Bigelow v. Tom Garrett & Tom Garrett for Cong.

• Decision Date: 13 March 2018
• Docket Number: Civil Action No. 17–1975 (PLF)
• Parties: Todd BIGELOW, Plaintiff, v. Tom GARRETT and Tom Garrett for Congress, Defendants.
• Court: U.S. District Court — District of Columbia

299 F.Supp.3d 34

Todd BIGELOW, Plaintiff,

v.Tom GARRETT and Tom Garrett for Congress, Defendants.

Civil Action No. 17–1975 (PLF)

United States District Court, District of Columbia.

Signed March 13, 2018

Kenneth P. Norwick, Norwick Schad & Goeling, New York, NY, for Plaintiff.

Christopher M. Woodfin, Woodfin Law Offices, PLLC, Richmond, VA, Monique Antonia Miles, Old Town Associates, P.C., Alexandria, VA, Elizabeth Burgin Waller, Pro Hac Vice, Joshua F.P. Long, Pro Hac Vice, Woods, Rogers PLC, Zachary S. Agee, Woods Rogers PLC, Roanoke, VA, for Defendants.

OPINION

PAUL L. FRIEDMAN, United States District Judge

Currently before the Court are two motions concerning the exercise of personal jurisdiction over defendants Tom Garrett and Tom Garrett for Congress.¹ The first is defendants' Motion [Dkt. No. 6] to Dismiss for Lack of Personal Jurisdiction Pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure, or in the Alternative, to Transfer Venue to the United States District Court for the Western District of Virginia Pursuant to 28 U.S.C. § 1404(a). The second is plaintiff Todd Bigelow's Motion [Dkt. No. 8] to Disqualify Christopher M. Woodfin as Counsel for Defendants, Stay Defendants' Motion to Dismiss or Transfer, and Order Jurisdictional Discovery. Upon consideration of the parties' papers, the relevant legal authorities, and the entire record in this case, the Court will grant the defendants' motion to dismiss or transfer. The Court concludes that it lacks personal jurisdiction over the defendants and that the interest of justice will be served by transferring the action to the United States District Court for the Western District of Virginia. As to Mr. Bigelow's motion to disqualify, stay defendants' motion to dismiss or transfer, and order jurisdictional discovery, the Court will deny the motion without prejudice to his filing a motion after transfer seeking to disqualify Mr. Woodfin or requesting jurisdictional discovery.

I. FACTUAL AND PROCEDURAL BACKGROUND

Todd Bigelow, a professional photographer and resident of California, owns the copyright for a photograph depicting individuals climbing a border fence. Complaint ¶¶ 1, 5–6. According to Mr. Bigelow, defendants Tom Garrett and his campaign committee, Tom Garrett for Congress (the "Committee"), used the photograph without permission to advertise Mr. Garrett's 2016 congressional campaign. Id. ¶ 6. Mr. Bigelow asserts that the defendants' actions constitute willful copyright infringement in violation of the Copyright Act, 17 U.S.C. § 101 etseq.Id. ¶¶ 8–10.

Mr. Garrett is a resident of Buckingham, Virginia and a sitting member of the U.S. House of Representatives representing the Fifth Congressional District of Virginia. MTD at 2. The Committee is registered in Virginia and has its principal place of business in Ruckersville, Virginia. Id. at 2, 8. It was organized with the Federal Election Commission in January 2016 to support Mr. Garrett's campaign and reach voters in Mr. Garrett's District. Id. at 2–3. Between January and September 2016, the Committee operated primarily in Ruckersville and Buckingham, Virginia, and maintained offices in various other locations in Virginia. Id. at 3. The Committee did not maintain offices or employ individuals in the District of Columbia. Id. at 3, 8; Woodfin Decl. ¶¶ 4–8.

Mr. Garrett and the Committee move to dismiss this action for lack of personal jurisdiction, arguing that they have insufficient contacts with the District of Columbia to support jurisdiction. In the alternative, they request that the Court transfer this action to the United States District Court for the Western District of Virginia. MTD at 1. Mr. Bigelow opposes the motion. MTD Opp. at 1–2. He also moves separately to disqualify Mr. Woodfin as counsel for defendants, stay defendants' motion to dismiss or transfer, and order jurisdictional discovery. Stay Mot. at 1. According to Mr. Bigelow, Mr. Woodfin should be disqualified under Rule 3.7 of the District of Columbia Rules of Professional Conduct because he is the Treasurer of the Committee and may be called to testify at trial. Id. at 1–3.² Mr. Bigelow also requests jurisdictional discovery to "further tie defendants to the District of Columbia and this Court." Stay Mot. at 7; see id. at 4–8. In addition, Mr. Bigelow asks the Court to stay defendants' motion to dismiss or transfer pending disposition of both his motion to disqualify and request for jurisdictional discovery. Id. at 4.

II. MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION

Defendants assert that they are not subject to personal jurisdiction in the District of Columbia and that the complaint therefore should be dismissed under Rule 12(b)(2) of the Federal Rules of Civil Procedure. The plaintiff bears the burden of making a prima facie showing that the Court has personal jurisdiction over the defendant. Mwani v. bin Laden, 417 F.3d 1, 7 (D.C. Cir. 2005) ; First Chicago Int'l v. United Exch. Co., 836 F.2d 1375, 1378–79 (D.C. Cir. 1988). To meet this burden, the plaintiff "must provide sufficient factual allegations, apart from mere conclusory assertions, to support the exercise of personal jurisdiction over the defendant." Howe v. Embassy of Italy, 68 F.Supp.3d 26, 29 (D.D.C. 2014) ; see also First Chicago Int'l v. United Exch. Co., 836 F.2d at 1378 ("Conclusory statements ... [do] not constitute the prima facie showing necessary to carry the burden of establishing personal jurisdiction ....") (internal quotation marks and citation omitted). The Court need not accept the plaintiff's allegations as true and "may receive and weigh affidavits and other relevant matter[s] to assist in determining the jurisdictional facts." Jung v. Ass'n of Am. Med. Colls., 300 F.Supp.2d 119, 127 (D.D.C. 2004) (citation omitted). All factual discrepancies, however, must be resolved in the plaintiff's favor. Crane v. N.Y. Zoological Soc'y, 894 F.2d 454, 456 (D.C. Cir. 1990) ; see Frost v. Catholic Univ. of Am., 960 F.Supp.2d 226, 231 (D.D.C. 2013), aff'd 555 Fed.Appx. 6 (D.C. Cir. 2014).

Courts may exercise either general or specific personal jurisdiction. General jurisdiction "permits a court to assert jurisdiction over a defendant based on a forum connection unrelated to the underlying suit," whereas specific jurisdiction requires an "affiliation between the forum and the underlying controversy." Livnat v. Palestinian Auth., 851 F.3d 45, 56 (D.C. Cir. 2017) (citation omitted). As the Supreme Court put it in the context of jurisdiction over corporations:

A court may assert general jurisdiction over foreign (sister-state or foreign-country) corporations to hear any and all claims against them when their affiliations with the State are so "continuous and systematic" as to render them essentially at home in the forum State.... Specific jurisdiction, on the other hand, depends on an "affiliatio[n] between the forum and the underlying controversy," principally, activity or an occurrence that takes place in the forum State and is therefore subject to the State's regulation.... In contrast to general, all-purpose jurisdiction, specific jurisdiction is confined to adjudication of "issues deriving from, or connected with, the very controversy that establishes jurisdiction."

Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919, 131 S.Ct. 2846, 180 L.Ed.2d 796 (2011) (citations omitted); see also Daimler AG v. Bauman, 571 U.S. 117, 134 S.Ct. 746, 751, 187 L.Ed.2d 624 (2014). "For an individual, the paradigm forum for the exercise of general jurisdiction is the individual's domicile; for a corporation, it is an equivalent place, one in which the corporation is fairly regarded as at home." Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. at 924, 131 S.Ct. 2846.

Mr. Bigelow makes the same core allegations to support the exercise of both general and specific jurisdiction over both defendants in the District of Columbia: (i) the Committee was created to support Mr. Garrett's campaign and Mr. Garrett was responsible for its activities; (ii) defendants paid one-third of their total campaign expenditures to persons and entities within the District of Columbia for media advertising, fundraising, and direct mail services; (iii) defendants solicited and received at least $5,700 from persons and entities in the District; (iv) defendants registered with the Federal Election Commission based in the District; (v) defendants displayed Mr. Bigelow's photograph in advertisements on their website, other websites including Facebook and YouTube, and in at least one "email blast"; and (vi) defendants had professional relationshipswith the National Republican Congressional Committee and the Republican National Committee based in the District. MTD Opp. at 1–2; see Norwick Decl. ¶¶ 4–7; Stay Motion at 4–8; Norwick Stay Decl. ¶¶ 2–3. Mr. Bigelow also suggests that in light of the amount that the defendants paid to persons and entities in the District of Columbia for advertising and fundraising, "it seems highly likely that defendants' extensive infringing uses of plaintiff's copyrighted photo were actually created and disseminated by professionals based in the District of Columbia." Norwick Decl. ¶ 7.

A. General Jurisdiction

D.C. Code § 13–334(a) authorizes general jurisdiction over a foreign corporation like the Committee when it is "doing business in the District."³ Section 13–334(a) is coextensive with the reach of constitutional due process. FC Inv. Grp. LC v. IFX Mkts., Ltd., 529 F.3d 1087, 1092 (D.C. Cir. 2008). Consequently, for the Court to exercise general jurisdiction over the Committee, the Committee's affiliations with the District of Columbia must be so "continuous and systematic" as to render it "essentially at home" in the District. Estate of Klieman v. Palestinian Auth., 82 F.Supp.3d 237, 245 (D.D.C. 2015) (quoting Daimler AG v. Bauman, 134 S.Ct. at 754, 758 n.11 ); see also Alkanani v. Aegis Def. Servs., LLC, 976 F.Supp.2d 13, 29 (D.D.C. 2014) (holding...