Fraserside IP L.L.C. v. Netvertising Ltd.
| Decision Date | 05 October 2012 |
| Docket Number | No. C11–3034–MWB.,C11–3034–MWB. |
| Parties | FRASERSIDE IP L.L.C., an Iowa Limited Liability Company, Plaintiff, v. NETVERTISING LTD., d/b/a HardXXXTube.com, Richard Szeles, Laslo Racz, John Does 1–100 and John Doe Companies 1–100, Defendants. |
| Court | U.S. District Court — Northern District of Iowa |
OPINION TEXT STARTS HERE
Chad Lorin Belville, Attorney at Law, Phoenix, AZ, for Plaintiff.
Evan Marc Fray–Witzer, Ciampa Fray–Witzer, LLP, Boston, MA, Valentin David Gurvits, Boston Law Group PC, Newton Centre, MA, Constance M. Alt, Jennifer Rinden, Shuttleworth & Ingersoll, Cedar Rapids, IA, for Defendants.
Plaintiff, a producer of adult motion pictures, alleges that defendants, a Hungarian corporation and two Hungarian residents, have willfully violated plaintiff's copyright and trademarks by offering plaintiff's motion pictures on an Internet website they operate. However, the merits of plaintiff's claims are not presently before me. Rather, I must resolve, inter alia, whether plaintiff has made a prima facie showing that defendants have sufficient minimum contacts with Iowa to satisfy due process and permit the exercise of personal jurisdiction over them under Iowa's long-arm statute, or whether their contacts with the United States as a whole, as distinct from contacts with Iowa, are sufficient to permit the exercise of personal jurisdiction over them under the federal long-arm statute.
On August 30, 2011, plaintiff Fraserside IP L.L.C. (“Fraserside”) filed an Amended Complaint against Netvertising Ltd., doing business as HardXXXTube.com, Richard Szeles, Laslo Racz, John Does and John Doe Companies, alleging the following causes of action: copyright infringement, in violation of 17 U.S.C. §§ 106 and 501 et seq.; contributory copyright infringement, in violation of 17 U.S.C. §§ 106 and 501 et seq.; vicarious copyright infringement, in violation of 17 U.S.C. §§ 106 and 501 et seq.; inducing copyright infringement, in violation of 17 U.S.C. §§ 106 and 501 et seq.; false designation of origin, in violation of 15 U.S.C. § 1125(a); and, dilution of trademark, in violation of 15 U.S.C. § 1125(c).1
On June 16, 2012, Netvertising Ltd., Szeles and Racz (collectively, the “Netvertising defendants”) filed a Motion to Dismiss. In their motion, the Netvertising defendants contend that they are not subject to personal jurisdiction in Iowa or under Federal Rule of Civil Procedure 4(k)(2) and the Complaint must be dismissed pursuant to Federal Rule of Civil procedure 12(b)(2). On June 30, 2012, Fraserside filed a resistance to the Netvertising defendants' Motion to Dismiss. Fraserside argues that Netvertising's internet activities establish a sufficient basis for specific personal jurisdiction under Iowa's long-arm statute. Fraserside, alternatively, argues that, even if it did not make a prima facie showing of personal jurisdiction under Iowa's long-arm statute, personal jurisdiction exists under the federal long-arm statute found in Federal Rule of Civil Procedure 4(k)(2). Fraserside also alternatively requests that I delay ruling on the Netvertising defendants' motion and permit it limited jurisdictional discovery. After obtaining an extension of time, the Netvertising defendants filed a timely reply brief on July 30, 2012.
On a motion to dismiss, I must assume all facts alleged in the Complaint are true, and must liberally construe those allegations. Conley v. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The following factual background is drawn from the Amended Complaint, documents attached to the Amended Complaint, and public records.2
Plaintiff Fraserside is a subsidiary of Private Media Group, Inc., a Nevada Corporation (“Private Media”). Private Media and Fraserside, collectively, are commercially known as “Private.” Private Media is a producer of adult motion pictures. Its adult films are distributed on a wide range of platforms, including mobile handsets in 45 countries, digital television in 24 countries, broadband internet, a South American cable channel, DVDs, and on demand and subscription based services on the Internet. Private has produced over 1,000 adult films and holds over 75 United States copyrights for its works.
Defendant Netvertising is the owner of HardXXXTube.com. Netvertising is a Hungarian entity with an address in Szentes, Hungary. HardXXXTube.com is a website and competes with Fraserside in the distribution and sale of adult audio-visual works through the Internet. HardXXXTube.com allows users to view Fraserside's copyrighted works. HardXXXTub.com sells advertising space on pages displaying Fraserside's copyrighted works. HardXXXTube.com uses Fraserside's copyrighted works to increase traffic to its website and drive advertising revenue. HardXXXTube.com sells premium memberships through another website, www. Hard Sex Tube. com, and pays third parties to send traffic to its website.
The Netvertising defendants have supplied affidavits in support of their request to dismiss the Amended Complaint on the ground of lack of personal jurisdiction, pursuant to Federal Rule of Civil Procedure 12(b)(2). I have extracted the following facts, all uncontroverted, from those affidavits which relate to the Netvertising defendants' contacts with the State of Iowa.
Szeles is a resident of Hungary and a shareholder in Netvertising. Szeles has never visited Iowa. He has never been a resident of Iowa or the United States. He has never had an office, employees, or a telephone number in Iowa or the United States. He has never had an agent for service of process in Iowa or the United States. He does not advertise in Iowa or the United States, and has never maintained servers in Iowa or the United States. He has never paid taxes in Iowa or the United States. Szeles visited the United States once, for one week, on a personal holiday.
Racz is also a resident of Hungary. He is the director of Netvertising. Racz has never visited Iowa or the United States. He has never been a resident of Iowa or the United States. He has never had an office, employees, or a telephone number in Iowa or the United States. Racz has never had an agent for service of process in Iowa or the United States. He does not advertise in Iowa or the United States, and has never maintained servers in Iowa or the United States. He has never paid taxes in Iowa or the United States.
Netvertising owns and operates the HardXXXTube.com website. Netvertising has never had an office, employees, or a telephone number in Iowa or...
To continue reading
Request your trial
-
Nuevos Destinos, LLC v. Peck
...Circuits have adopted this approach, with only the First and Fourth Circuits differing); see also Fraserside IP L.L.C. v. Netvertising Ltd., 902 F. Supp. 2d 1165, 1179 (N.D. Iowa 2012) (presuming the Eighth Circuit would follow the majority position). The majority approach as laid out in th......
-
Hoffmann Bros. Heating & Air Conditioning v. Hoffmann Air Conditioning & Heating, LLC
... ... authentication. Id ... at 6 (citing Fraserside IP ... L.L.C. v. Netvertising Ltd ., 902 F.Supp.2d 1165, 1180 n ... 9 (N.D. Iowa 2012) ... ...