FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LANG VAN, INC., a California No. 19-56452
corporation,
Plaintiff-Appellant, D.C. No.
8:14-cv-00100-
v. AG-JDE
VNG CORPORATION, a Vietnamese
corporation, OPINION
Respondent.
Appeal from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding
Argued and Submitted November 17, 2021
Pasadena, California
Filed July 21, 2022
Before: Jay S. Bybee and Mark J. Bennett, Circuit Judges,
and Joseph F. Bataillon, * District Judge.
Opinion by Judge Bataillon
*
The Honorable Joseph F. Bataillon, United States District Judge
for the District of Nebraska, sitting by designation.
2 LANG VAN V. VNG
SUMMARY **
Personal Jurisdiction/Rule 4(k)(2)
The panel reversed the district court’s dismissal, for lack
of personal jurisdiction, of a copyright infringement suit and
remanded for further proceedings.
In a prior appeal, this court vacated a prior dismissal for
lack of personal jurisdiction and remanded with instructions
that plaintiff Lang Van, Inc., be permitted to undertake
jurisdictional discovery. On remand, the district court
granted defendant VNG Corporation’s renewed motion to
dismiss, finding that there was no specific personal
jurisdiction in California over VNG, a Vietnamese
corporation that released the Zing MP3 mobile music
application in the Apple App Store and the Google Play
store.
In assessing whether Lang Van established a prima facie
case of jurisdiction, the panel analyzed jurisdiction under
Federal Rule of Civil Procedure 4(k)(2), which provides for
jurisdiction over foreign defendants that have ample contacts
with the United States as a whole, but whose contacts are so
scattered among states that none of them would have
jurisdiction. Under Rule 4(k)(2), the plaintiff must prove:
(1) the claim at issue arises from federal law; (2) the
defendant is not subject to any state’s courts of general
jurisdiction; and (3) invoking jurisdiction upholds due
process. The plaintiff has the burden to show the first two
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
LANG VAN V. VNG 3
prongs, and the burden then shifts to the defendant to show
that application of jurisdiction would be unreasonable.
The panel held that prong 1 was met because the case
involved copyright infringement, a claim under federal law.
Prong 2 was met because VNG asserted that it was not
subject to the personal jurisdiction of any state court of
general jurisdiction in the United States.
The panel held that under prong 3, first, there must be
purposeful activities or transactions with the United States,
with an act that shows defendant purposefully availing itself
of the privileges of doing business in the United States;
second, the claim must arise out of activities that are related
to the United States; and third, the exercise of jurisdiction
must comport with notions of fair play and substantial
justice. There must also be intentional conduct by the
defendant that creates the necessary contacts with the forum.
In actions for claims such as copyright infringement, there
must be purposeful direction under the Calder effects test,
meaning that the defendant must have committed an
intentional act that is aimed at the forum, and caused harm
that the defendant knew would occur in the forum.
The panel concluded that VNG purposefully targeted
American companies and their intellectual property. It
released its Zing MP3 in English to the United States,
contracted with U.S. businesses in conjunction with Zing
MP3, and chose not to geoblock access to Lang Van’s
content on Zing MP3, which would have restricted the use
of Zing MP3 in the United States or elsewhere outside of
Vietnam. VNG thus had substantial contacts with the United
States. The panel concluded that there was substantial
evidence of intentional direction into the United States
4 LANG VAN V. VNG
market, and this evidence clearly supported Rule 4(k)(2)
jurisdiction.
Rejecting VNG’s argument regarding forum non
conveniens, the panel concluded that venue in this case was
not proper in Vietnam.
COUNSEL
Cory A. Baskin (argued), Brandon J. Witkow, and Erin C.
Witkow, Witkow Baskin, Woodland Hills, California, for
Plaintiff-Appellant.
Kelly L. Perigoe (argued), Michael D. Roth, and James A.
Unger, Los Angeles, California; Quyen L. Ta, San
Francisco, California; for Defendant-Appellee.
Megan L. Brown, David E. Weslow, Ari S. Meltzer, and
Adrienne J. Kosak, Wiley Rein LLP, Washington, D.C., for
Amicus Curiae Association of American Publishers, Inc.
John C. Ulin, Troygould PC, Los Angeles, California;
Michael E. Kientzle, Arnold & Porter Kaye Scholer LLP,
Washington, D.C.; for Amicus Curiae Copyright Alliance.
Robert H. Rotstein, Los Angeles, California; J. Matthew
Williams, Washington, D.C.; for Amicus Curiae Motion
Picture Association, Inc.
LANG VAN V. VNG 5
OPINION
BATAILLON, District Judge:
BACKGROUND
In 2014, Lang Van, Inc. (“Lang Van”) filed a copyright
infringement suit against VNG Corporation (“VNG”).
VNG, prior to discovery or answer, moved to dismiss for
lack of personal jurisdiction. The district court granted the
motion on October 8, 2014. On October 11, 2016, the Ninth
Circuit vacated and remanded the action to the district court
with instructions that Lang Van be permitted to undertake
jurisdictional discovery.
On remand from the Ninth Circuit, VNG filed a renewed
motion to dismiss Lang Van’s Second Amended Complaint,
arguing (1) a lack of personal jurisdiction; (2) forum non
conveniens; and (3) failure to state a claim. Senior District
Judge Guilford issued an order granting the motion, finding
there was no specific personal jurisdiction over VNG in
California. The district court found that Lang Van failed to
meet the first prong of the Ninth Circuit’s specific personal
jurisdiction test. The district court did not address the forum
non conveniens and failure to state a claim arguments, nor
did the district court address the issue of long-arm
jurisdiction over VNG under Rule 4(k)(2) of the Federal
Rules of Civil Procedure. VNG appealed, and we reverse.
FACTUAL SUMMARY
Lang Van, a California corporation, is a producer and
distributor of Vietnamese music and entertainment. Lang
Van owns copyrights to more than 12,000 songs and
600 original programs.
6 LANG VAN V. VNG
VNG is a Vietnamese corporation that originally
developed online games but began the Zing MP3 website,
which makes copyrighted music available for download,
worldwide. In 2011, VNG released the Zing MP3 mobile
application (“Apps”) in the Apple App Store, and in 2012,
in the Google Play store.
Lang Van served requests for production and special
interrogatories on September 22, 2017. As of February 14,
2019, VNG had not supplied substantive information or
documents. Subpoenas were also served on Google and
Apple. They complied with the subpoenas and produced
evidence. Lang Van contends these documents show that
VNG intentionally chose to release the Apps into the United
States; consented to California jurisdiction, choice of law,
and venue; and allowed hundreds of thousands of downloads
by Apple iOS users and tens of thousands by app-based users
on Google’s platform.
In addition, VNG sought and received trademark
protection in the U.S. in 2010 for registration of its music-
related services, which was granted; submitted screenshots
of its services in the English language to the United States
Patent and Trademark Office (“USPTO”); created
geotargeted ads; and in 2013, admitted in correspondence
that it had made Lang Van’s songs available for download
on Zing MP3 without Lang Van’s authorization. A former
VNG employee, Phan Duc Khoa (“Khoa”), testified in his
deposition that he uploaded between 125 and 500 albums per
month for VNG. VNG’s 30(b)(6) representative, Nguyen
Con Chinh, likewise testified that VGN did not use
geoblockers to restrict access by U.S. users.
LANG VAN V. VNG 7
STANDARD OF REVIEW
A dismissal for lack of personal jurisdiction is reviewed
de novo. Boschetto v. Hansing, 539 F.3d 1011, 1015 (9th
Cir. 2008). The plaintiff must show that jurisdiction is
proper. Id. Plaintiff need only make a prima facie showing
of jurisdiction. Mavrix Photo, Inc. v. Brand Techs., Inc.,
647 F.3d 1218, 1223 (9th Cir. 2011) (citing Brayton Purcell
LLP v. Recordon & Recordon, 606 F.3d 1124, 1127 (9th Cir.
2010)). To that end, “uncontroverted allegations in the
complaint must be taken as true” and “[c]onflicts between
parties over statements contained in affidavits must be
resolved in the plaintiff’s favor.” Schwarzenegger v. Fred
Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004). The
factual findings underlying the dismissal, however, are
reviewed for clear error. AMA Multimedia, LLC v. Wanat,
970 F.3d 1201, 1207 (9th Cir. 2020).
PARTIES’ POSITIONS
Lang Van contends that personal jurisdiction exists over
VNG, either under minimum contacts specifically directed
at the State of California and/or under long-arm jurisdiction
pursuant to Fed. R. Civ. P. 4(k)(2). 1
1
Fed. R. Civ. P. 4(k)(2) states: (2) Federal Claim Outside State-
Court jurisdiction. For a claim that arises under federal law, serving a
summons or filing a waiver of service establishes personal jurisdiction
over a defendant if:
(A) the defendant is not subject to jurisdiction in any
state’s courts of general jurisdiction; and
(B) exercising jurisdiction is consistent with the
United States Constitution and laws.
8 LANG VAN V. VNG
VNG argues there is no evidence of intentional acts
directed at California or the United States in this case. See
Calder v. Jones, 465 U.S. 783, 787–89 (1984) (finding
California is both the focal point and where the harm
occurred). It further contends there is no meaningful
evidence submitted by Lang Van to support specific
jurisdiction. VNG asserts there is no evidence of an internal
strategy to target California or the United States; no evidence
that VNG generated revenue outside of Vietnam; no
evidence of advertising contracts with California; and no
specific instances of infringement set forth by Lang Van.
VNG argues that Vietnam is the target market.
Additionally, VNG contends there is no relevant
evidence to support personal jurisdiction because Lang Van
has not demonstrated any downloading, streaming, or other
act of infringement in the forum and “Not all material placed
on the Internet is, solely by virtue of its universal
accessibility, expressly aimed at every [forum] in which it is
accessed.” AMA Multimedia, LLC, 970 F.3d at 1211
(quoting Mavrix Photo, Inc., 647 F.3d at 1231). VNG argues
that there must be something more than a “foreign act with
foreseeable effects in the forum state.” Washington Shoe
Co. v. A–Z Sporting Goods Inc., 704 F.3d 668, 675 (9th Cir.
2012), abrogated on other grounds by Axiom Foods, Inc. v.
Acerchem International, Inc., 874 F.3d 1064 (9th Cir. 2017).
In utilizing Rule 4(k)(2), 2 Lang Van argues the first
factor is met because the claim is clearly federal, as it
involves a copyright infringement; the second factor is
likewise met because VNG is a foreign defendant from
Vietnam, and nothing suggests that it could be subject to
general jurisdiction in a state besides California. See
2
See supra n.1.
LANG VAN V. VNG 9
Holland Am. Line Inc. v. Wartsila N. Am., Inc., 485 F.3d 450,
462 (9th Cir. 2007) (“[A]bsent any statement from . . .
[defendant] that it is subject to the courts of general
jurisdiction in another state, the second requirement of
Rule 4(k)(2) is met.”).
As for the third factor: “The due process analysis under
Rule 4(k)(2) is nearly identical to the traditional personal
jurisdiction analysis with one significant difference: rather
than considering contacts between the [defendants] and the
forum state, we consider contacts with the nation as a
whole.” Holland Am. Line Inc., 485 F.3d at 462 (citing
Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1159 (9th Cir.
2006)). However, once the plaintiff has satisfied the first
two prongs, the burden then shifts to the defendant who must
show that the jurisdiction would be unreasonable.
Washington Shoe Co., 704 F.3d at 672 (citing
CollegeSource, Inc. v. AcademyOne, Inc., 653 F.3d 1066,
1076 (9th Cir. 2011)). The district court did not address the
Rule 4(k)(2) argument, and instead, relied entirely upon
VNG’s use of Walden v. Fiore, 571 U.S. 277 (2014). Since
the district court utilized Walden, not Rule 4(k)(2), it only
considered VNG’s contacts with California and never
addressed whether VNG had purposely directed its activities
toward the United States as a whole. Lang Van asserts this
constitutes reversible error. See Bradford Co. v. Conteyor
N. Am., Inc., 603 F.3d 1262, 1272 (Fed. Cir. 2010) (finding
legal error where district court “failed to analyze
[defendant’s] contacts with the United States as a whole
[under Rule 4(k)(2)] and imposed an improper burden on the
plaintiff.”).
VNG argues that the Ninth Circuit recently determined
that specific jurisdiction under Fed. R. Civ. P. 4(k)(2) of a
copyright action concerning an interactive website did not
10 LANG VAN V. VNG
exist. AMA Multimedia, LLC, 970 F.3d at 1212 (affirming
the dismissal for lack of 4(k)(2) specific jurisdiction). In the
case at hand, argues VNG, music was uploaded in Vietnam
on Vietnamese services to be used primarily by Vietnamese
people residing in Vietnam. Additionally, “[d]iscovery
demonstrated that only 0.2% of Zing website sessions, 0.3%
of sessions on the Android App, and 1.1% of sessions on the
iOS App originated in California. Even aggregating data for
the United States as a whole, only 1.15% of sessions on the
Website, 0.85% of sessions on the Android App, and 4.04%
of sessions on the iOS App originated in the United States.”
Further, VNG contends that it received no revenue for Zing
MP3 from California or the United States during the pre-
January 22, 2014, time period.
Lang Van disagrees that AMA Multimedia is applicable
here, as that case only considered whether one particular
website provided jurisdiction and argues the Court must look
to the total sum of the business contacts to see if there is “fair
warning that a particular activity may subject [it] to the
jurisdiction of a foreign sovereign.” Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 472 (1985) (citation omitted).
Lang Van asserts the Court must look at the aggregate
contacts to determine purposeful direction under Rule
4(k)(2). Pebble Beach Co., 453 F.3d at 1158; see also UMG
Recordings, Inc. v. Kurbanov, 963 F.3d 344, 354 (4th Cir.
2020), cert. denied, 141 S. Ct. 1057 (2021) (holding that
even if relevant facts, considered individually, are
insufficient to confer personal jurisdiction, the same facts,
considered cumulatively, can render a defendant subject to
personal jurisdiction).
LANG VAN V. VNG 11
ANALYSIS
VNG contends that it is not subject to personal
jurisdiction in any state’s courts of general jurisdiction.3
Accordingly, when assessing whether Lang Van has
established a prima facie case of jurisdiction, the Court will
analyze jurisdiction under Fed. R. Civ. P. 4(k)(2). See
Holland Am. Line, Inc., 485 F.3d at 461 (“If . . . the
defendant contends that he cannot be sued in the forum state
and refuses to identify any other where suit is possible, then
the federal court is entitled to use Rule 4(k)(2).” (quoting ISI
Int’l, Inc. v. Borden Ladner Gervais LLP, 256 F.3d 548, 551
(7th Cir.), as amended (July 2, 2001))).
A. Jurisdiction under Rule 4(k)(2)
Rule 4(k)(2) was established in “respon[se] to the
Supreme Court’s suggestion that the rules be extended to
cover persons who do not reside in the United States, and
have ample contacts with the nation as a whole, but whose
contacts are so scattered among states that none of them
would have jurisdiction.” ISI Int’l, Inc., 256 F.3d at 551
(citing Omni Cap. Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S.
97, 111 (1987)); see also Fed. R. Civ. P. 4(k)(2) advisory
committee’s note to 1993 amendment.
3
The district court determined that VNG did not waive its right to
object to personal jurisdiction. Lang Van argues that VNG has
participated in this trial, discovery, hired attorneys, issued subpoenas,
and participated in mediation. VNG argued a number of issues on the
merits, and then challenged the Court’s personal jurisdiction. However,
although VNG appears to have been dilatory in the discovery responses
on remand, in the context of this jurisdictional dispute it does not appear
to rise to the level of waiver.
12 LANG VAN V. VNG
Accordingly, Rule 4(k)(2) uses virtually the same
analysis as the Calder effects test for traditional state court
personal jurisdiction, see 465 U.S. at 788–90, but the Court
looks at the nation as a whole when reviewing contacts.
Under Rule 4(k)(2), the plaintiff must prove: (1) the claim at
issue arises from federal law; (2) the defendants are not
subject to any state’s courts of general jurisdiction; and
(3) invoking jurisdiction upholds due process (namely, that
jurisdiction is not unreasonable). Pebble Beach Co.,
453 F.3d at 1159. The plaintiff has the burden to show the
first two prongs; the burden then shifts to the defendant to
show application of jurisdiction would be unreasonable.
Prong 1: Federal law claim
Under Rule 4(k)(2), the claim at issue must arise from
federal law in order to exercise personal jurisdiction. AMA
Multimedia, LLC, 970 F.3d at 1208. The first prong is met,
as this matter clearly involves copyright infringement, which
is a claim under federal law.
Prong 2: Not subject to state jurisdiction elsewhere
The second prong is also met. “[A]bsent any statement
from . . . [defendant] that it is subject to the courts of general
jurisdiction in another state, the second requirement of Rule
4(k)(2) is met.” Holland Am. Line Inc., 485 F.3d at 462.
Although Lang Van contends that VNG is subject to
personal jurisdiction in California, VNG asserts that it is not
subject to the personal jurisdiction of any state court of
general jurisdiction in the United States. For the sake of our
Rule 4(k)(2) analysis, we accept VNG’s argument that it is
not subject to specific personal jurisdiction in California.
Since no other states have jurisdiction over this claim, and
VNG did not concede that any other state has jurisdiction,
this element is likewise met.
LANG VAN V. VNG 13
Prong 3: Due process
“The due process analysis under Rule 4(k)(2) is nearly
identical to the traditional personal jurisdiction analysis with
one significant difference: rather than considering contacts
between the . . . [defendants] and the forum state, we
consider contacts with the nation as a whole.” Holland Am.
Line Inc., 485 F.3d at 462 (citing Pebble Beach Co.,
453 F.3d at 1159). First, there must be purposeful activities
or transactions with the United States, with an act that shows
defendant purposefully availing itself of the privileges of
doing business in the United States, and thereby invoking the
benefits and protections of its laws; second, the claim must
arise out of activities that are related to the United States;
and third, the exercise of jurisdiction must comport with
notions of fair play and substantial justice. Washington Shoe
Co., 704 F.3d at 672; Int’l Shoe Co. v. State of Wash., Off. of
Unemployment Comp. & Placement, 326 U.S. 310, 316
(1945). There must also be “intentional conduct by the
defendant that creates the necessary contacts with the
forum.” Walden, 571 U.S. at 286. Walden requires the
defendant to have ties to the forum “in a meaningful way,”
apart from simply knowing the plaintiff has ties to the forum.
Id. at 290.
In actions for claims such as copyright infringement,
there must be “purposeful direction” under the “[Calder]
effects test.” Axiom Foods, Inc., 874 F.3d at 1069 (quotation
marks omitted); Calder, 465 U.S. at 787–89. A defendant
must have committed an intentional act that is aimed at the
forum, and caused harm that defendant knew would occur in
the forum. See Axiom Foods, Inc., 874 F.3d at 1069.
Under Rule 4(k)(2), however, once the plaintiff has
satisfied the first two prongs, the burden then shifts to the
defendant to show that the jurisdiction would be
14 LANG VAN V. VNG
unreasonable. Washington Shoe Co., 704 F.3d at 672 (citing
CollegeSource, Inc., 653 F.3d at 1076); see also
Schwarzenegger, 374 F.3d at 802 (citing Lake v. Lake,
817 F.2d 1416, 1421 (9th Cir. 1987)). The facts of this case
demonstrate that jurisdiction is reasonable.
VNG purposefully targeted American companies and
their intellectual property. Khoa, a former employee of
VNG testified that his job entailed sourcing, identifying,
cataloging, and distributing content through Zing MP3
without regard to authorization from content owners,
including Lang Van. According to Khoa’s declaration,
“Lang Van music was among the music that VNG
specifically sought to obtain [for Zing MP3].” VNG offered
over 2,800 of Lang Van’s songs to the public through Zing
MP3 and uploaded over 1,600 of Lang Van’s songs to Zing
MP3.
Although VNG argues its primary audience is in
Vietnam, VNG released its Zing MP3 in English to the
United States. Absent release by VNG, this app was not
available in the United States. Making Zing MP3 accessible
to those living in the United States was purposeful. Zing
MP3 was downloaded more than 320,000 times in the United
States by its mobile users, allowing these users to hold a
voluminous collection of copyrighted material.
In addition, VNG contracted with U.S. businesses in
conjunction with Zing MP3. Likewise, VNG chose not to
geoblock access to Lang Van’s content on Zing MP3 which
would have restricted the use of Zing MP3 in the United
States or elsewhere outside of Vietnam. The First Circuit
has stated that “[i]f a defendant tries to limit U.S. users’
ability to access its website . . . that is surely relevant to its
intent not to serve the United States” and that the “converse
is [also] true,” such that the defendant’s “failure to
LANG VAN V. VNG 15
implement such restrictions, coupled with its substantial
U.S. business, provides an objective measure of its intent to
serve customers in the U.S. market.” Plixer Int’l, Inc. v.
Scrutinizer GmbH, 905 F.3d 1, 9 (1st Cir. 2018). VNG
clearly did not attempt to limit U.S. users’ ability to access
its website, even though deposition testimony indicates that
it had the ability to geoblock users as of 2013, if not earlier.
In AMA Multimedia, which the Court finds to be easily
distinguishable, the customers uploaded the content
themselves. AMA Multimedia, LLC, 970 F.3d at 1210. In
the present case, the defendant uploaded the content. VNG
targeted the United States. VNG did not choose to opt out
of the United States or geoblock the content. VNG thus had
substantial contacts with the United States.
Moreover, VNG was well aware that its practice might
violate U.S. law and, at the very least, affect U.S. interests.
In 2015, VNG sent a letter to the United States Trade
Representative (“USTR”) regarding its contacts with the
United States. It asked USTR to take VNG off the
international list of internet pirates. In this letter, VNG states
that it has “signed license contracts with U.S. studios like
Sony Music and Universal Music to have copyrighted music
streaming on Zing.MP3’s sites.” The letter further states its
understanding of “the importance of working with U.S.
Content Owners. Since 2012, Zing.vn has worked closely
with Content Owners of online streaming and video on
demand services. Zing.vn has worked with U.S. and non-
U.S. companies on resolving specific IP concerns and
improving standards for the protection of Intellectual
Property.” VNG also stated that it “would welcome
opportunities for further cooperation with U.S. Content
Owners and will continue to seek such opportunities.” VNG
admits in this 2015 letter that 10% of its revenue comes from
16 LANG VAN V. VNG
“selling traffic to advertisers” [for] “Western and other
Asian content.” These contacts clearly distinguish the AMA
Multimedia case relied on by VNG.
During the trademark application process, VNG was
asked to show that its brand name was used in commerce in
the United States. In response, VNG sent screenshots in
English to the USPTO. VNG intentionally sought support
from the USTR in 2015 based upon its record “since 2012”
of “signed license contracts” and “cooperation deals” with
“U.S. studios” and its purported “long-term plan of lawful
co-operation with the right holders . . . in the West.”
Two courts have determined that a defendant
“purposefully availed itself of the privilege of conducting
business in the United States by distributing the Infringing
[content] on platforms such as the Google Play store and
Microsoft App store.” Blizzard Ent., Inc. v. Joyfun Inc Co.,
Ltd., No. SACV191582JVSDFMX, 2020 WL 1972284, at
*6 (C.D. Cal. Feb. 7, 2020); Goes Int’l, AB v. Dodur Ltd.,
No. 3:14-CV-05666-LB, 2015 WL 5043296, at *9 (N.D.
Cal. Aug. 26, 2015). VNG failed to geoblock users in the
United States from the Zing MP3 app but did geoblock U.S.
users’ access to certain U.S. studios, such as Universal
Music. This selective geoblocking indicates purposeful
conduct. Further, in 2012, VNG and Lang Van had been
involved in negotiations and communications regarding the
licensing of Lang Van’s content on Zing MP3.
The Court finds that there is substantial evidence of
intentional direction into the United States market. This
evidence clearly supports Rule 4(k)(2) jurisdiction.
Defendant’s position is not only inconsistent but
unreasonable in this regard. Jurisdiction, in accordance with
Rule 4(k)(2), is reasonable given the defendant’s contacts
with the United States, as set forth herein.
LANG VAN V. VNG 17
B. Venue
The Court rejects defendant’s argument regarding forum
non conveniens in Vietnam. VNG argues that the more
appropriate venue is Vietnam and is an alternative to
dismissal of this case. While the district court acknowledged
this argument, it did not specifically address it on the merits.
This Court has “discretion to reach forum non conveniens
even if the district court declined to consider it.” Ranza v.
Nike, Inc., 793 F.3d 1059, 1076 (9th Cir. 2015). VNG
contends that the majority of witnesses and evidence are in
Vietnam, and issues of Vietnamese contracts and copyright
law would be better decided in Vietnam.
Lang Van argues that these claims are without merit. It
is clearly not more convenient for Lang Van, which is a
California corporation, with its principal place of business in
California. Further, Lang Van disagrees that alleged
infringements of U.S. copyrights should be prosecuted in
Vietnam. See Halo Creative & Design Ltd. v. Comptoir Des
Indes Inc., 816 F.3d 1366, 1373 (Fed. Cir. 2016) (“It is
largely for this reason that district courts have routinely
denied motions to dismiss on forum non conveniens grounds
when United States intellectual property rights form the crux
of the dispute.”). Further, in 2018, the International
Intellectual Property Alliance found, with regard to
copyright enforcement, that “[Vietnamese] civil and
criminal courts are not a realistic avenue for copyright
owners . . . . To date, there have been relatively few civil
court actions involving copyright infringement in Vietnam.
The main reasons for this are complicated procedures,
delays, and a lack of certainty as to the expected outcome.
Building IP expertise must be a part of the overall judicial
reform effort.”
* * *
18 LANG VAN V. VNG
The Court finds that venue in this case is not proper in
Vietnam. Copyright cases concerning alleged unlawful
activities purposely directed toward the United States are
more amenable to suit in the United States for the reasons set
forth herein. We reverse and remand for further proceedings
consistent with this opinion.
REVERSED and REMANDED.