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GAINES, EMHOF, METZLER & KRINER v. NISBERG

February 24, 1994

GAINES, EMHOF, METZLER & KRINER, Plaintiff,
v.
JAY N. NISBERG, Defendant.


CURTIN


The opinion of the court was delivered by: JOHN T. CURTIN

BACKGROUND

 Plaintiff, a partnership whose members are certified public accountants, has its principal place of business in Buffalo, New York. Defendant, an industrial psychologist and management consultant, claims that his residence is in North Salem, New York, and that his only office and place of business is in Ridgefield, Connecticut. Item 4. *fn1"

 Plaintiff asserts that it is the author and owner of a document entitled "Gaines, Emhof, Metzler & Kriner, CPA Firm of the 90's Marketing Guide" (the "Subject Work"), originally published in June 1991. Item 1, P 2 and Ex. A. Plaintiff alleges that it is "copyrightable subject matter under . . . 17 U.S.C. §§ 1101 et seq." Item 1, P 11.

 On November 12, 1991, one of plaintiff's partners, James Metzler, spoke at a conference in New York City and distributed copies of the Subject Work. Defendant, who was also a conference participant, obtained a copy. Plaintiff alleges that defendant subsequently infringed on plaintiff's ownership of the Subject Work by publishing, presenting, and placing on the market a work entitled "CPA Firm of the 90's Marketing Guide." The latter is essentially identical to the Subject Work, except that all reference to plaintiff has been removed. Item 1, PP 22-23 and Ex. B. Plaintiff identifies one specific occasion on which it claims defendant distributed the "misappropriated work" -- a conference held by the New Jersey Society of Certified Public Accountants in Somerset, New Jersey, on September 24, 1992.

 On the basis of these allegations, plaintiff asserts a series of claims under Federal and New York State law seeking an accounting, declaratory and injunctive relief, statutory, compensatory and punitive damages, and attorneys' fees and costs.

 Defendant has moved to dismiss, or in the alternative for transfer of venue to the Southern District of New York. Item 4. He argues that venue is inappropriate here because he lacks the necessary contacts with the district. Id.

 DISCUSSION

 The complaint alleges that venue is proper in this district pursuant to 28 U.S.C. §§ 1391 and 1400. Item 3, P 6. 28 U.S.C. § 1400(a) governs venue with respect to plaintiff's claims arising under Federal copyright laws. It states:

 
Civil actions, suits, or proceedings arising under any Act of Congress relating to copyrights or exclusive rights in mask works may be instituted in the district in which the defendant or his agent resides or may be found.

 Id. Plaintiff maintains that "the Courts consistently interpret the statute to mean that a defendant 'may be found' wherever he may constitutionally be served with process." Item 9, pp. 8-9 (citations omitted). It then argues that since defendant "may obviously be found in the State of New York and at least at times within the Western District of New York . . . venue is at least at this stage and prior to further discovery, not only proper but necessary in this District." Id. at 9.

 Defendant agrees that venue is proper under 28 U.S.C. § 1400(a) wherever he is amenable to personal jurisdiction, but argues that such a finding would require that he "be engages, in the district of suit, in a pattern of 'systematic and continuous activity' necessary to make [him] 'present' there." Item 13, p. 3 (citations omitted). He insists that his contacts with this district are inadequate to support venue here under such a test.

 The "may be found" clause of 28 U.S.C. § 1401(a) has not been interpreted by the Second Circuit, but was analyzed recently by the Seventh Circuit in Milwaukee Concrete Studios, Ltd. v. Fjeld Manufacturing Company, Inc., 8 F.3d 441 (7th Cir. 1993). The court held that:

 
section 1400(a) requires district courts to consider a defendant's contacts with a particular judicial district in determining where that defendant may be found. A defendant's amenability to personal jurisdiction must relate to the judicial district in which ...

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