26 August 2000: Link to DVD CCA opposition memorandum.

2 August 2000. Thanks to EFF.

39261-64-0
ALLONN E. LEVY (Bar No. 187251)
HUBER ¨ SAMUELSON APC
210 North Fourth Street, Suite 400
San Jose, CA 95112
Telephone: (408) 295-7034
Facsimile: (408) 295-5799

Attorneys for Defendant
MATTHEW Pavlovich

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SANTA CLARA

I.

INTRODUCTION

Defendant MATTHEW PAVLOVICH submits this memorandum in support of his pending motion to quash service of process. Defendant’s motion, and all attendant papers and actions, are intended to serve as a special appearance pursuant to section 418.10 of the California Code of Civil Procedure. Furthermore, Defendant neither consents nor submits to the jurisdiction of this Court, instead, contesting jurisdiction by way of this motion.

A. Nature Of Action

This is a First Amendment case where the plaintiff, DVD CCA seeks to enjoin Defendant and some 500 other defendants from republishing a piece of computer code identified as DeCSS.

Plaintiff claims that it is entitled to restrain the defendant's right to republish this speech by alleging the code is a misappropriated trade secret. Plaintiff speculates that an individual named Jon Johanson authored DeCSS by misappropriating trade secrets and that Defendant herein and others subsequently republished DeCSS with actual or constructive knowledge that DeCSS contained misappropriated trade secrets (see Plaintiff’s complaint attached as exhibit "A" to the declaration of Allonn E. Levy (hereafter "AELDEC") filed concurrently herewith and referred to hereinafter as "Complaint" at p.13:17-27; p.17:24-28). Pavlovich is alleged to have republished DeCSS on a web site located at "www.livid.on.openprojects.net" (Complaint at p.5:13-16).

B. Identification of Parties

Plaintiff DVD CCA is a Delaware corporation with offices located in Morgan Hill, California (Complaint at p.3:12-17), claiming harm based on the republication of DeCSS. Defendant Pavlovich is an out-of-state resident served by U.S. mail in Indiana and currently residing in Texas.

C. Summary Of Facts Re Jurisdiction

Defendant’s involvement in this case is limited to his role as an alleged republisher of the DeCSS code while enrolled as a full-time student at the University of Indiana (see declaration of Matthew Pavlovich filed concurrently herewith, hereinafter referred to as "PAVDEC" at par. 3). Plaintiff alleges that Defendant Pavlovich is responsible for the posting of DeCSS on the "www.livid.on.openprojects.net" web site (complaint at p.5:13-16).

Defendant Pavlovich has no connection with California. Pavlovich does not reside in California and does not have any regular clients or work in California (PAVDEC at par.10). Furthermore, Pavlovich has never: solicited business in California; designated a registered agent for service of process in California; maintained a place of business in California; maintained a telephone listing in California; maintained a bank account in California; or even visited California for any business purpose (PAVDEC at par. 11). The web site plaintiff's attribute to Pavlovich in their complaint was a "passive" web-site that did not involve the interactive exchange of information with users, did not solicit or engage in business activities and did not solicit contact with California residents (PAVDEC at par. 9).

D. Summary Of Argument

By way of this pending motion, Defendant asks this Court to quash service of process on the grounds that this Court lacks power to exercise personal jurisdiction over Defendant. Defendant is not a California resident and is not domiciled in California, has no contacts, no ties, no relationship with California, was not served within California, and has not consented to or appeared in the California action (Pennoyer v. Neff 95 U.S. 714, 733 (1877)). Therefore, there is no constitutionally sufficient basis for this Court to assert personal jurisdiction over Defendant. Accordingly, this Court must quash service of process and set aside any existing default or default judgment as void (C.C.P. §473(d); C.C.P. §418.10(d)).

II.

BECAUSE THIS COURT LACKS PERSONAL JURISDICTION OVER DEFENDANT Pavlovich, THE COURT SHOULD SET ASIDE ANY DEFAULT OR DEFAULT JUDGMENT AND QUASH SERVICE OF PROCESS

California courts are empowered to exercise personal jurisdiction on any basis consistent with the State or Federal Constitution (CCP §410.10). In this regard, a court may exercise personal jurisdiction over a non-resident defendant only when the defendant has such minimum contacts with the forum state that the maintenance of the suit does not offend "traditional notions of fair play and substantial justice" (Felix v. Bomoro Kommanditgesellschaft (1987) 196 Cal.App.3d 106, 111 [citing International Shoe Co. v. Washington 326 U.S. 310, 316 (1945)]; Helicopteros Nacionales de Columbia v. Hall 466 U.S. 408, 414 (1984). Moreover, minimum contacts are measured on a case-by-case basis and the ultimate test is whether "California has a sufficient relationship with the [particular] defendant and litigation [as] to make it reasonable ("fair play")..." to require the defendant to defend the litigation in California (Weil & Brown, Cal.Prac.Guide: Civ.Pro.Before Trial, (The Rutter Group 1999) §3:202 at 3-41.2 . Additionally, any default or default judgment entered without jurisdiction over the defendant is necessarily void.

A. The court lacks personal jurisdiction over defendant Pavlovich

The personal jurisdiction analysis is broken down into two questions: [1] does "general" jurisdiction exist; and [2] absent "general" jurisdiction, does "specific" jurisdiction exist (see Brown v. Watson (1989) 207 Cal.App.3d 1306, 1312). In other words:

If a defendant has sufficient extensive 'contacts' with the forum state, it may be subject to suit there on all claims wherever they arise [i.e., general jurisdiction].... [In] other cases, the jurisdictional sufficiency of the defendant's contacts depends on an assessment of the 'relationship among the defendants, the forum, and the litigation [i.e., specific jurisdiction]'.

Sammons Enterprises, Inc. v. Superior Court (1988) 205 Cal.App.3d 1427, 1432.

As explained below, neither "general" nor "specific" jurisdiction are present in this case.

1. General Jurisdiction Is Absent In This Case

General jurisdiction depends upon substantial, continuous, and systematic contacts between the defendant and the forum state. Perkins v. Benguet Mining Consolidated Mining Co., (1952) 342 U.S. 437, 447-448; KLM v. Superior Court, (1951) 107 Cal.App.2d 495, 500; Sammons Enterprises, Inc. v. Superior Court, supra, 1434; Secrest Machine Corp. v. Superior Court (1983) 33 Cal.3d 664, 669. In this case, Defendant Pavlovich's contact with California is anything but substantial, continuous, or systematic.

First, Defendant is a Texas resident, formerly a resident of Indiana. Second, Defendants does not have any regular business, clients or employees in California. Third, Defendant has never solicited business in California. Fourth, Defendant has never designated a registered agent for service of process in California. Fifth, Defendant has never maintained a place of business in California or even a telephone listing in California. Sixth, Defendant has never owned property or maintained a bank account in California. Seventh, Defendant has never even been to California for business purposes. (PAVDEC generally, and at par. 10, 11).

In short, Defendant has not engaged in any business activities in California, much less any activities that may be described as substantial, continuous, or systematic. Hence, there is no basis for California to exercise general jurisdiction over Defendant Pavlovich. Since California has no real relationship with this Defendant, it is not reasonable to require Pavlovich to defend pending litigation in California.

2. Specific Jurisdiction Is Absent In This Case

Specific jurisdiction depends upon a showing that the non-resident defendant purposefully established contacts with the forum state, that the plaintiff's cause of action arises out of the defendant's forum-related contacts, and the forum's exercise of personal jurisdiction comports with fair play and substantial justice. Burger King v. Rudzewicz, 471 U.S. 462, 472, 476-78 (1985); Cornelison v. Chaney, (1976) 16 Cal.3d 143, 148. In other words:

Where a non-resident defendant's activities in the forum are not so pervasive as to justify the exercise of general jurisdiction over him, then jurisdiction depends upon the quality and nature of his activity in the forum in relation to the particular cause of action.... Thus, as the relationship of the defendant with the state seeking to exercise jurisdiction over him grows more tenuous, the scope of jurisdiction also retracts and fairness is assured by limiting the circumstances under which the plaintiff can compel him to appear and defend.

Brown v. Watson (1989) 207 Cal.App.3d 1306, 1312-1313, emphasis added.

Thus, specific jurisdiction is determined under a three-part test: '(1) The nonresident defendant must do some act or consummate some transaction with the forum or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) the claim must be one which arises out of or results from the defendant's forum-related activities; and (3) exercise of jurisdiction must be reasonable.

(Jewish Defense Organization Inc. v. Superior Court (1999) 72 Cal.App.4th 1045, 1054, citing Panavision Intern., L.P. v. Toeppen 141 F.3d 1316, 1320 (9th Cir. 1998)).

The aforesaid requirements are absent in this case.

a. Pavlovich has had no purposeful contact with California and has not purposefully availed himself of the benefits of the forum state

First, this case does not involve purposeful contact between Defendant and California. A "purposeful" contact is one in which a particular defendant has deliberately directed his/her activities at the residents of the forum state or has deliberately availed himself/herself of the benefits and protections of the laws of the forum state (Hanson v. Denckla, (1958) 357 U.S. 235, 253-254; See Also Sibley v. Superior Court, (1976) 16 Cal.3d 442, 447-448). Stated in the converse, personal jurisdiction does not extend to a non-resident defendant by virtue of "random, fortuitous or attendant..." contacts over which the defendant had no control (Burger King v. Rudzewicz, 471 U.S. 462, 475-76, 485 (1985). Furthermore, unilateral activity on the part of the plaintiff or others over whom the non-resident defendant has no control does not translate into a purposeful contact on the part of the defendant (Helicopteros Nacionales v. Hall, 466 U.S. 408, 416-417 (1984).

In this case, Defendant was a student during the time period outlined in the complaint, and never transacted business within anyone in California (PAVDEC generally). Furthermore, Pavlovich did not exercise any control over anyone in California and never solicited contacts with California residents through the web site identified in the complaint (PAVDEC at par 9,10, 11). Assuming, arguendo, that any California resident contacted the subject web site, such contact would have been simply fortuitous. The web site merely contained information available to any Internet user and did not target or in anyway solicit California residents (PAVDEC at par. 9). Additionally, Pavlovich cannot have targeted his action at either DVD CCA or California since he was not aware of the existence of DVD CCA (much less their place of business) prior to the filing of this lawsuit (PAVDEC at par. 12). Accordingly, to the extent that Defendant Pavlovich is involved in the transaction which is the subject of this lawsuit, his involvement cannot be described as a purposeful contact with California.

Court's have established guidelines in cyberspace cases where the plaintiff attempts to utilize the "effects test" (Calder v. Jones 465 U.S. 783 (1984)) to satisfy the "purposeful availment" requirement of specific jurisdiction:

[T]he likelihood that personal jurisdiction can be constitutionally exercised is directly proportionate to the nature and quality of commercial activity that an entity conducts over the Internet. This sliding scale is consistent with well developed personal jurisdiction principles. 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. [Citation.] 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. [Citation]

(Jewish Defense Organization v. Superior Court, supra, at 1060)

Here, Pavlovich has at most offered information on a passive web site. Assuming, arguendo, that the information reached California residents such contacts would be insufficient to establish specific jurisdiction (Id; and see also Cybersell, Inc. v. Cybersell, Inc,130 F.3d 414 (9th Cir. 1997). In Jewish Defense Organization Inc. v. Superior Court, supra, the Court of Appeals reversed the trial court's denial of a defendant's motion to vacate default judgment and quash service of process where the Defendant had made allegedly defamatory statements (the subject of the lawsuit) on his Web site, used the U.S. mail to contact a California resident, previously resided in California, and contracted with a California Internet service provider (ISP) to host his Web site in question. In the instant case, the forum contacts are even less substantial than those in Jewish Defense Organization. Pavlovich has had no contacts with California and is only alleged to have offered information on a passive web site (PAVDEC generally). Thus, this Court should follow the Appellate Court’s holding in Jewish Defense Organization, set aside any default, and quash service of process based on a lack of purposeful availment.

b. The Claim does not arise from Pavlovich’s forum-related activities

Second, Plaintiff's cause of action does not relate to any local activities on the part of Defendant Pavlovich. Personal jurisdiction is restricted to situations wherein a particular cause of action relates to or "arises out of" the defendant's forum-related activities (Jewish Defense Organization, supra, at 1054 and Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437, 444-445 (1952). In this case, plaintiff has alleged that defendant Pavlovich misappropriated DVD CCA's trade secrets by republishing said trade secrets world-wide (Complaint at p.14:13-17). There is no allegation that it was a specific publication to a California resident that caused DVD CCA's alleged harm. Indeed, whether Pavlovich's alleged republication happened to reach this particular forum is irrelevant to DVD CCA's claim. Thus, it cannot be said that the plaintiff's claim arises from or relates to Pavlovich’s contact with this forum.

c. Exercise of jurisdiction would not be reasonable in this case

Third, it is unreasonable, and thus constitutionally offensive, to impose personal jurisdiction in this case. In ascertaining reasonableness in applying personal jurisdiction, Courts balance the following factors:

The interest of the state in providing a forum for its residents or in regulating the business involved...; the relative availability of the evidence and the burden of defense and prosecution in one place rather than another...; the ease of access to an alternative forum...; the avoidance of multiplicity of suits and conflicting adjudications...; and the extent to which the cause of action arose out of defendant's local activities....

Fisher Governor Co. v. Superior Court, (1959) 53 Cal.2d 222, 225-26.

To date, the defense is aware of only one California witness essential to the prosecution and defense of this action, Mr. John Hoy. By contrast, an array of witnesses that could provide information in this case are available from Norway, to Japan, to England, to New York and Connecticut. The fact that two similar cases are currently being prosecuted in Connecticut and New York makes it clear that this case could be tried in any number of other available forums. Also, since California has adopted the Uniform Trade Secrets Act, the plaintiff has the ability to prosecute the same claim in any number of other jurisdictions.

Additionally, there are no overriding policy considerations that compel California to assert jurisdiction over Pavlovich, an individual Texas resident and former Indiana student. This case has nothing to do with any activities that Defendant performed in California. In point of fact, Pavlovich has performed no activities in California, did not solicit or engage in transactions with California, and certainly engaged in no activities with California that gave rise to the pending litigation.

Additionally, because Pavlovich is domiciled in Texas (PAVDEC at par. 6), is employed in Texas at a new start-up company (PAVDEC at par. 3, 4), and has no contact with, or reason to come to, California (PAVDEC at par. 10), it would necessarily be a substantial burden on Pavlovich to defend this action in California (PAVDEC at par. 13).

With the above factors in mind, it is evident that the balance weighs heavily against jurisdiction in California. Therefore, and in the interests of fair play and substantial justice, this Court should not impose jurisdiction in this case.

III.

CONCLUSION

For all of the above reasons, California does not have personal jurisdiction over Defendant Pavlovich; therefore, Defendant’s motion to vacate default and/or default judgment and quash service should be granted.

TABLE OF CONTENTS

Page

I. INTRODUCTION 1

A. Nature Of Action 2
B. Identification of Parties 2
C. Summary Of Facts Re Jurisdiction 2
D. Summary Of Argument 3

II. BECAUSE THIS COURT LACKS PERSONAL JURISDICTION OVER DEFENDANT Pavlovich, THE COURT SHOULD SET ASIDE ANY DEFAULT OR DEFAULT JUDGMENT AND QUASH SERVICE OF PROCESS 4

A. The court lacks personal jurisdiction over defendant Pavlovich 4

1. General Jurisdiction Is Absent In This Case 5
2. Specific Jurisdiction Is Absent In This Case 6

a. Pavlovich has had no purposeful contact with California and has not purposefully availed himself of the benefits of the forum state 6
b. The Claim does not arise from Pavlovich’s forum-related activities 8
c. Exercise of jurisdiction would not be reasonable in this case 9

III. CONCLUSION 11

TABLE OF AUTHORITIES

FEDERAL CASES

Calder v. Jones, 465 U.S. 783 (1984) 7

Cybersell, Inc. v. Cybersell, Inc, 130 F.3d 414 (9th Cir. 1997) 8

Hanson v. Denckla, 357 U.S. 235 (1958) 6

Helicopteros Nacionales de Columbia v. Hall, 466 U.S. 408 (1984) 4,7

Burger King v. Rudzewicz, 471 U.S. 462 (1985) 6,7

Panavision Intern., L.P. v. Toeppen, 141 F.3d 1316 (9th Cir. 1998) 6

Pennoyer v. Neff, 95 U.S. 714 (1877) 3

Perkins v. Benguet Mining Consolidated Mining Co., 342 U.S. 437 (1952) 5,9

World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980) 4

STATE CASES

Brown v. Watson (1989), 207 Cal. App. 3d 1306 4,6

Cornelison v. Chaney, (1976), 16 Cal. 3d 143 6

Felix v. Bomoro Kommanditgesellschaft (1987), 196 Cal. App. 3d 106 4

Fisher Governor Co. v. Superior Court, (1959), 53 Cal. 2d 222 9

Floveyor Int. Ltd v. Superior Court (1997), 59 Cal. App. 4th 789 4

Jewish Defense Organization Inc. v. Superior Court (1999), 72 Cal. App. 4th 1045 6,8,9

KLM v. Superior Court, (1951), 107 Cal. App. 2d 495 5

Sammons Enterprises, Inc. v. Superior Court (1988), 205 Cal. App. 3d 1427 5

Secrest Machine Corp. v. Superior Court (1983), 33 Cal. 3d 664 5

Sibley v. Superior Court, (1976), 16 Cal. 3d 442 6

DOCKETED CASES

Universal City Studios, Inc. et al. v. Hughes, case no. 300CV721 RNC, (D.Ct), 10

Universal City Studios et al. v. Reimerdes et al., case no. 00Civ.0277 (LAK), 10

STATUTES

C.C.P. §418.10 1,3

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