PHILPOT v. GRAY TELEVISION, INC.

Filing 27

ORDER ADOPTING REPORT AND RECOMMENDATIONS - CLOSED TRANSFER: For the reasons explained herein, the Court OVERRULES Gray's Objection, [Filing No. 24], and ADOPTS the Magistrate Judge's Report and Recommendation, [Filing No. 23 ]. Thus, Gray's Motion to Dismiss is DENIED, [Filing No. 7], and this Clerk is directed to TRANSFER this action to the Northern District of Indiana pursuant to 28 U.S.C. § 1406(a). The Clerk is also directed to TERMINATE Filing No. 25. Signed by Judge Jane Magnus-Stinson on 3/30/2015. Copy sent via US Mail to Plaintiff.(DW)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
LARRY G. PHILPOT,

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Plaintiff,
vs.
GRAY TELEVISION, INC.,
Defendant.

No. 1:14-cv-01977-JMS-DML

ORDER
Presently pending before the Court is Defendant Gray Television, Inc.’s (“Gray”),
Objection, [Filing No. 24], to the Magistrate Judge’s Report and Recommendation, [Filing No.
23], regarding Gray’s Motion to Dismiss Plaintiff Larry G. Philpot’s Complaint for Lack of
Jurisdiction, [Filing No. 7]. For the reasons set forth herein, the Court overrules Gray’s Objection
and adopts the ruling of the Magistrate Judge. [Filing No. 23.]
I.
BACKGROUND
On December 2, 2014, Mr. Philpot filed this action against Gray, alleging copyright
infringement claims. [Filing No. 1.] He alleges that Gray is headquartered in Georgia and owns
many television stations, including one based in Alexandria, Louisiana. [Filing No. 1 at 2.] Mr.
Philpot claims that Gray’s Louisiana station used a copyrighted photograph of Willie Nelson taken
by Mr. Philpot without Mr. Philpot’s permission and without attributing the photo to him, in
violation of various copyright laws. [Filing No. 1 at 3-4.]
On December 24, 2014, Gray filed a Motion to Dismiss for Improper Venue or, In the
Alternative, to Transfer Venue to the Western District of Louisiana. [Filing No. 7.] Mr. Philpot
opposed that motion, [Filing No. 14], and Gray replied in support, [Filing No. 16]. On January
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20, 2015, this Court referred Gray’s motion to the assigned Magistrate Judge, designating her to
conduct any necessary hearings and issue a report and recommendation regarding the proper
disposition of the motion pursuant to 28 U.S.C. § 636(b)(1)(B). [Filing No. 17.]
The assigned Magistrate Judge issued her Report and Recommendation on February 20,
2015, recommending that the Mr. Philpot’s action should not be dismissed but that it should be
transferred to the Northern District of Indiana pursuant to 28 U.S.C. § 1406(a) because venue in
this District is improper. [Filing No. 23.] Gray objects, [Filing No. 24], and the issue is now ripe
for this Court’s decision, [Filing No. 25; Filing No. 26].
II.
STANDARD OF REVIEW
Gray assumes that this Court’s review of the Magistrate Judge’s recommendation will be
de novo. [Filing No. 24.] Under de novo review, the Court is free to accept, reject, or modify the
recommended disposition. Fed. R. Civ. Pro. 72(b)(3). Mr. Philpot does not address the applicable
standard, but the Court notes that other district courts have reviewed magistrate judge
recommendations in the transfer context for clear error. See Thomas v. Exxon Mobil Oil Corp.,
2007 WL 1035159, at *1 (N.D. Ind. 2007) (“As Exxon is well aware, this Court is not in a position
to review Magistrate Judge Cherry’s decision de novo. Rule 72(a) of the Federal Rules of Civil
Procedure grant magistrate judges great latitude in resolving non-dispositive matters, such as [the
Magistrate’s recommendation to transfer the case].”); United Consumers Club, Inc. v. Prime Time
Mktg. Mgmt., Inc., 2008 WL 2572028, at *2 (N.D. Ind. 2008) (reviewing a recommendation that
a request for transfer be denied for clear error).
It is important to remember that this Court is essentially functioning as an appellate court
in this context. Thus, even under de novo review, “arguments not made before a magistrate judge
are normally waived.” United States v. Melgar, 227 F.3d 1038, 1040 (7th Cir. 2000). As the
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Seventh Circuit Court of Appeals has observed, “there are good reasons for the rule,” even in the
context of de novo review. Id. Failure to fully develop arguments before the magistrate judge may
prejudice a party, and “a willingness to consider new arguments at the district court level would
undercut the rule that the findings in a magistrate judge’s report and recommendation are taken as
established unless the party files objections to them.” Id.
Because the Court ultimately agrees with the Magistrate Judge’s recommendation and Mr.
Philpot does not dispute the applicable standard, the Court will apply de novo review. See Fed. R.
Civ. Pro. 72(b)(3) (applying de novo review to resolving timely objections to a dispositive motion).
That said, the Court will not consider any arguments that were not fully developed before the
Magistrate Judge.
III.
DISCUSSION
Gray does not dispute the Magistrate Judge’s conclusion that venue in this District is
improper. [Filing No. 24 at 2.] Gray does dispute the Magistrate Judge’s recommendation to deny
its Motion to Dismiss, [Filing No. 7], and transfer this action to the Northern District of Indiana
pursuant to 28 U.S.C. § 1406(a). [Filing No. 24 at 1.] Gray emphasizes that its “only connection
with Indiana is ownership and operation of a South Bend station, WDNU-TV, and there are no
allegations and nothing in the record suggesting that Gray is ‘at home’ in the Northern District [of
Indiana].” [Filing No. 24 at 2.]
In response, Mr. Philpot asks the Court to overrule Gray’s objection and transfer his action
to the Northern District of Indiana. [Filing No. 25.] He emphasizes that Gray has sufficient
contacts with that district and that it would be more convenient for both parties than Louisiana
would be. [Filing no. 25 at 3-4.] He requests that if this Court does transfer his action, that it be
transferred to the Lafayette Division of the Northern District of Indiana. [Filing No. 25 at 5.]
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In reply, Gray contends that Mr. Philpot “seeks to elevate his convenience over the limits
of the Court’s jurisdictional authority.” [Filing No. 26 at 1.] It emphasizes that 28 U.S.C. §
1406(a) only permits transfer of an action to a district where it could have been brought, and Gray
contends that the Northern District of Indiana is not such a district. [Filing No. 26 at 1.]
Neither party challenges the Magistrate Judge’s conclusion that venue in this District is
improper, and this Court agrees. Specifically, it is undisputed that Gray does not have contacts
with this District other than that the television station at issue has a website that could have been
accessed in this District. That is insufficient to render venue in this District proper. See Tamburo
v. Dworkin, 601 F.3d 693, 701 (7th Cir. 2010) (maintenance of a public Internet website is
insufficient, without more, to establish general jurisdiction). Thus, the Court adopts the Magistrate
Judge’s recommendation that venue in this District is improper.
28 U.S.C. § 1406(a) provides that when a case is filed in the wrong district, the Court shall
“dismiss, or if it be in the interest of justice, transfer such case to any district or division in which
it could have been brought.” Thus, the Court must now determine whether it agrees with the
Magistrate Judge’s recommendation to deny Gray’s Motion to Dismiss, [Filing No. 7], and instead
transfer this action to the Northern District of Indiana.
28 U.S.C. § 1400 controls venue in copyright actions and provides that a civil action
“relating to copyrights . . . may be instituted in the district in which the defendant or his agent
resides or may be found.” The “may be found” clause set forth in § 1400 “has been interpreted to
mean that a defendant is amenable to personal jurisdiction in a particular forum.” Milwaukee
Concrete Studios, Ltd. v. Fjeld Mfg. Co., 8 F.3d 441, 445 (7th Cir. 1993). It “requires district
courts to consider a defendant’s contacts with a particular judicial district in determining where
that defendant may be found.” Fjeld, 8 F.3d at 445. Moreover, § 1400 “requires that a defendant

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be found in a particular judicial district, rather than in the state in which the district court sits.” Id.
As long as a defendant has sufficient contacts with a district to confer personal jurisdiction on it
under the applicable state’s long-arm statute, venue in that district is proper pursuant to § 1400(a).
Id. at 448 (discussing Wisconsin long-arm statute in context of defendant’s contacts with district
at issue).
Throughout its Objection, Gray emphasizes that 28 U.S.C. § 1406(a) only allows a Court
to transfer a case for improper venue to a district in which it could have been brought. [Filing No.
24.] But Gray ignores that the applicable venue statute for copyright cases is 28 U.S.C. § 1400,
not the generally applicable venue statute found in 28 U.S.C. § 1391. The Magistrate Judge cited
§ 1400 throughout her recommendation, [Filing No. 23], but Gray does not provide any argument
regarding what would be sufficient such that Gray “may be found” in the Northern District
pursuant to that statute, [Filing No. 24]. Gray also ignores Indiana state law, which is what federal
courts apply to determine the bounds of their jurisdiction. See Daimler AG v. Bauman, 134 S. Ct.
746, 753 (2014) (“Federal courts ordinarily follow state law in determining the bounds of their
jurisdiction over persons.”). Thus, Gray has waived these arguments and the Court will not
develop them for it. Weinstein v. Schwartz, 422 F.3d 476, 477 (7th Cir. 2005) (“The failure to
develop an argument constitutes a waiver.”).
It is undisputed that Gray owns and operates a South Bend television station in the Northern
District of Indiana., even if that station was not the station Mr. Philpot accuses of unlawfully using
the image at issue. [Filing No. 24 at 2.] In its Objection, Gray goes to great lengths to downplay
its connection to the Northern District, arguing that its “operation of a single station” does not
satisfy the necessary jurisdictional requirements. [Filing No. 24 at 4-10.] Gray develops these
arguments to a much greater extent than it did before the Magistrate Judge, [see Filing No. 16 at

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8-9], and the Court will not allow its review of a Magistrate Judge’s recommendation to function
as a second bite at the apple. Given that Gray admits that it has contacts with the Northern District
of Indiana and it has failed to sufficiently develop any argument regarding the application of
Indiana state law to the bounds of the Northern District’s jurisdiction pursuant to 28 U.S.C. § 1400,
the Court adopts the Magistrate Judge’s Report and Recommendation, [Filing No. 23], denies
Gray’s Motion to Dismiss, [Filing No. 7], and directs the Clerk to transfer this action to the
Northern District of Indiana pursuant to 28 U.S.C. § 1406(a). Gray has not addressed Mr. Philpot’s
request that his case be transferred to the Lafayette division of the Northern District of Indiana,
[Filing No. 25 at 5; Filing No. 26 (no reply on that point)], but the Court will leave the divisional
assignment to the clerk of the Northern District.
IV.
CONCLUSION
For the reasons explained herein, the Court OVERRULES Gray’s Objection, [Filing No.
24], and ADOPTS the Magistrate Judge’s Report and Recommendation, [Filing No. 23]. Thus,
Gray’s Motion to Dismiss is DENIED, [Filing No. 7], and this Clerk is directed to TRANSFER
this action to the Northern District of Indiana pursuant to 28 U.S.C. § 1406(a). The Clerk is also
directed to TERMINATE Filing No. 25.

March 30, 2015

_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana

Distribution via US Mail:
LARRY G. PHILPOT
8125 Halyard Way, 1st Floor
Indianapolis, IN 46236
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Electronic Distribution via CM/ECF:
Robert J. Labate
HOLLAND & KNIGHT LLP
[e-mail]
Charles D. Tobin
HOLLAND & KNIGHT, LLP
[e-mail]
Michael P. O’Neil
TAFT STETTINIUS & HOLLISTER LLP
[e-mail]

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