Contact Us Today! (877) 276-5084

Attorney Steve® Blog

Personal jurisdiction in IP infringement cases

Posted by Steve Vondran | Jan 07, 2019 | 0 Comments

MTD – Lack of Personal Jurisdiction and/or Improper Venue Under F.R.C.P. 12(b)(2) or (3) due to a lack of personal jurisdiction over Defendants.

Internet jurisdiction california infringement  1024x717

Introduction

This blog talks about what it takes to establish “personal jurisdiction” in California where you have an out-of-state defendant (ex. someone from Texas, or Colorado or New York) who is being sued in California, for example, their copyright infringement of a California photographers protected intellectual property such as a photo, image, film, video, illustration, architect plan, music, song or other type of copyrighted work.

  1. General Rule

Generally, determining whether personal jurisdiction exists over an out-of-state defendant involves two inquiries:

  • whether the forum state's long-arm statute permits the assertion of jurisdiction

and

  • whether assertion of personal jurisdiction violates federal due process. Fireman's Fund Ins. Co. v. Nat'l Bank of Coops., 103 F.3d 888, 893 (9th Cir. 1996) (citations omitted).

However, because California's long-arm jurisdictional statute is coextensive with federal due process requirements, Panavision Int'l, L.P. v. Toeppen, 141 F.3d 1316, 1320 (9th Cir. 1998) (citing Cal. Civ. Proc. Code § 410.10), the two inquiries merge and the court need only determine whether the assertion of personal jurisdiction over the defendant violates the Due Process Clause. See Rocke v. Canadian Auto. Sport Club, 660 F.2d 395, 398 (9th Cir. 1981).

Accordingly, jurisdiction is proper over a nonresident defendant “if the defendant has certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.'” Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (internal quotation marks and citation omitted).

Under this analysis, a state may exercise either “general” or “specific” jurisdiction over a defendant. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414-15 (1984).

  1. General Jurisdiction

For general jurisdiction to exist over a nonresident defendant, the defendant must engage in “continuous and systematic general business contacts,” Helicopteros, 466 U.S. at 416 (citation omitted), that “approximate physical presence” in the forum state. Bancroft & Masters, Inc. v. Augusta Nat'l, Inc., 223 F.3d 1082, 1086 (9th Cir. 2000).

Attorney Steve® Tip – this could be argued where a company keeps a website up (for example) which is constantly available to California Clients.  For example, a Colorado real estate company website can be viewed by a California resident in San Francisco, and business can thus be solicited.  I would argue this is systematic and continuous as the website is always on and always open for business 365/24/7.

The Complaint contains no allegations that Defendant's contacts are so “continuous and systematic” that general jurisdiction is warranted. See Helicopteros, 466 U.S. at 418.

Factors considered in evaluating the extent of contacts include whether the defendant makes sales in the forum state, solicits or engages in business in the forum state, designates an agent for service of process in the forum state, holds a license in the forum state, or is incorporated in the forum state. See Bancroft & Masters, Inc. v. Augusta Nat'l, Inc., 223 F.3d 1082, 1086 (9th Cir. 2000).

More on general jurisdiction

  1. General Jurisdiction General jurisdiction exists when there are “substantial” or “continuous and systematic” contacts with the forum state, even if the cause of action is unrelated to those contacts. Bancroft & Masters, Inc. v. Augusta Nat'l Inc., 223 F.3d 1082, 1086 (9th Cir. 2000) (citing Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 415, 104 S. Ct. 1868, 80 L. Ed. 2d 404 (1984)).
  2. The contacts with the forum state must be of a sort that “approximate physical presence.” Id.; see also Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 801 (9th Cir. 2004) (“This is an exacting standard, as it should be, because a finding of general jurisdiction permits a defendant to be haled into court in the forum state to answer for any of its activities anywhere in the world.” (citing Brand v. Menlove Dodge, 796 F.2d 1070, 1073 (9th Cir. 1986))).
  3. The Ninth Circuit has concluded that “the parent-subsidiary relationship does not on its own establish two entities as ‘alter egos,' and thus does not indicate that general jurisdiction over one gives rise to general jurisdiction over the other.” Williams v. Yamaha Motor Co., 851 F.3d 1015, 1021 (9th Cir. 2017).
  4. Instead, “‘the alter ego test may be used to extend personal jurisdiction to a foreign parent or subsidiary when, in actuality, the foreign entity is not really separate from its domestic affiliate.'” Id. (quoting Ranza v. Nike, Inc., 793 F.3d 1059, 1073 (9th Cir. 2015)).
  5. To obtain general personal jurisdiction over a foreign affiliate based on the presence in the forum of a domestic affiliate, “a plaintiff must make out a prima facie case (1) that there is such unity of interest and ownership that the separate personalities of the two entities no longer exist and (2) that failure to disregard their separate identities would result in fraud or injustice.” Id. (quoting Ranza, 793 F.3d at 1073). 
  1. Specific Jurisdiction

The Court next considers whether there is specific jurisdiction in this case. Such specific jurisdiction requires a showing that:

(1) The non-resident defendant . . . purposefully direct[ed] [her] activities or consummate[d] some transaction with the forum or resident thereof; or perform[ed] some act by which [she] purposefully avail[ed] [herself] of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws;

(2) the claim must be one which arises out of or relates to the defendant's forum related activities; and

(3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e., it must be reasonable.

Schwarzenegger, 374 F.3d at 802 (citation omitted).

The plaintiff bears the burden of satisfying the first two prongs of the test. Sher v. Johnson, 911 F.2d 1357, 1361 (9th Cir. 1990). If the plaintiff fails to satisfy either of these prongs, personal jurisdiction is not established in the forum state. Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1555 (9th Cir. 2006).

If, however, the plaintiff succeeds in satisfying the first two prongs, the burden then shifts to the defendant to “present a compelling case” that the exercise of jurisdiction would be unreasonable. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476-78 (1985).

Purposeful availment – Under the first prong of the controlling test, Plaintiffs must establish that Defendant either purposefully availed itself of the privilege of conducting activities in California or purposefully directed its activities toward California. Schwarzenegger, 374 F.3d at 802 (citation omitted). Courts in this Circuit generally apply a purposeful direction analysis derived from the “effects” test articulated in Calder v. Jones, 465 U.S. 783 (1984). See Dole Food Co., Inc. v. Watts, 303 F.3d 1104, 1111 (9th Cir. 2002). The effects test requires a showing that the defendant:

(1) committed an intentional act,

(2) expressly aimed at the forum state,

(3) causing harm that the defendant knows is likely to be suffered in the forum state. Id.; see also Bancroft & Masters, 223 F.3d at 1087

A “purposeful availment” analysis is usually used in suits sounding in contract while a “purposeful direction” analysis is typically employed in a tort action. Schwarzenegger, 374 F.3d at 802.

A defendant purposefully avails himself of the privilege of conducting activities in the forum by deliberately “engag[ing] in significant activities within a State or [creating] ‘continuing obligations' between himself and the residents of the forum.” Gray & Co. v. Firstenberg Mach. Co., 913 F.2d 758, 760 (9th Cir. 1990) (quoting Burger King, 471 U.S. at 475-76).

Purposeful availment “typically consists of evidence of the defendant's actions in the forum, such as executing or performing a contract there.” Schwarzenegger, 374 F.3d at 802.

The purposeful direction test applied in tort cases applies the “effects” test derived from Calder v. Jones, 465 U.S. 783, 104 S. Ct. 1482, 79 L. Ed. 2d 804 (1984), and requires “that the defendant allegedly have:

(1) committed an intentional act,

(2) expressly aimed at the forum state,

(3) causing harm that the defendant knows is likely to be suffered in the forum state.” Dole Food Co. v. Watts, 303 F.3d 1104, 1111 (9th Cir. 2002) (citing Bancroft & Masters, 223 F.3d at 1087; Caruth v. Int'l Psychoanalytical Ass'n, 59 F.3d 126, 128 (9th Cir. 1995)).

The second requirement that the “claim must be one which arises out of or relates to the defendant's forum-related activities” is met if the plaintiff would not have been injured “but for” the defendant's activities. Panavision, 141 F.3d at 1322.

Finally, the third “reasonableness” prong is satisfied when the following factors weigh in favor of the exercise of jurisdiction over a nonresident defendant:

(1) The extent of purposeful interjection into the forum state;

(2) The burden on the defendant of defending in the forum;

(3) The extent of conflict with the sovereignty of defendant's state;

(4) The forum state's interest in adjudicating the dispute;

(5) The most efficient judicial resolution of the controversy;

(6) The importance of the forum to plaintiff's interest in convenient and effective relief;

and

(7) The existence of an alternative forum. FDIC v. British-Am. Ins. Co., 828 F.2d 1439, 1442 (9th Cir. 1987) (citing Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 840 (9th Cir. 1986); Lake, 817 F.2d at 1421-22; Corp. Inv. Bus. Brokers v. Melcher, 824 F.2d 786, 790 (9th Cir. 1987)).

Passive websites may not enough

Defendant's website is highly passive because it merely advertises the restaurant and includes a downloadable employment application. It does not purposefully avail Defendant of the protection of the forum state because it does not target California residents. There is no evidence that California residents have purchased anything from Defendants, nor is there evidence that California residents have applied for employment through Defendant. The Ninth Circuit has recognized that a website that merely advertised to web browsers does not confer specific jurisdiction. See Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414 (9th Cir. 1997) (“[N]o court has ever held that an Internet advertisement alone is sufficient to subject the advertiser to jurisdiction in the plaintiff's home state.  Rather, in each, there has been ‘something more' to indicate that the defendant purposefully (albeit electronically) directed his activity in a substantial way to the forum state” (citations omitted)

Attorney Steve® Tip:  Note this is the general rule for SPECIFIC (not GENERAL jurisdiction).  The Court can find jurisdiction EITHER way as noted above.

More on Specific Jurisdiction

Specific personal jurisdiction may be exercised when the “nature and quality” of the defendant's contacts with the forum state are significant in relation to the specific cause of action. Data Disc, 557 F.2d at 1287.

In order for the forum state to properly assert jurisdiction over an out of state defendant, the defendant must have purposefully directed its activities towards residents of the forum state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985). Further, the forum-related activities must be related to the claim, and the exercise of jurisdiction must be reasonable. Ballard v. Savage, 65 F.3d 1495, 1498 (9th Cir. 1995).

Burden of Proof

Legal Standards for Personal Jurisdiction A defendant may move to have a complaint dismissed for lack of personal jurisdiction. Fed. R. Civ. P. 12(b)(2). The plaintiff bears the burden of establishing personal jurisdiction. Ziegler v. Indian River County, 64 F.3d 470, 473 (9th Cir. 1995). If a court has not heard testimony or made factual determinations, however, the plaintiff must only make a prima facie showing of personal jurisdiction. Id. The plaintiff may use affidavits of knowledgeable witnesses in meeting its burden of proving jurisdiction. Data Disc, Inc. v. Sys. Tech. Assocs., Inc., 557 F.2d 1280, 1285 (9th Cir. 1977). In determining whether the plaintiff has met this burden, a court must take the allegations in the plaintiff's complaint as true and resolve disputed jurisdictional facts in the plaintiff's favor. Am. Tel. & Tel. Co. v. Compagnie Bruxelles Lambert, 94 F.3d 586, 588-89 (9th Cir. 1996).

Defendant should expect to be hauled in

A defendant's activities involving the forum state should be such that the defendant “should reasonably anticipate being haled into court there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S. Ct. 559, 62 L. Ed. 2d 490 (1980). Courts have adopted a two-tiered approach to analyze whether a non-resident defendant's contacts with the forum state are sufficiently substantial so as to comport both with the Constitution and with traditional notions of fair play and substantial justice. Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 90 L. Ed. 95 (1945). This two-tiered approach involves a determination of whether a court has general or specific jurisdiction over a defendant. See Panavision Int'l, L.P. v. Toeppen, 141 F.3d 1316, 1320 (9th Cir. 1998). 

Copyright Example Central District California

Plaintiff does not contend that either Defendant is subject to general jurisdiction (Opp'n at 1, 6), so the Court considers only whether it has specific jurisdiction over Defendants. Because the case centers on allegations of copyright infringement, the Court applies a purposeful-direction analysis. See, e.g., Axiom Foods, Inc. v. Acerchem Int'l, Inc., 874 F.3d 1064, 1069 (9th Cir. 2017).

  1. Purposeful Direction Analysis
  1. The Parties' Arguments and Evidence Sugar Films argues that it did not commit any intentional, wrongful act expressly aimed at California, explaining that it “licensed [the Program] to BBC to be distributed solely within the U.K. No authorized distribution of [the Program] was ever made into or within California. Any posting or distribution of [the Program] on YouTube, on other websites or via some other service that might be accessed by U.S. residents is completely unauthorized by Sugar Films, and Sugar Films takes reasonable efforts to seek the removal of such unauthorized content when it becomes aware that its copyrights are being infringed.” (Sugar Films Mem. P. & A. at 8, Docket No. 25-1; see Younge Decl. ¶¶ 4-5, Docket No. 25-4.)

BBC argues that individuals in the United States could only access BBC's iPlayer website to view the Program using VPNs or proxy servers to defeat BBC's restrictions on viewing outside of the United Kingdom. (BBC Mem. P. & A. at 9, Docket No. 29 (citing FAC ¶ 12).) According to BBC, this shows that it did not direct its conduct toward California. (Id. at 9.) BBC disputes Plaintiff's allegations of BBC's knowledge of the use of VPNs and proxy servers in 2015, arguing that between then and the release of the Program on BBC's iPlayer website in June 2017, BBC took additional steps to prevent unauthorized access to the website. (Id. at 9 n.4; see Gledhill Decl. ¶ 9, Docket No. 31.) BBC also argues that even if it was foreseeable that California residents would use its iPlayer to view the Program, that does not amount to BBC's having purposefully directed its activities at California. (Id. at 10.)

BBC has provided a declaration by Mark Gledhill, BBC's Software Engineering Manager, who is “responsible for maintaining the software that provides the Internet Protocol (IP) Geo-location and Virtual Private Network (VPN) blocking services used for the BBC iPlayer service.” (Gledhill Decl. ¶¶ 1, 3.) Gledhill states that audio-visual content on BBC's iPlayer service is restricted to residents in the United Kingdom, and that BBC “takes active steps to prevent access to the iPlayer service from outside the United Kingdom” through various technological means.The use of BBC's iPlayer service outside of the United Kingdom also violates BBC's terms and conditions for the service, which are available on the internet.

Case 2:17-cv-08041-PA-AS

Plaintiff contends that the “effects” test is satisfied.  According to Plaintiff, Defendants committed intentional acts by ripping material from a DVD of The Cosby Show, editing that material into the Program, traveling to Los Angeles to film interviews and locations for the Program, and approving the budget for and financing the production. Plaintiff argues that the “express aiming” requirement is satisfied because this is a case of willful copyright infringement, and that the Defendants are otherwise linked to the forum because of the trips to Los Angeles for filming, for which Sugar Films was responsible and which BBC “actively assisted by approving the budget which must have included travel and filming costs, and by financing the production.” Plaintiff argues that Defendants knew that Plaintiff is a California company and that it owned copyrights in the Cosby Show material used in the Program. Finally, Plaintiff argues that it “suffered harm in California because its copyrighted material was taken without its consent and without payment, and it therefore lost license fees,” and because “it lost control of its copyrighted property.”

Plaintiff argues that despite BBC's efforts to restrict access to its iPlayer service to United Kingdom viewers, “it is reasonable to infer that [the Program] was watched by many other individuals located in USA/California,” although “it is impossible to determine how many people in the USA or California viewed [the Program] via the iPlayer.”  Plaintiff refers to a 2015 article that estimated that 65 million people, or 29% of iPlayer users, were located outside of the United Kingdom.  Plaintiff then refers to more recent usage data from BBC about its iPlayer service, covering the time period that the Program was made available on the service,2/ and argues that “[e]specially given the increased use of VPN's, it would be reasonable to infer that even more people were watching the iPlayer from outside the UK in these 2 months.”

Norma Acland, Plaintiff's General Counsel, states in her declaration that “[i]n June-July 2017, while [she] was in Los Angeles County, [she] used a virtual private network on several occasions to access the BBC iPlayer, on which [she] watched [the Program].” (Acland Decl. ¶ 10.) In their reply, Defendants argue that willful copyright infringement and knowledge of the copyright owner's residence are no longer sufficient to demonstrate “express aiming” and therefore do not establish purposeful direction. (Reply at 3 (citing Axiom Foods, 874 F.3d 1064).) Defendants reiterate that unauthorized use of its iPlayer service does not demonstrate that they purposefully directed their conduct toward California, and they contend that their maintenance of a passive service on which users could view programs is not sufficient, either.  Defendants also argue that Plaintiff has not proved that any intentional act on their part caused harm in California.

Analysis Sugar Films copied Plaintiff's copyrighted materials and inserted them into the Program, and BBC broadcast the Program on its television channels and online. These qualify as intentional acts for purposes of the purposeful direction test. See, e.g., Axiom Foods, 873 F.3d at 1069. As for the second element of the test, in the past, the Ninth Circuit held that the “express aiming” requirement was satisfied by a defendant's “individualized targeting,” or wrongful conduct targeted at a plaintiff whom the defendant knew to be a resident of the forum state. Axiom Foods, 873 F.3d at 1069 (citing Wash. Shoe Co. v. A-Z Sporting Goods Inc., 704 F.3d 668, 671 (9th Cir. 2012); Brayton Purcell LLP v. Recordon & Recordon, 606 F.3d 1124, 1130 (9th Cir. 2010)).

“In the context of copyright infringement, [the Ninth Circuit had] held that a defendant's ‘alleged willful infringement of [a plaintiff's] copyright, and its knowledge of both the existence of the copyright and the forum of the copyright holder,' established ‘individualized targeting.'” Id. (quoting Wash. Shoe, 704 F.3d at 678-79). However, in light of the Supreme Court's decision in Walden v. Fiore, __ U.S. __, 134 S. Ct. 1115, 188 L. Ed. 2d 12 (2014), the Ninth Circuit recently explained that “mere satisfaction of [that] test[,] . . . without more, is insufficient to comply with due process.” 873 F.3d at 1070.

“[W]hile a theory of individualized targeting may remain relevant to the minimum contacts inquiry, it will not, on its own, support the exercise of specific jurisdiction, absent compliance with what Walden requires.” Id. Thus, a court “must look to the defendant's ‘own contacts' with the forum, not to the defendant's knowledge of a plaintiff's connections to a forum.” Id. (quoting Walden, 134 S. Ct. at 1124-25).

Plaintiff provides evidence of, and Defendants do not contest, Defendants' knowledge of Plaintiff's copyright ownership or location. The Court therefore assumes that Defendants knew both that the material used in the Program from The Cosby Show was copyrighted by Plaintiff and that Plaintiff is located in southern California. See Am. Tel. & Tel. Co., 94 F.3d at 588-89; see also Warner Bros. Home Entm't Inc. v. Jimenez, No. CV 12-9160 FMO (JEMx), 2013 WL 3397672, at *2 (C.D. Cal. July 8, 2013) (willful infringement shown where television program's packaging had copyright notice and plaintiff's address in California). But even if Defendants committed what otherwise would be willful copyright infringement, Defendants' conduct still lacks sufficient ties to California to subject them to personal jurisdiction in this Court.

That some California individuals may have viewed the Program does not establish that Defendants directed their conduct toward California, particularly because any viewership in California occurred despite Defendants' intentions and their efforts to prevent it. The “personal jurisdiction analysis must focus on the defendant's contacts with the forum state, not the defendant's contacts with a resident of the forum.” Picot v. Weston, 780 F.3d 1206, 1214 (9th Cir. 2015).

At most, Defendants maintained a passive website that was accessible to California residents, and that “alone cannot satisfy the express aiming prong,” Mavrix Photo, Inc. v. Brand Techs., Inc., 647 F.3d 1218, 1229 (9th Cir. 2011), let alone provide the greater showing now required. Defendants have offered evidence, and Plaintiff does not dispute, that “BBC did not direct any of its informational trailers about the program toward California residents,” and that “BBC generally does not promote or advertise in any publications that are intended to reach California residents.”

More importantly, BBC implemented technology and had in place terms of use to prevent California viewers from accessing the Program. That those efforts may not have been completely effective does not amount to purposeful direction. Cf. Triple Up Ltd. v. Youku Tudou Inc., 235 F. Supp. 3d 15, 25 (D.D.C. 2017) (“[T]he proposition that a website's affirmative geoblocking efforts should weigh against the exercise of personal jurisdiction is unobjectionable.”).

Unauthorized viewers outside of the United Kingdom do not provide a basis for personal jurisdiction; rather, Defendants' relationship with California must arise out of contacts that they themselves created with the state. See Walden, 134 S. Ct. at 1122; Axiom Foods, 874 F.3d at 1070. The Court also notes that any viewership of the Program in California provides no basis for asserting personal jurisdiction over Sugar Films, as BBC was responsible for the distribution of the Program. See Dos Santos v. Telemundo Cmmc'ns Grp., LLC, No. SACV 12-1373 JVS (MLGx), 2012 WL 9503003, at *6-7 (C.D. Cal. Dec. 19, 2012) (acts of allegedly infringing program's distributor not attributed to its producer).

Moreover, Plaintiff neither alleges nor offers actual evidence of the extent of viewership of the Program in California. Plaintiff provides proof of only one person in California (Acland) who viewed the Program on BBC's iPlayer service. Plaintiff's arguments about California viewership are speculative and are based almost entirely on a 2015 news article, since the time of which BBC improved the iPlayer's location-based viewership restrictions. The Court cannot conclude on this showing that California is the focal point of the Program and any harm suffered by Plaintiff. See Axiom Foods, 874 F.3d at 1070-71.

The Court is not persuaded by Plaintiff's argument that the Program is so “California-centric” as to supply the “something more” required to turn BBC's release of the Program on its iPlayer service into conduct targeting California. The fact that Defendants sought to create the Program for distribution entirely in the United Kingdom, and took active measures to prevent viewership elsewhere, suggests that the Program was not as California-focused as Plaintiff's contend. Moreover, even if it was foreseeable that individuals in California might be interested in the program, “[t]he foreseeability of injury in a forum ‘is not a “sufficient benchmark” for exercising personal jurisdiction.'” Axiom Foods, 874 F.3d at 1070 (quoting Burger King, 471 U.S. at 474; and citing Wash. Shoe, 704 F.3d at 675).

Sugar Films's interviews and filming of location shots in Los Angeles also are not sufficient to subject it to personal jurisdiction in this District. Those activities, which are not the basis for the alleged copyright infringement, did not make California the focus of the Program. Considering the full context of this case, the mere filming of some portions of the Program in California does not demonstrate that Sugar Films directed its conduct toward the state. See Walden, 134 S. Ct. at 1121 (“For a State to exercise jurisdiction consistent with due process, the defendant's suit-related conduct must create a substantial connection with the forum State.” (emphasis added)). Finally, the Court has not been presented with any basis for asserting specific personal jurisdiction over either Defendant due to the conduct of related corporate entities. See Axiom Foods, 874 F.3d at 1071 & n.5.

Jurisdictional discovery

Plaintiff mentions jurisdictional discovery only in passing, including in its opposition a single-sentence request for discovery “if the Court believes that there are factual issues that would assist it in making a ruling.”

Plaintiff does not explain what discovery it would conduct or why it would be helpful. A court may properly deny a request for jurisdictional discovery that is “based on little more than a hunch that it might yield jurisdictionally relevant facts.” Boschetto v. Hansing, 539 F.3d 1011, 1020 (9th Cir. 2008) (citing Butcher's Union Local No. 498 v. SDC Inv., Inc., 788 F.2d 535, 540 (9th Cir. 1986)).

The Court also need not permit discovery when it is based on speculation that contradicts actual evidence. See Pebble Beach Co., 453 F.3d at 1160 (“[W]here a plaintiff's claim of personal jurisdiction appears to be both attenuated and based on bare allegations in the face of specific denials made by defendants, the Court need not permit even limited discovery . . . .”) (quoting Terracom v. Valley Nat'l Bank, 49 F.3d 555, 562 (9th Cir. 1995)). Because Plaintiff fails to demonstrate what discovery could uncover that would establish personal jurisdiction in light of the Court's analysis, Plaintiff's request for discovery is denied. See Wells Fargo & Co. v. Wells Fargo Express Co., 556 F.2d 406, 430 n.24 (9th Cir. 1977) (“[A] refusal [to permit jurisdictional discovery] is not an abuse of discretion when it is clear that further discovery would not demonstrate facts sufficient to constitute a basis for jurisdiction.”).

General NATIONWIDE jurisdiction – FRCP 4k

Personal Jurisdiction Under Federal Rule of Civil Procedure 4(k)(2) Federal Rule of Civil Procedure 4(k)(2) provides: For a claim that arises under federal law, serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant if:

(A) the defendant is not subject to jurisdiction in any state's courts of general jurisdiction;

and

(B) exercising jurisdiction is consistent with the United States Constitution and laws. Fed. R. Civ. P. 4(k)(2) (emphasis added).

Plaintiff argues that if “either Defendant's contacts with California alone are insufficient to create jurisdiction,” personal jurisdiction is established under Rule 4(k)(2). (Opp'n at 6.) Plaintiff contends that the Rule applies because “[n]o claim of general jurisdiction is made and aggregation is not forbidden,” and that therefore “for jurisdictional purposes, the Court should take all of Defendants' nationwide contacts into consideration, not just their contacts with California.” (Id.) Rule 4(k)(2) has three requirements: (1) “the claim against the defendant must arise under federal law”; (2) “the defendant must not be subject to the personal jurisdiction of any state court of general jurisdiction”; and (3) “the federal court's exercise of personal jurisdiction must comport with due process.” Axiom Foods, 874 F.3d at 1072 (quoting Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1159 (9th Cir. 2006)). “The due process analysis under Rule 4(k)(2) is nearly identical to traditional personal jurisdiction analysis with one significant difference: rather than considering contacts between [the defendant] and the forum state, we consider contacts with the nation as a whole.” Id. (quoting Holland Am. Line Inc. v. Wartsila N. Am., Inc., 485 F.3d 450, 462 (9th Cir. 2007)). In the Ninth Circuit, Rule 4(k)(2) is applied sparingly. See Holland Am. Line, 485 F.3d at 462. Plaintiff asserts a claim for copyright infringement, satisfying Rule 4(k)(2)'s first requirement at least for that claim. See Axiom Foods, 874 F.3d at 1072.

Plaintiff's assertion that it does not make a claim of general jurisdiction does not directly address the Rule 4(k)(2) inquiry. However, “[i]n the Ninth Circuit a defendant bears the burden of identifying another state where they are subject to personal jurisdiction,” and Defendants have not identified such a state. L.A. Gem & Jewelry Design, Inc. v. An & Assocs. Co., (C.D. Cal. Dec. 6, 2017). As a result, Rule 4(k)(2)'s second requirement also is satisfied. See id.; see also Holland Am. Line, 485 F.3d at 461-62. However, the third requirement for application of Rule 4(k)(2) is not satisfied here. Other than a passing reference to filming trips to other locations in the United States during the production of the Program and conclusory assertions that it is “reasonable to infer that [the Program] was watched by many . . . individuals in the USA/California” Plaintiff does not allege, let alone provide evidence of, any contacts between Defendants and the United States beyond those discussed above for California. The Court's previous analysis largely applies here. Plaintiff's speculations about United States viewers of the Program outside of California are insufficient to establish jurisdiction. More importantly, any individuals in the United States who viewed the Program using the iPlayer service did so without Defendants' authorization and despite Defendants' preventative efforts. Plaintiff fails to establish that Defendants purposefully directed their activities toward the United States.

CASE

Under Rule 4(k)(2),“[e]ven in the absence of a federal statute authorizing nationwide service, foreign defendants who are not otherwise subject to jurisdiction in any state but who have contacts with the nation as a whole (‘national contacts') are subject to personal jurisdiction on claims arising under federal law.  To “establish personal jurisdiction based on a defendant's aggregated national contacts, plaintiff must prove three factors:

the defendant is not subject to the personal jurisdiction of any state court of general jurisdiction; the claim arises under federal law; and the federal court's exercise of personal jurisdiction comports with due process.” Id. § 3:35:5b, at 3-16 (internal quotation marks and citations omitted).

“The due process analysis under Rule 4(k)(2) is nearly identical to the traditional personal jurisdiction analysis with one significant difference: rather than considering contacts between the defendants and the forums state, we consider contacts with the nation as a whole.” See Pebble Beach, 453 F.3d at 1155 (internal quotations and citations omitted). As discussed in the Court's Tentative Ruling, the Ninth Circuit utilizes the following three-prong test to analyze whether specific jurisdiction1 exists, of which Plaintiff bears the burden of establishing the first two prongs:

(1) whether Dolphin purposefully directed its activities at the forum or purposefully availed itself of the privilege of conducting activities in the forum;

(2) whether Plaintiff's claims arise out of Dolphin's forum-related activities;

and

(3) whether the exercise of jurisdiction is reasonable.

Contact a California Copyright Attorney

We can help Plaintiff's who have been infringed by out of state defendants and also Defendants facing legal demand letters, subpoenas and lawsuits (including mediation, arbitration and litigation) in California.  We have offices in San Diego, Newport Beach, Santa Monica and San Francisco.  We are also licensed and have an office in Phoenix Arizona.  Call us at (877) 276-5084 for more information about our services.

SAMPLE MOTION

This Court has general jurisdiction over XXXX because it conducts substantial business in the State of California. This Court has specific jurisdiction because XXXX purposefully availed itself of the benefits of the State of California by conducting business here and advertising to California consumers, among other …….website

  1. The claims alleged in this Complaint arise in the State of California and the Central District of California or Northern District of California.

In order for a court's assertion of personal jurisdiction over a defendant to satisfy due process, the defendant must have “minimum contacts” with the forum state “such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.”  Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 801 (9th Cir. 2004) (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)).  There are two primary bases for the exercise of personal jurisdiction over a defendant: (1) “general jurisdiction,” requiring the defendant to have broad and frequent contacts with the forum state; and (2) “specific jurisdiction,” which may rest on more limited contacts specifically related to the plaintiff's cause of action. See Gator.Com Corp. v. L.L. Bean, Inc., 341 F.3d 5  1072, 1076 (9th Cir. 2003).

In either case, jurisdiction must be based on the defendant's purposeful contacts with the forum state:

Whether dealing with specific or general jurisdiction, the touchstone remains “purposeful availment.”  By requiring that contacts proximately result from actions by the defendant himself that create a “substantial connection” with the forum State, the Constitution ensures that a defendant will not be haled into a jurisdiction solely as a result of “random,” “fortuitous,” or “attenuated” contacts.

Glencore Grain Rotterdam B.V. v. Shivnath Rai Harnarain Co., 284 F.3d 1114, 1123 (9th Cir. 2002) (emphasis in original) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985)). Neither basis is present here, as established by the declaration accompanying this Motion.

The burden of establishing a basis for jurisdiction is on the plaintiff.  Scott v. Breeland, 792 F.2d 925, 927 (9th Cir. 1986) (“[t]he party seeking to invoke the court's jurisdiction bears the burden of establishing that jurisdiction exists”).  Where, as here, the defendants move to dismiss as their initial response to the complaint, a plaintiff must meet its burden by making at least prima facie showing that personal jurisdiction exists. Doe v. Unocal Corp., 248 F.3d 915, 922 (9th Cir. 2001) (citing Ballard v. Savage, 65 F.3d 1495, 1498 (9th Cir. 1995)).  Here, Plaintiff cannot meet its burden of establishing a basis for personal jurisdiction over Dr. Davies or Kiro Kids.  Neither Dr. Davies nor Kiro Kids has initiated any meaningful contact with Arizona and neither has purposefully availed itself of the privileges of conducting business in Arizona.

  1. Davies and Kiro Kids Lack the Broad and Frequent Contacts Necessary for General Jurisdiction in Arizona.

To establish general jurisdiction over Dr. Davies and Kiro Kids, Plaintiff must prove that Dr. Davies and Kiro Kids have engaged in “continuous and systematic general business contacts” with Arizona.  Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 801 (9th Cir. 2004) (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416 (1984)).  To be sufficient, such contacts must “approximate physical presence” by Dr. Davies and Kiro Kids in Arizona.  Id. at 801 (quoting Bancroft & Masters, Inc. v. Augusta National Inc., 223 F.3d 1082, 1086 (9th Cir. 2000)).

Neither Dr. Davies nor Kiro Kids has had such contacts with Arizona. As set forth in the Declaration of Dr. Davies, he and Kiro Kids simply do not conduct business operations in Arizona. Kiro Kids is an Australian proprietary limited company which operates chiropractic clinics in Victoria, Australia.  Dr. Davies and Kiro Kids have no presence in Arizona, business or otherwise.  Accordingly, there is no plausible argument for general jurisdiction in this case.  Tellingly, Plaintiff's Complaint does not include any allegations suggesting that Dr. Davies and Kiro Kids have purposefully availed themselves of the privilege of conducting business in Arizona, much less established continuous and systematic contacts with Arizona that would approximate physical presence.

Arizona Jurisdiction

  1. Davies and Kiro Kids Lack the Minimum Contacts Necessary for Specific Jurisdiction in Arizona.

The Ninth Circuit has adopted a three-part test to determine whether the exercise of specific jurisdiction over a defendant is appropriate:

(1)       the defendant must purposefully direct his activities or consummate some transaction with the forum or a resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws;

(2)       the claim must be one which arises out of or relates to the defendant's forum-related activities; and

(3)          the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable.

Boschetto v. Hansing, 539 F.3d 1011, 1016 (9th Cir. 2008) (citing Schwarzenegger, 374 F.3d at 802).  If each of these elements is not satisfied “jurisdiction in the forum would deprive the defendant of due process of law.”  Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1155 (9th Cir. 2006).  None of the elements are satisfied in the present case.

To establish the first element, Plaintiff must prove that Dr. Davies and Kiro Kids either purposefully availed themselves of the privilege of conducting business activities in Arizona or purposefully directed their activities toward Arizona.  See Schwarzenegger, 374 F.3d at 802.  “A showing that a defendant purposefully availed himself of the privilege of doing business in a forum state typically consists of evidence of the defendant's actions in the forum, such as executing or performing a contract there.” “A showing that a defendant purposefully directed his conduct toward a forum state, by contrast, usually consists of evidence of the defendant's actions outside the forum state that are directed at the forum, such as the distribution in the forum state of goods originating elsewhere.”

As discussed above, Dr. Davies and Kiro Kids have never executed or performed a contract in Arizona nor have they engaged in any business transactions in Arizona. Dr. Davies and Kiro Kids have not established an Arizona mailing address or an Arizona telephone to facilitate such business.  Accordingly, Dr. Davies and Kiro Kids have not purposefully availed themselves of the privilege of conducting business activities in Arizona. Likewise, Dr. Davies and Kiro Kids have not purposefully directed their activities toward Arizona.  Dr. Davies and Kiro Kids have never shipped any of their products to an Arizona address nor have they ever provided chiropractic services or educational seminars in Arizona.

9th Circuit

Plaintiff may argue that by maintaining a website that is available to Arizona residents, Kiro Kids has purposefully availed itself of the privilege of conducting business activities in Arizona and/or purposefully directed its activities toward Arizona. However, the Ninth Circuit has addressed this issue and held that the mere fact that a defendant maintains a website that is available to residents of the forum state is insufficient to establish personal jurisdiction.  See Brayton Purcell LLP v. Recordon & Recordon,  (9th Cir. May 28, 2010); Pebble Beach, 453 F.3d at 1157-58; Cybersell v. Cybersell, Inc.,

The Court said the Plaintiff needed “something more” to create a grounds for jurisdiction.

The reasonableness determination requires the consideration of several specific factors:

(1) the extent of the defendant's purposeful interjection into the forum state;

(2) the burden on the defendant in the defending forum;

(3) the extent of the conflict with the sovereignty of the defendant's state;

(4) the forum state's interest in adjudicating the dispute;

(5) the most efficient judicial resolution of the   controversy;

(6)  the importance of the forum to the plaintiff's interest in convenient and effective relief;

and

(7) the existence of an alternative forum.

Website Jurisdiction in Arizona

This Court addressed this issue in Golden Scorpio Corp. v. Steel Horse Saloon I, et al., (D. Ariz. Apr. 9, 2009). In concluding that personal jurisdiction did not exist, this Court observed that “mere operation of an interactive website ‘does not by itself show any persistent course of conduct by defendants in the forum state.'”  Id. (quoting GTE New Media Servs., Inc. v. BellSouth Corp., 199 F.3d 1343, 1349-50 (D.C. Cir. 2000)).

Contact a California Copyright Attorney

We can help Plaintiff's who have been infringed by out of state defendants and also Defendants facing legal demand letters, subpoenas and lawsuits (including mediation, arbitration and litigation) in California.  We have offices in San Diego, Newport Beach, Santa Monica and San Francisco.  We are also licensed and have an office in Phoenix Arizona.  Call us at (877) 276-5084 for more information about our services. 

About the Author

Steve Vondran

Welcome to the SHORT BIO page for Attorney Steve®  (Yes, I was able to get a trademark for Attorney Steve®) Click here to go to a more COMPLETE BIO. AZ Bar Lic. #025911 CA. Bar Lic. #232337 Introduction I have done a lot of things in my 15 years of law practice and in my life in general.  ...

Comments

There are no comments for this post. Be the first and Add your Comment below.

Leave a Comment

Contact us for an initial consultation!

For more information, or to discuss your case or our experience and qualifications please contact us at (877) 276-5084. Please note that our firm does not represent you unless and until a written retainer agreement is signed, and any applicable legal fees are paid. All initial conversations are general in nature. Free consultations are limited to time and availability of counsel and will depend on the type of case you are calling about (no free consultations for other lawyers). All users and potential clients are bound by our Terms of Use Policies. We look forward to working with you!

Menu