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Ninth Cir. Serves Specific Jurisdiction With Side of Black Eyed Peas

By Robyn Hagan Cain | Last updated on

This case is a jurisdiction doozy.

Brand, an Ohio corporation, operates a popular website called, which asks the tough questions like, "Is Robert Pattinson the sexiest man on the planet?" The site is consistently robbed of journalistic accolades for its hard-hitting reporting on stories like, "Shiloh Jolie-Pitt named most influential infant."

Mavrix is a celebrity photo agency, (read: paparazzi machine), that shoots, sells, and licenses celebrity photographs. It is based in Florida.

In 2008, a Mavrix photographer shot photos of Stacy Ferguson, (aka “Fergie” the Black Eyed Pea, not Fergie, the Duchess of York), and Josh Duhamel while the couple frolicked in the Bahamas. Brand used the photos on its website without paying Mavrix or seeking permission.

Mavrix sued Brand for copyright infringement. In California.

Yes, this is a jurisdiction case, which is decidedly un-sexy. And yes, in its opinion, the Ninth Circuit cites every case you ever read in Civil Procedure. Also un-sexy.

But since the court went to the trouble of explaining that Fergie has sold 56 million records in the last decade and won Grammy awards for hit singles like “My Humps,” we’re going to take this opportunity to support the court’s findings on general and specific jurisdiction with paraphrased lyrics from Fergie and the Peas’ greatest hits.

Let’s get it started.

Mavrix first argued that Brand was subject to general jurisdiction in California because Brand had “continuous and systematic general business contacts” that “approximate[d] physical presence” in the Golden State.

Most of contacts, however, stemmed from maintaining a highly interactive website that was designed by a California firm, viewed by Californians, and did business with California advertisers. Can you imagine the mayhem that would ensue if running a “highly interactive” website was sufficient to justify general jurisdiction? Neither could the Ninth Circuit.

Mavrix just can’t get enough proof of Brand’s contacts, so the court refuses to exercise general jurisdiction.

Easy come. Easy go. Now we on top … of specific personal jurisdiction. Hang on.

Referring to the Supreme Court’s recent decision in J. McIntyre Machinery, Ltd., v. Nicastro, the Ninth Circuit noted that specific jurisdiction is appropriate when there has been purposeful direction.

The court reasoned that, “based on the website’s subject matter, as well as the size and commercial value of the California market, … Brand anticipated, desired, and achieved a substantial California viewer base,” and found that Brand’s actions satisfied the purposeful direction prong of the three-prong specific jurisdiction test.

Now, remember that mayhem we mentioned? It could still happen. The court followed its intuition … broke away from tradition, and quite possibly opened the door for websites to be sued anywhere.

Granted, the Ninth Circuit acknowledged the burden that their conclusion may impose on some popular commercial websites, but it claimed that the alternative substantially undermines a plaintiff’s interests in proceeding with a cause in the plaintiff’s forum of choice.

No, we don’t like it either, but it’s time to be a big girl now, and big girls don’t cry. At least not over personal jurisdiction.

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