MILWAUKEE CONCRETE STUDIOS v. Fjeld Mfg. Co.
| Decision Date | 02 June 1992 |
| Docket Number | No. 91-C-880.,91-C-880. |
| Citation | 795 F. Supp. 277 |
| Parties | MILWAUKEE CONCRETE STUDIOS, LTD., Plaintiff, v. FJELD MANUFACTURING CO., INC., and Janice Krueger, Defendants. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Pattishall, McAuliffe, Newberry, Hilliard & Geraldson by Craig S. Fochler, Douglas Masters, and John Murphy, Chicago, Ill., for plaintiff.
Robins, Kaplan, Miller & Ciresi by Alan M. Anderson and Kathleen Kuehl, Minneapolis, Minn., for defendants.
DECISION and ORDER
On August 14, 1991, the plaintiff, Milwaukee Concrete Studios, commenced the above-captioned action alleging copyright infringement under the Copyright Act of 1976, 17 U.S.C. § 101 et seq. The defendants, Fjeld Manufacturing and Janice Krueger, filed a motion to dismiss the action for improper venue, pursuant to Rule 12(b)(3), Federal Rules of Civil Procedure. The motion was granted, and the court imposed a $1,000 sanction on the plaintiff and its counsel, jointly and severally, pursuant to Rule 11, Federal Rules of Civil Procedure, see Milwaukee Concrete Studios, Ltd. v. Fjeld Manufacturing Co., 782 F.Supp. 1314 (E.D.Wis.1991).
The plaintiff has filed a motion to vacate the dismissal order or, in the alternative, to alter or amend the judgment (to vacate the sanction), pursuant to Rule 59(e), Federal Rules of Civil Procedure. The motion will be denied.
In its complaint, the plaintiff, of Oak Creek, Wisconsin, alleged that defendant Fjeld Manufacturing, of Minot, North Dakota (a small business consisting of six employees under the direction of defendant Janice Krueger), infringed its registered copyrights in various items of concrete statuary for architectural landscaping use. Specifically, the complaint alleged that in 1990 Ms. Krueger travelled to Winnipeg, Canada, where she purchased (for Fjeld Manufacturing) a birdbath that "simulates the original design of" a so-called "Oakwood Squirrel Birdbath" manufactured and sold by the plaintiff. In addition, the complaint alleged that Ms. Krueger invited Steve Hrkal of Greeley Ornamental Concrete Products to make a mold of her birdbath.
The complaint alleged that Ms. Krueger (on behalf of Fjeld Manufacturing) subsequently delivered her birdbath to Greeley Ornamental Concrete Products, who created a mold from which it manufactured over 500 infringing birdbaths. The plaintiff charged that these birdbaths were sold and delivered throughout Wisconsin (by Greeley Ornamental Concrete Products) — which constituted contributory copyright infringement by Ms. Krueger and Fjeld Manufacturing.
In its complaint, the plaintiff asserted that venue was proper under 28 U.S.C. § 1400(a), which provides as follows:
Civil actions, suits, or proceedings arising under any Act of Congress relating to copyrights ... may be instituted in the district in which the defendant or his agent resides or may be found.
There was no assertion that either Ms. Krueger or Fjeld Manufacturing "resided" in the Eastern District of Wisconsin. The propriety of venue thus turned on whether Fjeld Manufacturing and Ms. Krueger "may be found" in the district. The plaintiff asserted that for purposes of § 1400(a) a party "may be found" wherever it is amenable to personal jurisdiction. However, the court determined that under § 1400(a) a party "may be found" in any judicial district in which it is amenable to personal jurisdiction, see Kogan v. Longstreet, 374 F.Supp. 47, 50 (N.D.Ill.1974) (Bauer, J.).
That is, the court disagreed with the plaintiff's suggestion that the word "district" in § 1400(a) is surplusage and the corresponding contention that personal jurisdiction in a state gives rise to proper venue in any of the federal judicial districts comprising that state. See 782 F.Supp. at 1316. Moreover, the court found that in response to the motion to dismiss the plaintiff had erroneously "relocated" Greeley Ornamental Concrete Products — the locus of the defendants' purported contacts with the state of Wisconsin — from its actual location, Ellsworth, Wisconsin, in the far western reaches of the Western District of Wisconsin, to Milwaukee, Wisconsin, which is in the Eastern District of Wisconsin.
Accordingly, the court was constrained to rule upon the motion to dismiss without the assistance that an argument founded on the correct facts might have provided. The defendants' motion to dismiss was granted, and the court ordered that the action be dismissed for lack of venue.
In its present motion to vacate the court's dismissal order, the plaintiff concedes that it "misplaced" the location of Greeley Ornamental Concrete Products in its response to the defendants' motion to dismiss for improper venue. It also concedes that it failed to explain the effect of the error on its arguments in response to the motion to dismiss. (Originally, the plaintiff termed the error "inadvertent" and addressed it no further.)
Having ended up on the wrong end of the court's order, the plaintiff now proffers an explanation for its error. It explains that under its interpretation of the law, the location of Greeley Ornamental Concrete Products in Wisconsin was irrelevant. It also proffers arguments loosely responsive to the defendants' original motion to dismiss for improper venue.
Such explanations and arguments, which basically consist of a rehashing of what was already decided, are not well-received. The court is not now called upon to address any new legal or factual questions; instead, the court is asked to consider arguments that should have been made by the plaintiff in response to the defendants' motion to dismiss — and presumably would have been made by the plaintiff had it not erroneously placed Greeley Ornamental Concrete Products in the Eastern District of Wisconsin.
Interestingly, the plaintiff urges both that "courts must employ the plain meaning of the language the legislature adopted" and that 28 U.S.C. § 1400(a) "expressly requires ties to the forum state, not to the federal judicial district." Plaintiff's Memorandum in Support of Motion to Vacate at 13, 14 (emphasis in original). The court agrees that it must begin (if not end) its examination with the "plain meaning" of the language of § 1400(a). See Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Col.L.Rev. 527, 535 (1947) (). However, contrary to the plaintiff's view, the court's examination of the statutory language reveals § 1400(a) () expressly requires ties to the federal judicial district:
Civil actions, suits, or proceedings arising under any Act of Congress relating to copyrights ... may be instituted in the district in which the defendant or his agent resides or may be found.
Indeed, § 1400(a)'s plain meaning relates venue narrowly to a particular federal judicial district and not more broadly to the forum state. In fact, nowhere in the "language" of § 1400(a) did the "legislature sic" employ the word "state."
It is true that there are no authoritative appellate decisions providing a definitive construction of § 1400(a). Unconstrained by a controlling appellate decision and unimpressed by the plain meaning of the statutory language, the plaintiff apparently finds a license to develop its own interpretation of § 1400(a) — then set off to find authorities that may be cited in support of that interpretation. An examination of the authorities cited in the plaintiff's brief suggests that it was not without some success. The court is now told that the plaintiff's "broad reading" of § 1400(a) was derived from William F. Patry, Latman's The Copyright Law at 262-63 (BNA 6th ed. 1986). The plaintiff also claims to have identified a "substantial body of case law" — actually a handful of district court decisions — purporting to disregard § 1400(a)'s literal requirement that a defendant "be found" in the federal judicial district of suit.
However, the court finds that the more persuasive district court decisions, for example, Kogan v. Longstreet, 374 F.Supp. 47, 50 (N.D.Ill.1974) (Bauer, J.), do not disregard the language of § 1400(a). See also Mode Art Jewelers Co. v. Expansion Jewelry Ltd., 409 F.Supp. 921, 923 (S.D.N.Y. 1976) (). Moreover, the language of the following section of the general venue statute is particularly instructive:
For purposes of venue under this chapter, a defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced. In a State which has more than one judicial district and in which a defendant that is a corporation is subject to personal jurisdiction at the time an action is commenced, such corporation shall be deemed to reside in any district in that State within which its contacts would be sufficient to subject it to personal jurisdiction if that district were a separate State....
28 U.S.C. § 1391(c) (emphasis added). Section 1391(c) obviously provides support for the treatment of a federal judicial district as a separate state for purposes of determining venue. Thus, it squarely supports the court's interpretation of § 1400(a), under which the defendants' contacts with the Eastern District of Wisconsin — and not with the entire state of Wisconsin — must be examined, see 782 F.Supp. at 1317. Furthermore, the use of the phrase "under this chapter" in § 1391(c) demonstrates that its principle is applicable to all other venue statutes in Title 28 — including § 1400. See, e.g., VE Holding Corp. v. Johnson Gas Appliance Co., 917 F.2d 1574, 1578-79 (Fed.Cir.1990) ().
Under the plaintiff's proffered interpretation of § 1400(a), a contact with El Paso suffices for...
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Milwaukee Concrete Studios, Ltd. v. Fjeld Mfg. Co., Inc.
...colorably support the plaintiff's interpretation," MCS' position was warranted by existing law. Milwaukee Concrete Studios, Ltd. v. Fjeld Mfg. Co., 795 F.Supp. 277, 280 (E.D.Wis.1992). The district court nonetheless allowed the sanctions to stand, holding that "[i]rrespective of its interpr......