Judge Nelson writes the majority opinion. He says that a porn site set up in Poland (with its servers in the Netherlands) that infringes U.S. copyrights can't be sued anywhere in the United States, even though 20% of its customers are from the United States. No personal jurisdiction.
Fair enough. That's not the mess. It's what comes next.
Judge Gould dissents. He says that there is personal jurisdiction. But he doesn't have the votes.
Still not complicated, though.
But then there's Judge Nelson's concurrence to his own opinion. He says that even though the panel has affirmed the dismissal of the complaint for lack of jurisdiction, the lawsuit "might" not be over, and that the district court might want to take a look at some intervening changes in international law with respect to various jurisdictional discovery issues. The district court, he says, might perhaps want to grant some additional jurisdictional discovery in light of those legal changes, and perhaps that additional discovery might establish that there's personal jurisdiction after all.
To which Judge Ikuta files her own concurrence. She says the lawsuit's over. Period. When there's a dismissal and an affirmance, that's the end of things. No remand. No more discovery, or anything else. The case is over.
And, to make things more complicated, Judge Gould drops a footnote in his dissent that agrees with Judge Nelson that the case might not be over. Which is perhaps not surprising, because Judge Gould doesn't think the case should be over to begin with, since he (unlike Judge Nelson) thinks there's jurisdiction even as the case stands now.
So what do you do if you're the district court? There's one vote for "Yes PJ," one vote for "No PJ," and one vote for "Maybe PJ." What happens next?
And let's say that, as a matter of doctrine, your a district judge who agrees with Judge Ikuta that when a case gets dismissed in the district court and the Ninth Circuit affirms, the case is over? Sure, that's your view of the law. But it seems like your superiors in the Ninth Circuit cast two votes the other way. Law of the case? Are you bound to follow that?
Sure, there's an easy way out -- one that the district court here might well take -- if you want to say that in your "discretion" you've decided not to re-review your prior opinion in light of the relevant legal changes that the panel described.
But is that really consistent with either the spirit or intent of today's opinion? Seems to me like at least one judge (and probably two) definitely want you to take a look. Can you really just say "No thanks" and be done with it? And does that simply buy you another appeal?
Crazy stuff.
