AMA Multimedia LLC v. Sagan Limited et al

Filing 62

**STRICKEN BY DOC. 63*ORDER granting #34 Motion for Discovery; taking under advisement #27 Motion to Dismiss for Lack of Jurisdiction; denying #27 Motion to Stay. Signed by Judge David G Campbell on 10/5/2016.(DGC, nvo) Modified on 10/5/2016 (TCA).

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

AMA Multimedia LLC,
Plaintiff,

10
11

ORDER

v.

12

No. CV-16-01269-PHX-DGC

Sagan Limited, et al.,

13

Defendants.

14
15
16

Plaintiff AMA Multimedia, LLC (“AMA”), a producer of pornographic material,

17

asserts copyright infringement claims against several entities and one individual

18

associated with the website Porn.com: Sagan, Limited (“Sagan”), Cyberweb, LTD

19

(“Cyberweb”), Netmedia Services, Inc. (“Netmedia”), GLP, 5, Inc. (“GLP”), and David

20

Koonar.

21

company, respectively – move to dismiss for lack of personal jurisdiction pursuant to

22

Federal Rule of Civil Procedure 12(b)(2), or, in the alternative, to stay these proceedings

23

pending resolution of an action currently before the Supreme Court of Barbados.

24

Doc. 27. The parties’ request for oral argument is denied because the issues have been

25

fully briefed and oral argument will not aid in the Court’s decision. See Fed. R. Civ. P.

26

78(b); Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998). The Court will deny the

27

stay request and hold the motion to dismiss in abeyance until limited jurisdictional

28

discovery and supplemental briefing are completed.

Defendants GLP and Netmedia – a Michigan corporation and Canadian

1

I.

Background.

2

Porn.com is a video streaming website that generates revenue through its content

3

partnership program and advertising banners. Doc. 16, ¶¶ 56–57. AMA asserts that

4

Defendants Sagan, Cyberweb, Netmedia, and David Koonar are each owners and/or

5

operators of Porn.com and GLP. Id., ¶¶ 46-47. AMA also alleges that GLP is doing

6

business as Traffic Force, an advertising and publishing network that provides end-user

7

traffic to websites for profit. Doc. 16, ¶ 47. Defendants respond that Cyberweb is the

8

owner/operator of Porn.com. Doc. 27-3 at 3, ¶15.

9

In September 2012, AMA joined Porn.com’s Content Partnership Program by

10

entering into a content partner revenue sharing agreement (“CPRA”) with GIM Corp.

11

(“GIM”). Doc. 33 at 6; Doc. 27-3 at 17. AMA agreed to the CPRA by completing an

12

automated process at Paidperview.com. Doc. 33 at 6. There was no direct contact

13

between AMA and any of the Defendants. Id. The CPRA granted GIM a license to use

14

content provided by AMA on websites whose advertisements are controlled by Traffic

15

Force. Id. The CPRA dictated the manner and form in which AMA would provide

16

content, and AMA granted GIM a license only for content provided under the CPRA. Id.

17

In November 2015, AMA became aware that Porn.com had displayed 64 of

18

AMA’s copyright registered works over 110 separate Porn.com affiliated URLs. Doc. 16

19

at ¶ 78. In December 2015, AMA provided Defendants’ counsel with a draft complaint

20

and settlement offer regarding the alleged infringement. Doc. 33 at 2. According to

21

AMA, over the next four months “Defendants provided a string of delays and

22

misrepresentations about the matters and settlement negotiations.” Id. In April 2016,

23

AMA presented Defendants with an amended complaint and a “deadline to choose

24

between accepting a settlement offer or hav[ing] the case filed in U.S. District Court, for

25

the District of Arizona.” Id. at 3. Defendants requested an extension until April 28, 2016

26

to consider the settlement offer, and AMA agreed. Id.

27

On April 27, 2016, Cyberweb, Netmedia, Sagan, GLP, GIM, and David Koonar

28

(collectively, “Porn.com Entities”) filed a complaint against AMA and Adam Silverman

-2-

1

in the Supreme Court of Barbados. Doc. 27-3 at 17-23. The Porn.com Entities sought

2

(1) injunctive relief to restrain anticipatory breach of the CPRA, (2) a declaration that any

3

disputes related to the CPRA are governed by Barbados law and must be adjudicated in

4

Barbados, (3) a declaration that the Porn.com Entities are entitled to rely on their rights

5

under the CPRA, (4) a declaration that the Porn.com Entities are entitled to publicize and

6

distribute materials provided to them by AMA and Silverman, and (5) relief for prior

7

breaches of the CPRA, including damages. Id. at 17-18.

8

AMA filed this action the next day, April 28, 2016. Defendants Netmedia and

9

GLP now move to dismiss the claims against them for lack of personal jurisdiction, or, in

10

the alternative, to stay these proceedings pending completion of the Barbados action.

11

Docs. 27, 44, 45.

12

II.

Personal Jurisdiction.

13

A.

14

“When a defendant moves to dismiss for lack of personal jurisdiction, the plaintiff

15

bears the burden of demonstrating that the court has jurisdiction over the defendant.”

16

Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1154 (9th Cir. 2006). “Where, as here, the

17

defendant’s motion is based on written materials rather than an evidentiary hearing, the

18

plaintiff need only make a prima facie showing of jurisdictional facts to withstand the

19

motion to dismiss.” Mavrix Photo, Inc. v. Brand Techs., Inc., 647 F.3d 1218, 1223 (9th

20

Cir. 2011). “The plaintiff cannot ‘simply rest on the bare allegations of its complaint,’

21

but uncontroverted allegations in the complaint must be taken as true.” Id. (quoting

22

Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004). The

23

Court may not assume the truth of allegations in a pleading that are contradicted by an

24

affidavit, but factual disputes are resolved in Plaintiff’s favor. Id.

Legal Standard.

25

B.

26

AMA argues that Netmedia is subject to personal jurisdiction under Federal Rule

27

of Civil Procedure 4(k)(2). Doc. 38 at 7–8. Rule 4(k)(2) provides that “serving a

28

summons or filing a waiver of service establishes personal jurisdiction over a defendant”

Personal Jurisdiction over Netmedia.

-3-

1

if (1) the claim arises under federal law, (2) “the defendant is not subject to jurisdiction in

2

any state’s courts of general jurisdiction,” and (3) exercising jurisdiction is consistent

3

with the United States Constitution. Fed. R. Civ. P. 4(k)(2).

4

The first factor is satisfied because AMA asserts claims of copyright infringement

5

under federal law. The second factor is satisfied if the defendant “does not concede to

6

jurisdiction in another state.” Holland Am. Line Inc. v. Wartsila N. Am., Inc., 485 F.3d

7

450, 461 (9th Cir. 2007) (citation omitted). Netmedia does not concede that jurisdiction

8

would be proper in any state.

9

Analysis under the third factor – the due process analysis – “is nearly identical to

10

traditional personal jurisdiction analysis with one significant difference: rather than

11

considering contacts between the [defendant] and the forum state, we consider contacts

12

with the nation as a whole.” Id. at 462. The question, then, is whether Netmedia has

13

sufficient minimum contacts with the United States so that maintenance of the suit here

14

does not offend traditional notions of fair play and substantial justice. Int’l Shoe Co. v.

15

Washington, 326 U.S. 310, 316 (1945). AMA does not allege that Netmedia’s own

16

contacts with the United States satisfy this requirement.

17

Porn.com’s contacts with the United States can be imputed to Netmedia because of

18

Netmedia is an alter ego or agent of Porn.com, and Porn.com’s contacts with the United

19

States are sufficient to satisfy due process. Doc. 38 at 12.

AMA instead argues that

20

The Court can dispose of the agency argument easily. The Ninth Circuit once

21

recognized an agency theory for personal jurisdiction, Doe v. Unocal Corp., 248 F.3d

22

915, 928 (9th Cir. 2001), but the Supreme Court rejected this theory, noting that it would

23

“subject foreign corporations to general jurisdiction whenever they have an instate

24

subsidiary or affiliate.” Daimler AG v. Bauman, 134 S. Ct. 746, 760 (2014). The Court

25

therefore will focus only on AMA’s alter ego argument.

26

1.

Alter Ego Choice of Law.

27

The parties do not address what law should govern the alter ego analysis. The

28

parties primarily cite two cases from the Ninth Circuit, Doe v. Unocal Corp., 248 F.3d

-4-

1

915 (9th Cir. 2001), and Ranza v. Nike, 793 F.3d 1059 (9th Cir. 2015). Unocal looked

2

mostly to California law, but also cited federal court decisions from New York, Illinois,

3

Delaware, and Florida. See Unocal, 248 F.3d at 926-27. Ranza applies the alter ego

4

standard set forth in Unocal. See Ranza, 793 F.3d at 1071, 73-74. In the absence of any

5

assertion that the law of some other state should apply, the Court will also look to Unocal

6

and Ranza.

7
8
9
10
11
12
13
14
15
16
17
18

2.

Alter Ego Analysis

In Ranza, the Ninth Circuit provided this explanation of the alter ego test, relying
primarily on Unocal:
To satisfy the alter ego test, a plaintiff must make out a prima facie
case (1) that there is such unity of interest and ownership that the separate
personalities of the two entities no longer exist and (2) that failure to
disregard their separate identities would result in fraud or injustice. The
“unity of interest and ownership” prong of this test requires a showing that
the parent controls the subsidiary to such a degree as to render the latter the
mere instrumentality of the former. This test envisions pervasive control
over the subsidiary, such as when a parent corporation dictates every facet
of the subsidiary’s business—from broad policy decisions to routine
matters of day-to-day operation. Total ownership and shared management
personnel are alone insufficient to establish the requisite level of control.
793 F.3d at 1073 (quotation marks, brackets, and citations omitted).

19

AMA asserts that “Defendants have created multiple ‘companies’ which operate

20

crucial and necessary aspects of Porn.com[,]” and that “[t]his has become nothing more

21

than a ‘shell game.’” Doc. 38 at 2. “NetMedia IS Porn.com and Traffic Force.” Id.

22

(emphasis in original). In support of its argument, AMA presents the following facts.

23

Netmedia identifies itself as an operator of Porn.com, providing services related to

24

the uploading of content pursuant to a “technical services agreement with Cyberweb

25

Ltd.” Doc. 38 at 4; Doc. 32-4, 11, 13. Netmedia shares a physical address and telephone

26

number with Cyberweb, GIM, and the management of Traffic Force/GLP, but the placard

27

on the building lists only Netmedia. Doc. 38 at 3. Under the CPRA between AMA and

28

GIM regarding the posting of content on Porn.com, AMA is instructed to mail checks to

-5-

1

Cyberweb at Netmedia’s address. Doc. 32-2 at ¶ 24. Defendant Cyberweb is the stated

2

owner of Porn.com, and GIM is a part owner of Cyberweb. Doc. 16, ¶¶ 4-5; Doc. 38 at

3

2. GIM operates the content partnership program for Porn.com, which requires joining

4

partners to sign the CPRA, and from which Porn.com generates its revenue. Id. The

5

CPRA limits its scope to websites “who[se] advertisements are controlled by Traffic

6

Force.” Doc. 27-3 at 25. The Traffic Force terms of service identify GLP as Traffic

7

Force. Doc. 38 at 5; Doc. 32-2 at 16. Traffic Force places banner ads for clients on

8

Porn.com. Doc. 34-1, ¶ 21. Netmedia’s employees are Traffic Force’s personnel for

9

operations. Doc. 32-5 at 5, ¶ 22; Doc. 32-2 at 5, ¶¶ 26-27. Phil Bradbury holds all

10

official positions at GLP/Traffic Force and is also a Vice President of Netmedia.

11

Silverman decl. 28. Defendant David Koonar is the President of GIM (Doc. 49-2, ¶ 8), a

12

former Director of both Cyberweb (Doc. 32-4 at 2) and GLP (Doc. 27-3 at 7), and a

13

Director of Netmedia (Doc. 27-3 at 14).

14

This evidence suggests a complicated inter-linking of these entities, but it does not

15

show “such unity of interest and ownership [between Netmedia and Porn.com] that the

16

separate personalities of the two entities no longer exist.” Ranza, 793 F.3d at 1073.

17

Discussing the holding in Unocal, the Ninth Circuit noted that even a company’s

18

“(1) involvement in its subsidiaries’ acquisitions, divestments and capital expenditures;

19

(2) formulation of general business policies and strategies applicable to its subsidiaries,

20

including specialization in particular areas of commerce; (3) provision of loans and other

21

types of financing to subsidiaries; and (4) maintenance of overlapping directors and

22

officers with its subsidiaries,” is “insufficient” to deem the two entities alter egos. Id. at

23

1073-74. Here, AMA provides no evidence that Netmedia and Porn.com comingle funds,

24

enter into contracts on behalf of one another, assume liability for one another’s debts, fail

25

to keep separate corporate records, or are inadequately capitalized – factors often

26

addressed in alter ego analysis. Id. at 1074. AMA does identify some common officers

27

and directors, but such overlap is not sufficient to establish an alter ego relationship.

28

United States v. Bestfoods, 524 U.S. 51, 69 (1998) (“It is entirely appropriate for directors

-6-

1

of a parent corporation to serve as directors of its subsidiary, and that fact alone may not

2

serve to expose the parent to liability for its subsidiary’s acts.”).

3

What is more, AMA entirely disregards the second element of the alter ego test

4

recognized in Ranza and Unocal: “that failure to disregard their separate identities would

5

result in fraud or injustice.” Ranza, 793 F.3d at 1073. AMA does not address this

6

requirement in its briefing.

7

So far, AMA has failed to show that Netmedia is an alter ego of Porn.com. The

8

Court will permit to AMA to conduct limited discovery on this issue as described at the

9

end of this order, but in the absence of more compelling evidence, Porn.com’s contacts

10

with the United States will not be imputed to Netmedia for purposes of personal

11

jurisdiction.

12

C.

13

AMA argues that the Court may exercise specific personal jurisdiction over GLP.

14

Doc. 38 at 7. Specific jurisdiction exists where (1) the defendant purposefully directed

15

his activities at the forum or purposefully availed himself of the privilege of conducting

16

activities in the forum, (2) the claim arises out of or relates to the defendant’s forum-

17

related conduct, and (3) the exercise of jurisdiction would be reasonable.

18

Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 2004).

Jurisdiction over GLP.

19

AMA asserts the following facts. GLP does business as Traffic Force. Docs. 38-1

20

at 16; see also id. 38-2 at 2. Traffic Force places banner ads for clients on video

21

streaming websites, including Porn.com. Id. at 4, ¶ 2. Traffic Force sends employees to

22

the Phoenix Forum – an annual industry tradeshow held in Arizona – to solicit business,

23

including from Arizona-based companies. Doc. 38-4 at 65, ¶¶ 30-34. In 2015, Traffic

24

Force entered a contract with an Arizona company – Oppenheit, LLC – to display

25

advertisements on sooshtime.com, a pornographic website. Doc. 38-5 at 2-3.

26

Even if these contacts showed that GLP purposefully availed itself of the privilege

27

of conducting activities in Arizona (an issue the Court need not decide), AMA has not

28

shown that its claims against GLP arise out of these contacts. AMA makes no effort to

-7-

1

explain how Traffic Force’s participation in the Phoenix Forum relates to the copyright

2

claims in this case. See Doc. 38 at 18-19. AMA does assert that the shooshtime.com ads

3

“are the subject of [its] copyright claims,” (id.), but this allegation does not appear in the

4

complaint, and AMA does not explain the connection between Porn.com’s allegedly

5

illegal display of AMA’s content and ads that appear on a different pornographic website.

6

AMA has not shown that this case arises out of GLP’s contacts with Arizona.

7

D.

8

The court may order jurisdictional discovery where “pertinent facts bearing on the

9

question of jurisdiction are controverted or where a more satisfactory showing of the

10

facts is necessary.” Data Disc, Inc. v. Sys. Tech. Assocs., Inc., 557 F.2d 1280, 1285 n.1

11

(9th Cir. 1977). The Court will grant limited jurisdictional discovery as set forth below.

12

Because the Court will allow this discovery, it will not enter a final ruling on the motions

13

to dismiss until the discovery and supplemental briefing are completed.

14

III.

AMA’s request to conduct Jurisdictional Discovery

Forum Selection Clause.

15

In the ordinary case, a federal court will enforce a valid forum selection clause by

16

dismissing an action filed in a forum other than the one specified in the clause. Atl.

17

Marine Constr. Co. v. U.S. Dist. Court, 134 S. Ct. 568, 581 (2013). Defendants argue

18

that the Court should dismiss this action because the CPRA contains a forum selection

19

clause which provides that “[a]ny legal action arising out of or relating to this Agreement

20

must be instituted in a court located in Barbados.” Doc. 27-3 at 30, § 10.5.

21

A claim is subject to a forum selection clause if the claim “relates in some way to

22

rights and duties enumerated in” a related contract. Manetti-Farrow, Inc. v. Gucci Am.,

23

Inc., 858 F.2d 509, 514 (9th Cir. 1988). For example, a forum selection clause will be

24

enforced if the defendant asserts a contract-based defense to a claim.

25

analogous area of patent infringement, however, federal courts have recognized that

26

infringement actions should not be dismissed or transferred merely on the basis of an

27

allegation that a contract with a forum selection clause contains a license for the patent’s

28

use. “[I]f all that is required is a license and a bare allegation that it provides a defense,

-8-

Id.

In the

1

then virtually every subsequent dispute between contracting parties would trigger such a

2

forum selection clause.” Gen. Protecht Grp., Inc. v. Leviton Mfg. Co., 651 F.3d 1355,

3

1359 (Fed. Cir. 2011). To avoid this risk, courts require that the party seeking to enforce

4

the forum selection clause raise “a non-frivolous dispute regarding the scope of a patent

5

license.” Id.

6

Defendants have failed to present a non-frivolous argument that the CPRA

7

licenses the conduct complained of in this case. The agreement refers to AMA as

8

“Licensor” and the Porn.com Entities as “Licensee.” Section 1.1 then provides:

9
10
11
12
13

Subject to the terms and conditions set forth in this Agreement, with respect
to any and all Content that Licensor submits or provides to Licensee,
Licensor grants Licensee a non-exclusive, nontransferable worldwide
license during the Term to use, publish, display, and distribute the Content
on the Websites(s).
Doc. 27-3 at 25, § 1.1 (emphasis added).1

14

The license granted by this section is expressly limited to content that AMA

15

“submits or provides” to the Porn.com Entities. Section 1.1 then makes clear that “[n]o

16

license to any other intellectual property of Licensor . . . is provided hereby.” Id. A later

17

provision states that “[a]ll rights in and to the Content not expressly licensed to Licensee

18

under Section 1.1 are reserved to Licensor.” Id., § 1.3.

19

Section 4 of the CPRA is titled “Provision of Content.” Doc. 27-3 at 27. It makes

20

clear that AMA is to provide material to the Porn.com Entities for their subsequent

21

distribution.

22

provide all the materials”); 4.3 (“Licensor reserves the right not to provide Licensee with

23

any item of Content”); 4.6 (“Licensor shall have sole responsibility for providing, at its

24

own expense, the Content to Licensee”). Exhibit B to the CPRA is titled “Acceptable

25

Methods of Delivery,” and states that “Licensor shall have the sole responsibility for

26

providing, at its own expense, the Content.” Doc. 27-3 at 31. It then provides four

See, e.g., § 4.1 (“Licensor shall provide the content,” “Licensor shall

27
1

28

“Content” is defined as follows: “Licensor [AMA] is and attests that he is the
author, license holder, and/or aggregator of certain sexually explicit content (the
“Content”).” Doc. 27-3 at 25, § A.
-9-

1

methods by which AMA may deliver the content to the Porn.com Entities – file transfer,

2

delivery of physical copies, delivery on a hard drive, or by uploading material to the

3

Porn.com Entities’ PaidPerView account. Id. Each method involves an affirmative

4

action by AMA to provide the content.

5

AMA does not assert claims in this case related to content it provided to the

6

Porn.com Entities under the CPRA.

7

Porn.com Entities published AMA content that they took from other locations on the

8

Internet without AMA’s knowledge or consent. Id., ¶¶ 78, 82. The Porn.com Entities do

9

not argue that AMA knew of or consented to the publication of this content. Nor do they

10

present any evidence that they acted in accordance with the CPRA in handling this

11

content by, for example, paying royalties to AMA. Thus, AMA’s copyright infringement

12

claims are wholly unrelated to content provided under the CPRA, and the contract’s

13

forum selection clause is inapplicable.

Doc 16, ¶ 63.

AMA instead alleges that the

14

The Porn.com Entities argue that they had the “express right” under the CPRA to

15

download AMA’s content from other locations on the Internet, but the CPRA says

16

nothing of the kind. True, it grants the Porn.com Entities a broad license to distribute the

17

content provided by AMA under the CPRA, but nowhere does it suggest that the

18

Porn.com Entities can acquire that content for themselves from other sources on the

19

Internet. The only provision Defendants cite to support this assertion is found in a

20

section of the contract titled “Compensation,” and reads as follows:

21

24

In the event that the Content originates and/or is associated with an existing
website associated with Licensor, Licensee may amongst its various
methodologies, direct traffic to any such website and Licensee shall be
compensated for any revenues generated as a result of Licensee directing
such traffic.

25

Doc. 27-1 at 27, § 3.9. This provision states that the Porn.com Entities will receive

26

compensation if they direct Internet users to AMA’s websites. It says nothing about how

27

the content for which AMA is to be paid may be procured by the Porn.com Entities.

22
23

28

In sum, Defendants have failed to present a non-frivolous argument that the CPRA

- 10 -

1

bars AMA’s copyright infringements claims. Gen. Protecht Grp., 651 F.3d at 1359.

2

Those claims relate to materials acquired and published by Defendants outside the terms

3

of the CPRA and are not subject to its license provisions. Because the claims do not arise

4

out of or relate to the CPRA, they are not subject to its forum selection clause.

5

IV.

Abstention.

6

Defendants ask the Court to stay this case pending resolution of the Barbados

7

action, pursuant to Colorado River Water Conservation District v. United States, 424

8

U.S. 800 (1976). The Court declines to do so.

9

Federal courts have a “virtually unflagging obligation . . . to exercise the

10

jurisdiction given them.” Id. at 817. In “exceptional circumstances,” however, federal

11

courts may abstain from deciding a case over which they have jurisdiction. Id. Where a

12

state or foreign proceeding runs parallel to the federal case, for example, “considerations

13

of wise judicial administration” may favor abstention. Id.; see AAR Int’l, Inc. v. Nimelias

14

Enterprises S.A., 250 F.3d 510, 518 (7th Cir. 2001) (Colorado River framework applies

15

where court is asked to abstain based on parallel foreign proceedings). The threshold

16

question is whether “the two proceedings are substantially similar.” Nakash v. Marciano,

17

882 F.2d 1411, 1416 (9th Cir. 1989). If not – because “a substantial doubt” exists “as to

18

whether the [foreign] proceedings will resolve the federal action” – abstention is

19

improper. Intel Corp. v. Advanced Micro Devices, Inc., 12 F.3d 908, 913 (9th Cir. 1993).

20

AMA argues that the Barbados action is not substantially similar to this action.

21

Doc. 33 at 8-13. The Court agrees. The only issue in the Barbados action is whether

22

AMA breached the CPRA. See Doc. 27-3 at 17-18. As explained above, the CPRA is

23

not implicated by this case. The issue here is whether the Porn.com Entities infringed

24

AMA’s copyrights by publishing AMA content obtained without AMA’s knowledge or

25

consent. Complaint, ¶¶ 78, 82. The CPRA does not apply to such content.

26

The Porn.com Entities argue that they were authorized to distribute pirated AMA

27

content pursuant to the CPRA. Doc. 27-1 at 18-19. As explained, that argument is

28

frivolous. Because it is exceedingly unlikely that the Barbados Supreme Court would

- 11 -

1

adopt the Porn.com Entities’ argument, there is a “substantial doubt as to whether the

2

[foreign] proceedings will resolve the federal action” and abstention is inappropriate.

3

Intel Corp., 12 F.3d at 913.2 In addition, GLP is no longer involved in the Barbados

4

action. Doc. 27-1 at 18 n. 3; Doc. 34-4 at 14. The action therefore will not resolve

5

AMA’s claims with respect to GLP.

6

The Porn.com Entities argue, in the alternative, that the Court should stay the

7

matter under Leyva v. Certified Grocers of California, Ltd., 593 F.2d 857 (9th Cir. 1979).

8

Under Leyva, “[a] trial court may, with propriety, find it is efficient for its own docket

9

and the fairest course for the parties to enter a stay of an action before it, pending

10

resolution of independent proceedings which bear upon the case.” Id. at 863. Because

11

the Barbados action is unlikely to have any bearing on this case, it would neither be fair

12

nor efficient to stay this action pending resolution of that case.

13

IT IS ORDERED:

14

1.

A final ruling on the motion to dismiss (Doc. 27) regarding Netmedia and

15

GLP will be issued after the Court receives the supplemental briefing

16

discussed below.

17

2.

18
19

The motion to stay proceedings pending the outcome of the Barbados
action (Doc. 27) is denied.

3.

AMA will have until December 2, 2016 to complete limited jurisdictional

20

discovery.

21

requests and 10 interrogatories served on each Defendant. AMA may also

22

conduct one Rule 30(b)(6) deposition of no more than 7 hours, and three

23

other fact depositions of no more than 5 hours each. This discovery should

The discovery may include up to 5 document production

24
2

25
26
27
28

The Porn.com Entities cite two cases where district courts stayed copyright
infringement cases pending resolution of a foreign case construing a related licensing
agreement. These cases are distinguishable because each involved a plausible contract
defense to the charge of copyright infringement. See Seven Arts Pictures PLC v.
Fireworks Entm’t, Inc., 244 F. App’x 836, 837 (9th Cir. 2007) (“Seven Arts
acknowledges that it possesses the copyrights in question only if [its contracts with the
defendant] are unenforceable.”); CRC Info. Sys., Inc. v. Quebecor World (USA), Inc.,
No. 03-cv-0591, Doc. 33 at 10-12 (D. Ariz., July 21, 2003) (contract provided defendant
with license to use the very software at issue in plaintiff’s copyright claim).
- 12 -

1

cover issues raised in all of the pending motions to dismiss (and any

2

potential motion by Cyberweb Ltd.), not just those raised in the motion

3

addressed in this order.

4

supplemental memorandum that applies to all Defendants and does not

5

exceed 17 pages. Defendants may collectively file a joint response, not to

6

exceed 17 pages, by December 21, 2016. No reply memorandum will be

7

permitted unless ordered by the Court.

8

4.

By December 9, 2016, AMA shall file a

The parties should complete briefing of the pending motions to dismiss on

9

the schedule provided by the relevant rules. If Defendant Cyberweb is

10

going to file a motion to dismiss, that motion shall be filed by

11

October 12, 2016. In light of the jurisdictional discovery that is being

12

allowed, the Court recognizes that the schedule set forth in the Case

13

Management Order (Doc. 58) may need to be adjusted once it rules on the

14

motions to dismiss. If the parties find that the schedule requires adjustment

15

after the Court rules, they should place a joint conference call to the Court

16

promptly.

17

Dated this 5th day of October, 2016.

18
19
20
21
22
23
24
25
26
27
28

- 13 -