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holding that plaintiff's conclusory allegation challenging defendant's claim that it did not receive substantial revenue from interstate commerce was insufficient to make a prima facie showing
Summary of this case from Deitrick v. Gypsy Guitar Corp.Opinion
06 Civ. 0547 (NRB).
August 21, 2006
MEMORANDUM AND ORDER
Plaintiff Richtone Design Group L.L.C. ("plaintiff" or "Richtone"), a New York company which licenses Pilates certification programs, brings this copyright infringement action against Classical Pilates, Inc. ("Classical Pilates"), a Florida business which offers Pilates training and instruction, and its owners, Jeffrey B. Foerster ("Mr. Foerster"), and Taunya G. Foerster ("Mrs. Foerster") (collectively, "defendants"), both of whom are Florida residents. Plaintiff alleges that defendants infringed its copyright when they used pages from its Pilates Teacher Training Manual (the "Manual"). Defendants now move to dismiss for lack of personal jurisdiction pursuant to Fed.R.Civ.P. 12(b)(2) and improper venue under 28 U.S.C. § 1391. For the reasons set forth below, defendants' motion is granted.
Pilates is "a physical fitness system developed in the early 20th century by Joseph Pilates which encourages the use of the mind to control the muscles." Defendants' Memorandum of Law in Support of Motion to Dismiss ("Def. Mem.") at 2.
Plaintiff alleges that it purchased the right to license these programs from Pilates, Inc. Complaint ("Compl.") ¶ 1.
Because we conclude that no basis for exercising personal jurisdiction exists, we do not address the issue of venue.
BACKGROUND
The following facts are drawn from plaintiff's complaint and affidavits submitted by both parties and, as is appropriate when considering a motion to dismiss under Fed.R.Civ.P. 12(b)(2), are construed in the light most favorable to plaintiff. See Yellow Page Solutions, Inc. v. Bell Atlantic Yellow Pages Co., No. 00 Civ. 5663(MBM), 2001 WL 1468168, at *1 (S.D.N.Y. Nov. 19, 2001).
Classical Pilates offers its classes and training sessions at a single location in Fort Lauderdale, Florida. Declaration of Taunya G. Foerster dated March 16, 2006 ("Decl. of T. Foerster") ¶ 2; Declaration of Jeffrey B. Foerster dated March 17, 2006 ("Decl. of J. Foerster") ¶ 2. Mr. and Mrs. Foerster, both residents of Florida for over a decade, are the owners and only full time employees. Decl. of T. Foerster ¶¶ 3, 16; Decl. of J. Foerster ¶¶ 3, 12. Defendants affirm that they have never conducted business, held any classes, or provided any services or products in New York. Decl. of T. Foerster ¶¶ 17, 23; Decl. of J. Foerster ¶¶ 13, 19.
Six Pilates instructors, all of whom work and reside in Florida, are employed as independent contractors. Decl. of T. Foerster ¶ 3; Decl. of J. Foerster ¶ 3.
Richtone licenses Pilates teacher certification programs throughout the country and asserts that it holds a registered copyright for the Manual, which is used in conjunction with these certification programs. Compl. ¶¶ 1, 6-7, 12. Plaintiff alleges that some time after November 2004 it learned that Classical Pilates was using portions of the Manual in its own classes and training sessions without authorization. Id. at ¶¶ 9-11.
Plaintiff asserts that Pilates, Inc., the original publisher of the Manual, assigned its ownership of the copyright of the Manual to plaintiff in 2005. Compl. ¶ 7.
Mrs. Foerster asserts that she compiled a Pilates training manual (the "CP manual") prior to October 2003 to be given to students in Classical Pilates' certification classes. Decl. of T. Foerster ¶ 8. The CP manual incorporated her own images "with text from third[ ] or fourth generation photocopies of Pilates training materials that I had been given by a Pilates studio in Fort Myers, Florida, for which I do not recall seeing any indication of copyright protection, and for which I was not aware of any copyright protection." Id. Mrs. Foerster distributed copies of the CP manual to students in the certification classes between October 2003 and November 2004. Id. at ¶ 9. She estimates that the CP manual was distributed to "most likely nine or ten persons, but definitely fewer than fifteen" students enrolled in the certification classes. Id. The CP manual was never sold separately, nor were the certification students charged any extra amount for receiving the CP manual. Id. at ¶ 10. The CP manual was never publicized or featured in any Classical Pilates advertising or on its website.Id. at ¶ 12; Decl. of J. Foerster ¶ 8. Defendants assert that they never sold or gave the CP manual to any other person. Decl. of T. Foerster ¶ 11; Decl. of J. Foerster ¶ 7. On November 5, 2004, defendants received a cease and desist letter from plaintiff. Decl. of T. Foerster ¶ 14; Decl. of J. Foerster ¶ 10. Immediately after receiving this letter, defendants assert that they stopped using the disputed material. Decl. of T. Foerster ¶ 15; Decl. of J. Foerster ¶ 11.
Plaintiff filed the instant complaint on January 24, 2006. Defendants now move to dismiss plaintiff's complaint pursuant to Fed.R.Civ.P. 12(b)(2) and 28 U.S.C. § 1391. For the following reasons, defendants' motion to dismiss is granted.
DISCUSSION
On a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(2), the plaintiff bears the burden of showing that jurisdiction exists over the defendant. See Distefano v. Carozzi North America, Inc., 286 F.3d 81, 84 (2d Cir. 2001) (citing Bank Brussels Lambert v. Fiddler Gonzalez Rodriguez, 171 F.3d 779, 784 (2d Cir. 1999)). Prior to discovery, plaintiff must only make a prima facie showing of jurisdiction to defeat a motion to dismiss. See Bank Brussels Lambert, 171 F.3d at 784. "Because [a] Rule 12(b)(2) motion is inherently a matter requiring the resolution of factual issues outside of the pleadings . . . all pertinent documentation submitted by the parties may be considered in deciding the motion." Pilates, Inc. v. Pilates Institute, Inc., 891 F. Supp. 175, 178 n. 2 (S.D.N.Y. 1995) (quoting John Hancock Prop. and Cas. Ins. Co. v. Universal Reinsurance Co., Ltd., No. 91 Civ. 3644 (CES), 1992 WL 26765, at *6 (S.D.N.Y. Feb. 5, 1992)) (quotations omitted). The court must construe all allegations in the light most favorable to the plaintiff and must resolve all doubts in plaintiff's favor "notwithstanding a controverting presentation by the moving party." A.I. Trade Fin., Inc. v. Petra Bank, 989 F.2d 76, 79-80 (2d Cir. 1993) (citing Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 57 (2d Cir. 1985)).
Determination of jurisdiction in diversity or federal question cases is a two-step process. First, we must examine whether personal jurisdiction is appropriate under New York's long-arm statute. See Bensusan Rest. Corp. v. King, 126 F.3d 25, 27 (2d Cir. 1997) (citing PDK Labs, Inc. v. Friedlander, 103 F.3d 1105, 1108 (2d Cir. 1997)). Second, if the exercise of jurisdiction under the long-arm statute is appropriate, then we must examine whether the exercise of jurisdiction comports with the requirements of due process. See Bensusan, 126 F.3d at 27 (citing Metropolitan Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 567 (2d Cir. 1997)). Plaintiff asserts that personal jurisdiction over defendants exists under sections 302(a)(3)(i) and (ii) of the New York state long-arm statute. We disagree.
"In a federal question case, where the defendant resides outside the forum state, federal courts apply the forum state's personal jurisdiction rules if the applicable federal statute does not provide for national service of process." Sunward Electronics, Inc. v. McDonald, 362 F.3d 17, 22 (2d Cir. 2004) (citing PDK Labs., Inc. v. Friedlander, 103 F.3d 1105, 1108 (2d Cir. 1997)). Because the Copyright Act, 17 U.S.C. § 101 et seq., does not provide for nationwide service of process, see Sunward Elecs., Inc. v. McDonald, 362 F.3d 17, 22 (2d Cir. 2004), we apply New York law.
Because New York law does not permit the exercise of personal jurisdiction here, we need not consider this second question.
These sections provide that a court may exercise personal jurisdiction over a non-domiciliary who:
3. commits a tortious act without the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act, 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)(3).
Section 302(a)(3) "was not designed to go to the full limits of permissible jurisdiction." Ingraham v. Carroll, 90 N.Y.2d 592, 597, 665 N.Y.S.2d 10, 12 (1997). Rather, the limitations in subparagraphs (i) and (ii) "were deliberately inserted to keep the provision well within constitutional bounds." Id. (citation and internal quotations omitted).
C.P.L.R. § 302(a)(3)(i)Section 302(a)(3)(i) provides that a defendant who commits a tortious act outside New York that causes injury to a person within New York may be subject to personal jurisdiction if he "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 New York. N.Y. C.P.L.R. § 302(a)(3)(i).
As an initial matter, plaintiff does not allege that defendants derive revenue from goods or services rendered in New York, much less offer "hard evidence" of substantial revenue. Plastwood Corp. v. Robinson, No. 04 Civ. 3214 (BSJ), 2004 WL 1933625, at *5 (S.D.N.Y. Aug. 30, 2004) (quoting Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 200 (2d Cir. 1990)). At most, plaintiff suggests that defendants' "partly interactive website," which contains "links to other companies and organizations from which someone may shop" constitutes solicitation of business or a persistent course of conduct in New York. Plaintiff's Memorandum of Law in Opposition ("Opp. Mem.") at 6.
By contrast, defendants specifically assert that they have never held any classes in New York, provided any services or sold any products in New York, or derived any revenue from New York.See Decl. of T. Foerster ¶ 23; Decl. of J. Foerster ¶ 19.
However, the fact that defendants' website is accessible to New York residents simply does not constitute the kind of conduct required under § 302(a)(3)(i). See Ingraham, 90 N.Y.2d at 597, 665 N.Y.S.2d at 12; Telebyte, Inc. v. Kendaco, Inc., 105 F. Supp. 2d 131, 136 (E.D.N.Y. 2000) ("[T]he mere existence of a web site accessible from New York is insufficient to establish 'solicitation' for purposes of personal jurisdiction." (citingBensusan, 126 F.3d at 29)); see also GTE New Media Servs. Inc. v. BellSouth Corp., 199 F.3d 1343, 1349 (D.C. Cir. 2000) (analyzing nearly identical long-arm statute and concluding that "personal jurisdiction surely cannot be based solely on the ability of District residents to access the defendants' websites, for this does not by itself show any persistent course of conduct by the defendants in the District"). Nor does the fact that defendants' website contains links to other sites from which browsers can shop subject defendants to personal jurisdiction under § 302(a)(3)(i). In short, by maintaining a largely passive website focused on providing information related to classes offered in Classical Pilates' sole location in Florida, see Plaintiff's Exhibits ("Pl. Exs.") 4, defendants cannot be said to have had "sufficient contacts with this state so that it is not unfair to require them to answer in this state for injuries they cause here by acts done elsewhere." Ingraham, 90 N.Y.2d at 597, 665 N.Y.S.2d at 12. Accordingly, this Court may not exercise personal jurisdiction over defendants pursuant to C.P.L.R. § 302(a)(3)(i).
For the reasons stated above, defendants also were not "doing business" in New York such as to subject them to the "stringent" requirements for assertion of general jurisdiction under C.P.L.R. § 301. Northrop Grumman Overseas Serv. Corp. v. Banco Wiese Sudameries, No. 03 Civ. 1681 (LAP), 2004 WL 2199547, at *6 (S.D.N.Y. Sept. 29, 2004) (quoting In re Ski Train Fire, 230 F. Supp. 2d 376, 382 (S.D.N.Y. 2002)); see also Swindell v. Florida East Coast Ry. Co., 42 F. Supp. 2d 320, 326 (S.D.N.Y. 1999) (noting that standard for doing business under C.P.L.R. § 302(a)(3)(i) is not as rigorous as that under § 301) (citation omitted).
Nor would the exercise of personal jurisdiction be appropriate under C.P.L.R. § 302(a)(3)(ii), which requires in part that defendants derive "substantial revenue from interstate or international commerce." N.Y. C.P.L.R. § 302(a)(3)(ii). Plaintiff points out that "[t]he defendant's [sic] have provided no documentary evidence . . . that they have received no income from interstate commerce." Opp. Mem. at 6. In support of its own position, plaintiff merely argues that defendants' location in Fort Lauderdale, which "is well known as a vacation destination," raises serious doubts about defendants' statement that Classical Pilates does not receive substantial revenue from interstate commerce. Opp. Mem. at 6. This allegation simply is insufficient to make even a prima facie showing that Classical Pilates derives "substantial revenue" from interstate commerce. N.Y. C.P.L.R. § 302(a)(3)(ii). Accordingly, we find that plaintiff fails to bear its burden of showing that the exercise of personal jurisdiction over Classical Pilates would be permitted under C.P.L.R. § 302(a)(3)(ii). See Distefano, 286 F.3d at 84.
CONCLUSION
For the foregoing reasons, defendants' motion to dismiss is granted. Plaintiff's request for jurisdictional discovery is denied in light of the fact that its jurisdictional claim appears to have no reasonable basis. See Allojet PLC v. Vantgage Associates, No. 04 Civ. 05223 (SAS), 2005 WL 612848, at *7 n. 94 (S.D.N.Y. March 15, 2005) (collecting cases).