Mavrix Photo Inc. v. Brand Technologies Inc.

• Decision Date: 08 August 2011
• Docket Number: No. 09–56134.,09–56134.
• Citation: 647 F.3d 1218,99 U.S.P.Q.2d 1562
• Parties: MAVRIX PHOTO, INC., a Florida corporation, Plaintiff–Appellant,v.BRAND TECHNOLOGIES, INC., an Ohio corporation; Brad Mandell, an individual, Defendants–Appellees,andBrandtech, a business form unknown; gossipgirls.com, a business form unknown; celebrity-gossip.net, a business form unknown, Defendants.
• Court: U.S. Court of Appeals — Ninth Circuit

647 F.3d 1218

99 U.S.P.Q.2d 1562

11 Cal. Daily Op. Serv. 9962

2011 Daily Journal D.A.R. 11,903

MAVRIX PHOTO, INC., a Florida corporation, Plaintiff–Appellant,

v.BRAND TECHNOLOGIES, INC., an Ohio corporation; Brad Mandell, an individual, Defendants–Appellees,andBrandtech, a business form unknown; gossipgirls.com, a business form unknown; celebrity-gossip.net, a business form unknown, Defendants.

No. 09–56134.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 8, 2010.Filed Aug. 8, 2011.

Peter Afrasiabi (argued), Christopher Arledge, John Tehranian, One LLP, Newport Beach, CA, for the appellant.Andres F. Quintana, Quintana Law Group, Calabasas, CA, for the appellees.Appeal from the United States District Court for the Central District of California, Philip S. Gutierrez, District Judge, Presiding. D.C. No. 2:09–cv–02729–PSG–JC.Before: KIM McLANE WARDLAW and WILLIAM A. FLETCHER, Circuit Judges, and BARBARA M. LYNN, District Judge.^*

OPINION

W. FLETCHER, Circuit Judge:

Mavrix Photo, Inc. (“Mavrix”) sued Brand Technologies, Inc. and its CEO, Brad Mandell (collectively, “Brand”), in federal district court for the Central District of California, alleging that Brand infringed Mavrix's copyright by posting its copyrighted photos on its website. Brand moved to dismiss for lack of personal jurisdiction. See Fed.R.Civ.P. 12(b)(2). The district court denied Mavrix's motion for jurisdictional discovery and granted Brand's motion to dismiss. We reverse. We hold that Brand is not subject to general personal jurisdiction in California, but that its contacts with California are sufficiently related to the dispute in this case that it is subject to specific personal jurisdiction.

I. Background

Mavrix, a Florida corporation with its principal place of business in Miami, is a celebrity photo agency. Mavrix pays photographers for candid photos of celebrities. Its primary business is licensing and selling those photos to purveyors of celebrity news such as People and Us Weekly magazines. Many of the celebrities whom Mavrix photographs live and work in Southern California. Mavrix keeps a Los Angeles office, employs Los Angeles-based photographers, has a registered agent for service of process in California, and pays fees to the California Franchise Tax Board.

Brand, an Ohio corporation with its principal place of business in Toledo, operates a website called celebrity-gossip.net. As its name suggests, the website covers popular personalities in the entertainment industry and features photo galleries, videos, and short articles (for example, “Lindsay Lohan Stays Sexy and Sober,” and “Shiloh Jolie–Pitt Named Most Influential Infant”). The website has several interactive features. Visitors to the site may post comments on articles, vote in polls (“Is Robert Pattinson the sexiest man on the planet?”), subscribe to an email “Celebrity Newsletter,” join the “Gossip Center” membership club, and submit news tips and photos of celebrities. The website is very popular. When this litigation began, Alexa.com, an Internet tracking service, ranked celebrity-gossip.net as number 3,622 out of approximately 180 million websites worldwide based on traffic. By comparison, the national news website MSNBC.com was then ranked number 2,521. In its marketing materials, Brand claims that celebrity-gossip.net currently receives more than 12 million unique U.S. visitors and 70 million U.S. page views per month. Gossip Center Network, Media Kit, at 3, available at http:// cdn. gossipcenter. com/ gossipgirls_ cdn/ GCN– Media Kit. pdf (last visited July 21, 2011). The record does not reflect how many of the website's visitors are California residents.

Like any large media entity, celebrity-gossip.net courts a national audience, not restricted to California. However, the website has some specific ties to California. Brand makes money from third-party advertisements for jobs, hotels, and vacations in California. The website also features a “Ticket Center,” which is a link to the website of a third-party vendor that sells tickets to nationwide events. Some of these events are in California. Brand has agreements with several California businesses. A California Internet advertising agency solicits buyers and places advertisements on celebrity-gossip.net. A California wireless provider designed and hosts on its servers a version of celebrity-gossip.net accessible to mobile phone users. A California firm designed the website and performs site maintenance. Finally, Brand has entered a “link-sharing” agreement with a California-based national news site, according to which each site agrees to promote the other's top stories. However, Brand has no offices, real property, or staff in California, is not licensed to do business in California, and pays no California taxes.

In 2008, a photographer working for Mavrix shot thirty-five pictures of Stacy Ferguson and Josh Duhamel while the couple was bathing, sunning, and jet skiing in the Bahamas. Ferguson, better known by her stage name Fergie, is a singer in the hip-hop group the Black Eyed Peas. The group has sold some 56 million records in the last decade and has won Grammy awards for such hit singles as “I Gotta Feeling” and “My Humps.” See The Black Eyed Peas, Wikipedia, http:// en. wikipedia. org/ wiki/ The_ Black_ Eyed_ Peas (last visited July 21, 2011). Ferguson's husband Duhamel is an actor who has appeared, most notably, in the trilogy of Transformers movies. See Josh Duhamel, The Internet Movie Database, http:// www. imdb. com/ name/ nm 0241049 (last visited July 21, 2011). Mavrix registered its copyright in the photos and posted them on its website. Mavrix alleges that shortly thereafter Brand reposted the photos on celebrity-gossip.net in violation of Mavrix's copyright. Mavrix alleges that in doing so Brand destroyed the market value of the photos.

Mavrix sued in federal district court for the Central District of California, alleging that Brand infringed Mavrix's copyright in the photos. See 17 U.S.C. § 501. Mavrix sought an injunction barring Brand from further disseminating the photos, as well as actual and statutory damages. See id. §§ 502, 504. Brand moved to dismiss for lack of personal jurisdiction. See Fed.R.Civ.P. 12(b)(2). The district court denied Mavrix's request for leave to conduct jurisdictional discovery and granted the motion to dismiss. Mavrix timely appealed.

II. Standard of Review

We review a dismissal for lack of personal jurisdiction de novo. Boschetto v. Hansing, 539 F.3d 1011, 1015(9th Cir.2008). In opposing a defendant's motion to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of establishing that jurisdiction is proper. Id. 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. Brayton Purcell LLP v. Recordon & Recordon, 606 F.3d 1124, 1127 (9th Cir.2010). The plaintiff cannot “simply rest on the bare allegations of its complaint,” but uncontroverted allegations in the complaint must be taken as true. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir.2004) (quoting Amba Mktg. Sys., Inc. v. Jobar Int'l, Inc., 551 F.2d 784, 787 (9th Cir.1977)). “[W]e may not assume the truth of allegations in a pleading which are contradicted by affidavit,” Data Disc, Inc. v. Sys. Tech. Assocs., Inc., 557 F.2d 1280, 1284 (9th Cir.1977), but we resolve factual disputes in the plaintiff's favor, Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1154 (9th Cir.2006).

Where, as here, no federal statute authorizes personal jurisdiction, the district court applies the law of the state in which the court sits. Fed.R.Civ.P. 4(k)(1)(A); Panavision Int'l, L.P. v. Toeppen, 141 F.3d 1316, 1320 (9th Cir.1998). California's long-arm statute, Cal.Civ.Proc.Code § 410.10, is coextensive with federal due process requirements, so the jurisdictional analyses under state law and federal due process are the same. Schwarzenegger, 374 F.3d at 800–01. For a court to exercise personal jurisdiction over a nonresident defendant consistent with due process, that defendant must have “certain minimum contacts” with the relevant forum “such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940)).

III. Discussion

A. General Jurisdiction

Mavrix argues that Brand is subject to general jurisdiction in California. “A court may assert general jurisdiction over foreign (sister-state or foreign-country) corporations to hear any and all claims against them when their affiliations with the State are so ‘continuous and systematic’ as to render them essentially at home in the forum State.” Goodyear Dunlop Tires Operations, S.A. v. Brown, ––– U.S. ––––, 131 S.Ct. 2846, 2851, 180 L.Ed.2d 796 (2011). For general jurisdiction to exist, a defendant must engage in “continuous and systematic general business contacts,” Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984), that “approximate physical presence” in the forum state, Bancroft & Masters, Inc. v. Augusta Nat'l, Inc., 223 F.3d 1082, 1086 (9th Cir.2000). “The standard is met only by ‘continuous corporate operations within a state [that are] thought so substantial and of such a nature as to justify suit against [the defendant] on causes of action arising from dealings entirely distinct from those activities.’ ” King v. Am. Family Mut. Ins. Co., 632 F.3d 570, 579(9th Cir.2011) (alterations in original) (quoting International Shoe, 326 U.S. at 318, 66 S.Ct. 154). To determine whether a nonresident defendant's contacts are sufficiently substantial, continuous, and systematic, we consider their “[l]...