Tabberone is pronounced tab ber won
not tay ber own
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Tabberone is pronounced tab ber won |
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IN THE UNITED STATES DISTRICT COURT
KAREN DUDNIKOV and MICHAEL MEADORS,
DEFENDANTS’ MOTION TO DISMISS COMPLAINT Pursuant to Federal Rules of Civil Procedure 12(b)(2) & (3) and 28 U.S.C. § 1400(a), Defendants Chalk & Vermilion Fine Arts, Incorporated (“C&V”), and SevenArts, Ltd. (“SevenArts”), appear specially to move the Court for an order dismissing Plaintiffs’ Complaint for lack of personal jurisdiction and improper venue. In support of this Motion, Defendants state as follows: SUMMARY In this lawsuit, Plaintiffs seek to hail Defendants-corporations residing in Britain and Connecticut-into this Court despite the fact that Defendants have no connection to Colorado. Due process does not permit such an exercise of personal jurisdiction over Defendants, and Plaintiffs’ claims should thus be dismissed. Plaintiffs bear the burden of affirmatively proving personal jurisdiction over Defendants, a burden that Plaintiffs simply cannot meet. Federal due process requires that Defendants have continuous and systematic contacts with Colorado, or that Defendants purposefully directed their activities toward Colorado residents, and that this lawsuit relates to those activities. Plaintiff cannot meet this burden because Defendants lack any meaningful contact with Colorado, let alone contact amounting to continuous and systematic contacts. Defendants have never resided, owned property, or maintained any meaningful business presence in Colorado. Plaintiffs have chosen the most inconvenient forum with the least relationship to the claims in this lawsuit. Consequently, Plaintiffs’ claims should be dismissed for lack of personal jurisdiction over Defendants. Finally, under 14 U.S.C. § 1400(a), venue is not proper in this district. JURISDICTIONAL FACTS A. Facts Regarding Plaintiffs and Their Claims1. In this lawsuit, Plaintiffs seek a declaratory judgment that they are not infringing on copyrights held by SevenArts, and to restrain Defendants from claiming copyright infringement or interfering with Plaintiffs’ eBay auctions.1 2. Nowhere in their Complaint do Plaintiffs allege that either Defendant had any type of contact with the State of Colorado. B. Facts Regarding SevenArts 3. SevenArts holds copyrights in art designs created by an artist named Erte. (Footnotes) SevenArts is a British corporation with its principal place of business in Essex, England.2 4. SevenArts does not conduct, nor is it authorized to conduct, business in the State of Colorado.3 5. SevenArts has not appointed an agent for service of process in Colorado.4 6. SevenArts does not own any real property located in Colorado, nor does it maintain any offices in Colorado.5 7. SevenArts does not maintain any bank accounts in Colorado.6 8. SevenArts does not maintain any telephone listings in Colorado.7 9. SevenArts does not direct advertisements specifically to Colorado residents.8 C. Facts Regarding C&V 10. C&V is a publisher of contemporary fine art prints and a dealer of sculpture. C&V publishes and distributes Erte’s art in the United States. C&V is a Delaware corporation with its principal place of business in Greenwich, Connecticut.9 11. C&V does not conduct, nor is it authorized to conduct, business in Colorado.10 (Footnotes) 12. C&V has not appointed an agent for service of process in Colorado.11 13. C&V does not own any real property located in Colorado, nor does it maintain any offices in Colorado.12 14. C&V does not maintain any bank accounts in Colorado.13 15. C&V does not maintain any telephone listings in Colorado.14 16. C&V does not direct advertisements specifically to Colorado residents.15 17. C&V maintains a passive website that is generally accessible by internet users. The website does not provide pricing, or permit ordering, for non-members. The membership necessary for such information is limited to art galleries-none of which operate in Colorado.16 ARGUMENT I. PLAINTIFFS BEAR THE BURDEN OF AFFIRMATIVELY PROVINGPERSONAL JURISDICTION OVER DEFENDANTS IN COLORADO Plaintiffs ‘‘bear the burden of establishing personal jurisdiction’” over Defendants with an affirmative showing of prima facie evidence. OMI Holdings, Inc. v. Royal Ins. Co. of Canada, 149 F.3d 1086, 1091 (10th Cir. 1998).17 Courts accept a plaintiff’s jurisdictional allegations only “to the extent they are uncontroverted by defendant’s affidavits [and] only the (footnotes) well pled facts of plaintiff’s complaint, as distinguished from mere conclusory allegations, must be accepted as true.” Ten Mile Indus. Park v. Western Plains Serv. Corp., 810 F.2d 1518, 1524 (10th Cir. 1987). Specifically, Plaintiffs must demonstrate that the exercise of personal jurisdiction is consistent with the Due Process Clause of the United States Constitution. Behagen v. Amateur Basketball Assoc., 744 F.2d 731, 733 (10th Cir. 1984); C.R.S. 13-1-124; Keefe v. Kirshenbaum & Kirschenbaum, P.C., 40 P.3d 1267, 1270 (Colo. 2002) (“this interpretation obviates the need for statutory analysis separate from the due process inquiry”). The Due Process Clause requires that the court “exercise personal jurisdiction over a nonresident defendant only so long as there exist ‘minimum contacts’ between the defendant and the forum state.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291 (U.S. 1980). To meet this burden, Plaintiffs must prove that Defendants have “minimum contacts” with the State of Colorado in at least one of two ways: First, a court may, consistent with due process, assert specific jurisdiction over a nonresident defendant if the defendant has ‘purposefully directed’ his activities at residents of the forum, and the litigation results from alleged injuries that ‘arise out of or relate to’ those activities. Where a court’s exercise of jurisdiction does not directly arise from a defendant’s forum-related activities, the court may nonetheless maintain general personal jurisdiction over the defendant based on the defendant’s general business contacts with the forum state. Benton v. Cameco Corp., 375 F.3d 1070, 1075 (10th Cir. 2004) (citations omitted). Plaintiffs cannot possibly meet their burden of proving general or specific jurisdiction because the jurisdictional facts unequivocally demonstrate that Defendants lack the minimum contacts necessary to compel them to litigate in Colorado. II. PLAINTIFFS CANNOT PROVE SPECIFIC PERSONAL JURISDICTION OVER Plaintiffs cannot possibly meet their burden of proving specific personal jurisdiction over Defendants. Courts cannot exercise specific jurisdiction unless “the defendant has ‘purposefully directed’ its activities toward the forum jurisdiction, and unless the underlying action is based upon activities that arise out of or relate to the defendant’s contacts with the forum.” SEC v. Knowles, 87 F.3d 413, 418 (10th Cir. 1996); SCC Comm. Corp. v. Anderson, 195 F. Supp.2d 1257, 1260 (D. Colo. 2002). In this analysis, “the mere fact that [the defendant] can ‘foresee’ that [his conduct will] have an effect in [the forum state] is not sufficient for an assertion of jurisdiction.” Calder v. Jones, 465 U.S. 783, 789 (1984). Instead, Plaintiffs “must make a prima facie case that the non-resident defendant: (1) committed an intentional act (2) expressly aimed at the forum state (3) that had an effect and defendant knew was likely to have an effect in the forum state.” Impact Prods. v. Impact Prods. LLC, 341 F. Supp.2d 1186, 1191-1192 (D. Colo. 2004). Finally, “the unilateral activity of another party ‘is not an appropriate consideration when determining whether a defendant has sufficient contacts with a forum State to justify an assertion of jurisdiction.’” Doe v. National Medical Services, 974 F.2d 143, 146 (10th Cir. 1992) (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 417 (1984)). A. Plaintiffs Cannot Prove That Defendants Purposefully Directed Their Defendants did not purposefully direct any activities toward Colorado. The alleged activities underlying this entire lawsuit are limited to the transmission of a Notice of Claimed Infringement to eBay. This activity was initiated outside of Colorado and was directed toward eBay, whose offices are not located in Colorado. Even if Defendants could foresee that their conduct might have some effect on Colorado residents, no conduct was expressly aimed at Colorado, making the exercise of specific jurisdiction improper. B. The Underlying Action is Not Related to Defendants’ Activities This lawsuit is not based on Defendants’ alleged conduct, removing personal jurisdiction in this case. As Plaintiffs’ Complaint reveals, this case concerns only whether the parties have intellectual property rights that have been infringed, not what Defendants have done to protect these rights. In other words, this lawsuit is not based on activities that arise out of or relate to contacts with Colorado. See Wise v. Lindamood, 89 F. Supp.2d 1187, 1189 (D.Colo.1999). Wise is a helpful demonstrative case in which a Colorado plaintiff filed a lawsuit in Colorado seeking, much like Plaintiffs, a declaratory judgment that she was not infringing on a nonresidents’ copyrights. See id. The activities cited were two cease and desist letters sent by the defendant to the plaintiff. See id. at 1191. The Court ruled that these letters did not evince the nexus required between the defendant’s activities and the underlying action because “[t]he dispute in this case results from the alleged tortious conduct of the plaintiff,” rather than “from the two cease and desist letters.” Id. Likewise, Plaintiffs’ cause of action does not arise from Defendants’ alleged activities in halting the eBay auction. Instead, it arises out of Plaintiffs’ copyright infringement. Under these circumstances, Defendant’s activities were neither directed at Colorado nor are they the basis for this lawsuit. Thus, the Due Process Clause, and by implication Colorado’s long-arm statute, prohibit the exercise of specific personal jurisdiction over Defendants. Finally, forcing Defendants to litigate in Colorado would be tantamount to hailing them into court due solely to Plaintiffs’ unilateral activity. See Wise, 89 F. Supp.2d at 1191 (“permitting the mailing of cease and desist letters to trigger personal jurisdiction in this case would effectively permit Defendants to be haled into a jurisdiction solely as a result of . . . the unilateral activity of another party or third person”). In this case Plaintiffs’ unilateral act of unlawfully selling copyrighted material resulted in an alleged reaction from Defendants to protect the SevenArts’ copyright. Such a reaction arose out of the Plaintiffs’ undisputedly unilateral activities. Once again, due process does not permit this Court to exercise personal jurisdiction over Defendants under these circumstances. III. PLAINTIFFS CANNOT PROVE GENERAL PERSONAL JURISDICTION OVER (1) whether the corporation solicits business in the state through a local office or agents; (2) whether the corporation sends agents into the state on a regular basis to solicit business; (3) the extent to which the corporation holds itself out as doing business in the forum state, through advertisements, listings or bank accounts; and (4) the volume of business conducted in the state by the corporation. Trierweiler v. Croxton & Trench Holding Corp., 90 F.3d 1523, 1533 (10th Cir. 1996) (citing 4 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1069 (2d ed. 1987)). Also, in assessing whether a corporation has the substantial, continuous, and systematic contacts necessary for general jurisdiction, “passive” contacts with the forum state, such as maintaining a passive internet site that happens to be available in the forum state, are inadequate. Soma Med. Int’l v. Std. Chtd. Bank, 196 F.3d 1292, 1296-98 (10th Cir. 1999) (“exercising personal jurisdiction is not appropriate when the Internet use involves ‘[a] passive Web site that does little more than make information available to those who are interested in it.’”).18 Under these standards, Plaintiffs cannot prove general jurisdiction over Defendants. A. Plaintiffs Cannot Prove General Jurisdiction Over SevenArts Far from the substantial, continuous, and systematic contacts necessary to confer personal jurisdiction, SevenArts has no meaningful contacts with Colorado. SevenArts is a British corporation with its principal place of business in Essex, England. SevenArts does not conduct, nor is it authorized to conduct, business in Colorado. SevenArts owns no real property in Colorado, maintains no office or a telephone listing in Colorado, and does not advertise in Colorado. In other words, SevenArts lacks substantial, continuing, and systematic contacts with Colorado. Consequently, Plaintiffs may not force SevenArts to defend a lawsuit here based on general jurisdiction. B. Plaintiffs Cannot Prove General Jurisdiction Over C&V C&V, much like SevenArts, has no meaningful contacts with Colorado. C&V is a Delaware corporation with its principal place of business in Connecticut. It does not conduct business, nor is it authorized to conduct business, in Colorado. It owns no real property in Colorado, and maintains no office or telephone listing here. While C&V maintains a website accessible to internet users, it offers pricing and purchase access only to members, and membership is limited to art galleries?none of which operate in Colorado. Thus C&V also lacks substantial, continuing, and systematic contacts with Colorado and C&V cannot reasonably (Footnote) anticipate being haled into Colorado courts. Once again, Plaintiffs should not be able to force C&V to defend a lawsuit here based on general jurisdiction. 19 IV. VENUE IS NOT PROPER IN THIS DISTRICT In addition to the complete lack of personal jurisdiction over Defendants, venue in Colorado is improper in this lawsuit. Federal law mandates that copyright actions be “instituted in the district in which the defendant or his agent resides or may be found.” 28 U.S.C. §1400(a). Under this statute, a defendant “resides or may be found” only where he is subject to personal jurisdiction. See North American Philips Cor. V. American Vending Sales, Inc., 35 F.3d 1576, 1577 n.1. (Fed. Cir. 1996). Because no Defendant is subject to personal jurisdiction here, venue is not proper in Colorado. CONCLUSION For reasons set forth above, Defendants respectfully request that this Court enter an order dismissing Plaintiffs’ Complaint for lack of personal jurisdiction and improper venue. DATED this 9th day of February, 2006.
SNELL & WILMER, L.L.P. (Footnote) CERTIFICATE OF SERVICE
I hereby certify that on the 9th day of February, 2006, a true and correct copy of the
foregoing DEFENDANTS’ MOTION TO DISMISS COMPLAINT FOR LACK OF
PERSONAL JURISDICTION was served via U.S. Mail on the following:
Karen Dudnikov |
