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holding that for jurisdictional purposes the plaintiff "cannot rely on [the defendant's] relationship with third parties headquartered in California to establish that [the defendant] directed its intentional acts towards this state"
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Case No. 19-cv-07916-EMC
2020-05-07
GOOD JOB GAMES BILISM YAZILIM VE PAZARLAMA A.S., Plaintiff, v. SAYGAMES LLC, Defendant.
Ciara N. McHale, Jennifer Lloyd Kelly, Sean Kristofer Apple, Tyz Law Group PC, San Francisco, CA, Eric J. Ball, Fenwick & West LLP, Mountain View, CA, for Plaintiff. Craig Brian Whitney, Frankfurt Kurnit Klein + Selz PC, New York, NY, Jessica Rose Keiko Medina, Frankfurt Kurnit Klein Selz, Los Angeles, CA, for Defendant.
Ciara N. McHale, Jennifer Lloyd Kelly, Sean Kristofer Apple, Tyz Law Group PC, San Francisco, CA, Eric J. Ball, Fenwick & West LLP, Mountain View, CA, for Plaintiff.
Craig Brian Whitney, Frankfurt Kurnit Klein + Selz PC, New York, NY, Jessica Rose Keiko Medina, Frankfurt Kurnit Klein Selz, Los Angeles, CA, for Defendant.
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION
Docket No. 20
EDWARD M. CHEN, United States District Judge
This lawsuit involves a copyright dispute between two videogame developers for mobile devices. Plaintiff Good Job Games Bilism Yazilim Ve Pazarlama A.S. ("GJG") is a Turkish company based out of Turkey. Defendant SayGames LLC ("SG") is a Belarusian company based out of Belarus. Neither party has offices in the United States. GJG released its mobile-application game first; it was available on the Apple-and Google-based "App" stores (e.g. , Apple App Store and Google Play). Shortly thereafter, SG released its game through the same digital marketplace. GJG brings this action alleging SG violated its U.S. copyright.
Pending before the Court is SG's motion to dismiss under Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction. Docket No. 20 ("Mot."). SG's motion also seeks dismissal for failure to state a copyright claim under Rule 12(b)(6). Id. Pursuant to this District's General Orders 72 and 73, the Court finds this matter appropriate for decision without oral argument. See Civil L.R. 7-1(b). For the reasons discussed below, this Court GRANTS SG's motion to dismiss for lack of personal jurisdiction and DENIES GJG's request for leave to propound jurisdictional discovery. As such, SG's request for dismissal under Rule 12(b)(6) is moot.
I. BACKGROUND
GJG created an app-based videogame called Crazy Jump 3D in which the player fires a ball out of a cannon that ricochets off a surface and into a basket; the goal is to get the ball into the basket, which then advances the player to the next, more-advanced stage. Docket No. 1 ("Compl.") ¶¶ 9, 16. GJG released its game on the Apple App Store on September 29, 2019. Id. at 9. It received a U.S. copyright for Crazy Jump 3D with an effective registration date of November 19, 2019. One month prior to GJG's copyright registration, on October 18, 2019, SG released its app-based game entitled Cannon Shot! on Google Play. Id. ¶ 10. On October 26, 2019, SG made its game available on the Apple App Store. Id.
GJG alleges that, prior to the release of Cannon Shot! , SG had access to Crazy Jump 3D through the Apple App Store, which allowed SG to "develop[ ] and launch[ ] Cannon Shot! , a copycat game designed to free-ride the success of Crazy Jump 3D. " Id. ¶¶ 11–12. Specifically, the complaint claims
Cannon Shot! copies core protected and distinctive elements of Crazy Jump 3D. Indeed, the presence of these elements in Cannon Shot! makes it readily apparent that the game is a blatant clone of Crazy Jump 3D. As the non-exhaustive examples below show, the main attributes of Defendant's Cannon Shot! are substantially similar to the constituent elements of Crazy Jump 3D that are original. Despite the clean and seemingly simple aesthetic of Crazy Jump 3D , the games are filled with original expression that Good Job Games created, including its artwork, design aesthetics, layouts, level designs and its selection and coordination of game elements, colors, and shapes.
Id. ¶ 14. On November 14, 2019, GJG filed a notification under the Digital Millennium Copyright Act with the Apple App Store claiming SG's Cannon Shot! infringed its Crazy Jump 3D game. Id. ¶ 20. GJG alleges that instead of filing a counter-notification under the DMCA, SG "made changes to Cannon Shot! " Id. ¶ 23. SG has not ceased distribution of its game. Id. This lawsuit followed.
II. LEGAL STANDARD
Under Federal Rule of Civil Procedure 12(b)(2), a court must dismiss an action where it does not have personal jurisdiction over a defendant. While the burden is on the plaintiff to demonstrate that the court has jurisdiction, "the plaintiff need only make a prima facie showing of jurisdictional facts to withstand the motion to dismiss." Brayton Purcell LLP v. Recordon & Recordon , 606 F.3d 1124, 1127 (9th Cir. 2010) (citation omitted). Regarding the standard for challenges of fact, the Court must accept uncontroverted allegations in the plaintiff's complaint as true and resolve all disputed facts in favor of the plaintiff. Id. Traditional bases for conferring a court with personal jurisdiction include a defendant's consent to jurisdiction, personal service of the defendant within the forum state, or a defendant's citizenship or domicile in the forum state. J. McIntyre Mach., Ltd. v. Nicastro , 564 U.S. 873, 879–80, 131 S.Ct. 2780, 180 L.Ed.2d 765 (2011). There are two types of personal jurisdiction, "general" and "specific," and for the Court to exercise the latter over a defendant, "the suit must arise out of or relate to the defendant's contacts with the forum." Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County , ––– U.S. ––––, 137 S. Ct. 1773, 1779–80, 198 L.Ed.2d 395 (2017). Absent one of the traditional bases for jurisdiction, the Due Process Clause requires that the defendant have "certain minimum contacts" with the forum "such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice." Int'l Shoe Co. v. State of Wash. , 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945).
III. MOTION TO DISMISS
SG moves for an order dismissing this case for lack of personal jurisdiction over non-resident entities by arguing that GJG cannot present a prima facie case of jurisdiction and, even if it could, exercising jurisdiction would be unreasonable. GJG does not claim general jurisdiction applies. GJG asserts that specific personal jurisdiction is present here because of SG's conduct in California and its relationship with California-based entities. Docket No. 26 ("Opp.") at 10. Alternatively, GJG takes the position that Federal Rule of Civil Procedure 4(k)(2) confers nationwide jurisdiction over SG because of its contacts with the United States. Id. at 19. Lastly, GJG requests permission to conduct jurisdictional discovery, if this Court finds that GJG has not met its burden on the papers. Id. at 21.
A. GJG's Prima Facie Showing of Specific Personal Jurisdiction
GJG argues that the complaint sufficiently makes a prima facie showing of specific personal jurisdiction because it lays out SG's California contacts. Opp. at 10. The Ninth Circuit established a three-prong test for analyzing a claim of specific personal jurisdiction:
(1) The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws;
(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.
Schwarzenegger v. Fred Martin Motor Co. , 374 F.3d 797, 802 (9th Cir. 2004) (citing Lake v. Lake , 817 F.2d 1416, 1421 (9th Cir. 1987) ). The plaintiff bears the burden of satisfying the first two prongs of the test. Id. If the plaintiff fails to satisfy either of these prongs, personal jurisdiction is not established in the forum state. If the plaintiff succeeds in satisfying both of the first two prongs, the burden then shifts to the defendant to "present a compelling case" that the exercise of jurisdiction would not be reasonable. Id. (citing Burger King Corp. v. Rudzewicz , 471 U.S. 462, 476–78, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) ). The Ninth Circuit has ruled that allegations of copyright infringement apply the purposeful direction analysis. Mavrix Photo, Inc. v. Brand Techs., Inc. , 647 F.3d 1218, 1228 (9th Cir. 2011) ("Because [plaintiff] has alleged copyright infringement, a tort-like cause of action, purposeful direction is the proper analytical framework."). In turn, the analysis applies to what is referred to as the "effects" test, which requires the Court to determine whether SG "(1) committed an intentional act, (2) expressly aimed at the forum state, (3) causing harm that the defendant knows is likely to be suffered in the forum state." Brayton Purcell , 606 F.3d at 1128 (quoting Yahoo! Inc. v. La Ligue Contre Le Racisme , 433 F.3d 1199, 1206 (9th Cir. 2006) (en banc)).
1. Intentional act of developing and releasing Cannon Shot!
GJG argues SG's distribution of Cannon Shot! constitutes an intentional act under the "effects" test. SG does not contend otherwise. As such, this Court must determine whether such distribution was "expressly aimed" at California such that SG knew GJG would suffer in this forum state; if so, the Court must determine whether conferring personal jurisdiction would be reasonable.
2. Cannon Shot! in California
According to GJG, SG expressly aimed its infringing act to California by: (1) contracting to distribute its game through Apple and Google, both of which have headquarters in California; (2) making its game available to users in California; (3) advertising the game with California-based companies like Facebook; and (4) offering the game in English. Opp. at 11–19. While SG does not deny it engaged in these activities, it argues that this conduct does not constitute aiming at California for purposes of specific personal jurisdiction. Docket No. 29 ("Reply").
Under GJG's theory of jurisdiction, any non-resident entity that elects to distribute a digital product through Apple or Google's digital marketplace, or utilizes Facebook to advertise the product, expressly targets California, thereby subjecting itself to a lawsuit here. This is so, according to GJG, because Apple, Google, and Facebook are all California-based entities.
This Court is not persuaded. The relationship between SG and California is attenuated and merely coincidental: SG represents that it "did not choose to distribute its game through Apple and Google because they are California companies. Apple and Google are two of the largest companies in the world—they exist everywhere." Reply at 3 (emphasis in original). Instead, it is more accurate to say that SG utilized Apple and Google because they arguably have a virtual monopoly on the channels in which developers can distribute application-based software—not because they have offices in California. GJG has not identified anything unique about California that caused SG to target this forum state. In other words, SG did not target California; it targeted Apple and Google, which happened to be headquartered in California. GJG cannot rely on the SG's relationship with third parties headquartered in California to establish that SG directed its intentional acts towards this state because the focal of those headquarters in California are unrelated to SG's interests in the transaction at issue. See e.g., Bibiyan v. Marjan Television Network, Ltd. , 2019 WL 422664, at *4 (C.D. Cal. Feb. 4, 2019) (that a defendant's application is available on Google Play and the Apple App Store has "no bearing on whether Defendant intended to exploit the ... market in California"); DFSB Kollective Co. v. Bourne , 897 F. Supp. 2d 871, 883 ("While the location of these companies is relevant for lawsuits directly involving the companies, the Court is unpersuaded that the headquarters of these Internet companies establishes that Defendant expressly aimed his infringing activities at the California market.").
The mere availability of downloading SG's Cannon Shot! in California, by itself, does not create personal jurisdiction. While the Ninth Circuit has not squarely decided if the availability of a downloadable videogame subjects a defendant to jurisdiction, what is clear is that operating a passive website alone is not enough; there must be "something more" in addition to running a passive website in order to confer personal jurisdiction. Mavrix , 647 F.3d at 1229. The decisions in Mavrix Photo, Inc. v. Brand Techs., Inc. , 647 F.3d 1218 (9th Cir. 2011) and DFSB Kollective Co. v. Bourne , 897 F. Supp. 2d 871 (N.D. Cal. 2012) are instructive.
In Mavrix , the Ninth Circuit recognized that it has "struggled with the question whether tortious conduct on a nationally accessible website is expressly aimed at any, or all, of the forums in which the website can be viewed." 647 F.3d at 1229. There, the plaintiff was a celebrity-photo agency based in Florida that brought a copyright infringement action in California federal court against an Ohio defendant with its principal place of business in Toledo. The complaint alleged that defendant posted plaintiff's copyrighted photos on its website. Id. at 1221. The defendant operated a website for celebrity gossip that had interactive features—e.g. , visitors could post comments on articles, vote in polls, subscribe to e-mail newsletters, and submit news tips and photos of celebrities. Id. at 1222. The district court dismissed the lawsuit for lack of personal jurisdiction. Id. at 1223.
The Ninth Circuit reversed, holding that the defendant was subject to personal jurisdiction in California. Id. at 1230. As to the "express aiming" prong, which was the only prong at issue, the court reasoned that the defendant operated "a very popular website with a specific focus " on California's celebrity and entertainment industries. Id. at 1230 (emphasis added). With regard to the defendant's California contacts, the court also made note of the website's ties to the state:
[The defendant] makes money from third-party advertisements for jobs, hotels, and vacations in California. The website also features a "Ticket Center," which is a link to the website of a third-party vendor that sells tickets to nationwide events. Some of these events are in California. [The defendant] has agreements with several California businesses. A California Internet advertising agency solicits buyers and places advertisements on celebrity-gossip.net.
Id. at 1222. The court found the "most salient" fact was that the defendant used the copyrighted photos "as part of its exploitation of the California market for its own commercial gain." Id. at 1229. The court also considered the defendant's ability to make money by selling advertising space on its website to third-party advertisers, and some of the third-party advertisers ran advertisements directed to California residents. Id. at 1230. Based on this, the court concluded that the defendant " anticipated, desired, and achieved a substantial California viewer base ," and this California audience was an " integral component " of the defendant's business. Id. at 1230 (emphasis added).
However, in DFSB Kollective Co. v. Bourne , the district found no personal jurisdiction in California against an Australian defendant that was sued by plaintiffs based in Korean. 897 F. Supp. 2d at 875. The lawsuit concerned websites operated by the defendant in Australia, in which users could download certain copyrighted Korean music. Id. at 876. The court found no express aiming at California—thereby distinguishing these websites from the website in Mavrix —because "the best plaintiffs have done is claim that California is one of the largest markets for Korean music ...." Id. at 874. Notwithstanding the interactive features of the defendant's music-downloading websites (e.g. , the user had to register to the website to download music), the court found that the plaintiffs failed to identify anything on the websites that was directed at California. Id. at 881. The DFSB court specifically distinguished Mavrix in rejecting the plaintiffs' arguments about allowing third-parties to run advertisements on the websites,
[A]dvertisements were not the only factor considered in Mavrix : the "most salient" fact was "that Brand used Mavrix's copyrighted photos as part of its exploitation of the California market for its own commercial gain." [Citations] The website itself had "a specific focus on the California-centered celebrity and entertainment industries. " [Citations] Thus, the directed advertisements merely confirmed what was already apparent from the subject matter of the website in question .
Id. at 882–83 (emphasis added). The subject matter of the website in Mavrix was California celebrities whereas the subject matter of the defendant's websites in DFSB was Korean music. Id. at 883. Moreover, the examples of advertisements run on the defendant's websites in DFSB were ads to enroll in courses with a Florida university and to visit an Australian dating website. Id. at 882. The court concluded that these advertisements were not directed at Californians. Id. And there was no showing that the defendant actually or constructively knew of this California-user base. Id.
Here, there was not "something more" substantial enough in addition to internet sales to confer personal jurisdiction. Unlike the celebrity-gossip website in Mavrix that focused on California-based celebrities, Cannon Shot! has no "specific focus" in California; the app-based videogame is not about California or anything in/from California. While GJG also alleges that SG sold advertising space on Cannon Shot! , these proffered advertisements suggest nothing about targeting California. GJG exhibits reveal the following advertisements on Cannon Shot! :
• American actress, Jennifer Lopez;
• American television personality NeNe Leakes;
• A mobile game version of the popular American television show, Who Wants to Be a Millionaire ?;
• A game called Disney Emoji Blitz depicting a text message exchange in English about emojis of popular Disney characters like Mickey Mouse and Tinkerbell; and
• A game called Episode , depicting young people in dramatic scenes and showing the various characters' thoughts, dialogue, and choices in English.
Opp. at 7. Like the advertisements in DFSB , neither of these third-party advertisements here are directed at California, much less mention California. The fact that these advertisements were viewed by Californians does not mean they were targeted at California—they can be viewed anywhere.
Moreover, although GJG claims that SG does substantial business in California—of SG's total worldwide sales, only 30% of Cannon Shot! on the Apple App Store are from the United States. See Opp. at 7. Most of SG's Crazy Jump 3D downloads are from outside the United States. There is no showing that of the U.S. downloads, most are in California. Indeed, of the 20,000 U.S. downloads of GJG's competing Crazy Jump 3D in the United States, only 1,700 are in California—representing only 8.5% of all U.S. downloads. Nothing has been presented suggesting SG's downloads, unlike GJG's, are concentrated in California. In fact, GJG does not allege that there is anything unique about the California-consumer market that caused SG to advertise in California more than other states.
Furthermore, GJG does not have physical property or its principle place of business in California. Its principal place of business is in Turkey. Thus, it cannot be said that SG directed its intentional acts "at a plaintiff whom the defendant knows to be a resident of the forum state." Dole Food Co. v. Watts , 303 F.3d 1104, 1111 (9th Cir. 2002) ; see, e.g., Zherebko v. Reutskyy , 2013 WL 4407485, at *3 (N.D. Cal. Aug. 12, 2013) ("[E]ven if [defendants] intentionally misused [plaintiff's] intellectual property, this intentional act is not ‘expressly aimed’ at anyone in California" because plaintiff is not a resident of California, nor does plaintiff own any business interest in California).
GJG points to SG's user agreements with Apple and Google in which SG consented to California law governing the user agreements as well as personal jurisdiction and venue in this District. But SG's contracts with third parties about choice of law, jurisdiction, and venue have nothing to do with whether it directed its tortious activities towards an entity not a party to those agreements. At least one court has concluded as much. See e.g., Rosen v. Terapeak, Inc. , 2015 WL 12724071, at *10 (C.D. Cal. Apr. 28, 2015). In Rosen , the plaintiff photographer brought a copyright action against a Georgia-based defendant for the sales of the plaintiff's photos on an online auction marketplace, eBay. Rosen , 2015 WL 12724071, at *1. Regarding the license agreement the defendant entered into with eBay, the court found no express aiming because "[a]bsent binding authority," the license agreement, by which it subjected itself to California law and personal jurisdiction in California, "is [not] a jurisdictionally relevant contact that is sufficiently related to either the forum or the claims to justify exercising personal jurisdiction." Rosen , 2015 WL 12724071, at *9 ; cf. Goes Int'l, AB v. Dodur Ltd. , 2015 WL 5043296, at *10, n. 2 (N.D. Cal. Aug. 26, 2015) (concluding that while making an app-based game available on the Apple App Store satisfied the Rule 4(k)(2) prong regarding targeting the United States, the court made clear that it "does not base its holding on the presence of a forum-selection clause in the defendants' agreements with Apple and Google, [which would only be] relevant for lawsuits about the agreements[.]").
GJG cites to at least one court that ruled to the contrary. In Shuffle Master, Inc. v. Avalinx, Inc. , 2012 WL 12888850, at *4 (C.D. Cal. Nov. 13, 2012), the district court concluded that the combination of an Ohio defendant's distribution of a mobile phone application through its passive website, in addition to executing a user agreement with Apple (which included the same purported consent here—i.e. , consent to be subject to California law and personal jurisdiction in California in connection with any litigation or dispute regarding the agreement with Apple), "all support[ed] a finding that its conduct was aimed at California" in a lawsuit brought by a Minnesota plaintiff. Shuffle Master , 2012 WL 12888850, at *4. But Shuffle Master offers no analysis or binding authority for its conclusion. This Court is more persuaded by the decisions in Rosen, DFSB , and Goes on this point—SG's user agreements with Apple and Google are not jurisdictionally relevant to whether SG aimed its conduct alleged herein to injure GJG in California.
In sum, SG did not direct its intentional acts towards California simply by distributing its game through Apple and Google. Indeed, as SG points out, "[t]he Northern District of California is not an international court of internet law." Doe v. Geller , 533 F. Supp. 2d 996, 1009 (N.D. Cal. 2008). There is nothing in the record that shows California was of special significance to SG or that it targeted its marketing to California residents. Neither GJG nor SG have any particular connection to California. To find personal jurisdiction on such a bare showing as in this case would permit "[f]ederal courts sitting in California [t]o assert personal jurisdiction over foreign defendants in wholly foreign disputes." Id. Because GJG fails to plead facts demonstrating that SG directed its intentional acts at California under the "effects" test, this Court need not analyze whether GJG's copyright claim arises out of conduct in California, or whether exercising personal jurisdiction against SG would be reasonable (although this Court analyzes such reasonableness, infra , under the Rule 4(k)(2) analysis).
Accordingly, GJG has not met its burden of pleading a prima facie case of specific personal jurisdiction in California.
B. Nationwide Jurisdiction under Rule 4(k)(2)
GJG only devotes a page and a half of its opposition to its alternative claim—i.e. , that this lawsuit is properly before the Court under Rule 4(k)(2) because of SG's "exploitation of the U.S. market in distributing Cannon Shot! " Opp. at 19–20. Under Rule 4(k)(2), jurisdiction is proper when: (1) the claim arises under federal law; (2) the defendant is not subject to jurisdiction in any state's courts of general jurisdiction; and (3) exercising jurisdiction is consistent with the United States Constitution and laws. Fed. R. Civ. P. 4(k)(2). There is no dispute as to the first two requirements because GJG is asserting a federal copyright claim, and SG is not subject to general jurisdiction in any state court (or, at least, it has not alleged so). See Goes , 2015 WL 5043296, at *7 (quoting Holland Am. Line Inc. v. Wärtsilä North Am., Inc. , 485 F.3d 450, 461–62 (9th Cir. 2007) ) ("[A]bsent any statement from ... [the defendant] that it is subject to the courts of general jurisdiction in another state, the second requirement of Rule 4(k)(2) is met."). The issue, then, is whether exercising jurisdiction against non-resident, foreign parties is consistent with due process under these alleged facts.
"The due process analysis under Rule 4(k)(2) is nearly identical to traditional personal jurisdiction analysis with one significant difference: rather than considering contacts between [the defendant] and the forum state, we consider contacts with the nation as a whole." Holland , 485 F.3d at 462. The Ninth Circuit considers seven factors when determining whether exercising jurisdiction over a nonresident defendant comports with "fair play and substantial justice": (1) the extent of the defendant's purposeful interjection into the forum state's affairs; (2) the burden on the defendant of defending in the forum; (3) the extent of conflict with the sovereignty of the defendant's state; (4) the forum state's interest in adjudicating the dispute; (5) the most efficient judicial resolution of the controversy; (6) the importance of the forum to the plaintiff's interest in convenient and effective relief; and (7) the existence of an alternative forum. Core-Vent Corp. v. Nobel Indus. AB , 11 F.3d 1482, 1487–88 (9th Cir. 1993). This Court weighs the competing interests below.
1. Interjection into the United States' affairs
This factor essentially parallels the purposeful-direction prong. Pebble Beach Co. v. Caddy , 453 F.3d 1151, 1159 (9th Cir. 2006) ("The due process analysis is identical to the one ... when the forum was California, except here the relevant forum is the entire United States."). SG maintains that it did not have "extensive contact" with the United States and that this test is rarely met. See Holland , 485 F.3d at 462 ("in the fourteen years since Rule 4(k)(2) was enacted, none of our cases has countenanced jurisdiction under the rule" and in the "few cases in which our sister circuits have concluded that Rule 4(k)(2) conferred jurisdiction," defendants have had "extensive contacts to this country"). SG had an option to select in which countries Cannon Shot! would be available via the Apple App Store, and SG selected the United States. But SG also marketed in other countries. As noted above, only 30% of its worldwide sales of Canon Shot ! were in the U.S. The Ninth Circuit in Holland recognized that the few courts that have found nationwide targeting sufficient to establish nationwide personal jurisdiction under Rule 4(k)(2) involved extreme examples: e.g. , conspiracies to commit terrorist attacks against the United States, Mwani v. bin Laden , 417 F.3d 1, 12 (D.C. Cir. 2005), and a foreign insurance company that insured hundreds of claims in the United States. Adams v. Unione Mediterranea Di Sicurta , 364 F.3d 646, 651 (5th Cir. 2004). SG's activities in the United States were not "extensive contacts" in comparison to Mwani and Adams. Accordingly, the first factor weighs in SG's favor.
2. Burden of defending this case in the United States
The Supreme Court has recognized that defending a lawsuit in a foreign country can impose a substantial burden on a nonresident defendant. "The unique burdens placed upon one who must defend oneself in a foreign legal system should have significant weight in assessing the reasonableness of stretching the long arm of personal jurisdiction over national borders." Asahi Metal Indus. Co. v. Superior Court of California, Solano Cty. , 480 U.S. 102, 114, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987).
SG represents that the burden of defending this lawsuit in the United States would be substantially burdensome because it is a Belarusian company with no employees or operations in the Northern District of California. Mot. at 9; Reply at 7. It further argues that this District contains no witnesses or evidence—all of which, according to SG are in Belarus. Mot. at 9. GJG does not identify any witnesses or evidence in California; instead, it argues that SG's representation is without an affidavit and does not meet SG's heavy burden.
Notwithstanding the lack of an affidavit from SG, GJG has not identified anything uniquely situated or indispensable in California or the United States that supports finding jurisdiction here. It has not identified any witnesses in the United States. And it is undisputed that SG is a Belarusian company with no employees or property in the United States. As such, this Court finds that exercising personal jurisdiction against SG would impose a substantial burden on SG.
3. The United States' conflict with the sovereignty of another country
SG does not argue that the United States has a conflict with the sovereignty of Belarus or Turkey. This factor is neutral.
4. The United States' interest in adjudicating this lawsuit
Despite this being a Rule 4(k)(2) analysis, GJG still uses California as a benchmark; it argues California has an interest in protecting California citizens and domestic businesses against copyright infringement from foreign, nonresident defendants. Opp. at 18, 20. But none of the parties to this litigation are from California or the United States, nor is there an alleged violation of California law. While there is an interest in enforcing U.S. federal copyright laws, there is also an interest in enforcing the intellectual property of other sovereignties, such as Turkey, which is where GJG also holds intellectual property for Crazy Jump 3D. To the extent GJG argues that California has an interest in protecting its citizens from exposure to infringing works—that argument is misplaced because this is not a consumer-protection lawsuit or a products-liability action. The primary injured party is GJG, not California consumers. Accordingly, the Court finds that California and the United States have little interest in adjudicating this suit because their interests are attenuated. Holland , 485 F.3d at 461 (contacts with the United States that are "only marginally more significant" than contacts with the forum state do not support a finding of nationwide jurisdiction).
5. Whether judicial resolution in the United States is the most efficient
This factor pertains to the location of witnesses and evidence. As stated above, SG represents none are in California because all are overseas. Mot. at 9. GJG only states that "this Court presents Good Job Games with the best chance at achieving an efficient resolution of its U.S. copyright claim, obtaining convenient and efficient relief, and preventing Good Job Games from being deprived of any forum for its claim." Opp. at 19. This assertion is conclusory; it does not explain how or why this Court is a more efficient forum than any other foreign tribunal, particularly since there are no identifiable key witnesses in the United States. Thus, this factor weighs against personal jurisdiction.
6. The importance of the United States to GJG's interests
GJG represents that 93% of its worldwide downloads are from the United States. Opp. at 2. This significant amount weighs in favor of GJG's reliance on the United States, at least insofar as sales/downloads. However, this factor should be considered with factor no. (7), infra —i.e. , whether an alternative forum is adequately equipped for GJG's claim.
7. Alternative forums
GJG bears the burden of proving that an alternative forum does not exist. Freestream Aircraft (Berm.) Ltd. v. Aero Law Grp. , 905 F.3d 597, 609 (9th Cir. 2018). SG maintains that Turkey or Belarus are alternative forums, both of which are "parties to the Berne Convention and capable of adjudicating U.S. copyright infringement disputes. Reply at 8. GJG does not provide any analysis as to why it cannot pursue its claim in Turkey or Belarus; instead, it argues that "absent a finding of personal jurisdiction over SayGames here, Good Job Games would be left without a forum for its U.S. copyright infringement claim." Opp. at 17. However, the United States, Turkey, and Belarus are all signatories to the Berne Convention. SG alleges that GJG owns copyrights to Crazy Jump 3D in its home country, Turkey, and it can be litigated there. Reply at 8. GJG has not shown why Turkey is not an alternative forum.
See https://www.wipo.int/treaties/en/ShowResults.jsp?treaty_id=15.
This Court concludes that GJG has not met its burden in proving that an alternative form does not exist—i.e. , that it cannot adequately enforce its rights in Turkey or Belarus. Regarding the convenience of the parties to this litigation, having this lawsuit heard overseas in either of the parties' home sovereignty would be the most logical solution because all evidence exists overseas.
Having weighed most of the factors that counsel against the exercise of personal jurisdiction, SG's motion to dismiss for lack of personal jurisdiction is GRANTED .
C. Jurisdictional Discovery
GJG argues, at minimum, this Court should permit jurisdictional discovery. Specifically, it requests leave to propound the following from SG:
1. Downloads of Cannon Shot! in the United States and in California specifically;
2. Revenue derived from distribution of Cannon Shot! in the United States and in California specifically;
3. SayGames' efforts to advertise, market, license, commercialize, or profit from Cannon Shot in the United States;
4. Travel or presence of SayGames' officers, employees, or representatives to or in the United States and California;
5. SayGames' agreements to distribute Cannon Shot! in the United States;
6. SayGames' ability to engage in country-specific distribution of Cannon Shot! , including the ability to choose distribution in the United States; and
7. Communications with customers in the United States and California.
However, "[i]n order to obtain discovery on jurisdictional facts, the plaintiff must at least make a ‘colorable’ showing that the Court can exercise personal jurisdiction over the defendant." Mitan v. Feeney , 497 F. Supp. 2d 1113, 1119 (C.D. Cal. 2007) ; see also Lang v. Morris , 823 F. Supp. 2d 966, 979 (N.D. Cal. 2011). Aside from providing the Court with the discovery requests it intends to propound, GJG has not met its burden in demonstrating how or why more information from these topics would alter the outcome of the jurisdictional analysis. It has failed to make even a prima facie showing justifying discovery. Accordingly, GJG's request for leave to conduct jurisdictional discovery is DENIED .
IV. CONCLUSION
SG's motion to dismiss for lack of personal jurisdiction under Rule 12(b)(2) is GRANTED . SG's request for dismissal pursuant to Rule 12(b)(6) is moot. GJG's request for leave to seek limited jurisdictional discovery is DENIED .
This order disposes of Docket No. 20.