IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF IOWA
`CENTRAL DIVISION
`
`FRASERSIDE IP L.L.C., an Iowa
`Limited Liability Company,
`
`Plaintiff,
`
`No. C11-3025-MWB
`
`vs.
`
`HAMMY MEDIA, LTD. d/b/a
`xHamster.com and www.xHamster.com
`and JOHN DOES 1-100 AND JOHN
`DOE COMPANIES 1-100,
`
`Defendants.
`
`MEMORANDUM OPINION AND
`ORDER REGARDING DEFENDANT
`HAMMY MEDIA, LTD.’S MOTION
`TO DISMISS
`
`____________________
`
`TABLE OF CONTENTS
`
`I. INTRODUCTION AND BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . 2
`A. Procedural Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
`B. Factual Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
`1.
`Facts Drawn From First Amended Complaint . . . . . . . . . . . . 4
`2.
`Facts Related Solely To Personal Jurisdiction . . . . . . . . . . . . 5
`
`II. LEGAL ANALYSIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
`A. Rule 12(b)(2) Standards and Personal Jurisdiction . . . . . . . . . . . . . . . 5
`B. Personal Jurisdiction Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
`1.
`General jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
`2.
`Specific jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
`C. Limited Jurisdictional Discovery . . . . . . . . . . . . . . . . . . . . . . . . . . 17
`
`III. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
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`

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`Justice Marshall recognized that the issue of determining personal jurisdiction “is
`
`one in which few answers will be written ‘in black and white. The greys are dominant and
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`even among them the shades are innumerable.’” Kulko v. Superior Ct., 436 U.S. 84, 92,
`
`(1978) (quoting Estin v. Estin, 334 U.S. 541, 545 (1948)). Nonetheless, I must venture
`
`into this field of innumerable shades of grey to determine whether the plaintiff has made
`
`a prima facie showing that the defendant, a Cyprus corporation alleged to have infringed
`
`plaintiff’s copyrights and trademark through its offering of adult motion pictures on its
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`website, has sufficient minimum contacts with Iowa to satisfy due process and permit the
`
`exercise of personal jurisdiction over it.
`
`I. INTRODUCTION AND BACKGROUND
`
`A. Procedural Background
`
`On February 17, 2011, plaintiff Fraserside IP L.L.C. (“Fraserside”) filed a
`
`complaint against Hammy Media, Ltd., doing business as xHamster.com,
`
`www.xHamster.com (“xHamster”), John Does, and John Doe Companies, alleging the
`
`following causes of action: copyright infringement, in violation of 17 U.S.C. §§ 106 and
`
`501 et seq.; contributory copyright infringement, in violation of 17 U.S.C. §§ 106 and 501
`
`et seq.; vicarious copyright infringement, in violation of 17 U.S.C. §§ 106 and 501 et
`
`seq.; inducing copyright infringement, in violation of 17 U.S.C. §§ 106 and 501 et seq.;
`
`trademark infringement, in violation of 15 U.S.C. § 1114; contributory trademark
`
`infringement, in violation of 15 U.S.C. § 1114; vicarious trademark infringement, in
`
`violation of 15 U.S.C. § 1114; false designation of origin, in violation of 15 U.S.C.
`
`§ 1125(a); and, dilution of trademark, in violation of 15 U.S.C. § 1125(c).
`
`On September 19, 2011, xHamster filed a Motion to Dismiss (docket no. 34). In
`
`its motion, xHamster contends that it is not subject to personal jurisdiction in Iowa and the
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`2
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`Complaint must be dismissed pursuant to Federal Rule of Civil procedure 12(b)(2).
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`Alternatively, xHamster asserts Fraserside is not the registrant or owner of any of the
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`copyrights or trademarks at issue and therefore has no standing to bring this case.
`
`xHamster argues that since Fraserside does not have standing to bring the copyright and
`
`trademark claims, there are no claims over which subject matter jurisdiction exists and the
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`Complaint must be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(1), or
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`Fraserside’s lack of standing means that it has failed to state a claim upon which relief may
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`be granted and the Complaint must be dismissed pursuant to Federal Rule of Civil
`
`Procedure 12(b)(6). Alternatively, xHamster argues that it is entitled to dismissal based
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`on the “safe harbor” provision of 17 U.S.C. § 512(c). This is because xHamster has
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`maintained a Digital Millennium Copyright Act (“DMCA”) agent for service of takedown
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`notices, and Fraserside has failed to allege that it notified xHamster of any of the alleged
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`instances of infringement, a prerequisite to defeating xHamster’s safe harbor defense.
`
`On October 3, 2011, Fraserside filed a resistance to xHamster’s motion. Fraserside
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`argues that xHamster’s internet activities establish a sufficient basis for specific personal
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`jurisdiction. Alternatively, Fraserside contends that the facts support a finding of gneral
`
`jurisdiction over xHamster. Fraserside further asserts that it has standing to sue because
`
`it the proper assignee of the copyrighted and trademarked products at issue. Finally,
`
`Fraserside argues that xHamster is not entitled to dismissal based on the DMCA’s safe
`
`harbor provision because the safe harbor provision is an affirmative defense and not
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`grounds for a Rule 12(b)(6) dismissal.
`
`On November 7, 2011, xHamster filed its reply brief. In turn, Fraserside filed a
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`sur-reply brief on November 11, 2011. On December 21, 2011, xHamster withdrew its
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`Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) challenges to the Complaint.
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`3
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`B. Factual Background
`
`1.
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`Facts Drawn From First Amended Complaint
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`On a motion to dismiss, I must assume all facts alleged in the Complaint are true,
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`and must liberally construe those allegations. Conley v. Gibson, 355 U.S. 41, 45-46
`
`(1957). The following factual background is drawn from the Complaint, documents
`attached to the Complaint, and public records.1
`Plaintiff Fraserside is a wholly owned subsidiary of Fraserside Holdings, Ltd.
`
`(“Fraserside Holdings”). Fraserside was created in October 2010. Fraserside Holdings
`
`is a Cyprus-based company known commercially as “Private.” Fraserside Holdings is a
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`producer of adult motion pictures. Its adult films are distributed on a wide range of
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`platforms, including mobile handsets in 45 countries, digital television in 24 countries,
`
`1 I note that I may consider public records, those materials that are embraced by the
`complaint, and documents attached to the complaint. See Illig v. Union Elec. Co., 652
`F.3d 971, 976 (8th Cir. 2011) (“In addressing a motion to dismiss,’[t]he court may
`consider the pleadings themselves, materials embraced by the pleadings, exhibits attached
`to the pleadings, and matters of public record.’”) (quoting Mills v. City of Grand Forks,
`614 F.3d 495, 498 (8th Cir. 2010); Noble Sys. Corp. v. Alorica Cent., L.L.C., 543 F.3d
`978, 983 (8th Cir. 2008) (“the district court is limited to the materials properly before it
`on a motion to dismiss, which may include public records and materials embraced by the
`complaint.”); Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999)
`(noting that a court “generally must ignore materials outside the pleadings, but it may
`consider ‘some materials that are part of the public record or do not contradict the
`complaint,’ as well as materials
`that are “‘necessarily embraced by
`the
`pleadings.’”)(citations omitted). Materials necessarily embraced by the complaint include
`“documents whose contents are alleged in a complaint and whose authenticity no party
`questions, but which are not physically attached to the pleading.” Kushner v. Beverly
`Enters., 317 F.3d 820, 831 (8th Cir. 2003)); see Jenisio v. Ozark Airlines, Inc., Ret. Plan,
`187 F.3d 970, 972 n.3 (8th Cir. 1999) (“A district court may consider documents on a
`motion to dismiss where . . . the plaintiffs’ claims are based solely on the interpretation
`of the documents and the parties do not dispute the actual contents of the documents.”).
`
`4
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`broadband internet, a South American cable channel, DVDs, and on demand and
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`subscription based services on the internet. Fraserside Holdings, in turn, is a wholly
`
`owned subsidiary of Private Media Group, Inc. (“Private Media”), a Nevada Corporation.
`
`Defendant xHamster is also a Cyprus-based company. xHamster competes with
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`Fraserside Holdings in the distribution and sale of adult audio-visual works through the
`
`internet. xHamster operates the website www.xHamster.com. The xHamster.com
`
`website is visited daily by internet users worldwide. Roughly 20 percent of the site’s
`
`visitors are from United States. The website allows users the option of viewing adult
`
`films, or downloading the films by becoming a member of the website.
`
`2.
`
`Facts Related Solely To Personal Jurisdiction
`
`xHamster has supplied an affidavit in support of its request to dismiss the Complaint
`
`on the ground of lack of personal jurisdiction, pursuant to Federal Rule of Civil Procedure
`
`12(b)(2). I have extracted the following facts, all uncontroverted, from that affidavit which
`
`relates to xHamster’s contacts with the State of Iowa.
`
`xHamster has no offices in Iowa, no employees in Iowa, no telephone number in
`
`Iowa, and no agent for service of process in Iowa. xHamster does not advertise in Iowa.
`
`No xHamster officer or director has ever visited Iowa. xHamster does not maintain any
`
`of its servers within Iowa. All of xHamster’s servers are located outside of the United
`
`States.
`
`II. LEGAL ANALYSIS
`
`A. Rule 12(b)(2) Standards and Personal Jurisdiction
`
`In considering xHamster’s motion to dismiss for lack of personal jurisdiction
`
`pursuant to Federal Rule of Civil Procedure 12(b)(2), Fraserside’s Complaint “must state
`
`sufficient facts . . . to support a reasonable inference that [each defendant] may be
`
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`subjected to jurisdiction in the forum state.” Steinbuch v. Cutler, 518 F.3d 580, 585 (8th
`
`Cir. 2008). “‘Once jurisdiction ha[s] been controverted or denied, [plaintiffs] ha[ve] the
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`burden of proving such facts.’” Dever v. Hentzen Coatings, Inc., 380 F.3d 1070, 1072
`
`(8th Cir. 2004) (quoting Block Indus. v. DHJ Indus., Inc., 495 F.2d 256, 259 (8th Cir.
`
`1974)); see Viasystems, Inc. v. EBM-Papst St. George GMBH & Co., K.G., 646 F.3d 589,
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`592 (8th Cir. 2011). Fraserside need not, however, establish jurisdiction by a
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`preponderance of the evidence until an evidentiary hearing is held, or until trial. Dakota
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`Indus., Inc. v. Dakota Sportswear, Inc., 946 F.2d 1384, 1387 (8th Cir. 1991). Where,
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`as here, “‘the district court does not hold a hearing and instead relies on pleadings and
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`affidavits, . . . the court must look at the facts in the light most favorable to the nonmoving
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`party, and resolve all factual conflicts in favor of that party.’” Pangaea, Inc. v. Flying
`
`Burrito L.L.C., 647 F.3d 741, 745 (8th Cir. 2011)(quoting Dakota Indus., Inc., 946 F.2d
`
`at 1387); Johnson v. Arden, 614 F.3d 785, 793-94 (8th Cir. 2010)( “‘If the District Court
`
`does not hold a hearing and instead relies on pleadings and affidavits, then we must look
`
`at the facts in the light most favorable to the nonmoving party and resolve all factual
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`conflicts in favor of that party.’”)(quoting Epps v. Stewart Info. Serv. Corp., 327 F.3d
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`642, 646–47 (8th Cir. 2003)); Romak USA, Inc. v. Rich, 384 F.3d 979, 983-84 (8th Cir.
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`2004)(noting that a court “must view the evidence in the light most favorable to [plaintiffs]
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`and resolve factual conflicts in its favor.”). For Fraserside to survive xHamster’s motion
`
`to dismiss under Rule 12(b)(2) for lack of personal jurisdiction, Fraserside “‘need only
`
`make a prima facie showing of jurisdiction,’ and may do so by affidavits, exhibits, or other
`
`evidence.” Romak USA, Inc., 384 F.3d at 983 (quoting Epps, 327 F.3d at 647); accord
`
`K-V Pharm. Co. v. J. Uriach & CIA, S.A., 648 F.3d 588, 591 (8th Cir. 2011); see
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`Viasystems, Inc., 646 F.3d at 592; Pangaea, Inc., 647 F.3d at 745.
`
`6
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`I “may assume jurisdiction over a foreign defendant only to the extent permitted by
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`the forum state’s long-arm statute and by the Due Process Clause of the Constitution.”
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`Dakota Indus., Inc. v. Ever Best Ltd., 28 F.3d 910, 915 (8th Cir. 1994); accord K-V
`
`Pharm. Co., 648 F.3d at 592 (“Personal jurisdiction in a diversity case exists ‘only to the
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`extent permitted by the long-arm statute of the forum state and by the Due Process
`
`Clause.’”)(quoting Dever, 380 F.3d at 1073 (internal quotation marks omitted)). Iowa’s
`
`long-arm statute “expands Iowa’s jurisdictional reach to the widest due process parameters
`allowed by the United States Constitution.”2 Hammond v. Florida Asset Fin. Corp., 695
`N.W.2d 1, 5 (Iowa 2005) (discussing Iowa Rule of Civil Procedure 1.306). “As a result,
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`the Court is left with the sole issue of whether exercising personal jurisdiction over [the]
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`nonresident Defendant is consistent with principles of due process.” Brown v. Kerkhoff,
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`504 F. Supp. 2d 464, 499-500 (S.D. Iowa 2007); see Bell Paper Box, Inc. v. U.S. Kids,
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`Inc. (Bell Paper I), 22 F.3d 816, 818 (8th Cir. 1994) (“[W]hen a state construes its long-
`
`arm statute to confer jurisdiction to the fullest extent permitted by the due process
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`clause . . . the inquiry collapses into the single question of whether exercise of personal
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`jurisdiction comports with due process.”).
`
`2 Iowa’s long-arm statute is actually set forth in two places: Iowa Code § 617.3 and
`Iowa Rule of Civil Procedure 1.306. Section 617.3 provides for the service of “foreign
`corporations or nonresidents contracting or committing torts in Iowa,” Iowa Code § 617.3
`(2006), and Rule 1.306 provides for an “[a]lternative method of service” that applies to
`“every corporation, individual, personal representative, partnership or association,” Iowa
`R. Civ. P. 1.306. Rule 1.306 is the provision that specifically extends Iowa’s
`jurisdictional reach to the federal constitutional limits. See Hammond, 695 N.W.2d at 5;
`Larsen v. Scholl, 296 N.W.2d 785, 788 (Iowa 1980) (noting that Iowa Rule of Civil
`Procedure 56.2 (now Rule 1.306), “unlike Iowa’s older ‘long-arm’ statute, section
`617.3, . . . expands Iowa’s jurisdictional reach to the widest due process parameters of the
`federal constitution”).
`
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`“The Due Process Clause requires ‘minimum contacts’ between the nonresident
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`defendant and the forum state before the court may exercise jurisdiction over the
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`defendant.” Coen v. Coen, 509 F.3d 900, 905 (8th Cir. 2007) (citing World-Wide
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`Volkswagen Corp. v. Woodson, 444 U.S. 286, 291 (1980)). The Eighth Circuit Court of
`
`Appeals has explained sufficient minimum contacts as follows:
`
`“Sufficient contacts exist when the defendant’s conduct
`and connection with the forum state are such that he should
`reasonably anticipate being haled into court there, and when
`maintenance of the suit does not offend traditional notions of
`fair play and substantial justice.” By defendant’s reasonable
`anticipation, we mean “there must be some act by which the
`defendant purposefully avails itself of the privilege of
`conducting activities within the forum State, thus invoking the
`benefits and protections of its laws.” We have set “a five-part
`test for measuring minimum contacts: (1) the nature and
`quality of the contacts with the forum state; (2) the quantity of
`those contacts; (3) the relation of the cause of action to the
`contacts; (4) the interest of the forum state in providing a
`forum for its residents; and (5) the convenience of the parties.”
`Factors one through three are primary. With respect to the
`third factor, we distinguish between specific jurisdiction and
`general jurisdiction. “‘Specific jurisdiction refers to
`jurisdiction over causes of action arising from or related to a
`defendant’s actions within the forum state,’ while ‘[g]eneral
`jurisdiction . . . refers to the power of a state to adjudicate any
`cause of action involving a particular defendant, regardless of
`where the cause of action arose.’”
`
`Id. (citations omitted); see K-V Pharm. Co., 648 F.3d at 592; Wells Dairy, Inc. v. Food
`
`Movers Int’l, Inc., 667 F.3d 515, 518 (8th Cir. 2010); Steinbuch, 518 F.3d at 585-86;
`
`Johnson v. Woodcock, 444 F.3d 953, 956 (8th Cir. 2006); Epps v. Stewart Information.
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`Servis. Corp., 327 F.3d 642, 648 (8th Cir. 2003); Guinness Import Co. v. Mark VII
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`Distributors, Inc., 153 F.3d 607, 613 (8th Cir. 1998); Aylward v. Fleet Bank, 122 F.3d
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`8
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`616, 618 (8th Cir. 1997); Burlington Indus., Inc. v. Maples Indus., Inc., 97 F.3d 1100,
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`1102 (8th Cir. 1996).
`
`The Eighth Circuit Court of Appeals has further instructed that:
`
`The purposeful availment requirement ensures that a defendant
`will not be haled into a jurisdiction solely as a result of
`random, fortuitous, or attenuated contacts or of the unilateral
`activity of another party of a third person. Jurisdiction is
`proper, however, where the contacts proximately result from
`actions by the defendant himself that create a substantial
`connection with the forum State.
`
`Stanton v. St. Jude Med., Inc., 340 F.3d 690, 693-94 (8th Cir. 2003) (citations omitted).
`
` “‘Minimum contacts must exist either at the time the cause of action arose, the time
`
`the suit was filed, or within a reasonable period of time immediately prior to the filing of
`
`the lawsuit.’” Johnson, 444 F.3d at 955-56 (quoting Pecoraro v. Sky Ranch For Boys,
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`Inc., 340 F.3d 558, 562 (8th Cir. 2003)). If the court determines that a defendant has the
`
`requisite “minimum contacts within the forum state, these contacts may be considered in
`
`light of other factors to determine whether the assertion of personal jurisdiction would
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`comport with ‘fair play and substantial justice.’” Burger King Corp. v. Rudzewicz, 471
`
`U.S. 462, 476 (1985) (quoting International Shoe Co. v. Washington, 326 U.S. 310, 320
`
`(1945)); see Luv N. Care Ltd. v. Insta-Mix, Inc., 438 F.3d 465, 473 (5th Cir. 2006) (“It
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`remains for us to inquire whether the exercise of jurisdiction would offend traditional
`
`notions of fair play and substantial justice. When a plaintiff makes its prima facie case that
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`the defendant has ‘minimum contacts’ with the forum state, the burden of proof shifts to
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`the defendant to show that the exercise of jurisdiction would be unreasonable.” (citation
`
`and quotation omitted)). These other factors include:
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`“the burden on the defendant,” “the forum State’s interest in
`adjudicating the dispute,” “the plaintiff’s interest in obtaining
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`convenient and effective relief,” “the interstate judicial
`system’s interest in obtaining the most efficient resolution of
`the controversies,” and the “shared interest of the several
`States in furthering fundamental substantial social policies.”
`
`Burger King Corp., 471 U.S. at 476-77 (quoting World Wide Volkswagen, 444 U.S. at
`
`292). “These considerations sometimes serve to establish the reasonableness of
`
`jurisdiction upon a lesser showing of minimum contacts than would otherwise be
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`required.” Id. at 477. If, however, a defendant “seeks to defeat jurisdiction” when the
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`defendant purposefully “directed his activities at forum residents”—i.e., when minimum
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`contacts are clearly established—the defendant “must present a compelling case that the
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`presence of some other considerations would render jurisdiction unreasonable.” Id.
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`B. Personal Jurisdiction Analysis
`
`Fraserside contends that xHamster’s contacts with Iowa are sufficient to establish
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`either specific jurisdiction or general jurisdiction over xHamster. I will consider each of
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`these jurisdictional grounds in turn.
`
`1.
`
`General jurisdiction
`
`“A court obtains general jurisdiction ‘against a defendant who has ‘continuous and
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`systematic’ contacts with the forum state, even if the injuries at issue in the lawsuit did not
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`arise out of the defendant’s activities directed at the forum.’” Johnson, 614 F.3d at 794
`
`(quoting Dever., 380 F.3d at 1073)(quoting in turn Helicopteros Nacionales de Colombia,
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`S.A. v. Hall, 466 U.S. 408, 415–16 (1984)). “For an individual, the paradigm forum for
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`the exercise of general jurisdiction is the individual’s domicile; for a corporation, it is an
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`equivalent place, one in which the corporation is fairly regarded as at home.” Goodyear
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`Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846, 2853–54 (2011); see
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`Viasystems, Inc., 646 F.3d at 592 (quoting Brown, 131 S. Ct. at 2853-54). Fraserside
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`contends that xHamster is subject to general personal jurisdiction based on the website,
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`www.xHamster.com, owned and run by xHamster.
`
`In Lakin v. Prudential Sec., Inc., 348 F.3d 704, 710 (8th Cir. 2003), the Eighth
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`Circuit Court of Appeals adopted the “sliding scale” approach established by Zippo Mfg.
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`Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1124 (W.D. Pa. 1997), to determine if
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`website contacts provide a basis for specific jurisdiction. Lakin, 348 F.3d at 710 (“We
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`agree with our sister circuits that the Zippo model is an appropriate approach in cases of
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`specific jurisdiction—, i.e., ones in which we need only find ‘minimum contacts.’”). The
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`“sliding scale” approach recognizes that “‘the likelihood that personal jurisdiction can be
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`constitutionally exercised is directly proportionate to the nature and quality of the
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`commercial activity that the entity conducts over the Internet.’” Id. (quoting Zippo Mfg.
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`Co., 952 F. Supp. at 1124). In Lakin, the Eighth Circuit Court observed that:
`
`“At one end of the spectrum are situations where a defendant
`clearly does business over the Internet. If the defendant enters
`into contracts with residents of a foreign jurisdiction that
`involve the knowing and repeated transmission of computer
`files over the Internet, personal jurisdiction is proper. At the
`opposite end are situations where a defendant has simply
`posted information on an Internet Web site which is accessible
`to users in foreign jurisdictions. A passive Web site that does
`little more than make information available to those who are
`interested in it is not grounds for the exercise [of] personal
`jurisdiction. The middle ground is occupied by interactive
`Web sites where a user can exchange information with the host
`computer. In these cases, the exercise of jurisdiction is
`determined by examining the level of interactivity and
`commercial nature of the exchange of information that occurs
`on the Web site.”
`
`Id. at 710–11 (quoting Zippo Mfg. Co., 952 F. Supp. at 1124).
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`The Eighth Circuit Court of Appeals concluded that, while the Zippo model is an
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`appropriate approach when considering specific jurisdiction, it is insufficient, in and of
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`itself, for determining whether a defendant’s contacts are both substantial and continuous
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`for purposes of general jurisdiction. Id. at 711; see CollegeSource, Inc. v. AcademyOne,
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`Inc., 653 F.3d 1066, 1075 (9th Cir. 2011) (noting that “the interactivity of a non-resident
`
`defendant’s website typically ‘provides limited help in answering the distinct question
`
`whether the defendant’s forum contacts are sufficiently substantial, continuous, and
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`systematic to justify general jurisdiction.’”) (quoting Mavrix Photo, Inc. v. Brand Tech.,
`
`Inc., 647 F.3d 1218, 1227 (9th Cir. 2011)); Revell v. Lidov, 317 F.3d 467, 471 (5th Cir.
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`2002) (noting that the Zippo sliding scale “is not well adapted to the general jurisdiction
`
`inquiry, because even repeated contacts with forum residents by a foreign defendant may
`
`not constitute the requisite substantial, continuous and systematic contacts required for a
`
`finding of general jurisdiction.”). As the Eighth Circuit Court of Appeals noted, “[u]nder
`
`the Zippo test, it is possible for a [website] to be very interactive, but to have no quantity
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`of contacts.” Lakin, 348 F.3d at 712. Thus, the court of appeals held that the Zippo test
`
`was only a starting point in conducting a website-based general jurisdiction analysis. In
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`addition to considering the characteristics of a website under the Zippo test, it is also
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`necessary to weigh the quantity of the defendant’s contacts via its website. See id.
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`Consequently, in considering whether xHamster’s contacts with Iowa are sufficient to
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`establish general jurisdiction, I must consider, inter alia, the nature, quality, and quantity
`
`of those contacts. See id.(citing Aftanase v. Economy Baler Co., 343 F.2d 187, 197 (8th
`
`Cir. 1965)); see also Pangaea, Inc., 647 F.3d at 746 n.4; Johnson, 614 F.3d at 794;
`
`Steinbuch, 518 F.3d at 585.
`
`xHamster is a Cyprus-based company. xHamster has no offices in Iowa, no
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`employees in Iowa, no telephone number in Iowa, and no agent for service of process in
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`Iowa. xHamster does not advertise in Iowa. No xHamster officer or director has ever
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`visited Iowa. xHamster does not maintain any of its servers within Iowa. XHamster’s
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`total absence of contacts with the State of Iowa is the antithesis of the type of continuous
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`and systematic contacts necessary for exercising general personal jurisdiction over
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`xHamster. See VGM Fin. Servs. v. Singh, 708 F. Supp. 2d 822, 835 (N.D. Iowa 2010)
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`(finding defendant’s contacts with Iowa insufficient to establish general jurisdiction where,
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`among other factors, defendant did not have an office, telephone number, bank account
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`or any employees, representatives, or agents in Iowa).
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`xHamster provides its website to internet users throughout the United States and
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`offers them the option of viewing adult films in high definition, or downloading the films
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`in HD MP, Ipod format, or HD FLV by becoming a member of its website. xHamster’s
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`website www.xHamster.com is visited daily by over 1,500,000 internet users worldwide
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`with roughly 20 percent of the site’s visitors being from the United States. Fraserside,
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`however, has presented no evidence of any Iowa resident purchasing a membership for
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`xHamster’s website, or even visiting the website. See Lakin, 348 F.3d 704, 712–13
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`(finding interactive website insufficient to confer general jurisdiction without information
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`about the quantity of defendant’s contacts with state residents through the website). Thus,
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`I conclude Fraserside has failed to meet its burden of demonstrating that Iowa courts have
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`general jurisdiction over xHamster. See Viasystems, Inc., 646 F.3d at 595; Wells Dairy,
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`Inc., 667 F.3d at 518; Miller v. Nippon Carbon Co., Ltd., 528 F.3d 1087, 1090 (8th Cir.
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`2008); Romak, 384 F.3d at 983–84.
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`2.
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`Specific jurisdiction
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`“In contrast to general, all-purpose jurisdiction, specific jurisdiction is confined to
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`adjudication of ‘issues deriving from, or connected with, the very controversy that
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`establishes jurisdiction.’” Brown, 131 S. Ct. at 2851 (quoting Arthur T. von Mehren &
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`Donald T. Trautman, Jurisdiction to Adjudicate: A Suggested Analysis, 79 HARV. L. REV.
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`1121, 1136 (1966)). Thus, “[s]pecific jurisdiction is proper ‘only if the injury giving rise
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`to the lawsuit occurred within or had some connection to the forum state, meaning that the
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`defendant purposely directed its activities at the forum state and the claim arose out of or
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`relates to those activities.’” Johnson, 614 F.3d at 795 (quoting Steinbuch, 518 F.3d at
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`586). Fraserside asserts that specific jurisdiction over xHamster exists because xHamster
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`has directed tortious conduct at Iowa. Fraserside relies upon the Calder effects test
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`formulated by the United States Supreme Court in Calder v. Jones, 465 U.S. 783 (1984)
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`and cites the decision in CYBERsitter, L.L.C. v. People’s Republic of China, ---F. Supp.
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`---, 2011 WL 3322552 (C.D. Cal. Aug. 1, 2011), in which the district court applied the
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`Ninth Circuit Court of Appeals’s expansive interpretation of Calder to conclude that it had
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`specific jurisdiction over defendant Chinese companies. The Calder effects test provides
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`that:
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`“a defendant’s tortious acts can serve as a source of personal
`jurisdiction only where the plaintiff makes a prima facie
`showing that the defendant’s acts (1) were intentional, (2) were
`uniquely or expressly aimed at the forum state, and (3) caused
`harm, the brunt of which was suffered—and which the
`defendant knew was likely to be suffered—[in the forum
`state].”
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`Johnson, 614 F.3d at 796 (quoting Lindgren v. GDT, 312 F. Supp. 2d 1125, 1132 (S.D.
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`Iowa 2004)); see Viasystems, Inc., 646 F.3d at 595 (quoting Johnson, 614 F.3d at 796).
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`The Calder effects test “allows the assertion of personal jurisdiction over non-resident
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`defendants whose acts ‘are performed for the very purpose of having their consequences
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`felt in the forum state.’” Dakota Indus., Inc. v. Dakota Sportswear, Inc., 946 F.2d 1384,
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`1390–91 (8th Cir. 1991) (quoting Brainerd v. Governors of Univ. of Alberta, 873 F.2d
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`1257, 1260 (9th Cir. 1989)). Moreover, the Eighth Circuit Court of Appeals, unlike the
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`Ninth Circuit Court of Appeals, construes the Calder effects test narrowly. See Johnson,
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`614 F.3d at 796-97 (“Additionally, even if the effect of Heineman’s alleged statement was
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`felt in Missouri, we have used the Calder test merely as an additional factor to consider
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`when evaluating a defendant’s relevant contacts with the forum state. . . We therefore
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`construe the Calder effects test narrowly, and hold that, absent additional contacts, mere
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`effects in the forum state are insufficient to confer personal jurisdiction.”); see also
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`Furminator, Inc. v. Wahba, No. 4:10CV01941, 2011 WL 3847390, at *3 (E.D. Mo. Aug.
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`29, 2011) (noting that the Eighth Circuit Court of Appeals construes the Calder effects test
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`narrowly); Oticon, Inc. v. Sebotek Hearing Sys., L.L.C.,, ---F. Supp.---, 2011 WL
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`3702423, at *15 (D.N.J. Aug. 22, 2011) (noting in Johnson, the Eighth Circuit Court of
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`Appeals expressly clarified its position that it construes the Calder effects test narrowly);
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`Express Scripts, Inc. v. Care Continuum Alliance, Inc., 2011 WL 219967, at *4 (E.D.
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`Mo. June 7, 2011) (observing that “[t]he Eighth Circuit has narrowly construed the Calder
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`effects test. . .”). Although I accept as true Fraserside’s allegations that xHamster
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`intentionally infringed Fraserside’s registered copyrights and trademarks, these allegations,
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`alone, fail to demonstrate that xHamster “uniquely or expressly aimed” its tortious acts at
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`Iowa. Johnson, 614 F.3d at 796. Although xHamster’s website is both commercial and
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`interactive, as an Iowa district court noted in a case presenting similar facts, such a website
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`“is arguably no more directed at Iowa than at Uzbekistan.” Lindgren v. GDT, L.L.C., 312
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`F. Supp. 2d 1125, 1131 (S.D. Iowa 2004). The district court concluded that because the
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`website could be accessed anywhere, including Iowa, “its existence does not demonstrate
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`an intent to purposefully target Iowa.” Id.; see ESAB Group, Inc. v. Centricut, L.L.C., 34
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`F. Supp. 2d 323, 331 (D.S.C. 1999) (“While it is true that anyone, anywhere could access
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`Centricut’s home page, including someone in South Carolina, it cannot be inferred from
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`this fact alone that Centricut deliberately directed its efforts toward South Carolina
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`residents.”). Thus, I conclude that Fraserside has failed to demonstrate that xHamster’s
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`actions were “‘performed for the very purpose of having their consequences felt in the
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`forum state.’” Dakota Indus., 946 F.2d at 1390–91 (quoting Brainerd, 873 F.2d at 1260).
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`Even assuming, arguendo, Fraserside could demonstrate that xHamster’s actions
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`were aimed at Iowa and that the consequences xHamster’s actions were felt in Iowa, the
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`Calder effects test is “merely an additional factor to consider when evaluating a
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`defendant’s relevant contacts with the forum state.” Johnson, 614 F.3d at 796–97. I must
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`also consider the five factors developed by the Eighth Circuit Court of Appeals in
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`determining whether a nonresident defendant has suffi