United States District Court, D. Arizona
G. CAMPBELL UNITED STATES DISTRICT JUDGE
AMA Multimedia, LLC, a producer of pornographic material,
asserts copyright infringement claims against several
entities and one individual associated with the website
Porn.com: Sagan, Limited; Cyberweb, LTD; Netmedia Services,
Inc.; GLP 5, Inc.; and David Koonar. Defendant Sagan, a
Seychelles corporation, moves to dismiss for lack of personal
jurisdiction pursuant to Federal Rule of Civil Procedure
12(b)(2), or, in the alternative, to stay these proceedings
pending resolution of an action currently before the Supreme
Court of Barbados. Doc. 42. The parties' request for oral
argument is denied because the issues have been fully briefed
and oral argument will not aid in the Court's decision.
See Fed. R. Civ. P. 78(b); Partridge v.
Reich, 141 F.3d 920, 926 (9th Cir. 1998). The Court will
deny both the stay request and the motion to dismiss.
is a video streaming website that generates revenue through
its Content Partnership Program and advertising banners. Doc.
16, ¶¶ 56-57. AMA asserts Defendants
Sagan, Cyberweb, Netmedia, and David Koonar are each owners
and/or operators of Porn.com and GLP. Doc. 16, ¶¶
2-3, 46-47. Defendants have claimed that Cyberweb is the
owner/operator of Porn.com (Doc. 27-3 at 3, ¶ 15), but
Sagan is listed as an owner/operator by both Porn.com's
terms of service and a designation form filed with the U.S.
Copyright Office (Doc. 51-1 at 6-9). Sagan does not contest
the validity of these documents, and states only that
“Sagan does not own any domain names or websites or
contact with any entity located in Arizona to provide
services, including hosting and the like.” Doc. 42-1 at
12; Doc. 60 at 8.
September 2012, AMA joined Porn.com's Content Partnership
Program by entering into a content partner revenue sharing
agreement (“CPRA”) with GIM Corp.
(“GIM”). Doc. 33 at 6; see also Doc. 52
at 2 (incorporating Doc. 33 by reference). AMA agreed to the
CPRA by completing an automated process at Paidperview.com.
Id. There was no direct contact between AMA and any
of the Defendants. Id. The CPRA granted GIM a
license to use content provided by AMA on websites whose
advertisements are controlled by Traffic Force. Id.
The CPRA dictated the manner and form in which AMA would
provide content, and AMA granted GIM a license only for
content provided under the CPRA. Id.
November 2015, AMA became aware that Porn.com had displayed
64 of AMA's copyright registered works over 110 separate
Porn.com affiliated URLs. Doc. 16 at ¶ 78. In December
2015, AMA provided Defendants' counsel with a draft
complaint and settlement offer regarding the alleged
infringement. Doc. 33 at 2. According to AMA, over the next
four months “Defendants provided a string of delays and
misrepresentations about the matters and settlement
negotiations.” Id. In April 2016, AMA
presented Defendants with an amended complaint and a
“deadline to choose between accepting a settlement
offer or hav[ing] the case filed in U.S. District Court, for
the District of Arizona.” Id. at 3. Defendants
requested an extension until April 28, 2016 to consider the
settlement offer, and AMA agreed. Id.
April 27, 2016, Cyberweb, Netmedia, Sagan, GLP, GIM, and
David Koonar (collectively, “Porn.com Entities”)
filed a complaint against AMA and Adam Silverman in the
Supreme Court of Barbados. Doc. 27-3 at 17-23. The Porn.com
Entities sought (1) injunctive relief to restrain
anticipatory breach of the CPRA, (2) a declaration that any
disputes related to the CPRA are governed by Barbados law and
must be adjudicated in Barbados, (3) a declaration that the
Porn.com Entities are entitled to rely on their rights under
the CPRA, (4) a declaration that the Porn.com Entities are
entitled to publicize and distribute materials provided to
them by AMA and Silverman, and (5) relief for prior breaches
of the CPRA, including damages. Id. at 17-18.
filed this action the next day, April 28, 2016. Defendant
Sagan now moves to dismiss the claims against it for lack of
personal jurisdiction, or, in the alternative, to stay these
proceedings pending completion of the Barbados action. Docs.
42, 61, 62.
a defendant moves to dismiss for lack of personal
jurisdiction, the plaintiff bears the burden of demonstrating
that the court has jurisdiction over the defendant.”
Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1154 (9th
Cir. 2006). “Where, as here, the defendant's motion
is based on written materials rather than an evidentiary
hearing, the plaintiff need only make a prima facie showing
of jurisdictional facts to withstand the motion to
dismiss.” Mavrix Photo, Inc. v. Brand Techs.,
Inc., 647 F.3d 1218, 1223 (9th Cir. 2011). “The
plaintiff cannot ‘simply rest on the bare allegations
of its complaint, ' but uncontroverted allegations in the
complaint must be taken as true.” Id. (quoting
Schwarzenegger v. Fred Martin Motor Co., 374 F.3d
797, 800 (9th Cir. 2004). The Court may not assume the truth
of allegations in a pleading that are contradicted by an
affidavit, but factual disputes are resolved in
Plaintiff's favor. Id.
Personal Jurisdiction over Sagan.
argues that Sagan is subject to personal jurisdiction under
Federal Rule of Civil Procedure 4(k)(2). Doc. 51 at 4-5. Rule
4(k)(2) provides that serving a summons or filing a waiver of
service establishes personal jurisdiction over a defendant if
(1) the claim arises under federal law, (2) “the
defendant is not subject to jurisdiction in any state's
courts of general jurisdiction, ” and (3) exercising
jurisdiction is consistent with the United States
Constitution. Fed.R.Civ.P. 4(k)(2).
first factor is satisfied in this case because AMA asserts
claims of copyright infringement under federal law. The
second factor is satisfied if the defendant “does not
concede to jurisdiction in another state.” Holland
Am. Line Inc. v. Wartsila N. Am., Inc., 485 F.3d 450,
461 (9th Cir. 2007) (citation omitted). Sagan does not make
under the third factor - the due process analysis - “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. at 462. The question, then, is
whether Sagan has sufficient minimum contacts with the United
States so that maintenance of the suit here does not offend
traditional notions of fair play and substantial justice.
Int'l Shoe Co. v. Wash., 326 U.S. 310, 316
(1945). A court must consider whether (1) the defendant
purposely directed conduct at the forum, (2) the claim arises
out of the defendant's forum-related activities, and (3)
the exercise of jurisdiction comports with fair play and
substantial justice. Mavrix Photo, Inc. v. Brand Techs.,
Inc., 647 F.3d 1218, 1227-28 (9th Cir.
asserts that it has no contacts of any kind with either the
United States or Arizona. Doc. 42-1 at 5. AMA alleges in its
complaint, however, that Sagan is an owner/operator of
Porn.com, and AMA provides documentation in support of its
claim. Doc. 16, ¶¶ 2-3; Doc. 51-1 at 6-9 (U.S.
Copyright Office Designation form and Porn.com terms of
service showing Sagan as the owner/operator of Porn.com). In
its reply, Sagan does not address, much less contest,
AMA's allegation or supporting documentation.
See Doc. 60. Accordingly, the Court will accept as
true that Sagan is an owner/operator of Porn.com.
Mavrix, 647 ...