United States District Court, N.D. California
ORDER VACATING HEARING AND ORDERING FURTHER BRIEFING
RE: DKT. NO. 37
MARIA-ELENA JAMES United States Magistrate Judge.
matter is currently scheduled for a hearing on August 11,
2016 regarding the motion for default judgment filed by
Nicholas Assef and Lincoln Crowne & Co.
(“Plaintiffs”). Pursuant to Federal Rule of Civil
Procedure 78(b) and Civil Local Rule 7-1(b), the Court finds
this matter suitable for disposition without oral argument
and hereby VACATES the August 11, 2016
hearing; however, the Court orders Plaintiffs to provide
further briefing on the five issues listed below:
Defendant agreed to a forum selection clause when he accepted
Google’s Terms of Service in 2007. Plaintiffs are not
parties to that contract but nonetheless attempt to use the
forum selection clause to support the Court’s exercise
of personal jurisdiction over Defendant in this action.
Plaintiffs cite Scott USA Inc. v. Patregnani, 2015
WL 1736496 (D. Id. Apr. 16, 2015) for the
proposition that courts can use a forum selection clause to
establish a defendant’s consent to their jurisdiction
even though the plaintiff was not a party to the agreement.
See Mot. at 6-7. In that case, however, the Idaho
court found the non-party was bound because it was
“‘closely related’ to the dispute such that
it becomes ‘foreseeable’ that it will be
bound.” 2015 WL 1736496, at *3 (quoting
Manetti-Farrow, Inc. v. Gucci Am., Inc., 858 F.2d
509, 513 (9th Cir. 1988)). Specifically, the Idaho court
found there could “be little doubt that [the third
party] is ‘closely related’ to the dispute
between [plaintiff] and [defendant]. This dispute . . .
arises out of [third party’s] alleged breach of its
credit agreement with [plaintiff, ] which [defendant]
guaranteed. Thus, it is eminently foreseeable that [third
party] would be bound by a forum selection clause that
references [third party] specifically-even if [third party]
was not a signatory to the Personal Guarantee signed by
[defendant.]” Id. Plaintiffs should provide
further legal support for their contention that personal
jurisdiction based on Defendant’s consent exists under
the circumstances here, i.e., where an unrelated third party
uses a forum selection clause as the means to establish
personal jurisdiction over a defendant who agreed to that
clause in a contract with an entity that is not a party to
the present dispute.
establish personal jurisdiction exists under a minimum
contact analysis, Plaintiffs must show Defendant purposefully
directed his activities toward California. See
Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797,
802 (9th Cir. 2004) (tort claims-such as defamation- are
generally analyzed under the “purposeful
direction” test). To determine whether a defendant
“purposefully directs his activities at a forum state,
” courts apply the “effects” test
articulated in Calder v. Jones, 465 U.S. 783 (1984).
See Dole Food Co. v. Watts, 303 F.3d 1104, 1111 (9th
Cir. 2002). The “effects” test requires that the
defendant 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.” Id. In
Walden v. Fiore, 134 S.Ct. 1115, 1123-24 (2014), the
Supreme Court revisited personal jurisdiction and the
Calder test, and clarified that the relevant inquiry
was the defendant’s contact with the forum,
not with plaintiff: “mere injury to a forum resident is
not a sufficient connection to the forum” to establish
minimum contact exists. Courts must look to defendant’s
contacts with the forum state itself, not with the persons
who reside there. Plaintiffs should clarify why they believe
Defendant purposefully directed his activities at California,
particularly as Plaintiffs are Australian residents and the
blog at issue here does not appear connected to California in
any manner besides being hosted by Google.
Ninth Circuit courts apply state law to determine whether the
speech at issue is defamatory. Lee Myles Assocs. Corp.,
v. Paul Rubke Enters., 557 F.Supp.2d 1134, 1139 (S.D.
Cal. 2008). Under California law, the elements of defamation
are: “(a) a publication that is (b) false, (c)
defamatory, and (d) unprivileged, and that (e) has a natural
tendency to injure or that causes special damage.”
Kechara House Buddhist Ass’n Malaysia v. Does,
2015 WL 5538999, at *4 (N.D. Cal. Sept. 18, 2015). To make a
prima facie defamation case, Plaintiffs bear the burden of
establishing each element, but Plaintiffs have not addressed
whether the blog statements are unprivileged. “One
potential issue is the First Amendment. . . . In the context
of default judgment for alleged defamation on gripe sites,
the situation is not just about notice pleading and service
on a defaulting defendant. It necessarily implicates whether
the allegations establish a claim at all because some speech
is protected by the First Amendment. The analysis turns on
what the speech is.” Wilens v. Doe Defendant No.
1, 2015 WL 4606238, at *15 (N.D. Cal. July 31, 2015).
Why is the speech at issue here unprivileged?
court may deny a motion for default judgment where a statute
of limitations defense is apparent on the face of the
complaint. Joe Hand Promotions, Inc. v. Tu Minh
Nguyen, 2011 WL 1642306, at *2 (N.D. Cal. May 2, 2011)
(citations omitted). The Complaint alleges Defendants posted
the Blog in 2007 and Plaintiffs discovered it the same year.
Compl. ¶ 14. For purposes of the statute of limitations,
the Ninth Circuit has held that the publication date of a
webpage is the date the allegedly defamatory statements were
first posted. See Roberts v. McAfee, Inc., 660 F.3d
1156, 1167 (9th Cir. 2011). Under California law, the statute
of limitations for defamation is one year. Cal. Civ. Proc.
Code § 340. Plaintiffs filed this action in 2015. Is a
statute of limitations defense to the defamation claim not
apparent on the face of the complaint?
Plaintiffs’ motion for default judgment is granted, how
could a court order Google, Inc.-a non-party to this
action-to remove the offending blog or transfer ownership of
the blog to Plaintiffs?
supplemental brief shall be no longer than eight pages and
shall be filed no later than August 22, 2016. Upon receipt of
Plaintiffs’ additional ...