Brayton Purcell Llp v. Recordon & Recordon, No. 07-15383.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtD. Nelson
Citation575 F.3d 981
PartiesBRAYTON PURCELL LLP, a California partnership, Plaintiff-Appellee, v. RECORDON & RECORDON, a California partnership, Defendant-cross-claimant-Appellant, v. Apptomix Inc.; Jonathan Lee, Cross-defendants.
Docket NumberNo. 07-15383.
Decision Date05 August 2009
575 F.3d 981
BRAYTON PURCELL LLP, a California partnership, Plaintiff-Appellee,
v.
RECORDON & RECORDON, a California partnership, Defendant-cross-claimant-Appellant,
v.
Apptomix Inc.; Jonathan Lee, Cross-defendants.
No. 07-15383.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted October 21, 2008.
Filed August 5, 2009.

[575 F.3d 983]

Jacob D. Zamora, Law Office of Jacob D. Zamora, Marysville, CA, for the defendant-appellant.

David W. Fermino, Brayton Purcell LLP, Novato, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California, Edward M. Chen, Magistrate Judge, Presiding. D.C. No. CV-04-04995-EMC.

Before: MARY M. SCHROEDER, D.W. NELSON and STEPHEN REINHARDT, Circuit Judges.

Opinion by Judge D.W. NELSON; Dissent by Judge REINHARDT.

D.W. NELSON, Circuit Judge:


Recordon & Recordon ("Recordon") appeals the district court's denial of its motion to dismiss for improper venue.1

575 F.3d 984

In copyright infringement actions, venue is proper "in the district in which the defendant ... resides or may be found." 28 U.S.C. § 1400(a). This circuit interprets this provision to allow venue in any judicial district where, if treated as a separate state, the defendant would be subject to personal jurisdiction. See Columbia Pictures Television v. Krypton Broad. of Birmingham, Inc., 106 F.3d 284, 289 (9th Cir.1997), rev'd on other grounds, Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340, 118 S.Ct. 1279, 140 L.Ed.2d 438 (1998). Because Recordon would be subject to personal jurisdiction in the Northern District of California if it were treated as a separate state, we hold that venue was proper and affirm the decision of the district court.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant Recordon is a San Diego-based law firm composed of two attorneys, Kathy R. Recordon and Stephen G. Recordon. Recordon's practice is limited to Southern California; it does not have, nor in the past did it ever have, any clients in the Northern District of California ("the Forum"). Recordon does not conduct any business, own any real or personal property, or maintain a mailing address or telephone listing in the Forum.

Appellee Brayton Purcell LLP ("Brayton Purcell") is a law firm based in Novato, California, located within the Forum. Brayton Purcell markets itself as a leader in elder abuse law, with a practice extending throughout California. It maintains an extensive website providing information on its elder abuse practice, which it copyrighted effective October 7, 2002.

In July 2004, Recordon contracted with Apptomix, Inc., a web-design company with its principal place of business in San Diego County, to add an elder law section to Recordon's website. Recordon claims this website "was designed for information only, was passive in nature, and was directed toward prospective clients located in San Diego County."

Brayton Purcell discovered Recordon's website using "Copyscape," a tool that scours the internet for unauthorized use of copyrighted materials. The elder law section of Recordon's website consisted entirely of material copied verbatim from, and without attribution to, Brayton Purcell's own website.

Brayton Purcell filed suit against Recordon for copyright infringement, unfair competition, false advertising, and common law misappropriation.2 Brayton Purcell alleged that Recordon "knowingly and purposefully directed their infringing acts to this District, ... knowing Brayton Purcell is a resident of this District and would suffer any injuries ... in this District." Brayton Purcell further alleged that Recordon "made commercial use of Brayton Purcell's Website and of the copyrighted material ... [and] willfully, deliberately and knowingly used Plaintiff's copyrighted work for the purpose of promoting its business and attracting new business in the field of elder abuse law, in competition with [Brayton Purcell]."

Recordon filed a motion seeking, alternatively, dismissal pursuant to Fed. R.Civ.P. 12(b)(2) for lack of personal jurisdiction,3 dismissal pursuant to Fed. R.Civ.P. 12(b)(3) for improper venue, or

575 F.3d 985

change of venue under 28 U.S.C. § 1404(a). The district court denied Recordon's motion. After a settlement conference, the parties agreed to submit to binding arbitration. The arbitrator found for Brayton Purcell, and the district court entered judgment in its favor. Recordon has appealed only the district court's denial of its motion to dismiss for improper venue, not the entry of judgment on the arbitration award.

II. STANDARD OF REVIEW

A district court's rulings on personal jurisdiction and venue are reviewed de novo. See Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1154 (9th Cir.2006) (personal jurisdiction); Immigrant Assistance Project of the L.A. County Fed'n of Labor v. INS, 306 F.3d 842, 868 (9th Cir.2002) (venue). Although the burden is on the plaintiff to demonstrate that the court has jurisdiction over the defendant, in the absence of an evidentiary hearing, the plaintiff need only make "a prima facie showing of jurisdictional facts to withstand the motion to dismiss." Pebble Beach, 453 F.3d at 1154 (internal quotation marks omitted). Additionally, "uncontroverted allegations in [plaintiff's] complaint must be taken as true, and conflicts between the facts contained in the parties' affidavits must be resolved in [plaintiff's] favor." Rio Props., Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1019 (9th Cir.2002); see also Pebble Beach, 453 F.3d at 1154 ("[F]or the purpose of this [prima facie] demonstration, the court resolves all disputed facts in favor of the plaintiff.").

III. DISCUSSION

In copyright infringement actions, venue is proper "in the district in which the defendant or his agent resides or may be found." 28 U.S.C. § 1400(a). The Ninth Circuit interprets this statutory provision to allow venue "in any judicial district in which the defendant would be amenable to personal jurisdiction if the district were a separate state." Columbia Pictures, 106 F.3d at 289.

This Court employs a three-prong test to determine whether a party has sufficient minimum contacts to be susceptible to specific personal jurisdiction:4

(1) The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws;

(2) the claim must be one which arises out of or relates to the defendant's forum-related activities; and

(3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable.

Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir.2004) (quoting Lake v. Lake, 817 F.2d 1416, 1421 (9th Cir.1987)). Only the first prong is at issue in this appeal.

The first prong is satisfied by either purposeful availment or purposeful direction, which, though often clustered together under a shared umbrella, "are, in fact, two distinct concepts." Pebble Beach, 453 F.3d at 1155. "A purposeful availment analysis is most often used in suits sounding in contract. A purposeful direction analysis, on the other hand, is most often used in suits sounding in tort." Schwarzenegger, 374 F.3d at 802 (internal citations omitted). Here, the underlying action

575 F.3d 986

is copyright infringement, which is often characterized as a tort. See Columbia Pictures, 106 F.3d at 289 (likening willful copyright infringement to an intentional tort). Purposeful direction is therefore the proper analytical framework in this case. See Schwarzenegger, 374 F.3d at 802.

This court evaluates purposeful direction using the three-part "Calder-effects" test, taken from the Supreme Court's decision in Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984). See Schwarzenegger, 374 F.3d at 803. Under this test, "the defendant allegedly must have (1) committed an intentional act, (2) expressly aimed at the forum state, (3) causing harm that the defendant knows is likely to be suffered in the forum state." Yahoo! Inc. v. La Ligue Contre Le Racisme Et L'Antisemitisme, 433 F.3d 1199, 1206 (9th Cir.2006) (en banc) (internal quotation marks omitted). There is no requirement that the defendant have any physical contacts with the forum. See Schwarzenegger, 374 F.3d at 803.

1. Intentional Act

In this case, the "intentional act" element is easily satisfied. This Court "construe[s] `intent' ... as referring to an intent to perform an actual, physical act in the real world, rather than an intent to accomplish a result or consequence of that act." Id. at 806. Recordon committed an intentional act when it created and posted an elder law section on its website that infringed Brayton Purcell's copyright. Cf. id. (placing a newspaper advertisement was an intentional act); Rio Props., 284 F.3d at 1020 (operating a passive website was an intentional act); Bancroft & Masters, Inc. v. Augusta Nat'l Inc., 223 F.3d 1082, 1088 (9th Cir.2000) (sending a letter was an intentional act).

2. Express Aiming

The second part of the Calder-effects test requires that the defendant's conduct be expressly aimed at the forum. See Pebble Beach, 453 F.3d at 1156. This Court has emphasized that "`something more' than mere foreseeability [is required] in order to justify the assertion of personal jurisdiction," Schwarzenegger, 374 F.3d at 805, and that "something more" means conduct expressly aimed at the forum, see Pebble Beach, 453 F.3d at 1156 ("We now conclude that `something more' is what the Supreme Court described as `express aiming' at the forum state.") (quoting Bancroft, 223 F.3d at 1087).

It is beyond dispute in this circuit that maintenance of a passive website alone cannot satisfy the express aiming prong. See Holland Am. Line Inc. v. Wartsila N. Am., Inc., 485 F.3d 450, 460...

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49 practice notes
  • Patterson v. Home Depot, USA, Inc., No. CV-09-992-PHX-GMS.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
    • February 16, 2010
    ...only make "a prima facie showing of jurisdictional facts to withstand the motion to dismiss." Brayton Purcell LLP v. Recordon & Recordon, 575 F.3d 981, 985 (9th Cir.2009). In considering the motion, a court may "assume the truth of allegations in a pleading" to the extent that such allegati......
  • Medimpact Healthcare Sys., Inc. v. IQVIA Inc., Case No.: 19cv1865-GPC(LL)
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • August 27, 2020
    ...only make "a prima facie showing of jurisdictional facts to withstand the motion to dismiss." Bryton Purcell LLP v. Recordon & Recordon, 575 F.3d 981, 985 (9th Cir. 2009). On a prima facie case, the court considers uncontroverted allegations in the complaint as true and the court resolves a......
  • Milner v. U.S. Dept. of the Navy, No. 07-36056.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 5, 2009
    ...Navy is acting irresponsibly by not classifying them. I would be willing to remand to the district court, even at this late stage in the 575 F.3d 981 litigation, in order to give the Navy an opportunity to classify the arc maps at NMII and thereby to qualify them under Exemption 1 if it tru......
  • Ecodisc Tech. Ag v. Dvd Format/logo Licensing Corp., Case No. 2:09-cv-07875-MRP-AJW.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • April 22, 2010
    ...Schwarzenegger, 374 F.3d at 802 (quoting Lake v. Lake, 817 F.2d 1416, 1421 (9th Cir.1987)); Brayton Purcell LLP v. Recordon & Recordon, 575 F.3d 981, 985 (9th Cir.2009). “The plaintiff bears the burden of satisfying the first two prongs of the test. If the plaintiff fails to satisfy either ......
  • Request a trial to view additional results
49 cases
  • Patterson v. Home Depot, USA, Inc., No. CV-09-992-PHX-GMS.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
    • February 16, 2010
    ...only make "a prima facie showing of jurisdictional facts to withstand the motion to dismiss." Brayton Purcell LLP v. Recordon & Recordon, 575 F.3d 981, 985 (9th Cir.2009). In considering the motion, a court may "assume the truth of allegations in a pleading" to the extent that such allegati......
  • Medimpact Healthcare Sys., Inc. v. IQVIA Inc., Case No.: 19cv1865-GPC(LL)
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • August 27, 2020
    ...only make "a prima facie showing of jurisdictional facts to withstand the motion to dismiss." Bryton Purcell LLP v. Recordon & Recordon, 575 F.3d 981, 985 (9th Cir. 2009). On a prima facie case, the court considers uncontroverted allegations in the complaint as true and the court resolves a......
  • Milner v. U.S. Dept. of the Navy, No. 07-36056.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 5, 2009
    ...Navy is acting irresponsibly by not classifying them. I would be willing to remand to the district court, even at this late stage in the 575 F.3d 981 litigation, in order to give the Navy an opportunity to classify the arc maps at NMII and thereby to qualify them under Exemption 1 if it tru......
  • Ecodisc Tech. Ag v. Dvd Format/logo Licensing Corp., Case No. 2:09-cv-07875-MRP-AJW.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • April 22, 2010
    ...Schwarzenegger, 374 F.3d at 802 (quoting Lake v. Lake, 817 F.2d 1416, 1421 (9th Cir.1987)); Brayton Purcell LLP v. Recordon & Recordon, 575 F.3d 981, 985 (9th Cir.2009). “The plaintiff bears the burden of satisfying the first two prongs of the test. If the plaintiff fails to satisfy either ......
  • Request a trial to view additional results

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