Blackburn v. Walker Oriental Rug Galleries, Inc., No. CIV.A. 97-5704.

• Court: United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
• Writing for the Court: Joyner
• Citation: 999 F.Supp. 636
• Parties: Mark A. BLACKBURN t/a Wholesale Rug Outlet v. WALKER ORIENTAL RUG GALLERIES, INC., & Richard Walker and FYI Networks, Inc.
• Docket Number: No. CIV.A. 97-5704.
• Decision Date: 07 April 1998

999 F.Supp. 636 Mark A. BLACKBURN t/a Wholesale Rug Outlet
v.
WALKER ORIENTAL RUG GALLERIES, INC., & Richard Walker and FYI Networks, Inc. No. CIV.A. 97-5704. United States District Court, E.D. Pennsylvania. April 7, 1998.

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Kevin M. French, Hartman Underhill & Brubaker, Lancaster, PA, for Plaintiff.

Stephen W. Armstrong, Peter Breslauer, Montgomery, McCracken, Walker and Rhoads, Philadelphia, PA, for Defendants.

MEMORANDUM AND ORDER

JOYNER, District Judge.

By way of the instant motion, Defendants Richard Walker and Walker Oriental Rug Galleries, Inc., seek to have the complaint dismissed for lack of venue under 28 U.S.C. § 1400(a) or in the alternative for failure to state a claim upon which relief can be granted pursuant to 17 U.S.C. § 411, 17 U.S.C. § 412, and 17 U.S.C. § 301. For the reasons which follow, the action shall be transferred to the Western District of Pennsylvania.

Statement of Facts

Plaintiff, Mark A. Blackburn t/a Wholesale Rug Outlet ("plaintiff" or "Wholesale") is a Lancaster dealer of oriental rugs. Wholesale created an Internet Web Site, located at the Internet address, www.wholesalerug.com. Wholesale's Web Site contains graphics illustrating the various types of rugs sold by the plaintiff, accompanied by text that gives a description of each rug. Plaintiff alleges that defendants, Richard Walker and Walker Oriental Rug Galleries, Inc. ("defendants" or "Walker"), as well as FYI Networks, Inc. ("FYI") copied parts of Wholesale's Web Site which plaintiff alleges to be protected under the federal copyright law. Plaintiff also alleges unfair trade practices and tortious interference with existing and prospective contractual relations. Richard Walker is the owner of the Pittsburgh-area rug store which allegedly copied the Web Site and FYI Networks is a Pittsburgh-area Internet service provider which "hosted," or housed Walker's Web Site.

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Discussion

Defendant argues that the Eastern District of Pennsylvania is an improper venue for the copyright claim. Under 28 U.S.C. § 1400(a) actions for copyright infringement may be brought "in the district in which the defendant or his agent resides or may be found." General Instrument Corporation of Delaware v. Lake Sylvan Sales, Inc., 1993 WL 496588 (E.D.Pa.1993); see Horne v. Adolph Coors Company, 684 F.2d 255, 260 (3d Cir.1982). A defendant of a copyright claim "may be found" wherever the defendant is amenable to personal jurisdiction. Donner v. Tams-Witmark Music Library, Inc., 480 F.Supp. 1229, 1243-35 (E.D.Pa. 1979). Furthermore, 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.¹ Columbia Pictures Television v. Krypton Broadcasting, 106 F.3d 284, 289 (9th Cir.1997); Milwaukee Concrete Studios v. Fjeld Manufacturing Co., 8 F.3d 441, 445-47 (7th Cir.1993). In order to determine where the alleged infringer "may be found" for purposes of establishing venue, the district court must consider the alleged infringer's contacts with the particular federal district in the state. Milwaukee Concrete Studios, 8 F.3d at 445-47. It thus follows that the alleged infringer's amenability to personal jurisdiction must relate to the judicial district in which the claim was commenced in order for venue to be proper under 28 U.S.C. § 1400(a).² Id. Plaintiff contends that venue is proper because the defendant has sufficient contacts with the Eastern District of Pennsylvania to establish that the defendant is amenable to personal jurisdiction and, thus, "may be found" in the district. Specifically, the plaintiff argues that the defendant allegedly continues to: (1) cause harm and tortious injury to the plaintiff through its continued infringement of the plaintiff's copyright in the district and (2) solicit business in the district through the use of an interactive web site.

Under Milwaukee Concrete Studios, the court must now consider the type of contacts defendants have with the district as alleged by the plaintiff. However, this task becomes more difficult because the Internet is a fairly recent phenomenon that is increasingly transforming the way business is conducted in today's global society. Zippo Mfg. Co. v. Zippo Dot Com., Inc., 952 F.Supp. 1119, 1123 (W.D.Pa.1997). It is now possible to complete business transactions throughout the world completely from a desktop via the Internet. Id. In analyzing a defendant's contacts through the use of the Internet, the probability that personal jurisdiction may be constitutionally exercised is "directly proportionate to the nature and quality of...