BELL v. ARRUDA

Filing 11

ENTRY on Defendant's Motion to Dismiss - Mr. Arruda's Motion to Dismiss (Dkt. 6 ) is GRANTED. Mr. Bell's claims against Mr. Arruda are DISMISSED with prejudice. Signed by Judge Tanya Walton Pratt on 3/7/2014. (TRG)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
RICHARD N. BELL,
Plaintiff,
v.
MARK ARRUDA,
Defendant.

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ENTRY ON DEFENDANTS MOTION TO DISMISS
This matter is before the Court on Defendant Mark Arruda’s (“Mr. Arruda”) Motion to
Dismiss Plaintiff Richard N. Bell’s (“Mr. Bell”) complaint on the basis of personal jurisdiction
and failure to state a claim (Dkt. 6).

Finding the Court lacks personal jurisdiction, and

alternatively, that Mr. Bell has failed to state a claim for relief, Mr. Arruda’s Motion is
GRANTED.
I. BACKGROUND
Mr. 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. Mr. Bell alleges that each Defendant
downloaded or took the Indianapolis Photo without his permission for use on Defendants’
websites for commercial use. Mr. Bell notified Defendants of the alleged infringing use and
demanded payment.
Mr. Arruda is a citizen of the State of Massachusetts.

He is the operator of

“AllansGraphics.com”, out of his home in Massachusetts. The website is an image-sharing

website whereby users upload photographs to share. Users must declare that they own the
images they upload. On June 22, 2011, Mr. Bell informed Mr. Arruda that he owned the
copyright to the Indianapolis Photo that was uploaded to AllansGraphics.com. Mr. Arruda
immediately removed the photograph from the website and told Mr. Bell such. Mr. Arruda does
not know who uploaded the photograph.
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–
83.
When reviewing a 12(b)(6) motion, the Court takes all well-pleaded allegations in the
complaint as true and draws all inferences in favor of the plaintiff. Bielanski v. Cnty. of Kane,
550 F.3d 632, 633 (7th Cir. 2008) (citations omitted). However, the allegations must “give the

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defendant fair notice of what the . . . claim is and the grounds upon which it rests” and the
“[f]actual allegations must be enough to raise a right to relief above the speculative level.”
Pisciotta v. Old Nat’l Bancorp, 499 F.3d 629, 633 (7th Cir. 2007) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). Stated differently, the complaint must include “enough
facts to state a claim to relief that is plausible on its face.” Hecker v. Deere & Co., 556 F.3d 575,
580 (7th Cir. 2009) (citations omitted). To be facially plausible, the complaint must allow “the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
III. DISCUSSION
A.

Review of Magistrate Judge’s Decision
As an initial matter, Mr. Bell’s request to review the Magistrate Judge’s decision that is

contained within his Response in Opposition (Dkt. 9) 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. Mr. Bell’s request is related to his Response, but
seeks additional and independent measures, which is governed by a separate procedure. Given
the errors in form, the Court will not decide Mr. Bell’s collateral request. See Local Rule 1-3.
B.

Personal Jurisdiction
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

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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
472.
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
Cir. 2002).

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,

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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
personal jurisdiction.

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 Illinois 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. Arruda
deliberately targeted or exploited the Indiana market. Mr. Bell argues that Mr. Arruda’s website
has generated revenue, $446.96, 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,

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there is similarly no indication of advertising, revenue, or any interaction between Mr. Arruda
and the Indiana market. Therefore, Mr. Bell has not established the necessary minimum contacts
to hale Mr. Arruda 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. Arruda “should have been aware that providing an open platform in which anyone could
upload any picture to his Website may cause legal issues.” Dkt. 9 at 11. 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. Arruda
declared that he does not claim ownership of the photographs on AllansGraphics.net, and that he
does not know who uploaded the photograph, he did not profit from the photograph, and did not
sell the photograph to others. Dkt. 6-1. Mr. Bell has not made a responsive showing that Mr.
Arruda intentionally infringed Mr. Bell’s copyright and directed that conduct toward Indiana.
Therefore, personal jurisdiction does not exist under the effects test.
C.

Failure to State a Claim
Alternatively, Mr. Bell has alleged, but has not shown, that he is entitled to relief. His

Complaint contains formulaic labels and conclusions, but not facts. For example, the complaint
under his copyright claim generically alleges that all—originally, twenty-two in total—
Defendants: downloaded the Indianapolis Photo; willfully, recklessly, and falsely claimed that it

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owned the copyright to the photograph; published the photograph for commercial use; engaged
in unfair trade practices and competition; and willfully engaged in these acts with oppression,
fraud, and malice. See Dkt. 5 at 7–11. The Complaint alleges under Mr. Bell’s theft claim all of
the preceding allegations and that the Defendants knowingly or intentionally exerted
unauthorized control over Mr. Bell’s property and therefore have committed criminal
conversion. See Dkt. 5 at 13.
While specific facts are not necessary, Mr. Bell is required to do more than recite legal
conclusions of conduct with generic applicability to various defendants. “Rule 8 marks a notable
and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does
not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.”
Iqbal, 556 U.S. at 678–79. Legal conclusions are not afforded the assumption of truth. Id. at
679.
Here, Mr. Bell’s complaint is similar to the conclusory complaint at issue in Twombly.
See 550 U.S. at 551 (quoting complaint); Iqbal, 556 U.S. at 679 (noting the complaint in
Twombly was “flatly pleaded” as a legal conclusion). It is also similar to the deficient allegations
in Iqbal. There the respondent pleaded that “petitioners knew of, condoned, and willfully and
maliciously agreed to subject [him] to harsh conditions of confinement as a matter of policy,
solely on account of [his] religion, race, and/or national origin and for no legitimate penological
interest.” Iqbal, 556 U.S. at 680 (internal quotation marks omitted; alteration in original). The
Supreme Court held that “[t]hese bare assertions, much like the pleading of conspiracy in
Twombly, amount to nothing more than a ‘formulaic recitation of the elements’ of a
constitutional discrimination claim . . . . As such, the allegations are conclusory and not entitled
to be assumed true.” Id. at 680–81 (quoting Twombly, 550 U.S. at 555).

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Like in these cases, the Court will not afford the assumption of truth to the legal
conclusions in Mr. Bell’s Complaint. Neither does the Court find any factual allegations that are
not legal conclusions, which could entitle him to relief and satisfy the standard of review.
IV. CONCLUSION
Accordingly, Mr. Arruda’s Motion to Dismiss (Dkt. 6) is GRANTED. Mr. Bell’s claims
against Mr. Arruda are DISMISSED with prejudice.

SO ORDERED.
03/07/2014
Date: ___________

________________________
Hon. Tanya Walton Pratt, Judge
United States District Court
Southern District of Indiana

DISTRIBUTION:
Richard N. Bell
BELL LAW FIRM
[e-mail]
David F. Hurley
HURLEY & HURLEY PC
[e-mail]

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