Jonzun v. The Estate of Michael Joseph Jackson et al

Filing 81

Judge Denise J. Casper: ORDER entered. MEMORANDUM AND ORDER - The Court ALLOWS the Estate's motion to dismiss, D. 20, and the Estate is DISMISSED from this action. The Court also ALLOWS the Anka Defendants and AEG Live's motions to dismiss, D. 25 and D. 38, and the Anka Defendants and AEG Live are DISMISSED from this action. The Court DENIES AS MOOT Jonzun's motion for default judgment as to AEG Live, D. 45. The Court DENIES Jonzun's motion for extension of time to serve process, D. 32, and DISMISSES WITHOUT PREJUDICE from this action Defendants Sony Music, Sony Pictures, Epic Records, The Michael Jackson Company, LLC, Chrysalis Songs and Mijac Music, whose summonses Jonzun returned unexecuted, D. 1016, and the Doe 1 through 4 Defendants, whose summonses Jonzun did not return. (Hourihan, Lisa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
__________________________________________
)
MICHAEL JONZUN,
)
)
Plaintiff,
)
)
v.
)
)
)
THE ESTATE OF MICHAEL JACKSON,
)
et al.,
)
)
Defendants.
)
__________________________________________)

Civil Action No. 12-12019-DJC

MEMORANDUM AND ORDER
CASPER, J.
I.

March 24, 2014

Introduction
Plaintiff Michael Jonzun (“Jonzun”) has sued a number of Defendants for copyright

infringement and other causes of action on the grounds that Jonzun has a protectable interest in
the musical recording This Is It. D. 1. The following Defendants have moved to dismiss the
complaint on a number of grounds: the Estate of Michael Jackson (“the Estate”); Paul Anka
(“Anka”), Paul Anka Productions and Paulanne Music (“Paulanne”) (collectively, “the Anka
Defendants”); and AEG Live, D. 20, 25 and 38, respectively. Jonzun has also moved for an
extension of time to serve process. D. 32.
For the reasons discussed below, the Court ALLOWS the Estate’s motion to dismiss, D.
20, ALLOWS the remaining motions to dismiss, D. 25 and D. 38, and DENIES Jonzun’s motion
for extension of time to serve process, D. 32.
1

II.

Standard of Review
Under the prima facie standard, to meet his burden of establishing that the Court has

personal jurisdiction over the defendants pursuant to Fed. R. Civ. P. 12(b)(2), Jonzun must
“demonstrate the existence of every fact required to satisfy both the forum’s long arm statute and
the Due Process Clause of the Constitution.” United States v. Swiss Am. Bank, Ltd., 274 F.3d
610, 618 (1st Cir. 2001) (citation and quotations omitted). The Court considers the facts alleged
in the pleadings as well as the parties’ supplemental filings. Sawtelle v. Farrell, 70 F.3d 1381,
1385 (1st Cir. 1995); Ticketmaster N.Y., Inc. v. Alioto, 26 F.3d 201, 203 (1st Cir. 1994). The
Court will “take specific facts affirmatively alleged by the plaintiff as true (whether or not
disputed) and construe them in the light most congenial to the plaintiff’s jurisdictional claim.”
Mass. Sch. of Law v. Am. Bar Ass’n, 142 F.3d 26, 34 (1st Cir. 1998). The Court will then “add
to the mix facts put forward by the defendants, to the extent that they are uncontradicted.” Id.
III.

Discussion
A.

The Estate of Michael Jackson Cannot Be Sued

The Estate argues that an estate is not a legal entity capable of being sued and therefore,
the complaint must be dismissed. D. 21 at 1. “[A] decedent’s estate is not a legal entity. Rights
of action against the estates of deceased persons can be asserted only against the individual or
individuals administering the estate.” Crowe v. Di Manno, 225 F.2d 652, 653 (1st Cir. 1955);
Toledo v. Superior Court, 19 Cal. App. 3d 450, 454 (1971); see Chandler v. Dunlop, 311 Mass.
1, 5 (1942). Accordingly, the Court ALLOWS the Estate’s motion to dismiss.1
B.

Jonzun Has Not Demonstrated that the Court Has Personal Jurisdiction
Over the Anka Defendants or AEG Live___________________________

1

In light of this conclusion, the Court need not address the remainder of the Estate’s
arguments. See Howe v. Bank for Int’l Settlements, 194 F. Supp. 2d 6, 15 n.8 (D. Mass. 2002).
2

Jonzun also has not met his burden of showing that the Court has personal jurisdiction
over the Anka Defendants or AEG Live. “To hear a case, a court must have personal jurisdiction
over the parties.” Daynard v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d 42,
50 (1st Cir. 2002). The Court’s exercise of personal jurisdiction over the Defendants must
satisfy both federal constitutional requirements and the forum state’s long-arm statute. AstroMed v. Nihon Kohden Am., Inc., 591 F.3d 1, 8 (1st Cir. 2009). Massachusetts’s long-arm statute
is co-extensive with federal constitutional requirements; therefore, the Court need only conduct
the constitutional analysis. Daynard, 290 F.3d at 52 (citation and quotations omitted).
The plaintiff bears the burden of demonstrating that the Court has either general or
specific jurisdiction over out-of-state defendants. Cossaboon v. Maine Med. Ctr., 600 F.3d 25,
31 (1st Cir. 2010). Because Jonzun does not specify whether he intends to assert general or
specific jurisdiction, the Court will analyze whether either is met here.
1.

Specific Jurisdiction

To the extent Jonzun attempts to assert specific jurisdiction over the Defendants, he has
not satisfied that burden. For specific jurisdiction, Jonzun must show (1) that his claims directly
arose out of or are related to the Defendants’ Massachusetts activities; (2) the Defendants
purposely availed themselves of the privilege of conducting activities in Massachusetts; and (3)
the exercise of jurisdiction in Massachusetts is reasonable in light of the required factors.
Adelson v. Hananel, 510 F.3d 43, 49 (1st Cir. 2007).
Jonzun’s complaint does not assert factual allegations related to the Defendants’
Massachusetts contacts. Jonzun has raised in his opposition to the Anka Defendants’ motion to
dismiss at least a colorable argument that his claims are related to the Defendants’ Massachusetts
activities.

Jonzun asserts that the Anka Defendants and AEG Live have “licensed and/or

3

authorized and/or granted explicit consent regarding products that are being commercially
marketed, promoted, distributed, sold, and/or otherwise commercially exploited at retail outlets
and internet commerce, including, but not limited to, throughout this jurisdiction of
Massachusetts.” D. 53 at 2. Jonzun specifically points to the This is It album, DVD and film
release, which he alleges “embodies the subject composition This Is It.” Id. at 4-5.
Even if assuming that Jonzun has shown relatedness, the Court concludes that Jonzun has
not demonstrated that the Defendants purposely availed themselves of the privilege of
conducting activities in Massachusetts.

“[T]he cornerstones upon which the concept of

purposeful availment rest are voluntariness and foreseeability.” Sawtelle, 70 F.3d at 1391.
Placing a product in the “stream of commerce” does not satisfy voluntariness, that is, “a
commercial enterprise [is not] subject to personal jurisdiction wherever its conduct foreseeably
causes injury, regardless of whether the defendant directed its conduct toward the forum state.”
Sawtelle, 70 F.3d at 1393. The Court also looks at whether it was foreseeable that the defendants
would be “haled into” a Massachusetts court as a result of their conduct. Id. “The enforcement
of personal jurisdiction over a non-resident defendant is foreseeable when that defendant has
established a continuing obligation between itself and the forum state.” Id. Jonzun has alleged
only that the Anka Defendants placed This Is It in the stream of commerce. As discussed above,
Jonzun asserts that the Anka Defendants and AEG Live licensed and marketed This Is It
“including, but not limited to, throughout this jurisdiction of Massachusetts.” D. 53 at 2.
Accordingly, the Court cannot find, based on Jonzun’s factual assertions, that “the defendant[s’]
conduct and connection with the forum State are such that [they] should reasonably anticipate
being haled into court” in every state where This Is It may have been sold. Cossaboon, 600 F.3d
at 32 (citations and quotations omitted). See Sawtelle, 70 F.3d at 1393 (quoting Asahi Metal

4

Indus. Co. v. Super. Court of Cali., 480 U.S. 102, 112 (1987) (holding that “‘[t]he placement of a
product into the stream of commerce, without more, is not an act of the defendant purposefully
directed toward the forum State”); Newman v. European Aeronautic Defence & Space Co.
EADS N.V., No. 09-10138-DJC, 2011 WL 2413792, at *7 (D. Mass. June 16, 2011) (stating that
“ awareness and knowledge that products may end up in a forum state or in the United States
generally . . . is insufficient to constitute purposeful availment); ICP Solar Technologies, Inc. v.
TAB Consulting, Inc., 413 F. Supp. 2d 12, 20 (D.N.H. 2006) (holding that purposeful availment
was not satisfied because defendant did not “specifically intend[] to serve” the forum state’s
market by selling allegedly infringing products”). Although Jonzun also argues that certain
agents of Paulanne and Anka collected licensing fees for performance royalties “generated by
their work as exploited in this jurisdiction of Massachusetts,” D. 53 at 4-5, these allegations do
not compel a different result. Allegations that the Defendants garnered royalties as a result of
their widespread dissemination of products are not sufficient to give rise to personal jurisdiction.
See Head USA, Inc. v. Sorensen, No. 306CV983, 2006 WL 3703646, at *4 (D. Conn. Dec. 13,
2006) (citing Breckenridge Pharm., Inc. v. Metabolite Labs., Inc., 444 F.3d 1356, 1366 (Fed. Cir.
2006)) (mere receipt of royalty income from sales in forum state insufficient for purposeful
availment). The Court concludes that Jonzun has not alleged facts sufficient to show that the
Defendants purposely availed themselves of the privilege of conducting activities here.
Although the Court need not reach reasonableness, the Court addresses it in the interest
of completeness.

The Court must consider several factors in assessing whether personal

jurisdiction over a defendant is reasonable:
(1) the defendant’s burden of appearing, (2) the forum state’s interest in adjudicating the
dispute, (3) the plaintiff’s interest in obtaining convenient and effective relief, (4) the
judicial system’s interest in obtaining the most effective resolution of the controversy,
and (5) the common interests of all sovereigns in promoting substantive social policies.
5

Adelson, 510 F.3d at 51 (citation omitted). Weighing these factors, exercising personal
jurisdiction over the Defendants would not be reasonable. The first factor does not weigh against
exercising personal jurisdiction as there has been no argument that litigating in Massachusetts
would be a “special or unusual burden” for the Defendants. See id. While the third factor
weighs in favor of jurisdiction, as a “plaintiff’s choice of forum must be accorded a degree of
deference with respect to the issue of its own convenience,” Sawtelle, 70 F.3d at 1395, the
second factor, Massachusetts’s interest in adjudicating the dispute, weighs against it, as Jonzun
has not alleged that the Defendants’ conduct caused an injury in Massachusetts.

See id.

Consideration of the last two factors also do not weigh heavily in favor of exercising personal
jurisdiction since it is not clear from the nature of Jonzun’s claims that this forum (as opposed to
another forum) would effect the most effective resolution of the claims or that this forum has any
greater substantive interest in protecting Jonzun’s purported intellectual property rights than any
other forum, apart from Jonzun’s residence in the Commonwealth.
Accordingly, the Court does not have specific jurisdiction over the Anka Defendants or
AEG Live.
2.

General Jurisdiction

For general jurisdiction, “(1) the defendant must have sufficient contacts with the forum
state, (2) those contacts must be purposeful, and (3) the exercise of jurisdiction must be
reasonable under the circumstances.” Cossaboon, 600 F.3d at 32. “To permit the exercise of
general jurisdiction, the defendant must engage[ ] in the continuous and systematic pursuit of
general business activities in the forum state.” Id. at 32 (citations and quotations omitted). The
Court must “consider all of a defendant[s’] contacts with the forum state prior to the filing of the
lawsuit.” Id. at 29 (citations and quotations omitted). “Although our inquiry is fact-specific, it is
6

guided by the types of contacts deemed sufficiently continuous and systematic in other cases.”
Id. at 32 (citations and quotations omitted). The “plaintiff ultimately bears the burden of
persuading the court that jurisdiction exists.” Id. at 31 (citations and quotations omitted).
While the Court must construe the facts “in the light most congenial to the plaintiff’s
jurisdictional claim,” Hannon v. Beard, 524 F.3d 275, 279 (1st Cir. 2008) (citations and
quotations omitted), Jonzun’s complaint and papers filed in opposition to the motions to dismiss
do not provide sufficient factual support for the assertion that the Defendants had sufficient
contacts with Massachusetts to satisfy general jurisdiction.
“Although a showing of minimum contacts is sufficient to establish specific jurisdiction,
the standard for establishing general jurisdiction is considerably more stringent.” Cossaboon,
600 F.3d at 32 (citations and quotations omitted).

Jonzun’s allegations of non-continuous

concert performances and global media distribution, D. 53 at 2-5, are insufficient to establish
substantial, continuous and systematic contacts such that personal jurisdiction over a recording
artist’s promoters is appropriate. Other courts have held same. See Kinnard v. Kelly, No. 1:08CV-1824-JOF, 2009 WL 1606516, at *3 (N.D. Ga. June 8, 2009) (finding music sales and
nationwide concert tours insufficient for “continuous and systematic general business contacts”);
Jones v. Blige, No. 04–60184, 2006 WL 1329247, at *4 (E.D. Mich. May 16, 2006) (music
production and distribution not sufficient for general jurisdiction); Nike, Inc. v. Boy Toy, Inc.,
No. 90–209–FR, 1990 WL 96681, at *2 (D. Or. July 2, 1990) (distributing music in forum state
insufficient for general jurisdiction); compare Montrose v. Moore, No. C09-2146 BZ, 2009 WL
3748521, at *2 (N.D. Cal. Nov. 5, 2009) (noting that “[c]ourts have found general jurisdiction
based on internet sales, where defendants derived substantial revenue from and explicitly
directed marketing activities towards the forum state”). The Court further notes that Jonzun has

7

not demonstrated that the Defendants’ contacts were purposeful, as opposed to “random,
fortuitous, or attenuated,” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985), which is
another requirement for general jurisdiction. Finally, as discussed above, merely garnering
royalties as a result of the Defendants’ widespread dissemination of products would also be
insufficient for personal jurisdiction. See Head USA, 2006 WL 3703646, at *4. Accordingly,
this Court does not have general jurisdiction over the Anka Defendants or AEG Live.
While the Court recognizes that Jonzun has pursued this case pro se, he is still required to
demonstrate a jurisdictional basis to assert his claims against the Defendants in this forum. Fed.
R. Civ. P. 8(a)(1) (requiring a “pleading that states a claim for relief must contain . . . a short and
plain statement of the grounds for the court’s jurisdiction”). For these reasons, the Court
ALLOWS the Anka Defendants and AEG Live’s motions to dismiss for lack of personal
jurisdiction, D. 25 and D. 38.2
C.

The Court Denies the Motion for Extension of Time to Serve Process

Jonzun has moved for a 120-day extension to serve Defendants Sony Pictures, Sony
Music, Mijac Music, Epic Records, Chrysalis Songs, The Michael Jackson Company, LLC, Paul
Anka, Paul Anka Productions and Does 1 through 4. D. 32. Under Local Rule 4.1(A), “[a]ny
summons not returned with proof that it was served within [120] days of the filing of the
complaint is deemed to be unserved for the purpose of Fed. R. Civ. P. 4(m).” A plaintiff may,
however, show good cause to extend this time period, Fed. R. Civ. P. 4(m), and must “fil[e] a
motion for enlargement of time under Fed. R. Civ. P. 6(b), together with a supporting affidavit”
to do so. Local Rule 4.1(B).

2

Because the Court holds that it does not have jurisdiction over the Anka Defendants and
AEG Live, the Court need not reach the Defendants’ other grounds for the motions to dismiss.
8

Jonzun filed his complaint on October 30, 2012. D. 1. Accordingly, Jonzun’s service of
process deadline was February 27, 2013.3 Jonzun did not file his motion for extension of time to
serve process until April 5, 2013. D. 32. Further, Jonzun did not file a supporting affidavit with
his motion, as required by Local Rule 4.1(B). See D. 32.
The Court also finds that Jonzun has not otherwise shown good cause for his failure to
comply with the service rules. See Holmes v. Meleady, 738 F. Supp. 2d 196, 201 (D. Mass.
2010) (finding that pro se plaintiff satisfied good cause for slight delay in service where
“plaintiff made a good faith effort to serve them within the time limit). While a pro se litigant
can show good cause by demonstrating “confusion on his part, either because of his unfamiliarity
with the rules, or because of his reliance on the misleading advice of others,” McIsaac v. Ford,
193 F. Supp. 2d 382, 384 (D. Mass. 2002), Jonzun has made no such showing here. See id.
(finding that pro se plaintiff failed to show good cause when he was familiar with the service
rules “as evidenced by his attempts to have service expedited on the last available day”);
Donnelly v. UMass Corr. Med. Program, No. 09-11995-RGS, 2010 WL 1924700, at *2 (D.
Mass. May 11, 2010) (considering, in dismissing complaint for failure to timely serve, that pro
se plaintiff “offered no extenuating circumstances to excuse his failure to make service within
the allotted 120 days”); cf. Baez v. Connelly, 478 F. App’x 674, 676 (1st Cir. 2012) (finding that
incarcerated pro se plaintiff showed good cause when failure to serve was in part due to actions
of United States Marshal, who should have requested home address of defendant, a federal law

3

Jonzun argues that this period should be tolled for the twenty-seven days during which
this case was voluntarily dismissed upon the motion of a person who moved for such relief under
Jonzun’s name, see D. 5–8, but he offers no legal support for the contention that this event alters
the time frame under Fed. R. Civ. P. 4(m) that a defendant be served “120 days after the
complaint is filed,” or any persuasive argument about how this turn of events kept him from
effectuating service within 120 days of the filing of the complaint. Accordingly, the Court
rejects this argument.
9

enforcement agent, because plaintiff did not have access to such information, but also finding no
good cause shown as to other two defendants, for whom plaintiff did not provide enough
information for Marshal to complete service); Holmes, 738 F. Supp. 2d at 201 (finding good
cause shown when pro se plaintiff submitted to the court an affidavit and return receipt
demonstrating that he mailed complaint and summons before the expiration of the service
deadline, which were received and signed for by the United States Marshal approximately one
month before the deadline, but the “documents did not make their way to the defendants until
two months later”). Here, Jonzun contends that he was “diligent in attempting to serve all
Defendants . . . multiple times.” D. 32 at 2. However, neither Jonzun’s docket entries nor the
documents he submitted in support of his motion reflect multiple attempts at serving each
Defendant.4

See D. 10–16; D. 32-2.

Therefore, the Court DENIES Jonzun’s motion for

extension of time to serve process, D. 32. Given that the appropriate remedy for failure to effect
service of process is dismissal without prejudice, Fed. R. Civ. P. 4(m), the Court DISMISSES
WITHOUT PREJUDICE from this action Defendants Sony Music, Sony Pictures, Epic Records,
The Michael Jackson Company, LLC, Chrysalis Songs and Mijac Music, whose summonses
Jonzun returned unexecuted. D. 10–16.
III.

Conclusion
For the foregoing reasons, the Court ALLOWS the Estate’s motion to dismiss, D. 20, and

the Estate is DISMISSED from this action. The Court also ALLOWS the Anka Defendants and
AEG Live’s motions to dismiss, D. 25 and D. 38, and the Anka Defendants and AEG Live are

4

While Jonzun has submitted documents reflecting that he attempted to serve Paul Anka
Productions on two occasions, the second attempt was not until April 1, 2013, after the
expiration for time for service. D. 32-2.
10

DISMISSED from this action. The Court DENIES AS MOOT Jonzun’s motion for default
judgment as to AEG Live, D. 45.
The Court DENIES Jonzun’s motion for extension of time to serve process, D. 32, and
DISMISSES WITHOUT PREJUDICE from this action Defendants Sony Music, Sony Pictures,
Epic Records, The Michael Jackson Company, LLC, Chrysalis Songs and Mijac Music, whose
summonses Jonzun returned unexecuted, D. 10–16, and the Doe 1 through 4 Defendants, whose
summonses Jonzun did not return.5
So Ordered.
/s/ Denise J. Casper
United States District Judge

5

Although Jonzun indicated at oral hearing that he may wish to amend the complaint, D.
78 at 18, he did not do so in response to the filing of Defendants’ motions to dismiss and nothing
he referenced at oral argument articulated a specific factual basis for amending the complaint.
11