Furthermore, the allegations of wrongful and tortious interference with contractual relations present the Court with jurisdiction under CPLR § 302(a)(2), since Seasons Four's retainer of a New York licensing agent could constitute tortious interference committed in this state with Plaintiffs' business contracts in this and other states.
The motion is denied as to Valli and Gaudio.
The Motion to Dismiss for Lack of Jurisdiction is Denied as to Bennett
This Court possesses jurisdiction over Bennett, for his actions bring him under New York's long-arm statute, and they have a sufficient nexus with the activities giving rise to the claims in this action. Bennett is a California resident. He alleges that his role has been limited to that of counsel to Valli and Gaudio and their businesses. Bennett asserts that he has not engaged in business activity or tortious activity that would subject him to long-arm jurisdiction in New York. These protests are unavailing interpreting the facts in the light most favorable to Plaintiffs.
Bennett co-owns, with Valli and Gaudio, Legibus Records. Bennett describes Legibus Records as "a fictitious business name of mine." Legibus Records serves as a vehicle through which the Partnership entered into a license with Collectibles Records/Gotham Distributors ("Collectibles") for the manufacture and sale of single records of compositions by Valli and the Group. The agreement between Collectibles and Legibus Records has been extended or renewed in the past and is still in existence. Randell alleges, and Bennett does not deny directly, that Legibus Records is also engaged in licensing activity with Fox in New York.
Plaintiffs allege that certain of these activities have concerned the Songs at issue, thus providing a nexus with the activities giving rise to the claims against Bennett. Bennett alleges that at all times, monies received from Collectibles has been treated and maintained by Bennett as client trust funds and that he ultimately derives no profit from his involvement in Legibus. However, by Bennett's own admission, he is a co-owner of Legibus Music and has derived a ten-percent commission from those same funds. Unlike his involvement with Seasons and the Partnership, then, which may well have been or be one only of counsel, Bennett, as co-owner of Legibus Records, has engaged in activities that constitute the sale of goods and services in New York and subject him to jurisdiction in New York.
Plaintiffs allege further that Bennett knowingly provided false information and documents to BMI in New York, thus helping to bolster Seasons' claim to the renewal copyrights to the Songs. This constitutes an allegation of tortious activity in New York and constitutes another reason that Bennett falls under the ambit of the long-arm statute.
The motion to dismiss for lack of jurisdiction is denied as to Bennett.
The Motion to Dismiss for Lack of Venue is Denied
Defendants have moved under Rule 12(b)(3) for dismissal for lack of venue in this judicial district. The special venue statute for copyright actions, 28 U.S.C. § 1400(a), provides that such actions may be brought "in the district in which the defendant or his agent resides or may be found." A defendant "may be found" wherever that person is amenable to personal jurisdiction. Business Trends Analysts v. Freedonia Group, Inc., 650 F. Supp. 1452, 1456 (S.D.N.Y. 1987). Thus, for the reasons discussed above in the context of the motion to dismiss for lack of personal jurisdiction, the motion to dismiss for lack of venue is denied.
The Motion to Transfer Venue is Denied
Defendants have moved further under Rule 12(b)(3) for an order under 28 U.S.C. § 1404(a) finding that venue of the action, insofar as claims are asserted against the Moving Defendants, should be transferred to the United States District Court for the Central District of California, on the grounds that the transfer is required for the convenience of the parties and is in the interests of justice.
28 U.S.C. § 1404(a) provides, "For the convenience of the parties and witnesses in the interests of justice, a district court may transfer any civil action to any other district or division where it might have been brought." Factors which determine whether a case should be transferred under § 1404 are: (1) the place where the operative facts occurred; (2) the convenience of the parties; (3) the convenience of witnesses; (4) the relative ease of access to sources of proof; (5) the availability of process to compel attendance of unwilling witnesses; (6) the plaintiff's choice of forum; (7) the forum's familiarity with governing law; and (8) trial efficiency and the interests of justice. Viacom Int'l v. Melvin Simon Prods., 774 F. Supp. 858, 867-68 (S.D.N.Y. 1991); Don King Prods., Inc. v. Douglas, 735 F. Supp. 522, 533 (S.D.N.Y. 1990); see also Schneider v. Sears, 265 F. Supp. 257, 263 (S.D.N.Y. 1967); Richardson Greenshields Secs., Inc. v. Metz, 566 F. Supp. 131, 134 (S.D.N.Y. 1983). Moving Defendants have based their motion on the second and eighth of these factors: convenience of the parties and the interests of justice.
"Motions for transfer lie within the broad discretion of the courts and are determined upon notions of convenience and fairness." See In re Cuyahoga Equip. Corp., 980 F.2d 110, 117 (2d Cir. 1992) (citing Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29, 101 L. Ed. 2d 22, 108 S. Ct. 2239 (1988)). The burden of demonstrating the desirability of transfer lies with the moving party, and in considering the motion for transfer, a court should not disturb a plaintiff's choice of forum "unless the defendants make a clear and convincing showing that the balance of convenience favors defendants' choice." Hubbell Inc. v. Pass & Seymour, Inc., 883 F. Supp. 955, 962 (S.D.N.Y. 1995); see Filmline (Cross-Country) Prods., Inc. v. United Artists Corp., 865 F.2d 513, 521 (2d Cir. 1989).
The defendant moving for a transfer must, therefore, demonstrate "that transfer is in the best interests of the litigation." Eskofot A/S v. E.I. du Pont de Nemours & Co., 872 F. Supp. 81, 95 (S.D.N.Y. 1995); see also Star Lines, Ltd. v. Puerto Rico Maritime Shipping Auth., 442 F. Supp. 1201, 1207 (S.D.N.Y. 1978); Factors Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215, 218 (2d Cir. 1978), cert. denied, 440 U.S. 908, 59 L. Ed. 2d 455, 99 S. Ct. 1215 (1979).
Moving Defendants fall short of meeting this burden. They argue that the parties will be substantially inconvenienced by a venue in this District. They point to their anticipated addition of third parties -- Saturday, Crewe, and Windswept. On balance, this argument fails to persuade. Saturday is a New York corporation active and in good standing. Crewe is one of Saturday's principal officers and subject to the long-arm jurisdiction of New York. Windswept is a large publishing company with regular and substantial business contracts with New York. In any event, Moving Defendants have failed to demonstrate that the joinder of these parties is required.
Moving Defendants argue further that Bennett's and Valli's residences in California add to the inconvenience. Yet Gaudio resides in Tennessee, which is closer to this District than to the Central District of California. Valli's affidavit indicates that he travels frequently to New York, and it is difficult to believe that travel here for the purposes of this action would pose an undue hardship. EMI, which opposes this motion, is located in New York. Daniel Crewe is alleged to be in New England. Several other non-party witnesses are located in New York, and many may not be subject to the jurisdiction of the District Court in the Central District of California.
The operative facts central to Plaintiffs' claims in this case occurred largely in New York. The negotiation, execution, and performance of relevant contracts occurred in New York, as did the prior litigations involving the rights in issue in the action. There is, therefore, a material connection between Plaintiffs' contract-related and copyright renewal-related claims on the one hand and the New York forum on the other. See Boreal Laser Inc. v. Coherent, Inc., 1992 U.S. Dist. LEXIS 276, 22 U.S.P.Q.2D (BNA) 1559, 1560 (S.D.N.Y. 1992).
The core evidentiary material respecting the claims against the EMI Defendants, including both the pertinent financial books and records and the critical testimonial witnesses are located in New York. New York, therefore, is the place where there will be most efficient access to those documents and witnesses -- factors that strongly militate in favor of litigating this case in New York. See Saminsky v. Occidental Petroleum Corp., 373 F. Supp. 257, 260 (S.D.N.Y. 1974).
In addition to the convenience to parties and witnesses of venue in New York, the fact that many of the claims may be governed by New York law is a factor tilting the proper choice of venue to New York. It is appropriate for a case to be tried in the forum at home with the governing law, Ferens v. John Deere Co., 494 U.S. 516, 530, 108 L. Ed. 2d 443, 110 S. Ct. 1274 (1990); 15 Wright, Miller & Cooper § 3851 at 415 (1986).
A transfer should not be granted "absent a clear cut and convincing showing by defendant that the balance of convenience weighs strongly in favor of the transferee court. . . . " Star Lines, Ltd. v. Puerto Rico Maritime Shipping Auth., 442 F. Supp. 1201, 1207 (S.D.N.Y. 1978). Moving Defendants have failed to make such a showing.
The motion to dismiss for lack of jurisdiction is granted as to Seasons Four and denied as to Valli, Gaudio, and Bennett.
The motion to dismiss for lack of venue is denied.
The motion to transfer venue is denied.
It is so ordered.
New York, N. Y.
November 13, 1995
ROBERT W. SWEET
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