The opinion of the court was delivered by: ROBERT W. SWEET
The defendants Mar International Records, Inc. ("MAR") and Arturo Sanchez ("Sanchez") have moved under Rule 12(b)(2), Fed. R. Civ. P., to dismiss the complaint of Editorial Musical Latino Americana, S.A. ("Editorial") or alternatively to transfer the action under 28 U.S.C. 1404(a) to the Central District of California. For the reasons set forth below, the motions are denied.
This action was initiated on December 28, 1992 by the filing of a complaint by Editorial alleging that MAR and Sanchez wilfully infringed Editorial's copyright by making and distributing a phonorecord "La Tropa Chicana" on which MAR is listed as a distributor.
The instant motion was heard and considered submitted on April 14, 1993.
While there is a factual dispute as to the conduct of MAR and Sanchez, the Editorial affidavits establishing that the Phonorecord was purchased in New York on June 11, 1992 from Telestar Records & Tapes, 155 West 14th Street, New York, New York, are unrebutted.
According to the submission by MAR and Sanchez, Discos Azteca is a related company and MAR's exclusive distributor in the United States.
Sanchez is President of MAR and Humberto Sanchez ("Humberto") is its Chief Executive Officer. Both are residents of California, City of Stockton. Sanchez has never been present in New York and Humberto has visited the State of New York on two occasions in the last five years, both in connection with business concerns unrelated to MAR.
MAR is a California corporation with its principal place of business in Stockton. It also conducts business in a Los Angeles office and is engaged in the business of recording and promoting musical groups. MAR is not incorporated in the State of New York nor qualified to do business here. It has no subsidiaries incorporated or qualified to do business in the State of New York nor does it have any personnel, employees, offices or property here, nor has it contracted to distribute its goods in New York.
Neither MAR, Sanchez nor Humberto have any bank accounts or other tangible personal or real property located in the State of New York.
A Sufficient Showing Of Jurisdiction Has Been Made
In order to demonstrate personal jurisdiction sufficiently to defeat a motion to dismiss, a plaintiff need only make a prima facie showing that jurisdiction exists. See Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 57 (2d Cir. 1985). Plaintiff's complaint and affidavits are to be construed, and any doubts are to be resolved in the light most favorable to the plaintiff. See id.; Shube's Mfg. Corp. v. Blake Bros. Int'l, Inc., 1990 Corp. L. Dec. (CCH) P 26,535 at 23,169 (S.D.N.Y. 1990); see also Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974) (on motion to dismiss pleadings are considered in light most favorable to pleader).
Here, the jurisdictional analysis is the same for both MAR and its president, Sanchez, who can be held individually liable for his acts of infringement. See, e.g., Lauratex Textile Corp. v. Allton Knitting Mills, Inc., 517 F. Supp. 900 (S.D.N.Y. 1981) (corporate ...