Ama Multimedia, LLC v. Marcin Wanat ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AMA MULTIMEDIA, LLC, a Nevada No. 18-15051
limited liability company,
Plaintiff-Appellant, D.C. No.
2:15-cv-01674-
v. ROS
MARCIN WANAT, a foreign citizen;
MACIEJ MADON, a foreign citizen; OPINION
MW MEDIA, a foreign corporation,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, District Judge, Presiding
Argued and Submitted June 11, 2019
Submission Withdrawn December 20, 2019
Resubmitted August 10, 2020
San Francisco, California
Filed August 17, 2020
Before: Ronald M. Gould, Sandra S. Ikuta, and
Ryan D. Nelson, Circuit Judges.
Opinion by Judge R. Nelson;
Concurrence by Judge Ikuta;
Concurrence by Judge R. Nelson;
Dissent by Judge Gould
2 AMA MULTIMEDIA V. WANAT
SUMMARY *
Personal Jurisdiction
The panel affirmed the district court’s dismissal for lack
of personal jurisdiction of a copyright infringement,
trademark infringement, and unfair competition action.
Defendant, a citizen and resident of Poland, operated
ePorner, an adult video website, through MW Media, a
Polish civil law partnership. Plaintiff contended that
defendant was subject to specific personal jurisdiction in the
United States because he expressly aimed tortious conduct
at the forum.
Applying Federal Rule of Civil Procedure 4(k)(2),
known as the “federal long-arm statute,” the panel held that
the exercise of personal jurisdiction would not comport with
due process because defendant lacked the requisite
minimum contacts with the United States. The panel
concluded that defendant committed intentional acts by
establishing and maintaining ePorner, registering two
domains, and entering into an agreement with an American
domain name server, but he did not expressly aim his suit-
related conduct at the United States.
The panel also held that the district court did not abuse
its discretion by limiting the scope of plaintiff’s
jurisdictional discovery on the basis of privacy concerns.
The panel declined to consider, for the first time on appeal,
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
AMA MULTIMEDIA V. WANAT 3
a European Commission decision, known as the “Privacy
Shield Decision,” which established that Member States,
including Poland, could transfer personal data to certain
organizations in the United States. The panel also declined
to consider the European Parliament’s enactment of the
General Data Protection Regulation, which repealed and
replaced Poland’s Personal Data Protection Act after this
appeal was filed.
Concurring in the majority opinion in full, Judge Ikuta
wrote that because the district court lacked personal
jurisdiction over defendants, it had authority only to remove
the case from its docket.
Concurring, Judge R. Nelson wrote that the district court
was not precluded from exercising its discretion on remand
to consider intervening law in any supplemental request for
jurisdictional discovery or amendment of the complaint.
Dissenting, Judge Gould wrote that, taking the
undisputed facts alleged by plaintiff as true and resolving
any factual disputes in its favor, defendant targeted his
economic activity toward the United States under the Calder
“effects test.” In addition, plaintiff’s claims arose out of or
related to defendant’s forum-related activities, and it was
reasonable to exercise personal jurisdiction over defendant.
Accordingly, Judge Gould would hold that the United States
had personal jurisdiction over defendant.
COUNSEL
Marc J. Randazza (argued) and Ronald D. Green, Randazza
Legal Group PLLC, Las Vegas, Nevada, for Plaintiff-
Appellant.
4 AMA MULTIMEDIA V. WANAT
Jakub P. Medrala (argued), The Medrala Law Firm PLLC,
Las Vegas, Nevada, for Defendants-Appellees.
OPINION
R. NELSON, Circuit Judge:
AMA Multimedia, LLC (“AMA”) appeals the district
court’s dismissal of its copyright infringement, trademark
infringement, and unfair competition action against Marcin
Wanat for lack of personal jurisdiction. We agree with the
district court that AMA has not met its burden of showing
that Wanat is subject to personal jurisdiction in the United
States. We also conclude that the district court did not abuse
its discretion by denying AMA certain jurisdictional
discovery and decline to consider arguments about changes
in European law for the first time on appeal that bear on
AMA’s entitlement to additional jurisdictional discovery.
We therefore affirm.
I
Plaintiff AMA is a Nevada limited liability company that
produces and distributes “adult entertainment over the
Internet.” AMA owns several online websites where paying
customers can view AMA’s materials. AMA’s videos are
copyrighted as audiovisual works and display the company’s
trademark in the corner of the screen.
AMA discovered that ePorner.com (“ePorner”)—an
internationally available website which hosts adult videos
and allows users to search for, select, and watch them—was
displaying AMA’s copyrighted works. At the time this suit
was filed, ePorner allowed users to upload adult videos
anonymously. ePorner does not charge visitors; instead, it
AMA MULTIMEDIA V. WANAT 5
generates revenue solely through advertising. ePorner
contracts with a third-party advertising company that
chooses the advertisements. The advertiser then
“geolocates” the advertisements, meaning visitors to
ePorner.com see advertisements based on their perceived
location. For example, visitors thought to be in the United
States see selected advertisements in English, while visitors
thought to be in France see selected advertisements in
French.
AMA was unable to determine who owned and operated
ePorner, so, in 2015, AMA sued all defendants as Doe
Defendants and Roe Corporations in the United States. The
district court permitted AMA to conduct early discovery to
ascertain who owned the domains epornergay.com and
eprncdn.com, both of which forwarded visitors to
ePorner.com. That early discovery revealed that two
companies located in Arizona, GoDaddy.com and Domains
by Proxy, were used to register the domains and privatize the
owner’s identity. AMA subpoenaed both companies and
learned that Defendant Marcin Wanat was the registrant of
the domains. AMA amended its complaint and named
Wanat as a defendant. 1
Wanat is a citizen and resident of Poland. Wanat and
Madon are partners in MW Media, a Polish civil law
partnership which owns and operates ePorner. Through MW
Media, Wanat assists in the operation of ePorner. Although
1
AMA was unable to serve the other named defendants, i.e., the
individual, Maciej Madon, and the foreign corporation, MW Media, S.C.
(“MW Media”), within the time set forth by the district court and those
defendants were thereafter dismissed.
6 AMA MULTIMEDIA V. WANAT
Wanat registered epornergay.com and eprncdn.com, he did
not register the ePorner.com domain.
Through his operation of ePorner, Wanat maintains
limited contacts with the United States. Wanat registered the
domain names through GoDaddy.com, an American
company, but did so from Poland using a Polish version of
GoDaddy’s website. Wanat also entered into an agreement
with an American domain name server (“DNS”), Tiggee
LLC (doing business as DNSMadeEasy.com) (“Tiggee”),
that allows users to access ePorner more efficiently by
translating its domain names into Internet Protocol
addresses.
However, Wanat has never visited the United States, has
never paid taxes in the United States, does not have a visa to
travel to the United States, and has never “derived any profit
from any of [his] activities in the [United] States as [he]
conduct[s] no such activities.” Nor do Wanat, MW Media,
or ePorner maintain any offices or agents in the United
States.
At the time this suit was filed, the adult content available
on ePorner was stored on a server in the Netherlands. Wanat
stated he does not “specifically target any of [his] services to
residents of the [United] States.” 19.21% of ePorner’s
visitors are in the United States, making the United States its
largest market.
AMA asserted federal claims for copyright infringement,
trademark infringement, and unfair competition. Wanat
moved to dismiss based on a lack of personal jurisdiction.
After a hearing, the district court ordered jurisdictional
discovery.
AMA MULTIMEDIA V. WANAT 7
AMA sought documents related to epornergay.com and
eprncdn.com, including contracts and correspondence
between the websites and U.S. companies. Wanat objected
to several of AMA’s discovery requests, primarily arguing
that producing certain personal data as part of the requested
discovery would expose him to criminal liability under
Poland’s Personal Data Protection Act of 29 August 1997
(“PDP”). AMA argued that exceptions to the PDP allowed
Wanat to produce the data and that, even if the exceptions
did not apply, Wanat could redact such personal information.
The district court appointed a Special Master agreed
upon by the parties and familiar with U.S. and Polish law to
resolve the discovery disputes. See Fed. R. Civ. P. 53. AMA
and Wanat hired their own Polish lawyers to evaluate
Wanat’s discovery objections. In June 2016, AMA filed a
Motion to Compel and Wanat filed a Motion for Protective
Order. In an exhibit to his Motion for Protective Order,
Wanat raised the fact that changes to the European privacy
laws were under consideration. Specifically, his Polish law
expert noted that work on a “Privacy Shield” that could
replace the PDP’s “Safe Harbor” provision was in progress
and could affect the transfer of personal data from European
countries to the United States. AMA did not address this
potential change in the law in its briefing.
On July 12, six days after the parties completed their
briefing to the Special Master, the European Commission
issued its Implementing Decision (EU) 2016/1250 2 (the
“Privacy Shield Decision”), which, among other things,
established that Member States (including Poland) could
transfer personal data to certain organizations in the United
2
Available at https://eur-lex.europa.eu/legal-content/EN/TXT/PDF
/?uri=CELEX:32016D1250&from=EN
8 AMA MULTIMEDIA V. WANAT
States that committed to a set of privacy principles and self-
certified their adherence to these principles to the
Department of Commerce. See id. §§ 2, 2.1. Neither party
raised this change in law with the Special Master, and AMA
did not argue that it was a self-certified organization or
provide any evidence to that effect.
On August 22, the Special Master submitted its 52-page
Report and Recommendation to the district court. Most of
the discovery disputes addressed by the Special Master did
not involve the application of the PDP.
The Special Master recommended some of AMA’s
discovery requests involving personal information be denied
because responding to the requests would require Wanat to
produce “personal data,” potentially exposing him to
criminal liability under the PDP. The Special Master
explained that personal data could not be transferred to the
United States because: (1) the PDP’s “Safe Harbor”
provision, which allows the transfer of such data to certain
countries that provide “adequate level[s] of personal data
protection,” did not apply to the United States, and (2) none
of the PDP’s other exceptions permitting such transfer
applied. As to the first point, relying on the Court of Justice
of the European Union’s decision in Case C-362/14,
Schrems v. Data Prot. Comm’r, 2015 E.C.R. 650, the Special
Master determined that “the U.S. has been deemed a Third
Country that does not ensure a level of protection that meets
European standards.”
AMA thereafter submitted its Objections to Special
Master’s Report and Recommendation, but did not raise the
Privacy Shield Decision in its briefing. The Special Master’s
Report and Recommendation did not address the recent
implementation of the Privacy Shield Decision. Adopting
the recommendations of the Special Master in full, the
AMA MULTIMEDIA V. WANAT 9
district court sustained Wanat’s objections to AMA’s
discovery requests. AMA moved for reconsideration, but
again did not raise the Privacy Shield Decision. The district
court denied the motion. Wanat then renewed his motion to
dismiss for lack of personal jurisdiction. The district court
granted the motion to dismiss, holding that because AMA
could not establish sufficient minimum contacts between
Wanat and the United States, asserting specific jurisdiction
over Wanat would be unreasonable. AMA timely appealed,
challenging both the jurisdictional and discovery orders.
After two extensions, AMA filed its opening brief on
June 18, 2018. But twenty-four days earlier, the European
Parliament repealed and replaced the PDP with the General
Data Protection Regulation (EU) (2016/679) (“GDPR”), 3
which also addressed the transfer of personal data outside of
EU Member States, although not specifically focused on
transfers to the United States. Neither party mentioned the
Privacy Shield Decision or the GDPR in their briefs.
Following oral argument, we withdrew submission of the
appeal and directed the parties to file supplemental briefs on
several issues, including the effect of the Privacy Shield
Decision on this appeal. We did not inquire about the
GDPR, although AMA discussed it in its supplemental brief.
AMA did not argue or provide evidence that it is a self-
certified organization under the Privacy Shield Decision in
its supplemental brief.
II
We review de novo the district court’s dismissal for lack
of personal jurisdiction. Boschetto v. Hansing, 539 F.3d
1011, 1015 (9th Cir. 2008). “The factual findings underlying
3
Available at https://gdpr-info.eu/.
10 AMA MULTIMEDIA V. WANAT
the district court’s jurisdiction determination are reviewed
for clear error.” Freestream Aircraft (Berm.) Ltd. v. Aero
Law Grp., 905 F.3d 597, 602 (9th Cir. 2018). AMA “bears
the burden of establishing that jurisdiction is proper.”
Mavrix Photo, Inc. v. Brand Techs., Inc., 647 F.3d 1218,
1223 (9th Cir. 2011). Because Wanat’s motion to dismiss
was based on written materials rather than an evidentiary
hearing, AMA need only make a prima facie showing of
jurisdictional facts to withstand dismissal. See id. This
prima facie standard “is not toothless,” however; AMA
“cannot simply rest on the bare allegations of its complaint.”
In re Boon Glob. Ltd., 923 F.3d 643, 650 (9th Cir. 2019)
(internal quotation marks omitted). Although
“uncontroverted allegations in the complaint must be taken
as true” and “[c]onflicts between parties over statements
contained in affidavits must be resolved in [AMA’s] favor,”
Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797,
800 (9th Cir. 2004), disputed allegations in the complaint
that are not supported with evidence or affidavits cannot
establish jurisdiction, see In re Boon Glob. Ltd., 923 F.3d
at 650.
We review the district court’s decision to limit the scope
of jurisdictional discovery for abuse of discretion.
Boschetto, 539 F.3d at 1020. “The district court’s refusal to
provide such discovery, ‘will not be reversed except upon
the clearest showing that denial of discovery results in actual
and substantial prejudice to the complaining litigant.’” Id.
(quoting Data Disc, Inc. v. Systems Tech. Assocs., Inc.,
557 F.2d 1280, 1285 n.1 (9th Cir. 1977)).
III
AMA contends Wanat is subject to specific jurisdiction
in the United States because he expressly aimed tortious
conduct at the forum. We agree with the district court and
AMA MULTIMEDIA V. WANAT 11
hold that Wanat lacks the requisite minimum contacts with
the United States.
A
Personal jurisdiction over an out-of-state defendant is
proper where permitted by a long-arm statute and where the
exercise of jurisdiction does not violate federal due process.
Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1154 (9th Cir.
2006). Here, AMA asserts that Federal Rule of Civil
Procedure 4(k)(2), known as the “federal long-arm statute,”
id. at 1159, permits the exercise of personal jurisdiction over
Wanat. Rule 4(k)(2) contains three requirements:
First, the claim against the defendant must
arise under federal law. Second, the
defendant must not be subject to the personal
jurisdiction of any state court of general
jurisdiction. Third, the federal court’s
exercise of personal jurisdiction must
comport with due process.
Id. (internal citation omitted). Because there is no dispute
the first two requirements are satisfied, we address only
whether the exercise of personal jurisdiction over Wanat
comports with due process.
Due process requires that a defendant who is not present
in the forum has “certain minimum contacts” with the forum
“such that the maintenance of the suit does not offend
traditional notions of fair play and substantial justice.” Int’l
Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (internal
quotation marks omitted). “The due process analysis under
Rule 4(k)(2) is nearly identical to traditional personal
jurisdiction analysis with one significant difference: rather
than considering contacts between [defendant] and the
12 AMA MULTIMEDIA V. WANAT
forum state, we consider contacts with the nation as a
whole.” Holland Am. Line Inc. v. Wartsila N. Am., Inc.,
485 F.3d 450, 462 (9th Cir. 2007).
Turning to the due process analysis, we conduct a three-
part inquiry to determine whether a nonresident defendant
has such “minimum contacts” with the forum to warrant the
court’s exercise of specific jurisdiction:
(1) the defendant must either “purposefully
direct his activities” toward the forum or
“purposefully avail[] himself of the
privileges of conducting activities in the
forum”;
(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.”
Axiom Foods, Inc. v. Acerchem Int’l, Inc., 874 F.3d
1064,1068 (9th Cir. 2017) (quoting Dole Food Co. v. Watts,
303 F.3d 1104, 1111 (9th Cir. 2002)). “If any of the three
requirements is not satisfied, jurisdiction in the forum would
deprive the defendant of due process of law.” Omeluk v.
Langsten Slip & Batbyggeri A/S, 52 F.3d 267, 270 (9th Cir.
1995). AMA bears the burden to establish the first two
prongs. See Axiom, 874 F.3d at 1068.
The first prong requires AMA to show that Wanat either
“purposefully direct[ed] his activities” at the United States
or “purposefully avail[ed] himself” of the forum. Id.
However, “[t]he exact form of our jurisdictional inquiry
AMA MULTIMEDIA V. WANAT 13
depends on the nature of the claim at issue.” Picot v. Weston,
780 F.3d 1206, 1212 (9th Cir. 2015). AMA alleges
copyright and trademark infringement claims, which sound
in tort, so we apply a “purposeful direction” analysis and ask
whether Wanat has purposefully directed activities at the
United States. 4 See Axiom, 874 F.3d at 1069; Mavrix,
647 F.3d at 1228.
Where allegedly tortious conduct takes place outside the
forum and has effects inside the forum, our circuit has
examined purposeful direction using an “effects test” based
on Calder v. Jones, 465 U.S. 783 (1984). See Mavrix,
647 F.3d at 1228–29 (applying the “effects test” in a
copyright infringement case); Panavision Int’l, L.P. v.
Toeppen, 141 F.3d 1316, 1321–22 (9th Cir. 1998) (applying
the Calder test in a trademark dilution case). 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.” Mavrix, 647 F.3d at 1228
(quoting Brayton Purcell LLP v. Recordon & Recordon,
606 F.3d 1124, 1128 (9th Cir. 2010)).
B
We first conclude that Wanat committed an intentional
act. For purposes of jurisdiction, a defendant acts
intentionally when he acts with “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.”
4
If the exercise of jurisdiction over these claims were proper, we
may assert “pendent personal jurisdiction” over AMA’s additional claim
for unfair competition because it arises out of a common nucleus of
operative fact. See Action Embroidery Corp. v. Atl. Embroidery, Inc.,
368 F.3d 1174, 1180 (9th Cir. 2004).
14 AMA MULTIMEDIA V. WANAT
Schwarzenegger, 374 F.3d at 806. The district court found,
and Wanat acknowledges, that he is one of the partners of
MW Media, which owns ePorner. From Poland, Wanat
registered two proxy domains—epornergay.com and
eprncdn.com—via GoDaddy’s Polish website (a company
whose primary place of business is in Arizona). He also
purchased secondary DNS services from Tiggee (based in
Virginia). Both proxy domains direct traffic to ePorner.
Each of Wanat’s actions were intentional acts which satisfy
this first prong. See, e.g., Brayton Purcell, 606 F.3d at 1129
(“operating a passive website was an intentional act”)
(citation omitted); Pebble Beach, 453 F.3d at 1156
(operating a website was an intentional act where the claim
arose out of the website name’s infringement of a
trademark).
C
We next determine whether AMA has shown that Wanat
“expressly aimed” his intentional acts—establishing and
maintaining ePorner, registering the two domains, and
purchasing the DNS services—at the United States.5
Schwarzenegger, 374 F.3d at 806. In Mavrix, we applied the
Calder test to analyze whether Brand Technologies, Inc.
(“Brand”) was subject to specific jurisdiction in California.
5
In Walden, the Supreme Court rejected our prior decisions holding
that the express aiming element could be satisfied by a defendant’s
knowledge that harm may be inflicted on a plaintiff in a particular forum.
Axiom, 874 F.3d at 1069–70. We noted that the Walden decision
required us to focus instead on defendant’s intentional conduct that is
aimed at, and creates the necessary contacts with, the forum state. Id.
at 1068–69. “A forum State’s exercise of jurisdiction over an out-of-
state intentional tortfeasor must be based on intentional conduct by the
defendant that creates the necessary contacts with the forum.” Walden
v. Fiore, 571 U.S. 277, 286 (2014).
AMA MULTIMEDIA V. WANAT 15
647 F.3d at 1227–32. The plaintiff, Mavrix Photo, Inc.
(“Mavrix”), a Florida corporation in the business of selling
photos of celebrities with connections to California, sued
Brand, an Ohio corporation, for posting copyrighted photos
belonging to Mavrix on Brand’s website devoted to celebrity
gossip. Id. at 1221–23. Brand’s website made money from
“third-party advertisements for jobs, hotels, and vacations in
California.” Id. at 1222. Brand also had several agreements
with California businesses, including an agreement with a
news site, a web designer, an internet advertising agency that
placed advertisements on the website, and a wireless
provider which hosted a mobile version of the website for its
users. Id.
We noted the difficulty of determining “whether tortious
conduct on a nationally accessible website is expressly
aimed at any, or all, of the forums in which the website can
be viewed.” Id. at 1229. We explained that operating “a
passive website alone cannot satisfy the express aiming
prong,” but doing so in conjunction with “something more—
conduct directly targeting the forum—is sufficient.” Id.
(internal quotation marks omitted). But we held that a
website’s operators can be said to have “expressly aimed” at
a forum where a website “with national viewership and
scope appeals to, and profits from, an audience in a particular
state.” Id. at 1231.
Looking to Brand’s conduct, we concluded that it
“continuously and deliberately exploited the California
market for its website.” Id. at 1230 (internal quotation marks
omitted). “[M]ost salient” was its intentional use of
“Mavrix’s copyrighted photos as part of its exploitation of
the California market for its own commercial gain.” Id.
at 1229. The context was significant:
16 AMA MULTIMEDIA V. WANAT
Brand operated a very popular website with a
specific focus on the California-centered
celebrity and entertainment industries. Based
on the website’s subject matter, as well as the
size and commercial value of the California
market, we conclude that Brand anticipated,
desired, and achieved a substantial California
viewer base. This audience is an integral
component of Brand’s business model and its
profitability.
Id. at 1230. We concluded that holding Brand “answerable
in a California court for the contents of a website whose
economic value turns, in significant measure, on its appeal
to Californians” did not violate due process. Id.
Here, AMA argues Wanat expressly aimed ePorner at
the U.S. market, as evidenced by: (1) Wanat’s use of geo-
targeted advertisements and the purported corresponding
U.S. revenue, (2) ePorner’s U.S. viewer-base, which
comprises 19.21% of the site’s total visitors, (3) ePorner’s
Terms of Service (“TOS”), referred to as a “contractual
agreement,” and (4) the use of the U.S.-based Tiggee. We
hold that AMA has failed to meet its burden of
demonstrating that Wanat expressly aimed his intentional
acts at the United States.
Although similar in some respects, this case materially
differs from Mavrix in several important respects. First,
Brand’s website had “a specific focus on the California-
centered celebrity and entertainment industries.” Mavrix,
647 F.3d at 1230. “Based on the website’s subject matter
. . . we conclude[d] that Brand anticipated, desired, and
achieved a substantial California viewer base.” Id.
(emphasis added). By contrast, ePorner lacks a forum-
AMA MULTIMEDIA V. WANAT 17
specific focus. As the district court noted, “the market for
adult content is global,” evidenced by the fact that the other
80% of ePorner’s viewers were outside the United States.
Second, although, according to AMA, ePorner “features
a significant portion of U.S.-based content from producers
like AMA and U.S.-based models,” this does not mean
ePorner’s subject matter is aimed at the U.S. market to the
same degree Brand’s website was aimed at California.
ePorner’s content is primarily uploaded by its users, and the
popularity or volume of U.S.-generated adult content does
not show that Wanat expressly aimed the site at the U.S.
market. See Walden, 571 U.S. at 284 (“[T]he relationship
must arise out of contacts that the defendant himself creates
with the forum State.”) (emphasis in original) (internal
quotation marks omitted). Instead, it merely suggests the
United States produces a significant quantity of adult content
or that ePorner’s users are more likely to upload content
produced in the United States. Although Wanat may have
foreseen that ePorner would attract a substantial number of
viewers in the United States, this alone does not support a
finding of express aiming. See id. at 289 (rejecting our
conclusion that a defendant’s knowledge of a plaintiff’s
strong forum connections plus foreseeable harm in the forum
comprises sufficient minimum contacts); see also Axiom,
874 F.3d at 1069–70; Pebble Beach, 453 F.3d at 1158
(rejecting an argument for express aiming that “relie[d]
almost exclusively on the possible foreseeable effects”).
Third, ePorner’s forum-based website traffic does not
have the same relevance here as it did in Mavrix because of
the differences in the websites’ advertising structures. In
Mavrix, the “substantial number of hits” to Brand’s site from
Californians was relevant because advertisements on
Brand’s site targeted California residents, meaning website
18 AMA MULTIMEDIA V. WANAT
hits from Californians translated to more advertising revenue
from the site’s California advertisers. 647 F.3d at 1230.
Brand’s knowledge of this user base meant that it
“anticipated, desired, and achieved a substantial California
viewer base.” Id. We found it immaterial whether Brand or
the third-party advertisers targeted Californians because the
targeting itself indicated that Brand knew about the
California user base which it then exploited “for commercial
gain by selling space on its website for advertisements.” 6 Id.
“This audience [was] an integral component of Brand’s
business model and its profitability.” Id. In short, the more
California viewers Brand could bring to its website, the more
money it would make from its advertisements directed to
Californians.
Here, nearly 20% of ePorner’s traffic comes from U.S.
users. But this does not establish that Wanat expressly
aimed at the U.S. market, because ePorner’s advertising
structure materially differs from Brand’s. AMA alleges, and
Wanat’s expert agreed, that ePorner uses geo-located
advertisements, which tailor advertisements based on the
perceived location of the viewer. This tailoring does not
establish that Wanat expressly aimed ePorner at the United
States. ePorner’s geo-located advertisements, provided by a
third-party advertising company, unlike Brand’s, are always
directed at the forum: a viewer in the United States will see
advertisements tailored to the United States while a viewer
in Germany will see advertisements tailored to Germany.
Wanat does not personally control the advertisements shown
on the site, as ePorner contracts with third parties (not
6
To the extent the Mavrix court found the website’s traffic relevant
to targeting, Walden made clear that the third-party advertiser’s behavior
cannot be attributed to the defendant as a contact. See Walden, 571 U.S.
at 284.
AMA MULTIMEDIA V. WANAT 19
located in the United States) which tailor the advertisements
themselves or sell the space to other parties who do.
ePorner’s forum-based traffic, absent other indicia of
Wanat’s personal direction, does not establish that Wanat
tailored the website to attract U.S. traffic.
If such geo-located advertisements constituted express
aiming, ePorner could be said to expressly aim at any forum
in which a user views the website. As we recognized in
Mavrix, “[n]ot all material placed on the Internet is, solely
by virtue of its universal accessibility, expressly aimed at
every [forum] in which it is accessed.” 647 F.3d at 1231.
As a feature of the geo-located advertisements on ePorner’s
website, all users in every forum received advertisements
directed at them. To find specific jurisdiction based on this
would run afoul of the Supreme Court’s directive in Walden
and “impermissibly allow[] a plaintiff’s contacts with the
defendant and forum to drive the jurisdictional analysis.” 7
Walden, 571 U.S. at 289.
Wanat’s other contacts with the United States also fail to
establish express aiming. AMA argues that ePorner’s TOS
suggest that ePorner (and presumably Wanat) entered into
contracts with many U.S. residents because anyone who
7
In Mavrix, we stated that where “a website with national
viewership and scope appeals to, and profits from, an audience in a
particular state, the site’s operators can be said to have ‘expressly aimed’
at that state.” 647 F.3d at 1231. Here, the same concept applies to
whether ePorner, a website with an international audience, is appealing
to, and profiting from, users in the United States. We find, however,
ePorner does not “appeal[] to” the United States such that it could be
said to have “expressly aimed” at the forum. True, ePorner “profits
from” the United States. But the profit results from ePorner’s users who
access the site rather than from Wanat’s targeting of forum users who
access the site. This differs from Brand’s website which targeted
California users through the website’s content.
20 AMA MULTIMEDIA V. WANAT
joined the site assented to the TOS, thereby forming a
contract. Whether or not the TOS constitutes a contract, it
does not evince Wanat’s or ePorner’s effort to target the U.S.
market. Any dispute with U.S. residents arising out of the
performance of the TOS could create specific jurisdiction in
the United States for violation of those terms. But AMA
does not allege violations of the TOS. The TOS therefore
does not establish any targeting of the U.S. market; it at most
suggests Wanat knew ePorner might have U.S. traffic. See
Axiom, 874 F.3d at 1069–70.
Finally, the use of Tiggee to register certain domain
names related to the website does not show targeting of the
U.S. market. AMA contends that the use of Tiggee, which
advertises itself as one of the fastest DNS providers in the
United States, evidences targeting of the United States
because of the speed such companies provide to U.S. website
visitors. Use of a company that offers fast speeds in the
United States could be consistent with the desire to appeal to
the U.S. market. But AMA has not provided evidence to
suggest that Wanat chose this vendor or was motivated by a
desire to appeal to the U.S. market or generate more U.S.
users, as opposed to more users globally. 8
8
AMA relies on UMG Recordings, Inc. v. Kurbanov, 2020 WL
3476993 (4th Cir. June 26, 2020). But Kurbanov is distinguishable. The
defendant in Kurbanov had “registered a Digital Millennium Copyright
Act agent with the U.S. Copyright Office,” “contracted with U.S.-based
advertising brokers,” and “relied on U.S.-based servers.” Id. at *7. None
of those specific actions aimed at the United States, including taking
advantage of U.S. laws “for certain safe harbor defenses to copyright
infringement claims,” id., are present here. The dissent relies on Keeton
v. Hustler Magazine, Inc., 465 U.S. 770 (1984), Dissent at 37, 39, but
that case is likewise inapposite. The defendant magazine publisher in
Keeton regularly circulated “some 10 to 15,000 copies of Hustler
AMA MULTIMEDIA V. WANAT 21
In sum, the United States was not “the focal point” of the
website “and of the harm suffered.” Walden, 571 U.S. at 287
(quoting Calder, 465 U.S. at 789). AMA therefore has not
shown Wanat purposefully directed his activities at the
United States. The district court correctly found that, on this
record, it lacked specific jurisdiction over Wanat. 9
IV
A
We next consider whether the district court abused its
discretion by limiting the scope of AMA’s jurisdictional
magazine” to customers in the forum state “each month.” Id. at 772.
That sort of express aiming is also not present here.
9
Because we hold that AMA has failed to meet its burden on the
first prong of the minimum contacts test regarding purposeful direction,
we do not need to reach the second and third prongs. However, we would
conclude that AMA also fails to satisfy the second and third prongs of
the minimum contacts test. Specifically, AMA has failed to show that
its claims arise out of or relate to Wanat’s forum-related activities and
that the balance of factors supports the conclusion that exercising
jurisdiction over Wanat would be unreasonable. First, nothing more than
AMA’s contested bare allegations support any personal involvement by
Wanat in uploading, encouraging the uploading, or intentionally failing
to remove the infringing content. Second, on balance, exercising
jurisdiction over Wanat, a Polish citizen, would be unreasonable given
his limited contacts with the forum, the burden on Wanat if he must
defend in the forum, potential conflicts with Poland’s sovereignty and its
potential as an alternative forum. See Core-Vent Corp. v. Nobel Indus.
AB, 11 F.3d 1482, 1487–88 (9th Cir. 1993), modified, Yahoo! Inc. v. La
Ligue Contre Le Racisme Et L’Antisemitisme, 433 F.3d 1199 (9th Cir.
2006). While AMA has an interest in adjudicating its dispute in its
chosen forum, we still conclude that the balance of factors weighs in
favor of finding that jurisdiction over Wanat is unreasonable.
22 AMA MULTIMEDIA V. WANAT
discovery on the basis of privacy concerns. 10 See Boschetto,
539 F.3d at 1020. We conclude it did not.
First, we consider de novo whether the district court
made any legal error. The district court denied certain
jurisdictional discovery to AMA because, according to the
Special Master’s Report and Recommendation which was
adopted in full, the PDP and the Court of Justice’s Schrems
decision barred Wanat from producing “personal data” to the
United States because such disclosure might subject Wanat
to criminal liability under Polish law.
AMA never made the Special Master or the district court
aware of the Privacy Shield Decision, and therefore the
district court did not err in failing to consider it. The district
court had no duty to identify sua sponte a change in law,
particularly when—given the record before the district
court—the legal change did not give AMA the right to obtain
jurisdictional discovery. See United States v. Sineneng-
Smith, 140 S. Ct. 1575, 1579 (2020) (“[W]e rely on the
parties to frame the issues for decision and assign to courts
the role of neutral arbiter of matters the parties present.”
(quoting Greenlaw v. United States, 554 U.S. 237, 243
(2008)). The parties jointly recommended the Special
Master, hired their own Polish law experts, and briefed the
jurisdictional discovery issues before the Special Master
issued its Report and Recommendation. Notably, in an
exhibit filed with the Special Master, Wanat’s expert stated
that changes to the European privacy laws were under
consideration that could replace the PDP’s “Safe Harbor”
provision and affect the transfer of personal data to the
United States. AMA, however, did not address these
10
On appeal, AMA only contests the district court’s discovery
rulings to the extent they implicate the PDP and Schrems decision.
AMA MULTIMEDIA V. WANAT 23
potential changes to the PDP before the Special Master and
did not raise the Privacy Shield Decision in its objections to
the Report and Recommendation or motion for
reconsideration.
It was not the district court or the Special Master’s
obligation to independently identify a change in law that
may affect its jurisdictional analysis; that was AMA’s
responsibility. AMA had notice and opportunity to raise the
Privacy Shield Decision below, but failed to do so. We
therefore conclude that the district court did not abuse its
discretion when it denied AMA the jurisdictional discovery
it sought.
B
We next determine whether the Privacy Shield Decision,
which was enacted while this case was before the district
court, or the GDPR, which was enacted while this appeal
was pending but not raised by AMA in its initial briefing, are
matters that we should consider.
“Absent exceptional circumstances, we generally will
not consider arguments raised for the first time on appeal,
although we have discretion to do so.” In re Am. W. Airlines,
Inc., 217 F.3d 1161, 1165 (9th Cir. 2000). We have
exercised such discretion where:
(1) there are exceptional circumstances why
the issue was not raised in the trial court; (2)
the new issue arises while the appeal is
pending because of a change in the law; or (3)
the issue presented is a pure question of law
and the opposing party will suffer no
prejudice as a result of the failure to raise the
issue in the trial court.
24 AMA MULTIMEDIA V. WANAT
Raich v. Gonzalez, 500 F.3d 850, 868 (9th Cir. 2007). Even
if a case falls within one of these exceptions, we must “still
decide whether the particular circumstances of the case
overcome [the] presumption against hearing new
arguments.” Id. (quoting Dream Palace v. Cty. of Maricopa,
384 F.3d 990, 1005 (9th Cir. 2004)). In making this
decision, we must adhere to “the principle of party
presentation.” Sineneng-Smith, 140 S. Ct. at 1579. It is the
parties who “frame the issues for decision,” and we may
entertain only those arguments “bearing a fair resemblance
to the case shaped by the parties.” Id. at 1579, 1582 (citation
omitted).
1
The Privacy Shield Decision was implemented after the
parties completed their briefing to the Special Master and
before the Special Master’s Report and Recommendation.
But AMA never raised this change in law to the Special
Master, to the district court, in its motion for reconsideration,
or in opposition to Wanat’s renewed motion to dismiss.
Again, Wanat’s expert had provided notice that a change in
the European privacy laws was under consideration at the
time the parties were briefing the issue to the district court
and AMA had both notice and opportunity to raise this issue
before the case was dismissed. Despite failing to raise the
issue below or in its initial briefing, AMA claims in its
supplemental brief that we should consider this new
argument because the applicability of the new law is a pure
question of law and Wanat will not be prejudiced by its
consideration. We are not persuaded.
First, we reject AMA’s argument regarding the Privacy
Shield Decision because it is unrelated “to the case shaped
by the parties.” Id. at 1582. Although “[t]here are no doubt
circumstances in which a modest initiating role for a court is
AMA MULTIMEDIA V. WANAT 25
appropriate,” id. at 1579, such circumstances are not present
here. AMA had numerous opportunities to raise the Privacy
Shield decision but did not do so until we ordered
supplemental briefing.
Second, the proper vehicle for raising this issue would
have been through a supplemental notice to the Special
Master or the district court, or even in a motion for
reconsideration before final judgment, not by raising it for
the first time on appeal. See D. Ariz. R. LRCiv 7.2(g)(1)
(Motions for Reconsideration) (2015) (motions for
reconsideration should show “manifest error or a showing of
new facts or legal authority that could not have been brought
to [the court’s] attention earlier with reasonable diligence”);
see also Rentrop v. Spectranetics Corp., 550 F.3d 1112,
1117 (Fed. Cir. 2008) (“[W]hen there is a relevant change in
the law before entry of final judgment, a party generally
must notify the district court; if the party fails to do so, it
waives arguments on appeal that are based on that change in
the law.”); Douglas Asphalt Co. v. QORE, Inc., 657 F.3d
1146, 1152 (11th Cir. 2011) (adopting the analysis of
Rentrop to find that plaintiff’s failure to file a motion for
reconsideration to notify the district court before entry of
final judgment waives arguments on appeal based on the
change in law).
Third, no exceptional circumstances warrant application
of the Privacy Shield Decision to AMA’s argument for
additional jurisdictional discovery. “A party’s unexplained
failure to raise an argument that was indisputably available
below is perhaps the least ‘exceptional’ circumstance
warranting our exercise of this discretion.” G & G Prods.
LLC v. Rusic, 902 F.3d 940, 950 (9th Cir. 2018). Moreover,
application of the Privacy Shield Decision is not a pure
question of law. Whether the Privacy Shield Decision would
26 AMA MULTIMEDIA V. WANAT
weigh in favor of permitting additional jurisdictional
discovery depends on whether AMA is a self-certified
organization under the Privacy Shield Decision, which is
plainly a factual question. For the same reason, resolving
this issue in AMA’s favor would prejudice Wanat because
AMA is asking for remand to develop the factual record as
to whether AMA satisfied the Privacy Shield Decision’s
self-certification requirements. See Raich, 500 F.3d at 868.
In sum, we decline to take up the application of the Privacy
Shield Decision for the first time on appeal. See El Paso
City, 217 F.3d at 1165.
2
Similarly, before AMA filed its opening brief in this
appeal—and after AMA had already been granted two
extensions to file its opening brief—the European
Parliament repealed and replaced the PDP with the GDPR.
Although AMA had the opportunity to bring this change to
our attention its opening or reply brief, it did not do so. This
was raised for the first time after we withdrew submission of
this case and specifically requested briefing on potential
waiver and the impact of the Privacy Shield Decision.
Consistent with “the principle of party presentation,”
Sineneng-Smith, 140 S. Ct. at 1579, we decline to consider
AMA’s untimely argument regarding the GDPR. In
particular, we are not persuaded that we should entertain this
argument where the party that could benefit from the new
law did not raise it in its briefs, although it had notice and
opportunity to do so, and only discussed it in a supplemental
brief filed at our request. See Brown v. Rawson-Neal
Psychiatric Hosp., 840 F.3d 1146, 1148–49 (9th Cir. 2016)
(“[A]ppellate courts do not sit as self-directed boards of legal
inquiry and research, but essentially as arbiters of legal
AMA MULTIMEDIA V. WANAT 27
questions presented and argued by the parties before them.”)
(internal quotation marks omitted).
In addition, since the GDPR replaced the PDP, any
consideration of the GDPR would necessarily require an
analysis of how the GDPR and the Privacy Shield Decision
interrelate. We have already declined to consider the
Privacy Shield Decision, which further counsels against
analyzing the GDPR. Finally, as previously discussed,
AMA has not claimed or presented evidence that it has
satisfied either the Privacy Shield Decision or the GDPR’s
requirements for receiving personal data. See supra
at IV.B.1.
V
AMA has not shown that Wanat purposefully directed
his suit-related conduct at the United States. Nor did the
district court abuse its discretion in denying AMA
jurisdictional discovery. And we decline to consider new
arguments that AMA raises for the first time in response to
our order for supplemental briefing, and which implicate
facts not in the record. We therefore affirm.
AFFIRMED.
28 AMA MULTIMEDIA V. WANAT
IKUTA, Circuit Judge, concurring:
I concur in the majority opinion in full. I write separately
to clarify the posture of this case in light of our decision.
Today we hold that the district court did not err in
granting Wanat’s motion to dismiss for lack of personal
jurisdiction. We also affirm the district court’s denial of
AMA’s motion for additional jurisdictional discovery and its
entry of final judgment against AMA.
And that means this case is over. When a court lacks
personal jurisdiction over a defendant, it has no “authority to
bind a . . . defendant to a judgment,” Walden v. Fiore,
571 U.S. 277, 283 (2014), and must dismiss the case against
the defendant, see, e.g., id. at 281. The defendant is not
“amenable to proceedings,” Int’l Shoe Co. v. Washington,
326 U.S. 310, 311 (1943), and is shielded from “the burdens
of litigating” in that forum, World-Wide Volkswagen Corp.
v. Woodson, 444 U.S. 286, 292 (1980). Congress has
provided one exception to this general rule: a court that lacks
personal jurisdiction over a defendant may transfer the case
to another district court where the case “could have been
brought.” 28 U.S.C. § 1406(a); see Goldlawr, Inc. v.
Heiman, 369 U.S. 463, 465 (1962). This exception is not
applicable here; there is no place where this case could have
been brought because Wanat lacks sufficient contacts with
the United States as a whole. See Maj. Op. at 21.
In his concurrence, Judge Nelson suggests that “perhaps
the door remains slightly open for further proceedings on
remand.” Conc. at 29. The dissent agrees. Dissent at 33 n.1.
But neither Judge Nelson nor the dissent cites any statute or
judge-made rule authorizing a district court to exercise
power over a party in the absence of personal jurisdiction.
Because the district court lacks personal jurisdiction over
AMA MULTIMEDIA V. WANAT 29
Wanat, it now has the authority to do only one thing: remove
this case from its docket in accordance with its ordinary
procedure.
R. NELSON, concurring:
I write separately to address potential issues left open in
light of our decision to affirm the district court’s order
dismissing the complaint. While the presumption may be
that our decision fully resolves this case, perhaps the door
remains slightly open for further proceedings on remand.
See Hampton v. Pac. Inv. Mgmt. Co., 869 F.3d 844, 846 (9th
Cir. 2017) (“Dismissals for lack of subject-matter
jurisdiction . . . must be without prejudice, because a lack of
jurisdiction deprives the dismissing court of any power to
adjudicate the merits of the case.”) (citation omitted). We
hold that the district court did not abuse its discretion when
it denied certain jurisdictional discovery to AMA. We also
decline to exercise our discretion to review AMA’s new
legal claims, raised for the first time on appeal, regarding the
impact of intervening foreign law on its jurisdictional
discovery requests.
I do not understand our opinion, however, to preclude the
district court from exercising its discretion on remand to
consider intervening law in any supplemental request for
jurisdictional discovery or amendment of AMA’s complaint.
As we discuss, changes in European law—specifically, the
Privacy Shield Decision and GDPR—may have opened the
door for companies based in the United States to obtain
personal data that may not have previously been available
under the PDP.
30 AMA MULTIMEDIA V. WANAT
On remand, the district court may wish to allow AMA to
amend its complaint or request additional briefing to
consider whether the Privacy Shield Decision and GDPR
have altered the analysis on available jurisdictional
discovery. 1 To be sure, the current record is silent whether
AMA could benefit through self-certification under the
Privacy Shield Decision or the GDPR. And AMA has
provided no evidence on appeal that it has self-certified.
However, these are issues that the district court may wish to
evaluate on remand.
If additional jurisdictional discovery is ordered, Wanat’s
contacts with the United States may be shown to be more
significant than the current record demonstrates. For
example, ePorner refused to produce any of its advertising
agreements. Wanat’s expert stated he could not conclusively
determine that ePorner only used “ad networks rather than
more directly negotiating with advertisers in addition to the
ad network.” Evidence that Wanat negotiated with
advertisers directly may reveal whether he intended to target
U.S. users. Similarly, evidence that Wanat engaged Tiggee
for the purpose of targeting U.S. forum residents may affect
the analysis as well. The extent of these contacts could also
affect the reasonableness analysis.
If the district court does decide that additional
jurisdictional analysis is warranted on remand, one
additional issue—and potentially a threshold one for
1
Assuming AMA followed the self-certification procedures, I
would be concerned with an interpretation of either the Privacy Shield
Decision or the GDPR that would wholly prevent Wanat from producing
jurisdictionally relevant “personal data.” Significant safeguards are
available for producing even the most sensitive and confidential data.
Moreover, Wanat’s counsel at oral argument agreed Wanat would
comply with a discovery order, notwithstanding the GDPR.
AMA MULTIMEDIA V. WANAT 31
jurisdictional discovery—may be considered. AMA argues
that MW Media’s and Madon’s U.S. contacts may be
imputed to Wanat because MW Media is a civil law
partnership between Wanat and Madon, which, under Polish
law, has no legal personality and cannot be sued. Therefore,
AMA claims that because Wanat is jointly liable for the
debts and obligations of the partnership, any contact by the
partnership may be attributed to Wanat for jurisdictional
purposes. This could become an important issue impacting
what jurisdictional discovery is relevant and what contacts
may support the court’s jurisdiction over Wanat.
We previously considered whether a partnership’s
contacts could be imputed to a partner for jurisdictional
purposes in Sher v. Johnson, 911 F.2d 1357, 1365 (9th Cir.
1990), and held that a Florida law firm’s contacts with
California could not be attributed to its individual partners.
Like AMA’s argument here, “[t]he Shers contend[ed],
without benefit of case support, that because the liability of
the partnership would establish the joint and several liability
of each individual partner, . . . jurisdiction over the
partnership establishes jurisdiction over the partners.” Id.
(internal citation omitted). We disagreed, explaining,
“[l]iability and jurisdiction are independent” and
“[r]egardless of their joint liability, jurisdiction over each
defendant must be established individually.” Id.
Relying on the general rule that “[f]or purposes of
personal jurisdiction, the actions of an agent are attributable
to the principal,” we held that “because each partner acts as
an agent of the partnership when carrying on the business of
the partnership,” “[t]he contacts of the partners may
establish jurisdiction over the partnership.” Id. at 1362,
1366. However, the inverse is not ordinarily true. “[W]hile
each partner is generally an agent of the partnership for the
32 AMA MULTIMEDIA V. WANAT
purpose of its business, he is not ordinarily an agent of his
partners.” Id. at 1366. “Thus, a partner’s actions . . .
ordinarily may not be imputed to the other partners.” Id. We
did not, however, foreclose the possibility that a forum’s
partnership law may create an agency relationship between
partners. In such circumstances, the general rule would
apply and a partnership’s contacts with a forum may be
attributed to its partners.
If further proceedings on jurisdiction occur, the district
court should determine whether Polish law creates an agency
relationship between partners and other persons such that the
contacts of Madon or MW Media may be imputed to Wanat
and whether such a ruling would impact jurisdictional
discovery or the jurisdictional analysis.
GOULD, Circuit Judge, dissenting:
Our precedents establish that we have the authority to
exercise personal jurisdiction over a defendant who has,
among other things, expressly aimed his tortious conduct at
the United States. That authority allows us “to hold [a
defendant] answerable . . . for the contents of a website
whose economic value turns, in significant measure, on its
appeal to [forum residents].” Mavrix Photo, Inc. v. Brand
Techs., Inc., 647 F.3d 1218, 1230 (9th Cir. 2011). In
determining whether there is jurisdiction, we may infer from
“[t]he fact that [a defendant’s] advertisements targeted
[forum] residents . . . that [the defendant] knows—either
actually or constructively—about [the forum’s] user base,
and that it exploits that base for commercial gain by selling
space on its website for advertisements.” Id.
AMA MULTIMEDIA V. WANAT 33
Here, Defendant-Appellee Marcin Wanat operates a
website, ePorner.com, which prior to this suit attracted
nearly 20% of its user base and, as a result, substantial
advertising profits from the United States market; utilized
domain name servers (DNS) of a United States company that
specifically brands itself as increasing internet speeds in the
United States; and employed Terms of Service that invoked
the protections of United States law. If we take the
undisputed facts alleged by Plaintiff-Appellant AMA
Multimedia as true and resolve any factual disputes in its
favor—as we must—Wanat has targeted his economic
activity toward the United States and may properly be haled
into court here. The majority, in reaching the contrary
conclusion, unduly restricts the authority of United States
courts to hold alleged, foreign tortfeasors to account and
incorrectly curtails our established precedents. I respectfully
dissent. 1
1
Because I would hold that there is already personal jurisdiction
over Wanat, I do not here opine on the majority’s decision to affirm the
denial of further jurisdictional discovery without considering arguments
raised for the first time on appeal. However, like the view expressed in
Judge Nelson’s separate concurrence, I do not doubt that the district
court has discretion on remand to grant AMA leave to amend its
complaint or to conduct further jurisdictional discovery in light of
changes in international law. The district court may wish to do so in
recognition of courts’ greater discretion to consider questions of foreign
law not initially raised by the parties, given “the peculiar nature of the
issue of foreign law.” See Fed. R. Civ. P. 44.1 advisory committee’s
note to 1966 adoption. Especially in a case such as this, with important
interests of the United States’ ability to enforce domestic intellectual
property rights at stake, there are good reasons to ensure that the
appropriate international law is applied. See Richmark Corp. v. Timber
Falling Consultants, 959 F.2d 1468, 1475 (9th Cir. 1992) (one factor in
international disclosure disputes is “the extent to which noncompliance
with the [discovery] request would undermine important interests of the
United States”).
34 AMA MULTIMEDIA V. WANAT
I
Because the majority summarizes most of the key facts,
I reiterate only those most relevant to the personal
jurisdiction analysis. First, Defendant Marcin Wanat is a
Polish citizen and partner in MW Media, S.C., which owns
and operates the adult video website ePorner.com.
Allegedly, ePorner.com has infringed copyrighted materials
of Plaintiff AMA Multimedia, which is a Nevada limited
liability company. After being sued by AMA in the District
of Arizona, Wanat filed a motion to dismiss for lack of
personal jurisdiction.
Although no facts in the current record show that Wanat
directly conducts activity within the United States, it is
undisputed that ePorner.com’s most important commercial
market is the United States: 19.21% of its website traffic
comes from the United States, while Germany makes up the
second largest market, comprising 13.67% of the website
traffic. No other country accounts for more than 6% of the
traffic to the site. In turn, ePorner.com’s business model
turns solely on advertising profits, and it uses third parties to
geolocate advertisements based on a visitor’s perceived
location. Because of the higher premiums placed on U.S.-
focused advertising, the U.S. market likely makes up an even
greater proportion of ePorner.com’s profits than its user base
would suggest.
While ePorner.com now stores its videos on a server in
the Netherlands, before this suit it principally used the
domain name servers of U.S.-based Tiggee LLC, which
claims to provide the fastest internet speeds in the eastern
United States and second fastest in the western United
States. Also, ePorner.com’s Terms of Service as of 2015
stated that the website content was “owned by and/or
licensed to Eporner, subject to copyright and other
AMA MULTIMEDIA V. WANAT 35
intellectual property rights under United States, Canada and
foreign laws and international conventions.”
After denying certain jurisdictional discovery, the
district court dismissed the suit for lack of personal
jurisdiction, and AMA appealed.
II
We review de novo a district court’s dismissal for lack of
personal jurisdiction. Axiom Foods, Inc. v. Acerchem Int’l,
Inc., 874 F.3d 1064, 1067 (9th Cir. 2017). Where the
determination of personal jurisdiction is “based on written
materials rather than an evidentiary hearing, [a plaintiff]
need only make a prima facie showing of jurisdictional
facts.” Martinez v. Aero Caribbean, 764 F.3d 1062, 1066
(9th Cir. 2014) (quoting Schwarzenegger v. Fred Martin
Motor Co., 374 F.3d 797, 800 (9th Cir. 2004)).
“Uncontroverted allegations in the complaint must be taken
as true, and factual disputes are construed in the plaintiff’s
favor,” Freestream Aircraft (Bermuda) Ltd. v. Aero Law
Grp., 905 F.3d 597, 602 (9th Cir. 2018), so long as the
plaintiff does not “simply rest on the bare allegations of its
complaint,” Schwarzenegger, 374 F.3d at 800 (quoting
Amba Mktg. Sys., Inc. v. Jobar Int’l, Inc., 551 F.2d 784, 787
(9th Cir. 1977)).
III
Personal jurisdiction under the federal long-arm statute,
Federal Rule of Civil Procedure 4(k)(2), must comport with
due process; in this instance, where specific jurisdiction is at
issue, the defendant must have “minimum contacts” with the
forum of the United States, and the exercise of jurisdiction
must not be unreasonable. Holland Am. Line Inc. v. Wartsila
N. Am., Inc., 485 F.3d 450, 462 (9th Cir. 2007) (“The due
36 AMA MULTIMEDIA V. WANAT
process analysis under Rule 4(k)(2) is nearly identical to
traditional personal jurisdiction analysis with one significant
difference: rather than considering contacts between [the
defendant] and the forum state, we consider contacts with
the nation as a whole.”); see Int’l Shoe Co. v. Washington,
326 U.S. 310, 316 (1945). The familiar requirements for
specific jurisdiction are as follows: (1) the defendant must
either “purposefully direct his activities” toward the forum
or “purposefully avail[] himself of the privileges of
conducting activities in the forum”; (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.” Axiom, 874 F.3d at 1068 (quoting Dole Food
Co., Inc. v. Watts, 303 F.3d 1104, 1111 (9th Cir. 2002)).
The majority correctly identifies the “effects test”
derived from Calder v. Jones, 465 U.S. 783 (1984) as the
appropriate standard by which to gauge whether Wanat
purposefully directed his activities toward the United States.
Under the effects 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.” Mavrix Photo, Inc.
v. Brand Techs., Inc., 647 F.3d 1218, 1228 (9th Cir. 2011)
(quoting Brayton Purcell LLP v. Recordon & Recordon,
606 F.3d 1124, 1128 (9th Cir. 2010)). The majority also
correctly holds that Wanat committed an intentional act for
purposes of jurisdiction. The majority then goes astray,
however, by concluding that Wanat did not expressly aim his
conduct toward the United States, and that mistake defeats
jurisdiction. Our precedents dictate otherwise, so I would
hold that there is personal jurisdiction over Wanat.
AMA MULTIMEDIA V. WANAT 37
A
A defendant who operates a passive website “expressly
aims” at a forum if he engages in “conduct directly targeting
the forum.” Mavrix, 647 F.3d at 1229. 2 We have held that
this requirement was satisfied when a defendant
“continuously and deliberately exploited” the forum’s
market for commercial gain, by operating “a website whose
economic value turns, in significant measure, on its appeal
to [forum residents].” Id. at 1230; accord Keeton v. Hustler
Mag., Inc., 465 U.S. 770, 781 (1984) (“Where, as in this
case, [the defendant] has continuously and deliberately
exploited the New Hampshire market [by selling
magazines], it must reasonably anticipate being haled into
court there . . . based on the contents of its magazine.”). In
other words, express aiming is present where a defendant
“anticipated, desired, and achieved a substantial [U.S.]
viewer base.” Mavrix, 647 F.3d at 1230.
Here, there should be little question that these conditions
are satisfied. As in Mavrix, ePorner.com’s business model
depends on “selling advertising space on its website to third-
party advertisers: the more visitors there are to the site, the
more hits that are made on the advertisements; the more hits
that are made on the advertisements, the more money that is
paid by the advertisers to [ePorner.com and Wanat].” Id.
ePorner.com’s ads are geolocated to the perceived location
2
It is worth noting that ePorner.com is more than a purely passive
website because it has interactive features that “that involve the knowing
and repeated transmission of computer files over the Internet,” Mavrix,
647 F.3d at 1226 (quotations omitted), and “visitors must agree to certain
terms and conditions” in order to make full use of the site, UMG
Recordings, Inc. v. Kurbanov, 963 F.3d 344, 353 (4th Cir. 2020). In any
event, regardless of whether the site is passive, interactive, or semi-
interactive, jurisdiction is proper here.
38 AMA MULTIMEDIA V. WANAT
of its visitors, and at nearly 20% of the website’s traffic, the
United States audience is “substantial” and in fact makes up
a larger proportion of ePorner’s user base than any other
country, by a significant margin.
“[I]mmaterial [of] whether the third-party advertisers or
[ePorner and Wanat] targeted [United States] residents,”
“[t]he fact that the advertisements targeted [U.S.] residents
indicates that [ePorner] knows—either actually or
constructively—about its [U.S.] user base, and that it
exploits that base for commercial gain by selling space on its
website for advertisements.” Id.; see also Kurbanov,
963 F.3d at 348, 353–54 (in finding jurisdiction, reasoning
that “[w]hile [the defendant] outsourced the role of finding
advertisers for the Websites to brokers, the fact remains that
he earns revenues precisely because the advertising is
targeted to visitors in [the forum]” through “geolocation” or
“geo-targeting”). This is especially true where, as here,
ePorner has contracted with a U.S.-based DNS company that
specifically markets itself as providing fast internet speeds
in the United States. 3 The straightforward conclusion is that
the United States “audience is an integral component of
[ePorner’s] business model and its profitability,” and that “it
does not violate due process to hold [ePorner or Wanat]
answerable in a [U.S.] court for the contents of a website
whose economic value turns, in significant measure, on its
appeal to [U.S. residents].” Mavrix, 647 F.3d at 1230.
3
ePorner also used Terms of Service that invoked the protections of
United States copyright and trademark law. While the cursory reference
to U.S. law in these Terms would not be sufficient on its own to establish
express aiming, it lends further support to the conclusion, in conjunction
with the rest of the website’s operations, that ePorner’s contacts with the
United States were more than merely “random, isolated, or fortuitous.”
Keeton, 465 U.S. at 774.
AMA MULTIMEDIA V. WANAT 39
The majority resists this conclusion by seeking to
distinguish Mavrix from the present case and throwing up
roadblocks that can be found nowhere in our precedents—
and that, in some instances, flatly contradict our precedents.
Among other things, the majority suggests that personal
jurisdiction is improper because Wanat and ePorner lacked
a “forum-specific focus,” noting that “the market for adult
content is global.” See Maj. Op. at 16–17. But it is well-
established that no forum-specific requirement exists. In
Keeton, the Supreme Court held that New Hampshire had
personal jurisdiction over a national magazine even though
the magazine distributed fewer copies in that state than
others and even though “the bulk of the harm done to [the
plaintiff] occurred outside New Hampshire.” 465 U.S.
at 780. Because the magazine “continuously and
deliberately exploited the New Hampshire market . . . [t]here
is no unfairness in calling it to answer for the contents of that
publication.” Id. at 781. Similarly, our own court has stated
that so long as “a jurisdictionally sufficient amount of harm
is suffered in the forum . . . , it does not matter that even
more harm might have been suffered in another [forum].”
Yahoo! Inc. v. La Ligue Contre Le Racisme Et
L’Antisemitisme, 433 F.3d 1199, 1207 (9th Cir. 2006) (en
banc) (per curiam); see also Mavrix, 647 F.3d at 1230–31
(finding jurisdiction in California despite the fact that the
defendant more generally “sought and attracted [a]
nationwide audience[]”). Here, the market for adult content
is not uniquely and exclusively American, but Wanat should
nonetheless be held accountable in a United States court
because he has “continuously and deliberately exploited” the
U.S. market. See Keeton, 465 U.S. at 781.
The majority misreads Mavrix. Mavrix did not hold that
personal jurisdiction is proper only when a website has a
40 AMA MULTIMEDIA V. WANAT
unique appeal in the forum, nor did it depend fundamentally
on the website’s forum-specific subject matter, as the
majority contends, see Maj. Op. at 16–17. Rather, in Mavrix,
“[t]he record [did] not reflect how many of the website’s
visitors are California residents.” 647 F.3d at 1222. In light
of that absence, we focused on the subject matter of the
website (celebrity gossip) as evidence that the website had
significant appeal in the California forum. Id. at 1230. We
then considered that subject matter along with “the size and
commercial value of the California market”—not with the
unknown size and commercial value of the website’s
California user base—to infer that “[t]his audience is an
integral component of [the defendant’s] business model and
its profitability.” Id. Unlike Mavrix, we need not rely on the
subject matter of ePorner.com as evidence from which to
infer the site’s appeal in the forum: The record directly
shows that ePorner.com appeals to a significant U.S.
audience and that it contracts with a U.S.-based DNS
company which markets itself as providing faster internet
speeds to U.S. users. To hold that there is no express aiming
here is to construe the facts in the light least favorable to the
plaintiff and to blind ourselves to the clear inference that
ePorner “knows—either actually or constructively—about
its [U.S.] user base, and that it exploits that base for
commercial gain by selling space on its website for
advertisements.” Id. 4
4
Nor is there truth in the majority’s rejoinder that finding
jurisdiction here would mean that “ePorner could be said to expressly
aim at any forum in which a user views the website.” Maj. Op. at 19.
This contention ignores the fact that a defendant must have “anticipated,
desired, and achieved a substantial [forum] viewer base,” Mavrix,
647 F.3d at 1230 (emphasis added), and that its contacts cannot be
merely “random, isolated, or fortuitous,” Keeton, 465 U.S. at 774.
Exercising jurisdiction where, as here, the United States is the most
AMA MULTIMEDIA V. WANAT 41
The majority apparently grounds its reluctance to make
this plain inference, in part, on Walden v. Fiore, 571 U.S.
277 (2014), by reasoning that foreseeability of harm to the
plaintiff in the forum cannot alone establish minimum
contacts and that only the defendant’s own contacts with the
forum can provide the basis for jurisdiction. See Maj. Op.
at 17–19 & n.6. These propositions are undeniably true.
They are also beside the point.
First, foreseeability of harm to the plaintiff principally
relates not to the express aiming analysis, but to the third
prong of the effects test—whether the defendant “caus[ed]
harm that the defendant knows is likely to be suffered in the
forum.” Mavrix, 647 F.3d at 1228. Although individualized
targeting “will not, on its own, support the exercise of
specific jurisdiction” after Walden, it is still “relevant to the
minimum contacts inquiry.” Axiom, 874 F.3d at 1070.
Indeed, that is the only way that the second and third prongs
of the effects test do not entirely collapse into each other.
Second, Walden stands for the proposition that a
defendant may not simply rely on a plaintiff’s contacts with
the defendant and the forum to establish personal
jurisdiction. Walden, 571 U.S. at 289. That principle of due
process, however, does not make a defendant immune from
suit when the “‘effects’ of the alleged [tortious conduct]
connect[] the defendant[] to [the forum], not just to the
plaintiff.” Id. at 287. The majority elides this important
distinction, asserting that, “[t]o find specific jurisdiction
based on [users in the forum receiving targeted
advertisements] would run afoul of the Supreme Court’s
directive in Walden and ‘impermissibly allow[] a plaintiff’s
integral market to the defendant’s profitability will not result in the
majority’s “sky-is-falling” scenario.
42 AMA MULTIMEDIA V. WANAT
contacts with the defendant and forum to drive the
jurisdictional analysis.’” Maj. Op. at 19 (quoting Walden,
571 U.S. at 289). But the defendant’s own intentional
contacts with users in the forum have nothing to do with the
plaintiff. And as I have explained, the facts here show that
Wanat “knows—either actually or constructively—about
[ePorner.com’s U.S.] user base, and that [he] exploits that
base for commercial gain by selling space on [the] website
for advertisements.” Mavrix, 674 F.3d at 1230.
Taking AMA’s uncontroverted allegations as true and
resolving factual disputes in its favor, there is more than
enough here to conclude that Wanat, through ePorner,
expressly aimed his conduct at the United States. The
second prong of the effects test should have been resolved in
AMA’s favor.
B
The third prong of the effects test is also clearly satisfied.
Because ePorner allegedly violated the intellectual property
rights of AMA, which is headquartered in the United States,
and because the harm involves the potential diversion of
U.S. users and revenues from AMA’s own platforms,
Wanat’s express aiming is “causing harm that [he] knows is
likely to be suffered in the forum.” See Brayton Purcell,
606 F.3d at 1131 (it is foreseeable that a plaintiff will be
“harmed by infringement of its copyright[s and trademarks],
including harm to its business reputation and goodwill, and
decreased business and profits”); Mavrix, 647 F.3d at 1231
(“[A] corporation can suffer economic harm both where the
bad acts occurred and where the corporation has its principal
place of business.” (quoting Dole Food, 303 F.3d at 1113)).
All of the requirements of the Calder effects test have been
met.
AMA MULTIMEDIA V. WANAT 43
C
Having established purposeful direction, the next step in
the minimum contacts inquiry is to consider whether the
claim “arises out of or relates to the defendant’s forum-
related activities.” Axiom, 874 F.3d at 1068 (quoting Dole
Food, 303 F.3d at 1111)). This step, too, straightforwardly
supports jurisdiction. Wanat operates ePorner.com. That
website allegedly displayed infringing videos, causing harm
to AMA in the United States. But for Wanat’s operation of
ePorner.com, AMA would not have been harmed in the
forum. The harm to AMA arises out of Wanat’s U.S.
contacts. Cf. Mavrix, 647 F.3d at 1228 (“[The plaintiff’s]
claim of copyright infringement arises out of [the
defendant’s] publication of the photos on a website
accessible to users in the forum state.”). 5
D
Because all other requirements for specific jurisdiction
have been met, the final inquiry is whether it is reasonable
to exercise personal jurisdiction over Wanat.
Schwarzenegger, 374 F.3d at 802. We balance seven factors
in making that determination:
5
Because the majority dismisses the case at the purposeful direction
step, it only briefly addresses, in one sentence in a footnote, whether the
claim arises out of or relates to the defendant’s forum-related activities
and concludes that it does not. See Maj. Op. at 21 n.9. Its only stated
reason is that “nothing more than AMA’s contested bare allegations
support any personal involvement by Wanat in uploading, encouraging
the uploading, or intentionally failing to remove the infringing content.”
Id. But it is not contested that Wanat, through his partnership MW
Media, assists in operating ePorner.com. The majority’s cursory, non-
binding dicta cannot withstand scrutiny.
44 AMA MULTIMEDIA V. WANAT
(1) the extent of the defendant’s purposeful
interjection into the forum[’s] affairs;
(2) the burden on the defendant of defending
in the forum;
(3) the extent of conflict with the sovereignty
of the defendant’s [country];
(4) the forum[’s] interest in adjudicating the
dispute;
(5) the most efficient judicial resolution of
the controversy;
(6) the importance of the forum to the
plaintiff’s interest in convenient and
effective relief; and
(7) the existence of an alternative forum.
Freestream Aircraft, 905 F.3d at 607. The burden is on
Wanat “to ‘present a compelling case’ that the exercise of
jurisdiction would not be reasonable.” Schwarzenegger,
374 F.3d at 802 (quoting Burger King Corp. v. Rudzewicz,
471 U.S. 462, 477 (1985)); accord Harris Rutsky & Co. Ins.
Servs., Inc. v. Bell & Clements Ltd., 328 F.3d 1122, 1132
(9th Cir. 2003). Wanat has not done so.
On the one hand, forcing Wanat to litigate in the United
States would almost certainly impose substantial burdens on
him and raise sovereignty and efficiency concerns. 6 But on
6
It is notable, however, that Wanat has “not presented evidence that
the inconvenience is so great as to constitute deprivation of due process.”
Freestream Aircraft, 905 F.3d at 608 (quotations omitted).
AMA MULTIMEDIA V. WANAT 45
the other, Wanat has purposefully interjected himself in the
forum by operating a website that continuously and
deliberately exploited the U.S. market, see CollegeSource,
Inc. v. AcademyOne, Inc., 653 F.3d 1066, 1080 (9th Cir.
2011), and the United States has a strong interest in
enforcing federal intellectual property laws and providing
redress for injuries felt within its borders. In light of these
competing concerns, like in Harris Rutsky, “[t]he balance is
essentially a wash,” and Wanat has not met his burden to
present a “compelling case” that the exercise of jurisdiction
would be unreasonable. Harris Rutsky, 328 F.3d at 1134;
accord Freestream Aircraft, 905 F.3d at 609. I would hold
that the United States has personal jurisdiction over Wanat.
IV
The majority’s holding today conflicts with our
precedents and unduly restrains our ability to hold foreign
tortfeasors accountable for conduct purposefully directed at
the United States and causing harm in the United States. I
respectfully dissent.