Yahoo! Inc. v. La Ligue Contre Le Racisme Et L'antisemitisme

TASHIMA, Circuit Judge,

with whom FERGUSON and O’SCANNLAIN, Circuit Judges, join, concurring in the judgment:

I concur in the judgment reversing and remanding with instructions to dismiss this action, but I dissent from the majority’s conclusion that personal jurisdiction exists over La Ligue Contre Le Racisme et L’Antisemitisme (“LICRA”) and L’Union des Etudiants Juifs de France (“UEJF”). I therefore concur in Part I of Judge Ferguson’s concurring opinion — that a district court located in California cannot exercise personal jurisdiction over LICRA and UEJF.

Because I believe that the district court lacked in personam jurisdiction, I would not reach the issues discussed in Part III of the majority opinion 1 — ripeness—and Part II of Judge Ferguson’s concurring opinion — whether, even if it had jurisdiction over the defendants, the district court should have abstained from deciding this case. I do believe, however, that Judge Ferguson’s eloquent discussion in Part II of the reasons why he would hold that abstention is proper further supports why personal jurisdiction is lacking in this case.

LICRA and UEJF (“defendants”) had only three contacts with California. These contacts were a cease and desist letter, the service of process to commence the French action, and the subsequent service of two interim orders on Yahoo!. Service was made in accordance with the requirements of the Hague Convention on the service abroad of judicial documents. As the majority rightly acknowledges, these contacts are an insufficient basis for the exercise of personal jurisdiction over defendants. Maj. op. at 1207 -1209.

The majority goes on, however, to find a sufficient basis for the exercise of personal jurisdiction over defendants in two interim orders issued by the French court because those orders “direct[ed] Yahoo! to take actions in California, on threat of a substantial penalty.” Id. at 1209. The majority’s conclusion is not based on any contact with California, but on acts which it contends were “expressly aimed at the forum state.” Id. (quoting Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 805 (9th Cir.2004)). But neither Schwarzenegger nor any other case relied on by the majority based a finding of specific jurisdiction on conduct expressly aimed at the forum state which conduct was not also a contact with the forum state. Here, for the first time, the majority completely divorces the expressly-aimed conduct from the requirement that that conduct also be a contact with the forum state. Thus, I submit that the finding of personal jurisdiction on the basis of Calder’s 2 “effects” test in the circumstances of this case is a radical extension of that doctrine.

It is self-evident that the orders are the orders of the French court, not acts of defendants. Thus, more precisely, the majority’s finding of personal jurisdiction is, in fact, based on LICRA and UEJF petitioning the French court for relief under French law. But should the petitioning by a citizen of the courts of his or her own country to uphold the laws of that country form the sole basis of personal jurisdiction over that citizen by the courts of a foreign *1233 country? The majority’s answer is yes. That answer, seems to me, to be perverse. First, the bringing and prosecuting of an action in a French court are all acts done wholly in France. None of these acts constitutes a “contact” with California. Second, no citizen of any country can safely sue a foreign defendant under the majority’s theory of specific jurisdiction because the sought judgment, including an ordinary money judgment for injury or damages, will have an adverse “effect” on the defendant’s purse or treasury in that defendant’s home country. In this sense, every lawsuit naming a foreign defendant can be said to be expressly aimed at that defendant’s home state (or nation). Thus, unless it is anchored to a contact with the forum, express aiming becomes a meaningless test in terms of due process.

Moreover, courts, even when acting at the behest of a private petitioner, have an independent interest and obligation to uphold their nations’ domestic laws, particularly when, as here, those laws are designed to carry out an important and strongly-held national policy. Thus, as Judge Ferguson reminds us, it is the manner in which the French courts have determined to vindicate French national policy — that “state action” — that has the adverse “effect” in California that Yahoo! is complaining about, not the acts of de-

fendants in petitioning for French antiSemitism laws to be upheld. It was not defendants who determined the terms and scope of injunctive relief, nor was it defendants who determined that continuing non-compliance should be “subject to a penalty,” or the amount of such a penalty. Needless to say, defendants will not be the ones who decide whether such penalties ultimately will have to be paid or waived. 3

Whatever other conduct Calder’s “effects” test was intended to encompass, it surely was not intended to include attribution of the effects of an intervening court’s order when a citizen does no more that petition a court in his own country for relief under domestic law, particularly in a case, such as this, in which defendants have had no contact that would “provide a sufficient basis for jurisdiction.” 4 Maj. op. at 1208. For these additional reasons, I concur in Part I of Judge Ferguson’s concurring opinion.

. I refer to the opinion authored by Judge W.A. Fletcher as the "majority opinion,” because it commands a majority of the en banc court on the issue of personal jurisdiction, although that is not the majority that controls the disposition of the case.

. Calder v. Jones, 465 U.S. 783, 789-90 , 104 S.Ct. 1482 , 79 L.Ed.2d 804 (1984).

. Indeed, if any penalties are ever paid, they will not redound to the benefit of defendants, but "are payable to the government.” Maj. op at 1220.

. What the majority opinion calls a "third contact,” maj. op. at 1208 ("However, the third contact, considered in conjunction with the first two, does provide such a [sufficient] basis [for personal jurisdiction].”), is not a "contact” with California at all. The majority classifies as the "[t]hird, and most important [contact], LICRA and UEJF have obtained two interim orders from the French court directing Yahoo! to take actions in California, on threat of a substantial penalty.” Id. at 1209. It cites no authority for the proposition that conduct by LICRA and UEJF which takes place entirely in France can be classified as a “contact” with California.