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RANDY CRAIG WOLFE TRUST v. MICHAEL SKIDMORE. Defendants rely upon attached Memorandum of Law and accompanying Declarations. Defendants rely upon their concurrently-filed Request for Judicial Notice.
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Randy California v. Led Zeppelin - motion to dismiss amended complaint.pdf
RANDY CRAIG WOLFE TRUST v. MICHAEL SKIDMORE. Defendants rely upon attached Memorandum of Law and accompanying Declarations. Defendants rely upon their concurrently-filed Request for Judicial Notice.
RANDY CRAIG WOLFE TRUST v. MICHAEL SKIDMORE. Defendants rely upon attached Memorandum of Law and accompanying Declarations. Defendants rely upon their concurrently-filed Request for Judicial Notice.
MICHAEL SKIDMORE, as Trustee for the RANDY CRAIG WOLFE TRUST,
Plaintiff
v.
LED ZEPPELIN, J AMES PATRICK PAGE, ROBERT ANTHONY PLANT, J OHN PAUL J ONES, SUPER HYPE PUBLISHING, INC., WARNER MUSIC GROUP CORP.
Parent of:
WARNER/CHAPPELL MUSIC, INC., ATLANTIC RECORDING CORPORATION, RHINO ENTERTAINMENT COMPANY,
Defendants
: : : : : : : : : : : : : : : : : : : : :
No. 14-cv-3089
MOTION OF DEFENDANTS JAMES PATRICK PAGE, ROBERT ANTHONY PLANT AND JOHN PAUL JONES TO DISMISS OR TRANSFER DIRECTED TO PLAINTIFFS AMENDED COMPLAINT
Case 2:14-cv-03089-JS Document 36 Filed 10/27/14 Page 1 of 23 2
Defendants J ames Patrick Page, Robert Anthony Plant, and J ohn Paul J ones, 1 by and through their undersigned counsel, move for an Order pursuant to Federal Rule of Civil Procedure 12(b)(2), dismissing them from this action for lack of personal jurisdiction or, in the alternative, an Order pursuant to 28 U.S.C. Section 1404(a), transferring the action to the United States District Court for the Central District of California, Western Division. In support of their motion, the foregoing defendants rely upon the attached Memorandum of Law and accompanying Declarations, the concurrently-filed Request for J udicial Notice and the Memorandum of Law and Declarations submitted by defendants Super Hype Publishing, Inc., Warner Music Group Corp., Warner/Chappell Music, Inc., Atlantic Recording Corporation and Rhino Entertainment Company in support of their concurrently-filed motion. Respectfully submitted,
FOX ROTHSCHILD LLP
/s/ Michael Eidel Michael Eidel, Esquire 2000 Market Street, 20th Floor Philadelphia, PA 19103 (215) 918-3568 (215) 345-7507 (facsimile)
Local Counsel for Defendants
Dated: October 27, 2014 PHILIPS NIZER LLP
/s/ Helene Freeman Helene Freeman, Esquire 666 Fifth Avenue New York, NY 10103-0084 (212) 977-9700 (212) 262-5152 (facsimile)
Attorneys for the Individual Defendants Admitted Pro Hac Vice
1 These defendants, along with the late J ohn Bonham, performed as Led Zeppelin. In his Amended Complaint, plaintiff purports to name Led Zeppelin as an additional defendant even though it is the name of a musical group and not a juridical entity capable of suing or being sued. Case 2:14-cv-03089-JS Document 36 Filed 10/27/14 Page 2 of 23 3
CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of the foregoing Motion of Defendants J ames Patrick Page, Robert Anthony Plant and J ohn Paul J ones to Dismiss or Transfer Directed to Plaintiffs Amended Complaint and the Memorandum of Law and Declarations of J ames Patrick Page, Robert Anthony Plant, and J ohn Paul J ones in support thereof, were served upon counsel for Plaintiff via the Courts ECF filing system.
/s/ Matthew S. Olesh Matthew S. Olesh, Esquire Dated: October 27, 2014
Case 2:14-cv-03089-JS Document 36 Filed 10/27/14 Page 3 of 23
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MICHAEL SKIDMORE, as Trustee for the RANDY CRAIG WOLFE TRUST,
Plaintiff
v.
LED ZEPPELIN, J AMES PATRICK PAGE, ROBERT ANTHONY PLANT, J OHN PAUL J ONES, SUPER HYPE PUBLISHING, INC., WARNER MUSIC GROUP CORP.
Parent of:
WARNER/CHAPPELL MUSIC, INC., ATLANTIC RECORDING CORPORATION, RHINO ENTERTAINMENT COMPANY,
Defendants
: : : : : : : : : : : : : : : : : : : : :
No. 14-cv-3089
MEMORANDUM OF LAW IN SUPPORT OF MOTION OF DEFENDANTS JAMES PATRICK PAGE, ROBERT ANTHONY PLANT AND JOHN PAUL JONES TO DISMISS OR TRANSFER DIRECTED TO PLAINTIFFS AMENDED COMPLAINT
Case 2:14-cv-03089-JS Document 36 Filed 10/27/14 Page 4 of 23
TABLE OF CONTENTS MEMORANDUM OF LAW .......................................................................................................... 1 I. INTRODUCTION .................................................................................................................... 1 (a) Summary of Argument ....................................................................................................... 1 (b) Summary of Facts Relevant to this Motion ........................................................................ 2 (1) The Late Randy Wolfe, aka Randy California .......................................................... 2 (2) The Massachusetts Plaintiff and the California Trust of Randy Wolfe ........................ 3 (3) The Individual Defendants Are British Citizens with No Ties to Pennsylvania .......... 3 (4) Stairway to Heaven ....................................................................................................... 4 (5) Plaintiffs Additional Allegations in His Amended Complaint .................................... 5 (6) Plaintiffs Claims in this Action ................................................................................... 5 II. THE INDIVIDUAL DEFENDANTS MOTION TO DISMISS FOR LACK OF PERSONAL J URISDICTION SHOULD BE GRANTED ...................................................... 6 (a) The Standards Applicable to this Motion ........................................................................... 6 (1) The J urisdictional Principles ......................................................................................... 6 (2) Plaintiffs Burden on this Motion ................................................................................. 7 (b) The Individual Defendants Are Not Subject to General J urisdiction in Pennsylvania ....... 7 (1) Under Daimler, General J urisdiction Is Limited to the Defendants Domicile ............ 7 (2) Plaintiff Relies on Allegations that Are Insufficient under Daimler and Stale ............ 8 (c) The Individual Defendants Are Not Subject to Specific J urisdiction in Pennsylvania .... 10 (1) The Effects Test for Specific J urisdiction ............................................................... 10 (2) Pennsylvania Is Not the Focal Point of the Alleged Harm ......................................... 11 (3) Pennsylvania Is Not the Focal Point of the Alleged Tortious Activity ....................... 12 Case 2:14-cv-03089-JS Document 36 Filed 10/27/14 Page 5 of 23 ii
III.ALTERNATIVELY, THE ACTION SHOULD BE TRANSFERRED ON VENUE GROUNDS ............................................................................................................................. 14 IV.CONCLUSION ....................................................................................................................... 14
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TABLE OF AUTHORITIES Cases AllChem Performance Products, Inc. v. Aqualine Warehouse, LLC, 878 F. Supp. 2d 779 (S.D. Tex. 2012) ...................................................................................... 10 Bucklew v. Hawkins, Ash, Baptie & Co., LLP., 329 F.3d 923 (7th Cir. 2003) ............................. 10 Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985) ................................................................ 13 Calder v. Jones, 465 U.S. 783 (1984) ..................................................................................... 10, 12 DJamoos ex rel. Estate of Weingeroff v. Pilatus Aircraft Ltd., 566 F.3d 94 (3d Cir. 2009), cert. denied, 559 U.S. 1048 (2010) .................................................................. 14 Daimler AG v. Bauman, 134 S. Ct. 746 (2014) ................................................................ 6, 7, 8, 14 Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003) .................................... 10 Flynn v. Hovensa, LLC, 2014 WL 3375238 (W.D. Pa. 2014) ........................................................ 9 Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846 (2011) ............. 6, 7, 9, 10, 15 Hertz Corp. v. Friend, 559 U.S. 77 (2010) ..................................................................................... 7 HS Real Co., LLC v. Sher, 526 F. Appx 203 (3d Cir. 2013) ....................................................... 14 IMO Indus., Inc. v. Kiekert AG, 155 F.3d 254 (3d Cir. 1998) ...................................................... 10 Intl Shoe Co. v. Washington, 326 U.S. 310 (1945)........................................................................ 6 Klinghoffer v. S.N.C. Achille Lauro, 937 F.2d 44 (2d Cir. 1991) ............................................. 9, 13 Marten v. Godwin, 499 F.3d 290 (3d Cir. 2007) .................................................... 6, 11, 12, 14, 15 Miller Yacht Sales, Inc. v. Smith, 384 F.3d 93 (3d Cir. 2004) ........................................................ 7 OConnor v. Sandy Lane Hotel Co., Ltd., 496 F.3d 312 (3d Cir. 2007) ........................... 10, 11, 14 Patchen v. McGuire, 2012 WL 4473233 (E.D. Pa. 2012) .............................................................. 7 Perkins v. Benguet Consol. Mining Co., 342 U.S. 437 (1952) ....................................................... 8 Case 2:14-cv-03089-JS Document 36 Filed 10/27/14 Page 7 of 23 iv
Petrella v. Metro-Goldwyn-Mayer, Inc., 134 S. Ct. 1962 (2014) ................................................. 13 Philadelphia Profl Collections, LLC v. Young, 2010 WL 5257651 (E.D. Pa. 2010) .................... 9 Pinker v. Roche Holdings Ltd., 292 F.3d 361 (3d Cir. 2002) ......................................................... 7 Rush v. Savchuk, 444 U.S. 320 (1980) ............................................................................................ 6 Time Share Vacation Club v. Atl. Resorts, Ltd., 735 F.2d 61 (3d Cir. 1984) ............................. 7, 8 United States v. Moghadam, 175 F.3d 1269 (11th Cir. 1999), cert. denied 529 U.S. 1036 (2000) ................................................................................................................ 13 Walden v. Fiore, 134 S. Ct. 1115 (2014) ............................................................................ 6, 12, 13 Statutes 17 U.S.C. 202 ............................................................................................................................. 14 17 U.S.C. 507 ............................................................................................................................. 13 28 U.S.C. 1404 ........................................................................................................................... 14 42 Pa. Cons. Stat. 5322 ................................................................................................................ 6 Rules Federal Rule of Civil Procedure 4 .................................................................................................. 6 Federal Rule of Civil Procedure 12 ................................................................................................ 7
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MEMORANDUM OF LAW I. INTRODUCTION (a) Summary of Argument Defendants J ames Patrick Page, Robert Anthony Plant and J ohn Paul J ones 2 respectfully submit this Memorandum in support of their renewed motion to dismiss plaintiffs Amended Complaint for lack of personal jurisdiction or, in the alternative, to transfer this action to the United States District Court for the Central District of California, Western Division. Plaintiff Michael Skidmore a Massachusetts resident who sues as the purported trustee of the trust of a Californian, the late Randy Wolfe asserts 43-year-old copyright infringement claims that Wolfe never bothered to assert in his lifetime. In response to plaintiffs Complaint, all defendants moved to dismiss or transfer, including on the ground that plaintiffs own allegations defeat jurisdiction and venue in this district. Plaintiff responded by filing an Amended Complaint, but it retains without change the allegations that still defeat jurisdiction and venue, and the Amended Complaints new allegations reiterating that Stairway to Heaven has been exploited in Pennsylvania do not avoid the inevitable conclusion that this action does not belong here. Recent and binding Supreme Court precedent confirms that general jurisdiction over an individual is limited to his domicile or, at most, another forum that is essentially his home. That standard is not met here. The individual defendants are British citizens, residing in England, own no property in Pennsylvania and have no contacts with Pennsylvania, let alone ties
2 Plaintiff again purports to name Led Zeppelin as a defendant. See, e.g., Am. Complaint at caption & at 12-13, 67-76. Defendants previously raised, and plaintiff ignores, that Led Zeppelin is the name of a musical group, and not a juridical entity capable of being sued. Page Decl. at 2, 9; Plant Decl. at 2, 9; J ones Decl. at 2, 9. Case 2:14-cv-03089-JS Document 36 Filed 10/27/14 Page 9 of 23 2
sufficient to render this forum their home. Further, because jurisdiction is determined by contacts with the forum at the time suit is filed, plaintiffs newly added allegation concerning Led Zeppelin concerts in Philadelphia three or more decades ago is irrelevant. Under established case law, the Court lacks general jurisdiction over the individual defendants. See, below at 6-10. The Amended Complaint also does not satisfy the effects test governing the assertion of specific jurisdiction for the alleged willful copyright infringement. That test requires that Pennsylvania be both the focal point of the alleged injury and the focal point of the individual defendants alleged tortious activity. Pennsylvania is neither. Plaintiff is a resident of Massachusetts and sues on behalf of a California Trust, so Pennsylvania is not the focal point of the alleged injury. And, the individual defendants have not directed any allegedly actionable infringing conduct to Pennsylvania. See, below at 10-14. The individual defendants should be dismissed for lack of personal jurisdiction. Alternatively, because, inter alia, plaintiff is not a resident of Pennsylvania, there are no Pennsylvanian witnesses, most if not all the non-party witnesses are located in the Central District of California and the claim did not arise here, the action is properly transferred to the Central District of California, where all defendants consent to jurisdiction and venue. See, below at 14. (b) Summary of Facts Relevant to this Motion (1) The Late Randy Wolfe, aka Randy California Plaintiff alleges that Randy Wolfe, known professionally as Randy California, was a guitarist and in 1967 formed the band Spirit. Am. Complaint at 5, 16. Plaintiff alleges that in 1967 Wolfe wrote the musical composition titled Taurus, a recording of which was included in his bands 1968 album titled Spirit. Id. at 5, 18, & at 6, 20. Plaintiff also alleges that Case 2:14-cv-03089-JS Document 36 Filed 10/27/14 Page 10 of 23 3
although Wolfe signed an Exclusive Songwriters and Composers Agreement in 1967 with Hollenbeck Music, plaintiff disputes that Taurus is a work for hire and disputes that Hollenbeck or Spirits record company owns the copyright in Taurus. Id. at 6-7, 22-33. Wolfe, a resident of California, died in 1997. Id. at 12, 62. (2) The Massachusetts Plaintiff and the California Trust of Randy Wolfe
Plaintiff Michael Skidmore is a resident of Quincy, Massachusetts. Am. Complaint at 12, 61. He sues as the alleged Trustee for the Randy Craig Wolfe Trust (id. at 12, 60), which it is alleged owns the copyright in Taurus despite Wolfes 1967 songwriters agreement with Hollenbeck (id. at 12, 65). Plaintiff alleges that the Trust was established by Bernice C. Pearl, the mother of Randy Craig Wolfe, as conservator of his estate by court order on February 19, 2002. Id. at 12, 62. He alleges that when Bernice Pearl died, plaintiff, in his capacity as Trustee, continued the administration of the Trust. Id. Although plaintiff provides no specifics as to the Trust and does not identify or provide the document that supposedly appointed him trustee, the Randy Wolfe conservatorship referenced in the Complaint was established by the California Superior Court for Ventura County and the February 19, 2002 Order was entered by that Court. See Request for J udicial Notice at 1-2 & Exhibit 1. The Trust, in short, is a California trust, governed by California law. (3) The Individual Defendants Are British Citizens with No Ties to Pennsylvania
The individual defendants, with the late J ohn Bonham, performed together as the musical group Led Zeppelin. Am. Complaint at 12-13, 67. The individual defendants are each citizens of the United Kingdom and reside in London, England. Page Decl. at 1, 2; Plant Decl. at 1, 2; J ones Decl. at 1, 2. None of them have ever resided in Pennsylvania; ever been issued a Pennsylvania drivers license; ever owned any Case 2:14-cv-03089-JS Document 36 Filed 10/27/14 Page 11 of 23 4
real or personal property located in Pennsylvania; or ever owned any bank accounts, checking accounts, saving accounts or brokerage accounts in Pennsylvania. Page Decl. at 2-3, 3-6; Plant Decl. at 2-3, 3-6; J ones Decl. at 2-3, 3-6. The individual defendants have no employees in Pennsylvania and are not parties to any contract with a resident of Pennsylvania or with any Pennsylvania company. As far as they know, none of them have ever been a party to any contract with a resident of Pennsylvania or with any Pennsylvania company for the exploitation, sale or distribution of Led Zeppelin music. Page Decl. at 2, 7-8; Plant Decl. at 2, 7-8; J ones Decl. at 2, 7-8. The individual defendants have not been in Pennsylvania for the purpose of promoting the exploitation, sale or distribution of Led Zeppelin music since at least 1980. And, they have not performed as part of the musical group known as Led Zeppelin in the state of Pennsylvania since 1985, when, without payment, they were one of many performers at a Live Aid charity concert. None of them have even been in Pennsylvania for any purpose at any time in at least the last three years. Page Decl. at 3, 9; Plant Decl. at 3, 9; J ones Decl. at 3, 9. (4) Stairway to Heaven Stairway to Heaven was not written or recorded in Pennsylvania. To the contrary, plaintiff alleges that Mr. Page and Mr. Plant wrote Stairway to Heaven in Wales in 1970 and the band began recording it in London in 1970 and completed it in 1971. Am. Complaint at 10, 51 & 54. Stairway to Heaven was released in 1971 on the untitled album commonly called Led Zeppelin IV, and quickly became Led Zeppelins most famous song, and is universally acknowledged as one of the greatest songs ever written. Id. at 10, 55, & at 11, 56. Plaintiff also alleges that Stairway to Heaven, the most famous rock song of all time (id. at 2, 6), has been and continues to be exploited and the alleged copyright infringements Case 2:14-cv-03089-JS Document 36 Filed 10/27/14 Page 12 of 23 5
have occurred not only in this judicial district, but in the United States, and throughout the world. Id. at 21, 161. Any exploitation of Stairway to Heaven by any of the Warner defendants none of which are Pennsylvania corporations or have their principal place of business here is part of national or international efforts and not targeted at Pennsylvania in particular. Robinson Decl. at 3, 11. (5) Plaintiffs Additional Allegations in His Amended Complaint In addition to repeating the Complaints foregoing allegations, plaintiffs Amended Complaint attempts to embellish the allegation that Defendants have exploited Stairway to Heaven and other songs in Pennsylvania by alleging that the individual defendants performed as Led Zeppelin in concerts in Pennsylvania. Am. Complaint at 21-22, 163-67. But, that was more than 29 years ago and jurisdiction must be established as to each defendant separately based on their own individual contacts at the time this action was filed. See, below at 9. Plaintiff also alleges on information and belief that the initial and predicate acts of copying of Taurus by Defendants occurred in the United States when, before creating Stairway to Heaven in 1970, defendants supposedly taped live performances of Taurus or obtained recordings of Taurus in and throughout the United States. Am. Complaint at 25-26, 184, 186. That conclusory allegation is not only false but also patently irrelevant to specific jurisdiction in Pennsylvania 44 years later. See, below at 13. (6) Plaintiffs Claims in this Action Based on the allegation that Stairway to Heaven infringes the California Trusts copyright in Taurus, plaintiff purports to assert on the Trusts behalf claims for direct, contributory and vicarious copyright infringement and a claim labeled Right of Attribution Equitable Relief Case 2:14-cv-03089-JS Document 36 Filed 10/27/14 Page 13 of 23 6
Falsification of Rock n Roll History, for the failure to acknowledge the alleged copyright infringement and credit Randy Wolfe. Am. Complaint at 24-30, 172-202. II. THE INDIVIDUAL DEFENDANTS MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION SHOULD BE GRANTED
(a) The Standards Applicable to this Motion (1) The Jurisdictional Principles Federal courts ordinarily follow state law in determining the bounds of their jurisdiction over persons. Daimler AG v. Bauman, 134 S. Ct. 746, 753 (2014), citing Fed. R. Civ. P. 4(k)(1)(A). In Pennsylvania, state law provides for jurisdiction to the fullest extent allowed under the Constitution of the United States . . . . Marten v. Godwin, 499 F.3d 290, 296 (3d Cir. 2007), quoting 42 Pa. Cons. Stat. 5322(b). The Due Process Clause of the Fourteenth Amendment requires that nonresident defendants have certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. Marten v. Godwin, 499 F.3d at 296, quoting Intl Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). These basic due process principles are reflected in the two recognized types of personal jurisdiction (Marten, 499 F.3d at 296), general or all-purpose jurisdiction, and specific or case- linked jurisdiction. Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846, 2851 (2011). Further, the jurisdictional inquiry as to each defendant must be conducted separately. The Constitutional requirements must be met as to each defendant over whom a state court exercises jurisdiction. Walden v. Fiore, 134 S. Ct. 1115, 1123 (2014), quoting Rush v. Savchuk, 444 U.S. 320, 331-32 (1980) (court erred by considering the defending parties together and aggregating their forum contacts in determining whether it had jurisdiction).
Case 2:14-cv-03089-JS Document 36 Filed 10/27/14 Page 14 of 23 7
(2) Plaintiffs Burden on this Motion To survive a motion to dismiss for lack of personal jurisdiction, a plaintiff bears the burden of establishing the courts jurisdiction over the moving defendants. Miller Yacht Sales, Inc. v. Smith, 384 F.3d 93, 97 (3d Cir. 2004). [T]he plaintiff may not rely on the bare pleadings alone in order to withstand [dismissal]; the plaintiff must respond to the motion to dismiss with actual proofssuch as sworn affidavits or other competent evidencenot mere allegations. Patchen v. McGuire, 2012 WL 4473233 at *3 (E.D. Pa. 2012), quoting Time Share Vacation Club v. Atl. Resorts, Ltd., 735 F.2d 61, 66 n. 9 (3d Cir. 1984) (at no point may a plaintiff rely on the bare pleadings alone in order to withstand a defendants Rule 12(b)(2) motion to dismiss for lack of in personam jurisdiction). Here, plaintiffs own allegations establish, and the accompanying Declarations confirm, that the Court lacks personal jurisdiction over the individual defendants. (b) The Individual Defendants Are Not Subject to General Jurisdiction in Pennsylvania
(1) Under Daimler, General Jurisdiction Is Limited to the Defendants Domicile
Under general jurisdiction, the contacts between the defendant and the forum need not be specifically related to the underlying cause of action in order for an exercise of personal jurisdiction over the defendant to be proper. Pinker v. Roche Holdings Ltd., 292 F.3d 361, 369 n. 1 (3d Cir. 2002). The Supreme Court has recently confirmed, however, that only a limited set of affiliations with a forum will render a defendant amenable to all-purpose jurisdiction there. Daimler, 134 S. Ct. at 760. As the Court stated: For an individual, the paradigm forum for the exercise of general jurisdiction is the individuals domicile; for a corporation, it is an equivalent place, one in which the corporation is fairly regarded as at home . . . . Those affiliations have the virtue of being uniquethat is, each ordinarily indicates only one placeas well Case 2:14-cv-03089-JS Document 36 Filed 10/27/14 Page 15 of 23 8
as easily ascertainable. Id., quoting Goodyear, 131 S. Ct. at 2853-54 (2011). Simple jurisdictional rules . . . promote greater predictability. Daimler, 134 S. Ct. at 760, quoting Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010). General jurisdiction does not exist over the individual defendants for the simple reason that, as plaintiff concedes, they are not domiciled here. Am. Complaint at 14, 84, at 15, 93, 101; see, also Page Decl. at 1, 2; Plant Decl. at 1, 2; J ones at 1, 2. That ends the inquiry. Even if Daimler were read to allow general jurisdiction over a non-domiciliary individual who is at home in the jurisdiction, personal jurisdiction still cannot be constitutionally exercised over the individual defendants in this district. Daimler makes clear that only in an exceptional case would a defendant be essentially at home in another forum. 134 S. Ct. at 761 n. 19. As an example of an exceptional case, Daimler cites Perkins v. Benguet Consol. Mining Co., 342 U.S. 437 (1952), where the defendant Philippine corporation temporarily moved its principal place of business from the Philippines to Ohio during the J apanese occupation of the Philippines in World War II. Daimler, 134 S. Ct. at 755-56, 761 n. 19. Plaintiff does not and cannot in good faith allege that the individual defendants have relocated from England to Pennsylvania, even temporarily. Accordingly, the individual defendants are not subject to the Courts general jurisdiction. (2) Plaintiff Relies on Allegations that Are Insufficient under Daimler and Stale
In an attempt to support general jurisdiction, plaintiff repeats the conclusory allegation that each individual defendant does substantial, continuous, and systematic business in the Eastern District of Pennsylvania. Am. Complaint at 14, 85, & at 15, 94 & 102. But, that allegation cannot be credited (Time Share, 735 F.2d at 66 n. 9) and is untrue (see, above at 3-4). Moreover, Daimler held that substantial, continuous and systematic contacts with a forum are not sufficient to establish general jurisdiction. Daimler, 134 S. Ct. at 761. Thus, Case 2:14-cv-03089-JS Document 36 Filed 10/27/14 Page 16 of 23 9
Daimler ruled that even imputing to a defendant its subsidiarys California contacts including regional offices and multiple other facilities in California and being the largest supplier of luxury vehicles to the California market there would still be no basis to subject [the defendant] to general jurisdiction in California. Id. at 752, 760. Rather, to establish general jurisdiction the defendants contacts must go far further and render [the defendant] essentially at home in the forum State. Daimler, 134 S. Ct. at 761, quoting Goodyear, 131 S. Ct. at 2851; Flynn v. Hovensa, LLC, 2014 WL 3375238 at *4 (W.D. Pa. 2014) (non-residents ownership of retail stores [in Pennsylvania] is not enough to meet the general jurisdiction standard set forth in Daimler). The individual defendants who own no property and have no offices in Pennsylvania do not even have the forum contacts that Daimler found insufficient, let alone the contacts necessary to consider them domiciled here. See, above at 3-4. In his Amended Complaint, plaintiff adds that the individual defendants performed as Led Zeppelin in concerts in Pennsylvania. Am. Compl. at 22, 167. But, the individual defendants toured throughout the United States and that does not make them subject to each States general jurisdiction. Daimler, 134 S. Ct. at 761-62 (basing general jurisdiction on fact national business includes business in State would impermissibly make general jurisdiction available in every other State). Moreover, the individual defendants stopped touring as Led Zeppelin in 1980 and performed in Pennsylvania only once after that, in 1985 29 years ago at a charity concert. See, above at 4. Only contacts occurring within a reasonable period of time prior to the filing of this action are relevant to this Courts general jurisdiction inquiry. Philadelphia Profl Collections, LLC v. Young, 2010 WL 5257651 at *3 (E.D. Pa. 2010); see, also Klinghoffer v. S.N.C. Achille Lauro, 937 F.2d 44, 52 (2d Cir. 1991) (personal jurisdiction depends on the defendants contacts with the forum state at the time the lawsuit was filed). Case 2:14-cv-03089-JS Document 36 Filed 10/27/14 Page 17 of 23 10
Concerts three or more decades ago are far too remote in time from the filing of this action for the Court to consider them. Philadelphia Profl, 2010 WL 5257651 at *3. Accordingly, the Court lacks general jurisdiction of the individual defendants. (c) The Individual Defendants Are Not Subject to Specific Jurisdiction in Pennsylvania
Specific jurisdiction is linked to the plaintiffs claim and, when present, confers the power to adjudicate only that claim. Goodyear, 131 S. Ct. at 2851. The Court, however, also does not have specific jurisdiction over the individual defendants. (1) The Effects Test for Specific Jurisdiction This Circuit recognizes a traditional analysis of specific jurisdiction and [a] slightly refined version of this test [that] applies to intentional tort claims. OConnor v. Sandy Lane Hotel Co., Ltd., 496 F.3d 312, 317 n. 2 (3d Cir. 2007), citing Calder v. Jones, 465 U.S. 783 (1984) & IMO Indus., Inc. v. Kiekert AG, 155 F.3d 254 (3d Cir. 1998). Here, plaintiff alleges [c]opyright infringement[, which] is an intentional tort. Bucklew v. Hawkins, Ash, Baptie & Co., LLP., 329 F.3d 923, 931 (7th Cir. 2003). Accordingly, the effects test applies. OConnor, 496 F.3d at 317 n. 2; AllChem Performance Products, Inc. v. Aqualine Warehouse, LLC, 878 F. Supp. 2d 779, 792-93 (S.D. Tex. 2012) (since copyright infringement is an intentional tort, Calder effects test applies; personal jurisdiction not established and action transferred). 3
3 Plaintiff also adds a claim for failure to credit Wolfe, but that claim is not recognized under the law (see, e.g., Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003)) and, even if it were, it is alleged as an intentional, non-contractual claim. Am. Complaint at 29, 189 (Defendants have knowingly been exploiting Stairway to Heaven without crediting Randy California as a writer for the last forty-two years). Case 2:14-cv-03089-JS Document 36 Filed 10/27/14 Page 18 of 23 11
Under the effects test, a plaintiff demonstrate[s] personal jurisdiction if he or she shows: (1) The defendant committed an intentional tort; (2) The plaintiff felt the brunt of the harm in the forum such that the forum can be said to be the focal point of the harm suffered by the plaintiff as a result of that tort; (3) The defendant expressly aimed his tortious conduct at the forum such that the forum can be said to be the focal point of the tortious activity. Marten, 499 F.3d at 297. All three elements must be established. Id. While plaintiff alleges an intentional tort, which of course is disputed, his own allegations confirm that he cannot establish the second and third requirements for specific jurisdiction. (2) Pennsylvania Is Not the Focal Point of the Alleged Harm Plaintiff cannot establish that plaintiff felt the brunt of the harm in [Pennsylvania] such that [Pennsylvania] can be said to be the focal point of the harm suffered by the plaintiff as a result of that tort. Marten, 499 F.3d at 297. 4
If plaintiff was harmed by the alleged infringements, it certainly was not in Pennsylvania. By plaintiffs own admission, he does not reside here. Am. Complaint at 12, 61. The Trust, of which plaintiff claims to be trustee, also is not here to feel the alleged harm and, instead, the alleged harm to the Trust, if any, occurred in California. Accordingly, plaintiffs own allegations establish that Pennsylvania cannot conceivably be said to be the focal point of the harm suffered by the plaintiff as a result of that tort. Marten, 499 F.3d at 297. For this reason alone, plaintiff cannot satisfy the effects test and this Court lacks specific jurisdiction.
4 While the usual practice is to assess specific jurisdiction on a claim-by-claim basis, because plaintiffs four claims are factually overlapping and all based on the same alleged copying of Taurus, the Court need not analyze them separately. OConnor, 496 F.3d at 318. Case 2:14-cv-03089-JS Document 36 Filed 10/27/14 Page 19 of 23 12
(3) Pennsylvania Is Not the Focal Point of the Alleged Tortious Activity
Plaintiff also cannot establish the third requirement of the effects test, namely that [t]he defendant expressly aimed his tortious conduct at [Pennsylvania] such that [Pennsylvania] can be said to be the focal point of the tortious activity. Marten, 499 F.3d at 297. To establish that the defendant expressly aimed his conduct, the plaintiff has to demonstrate the defendant knew that the plaintiff would suffer the brunt of the harm caused by the tortious conduct in the forum, and point to specific activity indicating that the defendant expressly aimed its tortious conduct at the forum. Id. at 297-98, quoting IMO Indus., 155 F.3d at 266; see, also Walden, 134 S. Ct. at 1125 (Calder made clear that mere injury to a forum resident is not a sufficient connection to the forum). Because plaintiff alleges he is not a Pennsylvanian, he cannot establish that defendants knew that the plaintiff would suffer the brunt of the harm caused by the tortious conduct in [Pennsylvania], . . . . Marten, 499 F.3d at 297-98 (emphasis added), quoting IMO Indus., 155 F.3d at 266. For that reason alone, he cannot satisfy the third requirement of the effects test. Instead of identifying actions targeting plaintiff in this State, plaintiff relies on allegations that Defendants have targeted resident individuals and businesses in Pennsylvania by, e.g., selling CDs and digital downloads of Stairway to Heaven, playing Stairway to Heaven in concerts and through radio and television play . . . . Am. Compl. at 21, 163. Plaintiff and the Trust, however, are not among the resident individuals and businesses in Pennsylvania allegedly targeted. Moreover, the individual defendants do not themselves sell CDs, operate television or radio stations or otherwise perform or exploit Stairway to Heaven in Pennsylvania. See, above at 4. Even if it were assumed that others, whose rights may derive from the individual defendants, sell CDs or otherwise exploit Stairway to Heaven in Pennsylvania, [d]ue Case 2:14-cv-03089-JS Document 36 Filed 10/27/14 Page 20 of 23 13
process requires that a defendant be haled into court in a forum State based on his own affiliation with the State, not based on the random, fortuitous, or attenuated contacts he makes by interacting with other persons affiliated with the State. Walden v. Fiore, 134 S. Ct. at 1123 (emphasis added), quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985). And, the Led Zeppelin concerts performed three or more decades ago are no more relevant to specific jurisdiction than they are to general jurisdiction. Personal jurisdiction depends on the defendants contacts with the forum state at the time the lawsuit was filed (Klinghoffer, 937 F.2d at 52), and here there are none. Finally, in his Amended Complaint plaintiff adds the allegation, on information and belief, that the initial and predicate acts of copying of Taurus . . . occurred in the United States when defendants supposedly recorded a live performance of Taurus or obtained a recording with the intent of later using it to create Stairway to Heaven. Am. Compl. at 25-26, 185 & 186. None of these acts are alleged to have occurred in Pennsylvania. Further, while the allegation is disputed, neither recording a live performance nor obtaining a recording by purchase or otherwise were infringements 5 and, in any event, plaintiff cannot rely on alleged acts 44 years ago. Klinghoffer, 937 F.2d at 52. Indeed, alleged infringements outside the Copyright Acts three year statute of limitations are also irrelevant because they are time-barred. 17 U.S.C. 507(b); Petrella v. Metro-Goldwyn-Mayer, Inc., 134 S. Ct. 1962, 1969 (2014) (Under the Acts three-year provision, an infringement is actionable within three years, and only three years, of its
5 United States v. Moghadam, 175 F.3d 1269, 1271-72 (11th Cir. 1999) (prior to 1994, the Copyright Act did not prohibit recording live performances), cert. denied 529 U.S. 1036 (2000); 17 U.S.C. 202 (copyright is distinct from ownership of any material object in which the work is embodied). Case 2:14-cv-03089-JS Document 36 Filed 10/27/14 Page 21 of 23 14
occurrence. And the infringer is insulated from liability for earlier infringements of the same work.). Accordingly, plaintiff also cannot satisfy the third requirement of the effects test and, for that additional reason, this Court lacks specific jurisdiction of the individual defendants. 6
III. ALTERNATIVELY, THE ACTION SHOULD BE TRANSFERRED ON VENUE GROUNDS
Alternatively, this action was filed by a non-resident, there are no witnesses in Pennsylvania, the non-party witnesses are largely in the Central District of California and the claims did not arise in this district. The individual defendants have consented to both jurisdiction and venue in the United States District Court for the Central District of California for purposes of this action, should this Court direct its transfer there. For those and other reasons this action is properly transferred to the Central District of California, Western Division, pursuant to 28 U.S.C. Section 1404(a). See, Warner defendants Memo. at 9-11. IV. CONCLUSION Plaintiffs own allegations and the Declarations filed herewith confirm the Court lacks personal jurisdiction over the individual defendants. They are not residents of Pennsylvania or otherwise essentially at home here and subject to general jurisdiction. Daimler, 134 S. Ct. at
6 While the traditional analysis for specific jurisdiction does not apply, plaintiff also could not meet the three requirements of that test. Marten, 499 F.3d at 296. First, plaintiff cannot show the necessary . . . deliberate targeting of the forum. OConnor, 496 F.3d at 317; DJamoos ex rel. Estate of Weingeroff v. Pilatus Aircraft Ltd., 566 F.3d 94, 104 (3d Cir. 2009) (Any connection . . . to Pennsylvania merely was a derivative benefit of [the] successful attempt to exploit the United States as a national market), cert. denied, 559 U.S. 1048 (2010). Second, plaintiff also cannot show that his claims arise from contacts with Pennsylvania. OConnor, 496 F.3d at 319, 323 (specific jurisdiction requires a closer and more direct causal connection than that provided by the but-for test). Plaintiff, of course, cannot seriously contend that the alleged claims would not have arisen but for contacts with Pennsylvania. HS Real Co., LLC v. Sher, 526 F. Appx 203, 206 (3d Cir. 2013) (plaintiffs inability to even plead a but- for causative link defeats specific jurisdiction under the traditional test). Because plaintiff could not satisfy the first two requirements of the traditional analysis, he would not even get to the third and, even if he did, exercising jurisdiction would not comport with fair play and substantial justice. Case 2:14-cv-03089-JS Document 36 Filed 10/27/14 Page 22 of 23 15
761, quoting Goodyear, 131 S. Ct. at 2851. And, plaintiffs own allegations establish that Pennsylvania where he does not reside is neither the focal point of the alleged harm nor the focal point of the alleged tortious activity by the individual defendants. Marten, 499 F.3d at 297. As a result, the Court also lacks specific jurisdiction over the individual defendants. Accordingly, the action is properly dismissed as to the individual defendants for lack of personal jurisdiction or, alternatively, should be transferred to the Central District of California, Western Division, where all defendants consent to jurisdiction and venue of this action. Respectfully submitted,
FOX ROTHSCHILD LLP
/s/ Michael Eidel Michael Eidel, Esquire 2000 Market Street, 20th Floor Philadelphia, PA 19103 (215) 918-3568 (215) 345-7507 (facsimile)
Local Counsel for Defendants
Dated: October 27, 2014 PHILIPS NIZER LLP
/s/ Helene Freeman Helene Freeman, Esquire 666 Fifth Avenue New York, NY 10103-0084 (212) 977-9700 (212) 262-5152 (facsimile)
Attorneys for the Individual Defendants Admitted Pro Hac Vice
Case 2:14-cv-03089-JS Document 36 Filed 10/27/14 Page 23 of 23