Cabinet d'avocats
YAHOO! INC., a Delaware corporation, Plaintiff,
v.
LA LIGUE CONTRE LE RACISME ET, L'ANTISEMITISME, a French association, et al.,
Defendants.
No. 00-21275 JF.
June 7, 2001.
California Internet service provider sued French
parties who obtained order from French court requiring provider to block
French citizens' access to Nazi material displayed or offered for sale
on provider's U.S. site, seeking declaration that order was unenforceable
in U.S. On French parties motion to dismiss, the District Court, Fogel,
J., held that: (1) French parties purposefully availed themselves of California
law; (2) provider's action arose from French parties' forum-related conduct;
and (3) court's exercise of personal jurisdiction was reasonable.
Motion denied.
ORDER DENYING MOTION TO DISMISS
FOGEL, District Judge.
This case presents novel legal issues arising from
the global nature of the Internet. [FN1] See Reno v. ACLU, 521 U.S. 844,
117 S.Ct. 2329, 138 L.Ed.2d 874 (1997) (describing the Internet as a unique
and wholly new medium of worldwide human communication) (internal citation
omitted ). Defendants La Ligue Contre Le Racisme Et L'Antisemitisme ("LICRA")
and L'Union Des Etudiants Juifs De France ("UEJF") have obtained a court
order in France which requires Plaintiff Yahoo!, Inc. ("Yahoo!") to "render
impossible" access by persons in France to certain content on servers based
in the United States. Yahoo! now seeks a declaration by this Court that
the order of the French court is unenforceable in the United States because
it contravenes the Constitution and laws of the United States. Defendants
move for dismissal of this action on the ground that this Court lacks personal
jurisdiction over them. See Fed.R.Civ.P. 12(b)(2) . The Court has read
the moving and responding papers and has considered the oral arguments
of counsel presented on Monday, April 9, 2001. For the reasons set forth
below, the motion will be denied.
FN1. The "Internet" and "World Wide Web" are distinct
entities, but for the sake of simplicity the Court will refer to them collectively
as the "Internet." Generally, the Internet is a decentralized networking
system which links computers and computer networks around the world. The
World Wide Web is a publishing forum consisting of millions of individual
web sites which contain various forms of content (i.e., text, images, animation,
etc.).
I. BACKGROUND
LICRA and UEJF are citizens of France. Yahoo! is
a corporation organized under the laws of Delaware with its principal place
of business in Santa Clara, California. Yahoo! is an Internet service provider
which operates various Internet web sites and services which end-users
can access at the Uniform Resource Locater ("URL") "http://www.yahoo.com."
According to Yahoo!'s complaint, Yahoo! services ending in the suffix,
".com", without an associated country code as a prefix or extension (collectively,
"Yahoo!'s U.S. Services"), use the English language and target users who
are residents of, utilize servers based in and operate under the laws of
the United States. Yahoo! subsidiary corporations operate regional Yahoo!
sites and services in twenty (20) other countries, including, for example,
Yahoo! France, Yahoo! India, and Yahoo! Spain. These regional web sites
contain the host country's unique two-letter code as either a prefix or
a suffix in their URL (e.g., Yahoo! France is found at http://www.yahoo.fr
and Yahoo! Korea at http://www.yahoo.kr ). Yahoo! alleges that all of its
regional sites use the local region's primary language, target the local
citizenry, and operate under local laws.
Certain services provided by Yahoo! allow end-users
to post materials on Yahoo! servers which then can be accessed by end-users
at Yahoo!'s Internet sites. As relevant here, Yahoo! end-users are able
to post, and have in fact posted, highly offensive matter, including Nazi-related
propaganda and memorabilia, the display and sale of which are illegal in
France. While Yahoo! avers that its French subsidiary sites do not permit
such postings, Yahoo!'s U.S.-based site ending in ".com" does not impose
such a restriction because to do so might infringe upon the First Amendment
to the United States Constitution. End-users in France are able to access
Yahoo!'s *1172 U.S. services via the web site located at www.yahoo.com.
[1] On or about April 5, 2000, LICRA sent a "cease
and desist" letter to Yahoo!'s headquarters in Santa Clara, California,
stating that "unless you cease presenting Nazi objects for sale [on the
U.S. Auction Site] within 8 days, we shall size [sic] the competent jurisdiction
to force your company to abide by [French] law." Defendants then employed
the United States Marshal's Office to serve process on Yahoo! in California
and filed civil complaints against Yahoo! in the Tribunal de Grande Instance
de Paris (the "French Court") for alleged violation of a French criminal
statute barring the public display in France of Nazi-related "uniforms,
insignia or emblems" (the "Nazi Symbols Act"). See Le Nouveau Code Penal
Art. R.645-2. On May 22, 2000 the French Court issued an order (the "French
Order") directing Yahoo! to "take all necessary measures" to "dissuade
and render impossible" any access via "yahoo.com" by Internet users in
France to the Yahoo! Internet auction service displaying Nazi artifacts.
(See Complaint, Exhibit A: Translated Copy of May 22 Order.) On November
20, 2000, the French Court "reaffirmed" its Order of May 22 and directed
Yahoo!, inter alia, to 1) re-engineer its content servers in the United
States and elsewhere to enable them to recognize French Internet Protocol
("IP") addresses and block access to Nazi material by end-users assigned
such IP addresses; 2) require end-users with "ambiguous" IP addresses to
provide Yahoo! with a declaration of nationality when they arrive at Yahoo!'
s home page or when they initiate any search using the word "Nazi"; and
3) comply with the Order within three (3) months or face a penalty of 100,000
Francs (approximately U.S. $13,300) for each day of non-compliance. The
Court denied Defendants' request to enforce its Order or impose any penalties
directed at Yahoo! Inc. against Yahoo! France. Thereafter, Defendants again
utilized the United States Marshal's Office to serve Yahoo! in Santa Clara
with the French Order. [FN2]
FN2. Before addressing the jurisdictional issue
presented by Defendants' motion, the Court must consider whether this case
presents a "case or controversy" which is ripe for adjudication. U.S. Const.,
Art. III. Although Defendants have not yet sought to enforce the French
Order in the United States, the Court concludes that, as is discussed in
more detail below, Yahoo! nonetheless faces immediate and ongoing consequences
because of its refusal to comply with that Order. Without an expeditious
means for determining whether the French Order is enforceable in the United
States, Yahoo! must either comply with the Order or face the daily accumulation
of penalties against it, subject to an uncertain legal outcome if and when
Defendants take steps to enforce the Order in the United States. The coercive
effect of such a situation is self-evident; this would appear to be a classic
example of a situation in which declaratory relief would clarify the present
and ongoing rights and obligations of the parties. Accordingly, the Court
concludes that this case is ripe for adjudication.
II. LEGAL STANDARD
[2][3] Where no applicable federal statute indicates
otherwise, a district court has personal jurisdiction over a nonresident
defendant to the extent that the law of the forum state constitutionally
provides. See Data Disc, Inc. v. Systems Tech. Assoc., Inc., 557 F.2d 1280,
1286 (9th Cir.1977) . California law permits courts to exercise jurisdiction
to the full extent authorized by the Due Process Clause of the Fourteenth
Amendment to the United States Constitution. See Cal.Civ.Proc.Code §
410.10; Data Disc, 557 F.2d at 1286 n. 3. The Due Process Clause, in turn,
has been interpreted to authorize the exercise of personal jurisdiction
over a nonresident defendant if that defendant *1173 has "minimum contacts"
with the forum state such that maintenance of the suit "does not offend
'traditional notions of fair play and substantial justice.' " See International
Shoe Co. v. State of Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed.
95 (1945) (citation omitted ); see also Data Disc, 557 F.2d at 1287.
[4][5][6][7] Personal jurisdiction over a nonresident
of the forum state can be either "general" or "specific." If the nonresident
defendant's contacts with the forum state are "substantial" or "continuous
and systematic," the defendant is subject to "general jurisdiction" in
the forum state even if the cause of action is unrelated to the defendant's
activities within the state. See /span>Helicpteros Nacionales de Colombia,
S.A. v. Hall, 466 U.S. 408, 416, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984);
Data Disc, 557 F.2d at 1287. Where the defendant's activities within the
forum are not so pervasive as to subject it to general jurisdiction, the
defendant still may be subject to specific jurisdiction depending upon
the nature and quality of its contacts in relation to the cause of action.
See Data Disc, 557 F.2d at 1287 (emphasis added ). The Court of Appeals
for the Ninth Circuit applies a three-part test to determine whether a
court may exercise specific jurisdiction: 1) the nonresident defendant
must do some act or consummate some transaction within the forum or perform
some act by which the defendant purposefully avails itself of the privilege
of conducting activities in the forum, thereby invoking the benefits and
protection of its laws; 2) the claim must be one which arises out of or
results from the defendant's forum-related activities; and 3) the exercise
of jurisdiction must be reasonable. See Bancroft & Masters, Inc. v.
Augusta National Inc., 223 F.3d 1082 (9th Cir.2000); Panavision Int'l,
L.P. v. Toeppen, 141 F.3d 1316, 1320 (9th Cir.1998); Cybersell, Inc. v.
Cybersell, Inc., 130 F.3d 414, 416 (9th Cir.1997).
[8][9][10] When a nonresident defendant raises
a challenge to personal jurisdiction, the plaintiff bears the burden of
showing that jurisdiction is proper. See Decker Coal Co. v. Commonwealth
Edison Co., 805 F.2d 834, 839 (9th Cir.1986). In the context of a motion
to dismiss based upon pleadings and affidavits, the plaintiff may meet
this burden by making a prima facie showing of personal jurisdiction. See
Metropolitan Life Ins. Co. v. Neaves, 912 F.2d 1062, 1064 n. 1 (9th Cir.1990);
Data Disc, 557 F.2d at 1285. In determining whether the plaintiff has made
a prima facie showing, any doubt is resolved in the plaintiff's favor.
See Metropolitan Life, 912 F.2d at 1064 n. 1.
III. DISCUSSION
Yahoo! appropriately does not argue that this Court
has general jurisdiction over Defendants, as Defendants clearly do not
have substantial, continuous or systematic contacts with California. The
Court therefore turns to the question of whether it has specific jurisdiction
over Defendants.
A. Purposeful Availment
[11][12] The purposeful availment requirement is
intended to give notice to a nonresident that it is subject to suit in
the forum state, thereby protecting it from being haled into local courts
solely as the result of "random, fortuitous or attenuated" contacts over
which it had no control. Burger King, 471 U.S. at 476, 105 S.Ct. 2174;
World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559,
62 L.Ed.2d 490 (1980) . Yahoo! asserts that Defendants' conduct meets this
requirement under the "effects test" articulated by the United States Supreme
Court in Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804
(1984) (establishing an "effects test" for intentional action aimed at
the forum state). "Under Calder *1174 personal jurisdiction can be based
upon: '(1) intentional actions (2) expressly aimed at the forum state (3)
causing harm, the brunt of which is suffered--and which the defendant knows
is likely to be suffered--in the forum state.' " Panavision, 141 F.3d at
1321, (quoting, Core-Vent Corp. v. Nobel Industries AB, 11 F.3d 1482, 1486
(9th Cir.1993) ). The Court of Appeals for the Ninth Circuit recently elaborated
on this "effects" standard, holding that in order to satisfy the effects
test a plaintiff must allege that the nonresident defendant "engaged in
wrongful conduct targeted at a plaintiff whom the defendant knows to be
a resident of the forum state." See Bancroft & Masters, 223 F.3d at
1087 (establishing "express aiming" requirement under effects test).
[13] This Court concludes that Yahoo! has made
a sufficient prima facie showing of purposeful availment under the effects
test. Yahoo! alleges that Defendants knowingly have engaged in actions
intentionally targeted at its Santa Clara headquarters for the express
purpose of causing the consequences of such actions to be felt in California,
including 1) LICRA's "cease and desist" letter to Yahoo!'s Santa Clara
headquarters; 2) Defendants' request of the French Court that Yahoo! be
required to perform specific physical acts in Santa Clara (e.g., re-engineering
of its Santa Clara-based servers); and 3) Defendants' utilization of United
States Marshals to effect service of process on Yahoo! in California. Yahoo!
further alleges that the conscious intent of these actions was to compel
it to censor "constitutionally protected content on its U.S.-based Internet
services." See, e.g., Bancroft & Masters, 223 F.3d 1082; Lake v. Lake,
817 F.2d 1416 (9th Cir.1987) (California attorney misrepresented facts
in obtaining ex parte child custody order from California court, which
the attorney then caused to be enforced in Idaho; having "purposefully
directed" the effect in Idaho, the California attorney was subject to suit
there for abuse of process although he never entered state).
Defendants correctly point out that in every Ninth
Circuit decision to date in which the effects test has been applied, the
plaintiff's cause of action has been akin to a tort claim or the defendant's
alleged conduct has been tortious in nature. See Myers v. Bennett Law Offices,
238 F.3d 1068, 1074 (9th Cir.2001) (applying effects test where plaintiff
filed action for alleged violation of the Fair Credit Reporting Act--but
indicating that the particular theory therein was "akin to invasion of
privacy cases under state law- cases ..."); Bancroft & Masters, 223
F.3d at 1089 (applied effects test where plaintiff sought declaratory judgment
of non-dilution and non- infringement of mark; however, concurring opinion,
joined by two out of three panel judges, clarified that they imposed jurisdiction
only on the assumption that the nonresident defendant, through its letter
to plaintiff, "engaged in tortious conduct, i.e., that they intended to
effect a conversion of ... [plaintiff's] domain name."); Panavision, 141
F.3d at 1321 (noting that "[i]n tort cases" jurisdiction can attach under
the effects test and therefore applicable therein because plaintiff's state
and federal trademark dilution claims are "akin to a tort case."); Cybersell,
130 F.3d at 420 (refusing to apply effects test and indicating that effects
test was "with respect to intentional torts directed to plaintiff"); Ziegler
v. Indian River County, 64 F.3d 470, 473-474 (9th Cir.1995) (application
of purposeful availment prong differs depending on whether the underlying
claim is a tort or contract claim; § 1983 claim more akin to tort
claim and thus apply effects test); Caruth v. International Psychoanalytical
Ass'n, 59 F.3d 126, 128, n. 1 (9th Cir.1995) (apply effects test to discrimination
claims because the "facts alleged in [plaintiff] Caruth's *1175 complaint
sound in tort [ ]"); Lake, 817 F.2d 1416 (apply effects test where ex-husband
brought tort action against ex-wife and her attorney based upon conduct
involved in having child removed from ex-husband's custody). [FN3] Defendants
therefore argue that the Court may not apply the effects test in this case
absent allegations of tortious conduct. See Bancroft & Masters, 223
F.3d at 1087 (noting that personal jurisdiction issue can be challenged
again "if following the development of trial it should appear that Augusta
National [who challenged personal jurisdiction] acted reasonably and in
good faith to protect its trademark against an infringer.") (concurring
opinion ); Panavision, 141 F.3d at 1321; Ziegler, 64 F.3d at 473.
FN3. Yahoo! appropriately points out that in several
of the aforementioned cases, as in the instant action, the plaintiffs asserted
claims for declaratory relief. However, even in such cases the court generally
has concluded or assumed that the underlying allegations sounded in tort.
See, e.g., Bancroft & Masters, 223 F.3d at 1089; Panavision, 141 F.3d
at 1321 (concluding that dilution of trademark claim was akin to a tort
case); but see, Meade Instruments Corp. v. Reddwarf Starware LLC, 47 U.S.P.Q.2d
1157, 1998 WL 377041 (C.D.Cal.1998) (concluding that defendant's act of
sending cease in desist letters to plaintiff was sufficient contact with
California without explicitly concluding that the underlying claim sounded
in tort).
[14] This Court concludes, however, that the application
of the effects test in the present case is fully consistent not only with
the rationale of the test but also with traditional principles of personal
jurisdiction and international law. [FN4] While filing a lawsuit in a foreign
jurisdiction may be entirely proper under the laws of that jurisdiction,
such an act nonetheless may be "wrongful" from the standpoint of a court
in the United States if its primary purpose or intended effect is to deprive
a United States resident of its constitutional rights. Several of the cases
discussing the purposeful availment have focused less on the characterization
of the plaintiff's cause of action than on whether the defendant's forum-related
acts evidenced intentional, or at the very least knowing, targeting of
a forum resident(s). See, e.g., Burger King Corp., 471 U.S. at 472-477,
105 S.Ct. 2174; Asahi Metal Industry Co., Ltd. v. Superior Court of California,
Solano County, 480 U.S. 102, 109-113, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987)
(plurality opinion ); Bancroft & Masters, 223 F.3d at 1087. Proper
application of the test thus appears to require consideration not only
of the nature of the defendant's conduct (i.e., whether conduct is wrongful
or tortious) but also of whether there is "express aiming" of the conduct,
i.e., targeting of a forum resident. See, e.g., Sinatra v. National Enquirer,
Inc., 854 F.2d 1191, 1196 (9th Cir.1988); Panavision, 141 F.3d at 1321-1322;
Bancroft & Masters, 223 F.3d at 1087. The focus on evidence of "express
aiming" reflects the basic rationale of the effects test in that it assures
that a defendant is on notice that it may be subject to suit in the forum
state with respect to its forum-related or targeted activities. See Burger
King Corp., 471 U.S. at 472, 105 S.Ct. 2174. In the present case, Yahoo!
*1176 has alleged with particularity that Defendants "purposefully targeted"
its Santa Clara headquarters and thus reasonably could have expected to
be haled into a California forum in order to defend the Order they obtained
from the French Court. [FN5]
FN4. The Court could direct Yahoo! to amend its
complaint so as to allege tort claims, see Caruth, 59 F.3d at 128 n. 1
(applying effects test even though complaint only asserted discrimination
claims because "alleged facts ... could possibly give rise to several tort
claims ..."), but such an approach would be disingenuous. Even though Yahoo!
does not allege per se that Defendants engaged in tortious conduct, the
values which underlie both the effects test and due process clause in general
support a finding of personal jurisdiction here. That the fact pattern
in this case is novel is simply a reflection of the many new challenges
faced by courts which must apply traditional principles to the realities
of cyberspace. See Lawrence Lessig, Reading the Constitution in Cyperspace,
45 Emory L.J. 869 (Summer 1996).
FN5. Obviously, Defendants also reasonably could
have expected to have to appear in a United States court in order to enforce
the French Order. In this instance, Yahoo!'s declaratory relief action
merely reverses the position of the parties while addressing the same issues
which would arise were Defendants to bring such an enforcement action.
The Court is especially mindful that "[g]reat care
and reserve should be exercised when extending our notions of personal
jurisdiction into the international field." Asahi Metal, 480 U.S. at 115,
107 S.Ct. 1026 (quoting United States v. First National City Bank, 379
U.S. 378, 404, 85 S.Ct. 528, 13 L.Ed.2d 365 (1965) (Harlan, J., dissenting
)). Accordingly, the Court looks to the Restatement (Third) of Foreign
Relations Law § 101 et al. (1987) ("Restatement"), which articulates
the limitations imposed by international law upon courts determining whether
or not to exercise personal jurisdiction over a foreign defendant. Although
the Restatement is not binding authority, it does provide valuable guidance.
Adopting in essence a broad version of the effects test, the Restatement
concludes that a court may exercise jurisdiction over a person "if at the
time jurisdiction is asserted ... the person, whether natural or judicial,
had carried on outside the state an activity having a substantial, direct,
and foreseeable effect within the state, but only in respect to such activity."
Restatement (Third) of Foreign Relations Law § 421(2)(j); see also
id., §§ 402(c), 403(2)(a). See, Leasco Data Processing Equipment
Corp. v. Maxwell, 468 F.2d 1326, 1340-1344 (2nd Cir.1972) (applying effects
test in international context); Eskofot A/S v. E.I. Du Pont De Nemours
& Company, 872 F.Supp. 81, 87-88 (S.D.N.Y.1995) ("personal jurisdiction
may be asserted by courts where a foreign corporation, through an act performed
elsewhere, causes an effect in the United States."); United States v. International
Brotherhood of Teamsters, et al., 945 F.Supp. 609, 620 (S.D.N.Y.1996) (noting
that it "is an elementary principle of international law that a court may
exercise jurisdiction over a person" under the effects test) (citing Restatement
§ 421(2)(j) and Restatement (Second) of Conflict of Laws § 50
(1971)); United States v. International Brotherhood of Teamsters, 72 F.Supp.2d
257, 262 (S.D.N.Y.1999) (same); Teresa Schiller and Stephan Wilske, International
Jurisdiction in Cyberspace: Which States May Regulate The Internet?, 50
Fed.CommL.J. 117 (Dec.1997) (noting that while controversies may arise
where the conduct was lawful where carried out the effects test "[a]s a
basis for jurisdiction ... is increasingly accepted.").
B. Arising Out Of
[15] The second element of a specific jurisdiction
analysis is a determination as to whether the plaintiff's claims arise
out of the defendant's forum-related conduct. As to this element, the Court
of Appeals for the Ninth Circuit employs a "but for" test. See Ballard
v. Savage, 65 F.3d 1495, 1500 (9th Cir.1995) . Accordingly, in the present
case Yahoo! must demonstrate that it would have no need for a judicial
declaration but for Defendants' forum-related activities. See Bancroft
& Masters, 223 F.3d at 1088. This requirement is easily met. But for
Defendants' filing and prosecution of the French lawsuit, which in turn
was obtained by Defendants' use of formal process in California, Yahoo!
would have no need for a declaration that the French Order is unenforceable
in the United States. See, e.g., *1177Lake, 817 F.2d at 1423 ("the alleged
injury to the [plaintiff] arose out of [the defendant-lawyer's] acts in
procuring the ex parte order"); Panavision, 141 F.3d at 1322 (defendant's
"registration of Panavision's trademarks as his own domain names on the
Internet had the effect of injuring Panavision in California ... But for
... [defendant's] conduct, this injury would not have occurred."); Bancroft
& Masters, 223 F.3d at 1088 ("But for the letter to NSI, which ...
forced [plaintiff] to choose between this suit and losing the use of its
website, it is clear that [plaintiff] would have no need for a judicial
declaration of its right to use masters.com").
C. Reasonableness
[16][17][18][19] The final requirement for specific
jurisdiction is that the exercise of jurisdiction be reasonable. For the
exercise of jurisdiction to be reasonable it must comport with fair play
and substantial justice. Burger King, 471 U.S. at 476, 105 S.Ct. 2174;
Bancroft & Masters, 223 F.3d at 1088. When purposeful availment has
been established, Defendants have the burden of demonstrating a "compelling
case" of unreasonableness. Bancroft & Masters, 223 F.3d at 1088. "The
reasonableness determination requires the consideration of several specific
factors: (1) the extent of the defendant's purposeful interjection into
the forum state; (2) the burden on the defendant in defending in the forum;
(3) the extent of the 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." Id. No one factor is dispositive
as the Court must balance all seven. Panavision, 141 F.3d at 1322.
1. Purposeful Interjection
"Even if there is sufficient 'interjection' into
the state to satisfy the purposeful availment prong, the degree of interjection
is a factor to be weighed in assessing the overall reasonableness of jurisdiction
under the reasonableness prong." Panavision, 141 F.3d at 1323 (citations
omitted ). Here, Defendants' acts were aimed at Yahoo! in California. Defendants
purposefully accessed Yahoo!'s U.S.-based web site, mailed a demand letter
to Yahoo! in Santa Clara, used U.S. Marshals to serve Yahoo! in Santa Clara,
and purposefully sought and obtained an order requiring Yahoo! to reconfigure
its U.S.-based servers, specifically including servers located in California.
The purposeful interjection factor thus weighs in favor of this Court's
exercise of personal jurisdiction.
2. Defendants' Burden in Litigating
[20] "A defendant's burden in litigating in the
forum is a factor in the assessment of reasonableness, but unless the inconvenience
is so great as to constitute a deprivation of due process, it will not
overcome clear justifications for the exercise of jurisdiction." Id. (citations
omitted ). The Court recognizes that the burden on Defendants as non-profit
organizations organized in France of litigating in California is not trivial.
However, it does not appear that requiring Defendants to litigate this
particular case in California is constitutionally unreasonable. See id.
("in this era of fax machines and discount air travel requiring [defendant]
... to litigate in California is not constitutionally unreasonable.") (citations
omitted ). Defendants may confer with their counsel by telephone, fax,
and e- mail, and under this Court's Local Rules may even make telephonic
court appearances. Further, it is likely that this case will be resolved
largely if not entirely by dispositive motions addressing *1178 issues
of law which do not require extensive fact discovery in this forum. Defendants
have made no factual showing as to the severity of their burden other than
making a generalized reference to the financial expense of participating
in litigation in a foreign country and noting correctly that the jurisdictional
barrier is higher when the defendant is not a resident of the United States.
See Sinatra, 854 F.2d at 1199 ("However, modern advances in communications
and transportation have significantly reduced the burden on litigating
in another country."); Walker & Zanger Ltd. v. Stone Design S.A., 4
F.Supp.2d 931, 940 (C.D.Cal.1997) ("[d]efendants have not asserted any
hardship beyond the expense of participating in litigation in a foreign
country"). Defendants have not demonstrated that the burden of litigating
the instant case will be so great as to constitute a deprivation of due
process.
3. Conflict With Sovereignty of France
Generally, as just noted, a plaintiff seeking to
hale a foreign defendant into court in the United States must meet a "higher
jurisdictional threshold" than is required when a defendant is United States
resident. See Core-Vent Corp., 11 F.3d at 1484. However, since sovereignty
concerns inevitably arise whenever a United States court exercises jurisdiction
over a foreign national, this factor is "by no means controlling," Ballard,
65 F.3d at 1501; otherwise "it would always prevent suit against a foreign
national in a United States court." Gates Learjet Corp. v. Jensen, 743
F.2d 1325, 1333 (9th Cir.1984) . The instant action involves only the limited
question of whether this Court should recognize and enforce a French Order
which requires Yahoo! to censor its U.S.-based services to conform to French
penal law. While this Court must and does accord great respect and deference
to France's sovereign interest in enforcing the orders and judgments of
its courts, this interest must be weighed against the United States' own
sovereign interest in protecting the constitutional and statutory rights
of its residents. See, e.g., Bachchan v. India Abroad Publications Inc.,
154 Misc.2d 228, 585 N.Y.S.2d 661, 665 (1992) (English libel judgment unenforceable
because it was "antithetical to the protections afforded the press by the
U.S. Constitution"); Matusevitch v. Telnikoff, 877 F.Supp. 1 (D.D.C.1995)
(granting summary judgment in favor of plaintiff seeking declaration that
English libel judgment was not enforceable in U.S. because the judgment
was "contrary to U.S. libel standards"); Cal.Civ.Proc.Code § 1713.4(b)(3)
(court need not recognize foreign money judgment based on cause of action
repugnant to public policy of state). For purposes of its jurisdictional
analysis, this Court concludes that the sovereignty factor weighs in favor
of this Court's exercise of personal jurisdiction. [FN6]
FN6. Because Yahoo! is seeking equitable relief,
this determination is without prejudice to Defendants' right to raise issues
related to sovereignty and international comity as an equitable factor
in subsequent proceedings herein.
4. California's Interest in Adjudicating the Dispute
California has an interest in providing effective
legal redress for its residents. See Core-Vent, 11 F.3d at 1489; Sinatra,
854 F.2d at 1200; Gordy v. Daily News, 95 F.3d 829, 836 (9th Cir.1996)
. This interest appears to be particularly strong in this case in light
of Yahoo!'s claim that its fundamental right to free expression has been
and will be affected by Defendants' forum-related activities. See, e.g.,
Cal.Civ.Proc.Code § 425.16 (providing procedural mechanism to dismiss
at an early stage *1179 lawsuits that "chill the valid exercise the constitutional
right[ ] of freedom of speech"). As noted earlier, Defendants argue that
Yahoo! has suffered no actual injury because they have not sought to enforce
the French Order in the U.S. and may never seek to do so. Defendants' proposed
"wait and see" approach, however, only highlights the importance of California's
policy interest in providing a means for obtaining declaratory relief under
circumstances such as those presented here. Many nations, including France,
limit freedom of expression on the Internet based upon their respective
legal, cultural or political standards. Yet because of the global nature
of the Internet, virtually any public web site can be accessed by end-users
anywhere in the world, and in theory any provider of Internet content could
be subject to legal action in countries which find certain content offensive.
[FN7] Defendants' approach would force the provider to wait indefinitely
for a determination of its legal rights, effectively causing many to accept
potentially unconstitutional restrictions on their content rather than
face prolonged legal uncertainty. California's interest in adjudicating
this dispute thus weighs strongly in favor of the exercise of personal
jurisdiction.
FN7. Indeed, there can be little doubt that most
people in the United States, including this Court, find the display and
sale of Nazi propaganda and memorabilia profoundly offensive. However,
while this fact may cause one to sympathize with Defendants' efforts before
the French Court, it is immaterial to this Court's jurisdictional determination.
As Yahoo! and others have pointed out, a content restriction imposed upon
an Internet service provider by a foreign court just as easily could prohibit
promotion of democracy, gender equality, a particular religion or other
viewpoints which have strong support in the United States but are viewed
as offensive or inappropriate elsewhere.
5. Efficient Resolution
This factor focuses on the location of the evidence
and the witnesses. "It is no longer weighed heavily given the modern advances
in communication and transportation." Panavision, 141 F.3d at 1323. In
any event, this factor appears to be neutral in light of the limited amount
of evidence and small number of potential witnesses in the present action.
See id.
6. Convenient and Effective Relief for Plaintiff
This factor focuses on the importance of the forum
to the plaintiff's interest in convenient and effective relief. Yahoo!
contends that only a United States court has jurisdiction to adjudicate
the question of whether the French Order is enforceable in the United States.
Defendants contend that Yahoo! could have challenged the Order's validity,
scope and extraterritorial application in France. The Court concludes that
even if it were to assume that Yahoo! could challenge the extraterritorial
application of the French Order in either jurisdiction or in both, it would
hold that this Court is the more efficient and effective forum in which
to resolve the narrow legal issue in question: whether the French Order
is enforceable in the United States in light of the Constitution and laws
of the United States. See, e.g., Gates, 743 F.2d at 1334 ("district court
in Arizona is more efficient forum to resolve .. interpretations of Arizona
law" than Philippines court). Accordingly, this factor weighs in favor
of exercising jurisdiction.
7. Alternative Forum
The analysis of this factor is identical to that
of the previous one. While the parties disagree as to whether the French
Court offers an alternative forum for determining whether the French Order
is enforceable in the United States, the point is moot in light of the
superiority of a *1180 United States forum for addressing the limited legal
question at issue here.
8. Balancing of Factors
It is clear from the foregoing discussion that
the balance of factors weighs in favor of this Court's exercise of personal
jurisdiction over Defendants. The Court concludes that Defendants have
failed to make the "compelling case" necessary to rebut the presumption
that jurisdiction is reasonable.
IV. DISPOSITION
Accordingly, and good cause therefore appearing,
the motion to dismiss is denied. Defendants shall answer the complaint
within twenty (20) days of the date this Order is filed.
IT IS SO ORDERED.
END OF DOCUMENT
Cabinet d'avocats