                                                                            FILED
                            NOT FOR PUBLICATION
                                                                             JAN 11 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


WORLDWIDE SUBSIDY GROUP, LLC,                    No.    14-56819
a Texas Limited Liability Company,
                                                 D.C. No.
              Plaintiff-Appellant,               2:14-cv-00013-MMM-MAN

 v.
                                                 MEMORANDUM*
FEDERATION INTERNATIONALE DE
FOOTBALL ASSOCIATION,

              Defendant-Appellee.


                   Appeal from the United States District Court
                      for the Central District of California
                  Margaret M. Morrow, District Judge, Presiding

                     Argued and Submitted November 8, 2016
                              Pasadena, California

Before: BERZON, CHRISTEN, and NGUYEN, Circuit Judges.

      Worldwide Subsidy Group (Worldwide) appeals the district court’s

dismissal of its contract action against Fédération Internationale de Football

Association (FIFA) for lack of personal jurisdiction. We reverse.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      We review de novo a district court’s determination that it does not have

personal jurisdiction over a defendant. Schwarzenegger v. Fred Martin Motor Co.,

374 F.3d 797, 800 (9th Cir. 2004). Here, Worldwide only appeals the portions of

the district court’s decisions relating to a forum selection clause in an alleged

contract between the parties. The issue on appeal is whether there was written

evidence of mutual assent to the contract. “[L]egal conclusions regarding the

existence of a valid, binding contract are reviewed de novo and factual findings

underlying it for clear error.” Casa del Caffe Vergnano S.P.A. v. ItalFlavors, LLC,

816 F.3d 1208, 1211 (9th Cir. 2016).

      Because “the motion [to dismiss was] based on written materials rather than

an evidentiary hearing, [Worldwide] need only make a prima facie showing of

jurisdictional facts.” Martinez v. Aero Caribbean, 764 F.3d 1062, 1066 (9th Cir.

2014) (quoting Schwarzenegger, 374 F.3d at 800). “[U]ncontroverted allegations

in [Worldwide’s] complaint must be taken as true,” and “any evidentiary materials

submitted on the motion ‘are construed in the light most favorable to the plaintiff[]

and all doubts are resolved in [its] favor.’” Ochoa v. J.B. Martin & Sons Farms,

Inc., 287 F.3d 1182, 1187 (9th Cir. 2002) (quoting Metro. Life Ins. Co. v. Neaves,

912 F.2d 1062, 1064 n.1 (9th Cir. 1990)).




                                           2
      The three communications presented in Worldwide’s amended

complaint—Worldwide’s faxes from March 10, 2001, and July 22, 2001, and

FIFA’s July 31, 2001, email—are sufficiently connected to be taken together as a

single memorandum capable of evidencing an agreement. See Searles v. Gonzalez,

216 P. 1003, 1004 (Cal. 1923) (“A memorandum or promise, binding under the

statute of frauds, may be gathered from several writings between the parties with

reference to the subject-matter and so connected with each other that they may

fairly be said to constitute one paper relating to the contract.”). Thus, FIFA’s July

31 email must be interpreted within the context of Worldwide’s July 22 fax and the

incorporated Representation Agreement sent to FIFA on March 10.

      In its July 22 fax, Worldwide requested “executed originals of the contracts

previously forwarded to [FIFA’s] attention,” but also noted it would “proceed in

reliance on the terms set forth in the previously forwarded contracts” until it

received “such originals, or comments thereto.” FIFA’s response included no

comments on the “previously forwarded contracts,” nor were any alternative terms

proposed. Instead, FIFA’s direct response to the July 22 fax stated, “FIFA is

interested in testing [Worldwide’s] services . . . . Please go ahead with the

necessary steps and keep us informed about the proceedings and the outcome.”

Reading the three documents together, FIFA’s July 31 email affirmatively accepted


                                           3
Worldwide’s offer to provide services on the basis of the terms previously

circulated, which Worldwide had advised would govern absent signed originals.

      FIFA’s use of the term “testing” in its email cannot sensibly be read as a

suggestion of going ahead on some other basis. The indefinite “interested in

testing” language provides no alternative new substantive term, and so was not a

counteroffer. See Restatement (Second) of Contracts § 39(1) (1981) (“A counter-

offer is an offer made by an offeree to his offeror relating to the same matter as the

original offer and proposing a substituted bargain differing from that proposed by

the original offer.”). Additionally, while FIFA’s “interested in testing” sentence

might on its own be read as equivocal, language “cannot be found to be ambiguous

in the abstract.” Palmer v. Truck Ins. Exch., 988 P.2d 568, 575 (Cal. 1999).

Instead, in context of the memorandum, FIFA’s “testing” statement was simply a

recognition that FIFA could sometime in the future terminate the agreement.

      Moreover, “proceedings,” in the context of Worldwide’s niche business,

most reasonably refers to the administrative proceedings before copyright boards

that Worldwide handles on its clients’ behalf. Such proceedings, under the alleged

facts, generally take many years before reaching an “outcome.” Thus, even

“testing” Worldwide’s services would necessarily require engaging Worldwide for

several years of annual registrations, negotiations, and administrative proceedings.


                                           4
      In short, reading the memorandum as a whole and in light of the

circumstances in which it was formed, a reasonable person in Worldwide’s

position would construe the documents as evidencing mutual assent to the

Representation Agreement and its forum selection clause. See Weddington Prods.,

Inc. v. Flick, 71 Cal. Rptr. 2d 265, 277 (Cal. Ct. App. 1998) (“‘Mutual assent is

gathered from the reasonable meaning of the words and acts of the parties, and not

from their unexpressed intentions or understanding.’ The parties’ outward

manifestations must show that the parties all agreed ‘upon the same thing in the

same sense.’” (first quoting 1 Bernard E. Witkin, Summary of California Law §

119 (9th ed. 1987); then quoting Cal. Civ. Code § 1580)).

      Worldwide’s written communications to FIFA between 2001 and 2007

confirm that, in conformity with the July 31 email, the parties treated the contract

as having been entered into. Worldwide sent FIFA two “client newsletter[s]”

within nine months of FIFA’s July 31 email and later sent FIFA updates regarding

changes to Worldwide’s contact information for notices sent pursuant to the

representation agreement. Additionally, while the April 2002 client newsletter’s

discussion of administrative proceedings for the 1998 and 1999 program years was

not directly relevant to FIFA, the letter did inform FIFA of the protracted timing of




                                          5
proceedings generally, and that no plan had been announced for proceedings for

subsequent years.

      In sum, taking the uncontroverted allegations in the complaint as true and

construing the evidentiary materials in the light most favorable to the plaintiff,

Worldwide has made a prima facie showing of an enforceable contract and, thus,

of personal jurisdiction. See Ochoa, 287 F.3d at 1187.

      REVERSED AND REMANDED.




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