the Court at the hearing. Id. at 6–7. Finally, the Court temporarily enjoined 

Sultanov and Ostling from destroying evidence and from further disseminating Brunswick’s 

confidential information. Id. at 7–8. The Court rejected the request for expedited discovery 

because Brunswick did not show good cause, but the Court allowed Brunswick to explain its 

request in a separate motion. The Court set a hearing for January 20, 2017, to show cause why a 

preliminary injunction should not issue. Id. at 6.

After the Court issued its order on Brunswick’s ex parte application, Brunswick filed a 

supplemental brief in support of injunctive relief (Dkt. No. 17) and a motion for expedited 

discovery (Dkt. No. 23). Ostling and Sultanov have filed a response to the Court’s order to show 

cause (Dkt. No. 32) and an opposition to Brunswick’s motion for expedited discovery (Dkt. No. 

23).

Case 5:17-cv-00017-EJD Document 52 Filed 01/20/17 Page 2 of 7
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Case No.: 5:17-cv-00017-EJD

ORDER DENYING PLAINTIFFS’ APPLICATION FOR PRELIMINARY INJUNCTION AND 

MOTION FOR EXPEDITED DISCOVERY

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United States District Court

Northern District of California

II. DISCUSSION

Ostling and Sultanov argue that this Court lacks general and specific personal jurisdiction 

over them. Defs.’ Resp. to the Ct.’s Order to Show Cause (“Resp.”) at 15, Dkt. No. 50-3.

General personal jurisdiction exists in the forum where a defendant is domiciled. Goodyear 

Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 924 (2011); Gaudin v. Remis, 379 F.3d 

631, 636 (9th Cir. 2004) (“A person’s domicile is her permanent home, where she resides with the 

intention to remain or to which she intends to return.”). Defendants argue that this Court lacks 

general personal jurisdiction because neither Defendant lives in California. Resp. at 15–16. 

Ostling lives in Connecticut and last visited California in 2014; Sultanov used to live in California, 

but since 2007 he has lived in Russia and has visited California only twice for brief periods. Id.

Brunswick’s complaint alleges that Sultanov “maintains a residence” in Monterey, California, but 

Defendants explain that the Monterey address is “a family friend’s property that Mr. Sultanov 

sometimes uses as a mailing address.” Compl. ¶ 4; Resp. at 16. The Court finds that no general 

personal jurisdiction exists because Defendants are not domiciled in California.

Specific personal jurisdiction exists if three conditions are met: (1) the defendant 

purposefully directed activities toward the forum or purposefully availed itself of the benefits and 

protections of the forum’s laws; (2) the claim arises out of the defendant’s forum-related activities; 

and (3) exercise of jurisdiction would be reasonable. Schwarzenegger v. Fred Martin Motor Co., 

374 F.3d 797, 802 (9th Cir. 2004). Ostling and Sultanov argue that this Court lacks specific 

personal jurisdiction for several reasons. First, they live elsewhere and have no current ties to the 

state. Resp. at 16–17. Second, their employment agreements are governed by the laws of Russia, 

Bermuda, the United Kingdom, and Wales. Id. at 17. Third, Brunswick’s claims do not arise from 

any activity that happened in California. Id. Sultanov was not in California when he sent 

information to his personal email account; Ostling was not in California when he received 

materials at his personal email account from his former assistant; neither of them was in California 

when they forwarded the information; the recipients of those emails were also not in California; 

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Case No.: 5:17-cv-00017-EJD

ORDER DENYING PLAINTIFFS’ APPLICATION FOR PRELIMINARY INJUNCTION AND 

MOTION FOR EXPEDITED DISCOVERY

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and the dissemination of the information at issue had no effect in California. Id. If Brunswick 

suffered harm because of Ostling’s and Sultanov’s actions, it was only in Russia (as to OOO 

Brunswick Rail Management) or Bermuda (as to Brunswick Rail Group Limited). Id. Since 

Ostling and Sultanov have no ties to California and no reason to anticipate being sued in 

California, it would be unreasonable for this Court to exercise personal jurisdiction over them. Id.

In response, Brunswick argues that specific personal jurisdiction exists because Ostling 

and Sultanov both emailed confidential information to Gmail addresses. Pls.’ Suppl. Br. in Supp. 

of Ex Parte Appl. (“Suppl. Br.”) at 2–3, Dkt. No. 17. Sultanov sent information to his personal 

Gmail account, and Ostling sent information to the personal Gmail account of Brunswick’s Chief 

Financial Officer. Id. According to Brunswick, Ostling and Sultanov’s use of Gmail creates 

personal jurisdiction in California because Gmail is a service of Google, Inc., which is 

headquartered in California, and the Gmail servers may be located in California. Id.

Brunswick offers two justifications for this theory. First, Google’s terms of use contain a 

forum selection clause indicating that claims will be litigated exclusively in the federal and state 

courts of Santa Clara County. Id. at 3. This argument fails, however, because Google’s terms of 

use apply only to disputes with Google. Resp. at 20 (“These terms control the relationship between 

Google and you. They do not create any third party beneficiary rights.”).

Second, Brunswick argues that Ostling and Sultanov “have purposefully availed 

themselves of California and meet the ‘effects’ test establishing specific jurisdiction.” Suppl. Br. 

at 3. Under Brunswick’s theory, every one of Gmail’s one billion users (Resp. at 18) would be 

subject to personal jurisdiction in California based solely on their email activity. Jurisdiction 

would also extend to non-Gmail users who send messages to Gmail recipients. The cases 

Brunswick cites do not support such an expansive theory. See U.S. Chess Fed’n, Inc. v. Polgar, 

No. C 08-05126 MHP, 2009 WL 3334882 (N.D. Cal. Oct. 14, 2009) (holding that personal 

jurisdiction existed when a Washington defendant gained unauthorized access to the email account

of a California plaintiff); Bancroft & Masters, Inc. v. Augusta Nat’l. Inc., 223 F.3d 1082, 1088

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Case No.: 5:17-cv-00017-EJD

ORDER DENYING PLAINTIFFS’ APPLICATION FOR PRELIMINARY INJUNCTION AND 

MOTION FOR EXPEDITED DISCOVERY

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(9th Cir. 2000) (holding that personal jurisdiction existed when an Illinois defendant registered a 

domain name in an attempt to “extort compensation” from a California plaintiff); Yahoo! Inc. v. 

La Ligue Contre Le Racisme Et L’Antisemitisme, 433 F.3d 1199 (9th Cir. 2006) (holding that 

personal jurisdiction existed when a French defendant sent a cease-and-desist letter, effected two 

services of process, and obtained two orders in French courts directing a California plaintiff to 

take action in California); Leibman v. Prupes, No. 2:14-cv-09003-CAS(VBKx), 2015 WL 898454, 

at *10 (C.D. Cal. Mar. 2, 2015) (holding that personal jurisdiction existed where a New Jersey 

defendant sent extortionate emails to a California plaintiff, and noting that “isolated emails may 

rarely, if ever, give rise to personal jurisdiction, because they are by their nature not tied to 

specific physical locations. . . . Here, it is defendant’s alleged actions of sending extortionate 

emails to a targeted California resident that create minimum contacts with California”); Facebook, 

Inc. v. ConnectU LLC, No. C 07-01389 RS, 2007 WL 2326090, at *2 (N.D. Cal. Aug. 13, 2007)

(holding that personal jurisdiction existed where Washington defendants gained unauthorized 

access to Facebook accounts “by logging into Facebook using borrowed or falsified login

information” and, once logged in, scraped data from users’ profiles); Dole Food Co., Inc. v. Watts, 

303 F.3d 1104 (9th Cir. 2002) (holding that personal jurisdiction existed where European 

defendants fraudulently induced a California company to lease warehouse space in the 

Netherlands); Dinar Corp. Inc. v. Sterling Currency Group, LLC, No. 2:13-cv-02106-APG-PAL, 

2014 WL 4072023 (D. Nev. Aug. 15, 2014) (finding a lack of personal jurisdiction in Nevada 

where a Nevada company sued a Georgia competitor for spreading disparaging information 

online); NetApp, Inc. v. Nimble Storage, Inc., 41 F. Supp. 3d 816 (N.D. Cal. 2014) (finding that 

personal jurisdiction existed where an Australian resident gained unauthorized access to computer 

systems in California); Keeton v. Hustler Magazine, Inc., 465 U.S. 770 (1984) (holding that 

personal jurisdiction existed in New Hampshire where a New York plaintiff sued an Ohio 

defendant that circulated magazines in New Hampshire).

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Case No.: 5:17-cv-00017-EJD

ORDER DENYING PLAINTIFFS’ APPLICATION FOR PRELIMINARY INJUNCTION AND 

MOTION FOR EXPEDITED DISCOVERY

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The cases Brunswick cites are distinguishable from the present dispute.1 All of them 

involved harm that occurred in the forum state. See, e.g., U.S. Chess Fed’n, 2009 WL 3334882 

(involving harm to a California plaintiff when a Washington defendant intruded into the plaintiff’s 

email account); Leibman, 2015 WL 898454 (involving harm to a California plaintiff who received 

extortionate emails from a New Jersey defendant); Keeton, 465 U.S. 770 (involving libel that 

occurred in the forum state, New Hampshire, that injured a New York plaintiff). In this case, by 

contrast, Ostling and Sultanov’s use of Gmail was incidental to the harms Brunswick alleges in its 

complaint. Brunswick alleges that it was harmed when Ostling and Sultanov improperly 

disseminated confidential information, but Brunswick has not established that it suffered harm in 

California.

The Court concludes that Brunswick has not met its burden of showing that the Court has 

personal jurisdiction over Ostling and Sultanov. Boschetto v. Hansing, 539 F.3d 1011, 1016 (9th 

Cir. 2008) (holding that the plaintiff bears the burden of showing the defendant’s connection to the 

forum). Brunswick contends that, at the preliminary injunction stage, a plaintiff “need only make a 

prima facie showing of jurisdictional facts to withstand the motion to dismiss. . . . That is, the 

plaintiff need only demonstrate facts that if true would support jurisdiction over the defendant.”

Pls.’s Reply Br. in Supp. of Mot. for TRO at 2, Dkt. No. 47 (quoting Ballard v. Savage, 65 F.3d 

1495, 1498 (9th Cir. 1995)). However, even if true, Brunswick’s allegations—that Ostling and 

Sultanov sent confidential materials to Gmail accounts, and that Google and its servers are located

in California—do not establish specific personal jurisdiction. Id. at 2–8. Brunswick has also failed 

to show that Sultanov’s use of a Monterey address is sufficient to establish that he is domiciled in 

 

1 Brunswick also cites SolarBridge Techs., Inc. v. Ozkaynak, No. C 10-cv-03769-EJD, 2012 WL 

2150308 (N.D. Cal. June 12, 2012), in which a defendant in Turkey used a Yahoo! Inc. email 

address to misappropriate trade secrets belonging to a Delaware company based in Texas. This 

Court held that personal jurisdiction existed because Yahoo! is based in San Jose, California. Id. at 

*3–4. In that case, the defendant did not file an answer or otherwise respond to the complaint. Id.

at *1. The plaintiffs moved for default judgment and a preliminary injunction, which the defendant 

did not oppose. Id. Here, by contrast, Ostling and Sultanov have raised appropriate challenges to 

personal jurisdiction.

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Case No.: 5:17-cv-00017-EJD

ORDER DENYING PLAINTIFFS’ APPLICATION FOR PRELIMINARY INJUNCTION AND 

MOTION FOR EXPEDITED DISCOVERY

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California. Compl. ¶ 4; Resp. at 16.

The parties offer several other arguments for and against injunctive relief and expedited 

discovery. Because this Court lacks personal jurisdiction over the Defendants, it may not 

adjudicate these remaining issues. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 575 (1999) 

(“Personal jurisdiction . . . is an essential element of district court jurisdiction, without which the 

court is powerless to proceed to an adjudication.”).

III. CONCLUSION

Brunswick has not shown that this Court has personal jurisdiction over Ostling and 

Sultanov. The Court orders as follows:

1. The Court DENIES Brunswick’s application for a preliminary injunction and its 

motion for expedited discovery.

2. The Court’s order granting a temporary restraining order (Dkt. No. 15) is 

DISSOLVED.

3. At the hearing on January 20, 2017, counsel for Defendants indicated that counsel 

would prevent anyone from accessing or modifying the company-issued laptop and mobile phone 

that Brunswick issued to Sultanov. The laptop and mobile phone shall remain in the custody of 

Defendants’ counsel and shall not be accessed or modified without a court order.

IT IS SO ORDERED.

Dated: January 20, 2017

______________________________________

EDWARD J. DAVILA

United States District Judge

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