Case 2:21-cv-09423-AB-GJS Document 61 Filed 03/14/22 Page 1 of 19 Page ID #:574
`
`KELLY M. KLAUS (State Bar No. 161091)
`kelly.klaus@mto.com
`JOHN L. SCHWAB (State Bar No. 301386)
`john.schwab@mto.com
`MICA L. MOORE (State Bar No. 321473)
`mica.moore@mto.com
`MUNGER, TOLLES & OLSON LLP
`350 South Grand Avenue
`Fiftieth Floor
`Los Angeles, California 90071-3426
`Telephone: (213) 683-9100
`Facsimile:
`(213) 687-3702
`Attorneys for Netflix, Inc.
`
`REDACTED VERSION
`OF DOCUMENT
`PROPOSED TO BE
`FILED UNDER SEAL
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION
`
`HOLLYWOOD INNOVATIONS
`GROUP LLC,
`Plaintiff,
`
`vs.
`NETFLIX, INC., a Delaware
`Corporation, ZIP CINEMA CO. LTD.,
`a South Korean Corporation, KAKAO
`ENTERTAINMENT CORP., a South
`Korean Corporation, PERSPECTIVE
`PICTURES CO. LTD, a South Korean
`Corporation, and Does 1-10, inclusive,
`Defendants.
`
`Case No. 2:21-cv-9423
`DEFENDANT NETFLIX, INC.’S
`REPLY IN SUPPORT OF MOTION
`TO DISMISS COMPLAINT
`Judge: Hon. André Birotte Jr.
`Date: March 25, 2022
`Time: 10:00 a.m.
`Ctrm: 7B
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`DEFENDANT NETFLIX, INC.’S REPLY I/S/O MOTION TO DISMISS
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`Case 2:21-cv-09423-AB-GJS Document 61 Filed 03/14/22 Page 2 of 19 Page ID #:575
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`TABLE OF CONTENTS
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`I.
`II.
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`Page
`INTRODUCTION ............................................................................................. 1
`ARGUMENT .................................................................................................... 3
`A.
`The Opposition Confirms That HIG Does Not And Cannot
`Plausibly Allege Netflix Infringed Any Right That HIG Acquired
`From Naylor ............................................................................................ 3
`1.
`Netflix May Raise, And The Court May Consider, The
`Undisputed Text Of Article 99 Of The Korean Copyright
`Act ................................................................................................. 4
`Naylor Did Not Retain The Right To Translate #Saraitda .......... 6
`The
`
`Is N
`Rights And, Even If It Were, HIG’s Claim Would Still
`Fail ................................................................................................ 8
`Any Amendment Would Be Futile ............................................. 12
`4.
`HIG’s Opposition Confirms That, If The Complaint Is Not
`Dismissed Under Rule 12(b)(6), It Should Be Dismissed For
`Forum Non Conveniens Or Under Rule 19(b) ...................................... 12
`1.
`Both Private And Public Factors Favor Dismissal For
`Forum Non-Conveniens.............................................................. 13
`The Korean Defendants And Lotte Entertainment Are
`Indispensable Parties Because HIG Is Seeking To
`Invalidate Their Contractual Rights ........................................... 14
`III. CONCLUSION ............................................................................................... 15
`
`2.
`3.
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`2.
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`B.
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`Case 2:21-cv-09423-AB-GJS Document 61 Filed 03/14/22 Page 3 of 19 Page ID #:576
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`TABLE OF AUTHORITIES
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`Page
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`FEDERAL CASES
`Bassett v. Mashantucket Pequot Tribe,
`204 F.3d 343 (2d Cir. 2000) ................................................................................. 15
`Costello Pub. Co. v. Rotelle,
`670 F.2d 1035 (D.C. Cir. 1981) ............................................................................ 15
`Creative Tech., Ltd. v. Aztech Sys. Pte., Ltd.,
`61 F.3d 696 (9th Cir. 1995) .................................................................................. 13
`de Fontbrune v. Wofsy,
`838 F.3d 992 (9th Cir. 2016) .......................................................................... 2, 5, 6
`Fahmy v. Jay-Z,
`908 F.3d 383 (9th Cir. 2018) .................................................................................. 5
`Gilliam v. ABC,
`538 F.2d 14 (2d Cir. 1976) ............................................................................. 14, 15
`Pizzorno v. Draper,
`No. 17-00182-AB, 2017 WL 4712071 (C.D. Cal. July 7, 2017) ......................... 12
`So v. Land Base, LLC,
`No. CV 08-03336 DDP, 2009 WL 5088745 (C.D. Cal. Dec. 16,
`2009) ....................................................................................................................... 4
`Tierney v. Image Ent., Inc.,
`No. CV-11-1305 DSF, 2012 WL 13008214 (C.D. Cal. Mar. 21,
`2012) ....................................................................................................................... 5
`United States v. A 10th Century Cambodian Sandstone Sculpture,
`No. 12 CIV. 2600(GBD), 2013 WL 1290515 (S.D.N.Y. Mar. 28,
`2013) ....................................................................................................................... 6
`United States v. Ritchie,
`342 F.3d 903 (9th Cir. 2003) .................................................................................. 4
`Vance v. Am. Soc’y of Composers,
`271 F.2d 204 (8th Cir. 1959) ................................................................................ 15
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`TABLE OF AUTHORITIES
`(Continued)
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`FEDERAL STATUTES
`17 U.S.C. § 101 ........................................................................................................ 5, 8
`STATE RULES
`Rule 12(b)(6) .......................................................................................................... 4, 12
`Rule 19 ....................................................................................................................... 14
`Rule 19(b) .............................................................................................................. 2, 12
`Rule 44.1 ...................................................................................................................... 5
`RULES - OTHER
`Fed. R. Civ. P. 19(a)(1)(B) .................................................................................... 2, 14
`OTHER AUTHORITIES
`Korean Copyright Act Article 99 ................................................................... 1, passim
`3 Nimmer on Copyright § 12.02 (2021) ...................................................................... 3
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`I.
`
`INTRODUCTION
`HIG’s Opposition confirms it has no plausible copyright infringement claim
`against Netflix. The reasons for that are indisputable:
`HIG can only assert those rights to the Devour script that Matt Naylor,
`•
`the author and original copyright owner, conveyed to HIG.1
`Specifically excluded from the rights Naylor conveyed to HIG were
`any that were
` Request for
`Judicial Notice (“RJN”) Ex. C (Dkt. 40-2) § 2 (
`
`).
`Korean law governs the Naylor/Zip Agreement. Id. Ex. B (Dkt. 40-1)
`§ 18. Under Article 99 of the Korean Copyright Act, because the
`“author[] [Naylor]” “authorize[d] another person [Zip and Perspective]
`to exploit his/her work [the script] by means of cinematization [making
`#Saraitda],” Naylor’s authorization is “presumed to include” the right
`“to exploit the translation of” the same “cinematographic work
`[#Saraitda].” Chung Decl. Ex. A at 2-3(Dkt. 30-3) .
`The Article 99 presumption applies unless Naylor and Zip-Perspective
`(the “Korean Producers”) “expressly stipulated” that it did not. Id. No
`such express stipulation appears in the Naylor/Zip Agreement.
`HIG tried to distract from the underlying agreements by failing to attach them
`to its Complaint. Now, when confronted with the agreements, HIG throws
`everything at the wall to explain them away. Nothing sticks. For example, HIG
`argues that neither Netflix nor the Court can rely on Article 99 of the Korean
`Copyright Act on this 12(b)(6) motion, Opp. at 9, when Ninth Circuit law provides
`
`•
`
`•
`
`
`1 Naylor’s agreement was with Rabih Aridi. But Mr. Aridi confirms that he is
`HIG’s “sole member and managing member.” Aridi Decl. ¶ 2 (Dkt. 44-6). This
`brief therefore uses “HIG” to include Mr. Aridi and the rights he did (and did not)
`acquire from Naylor.
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`the opposite. de Fontbrune v. Wofsy, 838 F.3d 992, 997 (9th Cir. 2016). HIG also
`claims that Naylor did not give the Korean Producers any right to translate Naylor’s
`script insofar as the script was embodied in the movie. Opp. at 5–6. If that
`argument were correct, then the right to translate the movie that Article 99 provides
`would be meaningless. And HIG argues that, even if Article 99 applies, the
`Naylor/Zip Agreement’s
` provision, RJN Ex. B § 1(a), “expressly
`stipulates” that Naylor was retaining the right to translate #Saraitda. Opp. at 9. The
` says nothing about translation rights or the Article 99
`presumption. But even if the
`were an express stipulation for purposes of Article 99, that would not help HIG: in
`that case, the translation right would have been frozen as between Naylor and the
`Korean Producers, and it would not have been a right that Naylor could have or did
`transfer to HIG. Try as it might, HIG cannot show that it has standing to assert the
`right it claims Netflix infringed. The Complaint must be dismissed.
`HIG’s arguments on forum non conveniens and Rule 19(b) likewise fail.
`HIG’s position is that: (1) it can argue for an interpretation of the Naylor/Zip
`Agreement that does not appear on the face of that Agreement, see Opp. 10–12 &
`Compl. ¶ 15; (2) Netflix has no “standing” to argue the Agreement means what it
`says, Opp. 8; and (3) the parties to that Agreement (who would have “standing”
`under HIG’s view) are not indispensable parties to a lawsuit that poses the question
`of what rights were or were not set forth in that Agreement, Opp. 21–22. But the
`absence of the Korean Producers would very obviously “impair or impede [their]
`ability to protect the interest” they have in their own agreement, making them
`indispensable. Fed. R. Civ. P. 19(a)(1)(B). And the Korean Producers, as well as
`Lotte Entertainment, are based in Korea, whose courts would authoritatively
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`construe Korean law. All relevant public and private factors point toward dismissal
`for forum non conveniens.2
`II. ARGUMENT
`A. The Opposition Confirms That HIG Does Not And Cannot
`Plausibly Allege Netflix Infringed Any Right That HIG Acquired
`From Naylor
`Black letter law provides that HIG “may not sue for infringement of rights as
`to which [it] is not licensed, even if the subject matter of the infringement is the
`work [the Devour script] as to which [it] is a licensee.” 3 Nimmer on Copyright §
`12.02 (2021). And HIG concedes that Naylor could not have transferred, and did
`not transfer, to HIG any rights that were
`
`Opp. at 2. All this is fatal to HIG’s infringement claim, because the Naylor/Zip
`Agreement gave the Korean Producers the right to make a movie based on the
`Devour script, i.e., to cinematize that script. Under Article 99, Naylor also gave the
`Korean Producers the right “to exploit the translation of a cinematographic work in
`the same manner as the cinematographic work” unless the parties “expressly
`stipulated” to the contrary, Chung Decl. Ex. A at 2–3, which they did not do. None
`of HIG’s scattershot arguments resisting that conclusion withstands scrutiny.
`
`
`2 On March 3, HIG filed proofs that it had served Zip and Kakao Entertainment.
`Defendant Perspective, has not, to Netflix’s knowledge, been served. As HIG’s
`attorney declaration explains, at least Zip and Perspective intend to contest this
`Court’s jurisdiction. Because Netflix’s forum non conveniens and failure to join
`arguments directly raise the question of whether the Court has jurisdiction over
`those other defendants, Netflix requested that HIG agree to delay the hearing on this
`Motion until that issue was resolved. HIG did not agree to that request, but the
`parties are continuing to meet and confer about the issue. If HIG does not agree to
`continue the hearing, Netflix will file a motion asking the Court to delay hearing the
`Motion, or at least delay ruling on Netflix’s forum non conveniens and joinder
`arguments, until after the Korean Defendants have been served and after this Court
`determines any jurisdictional issues.
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`1.
`
`Netflix May Raise, And The Court May Consider, The
`Undisputed Text Of Article 99 Of The Korean Copyright Act
`Because Article 99 dooms HIG’s case, HIG first makes a series of meritless
`arguments aimed at preventing this Court from even considering it. HIG claims that
`Netflix lacks standing to ask the Court to construe the Naylor/Zip Agreement in
`accordance with Korean law,
`
` RJN Ex. B § 18. HIG is wrong. Netflix asks the Court to
`construe the Naylor/Zip Agreement to determine what rights Naylor could, and did,
`convey to HIG. Because HIG references and relies on the Naylor/Zip Agreement to
`define the scope of rights it seeks to enforce in this action, the Court may treat the
`Naylor/Zip Agreement “as part of the Complaint, and thus may assume that its
`contents are true for purposes of a motion under Rule 12(b)(6).” United States v.
`Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). And the Agreement says, on its face,
`that
`
`
` RJN Ex. B § 18.
`HIG claims that So v. Land Base, LLC, No. CV 08-03336 DDP, 2009 WL
`5088745 (C.D. Cal. Dec. 16, 2009), holds a party in Netflix’s position may not rely
`on
` Opp. at 8. The case holds
`no such thing. The defendant argued that a choice-of-law provision in a contract to
`which he was not a party was in fact “a forum selection clause,” and that plaintiff’s
`fraud claim had to be venued in England. Land Base, 2009 WL 5088745, at *3.
`The Court noted in an aside that it was “not convinced that [defendant] has standing
`to enforce any purported forum selection clause” but went on to hold that it did not
`matter because the clause at issue was not, in fact, a forum selection clause. Id.
`Here, Netflix is not seeking to enforce a forum selection clause. It is merely asking
`the Court to construe
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`HIG also is wrong that construing
` would require the Court to apply “Korean
`copyright law … extraterritorially.” Opp. at 8. HIG’s claim is brought under the
`United States Copyright Act. But HIG concedes it is not the author of the allegedly
`infringed work. Its own rights in that work are determined by its agreement with the
`author, Naylor. The Court would, of course, look to California or New York law to
`define the scope of rights transferred under contracts governed by those states’ laws.
`See Tierney v. Image Ent., Inc., No. CV-11-1305 DSF, 2012 WL 13008214, at *4
`(C.D. Cal. Mar. 21, 2012) (“Transfers and assignments
`of copyrights are contracts that are interpreted under state law.”). The result is
`exactly the same where, as here, an agreement that defines the copyright plaintiff’s
`rights is governed by foreign law: the Court must look to that law to determine the
`scope of rights transferred under the Naylor/Zip Agreement and, therefore, the scope
`of rights later granted to HIG. See, e.g., Fahmy v. Jay-Z, 908 F.3d 383, 392–93 (9th
`Cir. 2018) (applying Egyptian law to determine whether an agreement transferred
`derivative rights).
`Finally, HIG argues that the Court should not consider Article 99 on this
`motion because Netflix has attached a translation of that statute and, HIG says,
`“[t]ranslation is a difficult art,” and courts do not “apply foreign statutes at the
`pleading stage.” Opp. at 9. HIG selectively ignores the Ninth Circuit’s de
`Fontbrune decision, which expressly said district courts should not ignore foreign
`law at the pleading stage. The Ninth Circuit explained that Rule 44.1, which says
`that the content of foreign law is to be “‘treated as a ruling on a question of law[,]’
`… endeavored to lay to rest th[e] antiquated conception of foreign law as ‘a question
`of fact’ .… by making the process of ascertaining foreign law equivalent to the
`process for determining domestic law.” de Fontbrune, 838 F.3d at 997 (citations
`omitted).
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`HIG’s only citation to the contrary is an unpublished district court decision,
`which declined to decide, on a motion to dismiss, whether a translation of a 1900
`decree in “the language ‘of French Indochina’” was “clear and unambiguous”
`because the parties had submitted that “its literal translation [was] subject to more
`than one interpretation.” United States v. A 10th Century Cambodian Sandstone
`Sculpture, No. 12 CIV. 2600(GBD), 2013 WL 1290515, at *8 (S.D.N.Y. Mar. 28,
`2013). Here, Netflix has submitted a sworn declaration from a Korean attorney,
`fluent in both Korean and English, confirming that the English-language translations
`of the Act were accurate. See generally Chung Decl. HIG had three weeks to
`prepare its Opposition, yet it does not dispute that the translations are accurate and
`does not proffer any alternate interpretation for Article 99’s presumption that
`translation rights transfer with cinematization rights. The Court can and should
`apply the undisputed English-language translation of Article 99 to the Naylor/Zip
`Agreement. See de Fontbrune, 838 F. 3d at 1000.
`Moreover, HIG itself does not believe its own argument that the Court cannot
`look to the undisputed translation of Korean law on this motion. Elsewhere in its
`Opposition, HIG asks the Court to accept a translation of a different provision of the
`Korean Copyright Act that HIG found on the Internet. Opp. at 10 & n.3. HIG relies
`on none other than the de Fontbrune case for the proposition that the Court “may
`consider” an undisputed translation of a foreign statute on a 12(b)(6) motion. Id.
`HIG proves Netflix’s point.
`Naylor Did Not Retain The Right To Translate #Saraitda
`2.
`HIG argues that whatever rights the Naylor/Zip Agreement conveyed to the
`Korean-language movie, that Agreement did not convey translation rights with
`respect to Naylor’s “Original Script.” Opp. at 10. But it did. Article 99 refers to
`the “author’s economic right” regarding “his/her work.” Naylor’s (“his”) work is
`the “Original Script.” That is the only work Naylor is alleged to have owned.
`Naylor granted Zip the right to “cinematize” that work, i.e., to make a movie based
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`on that script. And, under Article 99, unless the parties expressly stipulated
`otherwise, the right to “cinematize” included the right “[t]o exploit the translation”
`of that movie. Chung Decl. Ex. A at 2–3. If the cinematization right did not include
`whatever right Naylor may have had regarding the translation of the script embodied
`in the movie, the Article 99 presumption would be worthless. HIG points to nothing
`in the text of Article 99, any authoritative source construing that statute, or common
`sense to support that absurd result.
`HIG’s argument that Naylor did not transfer rights in the script is nonsensical
`
`for a different, but related, reason.
`
` But of course the Korean Producers needed to do so in order to produce a
`Korean language film—otherwise no actor would have known her or his line in
`Korean, and the director and other creative personnel behind the camera would not
`have known what they were to film. Under HIG’s theory, Naylor granted the
`Korean Producers “only” the right to make a “Korean language” film based on an
`English-language script, but not the right to translate that screenplay into a Korean
`language script; and “only”
` RJN Ex. B.
`§ 1, but not the right to translate the film into other languages. HIG’s strained
`reading would render the rights granted in the Naylor/Zip Agreement illusory. That
`reading must be rejected.
`HIG next tries to split the copyright rights at issue even further, arguing that
`even if Article 99 applies and transferred the right to translate #Saraitda to the
`Korean Producers, Naylor still retained the right to make “new dubbed versions”
`that “feature new dramatic performances from non-Korean actors who are not actors
`in the original.” Opp. 14. The argument is semantics. HIG provides no basis in law
`or logic for presuming that the Korean Producers were granted a right to subtitle the
`film but not dub it, or to dub it but not with “non-Korean actors.” Tellingly, HIG’s
`Complaint alleges that Netflix infringed by creating “high-quality dubbed and
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`subtitled versions in” English and “an additional 30 languages for release on
`Netflix’s streaming platform.” Compl. ¶ 32. HIG’s new argument is inconsistent
`with its allegations for a simple reason: HIG knows it cannot overcome the
`presumption of transfer under Article 99 and so is desperately trying to save any part
`of its meritless claim.
`Finally, HIG claims that it owns the “entire copyright” to Devour, see Opp. at
`3, and that United States copyright law therefore grants it broad rights, including
`translation rights to #Saraidta. Opp. 5–6. Alternatively, HIG claims that it owns
`the exclusive right to “reproduce, distribute, and publicly perform” any copies of the
`Script, and that translations of #Saraitda constitute such a copy. Opp. 7.
`Both arguments fail at the threshold because they presume HIG has rights that
`HIG does not. HIG cites only provisions of the Copyright Act enumerating the
`exclusive rights that comprise a copyright. E.g., Opp. at 6 (citing 17 U.S.C. § 101).
`But HIG admits that it did not acquire all of the rights in the bundle—it acquired
`only the rights that were remaining after Naylor transferred a subset of the rights in
`his screenplay to the Korean Producers, and froze others. See Opp. at 2
`(acknowledging that Naylor’s “complete assignment to Aridi” nonetheless
`). As
`“excluded
`explained above and below, and in Netflix’s Motion to Dismiss, HIG did not and
`cannot plausibly allege that it acquired the right to translate #Saraitda.
`The
`3.
`Not
`And, Even If It Were, HIG’s Claim Would Still Fail
`HIG argues that even if Article 99 applies, the presumed transfer of the right
`to translate #Saraidta is rebutted because Naylor and the Korean Producers
`purportedly “expressly stipulated that translation rights did not transfer.” Opp. 11
`(emphasis omitted). According to HIG, the parties made that “express stipulation”
`with the following sentence:
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`Case 2:21-cv-09423-AB-GJS Document 61 Filed 03/14/22 Page 13 of 19 Page ID #:586
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` RJN
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`Ex. B at 2; see also Opp. 13.
` included an “express stipulation” to
`HIG is wrong that the
`freeze the right to translate the cinematized work based on Naylor’s Original Script.
`As Netflix has already explained, the
` provision explicitly addresses only
` and the like. RJN Ex.
` much less
`B at § 1(a).
`“express[ly]” reserve the right to translate the cinematized work to Naylor, as
`required to overcome the presumption of transfer in Article 99.
` is an “express
`But even if HIG were correct that the
`stipulation” that translation rights did not transfer, HIG would lack standing because
`it has failed to allege those same rights were unfrozen and later transferred to HIG.
`HIG made the strategic decision to omit from its Complaint the details of the
`Naylor/Zip Agreement, including
` As a direct result of that strategic choice, HIG failed to allege that
`any rights were ever
` Therefore, regardless of the arguments HIG makes
`now, it has indisputably failed to allege that it acquired any of the
`
` See Mot. at 13–14.
`HIG proffers three proposed readings of the Naylor Zip Agreement under
` was an express stipulation to not
`which, HIG says, (1)
`transfer translation rights and (2) that same provision
` those same
`translation rights. The readings are implausible, at best.
`First, HIG claims that the Naylor/Zip Agreement
`
`
`
`
`
`
` which included rights to “elements like
`story and dialog.” Opp. at 15. Netflix therefore “needed to get licenses to each
`bundle of elements” in order to translate #Saraidta. Id. at 16.
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`Case 2:21-cv-09423-AB-GJS Document 61 Filed 03/14/22 Page 14 of 19 Page ID #:587
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`HIG made this argument out of whole cloth. HIG cites nothing in its
`Complaint, nor any of the contracts incorporated into the Complaint, to support its
`interpretation. Nor could it. The Complaint made no mention
`instead claiming (falsely) that HIG was the “owner of all rights to make … all
`derivative non-Korean language versions and other derivatives, also[], and … even
`derivative rights to any subsequent Korean versions.” Compl. ¶ 19 (emphasis
`added).
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`The Naylor/Zip Agreement says that
`
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`
` RJN Ex. B § 1(a). But under HIG’s theory that Naylor
`
`somehow transferred no rights in his Original Script,
`were utterly worthless. HIG’s position is that things
` id., would be “derivative works based on the
`like
`Script” and “Zip and Perspective had only the right to the new elements of the
`movie,” Opp. 15; see also Opp. 6 (arguing hypothetical “unauthorized version” of
`James Bond movie would infringe the rights in the underlying novel). If HIG’s
`interpretation of the Agreement is correct (and it very much is not) then the
` was worthless
`because those were all derivative works of the script—and, HIG says, Naylor
`retained all rights to all derivative works of the script. In other words, under HIG’s
`reading, Naylor both retained all derivative rights and
`
` There is no basis in the language of the Agreement, or in
`reason, to adopt that interpretation.
`Second, HIG claims
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`Case 2:21-cv-09423-AB-GJS Document 61 Filed 03/14/22 Page 15 of 19 Page ID #:588
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` Opp. 16. But that is beside the point.
`
`
`
`
` RJN Ex. B § 1(a). That provision would be meaningless if the parties
`
`were free to assign their rights away unilaterally without any
`Third, HIG points to
`
`
`
` Opp. 13. But that argument makes no sense.
`
`
`
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`
`
`
`
`
`
` Moreover,
` throughout the world,
`the right Naylor retained was to
`making clear that Naylor reserved the right to create a new English-language film,
`not to translate #Saraitda. RJN Ex. B § 1(a). Indeed,
`
`
`
`
`
` RJN Ex. B § 1. The only
`plausible reading of that sentence is that Naylor reserved all rights to make a new
`movie, in English, based on the Devour script, and did so
`
`—i.e., to the extent that any elements of the new English language movie
`could be considered derivative of #Saraidta, Naylor was retaining those rights
`insofar as necessary to make a new English language movie.
`HIG also spills substantial ink in an attempt to reframe Netflix’s Motion into
`an extensive argument about
`
`, pointing at various contractual provisions raised by Netflix and
`then claiming that the understanding of those provisions would implicate “a fact
`question” that cannot be resolved on a motion to dismiss. See, e.g., Opp. at 12. But
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`Case 2:21-cv-09423-AB-GJS Document 61 Filed 03/14/22 Page 16 of 19 Page ID #:589
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`the Motion simply does not make that argument. Netflix’s argument is
`straightforward: Article 99’s presumption of transfer applies and ends any claim
`HIG might have against Netflix for the translation of #Saraitda. Netflix cited
`further provisions in the Naylor/Zip Agreement as additional evidence that the
`parties to that Agreement did not “expressly stipulate[]” to reverse the presumption
`of Article 99—because
`
` If those provisions did
`not exist at all, HIG still would have no evidence that Naylor and Zip expressly
`stipulated to reverse that presumption. The fact they do exist—and that there is no
`express stipulation—is just further confirmation that the translation right was
`conveyed by operation of Article 99. See Mot. 10–11.
`Any Amendment Would Be Futile
`4.
`HIG has had ample opportunity to explain why the Korean translation
`presumption should not apply here, but it has failed to do so. As a result, it cannot
`plausibly allege that it has standing, and so leave to amend should be denied. See,
`e.g., Pizzorno v. Draper, No. 17-00182-AB, 2017 WL 4712071, at *9 (C.D. Cal.
`July 7, 2017) (noting that a court “may deny leave to amend if the proposed
`amendment is futile or would be subject to dismissal”).
`B. HIG’s Opposition Confirms That, If The Complaint Is Not
`Dismissed Under Rule 12(b)(6), It Should Be Dismissed For Forum
`Non Conveniens Or Under Rule 19(b)
`Netflix’s forum non conveniens and failure to join arguments depend in part
`on whether Perspective can be served and whether the Korean Defendants
`(Perspective, Zip and Kakao) are amenable to jurisdiction in this Court. As noted,
`HIG has not to date agreed continue the hearing on Netflix’s Motion, but the parties
`are continuing to discuss. If HIG does not agree, Netflix will file a motion with the
`Court seeking a continuance. Supra p. 3 & n.1.
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`Case 2:21-cv-09423-AB-GJS Document 61 Filed 03/14/22 Page 17 of 19 Page ID #:590
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`1.
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`Both Private And Public Factors Favor Dismissal For Forum
`Non-Conveniens
`HIG does not contest that Korea provides an adequate alternative forum for
`this dispute. Opp. at 17–21. The only question that remains is whether the balance
`of private and public factors favors dismissal.