Trombetta v. Novocin
| Decision Date | 20 December 2021 |
| Docket Number | 18-CV-993 (RA) |
| Parties | ANNAMARIE TROMBETTA, Plaintiff, v. NORB NOVOCIN, MARIE NOVOCIN, ESTATE AUCTIONS, INC., WILLIAM SEIPPEL, WORTHPOINT CORPORATION, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Having previously denied Defendants William Seippel and WorthPoint Corporation's (collectively, “the Worthpoint Defendants”) motion to dismiss for improper process and service of process, the Court now considers their motion to dismiss for lack of personal jurisdiction and failure to state a claim upon which relief can be granted. For the reasons below, the motion is granted in part and denied in part. In short, Plaintiff's claims for direct copyright infringement, under the Digital Millennium Copyright Act (“DMCA”), and under the Visual Artists Rights Act (“VARA”) survive against WorthPoint, but all others are dismissed.
BACKGROUND[1]
The history of this litigation is described more fully in the Court's earlier decisions. See Trombetta v Novocin, 414 F.Supp.3d 625 (S.D.N.Y. 2019); see also Trombetta v. Novocin, No. 18-CV-993 (RA) (SLC), 2020 WL 1304120 (S.D.N.Y. Mar. 19, 2020), Trombetta v Novocin, No. 18-CV- 993 (RA), 2020 WL 7053301 (S.D.N.Y. Nov. 24, 2020). Only the facts relevant to the instant motion are recounted herein.
Plaintiff Annamarie Trombetta, who is representing herself pro se, is an artist who has owned and operated her own business for nearly thirty years. See Dkt. 152 at 1 (“Pl.'s Opp.”). Defendant WorthPoint Corporation (“Worthpoint”) operates the website worthpoint.com, “a searchable online database that provides subscribing users with historical pricing data from actual auction and retail sales” of artwork. Seippel Decl. ¶ 2. Trombetta alleges that Worthpoint is incorporated in Georgia. See Dkt. 33 at 5.[2] Defendant Seippel is the founder and Chief Executive Officer of Worthpoint. Seippel Decl. ¶ 2. He is a resident of Georgia. Seippel Decl. ¶ 1. Defendants Marie and Norb Novocin are the operators of Defendant Estate Auctions Inc. (“EAI”), which sells art and other collectibles via eBay. See Compl. at 2, 3; see also Pl.'s Opp. at 2. Other than the fact that they “both have connections to ebay, ” Trombetta does not allege that EAI and Worthpoint are connected in any way. See Compl. at 6.
In August 2015, Trombetta discovered on worthpoint.com a page containing an eBay listing for a 1972 oil painting entitled “Man with Red Umbrella.” See Compl. at 2-3; Pl.'s Opp. at 3; (the “2015 post”). The post stated that the painting had been sold by EAI at auction on eBay for $181.50. See Compl. at 3, 34. According to the 2015 post, the “Man with Red Umbrella” painting had been painted by Trombetta. See id.; Pl.'s Opp. at 3. The 2015 post included a detailed biography of Trombetta, which she had authored and posted to her own website, as well as a photograph of her purported signature on the painting. See Compl. at 3, 34-37 41; Pl.'s Opp. at 21.
According to Trombetta, none of this was true: she did not paint “Man with Red Umbrella, ” the signature shown on the 2015 post was not hers, and although the biography was hers, she alleges it was taken without permission from her copyrighted website. See Compl. at 2-3; Pl.'s Opp. at 21. Trombetta asserts that the 2015 post's description of the painting as “shabby chic, ” as well as the relatively low price at which the painting sold, caused her harm by “interfer[ing] with her bonafide credentials.” Compl. at 3. Following the publication of the 2015 post, Trombetta claims that “all sales and prospects for [her] artwork came to a grinding halt, ” and she “lost the sale of a painting to a potential collector in the amount of $ 8500 dollar.” Pl.'s Opp. at 4. Trombetta thus sought to have the 2015 post taken down to prevent it from further damaging her reputation. Compl. at 2-3.
Trombetta claims to have spent from August through November of 2015 researching how to take the 2015 post down, including by speaking with eBay staff about the matter. Pl.'s Opp. at 6. In December 2015, Trombetta spoke with a Worthpoint employee about removing the 2015 post. Compl. at 4. But in February 2016, it remained active. Pl.'s Opp. at 9. On February 3, 2016, she again spoke with a Worthpoint employee about the 2015 post, and on February 20, 2016, she communicated with this same employee, as well as Seippel, about the post. Compl. at 4. Trombetta contends that shortly after this, on March 3, 2016, Seippel instructed an employee to file a temporary removal request with Google to have the 2015 post taken down. Pl.'s Opp. at 6. In the fall of 2016, however, she alleges that the 2015 post reappeared. Compl. at 4. Despite her numerous attempts to have the post removed, it “was on the internet until the spring of 2017.” Compl. at 7. Specifically, she alleges that on May 9, 2017, she searched on Google “1972 original oil painting Man with Red Umbrella signed Annam[arie Trombetta], ” and there were five results that populated in response to that search from Worthpoint.com, the first of which appears to be a link to another web post similar to the 2015 post. See Compl. at 42 (“Exhibit 5”) (the “2017 post”).
On February 5, 2018, Trombetta filed this action against Norb Novocin, Marie Novocin, and EAI (collectively, “the EAI Defendants”). Dkt. 1. On December 3, 2019, Trombetta filed a motion for leave to amend her complaint to add claims against the Worthpoint Defendants. Dkt 29. On January 17, 2020, she filed a proposed amended complaint which included claims against both the EAI Defendants and the Worthpoint Defendants. Dkt. 33. One month later, in response to a motion to dismiss filed by the EAI Defendants, Trombetta filed a document entitled “Plaintiff's Response in Opposition to the Motion to Dismiss, ” Dkt. 36, which has since been deemed the operative complaint, see Dkt. 40 at 2 n.2.
On a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(2), “the plaintiff bears the burden of establishing that the court has jurisdiction over the defendant.” Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 171 F.3d 779, 784 (2d Cir. 1999).[3] For a motion to dismiss under Rule 12(b)(2), the Court may rely on materials outside the pleadings. See USHA Holdings, LLC v. Franchise India Holdings Ltd., 11 F.Supp.3d 244, 253 n.2 (E.D.N.Y. 2014) (citing DiStefano v. Carozzi N. Am., Inc., 286 F.3d 81, 84 (2d Cir. 2001)). “Where a court relies on pleadings and affidavits, rather than conducting a full-blown evidentiary hearing, the plaintiff need only make a prima facie showing that the court possesses personal jurisdiction over the defendant.” Dorchester Fin. Sec, Inc. v. Banco BRJ, S.A., 722 F.3d 81, 84 (2d Cir. 2013). “All pleadings and affidavits are to be construed in the light most favorable to the plaintiff, ” id., but “the plaintiff cannot rely merely on conclusory statements or allegations; rather, the prima facie showing must be factually supported, ” Yellow Page Solutions, Inc. v. Bell Atl. Yellow Pages Co., No. 00-CV-5663 (MBM), 2001 WL 1468168, at *3 (S.D.N.Y. Nov. 19, 2001).
In evaluating a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a court must “accept as true the factual allegations of the complaint, and construe all reasonable inferences that can be drawn from the complaint in the light most favorable to the plaintiff.” Arar v. Ashcroft, 585 F.3d 559, 567 (2d Cir. 2009). While a court need not credit “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, ” where “there are well-pleaded factual allegations, a court should assume their veracity.” Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). “Where, as here, the complaint was filed pro se, it must be construed liberally with ‘special solicitude' and interpreted to raise the strongest claims that it suggests.” Hogan v. Fischer, 738 F.3d 509, 515 (2d Cir. 2013) (quoting Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011)). “Nonetheless, a pro se complaint must state a plausible claim for relief.” Id.
In evaluating a motion to dismiss under Rule 12(b)(6), a court may consider documents incorporated into the complaint, including “any written instrument attached to [the complaint] as an exhibit, materials incorporated in [the complaint] by reference, and documents that, although not incorporated by reference, are integral to the complaint.” Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004). Further, “in deciding a motion to dismiss a pro se complaint, it is appropriate to consider materials outside the complaint to the extent that they are consistent with the allegations in the complaint, including documents that a pro se litigant attaches to her opposition papers.” Pearson v. Walden Univ., 144 F.Supp.3d 503, 508 (S.D.N.Y. 2015); see also Walker v. Schult, 717 F.3d 119, 122 n.1 (2d Cir. 2013) ().
The Worthpoint Defendants first move to dismiss Trombetta's claims against Seippel for lack of personal jurisdiction. Dkt. 143 at 5 ( ). “In litigation arising under federal statutes that do not contain their own jurisdictional provisions, such as the Copyright Act … federal courts are to apply the personal jurisdiction rules of the forum state, provided that those rules are consistent with the requirements of Due Process.” Penguin Group (USA) Inc. v. Am. Buddha, 609 F.3d 30, 35 (2d Cir. 2010) (internal citations omitted). New York's personal jurisdiction rules allow for the exercise of personal jurisdiction over a non-domiciliary if:
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