NOT FOR PUBLICATION FILED

APR 29 2019

UNITED STATES COURT OF APPEALS

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNIVERSAL MUSIC MGB NA LLC, a No. 17-56925 California limited liability company; and CASA RICORDI S.R.L., an Italian limited D.C. No. liability company, 2:16-CV-03397-FMO-AJW

Plaintiffs-Appellants,

MEMORANDUM*

v.

QUANTUM MUSIC WORKS, INC., an entity of unknown form, DOES, 1-10, inclusive,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Fernando M. Olguin, District Judge, Presiding

Submitted April 8, 2019** Pasadena, California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes that this case is suitable for decision without oral argument. Fed. R. App. P. 34(a)(2). Before: GRABER and BYBEE, Circuit Judges, and ARTERTON,*** District Judge.

Plaintiffs Universal Music MBG LLC (“Universal”) and Casa Ricordi

S.R.L. (“Casa Ricordi”) timely appeal the district court’s dismissal for lack of

personal jurisdiction over their action for copyright infringement against Defendant

Quantum Music Works (“Quantum”). Reviewing de novo that dismissal, Mavrix

Photo, Inc. v. Brand Techs., Inc., 647 F.3d 1218, 1223 (9th Cir. 2011), we reverse.

Federal Rule of Civil Procedure 4(k)(2) (“Rule 4(k)(2)”) authorizes a district

court’s exercise of personal jurisdiction over a defendant where: i) the plaintiff’s

claim arises from federal law; ii) the defendant is not subject to the personal

jurisdiction of any state court of general jurisdiction; and iii) the district court’s

exercise of personal jurisdiction comports with due process. Pebble Beach Co. v.

Caddy, 453 F.3d 1151, 1159 (9th Cir. 2006). The due process analysis mirrors that

of personal jurisdiction under Rule 4(k)(1), which requires that:

(1) The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof . . . ; (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.

*** The Honorable Janet Bond Arterton, United States District Judge for the District of Connecticut, sitting by designation.

2 17-56925 Mavrix, 647 F.3d at 1227–28. The difference is simply that under Rule 4(k)(2),

instead of considering the defendant’s contacts with the forum state, the court

should consider the defendant’s “aggregate contacts . . . with the United States as a

whole.” Pebble Beach Co., 453 F.3d at 1158.

Plaintiffs claim violation of federal copyright law, 17 U.S.C. § 101 et seq.,

so their claim arises under federal law. A defendant “who wants to preclude use of

Rule 4(k)(2) has only to name some other state in which the suit could proceed. . . .

If, however, the defendant . . . refuses to identify any other [state] where suit is

possible, then the federal court is entitled to use Rule 4(k)(2).” Holland Am. Line

Inc. v. Wartsila N. Am., Inc., 485 F.3d 450, 461 (9th Cir. 2007) (quoting ISI Int’l,

Inc. v. Borden Ladner Gervais LLP, 256 F.3d 548, 552 (7th Cir. 2001)). Because

Quantum has not identified any other state where it may be sued, the sole question

becomes whether exercise of jurisdiction over Quantum under Rule 4(k)(2)

comports with due process. See Pebble Beach Co., 453 F.3d at 1159.

First, the “purposeful direction” prong of the due process analysis is satisfied

here because Quantum “(1) committed an intentional act, (2) expressly aimed at

the [United States], (3) causing harm that [Quantum] knows is likely to be suffered

in the forum state.” Axiom Foods, Inc. v. Acerchem Int’l, Inc., 874 F.3d 1064,

1069 (9th Cir. 2017) (internal quotation marks omitted). The first and third

requirements are met. Quantum committed an intentional act by granting a license

3 17-56925 for Nessun Dorma to NBCUniversal, Schwarzenegger v. Fred Martin Motor Co.,

374 F.3d 797, 806 (9th Cir. 2004); and Quantum knew that harm was likely to be

suffered in the United States because it purported to license the use of a work

whose copyright was registered to Universal, a California company, Wash. Shoe

Co. v. A-Z Sporting Goods Inc., 704 F.3d 668, 679 (9th Cir. 2012), overruled in

other part as recognized by Axiom Foods, 874 F.3d at 1070.

The second requirement is also met because Quantum’s acts were expressly

aimed at the United States as a whole. Quantum licensed Nessun Dorma to

NBCUniversal, a company based in the United States. That license was for an

advertising campaign which ran throughout the United States. And Quantum ran

an English-language website which “allow[ed] [and] promote[d] the transaction of

business within” the United States, Sinatra v. Nat’l Enquirer, Inc., 854 F.2d 1191,

1195 (9th Cir. 1988), and encouraged users to “enter[] into contracts . . . that

involve the knowing and repeated transmission of computer files over the

Internet,” Mavrix, 647 F.3d at 1226 (internal quotation marks omitted). Under this

court’s purposeful direction test, which is “not rigid and formalistic, but rather

practical and pragmatic,” Boschetto v. Hansing, 539 F.3d 1011, 1016 (9th Cir.

2008), Quantum purposefully directed its activities at the United States as a whole.

Second, Plaintiff’s claim arises from Quantum’s activities related to the

United States. Quantum’s selling of a license to NBCUniversal through its website

4 17-56925 for use in a U.S.-based advertising campaign plainly underlies Plaintiff’s copyright

infringement claim.

Third, the district court’s exercise of personal jurisdiction over Quantum in

this action does not offend traditional notions of fair play and substantial justice.

At this stage, the burden is on Defendant to present a “compelling case” that such

exercise of jurisdiction would be unreasonable and unjust. Mavrix, 647 F.3d at

1228. Because Quantum has made no such argument, it has not met its burden and

no compelling case has been demonstrated against the exercise of jurisdiction.

The district court has jurisdiction over Quantum under Rule 4(k)(2).

REVERSED AND REMANDED.

5 17-56925