NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 24 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
AMA MULTIMEDIA, LLC, a Nevada No. 18-17117
limited liability company,
D.C. No. 2:16-cv-01269-DGC
Plaintiff-Appellant,
v. MEMORANDUM*
SAGAN LIMITED, a Republic of
Seychelles company, individually and DBA
Porn.com; CYBERWEB LTD., formerly
MXN LTD., a Barbados company,
individually and DBA Porn.com;
NETMEDIA SERVICES, INC., a Canadian
company, individually and DBA Porn.com;
GLP 5, INC., a Michigan company,
individually and DBA Trafficforce.com, and
DAVID KOONAR, an individual,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
Argued and Submitted March 06, 2020
Phoenix, Arizona
Before: CLIFTON, OWENS and BENNETT, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
1
Plaintiff-Appellant AMA Multimedia, LLC appeals the district court’s order
granting Defendants-Appellees’ motion to dismiss based on forum non conveniens.
We have jurisdiction under 28 U.S.C. § 1291 and review “[t]he district court’s
decision to enforce a forum selection clause . . . for abuse of discretion.” Murphy v.
Schneider Nat’l, Inc., 362 F.3d 1133, 1137 (9th Cir. 2004). We reverse.
The district court abused its discretion in concluding Defendants were
“transaction participants” and could benefit from the forum selection clause. We
must affirm a “district court determination that falls within a broad range of
permissible conclusions, provided the district court did not apply the law
erroneously.” Kode v. Carlson, 596 F.3d 608, 612 (9th Cir. 2010). Here, the district
court incorrectly applied the law.
The district court correctly identified the legal rule: Defendants, as non-
parties, could enforce the forum selection clause if their alleged conduct was
“closely related to the contractual relationship” between AMA and GIM
Corporation. Mannetti-Farrow, Inc. v. Gucci Am., Inc., 858 F.2d 509, 514 n.5 (9th
Cir. 1988). But the district court did not apply this rule. It focused solely on the
relationship between Defendants and the Content Partner Revenue Sharing
Agreement (“CPRA”), instead of focusing on Defendants’ conduct: (1)
“Defendants have standing to enforce the CPRA’s forum selection clause because
they are closely related to the contractual relationship between AMA and GIM”;
2
(2) “The evidence in this case, even when construed in AMA’s favor, shows that
Defendants are so closely related to the contractual relationship . . .”; (3) “In short,
there can be no doubt that Defendants are all closely related to the contractual
relationship . . .”; and (4) “In summary, the Court finds that Defendants have
standing to enforce the CPRA’s forum selection clause. They are closely related to
the contractual relationship between AMA and GIM . . . .”
The district court should have analyzed whether Defendants’ alleged
conduct was “closely related” to the CPRA—the contractual relationship between
AMA and GIM. Only then could Defendants have standing to enforce the forum
selection clause under Mannetti-Farrow. See 858 F.2d at 514 n.5; see also Holland
Am. Line Inc. v. Wartsila N. Am., Inc., 485 F.3d 450, 456 (9th Cir. 2007). Because
the district court did not do so, it incorrectly applied the law and abused its
discretion.1 See Kode, 596 F.3d at 612.
We do not reach Defendants’ alternative grounds for enforcing the forum
selection clause, including those based on an implied license, agency relationships,
or third-party beneficiary status. Defendants may pursue those theories, as well as
their “transaction participants” theory, on remand.
1
We leave it to the district court to consider in the first instance, on remand,
whether Defendants are in fact “transaction participants” under Mannetti-Farrow.
The district court may conduct an evidentiary hearing to resolve disputed facts. See
Murphy, 362 F.3d at 1139-40.
3
Plaintiff in turn may challenge on remand whether the CPRA’s forum
selection clause applies to AMA’s copyright claims and is otherwise valid and
enforceable.2
REVERSED and REMANDED.
2
Contrary to the district court’s conclusion, this finding was not left undisturbed
on appeal. This court simply never reached the issue.
4