Dash v. Mayweather et al
ORDER denying 22 Motion to Dismiss for Lack of Jurisdiction, or, in the alternative, to Transfer Case; denying 24 Motion to Dismiss for Lack of Jurisdiction, and notifying Plaintiff Dash he has until 10/25/2010 to serve all unserved parties. Signed by Honorable Joseph F Anderson, Jr on 08/25/2010.(bshr, )
D a s h v. Mayweather et al
D o c . 36
IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF SOUTH CAROLINA C O L U M B IA DIVISION A n th o n y Lawrence Dash P l a in tif f , vs. F loyd Mayweather, Jr.; Mayweather P r o m o t io n s ; Mayweather Promotions, L L C ; Philthy Rich Records; World W re s tlin g Entertainment, Inc., D e f e n d a n ts . ) ) ) ) ) ) ) ) ) ) ) ) ) C / A No.: 3:10-1036-JFA
P la in tif f Anthony Dash seeks damages for copyright infringement from a variety of d e f en d a n ts allegedly involved in the broadcast of a copyrighted music track in connection w ith two professional wrestling events. This matter is before the court on the separate m o tio n s to dismiss for lack of personal jurisdiction (ECF Nos. 22, 24) by defendants World W re stlin g Entertainment, Inc. ("WWE"), and Mayweather Promotions and Mayweather P r o m o tio n s , LLC (both collectively, the "Promoters"). The motions have been fully briefed a n d the court heard oral argument at a August 13, 2010 hearing, where the matter was taken u n d e r advisement. This order sets forth the rulings of the court and, for reasons set forth b e l o w , denies both motions. I. F a c ts O n March 30, 2008, Floyd Mayweather, Jr. entered an Orlando, Florida arena hosting W re stle M a n ia 24 to the song "Yep," a composition that Dash contends violates his copyright
in a musical track entitled "TONY GUNZ BEAT." WrestleMania 24 took place before a live a u d ie n c e of 75,000 and a pay-per-view and television audience of over one million. Dash re p re se n ts that untold numbers of WWE enthusiasts and Mayweather fans have purchased t h e Wrestlemania 24 DVD, and viewed clips of Yep on YouTube.com. Dash alleges that W restleM an ia 24 was advertised and broadcast in South Carolina, and purchased on pay-perv ie w by South Carolina residents. Dash also alleges that South Carolina consumers have p u rc h a se d WrestleMania 24 DVDs at brick-and-mortar retail stores in South Carolina as well a s online stores (in which case the DVDs were shipped to South Carolina). On August 24, 2009, Mayweather guest-hosted a WWE event entitled "RAW" in N e v a d a, at which Yep again accompanied Mayweather's entrance to the arena. Dash alleges th a t RAW, and the infringing content therein, was advertised, broadcast, consumed on payp e r-v ie w , and purchased on DVD by residents of South Carolina in South Carolina. D a sh filed suit in the United States District Court for the District of South Carolina a g a in s t Mayweather; the Promoters; Philthy Rich Records; and WWE on April 26, 2010, for b re a ch of his copyright in TONY GUNZ BEAT. The Promoters and WWE thereafter filed sep ara te motions to dismiss for lack of personal jurisdiction. Fed. R. Civ. P. 12(b)(2). II. S ta n d a rd of Review W h e re the court "addresses the question [of personal jurisdiction] on the basis only o f motion papers, supporting legal memoranda and the relevant allegations of a complaint, th e burden on the plaintiff is simply to make a prima facie showing of a sufficient
ju ris d ic tio n a l basis in order to survive the jurisdictional challenge." Combs v. Bakker, 886 F .2 d 673, 676 (4th Cir. 1989). In assessing whether the plaintiff has met his burden, "the d is tric t court must draw all reasonable inferences from the proof, and resolve all factual d ispu tes, in the plaintiff's favor." Mylan Lab., Inc. v. Akzo, N.V., 2 F.3d 56 (4th Cir. 1993). " If the existence of jurisdiction turns on disputed factual questions the court may resolve the c h a lle n g e on the basis of a separate evidentiary hearing, or may defer ruling pending receipt a t trial of evidence relevant to the jurisdictional question." Combs, 886 F.2d at 676. As the c o u rt received no evidence at the August 13, 2010 hearing, only receiving argument on the b rie f s and affidavits attached thereto, the court must determine if Dash has established a p rim a facie case--subject to being proved at trial--of personal jurisdiction as to each d e f e n d a n t challenging this court's jurisdiction over it. III. Law A federal court may exercise person jurisdiction over a "foreign corporation if such ju ris d ic tio n is authorized by the long-arm statute of the state in which it sits and application o f the long-arm statute is consistent with the due process clause of the Fourteenth A m en d m en t." Consult. Eng'rs Corp. v. Geometric Ltd., 561 F.3d 273, 277 (4th Cir. 2009); F e d . R. Civ. P. 4(k)(1)(A). Because South Carolina courts have consistently construed the S o u th Carolina long-arm statute to extend to the outer reaches of the Fourteenth Amendment, th e court's statutory inquiry mergers with its constitutional inquiry. See Cockrell v. Hillerich & Bradsby Co., 491, 611 S.E.2d 505, 508 (S.C. 2005); see also Geometric, 561 F.3d at 277.
T he Fourteenth Amendment requires sufficient "minimum contacts" with the forum such that " m a in te n a n ce of the suit does not offend traditional notions of fair play and substantial j u s t ic e ." Int'l Shoe v. Washington, 326 U.S. 310, 316 (1945). If the defendant's contacts w it h the forum give rise to the basis of the suit, those contacts may provide the basis to e sta b lish what is referred to as specific jurisdiction. In the specific jurisdiction context, m in im u m contacts means: (1) that defendant has purposefully availed itself of the privilege o f conducting activities in the state; (2) that the plaintiff's claims arise out of those activities d ire c ted at the state; and (3) that exercise of the court's jurisdiction over the defendant would b e constitutionally reasonable. Carefirst of Md., Inc. v. Carefirst Pregnancy Centers, Inc., 3 3 4 F.3d 390, 397 (4th Cir. 2003). "If, however, the defendant's contacts with the state are n o t also the basis for the suit, then jurisdiction over the defendant must arise from the d e f en d a n t's general, more persistent, but unrelated contacts with the state." Id. Establishing g e n e ra l jurisdiction requires that the plaintiff show that the defendant's activities in the state a re "continuous and systematic." Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U .S . 408, 416 (1984). In cases involving intentional torts, Calder v. Jones provides what is commonly re f e rre d to as the "effects test," and which provides guidance in assessing the "purposeful" re q u ire m e n t identified above. 465 U.S. 783 (1984). To establish specific personal
ju ris d ic tio n over an alleged tortfeasor, Calder requires that the plaintiff show: (1) the d e f e n d a n t committed an intentional tort; (2) the plaintiff felt the brunt of the harm in the
f o ru m , such that the forum can be said to be the focal point of the harm; and (3) the d e f e n d a n t expressly aimed its tortious conduct at the forum, such that the forum can be said t o be the focal point of the tortious activity. Geometric, 561 F.3d 273 at 280. Copyright v io la tio n is a tort, and that tort occurs where the owner of the copyright suffers damage. See B e v e rly Hills Fan Co. v. Royal Sovereign Corp., 21 F.3d 1558, 1570 (Fed. Cir. 1994). This u s u a lly occurs when the tortfeasor sells infringing content in the copyright holder's home s ta te . Id. ("[T]he situs of the injury is the location, or locations, at which the infringing a c tiv ity directly impacts on the interests of the patentee, here the place of the infringing sales in Virginia."). In the intellectual property context, courts generally require a finding that the in f rin g e m e n t was intentional, prior to finding personal jurisdiction. See Costar Group, Inc. v . Loopnet, Inc., 106 F. Supp. 2d 780, 78586 (D. Md. 2000) (collecting cases). IIV. D is c u ss io n A. T h e Promoters' Motion to Dismiss
T h e Promoters contend that Dash cannot establish sufficient contacts between the P r o m o t e rs and South Carolina to sustain an exercise of specific jurisdiction over them.1 Dash c o n te n d s specific jurisdiction should obtain here based on Calder v. Jones, 465 U.S. 783. D a sh also relies on Indianapolis Colts v. Metro. Baltimore Football Club Ltd. P'Ship, for the p ro p o s itio n that when an injury in the forum state is to intellectual property or reputation, "[ t]h e defendant ha[s] also`entered' the state in some fashion." 34 F.3d 410, 412 (7th Cir. Dash appears to concede that he cannot establish general jurisdiction over the Promoters in his response to the Promoters' motion to dismiss. 5
1 9 9 4 ). In Indianapolis Colts, the Seventh Circuit was faced with the situation where a C a n a d ia n football team in Baltimore was intent on using the name "Baltimore Colts," a name in which the Indianapolis Colts determined it had some interest. The only activity the B a ltim o re team had undertaken in Indiana was the planned broadcast of its games nationally o n cable television. The Seventh Circuit determined that "[b]y choosing a name that might b e found to be confusingly similar to that of the Indianapolis Colts, the defendants assumed th e risk of injuring valuable property located in Indiana" and should be amenable to suit there . Id. at 412. The Colts and Calder decisions rest in large part on the idea that an injury to intellectual property in a forum state accompanied by the sale of media (in Calder a m a g a z in e , in Colts a national cable broadcast) constitutes entry into the forum sufficient to s a tis f y minimum contacts. A common thread running through Colt and Calder is what the S u p re m e Court characterized as "intentional, and allegedly tortious, actions . . . expressly a im e d at [the forum state]." Calder, 465 U.S. at 789. The Supreme Court expressly d if f e re n tia te d the conduct at issue in Calder from "mere untargeted negligence." Id. 1. T h e Effects Test
A s stated above, to establish personal jurisdiction pursuant to the effects test in the F o u r th Circuit, a plaintiff must show that (1) the defendant committed an intentional tort; (2) th e plaintiff felt the brunt of the harm in the forum, such that the forum can be said to be the f o c al point of the harm; and (3) the defendant expressly aimed its tortious conduct at the f o ru m , such that the forum can be said to be the focal point of the tortious activity.
G e o m e tric, 561 F.3d at 280. Here, the complaint alleges that Mayweather, as a principal in th e Promoter companies, "directed the infringing activities at issue in this case," namely c h o o sin g to play Yep as he entered the two nationally broadcast WWE events, with k n o w led g e of Dash's copyright. (Compl. ¶¶ 2, 25.) The Promoters' affidavit submitted in s u p p o rt of their motion to dismiss declares knowledge of the creation of the recording of Y e p , yet fails to disclaim or deny Mayweather's alleged actions in acting on behalf of the P rom o ters. (Ellerbe Aff., ECF No. 23-1.) More salient, however, are the actions of Leonard E lle rb e , CEO of Mayweather Promotions and authorized representative of Mayweather P r o m o tio n s , LLC, as recounted in the affidavit of Neil Lawi, Vice President of Music at W W E . Lawi indicates that Ellerbe caused Yep to be played at the Florida event and rep rese n ted that Mayweather owned all rights to the song. (Lawi Aff. ¶¶ 56, ECF No. 24-3 at 2.) Specifically, Lawi represents that just prior to WrestleMania 24 "Mayweather's m a n a g er, Leonard Ellerbe, handed me a CD and requested that WWE play the song on that C D in connection with Mayweather's entrance. The song on the CD was a recording of `Y ep .'" (Id.) The court begins its analysis with the finding that copyright infringement is a tort. T h e court also notes that Ellerbe simultaneously proclaims knowledge of the creation of Yep, w h ile failing to disclaim knowledge of the copyrighted track allegedly contained therein. A ls o , while the broadcast of Wrestlemania 24 was directed at a national audience, the to rtio u s broadcast had but a single recipient in a single location. The court finds the
a lleg a tio n of knowledge of Dash's copyright (Am. Compl. ¶ 25), the Promoter's failure to c h a llen g e or otherwise disclaim such knowledge, and the Promoters' activities as sworn to in the Lawi affidavit, sufficient to establish the requisite showing of intent under Calder. See M a ss e lli & Lane, PC v. Miller & Schuh, PA, No. 99-2440, 215 F.3d 1320, 2000 WL 69110, a t *1 (4th Cir. May 30, 2000) (table) ("The pleadings, affidavits, and other supporting d o c u m e n ts presented to the court are construed in the light most favorable to plaintiff, d ra w in g all inferences and resolving all factual disputes in its favor."). The court also finds th a t the focal point of the alleged tort, and the locus of its injury, was South Carolina. A c co rd in g ly, the court finds that Dash has made the requisite prima facie showing of m in im u m contacts, subject to being proved at trial. 2. C o n s titu t io n a l Reasonableness
E v e n where a defendant has purposefully established constitutionally significant c o n ta c ts within the forum state, jurisdiction must also comport with notions of fair play and s u b s ta n tia l justice. Int'l Shoe, 326 U.S. at 320. Factors bearing on this inquiry include the b u rd e n on the defendant of litigating in the forum, the forum's interest in adjudicating the d is p u te , the plaintiff's interest in obtaining convenient and effective relief and the judicial s ys te m 's interest in resolving the dispute. World-Wide Volkswagen Corp. v. Woodson, 444 U .S . 286, 292 (1980). F irs t, the alleged financial resources of the Promoters do not appear to present any g re a t burden to litigating in the South Carolina, and the Promoters have made no showing
a s to how litigating in this forum would be "gravely difficulty" such that it would be placed a t a "severe disadvantage in comparison to [their] opponent." CFA Institute v. Institute of C h a rte re d Financial Analysts of India, 551 F.3d 285, 296 (4th Cir. 2009). The court notes th a t the Promoters were able to secure counsel from a large national law firm to represent its in te re sts . See id. Furthermore, the court notes that the "inequity of being haled into a foreign f o ru m is mitigated if it was reasonably foreseeable that the defendant could be subject to suit th e re ," as is the case when a defendant enters the state to infringe another's intellectual p rop erty. Id. (citing Indianapolis Colts, 34 F.3d at 412). A s to prong two, South Carolina has an interest in protecting its citizen's rights, e sp e c ia lly from intentional torts committed by out-of-state actors. Third, Dash has a keen in te re st in obtaining relief in his home state, as opposed to Florida or Nevada. He also has a valid and substantial interest in protecting what property he has from being infringed and is entitled to use the judicial system in South Carolina to protect the same. Id. at 297. A c c o rd in g ly, the court finds that Dash has made a prima facie showing that exercising ju ris d ic tio n would be constitutionally reasonable under the factors set forth above. B. T h e Promoters' Motion to Transfer Venue
T h e Promoters have moved, in the alternative, to transfer venue to Nevada. In co n side rin g whether to exercise its discretion to transfer an action, see 28 U.S.C. § 1404(a), d is tric t courts evaluate several factors: (1) the ease of access to the sources of proof; (2) the c o n v e n ie n c e of the parties and witnesses; (3) the cost of obtaining the attendance of the
w itn e s s e s ; (4) the availability of compulsory process; (5) the possibility of a view by the jury; (6 ) the interest in having local controversies decided at home; and (7) the interests of justice. S e e , e.g., Landers v. Dawson Const. Plant, Ltd., Nos. 98-2709, 98-2763, 1999 WL 991419, a t *2 (4th Cir. Nov. 2, 1999); Selective Ins. Co. v. Schremmer, 465 F. Supp. 2d 524 (D.S.C. 2 0 0 6 ). The Promoters argue that because much of the proof in this case will be driven by w itn e ss testimony and because four of the five defendants, and their records, are located in N e v a d a, the ease of access to sources of proof and the convenience of the defendants and w itn e ss e s weighs heavily in favor of transferring venue to Nevada. Dash contends that he a n d his witnesses are located in South Carolina, as well as the equipment he used to compose T O N Y GUNZ BEAT. He also argues that the interest of having injury to South Carolina in te lle c tu a l property vindicated in South Carolina and the disparity in resources between the p a rtie s weighs in favor of venue remaining in South Carolina. The court agrees with Dash. H is choice of forum is entitled to "significant weight," South Carolina has a substantial in t e re s t in vindicating its citizens' rights as against foreign tortfeasors, and the ease of access to sources of proof does not favor either side. Accordingly, the court declines to exercise its d is c re tio n to transfer the action to Nevada. C. W W E ' s Motion to Dismiss
W W E argues that Dash cannot establish either specific or general personal jurisdiction o v e r it in the District of South Carolina. At the hearing on this motion, Dash explicitly a b a n d o n e d any theory of personal jurisdiction over WWE based on Calder v. Jones and its
p ro g e n y. Accordingly, this court will assess personal jurisdiction under the traditional fram ew orks. W W E contends that Dash cannot establish specific jurisdiction in South Carolina for a n y copyright infringement that may have occurred through (1) the use of Yep at the Florida o r Nevada events; (2) the national and global broadcasts of those events, through the sale of p a y-p e r-v ie w content or otherwise; or (3) the sale of DVDs throughout the Untied States and th e world. Dash contends that either (2) or (3), or both, of the above should suffice to e sta b lis h specific personal jurisdiction. The relevant standard is detailed above and will not b e repeated in full here. See supra Part III. To establish specific jurisdiction, Dash must s h o w (1) purposeful availment; (2) injury arising form such availment; and (3) constitutional re a s o n a b le n e s s . To establish minimum contacts, Dash must first show that WWE purposefully availed its e lf of the privileges and protections of South Carolina. Factors to consider in purposeful a v a ilm e n t include: (1) whether the defendant maintains offices or agents in the forum state; (2 ) whether the defendant owns property in the forum state; (3) whether the defendant re a ch e d into the forum state to solicit or initiate business; (4) whether the defendant d e lib e ra te ly engaged in significant or long-term business activities in the forum state; (5) w h ethe r the parties contractually agreed that the law of the forum state would govern d is p u te s; (6) whether the defendant made in-person contact with the resident of the forum in the forum state regarding the business relationship; (7) the nature, quality and extent of the
p a rtie s' communications about the business being transacted; and (8) whether the p e rf o rm a n c e of contractual duties was to occur within the forum. See Geometric, 561 F.3d a t 278. Dash argues that WWE purposefully availed itself of the privilege of doing business in South Carolina when it entered into pay-per-view contracts with, and sold DVDs of W re s tle m a n ia 24 to, forum residents. Problematically, Dash fails to adequately allege that it was WWE that entered into su c h pay-per-view contracts or meet WWE general counsel James Langham's affidavit indica ting that distribution of pay-per-view content is accomplished through third-party cable a n d satellite providers. Further, the complaint fails to allege that WWE actually sold the i n f r i n g i n g DVDs. Because the complaint fails to properly allege and support contracts b etw ee n WWE and forum residents, the court finds that such conduct cannot support p erso n al jurisdiction. Accordingly, the first question before the court is whether a Delaware c o rp o ra tio n headquartered in Stamford, Connecticut, subjected itself to personal jurisdiction in South Carolina by causing a Florida event containing allegedly infringing content to be b ro a d c a s t globally, including in South Carolina. The court finds that it does not. See, e.g., A n n ie Oakley Enterprises, Inc. v. Sunset Tan Corporate & Consulting, LLC, No. 1:09-cv-72J V B , __F. Supp. 2d__, 2010 WL 1257466, at *11 (N.D. Ind. March 25, 2010) (collecting ca ses that found, as a matter of law, that national television broadcasts cannot support sp e c if ic jurisdiction). The Fourth Circuit has made "clear that technology cannot eviscerate th e constitutional limits on a State's power to exercise jurisdiction over a defendant." ALS
S c a n , Inc. v. Digital Service Consultants, Inc., 293 F.3d 707 (4 th Cir. 2002). To do what D a s h proposes would accomplish exactly that. Dash also contends that the sale of DVDs of WrestleMania 24 in retail outlets in S o u th Carolina constitutes sufficient minimum contacts. Dash, in effect, advocates the a p p li c a t io n of a stream of commerce approach to determining purposeful availment. See A s a h i Metal Indus. Co., Ltd. v. Superior Court, 480 U.S. 102 (1986). Badly splintered S u p r e m e Court decisions have cast some fog over the correct standard for evaluating such a n argument. However, several points are clear from the caselaw. The fact that an item or g o o d is sold in a forum, and that it was foreseeable that such a sale would occur, is not and h as never been a sufficient benchmark for personal jurisdiction. Fed. Ins. Co. v. Lake Shore I n c ., 886 F.2d 654, 658 (4th Cir. 1989). "If it were, a `seller of chattels would in effect a p p o in t the chattel his agent for service of process' and his `amenability to suit would travel w ith the chattel.'" Id. (quoting World-Wide Volkswagen, 444 U.S. at 295). What matters is "that the defendant's conduct and connection with the forum State are such that he should re a so n a b ly anticipate being haled into court there." Id. (quoting World-Wide Volkswagen, 4 4 4 U.S. at 297. The Supreme Court has found such circumstances to exist when "a c o rp o ra tio n . . . delivers its products into the stream of commerce with the expectation that th e y will be purchased by consumers in the forum." World-Wide Volkswagen, 444 U.S. at 29798.
H e re , WWE's DVDs of WrestleMania 24 did not randomly and fortuitously find their w a y on to the shelves of South Carolina retail establishments. (Am. Compl. 13, ECF No. 7.) W W E is "an integrated media company," registered to do business in South Carolina, and c a u s e d its DVDs to be sold through many of the largest retailers in the country, each with m a n y locations in South Carolina. On these facts, WWE cannot deny that it "delivers its p ro d u c ts into the stream of commerce with the expectation that they will be purchased by c o n su m e rs in [South Carolina]." Lake Shore, 886 F.2d at 658 (quoting World-Wide
V o lk sw a g e n , 444 U.S. at 29798.) Accordingly, as the injury to the intellectual property o c c u rr e d when the infringing content was sold in South Carolina, see Beverly Hills Fan Co., 2 1 F.3d at 1570, the requirement that the action arise out of the WWE's activity in the forum is satisfied. The court also finds that it would be reasonable for the court to exercise ju risd ictio n over WWE for the reasons stated in Part IV.A.2 above, as they are equally a p p lic a b le to WWE. The court finds that Dash has made a prima facie case of personal jurisdiction over W W E because WWE purposefully availed itself of the privileges and protections of South C a ro lin a through introducing items in to the stream of commerce with the expectation of s a le s in South Carolina. The court also finds that the injury arose from such contacts, and th a t it would be constitutionally reasonable for this court to exercise jurisdiction over WWE. H o w e v e r, as Dash has only established a prima facie showing of personal jurisdiction, he m u s t still come forward at trial with proof of specific personal jurisdiction. WWE's motion
to dismiss is hereby denied. As the court finds specific personal jurisdiction over WWE p ro p e r, it need not address the question of general jurisdiction. IV . C o n c lu s io n B e c au s e the court finds that Dash has made a prima facie showing of specific personal ju risd ictio n as to the Promoters, and because the factors considered in assessing a motion to tr a n s f e r venue do not strongly favor the Promoters, the court hereby denies the Promoters' m o tio n to dismiss, or, in the alternative, transfer venue (ECF No. 22). Also, because the c o u rt finds WWE introduced DVDs of WrestleMania 24 in to the stream of commerce with the expectation that they would be sold in South Carolina, because the DVDs caused injury in South Carolina, and because exercise of jurisdiction over WWE would be constitutionally re a s o n a b le , the court denies WWE's motion to dismiss for lack of personal jurisdiction (ECF N o . 24). Dash now has until October 25, 2010, to serve all unserved parties. IT IS SO ORDERED.
A u g u st 25, 2010 C o lu m b ia , South Carolina
J o s e p h F. Anderson, Jr. U n ite d States District Judge
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