United States District Court, D. Arizona
Hydentra HLP Int. Limited and Hydentra LP HLP General Partner Incorporated, Plaintiffs,
Sagan Limited, MXN Limited, Netmedia Services Incorporated, and David Koonar, Defendants.
G. Campbell United States District Judge.
Hydentra HLP Int. Ltd. and Hydentra LP HLP General Partner
Incorporated (collectively “Plaintiffs”) are
companies organized under the laws of the Republic of Cyprus
and the producers of pornographic material. In this case they
assert claims for copyright infringement against several
foreign entities and one individual associated with the
website Porn.com. Defendants Sagan Limited; MXN Limited
(“Cyberweb”); Netmedia Services, Inc.; and David
Koonar are residents of Seychelles, Barbados, Canada, and
Canada respectively. Defendants have filed three independent
motions to dismiss under Rule 12(b)(2) for lack of personal
jurisdiction. Docs. 35, 36, 37. Additionally, Defendants
Netmedia and Koonar move to dismiss Plaintiffs' claims
under Rule 12(b)(6). Docs. 36, 37. The motions are fully
briefed. Docs. 35, 36, 37, 38, 44, 45, 53, 60, 61.
Defendants' 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). For the reasons that follow, the Court will grant
Defendants' motions to dismiss.
following facts are taken from Plaintiffs' complaint and
are assumed true for the purposes of this motion.
website Porn.com is a video streaming website that generates
revenue through premium memberships and advertising. Doc. 1,
¶¶ 39-40. Defendants Sagan, Cyberweb,
Netmedia, and David Koonar are each owners and/or operators
of Porn.com. Id., ¶ 38.
receives a significant portion of its web traffic from the
United States. Id., ¶ 47 (Plaintiffs allege
63.1 million visits per month, 21.43% of which are from the
United States). Defendants sell advertising space on Porn.com
in several forms, including banners and links in close
proximity to videos, often targeted to the user's
location. Id. ¶ 48. Defendants advertise that
“HD Premium members receive ‘Stunning High
Definition Video, ' ‘Browse 100% Ad-Free, ' and
can ‘Download videos, DVDs, and pictures to keep.'
In addition, Defendants advertise that Premium Members get
access to the ‘best sites and studios in
HD.'” Id., ¶ 52.
assert that Defendants engage in a practice called
“scraping, ” by which entities “aggregate
on their own, user information and videos from other
websites, then create a façade that those users exist
on their own website and upload the videos to [their]
websites directly.” Id., ¶¶ 58-59,
69. Scraping “allows a site to provide more high
quality video content to their end users while maintaining
the appearance that an army of third parties uploaded a vast
library of professionally shot content in a concentrated
period.” Id., ¶ 59.
November 2015, Porn.com displayed four of Plaintiffs'
copyright registered works over four separate Porn.com URLs.
Id., ¶ 65. The infringing videos were purported
by Defendants to have been uploaded by third party internet
users. Id. “Three of Plaintiffs' videos
posted on Porn.com are accompanied by a user name represented
to be the uploader” of the video, but a search on
Porn.com for these user names resulted in a report that
“there is ‘No Such Member' or user on
Porn.com.” Id. Plaintiffs contend that this
report supports the allegation that Defendants engage in
“scraping” and that Defendants, not a purported
third party, are liable for the infringing acts.
Id., ¶¶ 60-74, 90-92. Plaintiffs allege
four counts: (1) copyright infringement, (2) contributory
copyright infringement, (3) vicarious copyright infringement,
and (4) inducement of copyright infringement. Id.,
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.
assert that each Defendant is subject to personal
jurisdiction pursuant to Rule 4(k)(2). Doc. 1, ¶¶
1-24; Docs. 38 at 5, 44 at 6, 45 at 11. Rule 4(k)(2) provides
that a court may exercise personal jurisdiction over a
defendant if (1) the claim arises under federal law, (2) the
defendant is not subject to jurisdiction in any state court
of general jurisdiction, and (3) exercising jurisdiction is
consistent with the United States Constitution. Fed.R.Civ.P.
concede that the first and second factors are satisfied.
See, e.g., Doc. 36 at 6. The first factor is
satisfied because Plaintiffs assert claims of copyright
infringement under federal law. The second factor is
satisfied because no Defendant “concede[s] to
jurisdiction in another state.” Holland Am. Line
Inc. v. Wartsila N. Am., Inc., 485 F.3d 450, 461 (9th
Cir. 2007) (citation omitted). Thus, the Court need only
assess the third factor. Id. at 462.
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 Defendants have 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, 647 F.3d at 1227-28.
previous case before this Court, involving the same
plaintiffs' counsel and Defendants, the Court conducted
this Rule 4(k)(2) jurisdictional analysis as to Defendant
Sagan. AMA Multimedia LLC v. Sagan Ltd., No.
CV-16-01269-PHX-DGC, 2016 WL 5946051, at *3-8 (D. Ariz. Oct.
13, 2016) (“AMA”). The Court found that
Sagan engaged in purposeful direction at the United States,
and that the Court's exercise of personal jurisdiction
over Sagan was reasonable. Id. In their motion,
Defendants directly address the AMA decision, and
contend that in this instance, “different facts,
additional facts, and a different Plaintiff compel a
different result.” Doc. 35 at 14. Plaintiffs argue ...