Megna v. Biocomp Labs. Inc.

• Decision Date: 12 August 2016
• Docket Number: No. 16 Civ. 3845 VM.,16 Civ. 3845 VM.
• Citation: 166 F.Supp.3d 493
• Parties: Richard MEGNA, Plaintiff, v. BIOCOMP LABORATORIES INC. and Blanche D. Grube, DMD, IMD, Defendants.
• Court: U.S. District Court — Southern District of New York

166 F.Supp.3d 493

Richard MEGNA, Plaintiff,

v.BIOCOMP LABORATORIES INC. and Blanche D. Grube, DMD, IMD, Defendants.

No. 16 Civ. 3845 VM.

United States District Court, S.D. New York.

Signed Aug. 12, 2016.

Craig B. Sanders, Sanders Law, PLLC, Garden City, NY, for Plaintiff.

Nolan Keith Klein, Law Offices of Nolan Klein, P.A., Fort Lauderdale, FL, for Defendants.

DECISION AND ORDER

VICTOR MARRERO

, District Judge.

Richard Megna (“Megna”) brings this action against Biocomp Laboratories, Inc. (“Biocomp”) and Blanche D. Grube, DMD, IMD (“Grube,” together with Biocomp, “Defendants”) for copyright infringement. (“Complaint,” Dkt. No. 1.) Megna creates stock photography images and alleges ownership of the rights to these photographs, which he then licenses for use by online and print publications. (Id. at 1.) Megna claims that Defendants copied, stored, modified, and displayed one of Megna's photographs on the website known as www. shslab.com (“Website”). (Id. at 1–2.) Megna alleges the following causes of action: (1) copyright infringement pursuant to 17 U.S.C. Section 501 et seq.

; (2) vicarious copyright infringement; (3) a permanent injunction pursuant to 17 U.S.C. Section 502 ; and (4) attorney's fees and costs pursuant to 17 U.S.C. Section 505

. (Id. at 5–7.) Megna seeks: (1) statutory damages against Defendants pursuant to 17 U.S.C. Section 504(c) of up to $150,000 per infringement or, in the alternative, actual damages and disgorgement of Defendants' wrongful profits; (2) a permanent injunction; (3) attorney's fees pursuant to 17 U.S.C. Section 505 ; (4) costs; and (5) any other relief the Court deems just and proper. (Id. at 7.)

By letter dated July 19, 2016, Defendants requested a pre-motion conference regarding Defendants' anticipated motion to dismiss for lack of personal jurisdiction. (“July 19 Letter,” Dkt. No. 13.) Defendants indicate that neither Biocomp nor Grube are residents of New York. (Id. at 1.) Regarding Megna's claim that Biocomp sells products to New York businesses and residents through the Website, Defendants argue that they do not transact sales on the Website because the testing kits they offer are free of charge. Furthermore, even if a website through which sales are not transacted could give rise to personal jurisdiction, Defendants contend that Megna cannot establish systematic and continuous contacts with New York. (Id. at 2.) Finally, even assuming personal jurisdiction exists over Biocomp, that jurisdiction does not extend over Grube solely because she is the owner of Biocomp. (Id. at 2–3.)

By undated letter filed July 27, 2016, Megna responds to Defendants' July 19 Letter. (“July 27 Letter,” Dkt. No. 15.) Megna states that although Biocomp contends that the testing kits are free, upon submission of a testing sample, customers must pay for additional services or reports through the Website. (Id. at 1.) Therefore, Megna contends that the Website is interactive and transacts business. (Id. at 1–2.) Megna also requests that Grube be dismissed from the action. (Id. at 2.)

The Court now construes the correspondence described above as a motion (“Motion”) by Defendants to dismiss the Complaint for lack of personal jurisdiction pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure

(“Rule 12(b)(2) ”). For the reasons stated below, Defendants' Motion is GRANTED.

I. LEGAL STANDARD

Upon motion, the Court is required to dismiss an action against any defendant over whom it lacks personal jurisdiction. See Fed.R.Civ.P. 12(b)(2)

. Upon such motion, the plaintiff “bears the burden of showing that the court has jurisdiction over the defendant.” In re Magnetic Audiotape Antitrust Litig., 334 F.3d 204, 206 (2d Cir.2003) (per curiam); accord

DiStefano v. Carozzi N. Am., Inc., 286 F.3d 81, 84 (2d Cir.2001) ; Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 171 F.3d 779, 784 (2d Cir.1999). Where, as here, the court does not conduct an evidentiary hearing on the issue of personal jurisdiction, “the plaintiff need only make a prima facie showing that the court possesses personal jurisdiction over the defendant.” DiStefano, 286 F.3d at 84 (citing

Bank Brussels Lambert, 171 F.3d at 784 ). To make this showing, a plaintiff may demonstrate “ ‘through [its] own affidavits and supporting materials, containing [a] [good faith] averment of facts that, if credited ..., would suffice to establish jurisdiction over the defendant.’ ” In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 399 F.Supp.2d 325, 330 (S.D.N.Y.2005) (quoting

Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 208 (2d Cir.2001) ). In deciding whether the plaintiff has met this burden, the pleadings and affidavits must be viewed in the light most favorable to the plaintiff, with all doubts resolved in its favor. See, e.g.,

DiStefano, 286 F.3d at 84 ; Whitaker, 261 F.3d at 208. “However, conclusory allegations are not enough to establish personal jurisdiction.” Gmurzynska v. Hutton, 257 F.Supp.2d 621, 625 (S.D.N.Y.2003) (internal quotation marks omitted), aff'd, 355 F.3d 206 (2d Cir.2004)

; accord

Yellow Page Solutions, Inc. v. Bell Atl. Yellow Pages Co., No. 00 Civ. 5663, 2001 WL 1468168, at *3 (S.D.N.Y. Nov. 19, 2001) (“The plaintiff cannot rely merely on conclusory statements or allegations ...; rather, the prima facie showing must be ‘factually supported.’ ”) (internal citations omitted).

II. DISCUSSION¹

“To determine personal jurisdiction over a non-domiciliary in a case involving a federal question, [courts] first apply the forum state's long-arm statute. If the long-arm statute permits personal jurisdiction, [courts] analyze whether personal jurisdiction comports with due process protections established under the Constitution.” Lewis v. Madej, No. 15 Civ. 2676, 2015 WL 6442255, at *3 (S.D.N.Y. Oct. 23, 2015)

; see also

Royalty Network Inc. v. Dishant.com, LLC, 638 F.Supp.2d 410, 417 (S.D.N.Y.2009) (“In a federal question case, a federal court applies the personal jurisdiction rules of the forum state unless the federal statute specifically provides for national service of process.... Because neither the Copyright Act nor the Lanham Act provides for nationwide service of process, the Court looks to New York law to determine whether it has personal jurisdiction over this non-domiciliary defendant.... If, ‘but only if,’ jurisdiction is found under New York law, the court must then determine ‘whether asserting jurisdiction under that [law] would be compatible with requirements of due process established under the Fourteenth Amendment to the United States Constitution.’ ”).

The Court will first consider whether under the circumstances this case presents, New York's long-arm statute, Civil Practice Law and Rules Section 302

(“Section 302 ”), permits the Court's exercise of personal jurisdiction.

A. NEW YORK'S LONG–ARM STATUTE—SECTION 302

Under Section 302

, there are three bases for personal jurisdiction, each addressed below in turn.

1. Section 302(a)(1)

First, under Section 302(a)(1)

, “a court may exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, who in person or through an agent transacts any business within the state or contracts anywhere to supply goods or services in the state.” N.Y. C.P.L.R. § 302(a)(1). “[T]o determine the existence of jurisdiction under section 302(a)(1), a court must decide (1) whether the defendant transacts any business in New York and, if so, (2) whether this cause of action arises from such a business transaction.... To satisfy this test, this Court first looks to: (1) whether a defendant has transacted business in such a way that it constitutes purposeful activity; and (2) whether there is an articulable nexus, or a substantial relationship, between the claim asserted and the actions that occurred in New York. [P]urposeful activity ... [is] some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” DNT Enterprises, Inc. v. Tech. Sys., 333 Fed.Appx. 611, 613 (2d Cir.2009) (internal citations and quotation marks omitted); see also

Capitol Records, LLC v. VideoEgg, Inc., 611 F.Supp.2d 349, 357 (S.D.N.Y.2009) (“Under C.P.L.R. Section 302(a)(1), jurisdiction is proper over an out-of-state defendant who ‘transacts any business within the state [of New York]’ when the cause of action ‘arises from’ such acts. To determine if this standard has been met, courts look to the totality [of the] defendant's ‘interactions with, and activities within, the state,’ and their relation to the matter that gives rise to the law suit.”).

To determine whether Biocomp transacts business in New York, the Court first looks to the Website. Regarding a website, “the mere availability of the site to users in New York, standing alone, does not amount to transacting business in the state for purposes of section 302(a)

.” Royalty Network Inc., 638 F.Supp.2d at 418. Rather, the courts must place the website on a spectrum of interactivity. Id. In this case, the Website appears to fall somewhere between passive and interactive as Biocomp argues that it does not sell testing kits to users (see Dkt. No. 13 at 2), but Megna contends that users can request further services for a fee (see Dkt. No. 15 at 1). However, Megna does not demonstrate, nor does the Website indicate on its face, that customers can actually purchase those services through the Website; rather, the pricing is listed only for informational purposes. Therefore, since the Website falls in the middle of the spectrum between passive and interactive, the inquiry requires a closer evaluation of the Website's contact with New York residents to determine whether Biocomp engaged in purposeful activity here. See

Royalty Network Inc., 638 F.Supp.2d at 419 (“However, as other courts in this district have found, defendants' website is likewise not fully ‘interactive’ for jurisdictional purposes because it ‘does not conduct traditional...