United States District Court, D. Arizona
AMA Multimedia LLC, a Nevada limited liability company, Plaintiff,
Sagan Limited, a Republic of Seychelles company, Cyberweb Ltd., a Barbados company, and Netmedia Services Inc., a Canadian company, individually and d/b/a Porn.com; GLP 5, Inc., a Michigan company d/b/a Trafficforce.com; and David Koonar, an individual, Defendants.
G. Campbell Senior United States District Judge.
the Court is Defendants' renewed motion to dismiss based
on forum non conveniens. Doc. 154. The motion is fully
briefed, and oral argument has not been requested. For the
reasons stated below, the motion will be granted.
AMA Multimedia, LLC, a producer of pornographic material,
asserts copyright infringement claims against several
entities and one individual associated with Porn.com. Doc.
16. Porn.com is a video streaming website that generates
revenue through paid memberships and advertising space.
Id. ¶¶ 48-49, 57. AMA alleges
that Defendants Sagan Limited, Cyberweb Ltd., Netmedia
Services Inc., and David Koonar are owners or operators of
Porn.com. Id. ¶¶ 2-8, 46. AMA further
alleges that these Defendants own and operate Defendant GLP
5, Inc., an advertising broker doing business as
Trafficforce.com. Id. ¶¶ 7, 47, 94-95.
distributes its pornographic material through DVD sales and
various websites. Id. ¶ 28. Users of AMA
websites must be paid members to view the material.
Id. ¶¶ 29-30. AMA provides sample
promotional videos to advertising affiliates and licenses
certain material to other pornographic websites. Id.
¶ 30. Beginning in 2007, pursuant to an AMA affiliate
program agreement, AMA provided certain promotional videos
for Defendants to display on Porn.com for the purpose of
directing traffic to AMA's paid membership sites.
Id. ¶ 63; see Doc. 157-1 at 19.
November 2015, AMA learned that Porn.com had displayed 64 of
AMA's copyrighted works, none of which was a promotional
video provided by AMA pursuant to the affiliate program
agreement. Doc. 16 ¶¶ 63, 78; see Doc. 1-1
at 1-9. AMA asserts that the works were uploaded onto
Porn.com by Defendants, not third-party users as Defendants
claim. Doc. 16 ¶¶ 78-92. AMA further asserts that
in March 2016, other copyrighted works were displayed on
Trafficforce advertising banners on Porn.com. Id.
¶ 98; see Doc. 1-1 at 31-34. Claiming that the
works were displayed on Porn.com without its approval or
consent, AMA asserts various copyright infringement claims
against all Defendants. Doc. 16 ¶¶ 82, 105-58.
contend that they had the right to display the allegedly
infringing material based on a licensing agreement between
AMA and one of Defendants' affiliates, GIM Corporation.
This agreement - formally, the Content Partner Revenue
Sharing Agreement (“CPRA”) - was entered into in
September 2012 when AMA joined GIM's Paidperview.com
revenue sharing program. Doc. 27-3 at 25-34. The CPRA granted
GIM a license to use content provided by AMA on websites
whose advertisements are controlled by Trafficforce.com.
Id. at 25 (CPRA §§ B, 1.1).
moved to dismiss or stay this case based in part on the
CPRA's forum selection clause, which provides that
“[a]ny legal action arising out of or relating to [the
CPRA] must be instituted in a court located in
Barbados[.]” Id. at 30 (CPRA § 10.5);
see Docs. 27-1 at 18, 42-1 at 18, 49-1 at 14-17,
70-1 at 11-17. The Court denied the stay request and deferred
ruling on motions to dismiss pending jurisdictional
discovery. Doc. 64. Following the discovery and additional
briefing, the Court granted Defendants' motions to
dismiss on the basis of the forum selection clause. Doc. 126.
The Court found that the clause (1) applies to AMA's
copyright infringement claims because the dispute arises out
of or relates to the CPRA, (2) is valid and enforceable, and
(3) can be invoked by Koonar as an officer of GIM and by
Cyberweb, Netmedia, and Sagan because they are affiliates of
GIM which were assigned rights under the CPRA. Id.
at 5-17. AMA appealed and the Ninth Circuit reversed, finding
that the record did not support an assignment of GIM's
rights under the CPRA. Doc. 147-1 at 4. The case was remanded
for further proceedings, including consideration of
Defendants' alternative arguments for enforcing the forum
selection clause. Id. at 5.
Court's direction, the parties filed supplemental briefs.
Docs. 154, 157, 161. Defendants argue that they have standing
to enforce the forum selection clause as agents of GIM,
third-party beneficiaries of the CPRA, implied licensees and
assignees of rights under the CPRA, and closely related
parties under Manetti-Farrow, Inc. v. Gucci America,
Inc., 858 F.2d 509 (9th Cir. 1988). Doc. 154 at 10-20.
AMA contends that these arguments lack merit because
Defendants' infringing conduct and operation of Porn.com
have nothing to do with the CPRA or GIM. Doc. 157 at 9-21.
Court previously found that the CPRA's forum selection
clause applies to AMA's copyright claims and otherwise is
valid and enforceable. Doc. 126 at 5-11, 14-17. These
findings were not disturbed on appeal. See Doc.
147-1. Having considered the supplement briefs and relevant
case law, the Court now finds that Defendants have standing
to enforce the CPRA's forum selection clause because they
are closely related to the contractual relationship between
AMA and GIM. The Court therefore will grant the renewed
motion to dismiss. Given this ruling, the Court need not
consider Defendants' other arguments for enforcing the
forum selection clause.
and enforcement of forum selection clauses are procedural
issues to be decided under federal law. See
Manetti-Farrow, 858 F.2d at 513; TAAG Linhas Aereas
de Angola v. Transamerica Airlines, Inc., 915 F.2d 1351,
1353 (9th Cir. 1990). The Supreme Court has instructed that
such clauses are presumptively valid and should not be set
aside unless the party challenging the clause “clearly
show[s] that enforcement would be unreasonable and unjust, or
that the clause [is] invalid for reasons such as fraud or
overreaching.” M/S Bremen v. Zapata Off-Shore
Co., 407 U.S. 1, 15 (1972). 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.
Ct. for the W. Dist. of Tex., 571 U.S. 49, 61 (2013).
motion to dismiss based on a forum selection clause is
treated as an improper venue motion under Federal Rule of
Civil Procedure 12(b)(3). See Argueta v. Banco Mexicano,
S.A., 87 F.3d 320, 324 (9th Cir. 1996). In ruling on a
Rule 12(b)(3) motion, the pleadings are not accepted as true
and the court may consider other evidence. Id. The
court must resolve all factual conflicts and draw all
reasonable inferences in favor of the non-moving party.
See Murphy v. Schneider Nat'l, Inc., 362 F.3d
1133, 1138 (9th Cir. 2004); Holland Am. Line Inc. v.
Wartsila N. Am., Inc., 485 F.3d 450, 455 (9th Cir.