North Jersey Media Group Inc. v. Nunn et al

Filing 14

OPINION re: 6 MOTION to Dismiss. filed by Roger Nunn. Upon the facts and conclusions set forth above, Nunn's motion to dismiss for lack of jurisdiction is granted and the Complaint is dismissed. (Signed by Judge Robert W. Sweet on 9/18/2013) (cd)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

-------

---------------x

NORTH JERSEY MEDIA GROUP, INC.,
Plaintiff,
13 Civ. 1695
- against ­
OPINION
ROGER NUNN and JOHN DOES NOS. 1 5,
Defendants.

----------------------------------------x
A P PEA RAN C E S:

Attorne

Plaintiff

DUNNEGAN & SCILEPPI LLC

350
Avenue

New York, NY 10118

Will
I. Dunnegan, Esq.

ken, E

Ella R.

LAW OFFICE OF FRANK J. COLUCCI
218 East 50th Street
New York, NY 10022
By: Frank J. Co
i, Esq.

Sweet, D.J.

fendant
moved to

r Nunn ("Nunn" or "Defendant") has

smiss the complaint of plaintiff North Jersey

Group ("NJ" or "PIa
12 (b) (2)

iff") pursuant to Fed. R. Civ. P.

("Rule 12 (b) (2) ")

for lack of personal jurisdiction.

Based on the conclusions set forth below, the motion is
granted and the comp

ssed.

int is di

Prior Proceedings

~

NJ is a New Jersey corporation with its p
place of business located in Woodland Park, New Jersey.

Nunn

is a natural person and California resident.

13, 2013, NJ filed a complaint

On Ma

("Complaint") all

ing that Nunn violated NJ's copyri

photographic

depicting firefighters raising an American

at the s
a

e of the World Trade Center in the

ermath of the events that took place in New York

of a

ate
ty on

ember 11, 2001 (the "WTC Photo") by selling a copy of the
WTC Photo over the internet.

1

Nunn mo
personal juri

to di

ction.

Complaint for lack of

ss

The motion was marked

lly submitted

on July 3, 2013.

The Facts

the

Nunn, by affidavit, has submitt
facts,

not

which

en contravened by NJ:

In 2008, Nunn obtained a
the

of

Roc

bas
disp

the pub io was

Nounta

ree to use it s

December

a

liVTC Photo t h

approximately $4.89.
Pa

l's

l\unn's total

r

news
The WTC

to was

After

, 2012,

December 7,

ion

r

the

unn sold a copy of

ed bonanza. com for

cting

service fee a

1.00 for
Drofi

attr

ified.

site ca

mercha~t

estimated cost of

$3.04.

long a

intact and

On or

$0.50,

News,

ite a ong with language indioat ng that

rema

t

of the WTC Photo from

in Denver, Co:orado.

on the

lowing

za.com's

of

$0.35, and his

ion of the

from the WTC Photo was app
2012 sa

of the W7C Ph
2

0

ima:ely
was

only

ale

t

irr.a

Nunn made of

an ind

Mat.hilde,

had

of NJ's counsel's

identica

to the

Avenue

rcha5

h
off~ce

by

ng a

ot.o vva

Th

ss

on Fift.h

New York, New York.

88

On January 25,
desls

2C:3, Nunn received

ett.er from NJ's counsel
holder

, and

:~

NJ was the

s

ct.ed to r\Junn'

nza.com,

th

photog

t

ndicating t

WTC Pho

f

ase and

S

ng tha:::

sist from any further sal s,

confirm

Nunn

ase and

cessa

on of :::he

es, disclose a _ sales, and provide an

a

i

of pro

sand d s

On Janua

31, 20"

sel

by

rs.

stat

ion of t

WTC Photo

(which he

nd ceased a

'VvTC Phot

that

Rocky

itation a
dJ.

Nunn also

rom bonanza. com,
furt

sa

s of

n compliance wi n NJ's

On
Fed. R. Civ. P.

ded a

cemoved the WTC Photo

that he
the s

th

to use t

as
photog

etter

his one sale - name y,

\-vas author

Mountain News as 1

y third party
to N's

laining :::he circumstances
rstood

att

ure of

24,

68

2C1 ,

an offer

(the "Offer") was
3

udgment pursuant: to
Nunn

served

for N

on t

injunc~ion

a permanen
~he

gre

The Of

as well as a

No re

i s phot

Nunn has

's selli

attend a

from NJ regarding the

e past thirty years, and h

confere~ce

in the

of NevI

S~

ccoun"C, p

r

y,

Nunn does

te 1

listi

regularly

of New York

ot

wou::'d s

perso~al

jurisd

New York

ion in tha

an

yees, or

or transact business in the Stat
0

ffiain~ain

nor does he have a New Yo k

YOI

s in the S ate of New York, nor does h

r connection

oyer

r

no~

visl::

~ast

on behalf of a f

imately seven years ago.

a

amount of

udgment in t

raveled to the S ate of New York very

nt y over

i

sent. t.o

Nunn.

Offer has been received

0

Nunn'

er of NJ's 1 st profit on Nunn's sale or

price

was

1

r

0

ct

have any

ect him to

state.

The Applicable Standard

In considering a motion to di
12, the Court construes the complaint 1
factual all

ions as

~rue

inferences in the plaint f

ss pursuant to
erally, ac

drawing all reasonable
's favor. Mills v. Polar
4

e

all

Corp., 12 F.3d 1170, 1174
whether a p

(2d Cir. 1993).

The issue "is not

intiff will ultimately prevail but whether

claimant is

itled to offer

ViII

Inc. v. Town of Da

fI

dence to support the cIa
en, 56 F.3d 375, 378

(2d

Scheuer v. Rhodes, 416 u.s. 232, 235 36

Cir. 1995)
(1974) 1 •

Rule 12 (bl (2)

requires t

t a court dismiss a claim

if the court does not have personal jurisdiction over t
de

See Fed. R. Civ. P. 12 (b) (2).

motion to

smiss a compla

In dete

a

under Rule 12 (b) (2)

lack of

personal jurisdiction, a court must first apply the law of the
re the court sits to

state

ction exists.

ju

Bank Brussels Lambert v.

Gonzalez _ _ _ _ _ _ _ _ _L -_ _ 171 F.
& Rodri
z,
__
___

~

~

intiff bears the burden
juri

ction over a

81, 84

779,

784

ddler

(2d Cir. 1999).

The

establishing that the court has
when served with a Rule 12 (bl (2)

motion to dismiss. DiSte
F.

ermine if personal

v. Carozzi North Am. Inc., 286

(2d Cir. 2001).

"[J]uri

ion must be shown affirmat

that showing is not made

ly, and

drawing from the pleadings

inferences favorable to the party asserting it."
5

Shipping

· Servs.

. v. Ora

~--------------~------------(citations omitted).

As s

outside of the

r.

1998)

, a court may rely on evidence
including declarat

support of the mot
declarations.

, 140 F.3d 129, 131 (2d

s submitted in

and any records attached to these

See Makarova, 201 F.3d at 113 ("In resolving a

motion to dismiss ... a district court ... may refer to
pleadings.

evidence outs

If) •

There Is No Personal Jurisdiction Over Nunn

In

0

r for a federal court sitting in New York to

assert personal jurisdiction over Nunn, a California resident,
NJ must satisfy

requirements of

statute, N.Y. C.P.L.R. § 302 ("§302
Process

se.

h New York's long-arm
1f
)

,

as well as the Due

Bee of Beverl

Chloe v.

F.3d 158, 169 (2d Cir. 2010).

Under §302:

a court may exercise
rsonal jurisdiction
over any non-domicil
,or his executor
or administrator, who in person or through
an agent.
. transacts any business within
the state or contracts anywhere to
supply goods or se
ces in the state.

6

LLC, 616

Id.

(quot ing §3 02).

fendant's infringing sa
sufficient to satis

ion of a

In general, an all
s to residents

§302.

See Mattei,

New York is
Inc. v. Adventure

Apparel, No. 00 civ. 4085 (RWS), 2001 WL 286728, at *3
(S.D.N.Y. Mar. 22, 2001)

("Here, Falsone ordered al

y

infringing merchandise from Adventure over its web site, using
his c

t card, and Adventure shipped that merchandise

New York.

is act

ty not only involved the exchange of
but, moreover, was a

payment and shipping informat

commercial transaction that was actually consumma
se act
cat ego

ties were suf
fendant

of a

on line.

cient to bring Adventure into the

'transact[ing]

business,'

a the

internet, in New York within the meaning of N.Y. C.P.L.R. §
302 (a) (1) .").

Here, NJ has made such an all

ion,

thus

has satisfied New York's long-arm statute.

due

ss portion of

analysis involves two components: "(1)
inquiry

(2 )

juris

minimum contacts

reasonableness inquiry."

F.3d at 171.

7

ctional

Queen Bee, 616

The minimum contacts inqui
defendant

examines whether a

level of contact with

suffic

forum state

such that the exercise of personal jurisdiction over the
defendant would comport with his right to due process.
World-Wide _Vol
_

~~~~~~

(1980).

~~~-L~~

__

. _ _ _ _ _ _ _ _ __
v. Woodson

~~

~

See

444 U.S. 286, 291

In order to find the existence of the requisite

minimum contacts

ween the de

ndant and t

forum state,

tantial connection n between the two,

there must be a "s

which is manifested "by an action of the
purposefully direct

f

toward the forum State.

n

Asahi Metal

_I_n_d_u_s_._ _C_O _
_ .~_L_t_d_.__v ___ __r_l_·o_r C_o_u_r_t _o_f C_a_l__, 480 U.S. 102, 112
_ . S~
___
_ ___
.
(1987) .

Due process also re
"the

such t

fendant's

f

State

a~e

be

haled

nt

at 29
rigor

t.e f

court there.
ility

of due

curro

s be
the privll

0

Id reas

re

n

d.

(internal

ly antic

t

WorldWi
red In

r to sat sfy the

when a de
of

cond~

ic has clear notice tha

Stat

su t there."

~s

Ii ty,

and connection with the

such that he

Fores

avai s itself

ires a level of fores

t.ation

8

~y

"pu
t

acti
it is sub

nd citation

within
'l

0

t tecj) .

NJ has ::ot

Here,

.::.

privi

doi

lj.JTC Pt:oto

rected its counsel to order t

d to

s

York.

Courts in

ele~ent

Edbe

the Due

f

t

("On

se contacts wit

he defendant,

unilate

rather t

Trad

0,

112

he for'im t

d ot:-len-J

rdless

U
);

see als
., No.

.....~-.

So

(D. Conn.
were created
by the

f

ent,
any a

Uni
0

vJouJ

a 1

a clcti

e

+

CV-2 44

ivity

(KHK) , 200

- lecti

LO

irl

11)l

when the defendant
rd the

. v. Sui

, 2007)

for du

r a non r sldent

purpo efu ly direct

.------.--~~-

within

satisfy the

those r:lanufact

ure jurisdiction

state.

f

con5i

58 pur;)o e

t

ted i:1

is t

acts

foru~,

it

cess ana ysis.

upp. 2d

./17 F.

------~------~~------"~--

p

are 1

'1

use r<1 v

nd

he d t

his Ci

imum contact

by

cur red

red U contact to be insufficient t

"manufac

998)

.

,

slng~_i

.otog

counse 's offices,

y
of

.

York.

iness
ling t

=-nstance of Nunn

rpose

ailec: h

is actions toward New York

direct
t

that NU:'c:1

lis

st

"'urn

Sons Int'

vrf.., 33 825 , at*c.

UDerou:3

s from

rts

Circuit demonstra

"judicia

hostili y towards

finding juris ict on under .

potentia

y manufa

circumstan::::es") .
9

ured

Wi

respect to the reasonableness e

Due Process anal

is, courts cons

r five

of the
ors:

the
that the exercis
f
iction will
on L:e
fendant;
(2) t
i~terest
of the for~m
in
adjudi
ing the
5e; (3)
iff's
terest in obtaining can
ient
ctive relief; (4) the interstate
judicial system's i
rest in
aining
t effi
t res ution of the
the
con1:ro·versy;
(5) the hared interest
rther
the states in
substa:1tive
social po cies.
(1)

j~ris

at 16

Bee, 6 6 F.

-=--~--~

1 ,1\I
±

Asahi,

-----

u.s.

at 11 ­

•

Parti

arly given the fact that

the WTC ?hoto, which result
consti utes a de

min~m

n a net

s level

agai;;

forth above mili

f

the exe

jurisdiction over Nunn in New York.

, given that he

ives i

state - here, New Yo
this a

lon, as

ither

Californ

- has minimal
f

N~nn's

fit

.. du

se

"Lh.e

f

ors s

rs

The exerci e of
:1tial burden on
Moreover, the forum
erest i;:

the Darties is located
10

O:1e sale of

f $3.04,

f

!'

a sub

jurisdict 0:1 over Nunn wou d
h

80

c:.di

t

n9

n New York,

the

r a

a~ra

to the

Yo~k,

and,

in

action
copyri

eres

~,

e of t

en~

the source image,

dest
Photo

ance w

these actions ta

and ef
p

ctive relief

or to NJ'

nc ceas

pu
names

se

Notwi hstandi

al

~ive

uit i

to fil

registere

~barbiesbeachwear.com"

were domain
onneeL

"

with i

rked"

~pport

ongoing Ad

t

nture
11

a

its

fendant

and utilized the domain

and "barbie

ts

New

dollars.

In Matt 1, the

the case is inappos teo

s one

the WTC

by Nunn, NJ procee

ly selected,

f

se

Bonanz ,

NJ cites to the MatteI case in
on,

2013

1 sale

h NJ's demands.

0

s

filing

he WTC Photo

York over a s ogle sale amounting

posi~

rest

Finally,

rcums~ances

~he

re~oving

as in New

States.

d to NJ's January 25,

explain

WTC Photo,

fo~nia

1

this

s a greater in

iven that,

ly re

y,

its residents as t.

0

ng c

gible,

Nu~n

Acco

laws of the Unit

t

and desist letter

s

of one

in obta

trably neg

rnia

shi

o

y in

as effi

ny event, Ca

e to t

NJ's

s

le copy of the WTC

itigat

adjudicating t
reI

s~

ffices of its New York counse .

case may

's

y connection to New Yo k is

actio~'s

1

hing.

,n which

web

re
reI

ail

and
bu

_ness.

Here, Nunn was

2001 WL 286728,

*3.

ongo ng

r,d more

a tran

ines ,
ct on w th

NJ
satisf

r di

s e

th

establi

minimum

f f rmatively

t

s

rt'

instan~

him in the

exe
a

is

rJ

L

0

clue

u is

£ pers

on.

Conclusion

-:he f
:\lunn' s moti
and the

".--. -t­
\'-' '--

to
a

53

is

;

.

01

c

and

us~_

ur

for

fa

s

di

above,
on

ssed.

It is so ordered.

New York, NY
September

Ig,

in

uiry or

-y, NU:1n'

process bars t

e~ga

Nunn's conduct

t

tacts

e:1ess

reas

not

n a

stomer.

s failed t
t~e

e

2013

U.S.D.J.

12

on