Kelly v. Omni Lingual Services, et al 07-CV-157-SM 09/06/07 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Nataly Kelly, Plaintiff

v. Civil No. 0 7-cv-15 7-SM Opinion No.

Omni Lingual Services, Inc d/b/a NetworkOmni, and Manuel Mendoza, Defendants

O R D E R

Nataly Kelly brings suit against Omni Lingual Services,

Inc., doing business as NetworkOmni ("Omni" or "the Company") and

Omni's Executive Vice President, Manual Mendoza. Kelly asserts

claims of copyright infringement and a host of related state law

claims. Kelly also seeks a declaratory judgment. Omni moves to

dismiss (document no. 17), arguing that Kelly has failed to

allege facts that, if true, would support a claim of copyright

infringement, and that this court lacks subject matter

jurisdiction. Mendoza separately moves to dismiss (document no.

18), arguing that this court lacks personal jurisdiction over

him. Kelly objects. Background

The facts, taken from the pleadings and construed in the

light most favorable to Kelly are as follows.

Kelly is a widely-known scholar in the field of

sociolinguistic research. In 2004 she began working with Omni as

a consultant from her residence in Nashua, New Hampshire. At the

time she began working for Omni, she advised the Company that she

was writing a book entitled Telephone Interpreting: A

Comprehensive Guide to the Profession ("the book"), on her own

time, and without any involvement of Omni or Omni's staff. Kelly

is the sole author of the book. By February of 2005, Kelly was

engaged in negotiations with Multilingual Matters, Ltd. ("MML"),

to publish and distribute her book.

In May of 2005, Kelly was hired by Omni as a full-time

employee to work as a Senior Product Development Manager. She

gave Omni assurances that her writing pursuits would not

interfere with her job responsibilities. Kelly continued to work

from her home in Nashua, New Hampshire. Kelly also signed an

Employee Confidentiality & Inventions Agreement which provided

that Omni would be the owner of any "works of authorship,

inventions, discoveries, developments, improvements, designs,

2 ideas, innovations, inventions, formulas, processes, techniques,

know-how, and data" that she might develop during the course of

her employment. See Compl. (document no. 1), Ex. 2 5 6.

Kelly completed her book in October of 2006 and, as a

courtesy, sent a copy of the completed manuscript to Omni's Chief

Executive Officer, George Ulmer. Kelly also offered to feature

Omni on the cover of the book alongside a photograph of one of

the company's telephone interpreters.

Later in 2006, Kelly complained to Omni's human resources

department about allegedly inappropriate and discriminatory

conduct by Mendoza and other Company employees. Shortly

thereafter, Mendoza began to claim that Omni owned the copyright

in Kelly's book. Despite Kelly's continued discrimination

complaints, the Company did not take corrective action.

Accordingly, Kelly submitted a letter of resignation on March 21,

2007, with an effective date of April 5, 2007. But, she sought

to withdraw her resignation by e-mail dated March 26, 2007. Omni

refused to accept the withdrawal, and Kelly's employment was

terminated on April 5, 2007.

3 Kelly's book was scheduled for release on May 18, 2007. On

April 10, 2007, however, Omni sent MML a cease and desist letter,

claiming the copyright was owned by Omni and that the book

contained confidential and proprietary information. That letter

caused MML to suspend publication of the book until the ownership

issues could be resolved. On May 21, 2007, Kelly filed an

application for and was granted copyright pre-registration.

Kelly filed suit in this court on May 23, 2007, asserting

claims of copyright infringement (Count I), unfair business

practices (Count II), intentional interference with contractual

relations (Count IV), breach of contract (Count VI), conversion

(Count VII), wrongful discharge (Count VIII), and constructive

discharge (Count IX) against Omni, as well as intentional

interference with contractual relations (Count V) against

Mendoza. Kelly also seeks a declaratory judgment that she is the

sole owner of the copyright in her book (Count III).

Discussion

Mendoza moves to dismiss the claim against him, arguing that

this court lacks personal jurisdiction. See F e d . R. C i v . P.

12(b)(2). Omni moves to dismiss on grounds that Kelly has failed

to state a viable copyright infringement claim, see F e d . R. C i v .

(b)(6), and that absent the federal copyright claim, this

court lacks subject matter jurisdiction over the remaining

claims.1 See F e d . R. C i v . P. 12(b)(1). Omni also moves to

dismiss on grounds that venue in this district is improper. See

(a); F ed . R . Civ. P . 12(b)(3). Alternatively, Omni

seeks transfer of the case to the Central District of California.

Because venue is not proper, and because improper venue is

dispositive, the court declines to reach defendants' other

grounds.

I. Improper Venue

The applicable federal venue statute provides, in pertinent

part:

A civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same state, (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

1 Omni also argues that Kelly's request for declaratory judgment does not raise a federal issue and therefore is not a sufficient basis upon which to exercise federal jurisdiction. See Roval v. Leading Edge Prods.. Inc..

("[i]n order to gain access to a federal forum, a litigant must allege particulars which raise some substantial federal issue").

5 action is situated, or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought.

(b). In addition, /y[t]he district court of a

district in which is filed a case laying venue in the wrong

division or district shall dismiss, or if it be in the interest

of justice, transfer such case to any district or division in

which it could have been brought."

(a). When a

defendant challenges venue, the burden falls on the plaintiff to

demonstrate that venue is proper. See Ferrofluidics Corp. v.

Advanced Vacuum Components. Inc.. 78

, 1206 (D.N.H.

1992) (citing Lex Computer & M q m t . Corp. v. Eslinqer & Pelton,

P.C.,

(D.N.H. 1987)).

Omni is a resident of California. See Compl. (document no.

1) 5 2; Compl., Ex. 2 (recitals in Agreement noting that Omni is

a California corporation). Thus, venue in the District of New

Hampshire may not be grounded on

(b)(1) which

points, instead, toward the Central District of California. In

considering where "a substantial part of the events or omissions

giving rise to the claim occurred," see i d . at § 1391(b)(2), the

court looks "not to a single ■'triggering event' prompting the

action, but to the entire sequence of events underlying the

6 claim." Uffner v. La Reunion Francaise. S.A..

(1st Cir. 2001). In this case, virtually all of the conduct

giving rise to Kelly's claims occurred in California. Omni acted

in California, its letter asserting copyright ownership

originated in California, the alleged discrimination occurred in

California, and the decision not to accept Kelly's withdrawal of

her resignation, which Kelly alleges amounts to wrongful

termination of her employment, also originated in California.

Thus, venue in New Hampshire is not properly grounded on

(b)(2), which also points toward the Central

District of California. And, because venue in the Central

District of California is proper under both §§ 1391(b)(1) and

1391(b)(2), venue in the District of New Hampshire may not be

grounded on

(b)(3).

Conclusion

Because venue is not proper in the District of New

Hampshire, but does lie in the Central District of California,

the case shall be transferred there. Omni's motion (document no.

17) is, therefore, granted to the extent it moves the court to

transfer this case to the Central District of California. In all

other respects, it is denied, without prejudice to refiling.

Mendoza's motion to dismiss for lack of personal jurisdiction

7 (document no. 18) is denied as moot. The Clerk of Court shall

transfer this case to the Central District of California.

SO ORDERED.

St^even J./McAuliffe Chief Judge

September 6, 2007

cc: Lauren S. Irwin, Esq. Pamela A. Smith, Esq. Jeffrey S. Brody, Esq. Matthew A. Porter, Esq.