Goldberg v. Cameron

• Decision Date: 27 February 2007
• Docket Number: No. C-05-03534 RMW.,C-05-03534 RMW.
• Citation: 482 F.Supp.2d 1136
• Parties: Neil B. GOLDBERG, Plaintiff, v. James CAMERON, Gale Ann Hurd, et al., Defendants.
• Court: U.S. District Court — Northern District of California

482 F.Supp.2d 1136

Neil B. GOLDBERG, Plaintiff, v. James CAMERON, Gale Ann Hurd, et al., Defendants.

No. C-05-03534 RMW.

United States District Court, N.D. California, San Jose Division.

February 27, 2007.

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Donald Charles Schwartz, Apto, CA, for Plaintiff.

Charles Nathan Shephard, Bruce Alan Isaacs, David Boren, Los Angeles, CA, for Defendants.

ORDER RE: DEFENDANTS' MOTIONS TO DISMISS

WHYTE, District Judge.

In August 2005, plaintiff Neil Goldberg, a resident of Santa Cruz, California, filed suit against defendants James Cameron and Gale Ann Hurd, two individuals who reside in Los Angeles, California. According to Goldberg, Cameron and Hurd, allegedly misappropriated plaintiffs copyrighted works and used them in all three movies of the Terminator trilogy. Goldberg seeks (1) an injunction and damages for copyright infringement; (2) return of all benefits under a theory of conversion; (3) recovery for breach of implied contract; (4) an injunction and damages under Cal. Bus. & Prof.Code § 17200; (5) an accounting; and (6) declaratory relief. Cameron and Hurd have each filed motions to dismiss for improper venue or, in the alternative, transfer of venue. Each defendant also moves to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) in the event the court declines to dismiss or transfer on the basis of venue.

I. BACKGROUND

Plaintiff is the holder of a registered copyright to a movie script entitled "Long Live Music."¹ Plaintiff was issued a certificate of registration, No. Pau 175-490 on November 4, 1979 for the work. (1st Am. Compl. ¶¶ 7, 10.) In and around 1979, plaintiff circulated "Long Live Music" to a select number of potential producers, including in his promotional package a cassette tape and 33-1/3 album of a proposed soundtrack, entitled "Energy," to be included in the proposed motion picture production. (1st Am.Compl. ¶ 18.) That proposed soundtrack included an individual track entitled "Heavy Light," that is also copyrighted material owned by plaintiff. (Id.)

One of the potential producers to which plaintiff asserts that he sent his promotional package was New World Pictures. (Id.) Cameron and Hurd, both individuals, allegedly both worked at New World Pictures at the time. (Id.) In 1981 and 1982, Cameron and Hurd allegedly began promoting, producing, filming and marketing The Terminator, the popular movie starring Arnold Schwarzenegger and Linda Hamilton. (1st Am.Compl. ¶ 11.) The Terminator had its theatrical release in 1984, followed by Terminator 2: Judgment Day in 1991 and The Terminator, 3: Rise of the Machines in 2003.² Cameron received producer and writer credit on The Terminator and Terminator 2 but was not given such credit on Terminator 3; Hurd received writer credit on The Terminator and the Terminator 2 and (although she claims she was no longer involved in the project) received executive producer credit on Terminator 3.

Plaintiffs complaint alleges that The Terminator and its sequels somehow infringe plaintiffs copyrighted work. (Id. ¶¶ 19, 11,-12). He implies that these movies are based upon his "Long Live Music" script and that they incorporate portions of his "Heavy Light" soundtrack. He also contends that defendants recalled all Terminator movies from consumer outlets and remixed the soundtrack "to conceal the true source of the illegally infringed copyrights [sic] material." (Id. ¶ 11.) Plain tiffs oppositions to defendants' motions provides a more concrete description of the alleged infringement. He sets forth the following partial list of similarities between "Long Live Music" work and the Terminator movies: (1) Both involve a plan by supercomputers to take over the world far in the future; (2) the supercomputers in both determine on their own that mankind is harming the environment and use man's nuclear weapons against him; (3) both involve a supercomputer-developed army of underground robots designed to destroy mankind; (4) both involve time travel from the future to the past; and (5) the time travel is performed by a central protagonist. Plf.'s Opp'n to Defs.' Mots. to Dismiss or Transfer Venue at 4. He also argues that the soundtracks of the Terminator movies and plaintiffs soundtrack "are so similar that when listening to the two one is easily confused as to which is which." Id.

Plaintiff did not file his complaint until August 31, 2005 and did not effect service until 2006. Although he alleges that the "secret conspiracy between defendant's [sic] Cameron and Hurd" allegedly began in or around 1981 and 1982 (1st Am. Compl. ¶¶ 9, 11), plaintiff states that he was unaware that any copyright infringement of the work had occurred until within three years of filing his complaint because he "had embarked upon a spiritual Yoga path wherein [he] was not only removed from, and [sic] shunned, all forms of electronic media and, most certainly, any media and actual exposure to the Terminator movies" (1st Am.Compl. ¶ 14).

II. ANALYSIS

A. Cameron and Hurd's Motions to Dismiss for Improper Venue or Transfer

1. Venue

The venue of suits for infringement of copyright is not determined by the general provision governing suits in the federal district courts, rather by the venue provision of the Copyright Act. 28 U.S.C. § 1400(a); Lumiere v. Mae Edna Wilder, Inc., 261 U.S. 174, 176, 43 S.Ct. 312, 67 L.Ed. 596 (1923). 28 U.S.C. § 1400(a) provides that "[c]ivil actions, suits, or proceedings arising under any Act of Congress relating to copyrights or exclusive rights in mask works or designs may be instituted in the district in which the defendant or his agent resides or may be found." 28 U.S.C. § 1400(a). The Ninth Circuit has interpreted the statute to mean that venue "is proper in any judicial district in which the defendant would be amenable to personal jurisdiction if the district were a separate state." Columbia Pictures Television v. Krypton Broadcasting of Birmingham, Inc., 106 F.3d 284, 288 (9th Cir.1997), overruled on other grounds by Feltner v. Columbia Pictures Television, 523 U.S. 340, 118 S.Ct. 1279, 140 L.Ed.2d 438 (1998); see also VE Holding Corp. v. Johnson Gas Appliance Co., 917 F.2d 1574, 1583 (Fed.Cir.1990) (venue is proper in any district in which there is personal jurisdiction over the defendant).

"The court uses basically the same procedure to decide a motion to dismiss for improper venue as it does for deciding a motion to dismiss for lack of personal jurisdiction." Hudye Soil Services, Inc. v. Tyler, 46 F.Supp.2d 1157, 1161 (D.Kan.1999). Where, as here, the motion to dismiss is based on written materials rather than an evidentiary hearing, Goldberg need only make a prima facie showing to demonstrate that the Northern District of California has personal jurisdiction over Cameron and Hurd. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir.2004).

a. General Jurisdiction

The Ninth Circuit sets forth the test for general jurisdiction as follows:

For general jurisdiction to exist over a nonresident defendant ..., the defendant must engage in "continuous and systematic general business contacts" that "approximate physical presence" in the forum state. This is an exacting standard, as it should be, because a finding of general jurisdiction permits a defendant to be haled into court in the forum state to answer for any of its activities anywhere in the world.

Id. at 801 (citing International Shoe. Co. v. Washington, 326 U.S. 310, 318, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). General jurisdiction does not exist absent a showing of pervasive contacts. See, e.g., Gator.com. Corp. v. L.L. Bean, Inc., 341 F.3d 1072, 1075-77 (9th Cir.2003) (general jurisdiction requires an "approximation of physical presence"); Amoco Egypt Oil Co. v. Leonis Navigation Co., 1 F.3d 848, 851 n. 3 (9th Cir.1993) (noting courts have "regularly declined to find general jurisdiction even where the contacts were quite extensive"). "Factors to be taken into consideration are whether the defendant makes sales, solicits or engages in business in the state, serves the state's markets, designates an agent for service of process, holds a license, or is incorporated there." Bancroft & Masters, Inc. v. Augusta Nat'l, Inc., 223 F.3d 1082, 1086 (9th Cir2000).

Goldberg offers no evidence demonstrating that Cameron or Hurd, as individuals, make sales, solicit or engage in business, or otherwise serve the markets in the Northern District of California. There is no evidence they engage in "continuous and systematic general business contacts" in this district. Accordingly, the court finds that Goldberg has not made a prima facie showing of general jurisdiction.

b. Specific Jurisdiction

The Ninth Circuit has articulated the following three-prong test for analyzing a claim of specific jurisdiction:

(1) The non-resident defendant must purposefully direct activities or consummate some transaction with the forum or resident thereof; or perform some act which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protection of its laws;

(2) the claim must be one which arises out of or relates to the defendant's forum-related activities; and

(3) the exercise of jurisdiction must comport with fair play and substantial justice.

Schwarzenegger, 374 F.3d at 802.

i. Purposeful Availment

Under the first prong of the specific jurisdiction test, Goldberg must establish that Cameron and Hurd either purposefully availed themselves of the privilege of conducting activities in the Northern District of California, or purposefully directed their activities toward the Northern District of California. See id. "A purposeful availment analysis is most often used in suits sounding in contract. A purposeful direction analysis, on the other hand, is most often used in suits sounding in tort." Id. A claim for copyright infringement...