PHILPOT v. DOT COM PLUS, LLC

Filing 20

ORDER granting 10 Motion to Dismiss. Final judgment will issue by separate order. Signed by Judge Tanya Walton Pratt on 8/11/2015 (dist made) (CBU)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
LARRY G. PHILPOT,
Plaintiff,
v.
DOT COM PLUS, LLC,
Defendant.

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Case No. 1:14-cv-01980-TWP-DKL

ORDER ON MOTION TO DISMISS
This matter is before the Court on a Motion to Dismiss filed pursuant to Federal Rule of
Civil Procedure 12(b)(2) and 12(b)(3) by Defendant Dot Com Plus, LLC (“Dot Com Plus”) (Filing
No. 10). Plaintiff Larry G. Philpot (“Mr. Philpot”) initiated this action, asserting various copyright
claims against Dot Com Plus for alleged copyright violations involving a photograph of musician,
Willie Nelson, taken and copyrighted by Mr. Philpot. Dot Com Plus moved to dismiss Mr.
Philpot’s Complaint based on a lack of personal jurisdiction and improper venue. For the
following reasons, the Court GRANTS the Motion to Dismiss.
I.

LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(2) allows a defendant to move to dismiss a complaint
where there is a “lack of personal jurisdiction” over the defendant. Fed. R. Civ. P. 12(b)(2). Rule
12(b)(3) allows for dismissal when venue is improper. When deciding a motion under Rule 12(b),
the court accepts the factual allegations in the complaint and draws all reasonable inferences in
favor of the plaintiff if they weigh on the issue of personal jurisdiction. Int’l Medical Group, Inc.
v. American Arbitration Ass’n, 149 F. Supp. 2d 615, 623 (S.D. Ind. 2001). But where a complaint

consists of conclusory allegations unsupported by factual assertions, the complaint fails even under
the liberal standard of Rule 12(b). Id.
When considering a motion to dismiss for lack of personal jurisdiction, the court examines
the sufficiency of the complaint, not the merits of the lawsuit. Id. The complaint does not need to
include factual allegations concerning personal jurisdiction, but if the defendant moves to dismiss
the action under Rule 12(b)(2), the plaintiff bears the burden of demonstrating the existence of
personal jurisdiction. Purdue Research Found. v. Sanofi-Synthelabo, S.A., 338 F.3d 773, 782 (7th
Cir. 2003). The court may consider affidavits and all other documentary evidence that have been
filed, and any conflicts must be resolved in favor of the plaintiff as the non-moving party. Int’l
Medical Group, 149 F. Supp. 2d at 623.
The level of the plaintiff’s burden to show personal jurisdiction depends on whether an
evidentiary hearing has been held. Purdue Research, 338 F.3d at 782. Where a hearing has been
conducted, the plaintiff must show by a preponderance of the evidence that personal jurisdiction
exists. Id. Where no hearing is conducted and the motion to dismiss is decided solely on written
materials, the plaintiff must establish a prima facie case that personal jurisdiction exists. Id.
“If jurisdiction is exercised on the basis of a federal statute that does not authorize
nationwide service of process, the law requires a federal district court to determine if a court of the
state in which it sits would have personal jurisdiction.” 1 Annie Oakley Enters. v. Sunset Tan
Corporate & Consulting, LLC, 703 F. Supp. 2d 881, 886 (N.D. Ind. 2010) (citing United States v.
Martinez De Ortiz, 910 F.2d 376, 381 (7th Cir. 1990)). Indiana Trial Rule 4.4(A), Indiana’s long-

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The federal statute serving as the basis for this litigation, the Copyright Act, does not authorize nationwide service
of process or govern personal jurisdiction. Novelty, Inc. v. RCB Distrib., 2008 U.S. Dist. LEXIS 52443, *10 (S.D.
Ind. July 9, 2008) (“Congress did not create national service of process under the Lanham Act or the Copyright Act.”);
see also Lighthouse Carwash Sys., LLC v. Illuminator Bldg. Co., LLC, 2004 U.S. Dist. LEXIS 21666, *6 n.4 (S.D.
Ind. Aug. 31, 2004). Therefore, determining personal jurisdiction in this case is governed by Indiana law.

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arm statute, governs personal jurisdiction in Indiana. “Although Rule 4.4(A) enumerates eight
bases for the assertion of jurisdiction on the basis of a defendant’s actions, the rule also includes a
provision that ‘a court of this state may exercise jurisdiction on any basis not inconsistent with the
Constitutions of this state or the United States.’” Id. (internal citation omitted). Thus, a court has
personal jurisdiction to the limit allowed by the Federal Due Process Clause of the Fourteenth
Amendment. LinkAmerica Corp. v. Cox, 857 N.E.2d 961, 966–67 (Ind. 2006).
For a court to have personal jurisdiction over a defendant, the Due Process Clause requires
that the defendant have “certain minimum contacts with [the state] such that the maintenance of
the suit does not offend ‘traditional notions of fair play and substantial justice.’” Int’l Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)).
Under federal due process standards, personal jurisdiction can be either specific or general.
Wilson v. Humphreys (Cayman) Ltd., 916 F.2d 1239, 1244 (7th Cir. 1990). “If the defendant’s
contacts with the state are so ‘continuous and systematic’ that the defendant should reasonably
anticipate being haled into the courts of that state for any matter, then the defendant is subject to
general jurisdiction.” LinkAmerica, 857 N.E.2d at 967. “If the defendant’s contacts with the forum
state are not ‘continuous and systematic,’ specific jurisdiction may be asserted if the controversy
is related to or arises out of the defendant’s contacts with the forum state.”

Id. “Specific

jurisdiction 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.” Id.
In other words, specific jurisdiction exists when a defendant has deliberately directed its
activities toward the forum state’s residents, and the cause of action results from alleged injuries
that arise out of or relate to those activities. See Burger King Corp. v. Rudzewicz, 471 U.S. 462,

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472 (1985). In Burger King, the Supreme Court explained the “constitutional touchstone” of
“minimum contacts” for personal jurisdiction:
The unilateral activity of those who claim some relationship with a nonresident
defendant cannot satisfy the requirement of contact with the forum State. . . . [I]t
is essential in each case that there be some act by which the defendant purposefully
avails itself of the privilege of conducting activities within the forum State, thus
invoking the benefits and protections of its laws.
This “purposeful availment” requirement ensures that a defendant will not be
haled 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. Jurisdiction
is proper, however, where the contacts proximately result from actions by the
defendant himself that create a “substantial connection” with the forum State. Thus
where the defendant deliberately has engaged in significant activities within a State,
or has created continuing obligations between himself and residents of the forum
he manifestly has availed himself of the privilege of conducting business there, and
because his activities are shielded by the benefits and protections of the forum’s
laws it is presumptively not unreasonable to require him to submit to the burdens
of litigation in that forum as well.
Id. at 474–76 (internal citations, quotation marks, and footnote omitted).
The Seventh Circuit has provided additional guidance for cases involving the internet and
online activity.
Courts 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. Beyond simply operating an interactive website
that is accessible from the forum state, a defendant must in some way target the
forum state’s market. 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.
be2 LLC v. Ivanov, 642 F.3d 555, 558–59 (7th Cir. 2011) (citations and quotation marks omitted).
Concerning venue in a copyright action, under 28 U.S.C. § 1400(a), “[c]ivil actions, suits,
or proceedings arising under any Act of Congress relating to copyrights . . . may be instituted in
the district in which the defendant or his agent resides or may be found.”

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II.

BACKGROUND

Mr. Philpot is a professional photographer who lives in Indianapolis, Indiana, and works
with concert events across the country. Most of Mr. Philpot’s work involves musicians and
concerts, and he licenses his photographs to various end users. On October 4, 2009, Mr. Philpot
took a photograph of singer-songwriter Willie Nelson while he was performing in St. Louis,
Missouri. Mr. Philpot secured a copyright for this photograph through the United States Copyright
Office approximately three years later on September 5, 2012. Before securing the copyright, Mr.
Philpot published the photograph on the internet on May 31, 2011.
On or about April 30, 2013, a copy of Mr. Philpot’s photograph of Willie Nelson with an
article or advertisement titled “Willie Nelson’s 80th Birthday Musical Celebration” appeared on
one of Dot Com Plus’s radio station websites without any attribution to Mr. Philpot. Mr. Philpot
discovered the copy of his photograph on the radio station website and sent a cease and desist letter
to Dot Com Plus on August 11, 2014, directing the removal of the photograph from the radio
station website. After receiving the cease and desist letter from Mr. Philpot, Dot Com Plus
removed the photograph from the website.

Mr. Philpot initiated this copyright lawsuit on

December 2, 2014. On February 6, 2015, Dot Com Plus moved to dismiss the action.
III. DISCUSSION
As an initial matter, Plaintiff’s Further Opposition to Motion to Dismiss for Lack of
Personal Jurisdiction (Filing No. 18) is STRICKEN, as such motion is not permitted by the
Court’s Local Rules. See L.R. 7.1(b) and (c)(2) (motion briefing consists of the opening brief, a
response and a reply).

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Dot Com Plus is an Alabama limited liability company with its principal place of business
in Mobile, Alabama. Dot Com Plus was formed in 1993 to own and operate two radio stations
(WZEW-FM and WNSP-FM) in Mobile, Alabama. WZEW’s broadcast radius is twenty-five
miles from the radio station’s tower in Mobile, Alabama. All WZEW-generated content for its
website is created and maintained in Mobile, Alabama. All postings are managed from WZEW’s
office in Mobile, Alabama. All individuals with knowledge of the circumstances of the posting of
the Willie Nelson photograph on WZEW’s website, and all of WZEW’s business records relevant
to the issues in this action are located in Mobile, Alabama (Filing No. 11 at 2).
Dot Com Plus has never done any business in the State of Indiana. Dot Com Plus has never
been registered to do business in the State of Indiana. It has never appointed an agent for service
of process in Indiana. Other than this litigation, Dot Com Plus has never been involved in any
litigation in any court, administrative agency, or other tribunal in Indiana. Id.
Additionally, Dot Com Plus has never derived any revenue from any source in Indiana. It
has never had any employees, partners, or agents residing in Indiana, and no employees, partners,
or agents of Dot Com Plus have ever been sent to Indiana to solicit or otherwise conduct business
for Dot Com Plus. Id. Dot Com Plus has never owned, leased, occupied, or used any real or
personal property in the State of Indiana. It has never maintained an office in Indiana and has
never had a mailing address in Indiana. It has never owned or used any bank, brokerage, or other
financial accounts in Indiana. Dot Com Plus has never advertised in Indiana and has never directed
advertising toward any person in Indiana (Filing No. 11 at 3). In short, Dot Com Plus has no
connections to the State of Indiana.
Based on these facts, Dot Com Plus argues that this Court cannot exercise personal
jurisdiction over it. Dot Com Plus asserts that simply placing content on the internet cannot result

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in a finding that Dot Com Plus has engaged in activity that establishes minimum contacts with the
State of Indiana, relying on be2 LLC, 642 F.3d at 558–59. Without conducting any business in
Indiana or purposefully directing any activities at the State of Indiana, personal jurisdiction cannot
be established over Dot Com Plus. Dot Com Plus explains that personal jurisdiction cannot be
established because Dot Com Plus does not regularly do or solicit business in Indiana, engage in
any other persistent course of conduct in Indiana, or derive substantial revenue or benefit from
goods, materials, or services used, consumed, or rendered in Indiana. Dot Com Plus is an Alabama
limited liability company with its principal place of business in Mobile, Alabama, and simply owns
and operates two radio stations in Mobile, Alabama.
In response to Dot Com Plus’s Motion to Dismiss, Mr. Philpot presents to the Court
unverified assertions and unauthenticated exhibits to paint a picture of attenuated contacts to craft
some contact between Dot Com Plus and the State of Indiana to establish personal jurisdiction
over Dot Com Plus. Mr. Philpot argues that Dot Com Plus’s radio broadcasts are transmitted over
the internet, thereby establishing contact with Indiana. Mr. Philpot further argues that a third-party
entity that hosts a website, promotes concerts, and provides links to other websites where
individuals across the nation, including in Indiana, can purchase tickets for those concerts, has
continuous and systematic contact. Additionally, Mr. Philpot claims that Dot Com Plus’s radio
station, WNSP, broadcasts some NCAA sporting events, and the NCAA is headquartered in
Indiana, thereby establishing contact with Indiana. Finally, Mr. Philpot argues that Dot Com Plus
has sufficient contacts with the State of Indiana, by virtue of the NCAA’s presence here, because
Dot Com Plus’s websites provide links to other third-party websites where individuals can
purchase NCAA licensed products.

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Because Dot Com Plus has “submitted affidavits or other evidence” that shows a lack of
personal jurisdiction, Mr. Philpot “must go beyond the pleadings and submit affirmative evidence
supporting the exercise of jurisdiction.” Purdue Research, 338 F.3d at 783. Mr. Philpot has failed
to do so. Instead, Mr. Philpot has presented unverified assertions, based on his own assumptions
and not on personal knowledge, regarding Dot Com Plus and its websites and operations. He has
submitted unauthenticated exhibits to show that third-party entities reach individuals across the
nation via their websites. Furthermore, Mr. Philpot ignores the clearly established case law from
the Supreme Court, the Seventh Circuit, and this District regarding personal jurisdiction, and he
ignores the case law from the Seventh Circuit, this District, and this Court regarding personal
jurisdiction and the internet. See, e.g., be2 LLC, 642 F.3d at 558–59; Philpot v. Mansion Am.,
2015 U.S. Dist. LEXIS 103699 (S.D. Ind. Aug. 7, 2015); Bell v. Kirchner, 2014 U.S. Dist. LEXIS
29483 (S.D. Ind. Mar. 7, 2014).
Dot Com Plus has challenged personal jurisdiction and shown that it does not exist. Mr.
Philpot’s personal assertions and unauthenticated exhibits fail to show that Dot Com Plus has any
contacts with the State of Indiana. Having failed to meet his burden to sustain this action, Mr.
Philpot’s action must be dismissed for lack of personal jurisdiction.2
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS Dot Com Plus’s Motion to Dismiss (Filing
No. 10). This action is DISMISSED. Final judgment will issue by separate order.
SO ORDERED.
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Improper venue provides an additional basis to dismiss this action. As the Supreme Court has made clear, 28 U.S.C.
§ 1400 identifies “the proper venue for copyright and patent suits” and thus overrides the general venue statute. Atl.
Marine Constr. Co. v. United States Dist. Court for the Western District of Texas, 134 S. Ct. 568, 577 n.2 (U.S. 2013).
28 U.S.C. § 1400(a) allows for “[c]ivil actions, suits, or proceedings . . . relating to copyrights” to be brought in “the
district in which the defendant or his agent resides or may be found.” Dot Com Plus does not reside in and is not
found in the State of Indiana. Thus, the Southern District of Indiana is not the proper venue for this action.

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Date: 8/11/2015

DISTRIBUTION:
Larry G. Philpot
8125 Halyard Way, 1st Floor
Indianapolis, Indiana 46236
Jan M. Carroll
BARNES & THORNBURG LLP
[e-mail]

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