Asevedo v. NBCUniversal Media, LLC

• Decision Date: 04 February 2013
• Docket Number: Civil Action No. 12–2005.
• Citation: 921 F.Supp.2d 573
• Parties: Preston ASEVEDO v. NBCUNIVERSAL MEDIA, LLC, et al.
• Court: U.S. District Court — Eastern District of Louisiana

921 F.Supp.2d 573

Preston ASEVEDO

v.NBCUNIVERSAL MEDIA, LLC, et al.

Civil Action No. 12–2005.

United States District Court, E.D. Louisiana.

Feb. 4, 2013.

Brad Elliot Harrigan, Sara Coury Eagan, Lugenbuhl, Wheaton, Peck, Rankin & Hubbard, New Orleans, LA, for Preston Asevedo.

Lesli D. Harris, James Dalton Courson, Stone, Pigman, Walther, Wittmann, LLC, New Orleans, LA, Marti M. Ogden, David F. Zuber, James C. Donohue, Donohue, Patrick & Scott, Baton Rouge, LA, for NBCUniversal Media, LLC, et al.

ORDER AND REASONS

LANCE M. AFRICK, District Judge.

Before the Court is a motion ¹ to dismiss for lack of personal jurisdiction and improper venue or, in the alternative, to transfer venue filed by defendants, NBCUniversal Media, LLC and Syfy Media Productions, LLC. Plaintiff, Preston Asevedo, opposes the motion and requests attorney's fees for the cost of defending against the motion to dismiss.² Asevedo requests, in the alternative, that the Court continue the motion to dismiss to allow for jurisdictional discovery.³ For the following reasons, the motion to dismiss is DISMISSED WITHOUT PREJUDICE and the motion to continue the motion to dismiss to allow jurisdictional discovery is DISMISSED AS MOOT. Defendants' request to transfer venue and plaintiff's request for attorney's fees are DENIED.

BACKGROUND

This action arises out of the alleged willful copyright infringement by defendants, Shanon Parker, Marc Parker, Parker Brothers Concepts, Inc., Parker Brothers Choppers, Inc., Parker Brothers Enterprises, LLC (collectively, “the Parker Brothers defendants”), NBCUniversal Media, LLC (“NBCUniversal”) and Syfy Media Productions, LLC (“Syfy”), of plaintiff, Preston Asevedo's (“Asevedo”) two-dimensional artwork entitled “Comedy Tragedy Skulls.” ⁴ According to the complaint, the Parker Brothers defendants recently became the subject of the reality television show Dream Machines airing on NBCUniversal's Syfy network.⁵ The television show documents Shanon Parker's and Marc Parker's efforts to manufacture custom and/or concept vehicles at their high-end auto body shop located in Melbourne, Florida.⁶

Asevedo, a professional artist and illustrator residing in St. Tammany Parish, Louisiana, alleges that the Parker Brothers defendants “built their entire brand” around his artwork and “prominently and blatantly copied and published [his] artwork on the Dream Machines television show without permission.” ⁷ Among other things, Asevedo alleges that the infringing work can be seen on t-shirts, outdoor signage, and on defendants' finished vehicles. ⁸ Asevedo alleges that the NBCUniversal/Syfy production of Dream Machines is “replete with instances of ... infringement” that are “so pervasive that it is rare for 30 seconds to pass on the 40+ minute television show without the infringing work appearing in one form or another.” ⁹

Asevedo also alleges that defendants have used his artwork on the following interactive websites accessible to Louisiana residents: http:// www. parker brothers concepts. com and http:// www. syfy. com/ dream machines. ¹⁰ Asevedo contends that the Parker Brothers defendants have been marketing and selling products containing his copyrighted design on their website, including T-shirts, hats, and key chains.¹¹ Asevedo claims that NBCUniversal and Syfy have been hosting and publishing full episodes of the Dream Machines television show on the Syfy website.¹²

Asevedo further alleges that each defendant knew, or should have known, that they did not have permission to copy his artwork.¹³ Asevedo argues that after he became aware of the infringing activities, he contacted the Parker Brothers defendants in April 2012.¹⁴ Asevedo attached to his complaint the following email response from Shanon Parker:

We used a variation of a skull logo that we understand was originally drawn by you for our logo. We wanted to speak with you about using your name in co[n]junction with the artwork as we could never find out who the artist was until now. We would have to come to you first if we had known. Please contact me at your convenience to discuss this as we are preparing to sell t-shirts with our design and would like to compensate you for your work as well as credit you on it.¹⁵

Asevedo contends that the parties failed to come to an agreement concerning the use of his artwork.¹⁶ He alleges that the Parker Brothers defendants nevertheless proceeded to sell products bearing his original design and continue to do so to this day.¹⁷

On August 3, 2012, Asevedo filed this lawsuit seeking preliminary and permanent injunctive relief, damages, and attorneys' fees for injuries caused by defendants' alleged willful copyright infringement of his artwork. ¹⁸ Specifically, Asevedo seeks relief for copyright infringement pursuant to the Copyright Act, 17 U.S.C. § 101, et seq.,¹⁹ unfair competition pursuant to the Louisiana Unfair Trade Practices and Consumer Protection Law, La.Rev.Stat. Ann. § 51:1401, et seq.,²⁰ wrongful acts, including fraudulent assertions of trademark rights pursuant to Louisiana Civil Code article 2315,²¹ and unjust enrichment. ²²

NBCUniversal and Syfy filed this motion to dismiss for lack of personal jurisdiction and improper venue pursuant to Federal Rules of Civil Procedure 12(b)(2) and 12(b)(3). NBCUniversal and Syfy contend that neither defendant has maintained “minimum contacts” with Louisiana sufficient for this Court to exercise personal jurisdiction over them. NBCUniversal and Syfy contend that the only allegations against them are that they have broadcasted or displayed images containing Asevedo's copyrighted artwork on the Syfy cable network and through the Syfy website. NBCUniversal and Syfy argue that a national television broadcast alone does not render the broadcaster subject to personal jurisdiction in any jurisdiction with viewers. NBCUniversal and Syfy also claim that Asevedo has not alleged any purposeful contact with the forum sufficient to establish personal jurisdiction in this case. NBCUniversal and Syfy further contend that the complaint should be dismissed because it was brought in an improper venue under the Copyright Act, 28 U.S.C. § 1400(a). As alternative relief, NBCUniversal and Syfy request that the case be transferred to the U.S. District Court for the Central District of California pursuant to 28 U.S.C. § 1404(a) for the convenience of the parties and witnesses.

Asevedo opposes the motion to dismiss for lack of jurisdiction and contends that this Court may exercise specific personal jurisdiction over NBCUniversal and Syfy based on the fact that (1) they broadcast the Dream Machines program on television to a national audience, including viewers in Louisiana; (2) they made the Dream Machines program available through Syfy's website, where it can be viewed by people in Louisiana; and (3) the harm of the infringement was suffered in Louisiana by a Louisiana artist whose works were developed and copyrighted from Louisiana. Asevedo also contends that NBCUniversal and Syfy have continuous and systematic contacts with Louisiana such that they are subject to general personal jurisdiction in this forum. Asevedo argues that venue is proper under the Copyright Act and that the U.S. District Court for the Central District of California is not a more convenient forum for this action. According to Asevedo, NBCUniversal's and Syfy's jurisdictional challenge is “highly suspect,” and it misstates the holdings and applicability of the cases cited in support of the motion such that he is entitled to attorneys fees incurred in connection with the preparation of his opposition.

Asevedo contends, in the alternative, that this Court should allow for jurisdictional discovery if it does not deny the motion to dismiss.²³ Asevedo contends that he has presented factual allegations that suggest with reasonable particularity the possible existence of the requisite contacts to establish jurisdiction over NBCUniversal and Syfy. Asevedo contends that discovery is needed to determine the extent of NBCUniversal and Syfy's contacts with the forum, including whether any employees of NBCUniversal and Syfy or their Louisiana subsidiaries were involved in producing or broadcasting Dream Machines which actions would support a finding of specific personal jurisdiction. NBCUniversal and Syfy respond that such discovery would be futile and, alternatively, should be reasonably confined to written discovery limited in scope to establishing necessary jurisdictional facts.

LAW AND ANALYSIS

I. Personal Jurisdiction

When a foreign defendant moves to dismiss for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2), the plaintiff bears the burden of establishing the Court's personal jurisdiction over the defendant. Wilson v. Belin, 20 F.3d 644, 648 (5th Cir.1994). Where, as here, the Court rules without conducting an evidentiary hearing, the plaintiff bears the burden of establishing a prima facie case that the Court has jurisdiction over a defendant. Johnston v. Multidata Sys. Int'l Corp., 523 F.3d 602, 609 (5th Cir.2008).²⁴ If the defendant disputes the factual bases for jurisdiction, “the court may receive interrogatories, depositions, or any combination of the recognized methods of discovery to help it resolve the jurisdictional issue.” Walk Haydel & Assocs., Inc. v. Coastal Power Prod. Co., 517 F.3d 235, 241 (5th Cir.2008) (citations and quotations omitted). The court should not, however, act as a fact finder and it must construe all disputed facts in the plaintiff's favor. Id.

A federal court may only exercise personal jurisdiction over a nonresident defendant if (1) the forum state's long-arm statute confers personal jurisdiction over that defendant; and (2) the exercise of personal jurisdiction comports with the Due Process Clause of the Fourteenth Amendment. Moncrief Oil Int'l v. OAO Gazprom, 481 F.3d 309, 311 (5th Cir.2007). Because the limits of the Louisiana long-arm statute are coextensive...