Opinion
12 Civ. 4866 (DLC)
09-26-2012
JONATHAN ADLER ENTERPRISES, LLC, Plaintiff, v. INS & OUTS POTTERY, INC. d/b/a URBAN TRENDS COLLECTION, d/b/a UT GALLERY, BEHROUZ HAKAKIAN and EBRAHIM HAKAKIAN, Defendants.
MEMORANDUM OPINION AND ORDER
:
On July 16, 2012, defendants, Ins & Outs Pottery ("Ins & Outs"), Behrouz Hakakian and Ebrahim Hakakian, filed a motion to dismiss the amended complaint pursuant to Rules 12(b)(2) and 12(b)(6) of the Federal Rules of Civil Procedure. Having reviewed the parties' submissions, the motion to dismiss is denied for the reasons that follow.
The defendants argue that the plaintiff, Jonathan Adler Enterprises ("Adler"), has failed to state a claim for copyright infringement against them. When deciding a motion to dismiss under Rule 12(b)(6), a trial court must "accept as true all factual statements alleged in the complaint and draw all reasonable inferences in favor of the non-moving party." McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007) (citation omitted).
To state a claim for copyright infringement the plaintiff must allege "ownership of a valid copyright and copying of the protectable elements of the copyrighted work." Scholz Design, Inc. v. Sard Custom Homes, LLC, --- F.3d ---, 2012 WL 3329725 (2d Cir. 2012). Individual officers of a corporation will be vicariously liable for the corporation's infringing conduct if they have "the right and ability to supervise the infringing activity and . . . a direct financial interest in such activities." Gershwin Pub. Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159, 1162 (2d Cir. 1971). The complaint alleges that Adler owns registered copyrights in a number of designs and that Ins & Outs has manufactured, imported, and sold products bearing designs copied from and substantially similar to the copyrighted designs. The complaint further alleges that Ins & Outs is controlled by Behrouz Hakakian and Ebrahim Hakakian who possessed the right and ability to supervise the infringing conduct, and who had a financial stake in the sale of the infringing products. Thus, the complaint sufficiently pleads a claim for copyright infringement against all of the defendants.
The defendants further argue that the plaintiff's complaint should be dismissed for lack of personal jurisdiction. When a defendant files a Rule 12(b)(2) motion and discovery has not yet occurred, the "plaintiff need persuade the court only that its factual allegations constitute a prima facie showing of jurisdiction." Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir. 1990).
If a case arises under a federal statute that does not specify rules for service of process, "a federal court applies the forum state's personal jurisdiction rules." PDK Labs, Inc. v. Friedlander, 103 F.3d 1105, 1108 (2d Cir. 1997); see also Penguin Group (USA) Inc. v. American Buddha, 609 F.3d 30, 34-35 (2d Cir. 2010). "If the exercise of jurisdiction is appropriate under [the state's statutes], the court then must decide whether such exercise comports with the requisites of due process." Bensusan Rest. Corp. v. King, 126 F.3d 25, 27 (2d Cir.1997). The due process analysis "has two related components: the 'minimum contacts inquiry' and the 'reasonableness' inquiry.' Metro. Life Ins. Co. v. RobertsonCeco Corp., 84 F.3d 560, 567 (2d Cir. 1996). When the claim arises out of or relates to the defendant's contacts with the forum, sufficient minimum contacts are established if the defendant "'purposefully availed' himself of the privilege of doing business in the forum state and . . . the defendant could foresee being 'haled into court' there." Kernan v. Hurz-Hastings, Inc., 175 F.3d 236, 242 (2d Cir. 1999). Under Section 302 of New York's Civil Practice Law and Rules, a Court has personal jurisdiction over a non-domiciliary
who in person or through an agent: 1. Transacts any business within the state or contracts anywhere to supply goods or services in the state; or . . . 3. Commits a tortious act without the state causing injury to person or property within the state . . . if he (i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or (ii) expects or should reasonably expect the act to have consequences
in the state and derives substantial revenue from interstate or international commerce.N.Y. C.P.L.R. 302(a)(1) (2008).
The plaintiff has alleged that Ins & Outs transacts business in New York, contracts to sell goods to New York, solicits business in New York and derives substantial revenue from goods used in New York. The complaint further alleges that the defendants engage in purposeful conduct within New York by conducting business through an interactive website, and regularly selling goods through this website and third-party fulfillment websites to customers in New York. These allegations are sufficient to establish a prima facie showing of personal jurisdiction consistent with both New York's Long-Arm statute and due process. Accordingly, it is hereby
ORDERED that the defendants' motion to dismiss pursuant to Rules 12(b)(2) and 12(b)(6) is denied. Dated: New York, New York
September 26, 2012
/s/_________
DEMISE COTE
United Stares District Judge