Facebook's Faceporn Suit Dismissed Over Lack of Jurisdiction

SAN FRANCISCO—Yesterday, U.S. District Court Judge Jeffrey S. White dismissed a case brought by Facebook on Oct. 15, 2010, against Norway-based X-rated social network Faceporn. The case was filed during a time when Facebook was becoming increasingly aggressive toward any online businesses that it believed attempted to profit from words associated with the brand, including, most notably, any variations on "face" and "book." White's dismissal of the suit was supported by a report and recommendation filed with the court March 2 by U.S. Magistrate Judge Nathaniel M. Cousins, who found that because "Facebook has failed to show that defendants, both residents of Norway, purposefully directed their conduct at California, the Court recommends that the District Court deny Facebook’s motion and that it dismiss this action for lack of personal jurisdiction." In his final order, White rested his decision fully on Cousins’ reasoning, stating, "The Court has reviewed Magistrate Judge Nathanael M. Cousins’ Report and Recommendation (“Report”) regarding Plaintiff’s motion for default judgment. The Court has received no objections. The Court finds the Report correct, well-reasoned and thorough, and adopts it in every respect. Accordingly, the Court DENIES Plaintiff’s motion for default judgment and dismisses this action for lack of personal jurisdiction." In his report, Cousins needed to determine whether Facebook, which is incorporated in the state of California and filed the case in California, can claim personal jurisdiction over the plaintiffs. To make that determination, Cousins relied on requirements laid out by the Ninth Circuit Court of Appeals, which, as he wrote in his report, directed "that the actions of the nonresident defendant be purposefully directed at the forum based on an 'effects test that focuses on the forum in which the defendant’s actions were felt, whether or not the actions occurred within the forum.'" The "effects" test was first delineated in a 1984 Supreme Court decision, Calder v. Jones, which "requires that the nonresident defendant (1) commit an intentional act, (2) that was expressly aimed at the forum state, and (3) that caused harm that the nonresident defendant knew would likely be suffered in the forum state. Id. Unless the plaintiff establishes all three of the Calder elements, the purposeful-direction element is unsatisfied." After establishing the elements of the test, it took only a few pages of argument for Cousins to establish that "Facebook has failed show that defendants’ conduct meets the express-aiming element of the Calder effects test, which is required to establish the first element of the Ninth Circuit’s test for the exercise of specific personal jurisdiction, the Court lacks personal jurisdiction over defendants. Accordingly, this Court recommends that the District Court deny Facebook’s motion for default judgment and that it dismiss this action for lack of personal jurisdiction." Facebook was given 14 days to file objections but declined to do so, perhaps for good reason. As PaidContent reported in the aftermath of the dismissal, "So far ... the social network has not been particularly successful in court. Despite filing lawsuits against education site Teachbook and adult dating site Shagbook, Facebook has so far been unable to shut down them down. Last year, it also reached a settlement with Lamebook that let the parody site stay up. Faceporn, of course, remains up. Magistrate Judge Cousins report can be read here.