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Tomelleri v. Medl Mobile, Inc.

United States District Court, D. Kansas

April 29, 2015

JOSEPH R. TOMELLERI, Plaintiff,
v.
MEDL MOBILE, INC., et al., Defendants.

MEMORANDUM AND ORDER

JULIE A. ROBINSON, District Judge.

Plaintiff Joseph Tomelleri brings this action under 17 U.S.C. ยง 101 et seq., alleging claims for direct, vicarious, and contributory copyright infringement against Defendant MEDL Mobile, Inc ("MEDL"). On May 7, 2014, MEDL filed a Motion to Dismiss for Lack of Personal Jurisdiction (Doc. 9). Plaintiff then moved for jurisdictional discovery, and the Court granted that motion. The parties completed jurisdictional discovery in October 2014.

The case now comes before the Court on MEDL's Renewed Motion to Dismiss for Lack of Personal Jurisdiction (Doc. 36). The motion is fully briefed and the Court is prepared to rule. For the reasons stated in detail below, the Court lacks both general and specific personal jurisdiction over MEDL. MEDL's contacts with Kansas are not so substantial and continuous as to render MEDL essentially at home in this state. Further, though MEDL has purposefully directed activities at the state of Kansas, Plaintiff's cause of action does not arise out of those forum-related activities. The Court grants MEDL's motion to dismiss.

I. Standard

Plaintiff bears the burden of establishing personal jurisdiction over MEDL.[1] In the absence of an evidentiary hearing, as in this case, the plaintiff must make only a prima facie showing of jurisdiction to defeat a motion to dismiss.[2] "The plaintiff may make this prima facie showing by demonstrating, via affidavit or other written materials, facts that if true would support jurisdiction over the defendant."[3] Allegations in a complaint are accepted as true if they are plausible, non-conclusory, and non-speculative, to the extent that they are not controverted by submitted affidavits.[4] When a defendant has produced evidence to support a challenge to personal jurisdiction, a plaintiff has a duty to come forward with competent proof in support of the jurisdictional allegations of the complaint.[5] The court resolves all factual disputes in favor of the plaintiff.[6] Conflicting affidavits are also resolved in the plaintiff's favor, and "the plaintiff's prima facie showing is sufficient notwithstanding the contrary presentation by the moving party."[7]

III. Background

The Court takes the following facts from Plaintiff's Complaint and the affidavits and exhibits submitted by both parties. Plaintiff Joseph Tomelleri, a Kansas resident, is an illustrator of various North American fish species. He has registered copyrights on forty-one fish illustrations, which he makes available for reproduction by purchase and download from his website, www.americanfishes.com.

Defendant MEDL Mobile, Inc., is a California corporation that develops software applications ("apps") for smart phones and other mobile devices. Its only office is in Fountain Valley, California; it does not have a local agent or bank account or own any property in the state of Kansas; and its employees have never traveled to Kansas for business purposes. MEDL does, however, maintain a website which is accessible to users worldwide. That website presents information about MEDL and its products and contains hyperlinks to the online stores of third-party app providers, like iTunes and Google Play, where MEDL's apps are offered for sale.

In late 2009, Connecticut resident Jason Siniscalchi, a co-defendant in this case, approached MEDL with an idea for an app that would catalogue information about various fish species located in the United States. MEDL agreed to develop and launch the app with Mr. Siniscalchi's help. The result of this partnership was "FishID, " a mobile app billed as "a flexible tackle box of tools for identifying any catch, finding fishing spots, [and] reading up on local regulations."[8] FishID provides detailed profiles of each fish species as well as range maps allowing users to identify species that can be found in particular locations, including bodies of water within the state of Kansas. The app also links to each state's fishing regulations.

Mr. Siniscalchi supplied MEDL with the pictures used in the app's fish species profiles. Plaintiff alleges that some of those pictures are direct copies of Plaintiff's copyrighted fish illustrations and that Mr. Siniscalchi and MEDL incorporated those illustrations into the app without Plaintiff's permission, thus violating Plaintiff's copyrights. According to the affidavit of MEDL's CEO Andrew Maltin, Mr. Siniscalchi indicated to MEDL during the app's development phase that the fish species illustrations came "almost exclusively from government websites (i.e., the public domain)."[9] Thus, Mr. Maltin declares, MEDL was unaware during the development and launch of the FishID app that any of the pictures supplied by Mr. Siniscalchi was a copyrighted work.

MEDL became aware of "potential copyright issues" in February 2012, when Plaintiff's attorney sent a letter informing MEDL that some pictures displayed on its website and featured in its FishID app infringed on Plaintiff's copyrights. The letter demanded that MEDL cease and desist from further distribution of the cited pictures. MEDL did not respond to the letter, but Mr. Maltin declares that the company undertook to "fix this issue and remove the alleged infringing FishID app from the iTunes store."[10] That effort proved unsuccessful: Mr. Maltin states that Apple, "for some reason, " rejected a new build of the FishID app which MEDL had created to replace the former version, and the app containing allegedly infringing illustrations thus remained available for purchase and download from iTunes.[11] Mr. Maltin explains that after MEDL attempted to upload the new build, "other projects took precedence, and MEDL moved onto those other projects. MEDL simply lost track of this issue and w[as] not aware that the new build was not properly uploaded until MEDL was served with the complaint" in this case.[12]

Plaintiff does not allege that the FishID app has ever been purchased or used by a person located in Kansas. He argues, however, that specific jurisdiction exists in this case based on MEDL's efforts in developing and marketing the FishID app. In addition, Plaintiff submits a sealed exhibit tabulating the number of times MEDL's "other products" have been installed on mobile devices in each state. That spreadsheet shows that users in Kansas have installed MEDL's apps on at least 6, 663 occasions - a showing, Plaintiff contends, sufficient to establish general personal jurisdiction over MEDL. MEDL argues that neither specific nor general jurisdiction exists here and requests the Court to dismiss Plaintiff's claims for lack of personal jurisdiction or, in the alternative, to transfer the case to the Central District of California.

III. Discussion

"Before a federal court can exercise personal jurisdiction over a defendant in a federal question case, the court 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."[13] Because the Copyright Act, under which Plaintiff brings this action, does not provide for nationwide service of process, Plaintiff must show that MEDL is amenable to service of process under Kansas' long-arm statute, K.S.A. 60-308(b).[14] That long-arm statute is coextensive with the constitutional limitations imposed by the due process clause.[15] Thus, the long-arm statute inquiry and the due process inquiry merge, and the determinative question becomes whether the exercise of jurisdiction in this case comports with due process.[16]

"The Due Process Clause secures an individual's liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful contacts, ties, or relations.'"[17] A court may therefore exercise personal jurisdiction over a nonresident defendant only if the defendant has "minimum contacts" with the forum state.[18] "Such contacts may give rise to personal jurisdiction over a non-resident defendant either generally, for any lawsuit, or specifically, solely for lawsuits arising out of particular forum-related activities."[19]

Here, as noted, Plaintiff contends the Court may exercise both general and specific ...


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