Erickson v. Blake

Filing 26

MEMORANDUM AND ORDER - Defendant Michael John Blake's Motion to Dismiss 11 is granted in part, as follows: the Clerk of the Court is directed to transfer this action to the United States District Court for the District of Oregon; and The Motion is otherwise denied based on the Court's lack of personal jurisdiction over the Defendant. Ordered by Judge Laurie Smith Camp. (KBJ)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LARS ERICKSON,
Plaintiff,
v.
MICHAEL JOHN BLAKE,
Defendant.

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CASE NO. 8:11CV127

MEMORANDUM
AND ORDER

This matter is before the Court on the Motion to Dismiss (Filing No. 11) submitted
by Defendant Michael John Blake (“Blake”), seeking dismissal of the Complaint (Filing No.
1) filed by Plaintiff Lars Erickson (“Erickson”), under Federal Rule of Civil Procedure
12(b)(6). Alternatively, Blake asks the Court to transfer this action under Federal Rule of
Civil Procedure 12(b)(2) and (3). For the reasons discussed below, the Motion will be
granted in part, and this case will be transferred to the United States District Court for the
District of Oregon.
FACTUAL BACKGROUND
For purposes of the pending Motion to Dismiss, the factual assertions in the
Complaint are accepted as true, although the Court need not accept Erickson’s
conclusions of law.
Erickson is a Nebraska resident currently residing in Omaha. He owns a federal
copyright registration for the work entitled “Pi Symphony,” that he wrote in 1992. In the fall
of 2001, Erickson developed and published a web site captioned “Pisymphony.com.”
Beginning in approximately May 2010, he included a video on the website with a
performance of the Pi Symphony, as well as a detailed description of how the Pi Symphony

was developed. A search of the terms "Melody of Pi" utilizing the Google search engine
discloses his copyrighted work within the first twenty search results.
Blake is a resident of Oregon currently residing in Portland. On or about February
12, 2011, he published the work "What Pi Sounds Like" on the web site “YouTube.” Upon
learning about Blake’s work, Erickson contacted Blake and informed him that Erickson
owns a copyright in the work “Pi Symphony.” Erickson told Blake that the work "What Pi
Sounds Like" sounded substantially similar to his own “Pi Melody”1 and infringed on his
copyright. Initially, Blake agreed to work with Erickson to avoid any infringement claims,
but ultimately rejected Erickson’s offer to license the work. Blake then re-published his
work on YouTube on or about April 1, 2011. Blake is offering for sale copies of the alleged
infringing work via the ITunes and CD Baby websites. Erickson claims that Blake sells his
work in the State of Nebraska, and that Erickson purchased a copy of Blake’s work from
iTunes within the State of Nebraska.
Erickson filed his Complaint on April 5, 2011. Count one of the Complaint alleges
federal copyright infringement, claiming that Blake’s work is substantially similar to
Erickson’s “Melody of Pi.”

Erickson claims that Blake’s work destroys the public’s

identification of Erickson’s work causing Erickson to suffer irreparable harm and lost profits.
Count two alleges unfair competition2 by creation of a likelihood of public confusion as to
the original source of Erickson’s work. Erickson seeks actual damages, disgorgement of

1

The Complaint and abstract of the federal copyright registration refer to
Erickson’s work as the “Pi Symphony,” although the Complaint at times uses the terms
“Pi Melody.”
2

Whether this claim is asserted under federal or state law is unclear. Count two
claims that the Court should assume pendent jurisdiction over count two because it is
substantially related to Erickson’s claim in count one.
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profits, statutory damages, and reasonable expenses and attorneys’ fees. Erickson also
seeks an injunction against Blake prohibiting future infringement.
STANDARDS OF REVIEW3
Rule 12(b)(2)
To survive a Federal Rule of Civil Procedure 12(b)(2) motion to dismiss for lack of
personal jurisdiction, “the plaintiff must state sufficient facts in the complaint to support a
reasonable inference that defendants may be subjected to jurisdiction in the forum state.”
Steinbuch v. Cutler, 518 F.3d 580, 585 (8th Cir. 2008) (citing Dever v. Hentzen Coatings,
Inc., 380 F.3d 1070, 1072 (8th Cir. 2004)). When jurisdiction has been challenged, “the
plaintiff has the burden of proving facts supporting personal jurisdiction,” Miller v. Nippon
Carbon Co., Ltd., 528 F.3d 1087, 1090 (8th Cir. 2008) (citing Dever 380 F.3d at 1072), but
a plaintiff need only “establish[] a prima facie case” that personal jurisdiction exists.
Steinbuch, 518 F.3d at 585 (citing Johnson v. Woodcock, 444 F.3d 953, 955 (8th Cir.
2006)). The plaintiff's showing “must be tested, not by the pleading alone, but by affidavits
and exhibits presented” in support of and in opposition to the motion to dismiss for lack of
personal jurisdiction. Coen v. Coen, 509 F.3d 900, 904-05 (8th Cir. 2007) (quoting Dever
380 F.3d at 1072).

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Because the Court finds personal jurisdiction lacking and venue improper, it
does not reach the merits of Blake’s Motion under Rule 12(b)(6). Therefore, the
standard of review for that rule is not included here.
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Rule 12(b)(3)
Fed. R. Civ. P. 12(b)(3) permits a party to raise the defense of “improper venue” by
motion. When jurisdiction is based solely on diversity of citizenship, proper venue may be
found in:
“(1) a judicial district where any defendant resides, if all defendants reside
in the same State; (2) a judicial district in which a substantial part of the
events or omissions giving rise to the claim occurred or a substantial part of
property that is the subject of the action is situated; or (3) a judicial district in
which any defendant is subject to personal jurisdiction at the time the action
is commenced, if there is no district in which the action may otherwise be
brought.”
28 U.S.C. § 1391(a).
Venue in civil actions not founded solely on diversity of citizenship are governed by
28 U.S.C. § 1391(b). Section 1391(b) states:
A civil action wherein jurisdiction is not founded solely on diversity of
citizenship may, except as otherwise provided by law, be brought only in (1)
a judicial district where any defendant resides, if all defendants reside in the
same State, (2) a judicial district in which a substantial part of the events or
omissions giving rise to the claim occurred, or a substantial part of property
that is the subject of the action is situated, or (3) a judicial district in which
any defendant may be found, if there is no district in which the action may
otherwise be brought.
28 U.S.C. § 1391(b).
Civil actions arising under any federal statute “relating to copyrights or exclusive
rights in mask works or designs may be instituted in the district in which the defendant or
his agent resides or may be found.” 28 U.S.C. § 1400(a).

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DISCUSSION
Personal Jurisdiction over Blake
In determining whether this Court has personal jurisdiction over a nonresident
defendant, two issues are presented: (1) whether the requirements of the Nebraska longarm statute are satisfied and (2) whether the exercise of jurisdiction over this Defendant
will violate the Due Process Clause of the Fourteenth Amendment. Coen, 509 F.3d at 905
(citing Dakota Indus., Inc. v. Ever Best Ltd., 28 F.3d 910, 915 (8th Cir. 1994)). Nebraska’s
long-arm statute, Neb. Rev. Stat. § 25-536,4 has been interpreted to extend jurisdiction
over nonresident defendants to the fullest degree allowed by the Due Process Clause of
the United States Constitution. Wagner v. Unicord Corp., 526 N.W.2d 74, 77 (Neb. 1995).
Thus, the Court need only determine whether the assertion of jurisdiction in this case
offends constitutional limits.
“The touchstone of the due-process analysis remains whether the defendant has
sufficient ‘minimum contacts with [the forum state] such that the maintenance of the suit
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Neb. Rev. Stat. § 25-536 provides:

A court m ay exercise personal jurisdiction over a person:
(1) W ho acts directly or by an agent, as to a cause of action arising from the
person:
(a) Transacting any business in this state;
(b) Contracting to supply services or things in this state;
(c) Causing tortious injury by an act or omission in this state;
(d) Causing tortious injury in this state by an act or om ission outside this state if
the person regularly does or solicits business, engages in any other persistent course of
conduct, or derives substantial revenue from goods used or consum ed or services
rendered, in this state;
(e) Having an interest in, using, or possessing real property in this state; or
(f) Contracting to insure any person, property, or risk located within this state at
the tim e of contracting; or
(2) W ho has any other contact with or m aintains any other relation to this state to
afford a basis for the exercise of personal jurisdiction consistent with the Constitution of
the United States.

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does not offend‘traditional notions of fair play and substantial justice.’” Viasystems, Inc. v.
EBM-Papst St. Georgen GmbH & Co., No 10-2460, — F.3d —, 2011 WL 2899147, at *3
(8th Cir. July 21, 2011) (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316
(1945)). “The fundamental inquiry is whether the defendant has ‘purposefully availed’ itself
of the ‘benefits and protections’ of the forum state . . . , to such a degree that it ‘should
reasonably anticipate being haled into court there.’” Id. (quoting Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 474-76 (1985); and World–Wide Volkswagen Corp. v. Woodson,
444 U.S. 286, 291 (1980)). “The Supreme Court has set forth two theories for evaluating
minimum contacts, general jurisdiction and specific jurisdiction.”

Dever v. Hentzen

Coatings, Inc., 380 F.3d 1070, 1073 (8th Cir. 2004). “Under the theory of general
jurisdiction, a court may hear a lawsuit against a defendant who has ‘continuous and
systematic’ contacts with the forum state, even if the injuries at issue in the lawsuit did not
arise out of the defendant’s activities directed at the forum.” Id. (citing Helicopteros
Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 415-16 (1984)). “In contrast, specific
jurisdiction is viable only if the injury giving rise to the lawsuit occurred within or had some
connection to the forum state.” Id. (citing Hall, 466 U.S. at 414). Erickson does not claim
that Blake is subject to general jurisdiction in Nebraska, thus, the Court need only look to
whether it may exercise specific jurisdiction over Blake.
“Once it has been decided that a defendant purposefully established minimum
contacts within the forum State, these contacts may be considered in light of other factors
to determine whether the assertion of personal jurisdiction would comport with “fair play
and substantial justice.” Burger King Corp., 471 U.S. at 476 (quoting International Shoe

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Co., 326 U.S. at 320). See also Dever, 380 F.3d at 1073. In light of the foregoing
principles, the Eighth Circuit “instruct[s] courts to consider the following factors when
resolving a personal jurisdiction inquiry: (1) the nature and quality of a defendant’s 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.” Dever, 380 F.3d at 1073-74 (internal quotation marks,
brackets, and citation omitted). See also Sybaritic, Inc. v. Interport Intern., Inc., 957 F.2d
522, 524 (8th Cir. 1992) (explaining that this five-factor framework “incorporates the notions
of both ‘minimum contacts’ and ‘fair play and substantial justice’”). The parties do not
specifically address the factors in their arguments, but the Court’s own analysis of the
factors demonstrates that it lacks personal jurisdiction over Blake.
1.

Nature and Quality of Blake’s Contacts with Nebraska
Erickson alleges that Blake’s contacts with Nebraska are (1) uploading his infringing

work “What Pi Sounds Like” on YouTube, (2) placing the work for sale by download on
iTunes and CD Baby, because both are generally accessible to all states, and (3)
continuing to violate copyright law after failed negotiations with a Nebraska resident.
Further, Erickson claims that Blake derives income from Nebraska resulting in the sale of
his work on iTunes. Erickson has provided no evidence or allegation of such income,
however, other than his own purchase of Blake’s work. Last, there is no indiction that
Blake availed himself of the laws of Nebraska when negotiating a license agreement with
Erickson. These contacts are at most, “random, fortuitous, [and] attenuated,” and do not
give rise to the requisite level of contacts necessary to satisfy the constitutional
requirements of due process. Steinbuch, 518 F.3d at 586 (internal quotations omitted).
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Therefore, the Court concludes that the nature and quality of Blake’s contacts with
Nebraska do not suffice to subject Blake to the jurisdiction of this Court.
2.

Quantity of Blake’s Contacts With Nebraska
Blake has never been in Nebraska. Erickson claims that the posting of Blake’s work

“on iTunes and YouTube was clearly a business related activity that was guaranteed to
yield internet consumers nationwide, which logically includes the location of the copyright
owner in Nebraska.” (Pl. Br., Filing No. 21, at 7.) The Court concludes that this conduct
does not demonstrate that Blake purposefully availed himself of the privilege of conducting
activities within the state of Nebraska. Burger King, 471 U.S. at 475. As stated above, the
only evidence or allegation of income received by Blake from Nebraska is Erickson’s own
purchase of a single copy of Blake’s work on iTunes. To conclude that Blake must be
subject to personal jurisdiction in Nebraska based on such contacts would offend the
“traditional notions of fair play and substantial justice.” International Shoe Co., 326 U.S.
at 316. The quantity of Blake’s contacts with the forum state are de minimus, at most.
3.

The Relationship Between the Cause of Action and Blake’s Contacts in Nebraska
Erickson’s argument for the relationship of Blake’s contact to Erickson’s cause of

action is based on two theories. First, Erickson argues that Blake knew that the brunt of
the effects of uploading his work would be felt by Erickson in Nebraska. This theory is
based on the “effects test” set forth in Calder v. Jones, 465 U.S. 783 (1984). The effects
test allows “personal jurisdiction over non-resident defendants whose acts are performed
for the very purpose of having their consequences felt in the forum state.” Dakota Indus.,
Inc. v. Dakota Sportswear, Inc., 946 F.2d 1384, 1390-91 (8th Cir. 1991) (internal quotations

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omitted); see also Calder v. Jones, 465 U.S. 783, 789-90 (1984); Coen v. Coen, 509 F.3d
900, 906 (8th Cir. 2007) (quoting Finley v. River North Records, Inc., 148 F.3d 913, 916
(8th Cir. 1998)). If a defendant’s intentional acts are aimed at a particular forum with
knowledge that the brunt of the injury caused by those acts would be suffered in that
forum, then the defendant must reasonably anticipate being haled into court in that forum.
See Denenberg v. Ruder, No. 8:05CV215, 2006 WL 379614, at *3-4 (D. Neb. Feb 15,
2006) (discussing Denenberg v. Berman, No. 4:02CV7 (D. Neb. Dec. 20, 2002)).
Erickson does not claim that Blake initially posted his video on YouTube with
knowledge that it would affect Erickson’s copyright. Erickson, however, argues that Blake
knew or should have known that selling a work on iTunes, and posting a work on YouTube
that infringed on a Nebraska resident’s copyright would result in injury to the copyright
holder in Nebraska. Erickson claims that Blake became aware of the effects in Nebraska
after Erickson contacted Blake in response to Blake’s YouTube video. These arguments
insufficiently allege that Blake knew the brunt of any injury he caused would be felt in
Nebraska. In Calder, the plaintiff claimed that she had been libeled by the National
Enquirer, a Florida-based newspaper with a national circulation. 465 U.S. at 784. The
Supreme Court in Calder found that the defendants' intent to direct its activities to the
forum state could be inferred from the defendants’ knowledge that (1) the article it
published would have a “potentially devastating impact” on the plaintiff, and (2) the “brunt”
of that injury would be felt in California, where the publication had its largest circulation.
Calder, 465 U.S. at 788-89.

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In contrast, there is no allegation and no evidence that Blake was aware that
Erickson was a resident of Nebraska. Erickson argues that, “[a]s alleged in the Complaint
and corroborated by Mr. Blake's declaration, Mr. Blake was and is currently aware of the
fact that Mr. Erickson resides in Nebraska and was therefore aware that the entirety of the
harm from Mr. Blake's actions would fall in Nebraska.” The Complaint alleges that when
Erickson became aware of Blake’s work, he contacted Blake “and informed him that
Plaintiff owns a copyright in and to the work Pi Symphony.” (Compl. ¶ 9.) There is no
other reference in the Complaint to Blake’s awareness of Erickson’s residency. Blake’s
declaration (Filing No. 13-1) likewise makes no reference to his knowledge of Erickson’s
residency. The Court cannot infer Blake’s knowledge simply because he was contacted
by Erickson. No allegations or evidence suggest that Blake was aware that Erickson was
a Nebraska resident.
Even if Blake was aware that Erickson was a Nebraska resident, no evidence
suggests Blake knew the brunt of any injury would be felt in Nebraska. In Calder, the
defendant knew that its actions would have a significant impact in California. Calder, 465
U.S. at 788-89 (“In sum, California is the focal point both of the story and of the harm
suffered. . . [Defendants] knew that the brunt of that injury would be felt by respondent in
the State in which she lives and works and in which the National Enquirer has its largest
circulation.”). The Supreme Court in Calder reasoned that the defendant should have
expected the “brunt” of the injury to occur in California because that is where the
defendant’s publication received the widest circulation. Calder, 465 U.S. at 788-89,
Erickson has offered no equivalent argument or evidence to substantiate his claim that

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Blake should have expected the brunt of Erickson’s injuries to occur in Nebraska.
Therefore, the Calder “effects test” does not establish jurisdiction over Blake.
Erickson’s second theory argues that Blake is subject to jurisdiction in Nebraska
because he uploaded his work to YouTube and for sale on iTunes. Erickson argues that
these were business related activities designed to generate internet customers nationwide,
including customers in Nebraska. In evaluating the question of whether activities on
generally accessible web-based platforms should subject a defendant to specific personal
jurisdiction, the Eighth Circuit has adopted the Zippo analytical framework. Lakin v.
Prudential Sec., Inc., 348 F.3d 704, 711 (8th Cir. 2003) (“We agree with our sister circuits
that the Zippo model is an appropriate approach in cases of specific jurisdiction -, i.e., ones
in which we need only find ‘minimum contacts.’”). In Lakin, the Eighth Circuit Court applied
the following analysis to determine whether a defendant’s website subjected the defendant
to specific personal jurisdiction:
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 [of] 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.
Id. at 710-11 (quoting Zippo Manufacturing Co. v. Zippo Dot Com, Inc., 952 F.Supp.
1119, 1124 (W.D.Pa. 1997)).

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Applying the Zippo framework to the present case, the Court concludes that Blake’s
web-based activities are analogous to a “passive Web site that does little more than make
information available to those who are interested in it [and] is not grounds for the exercise
[of] personal jurisdiction.” Zippo, 952 F.Supp. at 1124. Although Blake makes his work
generally available on iTunes, there is no allegation that he derives substantial revenue
from sales in Nebraska. The allegation of a single sale of Blake’s work in Nebraska is an
insufficient basis for jurisdiction. See Pangaea, Inc. v. Flying Burrito, LLC, No. 11-0000,
— F.3d —, 2011 WL 3241859, at *5 n. 5 (8th Cir. August 1, 2011). There is no allegation
that as a result of his sales on iTunes and CD Baby, that Blake reaches out to any specific
jurisdiction, or that he is ever aware of the location of individuals who purchase his work.
The Court is unable to conclude that placing Blake’s work on iTunes and CD Baby, without
more, is sufficient to confer jurisdiction over him in Nebraska. Further, Blake’s work posted
on YouTube does little more than make information accessible to those interested. Such
a passive internet use does not give this Court personal jurisdiction over Blake.
4.

Nebraska’s Interest in Providing a Forum for its Residents and Convenience of the
Parties
While Nebraska may have an interest in providing a forum for its residents, “that

interest does not overcome the substantial inconvenience for the parties” to litigate in
Nebraska.

Miller, 528 F.3d at 1092

(“The inconvenience to the parties and their

witnesses, under the facts of this case, is a factor that militates against [the plaintiff] for
purposes of establishing personal jurisdiction over [the defendant].”). Blake is unemployed
and his family receives food stamp assistance.

(Blake Decl., Filing No. 25-1 ¶ 1.)

Requiring Blake to defend a lawsuit in Nebraska would be an undue burden on Blake given
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the minimal contacts he has with Nebraska. Any interest Nebraska may have in this
litigation does not outweigh the undue burden that would be imposed on Blake if he were
required to litigate in this forum.
After giving due consideration to the foregoing factors and principles, the Court
concludes that “minimum requirements inherent in the concept of ‘fair play and substantial
justice . . . defeat the reasonableness of jurisdiction” in this case. Burger King Corp., 471
U.S. at 477-78.
Venue
Because the Court concludes that it does not have personal jurisdiction over Blake,
venue is not proper in this district under either 28 U.S.C. § 1391 or § 1400. Civil actions
arising under any federal statute “relating to copyrights or exclusive rights in mask works
or designs may be instituted in the district in which the defendant or his agent resides or
may be found.” 28 U.S.C. § 1400(a). Count one of the Complaint arises under federal
copyright laws. The Court has determined that it has no personal jurisdiction over Blake,
and thus neither he nor his agent reside or may be found in Nebraska. Thus, venue is
improper as to count one of the Complaint.
The Complaint requests the Court to take pendent jurisdiction over count two, for
unfair competition, because it is substantially related to Erickson’s claim under federal
copyright law. Venue is improper under count two regardless of whether it is governed by
§ 1391(a), (b), or § 1400. Erickson has not sufficiently alleged that a substantial part of the
events giving rise to his claim occurred in Nebraska. Nor has he alleged that Blake is
present in Nebraska. Therefore, Venue is improper as to count two of the Complaint.

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Where venue is improper, the district 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.”
28 U.S.C. § 1406(a). Blake’s Motion requests that, should the Court find personal
jurisdiction lacking, and venue improper, the case be transferred to the United States
District Court for the District of Oregon under Federal Rule of Civil Procedure 12(b)(2) and
12(b)(3). The Court will grant this request and this case will be transferred.

CONCLUSION
Because the Court lacks jurisdiction over Blake, it will not address the merits of
Blake’s Motion arising under Federal Rule of Civil Procedure 12(b)(6); and because venue
is improper in this Court, this action will be transferred to the United States District Court
for the District of Oregon.
Accordingly,
IT IS ORDERED
1.

Defendant Michael John Blake’s Motion to Dismiss (Filing No. 11) is granted
in part, as follows: the Clerk of the Court is directed to transfer this action to
the United States District Court for the District of Oregon; and

2.

The Motion is otherwise denied based on the Court’s lack of personal
jurisdiction over the Defendant.

DATED this 10th day of August, 2010.
BY THE COURT:

s/Laurie Smith Camp
United States District Judge
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