FILED
UNITED STATES COURT OF APPEALS
APR 29 2021
FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
HUNGERSTATION LLC, No. 20-15090
Plaintiff-Appellant, D.C. No. 4:19-cv-05861-HSG
Northern District of California,
v. Oakland
FAST CHOICE LLC, DBA Pace;
INSPIRING TRADING APPS LLC, DBA ORDER
Swyft,
Defendants-Appellees.
Before: CHRISTEN and BADE, Circuit Judges, and FEINERMAN,* District
Judge.
The concurrence to the memorandum disposition filed on March 15, 2021 is
amended and filed concurrently with this order. The panel has unanimously voted
to deny the petition for panel rehearing. The petition for panel rehearing (Dkt. 54)
is DENIED. No future petitions for rehearing or rehearing en banc will be
entertained.
*
The Honorable Gary Feinerman, United States District Judge for the
Northern District of Illinois, sitting by designation.
FILED
NOT FOR PUBLICATION
APR 29 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HUNGERSTATION LLC, No. 20-15090
Plaintiff-Appellant, D.C. No. 4:19-cv-05861-HSG
v.
MEMORANDUM*
FAST CHOICE LLC, DBA Pace;
INSPIRING TRADING APPS LLC, DBA
Swyft,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Haywood S. Gilliam, Jr., District Judge, Presiding
Argued and Submitted February 10, 2021
San Francisco, California
Before: CHRISTEN and BADE, Circuit Judges, and FEINERMAN,*** District
Judge.
Amended Partial Concurrence by Judge FEINERMAN
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Gary Feinerman, United States District Judge for the
Northern District of Illinois, sitting by designation.
Plaintiff Hungerstation LLC sued defendants Fast Choice LLC, DBA Pace
(Pace) and Inspiring Trading Apps LLC, DBA Swyft (Swyft) for allegedly
recruiting Hungerstation’s former employees to steal its confidential and
proprietary information. The district court dismissed for lack of personal
jurisdiction. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.1
We review de novo. Boschetto v. Hansing, 539 F.3d 1011, 1015 (9th Cir.
2008). Where, as here, the district court did not hold an evidentiary hearing, we
construe uncontroverted allegations in the complaint as true and resolve any factual
disputes in the plaintiff’s favor. Id. The initial burden is on the plaintiff to make a
prima facie showing of jurisdiction, and if met, the burden shifts to the defendant
to “come forward with a ‘compelling case’” that the assertion of jurisdiction would
be unreasonable. Id. at 1016 (quoting Burger King Corp. v. Rudzewicz, 471 U.S.
462, 477 (1985)).
1. Hungerstation argues on appeal that the district court had personal
jurisdiction pursuant to Federal Rule of Civil Procedure 4(k)(2). Pursuant to Rule
4(k)(2), a district court may assert personal jurisdiction over a defendant if: (1) the
plaintiff’s claim or claims “arise under federal law”; (2) the defendant is “not
1
The parties are familiar with the facts and we recount them only as
necessary to resolve the appeal.
2
subject to the personal jurisdiction of any state court of general jurisdiction”; and
(3) exercising jurisdiction is consistent with the United States Constitution and
laws; in other words, it “must comport with due process.” Pebble Beach Co. v.
Caddy, 453 F.3d 1151, 1159 (9th Cir. 2006). “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, [the court] consider[s] contacts with the nation as a whole.”
Holland Am. Line Inc. v. Wartsila N. Am., Inc., 485 F.3d 450, 462 (9th Cir. 2007).2
The first element is uncontested because Hungerstation brings several claims
that arise under federal statutes.
We next consider whether the defendants are subject to jurisdiction in any
state court of general jurisdiction. This element is also satisfied because neither
Pace nor Swyft identifies a state where they are subject to general jurisdiction. Id.
at 461.
2
“California’s long-arm statute is coextensive with federal due process
requirements, so the jurisdictional analyses under state law and federal due process
are the same.” Mavrix Photo, Inc. v. Brand Techs., Inc., 647 F.3d 1218, 1223 (9th
Cir. 2011) (internal citation omitted). We are not persuaded by Hungerstation’s
argument that jurisdiction is proper under Rule 4(k)(1), because Hungerstation
failed to show that defendants are “subject to the jurisdiction of a court of general
jurisdiction in the state where the district court is located.” Fed. R. Civ. P. 4(k)(1).
3
Finally, we consider whether asserting personal jurisdiction conforms with
due process. This part of our analysis is guided by the minimum contacts test.
Under the three-part inquiry of this test:
(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.
Freestream Aircraft (Bermuda) Ltd. v. Aero Law Grp., 905 F.3d 597, 603 (9th Cir.
2018) (emphasis added) (citation omitted).
The minimum contacts test is cumulative; all steps must be satisfied to
support jurisdiction. See id. at 609. Hungerstation fails to prevail at step one.
Despite Hungerstation’s argument to the contrary, the alleged tortious conduct took
place in Saudi Arabia. Because the conduct “was committed outside the forum,” a
“purposeful direction analysis naturally applies.” Id. at 605. This analysis asks
whether the defendants: (1) committed an intentional act; (2) expressly aimed at
the forum state; (3) that caused harm the defendants knew would likely be suffered
4
in the forum state. Dole Food Co., Inc. v. Watts, 303 F.3d 1104, 1111 (9th Cir.
2002); see also Calder v. Jones, 465 U.S. 783, 790 (1984).
Here, Hungerstation alleges defendants committed intentional acts by
remotely accessing servers containing its confidential source code and proprietary
business information, copying it, and transferring it to servers leased by
defendants. But the complaint does not allege that defendants’ acts were expressly
aimed at the United States; the location of the servers was fortuitous. Our circuit
has never decided that personal jurisdiction is proper over a private foreign entity
solely because that entity engaged in tortious conduct from a location outside of
the United States by remotely accessing servers located in the United States.
Likewise, no authority supports the proposition that the act of using a third-party
company’s server in the United States to host illegally-obtained information,
without more, is sufficient to convey personal jurisdiction. At bottom,
Hungerstation, Pace, and Swyft are competing Saudi Arabian corporations, they do
business exclusively in Saudi Arabia, and they have no employees or property in
the United States. Notably, Hungerstation did not copyright the misappropriated
information until after the alleged tortious conduct had occurred, and even if it had
been copyrighted when it was misappropriated, we have held that a defendant who
infringes a copyright directs his conduct at the location where the economic loss
5
occurs or where the holder of the right is located. Wash. Shoe Co. v. A–Z Sporting
Goods Inc., 704 F.3d 668, 678–79 (9th Cir. 2012), abrogated on other grounds as
recognized by Axiom Foods, Inc. v. Acerchem Int’l, Inc., 874 F.3d 1064, 1070 (9th
Cir. 2017). Here, both of those factors point to Saudi Arabia. Hungerstation’s
allegations fall short of establishing that defendants’ acts were expressly aimed at
the United States.3
Even assuming that Hungerstation were to prevail at minimum contacts step
one (here, purposeful direction), and at minimum contacts step two (that the claims
arise or relate to defendants’ activities in the forum), Hungerstation fails to satisfy
minimum contacts step three because defendants satisfied their burden to “present
a compelling case that the presence of some other considerations would render
jurisdiction unreasonable.” Dole, 303 F.3d at 1114 (quoting Burger King, 471
U.S. at 477. To evaluate reasonableness, we consider seven factors:
(1) [T]he 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;
3
Because we conclude Hungerstation has failed to show defendants’
acts were expressly aimed at the United States, we do not reach the last element of
the effects test: whether Pace and Swyft caused harm that they knew was likely to
be suffered in the forum state.
6
(6) the importance of the forum to the plaintiff’s interest
in convenient and effective relief; and (7) the existence of
an alternative forum.
Freestream, 905 F.3d at 607 (citing Paccar Int’l, Inc. v. Com. Bank of Kuwait,
S.A.K., 757 F.2d 1058, 1064–65 (9th Cir. 1985)).
Here, because Hungerstation is a resident of Saudi Arabia, Pace’s and
Swyft’s contacts with the United States are less significant. Paccar, 757 F.2d at
1065 (concluding where misconduct is “aimed at a nonresident . . . the extent of
[defendants’] purposeful interjection into [the forum] was negligible.”). The
remaining factors also point in defendants’ favor. The percipient witnesses are
located in Saudi Arabia, the documents are mainly in Arabic, and the United
States’ interest in the dispute is diminished because Hungerstation did not
copyright the information until after the alleged theft. Finally, Hungerstation
elected to conduct business exclusively in Saudi Arabia and so we are not
persuaded by Hungerstation’s argument that Saudi Arabia is an inappropriate
forum to resolve disputes arising from its business there.
2. Because we conclude the district court did not err by dismissing the
complaint for lack of personal jurisdiction, we do not reach whether the district
court erred by considering the declaration of Hungerstation’s executive Rakan
Dmairi.
7
AFFIRMED. Plaintiff-appellant to bear costs.
8
FILED
APR 29 2021
Hungerstation LLC v. FastChoice LLC, No. 20-15090 MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FEINERMAN, District Judge, concurring in part and concurring in the judgment:
I would affirm the district court’s judgment solely on the ground that, under
the unusual facts and circumstances of this case, and regardless of the copyright
status of the allegedly misappropriated materials, exercising personal jurisdiction
over the defendants would not comport with traditional notions of fair play and
substantial justice. See Paccar Int’l, Inc. v. Commercial Bank of Kuwait, S.A.K.,
757 F.2d 1058, 1065–66 (9th Cir. 1985).