Brayton Purcell LLP v. Recordon & Recordon , 575 F.3d 981 ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRAYTON PURCELL LLP, a 
California partnership,
Plaintiff-Appellee,
v.
No. 07-15383
RECORDON & RECORDON, a
California partnership,  D.C. No.
CV-04-04995-EMC
Defendant-cross-claimant-
Appellant, OPINION
v.
APPTOMIX INC.; JONATHAN LEE,
Cross-defendants.

Appeal from the United States District Court
for the Northern District of California
Edward M. Chen, Magistrate Judge, Presiding
Argued and Submitted
October 21, 2008—San Francisco, California
Filed August 5, 2009
Before: Mary M. Schroeder, Dorothy W. Nelson and
Stephen Reinhardt, Circuit Judges.
Opinion by Judge D.W. Nelson;
Dissent by Judge Reinhardt
10389
10392 BRAYTON PURCELL v. RECORDON & RECORDON
COUNSEL
Jacob D. Zamora, Law Office of Jacob D. Zamora, Marys-
ville, California, for the defendant-appellant.
David W. Fermino, Brayton Purcell LLP, Novato, California,
for the plaintiff-appellee.
BRAYTON PURCELL v. RECORDON & RECORDON 10393
OPINION
D.W. NELSON, Circuit Judge:
Recordon & Recordon (“Recordon”) appeals the district
court’s denial of its motion to dismiss for improper venue.1 In
copyright infringement actions, venue is proper “in the district
in which the defendant . . . resides or may be found.” 28
U.S.C. § 1400(a). This circuit interprets this provision to
allow venue in any judicial district where, if treated as a sepa-
rate state, the defendant would be subject to personal jurisdic-
tion. See Columbia Pictures Television v. Krypton Broad. of
Birmingham, Inc., 106 F.3d 284, 289 (9th Cir. 1997), rev’d on
other grounds, Feltner v. Columbia Pictures Television, Inc.,
523 U.S. 340 (1998). Because Recordon & Recordon would
be subject to personal jurisdiction in the Northern District of
California if it were treated as a separate state, we hold that
venue was proper and affirm the decision of the district court.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant Recordon & Recordon (“Recordon”) is a San
Diego-based law firm composed of two attorneys, Kathy R.
Recordon and Stephen G. Recordon. Recordon’s practice is
limited to Southern California; it does not have, nor in the
past did it ever have, any clients in the Northern District of
California (“the Forum”). Recordon does not conduct any
business, own any real or personal property, or maintain a
mailing address or telephone listing in the Forum.
Appellee Brayton Purcell LLP (“Brayton Purcell”) is a law
firm based in Novato, California, located within the Forum.
Brayton Purcell markets itself as a leader in elder abuse law,
with a practice extending throughout California. It maintains
1
Recordon waived its claim for transfer of venue. See FED. R. APP. P.
28(a)(9); Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996).
10394 BRAYTON PURCELL v. RECORDON & RECORDON
an extensive website providing information on its elder abuse
practice, which it copyrighted effective October 7, 2002.
In July 2004, Recordon contracted with Apptomix, Inc., a
web-design company with its principal place of business in
San Diego County, to add an elder law section to Recordon’s
website. Recordon claims this website “was designed for
information only, was passive in nature, and was directed
toward prospective clients located in San Diego County.”
Brayton Purcell discovered Recordon’s website using
“Copyscape,” a tool that scours the internet for unauthorized
use of copyrighted materials. The elder law section of Recor-
don’s website consisted entirely of material copied verbatim
from, and without attribution to, Brayton Purcell’s own web-
site.
Brayton Purcell filed suit against Recordon for copyright
infringement, unfair competition, false advertising, and com-
mon law misappropriation.2 Brayton Purcell alleged that
Recordon “knowingly and purposefully directed their infring-
ing acts to this District, . . . knowing Brayton Purcell is a resi-
dent of this District and would suffer any injuries . . . in this
District.” Brayton Purcell further alleged that Recordon
“made commercial use of Brayton Purcell’s Website and of
the copyrighted material . . . [and] willfully, deliberately and
knowingly used Plaintiff ’s copyrighted work for the purpose
of promoting its business and attracting new business in the
field of elder abuse law, in competition with [Brayton Pur-
cell].”
Recordon filed a motion seeking, alternatively, dismissal
pursuant to Fed. R. Civ. P. 12(b)(2) for lack of personal jurisdic-
tion,3 dismissal pursuant to Fed. R. Civ. P. 12(b)(3) for
2
At a subsequent arbitration, Brayton Purcell dropped all claims except
copyright infringement.
3
The district court accurately noted that Recordon, as a resident of Cali-
fornia, was unquestionably subject to personal jurisdiction in California,
and thus its “motion is more properly characterized as a motion to dismiss
for improper venue rather than for a lack of personal jurisdiction.”
BRAYTON PURCELL v. RECORDON & RECORDON 10395
improper venue, or change of venue under 28 U.S.C.
§ 1404(a). The district court denied Recordon’s motion. After
a settlement conference, the parties agreed to submit to bind-
ing arbitration. The arbitrator found for Brayton Purcell, and
the district court entered judgment in its favor. Recordon has
appealed only the district court’s denial of its motion to dis-
miss for improper venue, not the entry of judgment on the
arbitration award.
II. STANDARD OF REVIEW
A district court’s rulings on personal jurisdiction and venue
are reviewed de novo. See Pebble Beach Co. v. Caddy, 453
F.3d 1151, 1154 (9th Cir. 2006) (personal jurisdiction); Immi-
grant Assistance Project of the L.A. County Fed’n of Labor
v. INS, 306 F.3d 842, 868 (9th Cir. 2002) (venue). Although
the burden is on the plaintiff to demonstrate that the court has
jurisdiction over the defendant, in the absence of an evidenti-
ary hearing, the plaintiff need only make “a prima facie show-
ing of jurisdictional facts to withstand the motion to dismiss.”
Pebble Beach, 453 F.3d at 1154 (internal quotation marks
omitted). Additionally, “uncontroverted allegations in [plain-
tiff ’s] complaint must be taken as true, and conflicts between
the facts contained in the parties’ affidavits must be resolved
in [plaintiff ’s] favor.” Rio Props., Inc. v. Rio Int’l Interlink,
284 F.3d 1007, 1019 (9th Cir. 2002); see also Pebble Beach,
453 F.3d at 1154 (“[F]or the purpose of this [prima facie]
demonstration, the court resolves all disputed facts in favor of
the plaintiff.”).
III. DISCUSSION
[1] In copyright infringement actions, venue is proper “in
the district in which the defendant or his agent resides or may
be found.” 28 U.S.C. § 1400(a). The Ninth Circuit interprets
this statutory provision to allow venue “in any judicial district
in which the defendant would be amenable to personal juris-
diction if the district were a separate state.” Columbia Pic-
10396 BRAYTON PURCELL v. RECORDON & RECORDON
tures Television v. Krypton Broad. of Birmingham, Inc., 106
F.3d 284, 289 (9th Cir. 1997), rev’d on other grounds, Feltner
v. Columbia Pictures Television, Inc., 523 U.S. 340 (1998).
[2] This Court employs a three-prong test to determine
whether a party has sufficient minimum contacts to be suscep-
tible to specific personal jurisdiction:4
(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 rea-
sonable.
Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802
(9th Cir. 2004) (quoting Lake v. Lake, 817 F.2d 1416, 1421
(9th Cir. 1987)). Only the first prong is at issue in this appeal.
[3] The first prong is satisfied by either purposeful avail-
ment or purposeful direction, which, though often clustered
together under a shared umbrella, “are, in fact, two distinct
concepts.” Pebble Beach, 453 F.3d at 1155. “A purposeful
availment analysis is most often used in suits sounding in con-
tract. A purposeful direction analysis, on the other hand, is
most often used in suits sounding in tort.” Schwarzenegger,
4
The district court properly found that Recordon is not subject to gen-
eral personal jurisdiction in the Forum.
BRAYTON PURCELL v. RECORDON & RECORDON 10397
374 F.3d at 802 (internal citations omitted). Here, the underly-
ing action is copyright infringement, which is often character-
ized as a tort. See Columbia Pictures, 106 F.3d at 289(likening willful copyright infringement to an intentional tort).
Purposeful direction is therefore the proper analytical frame-
work in this case. See Schwarzenegger, 374 F.3d at 802.
[4] This court evaluates purposeful direction using the
three-part “Calder-effects” test, taken from the Supreme
Court’s decision in Calder v. Jones, 465 U.S. 783 (1984). See
Schwarzenegger, 374 F.3d at 803. Under this test, “the defen-
dant allegedly must have (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.”
Yahoo! Inc. v. La Ligue Contre Le Racisme Et
L’Antisemitisme, 433 F.3d 1199, 1206 (9th Cir. 2006) (en
banc) (internal quotation marks omitted). There is no require-
ment that the defendant have any physical contacts with the
forum. See Schwarzenegger, 374 F.3d at 803.
1. Intentional Act
In this case, the “intentional act” element is easily satisfied.
This Court “construe[s] ‘intent’ . . . as referring to an intent
to perform an actual, physical act in the real world, rather than
an intent to accomplish a result or consequence of that act.”
Id. at 806. Recordon committed an intentional act when it cre-
ated and posted an elder law section on its website that
infringed Brayton Purcell’s copyright. Cf. id. (placing a news-
paper advertisement was an intentional act); Rio Props., 284
F.3d at 1020 (operating a passive website was an intentional
act); Bancroft & Masters, Inc. v. Augusta Nat’l Inc., 223 F.3d
1082, 1088 (9th Cir. 2000) (sending a letter was an intentional
act).
2. Express Aiming
[5] The second part of the Calder-effects test requires that
the defendant’s conduct be expressly aimed at the forum. See
10398 BRAYTON PURCELL v. RECORDON & RECORDON
Pebble Beach, 453 F.3d at 1156. This court has emphasized
that “ ‘something more’ than mere foreseeability [is required]
in order to justify the assertion of personal jurisdiction,” Sch-
warzenegger, 374 F.3d at 805, and that “something more”
means conduct expressly aimed at the forum, see Pebble
Beach, 453 F.3d at 1156 (“We now conclude that ‘something
more’ is what the Supreme Court described as ‘express aim-
ing’ at the forum state.”) (quoting Bancroft, 223 F.3d at
1087).
[6] It is beyond dispute in this circuit that maintenance of
a passive website alone cannot satisfy the express aiming
prong. See Holland Am. Line Inc. v. Wartsila N. Am., Inc.,
485 F.3d 450, 460 (9th Cir. 2007) (“We consistently have
held that a mere web presence is insufficient to establish per-
sonal jurisdiction.”); Pebble Beach, 453 F.3d at 1158 (“[W]e
reject . . . any contention that a passive website constitutes
express[ ] aiming.”). It is equally clear, however, that “operat-
ing even a passive website in conjunction with ‘something
more’—conduct directly targeting the forum—is sufficient to
confer personal jurisdiction.” Rio Props., 284 F.3d at 1020.
Thus, regardless whether a case involves the internet, the
question remains whether the defendant’s conduct was
expressly aimed at the forum.
[7] “Express aiming is a concept that in the jurisdictional
context hardly defines itself.” Bancroft, 223 F.3d at 1087.
This much, however, is clear: “the [express aiming] require-
ment is satisfied when the defendant is alleged to have
engaged in wrongful conduct targeted at a plaintiff whom the
defendant knows to be a resident of the forum state.” Id.[8] In its complaint, Brayton Purcell alleged that Recordon
engaged in willful copyright infringement targeted at Brayton
Purcell, which Recordon knew to be a resident of the Forum.
Specifically, Brayton Purcell alleged Recordon individually
targeted it by “willfully, deliberately and knowingly” making
“commercial use of Brayton Purcell’s Website,” thereby plac-
BRAYTON PURCELL v. RECORDON & RECORDON 10399
ing Recordon in competition with Brayton Purcell in the field
of elder abuse law. In a supporting affidavit, Brayton Purcell
noted that elder abuse is a growing area of legal specializa-
tion, “and few law firms advertise and hold themselves out as
experts in this field.” Brayton Purcell is a leader in this bur-
geoning speciality, with a practice extending throughout Cali-
fornia. Given the paucity of firms with elder abuse expertise,
any use of the infringing material by Recordon to advertise in
Southern California places Recordon in direct competition
with Brayton Purcell. Prospective clients in Southern Califor-
nia viewing the two firms’ websites are likely to be confused
as to the material’s true author, and some may erroneously
believe Brayton Purcell is the infringing party, harming its
business reputation.
[9] For purposes of plaintiff ’s prima facie jurisdictional
showing, “uncontroverted allegations in . . . [plaintiff ’s] com-
plaint must be taken as true, and conflicts between the facts
contained in the parties’ affidavits must be resolved in . . .
[plaintiff ’s] favor.” Rio Props., 284 F.3d at 1019; see Sch-
warzenegger, 374 F.3d at 800 (“Conflicts between parties
over statements contained in affidavits must be resolved in the
plaintiff ’s favor.”). Taking Brayton Purcell’s allegations and
statements as true, Recordon individually targeted Brayton
Purcell by making commercial use of Brayton Purcell’s copy-
righted material for the purpose of competing with Brayton
Purcell for elder abuse clients. Though Recordon maintained
that its “Elder Law Section . . . was directed toward prospec-
tive clients located in San Diego County,” this does not rebut
Brayton Purcell’s allegation. That Recordon’s prospective cli-
ents reside outside the Forum is irrelevant as long as Recor-
don individually targeted Brayton Purcell, a Forum resident.
Cf. Bancroft, 223 F.3d at 1087-88 (finding specific personal
jurisdiction in California based on a letter sent to Virginia,
because the letter individually targeted a California resident).
Brayton Purcell has thus satisfied its burden of showing that
Recordon expressly aimed its conduct at the Forum by indi-
vidually targeting a known forum resident. See Bancroft, 223
10400 BRAYTON PURCELL v. RECORDON & RECORDON
F.3d at 1087; see also Columbia Pictures, 106 F.3d at 289(“Columbia alleged, and the district court found, that Feltner
willfully infringed copyrights owned by Columbia, which, as
Feltner knew, had its principal place of business in the Central
District. This fact alone is sufficient to satisfy the ‘purposeful
availment’ requirement.”).
[10] This court’s decisions in Pebble Beach and Schwar-
zenegger are not to the contrary. In Pebble Beach, Califor-
nia’s Pebble Beach golf resort sued defendant for trademark
infringement. 453 F.3d at 1154. The defendant operated a bed
and breakfast called “Pebble Beach,” which was “located on
a cliff overlooking the pebbly beaches of England’s south
shore.” Id. at 1153. Defendant maintained a passive website
advertising his business. Id. The “only acts identified by Peb-
ble Beach as being directed at California are the website and
the use of the name ‘Pebble Beach’ in the domain name.” Id.
at 1156. Reaffirming that express aiming is satisfied by indi-
vidualized targeting, the court held that the defendant, by
merely registering and operating a passive informational web-
site, “engaged in no ‘individualized targeting.’ ” Id. at 1157.
Here, in contrast, Recordon has done more than merely main-
tain a passive website. By plagiarizing Brayton Purcell’s web-
site verbatim, Recordon allegedly placed the two law firms in
competition in the area of elder abuse law and created confu-
sion among potential clients as to the true authorship of the
elder abuse material. This individualized targeting distin-
guishes the instant case from Pebble Beach.
[11] In Schwarzenegger, the court held defendant’s use of
Arnold Schwarzenegger’s image in a local Ohio newspaper
insufficient to confer jurisdiction because the advertisement
“was expressly aimed at Ohio rather than California.” 374
F.3d at 807. The court found no individual targeting because
“[t]he Advertisement was never circulated in California, and
. . . [defendant] had no reason to believe that any Californians
would see it.” Id. In contrast, Recordon had every reason to
believe prospective clients in Southern California would see
BRAYTON PURCELL v. RECORDON & RECORDON 10401
the website—indeed, attracting new business was the point.
Recordon also knew its conduct was likely to confuse and
deceive potential clients as to the source of the elder abuse
material. Recordon’s wrongful conduct placed it in direct
competition for elder abuse clients with Brayton Purcell, an
established expert in the field with a practice extending into
Southern California. By thus individually targeting Brayton
Purcell, a known Forum resident, Recordon expressly aimed
its conduct at the Forum. Assuming the dissent is correct that
something more than knowledge of the residence of the plain-
tiff is required for there to be express aiming at the Forum,
such a requirement is satisfied here; the parties are competi-
tors in the same business so that the intentional infringement
will advance the interests of the defendant to the detriment of
the Forum interests of the plaintiff. The express aiming prong
is therefore satisfied.
3. Foreseeable Harm
[12] The final element requires that Recordon’s conduct
caused harm that it knew was likely to be suffered in the
forum. See Yahoo!, 433 F.3d at 1206. The Court in Yahoo!
clarified that this element does not require that the “brunt” of
the harm be suffered in the forum, as some previous cases had
suggested, and that this element may be established even if
“the bulk of the harm” occurs outside the forum. Id. at 1207.
This element is satisfied when defendant’s intentional act has
“foreseeable effects” in the forum. See Bancroft, 223 F.3d at
1087. In this case, it was foreseeable that Brayton Purcell
would be harmed by infringement of its copyright, including
harm to its business reputation and goodwill, and decreased
business and profits. It was also foreseeable that some of this
harm would occur in the Forum, where Brayton Purcell was
known to reside. Indeed, Brayton Purcell specifically alleged
Recordon committed its “infringing acts . . . knowing Brayton
Purcell is a resident of this District and would suffer any inju-
ries from Defendants’ conduct in this District.” Consequently,
10402 BRAYTON PURCELL v. RECORDON & RECORDON
Brayton Purcell has satisfied the third and final element of the
Calder-effects test.
IV. CONCLUSION
[13] In sum, Recordon has satisfied the “purposeful direc-
tion” prong for specific personal jurisdiction. Because the par-
ties did not dispute the remaining two prongs—that Brayton
Purcell’s claim arises out of Recordon’s purposeful direction
and that the exercise of jurisdiction does not offend traditional
notions of fair play and substantial justice—Recordon is sub-
ject to personal jurisdiction in the Northern District of Cali-
fornia. We therefore hold that venue was proper in the
Northern District of California pursuant to 28 U.S.C.
§ 1404(a). The decision of the district court is AFFIRMED.
AFFIRMED
REINHARDT, Circuit Judge, dissenting:
As the majority recognizes, venue in this case was proper
only if Recordon & Recordon “expressly aimed” its conduct
at the Northern District of California. The majority here finds
express aiming based entirely on (1) the foreseeable harm suf-
fered by Brayton Purcell as a result of Recordon & Recor-
don’s passive website, and (2) Recordon & Recordon’s
knowledge of Brayton Purcell’s residence in the Northern
District. In doing so, the majority disregards binding circuit
authority, which establishes that “something more” than the
“foreseeable effect” of an intentional tort committed against
a party known to be a resident of the forum is required to
establish venue. Pebble Beach Co. v. Caddy, 453 F.3d 1151,
1158 (9th Cir. 2006) (internal quotation omitted). Through its
website, Recordon & Recordon sought customers only in the
Southern District of California, Maj. Op. at 10398-99, and its
only link to the Northern District was its knowledge of Bray-
BRAYTON PURCELL v. RECORDON & RECORDON 10403
ton Purcell’s residence. Because Recordon & Recordon’s
website was targeted exclusively at San Diego County, id., its
conduct was clearly not “expressly aimed” at the Northern
District. Pebble Beach, 453 F.3d at 1158. Accordingly, the
“expressly aimed” test was not met, and venue did not lie in
the Northern District.1
I.
The undisputed record here establishes that Recordon &
Recordon limited its legal practice to Southern California.
The firm operated exclusively out of Southern California,
practiced entirely in Southern California, and had never had
any clients or legal work in the Northern District. Likewise,
there is no dispute that the “elder law” material on Recordon
& Recordon’s website was directed toward prospective clients
in Southern California exclusively. See Maj. Op. at 10399. As
the majority recognizes, any confusion or competition result-
ing from Recordon & Recordon’s website involved only
“[p]rospective clients in Southern California.” Id.Under these circumstances, venue was proper in the North-
ern District only if Recordon & Recordon “ ‘(1) committed an
intentional act, (2) expressly aimed at the [Northern District],
(3) causing harm that [Recordon & Recordon] kn[ew] [was]
likely to be suffered in the [Northern District].’ ” Yahoo! Inc.
v. La Ligue Contre le Racisme et L’Antisemitisme, 433 F.3d
1199, 1206 (9th Cir. 2006) (en banc) (quoting Schwarzeneg-
ger v. Fred Martin Motor Co., 374 F.3d 797, 803 (9th Cir.
2004)) (emphasis added). As the majority notes, the second
prong, “express aiming,” requires that Recordon & Recordon
have engaged in “conduct directly targeting the forum.” Maj.
1
The Northern District of California and the Southern District of Cali-
fornia are treated like separate states for the purposes of establishing
venue. Columbia Pictures Television v. Krypton Broad. of Birmingham,
Inc., 106 F.3d 284, 289 (9th Cir. 1997), rev’d on other grounds, Feltner
v. Columbia Pictures Television, Inc., 523 U.S. 340 (1998).
10404 BRAYTON PURCELL v. RECORDON & RECORDON
Op. at 10398 (quoting Rio Props., Inc. v. Rio Int’l Interlink,
284 F.3d 1007, 1019 (9th Cir. 2002). The majority holds that
Recordon & Recordon’s conduct was “targeted” at the North-
ern District of California because it knew that Brayton Purcell
was a resident of that district and it committed an intentional
tort causing foreseeable harm to Brayton Purcell. Specifically,
Recordon & Recordon “willfully, deliberately and knowingly
ma[de] commercial use of” the material developed by Brayton
Purcell. Maj. Op. at 10398. The harm it caused, the majority
reports, was “competition . . . in the field of elder abuse law”
and confusion among “[p]rospective clients.” Id. The compe-
tition and confusion occurred exclusively in the Southern Dis-
trict, and the only fact linking Recordon & Recordon’s actions
to the Northern District was its knowledge of Brayton Pur-
cell’s residence in that district.
Finding “express aiming” in these circumstances is con-
trary to circuit authority, which establishes that express aim-
ing must include “something more” than knowledge of the
plaintiff’s residence and an intentional tort causing harm to
the plaintiff. In Schwarzenegger v. Fred Martin Motor Co.,
for example, the defendant committed an intentional act of
intellectual property infringement, the unauthorized use of
Arnold Schwarzenegger’s photograph in advertisements,
knowing Schwarzenegger to be a Californian. 374 F.3d at
799, 807. That act ultimately caused Schwarzenegger harm.
Id. at 807. Nonetheless, we found no “express aiming”
because the advertisement was directed entirely at Ohio. Id.The court explained,
Fred Martin’s intentional act — the creation and
publication of the Advertisement — was expressly
aimed at Ohio rather than California. The purpose of
the Advertisement was to entice Ohioans to buy or
lease cars from Fred Martin and, in particular, to
“terminate” their current car leases. . . . It may be
true that Fred Martin’s intentional act eventually
caused harm to Schwarzenegger in California, and
BRAYTON PURCELL v. RECORDON & RECORDON 10405
Fred Martin may have known that Schwarzenegger
lives in California. But this does not confer jurisdic-
tion, for Fred Martin’s express aim was local.
Id. (emphasis added). This passage from Schwarzenegger
could not be clearer: Express aiming requires “something
more” than an intentional, tortious act causing harm to a
known resident of a state in order for that state to attain forum
status.
Likewise, in Pebble Beach Co., the defendant maintained
a passive website that infringed upon the trademark of a busi-
ness known to him to be located in California — the Pebble
Beach golf course and resort. 453 F.3d at 1153-54. Following
Schwarzenegger, the court found no “express aiming”
because the website was not directed at California. Id. at
1158. In language directly applicable here, the court
explained, “where the sole basis for [finding express aiming]
is a non-interactive passive website . . . . the fact that [the
defendant’s] website is not directed at [the forum jurisdiction]
is controlling” and precludes a finding that the defendant’s
conduct was expressly aimed at the forum. Id. at 1158.
Pebble Beach and Schwarzenegger establish that knowl-
edge of the plaintiff’s residence and a foreseeable harm to the
plaintiff are, standing alone, insufficient to establish express
aiming; “something more” is required in order for the state of
the plaintiff’s residence to constitute a proper forum. Recor-
don & Recordon’s actions involved “nothing more” than the
maintaining of a non-interactive, passive website targeted at
customers in Southern California with knowledge that the
owner of the material being improperly used lived in Northern
California. Just as the purpose of the advertisement in Sch-
warzenegger was to “entice” individuals in Ohio to buy auto-
mobiles in that state, the purpose of Recordon & Recordon’s
website was to entice potential customers in San Diego
County to purchase Recordon & Recordon’s legal services.
The fact that Recordon & Recordon used a passive website
10406 BRAYTON PURCELL v. RECORDON & RECORDON
rather than a print advertisement to attract customers is of no
consequence: Pebble Beach, relying heavily on Schwarzeneg-
ger, establishes that, with regard to “express aiming,” a pas-
sive, non-interactive website is treated no differently than a
print advertisement. If a website is not directed at customers
in a forum, the defendant’s conduct in maintaining the web-
site is not targeted at that forum. 453 F.3d at 1158. Because
Recordon & Recordon’s website was directed to an audience
entirely outside of Northern California, Pebble Beach and
Schwarzenegger preclude a finding of “express aiming.”2
In its attempt to evade this controlling authority, the major-
ity asserts that Pebble Beach and Schwarzenegger are inappli-
cable because Recordon & Recordon’s website “place[d]
Recordon in direct competition [in Southern California] with
Brayton Purcell” and harmed Brayton Purcell’s business repu-
tation by “creat[ing] confusion among potential clients [in
Southern California] as to the true authorship of the elder
abuse material.” Maj. Op. at 10398, 10400. These conse-
quences of Recordon & Recordon’s actions are nothing more
than the “harm . . . suffered” by Brayton Purcell as a result
of Recordon & Recordon’s actions. Yahoo! Inc., 433 F.3d. at
1206. In relying upon the foreseeable effects of Recordon &
Recordon’s actions to establish express aiming, the majority
conflates two distinct prongs of the test for personal jurisdic-
tion and adopts an approach to the express aiming require-
2
There is some tension between certain language on which the majority
relies from Bancroft & Masters, Inc. v. Augusta Nat’l Inc., 223 F.3d 1082,
1087 (9th Cir. 2000), and Columbia Pictures Television, 106 F.3d at 289,
and our more recent decisions in Pebble Beach and Schwarzenegger.
However, the majority errs by relying on two sentences from the former,
older cases rather than the holdings of the circuit’s latter, more recent
cases. The understanding of “express aiming” articulated in Pebble Beach
and Schwarzenegger was endorsed by the en banc court in Yahoo!, which
relied upon Schwarzenegger extensively, id. at 1205-09, while reading
Bancroft narrowly, 433 F.3d at 1208-09. Schwarzenegger thus represents
the law of the circuit, and if there is any tension between Schwarzenegger
and Bancroft, it must be resolved in favor of Schwarzenegger.
BRAYTON PURCELL v. RECORDON & RECORDON 10407
ment expressly rejected in Pebble Beach. As Pebble Beach
explained, “showing ‘effect’ satisfies only the third prong of
the [ ] test — it is not the ‘something more’ that is required”
to establish express aiming. 453 F.3d at 1160.3
II.
Although the stakes of the particular dispute between Bray-
ton Purcell and Recordon & Recordon are minor, the conse-
quences of the majority’s opinion will be major. By ignoring
the rules established by Schwarzenegger and Pebble Beach
and endorsed by Yahoo!, the majority undermines this cir-
cuit’s recent efforts to bring clarity to the law of specific per-
sonal jurisdiction. Clear rules are important in this area,
because personal jurisdiction is a threshold issue in every law-
suit and the erroneous exercise of personal jurisdiction
deprives all subsequent proceedings of legal effect. Unfortu-
nately, in abandoning the simple and easily applied rule estab-
lished by Schwarzenegger and Pebble Beach, the majority
leaves litigants without any clear principle by which to apply
its new rule that some in-forum effects amount to “express
aiming,” while others do not.
More important, the majority opinion would permit a
defendant who resides in Ohio, Florida, or Maine, thousands
of miles from the Ninth Circuit, to be sued in the Northern
District of California based on nothing more than his knowl-
3
Because Brayton Purcell resides in the Northern District of California,
these effects might be enough to establish that the “harm suffered in the
forum” prong is met in this case, although I am skeptical that harm can
be “suffered in [a] forum” notwithstanding that the tortious conduct and
its consequences — competition for and confusion among customers in
Southern California — both occurred entirely outside the forum. Notably,
Schwarzenegger declined to decide whether the plaintiff’s residence in
California was enough to establish that any harm that resulted from the
defendant’s actions was suffered in that state. 374 F.3d at 807 n.1. I need
not reach that question because, in the absence of “express aiming,” venue
was in any event improper.
10408 BRAYTON PURCELL v. RECORDON & RECORDON
edge that the plaintiff whose intellectual property rights he
allegedly infringed resides in San Francisco. Under the major-
ity’s opinion, every website operator faces the potential that
he will be hailed into far-away courts based upon allegations
of intellectual property infringement, if he happens to know
where the alleged owner of the property rights resides. Due
process and basic principles of fairness prohibit such an
expansive exercise of personal jurisdiction.
Recordon & Recordon had no connection to the Northern
District of California besides its knowledge of Brayton Pur-
cell’s residence there, and its website was targeted entirely at
potential clients in the Southern District. Pebble Beach and
Schwarzenegger are squarely on point and preclude a finding
of express aiming in these circumstances.
I respectfully dissent.