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Liberty Media Holdings, LLC, A California Corporation v. Cary Tabora; and Schulyer Whetstone

January 4, 2012

LIBERTY MEDIA HOLDINGS, LLC, A CALIFORNIA CORPORATION,
PLAINTIFF,
v.
CARY TABORA; AND SCHULYER WHETSTONE,
DEFENDANTS.



The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court

ORDER (1) GRANTING DEFENDANT TABORA'S MOTION TO DISMISS [Doc. No. 21] (2) DENYING MOTION FOR DEFAULT JUDGMENT[Doc. No. 27]

Presently before the Court is Defendant Cary Tabora ("Tabora")'s motion to dismiss for lack of personal jurisdiction and improper venue. [Doc. No. 21.] Also before the Court is Plaintiff Liberty Media Holding, LLC (Plaintiff)'s motion for default judgment against Defendant Schulyer Whetstone ("Whetstone"). [Doc. No. 27.] For the reasons set forth below, the Court GRANTS Defendant's motion to dismiss and DENIES Plaintiff's motion for default judgment.

BACKGROUND

This is an action for copyright infringement. Plaintiff is the creator and producer of adult movies. [Doc. No. 18, SAC ¶ 32.] Plaintiff is the registered owner of the copyright to the motion picture, "Corbin Fisher's Down on the Farm." [Id. ¶ 1.] Plaintiff alleges that on November 16, 2010, Defendants used the IP address 68.175.79.147 to illegally republish and illegally distribute copies of Plaintiff's copyrighted work to at least 840 other individuals over the Internet, including 136 residents of California, causing at least $50,400 in actual damages to Plaintiff. [Id. ¶¶ 26, 36.] Plaintiff alleges that Defendants distributed Plaintiff's copyrighted work using a peer-to-peer file sharing protocol known as BitTorrent.*fn1 [Id. ¶¶ 37-51.]

On March 31, 2011, Plaintiff brought the present action against Defendant Tabora alleging a cause of action for copyright infringement. [See Doc. No. 1, Compl.] Plaintiff later filed an amended complaint adding Defendant Whetstone, but Plaintiff later withdrew that amended complaint. [Doc. Nos. 4, 7.] On October 4, 2011, the Court granted Defendant Tabora's motion to dismiss Plaintiff's complaint for lack of personal jurisdiction and granted Plaintiff leave to file an amended complaint. [Doc. No. 17.] On October 21, 2011, Plaintiff filed a second amended complaint ("SAC") adding Defendant Whetstone and containing new allegations related to personal jurisdiction and venue. [SAC.] On November 11, 2011, Defendant Tabora responded to Plaintiff's SAC by filing the present motion to dismiss for lack of personal jurisdiction and improper venue. [Doc. No. 21.] Defendant Whetstone failed to respond to Plaintiff's SAC, and the Clerk entered default against him on November 17, 2011. [Doc. No. 23.] Shortly thereafter, Plaintiff filed the present motion for default judgment against Defendant Whetstone. [Doc. No. 27.]

DISCUSSION

I. Personal Jurisdiction

Defendant Tabora argues that this Court does not have general or specific personal jurisdiction over him. [Doc. No. 21-2, Def.'s Mot. at 2-7.] Plaintiff argues that this Court has specific jurisdiction over Tabora because he distributed Plaintiff's work to California, he knew that his acts of copyright infringement would cause harm in San Diego, and jurisdiction in San Diego is reasonable. [Doc. No. 26, Pl.'s Opp'n at 2-13.]

A. Legal Standard

"Personal jurisdiction over a nonresident defendant is tested by a two-part analysis. First, the exercise of jurisdiction must satisfy the requirements of the applicable state long-arm statute. Second, the exercise of jurisdiction must comport with federal due process." Chan v. Soc'y Expeditions, Inc., 39 F.3d 1398, 1404-05 (9th Cir. 1994). California's long-arm statute, CAL. CIV. PROC. CODE § 410.10, allows courts to "exercise jurisdiction on any basis not inconsistent with the Constitution of [California] or of the United States." "This provision allows courts to exercise jurisdiction to the limits of the Due Process Clause of the U.S. Constitution." Dow Chem. Co. v. Calderon, 422 F.3d 827, 831 (9th Cir. 2005). Thus, the governing standard here is whether the exercise of personal jurisdiction comports with due process. Id.

"For a court to exercise personal jurisdiction over a nonresident defendant, that defendant must have at least 'minimum contacts' with the relevant forum such that the exercise of jurisdiction 'does not offend traditional notions of fair play and substantial justice.'" Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 801 (9th Cir. 2004). "There are two types of personal jurisdiction: general and specific." Ziegler v. Indian River Cnty., 64 F.3d 470, 473 (9th Cir. 1995). Here, Plaintiff does not argue that the Court has general jurisdiction over Defendant. Therefore, the only issue is whether the Court has specific jurisdiction over Defendant.

The Ninth Circuit has established a three-prong test for analyzing a claim of specific personal jurisdiction:

(1) The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws;

(2) the claim must be one which arises out of or relates to the defendant's forum-related activities; and

(3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable.

Schwarzeneggar, 374 F.3d at 802. "The plaintiff bears the burden of satisfying the first two prongs of the test." Id. If the plaintiff fails to satisfy either of the first two prongs, personal jurisdiction is not established in the forum state. Id. "If the plaintiff succeeds in satisfying both of the first two prongs, the burden then shifts to the defendant to 'present a compelling case' that the exercise of jurisdiction would not be reasonable." Id.

"Where a defendant moves to dismiss a complaint for lack of personal jurisdiction, the plaintiff bears the burden of demonstrating that jurisdiction is appropriate." Schwarzenegger, 374 F.3d at 800. "Where, as here, the motion is based on written materials rather than an evidentiary hearing, 'the plaintiff need only make a prima facie showing of jurisdictional facts.'" Id. The reviewing court need "only inquire into whether [the plaintiff's] pleadings and affidavits make a prima facie showing of personal jurisdiction." Caruth v. Int'l Psychoanalytical Ass'n, 59 F.3d 126, 128 (9th Cir. 1995). "Although the plaintiff cannot 'simply rest ...


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