JUMPVIEW ENTERTAINMENT, LLC et al v. SCORSESE

Filing 17

MEMORANDUM AND ORDER THAT DEFENDANT'S MOTION TO DISMISS OR ALTERNATIVELY, FOR TRANSFER OF VENUE IS GRANTED IN PART AND DENIED IN PART; ETC.. SIGNED BY HONORABLE C. DARNELL JONES, II ON 2/27/14. 2/28/14 ENTERED AND E-MAILED.(jl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JUMPVIEW ENTERTAINMENT,
LLC, et al.,

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Plaintiffs,
v.
CATHERINE SCORSESE,
Defendant.

CIVIL ACTION NO.:

2:13-CV-3147-CDJ

MEMORANDUM
Judge C. Darnell Jones, II

February 27, 2014

Pending before the court is defendant Catherine Scorsese’s motion to dismiss or,
alternatively, for transfer of venue pursuant to the First Filed Rule and on the grounds that this court
lacks personal jurisdiction. (Doc. No. 5.) After a thorough review of the record, the court will
GRANT the motion IN PART and DENY IN PART. It will be GRANTED insofar as it seeks
dismissal of this case on personal jurisdiction grounds but DENIED insofar as it seeks to have this
matter transferred to a different venue. Furthermore, the motion will be DENIED insofar as it seeks
dismissal pursuant to the First Filed Rule.
BACKGROUND
This case arises out of a contract in which defendant allegedly agreed to co-produce a motion
picture in exchange for a share of the profits and a $5,000 flat fee.1 (Doc. No. 4 (Am. Compl.))

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The employment contract provides:

It is understood and agreed that one hundred percent (100%) of the production and
marketing expenses of Campus Life Productions, LLC (“Campus Life”) shall be
funded by Michael Simon and at least one other investor. In consideration of that
fact, intending to be legally bound, it is also understood and agreed that the revenues
of Campus Life shall be distributed as follows:

Production of the film, titled “Campus Life,” began in January 9, 2012, soon after Campus Life
Productions was incorporated. Despite initial optimism about the project, the parties’ relationship
quickly began to sour. (Doc. No. 4, at 4 (Am. Compl.)) Plaintiffs allege that defendant Scorsese
made numerous promises to help in the production of the film but that she never followed through
on her commitments. (Doc. No. 4 (Am. Compl.)) She allegedly offered plaintiffs free studio space
and free equipment needed to shoot various scenes in the film but later reneged on her promises.
(Doc. No. 4 (Am. Compl.)) She also told plaintiffs that several people would work for free but later
demanded that they be compensated for their contributions. (Doc. No. 4 (Am. Compl.)) In one
instance, plaintiffs allege that defendant advised several employees to withhold promotional photos
and behind-the-scenes footage until they received compensation, despite their initial promise to work
without pay. (Doc. No. 4, at 6 (Am. Compl.))
The complaint also alleges that defendant Scorsese repeatedly and purposefully disrupted
the project for her personal gain. The complaint alleges that defendant Scorsese threatened several

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125% of Michael Simon’s investment shall be paid to Michael Simon
and 125% of the investments of others shall be paid to them as well.

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Of the remaining revenues 50% shall be paid to Michael
Simon/Investor(s) and to JumpView Entertainment, LLC, in equal
shares.

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The balance of the revenues, after payments to actors and crew
members and marketing expenses, shall be paid in equal shares to
Michael Simon, Kenneth Waddell, and Catherine Scorsese (“Residue
Payments”).

Compensation: $5,000.00, plus 2.0% of Residue Payments allotted to Michael
Simon, Kenneth Waddell and Catherine Scorsese.
Payment of the $5,000.00 will be as follows: $2,500 during Production, $2,500 after
Production concludes.
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employees and continually disagreed with the other directors and producers as to how the film should
be shot and who should play certain roles. (Doc. No. 4 (Am. Compl.)) When her demands were not
met, defendant allegedly coerced the cast and crew to “walk off the production with Scorsese,” and
“began to rally crew members against Campus Life and JumpView, disturbing the production.”
(Doc. No. 4, at 8 (Am. Compl.)) Despite her actions, Scorsese insisted that she was entitled to 25%
of JumpView, a demand to which plaintiffs allegedly never agreed.2 In response to plaintiffs’ refusal
to split the company, defendant Scorsese allegedly told the cast and crew that they would not be paid
for their services, causing further delays. Although they do not elaborate on the details, plaintiffs
allege that defendant convinced Ray Liotta, Jesse McCartney, and her father, Martin Scorsese,not
to promote the film, thereby ensuring its failure as a commercially-viable enterprise. (Doc. No. 4,
at 9-10 (Am. Compl.)) Finally, plaintiffs claim that defendant defamed JumpView and Campus Life
by telling people in the film industry that she was assaulted by JumpView’s directors and that
JumpView and Campus Life had breached their contract with her. (Doc. No. 4, at 15 (Am. Compl.))
STANDARD OF REVIEW
Rule 12(b)(2) provides that a court must dismiss a complaint if the plaintiff fails to establish
that the court has personal jurisdiction over the parties. Fed.R.Civ.P. 12(b)(2). The plaintiff bears
the burden of proof and, because jurisdictional questions are “inherently a matter which requires
resolution of factual issues outside the pleadings,” a plaintiff may not rely on bare allegations. Miller
Yacht Sales, Inc. v. Smith, 384 F.3d 93, 101, n. 6 (Sept. 20, 2004). As such, a party must produce
evidence, in the form of “sworn affidavits or other competent evidence,” which establishes personal
jurisdiction by a preponderance of the evidence. Id. “However, when the court does not hold an
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The aforementioned employment agreement only provided that defendant Scorsese would
receive profits from Campus Life Productions, LLC.
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evidentiary hearing on the motion to dismiss, the plaintiff need only establish a prima facie case of
personal jurisdiction and the plaintiff is entitled to have its allegations taken as true and all factual
disputes drawn in its favor.” Miller Yacht Sales, Inc. v. Smith, 384 F.3d 93, 97 (3d Cir. 2004).
DISCUSSION
Pennsylvania has adopted a long arm jurisdiction statute, so courts in this state may exercise
jurisdiction to the fullest extent allowed by the Due Process Clause of the Fifth Amendment. Gary
v. F.T.C., 526 Fed.App’x 146, 149-50 (3d Cir. 2013); 42 Pa. Cons. Stat. Ann. §5322(b). To establish
personal jurisdiction, a defendant must have “sufficient minimum contacts” such that exercising
jurisdiction comports with “fair play and substantial justice.” Mellon Bank (East) PSFS, Nat. Ass’n
v. Farino, 960 F.2d 1217, 1222 (3d Cir. 1992) (quoting Burger King Corp. v. Rudzewicz, 471 U.S.
462, 476 (1985)). A defendant has minimum contacts with a forum if the defendant “purposefully
availed itself of the privilege of conducting activities within the forum,” or “purposefully directed
its activities at the forum.” O’Connor v. Sandy Lane Hotel Co., Ltd., 496 F.3d 312, 317 (3d Cir.
2007) (“purposefully availed”); D’Jamoos ex rel. Estate of Weingeroff v. Pilatus Aircraft Ltd., 566
F.3d 94, 102 (3d Cir. 2009) (“purposefully directed”) (quoting Burger King v. Rudzewicz, 471 U.S.
462, 472 (1985)). “When a defendant raises the defense of the court’s lack of personal jurisdiction,
the burden falls upon the plaintiff to come forward with sufficient facts to establish that jurisdiction
is proper.” Farino, 960 F.2d at 1223. “However, when the court does not hold an evidentiary hearing
on the motion to dismiss, the plaintiff need only establish a prima facie case of personal jurisdiction
and the plaintiff is entitled to have its allegations taken as true and all factual disputes drawn in its
favor.” Miller Yacht Sales, Inc. v. Smith, 384 F.3d 93, 97 (3d Cir. 2004).
Here, plaintiffs raise a number of contacts that they argue establish minimum contacts. First
plaintiffs explain that defendant Scorsese has done business with two Pennsylvania corporations for
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at least several years. (Doc. No. 9 (Response in Opposition)) They further allege that defendant
appropriated materials from these Pennsylvania corporations and that “[e]verything related to
JumpView and Campus Life – the entities at issue – is in Pennsylvania, including the operating
agreements that provide that Pennsylvania law and Pennsylvania tribunals govern, the entities’ bank
accounts, and the headquarters and principal place of business.” (Doc. No. 9 (Response in
Opposition)) These allegations certainly go to show plaintiffs’ ties to the forum state, but are not
probative of whether defendant reached out or purposefully availed herself of this forum. Nothing
indicates that defendant was aware that plaintiffs were Pennsylvania corporations or that they were
located in Pennsylvania. The record indicates that filming was done in New Jersey, and defendant
has stated in a sworn affidavit that she has not been to Pennsylvania in over seven years. Farino, 960
F.2d at 1226 (physical contact “figures into analysis” but is not necessary); (Doc. No. 4, at 6 (Am.
Compl.)) (filming occurred at Fairleigh Dickinson University).
Plaintiffs next state that defendant entered into a contract with a Pennsylvania corporation,
but the Third Circuit has found a contract, by itself, is insufficient to establish minimum contacts.
Farino, 960 F.2d at 1223 (“The fact that a non-resident has contracted with a resident of the forum
state is not, by itself, sufficient to justify personal jurisdiction over the nonresident.”) Of course, the
Third Circuit has instructed, “[t]he requisite contacts . . . may be supplied by the terms of the
agreement, the place and character of prior negotiations, contemplated future consequences, or the
course of dealings between the parties.” Id. Here, however, the contract contains no language which
would place defendant on notice that she was dealing with a Pennsylvania corporation. (Doc. No.
9, Exh. F (Response in Opposition)) It contains no mention of the corporation’s geographic location,
nor does it have a forum selection or choice of law clause. Moreover, there are no allegations or
evidence that negotiations took place in Pennsylvania or that the parties discussed that JumpView
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or Campus Life were Pennsylvania corporations with headquarters in Pennsylvania. Furthermore,
while the complaint indicates that plaintiffs conducted phone calls with defendant while plaintiffs
were physically in Pennsylvania, the record is unclear as to the specifics of these calls, i.e. whether
defendant initiated them and whether she knew or should have known that she was calling a
Pennsylvania number. Finally, the complaint and plaintiffs’ subsequent filings on this matter are
devoid of any information indicating that defendant Scorsese approached plaintiffs’ about this
agreement; instead, it appears that plaintiffs reached out to defendant and asked for her assistance
in producing the film. Vetrotex Certainteed Corp. v. Consolidated Fiber Glass Products Co., 75 F.3d
147, 152 (3d Cir. 1996) (distinguishing between active and passive buyers). As the Supreme Court
said in Burger King, “[t]his purposeful availment requirement ensures that a defendant will not be
haled into a jurisdiction solely as a result of random, fortuitous, or attenuated . . . or of the unilateral
activity of another party or a third person.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475
(1985).
As a last resort, plaintiffs argue that this court has jurisdiction because defendant engaged
in tortious conduct the impact of which was felt in Pennsylvania by a Pennsylvania corporation.
Plaintiffs appear to be invoking the so-called Calder “effects test.” (Doc. No. 9 (Response in
Opposition)) In Marten v. Godwin, the Third Circuit explained this test by listing its required
elements:
(1)
(2)

(3)

The defendant committed an intentional tort;
The plaintiff felt the brunt of the harm in the forum such that the forum can
be said to be the focal point of the harm suffered by the plaintiff as a result
of that tort;
The defendant expressly aimed his tortious conduct at the forum such that the
forum can be said to be the focal point of the tortious activity.

Marten v. Godwin, 499 F.3d 290, 297 (3d Cir. 2007) (citing Calder v. Jones, 465 U.S. 783 (1984)).
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Although the complaint and accompanying exhibits contain allegations as to the first two
elements, plaintiff has failed to allege or provide evidence that defendant expressly aimed her
tortious conduct at this forum. In fact, nothing in the complaint indicates that defendant knew that
JumpView or Campus Life Films were Pennsylvania corporations and therefore that the effect of her
allegedly tortious conduct would culminate in Pennsylvania. As such, plaintiff has failed to establish
personal jurisdiction under the Calder “effects test.”
CONCLUSION
In light of the foregoing, the court will GRANT the motion IN PART and DENY IN PART.
It will be GRANTED insofar as it seeks dismissal of this case on personal jurisdiction grounds but
DENIED insofar as it seeks to have this matter transferred to a different venue. Furthermore, the
motion will be DENIED insofar as it seeks dismissal pursuant to the First Filed Rule.

BY THE COURT:
/s/ C. Darnell Jones, II

C. DARNELL JONES II, J.

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