United States District Court, E.D. Virginia, Alexandria Division
M. HILTON UNITED STATES DISTRICT JUDGE
MATTER comes before the Court on Defendant Tofig
Kurbanov's Motion to Dismiss pursuant to Federal Rule of
Civil Procedure 12(b) (2), or, alternatively, to transfer the
case to the Central District of California.
are twelve record companies that produce, distribute, and
license the majority of commercial sound recordings in the
United States. All of them are Delaware companies, with eight
having their principal place of business in New York, three
in California, and one in Florida.
is a Russian national living and working in the Russian
Federation. Defendant owns and operates two websites,
www.FLVTO.biz (FLVTO) and www.2conv.com (2conv) (collectively
the "Websites"). The Websites are devoted to
"stream ripping" which is a process by which users
may "rip" a file from a streaming platform and
convert it to a downloadable file format, such as an mp3.
Terrica Carrington, "Stream-Ripping" A Growing
Threat to the Music Industry, Copyright Alliance (Nov.
A large portion of the files ripped using the Websites come
from YouTube videos and are frequently music videos, however,
the Websites are able to stream rip from a wide variety of
sources. Neither Plaintiffs nor YouTube authorize or condone
the ripping of files from YouTube videos. The Websites are
visited very frequently by users around the world. The
Websites are available in twenty-three different languages
and are most used in Brazil, Italy, and Mexico. FLVTO
received over 263 million visits between October 2017 and
September 2018 making it the 322nd most visited website in
the world. 2conv also receives millions of visits each month.
A significant portion of this traffic comes from the United
States and Virginia more specifically. Approximately 26.3
million of FLVTO's visitors last year, or 9.92%, come
from the United States. Nearly 500, 000 of FLVTO's
visitors came from Virginia. 2conv had similar percentages of
its users from the United States and Virginia respectively.
Websites are free to users and users do not have to register
to use the Websites' capabilities. Users do have to agree
maintain a relationship with individual users beyond this
earns revenue from the Websites only through advertisements
posted on then. Some of the advertisements placed on the
Websites have geo-targeting capabilities, which means that
the advertisements can be targeted to users based on their
location. A similar function is available for interest-based
targeting of advertisements on the Websites. Defendant sells
the advertising placements to an advertising broker who then
resells them to actual advertisers. Defendant deals directly
with a broker in the Ukraine and does not deal with anyone in
the United States or Virginia with regard to the sale or
placement of advertisements. Defendant does not advertise the
Websites in any way in the United States or elsewhere.
has the Websites' domain names registered with
GoDaddy.com, a United States based domain-name registrar.
Defendant also has top-level domains for the Websites
administered by VeriSign, Inc. (2conv) and Neustar, Inc.
(FLVTO) both of which are headquartered in Northern Virginia.
As of July 2018, the Websites were, and have since been,
hosted by Hetzner Online Gmbh, a German based organization
without servers in the United States. For nearly three years
prior to July 2018, the Websites were hosted by Amazon Web
Services which has servers physically located in Ashburn,
operates the Websites entirely from Russia. Defendant has not
directly done business in the United States or Virginia, nor
does he have an agent in either forum. Defendant has no bank
account in the United States, nor has he paid taxes here.
allege that the Websites are a vehicle for music piracy and
copyright infringement. Plaintiffs filed this lawsuit as an
action for copyright infringement under the Copyright Act of
the United States, 17 U.S.C. §§ 101 et seq., on
August 3, 2018. Defendant moves to dismiss the Complaint for
lack of personal jurisdiction, or, alternatively, to have the
case transferred to the Central District of California.
motion to dismiss tests the sufficiency of the complaint.
See Republican Party of N.C. v. Martin, 980 F.2d
943, 952 (4th Cir. 1992). On a Rule 12(b)(2) motion, a
defendant must affirmatively challenge personal jurisdiction
and the plaintiff bears the burden of demonstrating the
existence of personal jurisdiction at every stage following
the defendant's challenge. Grayson v. Anderson,
816 F.3d 262, 267 (4th Cir. 2016). A plaintiff must establish
personal jurisdiction by a preponderance of the evidence but
need only make a prima facie showing. Combs v.
Bakker, 886 F.2d 673, 676 (4th Cir. 1989). This prima
facie standard is "tolerant." See id., at
676-77. Further, a court "must draw all reasonable
inferences arising from the proof, and resolve all factual
disputes, in the plaintiff's favor." Mylan
Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 60 (4th Cir. 1993)
(citing Combs, 886 F.2d at 676). A court may look
beyond the complaint to affidavits and exhibits in order to
assure itself of jurisdiction. Grayson, 816 F.3d at
Defendant challenges this Court's personal jurisdiction
over him. Plaintiffs state that there is personal
jurisdiction over Defendant under either Federal Rule of
Civil Procedure 4(k) (1) or 4(k) (2) .
Court must evaluate whether it has personal jurisdiction over
Defendant by looking at whether he is "subject to the
jurisdiction of a court of general jurisdiction in the
state" where the Court is located, i.e. in Virginia.
Fed.R.Civ.P. 4(k)(1)(A). This is done by considering the two
prongs of whether Virginia's long-arm statute provides
jurisdiction and whether the jurisdiction comports with due
process. CFA Inst, v. Inst, of Chartered Fin. Analysts of
India, 551 F.3d 285, 293 (4th Cir. 2009). Numerous state
and federal courts have construed Virginia's long-arm
statute to extend personal jurisdiction over nonresident
defendants to the full extent permitted by the Due Process
Clause of the Fourteenth Amendment. Va. Code Ann. §
8.01-328.1; CFA Inst., 551 F.3d at 293; English
& Smith v. Metzger, 901 F.2d 36, 38 (4th Cir. 1990);
Peninsula Cruise, Inc. v. New River Yacht Sales,
Inc., 512 S.E.2d 560, 562 (Va. 1999). Where the long-arm
statute's authorization is coterminous with the full
limits of due process, the two inquiries merge and the court
may consider solely whether due process is satisfied.
Consulting Eng'rs Corp. v. Geometric Ltd., 561
F.3d 273, 277 (4th Cir. 2009); CFA Inst., 551 F.3d
at 293. A court conducts the same due process analysis under
Rule 4(k)(2), only the analysis is applied to all fifty
states, as opposed to the single forum state. See Base
Metal Trading v. Ojsc Novokuznetsky Aluminum Factory,
283 F.3d 208, 215 (4th Cir. 2002) .
jurisdiction was historically limited by the physical
presence of a defendant in the territorial jurisdiction of
the court. See Int'l Shoe Co. v. Washington, 326
U.S. 310, 316 (1945); Pennoyer v. Neff, 95 U.S. 714,
733 (1877). Over time the Supreme Court recognized, however,
that due process only requires that a defendant have certain
"minimum contacts" within the territory such that a
suit would not offend "traditional notions of fair play
and substantial justice." Int'1 Shoe Co.,
326 U.S. at 316 (quoting Milliken v. Meyer, 311 U.S.
457, 463 (1940)). While there has been some relaxation in the
standards of personal jurisdiction, the Supreme Court has
noted that it would be "a mistake to assume that this
trend heralds the eventual demise of all restrictions on . .
. personal jurisdiction." Hanson v. Denckla,
357 U.S. 235, 250-51 (1958).
jurisdiction comes in two flavors: (1) general jurisdiction
and (2) specific jurisdiction. General jurisdiction may be
established if the defendant's activities in the
territory meet the demanding standard of "continuous and
systematic." Helicopteros Nacionales de Colombia,
S.A. v. Hall, 466 U.S. 408, 415-16 (1984); ALS Scan,
Inc. v. Digital Service Consultants, Inc., 293 F.3d 707,
712 (4th Cir. 2002). General jurisdiction may be used to
maintain a suit against a defendant even when it does not
arise out of the defendant's activities in the forum
state. ALS Scan, 293 F.3d at 712. In contrast
specific jurisdiction allows for a suit to be maintained only
when the defendant's contacts with the forum are also the
basis for the suit. Id. To determine if specific
jurisdiction exists, a court must consider (1) the extent to
which the defendant purposefully availed itself of the
privilege of conducting activities in the forum state; (2)
whether the plaintiffs' claims arise out of ...