ALETA A. TRAUGER, District Judge.
Pending before the court are motions to dismiss for lack of personal jurisdiction
Plaintiff One Media IP Limited, as successor-in-interest to Telos Holdings, Inc. d/b/a Point Classics ("One Media"), is a corporation organized under the laws of the United Kingdom. Defendant SAAR is an Italian company, defendant Believe is a French company, defendant Henry Hadaway is a U.K. citizen, and defendants Hadaway Organisation Limited and HHO Licensing Limited (both affiliated with Hadaway himself) (collectively with Hadaway, the "Hadaway Defendants") are U.K. companies. One Media alleges that the defendants infringed its copyright interests in a set of classical music recordings, which the court will refer to as the "Catalog." SAAR and Believe have filed separate motions to dismiss under Rule 12(b)(2), contending that the court lacks personal jurisdiction over them.
After reviewing the parties' briefs, the court permitted the parties to conduct limited jurisdictional discovery. (Docket No. 65.) The parties conducted discovery and have filed additional briefs and evidentiary materials. The court's summary of the facts is drawn from the parties' submissions, including declarations and other evidentiary materials (some authenticated, some not). (See, e.g., Docket Nos. 19, 22, 28, 45, 63, 68, and 69.)
Through a series of assignments, corporate mergers, and the like, chain of title to One Media's copyright interest in the Catalog traces back to the 1980s.
In June 2000, title to the Catalog shifted to a series of United States-based companies affiliated with an American individual named Jim Long. On June 23, 2000, Long's company OneMusic Corporation ("OneMusic"), a Texas corporation for which Long served as CEO, acquired the rights to the Catalog. On November 1, 2000, OneMusic assigned its interest in the Catalog to Point Classics, LLC (the "LLC"), a Tennessee limited liability company of which Long was a Member. (See Docket No. 68, Exs. A and B (Resp. to Interrogatory No. 14.).)
The Amended Complaint alleges that, on August 18, 2006, the LLC entered into a three-year limited licensing agreement with Henry Hadaway Organisation Limited ("HHO # 1") related to the Catalog (the "PC/HHO # 1 License"). According to the Amended Complaint, the PC/HHO # 1 License expressly forbade HHO # 1 from granting sublicenses related to the Catalog.
On December 11, 2007, the LLC filed Articles of Termination (bearing Long's December 8, 2007 signature) with the Tennessee Secretary of State. (See O'Malley Decl., Ex. H.) On December 18, 2007, the LLC filed a Notice of Dissolution (bearing the December 1, 2007 signature of Robert Sullivan as "Attorney" for the LLC), which indicated that the LLC's members had approved the company's dissolution. A notice from the Tennessee Secretary of State indicates that the effective date of the dissolution was December 18, 2007. According to One Media, the Tennessee Secretary of State never accepted or recorded the LLC's Articles of Termination.
Although the plaintiff continues to represent that the LLC conducted "winding down business activities" after 2007, it has not provided evidence of actual business activity after December 31, 2007.
On July 17, 2009, Telos informed Hadaway that, effective August 18, 2009 (the last date of the three-year term), the PC/HHO # 1 License would be terminated.
On July 1, 2014, Telos sold its interests in the Catalog to the plaintiff, One Media, a British company that does not appear to be affiliated with Jim Long. In the agreement, Telos represented that it owned, controlled, and had exclusive rights to the exploitation of the Catalog and that it agreed to assign to One Media "all of its rights in and to the Catalog[.]" (O'Malley Decl., Ex. F.) The agreement defined the "rights" conveyed as "the exclusive right throughout the world and its solar system to exploit and use the Recordings by all and any means and in all media for the life of copyright of the Recordings...." The agreement also indicated that Telos irrevocably assigned "all and any of Telos's right to receive accountings and payments from Licensees pursuant to the terms of the Licenses," as well as "all and any of Telos's rights in territories outside of the United States of America in and to the words `Point Classics' and the distinctive hand and baton design...." The agreement also contains a representation by Telos that "all Rights in and to the Catalogue were assigned by Point Classics to Telos pursuant to an agreement in writing dated 31
On October 3, 2014 — several months after selling its rights to One Media in July 2014 — Telos recorded with the Library of Congress an assignment of rights from Point Classics LLC. As best the court can discern, the recordation document reflected the December 2007 transfer of interests in the Catalog from the LLC to Telos (as opposed to a contemporaneous transaction between those two entities). On the same date, the LLC and Telos entered into an "Assignment of Copyrights," in which Telos states that it "heretofore acquired all of the assets of Point Classics" in the Catalog and "desires to transfer all such rights" to One Media.
SAAR and Believe have distributed recordings of the Catalog under license agreements that One Media claims were not valid. One Media contends that, from the year 2000 forward, it only licensed the Catalog to a Hadaway entity once, specifically for the three-year period from August 2006 to August 2009 (under the PC/HHO # 1 License), and that the three-year license prohibited HHO # 1 from sublicensing the Catalog. Three sets of licensing transactions involving a Hadaway entity, SAAR, Believe, or a predecessor-in-interest to Believe indicate that licensing activity occurred outside the PC/HHO # 1 License.
First, on March 1, 2000 (a few months before Long's company, OneMusic, acquired the Catalog in July 2000), defendant HHO Licensing Limited ("HHO # 2") entered into a licensing agreement with SAAR ("SAAR/HHO # 2 Agreement").
Second, on October 15, 2007, SAAR and a company called MTunes Digital Distribution GmbH ("MTunes") entered into a "Non Exclusive License Agreement [for] Digital Music Distribution" (the "MTunes/SAAR Agreement"). (Docket No. 68, Ex. H.) In the MTunes/SAAR Agreement, SAAR represented that it "owns or controls" digital distribution rights in an attached list (presumably including the Catalog), while MTunes represented that it owned, operated, and controlled "an infrastructure based on software technology, related databases and file servers for the purpose to make Master Recordings available to consumers for purchase as downloads of digital files [illegible] Partner Websites." As the court understands the agreement, it essentially constituted a sublicense from SAAR to MTunes, which marketed the sublicensed digital music files "worldwide" through third-party websites (with which it had existing contractual relationships) for retail sale to consumers. The agreement was entered into in Hamburg, Germany and stated that it would be governed by German law. In approximately October 2008, Believe acquired MTunes and became its successor-in-interest relative to this agreement. In its initial submissions to the court concerning its Rule 12(b)(2) motion, Believe made no mention of the MTunes/SAAR Agreement.
Third, in April 2013, Believe entered into a distribution agreement with SAAR (the "Believe/SAAR Agreement"), whereby Believe acquired a sublicense from SAAR to distribute SAAR's recordings and music videos through Believe's digital distribution network (again, the third-party websites with which Believe had existing relationships, such as iTunes). (Docket No. 68, Ex. I.) The agreement defined the relevant territory as the "World."
In August 2013, Telos allegedly discovered that SAAR was marketing portions of the Catalog on SAAR's website and that recordings that Telos had not licensed were presently available for retail sale on third-party websites such as iTunes. On
At some point, Telos also discovered Believe involvement in the potentially infringing activity, pursuant to its sublicense from SAAR and its agreements with online retail music websites. The plaintiff asserts that Telos sent one or more cease and desist letters to Believe as well. One Media contends that, for at least some period of time after being notified of the potential infringement, both SAAR and Believe continued to permit the online sale of the Catalog in the United States and United Kingdom iTunes stores.
Believe is a "digital music aggregator" that obtains licenses from music rights holders and, in turn, sub-licenses those rights to digital music distributors such as Amazon.com and iTunes, which sell music files to consumers at the retail level.
For example, effective November 5, 2006, Believe entered into an agreement with Amazon Digital Services, Inc. ("Amazon") (a Washington state company), whereby Believe sublicensed its interests in certain digital music files in the Catalog to Amazon for retail sale within "[t]he United States of America, its territories and possessions." (O'Malley Decl., Ex. C (at Page ID # 2194-2197).) The agreement states that it is governed by Washington law and contains a forum selection clause requiring any disputes to be litigated in King County, Washington. (Id.) Similarly, effective August 16, 2011, Believe entered into a Content License Agreement with Google, Inc. (a Delaware corporation with offices in California), whereby Believe granted to Google digital files for sale in the "Google Music Store." (O'Malley Decl. Ex. C. (at Page ID # 2198-2209).) The "territory" covered by the agreement is defined as "the world[.]" The agreement states that it is governed by California law and that all disputes must be litigated in Santa Clara, California. (Id.) Believe entered into similar agreements with other retail distributors having no relationship to Tennessee, such as Google/YouTube ("world" territory, governed by English law, venued in English courts), Spotify (a Swedish corporation, "world" territory, governed by English and Welsh law, venued in English courts), and iTunes (a California company, "territory" defined as the U.S. and numerous other Central and South American countries, governed by California law, venued in the Northern District of California), among others. (Id. at Page ID # 2202-2218.) In each of these agreements, Believe agreed to deliver digital files to the distributors, who controlled the music on their own servers from that point forward. The record
Excluding two purchases by plaintiff's counsel, Believe's records reflect only nine downloads (eight single tracks and one album) by Tennessee consumers over a six-year period. (O'Malley Decl., Ex. D.)
Believe is not licensed or qualified to do business in Tennessee, it has not appointed an agent for service of process in Tennessee, it has no employees in Tennessee, it does not own or lease real or personal property in Tennessee, it is does not maintain bank accounts in Tennessee, it has not negotiated or entered into any contracts, license agreements, or distribution agreements in Tennessee, it does not do business in Tennessee, and it has not conducted any business in Tennessee or collected license fees in Tennessee.
SAAR is a digital music aggregator that obtains licenses to digital music recordings and sublicenses them to other music aggregators (such as Believe), which in turn sublicense the recordings to retail music websites such as iTunes.
As explained in a previous section, SAAR entered into (1) the March 2000 SAAR/HHO # 2 Agreement that (purportedly) gave it a limited right to market the Catalog, (2) the October 2007 SAAR/MTunes Agreement that granted MTunes worldwide distribution rights, and (3) the October 2013 SAAR/Believe Agreement that granted Believe worldwide distribution rights.
SAAR operates an Italian-language website (www.saarrecords.it or www.saarrecords.com/ita). Certain links on the website allow users to access videos and music recordings, but none of the recordings are available for direct sale from SAAR. Users can search SAAR's catalog of music and can click on links that redirect them to iTunes to purchase the music. Users may also search SAAR's catalog and request licenses from it. The plaintiff has
SAAR is not licensed to do business in Tennessee, it has not appointed an agent for service of process in Tennessee, it has no offices or facilities in Tennessee, it does not own or lease any property in Tennessee, it has not negotiated any contracts or entered into any contracts in Tennessee, it conducts no business in Tennessee, and it has not paid or collected any licensing fees in Tennessee.
On April 8, 2014, Telos filed a Complaint against SAAR and "Believe Digital," alleging federal copyright infringement claims, with respect to which it requested declaratory and injunctive relief. (Docket No. 1.)
As discussed above, on July 1, 2014, Telos transferred its interests in the Catalog to One Media. Accordingly, on July 30, 2014, One Media filed a First Amended Complaint ("FAC") that (1) substituted "One Media IP Limited as successor-in-interest to Telos Holdings, Inc." as the plaintiff; (2) restyled the "Believe" defendant as "Believe SAS d/b/a Believe Digital Group and Believe US"; and (3) added the Hadaway Defendants and several unnamed "John Doe" entities as defendants.
In contrast to SAAR and Believe, the Hadaway Defendants failed to respond to the FAC. On October 21, 2014, upon motion, the Clerk entered a Notice of Default against the Hadaway Entities. (Docket No. 56.) The plaintiff has not moved for a default judgment.
On August 14, 2014, SAAR filed a Motion to Dismiss under Fed.R.Civ.P. 12(b)(2). (Docket No. 19.) On September 24, 2014, Believe filed a Motion to Dismiss under Fed.R.Civ.P. 12(b)(2). (Docket No. 38.)
To survive a motion to dismiss for lack of personal jurisdiction under Fed. R.Civ.P. 12(b)(2), a plaintiff must prove that jurisdiction is proper over each defendant individually. SFS Check, LLC v. First Bank of Del., 774 F.3d 351, 355-56 (6th Cir.2014). Thus, One Media, as the party seeking assertion of personal jurisdiction, bears the burden of showing that personal jurisdiction exists. Theunissen v. Matthews, 935 F.2d 1454, 1458 (6th Cir. 1991); see also CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1261-62 (6th Cir. 1996). When, as here, the district court allows discovery on the motion, the court should consider the facts offered by both parties and rule according to the preponderance of the evidence. SFS Check, 774 F.3d at 356. Because the court finds no "real dispute" concerning the facts or the extent of discovery, there is no need for an evidentiary hearing, and the burden is on One Media to show that jurisdiction exists over each defendant by a preponderance of the evidence. Dean v. Motel 6 Operating L.P., 134 F.3d 1269, 1272 (6th Cir.1998).
The plaintiff concedes that the court lacks general personal jurisdiction over SAAR and Believe. The parties agree that the motion turns on whether the court has specific personal jurisdiction over those defendants, that the federal and Tennessee minimum contacts analysis merge into a federal due process analysis because Tennessee's Long-Arm Statute reaches to federal constitutional limits, and that the court must therefore apply the three-part Mohasco test set forth by the Sixth Circuit. See S. Mach. Co. v. Mohasco Indus., Inc., 401 F.2d 374, 381 (6th Cir.1968). The Mohasco test has three elements, all of which must be met for personal jurisdiction to be found:
Id. Although all three elements must be satisfied, it is the "purposeful availment" element of the test that is the sine qua non of specific personal jurisdiction. Id. at 381-82.
With respect to purposeful availment, the Sixth Circuit has adopted the "stream of commerce `plus' approach," under which "[t]he placement of a product into the stream of commerce, without more, is not an act of the defendant purposely directed toward the forum State." Bridgeport Music, Inc. v. Still N The Water Publ'g, 327 F.3d 472, 479-80 (6th Cir. 2003) (quoting Asahi Metal Indus. Co., Ltd. v. Superior Court, 480 U.S. 102, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987) (O'Connor, J.) (plurality op.)). As described in Bridgeport:
327 F.3d at 478-79 (internal citations, quotations, and brackets omitted).
Personal jurisdiction requires a forum-by-forum analysis. J. McIntyre Mach. v. Nicastro, ___ U.S. ___, 131 S.Ct. 2780, 2789, 180 L.Ed.2d 765 (2011). "The question is whether a defendant has followed a course of conduct directed at the society or economy within the jurisdiction of a given sovereign." Id. Courts within this circuit agree that, because the Supreme Court in Nicastro did not resolve the circuit split concerning the "stream of commerce" approach and the "stream of commerce plus" approach, the Sixth Circuit's "stream of commerce plus" approach continues to control. See, e.g., Lindsey v. Cargotec USA, Inc., 2011 WL 4587583, at *7 (W.D.Ky. Sept. 30, 2011) (discussing continuing validity of Bridgeport standard post-Nicastro).
In Eaves v. Pirelli Tire, 2014 WL 1883791 (D.Kan. May 12, 2014) — a case relied upon by Believe — a federal district court examined the post-Nicastro landscape in detail and identified the following factors that federal courts had found to be relevant to the purposeful availment analysis in the stream of commerce plus context: (1) the defendant's direction or control over the flow of the product into the forum; (2) the quantity of the defendant's particular product regularly flowing into the forum; and (3) the distinctive features of the forum that connect it with the product in question. Id. at *14. Here, the court finds these factors to be relevant considerations in the purposeful availment analysis.
As to websites, a defendant purposely avails itself of the privilege of acting in a state through its website if the website is interactive to a degree that reveals specifically intended interaction with residents of the state. Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d 883 (6th Cir.2002) (citing Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119, 1124 (W.D.Pa.1997)). "The level of contact with a state that occurs simply from the fact of a website's availability on the Internet is therefore an `attenuated' contact that falls short of purposeful availment." Neogen, 282 F.3d at 890. Under the Zippo "sliding-scale" test, which the Sixth Circuit endorsed in Neogen, the sliding scale ranges from "one end of the spectrum ... where a defendant clearly does business over the internet," in which case jurisdiction is proper, to the "opposite end ... where a defendant has simply posted information on an Internet [website] which is accessible to users in foreign jurisdictions[,]" in
One Media has not met its burden to show that Believe purposely availed itself of the privilege of transacting business in Tennessee.
First, Believe did not control the flow of product into Tennessee specifically. Believe contracted with retail distribution websites located outside of Tennessee, those distributors controlled the digital files outside of Tennessee after delivery from Believe, and users contracted with those entities (not Believe) to purchase the digital files. Thus, Believe did not directly contract with end consumers in Tennessee. Furthermore, none of the contracts with retail websites is specific to Tennessee (as opposed to the United States as a whole or the entire world), none of the contracting parties were Tennessee entities, and none of the contracts were formed in Tennessee or invoked Tennessee law. The plaintiffs have not shown that Believe specifically marketed its product to Tennesseans directly or indirectly or that Believe otherwise specifically directed any sales to occur in Tennessee. Believe's broad intention to target the United States through a third party is not sufficient to establish purposeful availment. See, e.g., Williams v. Romarm, 756 F.3d 777, 785 (D.C.Cir.2014); AESP v. Signamax, 29 F.Supp.3d 683, 69091 (E.D.Va.2014) (no specific personal jurisdiction when "record reflects no more than that defendant might expect that the products would eventually be sold somewhere in the United States, including [the forum state]"). As explained in Bridgeport, knowledge that a licensee was likely to distribute compositions nationally, coupled with its lack of objection to Tennessee sales, if such sales were ever to occur, is insufficient conduct upon which to predicate purposeful availment. 327 F.3d at 480.
Second, the quantity of recordings that end users ultimately purchased from third parties with whom Believe contracted is negligible — just nine relevant downloads over a six-year period. In opposition to Believe's argument on this point, the plaintiff references several out-of-circuit cases concerning whether the plaintiffs sufficiently pleaded or proved claims for vicarious copyright infringement under the Rule 12(b)(6) or Rule 56 standard, a legally (and procedurally) distinct issue that sheds no light on the personal jurisdiction minimum contacts analysis here. See Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259 (9th Cir.1996) (determining that plaintiff sufficiently alleged a vicarious contributory copyright infringement claim against a flea market operator); Polygram Int'l Publ'g, Inc. v. Nevada/TIG, Inc., 855 F.Supp. 1314 (1994) (granting summary judgment to operators of awards ceremony, where plaintiffs failed to prove requisite elements of vicarious copyright liability claim); Gershwin Publ'g Corp. v. Columbia Artists Mgmt., 443 F.2d 1159 (2d Cir.1971) (holding that concert promoter could be held vicariously liable for infringement by performing artists in concerts that it organized and promoted). This factor weighs strongly against a finding of purposeful availment.
Third, there are no distinctive features of Tennessee that connect it with the recordings in the Catalog. The recordings
Finally, Believe operates a non-interactive website that is accessible throughout the world. It offers nothing for sale on the website. The website evinces no interactivity directed at Tennessee and provides no support for exercising personal jurisdiction over Believe.
Given that all relevant factors weigh against a finding of purposeful availment, the court finds that the plaintiff has not demonstrated that Believe purposely availed itself of the privilege of transacting business in Tennessee.
This element presents a more nuanced question than the defendants acknowledge. One Media alleges that SAAR and Believe marketed the Catalog worldwide without a valid license. Does that broad infringement claim "arise from" the handful of consumer downloads from third-party websites that took place in Tennessee? As explained in the previous section, the court has found that the downloads — even if the product of infringement — did not amount to purposeful availment in Tennessee relative to Believe under the stream of commerce plus approach. Having reached that conclusion, the court is constrained to find that One Media's claims do not "arise from" contacts that are insufficient to establish purposeful availment in the first place.
The final element of the Mohasco test is whether the acts of the defendant or consequences caused by the defendant have a sufficient connection with the forum state to make the exercise of personal jurisdiction reasonable. This element turns on whether Tennessee has an interest in resolving the conflict. Mohasco, 401 F.2d at 384.
Particularly in its pre-discovery submissions to the court, the plaintiff has devoted much of its attention to establishing this element of the Mohasco test. In an effort to do so, it has maintained that the LLC's relationship to this lawsuit implicates a strong Tennessee connection because the LLC has a present financial interest in the lawsuit and because it continues to be injured by the defendants' infringing activity.
The plaintiff's representations concerning the LLC are misleading. The LLC sold its assets to Telos in December 2007 and should have dissolved immediately thereafter. However, it appears that the LLC simply erred in completing some of the necessary paperwork, such as (1) filing Articles of Termination after spinning off its assets and notifying the Tennessee Secretary of State of its intention to dissolve, and (2) informing the Library of Congress of the assignment from the LLC to Telos. This apparent lack of diligence required some "housecleaning" efforts when Telos sold its interests in the Catalog to One Media in July 2014. After the asset transfer, in December 2007, Telos also appeared
Even if it were the case that infringing activity before December 2007 were relevant to the minimum contacts analysis, the plaintiff has not adduced evidence showing that any Tennessee customers actually downloaded Catalog recordings before December 2007. Absent any infringing activity relative to Tennessee consumers before December 2007, the loose affiliation between the LLC and Tennessee is essentially irrelevant. In light of these conclusions, the court finds that the plaintiff has not shown that it would be reasonable for the court to exercise personal jurisdiction over Believe.
In sum, the plaintiff has not satisfied any of the Mohasco factors relative to Believe. The court will therefore dismiss all claims against Believe for lack of personal jurisdiction.
As an initial matter, for essentially the same reasons as Believe, the plaintiff has not shown that SAAR has sufficient minimum contacts with Tennessee. Moreover, the evidence relative to SAAR is even weaker than the evidence relative to Believe.
The plaintiff has not shown purposeful availment by SAAR relative to Tennessee. SAAR sublicensed the recordings for "worldwide" distribution, evincing no intent to market the product in Tennessee specifically. SAAR's agreements were entered into in Europe and bore no relationship to Tennessee. The plaintiff has not shown that SAAR controlled the flow of downloads into the United States or Tennessee specifically (through third parties or otherwise). The handful of downloads at issue (nine, according to Believe's records) have not been traced to SAAR's website and, even if the downloads were traceable to SAAR's licensing agreement with Believe, the number of downloads is commercially insignificant. Also, the plaintiff has not shown that SAAR made purchases of the recordings available on its website or that any Tennessee consumers actually utilized SAAR's website to do so.
Because SAAR has no contacts with Tennessee other than directing that another distribute to market the recordings throughout the world, there is no basis to conclude that the plaintiff's claims "arise from" SAAR's contacts with this forum.
It would not be reasonable to exercise jurisdiction over SAAR here. It is an Italian company with a principal place of business in Italy, it operates a universally accessible Italian language website that does not target Tennessee, and it does not make purchases available for sale on its website. The plaintiff has not shown that SAAR caused, or that it intended to cause, consequences in Tennessee (namely, the
In sum, the court finds that the plaintiff has not established any element of the Mohasco test relative to SAAR. The court will therefore dismiss all claims against SAAR for lack of personal jurisdiction.
The plaintiff argues that it is unfair to allow foreign music distributors to insulate themselves from liability for wrongdoing simply by using a national or worldwide online retail distributor (such as iTunes) to avoid the "minimum contacts" necessary to support personal jurisdiction in any particular State.
This is a legitimate policy argument, particularly in instances where, as here, the infringing online sales are relatively diffuse across states and, in absolute terms, relatively minimal in any particular state. In some sense, under current legal doctrines, an online music distributor can allow for purchases by Americans without actually creating sufficient contacts in any particular state to satisfy the Mohasco test. This could force domestic music rights holders to litigate against foreign music distributors on their home turf (in France, the UK, or Italy, for example), which could become prohibitively expensive and less predictable for plaintiffs than litigating in American courts accustomed to adjudicating infringement claims under the Copyright Act. Viewed through this lens, the plaintiff's attempt to litigate against distributors such as Believe and SAAR in Tennessee (or in any other state in which an infringing download is made) may be more legitimate than Believe and SAAR acknowledge.
Here, the court's concern is alleviated by the facts that (1) Tennessee has no meaningful connection to the claims, and (2) the plaintiff is (at least now) a British entity that can obtain recourse through European courts, with which it may be more familiar than Telos. Be that as it may, if there is a fundamental problem with the Sixth Circuit Mohasco standard as it applies to worldwide or nationwide distribution agreements entered into by foreign online music distributors, it will be for the Sixth Circuit (not the district court) to redefine the legal standard to address that specific context — assuming that it can be done within Constitutional due process limits.
In its post-discovery supplemental brief, the plaintiff purports to move the court to transfer the case to the Eastern District of New York under 28 U.S.C. §§ 1404 or 1406. As Believe points out, the request is procedurally improper under M.D. Tenn. Civ. L.R. 7.01(a). The court will deny this request on procedural grounds, without expressing any opinion concerning the propriety of jurisdiction in New York.
The Clerk previously entered a default judgment against the Hadaway Defendants. The court's disposition of the motions will result in the dismissal of Believe and SAAR on jurisdictional grounds, but it will not resolve the pending claims against the Hadaway Defendants. The court therefore will set a deadline for the plaintiff
For the reasons stated herein, the Rule 12(b)(2) motions filed by Believe and SAAR will be granted, claims against Believe and SAAR will be dismissed, and the court will order further proceedings relative to the Hadaway Defendants.
An appropriate order will enter.
