Bridgeport Music, Inc. v. Agarita Music, Inc., 3:01-0835.

• Decision Date: 08 January 2002
• Docket Number: No. 3:01-0835.,3:01-0835.
• Citation: 182 F.Supp.2d 653
• Parties: BRIDGEPORT MUSIC, INC., et al. v. AGARITA MUSIC, INC., et al.
• Court: U.S. District Court — Middle District of Tennessee

182 F.Supp.2d 653

BRIDGEPORT MUSIC, INC., et al. v. AGARITA MUSIC, INC., et al.

No. 3:01-0835.

United States District Court, M.D. Tennessee, Nashville Division.

January 8, 2002.

COPYRIGHT MATERIAL OMITTED

Richard S. Busch and D'Lesli M. Davis, Nashville, TN, for plaintiff.

Samuel Lipshie, Nashville, TN, for defendant.

MEMORANDUM

CAMPBELL, District Judge.

Pending before the Court is defendant Agarita Music, Inc.'s ("Agarita") motion to dismiss, or in the alternative, to transfer (Docket No. 11)¹. For the reasons set forth below, the motion to dismiss is GRANTED, and the motion to transfer is DENIED as moot.

This case is one of several hundred² filed by plaintiffs against various defendants in which plaintiffs allege that the defendants, all entities and/or individuals associated with the "rap" or "hip-hop" music industry, have infringed upon plaintiffs' copyrights in several sound recordings and musical compositions by "sampling" these recordings and/or compositions in subsequent recordings, compositions and performances. The First Amended Complaint (Docket No. 6) alleges copyright infringement arising out of the composition titled "Fuck A 40 Oz" on the sound recording "Swing'n" by the rap performer Hi-C, which plaintiffs allege contains an infringing "sample" of the composition "Atomic Dog."

FACTS

Agarita is a California corporation with its principal place of business in California. Agarita claims that there is no basis for asserting personal jurisdiction over it in Tennessee because Agarita does not do business in Tennessee, plaintiffs' cause of action does not arise from any activities of defendant in Tennessee, and defendant does not have systematic and continuous contacts with Tennessee that would justify assertion of personal jurisdiction (Docket No. 14).

In response, plaintiffs allege that Agarita, a music publishing company, has directly and indirectly transacted business in Tennessee by (i) licensing its musical compositions to be included in sound recordings sold in Nashville, Tennessee, (ii) collecting royalties from sales of its compositions in Nashville, Tennessee, and (iii) licensing performances of its compositions in Tennessee (Docket No. 28). In relation to the subject of these lawsuits, plaintiffs allege that Agarita has infringed on plaintiffs' copyrights through "sampling" of its compositions and has participated in the distribution of the infringing compositions and/or sound recordings in Tennessee, thereby committing torts and causing tortious injury in Nashville, Tennessee (Docket No. 28, pp. 1-2).

Plaintiffs' jurisdictional allegations in the First Amended Complaint do not provide any factual basis for assertion of jurisdiction, as they recite no facts specific to Agarita or any acts or omissions of Agarita upon which jurisdiction may be based (Docket No. 6, ¶ 17). However, the Federal Rules of Civil Procedure do not require plaintiffs to plead any facts alleging personal jurisdiction in their complaint. Wright & Miller, Fed. Practice and Procedure: Civil 2d § 1363, at 458 (West 1990). The Court must look, then, to plaintiffs' submissions in response to Agarita's motion³ to see if plaintiffs have asserted facts sufficient to establish a prima facie showing of jurisdiction.

In their Statement of Facts (Docket No. 29), plaintiffs allege that: (i) Agarita is a music publishing business operating under the umbrella of Disney Music Publishing that earns money through mechanical licensing⁴, synchronization licensing⁵, print publications, and performances of its compositions (¶¶ 10, 11); (ii) Agarita has granted a mechanical license for the allegedly infringing composition to be included in the sound recording "Swing'n" by Hi-C, for which it has received royalty income (¶¶ 23-24); (iii) because its mechanical licenses grant the licensee a nationwide territory, Agarita has an "expectation" that its musical compositions will be included in sound recordings that will be distributed throughout the United States, including Tennessee (¶¶ 15-16); (iv) the allegedly infringing composition is subject to a nationwide licensing agreement between all the Disney Music Publishing entities, including Agarita, and a print publisher (¶¶ 25-31); (v) Agarita is affiliated with ASCAP, which administers licenses with third parties for the live performance of Agarita's compositions throughout the United States, including Tennessee, collects performance fees and remits them to Agarita (¶¶ 32-35); and (vi) "Swing'n" was distributed nationwide by Tommy Boy Music, Inc. for Skanless Records, which apparently entered into a mechanical license with Agarita for use of the allegedly infringing composition (¶¶ 39-45).

The question for the Court is whether the foregoing facts provide a sufficient basis for this Court to assert personal jurisdiction over Agarita. The Court concludes that they do not.

ANALYSIS

I. Standard

On a motion to dismiss for lack of personal jurisdiction, plaintiffs have the burden of setting forth specific facts in support of the Court's exercise of personal jurisdiction over the moving defendants. Theunissen v. Matthews, 935 F.2d 1454, 1458 (6th Cir.1991). Plaintiffs cannot rely solely on the allegations pleaded in their complaint. Id.

The Sixth Circuit has clearly defined the procedure and standards for determining personal jurisdiction. See Dean v. Motel 6 Operating L.P., 134 F.3d 1269, 1271-1272 (6th Cir.1998) (citing Serras v. First Tennessee Bank Nat'l Ass'n, 875 F.2d 1212, 1214 (6th Cir.1989)). The district court may determine the motion on the basis of affidavits alone; it may permit discovery in aid of the motion; it may conduct an evidentiary hearing on the merits of the motion, or it may reserve its decision until trial. Serras, 875 F.2d at 1214. Plaintiffs may defeat the motion by making a prima facie showing of jurisdiction in their pleadings and affidavits, which must be considered by the court in a light most favorable to plaintiffs. CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1262 (6th Cir.1996). This burden changes if the court chooses to hold an evidentiary hearing; plaintiffs must then establish jurisdiction by a preponderance of the evidence. Id. If the court chooses to rule on the motion without conducting an evidentiary hearing, it "does not weigh the controverting assertions of the party seeking dismissal." Id. (quoting Theunissen, 935 F.2d at 1459). The Sixth Circuit has determined that "[a]ny other rule would empower a defendant to defeat personal jurisdiction merely by filing a written affidavit contradicting jurisdictional facts alleged by a plaintiff." Serras, 875 F.2d at 1214. "Dismissal in this procedural posture is proper only if all the specific facts which the plaintiff [] alleges collectively fail to state a prima facie case for jurisdiction." CompuServe, 89 F.3d at 1262. If the defendant's written submissions raise disputed issues of fact or require determinations of credibility, the court may exercise its discretion to hold an evidentiary hearing, or may reserve the issue for trial. Dean, 134 F.3d at 1272. In this case, the parties' submissions do not raise any issues of disputed facts regarding jurisdiction. Therefore, the Court will resolve the motion by reference to the submissions alone.

Because this action raises a federal question, the Court must analyze the personal jurisdiction issue pursuant to Rule 4(k) of the Federal Rules of Civil Procedure, which requires this Court to consider whether jurisdiction over the defendant is consistent with the specific requirements of Tennessee's long-arm statute and constitutional principles of due process. See, e.g., Mitchell v. White Motor Credit Corp., 627 F.Supp. 1241, 1246 (M.D.Tenn.1986). Under Tennessee's long-arm statute, jurisdiction may be asserted on "[a]ny basis not inconsistent with the constitution of this state or of the United States." TENN. CODE. ANN. § 20-2-214(a)(6).⁶ This subsection has been interpreted to extend to the limits of personal jurisdiction imposed by the Due Process Clause. Payne v. Motorists' Mutual Ins. Cos., 4 F.3d 452, 455 (6th Cir.1993).⁷

The Supreme Court has held that personal jurisdiction over a defendant comports with the Due Process Clause where that jurisdiction stems from "certain minimum contacts with [the forum] such that maintenance of the suit does not offend `traditional notions of fair play and substantial justice.'" Calder v. Jones, 465 U.S. 783, 788, 104 S.Ct. 1482, 1486, 79 L.Ed.2d 804 (1984) (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)).

Personal jurisdiction may be general or specific depending on the nature of the contacts in a particular case. CompuServe, 89 F.3d at 1263. General jurisdiction exists "when a defendant has `continuous and systematic contacts with the forum state sufficient to justify the state's exercise of judicial power with respect to any and all claims.'" Aristech Chemical Int'l Ltd. v. Acrylic Fabricators Ltd., 138 F.3d 624, 627 (6th Cir.1998) (quoting Kerry Steel v. Paragon Indus. Inc., 106 F.3d 147, 149 (6th Cir.1997)). Specific jurisdiction, on the other hand, subjects the defendant "to suit in this forum state only on the claims that `arise out of or relate to' a defendant's contacts with the forum.'" Id.

The Sixth Circuit has established three criteria to be used in determining whether specific jurisdiction exists in a particular case:

First, the defendant must purposefully avail himself of the privilege of acting in the forum state or causing a consequence in the forum state. Second, the cause of action must arise from the defendant's activities there. Finally, the acts of the defendant or consequences caused by the defendant must have a substantial enough connection with the forum state to make the exercise of jurisdiction over the defendant reasonable.

Payne, 4 F.3d at 455 (quoting Southern Machine Co. v. Mohasco Indus., Inc., 401 F.2d 374, 381 (6th Cir.1968))....