Opinion
Civil Action No. 03-CV-4007.
March 23, 2004
MEMORANDUM ORDER
Presently before the Court is the Motion Pursuant to Rule 12(b), (Doc. No. 3), filed on behalf of Defendant Dean Allen, and Plaintiff's response thereto, (Doc. No. 4). For the following reasons, we will deny Defendant's Motion.
I. BACKGROUND
Plaintiff, Kathy Scogna, filed the instant lawsuit on July 7, 2003, alleging, inter alia, copyright infringement pursuant to 17 U.S.C. § 101, et. seq. (Compl. at ¶ 1.) In her Complaint, Plaintiff alleges that this Court has both subject matter jurisdiction and diversity jurisdiction. (Id. at ¶¶ 1-2.) Plaintiff is a resident of Pennsylvania and Defendant is a resident of Idaho. (Id. at ¶¶ 4, 7.)
Plaintiff is the widow of the late Joseph R. Scogna, Jr., who "during his lifetime, created numerous books, manuscripts and computer programs, many of which he registered with the Copyright Office of the Library of Congress pursuant to 17 U.S.C. § 405." (Compl. at ¶¶ 11-12.) Plaintiff claims that "[o]n May 2, 1988, prior to his death, Joseph R. Scogna, Jr. assigned all of his proprietary interest in all his published and unpublished books, manuscripts and computer programs, both copyrighted and not copyrighted, to Plaintiff." (Id. at ¶ 13.) Plaintiff claims that following her husband's death, she recorded the assignments of the previously copyrighted materials and, pursuant to 17 U.S.C. § 205, registered some of the computer programs that had not previously been copyrighted with the Copyright Office. (Id. at ¶ 14.) Plaintiff alleges that Defendant had access to these copyrighted materials and subsequent to that access, Defendant published and distributed works that "reproduced substantial portions of one or more of the Copyrighted Works." (Id. at ¶¶ 18-20.)
Defendant filed the instant Motion pursuant to Federal Rules of Civil Procedure 12(b)(2) and 12(b)(3), claiming a lack of personal jurisdiction and improper venue. (Mot. Pursuant to Rule 12(b) at ¶¶ 1-2.)
II. LEGAL STANDARD
"[A] district court may assert personal jurisdiction `over non-resident defendants to the extent permissible under law of the state where the district court sits.'" Remick v. Manfredy, 238 F.3d 248, 255 (3d Cir. 2001) (quoting Pennzoil Prod. Co. v. Colelli Assocs., Inc., 149 F.3d 197, 200 (3d Cir. 1998). Pennsylvania's long-arm statute, 42 PA. CONS. STAT. ANN. 5322(b), authorizes Pennsylvania courts "to exercise personal jurisdiction over nonresident defendants to the constitutional limits of the due process clause of the fourteenth amendment." Id. "Due process requires that the defendant have `minimum contacts' in the forum state, and that the exercise of jurisdiction comport with `traditional notions of fair play and substantial justice.'"Id. (quoting International Shoe Co. v. Wash., 326 U.S. 310, 316 (1945)).
Personal jurisdiction can be either general or specific. General personal jurisdiction is found when a defendant has "`continuous and systematic' contacts with the forum and exists even if the plaintiff's cause of action arises from the defendant's non-forum related activities."Remick, 238 F.3d at 255. As to specific jurisdiction, inBurger King Corp. v. Rudzewicz, the United States Supreme Court stated:
Jurisdiction is proper . . . where the contacts proximately result from actions by the defendant himself that create a `substantial connection' with the forum State. Thus where the defendant `deliberately' has engaged in significant activities within a State, or has created `continuing obligations' between himself and residents of the forum, he manifestly has availed himself of the privilege of conducting business there, and because his activities are shielded by `the benefits and protections' of the forum's laws it is presumptively not unreasonable to require him to submit to the burdens of litigation in that forum as well.471 U.S. 462, 475 (1985) (internal citations omitted). The Third Circuit has established a twopart test in evaluating such a claim. "First, the plaintiff must show that the defendant had constitutionally sufficient minimum contacts with the forum."Banner Promotions, Inc. v. Maldonado, 56 F. Supp.2d 552, 555 (E.D. Pa. 1999). These minimum contacts should be of the kind that the "defendant should `reasonably anticipate being haled into court'" in that forum. Id. (quoting Mellon Bank (East) v. DiVeronica Bros., 983 F.2d 551, 554 (3d Cir. 1993). In addition, the court should ensure that the defendant "purposefully established those minimum contacts." Id. In the second step, "the court must determine, in its discretion, that exercising jurisdiction would `comport with traditional notions of fair play and substantial justice.'" Id. (quoting IMO Indus., Inc. v. Kiekert AG, 155 F.3d 254, 259 (3d Cir. 1998) (internal citations omitted)).
Where a defendant challenges the exercise of personal jurisdiction, "plaintiff bears the burden of proving the facts necessary to establish the minimum contacts the Constitution requires." Grand Entm't Group, LTD. v. Star Media Sales, Inc., 988 F.2d 476, 482 (3d Cir. 1993). However, to meet this burden, plaintiff need only make a "prima facie showing and a court must resolve factual doubts in favor of plaintiff." Banner Promotions, 56 F. Supp.2d at 555.
While district courts have "discretion to decide a motion to transfer based on individualized, case-by-case consideration of convenience and fairness, such motions are not to be liberally granted." First Union Nat'l Bank v. United States, 55 F. Supp.2d 331, 332 (E.D. Pa. 1999) (citing Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988). The burden of demonstrating the need for transfer rests with the movant. In considering a defendant's motion to transfer venue, the "plaintiff's choice of forum is a paramount consideration which should not lightly be disturbed." Id. (quoting Sovereign Bank, F.S.B. v. Rochester Comty. Sav. Bank, 907 F. Supp. 123, 126 (E.D. Pa. 1995) (internal citations omitted)).
III. DISCUSSION
A. Personal Jurisdiction
Defendant argues that we do not have personal jurisdiction over him "because there is no evidence whatsoever of business transactions with anyone in the District." (Mot. Pursuant to Rule 12(b) at 2.) We disagree. In evaluating a Defendant's contacts, we must examine whether Defendant "purposefully established those minimum contacts" through "some act by which the defendant purposefully availed itself of the privilege of conducting activities within the forum." We conclude that Plaintiff has met her burden of making a prima facie showing that Defendant initiated sufficient contacts with the Commonwealth of Pennsylvania, such that Defendant could reasonably anticipate being haled into court here. In support of her claim, Plaintiff alleges that Defendant made and/or initiated the following contacts with the forum state:
1. A phone call by Mr. Allen to Mrs. Scogna to discuss, among other things, the copyrighted works that are the subject of the Complaint.
2. Two separate visits by Mr. Allen to Mrs. Scogna's home in Berks County, Pennsylvania, during which Mr. Allen borrowed copies . . . of the copyrighted works.
3. Numerous telephone calls and electronic mail messages from Mr. Allen to Mrs. Scogna in Pennsylvania to discuss commercial exploitation of those copyrighted works.
4. Transmission by Mr. Allen's attorney to Mrs. Scogna and her Pennsylvania attorney of a proposed agreement pursuant to which Mrs. Scogna would assign her rights and the copyrighted works to Mr. Allen.
5. Mr. Allen's retention of his current attorney, who is based in the Eastern District, in 2000, and who, on Mr. Allen's behalf, engaged in unsuccessful efforts with Mrs. Scogna and her Pennsylvania counsel to negotiate an agreement pursuant to which Mrs. Scogna would license certain rights in those copyrighted works to Mr. Allen.
(Reply of Pl. in Opp'n to Mot. to Dismiss of Def. Pursuant to Rules 12(b)(1) and 12(b)(2) of the Fed.R. of Civ. P. at 4.) As to the second step in the analysis, we are satisfied that our "exercising jurisdiction would `comport with traditional notions of fair play and substantial justice.'" Banner Promotions, 56 F. Supp.2d at 555 (quoting IMO Indus., Inc., 155 F.3d at 259 (internal citations omitted)). In Grand Entm't, the Third Circuit noted that, at this stage, the burden on the defendant is heavy. 988 F.2d at 483. The court also found that a defendant who was Spanish had failed "to show an absence of fairness or lack of substantial justice" would result from being haled into court in Pennsylvania. Id. The Grand Entm't court based its decision on the fact that the defendant, through his contacts with the forum, had "shown his ability to conduct business in the United States and ha[d] actively carried on substantial activities here." Id. In the instant case, Defendant, who is not a citizen of a foreign nation, would suffer less of a hardship than the defendant inGrand Entm't. In addition, through his multiple contacts with Plaintiff, Defendant has shown that he has an ability to conduct business in Pennsylvania. "Moreover, Pennsylvania has an interest in protecting its residents from the kind of conduct" in which Plaintiff claims that Defendant engaged. Id. Accordingly, we conclude that this forum has personal jurisdiction over Defendant for the claims stated in Plaintiff's Complaint.
B. Venue
Defendant first argues that venue was improperly laid and we should dismiss the case pursuant to 28 U.S.C. § 1406. We do not agree that venue was improper. Under 28 U.S.C. § 1400(a), a plaintiff alleging copyright infringement may bring her action "in the district in which the defendant or his agent resides or may be found." 28 U.S.C. § 1400(a). In Blackburn v. Walker Oriental Rug Galleries, Inc., the court stated that "[a] defendant of a copyright claim `may be found' wherever the defendant is amenable to personal jurisdiction." 999 F. Supp. 636, 638 (E.D. Pa. 1998) (citing Donner v. Tams-Witmark Music Library, Inc., 480 F. Supp. 1229, 1234-35 (E.D. Pa. 1979)). In addition, the court in Blackburn stated that "venue in a copyright action is proper in any judicial district in which the defendant would be amenable to personal jurisdiction if the district were a separate state." Id. (citing Columbia Pictures Television v. Krypton Broad., 106 F.3d 284, 289 (9th Cir. 1997)). As discussed above, Defendant is amenable to personal jurisdiction in Pennsylvania. In addition, it appears that Defendant's contacts with the forum state have been focused in the Eastern District of Pennsylvania. Accordingly, we conclude that venue in this district is proper.
Twenty-eight U.S.C. § 1406 states, in part:
(a) The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.28 U.S.C. § 1406(a).
C. Transfer
In the alternative, Defendant argues that the "District of Idaho would be proper venue for this action and that this Court has the power to transfer the case" under 28 U.S.C. § 1404(a). (Br. in Supp. of Def.'s Rule 12(b) Mot. at 4.) We will decline to exercise our discretion to transfer this case. Plaintiff chose this forum and we are not persuaded that there are compelling reasons to transfer this case to the District of Idaho. While we understand Defendant's argument that it will be inconvenient for him to travel to Pennsylvania for this lawsuit, his inconvenience does not outweigh the other factors that we must consider. In First Union, the court stated that in evaluating the convenience to the parties, "the court should consider the parties' residence, the residence of potential witnesses, the situs of events giving rise to the lawsuit, the location of records and documents and all other practical problems that make the trial of a case easy, expeditious, and inexpensive." First Union, 55 F. Supp.2d at 333. Plaintiff is domiciled in Pennsylvania, and to transfer this case to Idaho would be just as inconvenient for her as Defendant claims the Pennsylvania venue is for him. In addition, Plaintiff states that "all the copyrighted materials in question, which are privately published, are located at her home" in the Eastern District of Pennsylvania. (Reply of Pl. in Opp'n to Mot. to Dismiss of Def. Pursuant to Rules 12(b)(1) and 12(b)(2) of the Fed.R. of Civ. P. at 11.) Moreover, Plaintiff claims that the alleged "infringement has occurred as a direct result [of] Mr. Allen's visits to the Eastern District, at which time he acquired copies of the material" in question. (Id.) Based on this information, we are persuaded that Defendant has failed to meet his burden of establishing a need to transfer this case to the District of Idaho. Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995) ("The burden of establishing the need for transfer still rests with the movant.") Accordingly, Defendant's Motion will be denied.
Twenty-eight U.S.C. § 1404(a) states:
(a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.28 U.S.C. § 1404(a).
An appropriate Order follows.
ORDER
AND NOW, this 23rd day of March, 2004, upon consideration of Defendant's Motion Pursuant to Rule 12(b), (Doc. No. 3), and all papers filed in support thereof and opposition thereto, it is hereby ORDERED that Defendant's Motion is DENIED.IT IS SO ORDERED.