The opinion of the court was delivered by: GERARD E. LYNCH, District Judge
Freeplay Music, Inc. ("Freeplay"), the owner of copyrights in
certain musical compositions and sound recordings, brings this
action against defendants, corporate owners of various radio
stations, charging violations of copyright and related claims. In
a separate opinion issued this day, the Court grants in part and
denies in part a motion to dismiss for failure to state a claim
by all defendants. This opinion addresses the motion to dismiss
for lack of personal jurisdiction by one defendant, Beasley
Broadcast Group, Inc. ("Beasley"). Freeplay alleges that
Beasley's contacts with New York are sufficient to support
personal jurisdiction over it. Beasley argues that Freeplay's
conclusory allegations merely parrot the relevant statutory
language, and that the actual facts alleged in the complaint are facially
insufficient to support jurisdiction.*fn1 For the reasons
that follow, Beasley's motion will be granted. Freeplay's request
for jurisdictional discovery regarding Beasley's contacts with
New York is denied.
Freeplay is a New York corporation which creates musical
compositions and sound recordings. Freeplay alleges that Beasley
"produced, exploited and distributed in interstate commerce
certain radio programming containing certain of [Freeplay's]
[c]ompositions and [s]ound [r]ecordings," when Beasley broadcast
Freeplay's musical works "synchronized" with other audio works.
(Compl. ¶ 17; P. 12(b)(6) Mem. at 3.) Freeplay holds the
copyright registrations for the 155 musical compositions and
sound recordings at issue in this action. (Compl. ¶ 15; see
Compl. Exs. 1-9.) Freeplay contracted with Broadcast Music, Inc.
("BMI"), a performing rights society, to license permission to
perform these compositions and recordings on Freeplay's behalf.
(P. 12(b)(6) Mem. at 6.) Freeplay argues that although Beasley is
licensed by BMI to perform the Freeplay musical works in
question, that license does not grant Beasley the necessary
"synchronization rights" that would allow Beasley to use
Freeplay's musical works in the manner alleged. (P. 12(b)(6) Mem.
at 3; Fischbarg 12(b)(6) Decl. ¶ 3, Ex. B.) See generally
Freeplay Music, Inc. v. Cox Radio, Inc., No. 04 Civ. 5238
(GEL), 2005 WL ______ (S.D.N.Y. June 22, 2005). Beasley is a Delaware corporation with its principal place of
business in Naples, Florida. (Compl. ¶ 8.) Beasley "produc[es],
distribut[es], sell[s] and otherwise commercially exploit[s]
radio programming" at its 41 radio stations. (Compl. ¶ 8;
Fischbarg 12(b)(6) Decl. Ex. F.) Beasley alleges, and Freeplay
does not dispute, that it does not have an office or employees in
New York, that it does not own or operate a radio station in New
York, and that none of its stations' over-the-air broadcast
signals can reach New York. (Beasley Decl. ¶ 7.) Several of
Beasley's radio stations, however, have websites accessible in
New York through which the stations simulcast their radio
broadcasts. (P. Mem. 3; Fischbarg Decl. ¶ 6, Ex. E.)
In addition to Beasley's websites, Freeplay alleges that
Beasley has several other forms of contact with New York. Beasley
radio stations syndicate radio programming produced in New York
such as "The Howard Stern Radio Show," "Imus in the Morning,"
"ABC News," and "Bloomberg Radio News." (Fischbarg Decl. ¶ 3, Ex.
B.) Beasley executives travel to New York approximately four
times per year to meet with investment bankers. (P. Mem. 1.)
Beasley executives have also spoken at radio industry conferences
and seminars in New York at least six times since 2002. (Id. at
2.) New York companies purchase advertising time on Beasley radio
stations. (Id.) Beasley also makes payments to performing
rights societies based in New York, such as BMI and the American
Society of Composers, Authors, and Publishers, for licenses to
perform certain musical works. (Id.) Beasley has contracted
with the New York investment bank Harris Nesbitt in connection
with a $25 million stock buy-back scheduled to be completed
within the next year. (Id. at 1-2, citing D. Mem. 4.) In March
2004, Beasley announced the completion of a $225 million
revolving credit facility, funded by a consortium of lenders, and
jointly arranged by two New York banks, Harris Nesbitt and Bank
of New York. (Id.) DISCUSSION
On a motion to dismiss for lack of personal jurisdiction
pursuant to Federal Rule of Civil Procedure 12(b)(2), the
plaintiff bears the burden to establish jurisdiction. In re
Magnetic Audiotape Antitrust Litig., 334 F.3d 204, 206 (2d Cir.
2003). Where no jurisdictional discovery has been conducted, the
plaintiff need only establish a prima facie case, and allegations
of jurisdictional fact must be construed in the light most
favorable to the plaintiff. CutCo Indus. Inc. v. Naughton,
806 F.2d 361, 365 (2d Cir. 1986). The motion must be denied if those
allegations suffice as a matter of law. Magnetic Audiotape,
334 F.3d at 206.
A federal court sitting in diversity may exercise jurisdiction
over a foreign defendant if the defendant is amenable to process
under the law of the forum state. Omni Capital Int'l Ltd. v.
Rudolf Wolff & Co., 484 U.S. 97, 105 (1987); Metro. Life Ins.
Co. v. Robertson-Ceco Corp., 84 F.3d 560, 567 (2d Cir. 1996). In
New York, a court may exercise general jurisdiction over a
nondomiciliary under New York Civil Practice Laws and Rules
("C.P.L.R.") § 301, and long-arm jurisdiction under C.P.L.R. §
302. The exercise of personal jurisdiction must also comport with
constitutional due process requirements under International Shoe
Co. v. Washington, 326 U.S. 310 (1945). Mario Valente
Collezioni, Ltd. v. Confezioni Semeraro Paolo, S.R.L.,
264 F.3d 32, 37 (2d Cir. 2001).
II. General Jurisdiction in New York: C.P.L.R. § 301
Under C.P.L.R. § 301, a New York court may exercise
jurisdiction over a defendant "engaged in such a continuous and
systematic course of `doing business' in New York as to warrant a
finding of its presence in the state." Jazini v. Nissan Motor
Co., Ltd., 148 F.3d 181, 184 (2d Cir. 1998). "A defendant is doing business such that
jurisdiction pursuant to § 301 is appropriate if it does business
in New York `not occasionally or casually, but with a fair
measure of permanence and continuity.'" Mantello v. Hall,
947 F. Supp. 92, 97 (S.D.N.Y. 1996), quoting Landoil Resources Corp.
v. Alexander & Alexander Servs., Inc., 918 F.2d 1039, 1043 (2d
Cir. 1990). This standard has been described as "stringent,"
because a defendant who is found to be doing business in New York
in a permanent and continuous manner "may be sued in New York on
causes of action wholly unrelated to acts done in New York."
Jacobs v. Felix Bloch Erben Verlag fur Buhne Film und Funk KG,
160 F. Supp. 2d 722, 731 (S.D.N.Y. 2001), quoting Ball v.
Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 198 (2d Cir.
Courts have relied on the following "traditional indicia" when
"deciding whether a foreign corporation is doing business in New
York . . .: (1) the existence of an office in New York; (2) the
solicitation of business in New York; (3) the existence of bank
accounts or other property in New York; and (4) presence of
employees of the foreign defendant in New York." Mantello,
947 F. Supp. at 97, citing Hoffritz for Cutlery, Inc. v. Amajac,
Ltd., 763 F.2d 55, 58 (2d Cir. 1985). Freeplay contends that its
allegations regarding Beasley's activity demonstrate Beasley's
legal presence in New York, even though Beasley has no office in
New York, and no employees working on a regular basis in New
York. Freeplay's allegations, however, do not show that Beasley
has a permanent or continuous presence in New York sufficient to
justify a finding of general jurisdiction.
Beasley's licenses and radio programming purchases from New
York corporations are insubstantial activity to warrant general
jurisdiction in New York. New York courts have held that
"obtaining licenses is not `doing business'" for the purposes of
general jurisdiction. Mantello, 947 F. Supp. at 98. Further, "the purchase of goods
from New York by a [d]efendant, even if on large scale, would
not, in an of itself, amount to `doing business' within the
state." Agency Rent A Car System, Inc v. Grand Rent A Car
Corp., 916 F. Supp. 224, 229 (E.D.N.Y. 1996), rev'd on
other grounds, 98 F.3d 25 (2d Cir. 1996). Therefore,
Beasley's purchases of programming and licenses to broadcast
copyrighted materials are insufficient to justify general
Similarly, Freeplay's allegation that Beasely solicits
advertising for its radio stations from New York companies
reflects a mere business relationship insufficient to confer
general jurisdiction. Reers v. Deutsche Bahn AG,
320 F. Supp. 2d 140, 155 (S.D.N.Y. 2004). Solicitation of business contracts
can reach a level sufficient to support general jurisdiction only
through "extensive conduct directed toward or occurring in New
York." Id. at 150. Even actual advertising within New York is
not considered to reach the level of substantial solicitation
that would suffice for general jurisdiction. See, e.g.
Muollo v. Crestwood Vill. Inc., 547 N.Y.S.2d 87, 88 (2d Dept.
1989) (finding defendant's advertisements in the New York Times
and on the radio insufficient to support personal jurisdiction);
see also Holness v. Maritime Overseas Corp.,
676 N.Y.S.2d 540, 543 (1st Dept. 1998) ("New York has no jurisdiction over a
foreign defendant company whose only contacts with New York are
advertising and marketing activities plus representatives'
occasional visits to New York."). Freeplay's allegations do not
suggest that Beasley solicited advertising from local New York
businesses, or advertising that was directed toward a New York
audience, as opposed to advertising from national companies
incorporated or headquartered in New York. Freeplay's allegation
that Beasley solicits business from New York companies does not
show that Beasley solicited that business in New York, or that
the solicitation was extensive or substantial. Thus, Beasley's
advertising contracts with New York companies are insufficient to
justify general jurisdiction.
Freeplay also alleges (and Beasley acknowledges) that Beasley
has a contract with the New York bank Harris Nesbitt for the
purposes of a $25 million stock buy-back. Regarding the stock
buy-back, New York courts "accord? foreign corporations
substantial latitude" in connection with management of their
securities on New York-based stock exchanges without subjecting
themselves to New York jurisdiction for unrelated occurrences.
Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 97 (2d. Cir.
2000); see also Reers, 320 F. Supp. 2d at 156 ("[T]he fact
that [defendant's] stock may be purchased in New York, and that
[defendant] retains New York-based market makers to assist in its
sales of stock, is another important factor but is ...