Peterson v. Adams et al

Filing 15

ORDER denying 10 Motion to Dismiss; denying 11 Motion for Summary Judgment. Plaintiff is directed to file an Amended Complaint within 21 days of this Order. Defendant shall have 21 days to plead or otherwise respond. Within 21 days of Defen dant's pleading or other response, the parties shall confer as provided in the Rule 26 Instruction Order (doc no. 3) and submit a report outlining their discovery plan within 14 days of the conference. Signed by Judge J. Randal Hall on 11/19/2013. (thb)

IN THE UNITED

STATES DISTRICT COURT

FOR THE

SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

CHARLES PETERSON,

*

d/b/a Peterson Boys Music,

*
*

Plaintiff,

*
*

v.

*

CV

113-116

*

PEGGY SCOTT ADAMS,

d/b/a Nora

*

Records,

*
*

Defendant.

*

ORDER

Presently pending before the Court are Defendant's motion to
dismiss

(doc.

(doc. no.

no.

11) .

10)

and Plaintiff's motion

for

For the reasons set forth below,

summary judgment

these motions are

DENIED.

I.

BACKGROUND

On July 16, 2013, Plaintiff, acting pro se, filed suit in this
Court,

alleging

and Joel Andrew.

copyright
(Doc.

infringement against

no.

1.)

Peggy Scott Adams

Plaintiff alleges that:

he wrote

and produced three R&B songs (compl. fl 2); he applied to the United
States Copyright Office and received certificates of registration
for each song (id. M

4-6); and Defendants infringed the copyrights

by mass-producing and selling the subject songs without obtaining
Plaintiff's

permission

(io\

1

8).

Plaintiff seeks

$50,000

in

compensatory damages,
an accounting,

$50,000

attorney's fees,

On August 2, 2013,

Answer

and costs.

(Doc.

no.

8.)

(hereinafter "Defendant")

contending

an

(Id. at 4-5.)

that

Plaintiff

On August 19,

2013,

Peggy

appeared pro se and filed an

obtained

the

copyrights

subject songs through fraud and misrepresentation.
3.)

injunction,

the Court dismissed the claims against Joel

Andrew without prejudice.
Scott Adams

in punitive damages,

(Doc.

on

no.

the

9 at

Defendant concedes that Plaintiff contributed a few lyrics to

the songs but contends that Plaintiff did not write or compose the

songs;

rather,

songs.

Bernard

(Id.)

Lilton

allegedly

wrote

and

composed

Further, Defendant pleads that Plaintiff terminated

all rights to a distribution agreement between the parties.1
Additionally,

the

Defendant moves

to dismiss

this

personal jurisdiction and improper venue.

(Id.)

action for lack of

(Doc.

no.

10 at 1-2.)

Defendant asserts that she is a California resident with no ties to

Georgia

and

that

none

of

the

events

giving

occurred in the Southern District of Georgia.

On

August

20,

2013,

Plaintiff

filed

rise

to

this

case

(Id.)

a

motion

for

summary

judgment arguing that at trial he "can prove beyond a reasonable
doubt" that he owns the subject songs.

(Doc. no.

11.)

also responded to Defendant's motion to dismiss.
Plaintiff contends

songs

by

that he did not

terminating

1 It is currently

agreement

encompasses

subject songs.

give up

the distribution

unclear whether

termination

of

(Doc.

rights to

agreement.

termination

no.

the

(Id.

of this

Plaintiff7 s alleged

Plaintiff

12.)

subject

at

1.)

distribution

rights

to

the

Plaintiff argues that venue is proper in Georgia because Defendant
traveled to

2.)

Georgia

to

make

the

distribution

agreement.

(Id. at

Plaintiff also notes that some of the background vocals were

recorded
Plaintiff

by

Mistey

does

Lundy

not

in

Albany,

Georgia.

directly

address

the

(Id.

issue

of

at

3.)

personal

jurisdiction.

II.

A. Personal

DISCUSSION

Jurisdiction

1. Standard

"In the

context

of

a motion

to

dismiss

for

lack of personal

jurisdiction in which no evidentiary hearing is held,

the plaintiff

bears the burden of establishing a prima facie case of jurisdiction
over the movant,

F.2d 489,

492

nonresident defendant."

(11th Cir.

1988).

Morris v.

SSE,

Inc.,

843

The plaintiff establishes a prima

facie case by presenting sufficient evidence to defeat a motion for
a directed verdict,

id.,

which means "substantial evidence ... of

such quality and weight that reasonable and fair-minded persons in
the

exercise

conclusions."

(11th Cir.

of

impartial

Walker v.

1995).

judgment

Nations

Bank of

might
Fla.,

reach
53

F.3d

If,

however,

Inc.,
the

1548,

1554

The facts presented in the plaintiff's complaint

are taken as true to the extent they are uncontroverted.

v. Custom Tees,

different

879 F. Supp.

defendant

complaint's allegations,

1200,

submits

Foxworthy

1207 n.10 (N.D. Ga. 1995).

affidavits

challenging

the

the burden shifts back to the plaintiff to

produce evidence supporting jurisdiction.
Inc.

v.

2010) .

Food

Movers

Int'l,

Inc.,

593

affidavits,

the

court

must

inferences in favor of the plaintiff.
To

determine

personal

Id.

exercise

long-arm

whether

jurisdiction

analysis.

there

F.3d

1249,

1257

(11th

Cir.

If the complaint and supporting evidence conflict with the

defendant's

the

Diamond Crystal Brands,

at

of

Georgia,

personal
Id.

sufficient

First,

the

defendant

"minimum

is

Court

the

the

performs

Court

jurisdiction
Next,

all

reasonable

Id.

nonresident

1257-58.

statute.

are

in

a

construe

is

Court

contacts"

must

proper
must

with

subject
a

two-part

decide

under

whether

Georgia's

determine

the

forum

whether
state

satisfy the Due Process Clause of the Fourteenth Amendment.2
Int'l Shoe Co.

v.

Washington,

326 U.S.

310

to

to

Id.;

(1945).

2. Application

Here,

the Complaint does not contain any allegations regarding

Defendant's

contacts

insufficient

with

allegations

the
to

state

of Georgia.

establish

personal

Thus,

jurisdiction

the Georgia long-arm statute and the Due Process Clause.

Plaintiff argues

that

Defendant has

some

his response to the motion to dismiss,

there

connection

to

are

under

Although

Georgia

in

i t is well-established that

2 The Eleventh Circuit has held that "the Georgia long-arm statute does
not grant courts in Georgia personal jurisdiction that is coextensive with
procedural due process," but instead "imposes independent obligations that a
plaintiff must establish for the exercise of personal jurisdiction that are
distinct from the demands of procedural due process."
Diamond Crystal
Brands, 593 F.3d at 1259.
"[C]ourts must apply the specific limitations and
requirements of O.C.G.A. § 9-10-91 literally and must engage in a statutory
examination that is independent of, and distinct from, the constitutional

analysis to ensure that both,
are

satisfied."

Id.

at

1263.

separate prongs of the

jurisdictional inquiry

a complaint may not be amended by a brief in opposition to a motion

to dismiss.3

Walker v. SunTrust Bank of Thomasville, Ga., No. 7:07-

CV-173, 2008 WL 4004714,

at *3 n.l (M.D. Ga. Aug. 26, 2008).

B. Venue

1. Standard

Pursuant to Federal Rule of Civil Procedure 12(b)(3),
may move to dismiss a claim for improper venue.

challenges
venue
No.

in

venue,

the

the

forum is

3:09-CV-066,

2010

(citing

Pinson

v.

2006)),

report

and

Ga.

July 29,

plaintiff bears
proper.
WL

192

recommendation

2010).

When the defendant

burden

Simbaqueba v.

2990042,

Rumsfield,

the

at

*2

Fed.

adopted,

of

U.S.

(S.D.

Appx.

a party

Dep't

Ga.

May

811,

2010

showing that

817

WL

of

Def.,

28,

2010)

(11th

Cir.

2990041

(S.D.

"In considering a motion under Rule 12(b)(3),

a court must accept the facts in the plaintiff's complaint as true.
when a Rule 12(b)(3)

However,
of
Id.
and

fact,

the

court

may

motion is predicated upon key issues

consider

matters

outside

the

pleadings."

Where there is a conflict between the complaint's allegations
evidence

reasonable

inferences

the plaintiff.
CV-131,

outside

Id.;

of
and

the

pleadings,

resolve all

Eagle N. Am.,

2008 WL 1891475,

at *1 n.3

a

factual

Inc.

court

must

conflicts

v. Tronox,

(S.D. Ga. Apr.

29,

draw

in

LLC,

all

favor of

No.

4:07-

2008).

"A civil suit to enforce the Copyright Act may be brought in

any district *in which the defendant or his agent resides or may be

3 For now,

the Court pretermits the question of whether the facts set

forth in Plaintiff's response would satisfy the
the

Due

Process

Clause.

Georgia long-arm statute or

found.'"

Palmer

v.

(quoting 28 U.S.C.

Braun,

376

F.3d

§ 1400(a)).

1254,

1259

"A defendant

(11th

'may be

district in which he could be served with process;
district

which

defendant."

may

assert

personal

Id.; see also Foxworthy,

well settled that

Cir.

found'

that

Supp.

in a

is,

in a

over

jurisdiction

879 F.

2004)

the

at 1207

("It is

. . . venue in copyright actions is coextensive

with jurisdiction.").
2. Application
As

stated

in

the

sufficient

allegations

Defendant.

Therefore,

previous

pursuant to 28 U.S.C.

to

section,

establish

Plaintiff

not

made

jurisdiction

personal

has

over

the Complaint also fails to establish venue
§ 1400(a).

C. Pro Se Pleading Considerations

The
matter

Court

pro

se.

construed.

party

a

1369

court

or

sustain

to
an

GJR

license

action.

certain

667,

670

Invs.,

(11th Cir.

rewrite

meet

that

Therefore,

See

F.3d 1359,

give

recognizes

to

an

(11th Cir.

his
Inc.

as

otherwise
Pro

se

burdens.

1990) .

Also,

is

pleadings
v.

1998).

serve

Id.

essential

Plaintiff

Cnty.

should

of

However,

de

proceeding

facto

counsel

Fla.,

for

pleading
are

See

v.

is

liberally

Escambia,

litigants

there

this

132

this leniency does not

deficient

Brown

be

in

pro

se

order

to

required

to

in

still

Crawford,

a general

a

906

rule

F.2d

in the

Eleventh Circuit that "[w]hen it appears that a pro se plaintiff's

complaint,

if

district court

more

carefully

drafted,

might

state

should give the pro se plaintiff an

a

claim,

the

opportunity to

amend

his

Jemison

complaint

v.

Mitchell,

instead
380

of

Fed.

dismissing
Appx.

(citing Bank v. Pitt, 928 F.2d 1108,

904,

it

with
(11th

907

prejudice."
Cir.

1112 (11th Cir.

2010)

1991)).

Even giving Plaintiff every benefit as a pro se litigant,
Complaint's allegations do not establish personal
venue.

jurisdiction and

Although the Court agrees with Defendant that Plaintiff has

failed
Court

the

to
will

adequately
deny

Plaintiff

an

addresses

the

plead

personal

Defendant's

opportunity

pleading

motion

to

jurisdiction
to

submit

dismiss
an

deficiencies

in

Amended

and

venue,

order

to

the
allow

Complaint

identified

in

this

that

Order.

Given that Plaintiff has failed to establish personal jurisdiction
and venue,

the Court will also deny Plaintiff's motion for summary

judgment.4

III.

CONCLUSION

For the reasons set forth above,

(doc. no.

10) and Plaintiff's motion for summary judgment (doc. no.

11) are DENIED.

within

Plaintiff is DIRECTED to file an Amended Complaint

twenty-one

Complaint

plead

or

Defendant's motion to dismiss

is

(21)

filed,

otherwise

days

of

Defendant

this

shall

respond.

have

Within

Defendant's pleading or other response,
4

Further,

judgment

later

if

Plaintiff

in this

seeks

proceeding,

Order.

to

Once

twenty-one

twenty-one

the

Amended

(21)

(21)

days

days

to

of

the parties SHALL confer as

file

another

motion

he should reference

for

Federal

summary

of Civil

Procedure 56.
His current motion for summary judgment is not supported by
reference to record materials which demonstrate the absence of a genuine
issue of material fact.
See Celotex Corp. v. Catrett, 477 U.S. 317, 322-24
(1986)

(explaining Rule 56 burdens).

provided in the Rule 26 Instruction Order

(doc no. 3)

and submit a

report outlining their discovery plan within fourteen (14)
the

conference.

Rule

26

Rule

26

days of

These deadlines supersede those contained in the

Instruction Order.
Instruction

Order

All
not

other provisions

revised

herein

of

remain

in

the

Court's

full

force

and effect.

ORDER
November,

ENTERED

at

Augusta,

Georgia,

this

/ /— day

2013.

HALL

UNITED/ STATES

DISTRICT JUDGE

DISTRICT

OF GEORGIA

of