Twentieth Century Fox Internat v. Gemini Film International

FILED
NOT FOR PUBLICATION JUN 22 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
TWENTIETH CENTURY FOX No. 08-56735
INTERNATIONAL CORPORATION,
D.C. No. 2:08-cv-1109-GW
Plaintiff - Appellant,
MEMORANDUM *
v.
BODO SCRIBA,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Argued and Submitted June 11, 2010
Pasadena, California
Before: D.W. NELSON and GOULD, Circuit Judges, and GWIN,** District Judge.
Appellant Twentieth Century Fox International Corporation (“Fox”) appeals
the district court’s order dismissing Fox’s claims against Appellee Bodo Scriba
(“Scriba”) for lack of personal jurisdiction. We vacate and remand.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable James S. Gwin, United States District Judge for the
Northern District of Ohio, sitting by designation.
In December 1999, Appellant Fox, a New York corporation, and Gemini
Film International (“GFI”), a Russian corporation, entered a distribution agreement
giving GFI the exclusive right to distribute Fox films in Russia. The parties
renewed the agreement annually until 2006.
Appellee Scriba allegedly owns and controls GFI. Scriba is a German
citizen with his primary residence in Hamburg. On the current record, Scriba
appears to have only the barest personal contacts with California.
According to Scriba, nonparty Michael Schlicht served as GFI’s managing
director until March 2008, signing the agreements with Fox on behalf of GFI. At
the filing of this lawsuit, Schlicht worked as managing director of Fox subsidiary
Twentieth Century Fox CIS, a Russian company.
At some point after the parties ended the distribution agreement, GFI
allegedly failed to make several payments owed to Fox. In 2007 and 2008,
Appellee Scriba exchanged several letters with Fox, apologizing about the
delinquency and pledging to uncover the source of the problem. Ultimately, Scriba
told Fox he believed managing director Schlicht was responsible for mismanaging
GFI.
Despite Scriba’s representations, Appellant Fox alleges that Scriba siphoned
money from GFI to other entities he controlled for his own benefit. Specifically,
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Fox claims that GFI made several fraudulent loans to two Russian companies
allegedly controlled by Scriba: Amadeus Publishing and Amadeus Distribution
Service, Ltd. (collectively, “Amadeus”).
Appellee Scriba concedes that GFI lent the funds to Amadeus. He contends,
however, that managing director Schlicht authorized the loans and led him to
believe that GFI had adequate profits both to pay Fox and to provide capital to
Amadeus. Scriba also states that the loans were part of a joint venture between
GFI and Amadeus to publish novels and then create films based on the books.
Ultimately, Fox filed the instant case against GFI and Scriba. Appellee
Scriba filed a motion to dismiss the claims against him for lack of personal
jurisdiction. In opposing the motion, Fox contended that GFI was Scriba’s alter
ego and that the court’s uncontested personal jurisdiction over GFI could thus be
extended to Scriba.
The district court, however, granted the motion to dismiss, holding that the
exercise of jurisdiction over Scriba would be unreasonable. The court also
declined Fox’s request for jurisdictional discovery on the alter ego issue. Although
mindful that the question is a close one, we hold that the court below erred by
ruling on an incomplete record, rather than allowing the parties to conduct limited
jurisdictional discovery.
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We review a district court’s decision to grant or deny discovery on
jurisdictional facts for an abuse of discretion. Boschetto v. Hansing, 539 F.3d
1011, 1020 (9th Cir. 2008). Discovery “may be appropriately granted where
pertinent facts bearing on the question of jurisdiction are controverted or where a
more satisfactory showing of the facts is necessary.” Boschetto, 539 F.3d at 1020.
Although the party seeking discovery bears the burden of showing that the
denial of discovery results in actual and substantial prejudice to it, Boschetto, 539
F.3d at 1020, Fox has made an adequate showing. For one, Fox’s representations
of the discovery it seeks are more specific than those held insufficient in Butcher’s
Union Local No. 498, United Food & Commercial Workers v. SDC Inv., Inc., 788
F.2d 535 (9th Cir. 1986), or Boschetto, 539 F.3d at 1020. In Butcher’s Union,the
plaintiffs stated only that they “believe[d]” that discovery would enable them to
demonstrate sufficient California business contacts to establish jurisdiction. 788
F.2d at 540. And in Boschetto, the discovery request was “based on little more
than a hunch that it might yield jurisdictionally relevant facts.” 539 F.3d at 1020.
In addition, Fox’s alter ego allegations, if supported by some evidence,
would provide a strong argument for the exercise of jurisdiction over Scriba. Cf.
Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1160 (9th Cir. 2006) (affirming denial
of discovery request where additional facts would be immaterial because
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jurisdiction did not exist “[a]s a matter of law”); Boschetto, 539 F.3d at 1020 (no
abuse of discretion where plaintiff’s complaint and affidavits did not even allege
conduct which it sought to discover); Razore v. Tulalip Tribes of Wash., 66 F.3d
236, 240 (9th Cir. 1995).(“Additional discovery would not affect the jurisdictional
analysis.”).
In sum, a more full and satisfactory showing of the facts is required before
the district court can adequately determine whether personal jurisdiction over
Scriba exists in California. Accordingly, we vacate the district court’s order
dismissing the case against Scriba and remand with instructions for the district
court to permit the parties to engage in jurisdictional discovery. This discovery
shall be limited to the depositions of Appellee Scriba and former managing director
Schlicht as well as documents related to GFI’s allegedly fraudulent dealings with
the Amadeus entities.
VACATED AND REMANDED WITH INSTRUCTIONS.
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