Janod, Inc. v. Echo Entertainment, Inc.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
________________________________
)
JANOD, INC., )
)
Plaintiff, ) Civil Action No. 11-1963 (EGS)
v. )
)
ECHO ENTERTAINMENT, INC., )
)
Defendant. )
)
MEMORANDUM OPINION
Plaintiff Janod, Inc. (“Janod”) brings this action against
Defendant Echo Entertainment, Inc. (“Echo”), alleging breach of
contract, intentional and/or negligent interference with
prospective economic advantage, and fraud. Pending before the
Court is Defendant’s Motion to Dismiss pursuant to Rules
12(b)(2), (3), and (6) for lack of personal jurisdiction,
improper venue, and failure to state a claim upon which relief
can be granted, or in the alternative, to transfer venue
pursuant to 28 U.S.C. § 1404(a) or 28 U.S.C. § 1406(a). Upon
consideration of the Motion to Dismiss, the Opposition and Reply
thereto, the relevant law, and the entire record in this case,
and for the reasons set forth below, the Court concludes that it
lacks personal jurisdiction over Defendant. Accordingly, the
Court will GRANT Defendant’s Motion to Dismiss.
I. BACKGROUND
A. Factual Background
Plaintiff Janod is a construction company incorporated in
Vermont, with its principal place of business in New York. Am.
Compl. ¶¶ 1, 7. Janod specializes in rock stabilization and
remediation, a potentially hazardous field, which requires
Janod’s rock remediation technicians to perform work on unstable
rock or mountainside surfaces while suspended at great heights
above the ground. Id. ¶¶ 7, 9. Defendant is a production
company organized under the laws of California, with its
principal place of business in California. Id. ¶ 2. In April
2010, Defendant approached Janod about filming and producing a
reality television series documenting Janod’s work. Id. ¶ 10.
The reality television show, bearing the working title “Rock
Stars,” was intended to be filmed and/or produced by Defendant
for the benefit of the National Geographic Channel (“Nat Geo”).1
Id. ¶ 11. Janod agreed to film the series, and on February 15,
2011, Echo and Janod entered into a “Participant Attachment and
Production Agreement” (“Participant Agreement”). Id. ¶ 15. The
Participant Agreement granted Echo’s film crew access to Janod’s
jobsites to film the television series, and it contained a
clause which provided Janod the right to exercise editorial
1
Nat Geo was previously a named defendant in this action
but, as discussed infra, was voluntarily dismissed after
reaching a settlement with Plaintiff.
2
control over any content in the series that would portray Janod
in a negative light. Id. ¶¶ 15-16. Janod alleges that the
purpose of this clause was to help Janod protect its accumulated
goodwill and reputation in the industry. Id. ¶ 16. The clause
states:
Notwithstanding anything to the contrary contained
herein Company [Janod] shall have final approval of
the content of the Material and Project solely and
only in order to ensure that there is nothing in the
content which will reasonably be portrayed to the
public which may portray the Company [Janod] in a
negative light or defamatory manner. In all other
regards, financial, creative or otherwise, Producer
[Echo] shall have ultimate decision-making authority,
subject to the terms of any applicable Network
production or distribution agreement.
Am. Compl. Ex. A, at ¶ 2(j). The Participant Agreement also
contained a clause labeled “Venue and Choice of Law,” which
provides:
The parties agree that any claim or controversy
arising out of this Agreement shall be brought
exclusively in the Federal Courts of the United
States. This Agreement and all related matters shall
be governed by the laws of the State of California
applicable to contracts entered into and performed
fully therein.
Am. Compl. Ex. A, at ¶ 19(d).
On September 24, 2010, Echo entered into a separate
Commission Agreement with Nat Geo. See Def.’s Mot. to Dismiss,
Ex. C. Under the Commission Agreement, Nat Geo obtained all
rights to exploit the “Rock Stars” footage produced by Echo,
including creative rights, alteration rights, and rights to
3
redistribute the program. Id. In addition, the Commission
Agreement contained a “Governing Law” clause, which provides:
This Agreement shall be construed and enforced in
accordance with the laws of the State of California.
Producer [Echo] and [Nat Geo] hereby consent to and
submit to the jurisdiction of the federal and state
courts located in Los Angeles, California, and any
action or suit under this Agreement shall be brought
in any federal or state court with appropriate
jurisdiction over the subject matter established or
sitting in the State of California. Neither [Echo]
nor [Nat Geo] shall raise in connection therewith, and
hereby waives, any defenses based upon venue, the
inconvenience of the forum, the lack of personal
jurisdiction, the sufficiency of service of process .
. . or the like in any such action or suit brought in
the State of California.
Def.’s Mot. to Dismiss Ex. C, at ¶ 19.4 (emphasis added).
Echo began filming the television series, and beginning in
July 2011, Janod attempted to contact Echo to review the
proposed episodes of “Rock Stars” and determine whether any of
the material portrayed Janod in a negative light. Am. Compl.
¶ 18. Janod alleges that Echo failed to respond to its
inquiries, thus leaving Janod unable to exercise its editorial
control. Id. ¶ 19. In July and August 2011, Janod’s counsel
communicated to Echo that Echo’s failure to allow Janod to
review the material placed Echo in breach of the Participant
Agreement. Janod’s counsel also demanded that Janod be
permitted to exercise its editorial rights. Id. ¶ 20. After
receiving no response to its demands, Janod limited Echo’s
access to its jobsites until Echo agreed to honor its
4
contractual obligations to Janod. Id. ¶ 21. On August 29,
2011, Janod alleges that it entered into an additional agreement
with Echo, via email, whereby Echo again contractually agreed
that Janod would have the right to exercise editorial control
over content that might portray Janod in a negative light. Id.
¶ 22. Echo also agreed to schedule a meeting with Janod and to
provide Janod at least ten business days after the meeting and
prior to the airing of the series to submit proposed revisions
to the episodes. Id. The parties scheduled a meeting to occur
on October 28, 2011 in Montreal, Quebec. Id. ¶ 23. In advance
of the meeting, Janod submitted to Echo multiple proposed
revisions to the first season of “Rock Stars.” Id. ¶ 25.
However, on October 25, 2011, Echo unilaterally cancelled the
meeting and informed Janod that Echo was unwilling to make, or
even discuss, any of Janod’s proposed revisions. Id. ¶ 29.
Janod alleges that Echo has delivered, and continues to deliver,
final episodes of the “Rock Stars” series to Nat Geo in
Washington, D.C. for airing, without first allowing Janod to
exercise its contractually-guaranteed rights of final approval
as to any content which may reasonably portray Janod in a
negative light. Id. ¶¶ 32-33.
B. Procedural Background
On November 7, 2011, Janod filed a Complaint and a Motion
for a Temporary Restraining Order and/or Preliminary Injunction
5
to prevent Nat Geo and Echo from airing “Rock Stars” until Janod
was allowed to exercise its right to final approval of certain
content of the series. See Pl.’s Mot. for TRO and/or Prelim.
Inj., Docket No. 2. After briefing on the motion was complete,
on November 16, 2011, Janod withdrew its motion, stating that it
had reached a settlement with Nat Geo. See Notice of Withdrawal
of Mot., Docket No. 26. Thereafter, Janod voluntarily dismissed
Nat Geo from this litigation. See Notice of Voluntary
Dismissal, Docket No. 27. On November 29, 2011, Echo filed a
Motion to Dismiss the Complaint pursuant to Rules 12(b)(2),
12(b)(3), and 12(b)(6) for lack of jurisdiction, improper venue,
and failure to state a claim upon which relief can be granted.
On December 19, 2011 Janod filed its First Amended Complaint.
On January 3, 2012, Echo filed a Motion to Dismiss Janod’s
Amended Complaint on the same grounds asserted in its initial
motion. That motion is now ripe for determination by the Court.
II. STANDARD OF REVIEW
On a Rule 12(b)(2) motion to dismiss for lack of personal
jurisdiction, the plaintiff bears the burden of establishing the
Court’s personal jurisdiction over the defendant. See FC Inv.
Grp. LC v. IFX Mkts., Ltd., 529 F.3d 1087, 1091 (D.C. Cir.
2008); Crane v. N.Y. Zoological Soc’y, 894 F.2d 454, 456 (D.C.
Cir. 1990). “[T]he general rule is that a plaintiff must make a
prima facie showing of the pertinent jurisdictional facts.”
6
First Chi. Int’l v. United Exch. Co., Ltd., 836 F.2d 1375, 1378
(D.C. Cir. 1988). This prima facie showing must be premised on
specific facts, however, and cannot be based on mere conclusory
allegations. See GTE New Media Servs. v. BellSouth Corp., 199
F.3d 1343, 1349 (D.C. Cir. 2000); First Chi. Int’l, 836 F.2d at
1378-79. Further, when determining whether personal
jurisdiction exists over a defendant, the Court need not treat
all of a plaintiff’s allegations as true. Instead, the Court
“may receive and weigh affidavits and any other relevant matter
to assist it in determining the jurisdictional facts.” Dean v.
Walker, 756 F. Supp. 2d 100, 102 (D.D.C. 2010) (internal
quotation marks and citation omitted).
III. ANALYSIS
A. Personal Jurisdiction
Echo argues that this Court lacks personal jurisdiction
over it, and that Plaintiff’s attempt to bootstrap jurisdiction
over Echo based upon Nat Geo’s presence in the District is
improper. This case arises under the Court’s diversity
jurisdiction. See Am. Compl. ¶ 3 (asserting jurisdiction under
28 U.S.C. § 1332). Accordingly, whether the Court has personal
jurisdiction over Echo is a function of District of Columbia
law. See Crane v. Carr, 814 F.2d 758, 762 (D.C. Cir. 1987).
Because Plaintiff does not allege that Echo is a resident of the
District of Columbia, see Am. Compl. ¶ 2, the Court may exercise
7
personal jurisdiction over Echo only if Plaintiff has pled
sufficient facts to satisfy (1) the District of Columbia long-
arm statute, D.C. Code § 13-423, and (2) the constitutional
requirements of due process. See GTE New Media Servs., 199 F.3d
at 1347.2
The sole basis alleged by Plaintiff for this Court to
exercise personal jurisdiction over Echo is that Echo is
“transacting [] business in the District of Columbia,” pursuant
to § 13-423(a)(1). Pl.’s Opp’n at 6 (“The D.C. long-arm statue
expressly provides that this Court may exercise personal
jurisdiction over Echo for any claims arising against Echo as a
result of it ‘transacting any business in the District of
Columbia.’” (quoting D.C. Code § 13-423(a)(1))). To establish
personal jurisdiction under D.C. Code § 13-423(a)(1), the
plaintiff bears the burden of demonstrating that (1) the
defendant transacted business in the District; (2) the claim
arose from the business transacted in the District; and (3) the
defendant had minimum contacts with the District such that the
Court’s exercise of personal jurisdiction would not offend
2
Alternatively, pursuant to D.C. Code § 13-334(a), the
Court may “exercise ‘general jurisdiction’ over a foreign
corporation as to claims not arising from the corporation’s
conduct in the District, if the corporation is ‘doing business’
in the District.” Gorman v. Ameritrade Holding Corp., 293 F.3d
506, 509 (D.C. Cir. 2002) (quoting D.C. Code § 13-334(a)).
Here, Janod alleges only that this Court has specific personal
jurisdiction over Echo pursuant to D.C. Code § 13-423. See
Pl.’s Opp’n at 6.
8
traditional notions of fair play and substantial justice. See
Cellutech, Inc. v. Centennial Cellular Corp., 871 F. Supp. 46,
48 (D.D.C. 1994). This subsection of the long-arm statute has
been interpreted to be coextensive with the Due Process Clause
of the Constitution. See Helmer v. Doletskaya, 393 F.3d 201,
205 (D.C. Cir. 2004). Consequently, under subsection (a)(1)
“the statutory and constitutional jurisdictional questions,
which are usually distinct, merge into a single inquiry . . . .”
United States v. Ferrara, 54 F.3d 825, 828 (D.C. Cir. 1995). In
this single inquiry, courts must examine whether the defendant
“has purposefully availed itself of the benefits and protections
of the District in engaging in a business activity in the forum
jurisdiction,” and whether “it is fair and reasonable to expect
it to anticipate being sued in that jurisdiction.” Shoppers
Food Warehouse v. Moreno, 746 A.2d 320, 329 (D.C. 2000) (en
banc). Put simply, whether Defendant’s conduct constituted
“transacting business” in the District within the meaning of
Section 13-423(a)(1) depends on whether, through its conduct
related to the District, Defendant established “minimum
contacts” with the District such that the Court’s exercise of
personal jurisdiction would not offend “traditional notions of
fair play and substantial justice.” See Int’l Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945) (internal quotation marks
and citation omitted).
9
Plaintiff, relying solely on the allegations in its Amended
Complaint and Opposition brief, asserts that Echo has “clearly
transacted business in the District” based on the Commission
Agreement Echo entered into with Nat Geo, a District of Columbia
corporation. Pl.’s Opp’n at 7. Defendant argues, by contrast,
that the Amended Complaint fails to allege facts sufficient to
establish that it is “transacting business” in the District.
Def.’s Mot. to Dismiss at 11-12. According to Defendant, Echo
has no offices or employees in the District, is not registered
to do business in the District or elsewhere outside the State of
California, and does not hold any assets or other property in
the District, except for sums due from Nat Geo under the
Commission Agreement. See id. at 9. Defendant further argues
that the sole basis alleged by Plaintiff -- performance of the
Commission Agreement -- is inconsistent with the expectations
and intentions of the parties expressly set forth in that
Agreement that any dispute would be resolved by a federal or
state court in California. Id. at 11-12.
1. Whether Plaintiff’s Claims Arose From Defendant’s
Business Transacted in the District
Even assuming, arguendo, that Echo’s performance of the
Commission Agreement suffices for it to have transacted business
in the District of Columbia, the Court cannot find that
Plaintiff’s claims for breach of contract, intentional and/or
10
negligent interference with prospective economic advantage, and
fraud “arose from” that Agreement.
Because a court in the District of Columbia may exercise
specific jurisdiction over a non-resident defendant “only [for]
a claim for relief arising from acts enumerated in [the statute]
. . . ,” D.C. Code § 13-423(b), Plaintiff’s jurisdictional
allegations must arise from the same conduct of which it
complains, see FC Inv. Grp. LC v. IFX Mkts., Ltd., 479 F. Supp.
2d 30, 39 (D.D.C. 2007). Therefore, for this Court to have
specific jurisdiction over Echo under § 13-423(a)(1), “the
actions giving rise to the claim[s] must have occurred in the
District.” Brunson v. Kalil & Co., 404 F. Supp. 2d 221, 228
(D.D.C. 2005).
The sole basis for this Court’s exercise of jurisdiction,
according to Janod, is the Commission Agreement between Echo and
Nat Geo. However, Janod’s breach of contract claim arises out
of a separate contract between Echo and Janod, the Participant
Agreement. That contract, concluded between two non-residents
of the District, anticipating no performance in the District,
and having no substantial connection to the District, cannot be
the basis for jurisdiction over Echo. Janod’s other two claims
-- intentional and/or negligent interference with prospective
economic advantage and fraud -- stem from Echo’s alleged denial
of Janod’s right to exercise editorial control over the reality
11
series, as provided for in the Participant Agreement. There are
no allegations whatsoever that those actions arose out of Echo’s
transacting any business in the District either.
In its Opposition, Plaintiff has attempted to recast the
actions out of which its claims arise:
[A]t the heart of each and every claim asserted
against Echo by Janod is the fact that Echo damaged
Janod by delivering final episodes of the “Rock Stars”
series to NatGeo (for a public broadcast) without
first allowing Janod to exercise its contractually-
guaranteed right to final editorial approval.
Accordingly, Janod did not become damaged (and accrue
its claims against Echo) until Echo actually delivered
the final episodes of the series to NatGeo. That very
delivery of the “Rock Stars” series by Echo to NatGeo
is the business that Echo has transacted in the
District of Columbia for the purposes of this
jurisdictional analysis.
Pl.’s Opp’n at 8. The Court is not persuaded by this
characterization. Plaintiff’s harm flows from Echo’s denial of
its contractual editorial rights under the Participant
Agreement, which is the basis of each of Plaintiff’s three
claims. That denial occurred independent of Echo’s actual
delivery of the final episodes to Nat Geo pursuant to a separate
agreement.
In Brunson v. Kalil & Company, the plaintiff similarly
brought a suit based on a contract without a substantial
connection to the District of Columbia. See 404 F. Supp. 2d at
228. In the plaintiff’s opposition, she attempted to
recharacterize her allegations as arising out of a separate,
12
related contractual arrangement. In granting the defendant’s
motion to dismiss for lack of jurisdiction, another Judge on
this Court stated:
In Plaintiff’s Amended Complaint, she asserts that she
is seeking declaratory judgment based on the rights
and obligations of the parties under the Brokerage
Agreement. However, in her Opposition she states that
the closing of the sale in Washington, D.C. is the
“central event in the case.” The closing, however,
occurred pursuant to the Purchase Agreement, not the
Brokerage Agreement. By characterizing the closing to
be the central event in this case which gave rise to
this claim, Plaintiff is requesting this Court to
analyze the Purchase Agreement, not the Brokerage
Agreement. Plaintiff cannot have it both ways. This
Court refuses to find that actions related to the
Purchase Agreement gave rise to this claim, which
Plaintiff ostensibly brought pursuant to the Brokerage
Agreement.
Id. at 229 (internal citations omitted). Likewise, here, Janod
seeks damages based on the rights and obligations of the parties
under the Participant Agreement, not the Commission Agreement.
The Court therefore refuses to find that the delivery of the
final episodes to Nat Geo in Washington, D.C. is the action out
of which Janod’s claims arise. There are no allegations that
any actions related to the Participant Agreement or the breach
thereof occurred in the District of Columbia. Therefore,
Plaintiff has failed to meet its burden of showing that the
actions giving rise to its claims occurred in the District.
13
2. Minimum Contacts
Moreover, Plaintiff has failed to meet its burden of
demonstrating that Echo purposefully established minimum
contacts with the District such that it is reasonable for it to
anticipate being subject to suit in a District of Columbia
court. As Plaintiff acknowledges, Echo’s performance of the
Commission Agreement with Nat Geo is Echo’s only alleged contact
with the District.
“[P]arties who reach out beyond one state and create
continuing relationships and obligations with citizens of
another state are subject to regulation and sanction in the
other State for the consequences of their activities.” Burger
King Corp. v. Rudzewicz, 471 U.S. 462, 473 (1985) (internal
quotation marks and citations omitted). However, an out-of-
state resident must do more than simply enter into a contract
with a resident of the District to have minimum contacts with
the District; the contract must have a “‘substantial connection’
with the forum.” Helmer, 393 F.3d at 205 (quoting McGee v.
Int’l Life Ins. Co., 355 U.S. 220, 223 (1957)). “[A] contract
is ‘ordinarily but an intermediate step serving to tie up prior
business negotiations with future consequences which themselves
are the real object of the business transaction,’” therefore, “a
court must evaluate the ‘prior negotiations and contemplated
future consequences, along with the terms of the contract and
14
the parties’ actual course of dealing’ to determine whether the
defendant ‘purposefully established minimum contacts within the
forum.’” Helmer, 393 F.3d at 205 (quoting Burger King, 471 U.S.
at 479).
Here, the Court cannot conclude that Defendant purposefully
established minimum contacts with this forum based upon the
Commission Agreement. There is no evidence in the record
regarding the location where the Commission Agreement was
negotiated. Other than the participation of Nat Geo, a District
resident, the only connection between the Commission Agreement
and the District of Columbia is, as Plaintiff argues, that Echo
was to “deliver” episodes of “Rock Stars” to Nat Geo, presumably
to its headquarters in the District of Columbia. See Pl.’s
Opp’n at 7-8. Janod also emphasizes that Echo will receive over
one million dollars based upon this contact with the District of
Columbia. See id. at 7. However, Janod has provided the Court
with no authority to support its argument that these assertions
alone are sufficient to demonstrate a substantial connection
with the District of Columbia. In Burger King, for example, the
relationship between the defendant, a franchisee, and Burger
King was based on a written contract which contemplated a
“carefully structured 20-year relationship that envisioned
continuing and wide-reaching contacts with Burger King in
Florida,” and defendant voluntarily accepted “the long-term and
15
exacting regulation of his business from Burger King’s Miami
headquarters.” Burger King, 471 U.S. at 480. As a result, the
Supreme Court concluded that defendant had purposefully availed
himself of the privilege of conducting business in Florida. Id.The contact between Echo and the District of Columbia -- while
in theory occurring more than once according to Plaintiff’s
arguments -- is a far cry from that between Mr. Rudzewicz and
Florida. Indeed, there is no information in the record about
the number of times Echo has delivered, or plans to deliver,
episodes of the “Rock Stars” series to Nat Geo.
Most importantly, the Commission Agreement includes a
“Governing Law” clause that expressly provides that “any action
or suit under th[e] Agreement shall be brought in any federal or
state court . . . sitting in the State of California.” Def.’s
Mot. to Dismiss Ex. C, at ¶ 19.4.3 “While agreements to submit
to a particular jurisdiction for resolution of disputes may not
conclusively establish personal jurisdiction, it is nevertheless
one factor relevant in an evaluation of the contract in
question.” S.E.C. v. Lines Overseas Mgmt., Ltd., No. 04-302,
2005 WL 3627141, *6 (D.D.C. Jan. 7, 2005) (internal citations
3
As Janod rightly argues, the Commission Agreement does not
bind Janod, see Pl.’s Opp’n at 9-10; however, because Janod
relies upon the Commission Agreement as the basis of Echo’s
purported transaction of business in the District, the Court
still examines the terms of that agreement for purposes of the
minimum contacts analysis.
16
omitted). In Fasolyak v. Cradle Society, Inc., another Judge in
this District found that a choice-of-law provision designating
another forum “reinforce[d] the Court’s conclusion that the non-
resident defendant did not purposely avail itself of the
privilege of conducting activities in the District of Columbia
such that it could anticipate being haled into court here.” No.
06-01126 (TFH), 2007 WL 2071644, *7 (D.D.C. July 19, 2007); see
also Burger King, 471 U.S. at 481-82. Here, the explicit
Governing Law clause in the Commission Agreement goes further,
not only specifying that California law shall apply, but also
designating a California forum for the resolution of any
disputes arising under the agreement. This clause therefore
reinforces the Court’s conclusion that Echo could not have
reasonably anticipated being subject to suit in a District of
Columbia court.
Further, by entering into the Commission Agreement with
District-based Nat Geo, Echo could not have reasonably
anticipated being haled into a District of Columbia court to
defend itself with regard to an alleged breach of an entirely
separate contract, the Participant Agreement. Notably,
Plaintiff has not pointed to a single legal authority to support
its argument that the facts alleged here support exercising
personal jurisdiction over Echo. On this basis, the Court finds
that Plaintiff has not met its burden of demonstrating that Echo
17
has minimum contacts with the District. The Court therefore
finds that it would offend traditional notions of fair play and
substantial justice for Echo, a non-resident defendant, to be
haled into a District of Columbia court with respect to a matter
brought by a non-resident plaintiff relating to purported
injuries that occurred outside of the District.4
4
Although plaintiff does not allege it as a basis for the
Court’s jurisdiction, the Court would similarly find that it
cannot exercise general personal jurisdiction over Echo under
D.C. Code § 13-334(a). The District of Columbia Court of
Appeals “has indicated that the reach of ‘doing business’
jurisdiction under § 13-334(a) is co-extensive with the reach of
constitutional due process.” Gorman, 293 F.3d at 510 (citing
Hughes v. A.H. Robins Co., 490 A.2d 1140, 1148 (D.C. 1985)).
“Under the Due Process Clause, such general jurisdiction over a
foreign corporation is only permissible if the defendant’s
business contacts with the forum district are ‘continuous and
systematic.’” Gorman, 293 F.3d at 509-10 (quoting Helicopteros
Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 415 (1984)).
Here, Plaintiff has not alleged or even suggested that Echo’s
business contacts with the District are continuous and
systematic. Moreover, in order for a court to invoke
jurisdiction under Section 13-334(a), the statute’s service
requirements must have been met; i.e., the defendant must have
been “personally served [with process] in the District of
Columbia.” Gonzalez v. Internacional de Elevadores, S.A., 891
A.2d 227, 233 (D.C. 2006). In this case, Plaintiff served Echo
at its office in Studio City, California, as well as by mail to
that address. See Return of Service/Affidavit, Docket No. 28.
Because Echo was not served in the District of Columbia, it
cannot be subject to jurisdiction under Section 13-334(a). See
McDaniel v. FEDITC LLC, 825 F. Supp. 2d 157, 161 (D.D.C. 2011)
(finding service of process by mail to principal place of
business in Maryland insufficient to confer jurisdiction under
Section 13-334(a)); Gowens v. DynCorp, 132 F. Supp. 2d 38, 42
(D.D.C. 2001) (finding service of process at company
headquarters in Virginia insufficient to confer general personal
jurisdiction).
18
Because the Court concludes that it lacks personal
jurisdiction over Echo, the Court need not reach the merits of
Defendant’s Motion to Dismiss for failure to state a claim
pursuant to Rule 12(b)(6).
B. Transfer of Venue
As an alternative to dismissal, Defendant requests --
without argument or analysis -- that the Court transfer this
action to the United States District Court for the Central
District of California pursuant to 28 U.S.C. § 1404(a) or 28
U.S.C § 1406(a).
Even though the Court has concluded that it lacks personal
jurisdiction over Echo, it may nonetheless transfer venue if it
is in the interests of justice to do so. See, e.g., Cameron v.
Thornburgh, 983 F.2d 253, 257 (D.C. Cir. 1993) (“[W]e may
transfer the case even though it is likely that we do not have
personal jurisdiction over appellees.” (citing Goldlawr, Inc. v.
Heiman, 369 U.S. 463, 466 (1962))); Naartex Consulting Corp. v.
Watt, 722 F.2d 779, 789 (D.C. Cir. 1983), cert. denied, 467 U.S.
1210 (1984); Cellutech, 871 F. Supp. at 50-51. Section 1404(a)
governs the transfer of so-called “convenience” cases--that is,
cases in which venue is proper in the original court but the
court decides that transfer is warranted for the “convenience of
the parties and witnesses.” Section 1406(a), on the other hand,
controls in cases where venue is improper in the original court
19
but, rather than dismissing the action, the court decides to
transfer to a district in which venue is proper. The decision
to transfer an action on this basis is left to the discretion of
the Court. See Novak-Canzeri v. Saud, 864 F. Supp. 203, 207
(D.D.C. 1994). Under either section, the Court’s transfer must
be in the interests of justice. Here, the Court need not reach
the issue of whether venue is proper in this District, because
the Court concludes that transferring this case is not in the
interests of justice under either Section 1404(a) or Section
1406(a).
In its Opposition, Plaintiff asserts that, in addition to
the Central District of California, this action alternatively
could have been brought in the United States District Courts for
the Northern District of New York, the Eastern District of
Washington, or the Western District of North Carolina because a
substantial portion of the filming of the “Rock Stars” series
occurred in those districts. Pl.’s Opp’n at 13. Plaintiff
specifically requests that, if the Court is inclined to transfer
this matter to an alternative forum, the Court transfer this
case to the District Court for the Western District of North
Carolina. Id. at 16 n.7. Ordinarily, there is a strong
presumption in favor of a plaintiff’s choice of forum. See
Piper Aircraft v. Reyno, 454 U.S. 235, 255 (1981). However,
prior to transfer, the Court must ensure that Defendant is
20
subject to personal jurisdiction in the transferee forum. See
Crenshaw v. Antokol, 287 F. Supp. 2d 37, 42 (D.D.C. 2003)
(citing Sharp Elecs. Corp. v. Hayman Cash Register Co., 655 F.2d
1228, 1230 (D.C. Cir. 1981) (per curiam)). Without more factual
information, the Court cannot ensure that the District Court for
the Western District of North Carolina would have personal
jurisdiction over Echo. Because Plaintiff has requested a
different forum from the California forum requested by
Defendant, and because Plaintiff raises a number of forums in
which it believes this action would be proper, the Court finds
that transfer would not be in the interests of justice.
Accordingly, the Court will decline to transfer this case.
IV. CONCLUSION
For the foregoing reasons, the Court concludes that it
lacks personal jurisdiction over Defendant. The Court further
concludes that it would be inappropriate to grant Defendant’s
request to transfer this case to the Central District of
California. Accordingly, the Court will GRANT Defendant’s
Motion to Dismiss for lack of jurisdiction and will DISMISS the
Amended Complaint. A separate Order accompanies this Memorandum
Opinion.
SIGNED: Emmet G. Sullivan
United States District Court Judge
September 10, 2012
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