Kapoor v. National Rifle Association of America
Filing
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MEMORANDUM Opinion and Order Signed by the Honorable John Z. Lee on 10/23/18.Mailed notice(ca, )
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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
Anish Kapoor,
Plaintiff,
v.
National Rifle Association
of America,
Defendant.
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Case No. 18 C 4252
Judge John Z. Lee
MEMORANDUM OPINION AND ORDER
London-based sculptor Anish Kapoor (“Kapoor”), who created and holds the
copyright for the Cloud Gate sculpture in Chicago, has brought a copyright
infringement claim against Defendant National Rifle Association of America (“the
NRA”), alleging that the NRA improperly reproduced and distributed a video of Cloud
Gate in violation of his exclusive copyright.
The NRA has filed a motion to dismiss for lack of personal jurisdiction or, in
the alternative, to transfer the case to the Eastern District of Virginia pursuant to
28 U.S.C. § 1404(a) [25]. Kapoor opposes the motion and moves for jurisdictional
discovery [35]. For the reasons stated herein, the Court denies Kapoor’s motion for
jurisdictional discovery [35] and grants in part and denies in part the NRA’s motion
to dismiss or transfer the case [25].
Background
Kapoor, who resides in London, England, completed the Cloud Gate sculpture
(affectionately known in Chicago as “the Bean”) in 2006, at which time it was
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installed in Chicago’s Millennium Park. Compl. ¶¶ 9, 12–13, ECF No. 1. Cloud Gate
is still located in Millennium Park and, while the physical sculpture is owned by the
City of Chicago, Kapoor holds the exclusive copyright.
Id. ¶¶ 12, 18–20.
The
sculpture “attract[s] tourists and artists from around the world” and is a “destination
site for many.” Id. ¶ 13.
Kapoor contends that, in June 2017, the NRA broadcasted “on television and
the internet” a video containing an image of Cloud Gate. Id. ¶¶ 14–15. The video,
titled either “The Clenched Fist of Truth” or “The Violence of Lies,” warns of “civil
unrest and violence, and states that the only way to save ‘our’ country from the ‘lies’
of the liberal media and the ‘liberal agenda’ is with the ‘clenched fist of truth.’” Id.
At or around the 17-second mark, Kapoor alleges, a “black-and-white image” of Cloud
Gate is shown “in its entirety.” Id. Kapoor contends that the NRA has violated his
exclusive copyright in Cloud Gate by “filming or videotaping it, making internal
copies, incorporating it into its video . . . and distributing and displaying it to the
public on television and through the internet.” Id. ¶¶ 21–22.
Legal Standard
A court that lacks personal jurisdiction over a defendant must dismiss the case
as to that party. See Fed. R. Civ. P. 12(b)(2). If a defendant moves to dismiss
pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(2), it places the burden on
the plaintiff to demonstrate that the court has personal jurisdiction over the
defendant. Purdue Research Found. v. Sanofi-Synthelabo, S.A., 338 F.3d 773, 782
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(7th Cir. 2003). In making this determination, the court will “read the complaint
liberally, in its entirety, and with every inference drawn in favor of” the plaintiff.
Cent. States, Se. & Sw. Areas Pension Fund v. Phencorp Reinsurance Co., 440 F.3d
870, 878 (7th Cir. 2006) (quoting Textor v. Bd. of Regents of N. Ill. Univ., 711 F.2d
1387, 1393 (7th Cir. 1983)). “The precise nature of the plaintiff’s burden depends
upon whether an evidentiary hearing has been held.” Purdue, 338 F.3d at 782. When
there is no dispute of material fact and a court rules solely based on the submission
of written materials, the plaintiff “‘need only make out a prima facie case of personal
jurisdiction.’” Id. (quoting Hyatt Int’l Corp. v. Coco, 302 F.3d 707, 713 (7th Cir. 2002)).
In making this determination, the court can consider affidavits and other supporting
materials.
See id.
The court must resolve any conflicts in the affidavits and
supporting materials in the plaintiff’s favor. Id. at 782–83.
When considering a Rule 12(b)(2) motion, “[f]ederal courts ordinarily follow
state law in determining the bounds of their jurisdiction over persons.” John Crane,
Inc. v. Shein Law Ctr., Ltd., 891 F.3d 692, 695 (7th Cir. 2018) (quoting Walden v.
Fiore, 571 U.S. 277, 283 (2014)). “The Illinois long-arm statute requires nothing more
than the standard for federal due process: that the defendant have sufficient contacts
with the forum state ‘such that the maintenance of the suit does not offend traditional
notions of fair play and substantial justice.’” Id. (quoting Brook v. McCormley, 873
F.3d 549, 552 (7th Cir. 2017)). And, as noted, it is the plaintiff’s burden to establish
a prima facie showing of jurisdiction. Id.
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Pursuant to 28 U.S.C. § 1404(a), “[f]or 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.” 28 U.S.C. § 1404(a).
Once an appropriate alternate forum is identified, a court makes a two-pronged
inquiry into both convenience and the interests of justice to decide whether transfer
is warranted. Research Automation, Inc. v. Schrader-Bridgeport Int’l, Inc., 626 F.3d
973, 978 (7th Cir. 2010). The movant has the burden of establishing, “by reference to
particular circumstances, that the transferee forum is clearly more convenient.”
Coffey v. Van Dorn Iron Works, 796 F.2d 217, 219–20 (7th Cir. 1986).
The factors relevant to the convenience inquiry include “the availability of and
access to witnesses, and each party’s access to and distance from resources in each
forum,” as well as “the location of material events and the relative ease of access to
sources of proof.” Research Automation, 626 F.3d at 978. As for the interests of
justice, a court will consider “docket congestion and likely speed to trial” in each
forum, “each court’s relative familiarity with the relevant law,” “the respective
desirability of resolving controversies in each locale,” and “the relationship of each
community to the controversy.”
Id.
The interest-of-justice inquiry “may be
determinative, warranting transfer or its denial even where the convenience of the
parties and witnesses points toward the opposite result.” Id. Because ruling on a
motion to transfer venue requires an “individualized, case-by-case consideration of
convenience and fairness,” the district court is afforded broad discretion and
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substantial deference in weighing the factors for and against transfer. Coffey, 796
F.2d at 219 (internal citation and quotation marks omitted).
Analysis
The NRA seeks dismissal of Kapoor’s complaint on the basis that the Court
lacks general or specific personal jurisdiction over it. Kapoor does not argue that the
NRA is subject to general jurisdiction in Illinois, but contends that he has established
a prima facie showing as to specific jurisdiction.
The key question in evaluating specific jurisdiction is whether it is “fair and
reasonable to call the defendant into the state’s courts to answer the plaintiff’s claim.”
uBID, Inc. v. GoDaddy Grp., Inc., 623 F.3d 421, 426 (7th Cir. 2010). To answer this
question in the affirmative, a defendant’s contacts with the forum state must directly
relate to or arise out of the challenged conduct. E.g., John Crane, 891 F.3d at 695–
96 (citing Brook, 873 F.3d at 552). This means that the “contacts should either bear
on the substantive legal dispute between the parties or relate to the operative facts
of the case.” GCIU–Emp’r Ret. Fund v. Goldfarb Corp., 565 F.3d 1018, 1024 (7th Cir.
2009).
Moreover, “[t]he exercise of specific jurisdiction must also comport with
traditional notions of fair play and substantial justice.” N. Grain Mktg., LLC v.
Greving, 743 F.3d 487, 492–93 (7th Cir. 2014). The relevant concerns are “the burden
on the defendant, the forum state’s interest in adjudicating the dispute, the plaintiff’s
interest in obtaining convenient and effective relief, the interstate judicial system’s
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interest in efficiently resolving controversies, and the shared interest of the states in
furthering fundamental substantive social policies.” GoDaddy, 623 F.3d at 432–33.
While “the contacts supporting specific jurisdiction can take many . . . forms,”
id. at 426, a paradigmatic example is when a defendant commits a tort in the forum
state, see Moncrief Oil Int’l Inc. v. OAO Gazprom, 481 F.3d 309, 314 (5th Cir. 2007),
or when it “deliberate[ly] and continuous[ly] exploit[s] . . . the market in a forum
state.” Mobile Anesthesiologists Chi., LLC v. Anesthesia Assocs. of Houston Metroplex,
P.A., 623 F.3d 440, 446 (7th Cir. 2010) (citing GoDaddy, 623 F.3d 421). At the same
time, a court must be mindful that it “cannot simply aggregate all of a defendant’s
contacts with a state—no matter how dissimilar in terms of geography, time, or
substance—as evidence of the constitutionally-required minimum contacts.”
GoDaddy, 623 F.3d at 429 (quoting RAR, Inc. v. Turner Diesel, Ltd., 107 F.3d 1272,
1277 (7th Cir. 1997)).
Here, the NRA argues that it should not be subject to specific personal
jurisdiction because its video was distributed nationwide and did not specifically
target Illinois. It characterizes the alleged tort as the “distributing and displaying”
of its video of Cloud Gate. Def.’s Mem. Supp. Mot. Dismiss or Transfer (“Def.’s Mem.
Supp.”) at 4, ECF No. 26. Kapoor, for his part, contends that the NRA is subject to
personal jurisdiction in Illinois because the video of Cloud Gate was taken without
authorization here.
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Any inquiry into specific jurisdiction must start with the claims.
Here,
Kapoor’s complaint alleges that the NRA infringed his exclusive copyright in multiple
ways, including: (1) “filming or videotaping it,” (2) “making internal copies,”
(3) “incorporating it into its video,” and (4) “distributing and displaying it to the public
on television and through the internet.” Compl. ¶ 22. The NRA focuses on the alleged
distribution of the video depicting the Bean and argues that it did not specifically
target residents of this district.
But the Copyright Act not only prohibits the
unauthorized distribution of a copyrighted work, see 17 U.S.C. § 106(3); it also
prohibits the unauthorized reproduction of the work, see id. § 106(1). And it is
undisputed that the video of Cloud Gate was taken in Illinois. Thus, the NRA’s
contacts with Illinois directly relate to or arise out of its alleged filming of Cloud Gate,
which necessarily occurred in Illinois and allegedly injured Kapoor. See John Crane,
891 F.3d at 695–96; see also Moncrief Oil Int’l Inc., 481 F.3d at 314 (holding that
“tortious conduct amounts to sufficient minimum contacts with the state by the
defendant to constitutionally permit courts within that state” to exercise personal
jurisdiction) (internal quotation marks and citation omitted); Ploense v. Electrolux
Home Prods., Inc., 882 N.E.2d 653, 659 (Ill. App. Ct. 2007) (explaining that
“commission of a tortious act within” the state is grounds for personal jurisdiction).
But wait, the NRA responds. The video of the Cloud Gate was taken by a thirdparty photographer who worked for an advertising agency retained by the NRA, not
by the NRA itself. Kapoor insists that the photographer was an “agent” of the NRA
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purposes of the jurisdictional analysis; the NRA disagrees.
Whether the
photographer in fact was the NRA’s agent is a question of fact that the Court cannot
resolve on the current record, see Spitz v. Proven Winners N. Am., LLC, 759 F.3d 724,
732 (7th Cir. 2014), and would ordinarily warrant jurisdictional discovery. See In re
Testosterone Replacement Therapy Prods. Liability Litig. Coordinated Pretrial
Proceedings, 136 F. Supp. 3d 968, 973 (N.D. Ill. 2015).
But because the Court
concludes—for the reasons discussed below—that this case should proceed in a
different forum, it declines to order such discovery here.
The NRA believes that this case should be transferred to the Eastern District
of Virginia, where it does not dispute jurisdiction.1 In support, the NRA points out
that it and its employees are located there, that decisions pertaining to the video were
made there, and that evidence pertaining to the video is located there. Additionally,
it argues that this district has “no connection to the underlying claim” because the
video was distributed nationwide, that Kapoor lives in London and thus has no
convenient connection to either district, and that the Eastern District of Virginia has
a reputation for resolving cases quickly.
The NRA characterizes its request as arising under the common-law doctrine of forum
non conveniens. Forum non conveniens is applicable only when the alternate forum is abroad,
or in rare circumstances where a state or territorial court would be more convenient.
Sinochem Int’l Co. Ltd. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 430 (2007). Where
the alternate forum is another federal district court, and that forum is of “superior
convenience,” 28 U.S.C. § 1404(a) has displaced the doctrine of forum non conveniens and
provides for transfer, rather than dismissal. In re Hudson, 710 F.3d 716, 718 (7th Cir. 2013).
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On balance, the Court agrees that the Eastern District of Virginia is a more
convenient forum in which to litigate this case. Kapoor does note that he has chosen
to litigate in Illinois, and a plaintiff’s choice “should rarely be disturbed.” In re
Bridgestone/Firestone, Inc., 420 F.3d 702, 704 (7th Cir. 2005). “Rarely, however, is
not never.” In re Nat’l Presto Indus., 347 F.3d 662, 664 (7th Cir. 2003) (collecting
cases). Here, the Court concludes that, although at least one possible tort (that is,
filming Cloud Gate without permission) occurred in Illinois, nearly all of the evidence
related to that tort will come from witnesses who do not reside in Illinois. And
Kapoor, a London resident, has no connection to Illinois other than the existence of
his sculpture here.
What is more, the other convenience factors under § 1404(a) weigh heavily in
favor of the NRA. For instance, the NRA is headquartered in Fairfax, Virginia, so
that location is far more convenient for it than Illinois. Similarly, many of the likely
witnesses in this case work at the NRA’s headquarters or nearby. And although it is
true that the convenience of witnesses employed by a party is entitled to little weight,
it is still a relevant factor. See, e.g., Hyatt Corp. v. Pers. Commc’ns Indus. Ass’n,
No. 04 C 4656, 2004 WL 2931288, at *4 (N.D. Ill. Dec. 15, 2004) (considering the
location of employee-witnesses when analyzing the convenience of the parties). This
is particularly the case here, where the convenience of non-party witnesses is a nonfactor because they all are located outside of Illinois and Virginia. Finally, documents
pertaining to this case are located at the NRA’s headquarters, which tilts slightly in
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favor of Virginia, although in this age of electronic discovery, documentary evidence
is easily transferable.
The interests of justice—the second element of the § 1404 inquiry—also weigh
in the NRA’s favor. The NRA has presented evidence that the Eastern District of
Virginia typically resolves cases faster than this district. See Def.’s Ex. D, U.S. Dist.
Ct. Judicial Caseload Profile, ECF No. 26-4. Moreover, it correctly contends that
Virginia has an interest in a dispute concerning the rights of its citizens to free
speech.
According to Kapoor, Illinois too has an interest in the Cloud Gate sculpture,
because it is a public work of art. And certainly the residents of this district are
justifiably proud of the Bean. What is more, the Bean is a very popular tourist
attraction. However, whether such general public interests have any relationship to
the issues raised in this lawsuit—Kapoor’s copyright versus the NRA’s First
Amendment right to advocate its view of the Second Amendment—is less clear. And
Kapoor has not provided any authority to support such a contention.
Other justice-related factors—such as each court’s relative familiarity with the
relevant law, and the respective desirability of resolving controversies in each
locale—are neutral.
In sum, the only factors under § 1404(a) weighing in the Plaintiff’s favor are
his choice of Illinois as a forum and the presence of the Cloud Gate sculpture here.
Weighing in the NRA’s favor are the convenience to it as a party and to its employees
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as witnesses, the ease of access to sources of proof, the likelihood of a faster resolution
in the Eastern District of Virginia, and Virginia’s interest in the controversy. On
balance, the Court finds that the factors weigh in favor of transfer to the Eastern
District of Virginia, so the NRA’s request to transfer this case is granted.
Conclusion
For the reasons stated herein, Plaintiff’s motion [35] for jurisdictional
discovery is denied. Defendant’s motion [25] is granted in part and denied in part.
This case is transferred to the Eastern District of Virginia forthwith and terminated
on this Court’s docket.
IT IS SO ORDERED.
ENTERED 10/23/18
__________________________________
John Z. Lee
United States District Judge
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