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Photographic Illustrators Corp. v. A.W. Graham Lumber, LLC

United States District Court, D. Massachusetts

June 27, 2016

PHOTOGRAPHIC ILLUSTRATORS CORPORATION, Plaintiff,
v.
A.W. GRAHAM LUMBER, LLC, Defendant.

          MEMORANDUM AND ORDER

          PATTI B. SARIS Chief United States District Judge.

         INTRODUCTION

         Photographic Illustrators Corporation (PIC) brought this action against A.W. Graham Lumber, LLC (Graham), alleging copyright infringement in violation of 17 U.S.C. § 501 (Count I); removal of copyright maintenance information in violation of 17 U.S.C. § 1202 (Count II); and violations of Massachusetts General Laws Chapter 93A (Count III). All claims concern photographs PIC took of lighting fixtures. The defendant moves to dismiss based on lack of personal jurisdiction, or in the alternative, to transfer the case to Kentucky. After a hearing and limited jurisdictional discovery, I find that the Court lacks personal jurisdiction over the defendant. The Court TRANSFERS the case to the Eastern District of Kentucky under 28 U.S.C. § 1631.

         FACTUAL BACKGROUND

         The following facts are taken from the complaint (Docket No. 1) and the affidavit of Albert Woodson Graham, co-owner of Graham Lumber (Docket No. 16). The Court takes PIC’s evidentiary proffers as true, and construes them in the light most favorable to its claims. The facts are uncontested unless otherwise noted.

         Plaintiff PIC is a Massachusetts corporation specializing in photography. Its services include the photography of consumer products for catalogs, advertising, and packaging. Osram Sylvania, Inc. (OSI), retained Paul Picone, a photographer for PIC, to photograph its lighting fixtures. OSI then allegedly provided these photographs to a wholesaler, Orgill, Inc. (Orgill), who in turn allegedly made the photographs available to the defendant Graham. It is PIC’s practice to include the name of the author (Paul Kevin Picone) and the copyright owner (P.I. Corp.) on PIC images. It followed this practice for the allegedly infringing photographs at issue in this case.

         Defendant Graham is a Kentucky limited liability company, with its only place of business in Flemingsburg, Kentucky. It sells lumber and other building supplies. As a family-owned and -operated business, Graham has approximately thirty employees, who all live in Kentucky. All of its business records are maintained in Kentucky. Graham is not licensed to do business in Massachusetts, and does not have any employees or agents here. Graham does not have an office, telephone number, or mailing address in Massachusetts, and has never advertised in the Commonwealth. Graham does not own any real or personal property in Massachusetts, and does not have any trans-shipment points, warehouses, or other storage facilities here.

         In addition to its brick and mortar store, Graham also maintains a website, www.grahamlumber.com, where it offers its products for sale. The website is accessible to residents in all fifty states, including Massachusetts. Most website orders are fulfilled through Orgill, the previously mentioned wholesaler. Under a 2013 agreement between Orgill and Graham, orders placed through www.grahamlumber.com ship from one of Orgill’s facilities directly to the online customer. Orgill maintains facilities in Georgia, Utah, Texas, Missouri, and as far north as West Virginia, but has no facilities in Massachusetts. Products sold pursuant to the Orgill-Graham agreement never come into Graham’s possession.

         Graham reports $7-8 million in annual sales, 99.9% of which are in-person or telephone sales. Over the past two years, Graham has only made $8, 391 in website sales. More than half of all internet sales are to in-state customers. Only one sale since 2005, as far back as the defendant’s records reach, has been to Massachusetts-that of a shovel for $21.99, plus $16.99 in shipping costs. The shovel sale was made on October 25, 2015, roughly two weeks after PIC filed the complaint in this case. No emails outside of those concerning the present litigation were exchanged between Graham and Massachusetts residents.

         Plaintiff alleges that Graham’s website included PIC images on at least thirty-two separate web pages without PIC’s authorization or other license to do so, and that Graham did not receive the images from PIC itself. Further, the images on Graham’s website did not include the name of the author or the copyright owner, information which the plaintiff alleges was removed with the aid of Adobe Photoshop or some other similar image editing software. Defendant moves to dismiss under Federal Rules of Civil Procedure 12(b)(2) and 12(b)(3), for lack of personal jurisdiction and improper venue, or alternatively to transfer venue to Kentucky pursuant to 28 U.S.C. § 1404(a).

         DISCUSSION

         I. Standard of Review

         When a defendant files a Rule 12(b)(2) motion to dismiss based on lack of personal jurisdiction, the plaintiff “bears the burden of establishing that the district court has personal jurisdiction over [the defendants]”. Cossart v. United Excel Corp., 804 F.3d 13, 18 (1st Cir. 2015) (internal quotation marks and citation omitted). In reviewing the facts, courts “take the plaintiff’s evidentiary proffers as true and construe them in the light most favorable to the plaintiff’s claim.” C.W. Downer & Co. v. Bioriginal Food & Sci. Corp., 771 F.3d 59, 65 (1st Cir. 2014). Courts also consider “uncontradicted facts proffered by the defendant.” Id. The plaintiff “must put forward evidence of specific facts to demonstrate that jurisdiction exists.” A Corp. v. All Am. Plumbing, 812 F.3d 54, 58 (1st Cir. 2016) (internal quotation marks and citation omitted).

         II. Personal Jurisdiction

         The plaintiff argues that the defendant can be brought before a Massachusetts court on a theory of specific jurisdiction. “Specific jurisdiction exists when there is a demonstrable nexus between a plaintiff’s claims and a defendant’s forum-based activities.” Hannon v. Beard, 524 F.3d 275, 279 (1st Cir. 2008) ...


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