Lizarraga v. Nso Group Technologies Limited

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 8, 2025
• Docket: 24-3463
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 8 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CARLOS DADA; et al., No. 24-2179 D.C. No. Plaintiffs - Appellants, 3:22-cv-07513-JD v. MEMORANDUM* NSO GROUP TECHNOLOGIES LIMITED; Q CYBER TECHNOLOGIES LIMITED,

Defendants - Appellees.

DANIEL LIZARRAGA, No. 24-3463 Plaintiff - Appellant, D.C. No. 3:22-cv-07513-JD and

CARLOS DADA, et al.,

Plaintiffs,

v.

NSO GROUP TECHNOLOGIES LIMITED; Q CYBER TECHNOLOGIES LIMITED,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Appeal from the United States District Court for the Northern District of California James Donato, District Judge, Presiding

Argued and Submitted April 10, 2025 Pasadena, California

Before: BADE and SUNG, Circuit Judges, and SIMON, District Judge.** Dissent by Judge BADE.

Plaintiffs are journalists based in El Salvador who appeal the district court’s

order granting Defendants’ motion to dismiss on forum non conveniens grounds.

Plaintiffs allege that their iPhones were attacked by Pegasus, a spyware system

developed and deployed by Defendants NSO Group Technologies Limited and Q

Cyber Technologies Limited, both of which are incorporated in Israel. We review a

district court’s forum non conveniens dismissal for abuse of discretion. See

Carijano v. Occidental Petroleum Corp., 643 F.3d 1216, 1224 (9th Cir. 2011). We

have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand.

1. When a U.S. citizen sues in their home forum, “there is ordinarily a strong

presumption in favor of the plaintiff’s choice of forum, which may be overcome

only when the private and public interest factors clearly point towards trial in the

alternative forum.” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255 (1981). A U.S.

** The Honorable Michael H. Simon, United States District Judge for the District of Oregon, sitting by designation.

2 resident is “entitled to the same deference as a citizen.” Tuazon v. R.J. Reynolds

Tobacco Co., 433 F.3d 1163, 1177 n.6 (9th Cir. 2006). When the plaintiff is

“foreign” (i.e., not a U.S. citizen or resident), their choice is “entitled to less

deference, but ‘less deference is not the same thing as no deference.’” Carijano,

643 F.3d at 1227 (quoting Ravelo Monegro v. Rosa, 211 F.3d 509, 514 (9th Cir.

2000)). When co-plaintiffs are both domestic and foreign, we apply the domestic

plaintiff standard, and the presence of foreign co-plaintiffs does not “somehow

lessen[]” the “strong presumption in favor of the domestic plaintiff’s choice of

forum.” Id. at 1228. Finally, when a domestic plaintiff sues in a forum where they

do not reside, they are entitled to more deference than a “truly foreign plaintiff

(i.e., someone who is not a [U.S.] citizen or resident),” but “less deference” than if

they were a forum resident. Bos. Telecomms. Grp., Inc. v. Wood, 588 F.3d 1201,

1207 (9th Cir. 2009) (cleaned up).

Here, three Plaintiffs are domestic (one U.S. citizen and two U.S. residents),

but none reside in the chosen forum. The district court abused its discretion by

failing to recognize that it should apply an intermediate level of deference under

such circumstances. See Carijano, 643 F.3d at 1224 (“identifying an incorrect legal

standard” is an abuse of discretion). Instead, after correctly noting that the strong

presumption in favor of a domestic plaintiff’s choice of forum “applies with less

force” when they do not sue in their home forum, the district court described the

3 standard applicable to foreign plaintiffs. Reviewing the order as a whole, it appears

the district court incorrectly determined that it should apply the foreign plaintiff

standard.1

2. “To prevail on a motion to dismiss based upon forum non conveniens, a

defendant bears the burden of demonstrating an adequate alternative forum, and

that the balance of private and public interest factors favors dismissal.” Id. at 1225

(citation omitted). When the plaintiff is a U.S. citizen or resident, the “defendant

must satisfy a heavy burden of proof,” such that “unless the balance is strongly in

favor of the defendant, the plaintiff's choice of forum should rarely be disturbed.”

Bos. Telecomms., 588 F.3d at 1207 (cleaned up).

Here, however, it appears the district court gave little to no deference to

Plaintiffs’ choice of forum, overlooked the allegations of the operative complaint,

and shifted the burden of proof from Defendants to Plaintiffs. For example, in

balancing the relevant factors, the district court reasoned that “Plaintiffs did not

demonstrate that any significant quantum of witnesses or evidence may be located

in this District.” But in their opposition to Defendants’ motion to dismiss, Plaintiffs

highlighted the complaint’s allegations that Defendants facilitated the Pegasus

1 When determining the applicable level of deference, the district court did not acknowledge that Plaintiffs include one U.S. citizen and two U.S. residents. Consequently, we do not know if the district court made a factual or legal error in selecting the incorrect level of deference. Either way, the error was an abuse of discretion. See Carijano, 643 F.3d at 1224.

4 attacks by “creat[ing] Apple ID accounts” and “interact[ing] extensively with

Apple’s U.S.-based servers, many of which are in California.” For another

example, the district court stated that “[P]laintiffs did not explain why a trial here

would be more expeditious and inexpensive than in Israel or elsewhere.” By

shifting the burden from Defendants to Plaintiffs, the district court relied on “an

erroneous view of the law.” Ravelo Monegro, 211 F.3d at 511. Even assuming the

district court was aware of the correct legal standard, it abused its discretion in

applying the standard. See Carijano, 643 F.3d at 1224 (“applying the correct

standard illogically, implausibly, or in a manner without support . . . from . . . the

record” is an abuse of discretion).

Although we have discretion to decide whether to grant Defendants’ motion

to dismiss on forum non conveniens grounds, that determination is normally

“committed to the sound discretion of the trial court.” Piper, 454 U.S. at 257. We

therefore vacate and remand for reconsideration.

VACATED AND REMANDED.2

2 We grant Plaintiffs’ motion to strike because our review is limited to “the original papers and exhibits filed in the district court,” Fed. R. App. P. 10(a)(1), and documents submitted “for the first time on appeal are not part of the record.” Martinez v. Newsom, 46 F.4th 965, 975 (9th Cir. 2022). In addition, the parties shall bear their own costs and fees on appeal.

5 FILED Dada v. NSO Group Technologies Ltd., 24-2179; Lizarraga v. NSO Group JUL 8 2025 Technologies Ltd., 24-3463 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS Bade, Circuit Judge, dissenting:

Plaintiffs are a group of journalists who work for a Salvadorean digital

newspaper. Among them are one U.S. citizen and two U.S. residents, but none of

the Plaintiffs reside in the Northern District of California. Nevertheless, they sued

two Israeli corporations, Defendants NSO Group Technologies Ltd. and Q Cyber

Technologies Ltd., in that district for developing and deploying Pegasus, a spyware

system that allegedly hacked Plaintiffs’ iPhones. The district court dismissed for

forum non conveniens.

The majority concludes that the district court abused its discretion, Maj.

Disp. at 5. I disagree. I would affirm the district court because (1) it correctly

recognized that less deference is owed to Plaintiffs’ choice of forum because

Plaintiffs are not residents of the Northern District of California, (2) Plaintiffs’

allegations that Defendants committed tortious acts in California are speculative,

(3) the district court did not improperly shift the burden to Plaintiffs, and (4) the

Northern District of California is not a convenient forum for this litigation. I

respectfully dissent.

1. The district court accurately observed that Plaintiffs’ choice of forum

is entitled to less deference because the Northern District of California is not their home forum. A domestic plaintiff’s choice of forum is ordinarily entitled to a

“strong” presumption in its favor. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255–

56 (1981). That presumption “applies with less force when the plaintiff or real

parties in interest are foreign,” id. at 266, but it is not lessened “when both

domestic and foreign plaintiffs are present,” Carijano v. Occidental Petroleum

Corp., 643 F.3d 1216, 1228 (9th Cir. 2011). A domestic plaintiff’s choice of

forum is entitled to less deference, however, if the suit is filed in a domestic forum

other than the plaintiff’s home forum. Bos. Telecomms. Grp., Inc. v. Wood, 588

F.3d 1201, 1207 (9th Cir. 2009) (citing Gemini Cap. Grp., Inc. v. Yap Fishing

Corp., 150 F.3d 1088 (9th Cir. 1998)).

The district court’s analysis is consistent with this caselaw. Contrary to the

majority’s assertion, the district court concluded that Plaintiffs’ choice of forum is

entitled to less deference because they are not residents of the Northern District of

California, Bos. Telecomms. Grp., 588 F.3d at 1207, not because they are foreign,

Carijano, 643 F.3d at 1228. There was no reason for the district court to

“acknowledge that Plaintiffs include one U.S. citizen and two U.S. residents,” Maj.

Disp. at 4 n.1, because the district court did not afford less deference to Plaintiffs’

choice of forum on this basis.

2. The district court did not overlook well-pleaded allegations in

Plaintiffs’ First Amended Complaint (FAC) suggesting that Defendants committed

2 tortious acts in California because all such allegations were speculative. Plaintiffs

alleged that Defendants developed their hacking software by accessing servers

owned by Apple, Inc., which is based in Cupertino, California. Plaintiffs alleged,

with no support, that some of those servers were located in California. Elsewhere

in the FAC, they merely suggest that Defendants accessed some of Apple’s U.S.-

based servers, and that many of those servers are in California. To the extent that

Plaintiffs allege that their iPhones were hacked through Apple’s iMessage or

iCloud services, there is no allegation that Apple’s servers in California were

exploited in so doing. And further obscuring matters, Plaintiffs allege that

Defendants own and operate their own network of servers that they used to infect

Plaintiffs’ iPhones.

3. The majority also faults the district court for improperly shifting the

burden of proof to Plaintiffs. But Defendants successfully made a prima facie case

that their relevant witnesses and evidence were in Israel. And it was clear that

Plaintiffs had no connection to the Northern District of California. Because

Defendants had already carried their burden, the district court’s references to

Plaintiffs’ shortcomings do not indicate that it improperly shifted the burden.

Instead, they demonstrate that Plaintiffs had not introduced any evidence to offset

Defendants’ showing.

3 4. The district court did not make the legal errors the majority charges it

with, and it correctly determined that the Northern District of California is not a

convenient forum for this litigation. The “public and private interest factors,” see

Piper Aircraft, 454 U.S. at 257–61, definitively weigh in favor of concluding that

Plaintiffs’ chosen forum is not convenient. Neither Plaintiffs nor Defendants have

any connection to that district. Although Plaintiffs argued on appeal that Apple

may provide relevant witnesses and evidence, they did not make this argument to

the district court, and we should decline to consider it. In re Am. W. Airlines, Inc.,

217 F.3d 1161, 1165 (9th Cir. 2000).

“A forum non conveniens determination is committed to the sound

discretion of the district court.” Lueck v. Sundstrand Corp., 236 F.3d 1137, 1143

(9th Cir. 2001). The district court did not abuse its discretion, and I would affirm

its dismissal for forum non conveniens.