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E.I. Du Pont De Nemours & Co. v. NV
Citation: 335 F. Supp. 3d 657Docket: Civil Action No. 17-1577
Court: District Court, D. Delaware; August 15, 2018; Federal District Court
In this patent infringement and breach of contract case, E.I. du Pont de Nemours and Company ("DuPont") has filed a Motion for a Temporary Restraining Order and Preliminary Injunction to prevent Defendants—Agfa-Gavaert NV ("the Parent"), Agfa Graphics NV ("the Belgian Subsidiary"), and Agfa Corporation ("the Delaware Subsidiary")—from using certain materials in an ongoing patent proceeding in Germany. The Parent and Belgian Subsidiary have countered with a Motion to Dismiss, arguing lack of personal jurisdiction under Federal Rule of Evidence 12(b)(2). The court grants their Motion to Dismiss and denies DuPont's Motion as moot.
The dispute involves several patents held by the Belgian Subsidiary, notably the '759 Patent. DuPont initiated the lawsuit in the District of Delaware, first filing a Complaint on November 3, 2017, and later an Amended Complaint on November 17, 2017. The causes of action include requests for declaratory judgments regarding the validity and non-infringement of the '759 Patent, implied licensing, equitable estoppel, unfair competition, patent exhaustion, violations of Delaware trade and consumer protection laws, breach of contract, copyright infringement, and breach of website terms of use.
DuPont is a subsidiary of DowDuPont, Inc. and produces Cyrel® Flexographic Printing Plates used in packaging. The Parent is a Belgian public limited company based in Mortsel, Belgium, while the Belgian Subsidiary, also located in Mortsel, is a wholly owned subsidiary of the Parent and the assignee of various patents, including the '759 Patent. The Delaware Subsidiary operates under the Parent's control and is incorporated in Delaware.
On March 25, 2003, DuPont initiated an Opposition against the EP '121 Patent at the European Patent Office (EPO). The Opposition Division revoked the patent on April 26, 2007, citing insufficient disclosure; however, the Board of Appeals reinstated it on July 23, 2010, returning the matter to the Opposition Division. On February 1, 2017, the Division rejected DuPont's request to revoke the patent, and DuPont appealed this decision on April 19, 2017. DuPont later withdrew its appeal on June 1, 2018.
In 2005, AGFA's Belgian Subsidiary informed DuPont that certain Cyrel® FAST flexographic printing plates and equipment allegedly infringed the EP '121 Patent in Europe and the '759 Patent in the U.S. DuPont contested the validity of the EP '121 Patent. Following this, both parties negotiated a licensing agreement for the patent but reached no resolution, halting discussions until the EPO appeal was settled.
Beginning in 2011, DuPont claims it entered a distribution and marketing agreement (the US Agreement) with AGFA's Delaware Subsidiary, which was renewed in 2016. The US Agreement permitted AGFA to market and distribute certain DuPont Cyrel® products in the U.S. AGFA was responsible for promoting, selling, and providing customer service, using materials supplied by DuPont solely to fulfill its obligations, without making unauthorized claims or representations. These materials included promotional and technical literature, specific copyright-protected documents, and other related information. The US Agreement originated from a prior distribution agreement with the Harold M. Pitman Company, which AGFA acquired in 2010. Defendants dispute the assertion that AGFA purchased Pitman, claiming instead that the Delaware Subsidiary was the entity that acquired Pitman's assets and distribution agreement with DuPont.
On July 4, 2017, AGFA, via its Belgian Subsidiary, filed a patent infringement lawsuit against DuPont in Dusseldorf, Germany, claiming that DuPont's Cyrel® FAST DFR plates infringe a German Patent. DuPont's request for an injunction centers on the German complaint, which allegedly relies on AGFA's unauthorized use of DuPont's copyright-protected materials, including publications and product labels.
DuPont asserts personal jurisdiction over AGFA's Parent and Belgian Subsidiary, arguing they have engaged in tortious acts and conducted business in Delaware, satisfying the state's long-arm statute (10 Del. C. 3104). DuPont claims these entities maintain significant contacts with Delaware through their control of the AGFA Graphics Division and their subsidiary in Delaware, alleging they directed this subsidiary to market and distribute DuPont products.
In response, the Parent and Belgian Subsidiary filed a motion to dismiss, contending that DuPont's claims lack sufficient detail to establish personal jurisdiction. They argue that without personal jurisdiction, they should be dismissed from the case. In reaction, DuPont requested jurisdictional discovery, which was granted, and has since submitted various exhibits to support its jurisdiction claims. An oral argument occurred on May 10, 2018, where DuPont highlighted specific exhibits to bolster its position.
Resolution of the jurisdiction issue is necessary before considering DuPont's Motion for a Temporary Restraining Order and Preliminary Injunction, as a district court cannot enjoin a party without jurisdiction over them. The court will first address the Motion to Dismiss. Under Federal Rule of Civil Procedure 12(b)(2), when evaluating a motion to dismiss for lack of personal jurisdiction, the court accepts the plaintiff's allegations as true and resolves disputed facts in favor of the plaintiff. However, once the defendant raises a jurisdictional defense, the plaintiff must demonstrate sufficient minimum contacts between the defendant and the forum state to establish jurisdiction, which can be supported by sworn affidavits or other competent evidence.
To meet this burden, DuPont must show two things: (1) that the Delaware long-arm statute grants jurisdiction over the Parent and Belgian Subsidiary, and (2) that exercising personal jurisdiction aligns with constitutional Due Process. The Delaware long-arm statute is interpreted broadly in favor of jurisdiction under Due Process, meaning DuPont does not need additional evidence to prove authorization. Due process requires that a defendant, if not present in the forum, must have minimum contacts to ensure that maintaining the lawsuit is consistent with fair play and substantial justice.
General jurisdiction may be established if a foreign corporation has continuous and systematic affiliations with the state, rendering it essentially at home there, typically determined by its principal place of business and state of incorporation. Specific jurisdiction exists when the lawsuit arises from the defendant's contacts with the forum, requiring that the defendant purposefully directed activities at forum residents and that the litigation derives from those activities.
In Burger King v. Rudzewicz, the U.S. Supreme Court established that a defendant must "purposefully avail" itself of the forum state's privileges to establish personal jurisdiction. Simply placing a product into the stream of commerce is insufficient for this purpose. Factors indicating purposeful availment include maintaining offices, paying taxes, owning property in the forum state, registering to do business, or holding bank accounts there.
The Parent and Belgian Subsidiary argue that jurisdictional claims in the Amended Complaint are conclusory and lack factual support. They assert their headquarters are in Mortsel, Belgium, and they do not own or lease property in Delaware or the U.S. The Parent does not export products to the U.S., while the Belgian Subsidiary supplies products to a Delaware Subsidiary that are not at issue in the current litigation. Given these points, they contend they have not purposefully availed themselves of jurisdiction in Delaware and seek dismissal from the lawsuit.
DuPont proposes three theories for establishing personal jurisdiction over the Parent and Belgian Subsidiary: (1) they are bound by a U.S. Agreement through their Delaware Subsidiary; (2) they dominate and control the Delaware Subsidiary, subjecting them to jurisdiction through its actions; and (3) corporate formalities should be disregarded to pierce the corporate veil. The court notes that DuPont does not clarify whether it seeks general or specific personal jurisdiction over the Belgian Subsidiary. General jurisdiction requires that a corporation’s affiliations with the jurisdiction be so systematic and continuous that it is essentially at home there.
The Supreme Court in Daimler established that the place of incorporation and principal place of business are key factors for establishing general jurisdiction. The Belgian Subsidiary, incorporated and with its principal business in Mortsel, Belgium, does not have sufficient contacts with Delaware to be considered "essentially at home" there, thus precluding general personal jurisdiction. Consequently, DuPont's arguments will be evaluated under specific personal jurisdiction criteria to determine if the Belgian Subsidiary purposefully directed its activities at Delaware residents.
DuPont's first theory for personal jurisdiction relies on the assertion that the Belgian Subsidiary is liable under a US Agreement made by its "agent," the Delaware Subsidiary. This theory focuses on two main points: the Belgian Subsidiary's role in acquiring Pitman and the subsequent management of the Pitman business and the US Agreement. DuPont cites several cases to support this claim, including Publicker Industries, Inc. v. Roman Ceramics, Inc., where the Third Circuit held that a parent company could be liable for a contract via its subsidiary, based on the parent’s significant involvement in the negotiation and performance of the contract. However, the case primarily addressed liability, not personal jurisdiction, and the court did not clarify whether the agency theory applied to a sister subsidiary.
Further, DuPont refers to Delcon, where a jury found a parent liable for a contract made by a subsidiary, emphasizing that evidence of apparent agency could bind both entities to the contract. The court affirmed that it was within the jury's purview to ascertain whether the subsidiary acted as the parent’s agent during the contract's formation.
Evidence presented to the jury indicated that the chairman of a subsidiary's board also held positions as senior vice president of the parent company and chairman of a related entity. This suggested direct involvement of the parent in the operations related to the disputed contract. However, similar to the Publicker case, the Delcon court did not address the issues of personal jurisdiction or the applicability of agency theory regarding the liability of a sister subsidiary. DuPont cited the American Eagle Outfitters case, where the court found personal jurisdiction over a foreign parent and its local subsidiary based on agency theory, asserting that they had sufficient contacts with the forum and were materially similar to the facts in Publicker. The court concluded that the parent was the "moving force" behind the agreement, applying agency principles. However, the Publicker case did not determine whether a foreign corporation could be subject to personal jurisdiction under an agency theory, focusing instead on the liability of a parent corporation for its subsidiary's breach of contract. Consequently, reliance on Publicker for establishing personal jurisdiction over the parent is deemed misplaced, as liability is a distinct issue from personal jurisdiction. Furthermore, none of DuPont's cited cases addressed personal jurisdiction over a foreign sister subsidiary based on agency theory. Courts in this district typically assess the degree of control by a foreign entity to determine agency, as illustrated in E.I. Du Pont de Nemours Co. v. Heraeus Holding GmbH. The primary consideration is whether the parent company dominates the subsidiary's activities. DuPont's second argument posits that the Belgian Subsidiary controls the Delaware Subsidiary, thereby subjecting it to personal jurisdiction. This theory lacks merit, as courts evaluate factors such as officer and director overlap, financing methods, management responsibilities, and business acquisition processes to determine if an agency relationship exists. No single factor is decisive; rather, a specific combination of elements is critical.
Commonality of officers and directors between a parent corporation and a subsidiary does not inherently establish an agency relationship. Additionally, a parent corporation's financial support of a subsidiary is insufficient to classify the subsidiary as merely an agent or instrumentality of the parent. In cases where companies are sister subsidiaries rather than in a parent-subsidiary dynamic, courts assess whether they are corporate affiliates with significant business connections. The precedents set in *Wesley-Jessen Corp. v. Pilkington Visioncare, Inc.* and *Pfizer Inc. v. Mylan Inc.* acknowledge that an agency theory may apply if the companies operate collaboratively and maintain close agreements.
In *Wesley-Jessen*, the court identified an agency relationship between two subsidiaries based on shared ownership, coordinated operations, unified presentation to stakeholders, and a contractual agreement for indemnification relating to patent issues. The court concluded that such arrangements are unlikely among independent entities. Despite task division, the subsidiaries were treated as parts of a single business group for jurisdictional purposes.
In the current case, DuPont argues that the Belgian Subsidiary dominates the Delaware Subsidiary based on several factors, including consolidated financial statements, reporting structures, and policy on intellectual property management. However, the findings do not support the notion of close business ties or coordinated operations between the subsidiaries, particularly as the financial statements do not indicate joint operation.
Gunther Mertens, former CFO of the Delaware Subsidiary, confirmed that the Parent and its subsidiaries, including the Belgian and Delaware Subsidiaries, maintain consolidated financial statements. He cited global financial reporting obligations and indicated that his reports were consolidated for investors and the stock market. However, unlike in the Wesley-Jessen case, DuPont has not provided evidence showing a true consolidation of business strategies and financial statements between the Belgian and Delaware Subsidiaries. DuPont claims that officers at the Delaware Subsidiary report to executives of the Belgian Subsidiary, supported by organizational charts indicating reporting lines from the Delaware Subsidiary’s President and CFO to their Belgian counterparts. Nevertheless, these assertions lack substantive proof, as charts alone do not establish actual reporting relationships or managerial direction.
Mertens' email to DuPont describes Mr. Vanhooren as his "boss," but the context suggests this references Vanhooren’s role in the Graphics business group, not as President of the Belgian Subsidiary. DuPont argues that the Parent mandates that all intellectual property is managed by the ultimate parent of each business and notes that the Delaware Subsidiary assigned its Pitman trademarks to the Belgian Subsidiary. While the Assignment and Assumption Agreement references the Belgian Subsidiary as an ultimate parent, it also identifies the Parent as the ultimate parent of both subsidiaries. Additionally, DuPont cites a policy stating that IP produced by the Graphics business group is owned by the Belgian Subsidiary; however, mere ownership of a U.S. patent does not establish personal jurisdiction over a foreign entity. Finally, DuPont asserts that the global Agfa Graphics business is centrally controlled by the Belgian Subsidiary, but emphasizes that the Delaware Subsidiary operates independently as a direct subsidiary of the Parent.
Mr. Vanhooren holds multiple positions, including President of the Belgian Subsidiary, the Graphics business group, chair of the GMC, and chairman of the Delaware Subsidiary's board. DuPont has not sufficiently demonstrated a connection between the Belgian and Delaware Subsidiaries to establish personal jurisdiction over the Belgian Subsidiary. Unlike the subsidiaries in the Wesley-Jessen case, there is no indemnity agreement or product interchange between the two. The Belgian Subsidiary operates in Belgium, focusing on research, development, and equipment manufacturing for the graphics industry, while the Delaware Subsidiary functions independently in New Jersey, manufacturing and marketing its products, sometimes reselling others' products in the printing and publishing sectors. While the Belgian Subsidiary coordinates with other graphics subsidiaries, it does not interact with the Delaware Subsidiary, which remains a standalone entity with its own manufacturing facility.
DuPont's argument to pierce the corporate veil under Delaware law fails as it does not provide sufficient evidence of fraud or that the corporate formalities have been ignored. To pierce the veil, a plaintiff must show that the corporation operates as a sham to defraud investors or creditors, considering factors such as capitalization, solvency, observance of corporate formalities, and misuse of funds by the dominant shareholder. DuPont did not present relevant facts to support these criteria nor evidence of fraud or public wrong. The facts provided merely indicate a lack of formal documentation regarding authority and corporate policies between the Parent and its subsidiaries.
DuPont argues that the Delaware Subsidiary's officers' depositions, which state that delegations of authority and corporate policies were "voluntary" and not binding, indicate a disregard for corporate formalities. DuPont also claims that the ability of directors to terminate other directors contravenes Delaware corporate law. However, DuPont does not clarify how these assertions relate to the factors previously outlined, nor does it demonstrate that a violation of Delaware corporate law amounts to ignoring corporate formalities.
In response, Defendants assert that global policies were adopted by subsidiaries as appropriate and were not mandatory, being instead subject to local acceptance. They cite the legitimacy of a parent company setting policies for its subsidiaries, supported by case law. Defendants provide evidence that the Delaware Subsidiary is properly incorporated, elects its own officers and directors, conducts regular board meetings, maintains detailed records, has enacted by-laws, issues share certificates, engages in contracts in its own name, files tax returns, and has its own corporate checking account.
DuPont conflates the Belgian Subsidiary with the Parent Company and references three cases that primarily address personal jurisdiction but do not support a veil piercing theory concerning a sister subsidiary. Consequently, the court finds that DuPont has not established that the Belgian Subsidiary is subject to personal jurisdiction via veil piercing, as no authority indicates jurisdiction over a sister subsidiary under this theory.
Furthermore, DuPont applies the same jurisdictional theories to the Parent, which is incorporated in Belgium and has its principal place of business there. DuPont fails to demonstrate any continuous or systematic contacts with Delaware that would justify asserting general personal jurisdiction over the Parent. Thus, the court will evaluate DuPont's theories under the specific personal jurisdiction framework.
DuPont argues that personal jurisdiction over the Parent is established due to its liability under the US Agreement made by its subsidiary, the Delaware Subsidiary. However, prior cases cited, including Publicker and Delcon, did not address personal jurisdiction but focused on a parent's liability for a subsidiary's contracts. The court declines to follow the American Eagle Outfitters decision, emphasizing that liability is distinct from personal jurisdiction, as noted in Sprague Energy Corp.
DuPont's second argument claims that the Parent "dominates and controls" the Delaware Subsidiary, warranting personal jurisdiction based on the subsidiary's actions. Relevant facts include the global operational structure of AGFA, the acquisition of Pitman to enhance its US presence, consolidated financial statements among the Parent and subsidiaries, and the Delaware Subsidiary's role as a "Sales Office" for the global business. Additionally, the Delaware Subsidiary relies on the Foreign Defendants for financial decisions, and there are strong reporting lines from the Delaware Subsidiary to the Parent's executives.
Delaware courts evaluate agency relationships based on factors such as the overlap of officers and directors, financing methods, management responsibilities, and business acquisition processes. Notably, the presence of common officers does not inherently indicate an agency relationship, nor does financing alone suffice to establish a subsidiary as a mere agent. In this instance, the only noted overlap in management is between Mr. Vanhooren and Kris Hoornaert, who serve on both the ExCo and the Delaware Subsidiary's board, with the ExCo being separate from the Parent's Board of Directors.
Delaware courts have determined that a "tenuous connection" indicates only "minor overlap" and does not establish an agency relationship. DuPont claims that the Parent and its subsidiaries maintain consolidated financial statements, asserting that the Foreign Defendants manage AGFA’s monetary assets, which requires the Delaware Subsidiary to seek permission for withdrawals. However, DuPont's supporting documents are insufficient, as organizational charts do not clarify the Delaware Subsidiary's assets. An internal citation lacks specificity regarding financial ties, and an email referencing an employee relationship does not pertain to financial matters. The Delaware Subsidiary independently files tax returns, possesses its own corporate checking account, and financed the Pitman acquisition through its own resources. Although consolidated financial statements exist, the lack of evidence regarding financial overlap weakens DuPont's argument for control. Regulatory filings that combine financial data of subsidiaries do not substantiate an agency claim. Additionally, DuPont has not shown that the Parent manages the Delaware Subsidiary's daily operations or secures business for it. The Delaware Subsidiary independently initiated the Pitman acquisition and conducted all related due diligence and negotiations. Its officers are responsible for daily management. Many of DuPont’s remaining assertions are irrelevant to establishing an agency relationship and will not be addressed in detail, except for a general claim about Foreign Defendants influencing decision-making through the global GMC and direct communication.
DuPont's reference to emails and meeting minutes involving the GMC and ExCo related to the Pitman acquisition is overstated in terms of significance. The documents indicate involvement at three key stages: 1) approval of the $80 million acquisition, 2) integration of Pitman into the Delaware Subsidiary, and 3) monitoring of business performance due to lower-than-expected margins. The Parent’s involvement was logical given the acquisition's size, the need for smooth integration, and the monitoring of margins, especially in light of potential bankruptcy considerations for the U.S. graphics business. However, these facts do not establish that the Parent dominated the Delaware Subsidiary, which operated independently in its daily affairs.
DuPont's claim that the corporate veil should be pierced to assert personal jurisdiction over the Parent is unsupported; the Delaware Subsidiary is shown to be validly incorporated, with its own governance, records, and operations. There is no evidence that it is a sham entity or that it disregards corporate formalities. Thus, DuPont has not demonstrated sufficient grounds to establish personal jurisdiction based on these allegations.
Personal jurisdiction over the Belgian Subsidiary and the Parent is lacking, leading to their dismissal from the case. The court grants the Defendants' Motion to Dismiss and denies DuPont's Motion for a Temporary Restraining Order and Preliminary Injunction as moot. An Order reflecting this decision was issued on June 8, 2018. The court explains its ruling based on facts from DuPont's Amended Complaint, with the judge designated as a visiting judge for the District of Delaware on May 18, 2017. Agfa Graphics Ltd. UK was also named as a Defendant but has since been dismissed. DuPont's reference to “AGFA” pertains to its contention regarding the relationship between Defendants, noting that Agfa Graphics is part of the Parent's business groups, governed by the Global Management Committee (GMC). There is some ambiguity regarding the Executive Committee (ExCo) and its relation to the GMC. The court acknowledges that Agfa Graphics NV, the Belgian Subsidiary, has rebranded to Agfa NV. Additionally, the Delaware Subsidiary is seeking to amend its Answer, indicating a transfer of patent rights and asserting counterclaims for infringement. The court highlights the uncertainty of Delaware law concerning the long-arm statute and its relation to due process but focuses on constitutional analysis as jurisdiction under the long-arm statute was not challenged. The court references a Supreme Court decision (Daimler) that rejected the notion of establishing general personal jurisdiction solely based on a "doing business" theory through an in-state subsidiary.
DuPont highlights several key factors relevant to the Parent company in relation to AGFA and its subsidiaries. AGFA presents itself as a globally integrated entity, having acquired Pitman to strengthen its presence in the U.S. printing industry and enhance its distribution capabilities. It operates through wholly owned sales organizations in over 40 countries, with the Delaware Subsidiary serving as the Sales Office for the global Graphics business. The majority of Agfa Graphics' revenue growth is attributed to the U.S. and emerging markets. The Foreign Defendants control AGFA's financial assets, necessitating permission for the Delaware Subsidiary to withdraw funds, and they dominate its decision-making processes through interactions with the global management committee and direct communications.
Contrary to DuPont's claim of solid reporting lines, Mr. Mertens, former CFO of the Delaware Subsidiary, testified that he primarily reported to the Delaware Subsidiary's president, with a dual reporting structure where only a fraction of his responsibilities involved reporting to the vice president of finance in Belgium. This reporting was focused on global financial obligations for investor and stock market reporting. Additionally, Mr. Mertens identified Mr. Dockx as the vice president of finance in Belgium, not as CFO of the Belgian Subsidiary.
The Parent has adopted a policy of centralized ownership and management of intellectual property related to trademarks and trade names across its businesses. The assignment of the '759 Patent has been transferred to the Delaware Subsidiary. Documents from DuPont reveal that Mr. Vanhooren and Mr. Dockx were involved in the Pitman business discussions, with Mr. Vanhooren testifying that his role was primarily as chairman of the Delaware Subsidiary's board. Email communications involving Mr. Vanhooren and other executives indicate that he acted in his capacity as President of the global management committee, while Mr. Dockx acted as Vice President of Finance. Mr. Vanhooren’s email signature also confirmed his position as President of the Graphics business group.
Mr. Dockx's signature block indicates his role as Vice President of Finance for Agfa Graphics, specifically related to GMC and not for the Belgian Subsidiary. No emails confirm Mr. Vanhooren or Mr. Dockx's involvement in the Pitman business on behalf of the Belgian Subsidiary. A document titled "Delegation of Powers of the President" grants approval authority solely to the President of the Belgian Subsidiary for its operations, explicitly stating that the separate legal status of its subsidiaries means the document does not apply to them. Notably, the Delaware Subsidiary operated independently as a subsidiary of the Parent, not the Belgian Subsidiary. Evidence shows the Delaware Subsidiary acquired Pitman in 2010 with DuPont's consent to transfer the distribution agreement, affirming that the Delaware Subsidiary was the primary entity involved in the acquisition and subsequent operations. The US Agreement, originally between DuPont and Pitman, defined "AGFA" specifically as the Delaware Subsidiary, with all relevant contracts executed by this entity. The Delaware Subsidiary managed the agreement, which was renewed biennially until 2016, and Mr. Vanhooren's involvement was limited to his role as chairman of the Delaware Subsidiary's board. DuPont's assertion that the Belgian Subsidiary controlled the Delaware Subsidiary due to its involvement in the acquisition lacks support in the record, and additional cases cited by DuPont only relate to parent-subsidiary agency relationships, making them irrelevant. The Supreme Court's decision in Daimler undermines DuPont's argument for general personal jurisdiction based on a "doing business" theory.
A letter from DuPont's North American Sales Director to Pitman's President references discussions about an acquisition of Pitman by Agfa-Gavaert NV. A follow-up letter from Mr. Wilkens to DuPont's Sales Director expresses Agfa's enthusiasm for a mutually beneficial relationship. Despite DuPont's claims that this indicates the Parent's involvement in the acquisition, the subject line of Wilkens's letter specifically mentions "Agfa Corporation/Pitman Asset Purchase," indicating a focus on the transaction. It was the Delaware Subsidiary's officers who conducted due diligence and negotiated the deal with DuPont, entering into the US Agreement solely on behalf of the Delaware Subsidiary, which also obtained initial consent and signed subsequent renewals. The eight cases cited by DuPont to support its argument are deemed factually distinct and are not considered binding or persuasive, hence will not be analyzed further.