               Case: 17-14110       Date Filed: 10/29/2018       Page: 1 of 16


                                                                                  [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                    No. 17-14110
                              ________________________

                          D.C. Docket No. 1:17-cv-00414-TCB


FASTCASE, INC.,

                                                                         Plaintiff-Appellant,

versus

LAWRITER, LLC,

                                                                       Defendant-Appellee.

                              ________________________

                      Appeal from the United States District Court
                         for the Northern District of Georgia
                            ________________________

                                     (October 29, 2018)

Before TJOFLAT and JORDAN, Circuit Judges, and HINKLE, * District Judge.

TJOFLAT, Circuit Judge:




         *
         Honorable Robert Lewis Hinkle, United States District Judge for the Northern District
of Florida, sitting by designation.
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      Fastcase, Inc., appeals the District Court’s dismissal of its suit under the

Declaratory Judgment Act against Lawriter, LLC. The District Court held that it

lacked subject-matter jurisdiction under 21 U.S.C. § 1331 because Fastcase’s

complaint presented no federal question. The District Court also held that it lacked

jurisdiction under 28 U.S.C. § 1332(a) because Fastcase failed to satisfy the

jurisdictional minimum. Because both of these rulings were erroneous, we vacate

the District Court’s order and remand the case for further proceedings.

                                I. BACKGROUND

      Fastcase and Lawriter are competitors in the market for legal research

services. Both companies provide searchable online databases of public law,

including federal and state statutes, administrative rules and regulations, and

judicial decisions. This case concerns the right to publish the Georgia

Administrative Rules and Regulations (“Georgia Regulations”) for use by lawyers

and law firms.

      In 2010, Fastcase entered into a contract with the State Bar of Georgia under

which Fastcase was to provide a database of Georgia law, including the Georgia

Regulations. In exchange for providing this database to all 40,000-plus members

of the Georgia Bar, Fastcase receives an annual per-member fee. To keep its

collection of Georgia law current, Fastcase visited the official Georgia Regulations




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page on the Georgia Secretary of State’s (“Secretary”) website multiple times per

week.

        The Secretary is required to publish the Georgia Regulations and make them

available to the public. O.C.G.A. § 50-13-7. In 2015, the Secretary delegated this

duty to Lawriter pursuant to a contract that requires Lawriter to publish the

regulations on the Secretary’s website. Specifically, the contract requires Lawriter

to “make the Georgia Regulations continuously and freely available twenty-four

(24) hours a day, seven (7) days a week for viewing and searching by the general

public via internet connection,” and further provides that “this shall be done at no

charge and without the requirements of any passwords, codes, or requirements of

any kind.” Under the contract, Lawriter is also permitted “to sell complete copies

of the entire set of rules and regulations or individual chapters of the rules and

regulations at such reasonable prices and terms that Lawriter may determine at its

sole discretion.” The contract further obliges the Secretary to pay Lawriter $5,000

quarterly, but this obligation is waived every time Lawriter sells a “complete set”1

of the Georgia Regulations.

        On December 21, 2015, Lawriter sent a letter to Fastcase accusing Fastcase

of violating Lawriter’s rights by providing users access to the Georgia Regulations

        1
          The contract is not clear on what constitutes a “complete set”—i.e., whether the term
refers only to a complete hardbound set or includes a complete digital set. Nothing in this appeal
turns on the answer to this question. However, whether a “complete set” includes a digital copy
is a question the District Court will likely have to grapple with on remand. See infra note 10.
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as part of a fee-based service. The letter demanded that Fastcase stop offering the

Georgia Regulations; otherwise, Lawriter would “take those steps Lawriter

deem[ed] necessary to protect its legal rights, which may include litigation.” On

February 3, 2016, Fastcase filed its first suit against Lawriter seeking declaratory

relief and a permanent injunction that would prevent Lawriter from interfering with

Fastcase’s publication of the Georgia Regulations. In its complaint, Fastcase

asserted that Lawriter has no legal rights, by contract or copyright, to restrict

publication of the Georgia Regulations. The District Court dismissed this case for

lack of subject-matter jurisdiction both because Lawriter did not currently hold a

registered copyright and, therefore, could not have brought an infringement claim

in federal court, and because Fastcase failed to satisfy the jurisdictional minimum.

      During the first suit, Lawriter added a terms of use policy (“Terms of Use”)

to the Secretary’s website. Following this addition, a viewer wishing to access the

Georgia Regulations must agree to the Terms of Use, which provide:

   • You agree that you will not sell, will not license, and will not otherwise
     make available in exchange for anything of value, anything that you
     download, print, or copy from this site.

   • You agree that you will not copy, print, or download any portion of the
     regulations posted on this site exceeding a single chapter of the regulations
     for sale, license, or other transfer to a third party, except that you may quote
     a reasonable portion of the regulations in the course of rendering
     professional advice.




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   • If you violate this agreement, or if you access or use this website in violation
     of this agreement, you agree that Lawriter will suffer damages of at least
     $20,000.

      A week after the first suit was dismissed, Fastcase filed this suit under the

Declaratory Judgment Act. According to Fastcase’s new complaint, the District

Court had jurisdiction because Lawriter’s threatened litigation included copyright

infringement claims and state law claims preempted by the Copyright Act. The

complaint also alleged diversity jurisdiction on the grounds that the potential

liability Fastcase faced for violating Lawriter’s Terms of Use exceeded $75,000.

As in the first suit, the District Court dismissed Fastcase’s complaint for lack of

jurisdiction.

                           II. STANDARD OF REVIEW

      We review a district court’s ruling on questions of jurisdiction de novo.

United States ex rel. Saldivar v. Fresenius Med. Care Holdings, Inc., 841 F.3d 927,

932 (11th Cir. 2016).

                                 III. DISCUSSION

      “[T]he Declaratory Judgment Act does not, of itself, confer jurisdiction upon

federal courts.” Stuart Weitzman, LLC v. Microcomputer Res., Inc., 542 F.3d 859,

861–62 (11th Cir. 2008). Rather, it “allow[s] parties to precipitate suits that

otherwise might need to wait for the declaratory relief defendant to bring a

coercive action.” Household Bank v. JFS Grp., 320 F.3d 1249, 1253 (11th Cir.

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2003) (alteration in original) (citing Gulf States Paper Corp. v. Ingram, 811 F.2d

1464, 1467 (11th Cir. 1987)). Accordingly, “we do not look to the face of the

declaratory judgment complaint in order to determine the presence of a federal

question.” Stuart Weitzman, 542 F.3d at 862 (quoting Hudson Ins. Co. v. Am.

Elec. Corp., 957 F.2d 826, 828 (11th Cir. 1992)). Instead, we “must determine

whether or not the cause of action anticipated by the declaratory judgment plaintiff

arises under federal law.” Id.

       As noted above, Fastcase alleges two bases for federal jurisdiction. First,

Fastcase argues that Lawriter’s threatened copyright infringement claims and

preempted state law claims confer jurisdiction under 28 U.S.C. § 1338(a).2

Second, Fastcase alleges federal diversity jurisdiction under 28 U.S.C. §

1332(a)(1). We address these jurisdictional bases in turn.

                                                   A.

       As the District Court observed, Lawriter’s threatened litigation against

Fastcase raises potential copyright infringement claims. Ordinarily, this would be

enough to confer jurisdiction—federal courts, after all, have exclusive jurisdiction

over “any civil action arising under any Act of Congress relating to . . .

copyrights.” 28 U.S.C. § 1338(a); Sullivan v. Naturalis, Inc., 5 F.3d 1410, 1413

(11th Cir. 1993) (quoting T.B. Harms Co. v. Eliscu, 339 F.2d 823, 828 (2d Cir.

       2
          Section 1338(a) provides, in relevant part, that “district courts shall have original
jurisdiction of any civil action arising under any Act of Congress relating to . . . copyrights.”
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1964)) (recognizing that a claim “arises under” the Copyright Act if it “requir[es]

construction of the Act”). But the District Court ultimately held that it lacked

jurisdiction over the case because Lawriter had not yet registered a copyright in the

Georgia Regulations.

       In reaching its conclusion, the District Court relied on our decision in Stuart

Weitzman, LLC v. Microcomputer Resources, Inc. In Stuart Weitzman, this Court

considered whether the Copyright Act’s registration requirement 3 acts as a

jurisdictional bar to copyright infringement claims. 542 F.3d at 863. There, as

here, the plaintiff brought suit under the Declaratory Judgment Act anticipating

copyright infringement claims as well as state law claims allegedly preempted by

the Copyright Act. Id. at 862. And also there, as here, the copyrighted works at

issue had not been registered. Id. at 863. At the time, the consensus among federal

appellate courts was that § 411(a)’s registration requirement was jurisdictional. Id.

(citing Walton v. United States, 80 Fed. Cl. 251, 260 (2008) (collecting cases)).

Moreover, this Court had previously held “§ 411(a)’s ‘registration requirement [to

be] a jurisdictional prerequisite to an infringement suit.’” Id. (quoting M.G.B.

Homes, Inc. v. Ameron Homes, Inc., 903 F.2d 1486, 1488 & n.4 (11th Cir. 1990)).

Thus, because the declaratory relief defendant had not yet registered the


       3
         17 U.S.C. § 411(a) provides, in relevant part, that “no civil action for infringement of
the copyright in any United States work shall be instituted until preregistration or registration of
the copyright claim has been made in accordance with this title.”
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copyrighted works at issue, we held that the anticipated infringement claims could

not confer subject-matter jurisdiction. Id.

      Since our decision in Stuart Weitzman, however, the law on § 411(a)’s

registration requirement has changed. In Reed Elsevier, Inc. v. Muchnick, the

Supreme Court held that while § 411(a)’s registration requirement remains a

“precondition to filing a claim,” it “does not restrict a federal court’s subject-matter

jurisdiction.” 559 U.S. 154, 157, 130 S. Ct. 1237, 1241 (2010). Thus, while a

complaint claiming infringement of an unregistered copyright can be dismissed for

failure to state a claim, it cannot be dismissed for lack of jurisdiction.

      To be sure, the facts of Muchnick and this case are substantially different.

As the District Court noted, the decision in Muchnick was made in the context of a

class action certification for the purposes of settlement approval, not in the context

of a declaratory judgment. But the District Court did not explain why this

distinction mattered or why we should decline to extend Muchnick beyond

Muchnick-like facts. Indeed, this Court has already explained—in an appeal from

dismissal of a copyright infringement action, a factual setting very different from

Muchnick—that § 411(a) is no longer a jurisdictional bar. Fourth Estate Pub.

Benefit Corp. v. Wall-Street.com, LLC, 856 F.3d 1338, 1339–40 (11th Cir. 2017),

cert. granted, 138 S. Ct. 2707 (mem.). See also Roberts v. Gordy, 877 F.3d 1024,




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1028 (11th Cir. 2017) (explaining that, in light of Muchnik, “a federal court’s

jurisdiction is not conditioned on a [§ 411(a)] registration”).

       Nevertheless, Lawriter cites two Eleventh Circuit decisions for the

proposition that “this Court . . . ha[s] dismissed copyright infringement claims

involving unregistered works post-Muchnick.” 4 Appellee’s Br. at 20. And so it

has. But rather than supporting Lawriter’s argument, these cases reinforce the

conclusion that § 411(a)’s registration requirement is a non-jurisdictional

precondition to suit.

       In the first case, Dowbenko v. Google, Inc., the plaintiff’s copyright

infringement claim was dismissed for failure to comply with § 411(a)’s registration

requirement. 582 F. App’x 801, 805 (11th Cir. 2014) (per curiam). Although the

claim was dismissed, it was not dismissed for lack of jurisdiction; the

Dowbenko Court recognized that “§ 411(a)’s registration requirement is not

jurisdictional.” Id. Instead, the plaintiff’s claim was dismissed on a Rule 12(b)(6)

motion because he “failed to plead that he registered the copyright to the [allegedly

infringed] photograph.” Id. This result—that is, treating the registration

requirement as an element of an infringement claim—suggests that § 411(a) is

simply a “precondition to filing a [copyright-infringement] claim.” Id. (alteration

in original) (quoting Muchnick, 559 U.S. at 157, 130 S. Ct. 1237).

       4
       The District Court similarly relied on these two cases to demonstrate that Stuart
Weitzman controlled this case even after Muchnick.
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      Lawriter’s second case, Foundation for Lost Boys & Girls of Sudan, Inc. v.

Alcon Entertainment, LLC, similarly fails to support Lawriter’s argument. In Lost

Boys, plaintiffs brought a declaratory judgment action seeking a declaration of

their exclusive rights to certain copyrighted works. No. 1:15-cv-00509-LMM,

2016 WL 4394486, *4 (N.D. Ga. Mar. 22, 2016). Defendants moved to dismiss

the action under both Rules 12(b)(1) and 12(b)(6). Id at *1. As to the 12(b)(6)

motion, the district court concluded that, because the plaintiffs had not registered

their works under § 411(a), they could not maintain a claim for copyright

infringement. Id. at *7. As to the 12(b)(1) motion, however, the district court

acknowledged that the Supreme Court in Muchnick “determined that registration of

a copyright was an element of a copyright infringement claim, and not a

jurisdictional requirement.” Id. at *5. Accordingly, the district court rejected

defendants’ claim that it lacked jurisdiction simply because plaintiffs’ works were

unregistered. Id.

      Because § 411(a)’s registration requirement is not jurisdictional, the District

Court here had jurisdiction over the suit despite the fact that Lawriter had not

registered a copyright in the Georgia Regulations. Accordingly, the District Court

erred in dismissing Fastcase’s complaint for lack of federal-question jurisdiction.

                                          B.




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      While there is no dispute that the parties are completely diverse, the District

Court also concluded that it lacked diversity jurisdiction because Fastcase failed to

satisfy the amount-in-controversy requirement. For the reasons explained below,

this was error.

                                           1.

      Federal courts are courts of limited jurisdiction. To invoke a federal court’s

diversity jurisdiction, a plaintiff must claim, among other things, that the amount in

controversy exceeds $75,000. 28 U.S.C. § 1332(a). “When a plaintiff seeks

injunctive or declaratory relief, the amount in controversy is the monetary value of

the object of the litigation from the plaintiff’s perspective.” Federated Mut. Ins.

Co. v. McKinnon Motors, LLC, 329 F.3d 805, 807 (11th Cir. 2003) (quoting Cohen

v. Office Depot, Inc., 204 F.3d 1069, 1077 (11th Cir. 2000)). Ordinarily, a plaintiff

need only plead an amount sufficient to satisfy the amount-in-controversy

requirement in good faith. Id. The plaintiff’s good-faith pleading will be second

guessed only if it “appear[s] to a legal certainty that the claim is really for less than

the jurisdictional amount.” St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S.

283, 289, 58 S. Ct. 586, 590 (1938). However, when the plaintiff pleads an

unspecified amount of damages, it bears the burden of proving by a preponderance

of the evidence that the claim on which jurisdiction is based exceeds the




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jurisdictional minimum. 5 See McKinnon Motors, 329 F.3d at 807. This additional

requirement is “warranted because there is simply no estimate of damages to which

a court may defer.” Tapscott, 77 F.3d at 1356–57.

       Fastcase argues that it satisfies the jurisdictional minimum in two ways.

First, Fastcase claims that its contract with the Georgia Bar will be terminated if it

is unable to deliver the Georgia Regulations and that this contract is worth well

over $75,000. Because this is a claim for an indeterminate amount of damages,

Fastcase was required to prove by a preponderance of the evidence that its inability

to access the Georgia Regulations would lead to a loss of its contract with the

Georgia Bar, and that this loss would exceed $75,000. Fastcase did not make this

showing, and we thus agree with the District Court that, as to this allegation,

Fastcase failed to satisfy the amount-in-controversy requirement.

       Fastcase also argues that in order to maintain its contract with the Georgia

Bar it will need to visit the Secretary’s website, copy the Georgia Regulations, and

thereby violate Lawriter’s terms of use on a daily basis—each violation subjecting




       5
         The District Court suggested that the preponderance requirement for pleading the
amount in controversy applies to all declaratory judgments. However, as Tapscott and
subsequent cases explain, this heightened standard only applies to claims involving unspecified
or indeterminate damages. See McKinnon Motors, 329 F.3d at 807; Tapscott v. MS Dealer Serv.
Corp., 77 F.3d 1353, 1356–57 (11th Cir. 1996), abrogated on other grounds by Cohen, 204 F.3d
at 1072–77. It is not the type of relief that triggers the preponderance requirement, but instead
the specificity with which the plaintiff pleads the amount in controversy.
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Fastcase to liquidated damages of at least $20,000.6 Although the exact quantum

of liquidated liability Fastcase might accrue is necessarily unclear, it certainly is

not the case that this claim presents “no estimate of damages to which a court may

defer.” Id. at 1357. To provide an up-to-date copy of the Georgia Regulations to

its customers, Fastcase alleges that it will violate Lawriter’s Terms of Use “at least

daily, and possibly thousands of times every day, depending on how many

members access Fastcase’s Georgia Database.” Because violating these terms as

few as four times would subject Fastcase to a threat of liability in excess of

$75,000, we conclude that Fastcase’s potential liability was not too speculative to

satisfy the amount-in-controversy requirement.

                                               2.

       The District Court also concluded that the jurisdictional minimum was not

satisfied because Fastcase’s potential liability could not be used as a basis for

satisfying the amount-in-controversy requirement. In reaching this conclusion, the

District Court relied on two district court opinions that, in turn, relied on our

explanation in Cohen v. Office Depot, Inc. that “the value of the requested

injunctive relief [in determining the amount in controversy] is the monetary value


       6
         In its brief, Lawriter suggests that the liquated damages clause of its Terms of Use
might not apply “per occurrence”—that is, that Fastcase might only face $ 20,000 in liquated
damages for repeatedly violating the Terms of Use. Appellee’s Br. at 22. But Lawriter does not
commit itself to this position, nor is it clear from the Terms of Use that the liquated damages
clause does not apply per occurrence. For these reasons, we conclude that the potential liability
Fastcase faces from violating the Terms of Use accrues per occurrence.
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of the benefit that would flow to the plaintiff if the injunction were granted.” 204

F.3d at 1077. It is unclear how the District Court read this language to exclude

Fastcase’s potential liability from the amount-in-controversy calculus—

presumably, it read the word “benefit” to exclude potential liability. Whatever the

reason, this conclusion is neither suggested by Cohen nor consistent with Eleventh

Circuit precedent.

       First, Cohen was not concerned with the question of whether potential

liability could be used to determine the amount in controversy. Instead, this Court

in Cohen concluded that the amount in controversy was not satisfied because the

value of the plaintiffs’ injunctive relief was too speculative. Id. Far from creating

new doctrine, the language from Cohen that the District Court relied on here was

meant simply to restate the plaintiff-viewpoint rule that this Court adopted7 in

Ericsson GE Mobile Communications, Inc. v. Motorola Communications &

Electronics, Inc.8 That rule requires that courts, in determining the amount in


       7
         To be clear, the view of this Court in Ericsson was that the former Fifth Circuit had
already adopted the plaintiff-viewpoint rule. Ericsson GE Mobile Commc’ns, Inc. v. Motorola
Commc’ns & Elecs., Inc., 120 F.3d 216, 219 (11th Cir. 1997). Our opinion in Ericsson simply
made this explicit.
       8
           This is plainly true when one views the quote from Cohen in context:
               When a plaintiff seeks injunctive or declaratory relief, the amount in
       controversy is the monetary value of the object of the litigation from the
       plaintiff’s perspective. In other words, the value of the requested injunctive relief
       is the monetary value of the benefit that would flow to the plaintiff if the
       injunction were granted.
Cohen, 204 F.3d at 1077 (emphasis added) (citations omitted).
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controversy, “measure the value of the object of litigation solely from the

plaintiff’s perspective” rather than considering the value of the litigation from

either the plaintiff’s or defendant’s perspective. Id. at 218. But it does not follow

from the plaintiff-viewpoint rule that the plaintiff’s potential liability cannot count

toward the amount in controversy.

       Moreover, this Court has previously considered a plaintiff’s potential

liability in determining the amount in controversy. In Ericsson we explained that

while the amount in controversy can only be assessed from the plaintiff’s

perspective, “the plaintiff’s claim for monetary damages need not, by itself, exceed

the requisite statutory amount because the immediate financial consequences of the

litigation to the plaintiff . . . [e.g.,] the financial benefit of not having to pay the

interest contracted to be charged . . . may also be considered in calculating the

amount in controversy.” Id. at 220 (original emphasis omitted; emphasis added).

Decisions of the former Fifth Circuit amply support this view.9 And while many



       9
          See, e.g., Duderwicz v. Sweetwater Sav. Ass’n, 595 F.2d 1008, 1014 (5th Cir. 1979)
(recognizing that former Fifth Circuit cases “seem to support the proposition that the value of the
matter in controversy is measured not by the monetary judgment which the plaintiff may recover,
but by the judgment’s pecuniary consequence”); Stonewall Ins. Co. v. Lopez, 544 F.2d 198, 199
(5th Cir. 1976) (per curiam) (concluding that the amount in controversy includes both the
insurance company’s potential liability and the costs associated with defending the underlying
action against the insured); Mut. Benefit Health & Accident Ass’n v. Fortenberry, 98 F.2d 570,
571 (5th Cir. 1938) (“[O]bligations [plaintiff] may be compelled to pay in the future are not
merely contingent and enter into the amount in controversy.”); N.Y. Life Ins. Co. v. Swift, 38 F.2d
175, 176 (5th Cir. 1930) (“[T]he object to be gained by the bill is the test of the jurisdictional
amount; in other words, the value of the right to be protected.”). As decisions rendered by the
former Fifth Circuit before close of business on September 30, 1981, these cases are precedential
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of these older cases concern insurance companies’ liability for contested policies,

the general principle they stand for applies to plaintiffs of all stripes.

       Here, Fastcase must access the Georgia Regulations “at least daily, and

possibly thousands of times every day” to maintain a current database of Georgia

law. Every time it accesses the Georgia Regulations, Fastcase exposes itself to

$20,000 of liquidated liability. The “immediate financial consequence[],” id., of

the declaratory judgment Fastcase seeks is that it would no longer be subject to this

liability. Consequently, we conclude that the amount-in-controversy requirement

is satisfied and diversity jurisdiction is proper.10

                                               IV.

       We accordingly vacate the District Court’s order and remand the case for

further proceedings not inconsistent with this opinion.

       SO ORDERED.




in the Eleventh Circuit. See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981)
(en banc).
       10
           Although we express no view on the matter here, the District Court on remand should
consider whether the Secretary is a required party under Rule 19. The Secretary arguably has an
interest in these proceedings: under their contract, the Secretary is relieved of an entire $5,000
quarterly payment every time Lawriter sells a “complete set” of the Georgia Regulations.
Whether Fastcase’s piecemeal copying of the Georgia Regulations threatens this interest such
that the Secretary is a required party is a determination we leave to the District Court.
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