Shaheen v. Smith

• Decision Date: 13 November 2013
• Docket Number: Civil Action No.: 12–1168 (RC)
• Citation: 994 F.Supp.2d 77
• Parties: David T. Shaheen, Plaintiff, v. Charles J. Smith, et al., Defendants.
• Court: U.S. District Court — District of Columbia

994 F.Supp.2d 77

David T. Shaheen, Plaintiff,

v.Charles J. Smith, et al., Defendants.

Civil Action No.: 12–1168 (RC)

United States District Court, District of Columbia.

November 13, 2013

Stevan H. Lieberman, Greenberg & Lieberman, Washington, DC, for Plaintiff.

Re Document Nos.: 9, 12

MEMORANDUM OPINION

Denying Plaintiff's Motion for Default Judgment for Lack of Personal Jurisdiction; Denying Plaintiff's Request for Jurisdictional Discovery, and Granting Plaintiff's Motion for Transfer of Venue

RUDOLPH CONTRERAS, United States District Judge

I. INTRODUCTION

This action arises out of the plaintiff's allegations against the defendants for copyright infringement. The plaintiff, Mr. David T. Shaheen, owns a copyright for a written article titled Going Public by Direct Filing vs. Reverse Merger. The plaintiff alleges that the defendants, Charles J. Smith and his company, “How2GoPublic.com,” altered the article and posted it online without the plaintiff's permission. The plaintiff moved for Default Judgment and this Court entered an Order, instructing the plaintiff to Show Cause why the Court should not dismiss this case for lack of personal jurisdiction.

After examining the plaintiff's allegations regarding the defendants' contacts in the District of Columbia, the Court finds that it does not have personal jurisdiction over the defendants. The Court also finds that jurisdictional discovery is not warranted. However, in the interests of justice, the Court will transfer the case to the District Court for the District of Nevada.

II. FACTUAL BACKGROUND

On July 17, 2012, the plaintiff filed a complaint against the defendants alleging copyright infringement. Compl. ¶ 1, ECF No. 1. On September 5, 2012, the defendants were served in Nevada. See Aff. of Mailing, ECF No. 4. The defendants never filed an answer or other responsive pleading, and on February 4, 2013, upon request of the plaintiff, the clerk entered an order of default. See Aff. for Default, ECF No. 7; Clerk's Entry of Default, ECF No. 8. On March 15, 2013, the plaintiff filed a Motion for Default Judgment under Federal Rule of Civil Procedure Rule 55, alleging that the defendants had not pled or moved to defend the matter. See Mot. Default J. 2, ECF No. 9. On April 10, 2013, this Court ordered the plaintiff to Show Cause why this case should not be dismissed for lack of personal jurisdiction. See Show Cause Order, ECF No. 10. On May 8, 2013, the plaintiff responded to the Show Cause Order arguing that the defendants, who reside in and whose principal place of business is Nevada, had sufficient and substantial contacts within the District of Columbia to confer personal jurisdiction over them in this matter. See Resp. Show Cause Order 6–9, ECF No. 11 (“Resp.”). In the alternative, the plaintiff requested that if this Court did not find personal jurisdiction, that it grant the plaintiff jurisdictional discovery, or transfer the case to the Ninth Circuit. See Resp. at 8–9.

III. LEGAL STANDARD

The plaintiff bears the burden of establishing that this Court has personal jurisdiction over the defendants. SeeFC Inv. Grp. LC v. IFX Mkts., Ltd., 529 F.3d 1087, 1091 (D.C.Cir.2008). Although factual discrepancies in the record must be resolved in favor of the plaintiff, a court need not accept the plaintiff's “conclusory statements” or “bare allegations” regarding the defendant's actions in a selected forum. SeeGTE New Media Servs. Inc. v. BellSouth Corp., 199 F.3d 1343, 1349 (D.C.Cir.2000).

“To establish personal jurisdiction over a non-resident, a court must engage in a two-part inquiry: A court must first examine whether jurisdiction is applicable under the state's long-arm statute and then determine whether a finding of jurisdiction satisfies the constitutional requirements of due process.” GTE New Media Servs. Inc., 199 F.3d at 1347. The District of Columbia long-arm statute provides that a District of Columbia court has personal jurisdiction over any person as to a claim for relief arising from the person's

(1) transacting any business in the District of Columbia; (2) contracting to supply services in the District of Columbia; (3) causing tortious injury in the District of Columbia by an act or omission in the District of Columbia; (4) causing tortious injury in the District of Columbia by an act or omission outside the District of Columbia if he regularly does or solicits business, engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed, or services rendered, in the District of Columbia....

D.C. Code § 13–423(a) (2001). Subsection (b) qualifies the reach of the statute by noting that “[w]hen jurisdiction over a person is based solely upon this section, only a claim for relief arising from acts enumerated in this section may be asserted against him.” Id. § 13–423(b).

Next, Due Process requires a plaintiff to demonstrate “ ‘minimum contacts' between the defendant and the forum state such that ‘the maintenance of the suit does not offend traditional notions of fair play and substantial justice.’ ” GTE New Media Servs. Inc., 199 F.3d at 1347 (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). These minimum contacts must be grounded in “some act by which the defendant purposefully avails [himself] of the privilege of conducting activities with the forum state, thus invoking the benefits and protections of its laws.” Asahi Metal Indus. v.Super. Ct. of Cal., 480 U.S. 102, 109, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987). In short, “the defendant's conduct and connection with the forum state [must be] such that he should reasonably anticipate being haled into court there.” GTE New Media Servs. Inc., 199 F.3d at 1347 (quoting World–Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)). The constitutional limits of due process are generally coterminous with the limits set forth in the long-arm statute. SeeHarris v. Omelon, 985 A.2d 1103, 1105 n. 1 (D.C.2009).

IV. ANALYSIS

Applying the District's long-arm statute, the plaintiff claims that §§ 13–423(a)(1)–(4) authorize personal jurisdiction over the defendants. This Court will address the plaintiff's claims in the order in which they were raised.

A. Personal Jurisdiction

1. The Court Does Not Have Personal Jurisdiction under D.C. Code § 13–423(a)(3)

The plaintiff first argues that because the defendants' acts of copyright infringement constitute an intentional tort ¹ that originated in and caused the plaintiff harm in the District of Columbia, this Court therefore has jurisdiction over the defendants. Under D.C.Code § 13–423(a)(3), a court may exercise personal jurisdiction over a person who “caus [es] tortious injury in the District of Columbia by an act or omission in the District of Columbia.” This provision “requires that both act and injury occur in the District of Columbia.” Helmerv. Doletskaya, 393 F.3d 201, 208 (D.C.Cir.2004). See alsoMoncrief v. Lexington Herald–Leader Co., 807 F.2d 217, 221 (D.C.Cir.1986) (“the District of Columbia has chosen to distinguish between the act of the defendant and the injury it causes”).

Though the District of Columbia Circuit has not yet ruled on where a tortious injury occurs in a copyright infringement case, at least one District of Columbia court has adopted the Second Circuit's logic in Penguin Group (USA) Inc. v. Am. Buddha, 640 F.3d 497, 500–501 (2d Cir.2011). In that case, the court held, after certifying the question to the New York Court of Appeals, that under the New York long-arm statute, the situs of the injury in an online copyright infringement case is the location, or residence, of the copyright holder. Id.See alsoNu Image, Inc. v. Does 1–23,322, 799 F.Supp.2d 34, 38–39 (D.D.C.2011) (finding the reasoning of Am. Buddha to “tip[ ] the balance in favor of identifying the situs of the injury as the location of the copyright holder,” and finding that under that test, the location of the injury was in California, where the copyright holder resided). Here, the plaintiff has alleged that his injury occurred in the District of Columbia, because that is where he is located. See Resp. at 6. The copyright at issue in this case is registered under David Shaheen's name, and under his work address in Washington, D.C. See Compl., Ex. G., ECF No. 1–1. Though Mr. Shaheen is a District of Columbia-based lawyer, is a member of the District of Columbia Bar, and works in the District of Columbia, he resides in Virginia. See Shaheen Decl. ¶ 1, ECF No. 11–1; Compl. ¶ 4. The Am. Buddha and Nu Image test would suggest that the tortious injury, then, occurred in Virginia, and not the District because Virginia is where the copyright holder resides. The Court need not decide that issue, however, because either way, the plaintiff has not shown that the tortious act occurred in the District of Columbia.²

As this court has noted, “[i]n cases involving the posting of infringing material on an Internet web site, courts have held that the tort occurs where the web site is created and/or maintained, usually where the server supporting the web site is located, not where the Internet web site can be seen, because that would be literally anywhere the Internet can be accessed.” Kline v. Williams, No. Civ. A. 05–01102 (HHK), 2006 WL 758459, at *4 (D.D.C. Mar. 23, 2006) (quoting Citigroup Inc. v. City Holding Co., 97 F.Supp.2d 549, 567 (S.D.N.Y.2000)). Here, although the plaintiff alleges that the defendant maintains a technical contact for its website in the Washington, D.C. metropolitan area (Herndon, VA), nothing in the plaintiff's Response or Complaint demonstrates that the defendants' website was created, is maintained, or has its servers in Washington, D.C.³See Resp. at 3. Rather, the defendant's website is registered under a Nevada address, lists an administrative contact located in Oregon, and lists a technical contact with a Virginia address. See Resp., Ex. 5 at 2,...