## Facts

- Flipboard, Inc., a California-based company, operated an online service that displayed and shared online content, including images, in magazine-style layouts, sometimes using third-party sources and APIs.
- Kalliope Amorphous, a Rhode Island visual artist, posted photographs on platforms including Flickr, Tumblr, and Bored Panda and later found her works accessible through Flipboard’s service.
- Amorphous’s New York counsel sent Flipboard a copyright demand letter addressed to Flipboard’s Palo Alto office, alleging infringement and demanding $3 million in damages, followed by negotiations.
- To access and use Flipboard’s service, Amorphous accepted Flipboard’s online Terms of Use, which included a forum-selection clause designating Santa Clara County, California courts and a California choice-of-law provision.
- Amorphous asserted she accepted the Terms of Use only to access the service and gather evidence of infringement.
- After settlement talks failed, Flipboard filed a declaratory-judgment action in the Northern District of California seeking a declaration of non-infringement.
- Amorphous moved to dismiss for lack of personal jurisdiction under Rule 12(b)(2) and also filed a separate infringement and DMCA action in the Southern District of New York.

## Issues

1. Whether accepting Flipboard’s online Terms of Use with a forum-selection clause constituted consent to personal jurisdiction in California federal court.
2. Whether, apart from consent, Amorphous had sufficient suit-related contacts with California to support specific personal jurisdiction consistent with due process.
3. Whether enforcing jurisdiction in California would be unreasonable under “traditional notions of fair play and substantial justice.”

## Decision

- The court denied Amorphous’s Rule 12(b)(2) motion to dismiss.
- The court held Amorphous consented to California jurisdiction by assenting to the Terms of Use containing a forum-selection clause.
- The court concluded enforcement of the clause was not unreasonable or unjust, rejecting the argument that assent was coerced by the need to gather evidence.
- The court found jurisdiction was also supported, in the alternative, by Amorphous’s suit-related contacts with California, including directing a demand letter and negotiations toward a California company.
- The court determined exercising jurisdiction did not offend fair play and substantial justice.

## Legal Principles

- A valid forum-selection clause can operate as consent to personal jurisdiction in the selected forum.
- Online terms are enforceable where the forum-selection clause is reasonably communicated and the user affirmatively assents; a party’s subjective motive for assent generally does not negate contractual consent.
- A forum-selection clause will be enforced absent a strong showing of unreasonableness, such as fraud, overreaching, or inconvenience so severe that it effectively denies a party a meaningful opportunity to be heard.
- Specific jurisdiction may exist when a nonresident intentionally directs a legal threat or related conduct at a forum resident, knowing the principal impact will be felt in the forum, and the dispute arises out of that conduct.
- Due process reasonableness considers burdens on the defendant, the forum’s interest, the plaintiff’s interest in effective relief, efficiency, and shared substantive policies; modern communications and litigation conduct may reduce claimed burdens.

## Conclusion

The court held that accepting an online terms-of-use agreement with a California forum-selection clause constituted consent to personal jurisdiction in California and, in any event, the defendant’s demand letter and negotiations directed at a California company supported specific jurisdiction; exercising jurisdiction was consistent with fair play and substantial justice.


Flipboard, Inc. v. Amorphous, No. 15-cv-03255-BLF, 2015 WL 8482258 (N.D. Cal. Dec. 10, 2015)