Changing the World Films, LLC v. Parker

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CHANGING THE WORLD FILMS, LLC et
al.,
Plaintiffs,
No. 21-cv-2787 (DLF)
v.
NATHANIEL PARKER et al.,
Defendants.
MEMORANDUM OPINION
The plaintiffs—Selton Shaw, Langston Shaw, and their entertainment company Changing
the World Films, LLC—bring this copyright infringement suit against Nathaniel Parker; Tiny
Giant Productions, LLC; ASP Film, LLC; TM Film Finance, LLC; and Vertical Entertainment,
LLC (together, the “Film Defendants”), as well as Shelton Jackson Lee (also known as “Spike
Lee”). First Am. Compl. (FAC), Dkt. 39. Before the Court are the Film Defendants’ Motion to
Dismiss for lack of personal jurisdiction under Rule 12(b)(2) and for failure to state a claim under
Rule 12(b)(6) of the Federal Rules of Civil Procedure, Dkt. 41, and defendant Lee’s Motion to
Strike or Motion to Dismiss Plaintiffs’ Amended Complaint and Impose Sanctions under Rules
12(b)(2), 12(b)(6), and 15(a), Dkt. 42. For the reasons that follow, the Court will dismiss the action
under Rule 12(b)(2) because it lacks personal jurisdiction over any of the defendants. 1 The Court
also will deny defendant Lee’s motion for sanctions.
1
Because the Court will grant the defendants’ motions to dismiss on Rule 12(b)(2) grounds, it need
not address the defendants’ other bases for dismissal under Rule 12(b)(6).
I. BACKGROUND
Selton and Langston Shaw write, direct, and produce films through their film production
company, Changing the World Films, LLC. FAC ¶¶ 7–31. In 2017, they submitted an original
screenplay titled A Routine Stop to the TV One Screenplay Competition. Id. ¶¶ 36, 42–43. They
allege that a film released at the 2019 Venice Film Festival, American Skin, is substantially similar
to their screenplay for A Routine Stop. Id. ¶¶ 51, 60. Defendant Nathaniel Parker wrote, directed,
and starred in American Skin. Id. ¶ 11. Defendants TM Films and Tiny Giant Entertainment
produced American Skin. Id. ¶¶ 12–13. Defendant Vertical Entertainment distributed American
Skin, id. ¶ 14, and defendant ASP Film holds the copyright for the film, id. ¶ 16. Defendant Lee
promoted American Skin at the Venice Film Festival, and his name appears on the film, which is
billed as “A Spike Lee Presentation.” Id. ¶ 15.
The plaintiffs filed a complaint against the defendants alleging direct, vicarious, and
contributory copyright infringement claims. Compl., Dkt. 1. Both the Film Defendants and
defendant Lee moved to dismiss for lack of personal jurisdiction, Dkts. 22, 23, and the plaintiffs
moved for jurisdictional discovery, Dkt. 29. The Court granted in part the plaintiffs’ motion for
jurisdictional discovery, permitting discovery only “as to the Film Defendants’ promotion of
American Skin in the District of Columbia.” Order at 4, Dkt. 35. Following jurisdictional
discovery, the plaintiffs filed an amended complaint, Dkt. 39. The Film Defendants, Dkt. 41, and
defendant Lee, Dkt. 42, now move to dismiss the amended complaint for, among other things, lack
of personal jurisdiction.
II. LEGAL STANDARD
Under Rule 12(b)(2) of the Federal Rules of Civil Procedure, a party may move to dismiss
an action when the court lacks personal jurisdiction. Fed. R. Civ. P. 12(b)(2). “On such a motion,
2
the plaintiff bears the burden of ‘establishing a factual basis for the exercise of personal
jurisdiction’ over each defendant.” Triple Up Ltd. v. Youku Tudou Inc., 235 F. Supp. 3d 15, 20
(D.D.C. 2017) (quoting Crane v. N.Y. Zoological Soc’y, 894 F.2d 454, 456 (D.C. Cir. 1990)). To
meet this burden, a plaintiff cannot rely on conclusory allegations, id., but rather must allege
specific facts connecting the defendant with the forum, see Shibeshi v. United States, 932 F. Supp.
2d 1, 2–3 (D.D.C. 2013). When ruling on a 12(b)(2) motion, the court “may receive and weigh
affidavits and any other relevant matter to assist it in determining the jurisdictional facts.” Triple
Up Ltd., 235 F. Supp. 3d at 20 (citation omitted). “Ultimately, the [c]ourt must satisfy itself that
it has jurisdiction to hear the suit.” Id. at 20–21 (cleaned up).
Rule 11 requires attorneys to conduct an “inquiry reasonable under the circumstances”
before filing a complaint and to certify, among other things, that the complaint “is not being
presented for any improper purpose,” that the claims and legal arguments are “warranted by
existing law or by a nonfriviolous argument” for changing the caselaw, and that “the factual
contentions have evidentiary support or, if specifically so identified, will likely have evidentiary
support after a reasonable opportunity for further investigation or discovery.” Fed. R. Civ. P.
11(b). Rule 11 allows the court to “impose an appropriate sanction on any attorney, law firm, or
party that violated the rule.” Fed. R. Civ. P. 11(c)(1). “[T]he central purpose of Rule 11 is to deter
baseless filings in district court.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 393 (1990).
Federal courts also have inherent power to impose sanctions and may “assess attorney's fees when
a party has acted in bad faith.” Chambers v. NASCO, Inc., 501 U.S. 32, 45–46 (1991) (cleaned
up).
3
Rule 15(a)(2) permits a party to amend its pleading “only with the opposing party’s written
consent or the court’s leave,” which “should [be] freely give[n] . . . when justice so requires.” Fed
R. Civ. P. 15(a)(2).
III. ANALYSIS
A. Personal Jurisdiction
This Court “may exercise one of two types of personal jurisdiction: (1) ‘general or all-
purpose jurisdiction’ or (2) ‘specific or case-linked jurisdiction.’” Lewis v. Full Sail, LLC, 266 F.
Supp. 3d 320, 323 (D.D.C. 2017) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564
U.S. 915, 919 (2011)). Here, the plaintiffs concede that this Court lacks general jurisdiction over
any of the defendants. See Pls.’ Opp. at 11, Dkt. 43; see Hopkins v. Women’s Div., Gen. Bd. of
Glob. Ministries, 238 F. Supp. 2d 174, 178 (D.D.C. 2002) (“It is well understood in this Circuit
that when a plaintiff files an opposition to a motion to dismiss addressing only certain arguments
raised by the defendant, a court may treat those arguments that the plaintiff failed to address as
conceded.”). To determine whether it has specific jurisdiction, the Court “first examine[s] whether
jurisdiction is applicable under the [District of Columbia’s] long-arm statute and then determine[s]
whether a finding of jurisdiction satisfies the constitutional requirements of due process.” GTE
New Media Servs. Inc. v. BellSouth Corp., 199 F.3d 1343, 1347 (D.C. Cir. 2000).
The plaintiffs contend that two subsections of the District’s long-arm statute apply to the
defendants: (1) a person or entity “transacting any business in the District of Columbia,” D.C.
Code § 13-423(a)(1); and (2) a person or entity “causing tortious injury in the District of Columbia
by an act or omission outside the District of Columbia if he regularly does or solicits business,
engages in any other persistent course of conduct, or derives substantial revenue from goods used
or consumed, or services rendered, in the District of Columbia,” id. § 13-423(a)(4). Section 13-
4
423(a)(1) has generally “been interpreted to provide jurisdiction to the full extent allowed by the
Due Process Clause”—namely, “when there are minimum contacts between the defendant and the
forum such that the maintenance of the suit does not offend traditional notions of fair play and
substantial justice.” United States v. Ferrara, 54 F.3d 825, 828 (D.C. Cir. 1995) (cleaned up). In
contrast, section 13-423(a)(4) does not stretch so far, as it demands proof beyond what the Due
Process Clause requires. Crane v. Carr, 814 F.2d 758, 762 (D.C. Cir. 1987). Because these two
provisions of the District’s long-arm statute are equally as or more restrictive than the Due Process
Clause, the Court will restrict its analysis to the relevant provisions of the long-arm statute.
1. Film Defendants
The plaintiffs cannot establish that this Court has personal jurisdiction over the Film
Defendants under § 13-423(a)(1) because none of the defendants transacted relevant business in
the District. The plaintiffs do not allege that the Film Defendants showed American Skin in the
District, FAC ¶ 22, only that they “directed their promotional activities for American Skin to
residents of this District,” id. ¶ 20. “It is undisputed in this Circuit that a defendant’s extensive
advertising activity, when directly targeted at D.C. residents, can subject it to jurisdiction in the
District.” Gather Workspaces LLC v. Gathering Spot, LLC, No. 19-cv-2669, 2020 WL 6118439,
at *6 (D.D.C. Oct. 16, 2020). For example, “placing pages of large, illustrated advertisements
often in bold letters, with shopping incentives, in the District’s major circulation newspaper” can
constitute minimum contacts. Shoppers Food Warehouse v. Moreno, 746 A.2d 320, 331 (D.C.
2000). But advertisements that are “random, fortuitous, accidental, . . . attenuated,” or “too trivial
to cause a consequence in the District” cannot. Id.The Film Defendants’ alleged promotional activities do not resemble the type of
advertising that constitutes minimum contacts with this jurisdiction. The two remote, Parker Decl.
5
¶¶ 11–12, Dkt. 41-2, 2 promotional press interviews that defendant Parker did for the Howard
University Alumni Association, FAC ¶ 20, and for the Roland Martin Unfiltered Show, id. ¶ 21,
are not alleged to have occurred in the District, or to have targeted D.C. residents, see id. ¶¶ 20–
21, 24. And even assuming that the Roland Martin interview, which is described as a “daily digital
show broadcasting from Washington D.C.,” id. ¶ 21, took place in D.C.,“[n]o cases in this Circuit
have determined that personal jurisdiction exists over a foreign defendant resulting from their
alleged solicitation of customers in D.C. arising from a single [broadcasted] news appearance,”
Gather, 2020 WL 6118439, at *8 (finding no personal jurisdiction where defendant was
interviewed one time on local Washington D.C. CBS affiliate).
Nor does personal jurisdiction arise out of the Film Defendants’ so-called “advertising
strategy,” which allegedly “featured a significant push on social media[] targeting Washington,
DC residents via Instagram and Facebook.” FAC ¶ 9. Aside from a single post that defendant
Parker made to his personal Instagram profile, id. ¶ 23—“THIS FRIDAY Jan. 15th, 2021 – Get
your tickets for ‘American Skin’ in the following theaters,” Nathaniel Parker (@origi_nate),
Instagram, https://www.instagram.com/p/CJ4QyO2H3ZF/—the plaintiffs do not offer any other
instances in which the defendants engaged in D.C.-targeted social media advertising, see id. ¶ 27;
Pls.’ Opp. at 12–14. Conclusory statements about a targeted advertising campaign are insufficient
to establish jurisdiction. See IMAPizza, LLC v. At Pizza Ltd., 334 F. Supp. 3d 95, 107–08 (D.D.C.
2018) (“conclusory statements or a bare allegation of conspiracy or agency” do not establish
jurisdiction (internal quotation marks omitted)).
2
As noted above, the Court may “receive and weigh affidavits and any other relevant matter to
assist it in determining the jurisdictional facts.” Triple Up, 235 F. Supp. 3d at 20 (citation omitted).
6
Moreover, it is a stretch to characterize the single Instagram post as a D.C.-targeted
advertisement. One slide of the Instagram posting lists theaters showing American Skin, including
the “Berkeley Plaza 7 Theatre – Martinsburg, WV” under a header titled “Washington, DC.” See
Nathaniel Parker (@origi_nate), Instagram, https://www.instagram.com/p/CJ4QyO2H3ZF/. The
post also encourages viewers to “please support local Black Owned restaurants during your watch
parties for the film,” and lists restaurants in many major metropolitan areas, including D.C. Id.
Even so, this posting, which was available to viewers everywhere, is “more like a broad national
advertising campaign” than targeted advertising sufficient to establish personal jurisdiction in this
District over the defendants. Sweetgreen, Inc. v. Sweet Leaf, Inc., 882 F. Supp. 2d 1, 5–6 (D.D.C.
2012); see also Etchebarne-Bourdin v. Radice, 982 A.2d 752, 760 (D.C. 2009) (one listing in
Yellow Pages “did not rise to the [scale and scope] of active solicitation of patients in the District
. . . deemed significant” in other cases); Gather, 2020 WL 6118439, at *7 (one “D.C.-specific
Instagram account” that linked viewers to a registration page on the defendants’ website was not
a minimum contact); cf. Ayla, LLC v. Alya Skin Pty. Ltd., 11 F.4th 972, 980–91 (9th Cir. 2021)
(finding “significant advertising efforts” where Australian company targeted Black Friday sales in
the U.S. by advertising on Instagram with the words “ATTENTION USA BABES”). Put another
way, by listing D.C. as just one of 15 or more major cities somewhat near theaters showing the
film, the Instagram post more resembled “an advertisement placed in a national newspaper that
happens to circulate in the [District]” than “an advertisement placed specifically in the [District’s]
local paper.” 3 Ralls Corp. v. Terna Energy USA Holding Corp., 920 F. Supp. 2d 27, 32 (D.D.C.
3
In the case of the Martinsburg, W.V. theater listed in the Instagram posting under the heading
“Washington, D.C.,” the connection with D.C. was especially tenuous given that the theater was
located roughly 75 driving miles from D.C. The plaintiffs further allege, without record support,
that American Skin also played in Virginia and Maryland theaters. See FAC ¶ 57. But even
7
2013); see also Heroes, Inc. v. Heroes Found., 958 F. Supp. 1, 3–4 (D.D.C. 1996) (calling this
distinction “significant”).
Section 13-423(a)(4) of the District’s long-arm statute also does not apply to the Film
Defendants. The plaintiffs have not established the requisite “plus factor,” namely that the Film
Defendants regularly do business, engage in a persistent course of conduct, or derive substantial
revenue from the District. Crane, 814 F.2d at 763. As this Court previously explained, “[t]he
plaintiffs offer nothing concrete to suggest that any defendant” meets this plus factor, Order at 2,
and the plaintiffs have added no new allegations to the amended complaint that do so, see Pls.’
Opp. at 20 (citing “the promotional activities described above” as evidence of the plus factor). The
plaintiffs’ conclusory contention that the Film Defendants “derived a substantial profit from
residents in this District who bought movie tickets, streamed the movie online, rented the movie
on-demand, or purchased [related] merchandise” is also not enough. Id. They have provided no
evidence that the Film Defendants derived “enough revenue to indicate a commercial impact in
the [District], such that a defendant fairly could have expected to be hauled into court there.”
Delahanty v. Hinckley, 686 F. Supp. 920, 925 (D.D.C. 1986), aff’d, 900 F.2d 368 (D.C. Cir. 1990);
see FAC ¶¶ 58–59.
Because the plaintiffs have not shown that either prong of the District’s long-arm statute
applies, this Court does not have personal jurisdiction over the Film Defendants. The plaintiffs’
claims against the Film Defendants will therefore be dismissed under Rule 12(b)(2).
assuming that is true, the sole advertisement identified by the plaintiffs, Parker’s Instagram
posting, did not reference any theaters in either state.
8
2. Defendant Lee
For similar reasons, the plaintiffs also have not shown that either provision of the District’s
long-arm statute applies to defendant Lee. As to section 13-423(a)(1), the plaintiffs have not
shown that defendant Lee transacted any business related to this action in the District. See Daimler
AG v. Bauman, 571 U.S. 117, 127 (2014) (requiring that the action “arise[] out of or relate[] to”
the defendant’s contacts with the District (cleaned up)). The complaint alleges that Lee engaged
in three activities involving this District: (1) promoting American Skin, which was billed as “A
Spike Lee Presentation,” “after the Venice Film Festival,” FAC ¶ 28; (2) “serv[ing] on the
Advisory Board for AFI DOCS, the American Film Institute’s annual documentary festival
traditionally held in the Washington, DC area,” id. ¶ 29; and (3) “travel[ing] to this district on
December 16, 2021 to promote a new book about his filmmaking career,” id. The latter two
activities are irrelevant to the section 13-423(a)(1) analysis because Lee’s position on the AFI
DOCS Board and personal travel have no relation to this action.
Lee’s involvement in promoting American Skin is also insufficient to constitute transacting
business in the District because the plaintiffs have not shown that any of Lee’s promotional
activities were directed toward the District or its residents. As reflected in his contract with ASP
Film, Lee agreed to promote American Skin only “in connection with the screening of [the film]
at the 2019 Venice Film Festival,” and those “promotional services [were] the only services
provided by [Lee] in connection with [the film].” Grant Decl. Ex. A at 4, Dkt. 45-1. In exchange
for this promotion, he was given credit in the film through its listing as “A Spike Lee Presentation.”
Id. These activities are, by themselves, not sufficient to establish that Lee purposefully availed
himself of the District. See Hayes v. FM Broad. Station WETT, 930 F. Supp. 2d 145, 151–52
(D.D.C. 2013) (finding no jurisdiction where plaintiff’s allegations were “based solely on the
9
ability of District residents to access the defendants’ websites,” as “the defendants [did not]
purposefully avail[] themselves of the District of Columbia any more than they availed themselves
of every other jurisdiction in which their website was accessible” (cleaned up)). That a 2021
Business Insider article described Lee as “currently on the press tr[ai]l to promote the work of . . .
Nate Parker,” FAC ¶ 28, is not enough to establish otherwise.
As to section 13-423(a)(4), the plaintiffs have offered scant evidence of the requisite “plus
factor.” They make only the bare allegations that Lee traveled to the District one time in December
2021, that he serves on an advisory board for a festival traditionally held in the District, FAC ¶¶
27–29, and that he derived substantial revenues from the District for showings of American Skin,
Pls.’ Opp. at 20. For the reasons already explained above, and because one business trip to the
District does not constitute regular or persistent contact with the District, these contacts are
insufficient to establish that section 13-423(a)(4) applies. See Parsons v. Mains, 580 A.2d 1329,
1330–31 (D.C. 1990) (“Whatever the concept of a ‘continuous and persistent course of business’
means, it is not satisfied by the defendant’s entry of an appearance as counsel in two or at most
three matters . . . .”). The Court will therefore dismiss the plaintiffs’ claims against defendant Lee
pursuant to Rule 12(b)(2).
B. Sanctions
Defendant Lee’s motion to impose sanctions under Rule 11 of the Federal Rules of Civil
Procedure will be denied. Lee seeks sanctions because the plaintiffs failed to seek leave to file an
amended complaint. See Def.’s Mem. at 15–18, Dkt. 42-1. Because this Court’s Minute Order of
May 2, 2022 denied Lee’s previous motion to dismiss as moot, permitted the plaintiffs to file the
First Amended Complaint, and ordered Lee to respond to the amended complaint, the Court will
not award sanctions here. See Henok v. Chase Home Fin., LLC, 926 F. Supp. 2d 100, 104 (D.D.C.
10
2013) (“The district court is accorded wide discretion in determining whether sanctions are
appropriate.” (cleaned up)); Atkins v. Fischer, 232 F.R.D. 116, 126 (D.D.C. 2005) (“Since the 1993
amendments, the language of Rule 11 indicates that the imposition of sanctions is left to the
discretion of the district court judge.”).
CONCLUSION
For the foregoing reasons, the Court grants the Film Defendants’ motion to dismiss, grants
defendant Lee’s motion to dismiss, and denies defendant Lee’s motion to impose sanctions. A
separate order consistent with this decision accompanies this memorandum opinion.
________________________
DABNEY L. FRIEDRICH
United States District Judge
December 2, 2022
11