Early January 2022, Activision filed a lawsuit in the United States against German companies EngineOwning UG and CMN Holdings S.A., several named defendants, and 50 ‘John Does’
Activision claimed that the Call of Duty cheats sold by the defendants are copyright-infringing “circumvention devices” and trafficking in them is illegal under the DMCA. The gaming company went on to allege that selling the cheats to Activision customers constitutes contract interference and selling cheats into the market amounts to unfair competition.
In an amended complaint filed last September, Activision added new claims under the Computer Fraud and Abuse Act, and two further counts of racketeering (RICO). On January 14, 2023, several EngineOwning-linked defendants responded by asking for the whole lawsuit to be thrown out.
Activision sued Defendants in Germany Two Years Ago
In a sprawling 53-page motion to dismiss, EngineOwning UG and ten named defendants begin by describing Activision Blizzard as a $50 billion dollar company with offices all around the world, including three in Germany.
They note that ten of the defendants are German citizens living in Germany, yet Activision chose to sue them in California for alleged conduct occurring entirely abroad, mostly in Germany. “The appropriate forum for such a case is not the United States – but Germany,” their motion reads.
The defendants go on to reveal that Activision is already suing two of them in Germany, in a lawsuit that was filed at least a year before Activision filed its lawsuit in the United States.
“Plaintiff previously filed a lawsuit based on the same underlying unfair competition allegations in Germany against two of the Foreign Defendants in this case – Valentin Rick and EngineOwning UG…..more than two years ago.
“That case is still pending and could be resolved one way or another as soon as February 7, 2023,” the defendants inform the court.
Since Activision did not mention the German action in its original or amended complaints, the defendants present a theory for the consideration of the court.
“Perhaps Plaintiff feared such disclosure would make the Court think this matter is better left resolved in the German court system. After all, all of the Foreign Defendants making this Motion are foreigners with no connection to the United States. Moreover, none of the Foreign Defendants’ conduct at issue was even alleged to have occurred in the United States,” they add.
Allegations Too Broad, Too Vague
Over the last year, Activision has named more than 20 defendants, in addition to a potential 50 ‘Doe’ defendants. The motion claims that when Activision alleges any conduct, it tends to be general in nature while targeting “unspecified defendants”, i.e it doesn’t differentiate between one defendant and another.
“Does Plaintiff mean every Defendant literally conducted every described action? Or does Plaintiff mean that every Defendant is simply just liable for the actions of every other Defendant? Or is it a mix?” the motion reads.
“This extremely vague form of pleading makes it impossible to tell who did what where and when. Instead, Plaintiff leaves it to each Defendant, and the Court, to guess.”
Grounds For Dismissal – Jurisdiction
The motion says that for general jurisdiction to exist over a nonresident defendant, it must be shown that the defendant engaged in “continuous and systematic” business contacts. They insist that’s the not the case here.
Activision doesn’t allege that the defendants have ever lived or held property in the U.S., or paid any taxes there. As for Activision’s claim that the defendants operated “at least two servers” in the United States, the defendants cite Dish Network, LLC v. Jadoo TV, Inc..
“[T]he physical location of servers cannot confer the necessary contacts between a defendant and a forum for the exercise of personal jurisdiction,” the citation reads.
In respect of specific jurisdiction, the defendants loop back to their earlier claims that Activision’s pleadings are too vague, because it “hopes to avoid having to plead any particular fact to any particular Defendant.”
Forum Non Conveniens
Looping back to the revelation that Activision is already pursuing two of the defendants in Germany, the defendants state that by its own actions, Activision has already shown which forum is most convenient.
“Under these circumstances, Germany, where each of the Foreign Defendants are amenable to service, is the more appropriate forum,” the motion adds.
“In this case, it is uncontroverted that all Foreign Defendants are amenable to service in Germany,” and if a case in Germany is successful, they add, “… injunctive relief and damages are potentially available to Plaintiff.”
Private and Public Interest
Given that none are citizens of the United States, the defendants say that the private and public interest factors weigh in favor of dismissal. They predict evidentiary problems, including the physical attendance of the defendants at a trial in California and whether unwilling witness can be compelled to travel. It might even prove difficult to enforce any judgment, they add.
The motion acknowledges that Activision has included U.S. defendants but dismisses that as an attempt to “make weight” and give the lawsuit a nexus to U.S. courts. Citing $35,000 in travel expenses alone, the defendants insist that a lawsuit in Germany makes much more sense.
The memo accompanying the motion to dismiss is available here (pdf)