Nixon v. Inquisitr, Ltd.

• Decision Date: 17 August 2021
• Docket Number: 20-CV-1819(JS) (SIL)
• Parties: JUSTIN NIXON, Plaintiff, v. INQUISITR LTD., Defendant.
• Court: U.S. District Court — Eastern District of New York

JUSTIN NIXON, Plaintiff, v. INQUISITR LTD., Defendant.

No. 20-CV-1819(JS) (SIL)

United States District Court, E.D. New York

August 17, 2021

For Plaintiff: Richard Liebowitz, Esq.

Liebowitz Law Firm, PLLC

James H. Freeman, Esq.

Liebowitz Law Firm, PLLC

For Defendant: Nolan Keith Klein, Esq.

Law Offices of Nolan Klein, P.A.

MEMORANDUM & ORDER

Joanna Seybert, U.S.D.J.

Plaintiff Justin Nixon (“Plaintiff”) commenced this action against defendant Inquisitr Ltd. (“Defendant” or “Inquisitr”) asserting a claim for copyright infringement under the Copyright Act, 17 U.S.C. § 101. Pending before the Court is Defendant's motion to dismiss based on a lack of personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2). (Mot., ECF No. 19.) Plaintiff opposes the motion and requests the opportunity to conduct jurisdictional discovery. (Pl. Opp., ECF No. 20.) For the reasons set forth below, Plaintiff's request for limited discovery is denied and Defendant's Motion is GRANTED.

BACKGROUND^[1]

I. Factual History

Plaintiff is a professional photographer with a usual place of business located at 806 Fig Tree Lane, Brandon, Florida 33511. (Am. Compl. ¶ 5, ECF No. 13.) Plaintiff took a photograph of the rapper Lil Wayne (the “Photograph”) and registered it with the United States Copyright Office. (Id. ¶¶ 15-17.) The Photograph's Copyright Registration Number is VA 2-180-735, and Plaintiff is the sole owner of the Photograph. (Id. ¶¶ 16-17.)

Defendant owns and operates the website www.inquisitr.com (the “Website”). (Am. Compl. ¶ 8.) On December 19, 2017, Defendant published an article (the “Article”) on its Website entitled Rick Ross Questions Birdman's Net Worth After Cash Money Boss Defaults On $12 Million Loan. (Id. ¶ 18.) Embedded in the Article was an Instagram link that displayed the Photograph. (Ex. C, ECF No. 13-3, attached to Am. Compl.) The Article featured the Photograph, though Defendant did not license or obtain permission from Plaintiff to publish the Photograph on the Website. (Id. ¶ 19.)

Plaintiff alleges, upon information and belief, that this Court has personal jurisdiction over Defendant “because Defendant resides and/or transacts business in New York.” (Am. Compl. ¶ 3.) He makes the following allegations regarding jurisdiction:

● The Website uses the English language and a “.com” domain name “(which is based in the United States)” (Am. Compl. ¶ 10);

● Defendant “publishes news content that is directed to audiences within this State and Judicial District” on such topics as “Jennifer Lopez, Rush Limbaugh, Hailey Baldwin, the NBA, and WWE - all of which are United States-based celebrities and organizations, ” (id. ¶ 11); and

● Defendant “has previously been sued within this Judicial District and has resolved such disputes” (id. ¶ 14).

The Amended Complaint further contains allegations, all made upon information and belief, that:

● Defendant maintains its principal place of business in Brooklyn, New York. (Am. Compl. ¶ 6.) In support of this allegation, Plaintiff attaches a screenshot from the website glassdoor.com indicating that Inquisitr's Headquarters is in Brooklyn, New York. (Id., Ex. A.)

● Defendant's Chief Executive Officer, Dominick Miserandino (“Miserandino”), resides in Oceanside, New York. (Id. ¶ 7.)

● Defendant “employed and/or contracted with individuals who reside within this Judicial District for the purpose of operating, managing, and supervising the photographic content uploaded to the Website, including the infringing content at issue in this case.” (Id. ¶ 9.);

● Defendant “received a financial benefit attributable to the infringing activity described herein as a result of transacting business in this State and within this Judicial District.” (Id. ¶ 12.) and

● Defendant's primary server is located in New York. (Id. ¶ 13.)

II. Procedural History

Plaintiff commenced this action on April 15, 2020, stating a single claim of copyright infringement under 17 U.S.C. §§ 106 and 501. After being served with a motion to dismiss by Defendant, on June 16, 2020 (see ECF No. 9), Plaintiff filed the Amended Complaint, which added the jurisdictional allegations set forth above.^[2] Currently before the Court is Defendant's motion to dismiss the Amended Complaint pursuant to Rule 12(b)(2) for lack of personal jurisdiction.

In support of its motion, Defendant has provided an affidavit from Daniel Treisman, the “Director and owner” of Inquisitr, by which Defendant contends that it is an Israeli limited company, incorporated in Israel without any real estate, offices, mailing addresses, telephone numbers or bank accounts in the State of New York. (Treisman Aff., ECF No. 19-3.) In response, Plaintiff argues that jurisdictional discovery is warranted to show whether Defendant has substantial ties with employees and/or third-party contractors in New York.

LEGAL STANDARDS

I. Rule 12(b)(2)

To survive a motion to dismiss at the pleading stage “for lack of personal jurisdiction, a plaintiff must make a prima facie showing that jurisdiction exists.” Eades v. Kennedy, PC Law Offices, 799 F.3d 161, 167-68 (2d Cir. 2015) (citation omitted); see also Penguin Grp. (USA) Inc. v. Am. Buddha (“Penguin I”), 609 F.3d 30, 35 (2d Cir. 2010) (“A plaintiff bears the burden of demonstrating personal jurisdiction over a person or entity against whom it seeks to bring suit.” (citation omitted)). “A prima facie showing of jurisdiction does not mean that plaintiff must show only some evidence that defendant is subject to jurisdiction; it means that plaintiff must plead facts which, if true, are sufficient in themselves to establish jurisdiction.” Tamam v. Fransabank Sal, 677 F.Supp.2d 720, 725 (S.D.N.Y. 2010) (internal quotation marks and citation omitted). As a result, “a complaint will survive a motion to dismiss for want of personal jurisdiction so long as its allegations, taken as true, are ‘legally sufficient allegations of jurisdiction.'” Troma Ent., Inc. v. Centennial Pictures Inc., 729 F.3d 215, 217 (2d Cir. 2013) (quoting Penguin I, 609 F.3d at 35).

“In evaluating whether the requisite showing has been made, the Court must construe the pleadings and any supporting materials in the light most favorable to the plaintiffs.” Hillel v. Obvio Health USA, Inc., No. 20-CV-4647, 2021 WL 229967, at *3 (S.D.N.Y. Jan. 21, 2021) (internal quotation marks and citation omitted). “The Court will not, however, ‘draw argumentative inferences in the plaintiff's favor' or ‘accept as true a legal conclusion couched as a factual allegation.'” Id. (quoting In re Terrorist Attacks on Sept. 11, 2001, 714 F.3d 659, 673 (2d Cir. 2013); see also Bracken v. MH Pillars Inc., No. 15-CV-7302, 2016 WL 7496735, at *2 (S.D.N.Y. Dec. 29, 2016)(“conclusory non-factspecific jurisdictional allegations or a legal conclusion couched as a factual allegation will not establish a prima facie showing of jurisdiction” (citation omitted)).

Under the plausibility standard in civil cases, ^[3] a plaintiff is not prevented from pleading facts upon information and belief “where the facts are peculiarly within the possession and control of the defendant, ” or “where the belief is based on factual information that makes the inference of culpability plausible.” Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010) (citations omitted). “However, even in those circumstances, the plaintiff still bears the burden of alleging the facts upon which her or his belief is founded.” Minnie Rose LLC v. Yu, 169 F.Supp.3d 504, 517 (S.D.N.Y. 2016) (internal quotation marks, alteration, and citation omitted); see also Guo Jin v. EBI, Inc., No. 05-CV-4201, 2008 WL 896192, at *2 (E.D.N.Y. Mar. 31, 2008) (“Conclusory allegations showing the presence of jurisdiction, particularly those stated only upon ‘information and belief,' are insufficient to establish that the court has personal jurisdiction over the defendant.” (internal quotation marks and citation omitted)).

A determination that a court has personal jurisdiction over a defendant requires two findings. First, the court must determine whether the laws of New York provide for jurisdiction. If they do, then the court must determine whether the exercise of jurisdiction comports with the federal requirements of due process. See Chloe v. Queen Bee of Beverly Hills, LLC, 616 F.3d 158, 163-64 (2d Cir. 2010).

When addressing the question of jurisdiction, the Court may consider matters beyond the face of the complaint. See Lugones v. Pete & Gerry's Organic, LLC, 440 F.Supp.3d 226, 234 (S.D.N.Y. 2020) (“Where a court does not hold an evidentiary hearing on the jurisdictional question, it may, nevertheless, consider matters outside the pleadings.” (citation omitted)). In this context, the court “has considerable procedural leeway. It may determine the motion on the basis of affidavits alone; or it may permit discovery in aid of the motion; or it may conduct an evidentiary hearing on the merits of the motion.” Dorchester Fin. Sec., Inc. v. Banco BRJ, S.A., 722 F.3d 81, 84 (2d Cir. 2013) (citation omitted).

II. Personal Jurisdiction in New York

Plaintiff suggests that Defendant is amenable to jurisdiction under sections 301 and 302 (a)(1) of New York's Civil Practice Law and Rules (“CPLR”). Under section 301 “a court in New York may exercise general jurisdiction over an out-of-state defendant if the defendant ‘engaged in continuous, permanent, and substantial activity in New York.'” George Moundreas & Co SA v. Jinhai Intelligent Mfg. Co., No. 20-CV-2626, 2021 WL 168930, at *4 (S.D.N.Y. Jan. 18, 2021) (quoting Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 95 (2d Cir. 2000)) . “The paradigmatic forums where a corporate defendant is essentially at home are ‘where it is incorporated' and where it ‘has its principal place of...