Nagravision SA v. Gotech Int'l Tech. Ltd. ( 2018 )


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  •       Case: 16-20817       Document: 00514340314       Page: 1    Date Filed: 02/07/2018
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    No. 16-20817
    Fifth Circuit
    FILED
    February 7, 2018
    NAGRAVISION SA,                                                         Lyle W. Cayce
    Clerk
    Plaintiff - Appellee
    v.
    GOTECH INTERNATIONAL TECHNOLOGY LIMITED; ZHUHAI GOTECH
    INTELLIGENT TECHNOLOGY COMPANY LIMITED,
    Defendants - Appellants
    Appeal from the United States District Court
    for the Southern District of Texas
    Before REAVLEY, SOUTHWICK, and HAYNES, Circuit Judges.
    REAVLEY, Circuit Judge:
    Nagravision SA (“Nagravision”) filed suit against Zhuhai Gotech
    Intelligent Technology Co. Ltd. and Gotech International Technology Ltd.
    (collectively, “Gotech”) in the Southern District of Texas, alleging violations of
    the    Digital     Millennium      Copyright     Act   (“DMCA”)      and       the       Federal
    Communications Act (“FCA”). 1 Nagravision is a Swedish company, Gotech
    Chinese. Gotech knowingly chose to ignore the lawsuit and even the ensuing
    $100 million-plus default judgment. It did nothing at all until Nagravision
    1   A third defendant, Globalsat International Technology Ltd. is not a party to the
    appeal.
    Case: 16-20817       Document: 00514340314         Page: 2     Date Filed: 02/07/2018
    No. 16-20817
    took its judgment to a Hong Kong court, initiated enforcement proceedings,
    and succeeded in freezing Gotech’s assets. Then Gotech decided to litigate in
    the Southern District of Texas after all, filing a motion under Rule 60(b) for
    relief from the default judgment. The district court denied that motion, and
    Gotech appeals. We affirm.
    Gotech moved under Rule 60(b)(1) and Rule 60(b)(4), but only its
    arguments pertaining to the latter rule merit discussion. 2 Under Rule 60(b)(4),
    a judgment must be set aside if it is void. Recreational Props., Inc. v. Sw.
    Mortg. Serv. Corp., 
    804 F.2d 311
    , 314 (5th Cir. 1986). Gotech asserts that the
    judgment is void for a plethora of reasons. We examine each one.
    (1) Standing. Gotech contends that Nagravision lacked standing to
    bring its claims, rendering the judgment void.                     Gotech is incorrect.
    Nagravision is a provider of security technology, including technology
    supporting subscription-based television providers, and this lawsuit is based
    on Gotech’s sophisticated-but-illegal soft- and hardware that both steals
    Nagravision technology and defeats Nagravision security, allowing for piracy
    of pay-television programming. Under these circumstances, we have no doubt
    that Nagravision suffered an injury traceable to Gotech’s misdeeds that can be
    (and indeed has been) redressed through the court. See Lexmark Int’l, Inc. v.
    Static Control Components, Inc., 
    134 S. Ct. 1377
    , 1386 (2014); Sayles v.
    Advanced Recovery Sys., Inc., 
    865 F.3d 246
    , 250 (5th Cir. 2017).              To the extent
    Gotech argues about statutory standing rather than Article III standing, its
    arguments do not advance the ball, for a lack of statutory standing would not
    render the judgment void. See Blanchard 1986, Ltd. v. Park Plantation, LLC,
    
    553 F.3d 405
    , 409 (5th Cir. 2008) (“This question of whether or not a particular
    Gotech’s willful default precludes relief under Rule 60(b)(1). See, e.g., In re Chinese
    2
    Manufactured Drywall Prod. Liab. Litig., 
    742 F.3d 576
    , 594–95 (5th Cir. 2014).
    2
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    No. 16-20817
    cause of action authorizes an injured plaintiff to sue is a merits question,
    affecting   statutory   standing, not      a jurisdictional    question, affecting
    constitutional standing.”).     And, contrary to Gotech’s arguments, because
    Nagravision asserted its own rights and injuries, there are no issues of
    prudential standing. 3 See Superior MRI Servs., Inc. v. All. Healthcare Servs.,
    Inc., 
    778 F.3d 502
    , 504 (5th Cir. 2015).
    (2) Federal Question Jurisdiction. Nagravision based its lawsuit on
    violations of federal law, and subject matter jurisdiction is clearly present. See,
    e.g., Gilbert v. Donahoe, 
    751 F.3d 303
    , 311 (5th Cir. 2014). Nonetheless, Gotech
    urges that subject matter jurisdiction is absent because the DMCA and FCA
    do “not apply to claimed violations of foreign intellectual property rights.” This
    argument about the statute’s application “confuses failure to state a claim with
    lack of subject matter jurisdiction.” Id.; see also United States v. Rojas, 
    812 F.3d 382
    , 390 (5th Cir. 2016) (“[T]he question ‘whether a statute applies
    extraterritorially is a question on the merits rather than a question of a
    tribunal’s power to hear the case.’” (quoting Villanueva v. U.S. Dep’t of Labor,
    
    743 F.3d 103
    , 107 (5th Cir. 2014))). The only question fit for our consideration
    is whether the judgment was void for lack of subject matter jurisdiction, and
    the answer to that question is no.
    (3) Personal Jurisdiction, Lack of Proper Service. Defendants
    raise one argument pertaining to only one of them. Specifically, Gotech asserts
    that the court lacked personal jurisdiction over Zhuhai Gotech Intelligent
    Technology Co. Ltd for want of proper service. Rule 4 permits service on
    foreign defendants “by any internationally agreed means of service that is
    reasonably calculated to give notice, such as those authorized by the Hague
    3 We leave undecided the unbriefed question of whether the absence of prudential
    standing would render the judgment void.
    3
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    No. 16-20817
    Convention on the Service Abroad of Judicial and Extrajudicial Documents”
    and “by other means not prohibited by international agreement, as the court
    orders.” FED. R. CIV. P. 4(f)(1), (3). Service here was court-ordered email
    service under Rule 4(f)(3), and Gotech has not shown that such service is
    prohibited by international agreement.          Service was therefore proper.
    Overlooking Rule 4(f)(3) entirely, Gotech argues that the service did not comply
    with the Hague Convention and Rule 4(f)(1). This argument misses the mark
    because service was not effected pursuant to the Hague Convention, and that
    agreement does not displace Rule 4(f)(3). See United States v. Real Prop.
    Known As 200 Acres of Land Near FM 2686 Rio Grande City, Tex., 
    773 F.3d 654
    , 659 (5th Cir. 2014).
    (4) Personal Jurisdiction, Rule 4(k)(2).              Nagravision asserted
    personal jurisdiction solely under Rule 4(k)(2), which “provides for service of
    process and personal jurisdiction in any district court for cases arising under
    federal law where the defendant has contacts with the United States as a whole
    sufficient to satisfy due process concerns and the defendant is not subject to
    jurisdiction in any particular state.”      Adams v. Unione Mediterranea Di
    Sicurta, 
    364 F.3d 646
    , 650 (5th Cir. 2004). There is no dispute that Gotech’s
    contacts with the United States, taken as a whole, are sufficient to satisfy due
    process concerns. The issue is whether the district court erred by finding
    Gotech “not subject to jurisdiction in any state’s courts of general jurisdiction.”
    FED. R. CIV. P. 4(k)(2)(A).
    As an initial matter, the burden of proof to establish personal jurisdiction
    over the defendants rests upon the plaintiff. Wilson v. Belin, 
    20 F.3d 644
    , 648
    (5th Cir. 1994). In a case involving a default judgment allegedly rendered in
    the absence of personal jurisdiction, we stated that, “[o]f course, the ‘burden of
    undermining’” a default judgment “‘rests heavily upon the assailant.’” Hazen
    Research, Inc. v. Omega Minerals, Inc., 
    497 F.2d 151
    , 154 (5th Cir. 1974)
    4
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    (quoting Williams v. State of N.C., 
    325 U.S. 226
    , 233–34, 
    65 S. Ct. 1092
    , 1097
    (1945)). More recently, however, we stated that “the question who bears the
    burden of proof in a Rule 60(b)(4) challenge to personal jurisdiction is one that
    has not been answered for this circuit.” Jackson v. FIE Corp., 
    302 F.3d 515
    ,
    520 (5th Cir. 2002). Under the rule of orderliness, the older case would govern,
    United States v. Broussard, 
    669 F.3d 537
    , 554 (5th Cir. 2012), but we need not
    address all potential permutations of this rule to address the circumstance
    here. The disagreements among the circuits as to which side bears the burden
    of proof under Rule 60(b)(4) center on the fact that the plaintiff generally has
    the burden of proof as to personal jurisdiction. See Oldfield v. Pueblo de Bahia
    Lora, S.A., 
    448 F.3d 1210
    , 1217 (11th Cir. 2009) (addressing Rule 4(k)(2)(B)
    and finding no personal jurisdiction due to the lack of necessary contacts); cf.
    Bally Exp. Corp. v. Blaicar, Ltd., 
    804 F.2d 398
    , 401 (7th Cir. 1986) (noting the
    general rule that the plaintiff has the burden of proving jurisdiction but
    determining that the burden should be on the defendant to prove lack of
    jurisdiction in a Rule 60(b)(4) context).
    In this case, we have a very specific question of who bears the burden of
    proof when a Rule 60(b)(4) challenge is made solely on the argument that the
    requirement of Rule 4(k)(2)(A)—that defendant is not subject to jurisdiction in
    any state’s courts of general jurisdiction—is not met. Given our holding in
    Adams that plaintiffs do not have a general burden to negate jurisdiction in
    every state, the burden to establish that there was a state meeting the criteria
    necessarily must fall on the 
    defendant. 364 F.3d at 651
    (“Rather, so long as a
    defendant does not concede to jurisdiction in another state, a court may use
    4(k)(2) to confer jurisdiction.”)
    Thus, Nagravision had the initial burden to plead and prove the requisite
    contacts with the United States and plead Rule 4(k)(2)’s applicability (though
    no need for “magic words”), but it had no burden to negate jurisdiction in every
    5
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    state. Between Nagravision’s allegations, the evidence attached to its motion
    for default judgment, and our holding in Adams, there is no doubt that the
    district court correctly (if only impliedly) found that Nagravision had met its
    burden giving the district court the personal jurisdiction over Gotech necessary
    to render the default judgment. See Sys. Pipe & Supply, Inc. v. M/V VIKTOR
    KURNATOVSKIY, 
    242 F.3d 322
    , 324 (5th Cir. 2001) (holding that, because “a
    judgment entered without personal jurisdiction is void,” district courts have
    the duty to independently confirm their “power to enter a valid default
    judgment”); Wooten v. McDonald Transit Assocs., Inc., 
    788 F.3d 490
    , 500 (5th
    Cir. 2015) (explaining that, in considering whether to enter a default judgment,
    evidence can be used to further support allegations in the complaint).
    The burden then shifted to Gotech when it challenged the judgment to
    do more than just criticize Nagravision’s complaint.             Gotech had to
    affirmatively establish that the court lacked personal jurisdiction under 4(k)(2)
    because there was a state where its courts of general jurisdiction could properly
    exercise jurisdiction over it.   See 
    Adams, 364 F.3d at 650
    . Gotech did nothing
    of the kind. At most, it alleged that California was a state of such jurisdiction,
    but it did nothing to prove that the district court’s implied finding was wrong
    making the judgment void.        Accordingly, the district court did not err in
    denying the Rule 60(b) motion.
    ~~~
    The judgment is AFFIRMED.
    6