Nexon Korea Corporation v. Ironmace Co. Ltd.

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 22, 2024
• Docket: 23-35600
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 22 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

NEXON KOREA CORPORATION, a No. 23-35600 Korean Corporation, D.C. No. 2:23-cv-00576-TL Plaintiff-Appellant,

v. MEMORANDUM*

IRONMACE CO. LTD., a Korean corporation; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Western District of Washington Tana Lin, District Judge, Presiding

Argued and Submitted July 8, 2024 San Francisco, California

Before: FRIEDLAND, MENDOZA, and DESAI, Circuit Judges.

Nexon Korea Corporation (“Nexon”) appeals the district court’s dismissal of

this case on forum non conveniens grounds. Nexon sued Ironmace and two of

Nexon’s former employees, Terence Seunghua Park and Ju-Hyun Choi, for

copyright infringement and trade secret misappropriation. According to the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. complaint, after leaving Nexon, the defendants produced and distributed a video

game that infringes on Nexon’s copyrights.

Before Nexon filed this lawsuit, Ironmace began testing the video game on a

game testing platform owned by Valve, a company headquartered in the Western

District of Washington. Nexon sent Valve a takedown notice pursuant to 17 U.S.C.

§ 512(c), alleging that the game infringed on its copyrights. Valve removed the game

from its platform. Three weeks later, Nexon sued Ironmace, Park, and Choi in the

Western District of Washington. Less than a week later, Ironmace issued a counter

notification pursuant to 17 U.S.C. § 512(g), asserting that Valve improperly

removed the game from its platform. As required by the statute, Ironmace consented

to jurisdiction in the Western District of Washington.

Ironmace moved to dismiss the case on forum non conveniens grounds. The

district court granted the motion. In relevant part, it concluded that the notice and

takedown procedures in 17 U.S.C. § 512 do not categorically preclude forum non

conveniens. Nexon timely appealed.

We have jurisdiction under 28 U.S.C. § 1291. We review a dismissal for

forum non conveniens for “clear abuse of discretion.” Vivendi SA v. T-Mobile USA

Inc., 586 F.3d 689, 693–94 (9th Cir. 2009) (quoting Piper Aircraft Co. v. Reyno, 454

U.S. 235, 257 (1981)). We affirm.

Generally, a defendant may move to dismiss based on forum non conveniens

2 in lawsuits for copyright infringement. See Creative Tech., Ltd. v. Aztech Sys. Pte.,

Ltd., 61 F.3d 696, 700–01 (9th Cir. 1995). Nexon argues that Ironmace is precluded

from asserting forum non conveniens because Ironmace filed a counter notification

pursuant to the notice and takedown procedures under 17 U.S.C. § 512. According

to Nexon, Ironmace’s consent to jurisdiction in the Western District of Washington

mandated venue in that district, displacing the doctrine of forum non conveniens

entirely. But the language and purpose of the notice and takedown statute do not

support Nexon’s position.

The statute requires only that a subscriber consent to personal jurisdiction, not

venue. 17 U.S.C. § 512(g)(3)(D) (stating that a proper counter notification must

include “a statement that the subscriber consents to the jurisdiction of Federal

District Court for the judicial district . . . in which the service provider may be

found”). When interpreting a statute, we typically rely on the ordinary meaning of

the words, Leocal v. Ashcroft, 543 U.S. 1, 8–9 (2004), and we presume that Congress

“legislated against the background of our traditional legal concepts,” United States

v. U.S. Gypsum Co., 438 U.S. 422, 437 (1978). Here, the plain text of the statute

speaks only to jurisdiction, which is a distinct concept from venue. SEC v. Ross, 504

F.3d 1130, 1140 n.11 (9th Cir. 2007) (“[T]he question of whether the court can

exercise personal jurisdiction over a party is distinct from the question of whether

venue will properly lie in the court exercising jurisdiction.”).

3 Nexon argues that despite the plain jurisdictional language, we should infer

that Congress intended this language to operate as a consent to venue. But Congress

is capable of enacting venue statutes. See, e.g., 15 U.S.C. § 22; 47 U.S.C. § 33. And

nothing in the text or history of § 512 suggests that Congress inadvertently used

“jurisdiction” when it meant “venue.” See Panama R.R. Co. v. Johnson, 264 U.S.

375, 385 (1924). We thus conclude that the statute means what it says: by submitting

a counter notification, a subscriber consents only to personal jurisdiction. That

consent to jurisdiction does nothing to disrupt the venue-related rule that a defendant

in a copyright infringement suit can move to dismiss based on forum non

conveniens. Creative Tech., Ltd., 61 F.3d at 700–01.

Because a subscriber consents only to personal jurisdiction, Nexon cannot

show that the statute is analogous to the Federal Employers’ Liability Act or the

Jones Act, which both categorically preclude forum non conveniens. See Balt. &

Ohio R.R. Co. v. Kepner, 314 U.S. 44, 49–50 (1941); Zipfel v. Halliburton Co., 832

F.2d 1477, 1486–87 (9th Cir. 1987), amended by 861 F.2d 565 (9th Cir. 1988). Those

statutes supply special venue provisions that mandate venue in the plaintiff’s chosen

forum. Because no similar special venue provision exists here, forum non

conveniens was a permissible ground for dismissal. The district court did not clearly

abuse its discretion by granting the motion to dismiss.

AFFIRMED.