United States District Court, D. Arizona
A. Teilborg, Senior United States District Judge.
before the Court are seven motions to dismiss pursuant to
Federal Rules of Civil Procedure (“Rules”)
12(b)(2), 12(b)(3), and 12(b)(6), as well as Plaintiff
Larissa Zagorsky-Beaudoin's (“Plaintiff”)
additional motions. The Court now rules on the
March 1, 2019, Defendants Warner Music Inc., Rhino
Entertainment Company (“Rhino), Atlantic Recording
Corporation, Amazon.com, Inc., Microsoft Corporation, Pamela
Lueneburg, and Kris Ahrend (collectively, “Warner
Defendants”) filed a pending Motion to Dismiss (Doc.
64). Plaintiff then filed a Response (Doc. 104) on April 1,
2019, and Warner Defendants filed a Reply (Doc. 123) on April
March 1, 2019, Defendants Music Reports, Inc., W.B. Colitre,
and Brian Oppenheimer (collectively, “MRI
Defendants”) filed a pending Motion to Dismiss (Doc.
65). Plaintiff then filed a Response (Doc. 120) on April 15,
2019, and MRI Defendants filed a Reply (Doc. 123) on April
March 1, 2019, Defendant eBay Inc. (“eBay”) also
filed a pending Motion to Dismiss (Doc. 70). Plaintiff then
filed a Response (Doc. 89) on March 13, 2019, and Defendant
eBay filed a Reply (Doc. 91) on March 20, 2019.
Plaintiff's Response (Doc. 89) contains a request for
injunctive relief and a separate request for sanctions
against Defendant eBay. (See Doc. 89 at 2).
March 12, 2019, Defendant Apple Inc. (“Apple”)
filed a pending Motion to Dismiss (Doc. 86) and joined Warner
Defendants' Motion to Dismiss (Doc. 64). Plaintiff then
filed a Response (Doc. 113) on April 8, 2019, and Defendant
Apple filed a Reply (Doc. 124) on April 16, 2019.
March 28, 2019, Defendant Myspace Music LLC
(“Myspace”) filed a pending Motion to Dismiss
(Doc. 101) and joined Warner Defendants' Motion to
Dismiss (Doc. 64). Plaintiff then filed a Response (Doc. 133)
on April 28, 2019, and Defendant Myspace filed a Reply (Doc.
145) on May 10, 2019.
March 28, 2019, Defendant Pandora Media, LLC
(“Pandora”) filed a pending Motion to Dismiss
(Doc. 102) and joined Warner Defendants' Motion to
Dismiss (Doc. 64). Plaintiff then filed a Response (Doc. 132)
on April 26, 2019, and Defendant Pandora filed a Reply (Doc.
146) on May 13, 2019.
April 1, 2019, Defendant eMusic.com, Inc.
(“eMusic”) filed a pending Motion to Dismiss
(Doc. 105) and joined Warner Defendants' Motion to
Dismiss (Doc. 64). Plaintiff then filed a Response (Doc. 125)
on April 22, 2019, and Defendant eMusic filed a Reply (Doc.
136) on May 2, 2019.
August 7, 2019 Plaintiff also filed a Motion to Compel (Doc.
187) MRI Defendants to respond to discovery request. Included
in Plaintiff's Motion to Compel (Doc. 187) is a request
for sanctions against MRI Defendants. (Doc. 187 at 12).
thirty-three-page Complaint (Doc. 1) purports to assert seven
causes of action against twenty different named Defendants
stemming from an alleged licensing and royalty dispute
between Plaintiff and various music labels and distributors.
(Doc. 1 at 4-6, 8-30). These causes of action fall into three
categories of claims: (1) copyright infringement; (2) fraud
and Racketeer Influenced and Corrupt Organizations Act
(“RICO”) claims; and (3) criminal claims.
(See Id. at 8-30).
following facts are either undisputed or recounted in the
light most favorable to the non-moving party. See Wyler
Summit P'ship v. Turner Broad. Sys., Inc., 135 F.3d
658, 661 (9th Cir. 1998). Plaintiff claims to own a one-third
interest in the pre-1972 copyrighted musical composition of
the song, All Night Long, co-authored by the
Beaudoin Bros. and performed by The Palace Guard. (Doc. 1 at
2, 7). Plaintiff alleges she granted a mechanical license to
manufacture and distribute copies of The Palace Guard's
recording of All Night Long, embedded within a box
set of CDs, in 2009. (Id. at 6). Plaintiff
continues that she terminated that license in 2015.
(Id. at 26-27). Plaintiff contends she never
licensed or otherwise authorized digital copies and
distributions of the All Night Long track, and
royalties from digital sales of the song were not properly
accounted to her by Defendants. (See, e.g.,
id. at 7, 10, 21-23). Specifically, Plaintiff
alleges that Warner Defendants and MRI Defendants, conspired
to assign an International Standard Recording Code
(“ISRC”)-used to track digital sales of
recordings-to the All Night Long track that diverts
royalties to an unrelated third party, thus depriving
Plaintiff of royalties under the license. (Id. at 3,
alleges she first discovered this conspiracy in 2010.
(Id. at 10 (“In 2010, Plaintiff
discovered that Defendants . . ., in conspiracy, fraudulently
used [a third party's] invalid USRHD0900559 ISRC code for
All Night Long” (emphasis added))). Plaintiff
further alleges Defendants must be infringing her claimed
copyright because box sets including All Night Long
were available in 2017 on auction websites, such as Defendant
eBay's website. (Id. at 28; Doc. 1-3 at 22-25).
Plaintiff adds that digital downloads and streams were also
available on foreign websites in 2017 and 2018, in violation
of her claimed copyright. (Id. at 13-14, 28).
Finally, in naming each Defendant, Plaintiff expressly
alleges that none of Defendants are domiciled in Arizona.
(Id. at 4-6).
PLAINTIFF'S MISCELLANEOUS OBJECTIONS
filed an “Objection” (Doc. 137) to the timeliness
of MRI Defendants' Reply (Doc. 134). As MRI Defendants
point out, because one of the grounds for MRI Defendants'
Motions to Dismiss (Doc. 65) is a lack of personal
jurisdiction, District of Arizona Local Rule of Civil
Procedure (“LRCiv”) 12.1(b) sets forth that
“the time schedule for filing and service of responsive
and reply memoranda will be the same as for motions for
summary judgment”-fifteen days. LRCiv 12.1(b); LRCiv
56.1(d). Here, Plaintiff filed her Response (Doc. 120) on
April 15, 2019, and MRI Defendants filed their Reply (Doc.
134) and related Notice of Errata (Doc. 135) by April 30,
2019. Accordingly, MRI Defendants' Reply (Doc. 134) was
timely and Plaintiff's “Objection” (Doc. 137)
and implicit request to strike is denied. Plaintiff raises
the same “Objection” (Doc. 138; Doc. 150) and
request to strike Defendant eMusic's Reply (Doc. 136) and
Defendant Pandora's Reply (Doc. 146) on timeliness
grounds, which are likewise denied for the same reasons.
also argues that Defendant Pandora failed to comply with the
certification requirements contained in LRCiv 12.1(c) by not
“notifying Plaintiff before filing motions to
dismiss[.]” (Doc. 150 at 2). LRCiv 12.1(c) states that
a motion to dismiss must include “a certification that,
before filing the motion, the movant notified the opposing
party of the issues asserted in the motion and the parties
were unable to agree that the pleading was curable in any
part by a permissible amendment offered by the pleading
party.” LRCiv 12.1(c). Plaintiff's contention is
simply incorrect because Defendant Pandora provided an email
demonstrating it reached out to “Plaintiff regarding
[Defendant] Pandora's intended motion to
dismiss[.]” (Doc. 151 at 2 (citing Doc. 151-1)).
Plaintiff levies the same argument pursuant to LRCiv 12.1(c)
against Defendant Myspace, which Defendant Myspace likewise
debunks by providing copies of email communications.
(Compare Doc. 147 at 1, with Doc. 152 at
1-2 (citing Doc. 152-1 at 2-5)). Accordingly, Plaintiff's
additional “Objections” (Doc. 150 (as to
Defendant Pandora); Doc. 147 (as to Defendant Myspace)) and
requests to strike are denied.
Court previously explained:
An “objection” is not a means under the Federal
Rules of Civil Procedure or the Civil Local Rules for the
District of Arizona, of seeking relief before this Court.
However, Plaintiff clearly opposes any interpretation of her
filing that would entitle it to consideration. Thus, while
the Court notes the filing at Doc. 112 seeks certain relief,
the Court will take no action on it because any request
embedded therein was not presented in a procedurally
(Doc. 119 at 2 n.2). The Court will take no action as to
Plaintiff's additional requests for relief imbedded
within filings not presented in a procedurally appropriate
Defendants except for Defendant eBay move to dismiss under
Rule 12(b)(2). (Doc. 64; Doc. 65; Doc. 86; Doc. 101; Doc.
102; Doc. 105; see Doc. 70 (Defendant eBay moves to
dismiss exclusively under Rule 12(b)(6)).
defendant may move to dismiss a complaint for lack of
personal jurisdiction. Fed.R.Civ.P. 12(b)(2). Federal courts
look to state law to determine the reach of jurisdiction, and
Arizona's long-arm statute “provides for personal
jurisdiction co-extensive with the limits of federal due
process.” Doe v. Am. Nat'l Red Cross, 112
F.3d 1048, 1050 (9th Cir. 1997) (citing Batton v. Tenn.
Farmers Mut. Ins., 736 P.2d 2, 4 (Ariz. 1987)); see
also Ariz. R. Civ. P. 4.2(a).
satisfy federal due process, a “nonresident generally
must have ‘certain minimum contacts . . . such that the
maintenance of the suit does not offend traditional notions
of fair play and substantial justice.'” Walden
v. Fiore, 571 U.S. 277, 283 (2014) (alteration in
original) (quoting Int'l Shoe Co. v. Washington,
326 U.S. 310, 316 (1945)).
is the plaintiff's burden to establish
jurisdiction.” Ziegler v. Indian River County,
64 F.3d 470, 473 (9th Cir. 1995) (citation omitted). Courts
must accept uncontroverted statements in a complaint as true
and resolve conflicts of facts contained in affidavits in the
plaintiff's favor, but a “plaintiff cannot simply
rest on the bare allegations of its complaint.”
Schwarzenegger v. Fred Martin Motor Co., 374 F.3d
797, 800 (9th Cir. 2004) (internal quotation marks and
citation omitted). Personal jurisdiction may be either
general or specific. Goodyear Dunlop Tires Operations,
S.A. v. Brown, 564 U.S. 915, 919 (2011).
general jurisdiction, a court can hear any claim against a
defendant who can be “fairly regarded as at home”
in the state. Id. at 924. For an individual, general
jurisdiction lies where he or she is domiciled. Daimler
AG v. Bauman, 571 U.S. 117, 137 (2014). An
individual's domicile is where the individual resides
with the intent of making it his or her home. See Kanter
v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir.
corporation, general jurisdiction is proper in either the
corporation's state of incorporation or principal place
of business. Daimler, 571 U.S. at 137. General
jurisdiction can exist in another forum only in an
“exceptional case” where a corporation is
“essentially at home” in that other forum.
Id. at 138-39 & n.19 (providing an example of an
exceptional case to be one in which an Ohio court could
exercise general jurisdiction over a Philippines corporation
that temporarily relocated to Ohio during World War II
(citing Perkins v. Benguet Consol. Mining Co., 342
U.S. 437 (1952)); cf. BNSF Ry. v. Tyrrell, 137 S.Ct.
1549, 1559 (2017) (holding that Montana courts lacked general
jurisdiction over a railway company even though the company
“ha[d] over 2, 000 miles of railroad track and
employ[ed] more than 2, 000 workers” in the state at
that time). “[A] corporation that operates in many
places can scarcely be deemed at home in all of them.”
BNSF Ry., 137 S.Ct. at 1559 (quoting
Daimler, 571 U.S. at 139 n.20).
relying on specific jurisdiction, a plaintiff must establish
that jurisdiction is proper for each claim asserted against a
defendant. See Picot v. Weston, 780 F.3d 1206, 1211
(9th Cir. 2015). If personal jurisdiction exists over one
claim, the Court “may exercise pendant jurisdiction
over any remaining claims that arise out of the same common
nucleus of operative facts.” Id. (internal
quotation marks and citation omitted). The specific
jurisdiction inquiry focuses on “the relationship among
the defendant, the forum, and the litigation.”