Fasoli et al v. Voltage Pictures LLC et al.

Filing 43

MEMORANDUM Opinion and Order: Signed by the Honorable Robert W. Gettleman on 12/22/2014 Mailed notice(ks, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
FRANCO FASOLI (a/k/a “JAZ”),
NICOLAS SANTIAGO ROMERO
ESCALADA (a/k/a “EVER”) AND DEREK
SHAMUS MEHAFFEY (a/k/a “OTHER”),
Plaintiffs,

VOLTAGE PICTURES, LLC,
THE ZANUCK CO. D/B/A ZANUCK
INDEPENDENT, MEDIAPRO PICTURES,
WELL GO USA INC., AMPLIFY RELEASING,
DAVID WARREN, TERENCE VANCE
GILLIAM, AND JOHN DOES 1-10,
Defendants.

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No. 14 C 6206
Judge Robert W. Gettleman

MEMORANDUM OPINION AND ORDER
Plaintiffs Franco Fasoli (“Jaz”), Nicolas Santiago Romero Escalada (“Ever”), and Derek
Shamus Mehaffey (“Other”), filed a three-count complaint against defendants Voltage Pictures,
LLC (“Voltage”), The Zanuck Co. (“Zanuck”), MediaPro Pictures (“MediaPro”), Well Go USA,
Inc. (“Well Go”), Amplify Releasing (“Amplify”), David Warren, Terrence Gilliam, and ten
unnamed defendants, alleging: (1) copyright infringement in violation of 17 U.S.C. § 501 (Count
I); (2) unfair trade practices in violation of 815 ILCS 510/1 et seq. (Count II); and (3) consumer
fraud and deceptive business practices in violation of 815 ILCS 505/1 et seq. (Count III). On
September 22, 2014, plaintiffs filed a motion for preliminary injunction, which has been fully
briefed. Defendants Voltage and Amplify have filed the instant motion to transfer venue from
this court to the United States District Court for the Central District of California pursuant to 28

U.S.C. § 1404(a). Defendants Zanuck and Well Go have joined defendants’ motion. For the
reasons stated below, the motion is granted.
BACKGROUND1
Plaintiffs are international visual artists who, in December 2010, painted a mural in latex
and spray-paint on Fitz Roy Street in Buenos Aires, Argentina. The mural is located in a wellknown area referred to as zona de graffiti (“street art zone”), and is signed only with plaintiffs’
pseudonymous, “OTHERJAZEVER.” Plaintiffs Jaz and Ever, both citizens of Argentina, later
registered the mural with the Argentinian Copyright Office under the title Castillo. Plaintiff
Other, a Canadian citizen, is not referenced on the copyright. The copyright became effective on
November 15, 2013.
According to defendants, California based production companies, Voltage and Zanuck,
began producing the film “The Zero Theorem” in 2012. Defendant Terry Gilliam directed the
film and defendant David Warren served as the movie’s production designer. The movie was
filmed in Romania with help from MediaPro, a Romanian production company. “The Zero
Theorem” was first exhibited at film festivals in Italy and Texas in the Fall of 2013 and was later
released, on a limited scale, in the United States in 2014. Defendants assert that the film has
principally been distributed throughout the United States via digital streaming services.
Amplify, a film distributor with its principal place of business in Los Angeles, California, has
been responsible for distribution and promotion in the United States. According to plaintiffs,

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In considering a motion to transfer for improper venue, the court accepts all
well-pleaded allegations in the complaint as true unless controverted by defendants' affidavits.
QSN Indus., Inc. v. Sanderson, No. 95-C-3356, 1995 WL 743751, at *1 (N.D. Ill. Dec. 13,
1995).
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defendant Well Go, a Texas based company, has collaborated with Amplify to distribute the
movie on DVD and Blu-Ray throughout the United States.
“The Zero Theorem” is a science fiction film about a computer programer, Qohen Leth,
working on a formula that may reveal the meaning of life. Plaintiffs allege that much of the
movie takes place in the main character’s home, a chapel that has been partially converted into
residential space. Plaintiffs complain that in violation of their copyright, the outside of the
chapel, which is shown throughout the movie, is painted with a recreation of plaintiffs’ mural,
Castillo. Plaintiffs allege that screen-shots of the chapel’s exterior, which includes plaintiffs’
artwork, are “used repeatedly by the filmmakers in promotional materials,” including on the
film’s official websites and on various social media sites maintained by defendants.
DISCUSSION
A.

Legal Standard
28 U.S.C. § 1404(a) provides that, “For the convenience of parties and witnesses, in the

interest of justice, a district court may transfer any civil action to any other district or division
where it might have been brought.” The court may transfer a case to another jurisdiction when:
(1) venue is proper in both the transferor and the transferee courts; (2) transfer is for the
convenience of the parties and witnesses; and (3) transfer is in the interest of justice. Moore v.
Motor Coach Indus., Inc., 487 F. Supp. 2d 1003, 1006 (N.D. Ill. 2007). The moving party has
the burden of showing that the circumstances favor a transfer. Id. A transfer must promote the
efficient administration of justice, rather than simply shift the inconvenience from one party to
the other. See Black v. Mitsubishi Motors Credit of America, Inc., No. 94-C-3055, 1994 WL

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424112, at *1 (N.D. Ill. Aug. 10, 1994). District courts have broad discretion in deciding
whether transfer is warranted. Cote v. Wadel, 796 F.2d 981, 985 (7th Cir. 1986).
B.

Analysis
In opposition to defendants’ motion to transfer, plaintiffs first contend that defendant

Voltage cannot claim that the Northern District of Illinois is inconvenient because it has filed
numerous actions here through a subsidiary. In support of this argument, plaintiffs attach to their
response, as Exhibit A, a list of cases with variations of the case caption Dallas Buyers Club,
LLC v. Does. Plaintiffs’ contention fails because there is nothing to indicate that these cases
arise from actions taken outside this district and/or involve defendants that do not reside here.
Plaintiffs next argue that defendants’ motion is premature because not all defendants
have filed answers or appeared in this case. However, as defendants point out, plaintiffs
similarly filed their motion for preliminary injunction before the instant motion to transfer was
filed and before all of the parties had been properly served. Additionally, two other defendants,
Zanuck and Well Go, have subsequently joined in the instant motion to transfer, and all
defendants, with the exception of MediaPro, have been served or have waived service at this
time. Consequently, defendants’ motion is not untimely.
In their response brief, plaintiffs do not contest that venue is proper in the Central District
of California or that transfer is in the interest of justice. As such, the court has discretion to
transfer the case if doing so is for the convenience of the parties and witnesses and in the interest
of justice.2 “In determining whether a forum is more convenient, the court must consider the

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The court notes that because defendants have moved for a transfer of venue before
moving to dismiss for lack of personal jurisdiction or asserting lack of personal jurisdiction as an
(continued...)
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private interests of the parties as well as the public interest of the court.”3 Aldridge v. Forest
River, Inc., 436 F. Supp. 2d 959, 960 (N.D. Ill. 2006). The factors related to the parties' private
interests include: “‘(1) the plaintiffs’ choice of forum; (2) the situs of material events; (3) the
relative ease of access to sources of proof; (4) the convenience of the parties; and (5) the
convenience of the witnesses.’” Spread Spectrum Screening, LLC v. Eastman Kodak Co., No.
10-C-1101, 2010 WL 3516106, at *3 (N.D. Ill. Sept. 1, 2010), quoting Amoco Oil Co. v. Mobile
Oil Corp., 90 F. Supp. 2d 958, 960 (N.D. Ill. 2000).
Plaintiffs argue that defendants have failed to establish that the Central District of
California is more convenient than this venue. In support of this position, plaintiffs quote Fink
v. Declassis, 738 F. Supp. 1195, 1198 (N.D. Ill. 1990), for the proposition that defendants must
“demonstrate that the balance of the factors weighs heavily in favor of transfer.” However, the
Fink court never made this holding. Instead, the court merely stated that “[b]efore a case will be
transferred, there must be a clear balance of inconvenience.” Id.
Generally, the plaintiff's choice of forum is given great weight. Spread Spectrum
Screening, 2010 WL 3516106, at *3. However, as is the case here, where the plaintiff's forum is

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(...continued)
affirmative defense, the moving defendants have waived any objection to personal jurisdiction.
Berol Corp. v. BIC Corp., No. 02-C-0559, 2002 WL 1466829, at *1 (N.D. Ill. July 8, 2002).
Consequently, defendants’ motion concedes jurisdiction to this court, thereby satisfying the
requirement under section 1404(a) that “both the transferor and transferee courts must have
jurisdiction over a defendant in order to effect a change of venue under § 1404(a).” Id.
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Convenience of the parties should not be confused with the requirement articulated in
28 U.S.C. § 1404(a), which provides a transfer of venue must be in the interest of justice. See
Coffey v. Van Dorn Iron Works, 796 F.2d 217, 220 (7th Cir. 1986) (“The ‘interest of justice’ is a
separate component of a § 1404(a) transfer analysis,” inquiring into the “efficient administration
of the court system.”)
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not its home forum and the chosen forum lacks significant contacts with the cause of action, the
plaintiff's choice becomes merely one of several factors and is entitled to little weight. Id.
Plaintiffs Jaz and Ever are citizens and residents of Argentina and plaintiff Other is a Canadian
citizen residing in San Francisco, California. Not only is this district not home to any of the
plaintiffs, it does not have any, let alone significant, contacts with the cause of action. The
movie was filmed and produced in Romania, the set and infringing imagery was created in
Romania, and any subsequent work in the United States occurred in Los Angeles. As defendants
point out, the only connection plaintiffs have to Illinois or this district is that some of their
attorneys are located here. However, this consideration is entitled to little weight, SwingAway
Sports Prod., Inc. v. Escalade, Inc., No. 11-C-7949, 2012 WL 1431277, at *3 (N.D. Ill. Apr. 23,
2012), especially when plaintiffs’ chosen law firm has five offices in California, including one in
Los Angeles.
Plaintiffs rely on FTI Consulting, Inc. v. Merit Mgmt. Grp., LP, No. 11-C-7670, 2014
WL 3858365, at *2 (N.D. Ill. Aug. 5, 2014), to argue that where “neither the Northern District of
Illinois nor the proposed transferee forum has a strong connection to the material events in [the]
case, which occurred in [a third venue][,] [t]he witness and parties are located across the country,
. . . the fact that the plaintiff chose the Northern District of Illinois as its forum is significant.”
However, FTI Consulting is inapposite here because the Central District of California does have
a strong connection to the events of this case. Although plaintiffs argue in their response brief
that “the operative material events in this case occurred mostly in Romania, not in the Central
District of California,” plaintiff has alleged in other pleadings that the production of the film in
Romania was just “the first instance of infringement,” and that there are currently “many

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ongoing infringing activities currently occurring here in the United States.” Many of these
allegedly infringing activities occurred in Los Angeles, where work on the film continued
following production in Romania, including marketing, sales, financing, production of the film’s
trailer, and the management of defendants’ promotional internet sites. Because plaintiffs are
foreigners to Illinois and this district has absolutely no contacts with the cause of action, the fact
that plaintiffs’ chose the Northern District of Illinois has little significance. Similarly, because
Illinois has no connection to the situs of material events, the second factor of the court’s private
interest analysis also weighs in favor of transfer.
Contrary to FTI Consulting, the remaining private interest factors in this case do not
favor plaintiffs’ position. The third and fourth factors, ease of accessing proofs and the
convenience of the parties, also encourage transfer because more documentary evidence and
parties are located in the Central District of California than in the Northern District of Illinois.
Not a single party or piece of evidence is located in Illinois. Voltage and Zanuck are located in
Los Angeles, Amplify has offices in Los Angeles, and Gilliam and Warren, although citizens of
Great Britain, have residences in the Central District of California. Additionally, plaintiff Ever
lives much closer to the Central District of California than the Northern District of Illinois.
The Central District of California is also home to at least some documentary evidence, as
compared to Illinois, where none is located. Although some evidence may exist in Romania as
the site of the initial alleged infringement, plaintiffs have alleged ongoing infringing activities
that have much stronger ties to the Central District of California than to Illinois. Plaintiffs even
acknowledge that in order to account for the additional burden of litigating the case here “the
Court can order certain pretrial discovery in the Central District of California,” and that

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plaintiffs’ counsels’ Los Angeles office “can host depositions and receive documentation
production.” Given plaintiffs’ willingness to conduct part of the case in California, transfer to
the Central District of California is even more logical.
Because neither party has identified any non-party witnesses, the fifth private interest
factor is neutral. However, the court notes that because the Northern District of Illinois has no
connection to the events of this case, it is safe to assume that any such witnesses would not find
the Northern District of Illinois more convenient than the Central District of California.
Although largely unaddressed by plaintiffs, the court must also consider public interest
factors, which include: (1) the relation of the community to the occurrence at issue in the
litigation and the desirability of resolving the controversies in their locale; (2) the court’s
familiarity with the applicable law; and (3) the congestion of respective court dockets and the
prospect for earlier trial. Georgouses v. NaTec Resources, Inc., 963 F. Supp. 728, 730 (N.D. Ill.
1997). The first factor weighs in favor of transfer to the Central District of California because it
is where some of the acts related to this action occurred and allegedly continue to occur,
providing the Central District of California with a compelling interest in this case. See Carter v.
Clark Material Handling Co., No. 97-C-4424, 1998 WL 89244, *3 (N.D. Ill. Feb. 17, 1998).
Additionally, several of the parties are located there or have connections to the district.
The second factor also weighs in favor of transfer. The Central District of California is
of course familiar with the federal copyright infringement law at issue. Plotkin v. IP Axess, Inc.,
168 F. Supp. 2d 899, 905 (N.D. Ill. 2001). The Central District of California is also well
equipped to handle the two Illinois state law claims, as “courts often are called upon to decide
substantive legal questions based upon another state’s laws.” Id. Moreover, it is doubtful that

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plaintiffs can even maintain an action under Illinois law, and even if they can 17 U.S.C. § 501
likely preempts plaintiffs deceptive trade practices and consumer fraud claims. See, e.g.,
Defined Space, Inc. v. Lakeshore East, LLC, 797 F. Supp. 2d 896, 901-03 (N.D. Ill. 2011)
(dismissing as preempted by the federal copyright act plaintiffs’ claims alleging violations of
Illinois statutes prohibiting consumer fraud and deceptive business and trade practices).
Finally, the court must consider the dockets of the two districts in question. Plotkin, 168
F. Supp. 2d at 904 (utilizing Federal Court Management Statistics to evaluate the congestions of
each courts’ dockets and the prospect for an earlier trial). The median time from filing to trial in
the Northern District of Illinois as of June 2014 is 35.4 months, while the same interval is only
21.3 months in the Central District of California. Additionally, the median length of time for
disposition of all civil cases is 6.9 months in the Northern District of Illinois, but slightly shorter
in the Central District of California at 5.6 months. Although these statistics do not shed light on
the speed of litigating this specific type of case, generally the Central District of California is
likely to process the instant case sooner, titling this final factor slightly in favor of transfer.
Plaintiffs’ suggestion that the court set an early trial date to account for any differences between
time to trial here and in the Central District of California fails to recognize that this court already
has a dense schedule that cannot be easily manipulated to accommodate plaintiffs’ whims.
CONCLUSION
For the reasons discussed above, defendants’ motion to transfer venue to the Central
District of California is granted.

ENTER:

December 22, 2014
__________________________________________
Robert W. Gettleman
United States District Judge
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