DEX SYSTEMS, INC., a California corporation v. Deutsche Post Ag, a German corporation;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DEX SYSTEMS, INC., a California
corporation,
Plaintiff-Appellant,
v.
DEUTSCHE POST AG, a German
corporation; et al.,
Defendants-Appellees.
No. 16-56044
D.C. No.
2:15-cv-03841-JAK-RAO
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
John A. Kronstadt, District Judge, Presiding
Argued and Submitted February 16, 2018
San Francisco, California
Before: BEA and N.R. SMITH, Circuit Judges, and LASNIK,** District Judge.
FILED
MAR 13 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Robert S. Lasnik, United States District Judge for the
Western District of Washington, sitting by designation.

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DEX Systems, Inc. (DEX) appeals the dismissal of its copyright-
infringement claims as well as its other related claims.1 The district court
concluded that DEX failed to establish personal jurisdiction over defendants
Deutsche Post AG (DPAG), Deutsche Post International B.V. (DPI), and DHL
Supply Chain (Netherlands) B.V. (DSC). We reverse in part and affirm in part for
the reasons that follow.
1. The district court erred in dismissing claims against DSC for lack of
personal jurisdiction. To evaluate the sufficiency of an alleged intentional
tortfeasor’s contacts with the forum to establish specific jurisdiction over the
defendant, this court applies a three-element test. See Axiom Foods, Inc. v.
Acerchem Int’l, Inc., 874 F.3d 1064, 1068-69 (9th Cir. 2017). First, the defendant
must have “‘purposefully direct[ed] his activities’ toward the forum.” Id. at 1068
(quoting Dole Food Co. v. Watts, 303 F.3d 1104, 1111 (9th Cir. 2002)). Second,
“the claim must be one which arises out of or relates to the defendant’s forum-
related activities.” Dole Food, 303 F.3d at 1111. Finally, “the exercise of
1 The other claims are Unfair Competition under California law and common
law Equitable Accounting/Constructive Trust. These claims are premised on the
facts underlying the infringement claim. Accordingly, our determination that
personal jurisdiction is proper as to DSC for the intentional infringement claim
warrants similar reinstatement of personal jurisdiction to entertain these additional
claims against DSC.
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jurisdiction must comport with fair play and substantial justice, i.e. it must be
reasonable.” Id. “The plaintiff bears the burden of satisfying the first two prongs of
the test.” Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir.
2004). “If the plaintiff meets that burden, ‘the burden then shifts to the defendant
to present a compelling case that the exercise of jurisdiction would not be
reasonable.’” Axiom Foods, 874 F.3d at 1068-69 (quoting Schwarzenegger, 374
F.3d at 802).
To meet the first element of the Axiom Foods standard, the plaintiff must
show that the defendant “(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.” Mavrix Photo, Inc. v. Brand Techs., Inc., 647 F.3d 1218, 1228
(9th Cir. 2011) (quoting Brayton Purcell LLP v. Recordon & Recordon, 606 F.3d
1124, 1128 (9th Cir. 2010)). Here, DEX alleges that DSC committed intentional
copyright infringement. Accordingly, the parties do not dispute the “intentional
act” prong. See id.
On de novo review, we find sufficient record evidence to establish that
DSC’s allegedly infringing conduct was expressly aimed at and occurred in
California—causing harm DSC knew DEX would suffer in California. Although
the print requests were sent from outside the forum and the ultimate printing
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occurred outside the forum, the allegedly infringing use of DEX’s software
occurred in California on DEX’s servers in Camarillo, California.
Specifically the record establishes the following: (1) DEX’s Camarillo,
California server had to be engaged and used for the software at issue to function
and DSC had knowledge of this fact; (2) DSC sent print requests via VPN to
DEX’s California server causing the software to engage and create output data that
was sent via the VPN connection to DSC’s printers in Venlo, Netherlands; (3) after
the expiration of the license agreement, DSC continued to access DEX’s California
server to activate and use the software on the California server—allegedly
committing an instance of intentional copyright infringement occurring on the
California servers.
Furthermore, that the software was located on DEX’s California server was
not merely a fortuitous occurrence. Cf. World-Wide Volkswagon Corp. v.
Woodson, 444 U.S. 286, 295 (finding no personal jurisdiction where the only
contact with the forum state amounted to the “fortuitous circumstance that a single
Audi automobile, sold [outside the forum to non-forum residents], happened to
suffer an accident while passing through [the forum state]”). Rather, the software
was located on California servers pursuant to an agreement reached by the parties.
DSC and DEX actively set up the California-based VPN to facilitate printing
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following technical difficulties with a primary VPN based in Europe. As agreed by
the parties, DEX’s server, which sent data to and received data from DSC through
the secondary VPN, was located in California, and both the California-based VPN
and the Europe-based VPN continued to be used to transmit print data.
This evidence satisfies the first two elements of the personal jurisdiction
standard in Axiom Foods (minimum contacts and a claim arising from the
contacts). The evidence likewise comports with the Supreme Court’s recent
decision in Walden v. Fiore, 134 S. Ct. 1115 (2014). Where Walden featured an
alleged tort committed against a forum resident outside the forum state, see id. at
1119-20, DSC’s allegedly infringing conduct (illegal use of DEX’s software on the
California server) occurred in the forum state, cf. id. at 1122 (noting that “physical
presence in the forum is not a prerequisite to jurisdiction,” but “physical entry into
the State—either by the defendant in person or through an agent, goods, mail, or
some other means—is certainly a relevant contact”). Though DSC certainly had
limited contacts with California, its contacts include the allegedly tortious conduct
in California that gave rise to DEX’s claims. In such circumstances, limited
contacts are sufficient to create jurisdiction. See Burger King Corp. v. Rudzewicz,
471 U.S. 462, 475 n.18 (1985) (“So long as it creates a ‘substantial connection’
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with the forum, even a single act can support jurisdiction.” (quoting McGee v. Int’l
Life Ins. Co., 355 U.S. 220, 223 (1957))).
Finally, with respect to the reasonableness of jurisdiction, DSC waived any
argument on this issue, because it did not argue the issue before the district court or
in its appellate brief. To the extent DSC has any argument, we find it insufficient to
meet the “compelling case” requirement in Axiom Foods. 874 F.3d at 1068-69
(quoting Schwarzenegger, 374 F.3d at 802). Accordingly, we reverse the district
court’s dismissal of DEX’s claims against defendant DSC.
2. With respect to DPAG and DPI, DEX acknowledged at oral argument that
there is no record evidence to establish that these entities had any contacts with the
forum state. Accordingly, we affirm the district court’s dismissal of all claims
against DPAG and DPI.
3. DEX has not articulated how the district court abused its discretion in
denying DEX’s request to seek jurisdictional discovery from DPAG or DPI.
REVERSED in part and AFFIRMED in part, both parties to bear their
own costs on appeal.
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