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REPLY IN SUPPORT OF MOTION TO DISMISS

60008871.1

Polsinelli LLP

2049 Century Park East, Suite 2300

Los Angeles, CA 90067

310.556.1801

NOEL S. COHEN (SBN: 219645)

ncohen@polsinelli.com

POLSINELLI LLP 

2049 Century Park East, Suite 2900

Los Angeles, CA 90067

Telephone: (310) 556-1801

Facsimile: (310) 556-1802

Attorneys for Third-Party Defendants

FUJIFILM HUNT SMART SURFACES, LLC; 

FUJIFILM HUNT CHEMICALS U.S.A., INC.; 

FUJIFILM HOLDINGS AMERICA CORPORATION

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

MATSON NAVIGATION COMPANY, INC.

Plaintiff,

v.

THE SHERWIN-WILLIAMS COMPANY

Defendant.

Case No. 3:17-cv-00081 EDL

(Assigned to the Honorable Elizabeth D. 

Laporte)

FUJIFILM HUNT SMART SURFACES,

LLC, FUJIFILM HUNT CHEMICALS

U.S.A., INC. AND FUJIFILM HOLDINGS

AMERICA CORPORATIONS’ REPLY 

BRIEF ISO MOTION TO DISMISS

THE SHERWIN-WILLIAMS COMPANY

Third-Party Plaintiff,

v.

FUJIFILM HUNT SMART SURFACES,

LLC; FUJIFILM HUNT CHEMICALS

U.S.A., INC.; FUJIFILM HOLDINGS

AMERICA CORPORATION,

Third-Party Defendant.

[Filed Concurrently with Declarations of 

Patrick J. Rohan and Noel S. Cohen]
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REPLY IN SUPPORT OF MOTION TO DISMISS

60008871.1

Polsinelli LLP

2049 Century Park East, Suite 2300

Los Angeles, CA 90067

310.556.1801

TABLE OF CONTENTS

I. INTRODUCTION ....................................................................................................... 1

II. ARGUMENT............................................................................................................... 3

A. The Third-Party Complaint Should Be Dismissed for Lack of 

Personal Jurisdiction........................................................................................ 3

1. FHSM’s Alleged Dealings With Matson Do Not Confer 

Jurisdiction...........................................................................................3

2. FHSM’s Alleged Indemnity Obligation Does Not Support 

Jurisdiction...........................................................................................5

3. FHSM’s Alleged Breach of Its Indemnity Obligations Has 

No Relationship to California..............................................................6

4. The Insurance Cases Cited by S-W Do Not Apply. ............................7

5. The Controversy Does Not Arise from FHSM’s Contacts 

with the Forum.....................................................................................9

6. Exercise of Jurisdiction Would be Unfair and 

Unreasonable. ....................................................................................11

7. The Court Lacks Jurisdiction Over HLUS. .......................................11

B. The Third-Party Complaint Fails to State a Claim Against HLUS. .............. 11

III. CONCLUSION.......................................................................................................... 13
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REPLY IN SUPPORT OF MOTION TO DISMISS

60008871.1

Polsinelli LLP

2049 Century Park East, Suite 2300

Los Angeles, CA 90067

310.556.1801

TABLE OF AUTHORITIES

Page(s)

Cases

Abokasem v. Royal Indian Raj Int’l Corp.,

2011 WL 635222 (N.D. Cal. Feb. 11, 2011) ..............................................................................5

Am. Induction Techs., Inc. v. KBK, Inc.,

2012 WL 12888112 (C.D. Cal. April 17, 2012).........................................................................9

The Am. Ins. Co. v. R&Q Reinsurance Co.,

2016 WL 5930589 (N.D. Cal. Oct. 12, 2016).........................................................................6, 7

Arizona School Risk Retention Trust, Inc. v. NMTC, Inc.,

169 F.Supp.3d 931(D. Ariz. 2016) .............................................................................................5

Boschetto v. Hansing,

539 F.3d 1011 (9th Cir. 2008) ....................................................................................................3

Bristol-Myers Squibb Co. v. Superior Court,

137 S. Ct. 1773 (2017)..................................................................................................3, 4, 5, 10

Burger King Corp. v. Rudzewicz,

471 U.S. 462 (1985)....................................................................................................................3

Core-Vent Corp. v. Nobel Indus. AB,

11 F.3d 1482 (9th Cir. 1993) ....................................................................................................11

Cottle v. Western Skyways Inc.,

2017 WL 1383277 (E.D. Cal. April 17, 2017) .......................................................................3, 6

Daimler AG v. Bauman,

134 S. Ct. 746 (2014)............................................................................................................2, 11

Doe v. Unocal Corp.,

248 F.3d 915 (9th Cir. 2001) ......................................................................................................9

Farmers Ins. Exch. v. Portage La Prairie Mut. Ins. Co.,

907 F.2d 911 (9th Cir. 1990) ....................................................................................1, 5, 7, 8, 10

Flintkote Co. v. Gen. Accident Ass. Co. of Canada,

2004 WL 1977220 (N.D. Cal. Sept. 7, 2004) .........................................................................8, 9

Goodyear Dunlop Tires Operations, S.A. v. Brown,

131 S. Ct. 2846 (2011)......................................................................................................4, 5, 10
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REPLY IN SUPPORT OF MOTION TO DISMISS

60008871.1

Polsinelli LLP

2049 Century Park East, Suite 2300

Los Angeles, CA 90067

310.556.1801

Hawthorne v. Mid-Continent Cas. Co.,

2017 WL 1233116 (W.D. Wa. April 4, 2017)............................................................................8

Hirsch v. Blue Cross, Blue Shield of Kan. City,

800 F.2d 1474 (9th Cir. 1986) ....................................................................................................9

Holland Am. Line Inc., v. Wartsila N. Am., Inc.,

485 F.3d 450 (9th Cir. 2007) ......................................................................................................8

Hunt v. Erie Ins. Grp.,

728 F.2d 1244 (9th Cir. 1984) ..................................................................................................10

J. McIntyre Mach.. Ltd. v. Nicastro,

131 S. Ct. 2780 (2011) (opinion of Breyer, J.) .......................................................................3, 4

Key Tronic Corp. v. Smart Techs. ULC,

2016 WL 7104252 (E.D. Wash., Dec. 5, 2016)..........................................................................5

OMI Holdings Inc. v. Royal Insurance of Canada,

149 F.3d 1086 (10th Cir. 1998) ................................................................................................11

Peterson v. Kennedy,

771 F.2d 1244 (9th Cir. 1985) ....................................................................................................3

Picot v. Weston,

780 F.3d 1206 (9th Cir. 2015) ............................................................................................3, 5, 6

Scott v. Breeland,

792 F.2d 925 (9th Cir. 1986) ....................................................................................................10

Sher v. Johnson,

911 F.2d 1357 (9th Cir. 1990) ....................................................................................................3

Sibley v. Superior Court,

16 Cal. 3d 442 (1976) (en banc).................................................................................................7

Walden v. Fiore,

134 S. Ct. 1115 (2014)......................................................................................................6, 7, 10

World-Wide Volkswagen v. Woodson,

444 U.S. 286 (1980)......................................................................................................4, 7, 8, 10

Statutes

Fed. R. Civ. P. 12(b)(6)...............................................................................................................2, 11
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REPLY IN SUPPORT OF MOTION TO DISMISS

60008871.1

Polsinelli LLP

2049 Century Park East, Suite 2300

Los Angeles, CA 90067

310.556.1801

I. INTRODUCTION

S-W

1

does not address, and therefore concedes, that the Court lacks general jurisdiction 

over the FUJIFILM Parties. S-W asserts instead that the Court may exercise specific jurisdiction 

over FHSM (and over FHUS solely as FHSM’s successor) on two grounds. First, S-W contends 

that FHSM “was heavily involved in all aspects of the underlying transaction with Matson,” 

including (1) communications with Matson via email from FHSM’s offices in New Jersey, (2) 

shipment of the surface and tie coatings to S-W’s San Diego store, which S-W then resold and 

delivered to Matson for the painting of the Vessel in China, and (3) approximately one month 

after the coatings had allegedly failed, attendance at a brief visual inspection of the hull at a 

marina in Long Beach, California. S-W Mem. at 1, 3-5 and 12. Alternatively, relying 

exclusively on cases involving insurance carriers, S-W contends that FHSM’s alleged agreement 

under the FHSM Supply Agreement to defend and indemnify S-W “without geographical 

restriction” constitutes purposeful availment of the privilege of conducting activities in 

California. Id. at 1, 9-11.

Neither contention has merit. As demonstrated in movants’ Opening Mem., neither the 

use of the mails, telephone or other means of interstate communication, nor the shipment of goods 

into the state, constitutes purposeful availment. In addition, FHSM’s sole visit to the forum, after

the allegedly defective paint job in China, is not only too attenuated to confer jurisdiction, but it is 

well settled that “[o]nly contacts occurring prior to the event causing the litigation may be 

considered” in assessing specific jurisdiction. Farmers Ins. Exch. v. Portage La Prairie Mut. Ins. 

Co., 907 F.2d 911, 913 (9th Cir. 1990) (emphasis added). 

S-W’s alternative reliance on the indemnification provision of the FHSM Supply

Agreement fares no better because: (i) neither the terms of FHSM Supply Agreement itself nor 

FHSM's alleged refusal to indemnify S-W bear any relationship with California

2

; (ii) FHSM is 

 

1 Defined terms herein have the meanings ascribed to them in movants’ opening Memorandum of 

Points and Authorities (the “Opening Mem.”).

2 As discussed below, S-W, by letter dated March 1, 2017, directed its demand for 

indemnification to FHSM at its offices in New Jersey and to HLUS at its offices in New York, and 

the FUJIFILM Parties, through counsel in New York, responded to S-W’s demand by letter dated 
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REPLY IN SUPPORT OF MOTION TO DISMISS

60008871.1

Polsinelli LLP

2049 Century Park East, Suite 2300

Los Angeles, CA 90067

310.556.1801

not an insurer but a product manufacturer, a critical distinction made in the case law cited by SW; and (iii) even if the insurance cases applied (and they do not), the event giving rise to the 

litigation must also take place in the forum and, here, it is undisputed that the allegedly defective 

paint job took place in China.

S-W’s contention that FHSM should reasonably have anticipated being hauled before a 

California court based solely on an indemnity clause “without geographical restriction” is also 

belied by the separate insurance terms of the S-W Supply Agreement, pursuant to which FHSM 

agreed to procure and maintain comprehensive general liability insurance and to name S-W as an 

additional insured thereunder. See Kearney Decl., Ex. A, § 15. FHSM not only procured such 

insurance, but its carrier is in fact funding S-W's defense in this action. See Rohan Reply Decl., 

Exs. C and D.

Regarding jurisdiction over HLUS, FHSM’s and FHUS’ ultimate U.S. parent corporation, 

S-W, suggests that jurisdiction may be founded on agency theory, with FHSM’s alleged in-state 

contacts attributed to its out-of-state parent. But this is a non-starter, both because FHSM’s own 

forum contacts are insufficient and because the Supreme Court expressly rejected the Ninth 

Circuit’s agency theory of jurisdiction in Daimler AG v. Bauman, 134 S. Ct. 746, 759-60 (2014).

Finally, regarding dismissal of S-W’s claims against HLUS pursuant to Fed. R. Civ. P. 

12(b)(6), S-W concedes that the only party with whom it contracted was FHSM, but suggests that 

HLUS may nonetheless be held liable for FHSM’s alleged indemnity obligations on an “agency 

theory” because: (i) the notice provision of the FHSM Supply Agreement included HLUS’ Law 

Department as a notice copy recipient; and (ii) a preprinted footer in certain FHSM emails sent to 

S-W after the execution of the FHSM Supply Agreement “attempted to incorporate” certain 

additional HLUS terms and conditions. S-W cites no authority for the first proposition (and there 

is none), and its second contention fails because (i) S-W does not allege that these additional 

terms were incorporated into the FHSM Supply Agreement; (ii) the latter provides that it may be 

amended only by a writing signed by S-W; and (iii) these additional terms and conditions, on 

 

March 13, 2017. See Exhibits A and B to the Reply Declaration of Patrick J. Rohan (the “Rohan 

Reply Decl.”).
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REPLY IN SUPPORT OF MOTION TO DISMISS

60008871.1

Polsinelli LLP

2049 Century Park East, Suite 2300

Los Angeles, CA 90067

310.556.1801

their face, do not purport to bind HLUS to anything, much less to FHSM’s indemnity obligations.

II. ARGUMENT

A. The Third-Party Complaint Should be Dismissed for Lack of Personal

 Jurisdiction.

1. FHSM’s Alleged Dealings with Matson Do Not Confer Jurisdiction.

While S-W asserts that FHSM was “heavily involved in the underlying transaction with 

Matson,” even if FHSM had contracted directly with Matson (although it did not), these dealings 

are insufficient to confer jurisdiction. Under the purposeful availment test, “a contract alone does 

not automatically establish minimum contacts in the plaintiff’s home forum.” Boschetto v. 

Hansing, 539 F.3d 1011, 1017 (9th Cir. 2008). Instead, “there must be actions by the defendant 

himself that create a ‘substantial connection’ with the forum State.” Picot v. Weston, 780 F.3d 

1206, 1212 (9th Cir. 2015) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985) 

(emphasis in original)); see also Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773, 

1783 (2017) (activities of in-state distributor did not support jurisdiction over out-of-state 

manufacturer, especially where “it is not alleged that [the manufacturer] engaged in relevant acts 

together with [the distributor] in California”).

The fact that FHSM may have sent emails or other documents to Matson in California is 

likewise insufficient, since the “use of the mails, telephone, or other international 

communications simply do not qualify as purposeful activity invoking the benefits and protection 

of the [forum] state.” Peterson v. Kennedy, 771 F.2d 1244, 1262 (9th Cir. 1985) (citations and 

internal quotation marks omitted); see Sher v. Johnson, 911 F.2d 1357, 1362 (9th Cir. 1990). Nor 

does a defendant “purposefully avail itself of a forum simply by delivering a product into the 

state.” Cottle v. Western Skyways Inc., 2017 WL 1383277, *4-6 (E.D. Cal. April 17, 2017); 

Boschetto, 539 F.3d at 1017. 

Indeed, in rejecting the “stream-of-commerce” theory of jurisdiction, the Supreme Court 

has emphasized that “a single sale of a product in a State does not constitute an adequate basis for 

jurisdiction over an out-of-state defendant.” J. McIntyre Mach.. Ltd. v. Nicastro, 131 S. Ct. 2780, 

2792 (2011) (opinion of Breyer, J.). To the contrary, the transmission of goods will permit the 
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60008871.1

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2049 Century Park East, Suite 2300

Los Angeles, CA 90067

310.556.1801

exercise of jurisdiction only where the defendant has engaged in substantial sales activities that 

“can be said to have targeted the forum” and where those activities have resulted in harm in the 

forum itself. Id. at 2788. As explained in Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 

S. Ct. 2846 (2011):

[W]here ‘the sale of a product . . . is not simply an isolated occurrence, but arises from the 

efforts of the manufacturer or distributor to serve . . . the market for its products in 

[several] States, it is not unreasonable to subject it to suit in one of those States if its 

allegedly defective merchandise has there been the source of injury to its owner or others.

Id. at 2855 (quoting World-Wide Volkswagen v. Woodson, 444 U.S. 286, 297 (1980) (emphasis 

added in Goodyear). Accord Bristol-Myers Squibb, 137 S. Ct. at 1782 (no specific jurisdiction 

over out-of-state manufacturer where the plaintiffs did not claim to have suffered harm in 

California and the conduct giving rise to their claims occurred elsewhere).

Here, FHSM plainly did not “target” its sales at California. FHSM never had offices, 

employees or sales representatives in California, never advertised or registered to do business 

here, and – apart from the Matson Coatings at issue – had only de minimus sales in California. 

Kearney Decl., ¶¶ 18-20.

3

 Nor did the terms the FHSM Supply Agreement contemplate or 

require any performance here. To the contrary, the agreement required S-W to submit orders to 

FHSM’s “office located in Allendale, New Jersey” and required FHSM to deliver the Products 

F.O.B. “its manufacturing facility in Dayton, Tennessee.” Kearney Decl., Exh. A, §§ 3, 5 

(emphasis supplied). S-W’s order for the Matson Coatings itself was sent to and accepted by 

FHSM at its New Jersey office. Kearney Decl., ¶¶ 30-31. While FHSM, as an accommodation 

to S-W, may have shipped the coatings to San Diego, all parties clearly understood that the 

Matson Coatings were destined for China and that the Vessel was being painted at the Shipyard in 

China. Id., ¶ 31; Third-Party Complaint, ¶¶ 10-12; First Amended Complaint, ¶¶ 6-9.

Just as importantly, it is undisputed that the event giving rise to this litigation – the 

 

3 In 2015 (its last year of operation), FHSM had no sales in California. In 2014, other than the 

Matson Coatings at issue, its sales totaled less than $2,000, and in 2012 and 2013 its California 

sales totaled $3,000 and $5,000, respectively. Id. at ¶ 20.
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60008871.1

Polsinelli LLP

2049 Century Park East, Suite 2300

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310.556.1801

allegedly defective coating of the Vessel – did not take place in this forum, as required under 

Goodyear and Bristol-Myers Squibb, but in China.

Finally, FHSM’s sole visit to the forum, approximately one month after the painting of the 

Vessel in China and the alleged failure of the coatings, to view the hull at a marina in Long 

Beach, is clearly too attenuated to create “a substantial connection with the forum state.” Picot, 

780 F.3d at 1212-1213 (defendant’s two trips to California were insufficient to create a 

substantial connection where they were neither envisioned under the terms of the parties’ contract 

nor “[held no] special place in [the defendant’s] performance under the agreement as a whole.”). 

Just as importantly, in assessing specific jurisdiction, “[o]nly contacts occurring prior to 

the event causing the litigation may be considered.” Farmers, 907 F.2d at 914 (9th Cir. 1990); 

see also Key Tronic Corp. v. Smart Techs. ULC, 2016 WL 7104252, *7 (E.D. Wash., Dec. 5, 

2016) (defendant’s two trips to the forum after it had allegedly supplied defective products and in 

an effort to resolve the parties’ dispute were “not appropriate for consideration” of specific 

jurisdiction); accord Abokasem v. Royal Indian Raj Int’l Corp., 2011 WL 635222, * 6 (N.D. Cal. 

Feb. 11, 2011); Arizona School Risk Retention Trust, Inc. v. NMTC, Inc., 169 F.Supp.3d 931, 935 

(D. Ariz. 2016). Here, as in Key Tronic, FHSM’s sole visit to the forum occurred after the 

allegedly defective paint job in China and thus does not support jurisdiction.4

2. FHSM’s Alleged Indemnity Obligation Does Not Support 

Jurisdiction.

S-W’s alternative contention, that FHSM purposefully availed itself of the privilege of 

conducting business in California by virtue of the indemnity provision in the FHSM Supply 

Agreement, fails because: (i) neither the terms of FHSM Supply Agreement itself nor FHSM's 

alleged refusal to indemnify S-W bear any relationship with California; (ii) FHSM is not an 

insurer but a product manufacturer, a critical distinction raised in the case law; and (iii) even if 

the insurance cases applied (and they do not), the event giving rise to the litigation must also take 

place in the forum and, here, it is undisputed that the allegedly defective paint job took place in 

 

4 See Declaration of Noel S. Cohen.
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60008871.1

Polsinelli LLP

2049 Century Park East, Suite 2300

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310.556.1801

China.

3. FHSM’s Alleged Breach of Its Indemnity Obligations Has No

Relationship to California.

As a threshold matter, neither the “indemnitor” (FHSM) nor the “indemnitee” under the 

FHSM Supply Agreement is a California resident,

5

the agreement was not negotiated in 

California (Kearney Decl. ¶ 22), and it is expressly governed by Ohio law. Id., Ex. A, § 18(d). 

Moreover, while courts will examine the parties’ written contract to determine whether its terms 

“required any aspect of performance to occur in California” (Cottle, 2017 WL 1383277, * 7; 

Picot, 780 F.3d at 1212), the FHSM Supply Agreement neither references California nor required 

any performance here. To the contrary, the FHSM Supply Agreement required S-W to submit 

orders to FHSM’s “office located in Allendale, New Jersey” and required FHSM to deliver the 

Products F.O.B. “its manufacturing facility in Dayton, Tennessee.” Kearney Decl., Exh. A, §§ 3, 

5 (emphasis supplied). The Matson order itself was sent to and accepted by FHSM at its New 

Jersey office. Kearney Decl., ¶ 31.

It is also undisputed that neither S-W’s demand for indemnification nor FHSM’s 

purported rejection of the same took place in California. Rather, by letter dated March 1, 2017 

(Rohan Reply Decl. Ex. A), S-W directed its demand for indemnification to FHSM at its offices 

in New Jersey and to HLUS at its offices in New York, and the FUJIFILM Parties, through 

counsel in New York, responded to this demand by letter dated March 13, 2017. Rohan Reply 

Decl. Ex. B.

While Matson has sued S-W in California, and the latter has demanded that FHSM appear 

and defend it here, “it is the defendant’s conduct that must form the necessary connection with the 

forum State” and “a defendant’s relationship with a plaintiff or a third party, standing along, is an 

insufficient basis for jurisdiction.” Walden v. Fiore, 134 S. Ct. 1115, 1122-23 (2014). 

The Am. Ins. Co. v. R&Q Reinsurance Co., 2016 WL 5930589 (N.D. Cal. Oct. 12, 2016), 

 

5 FHSM is a (former) Delaware company based in New Jersey, and S-W is an Ohio corporation 

based in Cleveland. Third-Party Complaint, ¶¶ 4, 6.
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Los Angeles, CA 90067

310.556.1801

is instructive. There, the plaintiff insurer, which was headquartered in California, paid out 

millions of dollars in losses and demanded indemnity from – and later brought suit in California 

against – the defendant reinsurer, which was incorporated and headquartered in Pennsylvania. In 

holding that the court lacked specific jurisdiction over the defendant, the court noted that it was 

undisputed that the defendant’s decision to reject Plaintiff’s reinsurance claims was made at its

Pennsylvania headquarters and that the underlying agreements themselves were negotiated in 

Illinois. Id. at *3. The court noted further that neither the fact that the plaintiff was a California

indemnitee, nor the facts that the defendant had extensive telephone and email communications 

with the plaintiff and made trips to the forum to audit the plaintiff’s claims, sufficed to establish 

jurisdiction, explaining that “the Supreme Court has consistently rejected efforts to establish 

specific jurisdiction purely through an out-of-state defendant’s connections with an in-state 

plaintiff.” Id. (citing Walden, 134 S. Ct. at 1122).

Here, S-W’s attempt to base specific jurisdiction on the indemnity provision of the FHSM 

Supply Agreement is even weaker, since S-W is not a California indemnitee and the FHSM 

Supply Agreement itself bears no relationship to California. See also Sibley v. Superior Court, 16 

Cal. 3d 442, 447-48 (1976) (en banc) (negotiation and execution of guaranty agreement out of 

state, by nonresident guarantor, in favor of California resident, insufficient to confer jurisdiction).

4. The Insurance Cases Cited by S-W Do Not Apply.

In Farmers, the case principally relied on by S-W, the court held that where an automobile 

liability insurer issued a policy with a nationwide scope of coverage and where its insureds were 

involved in an accident in the forum state, the insurer has purposefully availed itself of the 

privilege of conducting business there. Farmers, 907 F.2d at 913 (explaining that the insurer had 

purposefully availed itself of the forum because “[i]ts policy coverage extends into Montana and 

an insured event resulted in litigation there.”). In so holding, the court was careful to distinguish 

the situation of a liability insurer, whose sole “product” is the defense and indemnity of claims, 

from a manufacturer or distributor, as follows:

Unlike the automobile sellers in World-Wide Volkswagen, automobile liability insurers 

contract to indemnify and defend the insured for claims that will foreseeably result in 
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REPLY IN SUPPORT OF MOTION TO DISMISS

60008871.1

Polsinelli LLP

2049 Century Park East, Suite 2300

Los Angeles, CA 90067

310.556.1801

litigation in foreign states. . . . Thus litigation requiring the presence of the insurer is not 

only foreseeable, but it was purposefully contracted for by the insurer. Moreover, unlike a 

product seller or distributor, an insurer has the contractual ability to control the territory 

into which its "product" — the indemnification and defense of claims — will travel.

Id. at 914 (emphasis supplied).

Farmers and its progeny are thus clearly inapplicable for two fundamental reasons. First 

and foremost, FHSM is not an insurer but a product manufacturer with no ability to control the 

territory into which its products will travel, especially where, as here, it had appointed 

independent resellers such as S-W. To permit the exercise of jurisdiction over FHSM wherever 

its products travelled would revive the discredited “stream-of-commerce” theory of jurisdiction 

which has been rejected repeatedly by the Supreme Court and Ninth Circuit. See World-Wide 

Volkswagen, 444 U.S. at 295-96 (explaining that “foreseeability alone has never been a sufficient 

benchmark for jurisdiction” and rejecting a regime where “every seller of chattels would in effect 

appoint the chattel his agent for service of process”); see also Holland Am. Line Inc., v. Wartsila 

N. Am., Inc., 485 F.3d 450, 459 (9th Cir. 2007) (“placement of a product into a stream of 

commerce, without more, is not an act purposefully directed toward the forum”). 

Second, it is undisputed that the “insured event” – the allegedly defective coating of the 

Vessel – took place in China, and not in this forum. Thus, even if FHSM were an insurer, these 

cases simply would not apply. See Hawthorne v. Mid-Continent Cas. Co., 2017 WL 1233116, *4

(W.D. Wa. April 4, 2017), explaining that under Farmers and its progeny:

[W]here an insurance agreement covers risk in all fifty states, an insured event occurs in 

one of those states, and the suit for which the insured seeks the insurer's defense is filed in 

that same state, the insurer purposefully avails itself of that state's forum by voluntarily 

assuming the obligation to appear and defend against suits arising from that insured event. 

(Emphasis in original).

6

 

6 The additional insurance and indemnity cases cited by S-W are also clearly 

inapposite. In Flintkote Co. v. Gen. Accident Ass. Co. of Canada, 2004 WL 1977220 (N.D. Cal. 

Sept. 7, 2004), the court upheld jurisdiction over a nonresident insurer which issued liability 
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REPLY IN SUPPORT OF MOTION TO DISMISS

60008871.1

Polsinelli LLP

2049 Century Park East, Suite 2300

Los Angeles, CA 90067

310.556.1801

Finally, while the Supreme Court has emphasized that foreseeability alone is an 

insufficient basis for jurisdiction, S-W’s contention that FHSM should reasonably have 

anticipated being haled before a California forum based solely on the indemnity clause of the 

FHSM Supply Agreement is belied by the separate insurance terms of the S-W Supply 

Agreement, pursuant to which FHSM agreed to procure and maintain comprehensive general 

liability insurance and to name S-W as an additional insured thereunder, including “with a broad 

form of vendor’s endorsement.” Kearney Decl., Ex. A, § 15. FHSM not only procured such 

insurance in favor of S-W, but FHSM’s carrier is in fact funding S-W's defense in this action. See

Rohan Reply Decl., Exs. C and D. Thus, in the event of a defective product claim, such as that 

alleged here, FHSM reasonably anticipated that its insurance carrier would respond, not that 

FHSM itself would be subject to jurisdiction in far-flung venues, regardless of its own contacts 

with the forum, and “without geographic restriction.”

5. The Controversy Does Not Arise from FHSM’s Contacts With 

the Forum.

Regarding the second prong for specific jurisdiction – that is, “whether plaintiffs' claims 

would have arisen but for [the defendant’s] contacts with California,” (Doe v. Unocal Corp., 248 

F.3d 915, 924 (9th Cir. 2001)), it is undisputed that FHSM’s only relevant contact with the forum 

is the mere happenstance the Matson Coatings were shipped to San Diego as a convenience to SW and in transit to their ultimate destination at the Chinese Shipyard, where the Vessel was 

 

policies without geographic restriction to “a company based principally in California” which 

faced asbestos liability in 100,000 cases, “many of which . . . are being heard in California courts 

regarding events that took place in California.” Id. at *1, 3. In Hirsch v. Blue Cross, Blue Shield 

of Kan. City, 800 F.2d 1474 (9th Cir. 1986), the court upheld jurisdiction over a nonresident

insurer that issued a group health policy to a multi-state trucking company based in Kansas and 

covering its employees wherever located. The court found that the defendant had knowingly 

accepted enrollment in the plan by the plaintiff, a California resident, and upheld jurisdiction with 

respect to the plaintiff’s medical claims arising in California. Id. at 1479-80. Am. Induction 

Techs., Inc. v. KBK, Inc., 2012 WL 12888112 (C.D. Cal. April 17, 2012), involved indemnity 

claims by a California-based distributor which had an ongoing contractual relationship with a 

Chinese manufacturer, based on claims of patent infringement arising out of the California 

distributor’s sale of the defendant’s products in California.
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REPLY IN SUPPORT OF MOTION TO DISMISS

60008871.1

Polsinelli LLP

2049 Century Park East, Suite 2300

Los Angeles, CA 90067

310.556.1801

painted.

7

 But this fortuitous circumstance in no sense “caused” the alleged defective painting of 

the Vessel, and the results clearly would have been the same if the Matson Coatings had been 

shipped FOB FHSM’s plant in Tennessee, per the terms of the FHSM Supply Agreement, or 

shipped directly to China. See, e.g., Scott v. Breeland, 792 F.2d 925, 928 (9th Cir. 1986) (in 

action arising out of alleged assault of flight attendant in Nevada, the fact that the defendants 

changed planes in California was not a causative factor); World-Wide Volkswagen, 444 U.S. at 

295 (dismissing as a “fortuitous circumstance” and “isolated event” the fact that the automobile 

sold by defendants in New York happened to suffer an accident while passing through 

Oklahoma). 

Recognizing a lack of “but for” causation with respect to the painting of the Vessel in 

China, S-W argues in the alternative that FHSM’s alleged refusal to defend and indemnify it in 

this action is a but-for cause of S-W’s claims against it. S-W Mem. at 15. But this is a bootstrap 

argument, premised solely on what FHSM has allegedly declined to do in the forum, and cannot 

be squared with the Supreme Court’s recent pronouncements in Goodyear, Walden and other 

recent cases, in which the Court has significantly narrowed the scope of specific jurisdiction and 

repeatedly emphasized that it is the defendant’s own affirmative conduct “that must form the 

necessary connection with the forum State.” Walden, 134 S. Ct. at 1122-23.

8

 Indeed, Hunt v. 

Erie Ins. Grp., 728 F.2d 1244 (9th Cir. 1984), the court cogently explained that an insurer’s failure 

to structure its policy to exclude coverage in a given state is not conduct aimed at the forum, since 

the purposeful availment test “does [not] focus on what the defendant has failed to do within a 

state.” Id. at 1246-47 (emphasis in original). Other Circuit and state supreme courts have 

likewise assailed the notion that an insurer’s failure to exclude coverage in a given state, or to 

 

7 FHSM’s attendance at the hull survey in Long Beach one month after the Vessel was painted in 

China is obviously not a causative or “but for” factor. In addition, “[o]nly contacts occurring 

prior to the event causing the litigation may be considered” for specific jurisdiction. Farmers, 

907 F.2d at 913.

8 It is also noteworthy that every one of the insurance and indemnity cases cited by S-W was 

decided prior to the Supreme Court’s pronouncements in Goodyear, Walden and Bristol-Myers 

Squibb.
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REPLY IN SUPPORT OF MOTION TO DISMISS

60008871.1

Polsinelli LLP

2049 Century Park East, Suite 2300

Los Angeles, CA 90067

310.556.1801

defend its insured there, constitutes “purposeful availment.” See , i.e., OMI Holdings Inc. v. 

Royal Insurance of Canada, 149 F.3d 1086, 1094 (10th Cir. 1998) ("[W]hether a defendant may 

foresee that a plaintiff may attempt to implead it into an action in a foreign forum is of little 

relevance in determining whether a defendant has established minimum contacts with that 

forum.").

6. Exercise of Jurisdiction Would Be Unfair and Unreasonable.

As explained in Core-Vent Corp. v. Nobel Indus. AB, 11 F.3d 1482, 1487-88 (9th Cir. 

1993), the smaller the degree of the defendant’s purposeful injection into the forum, the less 

jurisdiction is to be anticipated and the less reasonable it would be for the forum to exercise 

jurisdiction. Here, FHSM’s injection into the forum is virtually non-existent, both with respect to 

the claims at issue and with respect to sales activity generally. The other reasonableness factors 

also weigh in FHSM’s favor. Regarding the burden of defending S-W’s claims here, FHSM (and 

FHUS as its successor) is a small company with employees and operations on the east coast only. 

Moreover, FHSM’s insurance carrier is already providing a defense to S-W in this action. 

California itself has no interest in adjudicating S-W’s indemnity claims, because neither S-W nor 

FHSM is a California resident and the FHSM Supply Agreement expressly provides that its 

governed by Ohio law. Kearney Decl., Exh. A, § 11(d). In addition, S-W clearly has alternative 

forums where it can assert its indemnity claims against FHSM and/or FHUS as its successor.

7. The Court Lacks Jurisdiction Over HLUS.

As noted above, S-W suggests that the Court may exercise jurisdiction over HLUS, 

FHSM’s and FHUS’ ultimate U.S. parent, based on agency theory, with FHSM’s alleged in-state 

contacts attributed to HLUS. But this contention is meritless, both because FHSM’s own forum 

contacts are insufficient and because the Supreme Court expressly rejected the Ninth Circuit’s 

agency theory of jurisdiction in Daimler AG v. Bauman, 134 S. Ct. 746, 759-60 (2014).

B. The Third-Party Complaint Fails to State a Claim Against HLUS.

Finally, regarding dismissal of S-W’s claims against HLUS pursuant to Fed. R. Civ. P. 

12(b)(6), S-W concedes that the only party with whom it contracted was FHSM, but suggests that 

HLUS may somehow be liable for FHSM’s alleged indemnity obligations on an “agency theory” 
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REPLY IN SUPPORT OF MOTION TO DISMISS

60008871.1

Polsinelli LLP

2049 Century Park East, Suite 2300

Los Angeles, CA 90067

310.556.1801

because: (i) the notice provision of the FHSM Supply Agreement included HLUS’ Law 

Department as a notice copy recipient; and (ii) a preprinted footer in certain FHSM emails sent to 

S-W after the execution of the FHSM Supply Agreement “attempted to incorporate” certain 

additional HLUS terms and conditions. 

S-W cites no authority, and offers no logic or rationale, for the proposition that the 

inclusion of an affiliate’s law department as a mere notice copy recipient in a contract renders that 

affiliate liable on the contract. It is utterly routine to include a party’s outside law firm or, here, a 

related law department as a notice copy recipient, and this obviously does not render the law firm 

or affiliate liable on the contract.

S-W’s second contention, based on the “attempted” incorporation of certain boilerplate 

FUJIFILM terms and conditions (the “FUJIFILM TCs,” annexed as Ex. E to the Declaration of 

Brian McDonald) is clearly unavailing because (i) S-W does not allege that these additional terms 

were in fact incorporated into the FHSM Supply Agreement; (ii) the FHSM Supply Agreement 

itself provides that it may be amended only by a writing signed by S-W (Kearney Decl. Ex. A at § 

18(a)); and (iii) the FUJIFILM TCs, on their face, do not even refer to HLUS, much less include 

indemnity terms or purport to bind HLUS to its affiliates’ indemnity obligations. To the contrary, 

the opening paragraph of the FUJIFILM TCs expressly states that these supplemental terms are 

for use “by the FUJIFILM U.S. entity contracting to provide products and/or services (“Vendor”) 

to Customer (“Buyer”).”

9

Finally, if the FUJIFILM TCs had been incorporated into the parties’ agreement, they 

would also be dispositive of the FUJIFILM Parties’ jurisdictional motion, since the concluding 

paragraph provides that the buyer (i.e., S-W) “irrevocably and unconditionally” submits to the 

jurisdiction of the state and federal courts located in Westchester County, New York for the 

resolution of all disputes.

 

9 As explained in the Prutting Declaration (¶ 3), HLUS is the holding company for FUJIFILM’s 

U.S. operating companies, does not provide goods or services to the public, and thus is not a 

“vendor.” 
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REPLY IN SUPPORT OF MOTION TO DISMISS

60008871.1

Polsinelli LLP

2049 Century Park East, Suite 2300

Los Angeles, CA 90067

310.556.1801

III. CONCLUSION

For all the forgoing reasons, Third-Party Defendants respectfully ask the Court to grant 

this Motion. 

Dated: August 14, 2017 POLSINELLI LLP

By: Noel S. Cohen

Attorneys for Third-Party Defendants

FUJIFILM HUNT SMART 

SURFACES, LLC; 

FUJIFILM HUNT CHEMICALS 

U.S.A., INC.; 

FUJIFILM HOLDINGS AMERICA 

CORPORATION
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CERTIFICATE OF SERVICE

Polsinelli LLP

2049 Century Park East, Suite 2900

Los Angeles, CA 90067

310.556.1801

CERTIFICATE OF SERVICE

I am over the age of 18 and not a party to the within action; I am employed 

by POLSINELLI LLP in the County of Los Angeles, California at 2049 Century 

Park East, Suite 2900, Los Angeles, California 90067.

On August 14, 2017, I served the foregoing document(s) described as: 

FUJIFILM HUNT SMART SURFACES, LLC, FUJIFILM HUNT 

CHEMICALS U.S.A., INC. AND FUJIFILM HOLDINGS AMERICA 

CORPORATIONS’ REPLY BRIEF ISO MOTION TO DISMISS; 

DECLARATIONS OF NOEL S. COHEN AND PATRICK J. ROHAN IN 

SUPPORT THEREOF

on the interested parties in this action by:

[X] By CM/ECF: I hereby certify that on this date, I electronically filed the 

foregoing with the Clerk of the Court using the CM/ECF system which will send 

notification of such filing to the email addresses denoted on the Electronic Mail 

notice list, and I hereby certify that I have mailed the foregoing document or paper 

via the United States Postal Service to the non-CM/ECF participants (if any) 

indicated on the Manual Notice list/Service List.

[X] (Federal) I declare under penalty of perjury under the laws of the State of 

California and under the laws of the United States of America that the above is true 

and correct.

Executed on August 14, 2017, at Los Angeles, California.

 /s/ Noel Cohen 

 Noel Cohen