Good Job Games Bilism Yazilim Ve Pazarlama A.S. v. Saygames LLC

458 F.Supp.3d 1202

GOOD JOB GAMES BILISM YAZILIM VE PAZARLAMA A.S., Plaintiff,

v.SAYGAMES LLC, Defendant.

Case No. 19-cv-07916-EMC

United States District Court, N.D. California.

Signed May 7, 2020

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...