Case 2:10-cv-01066-KJD-GWF Document 19 Filed 03/22/11 Page 1 of 6
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`UNITED STATES DISTRICT COURT
`DISTRICT OF NEVADA
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`Case No. 2:10-CV-01066-KJD-GWF
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`ORDER
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`RIGHTHAVEN, LLC,
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`Plaintiff,
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`v.
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`DEAN MOSTOFI,
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`Defendant.
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`Presently before the Court is Defendant’s Amended Motion to Dismiss (#11). Plaintiff filed
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`a response in opposition (#12) to which Defendant replied (#15).
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`I. Background
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`Plaintiff’s complaint alleges that Defendant infringed its copyright in a newspaper article.
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`Righthaven, LLC (“Righthaven”), a Nevada corporation, claims that Dean Mostofi (“Mostofi”), an
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`individual residing in Maryland, reproduced and displayed on his website <deanmostofi.com> (“the
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`Website”) an article owned by Plaintiff. Defendant is the owner and registrar of the Website.
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`Plaintiff is the owner of the copyright to the article entitled “Court reprimands lawyer of misleading
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`ads” (“the Infringing Work” or “Work”) that was published in the Las Vegas Review Journal
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`(“LVRJ”) newspaper on April 11, 2010.
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`Case 2:10-cv-01066-KJD-GWF Document 19 Filed 03/22/11 Page 2 of 6
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`On or about April 20, 2010, Mostofi displayed and continued to display the Infringing Work,
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`under a different title. The complaint alleges that Mostofi claimed and continues to claim authorship
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`of the Work. The Work, as displayed on the Website, contained the name of the news reporter who
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`wrote the article and her email address and Nevada phone number. On June 24, 2010, the United
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`States Copyright Office granted Righthaven the registration to the Work. On June 30, 2010, Plaintiff
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`filed the present complaint. Mostofi has now moved to dismiss the action for lack of personal
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`jurisdiction, or to transfer venue to the District of Maryland.
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`II. Analysis
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`A. Personal Jurisdiction
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`Defendant claims lack of personal jurisdiction and argues that it would be unduly
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`burdensome to litigate in Nevada. The assertion of personal jurisdiction satisfies due process when
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`there are “minimum contacts” with the forum state “such that the maintenance of the suit does not
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`offend 'traditional notions of fair play and substantial justice.' ” Int'l Shoe Co. v. Wash., 326 U.S.
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`310, 316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)). These requirements “give a
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`degree of predictability to the legal system that allows potential defendants to structure their primary
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`conduct with some minimum assurance as to where that conduct will and will not render them liable
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`to suit." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980).
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`Personal jurisdiction may be either general or specific. See Panavision Int’l, L.P. v. Toeppen,
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`141 F.3d 1316, 1320 (9th Cir. 1990). General jurisdiction exists when there are “substantial” or
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`“continuous and systematic” contacts with the forum state, even if the cause of action is unrelated to
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`those contacts. Bancroft & Masters, Inc. v. Augusta Nat’l Inc., 223 F.3d 1082, 1086 (citing
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`Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 415 (1984)). Specific jurisdiction
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`may be asserted “if the case arises out of certain forum-related acts.” Id. “Whether dealing with
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`specific or general jurisdiction, the touchstone remains 'purposeful availment' ... [to] ensure[ ] that 'a
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`defendant will not be haled into a jurisdiction solely as a result of “random,” “fortuitous,” or
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`Case 2:10-cv-01066-KJD-GWF Document 19 Filed 03/22/11 Page 3 of 6
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`“attenuated” contacts.' ” Glencore Grain Rotterdam B.V. v. Shivnath Rai Harnarain Co., 284 F.3d
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`1114, 1123 (9th Cir. 2002) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985)).
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`In this action, Plaintiff only argues that Defendant is subject to specific jurisdiction in
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`Nevada. A district court uses a three-part test to determine whether it may exercise specific
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`jurisdiction over a nonresident defendant: (1) The nonresident defendant must do some act or
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`consummate some transaction within the forum, or perform some act by which he purposefully avails
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`himself of the privilege of conducting activities in the forum, thereby invoking its benefits and
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`protections; (2) the claim must be one which arises out of or results from the defendant’s forum-
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`related activities; and (3) the exercise of jurisdiction must be reasonable. See Cybersell, Inc. v.
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`Cybersell, Inc., 130 F.3d 414, 416 (9th Cir. 1997).
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`For the first part of the Ninth Circuit’s test, the “effects” test of Calder v. Jones, 465 U.S.
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`783, 789-90 (1983), is used to determine if the defendant purposefully availed himself of the
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`privilege of conducting activities in the forum. “Under Calder the ‘effects’ test requires that the
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`defendant allegedly have (1) committed an intentional act, (2) expressly aimed at the forum state, (3)
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`causing harm that the defendant knows is likely to be suffered in the forum state.” Schwarzenegger
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`v. Fred Martin Motor Co., 374 F.3d 797, 803 (9th Cir. 2004). The Ninth Circuit found that where a
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`defendant “willfully infringed copyrights owned by [the plaintiff], which, as [the defendant] knew,
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`had its principal place of business in the Central District [of California], “[t]his fact alone is
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`sufficient to satisfy the ‘purposeful availment’ requirement.” Columbia Pictures Television v.
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`Krypton Broadcasting of Birmingham, Inc., 106 F.3d 284, 289 (9th Cir. 1994). Adopting this
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`reasoning, two other courts in this district recently found that it “is common knowledge that the Las
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`Vegas Review Journal newspaper is published and distributed in Las Vegas, Nevada by the party
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`which assigned the copyrights together with the right to seek redress for past, present, and future
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`infringements.” Righthaven LLC v. Dr. Shezad Malik Law Firm, P.C., No. 2:10-cv-0636-RLH-RJJ,
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`2010 WL 3522372, at *1 (D. Nev. Sept. 2, 2010); Righthaven LLC v. Majorwager.com, Inc., No.
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`2:10-cv-00484-GMN-LRL, 2010 WL 4386499, at *1 (D. Nev. Oct. 28, 2010) . Not only is
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`Case 2:10-cv-01066-KJD-GWF Document 19 Filed 03/22/11 Page 4 of 6
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`Defendant imputed with the common knowledge that the LVRJ newspaper is published and
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`distributed in Las Vegas, which is in the forum state of Nevada, but the Infringing Work published
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`on the Website demonstrates that Mostofi was aware or should have been aware that the LVRJ was
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`the source of the Infringing Work and that it was located in Nevada, because both the reporter’s
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`email address and Nevada phone number were included in the Infringing Work. Thus, the first prong
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`of the Ninth Circuit’s three part test is satisfied.
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`The second prong of the test to determine whether the exercise of specific jurisdiction
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`satisfies due process is that Plaintiff’s claim must arise out of activity conducted in the forum state.
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`That is easily satisfied as Plaintiff’s claim, that Defendant allegedly infringed the copyrighted
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`material, arose from the local publication of the article in Nevada by the LVRJ and its subsequent
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`posting on the LVRJ’s website.
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`Finally, under the third prong, Plaintiff must demonstrate that the exercise of jurisdiction is
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`reasonable. “[T]here is a presumption of reasonableness upon a showing that the defendant
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`purposefully directed his action at forum residents which the defendant bears the burden of
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`overcoming by presenting a compelling case that jurisdiction would be unreasonable.” Colombia,
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`106 F.3d at 289(quoting Haisten v. Grass Valley Med. Reimbursement, 784 F.2d 1392, 1397 (9th
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`Cir. 1986)(citing Burger King, 471 U.S. at 477). The five factors to consider when determining if the
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`exercise of personal jurisdiction would be unreasonable are: (1) the burden on the defendant; (2) the
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`forum State's interest in adjudicating the dispute; (3) the plaintiff's interest in obtaining convenient
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`and effective relief; (4) the interstate judicial system's interest in obtaining the most efficient
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`resolution of controversies; and (5) the shared interest of the several States in furthering fundamental
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`substantive social policies. World-Wide Volkswagen, 444 U.S. at 292.
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`The only factor favoring Defendant is the first. It would be a substantial burden on Defendant
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`to have to litigate in Nevada. However, all of the other factors favor Plaintiff. Arguably, the forum
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`state has an interest in adjudicating an infringement upon a news article originated by the forum
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`state's largest local newspaper publisher written about actions taken by the Nevada State Bar. The
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`Case 2:10-cv-01066-KJD-GWF Document 19 Filed 03/22/11 Page 5 of 6
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`Las Vegas Review Journal's subscribers are purportedly primarily residents of the forum state of
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`Nevada and the LVRJ advertisers consist mainly of local Nevada businesses. Any infringement could
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`reasonably be expected to affect them as well. Finally, Plaintiff has named numerous Defendants in
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`other identical suits each from numerous other states. “The interstate judicial system would benefit
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`from the efficient resolution of this case in the same forum as the others. This would serve
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`fundamental substantive common social policies.” Majorwager.com, 2010 WL 4386499, at *4.
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`Accordingly, the Defendant has not overcome the presumption of reasonableness and this Court has
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`personal jurisdiction over Defendant.
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` B. Venue
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`Under § 1404(a), a district court has discretion to “adjudicate motions for transfer according
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`to an individualized, case-by-case consideration of convenience and fairness.” Jones v. GNC
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`Franchising, Inc., 211 F. 3d 495, 498 (9th Cir. 2000)(citing Stewart Org. v. Ricoh Corp., 487 U.S.
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`22, 29 (1988)). Section 1404(a) reads: “For the convenience of parties and witnesses, in the interest
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`of justice, a district court may transfer any civil action to any other district or division where it might
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`have been brought.” When a court evaluates a section 1404(a) motion, the plaintiff’s choice of
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`forum is “entitled to ‘paramount consideration’ and the moving party must show that a balancing of
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`interests weighs heavily in favor of transfer.” Galli v. Travelhost, Inc., 603 F. Supp. 1260, 1262 (D.
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`Nev. 1985). Accordingly, Ҥ 1404(a) provides for transfer to a more convenient forum, not to a
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`forum likely to prove equally convenient or inconvenient.” Van Dusen v. Barrack, 376 U.S. 612,
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`645-46 (1964). The burden is therefore on the defendant to make the strong showing that a change
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`of venue is warranted. See Decker Coal Co. v. Commonwealth Edison Co., 805 F.2nd 834, 843 (9th
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`Cir. 1986); Galli, 603 F. Supp. at 1262. Finally, a decision to transfer is committed to the sound
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`discretion of the trial court.
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`In assessing whether to grant a motion to transfer, the Court is presented with two questions:
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`whether the action “might have been brought” in the proposed transferee district; and whether the
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`transferee forum is more convenient. See 28 U.S.C. § 1404(a). Here, neither party disputes that this
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`Case 2:10-cv-01066-KJD-GWF Document 19 Filed 03/22/11 Page 6 of 6
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`case could have been brought in the District of Maryland. Determining whether to transfer a civil
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`action from one forum to another “for the convenience of parties and witnesses” and in the interest of
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`justice” requires the Court to weigh multiple factors, such as the following: “(1) the location where
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`the relevant agreements were negotiated and executed, (2) the state that is most familiar with
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`governing law, (3) the Plaintiff’s choice of forum, (4) the respective parties’ contacts with the forum,
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`(5) the contacts relating to Plaintiff’s cause of action in the chosen forum, (6) the differences in the
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`costs of litigation in the two forums, (7) the availability of compulsory process to compel attendance
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`of non-party witnesses, and (8) the ease of access to sources of proof.” Jones, 211 F.3d at 498.
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`Other than the cost to Defendant in litigating in this forum, no other factor favors Defendant.
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`Given that Plaintiff’s choice of forum is given paramount consideration, Defendant has not met his
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`burden in making a strong showing that a change of venue is warranted. Accordingly, Defendant’s
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`motion to transfer venue is denied.
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`III. Conclusion
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`Accordingly, IT IS HEREBY ORDERED that Defendant’s Amended Motion to Dismiss
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`(#11) is DENIED.
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`DATED this 22 day of March 2011.
`nd
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`_____________________________
`Kent J. Dawson
`United States District Judge
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