Cherie Diaz v. One Technologies, LLC

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHERIE DIAZ,
Plaintiff-Appellant,
v.
ONE TECHNOLOGIES, LLC,
Defendant-Appellee.
No. 22-55190
D.C. No. 2:21-cv-08571-GW-AGR
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
George Wu, District Judge, Presiding
Argued and Submitted September 12, 2023
Pasadena, California
Before: M. SMITH, FRIEDLAND, and MILLER, Circuit Judges
Plaintiff Cherie Diaz appeals from the dismissal of her complaint pursuant to
Federal Rule of Civil Procedure 12(b)(2).1 We have jurisdiction pursuant to 28
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
1 Diaz also appeals the denial of her motion to remand for lack of subject
matter jurisdiction. We have discretion to decide questions of personal jurisdiction
before subject matter jurisdiction, see Ruhrgas AG v. Marathon Oil Co., 526 U.S.
574, 578 (1999), and we exercise that discretion here.
FILED
OCT 12 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2
U.S.C. § 1291, and we affirm.2
Because the parties are familiar with the facts, we recount them only as
necessary here. Diaz contends that the court has personal jurisdiction over One
Technologies because it (1) directs an email marketing campaign to California
users and (2) operates an interactive website available to and targeting California
users. Both arguments fail.
First, One Technologies’ affiliate-sent marketing emails do not subject it to
specific personal jurisdiction in California because One Technologies does not
send or otherwise control the emails.
Personal jurisdiction can only “arise out of contacts that the ‘defendant
[itself]’ creates with the forum State.” Walden v. Fiore, 571 U.S. 277, 284 (2014)
(quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985)). However,
“[f]or purposes of personal jurisdiction, the actions of an agent are attributable to
the principal.” Sher v. Johnson, 911 F.2d 1357, 1362 (9th Cir. 1990). To find an
agency relationship, the “parent company must have the right to substantially
control its subsidiary’s activities.” Williams v. Yamaha Motor Co. Ltd., 851 F.3d
1015, 1024–25 (9th Cir. 2017).
Diaz has not alleged that One Technologies has substantial control over its
2 We deny One Technologies’ motion for leave to file supplemental briefing,
Dkt. 54, as unnecessary and do not consider it in this disposition.

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third-party publishers’ email activities. In her complaint, Diaz alleges that One
Technologies “admits to having no control over the email[s] sent” because
“Defendant admitted under oath that it has no control over the emails.” One
Technologies’ Compliance Manager also declared that the publishers “control all
aspects of transmitting the emails,” “make fundamental decisions concerning the
emails themselves,” and “choos[e] each email’s recipient.” Diaz has not pointed to
any provision in One Technologies’ “affiliate agreement” that gives it substantial
control over marketing, strategy, or recipients.
Second, Diaz’s position that One Technologies purposefully avails itself of
California’s jurisdiction by operating an interactive website targeting Californians
also fails. Diaz’s claims do not arise out of or relate to One Technologies’ website.
See Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 2004).
In each case Diaz cites in which personal jurisdiction was held to exist in
part because of a website, the plaintiffs’ claims related to the defendants’ websites
themselves. See Toys “R” Us, Inc. v. Step Two, S.A., 318 F.3d 446, 448 (3rd Cir.
2003) (defendant allegedly “used its Internet web sites to engage in trademark
infringement”); Plixer Int’l v. Scrutinizer GmbH, 905 F.3d 1, 4–5 (1st Cir. 2018)
(similar); Herbal Brands, Inc. v. Photoplaza, Inc., 72 F.4th 1085, 1088 (9th Cir.
2023) (defendant allegedly made unauthorized sales of plaintiff products from a
website); Will Co. Ltd. v. Lee, 47 F.4th 917, 919 (9th Cir. 2022) (defendant

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allegedly violated copyright laws by hosting material on its website). Diaz
complains of the receipt of deceptive emails, not the use of One Technologies’
website.
The district court also did not abuse its discretion by denying Diaz’s request
for jurisdictional discovery, as she and One Technologies denied the existence of
an agency relationship between One Technologies and its publishers. See Pebble
Beach Co. v. Caddy, 453 F.3d 1151, 1160 (9th Cir. 2006).
AFFIRMED.

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