NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 24 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

AMA MULTIMEDIA, LLC, a Nevada No. 18-17117 limited liability company, D.C. No. 2:16-cv-01269-DGC Plaintiff-Appellant,

v. MEMORANDUM*

SAGAN LIMITED, a Republic of Seychelles company, individually and DBA Porn.com; CYBERWEB LTD., formerly MXN LTD., a Barbados company, individually and DBA Porn.com; NETMEDIA SERVICES, INC., a Canadian company, individually and DBA Porn.com; GLP 5, INC., a Michigan company, individually and DBA Trafficforce.com, and DAVID KOONAR, an individual,

Defendants-Appellees.

Appeal from the United States District Court for the District of Arizona David G. Campbell, District Judge, Presiding

Argued and Submitted March 06, 2020 Phoenix, Arizona

Before: CLIFTON, OWENS and BENNETT, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1 Plaintiff-Appellant AMA Multimedia, LLC appeals the district court’s order

granting Defendants-Appellees’ motion to dismiss based on forum non conveniens.

We have jurisdiction under 28 U.S.C. § 1291 and review “[t]he district court’s

decision to enforce a forum selection clause . . . for abuse of discretion.” Murphy v.

Schneider Nat’l, Inc., 362 F.3d 1133, 1137 (9th Cir. 2004). We reverse.

The district court abused its discretion in concluding Defendants were

“transaction participants” and could benefit from the forum selection clause. We

must affirm a “district court determination that falls within a broad range of

permissible conclusions, provided the district court did not apply the law

erroneously.” Kode v. Carlson, 596 F.3d 608, 612 (9th Cir. 2010). Here, the district

court incorrectly applied the law.

The district court correctly identified the legal rule: Defendants, as non-

parties, could enforce the forum selection clause if their alleged conduct was

“closely related to the contractual relationship” between AMA and GIM

Corporation. Mannetti-Farrow, Inc. v. Gucci Am., Inc., 858 F.2d 509, 514 n.5 (9th

Cir. 1988). But the district court did not apply this rule. It focused solely on the

relationship between Defendants and the Content Partner Revenue Sharing

Agreement (“CPRA”), instead of focusing on Defendants’ conduct: (1)

“Defendants have standing to enforce the CPRA’s forum selection clause because

they are closely related to the contractual relationship between AMA and GIM”;

2 (2) “The evidence in this case, even when construed in AMA’s favor, shows that

Defendants are so closely related to the contractual relationship . . .”; (3) “In short,

there can be no doubt that Defendants are all closely related to the contractual

relationship . . .”; and (4) “In summary, the Court finds that Defendants have

standing to enforce the CPRA’s forum selection clause. They are closely related to

the contractual relationship between AMA and GIM . . . .”

The district court should have analyzed whether Defendants’ alleged

conduct was “closely related” to the CPRA—the contractual relationship between

AMA and GIM. Only then could Defendants have standing to enforce the forum

selection clause under Mannetti-Farrow. See 858 F.2d at 514 n.5; see also Holland

Am. Line Inc. v. Wartsila N. Am., Inc., 485 F.3d 450, 456 (9th Cir. 2007). Because

the district court did not do so, it incorrectly applied the law and abused its

discretion.1 See Kode, 596 F.3d at 612.

We do not reach Defendants’ alternative grounds for enforcing the forum

selection clause, including those based on an implied license, agency relationships,

or third-party beneficiary status. Defendants may pursue those theories, as well as

their “transaction participants” theory, on remand.

1 We leave it to the district court to consider in the first instance, on remand, whether Defendants are in fact “transaction participants” under Mannetti-Farrow. The district court may conduct an evidentiary hearing to resolve disputed facts. See Murphy, 362 F.3d at 1139-40. 3 Plaintiff in turn may challenge on remand whether the CPRA’s forum

selection clause applies to AMA’s copyright claims and is otherwise valid and

enforceable.2

REVERSED and REMANDED.

2 Contrary to the district court’s conclusion, this finding was not left undisturbed on appeal. This court simply never reached the issue. 4