Foxworthy v. Custom Tees, Inc.

• Decision Date: 06 March 1995
• Docket Number: No. 1:94-CV-3477-RCF.,1:94-CV-3477-RCF.
• Citation: 879 F. Supp. 1200
• Parties: Jeff FOXWORTHY v. CUSTOM TEES, INC., and Stewart R. Friedman.
• Court: U.S. District Court — Northern District of Georgia

879 F. Supp. 1200

Jeff FOXWORTHY v. CUSTOM TEES, INC., and Stewart R. Friedman¹.

No. 1:94-CV-3477-RCF.

United States District Court, N.D. Georgia, Atlanta Division.

March 6, 1995.

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Michael Russ, Bradley Slutsky, King & Spalding, Atlanta, GA and John Rawls, Suzanne Wilson, Blanc, Williams, Johnson & Kronstadt, Los Angeles, CA, for plaintiff.

Christopher Galanek, John Harbin, Powell, Goldstein, Frazier & Murphy, Atlanta, GA, and Samuel Littlepage, Dickinson, Wright, Moon, Van Dusen & Freeman, Washington, DC, for defendant.

MEMORANDUM OPINION and ORDER

RICHARD C. FREEMAN, Senior District Judge.

This action is before the court on the following motions: (1) plaintiff's motion for a preliminary injunction # 7-1; Defendant Stewart R. Friedman's motion to dismiss # 13-1; Defendant Custom Tees' motion to transfer # 11-1; and defendants' motion to file a supplemental affidavit # 20-1. All motions except the motion to file a supplemental affidavit are opposed. After receiving the briefs of the parties, after conducting a hearing on this matter, and after reviewing the unofficial transcript in this case.²

GENERAL BACKGROUND

Plaintiff is a comedian known throughout the country for his "redneck" humor. He is probably best known for his "you might be a redneck if ..." jokes. Examples of these jokes are:

— You might be a redneck if ... you've ever financed a tattoo.

— You might be a redneck if ... your two-year-old has more teeth than you do.

— You might be a redneck if ... your dog and your wallet are both on a chain.

— You might be a redneck if ... your dad walks you to school because you're in the same grade.

Plaintiff claims ownership to hundreds of jokes such as these, as well as a trademark and service mark.³ His comedy album entitled "You Might be a Redneck If ..." has sold more than 1 million copies, more than any other comedy album in more than a decade. Plaintiff has also issued a calendar with 365 "you might be a redneck if ..." jokes, one for every day of the year. In addition to these products, he sells t-shirts with his redneck jokes on them at his concerts and elsewhere.

In December, 1994, plaintiff, through some associates, became aware that t-shirts bearing exact replications of plaintiff's jokes were being sold in various stores across the country, including stores in Georgia. The only difference between plaintiff's jokes and those appearing on the t-shirts was the format. On one shirt, for example, the copy read "If you've ever financed a tattoo ... you might be a redneck."

An investigation by plaintiff's associates ensued, and the source of the t-shirts was determined to be defendant Custom Tees. Plaintiff's representatives contacted defendant Stewart R. Friedman, an employee of Custom Tees who admits to directing the marketing of, and assisting in the production of, Custom Tees' products, see, e.g., Reply Brief in Support of Motion to Dismiss for Lack of Jurisdiction, at 7. Upon notification that the jokes violated plaintiff's copyright and/or trademarks, Friedman turned the matter over to his legal counsel.⁴ Subsequent to these events, Custom Tees changed the copy on its t-shirts to read, to use a different example, "When you learn to drive in a car where you were conceived ... you ain't nothin' but a redneck." Plaintiff's Exhibit 24.

Venue/Jurisdictional Issues

A. The court might have jurisdiction if ...

Custom Tees has already submitted to the jurisdiction of the court.⁵ Friedman contests personal jurisdiction over him. Friedman claims that there is no jurisdiction over him because all of his acts related to this case were undertaken in his capacity as an employee of Custom Tees. He has only been in Georgia a couple of times, and then was only passing through.⁶ He also points out that Georgia law requires jurisdiction to be established over him separately in his personal capacity, and that jurisdiction cannot be established just because he works for Custom Tees. Girard v. Weiss, 160 Ga.App. 295, 287 S.E.2d 301 (1981). For the reasons set forth below, however, the court finds that Friedman's argument is only partially correct, and further finds that the acts forming the basis for jurisdiction over Custom Tees also form the basis for jurisdiction over Friedman.

Under Georgia law, jurisdiction may be asserted over any non-resident who "commits a tortious injury in this state caused by an act or omission outside this state if the tort-feasor regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed ... in this state." O.C.G.A. § 9-10-91(3). "Both Georgia courts and federal courts applying Georgia law have construed this section to confer jurisdiction to the maximum extent allowable under due process." Vermeulen v. Renault U.S.A., Inc., 975 F.2d 746, 753 (11th Cir. 1992), superseded on other grounds, 985 F.2d 1534 (11th Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 2334, 124 L.Ed.2d 246 (1993). The Due Process Clause is satisfied if the court finds that a non-resident has sufficient minimum contacts with the forum state, and that the exercise of jurisdiction would not offend "`"traditional notions of fair play and substantial justice."'" Vermeulen, 975 F.2d at 754 (quoting International Shoe Co. v. Washington, 326 U.S. 310, 315, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945)) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278 (1940)).

There are two kinds of jurisdiction: general and specific. This case involves an assertion of specific jurisdiction. "A forum may exercise specific jurisdiction over a nonresident defendant if the defendant has `purposefully directed' his activities to forum residents and the resulting litigation derives from alleged injuries that `"arise out of or relate to"' those activities." Cable/Home Communication Corp. v. Network Productions, Inc., 902 F.2d 829, 857 (11th Cir.1990) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528 (1985) (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 413, 104 S.Ct. 1868, 1872, 80 L.Ed.2d 404 (1984))).

The court finds the following facts significant: Custom Tees admits, through a Friedman affidavit, that it shipped t-shirts to Georgia. See Affidavit of Stewart R. Friedman, ¶ 11, Exhibit A to Motion to Transfer. Further, the record contains an affidavit from Leon Lehrer, who identifies himself as an "independent sales representative" who telemarkets products of Custom Tees, Inc., including the redneck shirts at issue. Lehrer testifies in his supplemental affidavit⁷ that he contacted Ms. Cynthia Robinson, a Senior Merchandiser for J.C. Penney in Carrollton, Georgia, on two occasions. Supplemental Affidavit of Leon Lehrer, ¶ 2.⁸ Ms. Robinson testified at the hearing that she placed an order for Custom Tees' shirts after talking with Mr. Lehrer. These activities bring Custom Tees within the jurisdictional reach of this court.

Friedman testified via affidavit on his own behalf that he never "personally" marketed or made contact with anyone in Georgia with respect to the Custom Tees shirts. Supplemental Affidavit of Stewart R. Friedman Friedman Supp., ¶ 12. He also testified in a previous affidavit that he never "individually" participated in the sale, marketing, etc., of redneck shirts. Affidavit of Stewart R. Friedman, Exhibit A to Motion to Dismiss, ¶ 7. Finally, he states that he has never "in his individual capacity, entered into any contracts with any individual or entity residing or located in the State of Georgia." Id., ¶ 10.

As previously noted, however, Friedman admits that he directed the marketing and production operations of Custom Tees. This fact is significant when the nature of the claim against Friedman is considered. While it is true that the court's jurisdiction over Friedman ought to be considered separately, the law is well settled that a director, officer, or employee of a corporation can be held jointly and severally liable with the corporation if that person has direct involvement in the infringing activities of the corporation. E.g., Realsongs v. Gulf Broadcasting Corp., 824 F.Supp. 89, 91 (M.D.La.1993). Friedman's position as a corporate employee does not shield him from liability, and it does not shield him from the jurisdiction of the court. Delong Equipment Co. v. Washington Mills Abrasive Co., 840 F.2d 843, 852 (11th Cir. 1988), cert. denied, 494 U.S. 1081, 110 S.Ct. 1813, 108 L.Ed.2d 943 (1990) ("The crucial matter is whether the individual defendant can be held personally liable for acts committed in the forum, not whether his contacts with the forum arose in his personal capacity.").⁹ Specific jurisdiction is inextricably conceptually intertwined with notions of liability: only the person who commits a wrongful act can be held liable, and only the person who commits a wrongful act in the forum can be held liable in the forum. The necessary ingredient for each concept is the wrongful act. Where a corporation commits a wrongful act, and the law holds the individual equally and inseparably liable for the corporate act, then the basis for the exercise of jurisdiction is the same. For this reason, Friedman's consistent protestations that he never "individually" or "personally" had any contact with Georgia are irrelevant. Friedman is correct, however, that some contact with Georgia by Friedman is required, although he mistakes the nature of the contact. The question is whether Friedman on behalf of Custom Tees had any contact with Georgia.

Friedman's argument is partly correct because even though the individual/official capacity distinction does always not operate as a jurisdictional shield, something more than mere liability must exist before the long arm of the state can still reach the individual. "If the claim against the corporate agent rests on nothing more than that ...