NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUL 3 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOCELYN SUSAN BUNDY, an individual, No. 21-56305

Plaintiff-Appellant, D.C. No. 2:21−cv−03621−DSF−MAA v.

NIRVANA LLC, a Washington Limited MEMORANDUM* Liability Company; LIVE NATION MERCHANDISE, LLC, a Delaware Limited Liability Company; MERCH TRAFFIC LLC, a Delaware Limited Liability Company; SILVA ARTIST MANAGEMENT, LLC, a California Limited Liability Company,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Dale Fischer, District Judge, Presiding

Argued and Submitted April 20, 2023 Pasadena, California

Before: WARDLAW and KOH, Circuit Judges, and McMAHON,** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Colleen McMahon, United States District Judge for the Southern District of New York, sitting by designation. Jocelyn Susan Bundy brought this copyright infringement action against

Nirvana LLC, Live National Merchandise LLC, Merch Traffic LLC, and Silva

Artist Management LLC (collectively, Defendants) for unlicensed use of her

grandfather C.W. Scott-Giles’s drawing of “Upper Hell” from Dante Alighieri’s

The Divine Comedy (the “Illustration”). Bundy appeals the district court’s

dismissal of her case for forum non conveniens, contending that the United

Kingdom is an inadequate forum and that the remaining forum non conveniens

factors favor suit in the United States.

We have jurisdiction under 28 U.S.C. § 1291. We review for abuse of

discretion the district court’s dismissal based on forum non conveniens, see Lewis

v. Liberty Mut. Ins. Co., 953 F.3d 1160, 1163–64 (9th Cir. 2020), and its denial of

a motion for reconsideration, see Zamani v. Carnes, 491 F.3d 990, 994 (9th Cir.

2007). We affirm.

The district court did not abuse its discretion in dismissing this case for

forum non conveniens and denying the related motion for reconsideration. In

reviewing a dismissal for forum non conveniens, we examine: (1) the adequacy of

the alternate forum; (2) the deference owed a plaintiff’s chosen forum; and (3)

whether the balance of private and public interest factors favors dismissal. See

Carijano v. Occidental Petroleum Corp., 643 F.3d 1216, 1224 (9th Cir. 2011).

2 1. The district court properly determined that the United Kingdom

provides an adequate alternative forum. “An alternative forum is deemed adequate

if: (1) the defendant is amenable to process there; and (2) the other jurisdiction

offers a satisfactory remedy.” Id. at 1225. Here, Defendants are amenable to

process in the United Kingdom because they accepted, as a condition for the

district court’s dismissal, that they must submit to personal jurisdiction in the

United Kingdom for all of Bundy’s claims. See id. Further, the district court

correctly concluded that Lucasfilm Ltd. v. Ainsworth [2011] UKSC 39 does not

preclude the United Kingdom from exercising jurisdiction over Bundy’s U.S.

copyright claims. Lucasfilm holds that the United Kingdom’s jurisdiction is

limited over foreign property disputes only where proceedings are “principally

concerned” with the “question of title” or “the right to possession” of a foreign

property right. Id. [105]; see also id. [101] (describing the “very narrow” question

on appeal). The main thrust of Lucasfilm is to expand the United Kingdom’s

jurisdiction over copyright infringement suits, rather than restrict it. See id.

Bundy contends that the principal issue in this case is indeed the validity of

her U.S. copyright interest, thus precluding U.K. jurisdiction under Lucasfilm.

However, the district court correctly concluded that the validity issue here is

probably secondary, as the face of Bundy’s complaint suggests that she does not

have an enforceable U.S. copyright interest. And Bundy fails to allege how U.S.

3 copyright law would protect the Illustration as a “foreign work.” She has not

demonstrated that the United Kingdom was a “treaty party” to the United States

when the Illustration was published in 1949, which is required for a foreign work

to be enforceable under U.S. law. 17 U.S.C. § 104(b)(1); see also 1 M. Nimmer &

D. Nimmer, Nimmer on Copyright § 5.07 (2022).1 Her allegations that the

Illustration did not enter the public domain in the United States do not alter this

statutory requirement.

By contrast, whether the Illustration has copyright protection under U.K. law

remains a threshold legal question to be addressed by the U.K. courts. The district

court need not have accepted as true Bundy’s legal conclusion in her complaint

that she is the sole owner of the Illustration. See Whitaker v. Tesla Motors, Inc.,

985 F.3d 1173, 1176 (9th Cir. 2021). And even though two witnesses have

provided declarations disclaiming ownership of a U.K. copyright interest in the

Illustration, Bundy has yet to present affirmative evidence proving sole ownership

or ownership at all. Given that Bundy’s evidence does not conclusively resolve the

ownership issue, and that Defendants plan to continue to challenge Bundy’s

ownership going forward, ownership of a U.K. copyright interest in the Illustration

1 In her briefing, Bundy cites to the Berne Convention as the international treaty that supports U.S. copyright protection for her U.K. work. However, the United States did not join the Berne Convention until 1989. See 1 Nimmer on Copyright § 5.07; 9 M. Nimmer & D. Nimmer, Nimmer on Copyright app. 20 (collecting all international copyright treaties with the United States).

4 persists as a threshold issue in this case. As a result, Lucasfilm does not bar U.K.

jurisdiction, and the district court properly determined that the United Kingdom

serves as an adequate forum.

2. Nor did the district court abuse its discretion in concluding that

Bundy’s forum choice is afforded “less deference” because she is a foreign

plaintiff. Creative Tech., Ltd. v. Aztech Sys. Pte, Ltd., 61 F.3d 696, 703 (9th Cir.

1995) (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255 (1981)). Although

Defendants are headquartered in the United States, see Carijano, 643 F.3d at 1229,

this connection to the United States alone does not warrant increased deference.

See Ravelo Monegro v. Rosa, 211 F.3d 509, 513–14 (9th Cir. 2000).

3. With lessened deference to Bundy’s choice of forum, the district court

did not abuse its discretion in concluding that the public and private interest factors

weigh in favor of dismissal. See Lueck v. Sundstrand Corp., 236 F.3d 1137, 1145

(9th Cir. 2001). A number of public interest factors weigh in Defendants’ favor,

including the need to apply U.K. and German law, see Leetsch v. Freedman, 260

F.3d 1100, 1105 (9th Cir. 2001), the unwarranted potential burden on U.S. courts,

see Lueck, 236 F.3d at 1147, and the fact that a trial in the United Kingdom would

be “speedier” than one in the Central District, Gates Learjet Corp. v. Jenson, 743

F.2d 1325, 1337 (9th Cir. 1984). While Bundy is correct that our circuit is split on

the appropriate way to apply the local interest factor, see Carijano, 643 F.3d at

5 1233 n.3, we need not decide that issue because the remaining factors either favor

dismissal or are neutral even if the local interest factor were to weigh in Bundy’s

favor.

Among the private interest factors, the residence and convenience of the

parties and witnesses, access to evidence, and enforceability of judgment also favor

dismissal. See Lueck, 236 F.3d at 1145. Material evidence and witnesses related

to ownership are in the United Kingdom, and ownership is a critical threshold issue

that a U.K. court is more equipped to resolve. Moreover, it is possible for Bundy

to enforce a U.K. judgment in the United States. See Cal. Code Civ. P. §§ 1715(a),

1716(a)–(d), 1723; Carijano, 643 F.3d at 1231–32; Yahoo! Inc. v. La Ligue Contre

Le Racisme Et L’Antisemitisme, 433 F.3d 1199, 1213–15 (9th Cir. 2006). And to

the extent Bundy may face difficulty collecting evidence from the United States,

see Lueck, 236 F.3d at 1145, the district court conditioned dismissal on the

Defendants’ agreement to use the discovery procedures set forth in the Federal

Rules of Civil Procedure and to voluntarily produce documents and witnesses

under their control in the United States for use in the U.K. suit.

“In cases concerning foreign plaintiffs, this court rarely has reversed a

district court’s grant of a motion to dismiss for forum non conveniens.” Vivendi SA

v. T-Mobile USA Inc., 586 F.3d 689, 694 (9th Cir. 2009). With the “highly

deferential” standard of review in mind, id., we hold that the district court did not

6 abuse its discretion in dismissing this case for forum non conveniens and denying

Bundy’s motion for reconsideration.2

AFFIRMED.

2 Because we affirm the district court’s decision, we do not reach the question of whether this case should be reassigned upon remand.

7