Karen L. Willis v. Neil Tennant; Chris Lowe; Warner Music Group

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KAREN L. WILLIS, Case No.: 25-CV-491 TWR (DEB) 12 Plaintiff, ORDER GRANTING DEFENDANTS 13 v. NEIL TENNANT AND CHRIS LOWE’S MOTION TO DISMISS 14 NEIL TENNANT; CHRIS LOWE; and FOR 1) LACK OF PERSONAL WARNER MUSIC GROUP, 15 JURISDICTION, 2) FAILURE TO Defendants. STATE A CLAIM, AND 3) 16 INSUFFICIENT SERVICE OF 17 PROCESS AND DENYING PLAINTIFF’S MOTION FOR 18 ALTERNATIVE SERVICE 19 (ECF Nos. 9, 12) 20 21 Presently before the Court are Moving Defendants Neil Tennant and Chris Lowe’s 22 Motion to Dismiss (“MTD,” ECF No. 9) and the Motion for Alternative Service of 23 Complaint (“Alt. Ser. Mot.,” ECF No. 12) filed by Plaintiff Karen L. Willis, dba Harlem 24 West Music Group (together, the “Motions”), both of which are fully briefed. (See ECF 25 Nos. 14 (“MTD Opp’n”), 19 (“MTD Reply”), 16 (“Alt. Ser. Opp’n”), 20 (“Alt. Ser. 26 Reply”). The Court heard oral argument on the Motions on October 16, 2025. (See ECF 27 No. 21.) The Court GRANTS Defendants Neil Tennant and Chris Lowe’s Motion to 28 Dismiss in full, DISMISSES WITHOUT PREJUDICE Plaintiff Karen L. Willis’s First 1 Amended Complaint (“FAC,” ECF No. 7), and DENIES Plaintiff Karen L. Willis’s 2 Motion for Alternative Service of Complaint. 3 BACKGROUND 4 I. Factual Background 5 A. Copyright Infringement 6 On behalf of Harlem West Music Group, Willis sued Moving Defendants Tennant 7 and Lowe, the members of the band Pet Shop Boys, and Warner Music Group for copyright 8 infringement. (See generally FAC.) Warner Music Group is responsible for obtaining 9 authorization to use music for the Pet Shop Boys. (See id. ¶ 3.) Plaintiff is the wife of 10 Victor Willis, the lead singer of the band the Village People. (Id. at 1.) This lawsuit centers 11 on the Pet Shop Boys’ version of the Village People’s song “Go West” and the distribution 12 of a motion picture that includes a video of Tennant and Lowe performing the Pet Shop 13 Boys’ version of “Go West.” (See generally id.) Plaintiff was assigned the rights to the 14 “Go West” copyright in 2013. (See id. at 1.) Plaintiff is suing based on offense her husband 15 took when Tennant spoke badly of the Village People’s version of “Go West” and then 16 refused to speak with him. (See id. at ¶¶ 10–12.) 17 The Village People originally created and released the song “Go West.” The Pet 18 Shop Boys then revised and released their own version of “Go West.” (Id. ¶¶ 7–8.) While 19 Victor Willis “has never been too happy with” the Pet Shop Boys’ version of “Go West,” 20 Tennant and Lowe maintained a good relationship with the Village People and Victor 21 Willis until January 2024. (Id. ¶¶ 9–10.) In January 2024, Victor Willis saw a video where 22 Tennant allegedly spoke poorly about the Village People’s original version of “Go West.” 23 (Id. ¶ 10.) Victor Willis wanted to speak with Tennant on the phone about the incident, 24 but Tennant refused to call him. (Id. ¶¶ 10–11.) Because Victor Willis was offended by 25 Tennant’s refusal to call him, he revoked his approval of the Pet Shop Boys’ use of “Go 26 West” by informing the Pet Shop Boys’ manager. (See id. ¶¶ 12–14.) 27 On July 7, 2023, before Victor Willis revoked his approval of the Pet Shop Boys’ 28 use of “Go West,” the Pet Shop Boys performed their version of “Go West” at a concert in 1 Copenhagen, Denmark. (See ECF No. 9-2 (“Tennant Decl.”) ¶ 6.) An English company 2 that neither Tennant or Lowe have “ownership or other interest in” filmed this concert 3 performance and used it to prepare a concert film titled Pet Shop Boys Dreamworld: The 4 Greatest Hits Live. (Id.; ECF No. 9-3 (“Lowe Decl.”) ¶ 6.) Warner Music Group reached 5 out to Plaintiff’s synchronization agent, Reach Music, about approval for the use of “Go 6 West” in the concert film Pet Shop Boys Dreamworld: The Greatest Hits Live. (See FAC 7 ¶¶ 15–16.) Plaintiff denied this request and Reach Music communicated this denial to 8 Warner Music Group. (Id. ¶ 17.) 9 Despite the denial, the concert film included the video of Tennant and Lowe 10 performing their version of “Go West,” and Pet Shop Boys Dreamworld: The Greatest Hits 11 Live was released between January 31, 2024, and February 4, 2024, in approximately 1,500 12 theaters worldwide, including in California. (Id. at 1.) One of the screenings was in San 13 Diego at the AMC in Mission Valley. (Id. ¶ 21.) Other screening locations included 14 “countries in Europe, Eastern Europe, Asia, the Middle East, and Central and South 15 America, and in Canada, Australia, and New Zealand.” (Tennant Decl. ¶ 8.) Pet Shop 16 Boys Dreamworld: The Greatest Hits Live was subsequently released to PBS television. 17 (Id.) Plaintiff further alleges that the Pet Shop Boys planned to release something including 18 their rendition of “Go West” to Blu-ray in May 2025. (Id. at 1, ¶ 20.) 19 Tennant and Lowe allege the production company that filmed their performance in 20 Copenhagen is responsible for the creation and distribution of the concert film to theatres 21 and PBS. (Tennant Decl. ¶¶ 6–7; Lowe Decl. ¶¶ 6–7.) Tennant and Lowe allege that while 22 they wanted the concert film to be “enjoyed around the world,” they did not “suggest that 23 it should be specifically directed to California” nor did they take “any steps to specifically 24 direct it to California.” (Id. ¶ 8; Tennant Decl. ¶ 9.) 25 B. Service of Process 26 On March 12, 2025, Plaintiff emailed Angela Becker, the manager of the Pet Shop 27 Boys, and requested that Ms. Becker inform her of “who would accept service” on Moving 28 Defendants’ behalf. (ECF No. 13 (“Willis Decl.”) ¶ 3.) Ms. Becker did not respond. (See 1 id.) Plaintiff then mailed a copy of the Summons and Complaint to Ms. Becker at her 2 office in Beverly Hills, California. (See id. ¶ 4.) Plaintiff also mailed service to Ms. 3 Becker’s London office. (See id. ¶ 5.) Next, Plaintiff performed a “skip trace” on Tennant 4 and Lowe and sent service to the United Kingdom address provided from the trace. (See 5 id. ¶ 6.) Plaintiff also states that there is “an ongoing attempt” to effect service on Tennant 6 and Lowe at a different United Kingdom address. (See id. ¶ 7.) 7 Then, after Peter Anderson, Tennant and Lowe’s California-based lawyer, reached 8 out to Plaintiff and engaged in settlement discussions, Plaintiff served Mr. Anderson via 9 FedEx. (See id. ¶¶ 8–9, 14–16; ECF No. 15 (“Ex. A”).) The FedEx service was received 10 and signed for at Mr. Anderson’s office or mailroom on July 9, 2025. (See id.) On July 11 15, 2025, Plaintiff filed Proofs of Service for Tennant and Lowe based on the service on 12 Mr. Anderson. (ECF No. 8-1; ECF No. 8-2 (“Proofs of Service”).) Mr. Anderson alleges 13 that the copies of the Summons were never received by him or his law firm. (MTD at 6; 14 ECF 9-4 (“Anderson Decl.”) ¶ 7.) 15 Plaintiff did not attempt to serve Tennant or Lowe pursuant to the Hague 16 Convention. Plaintiff originally claimed that it would take six to nine months to do so. 17 (See Alt. Ser. Mot. at 3.) But during the hearing, Plaintiff stated that she had been told it 18 would take a minimum of 90 days to effectuate service in the United Kingdom pursuant to 19 the Hague Convention. (See ECF No. 21.) Moving Defendants claim service in the United 20 Kingdom pursuant to the Hague Convention can take less than a month. (See Alt. Ser. 21 Opp’n at 4.) 22 II. Procedural History 23 On March 10, 2025, Plaintiff filed her initial Complaint, alleging that Moving 24 Defendants committed direct copyright infringement and that Warner Music Group 25 committed vicarious copyright infringement. (See ECF No. 1 ¶¶ 23–37.) On April 11, 26 2025, Plaintiff filed an Amended Complaint making the same allegations. (See FAC 27 ¶¶ 23–37.) On July 30, 2025, Moving Defendants filed their Motion to Dismiss for 28 1) insufficient service of process, 2) lack of personal jurisdiction, and 3) failure to state a 1 claim, (ECF No. 9), and Plaintiff filed her Motion for Alternative Service of Complaint on 2 August 12, 2025. (ECF No. 12.) 3 ANALYSIS 4 Moving Defendants seek dismissal of Plaintiff’s sole cause of action against them 5 based on: (1) lack of personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2), 6 (2) failure to state a claim upon which relief can be granted under Federal Rule of Civil 7 Procedure 12(b)(6), and (3) failure to effect sufficient service of process under Federal 8 Rule of Civil Procedure 12(b)(5). (See generally MTD.) In the event the Court finds 9 Plaintiff’s service was insufficient, Plaintiff seeks the Court’s approval for alternative 10 service of her First Amended Complaint. (See generally Alt. Serv. Mot.) This Order 11 addresses each of the Parties’ arguments in turn. 12 I. Rule 12(b)(2) 13 A. Legal Standard 14 “A Court’s power to exercise jurisdiction over a party is limited by both statutory 15 and constitutional considerations.” In re Packaged Seafood Prod. Antitrust Litig., 338 F. 16 Supp. 3d 1118, 1135 (S.D. Cal. 2018). Constitutionally, “[t]he Due Process Clause of the 17 Fourteenth Amendment constrains a State’s authority to bind a nonresident defendant to a 18 judgment of its courts.” Walden v. Fiore, 571 U.S. 277, 283 (2014) (citing World-Wide 19 Volkswagen Corp. v. Woodson, 444 U.S. 286, 291 (1980)). Statutorily, “California’s long- 20 arm statute allows the exercise of personal jurisdiction to the full extent permissible under 21 the U.S. Constitution.” Daimler AG v. Bauman, 571 U.S. 117, 125 (2014); see also Cal. 22 Civ. Proc. Code § 410.10. 23 The Supreme Court has recognized “two types of personal jurisdiction: ‘general’ 24 (sometimes called ‘all-purpose’) jurisdiction and ‘specific’ (sometimes called ‘case- 25 linked’) jurisdiction.” Bristol-Myers Squibb Co. v. Super. Ct., 582 U.S. 255, 262 (2017) 26 (citing Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)). “For 27 an individual, the paradigm forum for the exercise of general jurisdiction is the individual’s 28 domicile.” Id. (quoting Goodyear, 564 U.S. at 924). “A court with general jurisdiction 1 may hear any claim against that defendant, even if all the incidents underlying the claim 2 occurred in a different State.” Id. (emphasis in original) (citing Goodyear, 564 U.S. at 3 919). 4 For a state court to exercise specific jurisdiction, by contrast, “there must be ‘an 5 affiliation between the forum and the underlying controversy, principally, [an] activity or 6 an occurrence that takes place in the forum State and is therefore subject to the State’s 7 regulation.’” Id. (quoting Goodyear, 564 U.S. at 919). Specific jurisdiction is analyzed 8 under a three-prong test: “(1) The non-resident defendant must purposefully direct his 9 activities or consummate some transaction with the forum or resident thereof; or perform 10 some act by which he purposefully avails himself of the privilege of conducting activities 11 in the forum, thereby invoking the benefits and protections of its laws; (2) the claim must 12 be one which arises out of or relates to the defendant’s forum-related activities; and (3) the 13 exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be 14 reasonable.” Mavrix Photo, Inc. v. Brand Techs., Inc., 647 F.3d 1218, 1227–28 (9th Cir. 15 2011) (emphasis in original) (citing Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 16 797, 802 (9th Cir. 2004)). The plaintiff bears the burden of establishing the first two prongs 17 and if they do, the burden then shifts to the defendant “to set forth a ‘compelling case’ that 18 the exercise of jurisdiction would not be reasonable.” Id. at 1228 (quoting Burger King 19 Corp. v. Rudzewicz, 471 U.S. 462, 476–78 (1985)). 20 Under prong one, for suits sounding in tort, including copyright infringement which 21 is a “tort-like cause of action, purposeful direction ‘is the proper analytical framework.’” 22 Id. (citing Schwarzenegger, 374 F.3d at 802). To establish purposeful direction, there is a 23 three-part test stemming from the case Calder v. Jones, 465 U.S. 783 (1984). See 24 Schwarzenegger, 374 F.3d at 803. Under the Calder effects test, the defendant must have 25 “(1) committed an intentional act, (2) expressly aimed at the forum state, (3) causing harm 26 that the defendant knows is likely to be suffered in the forum state.” Id. (citing Dole Food 27 Co. v. Watts, 303 F.3d 1104, 1111 (9th Cir. 2002)). Further, the “placement of a product 28 into the stream of commerce, without more, is not an act purposefully directed toward a 1 forum state.” Holland Am. Line, Inc. v. Wartsila N. Am., Inc., 485 F.3d 450, 459 (9th Cir. 2 2007). “Even a defendant’s awareness that the stream may or will sweep the product into 3 the forum state does not convert the mere act of placing the product into the stream of 4 commerce into an act purposefully directed toward the forum state.” Id. 5 B. Analysis 6 As an initial matter, Plaintiff claims there was “no need for [her] to respond at this 7 time” to Moving Defendants’ claim that the Court lacks personal jurisdiction because the 8 Court “lack[s] jurisdiction” to hear the issue until the “service of process issue has been 9 decided.” (MTD Opp’n at 6.) This is incorrect. The Court can decide the Motion to 10 Dismiss on any of the grounds presented by the Moving Defendants. See, e.g., City & 11 Cnty. of San Francisco v. Purdue Pharma L.P., 491 F. Supp. 3d 610, 695–96 (N.D. Cal. 12 2020) (considering all bases for dismissal including failure to state a claim, insufficient 13 service, and lack of personal jurisdiction). Therefore, Plaintiff’s failure to substantively 14 respond to Moving Defendants’ personal jurisdiction argument could be construed as 15 consent to the Court granting the Motion to Dismiss on that basis under Civil Local Rule 16 7.1(f)(3)(c) and Section III.A.2 of the undersigned’s Standing Order for Civil Cases. 17 Nonetheless, it is the Court’s preference to resolve the issues on the merits. 18 While unclear from Plaintiff’s briefing, Plaintiff asserted at the hearing that she is 19 only alleging this Court has specific personal jurisdiction over Moving Defendants, not 20 general personal jurisdiction. (See ECF No. 21.) Moving Defendants argue that this Court 21 lacks specific personal jurisdiction over them under Rule 12(b)(2). (See MTD at 6–9.) As 22 set forth below, Defendants are correct. While jurisdiction over each defendant must be 23 assessed individually, see Calder v. Jones, 465 U.S. 783, 790 (1984), because the 24 allegations by Plaintiff and arguments by Tennant and Lowe are the same, the Court 25 considers Moving Defendants’ arguments together. 26 1. Purposeful Direction 27 Under the Calder effects test, the defendant must have (1) committed an intentional 28 act, (2) expressly aimed at the forum state, (3) causing harm that the defendant knows is 1 likely to be suffered in the forum state. See Schwarzenegger, 374 F.3d at 803. To establish 2 specific personal jurisdiction, “[a]ll three parts of the test must be satisfied.” Id. at 805. 3 Here, Plaintiff fails to allege all three. 4 a. Intentional Act 5 The word “act” has been defined as “an external manifestation of the actor’s will 6 and does not include any of its results, even the most direct, immediate, and intended.” Id. 7 (citing Restatement (Second) of Torts § 2 (1964)). Plaintiff does not allege any 8 independent acts by Tennant or Lowe other than a conclusory statement that Moving 9 Defendants infringed the copyright by “engaging in acts causing the infringing work to be 10 reproduced, distributed, displayed, and publicly performed.” (FAC ¶ 25.) But the only 11 actual act apparent from the facts alleged is that Tennant and Lowe performed “Go West” 12 at a concert that was filmed and there is no argument that the concert was directed at 13 California. In relation to the concert film distributed in California, Plaintiff fails to allege 14 any acts by Tennant or Lowe that contributed to the distribution or display of Pet Shop 15 Boys Dreamworld: The Greatest Hits Live. Because Plaintiff fails to allege an intentional 16 act, she has failed to allege purposeful direction. 17 b. Expressly Aimed 18 The second element of the Calder effects test “requires that the defendant’s conduct 19 be expressly aimed at the forum.” Liberty Media Holdings, LLC v. Tabora, No. 11-CV- 20 651-IEG JMA, 2011 WL 4626162, at *4 (S.D. Cal. Oct. 4, 2011) (citation omitted). Here, 21 Plaintiff has not alleged that Moving Defendants contributed to the distribution or display 22 of Pet Shop Boys Dreamworld: The Greatest Hits Live in California. Absent specific 23 allegations about Moving Defendants actions contributing to the distribution of the concert 24 film Pet Shop Boys Dreamworld: The Greatest Hits Live, allowing a third party to 25 distribute the film in California does not satisfy express aiming. See Johnson v. Blue Nile, 26 Inc., No. 20-cv-08183-LB, 2021 WL 1312771, at *3 (N.D. Cal. Apr. 8, 2021) (finding a 27 defendant was not “expressly aiming” when it sold a product to a third party who did 28 business in the forum). 1 Express aiming can also be satisfied “where a plaintiff files suit in its home state 2 against an out-of-state defendant and alleges that defendant intentionally infringed its 3 intellectual property rights knowing [the plaintiff] was located in the forum state.” Amini 4 Innovation Corp. v. JS Imps., Inc., 497 F.Supp.2d 1093, 1105 (C.D. Cal. 2007). But 5 Plaintiff does not allege that Moving Defendants knew that Plaintiff, Harlem Music Group 6 or Karen Willis, own the “Go West” copyright or that either is located in California. (See 7 generally FAC.) Because Plaintiff fails to allege express aiming, she has failed to allege 8 purposeful direction. 9 c. Harm in the Forum State 10 Because Plaintiff fails to allege Moving Defendants knew that either Harlem Music 11 Group or Karen Willis is located in California, Plaintiff failed to allege foreseeable harm 12 in California. See Liberty Media Holdings, LLC, 2011 WL 4626162, at *4 (“Absent 13 allegations that Defendant knew Plaintiff was a California resident, Plaintiff has not 14 satisfied the ‘forseesability’ element of the Calder test.”). 15 2. Arises out of or Relates to 16 The second prong of specific personal jurisdiction is similarly deficient. While 17 Plaintiff alleges that Moving Defendants do “business in San Diego,” including “recent 18 concert appearances,” she does not allege that any recent concert appearances are related 19 to the copyright infringement alleged in this case. (FAC ¶ 2.) Further, Plaintiff alleges 20 that the “motion picture starring Tennant and Lowe where copyright infringement was 21 committed . . . was screened right here in San Diego on several occasions in 2024 at the 22 AMC Mission Valley Theatre.” (Id.) While the motion picture is the alleged infringing 23 activity, Plaintiff fails to allege any acts by Moving Defendants in the forum state relating 24 to the distribution or display of Pet Shop Boys Dreamworld: The Greatest Hits Live. 25 Therefore, Plaintiff fails to allege that her injury arose out of or is related to any conduct 26 by Moving Defendants in California. 27 / / / 28 / / / 1 3. Fair Play and Substantial Justice 2 If Plaintiff met her “burden on the first two prongs of the specific personal 3 jurisdiction inquiry,” the burden would shift to Moving Defendants to present a compelling 4 case on why the exercise of jurisdiction would not be reasonable and fair. See 5 Schwarzenegger, 374 F.3d at 802. But here, the burden never shifts to Moving Defendants. 6 Even if it did, as the Ninth Circuit explained in Dole Food Co., the fact that Moving 7 Defendants live in Europe weighs against the exercise of jurisdiction. 303 F.3d at 1115. 8 Moving Defendants state that it would be “an extreme burden” to defend this action 9 thousands of miles away from England. (Tennant Decl. ¶ 14; Lowe Decl. ¶ 13.) But this 10 factor is not dispositive and the court notes that Moving Defendants have traveled to the 11 U.S. to perform concerts, (FAC ¶ 2,) which reduces the weight of the alleged burden. See 12 Dole Food Co., 303 F.3d at 1115 (finding that past travels to the United States for business 13 mitigate an alleged burden of traveling to the United States for litigation). If Plaintiff could 14 allege facts sufficient for the first two prongs of specific personal jurisdiction, then the 15 Court would consider the other factors relevant to fair play and substantial justice, such as 16 the forum state’s interest in adjudicating the dispute and where there can be an efficient 17 judicial resolution of the controversy. See id. at 1114. 18 For the above reasons, the Court GRANTS the Motion to Dismiss WITHOUT 19 PREJUDICE for lack of personal jurisdiction under 12(b)(2). 20 II. Rule 12(b)(6) 21 Even if Plaintiff had adequately pled personal jurisdiction over Moving Defendants, 22 Plaintiff’s cause of action against Moving Defendants would still fail under Rule 12(b)(6) 23 for failing to state a claim on which relief can be granted. 24 A. Legal Standard 25 Rule 12(b)(6) allows a court to dismiss a complaint for “failure to state a claim upon 26 which relief can be granted.” Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss, the 27 complaint must contain a “short and plain statement showing that the pleader is entitled to 28 relief,” backed by sufficient facts that make the claim “plausible on its face.” Fed. R. Civ. 1 P. 8(a)(2); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 2 550 U.S. 544, 547 (2007)). Plausibility requires “more than a sheer possibility that a 3 defendant has acted unlawfully.” Iqbal, 566 U.S. at 678. Rather, it demands enough 4 factual content for the court to “draw the reasonable inference that the defendant is liable 5 for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In ruling on a 12(b)(6) 6 motion, the court must accept as true “all factual allegations in the complaint” and 7 “construe the pleadings in the light most favorable to the nonmoving party.” Manzarek v. 8 St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). This presumption 9 does not extend to conclusory allegations, unwarranted deductions of fact, or unreasonable 10 inferences. See In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). 11 If the court dismisses a complaint for failure to state a claim, the “court should grant 12 leave to amend even if no request to amend the pleading was made, unless it determines 13 that the pleading could not possibly be cured by the allegation of other facts.” Lopez v. 14 Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (quoting Doe v. United States, 58 F.3d 494, 15 497 (9th Cir. 1995)). 16 B. Analysis 17 As discussed in Section I(B), Plaintiff incorrectly believed she did not need to 18 respond to issues outside of service of process. (MTD Opp’n at 6.) Therefore, Plaintiff’s 19 failure to substantively respond to Moving Defendants’ 12(b)(6) argument could be 20 construed as consent to the Court granting the Motion to Dismiss on that basis under Civil 21 Local Rule 7.1(f)(3)(c) and Section III.A.2 of the undersigned’s Standing Order for Civil 22 Cases. Nonetheless, it is the Court’s preference to resolve the issues on the merits. 23 Plaintiff alleges direct copyright infringement against Moving Defendants. (FAC 24 ¶ 23.) Under 17 U.S.C. § 106, to present a prima facie case of direct infringement, a 25 plaintiff must (1) show ownership of the allegedly infringed material and (2) demonstrate 26 that the alleged infringers violated at least one exclusive right granted to copyright holders. 27 See Ellison v. Robertson, 357 F.3d 1072, 1076 (9th Cir. 2004). 28 1 For the first element of direct infringement, Plaintiff alleges that the copyright at 2 issue was “totally assigned to her.” (FAC at 1.) Moving Defendants do not dispute that 3 Plaintiff has ownership of the allegedly infringed material. (See MTD at 13–14.) The only 4 dispute whether Plaintiff has sufficiently alleged that Moving Defendants violated at least 5 one exclusive right. 6 Regarding the second element, Moving Defendants allege that Plaintiff failed to state 7 a claim for direct infringement because the alleged distribution and display of the concert 8 film was done by other entities. (See id.) Moving Defendants claim their only alleged 9 action relating to “Go West” was performing live at a concert in Copenhagen, which both 10 parties agree was allowed. (Id. at 14.) Specifically, Moving Defendants allege that “they 11 did not broadcast or exhibit the concert film. Accordingly, they did not reproduce, 12 distribute, display, or publicly perform the ‘motion picture,’ so they cannot be direct 13 infringers.” (Id.) Moving Defendants further state, to the best of their knowledge, “the 14 same company that produced the Pet Shop Boys Dreamworld concert film also licensed its 15 theatrical exhibition, including in the United States.” (Tennant Decl. ¶ 8; Lowe Decl. ¶ 7.) 16 Plaintiff alleges that “[b]y engaging in acts causing the infringing work to be 17 reproduced, distributed, displayed, and publicly performed in a motion picture, on PBS, 18 television, and Blu-ray,” Moving Defendants violated her exclusive rights. (FAC ¶ 25) 19 (emphasis added). But this conclusory statement that Moving Defendants “engaged in 20 acts” is not enough to plausibly state a claim for direct copyright infringement. See, e.g., 21 Villarroel v. Recology Inc., 775 F. Supp. 3d 1050, 1070 (N.D. Cal. 2025) (finding plaintiffs 22 failed to plead a claim because a “single conclusory sentence alleging that Defendants 23 ‘committed and/or engaged in acts denominated as unlawful predicate offenses” is “not 24 enough”). Plaintiff’s factual allegations also fail to allege any specific conduct by Moving 25 Defendants. For example, the alleged requests to use “Go West,” center on 26 communications with “Warner Music.” (See FAC ¶¶ 15–18.) Because Plaintiff’s FAC 27 only includes conclusory allegations about Moving Defendants’ actions, Plaintiff did not 28 1 sufficiently allege Moving Defendants violated at least one of her exclusive rights as a 2 copyright holder. 3 Plaintiff therefore fails to plausibly allege direct copyright infringement, and 4 the Court thus GRANTS the Motion to Dismiss WITHOUT PREJUDICE for failure to 5 state a claim under Rule 12(b)(6). 6 III. Rule 12(b)(5) 7 A. Legal Standard 8 “Before a federal court may exercise personal jurisdiction over a defendant, the 9 procedural requirement of service of summons must be satisfied.” Omni Cap. Int’l, Ltd. 10 V. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987). When a party objects to “the manner or 11 method of its service[,]” Federal Rule of Civil Procedure 12(b)(5) authorizes them to move 12 for dismissal due to insufficient service of process. See Wasson v. Riverside Cnty., 237 13 F.R.D. 423, 424 (C.D. Cal. 2006); see also Fed. R. Civ. P. 12(b)(5) (“[A] party may assert 14 the following defenses by motion . . . insufficient service of process[.]”). “Where a 15 defendant challenges the method of service of process under [Rule] 12(b)(5), plaintiff bears 16 the burden of establishing service was valid under Rule 4.” Troll Busters LLC v. Roche 17 Diagnostics GmbH, No. 11CV56-IEG WMC, 2011 WL 3859721, at *8 (S.D. Cal. Aug. 18 31, 2011) (citing Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004)). 19 “Where service of process is insufficient, the court has broad discretion to dismiss 20 the action or to retain the case but quash the service that has been made on defendant.” 21 United States v. Distribuidora Batiz CGH, S.A. De C.V., No. 07CV370WQHJMA, 2009 22 WL 2487971, at *9 (S.D. Cal. Aug. 10, 2009) (quoting Cranford v. United States, 359 F. 23 Supp. 2d 981, 984 (E.D. Cal. 2005)) (citing Stevens v. Sec. Pac. na’’l Bank, 538 F.2d 1387, 24 1389 (9th Cir. 1976)). “So long as there is a chance that the plaintiff still could accomplish 25 service, the latter remedy is preferred.” Id. (quoting Hickory Travel Sys., Inc. v. TUI AG, 26 213 F.R.D. 547, 553 (N.D. Cal. 2003). 27 / / / 28 / / / 1 B. Analysis 2 Moving Defendants contend that dismissal is warranted under Rule 12(b)(5) because 3 Plaintiff failed to serve them in conformity with Rule 4(h). (MTD at 4–6.) Plaintiff 4 concedes that she might not have served Defendants properly under Rule 4(h). (See 5 generally Alt. Ser. Mot.; MTD Opp’n at 4.) Plaintiff indeed did not correctly serve Moving 6 Defendants. Additionally, Plaintiff’s unclean hands argument is irrelevant to whether she 7 served Moving Defendants correctly. (MTD Opp’n at 6–7.) 8 Plaintiff filed Proofs of Service on Moving Defendants based on service on Mr. Peter 9 Anderson, Defendants’ U.S. Counsel. (See Proofs of Service.) Plaintiff argues that 10 California law authorizes substituted service at a place of business under Cal. Civ. Proc. 11 Code § 415.20(b) and claims that “Davis Wright Tremaine is a place of business for 12 [Moving] Defendants.” (MTD Opp’n at 4.) For natural persons like Defendants, “[t]he 13 term ‘usual place of business’ includes a defendant’s customary place of employment as 14 well as his own business enterprise.” Cal. Civ. Proc. Code § 415.20 Judicial Council’s 15 cmt. subdiv. b. The law offices of Moving Defendants’ counsel is not Moving Defendants’ 16 “place of business” under Cal. Civ. Proc. Code § 415.20(b). 17 Although the Court should ordinarily quash service on Moving Defendants rather 18 than dismiss the case for Plaintiff’s failure to properly effect service of process under Rule 19 4(h), see Distribuidora Batiz, 2009 WL 2487971 at *9, because Plaintiff has failed to state 20 a claim and the Court lacks personal jurisdiction, the distinction is ultimately without 21 consequence. The Court therefore GRANTS Moving Defendants’ Motion to Dismiss 22 WITHOUT PREJUDICE for insufficient service under Rule 12(b)(5). 23 IV. Motion for Alternative Service 24 A. Time for Service 25 The normal 90-day time limit for service does not apply to international service. See 26 Fed. R. Civ. P. 4(m) (“This subdivision (m) does not apply to service in a foreign country.”) 27 Therefore, Moving Defendants’ argument that Plaintiff “ignores her failure to either effect 28 1 service within ninety days of filing this action or seek additional time” is incorrect. (Alt. 2 Ser. Opp’n at 1.) 3 B. Legal Standard 4 Under Rule 4(f)(3), the court can authorize service on a foreign individual “by other 5 means not prohibited by international agreement.” Fed. R. Civ. Proc. 4(f)(3). “As obvious 6 from its plain language, service under Rule 4(f)(3) must be (1) directed by the court; and 7 (2) not prohibited by international agreement. No other limitations are evident from the 8 text.” Rio Properties, Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1014 (9th Cir. 2002). 9 Therefore, the Ninth Circuit has found that “as long as court-directed and not prohibited 10 by an international agreement, service of process ordered under Rule 4(f)(3) may be 11 accomplished in contravention of the laws of the foreign country.” Id. 12 Further, “Rule 4(f)(3) is neither a ‘last resort’ nor ‘extraordinary relief.’ It is merely 13 one means among several which enables service of process on an international defendant.” 14 Id. at 1015 (citation omitted). “The Ninth Circuit has rejected the contention that Rule 15 4(f)(3) can only be utilized if other methods of service have failed or been shown to be 16 unduly burdensome.” Brown v. China Integrated Energy, Inc., 285 F.R.D. 560, 565 (C.D. 17 Cal. 2012) (citing Rio Properties, Inc., 284 F.3d at 1016). Plaintiffs need “only to 18 demonstrate that the facts and circumstances of the present case necessitate[] the district 19 court’s intervention.” Rio Properties, Inc., 284 F.3d at 1016. Any method of service 20 authorized by the court must be “reasonably calculated, under all the circumstances, to 21 apprise interested parties of the pendency of the action and afford them an opportunity to 22 present their objections.” Id. (quoting Mullane v. Central Hanover Bank & Trust Co., 339 23 U.S. 306, 314 (1950)). And Rule 4(f)(3) cannot be used to retroactively approve prior 24 service. See Brockmeyer v. May, 383 F.3d 798, 806 (9th Cir. 2004) (explaining that a party 25 needs “prior court approval for the alternative method of serving process”). 26 C. Analysis 27 Plaintiff seeks authorization to effectuate service on Moving Defendants by “leaving 28 the summons and complaint with a suitable person at Defendants residence, place of 1 business, attorney’s office, or specifically authorized agent.” (Alt. Ser. Mot. at 5.) Moving 2 Defendants argue that because the United Kingdom is a signatory to the Hague Convention, 3 “Plaintiff’s compliance with the Hague Convention is mandatory and her Motion must be 4 denied.” (Alt. Ser. Opp’n at 3.) Moving Defendants are correct that the United Kingdom 5 is a signatory to the Hague Convention, but “courts are divided on the precise effect of the 6 Hague Convention, if any, on any applicable service under Rule 4(f)(3).” Amazon.com, 7 Inc. v. Tian, No. 2:21-CV-00159-TL, 2022 WL 486267, at *3 (W.D. Wash. Feb. 17, 2022) 8 (explaining that some courts have found that Rule 4(f)(3) is a separate, alternative means 9 of service outside of the Hague Convention and a minority of courts have found that the 10 Hague Convention is binding federal law and that its provisions govern all forms of service 11 of process). 12 But the Court does not need to reach a conclusion on this issue because Plaintiff has 13 failed to demonstrate that the facts and circumstances of the present case necessitate 14 intervention. See Rio Properties, Inc., 284 F.3d at 1016. The Court does not find that 15 service via the Hague Convention taking 90 days is a burden requiring court intervention. 16 (See ECF No. 21.) While the Court agrees with Plaintiff that she is not obligated to attempt 17 service via the Hague Convention before attempting to use Rule 4(m)(3), see In re LDK 18 Solar Sec. Litig., No. C 07-05182 WHA, 2008 WL 2415186, at *3 (N.D. Cal. June 12, 19 2008), here, because the Hague Convention does not appear to be a time intensive or 20 laborious process, Plaintiff has failed to show why the Court should intervene. See Rio 21 Properties, Inc., 284 F.3d at 1016 (explaining that choosing whether to allow service via 22 Rule 4(f)(3) is at “the sound discretion of the district court”). Therefore, the Court 23 DENIES Plaintiff’s Motion for Alternative Service of Complaint. If Plaintiff chooses to 24 file an amended complaint and serving Moving Defendants via the Hague Convention 25 becomes burdensome, a motion for alternative service could be proper at that time. 26 CONCLUSION 27 The Court GRANTS Defendants Neil Tennant and Chris Lowe’s Motion to Dismiss 28 in full, DISMISSES WITHOUT PREJUDICE Plaintiff Karen L. Willis’s First Amended 1 ||Complaint, and DENIES Plaintiff Karen L. Willis’s Motion for Alternative Service of 2 ||Complaint. Plaintiff MAY FILE an amended complaint curing the deficiencies outlined 3 this Order within twenty-one (21) days of the electronic docketing of this Order. Should 4 || Plaintiff elect not to file a timely amended complaint, this action will be dismissed without 5 || prejudice without further Order of the Court. 6 IT IS SO ORDERED. 7 Dated: October 22, 2025 9 Honorable Todd W. Robinson 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28