Brayton Purcell LLP v. Recordon & Recordon

dissenting:

As the majority recognizes, venue in this case was proper only if Recordon & Recordon “expressly aimed” its conduct at the Northern District of California. The majority here finds express aiming based entirely on (1) the foreseeable harm suffered by Brayton Purcell as a result of Recordon & Recordon’s passive website, and (2) Re-cordon & Recordoris knowledge of Bray-ton Purcell’s residence in the Northern District. In doing so, the majority disregards binding circuit authority, which establishes that “something more” than the “foreseeable effect” of an intentional tort committed against a party known to be a resident of the forum is required to establish venue. Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1158 (9th Cir.2006) (internal quotation omitted). Through its website, Recordon & Recordon sought customers only in the Southern District of California, Maj. Op. at 986-87, and its only link to the Northern District was its knowledge of Brayton Purcell’s residence. Because Re-cordon & Recordon’s website was targeted exclusively at San Diego County, id., its conduct was clearly not “expressly aimed” at the Northern District. Pebble Beach, 453 F.3d at 1158 . Accordingly,…

Recordon & Recordon (“Recordon”) appeals the district court’s denial of its motion to dismiss for improper venue. 1 *984 In copyright infringement actions, venue is proper “in the district in which the defendant ... resides or may be found.” 28 U.S.C. § 1400 (a). This circuit interprets this provision to allow venue in any judicial district where, if treated as a separate state, the defendant would be subject to personal jurisdiction. See Columbia Pictures Television v. Krypton Broad, of Birmingham, Inc., 106 F.3d 284 , 289 (9th Cir.1997), rev’d on other grounds, Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340 , 118 S.Ct. 1279 , 140 L.Ed.2d 438 (1998). Because Recordon would be subject to personal jurisdiction in the Northern District of California if it were treated as a separate state, we hold that venue was proper and affirm the decision of the district court.

1. Factual and Procedural Background

Appellant Recordon is a San Diego-based law firm composed of two attorneys, Kathy R. Recordon and Stephen G. Recordon. Recordon’s practice is limited to Southern California; it does not have, nor in the past did it ever have, any clients in the Northern District of…

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant Recordon & Recordon (“Recordon”) is a San Diego-based law firm composed of two attorneys, Kathy R. Recordon and Stephen G. Recordon. Recordon’s practice is limited to Southern California; it does not have, nor in the past did it ever have, any clients in the Northern District of California (“the Forum”). Recordon does not conduct any business, own any real or personal property, or maintain a mailing address or telephone listing in the Forum.

Appellee Brayton Purcell LLP (“Brayton Purcell”) is a law firm based in Novato, California, located within the Forum. Brayton Purcell markets itself as a leader in elder abuse law, with a practice extending throughout California. It maintains 1 Recordon waived its claim for transfer of venue. See FED. R. APP. P. 28(a)(9); Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996). 10394 BRAYTON PURCELL v. RECORDON & RECORDON an extensive website providing information on its elder abuse practice, which it copyrighted effective October 7, 2002.

In July 2004, Recordon contracted with Apptomix, Inc., a web-design company with its principal place of business in San Diego County, to add…