Halper v. Sony/ATV Music Publishing LLC et al

Filing 92

REPORT AND RECOMMENDATION: For the reasons discussed above, the undersigned finds that this Court lacks personal jurisdiction over Defendants Stellar, Salli, and Method. Accordingly, the undersigned recommends that Defendants' Motion to D ismiss be GRANTED, that Plaintiff's claims against Defendants Stellar, Salli, and Method be DISMISSED, and that Defendants Stellar, Salli, and Method be TERMINATED as parties to this action. Signed by Magistrate Judge Jeffery S. Frensley on 10/19/2017. (xc:Pro se party by email notification. ) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
MARK HALPER,
Plaintiff,
v.
SONY/ATV MUSIC PUBLISHING, LLC,
et al.,
Defendants.

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Case No. 3:16-cv-00567
Judge Steech / Frensley

REPORT AND RECOMMENDATION
I. Introduction and Background
This matter is before the Court upon a Motion to Dismiss for lack of personal jurisdiction
filed by Defendants Stellar Songs Limited (“Stellar”), Salli Isaak Songs Limited (“Salli”), and
Method Records Live LTD (“Method”) pursuant to Fed. R. Civ. P. 12(b)(2). Docket No. 55.
Defendants Stellar, Salli, and Method have contemporaneously filed a supporting Memorandum
of Law (Docket No. 56), as well as the Declarations of James Sully (Docket No. 52), Timothy
Major (Docket No. 53), and Richard Baskind (Docket No. 54). As grounds for their Motion,
Defendants Stellar, Salli, and Method argue that they are limited liability companies established
under the laws of the United Kingdom, whose principal places of business are in London,
England. Docket No. 56. They maintain that they have no offices in Tennessee, no employees in
Tennessee, no license to do business in Tennessee, and do not manufacture, distribute, license, or
sell any products in Tennessee, such that they are not subject to general jurisdiction since they are
not “at home” in Tennessee, nor are they subject to specific personal jurisdiction since they have
not “purposefully availed” themselves of the privilege of doing business in Tennessee. Id.

Accordingly, Defendants Stellar, Salli, and Method that Plaintiff’s claims against them should be
dismissed for lack of personal jurisdiction.
Plaintiff has not responded to the instant Motion.
Plaintiff filed this pro se action against Sony/ATV Music Publishing LLC, EMI April
Music Inc., Gone Gator Music, Universal-Polygram International Tunes, Inc., Sony/ATV Songs
LLC, Stellar Songs Ltd., Method Paperwork Ltd., Salli Isaak Songs Ltd., Method Records Live
Ltd., Capitol Records Ltd., and UMG Recordings, alleging copyright infringement by Sam
Smith’s song “Stay With Me.” Docket No. 1.1
For the reasons set forth below, the undersigned finds that this Court lacks personal
jurisdiction over Defendants Stellar, Salli, and Method. Accordingly, the undersigned
recommends that Defendants’ Motion to Dismiss be GRANTED, that Plaintiff’s claims against
Defendants Stellar, Salli, and Method be DISMISSED, and that Defendants Stellar, Salli, and
Method be TERMINATED as parties to this action.
II. Law and Analysis
Because a court cannot decide a cause of action for which it lacks jurisdiction, the
primary issue before the undersigned is whether the Court has jurisdiction over the instant
Defendants, and therefore over Plaintiff’s claims against them in this action. Plaintiff bears the
burden of establishing jurisdiction over Defendants. See, e.g., Intera Corp. v. Henderson, 428
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Additionally, although Plaintiff names Capitol Records Ltd. as a Defendant in this
action, Capitol Records Ltd. has not been served. Accordingly, Capitol Records Ltd. is not a
party to this action. Furthermore, although a summons was issued to Method Paperwork Ltd. via
mail to the Senior Master for the attention of the Foreign Process Section of the Royal Courts of
Justice in London, England, there is no indication in the record that Method Paperwork Ltd. was
ever actually served; and no attorney has made an appearance or filed anything on Method
Paperwork Ltd.’s behalf.
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F.3d 605, 615 (6th Cir. 2006).
With regard to the issue of jurisdiction, the instant Defendants have submitted the
Declarations of James Sully, Timothy Major, and Richard Baskind. Docket Nos. 52-54. The
jurisdictional facts are set forth below.
A. Declaration of James Sully
Method is a limited liability company established under the laws of England and Wales,
whose principal place of business is in London, England. Docket No. 52, ¶ 3. The summons
issued for “Method Records Ltd.” in this action was served at Flat 16 Burke House, Dalston
Square, London E8 3GW. Id., ¶ 6. Method, however, moved out of that location several years
ago. Id. Further, there is no company called “Method Records Ltd.” Id. As a result, Method did
not receive timely notice of this action. Id.
Method does not own property in Tennessee; has no offices in Tennessee; has no license
to do business in Tennessee; and does not manufacture, distribute, license, or sell any products in
Tennessee. Id., ¶ 5.
Method owns no interest in the musical composition or sound recording of “Stay With
Me.” Id., ¶ 4.
B. Declaration of Timothy Major
Stellar is a limited liability company established under the laws of England and Wales,
whose principal place of business is in London, England. Docket No. 53, ¶ 3. Sony/ATV Music
Publishing (UK) Limited is the exclusive administrator of the song catalogue of EMI Music
Publishing Limited, which includes the right to administer exclusively Stellar’s interest in the
song “Stay With Me.” Id., ¶ 4.
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The summons issued for Stellar in this action was served on OJK Limited, Stellar’s
accounting company. Id., ¶ 7. The summons was served during the same period that David
Cushion, the director responsible for Stellar’s account, ended his employment with OJK Limited.
Id. As a result of this employee turnover, the summons was misplaced. Id.
Stellar does not own property in Tennessee; has no offices in Tennessee; has no license to
do business in Tennessee; and does not manufacture, distribute, license, or sell any products in
Tennessee. Id., ¶ 6. Stellar has not entered into a licensing or distribution agreement that
affirmatively requires any third-party to distribute “Stay With Me” in Tennessee. Id., ¶ 5.
C. Declaration of Richard Baskind
Salli is a limited liability company established under the laws of the United Kingdom,
whose principal place of business is in London, England. Docket No. 54, ¶ 3. A copy of the
summons in this action was served on Salli’s registered address. Id., ¶ 7.
Universal Music Publishing Limited exclusively administers Salli’s interest in the song
“Stay With Me.” Id., ¶ 4.
Salli does not own property in Tennessee; has no offices in Tennessee; has no license to
do business in Tennessee; and does not manufacture, distribute, license, or sell any products in
Tennessee. Id., ¶ 6. Salli has not entered into a licensing or distribution agreement that
affirmatively requires any third-party to distribute “Stay With Me” in Tennessee. Id., ¶ 5.
Based on Attorney Baskind’s correspondence with Universal Music Publishing Limited
and Sony/ATV Music Publishing (UK) Limited, Attorny Baskind mistakenly believed that the
Motion to Dismiss filed in this matter had been filed on behalf of all Defendants, including Salli.
Id., ¶ 7. As a result, Attorney Baskind thought no further action was necessary for Salli to defend
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this lawsuit. Id.
D. Jurisdiction
1. Generally
There are two forms of jurisdiction: general and personal. General jurisdiction exists
when “a defendant’s contacts with the forum state are of such a continuous and systematic nature
that the state may exercise personal jurisdiction over the defendant even if the action is unrelated
to the defendant’s contacts with the state.” Third Nat’l Bank in Nashville v. WEDGE Group Inc.,
882 F.2d 1087, 1089 (6th Cir. 1989)(internal quotation marks omitted). See also, Daimler AG v.
Bauman, 134, S.Ct. 746, 761 (2014); Goodyear Dunlop Tires Operations, S.A. v. Brown,131
S.Ct. 2846, 2851 (2011). Personal jurisdiction exists when “a state exercises personal
jurisdiction over a defendant in a suit arising out of or related to the defendant’s contacts with the
forum.” Receiver of Assets of Mid-America Energy, Inc. v. Coffman, 719 F. Supp. 2d 884, 888
(M.D. Tenn. 2010). In the Sixth Circuit, personal jurisdiction exists when: (1) the defendant
purposefully avails himself of the privilege of acting in the forum state or causing a consequence
in the forum state; (2) the cause of action arises from the defendant’s activities there; and (3) the
acts of the defendant or consequences caused by the defendant must have a substantial enough
connection with the forum state to make the exercise of jurisdiction over the defendant
reasonable. See, e.g., Southern Mach. Co. v. Mohasco Industries Inc., 401 F.2d 374, 381 (6th
Cir. 1968).
2. The Case at Bar
The evidence in the case at bar demonstrates that each of the instant Defendants is a
limited liability company established under the laws of England and Wales (the United
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Kingdom), with its principal place of business in London, England. See Sully Dec., ¶ 3; Major
Dec., ¶ 3; Baskind Dec., ¶ 3. The evidence of record further establishes that none of the instant
Defendants own property in Tennessee; have offices in Tennessee; have a license to do business
in Tennessee; or manufacture, distribute, license, or sell any products in Tennessee. See Sully
Dec., ¶ 5; Major Dec., ¶ 6; Baskind Dec., ¶ 6. Thus, none of the instant Defendants have availed
itself of the privilege of acting in Tennessee. Additionally, none of the instant Defendants’
“contacts with the forum state are of such a continuous and systematic nature that the state may
exercise personal jurisdiction” over any of them. Moreover, because the instant Defendants do
not have “contacts with the forum,” this lawsuit cannot “aris[e] out of” or be “related to” to any
such Defendant “contacts with the forum.” In the case at bar, there is simply not enough of a
connection between the instant Defendants and Tennessee to make the exercise of either general
or specific personal jurisdiction over the instant Defendants reasonable.
III. Conclusion
For the reasons discussed above, the undersigned finds that this Court lacks personal
jurisdiction over Defendants Stellar, Salli, and Method. Accordingly, the undersigned
recommends that Defendants’ Motion to Dismiss be GRANTED, that Plaintiff’s claims against
Defendants Stellar, Salli, and Method be DISMISSED, and that Defendants Stellar, Salli, and
Method be TERMINATED as parties to this action.
Under Rule 72(b) of the Federal Rules of Civil Procedure, any party has fourteen (14)
days after service of this Report and Recommendation in which to file any written objections to
this Recommendation with the District Court. Any party opposing said objections shall have
fourteen (14) days after service of any objections filed to this Report in which to file any
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response to said objections. Failure to file specific objections within fourteen (14) days of
service of this Report and Recommendation can constitute a waiver of further appeal of this
Recommendation. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L. Ed. 2d 435 (1985),
reh’g denied, 474 U.S. 1111 (1986); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72.

_______________________________
JEFFERY S. FRENSLEY
United States Magistrate Judge

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