Gray et al v. Perry et al
OPINION MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Defendant Katheryn Hudson, professionally known as Katy Perrys (Perry) Motion to Dismiss the FirstAmended Complaint for Lack of Personal Jurisdiction and in the Alternative, to Transfer. [Doc. No . 39], is GRANTED. IT IS FURTHER ORDERED that Defendants Jordan Houston, P/K/A Juicy J, Lukasz Gottwald P/K/A Dr. Luke, Sarah Hudson, Karl Martin Sandberg P/K/A Max Martin, and Henry Walter P/K/A Cirkuts Renewed Motion to Dismiss for Lack of Personal Jurisdiction, [Doc. No 42], is GRANTED. IT IS FURTHER ORDERED that Defendant Capitol Records, LLCs Renewed Motion to Transfer, [Doc. No. 42], is GRANTED. IT IS FURHTER ORDERED that this matter is transferred to the United States District Court for the Central District of California. 42 39 Signed by District Judge Henry Edward Autrey on 7/23/15. (CLA)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
MARCUS GRAY P/K/A FLAME, et al., )
KATHERYN ELIZABETH HUDSON, )
P/K/A KATY PERRY, et al.,
Case No.: 14CV1183 HEA
OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Defendant Katheryn Hudson,
professionally known as Katy Perry’s (Perry) Motion to Dismiss the First
Amended Complaint for Lack of Personal Jurisdiction and in the Alternative, to
Transfer. [Doc. No. 39], Defendants Jordan Houston, P/K/A Juicy J, Lukasz
Gottwald P/K/A Dr. Luke, Sarah Hudson, Karl Martin Sandberg P/K/A Max
Martin, and Henry Walter P/K/A Cirkut’s Renewed Motion to Dismiss for Lack of
Personal Jurisdiction, or in the Alternative, to Transfer and Defendant Capitol
Records, LLC’s Renewed Motion to Transfer, [Doc. No. 42]. Plaintiffs have filed a
Response in opposition to the Motion. Defendants have filed Replies and
Plaintiffs have filed supplemental facts in opposition. For the reasons set forth
below, Defendants’ Motions are granted.
Facts and Background1
Plaintiffs bring this action against Defendants under the Copyright Act of
1976, as amended, 17 U.S.C. § 101 et seq., alleging copyright infringement of
Plaintiffs’ copyright in their Christian Gospel hip hop song entitled “Joyful Noise.”
Plaintiffs claim that Defendants’ song, “Dark Horse” infringes Plaintiffs’ copyright
in Joyful Noise, which was released five years before Dark Horse.
The First Amended Complaint alleges that Plaintiff Marcus Gray is an
American Christian hip hop musician and a citizen of Missouri who resides within
the Eastern Division of this District. Plaintiff Chike Ojukwu is an American
Christian hip hop musician and record producer and a citizen of Missouri who
resides within the Eastern Division of this District. Plaintiff Emanuel Lambert is
an American Christian hip hop musician and record producer and a citizen of
Pennsylvania who resides in Aldan, Pennsylvania.
The First Amended Complaint further alleges that upon information and
belief, Defendant Katheryn Elizabeth Hudson (p/k/a Katy Perry) is a citizen of
California presently residing at 7310 Mulholland Drive, Los Angeles, CA 90046.
Upon information and belief, Defendant Jordan Michael Houston (p/k/a Juicy J) is
a citizen of Tennessee presently residing at 411 North Oakhurst Drive #402,
Beverly Hills, CA 90210. Upon information and belief, Defendant Lukasz
The recitation of facts is taken from Plaintiff’s Complaint and are taken as true for the purposes of this motion.
Such recitation in no way relieves any party from the necessary proof thereof in later proceedings.
Gottwald (p/k/a Dr. Luke) is a citizen of California presently residing at 8700
Hollywood Boulevard, West Hollywood, CA 90069. Upon information and
belief, Defendant Karl Martin Sandberg (p/k/a Max Martin) is a citizen of
California presently residing at 882 North Doheny Drive, West Hollywood, CA
90069. Upon information and belief, Defendant Henry Russell Walter (p/k/a
Cirkut) is a citizen of California residing at 26664 Seagull Way, Unit A211,
Malibu, CA 90265-4543. Upon information and belief, Defendant Sarah Theresa
Hudson is a citizen of California residing at 5000 Kester Ave., #5 Sherman Oaks,
CA 91403. Defendant Capitol Records, LLC (“Capitol Records”) is a Delaware
limited liability company with its principal place of business at 150 Fifth Avenue,
New York, New York 10011. Vevo, LLC, which operates a commercial site on
YouTube that features music videos of Capitol Records songs, is an affiliate of
Capitol Records and has a principal place of business at the same address as
This is an action for copyright infringement arising under the Copyright Act.
The Court has subject matter jurisdiction under 17 U.S.C. § 501 and 28 U.S.C. §§
1331 and 1338(a).
Plaintiffs claim the Court has personal jurisdiction over all of the defendants
because each of them has sufficient contacts with the State of Missouri to satisfy
this jurisdictional requirement, to wit: Each of these defendants, acting personally,
through authorized agents and representatives, or jointly with one another, have
purposefully, foreseeably, systematically, and continuously over the past year
directed their marketing, promotion, sale, and public performance of their
infringing Dark Horse song toward residents of the State of Missouri and, as a
direct result thereof, have injured these Plaintiffs in Missouri by infringing their
exclusive rights under the Copyright Act by, among other things:
a. Authorizing, arranging for and profiting from Missouri residents
purchasing CDs and digital downloads of the Dark Horse song, streaming the
audio version of the Dark Horse song, and viewing the music video version of the
Dark Horse song on the commercial YouTube and Vevo websites;
b. Authorizing, arranging for, and profiting from Missouri residents
purchasing digital downloads of the Dark Horse song directly from interactive
links embedded in the Internet pages for the music video version of the Dark Horse
song on the commercial YouTube and the Vevo websites;
c. Authorizing, arranging for, and profiting from the commercial broadcast
of the Dark Horse on radio stations throughout Missouri and the nation;
d. Authorizing, arranging for, profiting from, and/or performing the Dark
Horse song on national television programs that are broadcast into Missouri,
including the performance of the song on or about January 26, 2014 at the
nationally televised 56th Annual Grammy Awards®, which was broadcast by CBS
television and reached a viewing audience of more than 28 million, including,
upon information and belief, hundreds of thousands of citizens of Missouri;
e. Authorizing, arranging for, profiting from, and/or performing the Dark
Horse song at live concerts in Missouri in 2014 at the Scottrade Center in St. Louis
(on August 17) and the Sprint Center in Kansas City (on August 19); and
f. Actively promoting the Dark Horse song on their social media sites and
including direct links to the iTunes page for purchasing a digital download of that
Plaintiffs further contend that the viewing of the infringing music video and
viewing of the Grammy Awards television show contribute to Defendants’
contacts with Missouri.
With respect to Defendant Perry, Plaintiffs allege that her additional
Missouri contacts include:
a. She operates an interactive website where she promotes and sells to
citizens of Missouri and elsewhere copies of the Dark Horse song, as shown on the
screenshots from her website;
b. She traveled into Missouri for the commercial purpose of performing two
concerts in Missouri in August of 2014 where, on information and belief, her
performance of the infringing Dark Horse song was seen by approximately 40,000
With respect to each of the other five individual Defendants who are listed
as writers and co-owners of the copyright in the Dark Horse song, in addition to
their Missouri contacts alleged above, these Defendants knew, intended, expected,
and agreed that a song that they would co-write for Defendant Perry would be
distributed, promoted, broadcast, and sold throughout the nation, including in
Missouri, in that, among other things, they knew or should have known that:
a. Defendant Perry’s prior two albums—One of the Boys and Teenage
Dreams—had each sold more than 5 million copies nationwide, including in
b. Twelve singles from those two albums had sold more than 1 million
copies each nationwide, including in Missouri;
c. Seven of those 12 singles had reached the Number 1 spot on the
BILLBOARD HOT 100, which is the American music industry standard record
chart for singles, published by Billboard magazine and based on radio play,
streaming online, and sales; and
d. The commercial and geographic scope of a song performed by Defendant
Perry would exceed the commercial and geographic scope of virtually every other
performing artist, as confirmed earlier this year by the Recording Industry
Associate of America (“RIAA”), in a ceremony naming Perry as the performing
artist with the most Gold and Platinum digital single certifications in history,
which—as stated in the RIAA press release—“makes Perry the first artist to
surpass the 70 million digital award threshold—20 million ahead of any other
Motions to Dismiss
A defendant may move to dismiss a case under Rule 12(b)(2) of the Federal
Rules for “lack of personal jurisdiction.” Fed. R. Civ. P. 12(b)(2).
“Personal jurisdiction over a defendant represents the power of a court to
enter ‘a valid judgment imposing a personal obligation or duty in favor of the
plaintiff.’ ” Viasystems, Inc. v. EBM–Papst St. Georgen GmbH & Co., KG, 646
F.3d 589, 592–93 (8th Cir.2011) (quoting Kulko v. Superior Court of Cal., 436
U.S. 84, 91 (1978)). Rule 12(b)(2) of the Federal Rules of Civil Procedure
authorizes a pre-answer motion to dismiss for “lack of personal jurisdiction.”
As the Eighth Circuit Court of Appeals recently explained,
“To allege personal jurisdiction, ‘a plaintiff must state sufficient facts in the
complaint to support a reasonable inference that the defendant[ ] can be subjected
to jurisdiction within the state.’ ” Wells Dairy, Inc. v. Food Movers Int'l, Inc., 607
F.3d 515, 518 (8th Cir.) (quoting Dever v. Hentzen Coatings, Inc., 380 F.3d 1070,
1072 (8th Cir.2004)), cert. denied, ––– U.S. ––––, 131 S.Ct. 472 (2010). “If the
defendant controverts or denies jurisdiction, the plaintiff bears the burden of
proving facts supporting personal jurisdiction.” Id. This “showing must be tested,
not by the pleadings alone, but by the affidavits and exhibits presented with the
motions and in opposition thereto.” Id. (internal quotation marks omitted). Dairy
Farmers of Am., Inc. v. Bassett & Walker Int'l, Inc., 702 F.3d 472, 474–75 (8th
Cir.2012); Pangaea, Inc. v. Flying Burrito, L.L.C., 647 F.3d 741, 744–45 (8th
Cir.2011) (“Where, as here, ‘the district court does not hold a hearing and instead
relies on pleadings and affidavits, ... the court must look at the facts in the light
most favorable to the nonmoving party, and resolve all factual conflicts in favor of
that party.’ ” (quoting Dakota Indus., Inc. v. Dakota Sportswear, Inc., 946 F.2d
1384, 1387 (8th Cir.1991), with internal citations omitted)).
Although the Court may consider affidavits and other matters outside of the
pleadings on a Rule 12(b)(2) motion, the pleader's burden, in the absence of an
evidentiary hearing, is only to make a “minimal” prima facie showing of personal
jurisdiction, and the Court “must view the evidence in the light most favorable to
the [pleader] and resolve all factual conflicts in its favor in deciding whether the
[pleader] has made the requisite showing.” K–V Pharm. Co. v. Uriach & CIA, S.A.,
648 F.3d 588, 591–92 (8th Cir.2011). Notwithstanding that facts are viewed in the
light most favorable to the pleader, “ ‘[t]he party seeking to establish the court's in
personam jurisdiction carries the burden of proof, and the burden does not shift to
the party challenging jurisdiction.” Viasystems, Inc., 646 F.3d at 592 (quoting Epps
v. Stewart Info. Servs. Corp., 327 F.3d 642, 647 (8th Cir.2003)).
The perspective in this Circuit is one where courts should “approach [the]
analysis of personal jurisdiction on two levels, first examining whether the exercise
of jurisdiction is proper under the forum state’s long-arm statute[,] [and] [i]f the
activities of the non-resident defendant satisfy the statute’s requirements, [to] then
address whether the exercise of jurisdiction comports with due process.” Dakota
Indus. v. Dakota Sportswear, 946 F.2d 1384, 1391 (8th Cir. 1991).2
“Due process requires that a defendant have certain ‘minimum contacts’
with the forum state for personal jurisdiction to be exercised.” Myers v. Casino
Queen, Inc., 689 F.3d 904, 911 (8th Cir. 2012) (citing Int’l Shoe Co. v.
Washington., 326 U.S. 310, 316, 66 S. Ct. 154, 90 L. Ed. 95 (1945)). More
Contacts with the forum state must be sufficient that requiring a party
to defend an action would not “offend traditional notions of fair play
It is not clear whether or not the reach of a state's long-arm statute is relevant to the personal
jurisdiction inquiry in an action against a non-resident defendant that is not based on diversity of
citizenship. Cf. Dairy Farmers of Am., Inc., 702 F.3d at 475 (“ ‘Specific personal jurisdiction can
be exercised by a federal court in a diversity suit only if authorized by the forum state's long-arm
statute and permitted by the Due Process Clause of the Fourteenth Amendment.’ ” (quoting
Viasystems, 646 F.3d at 593)); see also Dakota Indus., Inc. v. Dakota Sportswear, Inc., 946 F.2d
1384, 1388–89 & n. 2 (8th Cir.1991) (noting that, even though subject matter jurisdiction in the
case was predicated on a “federal question,” so that due process for personal jurisdiction
purposes was examined in light of the Fifth Amendment rather than the Fourteenth Amendment,
and Congress had authorized nationwide service of process in federal question cases, the court
nevertheless applied “minimum contacts” analysis and considered the reach of the state's longarm statute).
and substantial justice.” [Int’l Shoe Co., 326 U.S.] at 316, 66 S. Ct.
154, 90 L. Ed. 95 (internal quotation marks and citation omitted).
“The ‘substantial connection’ between the defendant and the forum
State necessary for a finding of minimum contacts must come about
by an action of the defendant purposefully directed toward the forum
State.” Asahi Metal Indus. Co. v. Super. Ct. of Cal., 480 U.S. 102,
112, 107 S. Ct. 1026, 94 L.Ed.2d 92 (1987) (internal citations
Myers, 689 F.3d at 911. The Supreme Court has observed:
Even if the defendant would suffer minimal or no inconvenience from
being forced to litigate before the tribunals of another State; even if
the forum State has a strong interest in applying its law to the
controversy; even if the forum State is the most convenient location of
litigation, the Due Process Clause, acting as an instrument of interstate
federalism, may sometimes act to divest the State of its power to
render a valid judgment.
World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 294 (1980).
There are two methods in which the Due Process Clause may be satisfied
such that minimum contacts between the defendant and the forum state are
established: the first is through general jurisdiction, and the second is through
specific jurisdiction. General jurisdiction refers to the power of a court to hear a
lawsuit against a defendant who has “continuous and systematic” contacts with the
forum state, regardless of where the cause of action actually arose. Helicopteros
Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 415–16 (1984). Here,
Defendant concedes that the Court cannot maintain general personal jurisdiction
over it, and alleges only specific personal jurisdiction.
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“Specific personal jurisdiction, unlike general jurisdiction, requires a
relationship between the forum state, the cause of action, and the defendant.”
Myers, 689 F.3d at 912 (citing Helicopteros, 466 U.S. at 414). The Eighth Circuit
has established a five-factor test to determine whether a defendant’s contacts with
the forum state are sufficient to establish personal jurisdiction over the defendant.
These factors, from Land–O–Nod v. Bassett Furniture Industries, Inc., 708 F.2d
1338, 1340 (8th Cir. 1983), are: (1) the nature and quality of contacts with the
forum state; (2) the quantity of such contacts; (3) the relation of the cause of action
to the contacts; (4) the interest of the forum state in providing a forum for its
residents; and (5) the convenience of the parties. “[The court] must look at all of
the factors in the aggregate and examine the totality of the circumstances in
making a personal jurisdiction determination.” Johnson v. Arden, 614 F.3d 785,
794 (8th Cir. 2010) (citation omitted).
In addition to the five Land–O–Nod factors, the Court must consider
whether Defendant’s alleged intentional acts were performed “for the very purpose
of having their consequences felt in the forum state.” Dakota Indus., 946 F.2d at
1390–91. This is known as the “effects test,” which was first employed by the
Supreme Court in Calder v. Jones, 465 U.S. 783 (1984). The Calder effects test
requires Plaintiff to make three prima facie showings in order for Defendant’s
alleged copyright infringement to serve as a source of personal jurisdiction.
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Plaintiff must show that Defendant’s acts (1) were intentional, (2) were uniquely or
expressly aimed at Missouri, and (3) caused harm, the brunt of which was
suffered—and which Defendant knew was likely to be suffered—in Missouri.
Johnson, 614 F.3d at 796 (internal quotation omitted). Rather than superseding the
Land-O-Nod five-part test for personal jurisdiction, the Calder effects test merely
“requires the consideration of additional factors when an intentional tort is
alleged.” Dakota Indus., 946 F.2d at 1391; see also Johnson, 614 F.3d at 796–97.
The Eighth Circuit has clarified that it does not adhere to a “proximate cause
standard” for the required connection between the defendant’s contacts with the
forum and the plaintiff’s cause of action. See id. Rather, specific jurisdiction is
warranted when the defendant purposely directs its activities at the forum state and
the litigation “result[s] from injuries . . . relating to [the defendant’s] activities [in
the forum state.]” Steinbuch v. Cutler, 518 F.3d 580, 586 (8th Cir. 2008). Courts
consider “the totality of the circumstances in deciding whether personal
jurisdiction exists.” K-V Pharm. Co., 648 F.3d at 592–93.
Defendant Perry, and the Individual Defendants, (Houston, Gottwald, Sarah
Hudson, Sandberg, and Walter), contend that this Court lacks personal jurisdiction
over them and should therefore grant their Motions to Dismiss Plaintiff’s claims.
For the reasons discussed below, the Court agrees, will grant Defendants’ Motions,
and dismiss this action as to these defendants.
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The Court frames its due process inquiry within the Eighth Circuit’s
admonition that “[s]pecific jurisdiction is proper ‘only if the injury giving rise to
the lawsuit occurred within or had some connection to the forum state, meaning
that the defendant[s] purposely directed [their] activities at the forum state and the
claim arose out of or relates to those activities.’” Johnson, 614 F.3d at 795 (quoting
Steinbuch, 518 F.3d at 586 (citing Burger King Corp., 471 U.S. at 472).
The Nature and Quality of the Contacts with Missouri
The first Land–O–Nod factor concerns the nature and quality of Defendants’
contacts with Missouri. It is undisputed that the Defendants never maintained
businesses, properties, offices, employees in Missouri, and are not now, nor ever
have been, registered to do business in Missouri.
Defendant Perry urges that due process analysis fails after consideration of
the first factor alone. Perry has submitted her affidavit in which she avers that she
has no control over the commercial distribution of Dark Horse; her only contacts
with Missouri are four concert performances during 2011 and 2014, which were
part of international tours. Moreover, the concerts were arranged through, and
were services rendered by Perry to her California touring company, Kitty Purry,
Inc. Defendant Perry further avers that she has no involvement in the commercial
distribution of the song anywhere, including Missouri. Thus, the nature and
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quantity of Perry’s contacts with Missouri are limited to the concert appearances.
These contacts fall within the random and fortuitous sphere of the analysis.
Plaintiffs have presented no evidence that Perry purposefully directed any of her
actions toward the citizens of Missouri such that she would be expected to be haled
into a court located within the State.
The First Amended Complaint contains no allegations that the Individual
Defendants have ever done anything in Missouri. Indeed, Plaintiffs’ First
Amended Complaint merely sets out that two of the three remaining Plaintiffs are
citizens of Missouri, however, the fact that the harm from the alleged infringement
may have been felt in Missouri is insufficient for the Court to exercise jurisdiction
over these Defendants where there is nothing to support their actions being
purposefully directed at Missouri citizens. The clear tenor of the allegations is that
the distribution of the song Dark Horse was nation-wide with nothing to establish a
direct relationship with Missouri. There are no contacts of these Defendants with
Plaintiffs also contend that, because the subject song was offered for
download and listening on a website, which is accessible in Missouri, Defendants
have sufficient contacts with the state for this Court to exercise personal
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The Zippo test is instructive in evaluating the sufficiency of internet contacts
under a specific jurisdiction analysis. See Johnson, 614 F.3d at 796 (citing Zippo
Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1124 (W.D. Pa. 1997)). In
Zippo, the court created a “sliding scale” to evaluate websites for conferring
At one end of the spectrum are situations where a defendant clearly
does business over the Internet. If the defendant enters into contracts
with residents of a foreign jurisdiction that involve the knowing and
repeated transmission of computer files over the Internet, personal
jurisdiction is proper. At the opposite end are situations where a
defendant has simply posted information on an Internet Web site
which is accessible to users in foreign jurisdictions. A passive Web
site that does little more than make information available to those who
are interested in it is not grounds for the exercise personal jurisdiction.
The middle ground is occupied by interactive Web sites where a user
can exchange information with the host computer. In these cases, the
exercise of jurisdiction is determined by examining the level of
interactivity and commercial nature of the exchange of information
that occurs on the Web site.
952 F. Supp. at 1124 (internal citations and quotation marks omitted).
In considering where the song is accessible on a website, the Court notes
well the Eight Circuit’s explanation that “under Zippo, whether specific personal
jurisdiction could be conferred on the basis of an interactive website depends not
just on the nature of the website but also on evidence that individuals in the forum
state accessed the website in doing business with the defendant.” Johnson, 614
F.3d at 797 (citing id. at 1125–26). In this regard, “although [a website] may be
characterized as interactive, there is no evidence in the record that [Defendants]
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engaged in any transaction or exchange of information with a Missouri resident via
[the website], or that a Missouri resident ever accessed the website.” Id.
Furthermore, Defendants have presented affidavits that the website is owned and
operated by a third party, not a party to this action. The actions of parties and
entities not before the Court cannot be the basis upon which the Court could
exercise jurisdiction over the parties that are before it.
The Court therefore finds that, due to the nature and quality of the contacts
between the parties, Defendant s Perry and the Individual Defendants could not
have reasonably anticipated being haled into court in Missouri, and thus, the first
Land–O–Nod factor weighs in favor of Defendant.
The Quantity of Contacts
Because Plaintiff failed to sufficiently allege the nature and quality of the
contacts between Defendant and Missouri to confer specific jurisdiction, the
numerosity of such contacts is immaterial to the Court’s analysis.
The Relationship of the Cause of Action to the Contacts
The third Land–O–Nod factor focuses on Defendants’ contacts with
Missouri as it relates to the particular cause or causes of action asserted. Bell Paper
Box, Inc. v. U.S. Kids, Inc., 22 F.3d 816, 819 (8th Cir. 1994). “The third factor
distinguishes between specific and general [personal] jurisdiction.” Myers, 689
F.3d at 911. This is so, because “[s]pecific personal jurisdiction, unlike general
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jurisdiction, requires a relationship between the forum, the cause of action, and the
defendant.” Id. at 912. The Calder effects test may be utilized in analyzing the
The Calder Court found that the defendants were subject to California’s
personal jurisdiction because the defendants’ acts were intentional, the allegedly
libelous article they wrote was centered on the life and career of a longstanding
California resident, “and the brunt of the harm, in terms both of Plaintiff’s
emotional distress and the injury to her professional reputation, was suffered in
California.” 465 U.S. at 789. Because the defendants’ acts were “expressly aimed
at California,” and they knew that “injury would be felt by Plaintiff in the State in
which she lives and works and in which the National Enquirer has its largest
circulation,” the defendants were assumed to have reasonably anticipated being
haled into court in the forum state. Id. at 789–90.
Following Calder, cases decided throughout this Circuit uniformly have held
that in order for a defendant’s tortious conduct to confer personal jurisdiction, there
must be a prima facie showing that the defendant's intentional acts were
“performed for the very purpose of having their consequences felt in the forum
state.” Dakota Indus., 946 F.2d at 1391 (internal citation omitted). See, e.g.,
Johnson, 614 F.3d at 796 (no personal jurisdiction where defendant’s allegedly
defamatory comments were not expressly aimed at forum, and no other evidence of
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minimum contacts existed); Gen. Elec. Capital Corp. v. Grossman, 991 F.2d 1376,
1387 (8th Cir. 1993) (no personal jurisdiction where “focal point” of tortious injury
occurred in outside forum, even though the court agreed that effects of harm
ultimately were felt in forum); Hicklin Eng’g, Inc. v. Aidco, Inc., 959 F.2d 738,
739 (8th Cir. 1992) (no personal jurisdiction where defendant had knowledge that
plaintiff would be affected by intentional tort, but otherwise had no other
connection with forum); N.C.C. Motorsports, 975 F. Supp. 2d 993 (no personal
jurisdiction where non-resident defendant entered into a lease with Missouri
plaintiff to use plaintiff’s copyrighted shopping cart vehicle for promotional
purposes, knowingly hired third party to build an infringing shopping cart, and
then terminated lease when shopping cart was ready); Express Scripts, Inc. v. Care
Continuum Alliance, Inc., 2011 U.S. Dist. LEXIS 61157, 2011 WL 2199967, *4
(E.D. Mo. June 7, 2011) (no personal jurisdiction where defendant did not
knowingly target trademark infringement at forum, and defendant had no other
contacts with forum).
Even a close examination of Calder reveals that the Supreme Court’s finding
of personal jurisdiction in that case depended on something more than the
defendants’ knowledge that the plaintiff would feel the brunt of the injury in her
state of residence. 465 U.S. at 784–87. Other contacts between the defendants and
the forum state were found in Calder, including the fact that the defendants made
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frequent trips to the forum for business, made direct phone calls to residents of the
forum in furtherance of the tort, and published the defamatory article about the
plaintiff in the forum, a state where the defendants’ publication had its highest
circulation. Id. All of these facts combined evidenced the Calder defendants’
purposeful availment of the forum and justified the court’s exertion of personal
jurisdiction over them.
Johnson is particularly instructive to the facts of this case. Plaintiffs invoke
the argument that the effect of Defendants’ alleged copyright infringement was felt
in Missouri by virtue of the fact that two of the Plaintiffs are the holder of the
copyright and Missouri citizens. However, the Johnson court applied Calder to
such an argument and rejected it. 614 F.3d at 797–98. The court explained that
“even if the effect of [the alleged tort] was felt in Missouri, [the Eighth Circuit]
use[s] the Calder test merely as an additional factor to consider when evaluating a
defendant’s relevant contacts with the forum state.” Id. at 796–97. Following this
logic, the Johnson court “construed the Calder effects test narrowly, and h[e]ld
that, absent additional contacts, mere effects in the forum state are insufficient to
confer personal jurisdiction.” Id. at 797.
Here, as noted, Defendants not only have too few additional contacts with
Missouri to confer personal jurisdiction on the basis of the Calder effects tests, the
Individual Defendant have no additional contacts with Missouri. Cf. N.C.C.
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Motorsports, 975 F. Supp. 2d 993 (holding that Calder effects test did not confer
personal jurisdiction in copyright infringement case where defendant had
previously entered into a lease with Missouri plaintiff to use plaintiff’s copyright).
Based on the application of the Calder effects test, the third Land–O–Nod
factor weighs in favor of Defendants.
Missouri’s Interest in Providing a Forum for its Residents and the
Convenience of the Parties
Before the Court considers the final two Land–O–Nod factors, it is important
to recognize that they cannot outweigh the first three factors. See Land–O–Nod,
708 F.2d at 1340 (“For instance, the last two factors are said to be of secondary
importance and not determinative.”) Defendants argue that because not all of the
Plaintiffs are Missouri citizens, the interest of Missouri in litigating this matter
here is at best neutral. Defendants argue, also that the fifth—the convenience of
the parties—should weigh in favor of Defendants and a transfer of this action.
Defendant Capitol Records also seeks transfer based on the location of the parties,
witnesses and records. These factors, however, do little to influence the personal
jurisdiction analysis in this case, and the Court notes that Missouri’s “interest in
providing its residents with a forum cannot make up for the absence of minimum
contacts.” Digi-Tel Holdings v. Proteq Telcoms., 89 F.3d 519, 525 (8th Cir. 1996).
Due Process Conclusion
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For the reasons explained, the Court finds that Plaintiffs failed to allege the
minimum contacts with Missouri necessary to comport with the Due Process
Clause as it relates to Plaintiffs’ claims against Defendant Perry and the Individual
Defendants. Although the personal jurisdiction analysis incorporates both a due
process inquiry and a long-arm statute inquiry, given that the Missouri long-arm
statute authorizes personal jurisdiction to the extent permissible under the Due
Process Clause, a finding that a plaintiff has failed to establish that personal
jurisdiction comports with the Due Process Clause is dispositive in Missouri cases,
thus obviating the necessity of a long-arm inquiry. See Eagle Tech., Inc. v.
Expander Ams., Inc., 783 F.3d 1131, 1136 (8th Cir. 2015) (“Because ‘the Missouri
long-arm statute authorizes the exercise of jurisdiction over non-residents to the
extent permissible under the due process clause, we turn immediately to the
question whether the assertion of personal jurisdiction would violate the due
process clause.’”) (quoting Romak USA, Inc. v. Rich, 384 F.3d 979, 984 (8th Cir.
2004)); see also Viasystems, 646 F.3d at 594 (“We need not decide whether these
actions by St. Georgen suffice to place it within the bounds of Missouri’s long-arm
statute, because it is clear that the cited activities are not sufficient to surmount the
due-process threshold.”).3 Accordingly, based on the Court’s due process analysis,
it finds that it does not have personal jurisdiction over Defendants Perry and the
By contrast, a court’s finding that it does have personal jurisdiction over a non-resident defendant requires analysis
of both the long-arm statute and the Due Process Clause. See Myers, 689 F.3d at 909–910 (citing Bryant v. Smith
Interior Design Group, Inc., 310 S.W.3d 227, 231 (Mo. banc 2010)).
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Individual Defendants arising from the alleged acts in infringing Plaintiffs’
copyright in their song Joyful Noise.
Motion to Transfer
Defendant Capitol Records does not dispute that the Court has personal
jurisdiction over it, rather, it seeks transfer of this action to either New York, or in
the alternative, California. Plaintiffs argue that because Capitol utilizes this Court
for its own copyright actions, it should not be allowed to now argue that the Court
is inconvenient for this action. Plaintiffs’ argument, however, misses the substance
of the Motion. The basis upon which Capitol seeks transfer is particular and
specific to this action, as well it should be. The mere fact that Capitol has had
actions in this Court in the past does not alleviate the inconvenience it argues it
will experience if this case is tried here.
Importantly, because the Court will grant the motions to dismiss for lack of
personal jurisdiction over Defendants Perry and the Individual Defendants, the
remaining Defendant would be Capitol. Presumably, Plaintiffs will refile their
action against Perry and the Individual Defendants in a forum which would have
personal jurisdiction over these Defendants, being either New York or California.
Thus, the possibility of duplicative actions based on the same salient facts would
result. Transferring this action to a Court that could preside over all claims against
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Perry, the Individual Defendants and Capitol makes sound judicial sense in terms
of judicial economy and consistent judgments.
Capitol has presented evidence that it has no offices in Missouri, its principal
offices are located in New York and California, thus, witnesses and documents
relevant to this action would be located at these offices, the creation of the disputed
song occurred in California and Sweden and the distribution of Dark Horse was
directed from Capitol’s offices in New York and California. The Individual
Defendants have declared that the creation of the song occurred in California or
Considering all of the above factors, the Court concludes that this matter
should be transferred to the Central District of California.
Based on the foregoing, the Court grants Defendants’ Motion to Dismiss for
Lack of Personal Jurisdiction, and dismisses this action as to Defendant Perry and
the Individual Defendants. The Court grants the Motion to Transfer the action as
to Defendant Capitol to the United States District Court for the Central District of
IT IS HEREBY ORDERED that Defendant Katheryn Hudson,
professionally known as Katy Perry’s (Perry) Motion to Dismiss the First
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Amended Complaint for Lack of Personal Jurisdiction and in the Alternative, to
Transfer. [Doc. No. 39], is GRANTED.
IT IS FURTHER ORDERED that Defendants Jordan Houston, P/K/A
Juicy J, Lukasz Gottwald P/K/A Dr. Luke, Sarah Hudson, Karl Martin Sandberg
P/K/A Max Martin, and Henry Walter P/K/A Cirkut’s Renewed Motion to Dismiss
for Lack of Personal Jurisdiction, [Doc. No 42], is GRANTED.
IT IS FURTHER ORDERED that Defendant Capitol Records, LLC’s
Renewed Motion to Transfer, [Doc. No. 42], is GRANTED.
IT IS FURHTER ORDERED that this matter is transferred to the United
States District Court for the Central District of California.
Dated this 23rd day of July, 2015.
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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