FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRAYTON PURCELL LLP, a 

California partnership,

Plaintiff-Appellee,

v. No. 07-15383

RECORDON & RECORDON, a D.C. No. California partnership,  CV-04-04995-EMC Defendant-cross-claimantAppellant, OPINION

v.

APPTOMIX INC.; JONATHAN LEE,

Cross-defendants. 

Appeal from the United States District Court

for the Northern District of California

Edward M. Chen, Magistrate Judge, Presiding

Argued and Submitted

October 21, 2008—San Francisco, California

Filed August 5, 2009

Before: Mary M. Schroeder, Dorothy W. Nelson and

Stephen Reinhardt, Circuit Judges.

Opinion by Judge D.W. Nelson;

Dissent by Judge Reinhardt

10389
COUNSEL

Jacob D. Zamora, Law Office of Jacob D. Zamora, Marysville, California, for the defendant-appellant.

David W. Fermino, Brayton Purcell LLP, Novato, California,

for the plaintiff-appellee.

10392 BRAYTON PURCELL v. RECORDON & RECORDON
OPINION

D.W. NELSON, Circuit Judge:

Recordon & Recordon (“Recordon”) appeals the district

court’s denial of its motion to dismiss for improper venue.1 In

copyright infringement actions, venue is proper “in the district

in which the defendant . . . resides or may be found.” 28

U.S.C. § 1400(a). This circuit interprets this provision to

allow venue in any judicial district where, if treated as a separate state, the defendant would be subject to personal jurisdiction. See Columbia Pictures Television v. Krypton Broad. of

Birmingham, Inc., 106 F.3d 284, 289 (9th Cir. 1997), rev’d on

other grounds, Feltner v. Columbia Pictures Television, Inc.,

523 U.S. 340 (1998). Because Recordon & Recordon would

be subject to personal jurisdiction in the Northern District of

California if it were treated as a separate state, we hold that

venue was proper and affirm the decision of the district court.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant Recordon & Recordon (“Recordon”) is a San

Diego-based law firm composed of two attorneys, Kathy R.

Recordon and Stephen G. Recordon. Recordon’s practice is

limited to Southern California; it does not have, nor in the

past did it ever have, any clients in the Northern District of

California (“the Forum”). Recordon does not conduct any

business, own any real or personal property, or maintain a

mailing address or telephone listing in the Forum. 

Appellee Brayton Purcell LLP (“Brayton Purcell”) is a law

firm based in Novato, California, located within the Forum.

Brayton Purcell markets itself as a leader in elder abuse law,

with a practice extending throughout California. It maintains

1Recordon waived its claim for transfer of venue. See FED. R. APP. P.

28(a)(9); Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996). 

BRAYTON PURCELL v. RECORDON & RECORDON 10393
an extensive website providing information on its elder abuse

practice, which it copyrighted effective October 7, 2002. 

In July 2004, Recordon contracted with Apptomix, Inc., a

web-design company with its principal place of business in

San Diego County, to add an elder law section to Recordon’s

website. Recordon claims this website “was designed for

information only, was passive in nature, and was directed

toward prospective clients located in San Diego County.” 

Brayton Purcell discovered Recordon’s website using

“Copyscape,” a tool that scours the internet for unauthorized

use of copyrighted materials. The elder law section of Recordon’s website consisted entirely of material copied verbatim

from, and without attribution to, Brayton Purcell’s own website. 

Brayton Purcell filed suit against Recordon for copyright

infringement, unfair competition, false advertising, and common law misappropriation.2

 Brayton Purcell alleged that

Recordon “knowingly and purposefully directed their infringing acts to this District, . . . knowing Brayton Purcell is a resident of this District and would suffer any injuries . . . in this

District.” Brayton Purcell further alleged that Recordon

“made commercial use of Brayton Purcell’s Website and of

the copyrighted material . . . [and] willfully, deliberately and

knowingly used Plaintiff ’s copyrighted work for the purpose

of promoting its business and attracting new business in the

field of elder abuse law, in competition with [Brayton Purcell].” 

Recordon filed a motion seeking, alternatively, dismissal

pursuant to Fed. R. Civ. P. 12(b)(2) for lack of personal jurisdiction,3

 dismissal pursuant to Fed. R. Civ. P. 12(b)(3) for

2At a subsequent arbitration, Brayton Purcell dropped all claims except

copyright infringement. 

3The district court accurately noted that Recordon, as a resident of California, was unquestionably subject to personal jurisdiction in California,

and thus its “motion is more properly characterized as a motion to dismiss

for improper venue rather than for a lack of personal jurisdiction.” 

10394 BRAYTON PURCELL v. RECORDON & RECORDON
improper venue, or change of venue under 28 U.S.C.

§ 1404(a). The district court denied Recordon’s motion. After

a settlement conference, the parties agreed to submit to binding arbitration. The arbitrator found for Brayton Purcell, and

the district court entered judgment in its favor. Recordon has

appealed only the district court’s denial of its motion to dismiss for improper venue, not the entry of judgment on the

arbitration award. 

II. STANDARD OF REVIEW

A district court’s rulings on personal jurisdiction and venue

are reviewed de novo. See Pebble Beach Co. v. Caddy, 453

F.3d 1151, 1154 (9th Cir. 2006) (personal jurisdiction); Immigrant Assistance Project of the L.A. County Fed’n of Labor

v. INS, 306 F.3d 842, 868 (9th Cir. 2002) (venue). Although

the burden is on the plaintiff to demonstrate that the court has

jurisdiction over the defendant, in the absence of an evidentiary hearing, the plaintiff need only make “a prima facie showing of jurisdictional facts to withstand the motion to dismiss.”

Pebble Beach, 453 F.3d at 1154 (internal quotation marks

omitted). Additionally, “uncontroverted allegations in [plaintiff ’s] complaint must be taken as true, and conflicts between

the facts contained in the parties’ affidavits must be resolved

in [plaintiff ’s] favor.” Rio Props., Inc. v. Rio Int’l Interlink,

284 F.3d 1007, 1019 (9th Cir. 2002); see also Pebble Beach,

453 F.3d at 1154 (“[F]or the purpose of this [prima facie]

demonstration, the court resolves all disputed facts in favor of

the plaintiff.”). 

III. DISCUSSION

[1] In copyright infringement actions, venue is proper “in

the district in which the defendant or his agent resides or may

be found.” 28 U.S.C. § 1400(a). The Ninth Circuit interprets

this statutory provision to allow venue “in any judicial district

in which the defendant would be amenable to personal jurisdiction if the district were a separate state.” Columbia PicBRAYTON PURCELL v. RECORDON & RECORDON 10395
tures Television v. Krypton Broad. of Birmingham, Inc., 106

F.3d 284, 289 (9th Cir. 1997), rev’d on other grounds, Feltner

v. Columbia Pictures Television, Inc., 523 U.S. 340 (1998). 

[2] This Court employs a three-prong test to determine

whether a party has sufficient minimum contacts to be susceptible to specific personal jurisdiction:4

(1) The non-resident defendant must purposefully

direct his activities or consummate some transaction

with the forum or resident thereof; 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

relates to the defendant’s forum-related activities;

and

(3) the exercise of jurisdiction must comport with

fair play and substantial justice, i.e. it must be reasonable. 

Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802

(9th Cir. 2004) (quoting Lake v. Lake, 817 F.2d 1416, 1421

(9th Cir. 1987)). Only the first prong is at issue in this appeal.

[3] The first prong is satisfied by either purposeful availment or purposeful direction, which, though often clustered

together under a shared umbrella, “are, in fact, two distinct

concepts.” Pebble Beach, 453 F.3d at 1155. “A purposeful

availment analysis is most often used in suits sounding in contract. A purposeful direction analysis, on the other hand, is

most often used in suits sounding in tort.” Schwarzenegger,

4The district court properly found that Recordon is not subject to general personal jurisdiction in the Forum. 

10396 BRAYTON PURCELL v. RECORDON & RECORDON
374 F.3d at 802 (internal citations omitted). Here, the underlying action is copyright infringement, which is often characterized as a tort. See Columbia Pictures, 106 F.3d at 289

(likening willful copyright infringement to an intentional tort).

Purposeful direction is therefore the proper analytical framework in this case. See Schwarzenegger, 374 F.3d at 802.

[4] This court evaluates purposeful direction using the

three-part “Calder-effects” test, taken from the Supreme

Court’s decision in Calder v. Jones, 465 U.S. 783 (1984). See

Schwarzenegger, 374 F.3d at 803. Under this test, “the defendant allegedly must have (1) committed an intentional act, (2)

expressly aimed at the forum state, (3) causing harm that the

defendant knows is likely to be suffered in the forum state.”

Yahoo! Inc. v. La Ligue Contre Le Racisme Et

L’Antisemitisme, 433 F.3d 1199, 1206 (9th Cir. 2006) (en

banc) (internal quotation marks omitted). There is no requirement that the defendant have any physical contacts with the

forum. See Schwarzenegger, 374 F.3d at 803. 

1. Intentional Act

In this case, the “intentional act” element is easily satisfied.

This Court “construe[s] ‘intent’ . . . as referring to an intent

to perform an actual, physical act in the real world, rather than

an intent to accomplish a result or consequence of that act.”

Id. at 806. Recordon committed an intentional act when it created and posted an elder law section on its website that

infringed Brayton Purcell’s copyright. Cf. id. (placing a newspaper advertisement was an intentional act); Rio Props., 284

F.3d at 1020 (operating a passive website was an intentional

act); Bancroft & Masters, Inc. v. Augusta Nat’l Inc., 223 F.3d

1082, 1088 (9th Cir. 2000) (sending a letter was an intentional

act).

2. Express Aiming

[5] The second part of the Calder-effects test requires that

the defendant’s conduct be expressly aimed at the forum. See

BRAYTON PURCELL v. RECORDON & RECORDON 10397
Pebble Beach, 453 F.3d at 1156. This court has emphasized

that “ ‘something more’ than mere foreseeability [is required]

in order to justify the assertion of personal jurisdiction,” Schwarzenegger, 374 F.3d at 805, and that “something more”

means conduct expressly aimed at the forum, see Pebble

Beach, 453 F.3d at 1156 (“We now conclude that ‘something

more’ is what the Supreme Court described as ‘express aiming’ at the forum state.”) (quoting Bancroft, 223 F.3d at

1087). 

[6] It is beyond dispute in this circuit that maintenance of

a passive website alone cannot satisfy the express aiming

prong. See Holland Am. Line Inc. v. Wartsila N. Am., Inc.,

485 F.3d 450, 460 (9th Cir. 2007) (“We consistently have

held that a mere web presence is insufficient to establish personal jurisdiction.”); Pebble Beach, 453 F.3d at 1158 (“[W]e

reject . . . any contention that a passive website constitutes

express[ ] aiming.”). It is equally clear, however, that “operating even a passive website in conjunction with ‘something

more’—conduct directly targeting the forum—is sufficient to

confer personal jurisdiction.” Rio Props., 284 F.3d at 1020.

Thus, regardless whether a case involves the internet, the

question remains whether the defendant’s conduct was

expressly aimed at the forum. 

[7] “Express aiming is a concept that in the jurisdictional

context hardly defines itself.” Bancroft, 223 F.3d at 1087.

This much, however, is clear: “the [express aiming] requirement is satisfied when the defendant is alleged to have

engaged in wrongful conduct targeted at a plaintiff whom the

defendant knows to be a resident of the forum state.” Id.

[8] In its complaint, Brayton Purcell alleged that Recordon

engaged in willful copyright infringement targeted at Brayton

Purcell, which Recordon knew to be a resident of the Forum.

Specifically, Brayton Purcell alleged Recordon individually

targeted it by “willfully, deliberately and knowingly” making

“commercial use of Brayton Purcell’s Website,” thereby plac10398 BRAYTON PURCELL v. RECORDON & RECORDON
ing Recordon in competition with Brayton Purcell in the field

of elder abuse law. In a supporting affidavit, Brayton Purcell

noted that elder abuse is a growing area of legal specialization, “and few law firms advertise and hold themselves out as

experts in this field.” Brayton Purcell is a leader in this burgeoning speciality, with a practice extending throughout California. Given the paucity of firms with elder abuse expertise,

any use of the infringing material by Recordon to advertise in

Southern California places Recordon in direct competition

with Brayton Purcell. Prospective clients in Southern California viewing the two firms’ websites are likely to be confused

as to the material’s true author, and some may erroneously

believe Brayton Purcell is the infringing party, harming its

business reputation. 

[9] For purposes of plaintiff ’s prima facie jurisdictional

showing, “uncontroverted allegations in . . . [plaintiff ’s] complaint must be taken as true, and conflicts between the facts

contained in the parties’ affidavits must be resolved in . . .

[plaintiff ’s] favor.” Rio Props., 284 F.3d at 1019; see Schwarzenegger, 374 F.3d at 800 (“Conflicts between parties

over statements contained in affidavits must be resolved in the

plaintiff ’s favor.”). Taking Brayton Purcell’s allegations and

statements as true, Recordon individually targeted Brayton

Purcell by making commercial use of Brayton Purcell’s copyrighted material for the purpose of competing with Brayton

Purcell for elder abuse clients. Though Recordon maintained

that its “Elder Law Section . . . was directed toward prospective clients located in San Diego County,” this does not rebut

Brayton Purcell’s allegation. That Recordon’s prospective clients reside outside the Forum is irrelevant as long as Recordon individually targeted Brayton Purcell, a Forum resident.

Cf. Bancroft, 223 F.3d at 1087-88 (finding specific personal

jurisdiction in California based on a letter sent to Virginia,

because the letter individually targeted a California resident).

Brayton Purcell has thus satisfied its burden of showing that

Recordon expressly aimed its conduct at the Forum by individually targeting a known forum resident. See Bancroft, 223

BRAYTON PURCELL v. RECORDON & RECORDON 10399
F.3d at 1087; see also Columbia Pictures, 106 F.3d at 289

(“Columbia alleged, and the district court found, that Feltner

willfully infringed copyrights owned by Columbia, which, as

Feltner knew, had its principal place of business in the Central

District. This fact alone is sufficient to satisfy the ‘purposeful

availment’ requirement.”). 

[10] This court’s decisions in Pebble Beach and Schwarzenegger are not to the contrary. In Pebble Beach, California’s Pebble Beach golf resort sued defendant for trademark

infringement. 453 F.3d at 1154. The defendant operated a bed

and breakfast called “Pebble Beach,” which was “located on

a cliff overlooking the pebbly beaches of England’s south

shore.” Id. at 1153. Defendant maintained a passive website

advertising his business. Id. The “only acts identified by Pebble Beach as being directed at California are the website and

the use of the name ‘Pebble Beach’ in the domain name.” Id.

at 1156. Reaffirming that express aiming is satisfied by individualized targeting, the court held that the defendant, by

merely registering and operating a passive informational website, “engaged in no ‘individualized targeting.’ ” Id. at 1157.

Here, in contrast, Recordon has done more than merely maintain a passive website. By plagiarizing Brayton Purcell’s website verbatim, Recordon allegedly placed the two law firms in

competition in the area of elder abuse law and created confusion among potential clients as to the true authorship of the

elder abuse material. This individualized targeting distinguishes the instant case from Pebble Beach. 

[11] In Schwarzenegger, the court held defendant’s use of

Arnold Schwarzenegger’s image in a local Ohio newspaper

insufficient to confer jurisdiction because the advertisement

“was expressly aimed at Ohio rather than California.” 374

F.3d at 807. The court found no individual targeting because

“[t]he Advertisement was never circulated in California, and

. . . [defendant] had no reason to believe that any Californians

would see it.” Id. In contrast, Recordon had every reason to

believe prospective clients in Southern California would see

10400 BRAYTON PURCELL v. RECORDON & RECORDON
the website—indeed, attracting new business was the point.

Recordon also knew its conduct was likely to confuse and

deceive potential clients as to the source of the elder abuse

material. Recordon’s wrongful conduct placed it in direct

competition for elder abuse clients with Brayton Purcell, an

established expert in the field with a practice extending into

Southern California. By thus individually targeting Brayton

Purcell, a known Forum resident, Recordon expressly aimed

its conduct at the Forum. Assuming the dissent is correct that

something more than knowledge of the residence of the plaintiff is required for there to be express aiming at the Forum,

such a requirement is satisfied here; the parties are competitors in the same business so that the intentional infringement

will advance the interests of the defendant to the detriment of

the Forum interests of the plaintiff. The express aiming prong

is therefore satisfied.

3. Foreseeable Harm

[12] The final element requires that Recordon’s conduct

caused harm that it knew was likely to be suffered in the

forum. See Yahoo!, 433 F.3d at 1206. The Court in Yahoo!

clarified that this element does not require that the “brunt” of

the harm be suffered in the forum, as some previous cases had

suggested, and that this element may be established even if

“the bulk of the harm” occurs outside the forum. Id. at 1207.

This element is satisfied when defendant’s intentional act has

“foreseeable effects” in the forum. See Bancroft, 223 F.3d at

1087. In this case, it was foreseeable that Brayton Purcell

would be harmed by infringement of its copyright, including

harm to its business reputation and goodwill, and decreased

business and profits. It was also foreseeable that some of this

harm would occur in the Forum, where Brayton Purcell was

known to reside. Indeed, Brayton Purcell specifically alleged

Recordon committed its “infringing acts . . . knowing Brayton

Purcell is a resident of this District and would suffer any injuries from Defendants’ conduct in this District.” Consequently,

BRAYTON PURCELL v. RECORDON & RECORDON 10401
Brayton Purcell has satisfied the third and final element of the

Calder-effects test. 

IV. CONCLUSION

[13] In sum, Recordon has satisfied the “purposeful direction” prong for specific personal jurisdiction. Because the parties did not dispute the remaining two prongs—that Brayton

Purcell’s claim arises out of Recordon’s purposeful direction

and that the exercise of jurisdiction does not offend traditional

notions of fair play and substantial justice—Recordon is subject to personal jurisdiction in the Northern District of California. We therefore hold that venue was proper in the

Northern District of California pursuant to 28 U.S.C.

§ 1404(a). The decision of the district court is AFFIRMED.

AFFIRMED

REINHARDT, Circuit Judge, dissenting:

As the majority recognizes, venue in this case was proper

only if Recordon & Recordon “expressly aimed” its conduct

at the Northern District of California. The majority here finds

express aiming based entirely on (1) the foreseeable harm suffered by Brayton Purcell as a result of Recordon & Recordon’s passive website, and (2) Recordon & Recordon’s

knowledge of Brayton Purcell’s residence in the Northern

District. In doing so, the majority disregards binding circuit

authority, which establishes that “something more” than the

“foreseeable effect” of an intentional tort committed against

a party known to be a resident of the forum is required to

establish venue. Pebble Beach Co. v. Caddy, 453 F.3d 1151,

1158 (9th Cir. 2006) (internal quotation omitted). Through its

website, Recordon & Recordon sought customers only in the

Southern District of California, Maj. Op. at 10398-99, and its

only link to the Northern District was its knowledge of Bray10402 BRAYTON PURCELL v. RECORDON & RECORDON
ton Purcell’s residence. Because Recordon & Recordon’s

website was targeted exclusively at San Diego County, id., its

conduct was clearly not “expressly aimed” at the Northern

District. Pebble Beach, 453 F.3d at 1158. Accordingly, the

“expressly aimed” test was not met, and venue did not lie in

the Northern District.1

I.

The undisputed record here establishes that Recordon &

Recordon limited its legal practice to Southern California.

The firm operated exclusively out of Southern California,

practiced entirely in Southern California, and had never had

any clients or legal work in the Northern District. Likewise,

there is no dispute that the “elder law” material on Recordon

& Recordon’s website was directed toward prospective clients

in Southern California exclusively. See Maj. Op. at 10399. As

the majority recognizes, any confusion or competition resulting from Recordon & Recordon’s website involved only

“[p]rospective clients in Southern California.” Id.

Under these circumstances, venue was proper in the Northern District only if Recordon & Recordon “ ‘(1) committed an

intentional act, (2) expressly aimed at the [Northern District],

(3) causing harm that [Recordon & Recordon] kn[ew] [was]

likely to be suffered in the [Northern District].’ ” Yahoo! Inc.

v. La Ligue Contre le Racisme et L’Antisemitisme, 433 F.3d

1199, 1206 (9th Cir. 2006) (en banc) (quoting Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 803 (9th Cir.

2004)) (emphasis added). As the majority notes, the second

prong, “express aiming,” requires that Recordon & Recordon

have engaged in “conduct directly targeting the forum.” Maj.

1The Northern District of California and the Southern District of California are treated like separate states for the purposes of establishing

venue. Columbia Pictures Television v. Krypton Broad. of Birmingham,

Inc., 106 F.3d 284, 289 (9th Cir. 1997), rev’d on other grounds, Feltner

v. Columbia Pictures Television, Inc., 523 U.S. 340 (1998). 

BRAYTON PURCELL v. RECORDON & RECORDON 10403
Op. at 10398 (quoting Rio Props., Inc. v. Rio Int’l Interlink,

284 F.3d 1007, 1019 (9th Cir. 2002). The majority holds that

Recordon & Recordon’s conduct was “targeted” at the Northern District of California because it knew that Brayton Purcell

was a resident of that district and it committed an intentional

tort causing foreseeable harm to Brayton Purcell. Specifically,

Recordon & Recordon “willfully, deliberately and knowingly

ma[de] commercial use of” the material developed by Brayton

Purcell. Maj. Op. at 10398. The harm it caused, the majority

reports, was “competition . . . in the field of elder abuse law”

and confusion among “[p]rospective clients.” Id. The competition and confusion occurred exclusively in the Southern District, and the only fact linking Recordon & Recordon’s actions

to the Northern District was its knowledge of Brayton Purcell’s residence in that district.

Finding “express aiming” in these circumstances is contrary to circuit authority, which establishes that express aiming must include “something more” than knowledge of the

plaintiff’s residence and an intentional tort causing harm to

the plaintiff. In Schwarzenegger v. Fred Martin Motor Co.,

for example, the defendant committed an intentional act of

intellectual property infringement, the unauthorized use of

Arnold Schwarzenegger’s photograph in advertisements,

knowing Schwarzenegger to be a Californian. 374 F.3d at

799, 807. That act ultimately caused Schwarzenegger harm.

Id. at 807. Nonetheless, we found no “express aiming”

because the advertisement was directed entirely at Ohio. Id.

The court explained, 

Fred Martin’s intentional act — the creation and

publication of the Advertisement — was expressly

aimed at Ohio rather than California. The purpose of

the Advertisement was to entice Ohioans to buy or

lease cars from Fred Martin and, in particular, to

“terminate” their current car leases. . . . It may be

true that Fred Martin’s intentional act eventually

caused harm to Schwarzenegger in California, and

10404 BRAYTON PURCELL v. RECORDON & RECORDON
Fred Martin may have known that Schwarzenegger

lives in California. But this does not confer jurisdiction, for Fred Martin’s express aim was local.

Id. (emphasis added). This passage from Schwarzenegger

could not be clearer: Express aiming requires “something

more” than an intentional, tortious act causing harm to a

known resident of a state in order for that state to attain forum

status.

Likewise, in Pebble Beach Co., the defendant maintained

a passive website that infringed upon the trademark of a business known to him to be located in California — the Pebble

Beach golf course and resort. 453 F.3d at 1153-54. Following

Schwarzenegger, the court found no “express aiming”

because the website was not directed at California. Id. at

1158. In language directly applicable here, the court

explained, “where the sole basis for [finding express aiming]

is a non-interactive passive website . . . . the fact that [the

defendant’s] website is not directed at [the forum jurisdiction]

is controlling” and precludes a finding that the defendant’s

conduct was expressly aimed at the forum. Id. at 1158.

Pebble Beach and Schwarzenegger establish that knowledge of the plaintiff’s residence and a foreseeable harm to the

plaintiff are, standing alone, insufficient to establish express

aiming; “something more” is required in order for the state of

the plaintiff’s residence to constitute a proper forum. Recordon & Recordon’s actions involved “nothing more” than the

maintaining of a non-interactive, passive website targeted at

customers in Southern California with knowledge that the

owner of the material being improperly used lived in Northern

California. Just as the purpose of the advertisement in Schwarzenegger was to “entice” individuals in Ohio to buy automobiles in that state, the purpose of Recordon & Recordon’s

website was to entice potential customers in San Diego

County to purchase Recordon & Recordon’s legal services.

The fact that Recordon & Recordon used a passive website

BRAYTON PURCELL v. RECORDON & RECORDON 10405
rather than a print advertisement to attract customers is of no

consequence: Pebble Beach, relying heavily on Schwarzenegger, establishes that, with regard to “express aiming,” a passive, non-interactive website is treated no differently than a

print advertisement. If a website is not directed at customers

in a forum, the defendant’s conduct in maintaining the website is not targeted at that forum. 453 F.3d at 1158. Because

Recordon & Recordon’s website was directed to an audience

entirely outside of Northern California, Pebble Beach and

Schwarzenegger preclude a finding of “express aiming.”

2

In its attempt to evade this controlling authority, the majority asserts that Pebble Beach and Schwarzenegger are inapplicable because Recordon & Recordon’s website “place[d]

Recordon in direct competition [in Southern California] with

Brayton Purcell” and harmed Brayton Purcell’s business reputation by “creat[ing] confusion among potential clients [in

Southern California] as to the true authorship of the elder

abuse material.” Maj. Op. at 10398, 10400. These consequences of Recordon & Recordon’s actions are nothing more

than the “harm . . . suffered” by Brayton Purcell as a result

of Recordon & Recordon’s actions. Yahoo! Inc., 433 F.3d. at

1206. In relying upon the foreseeable effects of Recordon &

Recordon’s actions to establish express aiming, the majority

conflates two distinct prongs of the test for personal jurisdiction and adopts an approach to the express aiming require2There is some tension between certain language on which the majority

relies from Bancroft & Masters, Inc. v. Augusta Nat’l Inc., 223 F.3d 1082,

1087 (9th Cir. 2000), and Columbia Pictures Television, 106 F.3d at 289,

and our more recent decisions in Pebble Beach and Schwarzenegger.

However, the majority errs by relying on two sentences from the former,

older cases rather than the holdings of the circuit’s latter, more recent

cases. The understanding of “express aiming” articulated in Pebble Beach

and Schwarzenegger was endorsed by the en banc court in Yahoo!, which

relied upon Schwarzenegger extensively, id. at 1205-09, while reading

Bancroft narrowly, 433 F.3d at 1208-09. Schwarzenegger thus represents

the law of the circuit, and if there is any tension between Schwarzenegger

and Bancroft, it must be resolved in favor of Schwarzenegger. 

10406 BRAYTON PURCELL v. RECORDON & RECORDON
ment expressly rejected in Pebble Beach. As Pebble Beach

explained, “showing ‘effect’ satisfies only the third prong of

the [ ] test — it is not the ‘something more’ that is required”

to establish express aiming. 453 F.3d at 1160.3

II.

Although the stakes of the particular dispute between Brayton Purcell and Recordon & Recordon are minor, the consequences of the majority’s opinion will be major. By ignoring

the rules established by Schwarzenegger and Pebble Beach

and endorsed by Yahoo!, the majority undermines this circuit’s recent efforts to bring clarity to the law of specific personal jurisdiction. Clear rules are important in this area,

because personal jurisdiction is a threshold issue in every lawsuit and the erroneous exercise of personal jurisdiction

deprives all subsequent proceedings of legal effect. Unfortunately, in abandoning the simple and easily applied rule established by Schwarzenegger and Pebble Beach, the majority

leaves litigants without any clear principle by which to apply

its new rule that some in-forum effects amount to “express

aiming,” while others do not.

More important, the majority opinion would permit a

defendant who resides in Ohio, Florida, or Maine, thousands

of miles from the Ninth Circuit, to be sued in the Northern

District of California based on nothing more than his knowl3Because Brayton Purcell resides in the Northern District of California,

these effects might be enough to establish that the “harm suffered in the

forum” prong is met in this case, although I am skeptical that harm can

be “suffered in [a] forum” notwithstanding that the tortious conduct and

its consequences — competition for and confusion among customers in

Southern California — both occurred entirely outside the forum. Notably,

Schwarzenegger declined to decide whether the plaintiff’s residence in

California was enough to establish that any harm that resulted from the

defendant’s actions was suffered in that state. 374 F.3d at 807 n.1. I need

not reach that question because, in the absence of “express aiming,” venue

was in any event improper. 

BRAYTON PURCELL v. RECORDON & RECORDON 10407
edge that the plaintiff whose intellectual property rights he

allegedly infringed resides in San Francisco. Under the majority’s opinion, every website operator faces the potential that

he will be hailed into far-away courts based upon allegations

of intellectual property infringement, if he happens to know

where the alleged owner of the property rights resides. Due

process and basic principles of fairness prohibit such an

expansive exercise of personal jurisdiction.

Recordon & Recordon had no connection to the Northern

District of California besides its knowledge of Brayton Purcell’s residence there, and its website was targeted entirely at

potential clients in the Southern District. Pebble Beach and

Schwarzenegger are squarely on point and preclude a finding

of express aiming in these circumstances. 

I respectfully dissent.

10408 BRAYTON PURCELL v. RECORDON & RECORDON