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. Defendants include Sagan, Limited; Cyberweb
Limited; Netmedia Services, Inc.; GLP 5, Inc.; and David
Koonar. There are several motions pending. Defendants GLP,
Netmedia, Cyberweb, and Koonar move to dismiss for lack of
personal jurisdiction. Docs. 27, 49, 70. In the alternative,
each Defendant moves to dismiss on the basis of forum non
conveniens, or to stay these proceedings pending resolution
of an action in Barbados. Id. Also pending are
motions for leave to conduct jurisdictional discovery (Doc.
65), for leave to file a sur-reply (Doc. 77), for default
(Doc. 82), and to strike a response (Doc. 84). 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
that jurisdictional discovery has been finished and briefing
is complete, the Court concludes that the forum selection
clause is conclusive. Courts generally enforce such clauses,
and AMA has failed to make the showing necessary to defeat
the forum selection clause in this case. The Court therefore
will dismiss this action under the doctrine of forum non
conveniens for all Defendants other than GLP.
is a video streaming website that generates revenue through
its content partnership program and advertising banners. Doc.
16, ¶¶ 56-57. AMA asserts that Defendants
Sagan, Cyberweb, Netmedia, and David Koonar are owners or
operators of Porn.com. Id., ¶¶ 2-3, 46-47.
In September 2012, AMA joined Porn.com's content
partnership program by entering into a content partner
revenue sharing agreement (“CPRA”) with GIM
Corporation. Doc. 33 at 6; see also Doc. 52 at 2.
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 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 copyrighted 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. 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 in the Supreme Court of
Barbados. Doc. 27-3 at 17-23. AMA filed this action the next
day, April 28, 2016. Doc. 1. The Court has previously
considered motions to dismiss from Defendants GLP, Netmedia,
and Sagan. Docs. 27, 42. On October 6, 2016, the Court denied
Defendants' motion to stay, but granted AMA leave to
conduct supplemental jurisdictional discovery, holding the
motions to dismiss in abeyance pending the discovery's
completion. Doc. 64. In the same order, the Court
noted that Defendants Netmedia and GLP argued for dismissal
on the basis of the forum selection clause for the first time
in their reply brief. Id. at n.1. The Court ordered
the parties to address the forum selection clause issue in
the briefing yet to come, instructed that Defendants
Netmedia, GLP, and Sagan should not file additional motions
to dismiss on the basis of the forum selection, and stated
that “[w]hen the Court addresses the issue after
completion of the Koonar [and Cyberweb] briefing, it will
resolve the issue for the entire case.”
Additional facts from jurisdictional
completion of supplemental jurisdictional discovery, AMA
asserts the following facts. Porn.com is a website, not a
separate corporation. It has no officers, directors, or
independent corporate books or financial records.
Koonar is the common and guiding force behind all Porn.com
entities. Koonar is the only known beneficiary of an Ontario,
Canada family trust. That trust is the sole shareholder of
both 1614985 Ontario, Inc. (“161”) and
Imagination Capital, Inc. Koonar is president and sole
director of 161. 161 owns GIM Corp. in full and owns 50% of
Cyberweb. AMA alleges that Cyberweb is nothing more than one
person - Kristen Richardson - living in Barbados and working
out of his personal residence to hold records for websites
owned by his childhood friend, David Koonar. Cyberweb does
not have a physical office or pay any employees other than
is also the founder of Imagination Capital, Inc. Imagination
is the owner of Netmedia. Koonar is both president and a
director of Netmedia. All accounting for Cyberweb is done by
Netmedia in Canada. Additionally, all technical aspects and
day-to-day operation of Porn.com is done by Netmedia.
entered into a technical service agreement with GIM to
facilitate operation of the Porn.com, and in turn GIM
subcontracts with Netmedia. Koonar also formed GIM, a
Barbados corporation. Koonar is the president, director, and
sole employee of GIM. GIM has no other employees, nor a
physical location for business. GIM has a technical service
agreement with Netmedia to perform all day-to-day functions
of Porn.com. Defendants aver that Porn.com is one of
thousands of websites Netmedia manages as a subcontractor for
asserts that Sagan is a shell corporation used to help shield
the owners of Porn.com. Sagan, a Seychelles corporation, is
listed as an owner/operator of Porn.com by both
Porn.com's terms of service and a form filed with the
U.S. Copyright Office. The Court has already ruled it is
subject to jurisdiction here. See Doc. 69.
Forum Non Conveniens.
CPRA's forum selection clause provides that “[a]ny
legal action arising out of or relating to this Agreement
must be instituted in a court located in Barbados.”
Doc. 27-3 at 30 (CPRA § 10.5). Defendants argue that the
clause requires that this action be dismissed for improper
venue under Federal Rule Civil Procedure 12(b)(3). Doc. 49 at
15; Doc. 70-1 at 11. AMA opposes Defendants' motion,
arguing that: (1) the forum selection clause does not apply
in this litigation because AMA's claims of copyright
infringement do not arise out of or relate to the CPRA, (2)
Defendants are not parties to the CPRA and cannot invoke its
forum selection clause, and (3) the clause is unenforceable.
Docs. 68, 89.
generally enforce forum selection clauses. The Supreme Court
has instructed that such clauses are presumptively valid and
should not be set aside unless the party challenging the
clause shows that enforcement would be unreasonable and
unjust, or that the clause is invalid for reasons such as
fraud or overreaching. See M/S Bremen v. Zapata Off-Shore
Co., 407 U.S. 1, 14 (1972). Indeed, courts decline to
enforce forum selection clauses “[o]nly under
extraordinary circumstances unrelated to the convenience of
the parties.” Atl. Marine Constr. Co. v. U.S. Dist.
Court, 134 S.Ct. 568, 581 (2013).
motion to dismiss based on a forum selection clause is
treated as an improper venue motion under Rule 12(b)(3).
Argueta v. Banco Mexicano, S.A., 87 F.3d 320, 324
(9th Cir. 1996). In ruling on a 12(b)(3) motion, the
pleadings are not accepted as true and the Court may consider
other evidence. Id. Interpretation and enforcement
of forum selection clauses are matters of federal law.
Manetti-Farrow, Inc. v. Gucci America, Inc., 858
F.2d 509, 513 (9th Cir. 1988).
Application of the forum selection clause to AMA's
argues that the forum selection clause in the CPRA does not
apply in this case because its claims involve only copyright
law, not contractual issues related to the CPRA. Docs. 68,
89. Defendants argue that the forum selection clause applies
for three reasons: (1) the language of the clause is broad
and covers all aspects of the parties' relationship, (2)
§ 7.1 of the CPRA governs AMA's claims, and (3) the
allegedly infringing conduct was authorized by the CPRA. Doc.
70-1 at 12-17; Doc. 49-1 at 14-17.
Court must look to the language of the clause to determine
its scope. After considering the language, the Court will
look to relevant case law to determine the effect of the
language. In determining the construction and scope of a
forum selection clause, the Court may also consider cases
evaluating arbitration clauses because “an agreement to