Quill Ink Books Ltd. v. Abcd Graphics & Design, Inc.
Quill Ink Books Ltd. v. Abcd Graphics & Design, Inc.
Opinion of the Court
Now before the Court is Defendant Rachelle Soto's Motion to Dismiss for Lack of *1156Personal Jurisdiction and Improper Venue, or in the alternative, to Transfer (Doc. No. 18). Plaintiff Quill Ink Books Limited has responded (Doc. No. 21), and Defendant Soto has replied (Doc. No. 24). Upon consideration of the parties' submissions, the Court grants the Motion.
FACTUAL BACKGROUND
Plaintiff is an international book publisher with its principal place of business in London, England. Plaintiff brings this action against: Rachelle Soto, an author who resides in Virginia; Defendant Soto's book publisher Blushing Books Publishing ("Blushing Books"), whose principal place of business is in Virginia; and unknown Jane Does and John Does. See Am. Compl. (Doc. No. 6) ¶¶ 8, 10-12. Between January and May 2018, Plaintiff published a three-book romance series titled Myth of Omega. Plaintiff released the first two books of the series to online vendors of e-books and printed books, including Draft2Digital, Amazon, Barnes and Noble, iTunes Apple, Rakuten-Kobo, and Google Play. Id. ¶¶ 41, 43, 46. Plaintiff alleges that following this release, Defendants Soto
Defendant Soto has moved for dismissal under Federal Rules of Civil Procedure 12(b)(2) and 12(b)(3) for lack of personal jurisdiction and improper venue. Alternatively, Defendant Soto requests transfer of this action pursuant to
STANDARDS GOVERNING PERSONAL JURISDICTION
Where the Court's jurisdiction over a defendant is contested, the plaintiff bears the burden of proving that jurisdiction exists. See Wenz v. Memery Crystal ,
*1157For purposes of the plaintiff's prima facie case, the allegations in the complaint are accepted as true but only to the extent they are uncontroverted by the defendant's affidavits. Shrader v. Biddinger ,
When considering whether personal jurisdiction is proper in a federal question case, federal courts must determine "(1) whether the applicable statute potentially confers jurisdiction by authorizing service of process on the defendant and (2) whether the exercise of jurisdiction comports with due process." Peay v. BellSouth Med. Assistance Plan ,
The due process standard requires "minimum contacts" between the defendant and the forum state and that the exercise of jurisdiction comports with "traditional notions of fair play and substantial justice." World-Wide Volkswagen Corp. v. Woodson ,
Specific jurisdiction "requires, first, that the out-of-state defendant must have 'purposefully directed' its activities at residents of the forum state, and second, that the plaintiff's injuries must 'arise out of' defendant's forum-related activities." Dudnikov , 514 F.3d at 1071 (quoting Burger King Corp. v. Rudzewicz ,
*1158ANALYSIS
Plaintiff proffers two arguments in support of this Court's exercise of jurisdiction over Defendant Soto. First, Plaintiff argues that Defendant Soto's submission of the DMCA notice to Draft2Digital, a distributor that has its principal address in Oklahoma, constituted a contact with Oklahoma sufficient to satisfy the requirements of specific personal jurisdiction. See Pl.'s Resp. at 21-25; Am. Compl. ¶¶ 8, 44. Second, Plaintiff submits that Defendant Soto's alleged tortious interference with Plaintiff's contract with Draft2Digital constitutes an independent basis for exercising specific personal jurisdiction over Defendant Soto. See Pl.'s Resp. at 26-27; Am. Compl. ¶¶ 87-91.
A. The DMCA Notice
Plaintiff's first jurisdictional argument is based solely upon the allegation that "Blushing [Books] and [Soto] directed a 'take-down' notice to Draft2Digital ... on or about April 19, 2018." Am. Compl. ¶ 44; Am. Compl. Ex. 3 (Doc. No. 6-3). As an initial matter, the parties dispute whether Defendant Soto was personally involved in sending the DMCA notice to Draft2Digital. In support of its allegation that Defendant Soto was involved, Plaintiff points to an email written by Draft2Digital's director of operations that states that Draft2Digital had "been contacted by the author Addison Cain [a/k/a Rachelle Soto] regarding an infringement on her titles." Am. Comp. Ex. 3, at 2. Plaintiff further provides the affidavit testimony of Ms. Margarita Coale that "[Plaintiff] was advised by Draft2Digital that, on or about April 19, 2018, Blushing [Books] and [Soto] delivered a 'take-down' notice to Draft2Digital." Coale Aff. ¶ 4.
In her Motion and Reply, Defendant Soto disputes that she personally notified Draft2Digital of the alleged infringement, contending instead that the DMCA notice was sent by Blushing Books alone. See Def. Soto Mot. at 9-10; Def. Soto Reply (Doc. No. 24) at 2. As support for her assertion, Defendant Soto points out that the DMCA notice sent to Draft2Digital was signed solely by Blushing Books' office manager. See Def. Soto Reply at 2; Am. Compl. Ex. 3, at 2, 6. Defendant Soto also submitted an affidavit in which she testifies that she has no contacts with Oklahoma and does not personally conduct business in Oklahoma. See Def. Soto Aff. (Def. Soto Mot. Ex. 1 (Doc. No. 18-1) ) at 1-2.
While Defendant Soto's argument presents a factual dispute regarding whether Defendant Soto personally directed the DMCA notice to Draft2Digital, the Court is constrained to resolve factual disputes in Plaintiff's favor for purposes of determining personal jurisdiction. See Fed. Deposit Ins. Corp. v. Oaklawn Apartments ,
The resulting question is whether the single DMCA notice sent by Plaintiff to nonparty Draft2Digital is sufficient to satisfy the "purposeful direction" requirement of the jurisdictional analysis. In Calder v. Jones ,
From Calder , the Tenth Circuit distilled the three factors outlined above as the necessary elements of purposeful direction in tort-based actions: "(a) an intentional action" "(b) expressly aimed at the forum state" "with (c) knowledge that the brunt of the injury would be felt in the forum state." Dudnikov , 514 F.3d at 1072. In Dudnikov , the plaintiffs sold products from their home in Colorado via eBay auctions. After the defendants successfully suspended one plaintiff's eBay auctions by contacting eBay with allegations of copyright infringement, the plaintiffs sought declaratory judgment that the products offered in the auction did not infringe defendants' copyrighted works. Id. at 1067. The defendants included a British copyright holder and its American agent, located in Connecticut. Id. at 1068. In finding that the three factors for purposeful direction were met, the Tenth Circuit emphasized that the defendants knew the plaintiffs' business was located in Colorado. See id. at 1076. This knowledge was pivotal to the determination that defendants had expressly aimed to "halt a Colorado-based sale by a Colorado resident," id. at 1076, and that the defendants knew that the brunt of the injury caused by the cancellation of the eBay auction would be felt in Colorado. See id. at 1077. The Tenth Circuit added that while "[s]ome courts have held that the 'expressly aimed' portion of Calder is satisfied when the defendant individually targets a known forum resident," the Tenth Circuit takes a "somewhat more restrictive approach," namely, that "the forum state itself must be the 'focal point of the tort.' " Id. at 1074 n.9 (alteration and internal quotation marks omitted).
The Tenth Circuit revisited the issue of personal jurisdiction in the internet context in Shrader v. Biddinger ,
In view of these authorities, and upon consideration of the facts alleged in Plaintiff's Amended Complaint and supporting affidavit, the Court determines that Plaintiff has failed to establish personal jurisdiction over Defendant Soto in this forum. The most salient factor distinguishing *1160this case from the cases cited above as finding personal jurisdiction is that Plaintiff is not located in Oklahoma and its business activities are not centered in Oklahoma. See Am. Compl. ¶ 8 ("[Plaintiff] is a foreign, international corporation organized and existing under the laws of England with its principal place of business in London, England."). Plaintiff as a result must base its assertion of personal jurisdiction on Defendant Soto's single contact with nonparty Draft2Digital. While Draft2Digital's principal address is in Oklahoma, there is nothing to suggest that it uniquely targets an Oklahoma audience or Oklahoma writers or that Defendant Soto was aware of Draft2Digital's presence in Oklahoma. See Shrader ,
Accordingly, Plaintiff at minimum has not satisfied the third factor required for the exercise of personal jurisdiction-the defendant's "knowledge that the brunt of the injury would be felt in the forum state." Dudnikov , 514 F.3d at 1072. Here, Plaintiff is "a foreign, international corporation ... with its principal place of business in London, England," not Oklahoma; and Plaintiff's alleged injury is primarily a loss in "book sales in the United States and internationally." Am. Compl. ¶¶ 8, 56. The fact that the DMCA notice was sent to one online distributor of Plaintiff's that is located in Oklahoma, and even that distributor does not direct its sales to Oklahoma, is not sufficient to locate the "brunt" of Plaintiff's alleged injury in Oklahoma, much less to establish that Defendant Soto had knowledge that the brunt of Plaintiff's alleged injury would be felt in Oklahoma. See Dudnikov , 514 F.3d at 1077 (finding that plaintiffs had "satisfied their burden of establishing ... that defendants knew plaintiffs' business and auction were based in [forum state], and therefore knew the effects of the [copyright infringement notice] would be felt there").
In light of the foregoing, Plaintiff has not established purposeful direction under the Calder framework based upon Defendant Soto's request, via the DMCA notice, that Oklahoma resident and nonparty Draft2Digital remove the Myth of Omega series from sale.
B. Tortious Interference with Contract
Plaintiff additionally submits that Defendant Soto's alleged tortious interference with Plaintiff's contract with Draft2Digital provides an independent basis for exercising specific personal jurisdiction over Defendant Soto. See Pl.'s Resp. at 26-27; Am. Compl. ¶¶ 87-91. Plaintiff cites a decision by the United States District Court for the Northern District of Oklahoma for the proposition that "[a] party that tortiously interferes with the contract of another is subject to personal jurisdiction in the state in which the property rights under that contract exist."
*1161Nat'l Occupational Health Servs., Inc. v. Advanced Indus. Care ,
The cited decision, however, makes clear that personal jurisdiction must be exercised only within the parameters of due process and that jurisdiction is not proper when the defendant did not purposefully direct its activities toward the forum state. See Nat'l Occupational Health Servs., Inc. ,
Accordingly, the Court finds that Plaintiff has failed to make a sufficient showing to establish personal jurisdiction over Defendant Soto based upon her alleged tortious interference with an Oklahoma contract.
C. Dismissal or Transfer
Because the Court lacks personal jurisdiction over Defendant Soto, the Court considers whether "it is in the interest of justice" to transfer the claims to an appropriate court rather than dismiss those claims.
Defendant Soto's earliest alleged wrongdoing occurred on April 19, 2018. See Am. Compl. at ¶ 44. Thus, a new action would not likely be time barred if brought in Virginia, where Defendant Soto resides and Defendant Blushing Books has its principal place of business. See Cooper v. NCS Pearson, Inc. ,
With respect to the second factor, the Court may "peek at the merits to avoid raising false hopes and wasting judicial resources that would result from transferring a case which is clearly doomed." Haugh ,
With respect to the third factor, there is at least some argument that Plaintiff should have known that jurisdiction was not proper. Indeed, Defendant Soto does not personally conduct business or reside in Oklahoma, nothing in the Amended Complaint suggests that Defendant Soto was aware that Draft2Digital was located in Oklahoma, and the direct injury occurred primarily against a corporation organized in England. As such, this factor weighs slightly toward dismissal.
Accordingly, the Court finds that the interests of justice do not favor transfer of the case under § 1631 over dismissal of the claims against Defendant Soto.
CONCLUSION
For the foregoing reasons, it is hereby ORDERED that Defendant Soto's Motion to Dismiss (Doc. No. 18) is GRANTED. The claims against Defendant Soto are dismissed without prejudice for lack of personal jurisdiction.
IT IS SO ORDERED this 13th day of February, 2019.
Defendant Rachelle Soto writes under the professional pseudonym "Addison Cain." Am. Compl. ¶ 11.
The DMCA provides that
[a] service provider shall not be liable ... for infringement of copyright ... if the service provider-
...
(C) upon notification of claimed infringement ..., responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.
Though some circuit courts have found that § 1631 applies only to defects in subject-matter jurisdiction, the Tenth Circuit has construed § 1631 as authorizing transfer based on the transferor court's lack of subject-matter jurisdiction or of personal jurisdiction over a party. See Fed. Deposit Ins. Corp. v. McGlamery ,
Reference
- Full Case Name
- QUILL INK BOOKS LIMITED, a Foreign Corporation v. ABCD GRAPHICS AND DESIGN, INC., d/b/a Blushing Books Publishing, a Foreign Corporation
- Status
- Published