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Kuklachev v. Gelfman

February 5, 2009

YURI KUKLACHEV, DMITRI KUKLACHEV, PLAINTIFFS,
v.
MARK GELFMAN, GELFMAN INTERNATIONAL ENTERPRISES, INC., YANIS GELFMAN, TRIBECA PERFORMING ARTS CENTER, TICKETMASTER.COM, PALACE OF FINE ARTS, WILKINS THEATER AT KEAN UNIVERSITY, ONLINESEATS.COM, JOHN HANCOCK HALL, GWINNETT CENTER, NAPA VALLEY OPERA HOUSE, LA'S WILSHIRE EBELL'S THEATER, SEATTLE REPERTORY THEATER, DMITRY KRASSOTKINE, YURI POTOSKI, MICHAEL ZLOTNIKOV, ANDREW YANKOVIS, STANISLAV NEMOY, VLADIMIR KRASNOLOZHKIN, VLADIMIR ANISIMOV, DEFENDANTS.



The opinion of the court was delivered by: Sifton, Senior Judge

MEMORANDUM OPINION AND ORDER

Yuri Kuklachev and Dmitri Kuklachev ("plaintiffs") commenced this action against defendants Mark Gelfman ("Gelfman"), Gelfman International Enterprises, Inc. ("Gelfman Inc."), Yanis Gelfman (collectively, the "Gelfmans"), Tribeca Performing Arts Center, Ticketmaster.com, Palace of Fine Arts, Wilkins Theatre at Kean University, Onlineseats.com, Vladimir Krasnolozhkin, Vladimir Anisimov, Dmitry Krassotkine, Tillinger's Concierge, Inc.,*fn1 Gwinnett Center, Napa Valley Opera House, The Ebell Operating Company,*fn2 Seattle Repertory Theatre, Yuri Potoski, Michael Zlotnikov, Andrey Yankovis, Stanislav Nemoy, and the State of New Jersey, on June 2, 2008. Plaintiffs make a copyright claim, several trademark claims under the Lanham Act, and claims for violation of privacy and publicity rights, injury to business reputation and trademark dilution, unfair competition, unjust enrichment, fraud, conversion, and tort under New York State Law.

Now before the Court is a motion to dismiss for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2)and for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) filed by the Napa Valley Opera House ("NVOH") and the Palace of Fine Arts League ("PFA") (for this purposes of this motion, collectively, "defendants"). For the reasons stated below, the motion to dismiss for lack of personal jurisdiction is granted, and the motion to dismiss for failure to state a claim is denied as moot.

BACKGROUND

The following facts are taken from the parties' submissions in connection with this motion. Disputes are noted.

The Parties

Yuri Kuklachev ("Kuklachev") is a Russian national who tours the world with his troupe of cats and clowns, putting on theatrical performances. Kuklachev performs in the shows, manages the troupe, and organizes performances. Dmitri Kuklachev is Yuri Kuklachev's son, and is the artistic director and star performer of the troupe.

PFA is operated by the Palace of Fine Arts League, a nonprofit corporation organized under the laws of California and located in San Francisco, California. Declaration of Kevin O'Brien at ¶ 2 ("O'Brien Decl.). PFA was built in 1970 and serves the local community through the arts. Id. PFA is a rental theater, and does to produce its own shows. Id. at ¶ 3. PFA has six to eight full-time employees and twenty to thirty regular, but less than full-time, employees. Id. PFA does not solicit business, maintain any offices, or own property in the New York State. Id. at ¶ 5, 7. PFA does not engage in any form of advertizing. Id. Instead, those who rent the theater decide when and how to advertise. Id. Tickets to performances are sold primarily by third-party vendors, who are chosen at the discretion of the show's producers. Id. at ¶ 6. PFA maintains a passive website; nothing is offered for sale on the site. Id. at ¶ 8.

NVOH is a non-profit corporation organized under the laws of California and located in Napa, California, operating out of a National Historic Landmark first constructed in 1879. Declaration of Larry Tsai at ¶ 2 ("Tsai Decl.") Community leaders and other citizens organized and opened NVOH in 2003. Id. The organization's mission is to enrich the cultural experience of the local community through the arts while preserving a historic theater. Id. NVOH is a small presenting venue, with eleven full-time employees. Id. at ¶ 3. NVOH sells tickets to performances at the box office located at 1030 Main Street, Napa, California, and over the phone. Id. at ¶ 8. Third-party vendors provide software that enables NVOH to sell tickets over the internet through the NVOH website. Id. NVOH does not solicit business in New York State, and directs no advertising towards residents of New York State. Id. at ¶ 5. NVOH uses only local sources for advertising. Id. NVOH sends no unsolicited brochures or other materials to residents of New York State, nor does it maintain any offices in the State, nor does it own any property or any other assets in the State, including bank accounts. Id. at ¶ 7, 9.

Alleged Infringement

Plaintiffs allege that they hired defendant Gelfman, Inc. to promote a national tour of the plaintiffs' Moscow Cats Theatre in 2005 and 2006. Complaint at ¶ 7 ("Compl."). In early 2007, upon plaintiffs' return to Russia, plaintiffs allege that Gelfman hired other performers to perform 'copycat' shows, imitating plaintiffs' tricks, costumes, scenic equipment, advertisements, and personas, and that those shows took place in venues across the United States. Id. at ¶ 10. Plaintiffs have brought suit against the Gelfmans and a number of venues where the Gelfmans' cat circus was allegedly performed. NVOH, PFA, and Tillinger's are three venues that plaintiffs claim hosted the allegedly infringing shows.

Procedural History

The complaint was filed on June 2, 2008. On October 24, 2008, NVOH and PFA moved to dismiss the complaint. On November 18, 2008, Tillinger's moved for judgment on the pleadings. On December 22, 2008, I granted plaintiffs' motion for a preliminary injunction against defendants Mark Gelfman, ...


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