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SECURITIES TRAINING CORP. v. SECURITIES SEMINAR

March 20, 1986

SECURITIES TRAINING CORP., Plaintiff, against SECURITIES SEMINAR, INC., and ROY LUTZI, Defendants.


The opinion of the court was delivered by: KRAM

MEMORANDUM OPINION AND ORDER

SHIRLEY WOHL KRAM, U.S.D.J.

 Plaintiff brought this copyright infringement action pursuant to 17 U.S.C. § 501 et seq. Defendants have moved for dismissal of the complaint on the grounds of lack of personal jurisdiction and improper venue pursuant to Fed. R. Civ. P. 12(b)(2) and 12(b)(3).

 FACTUAL BACKGROUND

 Plaintiff, a New York corporation having its principle place of business in the Southern District of New York, teaches preparation courses for the securities dealer licensing examination. Defendant, Securities Seminar, Inc., a California corporation operating only in the Northern District of California, also conducts preparatory courses for these examinations. Plaintiff alleges it has copyrighted its study materials and that defendants have wilfully infringed on the copyright. Defendants state in affidavits that they have no contacts with New York, derive no revenue from interstate commerce or New York sources, and pay no New York taxes.

 Plaintiff makes three arguments in favor of jurisdiction. First, plaintiff argues that defendants waived their right to assert the personal jurisdiction defense by failing to raise it promptly. Second, plaintiff argues that defendants have waived any objections to personal jurisdiction or venue because the parties received an Order of Discontinuance. *fn1" Third, plaintiff maintains that the Court has personal jurisdiction over the defendants through New York's long-arm statute, N.Y. CPLR § 302(a).

 DISCUSSION

 1. Delay in raising the defense

 Lack of personal jurisdiction is a defense which may be waived by "failure [to] assert [it] seasonably. . . ." Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 168 (1939).

 In this case, the delay was due largely to the parties' involvement in settlement negotiations. Defendants clearly expected to settle this dispute; an earlier motion could have been premature. Compare Lynn v. Cohen, 359 F. Supp. 565, 566 (S.D.N.Y. 1973) (nine extensions of time in which to answer not harmful delay) with Marcial Ucin, S.A. v. SS Galicia, 723 F.2d 994, 997 (1st Cir. 1983) (defendant waived 12(b)(2) objection, although asserted in a pre-answer motion, by participating in extensive discovery on a matter unrelated to personal jurisdiction and waiting almost four years to mnove for dismissal) and Burton v. Northern Dutchess Hospital, 106 F.R.D. 477, 481 (S.D.N.Y. 1985) (same, although defense asserted in the answer). Plaintiff's failure to respond promptly to interrogatories also contributed to the delay.

 Although their motion was filed ten months after initiation of this suit, the delay was not "harmful" or "subversive of orderly procedure". Commercial Insurance Co. v. Consolidated Stone Co., 278 U.S. 177, 180 (1929) (referring to venue objection). Thus, defendants have acted seasonably in asserting their defense.

 2. The Order of Discontinuance

 The defense of lack of personal jurisdiction may also be waived "by formal submission in a cause or by submission through conduct." Neirbo Co., 308 U.S. at 168. The Court's issuance of an Order of Discontinuance, which was not followed by settlement but by restoration of the case to the Court's docket, fails to constitute a waiver by formal submission or conduct. In arguing otherwise, plaintiff has erroneously relied upon Meetings & Expositions, Inc. v. Tandy Corp., 490 F.2d 714 (2d Cir. 1974).

 In Tandy, the defendant had filed a 12(b)(2) motion which was never decided because the parties entered into a settlement agreement, which was "So Ordered" by the district court judge. The defendant allegedly defaulted on the agreement and reasserted the 12(b)(2) defense. The district judge granted the motion. As described in the Second Circuit's opinion, the district judge ruled on the issue of waiver that 12(b) permits a general appearance without waiver of a timely 12(b) defense, citing Orange Theatre Corp. v. Rayherstz Amusement Corp., 139 F.2d 871, 874 (3d Cir.), cert. denied, 322 U.S. 740 (1944) (court's extension of time to answer, as stipulated to by the parties, did not indicate that defendant had participated in the action). *fn2" 490 ...


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