United States District Court, D. New Jersey
REPORT AND RECOMMENDATION
DUNN WETTRE, UNITED STATES MAGISTRATE JUDGE.
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
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
Medium.com 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.
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. 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).
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
Medium.com to submit their articles for
republication without compensation on The Cauldron. (Answers
to Plaintiffs First Set of Interrogatories ¶ 11, ECF No.
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
Medium.com, a corporation located in San Francisco,
California. (O'Grady Decl. ¶ 12).
parties' interactions occurred entirely in cyberspace.
After plaintiff initially published the Article on
Medium.com, 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
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).
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.
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
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 ...