The opinion of the court was delivered by: SUSAN ILLSTON, District Judge
ORDER TRANSFERRING ACTION TO MIDDLE DISTRICT OF NORTH CAROLINA
On June 4, 2004, this Court heard argument on defendant's
Motion to Dismiss for Lack of Personal Jurisdiction, pursuant to
Federal Rules of Civil Procedure Rule 12(b)(2), and/or for Lack
of Subject Matter Jurisdiction, pursuant to 17 U.S.C. § 411(a).
Having carefully considered the argument of counsel and the
papers submitted, this Court finds that it lacks personal
jurisdiction over defendant Litera Corporation and accordingly
TRANSFERS this action to the United States District Court for the
Middle District of North Carolina, where it might properly have
been brought pursuant to 28 U.S.C. § 140(a).
Plaintiff Workshare Technology Inc. complains that defendant
Litera Corporation has infringed plaintiff's rights by copying
software programs of which plaintiff is the exclusive licensee in
the United States, and by reproducing, among other things, all or
portions of the graphical user interface of these programs.
Compl. at ¶ 23. Defendant moves to dismiss this action pursuant
to Rule 12(b)(2) for lack of personal jurisdiction, contending
that Litera lacks minimum contacts with the State of California
such that exercise of jurisdiction over it would not be fair or
reasonable. In the alternative, defendant argues that the Court
cannot exercise subject matter jurisdiction because plaintiff
lacks a certificate of registration of copyright as defendant
argues is required under 17 U.S.C. § 411(a). The Court need not go to the latter
issue of subject matter jurisdiction, however, because plaintiff
has not met its burden of establishing that Litera has sufficient
contacts in California to allow the Court to properly exercise
personal jurisdiction over it.
Defendant Litera is incorporated in the State of New Jersey and
has its principal and only place of business in the State of
North Carolina. Decl. of Deepak Massand in Supp. of Def.'s Mot.
to Dismiss ("Massand Decl.") at ¶ 3. All of Litera's employees
and independent contractors work out of the North Carolina
office. Id. None of the employees or independent contractors of
Litera have ever attended business conferences or similar
functions in California related to Litera. Id. Furthermore,
Litera does not maintain any California offices; it does not have
any employees within California; and it has no corporate activity
in this state. Id. at ¶ 4. Litera does not actively market its
products in the state and it does not direct any advertising to
California markets. Id. at ¶ 6. Litera has no sales in
California and does not derive any of its revenues from residents
of California. Id. at ¶ 7. The Court has viewed the Litera's
website and agrees with defendant that it is should be
characterized as passive, since it provides little more than
information about Litera's products. Any opportunity to purchase
defendant's product is a distant second to the site's primary
purpose of educating the public about its product. Further, there
is no evidence that defendant has marketed its product in
California through its website. In fact, "there have only been
three to four individuals that have registered with Litera's
website from the State of California to obtain a demonstration
copy of [plaintiff's product]." Id. at ¶ 10. Defendant believes
that three of the registered individuals are principals of the
plaintiff or are related to plaintiff. Id. at 10. All of the
defendant's witnesses, including its founder and president Deepak
Massand, and all of the documents concerning Litera's accused
software, are located in North Carolina. Id. at 14.
It would be unreasonable for the Court to require Litera to
defend itself in this action in this forum, and plaintiff's
interest in bringing suit in California does not outweigh the
burden that would be caused defendant if this action stayed in
this forum. The Court therefore concludes that it lacks personal
jurisdiction over these claims against this defendant.
At oral argument, the Court inquired of counsel for plaintiff
whether it would rather this action be dismissed under
Rule 12(b)(2) or transferred to North Carolina pursuant to
28 U.S.C. § 1406(a); plaintiff elected the latter. Accordingly, this action
is hereby TRANSFERRED to the Middle District of North Carolina, where it might have been brought.
The remaining question of subject matter jurisdiction is best
resolved by the trial court in North Carolina.
Taking all uncontroverted allegations in plaintiff's complaint
as true, and resolving all factual conflicts in plaintiff's
favor, plaintiff has not established that this Court may properly
exercise personal jurisdiction over Litera. For the foregoing
reasons and for good cause shown, the Court hereby TRANSFERS this
action to the Middle District of North Carolina. [docket # 21].
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