LEFKOWITZ v. JOHN WILEY & SONS, INC.

Filing 12

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE MICHAEL M. BAYLSON ON 8/13/2013. 8/13/2013 ENTERED AND COPIES E-MAILED.(kk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
LESTER LEFKOWITZ,
Plaintiff,
v.
JOHN WILEY & SONS, INC.,
Defendant.

:
:
:
:
:
:
:
:

CIVIL ACTION

NO. 13-1662

MEMORANDUM & ORDER RE: DEFENDANT’S MOTION
TO DISMISS OR TRANSFER
And NOW, this 13th day of August, 2013, for the reasons set forth below, it is
ORDERED that Defendant’s Motion to Transfer to the Southern District of New York (ECF No.
5) is GRANTED.
Plaintiff, Lester Lefkowitz, is an independent professional photographer based in New
York who entered into a contractual agreement with The Stock Market (“TSM”) to issue limited
licenses of his photographs. This agreement was later assigned to the Corbis Corporation
(“Corbis”). Both TSM and Corbis issued limited licenses of Plaintiff’s photographs to the
Defendant John Wiley & Sons, Inc. Plaintiff claims that Defendant exceeded the terms of these
licenses and seeks relief for copyright infringement, contributory copyright infringement, and
breach of contract.
Presently before the Court is Defendant’s Motion to Dismiss, or, in the Alternative,
Transfer. (ECF No. 5). Defendant bases its motion on the fact that the End User License
Agreements (“EULAs”) that TSM and Corbis entered into with Defendant contained the
following forum selection clause:
Any dispute regarding this Agreement shall be governed by the
laws of the State of New York, and by Titles 15, 17 and 35 of the
U.S.C., as amended, and the parties agree to accept the exclusive

jurisdiction of the state and federal courts located in New York,
New York, regardless of conflict of laws.
Based on this clause, Defendant argues that this action be dismissed pursuant to Federal Rule of
Civil Procedure 12(b)(6), or, in the alternative, transferred to the Southern District of New York
pursuant to 28 U.S.C. § 1404(a). Plaintiff counters by arguing that the forum selection clause is
inapplicable to this action because a “‘dispute regarding this Agreement’ does not include
copyright infringement disputes.” Pl’s Rep. Br. at 4. Further, to the extent that the clause
applies to Plaintiff’s breach of contract claim, Plaintiff argues that the § 1404(a) factors do not
support transferring the action because copyright claims represent the majority of the case.
Importantly, the facts and claims in this case are virtually identical to another case that
Plaintiff recently filed in this District. See Lefkowitz v. McGraw-Hill Companies, Inc., No. 131661, 2013 WL 3061549 (E.D. Pa. June 19, 2013) (Schiller, J.). In that case, Judge Schiller
granted the defendant’s motion to transfer for reasons that apply with equal force to the instant
facts. Since the Court agrees with Judge Schiller’s reasoning, the Court will adopt it in full to
Plaintiff’s action here.
The Court finds two facts to be worthy of particular emphasis, one which Judge Schiller
discussed and one which he did not. First, the forum selection clause specifically envisions that
“any dispute regarding this Agreement” includes copyright infringement claims because the
clause expressly states that disputes shall be governed by, inter alia, Title 17 of the United States
Code (i.e., the title of the Code that governs copyright claims). Second, even if the forum
selection clause did not apply to copyright claims, the clause would still apply to this action
because Plaintiff alleges a breach of contract claim in addition to his copyright claims. As Judge
Schiller noted, Plaintiff “cannot seek to enforce those contract terms beneficial to him while

2

glossing over those that impose requirements he would rather not follow.” McGraw-Hill, 2013
WL 3061549, at *4.
Since the forum selection clause applies to this dispute, the Court does not owe deference
to Plaintiff’s choice of forum in this District. See Jumara v. State Farm Ins. Co., 55 F.3d 873,
880 (3d Cir. 1995) (“[W]hile courts normally defer to a plaintiff’s choice of forum, such
deference is inappropriate where the plaintiff has already freely contractually chosen an
appropriate venue.”). Instead, Plaintiff bears the “burden of demonstrating why [he] should not
be bound by [his] contractual choice of forum.” Id. As described in Judge Schiller’s analysis of
the §1404(a) factors, Plaintiff has failed to meet this burden.
The Third Circuit has stated that “it makes better sense” to transfer than dismiss an action
when “parties have agreed upon a not-unreasonable forum selection clause that points to another
federal venue.” Salovaara v. Jackson Nat’l Life Ins. Co., 246 F.3d 289, 299 (3d Cir. 2001).
Accordingly, Defendant’s motion to transfer is GRANTED.
The clerk shall mark this case CLOSED.
BY THE COURT:
/s/ Michael M. Baylson
_________________________
Michael M. Baylson, U.S.D.J.
O:\CIVIL 13\13-1662 lefkowitz v. wiley & sons\order_transfer.docx

3