Zagorsky-Beaudoin v. Rhino Entertainment Co.

          ORDER

          James A. Teilborg, Senior United States District Judge.

         Pending 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 motions.^[1]

         I. BACKGROUND

         On 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 16, 2019.

         On 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 16, 2019.

         On 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).

         On 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.

         On 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.

         On 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.

         On 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.

         On 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).

         The 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).

         A. Facts

         The 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).^[2] 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”)^[3]-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, 10).

         Plaintiff 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).

         II. PLAINTIFF'S MISCELLANEOUS OBJECTIONS

         Plaintiff 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.

         Plaintiff 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.

         As the 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 appropriate manner.

(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 manner.

         III. PERSONAL JURISDICTION

         All 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)).

         A. Legal Standard

         A 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).

         To 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)).

         “It 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).

         1. General Jurisdiction

         Under 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. 2001).

         For a 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).

         2. Specific Jurisdiction

         When 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.” Walden, ...