BELL v. GREG BAYERS, LLC et al
ENTRY on Defendant Brzycki's Motion to Dismiss - Mr. Brzycki's Motion to Dismiss (Dkt. 77 ) is GRANTED. Mr. Bell's claims against Mr. Brzycki are DISMISSED with prejudice. Signed by Judge Tanya Walton Pratt on 3/7/2014. (TRG) (copy mailed to Peter Brzycki) Modified on 3/7/2014 (TRG).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
RICHARD N. BELL,
FRANK KIRCHNER, TEAM CHAMPION,
ALEX BRUNI, and PETER BRZYCKI,
) Case No. 1:13-cv-00012-TWP-DKL
ENTRY ON DEFENDANT BRZYCKI’S MOTION TO DISMISS
This matter is before the Court on Defendant Peter Brzycki’s (“Mr. Brzycki”) Motion to
Dismiss (Dkt. 76). Mr. Brzycki contends this Court does not have jurisdiction over him. For the
reasons below, the Court agrees and the Motion is GRANTED.
Plaintiff Richard N. Bell owns the copyright to a photograph of the Indianapolis skyline
(“Indianapolis Photo”) that he took in March 2000. It was first published on the website
“Webshots” on August 29, 2000, and has been recently published on Mr. Bell’s personal
website. It was registered on August 4, 2011, with the United States Copyright Office. In his
complaint, Mr. Bell alleges that each Defendant downloaded or took the Indianapolis Photo
without his permission for use on each Defendants’ respective websites for commercial use. Mr.
Bell notified Defendants of the alleged infringing use and demanded payment.
Mr. Brzycki is a citizen of the State of California and the owner of the website
“okctalk.com.” The website is an online forum and anyone can register to join the forum.
Members of the forum write and respond to posts, and can upload pictures. The Indianapolis
Photo was uploaded to the website by a member of the website’s online forum. After this
lawsuit was filed, the Indianapolis Photo was removed.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(2) requires dismissal of a claim where personal
jurisdiction is lacking. After the defendant moves to dismiss under Rule 12(b)(2), “the plaintiff
bears the burden of demonstrating the existence of jurisdiction.” Purdue Research Found. v.
Sanofi–Synthelabo, S.A., 338 F.3d 773, 782 (7th Cir. 2003). The extent of plaintiff’s burden is
dependent upon the method in which the court determines the issue of personal jurisdiction. Id.
Where, as here, the court determines personal jurisdiction based only on reference to
submissions of written materials, the plaintiff simply needs to make a prima facie case of
personal jurisdiction. GCIU–Employer Ret. Fund v. Goldfarb Corp., 565 F.3d 1018, 1023 (7th
Cir. 2009). In determining whether the plaintiff has met the prima facie standard, the plaintiff is
entitled to a favorable resolution of all disputed relevant facts. uBID, Inc. v. GoDaddy Grp., Inc.,
623 F.3d 421, 423–24 (7th Cir. 2010). If the defendant has submitted evidence in opposition to
the implementation of jurisdiction, however, “the plaintiff must go beyond the pleadings and
submit affirmative evidence supporting the exercise of jurisdiction.” Purdue, 338 F.3d at 782–
Application for Stay and Review of Magistrate’s Decision
As an initial matter, the Court will address Mr. Bell’s request that the Court reconsider
the Magistrate Judge’s denial of a motion for extension of time. Within his Response in
Opposition (Dkt. 90), Mr. Bell states that the “Magistrate Judge’s May 21 ruling is clearly an
abuse of discretion and should be overturned. ” This motion contained within the Response brief
will not be considered by the Court. Local Rule 7-1 states, “A motion must not be contained
within a brief, response, or reply to a previously filed motion, unless ordered by the Court.”
Although pro se filings are to be construed liberally, Mr. Bell is a licensed attorney in the State
of Indiana, and signs his pleadings with his attorney number and law firm name. Further, Mr.
Bell’s use of his Response to make additional requests is more egregious than Mr. Brzycki’s—a
non-lawyer pro se litigant—combination of motion to dismiss and brief in support. Mr. Bell’s
requests are related to his Response, but seek additional and independent measures, including the
apparent review of a Magistrate Judge’s order. Given the errors in form, the Court will not
decide Mr. Bell’s collateral requests. See Local Rule 1-3.
A district court must undertake and satisfy a two-step analysis in order to properly
exercise personal jurisdiction over a non-resident defendant. First, the exercise of personal
jurisdiction must comport with the state’s long-arm statute; second, the exercise must comport
with the Due Process Clause of the Constitution. Purdue, 338 F.3d at 779. Because Indiana’s
long-arm statute, Indiana Rule of Trial Procedure 4.4(a), “reduce[s] analysis of personal
jurisdiction to the issue of whether the exercise of personal jurisdiction is consistent with the
[f]ederal Due Process Clause,” the Court only needs to consider the second step of the analysis.
LinkAmerica Corp. v. Albert, 857 N.E.2d 961, 967 (Ind. 2006).
Due process requires that the defendant have “certain minimum 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 Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)).
These minimum contacts “must have a basis in ‘some act by which the defendant purposefully
avails itself of the privilege of conducting activities within the forum [s]tate, thus invoking the
benefits and protections of its laws.’” Asahi Metal Indus. Co. v. Super. Ct. of Cal., Solano Cnty.,
480 U.S. 102, 109 (1987) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985)).
Such purposeful availment is required to ensure that defendants may reasonably anticipate what
conduct will subject them to the jurisdiction of a foreign sovereign. Burger King, 471 U.S. at
Personal jurisdiction may be either specific or general, but only specific jurisdiction
needs to be considered here. Specific jurisdiction exists “for controversies that arise out of or are
related to the defendant’s forum contacts.” Hyatt Int’l Corp. v. Coco, 302 F.3d 707, 713 (7th
It “requires that the defendant purposefully availed itself of the privilege of
conducting activities within the forum state so that the defendant reasonably anticipates being
haled into court there.” LinkAmerica, 857 N.E.2d at 967 (citation omitted). A single contact
with the forum state may satisfy the standard of minimum contacts if the contact produces a
substantial connection with the forum state and the connection is related to the lawsuit. Id.
However, a defendant cannot be brought into a jurisdiction “solely as a result of random,
fortuitous, or attenuated contacts or of the unilateral activity of another party or a third person.”
Id. (quoting Burger King, 471 U.S. at 475). This inquiry “may be condensed to three essential
requirements: (1) the defendant must have purposefully availed himself of the privilege of
conducting business in the forum state or purposefully directed his activities at the state; (2) the
alleged injury must have arisen from the defendant’s forum-related activities; and (3) the
exercise of jurisdiction must comport with traditional notions of fair play and substantial justice.”
Felland v. Clifton, 682 F.3d 665, 673 (7th Cir. 2012) (internal citations omitted).
Cases involving the internet offer their own unique set of challenges when determining
The Seventh Circuit has warned that “[c]ourts should be careful in
resolving questions about personal jurisdiction involving online contacts to ensure that a
defendant is not haled into court simply because the defendant owns or operates a website that is
accessible in the forum state, even if that site is ‘interactive.’” be2 LLC v. Ivanov, 642 F.3d 555,
558 (7th Cir. 2011) (quoting Ill. v. Hemi Grp., LLC, 622 F.3d 754, 760 (7th Cir. 2010)). A
defendant must in some way target the forum state’s market. Id. “If the defendant merely
operates a website, even a ‘highly interactive’ website, that is accessible from, but does not
target, the forum state, then the defendant may not be haled into court in that state without
offending the Constitution.” Id.
The record before the Court contains no allegation or evidence that Mr. Brzycki
deliberately targeted or exploited the Indiana market. Mr. Bell argues that Mr. Brzycki’s website
has generated revenue, and that some of that revenue may have derived from Indiana residents or
the use of the Indianapolis Photo. In be2 LLC, the Seventh Circuit held that contact with Illinois
was too attenuated when twenty users of the website “be2.net” identified with Illinois, when
there was no evidence that the website’s owner targeted the Illinois market. Here, there is
similarly no indication of advertising, revenue, or any interaction between Mr. Brzycki and the
Indiana market. Therefore, Mr. Bell has not established the necessary minimum contacts to hale
Mr. Brzycki into this Court.
Mr. Bell additionally relies on the “effects test” to establish jurisdiction. “The effects test
allows a court to exert personal jurisdiction over a defendant only if it: (i) commits intentionally
tortious actions, (ii) which are expressly aimed at the forum state, (iii) which cause harm to the
plaintiff in the forum state which the defendant knows is likely to be suffered.” Labtest Int’l,
Inc. v. Ctr. Testing Int’l Corp., 766 F. Supp. 2d 854, 861 (N.D. Ill. 2011). Here, Mr. Bell argues
that Mr. Brzycki “should have been aware that providing an open platform in which anyone
could upload any picture to his Website may cause legal issues.” Dkt. 90 at 13. Following Mr.
Bell’s reasoning would require the Court to extend the reach of the effects test, and the Court
declines to do so. See Richter v. INSTAR Enters. Int’l, Inc., 594 F. Supp. 2d 1000, 1012 (N.D.
Ill. 2009). Copyright infringement does not require any particular state of mind, id., and further,
Mr. Brzycki declared that a member of his website uploaded the Indianapolis Photo—not Mr.
Brzycki himself—and the photograph has since been removed. Dkt. 77. Mr. Bell has not made
a responsive showing that Mr. Brzycki intentionally infringed Mr. Bell’s copyright and directed
that conduct toward Indiana. Therefore, personal jurisdiction does not exist under the effects
Accordingly, Mr. Brzycki’s Motion to Dismiss (Dkt. 77) is GRANTED. Mr. Bell’s
claims against Mr. Brzycki are DISMISSED with prejudice.
Hon. Tanya Walton Pratt, Judge
United States District Court
Southern District of Indiana
3587 Cambria Court
Thousand Oaks, California 91360
Richard N. Bell
BELL LAW FIRM
F. Joseph Jaskowiak
HOEPPNER WAGNER & EVANS LLP
Holiday W. Banta
ICE MILLER LLP
Trezanay Michelle Atkins
THE BRAND INFRINGEMENT FIRM
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