Curtis Mgt. Group v. Academy of Motion Picture Arts, IP88-1130-C.
| Citation | 717 F. Supp. 1362 |
| Decision Date | 13 July 1989 |
| Docket Number | No. IP88-1130-C.,IP88-1130-C. |
| Parties | The CURTIS MANAGEMENT GROUP, INC., and the James Dean Foundation Trust, Plaintiffs, v. ACADEMY OF MOTION PICTURE ARTS AND SCIENCES, and Bruce McGaw Graphics, Inc., Defendants. |
| Court | U.S. District Court — Southern District of Indiana |
Gene R. Leeuw and Dean T. Barnhard, Klineman Rose Wolf & Wallack, Indianapolis, Ind., for plaintiffs.
Joe C. Emerson and John B. Swarbrick, Jr., Baker & Daniels, Indianapolis, Ind., and John B. Quinn and David W. Quinto, Quinn & Emanuel, Los Angeles, Cal., for
defendant Academy of Motion Picture Arts and Sciences.
ORDER ON DEFENDANT'S MOTION TO DISMISS OR TRANSFER
This diversity and trademark infringement action comes before the Court on the motion to dismiss for lack of personal jurisdiction and improper venue filed by defendant Academy of Motion Picture Arts. Alternatively, defendant seeks to have this cause transferred to the United States District Court for the Central District of California. On March 8, 1989, this Court entered an Order holding in abeyance the motions pending expedited discovery. The Court found this to be a close case and chose to have the benefit of further evidence before ruling.
The parties have since conducted limited discovery. After reviewing the law on the stream of commerce theory in minimum contacts analysis, the Court finds that there is insufficient evidence concerning the Academy's knowledge of the distribution system. Further, there is no showing that venue over the claim against the Academy is proper in this district.
However, because the Academy, through its agents, has engaged in sanctionable conduct in the defense of this lawsuit before this Court, the Court finds that the Academy must be sanctioned. The Court finds the appropriate sanction to be the striking of the Academy's motion to dismiss for want of personal jurisdiction, notwithstanding the fact that personal jurisdiction and proper venue has not otherwise been shown to exist. The Court thus STRIKES the Academy's motion to dismiss.
To determine whether the exercise of personal jurisdiction is proper, a court may receive and consider affidavits and other documentary evidence. Nelson by Carson v. Park Industries, Inc., 717 F.2d 1120, 1123 (7th Cir.1983). "During this preliminary proceeding, although the burden of proof rests on the party asserting jurisdiction, if the district court's decision is based on the submission of written materials the burden of proof is met by a prima facie showing that personal jurisdiction exists...." Id.; Nieman v. Rudolf Wolff & Co., Ltd., 619 F.2d 1189, 1191 (7th Cir. 1980), cert. denied, 449 U.S. 920, 101 S.Ct. 319, 66 L.Ed.2d 148.
"In addition, the plaintiff is entitled not only to the acceptance of all undenied factual assertions in his submissions, but also to the resolution in his favor of all disputes about relevant facts." Neiman, 619 F.2d at 1190; Park Industries, 717 F.2d at 1123; Deluxe Ice Cream Co. v. R.C.H. Tool Corp., 726 F.2d 1209, 1215 (7th Cir.1984) (); International Steel Co. v. Charter Builders, Inc., 585 F.Supp. 816, 819 (S.D.Ind.1984) ().
Where, as here, some of the facts are in dispute, this Court must follow the rules set forth above and resolve the conflict in favor of the plaintiff. Based on these standards and the parties submissions, the Court finds the following facts for purposes of this motion:
James Dean, an Indiana native who was a famous actor and film star, died in 1955 in a car accident. Since his death, his popularity has continued and his name and likeness are recognized by many. As a result of this popularity, rights of substantial economic and commercial value have attached to his name and likeness.
On June 3, 1984, the heirs of James Dean established the James Dean Trust, a plaintiff in this action. The James Dean Trust is a trust established in Indiana with its principal place of business in Indianapolis. The Trust has obtained a number of federally registered trademarks to James Dean's name and likeness.
The Trust hired the Curtis Management Group, the other named plaintiff in this case, to act as its exclusive licensing agent for the purposes of licensing third parties to use the James Dean name and likeness in commercial ventures. Curtis Management is an Indiana corporation with its principal place of business in Indianapolis.
The movant-defendant in this action is the Academy of Motion Picture Arts and Sciences, a California corporation with its principal place of business in Beverly Hills, California. The Academy does not have any offices or employees in Indiana, nor does it own property in Indiana. The Academy is a nonprofit entity that supports its services through, among other things, the sale of fourteen different posters, including one of James Dean (the "Dean Poster"). The Dean Poster contains an enlargement of a still photograph of James Dean taken during the filming of "Giant" in 1955. The Dean Poster has been sold at a price ranging from $5.00 to $45.00 with shipping and handling. In 1988, the Academy's poster sales totalled $19,751, accounting for fifteen percent of the Academy's total revenues.
The plaintiff has come forth with evidence that in August of 1988, an Indianapolis resident by the name of Mary Beth Vahle, an employee of plaintiff Curtis Management, wrote the Academy in California seeking to purchase a Dean Poster. Ms. Vahle received the poster through the mail in Indiana some time later.
On February 4, 1989, Mark Roesler, the president of Curtis Management, visited a poster store in the north Shadeland area of Indianapolis and was shown a catalog of prints that were available for sale and framing. One of the posters in the catalog was the James Dean poster produced by the Academy. The Dean poster is also available through the same catalog at all three Great Frame-Up shops in Indianapolis.
Subsequently, on February 6th Ms. Carolyn J. Phillips visited two Deck-the-Walls stores in Indianapolis. At each store the Dean poster was offered for sale through a catalog of prints. Both stores had a Dean poster in stock and displayed for sale, and Ms. Phillips purchased one of the Dean posters over the counter at each store. On February 9th and 10th of 1988, Ms. Phillips visited several retail poster stores in Indianapolis, Bloomington, and Terre Haute, Indiana. A salesperson at each of the stores showed Ms. Phillips catalogs of prints. The Dean Poster in question was displayed in a catalog at each store. A salesperson at each store offered to order the poster for Ms. Phillips. Ms. Phillips ordered the Dean Poster through 3 such stores, paying $25.00 for the print and approximately $20.00 for shipping in each instance. Ms. Phillips received the 3 posters within several weeks of ordering. On February 7, 1989, Marcus Winslow purchased a Dean poster over the counter from a poster and framing shop in Anderson, Indiana.
A company named Photo and Graphic Arts sells the poster in Venice, California. Photo and Graphic Arts represents that it has neither advertised nor sold the Dean poster in Indiana, although it admits that it did send a catalog (of an unspecified nature) to someone in Indiana in December, 1987.
The catalog through which the Dean poster is offered for sale is distributed by defendant Bruce McGaw Graphics of New York. McGaw Graphics is a wholesaler/distributor of posters and lithographs. The catalog is located in dozens of identified poster stores in the Southern District of Indiana. The Academy has sold the Dean poster in significant quantities to Bruce McGaw Graphics on a systematic, continuous basis for several years. The Academy made the following sales of its posters to McGaw over a three-year period, with the price reflecting a 10% discount that the Academy gave to McGaw on most purchases:
Thus, over a three year span, the Academy sold quantities of its posters to McGaw on over thirty occasions, with sales of the Dean poster being made on at least nineteen occasions. More than 1,600 total posters were sold, with over 800 of them being the Dean poster. Total revenues for all the posters sold to McGaw were approximately $10,000, with almost $5,000 of those sales being...
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