Judge Sue L. Robinson recently found that a plaintiff’s complaint did not sufficiently demonstrate that the exercise of personal jurisdiction over Utah defendants would comport with Delaware’s long-arm statute or the Due Process Clause. The Court, however, did not grant the defendants’ motion to dismiss, but instead ordered jurisdictional discovery and left open the door to a renewed motion to dismiss following the completion of that discovery. DNA Genotek Inc. v. Spectrum DNA, et al., Civ. No. 15-661-SLR (D. Del. Feb. 4, 2016). The defendants were Utah entities, with their principal places of business in Utah, and were “leading provider[s] of products for biological sample collection, such as saliva collection devices . . . for DNA testing.” The defendants operated a website accessible in Delaware, but did not engage in any e-commerce through their website. Rather, defendants sold their DNA testing devices to Ancestry.com, which itself sold the devices nationwide, including in Delaware.
Judge Robinson explained that the “dual jurisdiction” or “stream of commerce” theory could be used to establish long-arm jurisdiction under 10 Del. C. § 3104(c)(1) or (c)(4), but added that the touchstone of the theory is “intent and purpose to serve the Delaware market.” In reviewing the facts as argued in the briefing, the Court ultimately found: “there is no indication of record that Spectrum has shipped or sold any of the accused products in Delaware, or that Spectrum has any control over what Ancestry does with the accused product once it is delivered to Ancestry.” The Court added, “[s]imply put, aside from delivering the accused product to Ancestry (outside Delaware) who, in turn, is responsible for placing the accused product into the stream of commerce, there is no persuasive evidence of ‘[a]dditional conduct . . . [to] indicate an intent or purpose [on the part of Spectrum] to serve the market’ in Delaware.” Id. at 8 (quoting Asahi Metal Indus. Co., Ltd. v. Superior Court of Calif., Solano Cty., 480 U.S. 102, 112 (1987)). Instead of dismissing the action, however, Judge Robinson ordered jurisdictional discovery on the defendants’ marketing and sales activities and the business relationship with Ancestry.com, and left open the door to a renewed motion under Rule 12(b)(2).