Opinion
Case No. 3:19-cv-391-J-39MCR
2020-09-30
ICONIC CONTENT, LLC, a florida limited liability company, Plaintiff, v. UNKNOWN OFFICER, Director, or Owner IP Address 104.27.170.148 d/b/a Shesfreaky.com, Unknown User "Peterman5552", individually, Unknown User "Sexmaster2018", individually, and Unknown User "Bigballashotcalla", individually, Defendants.
Griffin C. Klema, Klema Law, P.L., Tampa, FL, for Plaintiff. Lawrence G. Walters, Walters Law Group, Longwood, FL, for Defendants Memeable, LLC, Ajani Counts.
Griffin C. Klema, Klema Law, P.L., Tampa, FL, for Plaintiff.
Lawrence G. Walters, Walters Law Group, Longwood, FL, for Defendants Memeable, LLC, Ajani Counts.
ORDER
BRIAN J. DAVIS, United States District Judge
THIS CAUSE is before the Court on the Report and Recommendation (Doc. 80; Report) entered by the Honorable Monte C. Richardson, United States Magistrate Judge; Plaintiff's Objection to Report and Recommendations (Doc. 81; Objection); and Defendant's Response to Plaintiff's Objections (Doc. 82; Response). In the Report, the Magistrate Judge considered Defendant's Motions to Dismiss (Doc. 63; Motion), Plaintiff's Response (Doc. 73) and recommends that the Motion be granted. Report at 1-2.
I. BACKGROUND
Plaintiff, Iconic Content, LLC ("Iconic") brought this case against five defendants for copyright infringement. Iconic dismissed Hyson International Corporation on November 14, 2019. (Doc. 76). Defendant, Unknown Officer, Director, or Owner of IP Address 104.27.170.148 doing business as Shesfreaky.com moved for dismissal for lack of personal jurisdiction. See generally Motion. The remaining three "User" Defendants are known only by their screen names: Peterman5552, Sexmaster2018, and Bigballashotcalla.
Iconic owns copyrighted pornographic movies, streams, and images ("works") produced and distributed by OnlyFans.com. (Doc. 1 at ¶¶ 1 and 7). The User Defendants copied Iconic's works from OnlyFans.com and uploaded it to Shesfreaky.com. Id. ¶ 2. Tens of thousands of viewers accessed the works on Shesfreaky.com., including thousands from Florida. (Doc. 73.1 at 4-5). Iconic alleges that Shesfreaky.com copied and distributed Iconic's works with knowledge that the works belonged to Iconic and refused to timely remove those works from its website despite Iconic's take-down request pursuant to the Digital Millennium Copyright Act. (Doc. 1 ¶ 51-52). Shesfreaky.com moved to dismiss the allegations against it because it claims a court located in Florida lacks personal jurisdiction over it. (Doc. 63). The Report found that Shesfreaky.com's actions brought it within reach of Florida's long-arm statute, Fla. Sta. section 48.193, but that the exercise of jurisdiction over Shesfreaky.com offends due process. Iconic's Objection followed.
Iconic's first objection is that the Report failed to appreciate how Shesfreaky.com stored and distributed Iconic's work to users in Florida, including whether Iconic's actions were with knowledge. Iconic next objects to the Report's application of Cable/Home Commc'n Corp. v. Network Prods., Inc., 902 F.2d 829, 835 (11th Cir. 1990). Iconic also argues that the Report erroneously created a "but for" causation requirement. Finally, Iconic claims the Report failed to recognize the relationship between Defendants and Cloudflare.
II. DISCUSSION
The Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b). If no specific objections to findings of fact are filed, the district court is not required to conduct de novo review of those findings. See Garvey v. Vaughn, 993 F.2d 776, 779 n.9 (11th Cir. 1993) ; see also 28 U.S.C. § 636(b)(1). If, on the other hand, a party files an objection, the district judge must conduct a de novo review of the portions of a magistrate judge's report and recommendation to which the party objects. Kohser v. Protective Life Corp., 649 F. App'x 774, 777 (11th Cir. 2016) ; 28 U.S.C. § 636(b)(1) ; see also Fed. R. Civ. P. 72(b)(3) (on dispositive matters, "the district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to").
A federal court sitting in diversity may exercise jurisdiction over a nonresident defendant to the same extent as a court of that state. Ruiz de Molina v. Merritt & Furman Ins. Agency, Inc., 207 F.3d 1351, 1355 (11th Cir. 2000) (citing Prejean v. Sonatrach, Inc., 652 F.2d 1260 (5th Cir. 1981) ). In Florida, jurisdiction over nonresidents is governed by the long-arm statute, Florida Statute, section 48.193, which "bestows broad jurisdiction on Florida courts." Execu-Tech Business Systems, Inc. v. New Oji Paper Co. Ltd., 752 So. 2d 582, 584 (Fla. 2000). To determine whether long-arm jurisdiction is proper, the Court must engage in a two-step inquiry. First, it must examine the complaint to determine if sufficient jurisdictional facts have been pled to bring the action within the ambit of the statute. If so, the Court must next determine whether sufficient minimum contacts are demonstrated to satisfy the requirements of federal due process. Id. (citing Venetian Salami Co. v. Parthenais, 554 So. 2d 499, 502 (Fla. 1989) ). Resolution of the first step requires statutory analysis of Florida's long-arm statute. The second step of the personal jurisdiction analysis is controlled by United States Supreme Court precedent interpreting the Due Process Clause.
The burden of establishing personal jurisdiction rests on the plaintiff. The Eleventh Circuit has described a plaintiff's burden as follows:
First, the plaintiff must allege sufficient facts in his complaint to initially support long arm jurisdiction before the burden shifts to the defendant to make a prima facie showing of the inapplicability of the statute. If the defendant sustains this burden, the plaintiff is required to substantiate the jurisdictional allegations in the complaint by affidavits or other competent proof, and not merely reiterate the factual allegations in the complaint.
Polskie Linie Oceaniczne v. Seasafe Transport A/S, 795 F.2d 968 (11th Cir. 1986) (citing Electro Engineering Products Co., Inc. v. Lewis, 352 So. 2d 862 (Fla. 1977) ). "A prima facie case of personal jurisdiction over a nonresident defendant is established if the plaintiff presents enough evidence to withstand a motion for directed verdict." Meier v. Sun Intern. Hotels, Ltd., 288 F.3d 1264, 1269 (11th Cir. 2002) (citing Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir. 1990) ). The Court must accept facts as alleged in the complaint as true, to the extent they are uncontroverted by the defendant's affidavits and where contradictions exist, the court must construe all reasonable inferences in favor of the plaintiff. Madara, 916 F.2d at 1514.
A. Florida's Long-arm Statute
Florida's long-arm statute describes two types of personal jurisdiction: general jurisdiction and specific jurisdiction. Fla. Stat. § 48.193. In this case, Iconic alleges specific jurisdiction pursuant to § 48.193(1)(a)(2), which provides that a nonresident defendant is subject to personal jurisdiction in Florida "for any cause of action arising from ... [c]omitting a tortious act within [Florida]." The Florida Supreme Court has interpreted this provision such that the defendant need not be physically present in Florida for the tort to have occurred in Florida. Wendt v. Horowitz, 822 So. 2d 1252, 1260 (Fla. 2002). Moreover, the Wendt Court determined "committing a tortious act" in Florida could occur "through the nonresident defendant's telephonic, electronic, or written communications into Florida," provided the cause of action arises from those communications. Id.
Here, Iconic's claims of copyright infringement are "tortious acts" for purposes of Florida's long-arm statute. See Gainesville Coins, LLC v. VCG Ventures, Inc., No. 8:13-CV-1402-T-30MAP, 2013 WL 4596968, at *3 (M.D. Fla. Aug. 28, 2013) ("Copyright infringement is a tortious act that satisfies Florida's long-arm statute."): see also Yellow Pages Photos, Inc. v. Ziplocal, LP, No. 8:12-CV-755-T-26TBM, 2012 WL 2952452, at *5 (M.D. Fla. July 19, 2012) ("Copyright infringement has been considered an intentional tort for purposes of personal jurisdiction[.]"). Additionally, there can be no doubt that Shesfreaky.com's infringement and Iconic's injuries in this case occurred in Florida because Iconic is located in Florida; Shesfreaky.com made the infringing works available to individuals present in Florida; and Floridians actually accessed the materials. See Licciardello v. Lovelady, 544 F.3d 1280, 1283 (11th Cir. 2008). The Court finds that Iconic has satisfied its burden of coming forward with competent evidence, which when viewed in a manner favorable to Iconic, sufficiently establishes that Shesfreaky.com is subject to Florida's long-arm statute.
B. Due Process
A finding that Florida's long-arm statute is satisfied does not end the Court's jurisdictional inquiry. "The Due Process Clause of the Fourteenth Amendment constrains a State's authority to bind a nonresident defendant to a judgment of its courts." Walden v. Fiore, 571 U.S. 277, 284, 134 S.Ct. 1115, 188 L.Ed.2d 12 (2014). In making this decision, the Court must "engage in a two-part inquiry." Sculptchair, Inc. v. Century Arts, Ltd., 94 F.3d 623, 630 (11th Cir. 1996). First, the Court must consider whether Shesfreaky.com has sufficient "minimum contacts" with the state of Florida. See id. (quoting Int'l Shoe Co. v. State of Wash., Office of Unemployment Comp. & Placement, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) ). Second, the Court must decide whether the exercise of jurisdiction over Shesfreaky.com would "offend traditional notions of fair play and substantial justice." See Int'l Shoe Co., 326 U.S. at 316, 66 S.Ct. 154 (internal quotations omitted). Iconic bears the burden of establishing minimum contacts, and if it does, Shesfreaky.com must make a " ‘compelling case’ that the exercise of jurisdiction would violate traditional notions of fair play and substantial justice." Diamond Crystal Brands, Inc. v. Food Movers Int'l, Inc., 593 F.3d 1249, 1267 (11th Cir. 2010) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) ).
1. Shesfreaky.com's contacts with Florida
This first prong of the due process analysis, whether minimum contacts exist, focuses on "the relationship among the defendant, the forum, and the litigation." Walden, 571 U.S. at 284, 134 S.Ct. 1115. The Court must scrutinize the connections Shesfreaky.com's created with Florida beyond its connection with Iconic, regardless of how substantially connected Iconic is to Florida. Id. Indeed, "it is the defendant's conduct that must form the necessary connection with the forum State that is the basis for its jurisdiction over him." Id.; see also Burger King Corp., 471 U.S. at 478, 105 S.Ct. 2174 ("If the question is whether an individual's contract with an out-of-state party alone can automatically establish sufficient minimum contacts in the other party's home forum, we believe the answer clearly is that it cannot."). "This inquiry ensures that a defendant is haled into court in a forum state based on the defendant's own affiliation with the state, rather than the "random, fortuitous, or attenuated" contacts it makes by interacting with other persons affiliated with the state." Waite v. All Acquisition Corp., 901 F.3d 1307, 1312 (11th Cir. 2018), cert. denied sub nom. Waite v. Union Carbide Corp., ––– U.S. ––––, 139 S. Ct. 1384, 203 L.Ed.2d 611 (2019). To evaluate whether personal jurisdiction exists, a court must find that the claims asserted "arise out of or relate to" the defendant's’ contact with the forum and whether the defendant "purposefully availed" itself of the privilege of operating within the forum state. Id.
In support of its argument, Iconic claims that Shesfreaky.com targeted users in Florida; refused to remove the infringing works knowing Iconic was based in Florida; knew users from Florida were viewing the works; and profited from users in Florida viewing and copying the works. Iconic classifies the exchange of the data comprising the works as follows: (1) User Defendants uploaded the works to Shesfreaky.com; (2) Shesfreaky.com hosts the works on its web servers; (3) other users (including some from Florida) accessed Shesfreaky.com and requested copies of the works; (4) Shesfreaky.com provided a copy of the works to the request users knowing some of them are in Florida; (5) Shesfreaky.com is paid by third party advertisers based on the number of views it received, (Doc. 63.1 ¶ 32).
While the Court agrees with the Report's legal conclusion that Iconic must establish that "but-for" Shesfreaky.corn's actions with Florida some of the infringement would not have occurred, Waite v. All Acquisition Corp., 901 F.3d at 1314, the facts establish that part of the acts underpinning this suit arose from Shesfreaky.com's contact with Florida. When Florida users accessed Shesfreaky.com and requested the works, Shesfreaky.com knew that the users were located in Florida, sent the works to Florida, and profited from the Florida users visit knowing that it was infringing on a Florida company's works. But-for Shesfreaky.com's interactions with Florida users and infringing activities against a Florida company, some of the infringement in this case would not have occurred.
Similarly, the Report did not err in its application or discussion of Cable/Home Commc'n Corp., 902 F.2d 829, and the Objection does not specify how the Report's treatment of Cable/Home Commc'n Corp. led to an erroneous legal conclusion. See Objection at 14 ("Cable/Home was not discussed in the due process analysis of the R&R, and therefore the conclusions reached ... is [sic] error.").
2. Purposeful Availment
Not only do these facts establish that Iconic's claims arise out of or relate to Shesfreaky.com contact with Florida, they also establish Shesfreaky.com's purposeful availment. In Mosseri, the Eleventh Circuit noted that in intentional tort cases, two tests may be utilized to determine whether purposeful availment has occurred. Louis Vuitton Malletier, S.A. v. Mosseri, 736 F.3d 1339, 1356 (11th Cir. 2013). The first test is the "effects test" articulated by the Supreme Court in Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984). Mosseri, 736 F.3d at 1356. Under this test, "a nonresident defendant's single tortious act can establish purposeful availment, without regard to whether the defendant had any other contacts with the forum state." Id. (citing Lovelady, 544 F.3d at 1285 ). This happens when the tort: " ‘(1) [was] intentional; (2) [was] aimed at the forum state; and (3) caused harm that the defendant should have anticipated would be suffered in the forum state.’ " Id. (quoting Lovelady, 544 F.3d at 1285–88 ) (alternations in original).
As the Court finds Plaintiffs satisfied the effects test, it need not consider the second test, the traditional minimum contacts test. Mosseri, 736 F.3d at 1356.
In Lovelady, the plaintiff, a musician and Florida resident, sued his former personal manager for trademark infringement. 544 F.3d at 1282. The defendant resided in Tennessee and from Tennessee posted a website, which was accessible to the public in Florida, and which promoted the defendant as a personal manager for musicians. Id.
The website included a photo of the plaintiff, as well as the plaintiff's trademarked name and offered to sell CD's that provided management advice and other career assistance. Id. at 1282-83. After finding Florida's long-arm statute was applicable, the Eleventh Circuit evaluated whether exercising personal jurisdiction over the defendant comported with due process and specifically addressed whether the defendant's alleged conduct satisfied the "effects test." Id. at 1287. The court concluded that the defendant's alleged infringement constituted a purposeful availment. The court explained as follows:
In this case, [the defendant] is alleged to have committed an intentional tort against [the plaintiff]-using his trademarked name and his picture on a website accessible in Florida in a manner to imply [the plaintiff]’s endorsement of [the defendant] and his products. The use was not negligent, but intentional. The purpose was to make money from [the plaintiff]’s implied endorsement. The unauthorized use of [the plaintiff]’s mark, therefore, individually targeted [the plaintiff] in order to misappropriate his name and reputation for commercial gain. These allegations satisfy the effects test for personal jurisdiction-the commission of an intentional tort, expressly aimed at a specific individual in the forum whose effects were suffered in the forum.
Id. at 1287-88.
Iconic alleged Shesfreaky.com committed an intentional tort by using Iconic's copyrighted works on a website accessible in Florida in a manner to imply that Shesfreaky.com is authorized to copy and distribute the works. Shesfreaky.com has in-turn profited from intentional infringement at the expense of Iconic, as viewers were able to access Iconic's works without subscribing to Onlyfans.com. Accordingly, as in Lovelady, Iconic’ allegations that the unauthorized use of the works "individually targeted [Iconic] in order to misappropriate [its] [works] and for commercial gain," are sufficient to "satisfy the effects test for personal jurisdiction-the commission of an intentional tort, expressly aimed at a specific individual in the forum whose effects were suffered in the forum." Lovelady, 544 F.3d at 1288.
Shesfreaky.com tries to distinguish itself from other defendants in cases like Gainesville Coins. Gainesville Coins involved a defendant who crawled through cyberspace until it found the plaintiff's designs, copied those designs, and then siphoned the plaintiff's customers. Gainesville Coins, 2013 WL 4596968, at *3. In finding that the court had personal jurisdiction over the defendant, the court explained that the allegations of
deliberately and willfully infringing upon Gainesville Coins’ copyright by copying nearly the entire website for Gainesville Coins; and displaying the Work at its competing website, the [defendant]’s Website, for commercial gain because [the defendant] is a competitor of Gainesville Coins, are sufficient to meet the "effects test". In other words, [the defendant]’s alleged acts purposefully availed itself of this forum.
Id. at *4. Shesfreaky.com rightly notes that there are not allegations that it sought Iconic's works or knew they were copyrighted upon receipt. Had the case ended there, personal jurisdiction might not exist. However, once Shesfreaky.com retained the works and continued to copy and distribute those works—knowing those works belonged to a Florida company—including to thousands of users that it knew were located in Florida, Shesfreaky.com stood in the same position as the defendant in Gainesville Coins.
Shesfreaky.com's reliance on Walden does not alter the Court's conclusion. In the wake of Calder some courts extended Calder’s holding to mean that minimum contacts could be established anywhere a plaintiff suffers harm. RG Golf Warehouse, Inc. v. Golf Warehouse, Inc., 362 F. Supp. 3d 1226, 1240 (M.D. Fla. 2019). Walden rejected such a broad extension of Calder by explaining that not only had the plaintiff in Calder been injured in California, but that the injury was foreseeable because at the time of publication, the defendant knew the plaintiff was a California resident and effects of the tort would be strongest in California. Walden, 571 U.S. at 287, 134 S.Ct. 1115. Importantly, the defendant in Calder also reached out to California residents leading up to the allegedly libelous article, wrote about activities in California, and knew the article would be circulated in California. Id.
The facts in Walden were markedly different. Walden arose in the context of two professional gamblers who allegedly had their winnings wrongfully seized by a law enforcement agent as the plaintiffs traveled through the Atlanta airport. Id. at 280, 134 S.Ct. 1115. The agent wrongfully retained the proceeds knowing that the gamblers were residents of Nevada. In holding that Nevada courts could not exercise jurisdiction over the agent, Walden explained that the agent only had contact with the gamblers, never Nevada itself. Id. at 289, 134 S.Ct. 1115 ("[The agent]’s actions in Georgia did not create sufficient contacts with Nevada simply because he allegedly directed his conduct at plaintiffs whom he knew had Nevada connections."). The import of the Walden decision was a reiteration of already establish precedent that courts must look at a defendant's connection with the forum, not just a plaintiff located there.
In this case, Shesfreaky.com not only injured Iconic in Florida, it should have expected the injuries to be focused in Florida where Iconic would realize lost revenue. Shesfreaky.com accomplished its tortious conduct in part by making available to Florida citizens the works which were actually accessed by Florida citizens. To the extent that Shesfreaky.com argues the relationships between itself and Florida were established by the unilateral efforts of Florida users, that argument is rejected. Florida users may have initiated contact by accessing Shesfreaky.com but Shesfreaky.com had to decide whether and how to respond to Florida users’ requests to access and copy Iconic's works. That Shesfreaky.com automated its responses and grants of access does not mean that Shesfreaky.com did not choose to send information into Florida. Rather that automation was a result of Shesfreaky.com's business decision to streamline the distribution of the content it hosted. It cannot now sidestep its connections to Florida by claiming it was the Florida users who unilaterally maintained a relationship to Florida. Moreover, there is no evidence that Shesfreaky.com took an any affirmative steps to block Florida viewers from copying and receiving the works from its website. Instead, the evidence is Shesfreaky.com profited from Florida viewers. These contacts indicate Defendant " ‘deliberate[ly] affiliat[ed]’ with [Florida] ... and thus should reasonably anticipate defending a suit there." Diamond Crystal, 593 F.3d at 1268 (quoting Burger King, 471 U.S. at 482, 105 S.Ct. 2174 ).
3. Fair Play and Substantial Justice
The burden now shifts to Shesfreaky.com to make a "compelling case" that the exercise of jurisdiction over it would violate the traditional notions of fair play and substantial justice. In making this determination, the Court should look at several factors, such as: (1) the burden on Shesfreaky.com, (2) Florida's interest in adjudicating the dispute, (3) Iconic's interest in obtaining convenient and effective relief, (4) the interstate judicial system's interest in obtaining the most efficient resolution of controversies, and (5) the shared interest of the several states in furthering fundamental substantive social policies. Future Tech. Today, Inc. v. OSF Healthcare Systems, 218 F.3d 1247, 1251 (11h Cir. 2000).
Requiring Shesfreaky.com to defend itself in Florida is a significant burden. However, Shesfreaky.com receives 8.62% of its site traffic from Florida. (Doc. 63.1 ¶ 6). That means relative to its population, Florida viewers are 30% more likely to visit Shesfreaky.com than the general population. In other words, Shesfreaky.com disproportionately profits from Florida. Florida has a significant interest in adjudicating this dispute since it is between a Florida company, Iconic, and a foreign company, Shesfreaky.com, that has a disproportionally beneficial commercial relationship with Florida—a relationship from which at least some of the alleged violations in this case occurred. Iconic is entitled to obtain that relief here, and the burden on it in traveling to Shesfreaky.com's home forum is no less onerous than one created Shesfreaky.com travelling here. Of course, with the advent of electronic filing, the burden in either situation is lessened. See Peay v. BellSouth Med. Assistance Plan, 205 F.3d 1206, 1212 (10th Cir. 2000) (explaining that electronic communication and modern transportation eased the burdens of litigating in distant forums such inconvenience will rarely "rise to a level of constitutional concern") (internal quotations omitted). Moreover, there is a shared interest between the states that a tortfeasor who intentionally engages in tortious activity in another state from which he routinely and knowingly profits could be called into court in that state.
Consistent with Fed. R. Evid. 201, the Court takes judicial notice of the following: According to the United States Census Bureau, the population of the United States is approximately 330,000,000. https://www.census.gov/popclock/. Approximately 21,500,000 people are located in Florida, which is equal to about 6.5% of the United States’ population. Id.
Accordingly, after due consideration, it is
ORDERED:
1. Plaintiff's Objection to Report and Recommendations (Doc. 81) is SUSTAINED .
2. The Report and Recommendation (Doc. 80) is supplanted by this Order.
3. Defendant's Motions to Dismiss (Doc. 63) is DENIED .
4. On or before October 14, 2020 , the parties shall file a joint status report on how they plan to proceed in this case.
DONE and ORDERED in Jacksonville, Florida this 30th day of September, 2020.