Color Switch LLC v. Fortafy Games DMCC, 062620 FED9, 19-15843

Docket Nº:19-15843
Party Name:COLOR SWITCH LLC; COLOR SWITC PRODUCTIONS, INC., Plaintiffs-Appellants, v. FORTAFY GAMES DMCC, Defendant-Appellee.
Judge Panel:Before: SCHROEDER and BUMATAY, Circuit Judges, and MORRIS, District Judge.
Case Date:June 26, 2020
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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COLOR SWITCH LLC; COLOR SWITC PRODUCTIONS, INC., Plaintiffs-Appellants,

v.

FORTAFY GAMES DMCC, Defendant-Appellee.

No. 19-15843

United States Court of Appeals, Ninth Circuit

June 26, 2020

NOT FOR PUBLICATION

Argued and Submitted June 11, 2020 San Francisco, California

Appeal from the United States District Court for the Eastern District of California No. 1:18-cv-00419-DAD-JLT Dale A. Drozd, District Judge, Presiding

Before: SCHROEDER and BUMATAY, Circuit Judges, and MORRIS, [**] District Judge.

MEMORANDUM [*]

Plaintiffs-Appellants Color Switch LLC and Color Switch Productions, Inc. (collectively "Color Switch") appeal the district court's order granting Defendant- Appellee Fortafy Games DMCC's ("Fortafy") motion to dismiss. We affirm.

Color Switch created a mobile game, otherwise known as an app, and entered into an agreement with Fortafy that called for Fortafy to publish and update the game as necessary. The game proved financially successful for both parties, but Color Switch nonetheless exercised the agreement's termination clause and demanded that Fortafy return the game to Color Switch. Fortafy refused. Color Switch sued Fortafy for Copyright Act infringement and requested declaratory relief on the same grounds. The district court dismissed both claims based on a forum selection clause in the parties' agreement that required the parties to bring "[a]ny dispute arising in connection with this Agreement" in the Court of Dubai.

Color Switch now alleges that the district court made five errors. We review de novo Color Switch's alleged error that its Copyright Act claim and request for declaratory judgment fall outside the scope of the forum selection clause. See Doe 1 v. AOL LLC, 552 F.3d 1077, 1081 (9th Cir. 2009). We review for an abuse of discretion Color Switch's three alleged errors that relate to the clause's enforceability. See Petersen v. Boeing Co., 715 F.3d 276, 279 (9th Cir. 2013). We review de novo Color Switch's remaining claim that the district court should have granted it an evidentiary hearing or leave to amend. See id. at 282.

Color Switch's Copyright Act claim and request for declaratory judgment fall within the scope of the agreement's forum selection clause. We apply federal law to determine the scope of a forum selection clause. Manetti-Farrow, Inc. v. Gucci Am., Inc., 858 F.2d 509, 513 (9th Cir. 1988). Federal law dictates that we give...

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