NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 6 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
STEPHEN PERRY, an individual, No. 19-55411
Plaintiff-Appellee, D.C. No. 2:18-cv-09543-JFW-SS v.
PHIL BROWN, an individual, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court for the Central District of California John F. Walter, District Judge, Presiding
Argued and Submitted October 18, 2019 Pasadena, California
Before: WARDLAW and HURWITZ, Circuit Judges, and BATAILLON,** District Judge.
Phil Brown appeals the district court’s denial of his anti-SLAPP and Rule
12(b)(2) motions challenging Steve Perry’s California right-of-publicity claims and
the district court’s personal jurisdiction, and the district court’s imposition and
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Joseph F. Bataillon, United States District Judge for the District of Nebraska, sitting by designation. extension of a temporary restraining order (“TRO”). We have jurisdiction under
28 U.S.C. §§ 1291 and 1292(a)(1). We affirm, but remand for the district court to
promptly hold a hearing and issue findings concerning Perry’s request for a
preliminary injunction.
1. Although we generally lack jurisdiction over temporary restraining
orders, “an order that does not possess the essential features of a temporary
restraining order will be treated like a preliminary injunction.” Bennett v.
Medtronic, Inc., 285 F.3d 801, 804 (9th Cir. 2002). The initial ex parte TRO lasted
only 14 days and thus was not appealable. Id. The district court’s three-month
extension in March, however, had a duration six times the length of an ordinary
TRO and was made after notice and briefing in opposition by Brown. It is
therefore appealable. See id.; SEIU v. Nat’l Union of Healthcare Workers, 598
F.3d 1061, 1067 (9th Cir. 2010).
2. In appeals of preliminary injunctions, we have pendent jurisdiction to
review personal jurisdiction properly challenged in the district court. Hendricks v.
Bank of Am., N.A., 408 F.3d 1127, 1134–35 (9th Cir. 2005). The district court did
not err in determining that it had personal jurisdiction over Brown. We apply
California’s long-arm statute permitting jurisdiction to the full extent of the
Constitution. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800–01
(9th Cir. 2004); Cal. Civ. Proc. Code § 410.10. Because the motion was decided
2 on written materials, Perry must put forth only a “prima facie showing of personal
jurisdiction,” and we review the district court’s determination de novo.
Schwarzenegger, 374 F.3d at 800 (quoting Caruth v. Int’l. Psychoanalytical Ass’n,
50 F.3d 126, 128 (9th Cir. 1995)). Specific personal jurisdiction requires
purposeful availment or direction of the defendant’s activities towards the forum;
that the claim relate to the defendant’s forum-related activities; and that the
exercise of jurisdiction be reasonable. Id. at 802. In the tort context, purposeful
direction in turn requires that a defendant “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.” Washington Shoe Co. v. A-Z Sporting
Goods Inc., 704 F.3d 668, 673 (9th Cir. 2012) (quoting Marvis Photo Inc. v. Brand
Techs., Inc., 647 F.3d 1218, 1228 (9th Cir. 2011)).
Perry has established the first two prongs of specific jurisdiction. Brown
purposefully directed his actions at California by targeting Perry, whom he knew to
be a California resident, through the use of Perry’s name and likeness in proximity
to advertisements of Brown’s band and CD. See id. at 677–79. And Brown’s
actions were based on his claimed right to exploit the 1991 works that he
participated in writing and recording with Perry in California, two of which are the
subject of a contract executed in California. These actions “create a substantial
connection with California” that satisfies the requirements of personal jurisdiction.
3 Walden v. Fiore, 571 U.S. 227 (2014); see also Axiom Foods, Inc. v. Acerchem
Int’l, Inc., 874 F.3d 1064, 1070 (9th Cir. 2017).1
Because the first two prongs are satisfied, the burden shifts to Brown to
make “a compelling case” that specific jurisdiction would be unreasonable under a
seven-factor test. Dole Food Co. v. Watts, 303 F.3d 1104, 1114 (9th Cir. 2002)
(quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477 (1985)). We
conclude he has not presented such a case, because the balance of the factors is at
best equivocal. Brown lived for many years in California before moving to
Tennessee and directing his actions toward a California resident. The underlying
works at issue were written and recorded in California and the related contracts
were executed in California. Excepting that Brown is now a Tennessee resident,
nothing about the internet postings makes Tennessee’s location particularly
important to the litigation. Any inconvenience to Brown does not outweigh his
purposeful direction to California and the 1991 California works at issue.
3. The district court did not err in denying Brown’s anti-SLAPP motion to
strike Perry’s California right-of-publicity claims. Brown asserts only affirmative
defenses to the right-of-publicity claims and so bears the burden of proof. Davis v.
1 These actions also constitute “purposeful availment” for the purposes of Perry’s declaratory judgment claim, which would bring with it “pendent personal jurisdiction over any remaining claims that arise out of the same ‘common nucleus of operative facts,’” including here Perry’s other claims. Picot v. Weston, 780 F.3d 1206, 1211 (9th Cir. 2015).
4 Elec. Arts, Inc., 775 F.3d 1172, 1177 (9th Cir. 2015). Because these defenses raise
issues of fact, Brown must establish his defense as a matter of law. Id.; see also
Hilton v. Hallmark Cards, 599 F.3d 894, 910 (9th Cir. 2010).
Here, there is a factual issue as to whether Brown created the false
impression that Perry has endorsed Brown’s band. That issue prevents Brown
from prevailing as a matter of law. See Cher v.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 6 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
STEPHEN PERRY, an individual, No. 19-55411
Plaintiff-Appellee, D.C. No. 2:18-cv-09543-JFW-SS v.
PHIL BROWN, an individual, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court for the Central District of California John F. Walter, District Judge, Presiding
Argued and Submitted October 18, 2019 Pasadena, California
Before: WARDLAW and HURWITZ, Circuit Judges, and BATAILLON,** District Judge.
Phil Brown appeals the district court’s denial of his anti-SLAPP and Rule
12(b)(2) motions challenging Steve Perry’s California right-of-publicity claims and
the district court’s personal jurisdiction, and the district court’s imposition and
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Joseph F. Bataillon, United States District Judge for the District of Nebraska, sitting by designation. extension of a temporary restraining order (“TRO”). We have jurisdiction under
28 U.S.C. §§ 1291 and 1292(a)(1). We affirm, but remand for the district court to
promptly hold a hearing and issue findings concerning Perry’s request for a
preliminary injunction.
1. Although we generally lack jurisdiction over temporary restraining
orders, “an order that does not possess the essential features of a temporary
restraining order will be treated like a preliminary injunction.” Bennett v.
Medtronic, Inc., 285 F.3d 801, 804 (9th Cir. 2002). The initial ex parte TRO lasted
only 14 days and thus was not appealable. Id. The district court’s three-month
extension in March, however, had a duration six times the length of an ordinary
TRO and was made after notice and briefing in opposition by Brown. It is
therefore appealable. See id.; SEIU v. Nat’l Union of Healthcare Workers, 598
F.3d 1061, 1067 (9th Cir. 2010).
2. In appeals of preliminary injunctions, we have pendent jurisdiction to
review personal jurisdiction properly challenged in the district court. Hendricks v.
Bank of Am., N.A., 408 F.3d 1127, 1134–35 (9th Cir. 2005). The district court did
not err in determining that it had personal jurisdiction over Brown. We apply
California’s long-arm statute permitting jurisdiction to the full extent of the
Constitution. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800–01
(9th Cir. 2004); Cal. Civ. Proc. Code § 410.10. Because the motion was decided
2 on written materials, Perry must put forth only a “prima facie showing of personal
jurisdiction,” and we review the district court’s determination de novo.
Schwarzenegger, 374 F.3d at 800 (quoting Caruth v. Int’l. Psychoanalytical Ass’n,
50 F.3d 126, 128 (9th Cir. 1995)). Specific personal jurisdiction requires
purposeful availment or direction of the defendant’s activities towards the forum;
that the claim relate to the defendant’s forum-related activities; and that the
exercise of jurisdiction be reasonable. Id. at 802. In the tort context, purposeful
direction in turn requires that a defendant “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.” Washington Shoe Co. v. A-Z Sporting
Goods Inc., 704 F.3d 668, 673 (9th Cir. 2012) (quoting Marvis Photo Inc. v. Brand
Techs., Inc., 647 F.3d 1218, 1228 (9th Cir. 2011)).
Perry has established the first two prongs of specific jurisdiction. Brown
purposefully directed his actions at California by targeting Perry, whom he knew to
be a California resident, through the use of Perry’s name and likeness in proximity
to advertisements of Brown’s band and CD. See id. at 677–79. And Brown’s
actions were based on his claimed right to exploit the 1991 works that he
participated in writing and recording with Perry in California, two of which are the
subject of a contract executed in California. These actions “create a substantial
connection with California” that satisfies the requirements of personal jurisdiction.
3 Walden v. Fiore, 571 U.S. 227 (2014); see also Axiom Foods, Inc. v. Acerchem
Int’l, Inc., 874 F.3d 1064, 1070 (9th Cir. 2017).1
Because the first two prongs are satisfied, the burden shifts to Brown to
make “a compelling case” that specific jurisdiction would be unreasonable under a
seven-factor test. Dole Food Co. v. Watts, 303 F.3d 1104, 1114 (9th Cir. 2002)
(quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477 (1985)). We
conclude he has not presented such a case, because the balance of the factors is at
best equivocal. Brown lived for many years in California before moving to
Tennessee and directing his actions toward a California resident. The underlying
works at issue were written and recorded in California and the related contracts
were executed in California. Excepting that Brown is now a Tennessee resident,
nothing about the internet postings makes Tennessee’s location particularly
important to the litigation. Any inconvenience to Brown does not outweigh his
purposeful direction to California and the 1991 California works at issue.
3. The district court did not err in denying Brown’s anti-SLAPP motion to
strike Perry’s California right-of-publicity claims. Brown asserts only affirmative
defenses to the right-of-publicity claims and so bears the burden of proof. Davis v.
1 These actions also constitute “purposeful availment” for the purposes of Perry’s declaratory judgment claim, which would bring with it “pendent personal jurisdiction over any remaining claims that arise out of the same ‘common nucleus of operative facts,’” including here Perry’s other claims. Picot v. Weston, 780 F.3d 1206, 1211 (9th Cir. 2015).
4 Elec. Arts, Inc., 775 F.3d 1172, 1177 (9th Cir. 2015). Because these defenses raise
issues of fact, Brown must establish his defense as a matter of law. Id.; see also
Hilton v. Hallmark Cards, 599 F.3d 894, 910 (9th Cir. 2010).
Here, there is a factual issue as to whether Brown created the false
impression that Perry has endorsed Brown’s band. That issue prevents Brown
from prevailing as a matter of law. See Cher v. Forum Int’l, Ltd., 692 F.2d 634,
638–40 (9th Cir. 1982); Montana v. San Jose Mercury News, Inc., 34 Cal. App. 4th
790, 797 (1995).2
4. The district court’s extension of the TRO for three months over Brown’s
objection, without issuing findings of fact and conclusions of law, was
procedurally improper. See Fed. R. Civ. P. 52(a)(2), 65(b)(2); FTC v. Enforma
Nat. Prods., Inc., 362 F.3d 1204, 1212 (9th Cir. 2004). While this appeal was
pending, however, the parties stipulated to extend the TRO and stay the case and
the preliminary-injunction hearing pending this appeal. See Fed. R. Civ. P.
65(b)(2) (allowing the extension of a TRO “for good cause” or when “the adverse
party consents”). We thus remand for a proper hearing on the application for a
2 Brown also makes an argument about Lanham Act fair use, but we lack jurisdiction to consider it. Hallmark Cards, 599 F.3d at 900–01. To the extent Brown seeks to import the Lanham Act test into the California right of publicity context, he cites no authority to do so, and in any event that test carves out an exception for acts that suggest “endorsement by the trademark holder.” Cairns v. Franklin Mint Co., 292 F.3d 1139, 1154 (9th Cir. 2002).
5 preliminary injunction but decline to vacate the TRO in the interim.3
On remand, unless the parties otherwise agree, the district court is instructed
to hold a preliminary-injunction hearing “at the earliest possible time, taking
precedence over all other matters except hearings on older matters of the same
character,” Fed. R. Civ. P. 65(b)(3), and to “state the findings and conclusions that
support its action” on the record, Fed. R. Civ. P. 52(a)(2).
AFFIRMED; REMANDED with instructions. Each party shall bear its own
costs.
3 Normally, a “failure to comply with Rule 52(a) does not require reversal unless a full understanding of the question is not possible without the aid of separate findings.” Enforma Nat. Prods., 362 F.3d at 1212. Here, Brown has waived his challenge to the merits of the injunctive relief issue by failing to brief it. See Padgett v. Wright, 587 F.3d 983, 985 n. 2 (9th Cir. 2009).