Warren v. Cardoza Publishing Company et al

Filing 31

MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that Plaintiffs Motion for Stay and for Leave to Conduct Discovery Related to Personal Jurisdiction Issues (ECF NO. 26 ) is DENIED. IT IS FURTHER ORDERED that Plaintiff shall file any response to Defendant's Motion to Dismiss for Lack of Personal Jurisdiction and Estoppel no later than December 2, 2016. Signed by District Judge Ronnie L. White on 11/18/2016. (KCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KENNETHC. WARREN,
Plaintiff,
V.

CARDOZA PUBLISHING COMPANY, et al.,
Defendants.

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No. 4:16CV572 RLW

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiffs Motion to Stay and for Leave to Conduct
Discovery Related to Personal Jurisdiction Issues (ECF No. 26). The motion is fully briefed and
ready for disposition.
Background

On April 22, 2016, Plaintiff filed a Complaint against Defendants Cardoza Publishing
Company ("Cardoza Publishing") and Avery Cardoza, a/k/a Allan Silberstang ("Cardoza"),
raising seven counts related to five publishing book contracts the parties entered into between
June 2002 and September 2004. (Compl.

iii! 1-4, 8, ECF No. 1) The book contracts granted

Defendant Cardoza Publishing the right to publish, sell, and license books authored by Plaintiff
pertaining to the game of poker. (Id. at iii! 8-9) The contracts also provided for royalties to be
paid to Plaintiff. (Id. at ii 10) Plaintiff contends that his books sold many more copies, both
domestically and in foreign countries, than Defendants reported. (Id. at ii 17) In addition, he
alleges that the books had been translated into other languages and sold abroad, which
Defendants failed to communicate. (Id. at iii! 18-19) Plaintiff claims that Defendants have failed
to make royalty payments to Plaintiff for many years and that he terminated the book contracts

based upon Defendants' breach of the contracts. (Id. at ifif21-22) However, Plaintiff maintains
that Defendants have continued to publish and sell Plaintiffs books, including internet sales
since 2010. (Id. at 23 -26) The Complaint alleges that Plaintiff is a resident of Missouri, and
Defendant Cardoza is citizen and resident of Nevada. (Id. at if 1, 3) Cardoza Publishing is a
Florida corporation, with its principal place of business in Nevada. (Id. at if 2)
On July 26, 2010, Plaintiff filed an action in this court against Defendants based upon the
same contracts set forth above (" Warren I"). Ken Warren v. Cardoza Publishing, Inc., et al. , No.
4:10-CV-01353 SNLJ. Plaintiffs First Amended Complaint in the 2010 law suit alleged breach
of contract, request for an accounting, declaratory and injunctive relief, unjust enrichment, and
fraud. On December 2, 2011 , United States District Judge Stephen N . Limbaugh, Jr. , issued a
Memorandum and Order granting Defendants' Motion to Dismiss Due to Lack of Personal
Jurisdiction and dismissing all of Plaintiffs claims without prejudice. Warren v. Cardoza
Publ 'g, Inc., No. 4:10-CV-01353 SNLJ, 2011WL6010758 (E.D. Mo. Dec. 2, 2011). On

February 21 , 2012, Plaintiff filed a petition in the Circuit Court of St. Charles County, Missouri
asserting the same claims contained in the 2010 law suit (Warren JI). (Compl. if 27; Defs. ' Mot.
to Dismiss Ex. L, Kenneth Warren v. Cardoza Publ 'g, et al., No. 121 l -CC00182, ECF No. 2412) Plaintiff voluntarily dismissed the case without prejudice on April 24, 2015 after the state
court heard argument on Defendants' motion to dismiss for lack of jurisdiction and ordered
Plaintiff file a memorandum in opposition. (Defs.' Mot. to Dismiss Exs. Mand N, ECF Nos. 2414, 24-15)
The Complaint now before the Court, which is Plaintiffs third law suit against
Defendants regarding the book contracts (" Warren III") , alleges Copyright Infringement (Count
I); Breach of Contract (Count II); Request for an Accounting (Count III); Unjust Enrichment

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(Count IV); Fraud (Count V); Declaratory and Injunctive Relief (Count VI); and Money Had and
Received (Count VII) . Plaintiff claims that venue is proper in this Court "because a substantial
part of the events or omissions giving rise to the claims occurred in this judicial district."
(Compl.

if 7)

Specifically, Plaintiff contends that Defendant Cardoza Publishing markets and

sells Plaintiffs copyrighted books through "brick and mortar" retail locations and through its
website and other online outlets and internet websites. (Id.) Plaintiff further asserts that the
allegedly infringing products are regularly sold within the Eastern District of Missouri . (Id.)
On August 12, 2016, Defendants filed a Motion to Dismiss for Lack of Personal
Jurisdiction and Estoppel based on Judge Limbaugh's determination that the court lacked
personal jurisdiction over Defendants. Defendants have attached several exhibits in support of
their motion, as well as an affidavit from Defendant Cardoza, indicating that Cardoza Publishing
does not distribute books to book stores or other retail outlets in Missouri, but that sales are
through a third party distributor. (Cardoza Aff.

iii! 9-10, 13-17, ECF No . 25)

Further, Cardoza

avers that his company has maintained a website since 2008 and that only one web purchase was
made by a person in Missouri, six days after Plaintiff filed the present suit. (Id. at if 18) Cardoza
additionally states that Cardoza Publishing Company does not sell Plaintiffs books to Amazon.

(Id. at iii! 19-20) Plaintiff responded with a Motion for Stay and for Leave to Conduct
Discovery on Personal Jurisdiction Issues.

Discussion
"A court may grant discovery on the issue of personal jurisdiction when jurisdictional
facts are unclear from the record and a party demonstrates that it can supplement its
jurisdictional allegations through discovery. Stockel! Healthcare Sys., Inc. v. CSS Healthcare

Techs. , Inc. , No. 4:16-cv-00237-JCH, 2016 WL 3743190, at *2 (E.D. Mo. July 13 , 2016)

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(citation omitted). However, "' [w]hen a plaintiff offers only speculation or conclusory assertions
about contacts with a forum state, a court is within its discretion in denying jurisdictional
discovery. "' Viasystems, Inc. v. EBM-Papst St. Georgen GmbH & Co. KG, 646 F.3d 589, 598
(8th Cir. 2011) (quoting Dever v. Hentzen Coatings, Inc., 3 80 F .3d 1070, 107 4 n.1 (8th Cir.
2004) (internal quotation omitted)); see also 1st Tech., LLC v. Digital Gaming Sols. SA ., No.
4:08 CV 586 DDN, 2008 WL 4790347, at *6 (E.D. Mo. Oct. 31 , 2008) (" 'Where a plaintiffs
claim of personal jurisdiction appears to be both attenuated and based on bare allegations in the
face of specific denials made by defendants, the Court need not permit even limited discovery."')
(quoting Terracom v. Valley Nat '! Bank, 49 F.3d 555, 562 (9th Cir. 1995)).
Here, Plaintiff requests that the Court stay ruling on the Motion to Dismiss to allow him
to propound interrogatories and requests for productions on Defendants related to the personal
jurisdiction issues and to depose Cardoza and subpoena the distributors. However, other than
speculative and conclusory allegations that Defendants have sufficient contacts with Missouri,
Plaintiff offers nothing to show that jurisdictional discovery is necessary. Indeed, the record
shows that Plaintiff filed Warren I in 2010 and Warren II in 2012. Plaintiff offered affidavits
and exhibits in Warren I and conducted substantial discovery in Warren II during the years 2012
through 2014. (Defs.' Mot. to Dismiss Ex. J, ECF No. 24-10; Ex. P, ECF No. 24-16) Instead of
offering evidence or specific allegations to refute Defendant's Motion to Dismiss for Lack of
Personal Jurisdiction and Estoppel, Plaintiff now asserts that he requires jurisdictional discovery
to respond to the motion. However, after six years of attempting to bring a claim in Missouri,
and having presented only speculative facts, at best, the Court finds that Plaintiffs request is
nothing more than a fishing expedition. See Riceland Foods, Inc. v. SCF Marine, Inc., No.
4:09CV830 CDP, 2009 WL 2928764, at *3 (E.D. Mo. Sept. 9, 2009) (declining to authorize

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plaintiffs fishing expedition). Thus, the Court will deny Plaintiffs request to stay Defendants'
motion to dismiss and for jurisdictional discovery.
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs Motion for Stay and for Leave to Conduct

Discovery Related to Personal Jurisdiction Issues (ECF NO. 26) is DENIED.
IT IS FURTHER ORDERED that Plaintiff shall file any response to Defendant' s

Motion to Dismiss for Lack of Personal Jurisdiction and Estoppel no later than December 2,
2016.
Dated this 18th day of November, 2016.

.~/lido
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UNITED STATES DISTRICT JUDGE

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