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Quill Ink Books Ltd. v. ABCD Graphics And Design Inc.

United States District Court, W.D. Oklahoma

February 13, 2019

QUILL INK BOOKS LIMITED, a foreign corporation, Plaintiff,
ABCD GRAPHICS AND DESIGN, INC., d/b/a BLUSHING BOOKS PUBLISHING, a foreign corporation, et al., Defendants.



         Now before the Court is Defendant Rachelle Soto's Motion to Dismiss for Lack of Personal Jurisdiction and Improper Venue, or in the alternative, to Transfer (Doc. No. 18). Plaintiff Quill Ink Books Limited has responded (Doc. No. 21), and Defendant Soto has replied (Doc. No. 24). Upon consideration of the parties' submissions, the Court grants the Motion.

         Factual Background

         Plaintiff is an international book publisher with its principal place of business in London, England. Plaintiff brings this action against: Rachelle Soto, an author who resides in Virginia; Defendant Soto's book publisher Blushing Books Publishing (“Blushing Books”), whose principal place of business is in Virginia; and unknown Jane Does and John Does. See Am. Compl. (Doc. No. 6) ¶¶ 8, 10-12. Between January and May 2018, Plaintiff published a three-book romance series titled Myth of Omega. Plaintiff released the first two books of the series to online vendors of e-books and printed books, including Draft2Digital, Amazon, Barnes and Noble, iTunes Apple, Rakuten-Kobo, and Google Play. Id. ¶¶ 41, 43, 46. Plaintiff alleges that following this release, Defendants Soto[1] and Blushing Books submitted notifications of copyright infringement to these online vendors pursuant to the Digital Millennium Copyright Act (“DMCA”), see 17 U.S.C. § 512, [2] in which they claimed that the Myth of Omega series plagiarized Defendant Soto's former works and requested that the vendors cease their sale of the books. Plaintiff contends that Defendants' DMCA notices contained misrepresentations and “false copyright claims.” Am. Compl. ¶¶ 73, 76. Plaintiff now seeks declaratory judgment, damages, and injunctive relief for copyright misuse, misrepresentation of copyright claims under the DMCA, negligence, tortious interference with economic advantage, tortious interference with contract or business relations, defamation, false light, and civil conspiracy. See Id. ¶¶ 1, 66-112; see also 17 U.S.C. § 512(c), (f).

         Defendant Soto has moved for dismissal under Federal Rules of Civil Procedure 12(b)(2) and 12(b)(3) for lack of personal jurisdiction and improper venue. Alternatively, Defendant Soto requests transfer of this action pursuant to 28 U.S.C. § 1404(a). See Def. Soto Mot. (Doc. No. 18) at 1-18.

         Standards Governing Personal Jurisdiction

         Where the Court's jurisdiction over a defendant is contested, the plaintiff bears the burden of proving that jurisdiction exists. See Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir. 1995); Benton v. Cameco Corp., 375 F.3d 1070, 1074 (10th Cir. 2004). In the preliminary stages of litigation, however, “the plaintiff's burden is light.” AST Sports Sci., Inc. v. CLF Distrib. Ltd., 514 F.3d 1054, 1056 (10th Cir. 2008). When a district court considers a pretrial motion to dismiss for lack of personal jurisdiction without conducting an evidentiary hearing, “the plaintiff need only make a prima facie showing of personal jurisdiction to defeat the motion.” Id. at 1057 (citing OMI Holdings, Inc. v. Royal Ins. Co. of Can., 149 F.3d 1086, 1091 (10th Cir. 1998)).

         For purposes of the plaintiff's prima facie case, the allegations in the complaint are accepted as true but only to the extent they are uncontroverted by the defendant's affidavits. Shrader v. Biddinger, 633 F.3d 1235, 1248 (10th Cir. 2011). “If the parties present conflicting affidavits, all factual disputes must be resolved in the plaintiff's favor, and the plaintiff's prima facie showing is sufficient notwithstanding the contrary presentation by the moving party.” Wenz, 55 F.3d at 1505 (internal quotation marks omitted).

         When considering whether personal jurisdiction is proper in a federal question case, federal courts 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.” Peay v. BellSouth Med. Assistance Plan, 205 F.3d 1206, 1209 (10th Cir. 2000) (internal quotation marks omitted) (citing Republic of Panama v. BCCI Holdings (Lux.) S.A., 119 F.3d 935, 942 (11th Cir. 1997)). Because “neither the federal Copyright Act, 17 U.S.C. § 101 et seq., nor the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq, provides for nationwide service of process, ” Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1070 (10th Cir. 2008), the question of whether there is statutory authorization to serve a defendant in this matter is resolved by reference to Rule 4(k)(1)(A) of the Federal Rules of Civil Procedure, which commands that the district court apply the law of the state in which the district court sits. See id. Oklahoma has enacted a “long-arm” statute that authorizes its courts to exercise jurisdiction to the maximum extent permitted by the federal Constitution. Rambo v. Am. S. Ins. Co., 839 F.2d 1415, 1416-17 (10th Cir. 1988); see Okla. Stat. tit. 12, § 2004(F). Accordingly, the Court's inquiry is reduced to a single question: whether the Court's exercise of jurisdiction over Defendant Soto is consistent with constitutional due process. See Shrader, 633 F.3d at 1239; Intercon, Inc. v. Bell Atl. Internet Sols., Inc., 205 F.3d 1244, 1247 (10th Cir. 2000).

         The due process standard requires “minimum contacts” between the defendant and the forum state and that the exercise of jurisdiction comports with “traditional notions of fair play and substantial justice.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291-92 (1980) (internal quotation marks omitted). The “minimum contacts” standard may be satisfied by showing either general or specific jurisdiction. See OMI Holdings, Inc., 149 F.3d at 1090-91. In this case, the only basis of jurisdiction over Defendant Soto reasonably implicated by the factual allegations of Plaintiff's pleading and affidavit is specific jurisdiction. See Pl.'s Resp. (Doc. No. 21) at 18-27; Coale Aff. (Pl.'s Resp. Ex. 1 (Doc. No. 21-1)) at 1-3.

         Specific jurisdiction “requires, first, that the out-of-state defendant must have ‘purposefully directed' its activities at residents of the forum state, and second, that the plaintiff's injuries must ‘arise out of' defendant's forum-related activities.” Dudnikov, 514 F.3d at 1071 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985)). The first element can take various forms. Id. In noncontract actions such as this, “‘purposeful direction' has three elements: ‘(a) an intentional action . . . that was (b) expressly aimed at the forum state . . . with (c) knowledge that the brunt of the injury would be felt in the forum state.'” Newsome v. Gallacher, 722 F.3d 1257, 1264-65 (10th Cir. 2013) (omissions in original) (quoting Dudnikov, 514 F.3d at 1072).


         Plaintiff proffers two arguments in support of this Court's exercise of jurisdiction over Defendant Soto. First, Plaintiff argues that Defendant Soto's submission of the DMCA notice to Draft2Digital, a distributor that has its principal address in Oklahoma, constituted a contact with Oklahoma sufficient to satisfy the requirements of specific personal jurisdiction. See Pl.'s Resp. at 21-25; Am. Compl. ¶¶ 8, 44. Second, Plaintiff submits that Defendant Soto's alleged tortious interference with Plaintiff's contract with Draft2Digital constitutes an independent basis for exercising specific personal jurisdiction over Defendant Soto. See Pl.'s Resp. at 26-27; Am. Compl. ¶¶ 87-91.

         A. Th ...

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