Papa Berg, Inc. et al v. World Wrestling Entertainment Inc. et al
Filing
19
ORDER granting in part and denying in part 10 Motion to Dismiss, ; denying 10 Motion to Transfer Case out of District/Division. (Ordered by Judge Jane J Boyle on 5/15/2013) (Judge Jane J Boyle)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
PAPA BERG, INC. and JAMES D.
PAPA d/b/a PAPA HAYES MUSIC
d/b/a PAPA BERG PUBLISHING d/b/a
GRAND THEFT PRODUCTIONS
d/b/a GRAND THEFT RECORDS
d/b/a NABE NABE MUSIC,
Plaintiffs,
v.
WORLD WRESTLING
ENTERTAINMENT, INC.,
STEPHANIE MUSIC PUBLISHING
INC., MICHAEL SEITZ a/k/a
MICHAEL HAYES, and
JAMES ALAN JOHNSTON,
Defendants.
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
CIVIL ACTION NO. 3:12-CV-2406-B
MEMORANDUM OPINION AND ORDER
Before the Court is the Motion to Dismiss Or, in the Alternative, Motion to Transfer Venue
filed by Defendants World Wrestling Entertainment, Inc. (“WWE”), Stephanie Music Publishing
Inc. (“Stephanie Music”), Michael Seitz a/k/a Michael Hayes (“Seitz”), and James Alan Johnston
(“Johnston”) (collectively “Defendants”) on October 9, 2012 (doc. 10). For the reasons stated below,
the Motion is DENIED IN PART and GRANTED IN PART. The Motion is GRANTED to the
extent it seeks dismissal of all claims against Seitz and Johnston for lack of personal jurisdiction and
improper service. As such, the Complaint is DISMISSED WITHOUT PREJUDICE as to Seitz and
Johnston. The Motion is also GRANTED to the extent it seeks dismissal of the Complaint’s
1
contributory infringement claim. The Complaint’s contributory infringement claim is DISMISSED
WITHOUT PREJUDICE. The Motion is GRANTED IN PART and DENIED IN PART to the
extent it seeks dismissal of the Complaint’s state law claims based on preemption. The state law
claims are DISMISSED to the extent they seek recovery based on Defendants’ use, reproduction,
or distribution of the Protected Works. Defendants’ other requests for relief are DENIED.
I.
BACKGROUND1
This case concerns Defendants’ alleged unauthorized use of Plaintiffs’ songs. Plaintiff James
D. Papa (“Papa”) is a musician and songwriter who has written or co-written several songs for
professional wrestling and has operated under the names Papa Hayes Music, Grand Theft
Productions, Grand Theft Records, and Nabe Nabe Music. Compl. ¶¶ 12-14. In October 1983, Papa
and Defendant Seitz co-wrote the song “Badstreet USA,” which came to be used as “entrance music”
for certain professional wrestlers, including Seitz, wrestling under the name Michael Hayes. Id. at ¶
13. In November 1983, Papa registered this song with Broadcast Music, Inc. (“BMI”), which collects
license fees on behalf of songwriters, composers, and music publishers and then distributes the fees
as royalties to members whose works have been performed. Id. ¶¶ 12-13. Although Papa has licensed
his songs for use by others from time to time, he retained all publishing rights to Badstreet USA and
several other songs at issue in the Complaint, which he refers to as the “Protected Works.”2 Id. at ¶¶
1
The facts are derived from Papa Berg’s Original Complaint filed July 17, 2012.
2
The Protected Works include the songs Badstreet USA, Don’t Step to Ron, Man Called Sting, Mr.
Bang Bang, Master of the DDT, Freebird Forever, Simply Ravishing, Johnny B Bad, The Natural, The
Dragon, He’s Smokin, and Steinerized. Id. at ¶ 14.
2
14-15. Papa later transferred his rights in the Protected Works to Papa-Berg, Inc., a corporation of
which Papa is the sole officer and director.3 Id. at ¶ 12, 15.
On some unspecified date, the representative of the video game company THQ contacted
Papa expressing interest in using Badstreet USA in a video game. Id. at ¶ 16. The representative
made an offer to Papa for use of the song but later emailed Papa to confirm his ownership of the song,
stating that her records showed that the song was owned by WWE. Id. Upon contacting BMI, Papa
discovered that the song had been re-registered by WWE and had been given a new registration
number, resulting in the royalties being directed to Defendants. Id. at ¶¶ 16-17. By the time Papa was
able to correct the registration to properly reflect his ownership, the video game company had
decided not to use the song. Id. After further investigation, Papa discovered that WWE had reregistered all of the Protected Works, listing Defendant Johnston or Defendant Seitz as
“Songwriter/Composer” and Defendant Stephanie Music as publisher.4 Id. at ¶¶ 18-20. Defendants
have allegedly infringed the Protected Works by using them in a DVD and in classic wrestling
matches broadcast on a WWE cable channel. Id. at ¶¶ 22-23. Papa also alleges that his Protected
Works are being used as ring tones for cell phones without his authorization, though the Complaint
does not state WWE’s role in such use, other than to allege that WWE’s erroneous registration has
prevented him from receiving royalties for the ring tones. Id. at ¶ 24.
As a result of the above actions, Papa now brings claims for declaratory judgment of copyright
3
The Court refers to all Plaintiffs collectively as “Papa.”
4
Although the Complaint is unclear regarding the relationship of the Defendants to each other,
Defendants state that Stephanie Music is a wholly-owned subsidiary of WWE and Seitz and Johnston are
current employees of WWE. Mot. Br. 1 (citing Mot. Ex. 1 ¶ 5; Mot. Ex. 2 ¶ 2; Mot. Ex. 3 ¶ 2).
3
ownership, copyright infringement, contributory copyright infringement, unfair competition, tortious
interference with existing and potential business relationships, civil conspiracy, and money had and
received. In response, Defendants filed their Motion to Dismiss on October 9, 2012, which is now
ripe for disposition.
II.
LEGAL STANDARDS
A.
Personal Jurisdiction
Federal Rule of Civil Procedure 12(b)(2) allows for dismissal of an action when a court lacks
personal jurisdiction over the defendant. On a motion to dismiss for lack of personal jurisdiction, the
plaintiff bears the burden of proving that a nonresident defendant is subject to the Court's
jurisdiction. Jones v. Petty–Ray Geophysical Geosource, Inc., 954 F.2d 1061, 1067 (5th Cir. 1992). To
establish the Court’s personal jurisdiction over a defendant, the plaintiff must make only a prima facie
case of jurisdiction. Freudensprung v. Offshore Technical Servs., Inc., 379 F.3d 327, 342-43 (5th Cir.
2004). “The Court may determine the jurisdictional issue by receiving affidavits, interrogatories,
depositions, oral testimony, or any combination of the recognized methods of discovery.” Stuart v.
Spademan, 772 F.2d 1185, 1192 (5th Cir. 1985). All conflicts between the facts contained in the
parties’ affidavits and other documentation must be resolved in the plaintiff's favor. Cent. Freight
Lines, Inc. v. APA Transp. Corp., 322 F.3d 376, 380 (5th Cir. 2003).
In establishing personal jurisdiction, two preconditions must be met: (1) the nonresident must
be amenable to service of process under Texas’ long-arm statute; and (2) the assertion of jurisdiction
over the nonresident must comport with the Due Process Clause of the United States Constitution.
Jones, 954 F.2d at 1067. Because Texas’ long-arm statute has been held to extend to the limits of due
4
process, the Court need only determine whether jurisdiction over the defendant is constitutionally
permissible. Id. at 1067-68 (citing, inter alia, Schlobohm v. Schapiro, 784 S.W.2d 355, 357 (Tex.
1990)). To meet the federal constitutional test of due process, two elements must be satisfied: (1)
the defendant must have purposefully availed itself of the benefits and protections of the forum state
by establishing “minimum contacts” with that state such that it would reasonably anticipate being
haled into court there; and (2) the exercise of jurisdiction over the defendant must not offend
traditional notions of fair play and substantial justice. Id. at 1068 (citations omitted).
The “minimum contacts” test can be met by contacts giving rise to either specific or general
jurisdiction. Gundle Lining Constr. Corp. v. Adams Cnty. Asphalt, Inc., 85 F.3d 201, 205 (5th Cir.
1996). “General personal jurisdiction is found when the nonresident defendant's contacts with the
forum state, even if unrelated to the cause of action, are continuous, systematic, and substantial.”
Marathon Oil Co. v. A.G. Ruhrgas, 182 F.3d 291, 295 (5th Cir. 1999) (citation omitted). Specific
personal jurisdiction exists when the nonresident defendant's contacts with the forum state arise from
or are directly related to the cause of action. Gundle, 85 F.3d at 205. In either context, the court
considers the totality of the circumstances in conducting the minimum contacts analysis; no single
factor is determinative. Stuart, 772 F.2d at 1192.
B.
Transfer of Venue Pursuant to 28 U.S.C. § 1404(a)
Pursuant to 28 U.S.C. § 1404(a), a district court may transfer a civil action to another district
or division where the action could have been brought originally, provided the transfer would be for
“the convenience of parties and witnesses, and in the interest of justice.” The burden falls upon the
movant to demonstrate why the alternate venue is more appropriate. See, e.g., In re Volkswagen of
Am., Inc., 545 F.3d 304, 314 n.10 (5th Cir. 2008). To meet this burden, the movant must first prove
5
that the plaintiff could have originally filed his complaint in the transferee venue. Id. at 312. Next,
the defendant must show good cause as to why the action should be sent to the transferee venue. Id.
at 315. “[T]o show good cause means that a moving party, in order to support its claim for a transfer,
must . . . clearly demonstrate that a transfer is ‘[f]or the convenience of parties and witnesses, and
in the interest of justice.’” Id. (quoting 28 U.S.C. § 1404(a)).
In assessing the interests of convenience and justice, courts look to a series of private and
public factors. Id. “The private interest factors are: (1) the relative ease of access to sources of proof;
(2) the availability of compulsory process to secure the attendance of witnesses; (3) the cost of
attendance for willing witnesses; and (4) all other practical problems that make trial of a case easy,
expeditious and inexpensive.” Id. (quotation omitted). The public interest factors include: “(1) the
administrative difficulties flowing from court congestion; (2) the local interest in having localized
interests decided at home; (3) the familiarity of the forum with the law that will govern the case; and
(4) the avoidance of unnecessary problems of conflict of laws or in the application of foreign law.”
Id. (citation omitted). The balance of these factors must clearly weigh in favor of transferring to the
new venue. Id. If the transferee venue is not “clearly more convenient” than the chosen venue, the
plaintiff’s choice should not be disturbed. Id.
C.
Motion to Dismiss pursuant to Rule 12(b)(6)
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a complaint must contain “a
short and plain statement of the claim showing that the pleader is entitled to relief.” Rule 12(b)(6)
authorizes the court to dismiss a plaintiff’s complaint for failure to state a claim upon which relief can
be granted. In considering a Rule 12(b)(6) motion to dismiss, “[t]he court accepts all well-pleaded
facts as true, viewing them in the light most favorable to the plaintiff.” In re Katrina Canal Breaches
6
Litig., 495 F.3d 191, 205 (5th Cir. 2007)(quoting Martin K. Eby Constr. Co. v. Dall. Area Rapid
Transit, 369 F.3d 464, 467 (5th Cir. 2004)). In order to survive such a motion, a plaintiff must plead
“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007). “Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678. “The
plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556).
III.
ANALYSIS
A.
Personal Jurisdiction
Defendants move to dismiss this action pursuant to Rule 12(b)(2) for lack of personal
jurisdiction. They argue that Papa cannot establish specific personal jurisdiction because they have
not purposefully directed any activities at Texas and the claims do not arise out of any contacts with
Texas. Defendants also argue that Papa cannot establish general personal jurisdiction because they
lack the necessary continuous, systematic, and substantial contacts with Texas. Papa responds that
the Court has specific personal jurisdiction over all Defendants pursuant to either the stream of
commerce theory or the Calder effects test. Papa also argues that general personal jurisdiction is
present. The Court will examine each Defendant’s contacts to determine if personal jurisdiction
exists.
7
1.
WWE Personal Jurisdiction
a)
Contacts
Papa alleges in his Complaint that WWE sold or caused to be sold works infringing his
intellectual property in Texas, committed acts of infringement in Texas, created confusion regarding
the Protected Works in Texas, and caused Papa to suffer injury in Texas. Comp. ¶ 10. Papa further
states via affidavit that copies of two different allegedly infringing DVDs were purchased in Dallas,
Texas and that the infringing cable television broadcasts were viewed in Irving, Texas, both by Papa.
Pls.’ Resp. Ex A at ¶¶ 4-5. Papa also alleges that WWE has engaged in continuous and systematic
activities within Texas, purposefully availing itself of Texas laws. Compl. ¶ 10.
WWE admits to holding 24 of 241 WWE North American events in Texas in 2011 and that
17 of 249 total North American events were scheduled to take place in Texas in 2012. Mot. Ex. 1
at ¶ 13. From the events in Texas during 2011, WWE realized $5.1 million in net revenue, which
represented only one percent of WWE’s national net annual revenue for 2011. Id. at ¶ 15. WWE also
states that WWE events are televised on broadcast, cable, and pay-per-view television throughout
the United States, including a subscription service named “WWE Classics on Demand.” Id. at ¶¶ 1617. WWE also releases DVDs and Blu-rays of its programming, which are distributed through a third
party to retail outlets across the United States. Id. at ¶ 18.
WWE states it “does not have any practice, policy, strategy, or goal to uniquely target Texas
residents for the marketing, promotion, or sale of any television programming, pay-per-view
programming, or of any consumer product, including DVDs of any of WWE events.” Id. at ¶ 19.
WWE is a Delaware corporation with its principal place of business in Stamford, Connecticut. Id.
at ¶¶ 4, 10. WWE does not maintain a Texas office, own or lease Texas real estate, or a maintain
8
a Texas bank account, though it is registered to do business in Texas. Id. at ¶¶ 6-11.
b)
Analysis
Defendants argue that the Supreme Court’s recent plurality opinion concerning personal
jurisdiction, written by Justice Kennedy, requires a plaintiff to demonstrate more than the mere
availability of goods or services in the forum state to confer personal jurisdiction. See J. McIntyre
Machinery, Ltd. v. Nicastro, 131 S. Ct. 2780, 2786-91 (2011)(plurality opinion). But Justice
Kennedy’s opinion was not joined by a majority of the Justices and, as such, Justice Breyer’s
concurrence in judgment was necessary to reach the Court’s holding that New Jersey did not have
personal jurisdiction over the foreign manufacturer in McIntyre. Id. at 2785, 2791. Thus, the
precedential value of McIntyre is not immediately apparent, especially considering that the Fifth
Circuit has not yet addressed this case.
In McIntyre, a New Jersey resident was injured by an English manufacturer’s machine which
was neither marketed in New Jersey or shipped there, though the manufacturer did sell its machines
to a U.S. distributor. Id. at 2786. Both Kennedy’s plurality and Breyer’s concurrence rejected a rule
that jurisdiction over a foreign manufacturer is proper so long as the manufacturer “knows or
reasonably should know that its products are distributed through a nationwide distribution system
that might lead to those products being sold in any of the fifty states.” Id. at 2785; 2793. Justice
Kennedy’s plurality opinion went further in explaining that a foreign company must purposely direct
its activities at a forum statute before personal jurisdiction is found. In contrast, Justice Breyer
“merely found that the plaintiff had failed to present evidence of purposeful availment under any of
the Court’s past opinions.” Ainsworth v. Cargotec USA, Inc., Civ. Action No. 2:10-cv-236-KS-MTP,
2011 WL 4443626, at *7 (S.D. Miss. Sept. 23, 2011). Breyer reiterated the Supreme Court’s previous
9
findings that a single isolated sale is not sufficient to confer personal jurisdiction over a foreign
defendant, even if the product is put in the stream of commerce, as plaintiffs must show that the sale
was part of the “regular flow or regular course” of sales in the state; show “something more” such as
special state-related design, advertising, advice, or marketing; or show evidence that the
manufacturer somehow purposefully availed itself of the privilege of conducting activities within the
state or delivered its goods in the stream of commerce with the expectation that they will be
purchased by users within the state. McIntyre, 131 S.Ct. at 2792 (citing Asahi Metal Indus. Co. v.
Super. Ct. of Cal., 480 U.S. 102, 111-12, 117, 122 (separate opinions of O’Connor, J.; Brennan, J.;
and Stevens, J); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297-98 (1980)). In essence,
Breyer declined to announce any new rule regarding the stream of commerce. See Frito-Lay N. Am.,
Inc. v. Medallion Foods, Inc., 867 F. Supp. 2d 859, 867 (E.D. Tex. 2012) (“Justice Breyer specifically
declined to announce a new rule in stream of commerce cases” as “‘resolving this case requires no
more than adhering to our precedents’”) (quoting McIntyre, 131 S.Ct at 2792).
“When a fragmented Court decides a case and no single rationale explaining the result enjoys
the assent of five Justices, the holding of the Court may be viewed as that position taken by those
Members who concurred in the judgments on the narrowest grounds.” Garland v. Roy, 615 F.3d 391,
399 (5th Cir. 2010) (quoting Marks v. United States, 430 U.S. 188, 193 (1968)). Because Justice
Breyer’s holding is narrowest, it holds precedential authority. See, e.g., Frito-Lay, 867 F. Supp. 2d at
867 (Breyer concurrence in McIntyre controls); Graham v. Hamilton, Civ. Action No. 3:11-609, 2012
WL 893748, at *3-4 (Mar. 15, 2012); Bluestone Innovations Tex., L.L.C. v. Formosa Epitaxy Inc., 822
F. Supp. 2d 657, 662 (E.D. Tex. 2011); Dram Techs. LLC v. Am. II Group, Inc., 2:10-CV-45-TJW,
2011 WL 4591902, at *2 (E.D. Tex. Sept. 30, 2011); Ainsworth, 2011 WL 4443626, at *6. But see
10
Graham, 2012 WL 893 748, *3 n.2 (discussing how some district courts within Fifth Circuit have
concluded that McIntyre overrules Fifth Circuit’s prior minimum contacts precedent, while other
district courts “have concluded that pre-McIntyre Fifth Circuit precedent continues to apply”). Thus,
Justice Kennedy’s opinion does not overrule existing Fifth Circuit authority regarding personal
jurisdiction because it is Justice Breyer’s opinion, which was more narrow and relied entirely on
existing precedents, that is the precedential holding of the Supreme Court. Further, in declining to
announce a new rule, Breyer left prior Supreme Court decisions on personal jurisdiction, and the
Fifth Circuit’s cases interpreting them, untouched. See Ainsworth, 2011 WL 4443626, at *7 (“As
Justice Breyer declined to choose between the Asahi plurality opinions, McIntyre is rather limited in
its applicability. It does not provide the Court with grounds to depart from the Fifth Circuit
precedents establishing Justice Brennan’s Asahi opinion as the controlling analysis.”).
Having determined the applicable law, the Court turns to Plaintiffs’ argument that this Court
has specific personal jurisdiction over WWE. Specific jurisdiction in the Fifth Circuit is based on a
three-step analysis:
(1) whether the defendant purposely directed its activities toward the forum state or
purposely availed itself of the privileges of conducting activities there; (2) whether
the plaintiff's cause of action arises out of or results from the defendant's
forum-related contacts; and (3) whether the exercise of personal jurisdiction is fair
and reasonable.
Luv n’ care v. Insta-Mix, Inc., 438 F.3d 465, 469 (5th Cir. 2006)(quoting Nuovo Pignone v.
STORMAN ASIA M/V, 310 F.3d 374, 378 (5th Cir. 2002)). As for the first step, the Fifth Circuit
“has consistently held that mere foreseeability or awareness is a constitutionally sufficient basis for
personal jurisdiction if the defendant’s product made its way into the forum state while still in the
stream of commerce.” Id. at 470 (citation omitted). In the Fifth Circuit’s view, such a rule applies
11
given its determination that “[w]here a defendant knowingly benefits from the availability of a
particular state’s market for its products, it is only fitting that the defendant be amenable to suit in
that state.” Id.5 (citation omitted).
Here, WWE admits that it broadcasts its programming and sells its products nationwide. Papa
also shows that he purchased copies of the allegedly infringing DVDs in Dallas, Texas and that he
viewed the infringing broadcasts in Irving, Texas. Pls.’ Ex. A at ¶¶ 4-5. WWE’s argument that it did
not have any practice or policy uniquely targeting Texas residents for the marketing, promotion, or
sale of its programming or products is unavailing. By selling its products and broadcasting its
television content in Texas, even through third party distributors or cable operators, WWE
knowingly benefitted from Texas’ market for WWE’s products and therefore it is only fitting that
WWE be amenable to suit in Texas. See Luv n’ care, 438 F.3d at 470. The fact that Papa bought the
alleged infringing DVDs at a “large chain store” in Dallas, Texas also suggests that such sales are part
of the regular flow or course of sales in Texas and not an isolated incident. See Pls.’ Resp. Ex. A at
¶ 4.
As for the second step of the specific personal jurisdiction analysis, Papa’s claims center on
the alleged infringement contained in the DVDs and broadcasts that traveled into Texas through
the stream of commerce. Thus, Papa’s causes of action arise out of WWE’s contacts with Texas and
as such, the contacts are sufficient to confer personal jurisdiction. See Luv n’ care, 438 F.3d at 473.
The third and final step in the specific jurisdiction analysis is whether the exercise of
5
Given that the Court has found that McIntyre does not disturb other Supreme Court precedent or
Fifth Circuit precedent on personal jurisdiction, the Court rejects Defendants’ argument that Luv n’ care is
no longer good law.
12
jurisdiction would “offend traditional notions of fair play and substantial justice.” Id. “When a
plaintiff makes its prima facie case that the defendant has ‘minimum contacts’ with the forum state,
the burden of proof shifts to the defendant to show that the exercise of jurisdiction would be
unreasonable.” Id. (citing Nuovo Pignone, 310 F.3d at 382).
Here, beyond their arguments concerning the first two steps of the analysis, Defendants fail
to argue that the exercise of jurisdiction would be unreasonable and therefore fail to carry their
burden. The Court concludes, based on the foregoing analysis, that Plaintiffs have met their prima
facie burden to establish this Court’s personal jurisdiction over WWE.6 As such, the Court DENIES
Defendants’ Motion to Dismiss to the extent it seeks dismissal of the Complaint as to WWE and
Stephanie Music for lack of personal jurisdiction.7
In making this determination, the Court also rejects Defendants’ separate argument that the
stream of commerce theory of personal jurisdiction does not apply in the copyright context. See Mot.
Br. 6-7. In Luv n’ care, the Fifth Circuit specifically applied the stream of commerce theory in a
copyright case, and the Court disagrees that Luv n’ care has no applicability here “because the case
involved the design of physical products.” See Mot. Reply 3-4. The Court notes that Papa’s claims
are based in part on two allegedly infringing DVDs that entered the stream of commerce, similar to
6
As for Defendant Stephanie Music, the Court need not make an independent determination of
jurisdiction over Stephanie because Stephanie Music is not an operating company, has no employees, and
now functions only as a “doing business as” name used to account for WWE’s receipt of music publishing
income. See Mot. Ex. 1 at ¶ 5. Therefore, because Stephanie Music does not exist separately from WWE, the
Court’s determination of personal jurisdiction over WWE suffices for any claim that may be directed at
Stephanie Music.
7
Because the Court has determined it may properly maintain personal jurisdiction over WWE based
on the stream of commerce theory, the Court need not examine the Calder effects test nor general personal
jurisdiction in regards to WWE.
13
the alleged infringing bottles in Luv n’ Care. The Court also notes that another case Defendants cite,
Ham v. La Cienega Music Co., 4 F.3d 413 (5th Cir. 1993), is distinguishable. The Luv n’ care court
explained that in Ham, “the allegedly infringing song was different from the one that had been
distributed through the stream of commerce to the forum state,” and the court might have found
jurisdiction “if the song distributed in Texas and the allegedly infringing song were one and the
same.” Luv n’ Care, 438 F.3d at 473 (citing Ham, 4 F.3d at 416 n.13). Here, at least one of the
allegedly infringing songs is the same song that was distributed through the stream of commerce to
Texas on two DVDs, and all the Protected Works were allegedly broadcast in programs on WWE’s
cable channel which were viewed in Texas.
The other cases Defendants cite in support of this argument are non-binding, and the Court
disagrees with them to the extent they hold that the stream of commerce theory does not apply in
copyright cases. Further, the one case they cite from the Northern District of Texas is inapposite.
See M3Girl Designs LLC v. Purple Mountain Sweaters, Civ. Action No. 3:09-cv-2334-G, 2010 WL
3699983 (N.D. Tex. Sept. 13, 2010). In M3Girl Designs, the defendants made only one sale to Texas
residents, and that sale did not involve the copyrights at issue; instead, the suit was over harm
resulting from the defendants’ maintenance of a website that contained allegedly infringing material
and was accessible in Texas. Id. at *7. Thus, M3Girl Designs is distinguishable from the instant case
for the same reason Ham is distinguishable.
2.
The Individual Defendants
Defendants Seitz and Johnston (the “Individual Defendants”) move to dismiss Papa’s causes
of action for lack of personal jurisdiction pursuant to Rule 12(b)(2). The Court now examines the
Individual Defendants’ contacts with Texas. In the Complaint, Papa fails to allege the Individual
14
Defendants’ citizenship and fails to allege any contact whatsoever with Texas on behalf of either
Individual Defendant. In fact, throughout the Complaint, the only references to either Individual
Defendants state that Defendant Seitz co-wrote Badstreet USA and used the song as entrance music
and state that when the Protected Works were allegedly re-registered, the songwriter/composer name
was changed from Papa to either James Alan Johnston or Michael Seitz. See Comp. ¶¶ 19-20. There
is no allegation that either Individual Defendant has ever made contact with Texas, nor is there any
mention that either Individual Defendant participated in the alleged re-registering of the Protected
Works or promotion of the DVDs and programming that allegedly used the Protected Works.
Both Individual Defendants have submitted affidavits. Defendant Johnston8 is employed as
the Music Director of WWE. His affidavit demonstrates he has no relevant contacts with Texas and
that he was never served with the complaint or summons in this lawsuit. Mot. Ex. 2 at ¶¶ 5-15.
Michael Seitz is employed by WWE as the Vice President of “creative writing/booking.” Mot. Ex. 3
at ¶ 2. According to Seitz, he co-wrote all of the Protected Works with Papa. Id. at ¶ 4. During the
late 1980's, Seitz would commute to Dallas for two-week blocks of time from his Georgia residence
and stay with Papa during the time he was in Dallas. Id. ¶ 6. Since 2011, Seitz has been to Texas
sixteen times for WWE events, but otherwise has not had any substantive contacts with Texas in
over twenty-five years. Id. ¶¶ 6-15. Seitz has also not been served with the Complaint or a summons
in this case. Id. at ¶ 16.
a)
Specific Personal Jurisdiction
Despite these minimal contacts, Papa argues that personal jurisdiction is proper under Calder
8
The Court assumes that affiant Jim Johnston is one and the same as Defendant James Alan
Johnston.
15
v. Jones, 465 U.S. 783, 789 (1984). Under Calder, “an act done outside the state that has
consequences or effects within the state will suffice as a basis for jurisdiction in a suit arising from
those consequences if the effects are seriously harmful and were intended or highly likely to follow
from the nonresident defendant’s conduct.” Guidry v. U.S. Tobacco Co., 188 F.3d 619, 628 (5th Cir.
1999) (citing Calder, 465 U.S. at 789-90). Papa argues that Defendants’ actions “were calculated to
injure one specific person in the world – Papa in Dallas, Texas,” such that “Defendants should
reasonably have anticipated being haled into a Texas court for their actions.” Pls.’ Resp. 8-9.
However, courts have explained that even after Calder, personal jurisdiction under the effects
test is rare, and plaintiffs must still show that a defendant purposefully availed itself of the benefits
of the forum state or purposely directed conduct at the forum state. See Stroman Realty v. Wercinski,
513 F.3d 476, 486 (5th Cir. 2008); see also Hoffman v. L&M Arts, 774 F. Supp. 2d 826, 843-45 (N.D.
Tex. 2011) (the effects test “is but one facet of the ordinary minimum contacts analysis, to be
considered as part of the full range of the defendant’s contacts with the forum, and the plaintiff’s
residence in the forum, and suffering of harm there, will not alone support jurisdiction under Calder”)
(citing, inter alia, Revell v. Lidov, 317 F.3d 467, 473 (5th Cir. 2002); Panda Brandywine Corp. v.
Potomac Elec. Power Co., 253 F.3d 865, 869 (5th Cir. 2001) (plaintiff must show purposeful
availment besides the plaintiff’s residence in the state and the foreseeability of defendant’s actions
causing injury in Texas)). While the Court has already determined that personal jurisdiction is
proper as to WWE under a stream of commerce theory, Papa has not established through a prima
facie case that Seitz or Johnston put the allegedly infringing works into the stream of commerce or
specifically directed any conduct towards Texas. Nor has Papa established that Papa’s causes of
action arose from any of Seitz’s or Johnston’s contacts with Texas. In light of the full range of Seitz’s
16
and Johnston’s minimal contacts with Texas, even considering the alleged harm to Papa, the effects
test alone does not support personal jurisdiction over the Individual Defendants in this case. Overall,
Papa has not established a prima facie case of specific personal jurisdiction over the Individual
Defendants.
b)
General Personal Jurisdiction
General personal jurisdiction exists “when a non-resident defendant’s contacts with the forum
state are substantial, continuous, and systematic.” Johnston v. Multidata Sys. Int’l Corp., 523 F.3d 602,
609 (5th Cir. 2008) (citing Helicopteros Nacionales de Colom., S.A. v. Hall, 466 U.S. 408, 414-19
(1984)). The “continuous and systematic contacts test is a difficult one to meet, requiring extensive
contacts between a defendant and a forum.” Id. (quoting Submersible Sys., Inc. v. Perforadora Cent.,
S.A., 249 F.3d 413, 419 (5th Cir. 2001). Here, Johnston has had no contact with Texas in at least
ten years, and Seitz’s only contact in the last 25 years has been sixteen trips for WWE live events,
which do not have any apparent connection with the Protected Works. As such, neither Johnston
nor Seitz have had the “substantial, continuous, and systematic” contacts required for general
jurisdiction. See Helicopteros, 466 U.S. at 411, 416-19(no general jurisdiction in Texas for foreign
defendant despite purchasing helicopters and parts from a Texas company, sending prospective pilots
to Texas for training, sending management and maintenance personnel to Texas for consultations,
and receiving checks drawn upon a Texas bank).
Because the Court lacks both specific and general personal jurisdiction over Johnston and
Seitz, both of the Individual Defendants are hereby DISMISSED pursuant to Defendants’ Rule
12(b)(2) Motion.
17
c)
Jurisdictional Discovery
To the extent Plaintiffs’ Response filed November 6, 2012 requests additional time to obtain
jurisdictional discovery from the Individual Defendants, such request is DENIED. A court may grant
jurisdictional discovery when the plaintiff has established a “preliminary showing of jurisdiction” over
the defendant. EsNtion Records, Inc. v. JonesTM, Inc., No. 3:07-CV-2027-L, 2008 WL 2415977, *6
(N.D. Tex. June 16, 2008) (denying jurisdictional discovery regarding nonresident parent
corporation) (citing Fielding v. Hubert Burda Media, Inc., 415 F.3d 419, 429 (5th Cir. 2005)). Here,
Papa has not shown a preliminary finding of jurisdiction. Rather, he merely states that he has “not
been afforded an opportunity to obtain any discovery” to establish Seitz’s and Johnston’s contacts
with the State of Texas. Resp. 11. Further, Papa’s arguments in support of jurisdictional discovery
do not show that such discovery would add any significant facts to his jurisdictional claims. See Kelly
v. Syria Petroleum Dev. B.V., 213 F.3d 841, 857-58 (5th Cir. 2000) (district court did not abuse
discretion in denying jurisdictional discovery given that plaintiffs offered no basis to show that
proposed depositions of corporate representatives would contradict those representatives’ sworn
declarations). As such, the Court DENIES Papa’s request for jurisdictional discovery.
B.
Service
The Individual Defendants also seek dismissal of the Complaint due to insufficient service
of process pursuant to Rule 12(b)(5). Although the Court has already dismissed Papa’s Complaint
as to the Individual Defendants due to lack of personal jurisdiction, the Court also GRANTS
Defendants’ Rule 12(b)(5) Motion to Dismiss the Individual Defendants for insufficient service of
process. While a court may extend the time for service of process, Papa never formally moved for
additional time to serve Seitz and Johnston. Further, Papa has not shown good cause for his failure
18
to serve the Individual Defendants. In the Court’s view, Papa’s excuse, that he had not served the
Individual Defendants because he intended to seek discovery from WWE regarding their service
information and had not had this opportunity due to WWE’s extension of time to respond to the
Complaint, is not good cause. See Pls.’ Resp. 14; see also Gartin v. Par Pharm. Cos., 289 F. App’x 688,
692 (5th Cir. 2008) (good cause under Fed. R. Civ. P. 4(m) requires “at least as much as would be
required to show excusable neglect, as to which simple inadvertence or mistake of counsel or
ignorance of the rules usually does not suffice”) (citation omitted). The Court also declines, in its
discretion, to extend the time for service on the Individual Defendants. Having filed the Complaint,
Papa was required to either serve Seitz or Johnston within the deadline for service or promptly
request an extension when it appeared he would not be able to serve these individuals within the
deadline. Due to this failure, the Court DISMISSES WITHOUT PREJUDICE Papa’s claims as to
Seitz and Johnston due to insufficient service of process.
C.
Motion to Transfer Venue
Defendants move to transfer this action under 28 U.S.C. § 1404(a) to a federal district court
in Connecticut. The burden falls on Defendants, as the movants, to demonstrate why the alternative
venue is more appropriate. In re Volkswagen, 545 F.3d at 314 n.10. Defendants must prove that
Plaintiffs could have originally filed suit in Connecticut and show good cause as to why the action
should be sent to Connecticut. See id. at 312, 315. The Court will now consider the public and
private factors to determine if the interests of convenience and justice necessitate transfer of this
action.
Defendants argue that all relevant evidence and witnesses are located either at WWE’s
principal place of business in Stamford, Connecticut or at BMI, located in New York. Thus,
19
according to Defendants, access to proof, availability and cost of witnesses, and the avoidance of
other practical problems make Connecticut the more convenient forum. However, in the Court’s
view, travel by witnesses and parties in this case will be necessary whether venue is situated in the
Northern District of Texas or in Connecticut. It does appear that more witnesses and proof will be
found in Connecticut or in nearby New York, so the private interest factors do weigh at least slightly
in favor of transfer. However, Defendants’ cursory discussion of the private interest factors simply
does not show that the private interest factors clearly weigh in favor of transfer.
As for the public interest factors, Defendants argue that because the facts of the Complaint
occurred outside Texas, this lawsuit constitutes an unfair burden to Texas taxpayers. Defendants do
not address the other public interest factors. However, as noted by Plaintiffs, Texas has a definite
interest in ensuring that one of its citizens be able to prosecute his claims at home. Defendants have
also not shown that issues of court congestion, familiarity of the forum with the law of the case, or
conflict of laws favors transfer of the case to Connecticut. As such, Defendants have not shown that
the public interest factors weigh in favor of transfer.
Overall, looking at the public and private interest factors, Defendants have failed to carry
their burden to show good cause why this action should be transferred to Connecticut – they have
not shown that the private and public interest factors clearly weigh in favor of transfer. For these
reasons, Defendants’ Motion is DENIED to the extent it seeks transfer of venue pursuant to 28
U.S.C. § 1404(a).
D.
Motion to Dismiss pursuant to Rule 12(b)(6)
1.
Copyright Claims
Defendants move to dismiss Papa’s claims of direct and contributory copyright infringement.
20
Defendants argue that Plaintiffs only generically allege that Defendants infringed the Protected
Works and that Plaintiffs fail to identify which Protected Works were infringed, on what WWE
broadcasts or on which cell phone ring tones, and when these alleged infringements occurred. As for
the contributory infringement claim, Defendants argue Plaintiffs have not alleged any particularity
or differentiation between each Defendant. Plaintiffs retort that they have named the twelve songs
that were allegedly infringed by Defendants and that they have met the pleading requirement for
both their direct and contributory copyright infringement claims.
“To prevail on a copyright infringement claim, a plaintiff must show (1) ownership of a valid
copyright and (2) unauthorized copying.” Peel & Co., Inc. v. Rug Market, 238 F.3d 391, 394 (5th Cir.
2001). Registration of a copyright with the United States Copyright Office is prima facie evidence of
ownership of a valid copyright. 17 U.S.C. § 410(c). To establish unauthorized copying by a
defendant, a plaintiff must prove (1) factual copying and (2) that the infringing work is substantially
similar to the copyrighted work. Bridgmon v. Array Sys. Corp., 325 F.3d 572, 576 (5th Cir. 2003).
Factual copying may be inferred from “(1) proof that the defendant had access to the copyrighted
work prior to creation of the infringing work and (2) probative similarity.” Peel, 238 F.3d at 394.
Plaintiffs have adequately pled the first requirement of their direct infringement claim, as they
have named the twelve Protected Works and alleged registration of the relevant copyrights. See
Comp. ¶¶ 14, 27. Papa has also alleged that WWE had access to the Protected Works given their
past public use at professional wrestling events and the inclusion of at least some of the songs on the
album Slam Jam I in 1992. Id. at ¶¶ 13-15. As for probative similarity, Plaintiffs allege that
Defendants manufactured, sold, and/or distributed items containing exact copies or substantially
similar copies of the original recordings, including using the song Badstreet USA to promote two
21
DVDs and playing the Protected Works on WWE’s cable channel. Id. at ¶¶ 22-23, 35; see also Pls.’
Resp. Ex. A at ¶¶ 4-5. As such, Papa has sufficiently alleged unauthorized copying through WWE’s
access to the copyrighted works prior to creation of the infringing work and probative similarity
between the two. See Peel, 238 F.3d at 394. Because Plaintiffs have adequately alleged each element
of direct copyright infringement, Defendants’ Motion to Dismiss is DENIED as to Plaintiffs’ direct
copyright claim.
As for contributory copyright infringement, a defendant is liable for contributory copyright
infringement “when it, with knowledge of the infringing activity, induces, causes or materially
contributes to infringing conduct of another.” Alcatel USA, Inc. v. DGI Techs., Inc., 166 F.3d 772,
790 (5th Cir. 1999)(citation omitted). Even assuming Plaintiffs have adequately plead how each
Defendant had knowledge of the infringing activity, the Complaint does not allege how Defendants
either induced, caused, or materially contributed to infringing conduct of another. See Alcatel, 166
F.3d at 790. Rather, Papa’s claims in the Complaint appear to be based on the alleged acts of the
Defendants that directly infringed Papa’s copyrights.9 As such, Plaintiffs’ contributory copyright
infringement claim is DISMISSED WITHOUT PREJUDICE.
2.
Copyright Preemption of State Law Claims
Defendants argue that all of Plaintiffs’ state law claims are preempted by the Copyright Act’s
preemption provision, 17 U.S.C. § 301(a), given their contention that each of the state law claims
are predicated on Defendants’ alleged misuse of the Protected Works. In response, Papa argues that
9
Papa does not make any specific arguments in response to Defendants’ argument that the
contributory infringement claim should be dismissed, responding only to Defendants’ arguments regarding
direct infringement.
22
Defendants’ characterization “ignores a key element of Plaintiffs’ complaint, namely that Defendants
also improperly re-registered the Protected Works at BMI and have thus engaged and are engaging
in acts of unfair competition, unlawful trading on Plaintiffs’ goodwill and reputation in the industry.”
Pls.’ Resp. 22-23. In his view, “Defendants’ tortious attempt to divest Plaintiffs of royalties for use
of the Protected Works is separate and apart from their unauthorized use of the Protected Works in
their DVDs and television programming,” and the use of the Protected Works forms the basis for
copyright infringement while the re-registering of the Protected Works forms “an additional basis for
the remaining state law claims.” Id. at 23.
Courts in the Fifth Circuit apply a two-step test to determine if a state law cause of action is
preempted by Section 301(a). To be preempted, first the cause of action must fall “within the subject
matter of copyright,” and second, the cause of action must “protect[] rights that are equivalent to
any of the exclusive rights of a federal copyright, as provided in 17 U.S.C. § 106.” Daboub v. Gibbons,
42 F.3d 285, 288-89 (5th Cir. 1995). A state-created right is equivalent to these rights “if the mere
act of reproduction, distribution, or display infringes it.” Taquino v. Teledyne Monarch Rubber, 893
F.2d 1488, 1501 (5th Cir. 1990) (citations omitted). The “extra-element” test is used to determine
whether the protected rights under state law are equivalent to the rights protected under the
Copyright Act. Under this test, a state claim is equivalent if it involves “‘elements that would not
establish qualitatively different conduct by the defendants than the elements for an action under the
Copyright Act.’” Daboub, 42 F.3d at 290 (citation omitted).
Here, the causes of action all concern Papa’s rights in his songs and Defendants’ violations
of these rights, such that the claims are clearly within the subject matter of copyright. See 17 U.S.C.
§ 102(a)(2). As such, the first step of the Fifth Circuit’s test is satisfied. Thus, the Court must
23
determine whether Papa’s state law claims are equivalent to any of the exclusive rights of copyright.
Moving to the second step, Papa’s state law claims are based on both his allegations that
Defendants used the Protected Works without his consent and also his allegations that Defendants
re-registered the Protected Works. To the extent that the state claims are based on Defendants’
reproduction or distribution of the Protected Works, they are equivalent to copyright and thus
preempted. See, e.g., M-I LLC v. Stelly, 733 F. Supp. 2d 759, 792 (S.D. Tex. 2010) (unfair
competition by misappropriation claim preempted as neither the element requiring the investment
of extensive time, labor, skill, and money nor the requirement that the defendant use the product
in competition with plaintiff established the necessary qualitatively different element) (citing Alcatel,
166 F.3d at 789); id. at 788-90 (tortious interference claims preempted to the extent they were based
on plaintiff losing benefits flowing from its exclusive right to copyrightable material as “the additional
intent elements required in tortious interference claims go merely to the scope of the right, and do
not change the nature of the action”) (citations omitted); id. at 791 (civil conspiracy claim preempted
to the extent it was based on an agreement to copy and use copyrightable material, as “the intent
element of the conspiracy does not constitute qualitatively different conduct” than a copyright claim)
(citations omitted); Ledesma v. D.R. Horton, Inc., No. SA-08-CA-128-OG, 2008 WL 1912531, *2
(W.D. Tex. Apr. 29, 2008) (quasi-contract claims preempted by copyright where core of plaintiff’s
theory relates to defendant’s profiting from unauthorized use of plaintiff’s intellectual property)
(citing, inter alia, Recursion Software, Inc. v. Interactive Intelligence, Inc., 425 F. Supp. 2d 756, 769
(N.D. Tex. 2006)). This holding also applies to the extent the state claims are based on Defendants’
re-registration of the Protected Works and their subsequent reproduction or distribution of the
Protected Works, as there Papa also seeks to protect rights equivalent to copyright.
24
However, Papa’s state law claims are not preempted to the extent they seek recovery based
on Defendants’ re-registration and the subsequent diversion of royalties from third parties not related
to Defendants’ use or distribution of the Protected Works. Such claims are not based on Defendants’
unauthorized reproduction or use of Papa’s copyrighted works, but rather on receipt of funds from
BMI without any further action by Defendants. Thus, as one example, Papa may proceed with his
state claims where a third party used one of the Protected Works and Papa did not receive the
royalty solely because the copyright was now re-registered to Defendants.10 In contrast, Papa may not
proceed with his state claims where they are based on Defendants’ use of the Protected Works or
Defendants’ licensing of the Protected Works to third parties, even where the third parties
contracted with Defendants due to the improper re-registration, as these claims are equivalent to the
rights protected by copyright.
Given that the Court has found that Papa’s state law claims are largely preempted, the Court
does not consider Defendants’ separate arguments that Papa fails to state a claim for tortious
interference with existing and potential business relationships and civil conspiracy. See Mot. Br. 1720.
3.
Statute of Limitations
Copyright claims are subject to a three-year statute of limitations. See 17 U.S.C. 507(b) (civil
actions subject to three-year limitations period); see also Jaso v. Coca-Cola Co., 435 F. App’x 346, 352
(5th Cir. 2011) (copyright case citing statute). Further, “[r]ecordation of a document in the
10
It is unclear whether Papa has in fact lost any royalties solely because of any third party’s use of the
Protected Works after re-registration not connected to Defendants’ use, reproduction, or distribution of these
works.
25
Copyright Office gives all persons constructive notice of the facts stated” in a properly recorded
document.11 17 U.S.C. 205(c); Daboub, 42 F.3d at 291 (citing statute).
The Court does not doubt Papa’s claims that he did not discover WWE’s alleged tortious acts
until late 2010, less than three years prior to the filing of the Complaint. See Pls.’ Resp. Ex. A ¶ 4.
Nevertheless, the Complaint, while alleging that Defendants’ registration was improper, admits on
its face that all of the Protected Works were re-registered under the name of Michael Seitz or James
Alan Johnston as songwriters and composers with Stephanie Music as publisher. See Compl. ¶¶ 1720. Thus, Papa had constructive notice of Defendants’ improper registration as of the date of reregistration such that the discovery rule would not salvage any claims that would otherwise be timebarred, at least if Defendants had re-registered the Protected Works more than three years prior to
the filing of this suit. See Daboub, 42 F.3d at 291. However, based on the information before the
Court, it cannot tell when any of the protected works were re-registered such that Papa had
constructive notice. Defendants have also failed to provide sufficient authority showing that the
discovery rule does not apply in copyright cases.12 As such, the Court DENIES Defendants’ Motion
11
Defendants state incorrectly that Daboub stands for the proposition that “the public release of an
infringing work constitutes constructive notice to the plaintiff of the existence of a cause of action to trigger
the running of the statute of limitations.” Defs.’ Reply 10 (citing Daboub, 42 F.3d at 291). Daboub says
nothing about “public release” of a work but rather registration of the work with the Copyright Office.
Papa incorrectly states that Daboub stands for the proposition “most U.S. Circuit Courts of Appeal
agree that the discovery rule should apply in copyright matters.” Pls.’ Resp. 23 (citing Daboub, 42 F.3d at
291). The court in Daboub made no statement as to whether the discovery rule applied to copyright claims
and what other courts of appeal had stated, noting that even if it did apply, Section 205(c) barred the
plaintiffs’ claims given that the defendant had registered its infringing work and some of the plaintiffs knew
about the infringing work several years before the suit was filed. 42 F.3d at 291.
12
The Court expresses no opinion as to when precisely Papa’s claims accrued but notes Daboub’s
disapproval of the continuing tort theory in copyright cases. The Daboub case involved claims of copyright
infringement by plaintiffs who claimed that the band ZZ Top copied their song and registered the infringing
song with the Copyright Office. The Daboub court held that “each time ZZ Top sells a single” of the infringing
26
to Dismiss to the extent it seeks dismissal of any claims accruing prior to July 17, 2009 based on
limitations.
IV.
CONCLUSION
For the aforementioned reasons, Defendants’ Motion to Dismiss is DENIED IN PART and
GRANTED IN PART. The Motion is GRANTED to the extent it seeks dismissal of all claims
against Seitz and Johnston for lack of personal jurisdiction and improper service. As such, the
Complaint is DISMISSED WITHOUT PREJUDICE as to Seitz and Johnston. The Motion is also
GRANTED to the extent it seeks dismissal of the Complaint’s contributory infringement claim. The
Complaint’s contributory infringement claim is DISMISSED WITHOUT PREJUDICE. The
Motion is GRANTED IN PART and DENIED IN PART to the extent it seeks dismissal of the
Complaint’s state law claims based on preemption. The state law claims are DISMISSED to the
extent they seek recovery based on Defendants’ use, reproduction, or distribution of the Protected
Works. Defendants’ other requests for relief are DENIED.
The Court does not take lightly dismissal of a claim without reaching its merits. Thus, a
plaintiff will be given the opportunity to amend a complaint where it appears that more careful or
detailed drafting might overcome the deficiencies on which dismissal is based. Hart v. Bayer Corp.,
song, the plaintiffs’ “damages may increase, but the tort was committed when ZZ Top copyrighted the song.”
42 F.3d at 291. The court discussed the problem of applying a continuing tort theory to copyright, explaining:
If the continuing tort theory were applied to cases involving musical recordings, then the
statute of limitations would never apply to these cases. If the song were played once on a
radio, or someone bought a copy of a recording at the store the day before trial, the case
would be brought within the statute of limitations and the tort resurrected.
Id.
27
199 F.3d 239, 248 n.6 (5th Cir. 2000) (noting that a court may dismiss a claim for failing to comply
with Rule 9(b), but “it should not do so without granting leave to amend, unless the defect is simply
incurable or the plaintiff has failed to plead particularity after being afforded repeated opportunities
to do so”); Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977) (observing that a complaint
should only be dismissed under Rule 12(b)(6) “after affording every opportunity for the plaintiff to
state a claim upon which relief can be granted” (citation omitted)).
If Plaintiffs are able to replead any Counts to overcome all of the grounds stated herein for
dismissal, they should do so by no later than thirty (30) days from the date of this Order. Further,
any repleading shall be accompanied by a synopsis of no more than ten (10) pages, explaining how
the amendments overcome the grounds stated for dismissal in this Order. Should Plaintiffs replead,
Defendants are hereby granted leave to file responses to Plaintiffs’ synopsis. Any response shall not
exceed ten (10) pages and must be filed within fourteen (14) calendar days of the repleading. No
further briefing will be permitted.
SO ORDERED.
SIGNED: May 15, 2013
_________________________________
JANE J. BOYLE
UNITED STATES DISTRICT JUDGE
28
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?