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Oshinskie v. O'Grady

United States District Court, D. New Jersey

October 25, 2018




         Before the Court is defendants' motion to dismiss for lack of personal jurisdiction and improper venue. (ECF No. 38). Plaintiff filed his opposition on August 6, 2018. (ECF No. 39). The Honorable Susan D. Wigenton, U.S.D.J., referred this motion to the undersigned for a Report and Recommendation. This motion is decided without oral argument pursuant to Rule 78 of the Federal Rules of Civil Procedure. Having considered the parties' written submissions and for good cause shown, the Court recommends that defendants' motion be GRANTED.

         I. BACKGROUND

         Plaintiff Mark Oshinskie is the author of an article entitled "How I Learned to Hate the Bomb: End the Three Point Shot in Basketball" (the "Article"). Plaintiff alleges that he published the Article online utilizing the platform and subsequently registered the Article with the United States Copyright Office. (Complaint ¶¶ 14-15, ECF No. 1). He further alleges that on December 2, 2015, defendant Jamie O'Grady solicited permission to republish the Article on his sports news website The Cauldron. (Id. ¶ 16). According to plaintiff, O'Grady promised that plaintiff would retain all rights over the Article, including the right to approve any edits to the Article prior to publication on The Cauldron; however, O'Grady allegedly made substantial revisions to the Article and published it on the Cauldron without notice to plaintiff or permission. (Id. ¶¶ 17-18, 20). Plaintiff seeks damages for copyright infringement, misappropriation of name or likeness, and breach of contract by fraud in the inducement.

         Defendants moved to dismiss the complaint for lack of personal jurisdiction pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure. (ECF No. 27). The Court granted plaintiff the opportunity to take jurisdictional discovery to support his opposition to the motion to dismiss. (ECF No. 34). Accordingly, plaintiff served jurisdictional interrogatories and document requests on defendants, who answered as follows.[1] Defendant O'Grady is the owner of the now defunct website, The Cauldron; he resides in North Carolina. (O'Grady Decl. ¶¶ 2, 5, ECF No. 39-6). O'Grady affirms that he has never lived in New Jersey, owned property in New Jersey, travelled to New Jersey for business related to The Cauldron, or conducted, ran, or owned any other business located or operated in New Jersey. (Id. ¶ 3).

         Defendant The Cauldron is a Delaware corporation, with its principal place of business in North Carolina. (Id., ¶¶ 4-5). The Cauldron published general sports-related content exclusively on the internet. (Id. ¶ 11). That content was free to users and could be accessed in any geographic area where users were located. (Id. ¶¶ 9, 11). The Cauldron's articles were not targeted at any particular state and were available anywhere the internet is accessible. (Id. ¶ 11). The Cauldron sourced content in three ways: (1) it paid contributors to create articles; (2) it accepted online submissions from amateurs seeking to be published without compensation; and (3) it solicited via email authors of articles previously published via to submit their articles for republication without compensation on The Cauldron. (Answers to Plaintiffs First Set of Interrogatories ¶ 11, ECF No. 39-3).

         All of The Cauldron's operations took place in O'Grady's home in North Carolina. (O'Grady Decl. ¶ 5). The Cauldron had no regular employees, nor did it employ any contract editors who worked or lived in New Jersey. (Id. ¶ 10). O'Grady himself edited the Article from his home in North Carolina. (Id.). None of The Cauldron's paid contributors lived in New Jersey, and due to the fact that unpaid contributors submitted their articles online, O'Grady does not know how many contributing writers, if any besides plaintiff, lived in New Jersey. (Answers to Plaintiffs Jurisdictional Interrogatories ¶ 3, ECF No. 39-4; O'Grady Decl. ¶ 8). The Cauldron's only source of revenue was, a corporation located in San Francisco, California. (O'Grady Decl. ¶ 12).

         The parties' interactions occurred entirely in cyberspace. After plaintiff initially published the Article on, O'Grady clicked a button within the Medium platform, which generated an email to plaintiff requesting that he submit the Article to The Cauldron. (Answers to Plaintiffs Jurisdictional Interrogatories ¶ 12). Defendant communicated with plaintiff about the publication of the Article exclusively through email. (O'Grady Decl. ¶ 6; Pearce Cert. Ex. A, ECF No. 39-2). O'Grady was unaware of the fact that he was communicating with someone located in New Jersey. (O'Grady Decl. ¶ 7). Plaintiff never informed O'Grady that he resides and wrote the Article in New Jersey. (Id.).

         Following the close of jurisdictional discovery, defendants renewed their motion to dismiss for lack of personal jurisdiction and improper venue. (ECF No. 38). In opposition, plaintiff submitted email correspondence between plaintiff and O'Grady, certain of O'Grady's interrogatory responses, O'Grady's July 26, 2018 declaration, and a February 22, 2017 Yahoo Finance article regarding the failed $1.8 million acquisition of The Cauldron by Chat Sports. (Pearce Cert., Exs. A-E, ECF No. 39-1-39-6).


         For the reasons set forth below, the undersigned recommends the District Court find that plaintiff has not met his burden to show the existence of personal jurisdiction or that venue in the District of New Jersey is appropriate.

         A. Personal Jurisdiction

         When a defendant challenges the Court's exercise of personal jurisdiction, plaintiff bears the burden of proving that jurisdiction is proper. Metcalfe v. Renaissance Marine, Inc., 566 F.3d 324, 330 (3d Cir. 2009). Where the district court does not hold an evidentiary hearing, plaintiff must establish only a prima facie case of personal jurisdiction. Miller Yacht Sales, Inc. v. Smith, 384 F.3d 93, 97 (3d Cir. 2004). Under a. prima facie standard, "the plaintiffs allegations are presumed true and all factual disputes are resolved in the plaintiffs favor." LaSala v. Marfin Popular Bank Pub. Co., Ltd., 410 Fed.Appx. 474, 476 (3d Cir. 2011). Once the motion is made, however, and plaintiffs allegations are challenged by affidavits or other evidence, "plaintiff must respond with actual proofs, not mere allegations." Patterson by Patterson v. FBI, 893 F.2d 595, 604 (3d Cir. 1990) (citation omitted); see also Metcalfe, 566 F.3d at 330 ('"[O]nce a defendant has raised a jurisdictional defense,' the plaintiff must 'prov[e] by affidavits or other competent evidence that jurisdiction is proper.'") (quoting Dayhoff Inc. v. H.J. Heinz Co., 86 F.3d 1287, 1302 (3d Cir. 1996)). Plaintiff ultimately must prove the existence of jurisdiction by a preponderance of the evidence, although such a showing is unnecessary at the preliminary stages of litigation. LaSala, 410 Fed.Appx. at 476; UHS of Delaware, Inc. v. United Health Servs., Inc., No. 12-cv-485, 2013 WL 12086321, at *4 n.l (M.D. Pa. Mar. 26, 2013) ("[A]lthough the burden of persuasion always lies with the non-moving party, the burden of production rests initially with the party moving for dismissal under Rule 12(b)(2).").

         A federal court in New Jersey exercises jurisdiction to the extent permitted by New Jersey law. See Miller Yacht Sales, 384 F.3d at 96. New Jersey's long-arm statute permits the exercise of jurisdiction over non-residents '"to the uttermost limits permitted by the United States Constitution.'" Charles Gendler & Co., Inc. v. Telecom Equip. Corp.,102 N.J. 460, 469 (1986) (quoting Avdel Corp. v. Mecure,58 N.J. 264, 268 (1971)). Therefore, "we ask whether, under the Due Process Clause, the defendant has certain minimum contacts with [New Jersey] such that the maintenance of the suit does not offend traditional notions ...

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