Brighter Sky Productions, LLC, et. al. v. Marriott International, Inc., et. al.

Filing 44

MEMORANDUM OPINION AND ORDER: Granting Defendants' 8 Motion to Dismiss; denying Plaintiffs' 14 Motion for Leave to File Amended Complaint; terminating as moot all pending motions; dismissing this action without prejudice and striking it from the docket. Signed by Judge Irene C. Berger on 5/16/2018. (cc: attys; any unrepresented party) (slr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BECKLEY DIVISION
BRIGHTER SKY PRODUCTIONS, LLC, et al.,
Plaintiffs,
v.

CIVIL ACTION NO. 5:17-cv-03254

MARRIOTT INTERNATIONAL, INC., et al.,
Defendants.

MEMORANDUM OPINON AND ORDER
The Court has reviewed the Defendants’ Motion to Dismiss (Document 8), the
Memorandum of Law in Support of Defendants’ Motion to Dismiss for Improper Venue and Lack
of Personal Jurisdiction (Document 9), the Plaintiffs’ Response to Defendants’ Motion to Dismiss
(Document 13), and the Defendants’ Reply Memorandum of Law (Document 16). The Court has
also reviewed the Plaintiffs’ Motion for Leave to File Amended Complaint (Document 14), the
Memorandum of Law in Support (Document 15), the Defendants’ Memorandum of Law in
Opposition (Document 19), and the Complaint (Document 1). For the reasons stated herein, the
Court finds that the motion to dismiss should be granted and the motion to amend should be denied.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The Plaintiffs, Brighter Sky Productions, LLC (“Brighter Sky”), Dan Ramon, Diana
Belkowski, and Carl Anthony Tramon, initiated this lawsuit with a Complaint (Document 1) filed
in this Court in September of 2017. They name as Defendants Marriott International, Inc.,
Marriott Theatre, Michael Mahler, and Aaron Thielen.

In 1998, Homer H. Hickam, Jr., published his book Rocket Boys, a memoir of his childhood
in the mining camp of Coalwood, West Virginia. The following year, Universal Studios released
a movie entitled October Sky based on Mr. Hickam’s book. Plaintiff Brighter Sky is a limited
liability company established in New Jersey. Plaintiffs Dan Tramon, Carl Tramon, and Diana
Belkowski are all residents of New York or New Jersey, and are the members of the Brighter Sky
LLC. In 2006, the Plaintiffs approached Mr. Hickam to seek his approval to create a Broadway
musical entitled “Rocket Boys” based on his book of the same name. Mr. Hickam had previously
entered into a contract with Universal Pictures to grant Universal the rights to make October Sky.
However, after requesting Universal to grant him the rights to produce a live stage performance of
Rocket Boys, Mr. Hickam agreed to begin development of the musical with the Plaintiffs. On
May 28, 2008, the Plaintiffs held a staged reading of the musical “Rocket Boys” in Hunstville,
Alabama, and in June 2010, the musical was afforded an industry presentation in New York City.
After garnering positive reviews in New York City, the Plaintiffs and Mr. Hickam entered
into an “Underlying Rights and Author Collaboration Agreement” wherein Mr. Hickam granted
Brighter Sky the exclusive rights to produce a “live stage play” of his novel. (Compl., ¶ 28.)
From 2011 to 2013, the Plaintiffs “further honed” the musical “Rocket Boys” through
“performance runs at Theatre West Virginia in Beckley, West Virginia.” (Id. at ¶ 28.) At some
point during October 2012, Mr. Hickam’s Live Stage Rights to the novel Rocket Boys became nonexclusive, and shortly thereafter, Universal Studios entered into discussions with Defendant Aaron
Thielen, the Artistic Director for Marriot Theatre, about creating a live stage rendition of
Universal’s movie October Sky. On or about May 30, 2013, Universal’s Vice President of Live
Theatrics informed Mr. Hickam that it had “agreed that Marriott [Theatre] could produce a [live
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theatrical] version based on the [novel Rocket Boys] and the movie October Sky,” but “assured
Hickam and the Plaintiffs that they would continue to permit performances of ‘Rocket Boys.’”
(Id. at ¶ 36, 38.)
Based on Universal’s assurance, the Plaintiffs and Mr. Hickam entered into a licensing
agreement with Theatre West Virginia such that “the musical [‘Rocket Boys’] would become a
historical presentation every year as part of the Theatre’s line-up.” (Id. at ¶ 39.) In the spring of
2015, the Plaintiffs secured a performance of “Rocket Boys” in The Legacy Theatre in Atlanta,
Georgia, and Universal’s Vice President of Live Theatrics attended this showing. Subsequently,
on June 16, 2016, Universal’s Vice President of Legal Affairs sent Mr. Hickam’s counsel a letter
instructing him that any further performances of the “Rocket Boys” musical must be halted “at
least until after the October Sky musical had completed its run” at the Marriott Theatre. (Id. at ¶
43.) This “effectively shut down indefinitely” the Plaintiffs’ production of the “Rocket Boys”
musical. (Id. at ¶ 43.) Defendant Marriott ran Universal’s “October Sky” musical from August
9 through October 18, 2015, at the Marriott Theatre in Lincolnshire, Illinois. The Plaintiffs allege
that the Defendants’ “October Sky” musical was “substantially similar” to the Plaintiff’s “Rocket
Boys” musical, including similar music, score, and stage play. (Id. at ¶ 46-47.)
Based on these facts, the Plaintiffs allege one count of copyright infringement, one count
of contributory infringement, and one count of vicarious liability. They claim that the Defendants
copied the Plaintiffs’ scenes, music, sequences, and language “exclusively written for the ‘Rocket
Boys’ [musical] which were not in the novel or motion picture . . . too many times to be
coincidental all without the Plaintiffs’ permission, authorization and consent.” (Id. at ¶ 51.)

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Bancroft S. Gordon, the Corporate Secretary of Marriott International, Inc., submitted an
affidavit stating that Marriott International is a Delaware corporation with its principal place of
business in Bethesda, Maryland. (Gordon Affidavit, at ¶ 3) (Document 9-1). He states that
“Marriott International’s business is focused on managing hotels and franchising and licensing
hotels,” and that Marriott International does not own or manage any lodging properties in West
Virginia, nor does [it] own or operate any theatres in West Virginia.” (Id. at ¶ 4,6.) According
to Mr. Gordon, there were twenty-four hotels branded by Marriott in West Virginia as of
September 8, 2017. However, those hotels are all owned, operated, and managed by either third
parties under franchise agreements with Marriott International or subsidiaries of Marriott
International. Mr. Gordon further states that Marriott International does not own or operate the
Marriott Theatre or the Lincolnshire Marriott Resort in Lincolnshire, Illinois.
Terry James, the Executive Producer at the Marriott Theatre, also submitted an affidavit.
Mr. James states that the Marriott Theatre is a part of the Lincolnshire Marriott Resort, located in
Lincolnshire, Illinois. According to Mr. James, during the time that the “October Sky” musical
was produced and shown there, the Marriott Theatre was owned by “LA-RFMBG Lincolnshire
LLC, a limited liability company created by the Bricton Group.” (James Affidavit, at ¶ 5)
(Document 9-2). Mr. James further states that the theatre’s production of “October Sky” took
place entirely in Illinois, and that he did not visit West Virginia, transact any business in West
Virginia, or have any contact with anyone in West Virginia or any of the Plaintiffs.

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STANDARD OF REVIEW
A. Personal Jurisdiction—Rule 12(b)(2)
“In order for a court to validly exercise personal jurisdiction over a non-resident defendant:
(1) a statute must authorize service of process on the non-resident defendant, and (2) the service
of process must comport with the Due Process Clause.” In re Celotex Corp., 124 F.3d 619, 627
(4th Cir. 1997). West Virginia’s long-arm statute, contained in W. Va. Code § 56-3-33(a), “is
coextensive with the full reach of due process,” and so the statutory and constitutional queries
merge. Id.; HSBC Bank USA, Nat. Ass'n v. Resh, No. 3:12-CV-00668, 2015 WL 4772524, at *2
(S.D.W. Va. Aug. 12, 2015) (Chambers, C.J.). “A court's exercise of personal jurisdiction over a
non-resident defendant is consistent with the Due Process Clause if the defendant has sufficient
“minimum contacts” with the forum such that requiring the defendant to defend its interests in the
forum does not ‘offend traditional notions of fair play and substantial justice.’” Celotex, 124 F.
3d. at 628 (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). When a
defendant challenges a court’s personal jurisdiction in a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(2) “the burden [is] on the plaintiff to ultimately prove grounds for
jurisdiction by a preponderance of the evidence.” Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 60
(4th Cir. 1993). When no evidentiary hearing is held, “the plaintiff need prove only a prima facie
case of personal jurisdiction” and “the district court must draw all reasonable inferences arising
from the proof, and resolve all factual disputes, in the plaintiff’s favor.” Id.
A defendant’s contacts can establish either specific jurisdiction or general jurisdiction.
Specific jurisdiction is available where “the defendant’s qualifying contacts with the forum state
also constitute the basis for the suit.” Universal Leather, LLC v. Koro AR, S.A., 773 F.3d 553,
5

559 (4th Cir. 2014), cert. denied, 135 S. Ct. 2860, 192 L. Ed. 2d 896 (2015) (internal quotation
marks and citations omitted). The Fourth Circuit has established a three-part test to determine
whether specific personal jurisdiction is appropriate: “(1) the extent to which the defendant
purposefully availed itself of the privilege of conducting activities in the forum state; (2) whether
the plaintiff's claims arose out of those activities; and (3) whether the exercise of personal
jurisdiction is constitutionally reasonable.” Id. (internal punctuation and citations omitted).
General jurisdiction is available only if a corporation’s contacts with a state “are so continuous
and systematic as to render it essentially at home in the forum state.” Daimler AG v. Bauman,
134 S. Ct. 746, 761 (2014) (citing and quoting from Goodyear Dunlop Tires Operations, S.A. v.
Brown, 564 U.S. 915, 919 (U.S. 2011)).
B. Venue
28 U.S.C. § 1391(b) provides that:
A civil action may be brought in (1) a judicial district in which any
defendant resides, if all defendants are residents of the State in
which the district is located; (2) a judicial district in which a
substantial part of the events or omissions giving rise to the claim
occurred, or a substantial part of property that is the subject of the
action is situated; or (3) if there is no district in which an action may
otherwise be brought as provided in this section, any judicial district
in which any defendant is subject to the court’s personal jurisdiction
with respect to such action.
Section 1391(c)(2) goes on to state that a defendant is a “resident” of “any judicial district in which
such defendant is subject to the court’s personal jurisdiction with respect to the civil action in
question.” When a case is initiated in an improper district or division, Section 1406(a) permits
courts to either dismiss the case or transfer it to “any district or division in which it could have
been brought.” As in motions to dismiss for lack of personal jurisdiction, the plaintiff bears the
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burden of establishing that venue is proper, and must make either a prima facie showing, absent
an evidentiary hearing, or demonstrate proper venue by a preponderance of the evidence, if the
court hears evidence. Adhikari v. KBR, Inc., No. 115CV1248JCCTCB, 2016 WL 4162012, at *3
(E.D. Va. Aug. 4, 2016).
However, §1391 addresses only where cases may be “brought” while § 1441(a) establishes
that the proper venue for cases removed from state court lies in “the district court of the United
States for the district and division embracing the place where such action is pending.” Section
1391 “has no application to…. a removed action.” Polizzi v. Cowles Magazines, Inc., 345 U.S.
663, 665–66, 73 S. Ct. 900, 902, 97 L. Ed. 1331 (1953); Smith v. JP Morgan Chase Bank, N.A.,
727 F. Supp. 2d 476, 479 (S.D.W. Va. 2010) (Goodwin, J.).
Courts may also transfer venue “for the convenience of parties and witnesses, in the interest
of justice” when venue is proper in both the transferring district and in another district. 28 U.S.C.
§ 1404(a). The Fourth Circuit has established four factors for consideration in deciding motions
to transfer under § 1404(a): “(1) the weight accorded to plaintiff's choice of venue; (2) witness
convenience and access; (3) convenience of the parties; and (4) the interest of justice.” Trustees
of the Plumbers & Pipefitters Nat. Pension Fund v. Plumbing Servs., Inc., 791 F.3d 436, 444 (4th
Cir. 2015).
C. Leave to Amend
Rule 15(a)(1) of the Federal Rules of Civil Procedure permits a party to “amend its
pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is
one to which a responsive pleading is required, 21 days after service of a responsive pleading or
21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” Fed.R.Civ.P.
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15(a)(1). Rule 15(a)(2) provides that “[i]n all other cases, a party may amend its pleading only
with the opposing party’s written consent or the court’s leave.” Fed.R.Civ.P. 15(a)(2). The Rule
further provides that “[t]he court should freely give leave [to amend] when justice so requires.”
Id. However, this opportunity for amendment is not without its limits. The Fourth Circuit has
instructed us that a motion to amend should be denied only “if one of three facts is present: the
amendment would be prejudicial to the opposing party, there has been bad faith on the part of the
moving party, or the amendment would be futile.” Mayfield v. Nat’l Ass’n for Stock Car Auto
Racing, Inc., 674 F.3d 369, 379 (4th Cir. 2012) (citation omitted) (internal quotation marks
omitted); HCMF Corp. v. Allen, 238 F.3d 273, 276 (4th Cir. 2001).
DISCUSSION
The Defendants seek dismissal of the Plaintiffs’ complaint for lack of personal jurisdiction
in West Virginia, arguing that the Court cannot exercise general or specific personal jurisdiction
over any of the Defendants. The Defendants also argue that the Plaintiffs’ complaint should be
dismissed based on improper venue. The Plaintiffs disagree, and also seek leave to file an
amended complaint. The Court will address each of these issues.
A. Personal Jurisdiction
1. General Jurisdiction
The Defendants first argue that the Court cannot exercise general jurisdiction over them
because neither the individual nor corporate Defendants are at home in West Virginia. Both Mr.
Mahler and Mr. Thielen argue that they are domiciled in Illinois and have never visited West
Virginia, own no property or other assets in West Virginia, nor have any business interests in West
Virginia such that they could be brought into court under all-purpose jurisdiction standards.
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Defendants further argue that Marriott Theatre is an Illinois business that has no property or
business connections to West Virginia. The Defendants also assert that while twenty-two hotels
in West Virginia operate under a licensing agreement with Marriott International and several other
hotels are owned or managed by subsidiaries of Marriott International, Marriott International itself
does not own any hotels or theatres in West Virginia. The Defendants argue that the sparse
connections Marriott International has with West Virginia are not sufficient to consider it “at
home” in the state such that general jurisdiction can be exercised over it.
The Plaintiffs concede that the Court has no jurisdiction over Mr. Mahler, Mr. Thielen, and
Marriott Theatre under general jurisdiction principles, but they argue that general jurisdiction is
appropriate over Marriott International. Because Marriott International is licensed to do business
in West Virginia, maintains an agent for service of process in West Virginia, and employs
individuals in West Virginia, it maintains such continuous and systematic contacts that it is subject
to the Court’s all-purpose jurisdiction.
The Court finds that the Plaintiffs have not shown prima facie evidence that the Court has
general jurisdiction over the Defendants, including Marriott International. In 2014, the Supreme
Court thoroughly examined its general jurisdiction doctrine in Daimler AG v. Bauman, 571 U.S.
117 (2014).

In Bauman, the Supreme Court considered a jurisdictional issue wherein the

respondents sued Daimler AG in United States District Court for the Northern District of
California. Id. at 120-21. Daimler is a German company that manufactures Mercedes-Benz
automobiles in Germany, and the Plaintiffs alleged that its “Argentinian subsidiary, MercedesBenz Argentina (MB Argentina) collaborated with state security forces to kidnap, detain, torture,
and kill certain MB Argentina workers” during “Argentina’s 1976-1983 ‘Dirty War.’” Id. The
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plaintiffs in Bauman alleged that the district court in California maintained jurisdiction over the
suit because another of Daimler’s subsidiaries, Mercedes-Benz USA, LLC (MBUSA), had
sufficient contacts with California such that it was at home in the jurisdiction and subject to general
personal jurisdiction. Id. According to the plaintiffs, “[a]lthough MBUSA’s principal place of
business [was] in New Jersey, MBUSA [had] multiple California-based facilities,” and did such a
substantial amount of Daimler’s business in California, that general jurisdiction was appropriate.
Id. at 123.
After examining the history of the doctrine of general jurisdiction and the record below,
however, the court found that even if MBUSA was considered at home in California, “Daimler’s
slim contacts with the State hardly render it at home there.” Id. at 136. The court reasoned that
the Plaintiffs’ argument, that general jurisdiction should be found “in every state in which a
corporation ‘engages in a substantial, continuous, and systematic course of business,’” was
“unacceptable grasping” in the face of the Supreme Court’s precedent following International
Shoe and its progeny.

Id. at 137-138.

Because the appropriate inquiry is “whether [a]

corporation’s affiliations with the State are so continuous and systematic as to render it essentially
at home in the forum state,” and because Daimler’s activities in California were not sufficient for
the court to exercise jurisdiction over a case involving actions originating in Argentina, the
Supreme Court ruled that Daimler was not at home in California and that general jurisdiction over
Daimler was not appropriate in a California court. Id. at 139. In reaching such a conclusion, the
court opined that questions of general jurisdiction in the corporate defendant context “call[] for an
appraisal of a corporation’s activities in their entirety, nationwide and worldwide. A corporation
that operates in many places can scarcely be deemed at home in all of them.” Id. at 139 n. 20.
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Similarly, the Court finds that the Plaintiffs have failed to show prima facie evidence that
Marriott International has sufficient affiliations with West Virginia to be considered “at-home.”
The Plaintiffs argue that Marriott International is at home here because it employs individuals,
maintains an agent for service of process, and conducts inspection of hotels. Similar to Bauman,
however, these affiliations are insufficient to render Marriott International subject to general
jurisdiction. Marriott International is a Delaware corporation with a principal place of business
in Maryland, and further does not own any hotel properties in West Virginia. While it may
employ some individuals and legally accept service of process, an appraisal of its activities
nationwide fails to render these business maneuvers adequate to show that Marriott International
undertakes its key business decisions or supervises company activity here. Evans v. Johnson &
Johnson, No. 2:14-CV-29700, 2015 WL 1650402, at *6 (S.D.W. Va. Apr. 14, 2015) (refusing to
exercise general jurisdiction over a defendant whose contacts with the forum state consisted of
selling significant amount of products, training employees in the forum, allowing access to a
corporate website, and maintaining company files and equipment in the forum). Further, the
Fourth Circuit has found such activity insufficient to subject a corporate entity to general
jurisdiction. See, Ratliff v. Cooper Labs., Inc., 444 F.2d 745, 748 (4th Cir. 1971) (“We think the
application to do business and the appointment of an agent for service to fulfill a state law
requirement is of no special weight in this present context.”). Thus, because the Plaintiffs have
failed to show that Marriott International is incorporated in, maintains its principal place of
business in, or maintains other sufficient contacts with West Virginia to render it at home, Marriott
International is not subject to general jurisdiction in this Court.

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2. Specific Jurisdiction
The Court’s inquiry does not end there, however. The Defendants also argue that they are
not subject to the specific jurisdiction of the Court because they have not purposefully availed
themselves of the laws of West Virginia through their contacts with the state. The Defendants
again assert that none of the individual Defendants have ever visited West Virginia, performed in
West Virginia, nor caused any performance of a musical to occur in West Virginia. Further, while
Marriott International is licensed to do business in West Virginia and employs individuals here,
the Defendants assert that the Plaintiffs’ claims do not arise out of Marriott International’s contacts
with West Virginia, because Marriott International neither owns nor operates any theatres here nor
owns the Marriott Theatre in Illinois. Thus, the Defendants argue that they do not have sufficient
minimum contacts with West Virginia from which the Plaintiffs’ claims arise such that they can
be subjected to specific jurisdiction in this forum.
The Plaintiffs counter that specific jurisdiction is appropriate. The Plaintiffs contend that
Marriott International and Marriott Theatre have purposefully availed themselves of the laws of
West Virginia by “purposefully direct[ing] their commercial activities into West Virginia by
constructing an interactive e-commerce website accessible to West Virginia residents.” (Pls.’
Resp. in Opp., at 11.) Because Marriott’s website made available Marriott Theatre’s “October
Sky” musical to West Virginians, and allows West Virginians to book a hotel, the Plaintiffs assert
that Marriott International and Marriott Theatre has directed electronic activity into the state and
thus created sufficient minimum contacts for specific jurisdiction. The Plaintiffs further argue
that the Defendants have availed themselves of the laws of West Virginia by conducting business
in the state through Marriott hotels, and because the effects of the Defendants’ alleged copyright
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infringement are connected to West Virginia such that specific jurisdiction over the Defendants is
appropriate.
The Court finds that the Defendants have not had sufficient minimum contacts with West
Virginia and specifically, have not purposefully availed themselves of the privilege of doing
business in the forum state such that specific personal jurisdiction could be exercised over them
without “offend[ing] traditional notions of fair play and substantial justice.” Int'l Shoe Co. v. State
of Wash., Office of Unemployment Comp. & Placement, 326 U.S. 310, 316 (1945). Regarding
Marriott International and Marriott Theatre’s internet activity, the Fourth Circuit has held that
[a] State may, consistent with due process, exercise judicial power
over a person outside of the State when that person (1) directs
electronic activity into the State, (2) with the manifested intent of
engaging in business or other interactions within the State, and (3)
that activity creates, in a person within the State, a potential cause
of action cognizable in the State’s courts.
Carefirst of Maryland, Inc. v. Carefirst Pregnancy Centers, Inc., 334 F.3d 390, 399 (4th Cir. 2003)
(quoting ALS Scan, Inc. v. Digital Serv. Consultants, Inc., 293 F.3d 707, 714 (4th Cir. 2002)).
This determination turns on whether the Defendants’ website was “interactive,” “semiinteractive,” or “passive.” Carefirst, 334 F.3d at 399. A website is interactive when it is
operated such that a defendant can “enter[] into contracts with residents of a foreign jurisdiction
that involve the knowing and repeated transmission of computer files over the internet . . . .” Id.
A website is semi-interactive when it “[o]ccup[ies] a middle ground . . . through which there have
not occurred a high volume of transactions between the defendant and residents of the foreign
jurisdiction, yet which do enable users to exchange information with the host computer.” Id.
Finally, a website is passive if “it merely makes information available.” Id.

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Here, the Defendants’ website is semi-interactive, because it contains features that allow a
user in West Virginia to exchange information with the host computer in the form of booking hotel
rooms or purchasing tickets to a musical performed at the Marriott Theatre. However, the
Plaintiffs have provided no concrete evidence of any online exchanges between anyone in the
forum state and Marriott International or Marriott Theatre, and merely assert that “individuals in
West Virginia could . . . decide to travel to Illinois to view ‘October Sky.’” (Pls.’ Resp. in Opp., at
12.) Rather than specifically target West Virginia residents, the Defendants’ website provides the
opportunity to buy tickets to shows or make hotel reservations. This opportunity is a generalized
offer to anyone in the United States of America or abroad. A streamlined capability to make a
reservation at a Marriott hotel anytime, anywhere, is not a sufficient contact with West Virginia to
sustain personal jurisdiction within the traditional bounds of fair play and substantial justice. See,
Carefirst, 334 F.3d at 401 (finding that a semi-interactive website’s general request that “anyone,
anywhere make a donation” is not a sufficient minimum contact to sustain specific jurisdiction).
Moreover, even if Marriott International’s contacts with West Virginia through their
subsidiaries’ hotels or their website were sufficient to satisfy the minimum contacts prong of the
specific jurisdiction analysis, the Plaintiffs’ causes of action do not arise out of those contacts. As
previously stated, Marriott’s contacts with the forum state consist of Marriott International’s
maintenance of an agent in West Virginia for service of process, and its employment of individuals
at hotels owned by its subsidiaries or franchised to other third-party entities. The individual
Defendants have never been to or transacted business in West Virginia, however, and the
Defendants have not attempted to perform their “October Sky” musical in West Virginia or
anywhere other than Illinois. The Plaintiffs’ allegations of copyright infringement of a musical
14

do not arise out of Marriott International’s hotel business contacts. Marriott International does
not own the Marriott Theatre, and the Theatre’s alleged copying of the Plaintiffs’ “Rocket Boys”
musical does not arise out of Marriott International’s employment of individuals in West Virginia
hotels.
Nor is specific jurisdiction satisfied by the Plaintiffs’ emphasis on the effects of the
Defendants’ tortious actions and the fact that those effects were felt in West Virginia. The
Plaintiffs argue that the harm to the Plaintiffs occurred in West Virginia because they were unable
to contract with Theatre West Virginia, effectively “bann[ing] [‘Rocket Boys’] from its home.”
(Pls.’ Resp. in Opp., at 15.) It is true that, because the Plaintiffs intended to contract their musical
to Theatre West Virginia in perpetuity such that it would become a historical presentation, the
brunt of the effect of the Defendants’ actions were felt in West Virginia. However, those effects
“must ultimately be accompanied by the defendant’s own [sufficient minimum] contacts with the
state if jurisdiction . . . is to be upheld.” Carefirst, 334 F.3d at 401 (quoting Young v. New Haven
Advocate, 315 F.3d 256, 262 (4th Cir. 2002)).

As previously explained, neither Marriott

International nor Marriott Theatre’s internet activities constitute sufficient minimum contacts. To
the extent Marriott International’s contacts with West Virginia were sufficient, the Plaintiffs’
copyright infringement claims have nothing to do with Marriott International’s employment of
certain hotel workers.
In sum, the Defendants’ internet website does not create a sufficient minimum contact with
the forum state for the purposes of specific personal jurisdiction. Even if it did, however, neither
the internet contacts nor Marriott International’s contacts with West Virginia are the contacts from
which the Plaintiffs’ copyright infringement claims arise. The Plaintiffs have therefore failed to
15

provide sufficient evidence to support a prima facie case that the Defendants’ contacts with West
Virginia are sufficient to bring them into West Virginia court without offending the traditional
notions of fair play and substantial justice.
The Court further finds that the Plaintiffs’ motion to conduct limited jurisdictional
discovery should be denied. According to the Fourth Circuit, “[w]hen a plaintiff offers only
speculation or conclusory assertions about contacts with a forum state, a court is within its
discretion in denying jurisdictional discovery.” Carefirst, 334 F.3d at 402. Here, the Plaintiffs
have done just that. The Plaintiffs’ response to the motion to dismiss makes no concrete proffer
as to any meaningful contacts with the forum outside of the Defendants’ website, and there is no
indication of fraud or misconduct on the part of the Defendants. Again, to the extent that Marriott
International does have sufficient minimum contacts, the Plaintiffs’ copyright claims do not arise
out of those contacts, and no further discovery is necessary.
B. Venue
The Defendants also seek dismissal of the Plaintiffs’ complaint for improper venue.
Because the Court has previously found that it cannot exercise personal jurisdiction over the
Defendants, the Court need not address whether this venue is proper.
C. Plaintiffs’ Motion to Amend
Finally, the Plaintiffs move the Court for leave to amend their complaint. The Plaintiffs
argue that they have discovered additional Defendants who have committed unlawful acts, and
that amendment is proper because they do not wish to change or replace any theory of the case,
nor plead any additional theories. They assert that because substantial discovery time remains,
and because the Defendants will not be prejudiced, their leave to amend should be granted.
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The Defendants counter that the Plaintiffs have failed to address the deficiencies in their
proposed amended complaint, and amending their complaint would thus be futile.

The

Defendants contend that the Court would not have personal jurisdiction over the new Defendants
that the Plaintiffs seek to add in their amended complaint, and further contend that the information
provided in the new complaint fails to allege facts to support the Court’s exercise of personal
jurisdiction over the Defendants in the original complaint.
After thoroughly reviewing the Plaintiffs’ proposed Amended Complaint (Document 141), the Court finds that the Plaintiffs’ amendment would be futile. According to the Fourth
Circuit, “a district court has discretion to deny a motion to amend a complaint, so long as it does
not outright refuse to grant the leave without any justifying reason.” Equal Rights Ctr. V. Niles
Bolton Assocs., 602 F.3d 597, 603 (4th Cir. 2010). As previously stated, a court may deny a
motion to amend a complaint if the amendment would be futile. Id. “An amendment is futile
where even if it is permitted the amendment would not save the complaint from a motion to
dismiss.” Hurley v. Wayne Cty. Bd. of Educ., No. CV 3:16-9949, 2017 WL 2454325, at *3
(S.D.W. Va. June 6, 2017) (citing Perkins v. United States, 55 F.3d 910, 917 (4th Cir. 1995)).
Here, the Plaintiffs’ proposed amended complaint removes Marriott Theatre as a defendant
and replaces it with the following entities: Bre Diamond Hotel, LLC (Bre Diamond), a Delaware
limited liability company, DTRS Lincolnshire, LLC (DTRS), a Delaware limited liability
company with its principal place of business in Chicago, Illinois, Marriott Hotel Services, Inc.
(MHS), a Delaware corporation, and LA-RFMBG Lincolnshire, LLC, a Delaware limited liability
company with its principal place of business in Mt. Prospect, Illinois. The Plaintiffs’ proposed
amended complaint refers to those four entities collectively as “Defendant Marriott Theatre.”
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The Plaintiffs conceded in their response to the Defendants’ motion to dismiss that the
Court could not exercise personal jurisdiction over Marriott Theatre itself, but asserted that it may
have personal jurisdiction over Marriott International.

Similarly, the Plaintiffs’ proposed

amended complaint states that Bre Diamond, DTRS, MHS, and LA-RFMBG are all entities
formed in Delaware. Their amended complaint also states that DTRS has its principal place of
business in Chicago, and LA-RFMBG has its principal place of business in Mt. Prospect, Illinois.
According to Bancroft Gordon, corporate secretary of Marriott International, MHS has its
corporate headquarters and principal place of business in Bethesda, Maryland. (Bancroft S.
Gordon Declaration, ¶ 9) (Document 19-3.) Further, according to Andrew Thomas, counsel for
Defendants, Bre Diamond has been known as Strategic Hotels & Resorts, LLC, since March 3,
2017. (Andrew J. Thomas Declaration, ¶ 3) (Document 19-4.) Mr. Thomas further stated
Strategic Hotels & Resorts is organized under the laws of Delaware and maintains its principal
place of business in Illinois. (Id. at ¶ 4.) None of these proposed Defendants have conducted
any business in West Virginia outside of their affiliation with Marriott International and its
website.
For the reasons previously stated, the Court finds that the Plaintiffs have failed to set forth
prima facie evidence that the Court can exercise personal jurisdiction over any of the four proposed
Defendants. None of the newly proposed Defendants are organized in or maintain principal
places of business in West Virginia, nor do they conduct any business in West Virginia. Outside
of their connection to Marriott International and its website, which is available to residents of all
fifty states, these proposed Defendants have no contacts with West Virginia that would render
them “at home” such that general jurisdiction would be appropriate for the same reasons Marriott
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Theatre itself was not at home in West Virginia. Further, none of the proposed Defendants have
conducted any business in West Virginia sufficient to purposefully avail themselves of the right to
do business here such that specific jurisdiction would be appropriate. Insofar as these proposed
Defendants are affiliated with Marriott International, which does not own or operate the Marriott
Theatre, the Court’s previously stated findings regarding Marriott International’s website apply.
Thus, because it would be improper to exercise personal jurisdiction over the newly proposed
Defendants, the Plaintiffs’ amended complaint would be futile.
CONCLUSION
WHEREFORE, after careful consideration, the Court ORDERS that the Defendants’
Motion to Dismiss (Document 8) be GRANTED and the Plaintiffs’ Motion for Leave to File
Amended Complaint (Document 14) be DENIED. The Court further ORDERS that all pending
motions be TERMINATED AS MOOT, and that this action be DISMISSED WITHOUT
PREJUDICE and STRICKEN from the docket.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and to
any unrepresented party.
ENTER:

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May 16, 2018