Jocelyn Bundy v. Nirvana L.L.C. ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 3 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOCELYN SUSAN BUNDY, an individual, No. 21-56305
Plaintiff-Appellant, D.C. No.
2:21−cv−03621−DSF−MAA
v.
NIRVANA LLC, a Washington Limited MEMORANDUM*
Liability Company; LIVE NATION
MERCHANDISE, LLC, a Delaware Limited
Liability Company; MERCH TRAFFIC
LLC, a Delaware Limited Liability
Company; SILVA ARTIST
MANAGEMENT, LLC, a California Limited
Liability Company,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Dale Fischer, District Judge, Presiding
Argued and Submitted April 20, 2023
Pasadena, California
Before: WARDLAW and KOH, Circuit Judges, and McMAHON,** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Colleen McMahon, United States District Judge for
the Southern District of New York, sitting by designation.
Jocelyn Susan Bundy brought this copyright infringement action against
Nirvana LLC, Live National Merchandise LLC, Merch Traffic LLC, and Silva
Artist Management LLC (collectively, Defendants) for unlicensed use of her
grandfather C.W. Scott-Giles’s drawing of “Upper Hell” from Dante Alighieri’s
The Divine Comedy (the “Illustration”). Bundy appeals the district court’s
dismissal of her case for forum non conveniens, contending that the United
Kingdom is an inadequate forum and that the remaining forum non conveniens
factors favor suit in the United States.
We have jurisdiction under 28 U.S.C. § 1291. We review for abuse of
discretion the district court’s dismissal based on forum non conveniens, see Lewis
v. Liberty Mut. Ins. Co., 953 F.3d 1160, 1163–64 (9th Cir. 2020), and its denial of
a motion for reconsideration, see Zamani v. Carnes, 491 F.3d 990, 994 (9th Cir.
2007). We affirm.
The district court did not abuse its discretion in dismissing this case for
forum non conveniens and denying the related motion for reconsideration. In
reviewing a dismissal for forum non conveniens, we examine: (1) the adequacy of
the alternate forum; (2) the deference owed a plaintiff’s chosen forum; and (3)
whether the balance of private and public interest factors favors dismissal. See
Carijano v. Occidental Petroleum Corp., 643 F.3d 1216, 1224 (9th Cir. 2011).
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1. The district court properly determined that the United Kingdom
provides an adequate alternative forum. “An alternative forum is deemed adequate
if: (1) the defendant is amenable to process there; and (2) the other jurisdiction
offers a satisfactory remedy.” Id. at 1225. Here, Defendants are amenable to
process in the United Kingdom because they accepted, as a condition for the
district court’s dismissal, that they must submit to personal jurisdiction in the
United Kingdom for all of Bundy’s claims. See id. Further, the district court
correctly concluded that Lucasfilm Ltd. v. Ainsworth [2011] UKSC 39 does not
preclude the United Kingdom from exercising jurisdiction over Bundy’s U.S.
copyright claims. Lucasfilm holds that the United Kingdom’s jurisdiction is
limited over foreign property disputes only where proceedings are “principally
concerned” with the “question of title” or “the right to possession” of a foreign
property right. Id. [105]; see also id. [101] (describing the “very narrow” question
on appeal). The main thrust of Lucasfilm is to expand the United Kingdom’s
jurisdiction over copyright infringement suits, rather than restrict it. See id.Bundy contends that the principal issue in this case is indeed the validity of
her U.S. copyright interest, thus precluding U.K. jurisdiction under Lucasfilm.
However, the district court correctly concluded that the validity issue here is
probably secondary, as the face of Bundy’s complaint suggests that she does not
have an enforceable U.S. copyright interest. And Bundy fails to allege how U.S.
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copyright law would protect the Illustration as a “foreign work.” She has not
demonstrated that the United Kingdom was a “treaty party” to the United States
when the Illustration was published in 1949, which is required for a foreign work
to be enforceable under U.S. law. 17 U.S.C. § 104(b)(1); see also 1 M. Nimmer &
D. Nimmer, Nimmer on Copyright § 5.07 (2022).1 Her allegations that the
Illustration did not enter the public domain in the United States do not alter this
statutory requirement.
By contrast, whether the Illustration has copyright protection under U.K. law
remains a threshold legal question to be addressed by the U.K. courts. The district
court need not have accepted as true Bundy’s legal conclusion in her complaint
that she is the sole owner of the Illustration. See Whitaker v. Tesla Motors, Inc.,
985 F.3d 1173, 1176 (9th Cir. 2021). And even though two witnesses have
provided declarations disclaiming ownership of a U.K. copyright interest in the
Illustration, Bundy has yet to present affirmative evidence proving sole ownership
or ownership at all. Given that Bundy’s evidence does not conclusively resolve the
ownership issue, and that Defendants plan to continue to challenge Bundy’s
ownership going forward, ownership of a U.K. copyright interest in the Illustration
1
In her briefing, Bundy cites to the Berne Convention as the international treaty
that supports U.S. copyright protection for her U.K. work. However, the United
States did not join the Berne Convention until 1989. See 1 Nimmer on Copyright
§ 5.07; 9 M. Nimmer & D. Nimmer, Nimmer on Copyright app. 20 (collecting all
international copyright treaties with the United States).
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persists as a threshold issue in this case. As a result, Lucasfilm does not bar U.K.
jurisdiction, and the district court properly determined that the United Kingdom
serves as an adequate forum.
2. Nor did the district court abuse its discretion in concluding that
Bundy’s forum choice is afforded “less deference” because she is a foreign
plaintiff. Creative Tech., Ltd. v. Aztech Sys. Pte, Ltd., 61 F.3d 696, 703 (9th Cir.
1995) (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255 (1981)). Although
Defendants are headquartered in the United States, see Carijano, 643 F.3d at 1229,
this connection to the United States alone does not warrant increased deference.
See Ravelo Monegro v. Rosa, 211 F.3d 509, 513–14 (9th Cir. 2000).
3. With lessened deference to Bundy’s choice of forum, the district court
did not abuse its discretion in concluding that the public and private interest factors
weigh in favor of dismissal. See Lueck v. Sundstrand Corp., 236 F.3d 1137, 1145
(9th Cir. 2001). A number of public interest factors weigh in Defendants’ favor,
including the need to apply U.K. and German law, see Leetsch v. Freedman, 260
F.3d 1100, 1105 (9th Cir. 2001), the unwarranted potential burden on U.S. courts,
see Lueck, 236 F.3d at 1147, and the fact that a trial in the United Kingdom would
be “speedier” than one in the Central District, Gates Learjet Corp. v. Jenson, 743
F.2d 1325, 1337 (9th Cir. 1984). While Bundy is correct that our circuit is split on
the appropriate way to apply the local interest factor, see Carijano, 643 F.3d at
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1233 n.3, we need not decide that issue because the remaining factors either favor
dismissal or are neutral even if the local interest factor were to weigh in Bundy’s
favor.
Among the private interest factors, the residence and convenience of the
parties and witnesses, access to evidence, and enforceability of judgment also favor
dismissal. See Lueck, 236 F.3d at 1145. Material evidence and witnesses related
to ownership are in the United Kingdom, and ownership is a critical threshold issue
that a U.K. court is more equipped to resolve. Moreover, it is possible for Bundy
to enforce a U.K. judgment in the United States. See Cal. Code Civ. P. §§ 1715(a),
1716(a)–(d), 1723; Carijano, 643 F.3d at 1231–32; Yahoo! Inc. v. La Ligue Contre
Le Racisme Et L’Antisemitisme, 433 F.3d 1199, 1213–15 (9th Cir. 2006). And to
the extent Bundy may face difficulty collecting evidence from the United States,
see Lueck, 236 F.3d at 1145, the district court conditioned dismissal on the
Defendants’ agreement to use the discovery procedures set forth in the Federal
Rules of Civil Procedure and to voluntarily produce documents and witnesses
under their control in the United States for use in the U.K. suit.
“In cases concerning foreign plaintiffs, this court rarely has reversed a
district court’s grant of a motion to dismiss for forum non conveniens.” Vivendi SA
v. T-Mobile USA Inc., 586 F.3d 689, 694 (9th Cir. 2009). With the “highly
deferential” standard of review in mind, id., we hold that the district court did not
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abuse its discretion in dismissing this case for forum non conveniens and denying
Bundy’s motion for reconsideration.2
AFFIRMED.
2
Because we affirm the district court’s decision, we do not reach the question of
whether this case should be reassigned upon remand.
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