William I. Dunnegan, Esq., Ella R. Aiken, Esq., DUNNEGAN & SCILEPPI LLC, New York, NY, Attorneys for Plaintiff.
Frank J. Colucci, Esq., LAW OFFICE OF FRANK J. COLUCCI, New York, NY, Attorneys for Defendant.
ROBERT W. SWEET, District Judge.
Defendant Roger Nunn ("Nunn" or "Defendant") has moved to dismiss the complaint of plaintiff North Jersey Media Group ("NJ" or "Plaintiff") pursuant to Fed.R.Civ.P. 12(b)(2) ("Rule 12(b)(2)") for lack of personal jurisdiction. Based on the conclusions set forth below, the motion is granted and the complaint is dismissed.
NJ is a New Jersey corporation with its principal place of business located in Woodland Park, New Jersey. Nunn is a natural person and California resident.
On March 13, 2013, N.J. filed a complaint ("Complaint") alleging that Nunn violated NJ's copyright of a photographic image depicting firefighters raising an American flag at the site of the World Trade Center in the immediate aftermath of the events that took place in New York City on September 11, 2001 (the "WTC Photo") by selling a copy of the WTC Photo over the internet.
Nunn moved to dismiss the Complaint for lack of personal jurisdiction. The motion was marked fully submitted on July 3, 2013.
Nunn, by affidavit, has submitted the following facts, which have not been contravened by NJ:
In 2008, Nunn obtained a copy of the WTC Photo from the website of the Rocky Mountain News, a newspaper publication based in Denver, Colorado. The WTC Photo was displayed on the website along with language indicating that the public was free to use it so long as attribution for the photograph remained intact and unmodified.
On or about December 7, 2012, Nunn sold a copy of the WTC Photo through a website called bonanza.com for approximately $4.89. After deducting bonanza.com's fee of $0.50, PayPal's merchant service fee of $0.35, and his estimated of $1.00 for production of the photograph, Nunn.'s total net profit from the WTC Photo was approximately $3.04. The December 7, 2012 sale of the NTC Photo was the only sale that Nunn made of that image. The photo was purchased by an individual named Megan Mathilde, who had a shipping address identical to the address of NJ's counsel's office on Fifth Avenue in New York, New York.
On January 25, 2013, Nunn received a cease and desist letter from NJ's counsel indicating that N.J. was the copyright bolder of the WIC Photo, and thus objected to Nu's sale of the photograph through bonanza.com, and demanding that Nunn cease and desist from any further sales, confirm cessation of the sales, disclose all sales, and provide an accounting of profits and disclosure of any third party sellers. On January 2013, Nunn responded to NJ's letter by explaining the circumstances of his one sale - namely, that he understood he was authorized to use the NTC Photo by Rocky Mountain News as long as he provided accreditation and attribution of the photograph (which he did). Nunn also stated that he had removed the NTC Photo from bonanza.com, destroyed the source image, and ceased al further sales of the WTC Photo in compliance with NJ's demands.
On April 24, 2013, an offer of judgment pursuant Fed. R. Civ. F. 68 (the "Offer") was made by Nunn and served on the attorneys for NJ. The Offer included Nunn's consent to a permanent injunction as well as a judgment in the amount of The greater of NJ's lost profit on Nunn's sale or NJ's selling price for its ...