Case 2:19-cv-00289-RJS Document 11 Filed 06/03/19 PageID.38 Page 1 of 21
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`Stephen M. Sansom, #10678
`HOLLAND & HART LLP
`222 S. Main Street, Suite 2200
`Salt Lake City, UT 84101-2194
`Telephone: (801) 799-5897
`Fax: (801) 214-1866
`SMSansom@hollandhart.com
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`Timothy P. Getzoff (pro hac vice forthcoming)
`HOLLAND & HART LLP
`One Boulder Plaza, 1800 Broadway, Suite 300
`Boulder, CO 80302-5289
`Phone: (303) 473-2734
`Fax: (303) 473-2720
`tgetzoff@hollandhart.com
`
`Benjamin N. Simler (pro hac vice pending)
`HOLLAND & HART LLP
`P.O. Box 8749
`Denver, CO 80201-8749
`Phone: (303) 295-8419
`Fax: (303) 975-5341
`bnsimler@hollandhart.com
`
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`IN THE UNITED STATES DISTRICT COURT
`DISTRICT OF UTAH
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`No. 2:19-cv-00289-PMW
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`DEFENDANTS’ MOTION TO DISMISS
`PURSUANT TO RULES 12(b)(1), 12(b)(2),
`AND 12(b)(6), AND TO STRIKE
`PURSUANT TO RULE 12(f)
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`Magistrate Judge Paul M. Warner
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`Plaintiff,
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`Christine Martin,
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`vs.
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`SGT, Inc. et al.,
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`Defendants.
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`Defendants SGT, Inc. (“TGT”) and Timothy Tasker (collectively, “Defendants”)
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`respectfully move the Court for an order dismissing this action in its entirety against both
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`Defendants: (1) under Rule 12(b)(1) for lack of subject matter jurisdiction, both because Plaintiff
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`does not have standing to pursue several of her claims and because the Court does not have
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`either original or supplemental jurisdiction over any of her claims; (2) under Rule 12(b)(6), for
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`failure to plausibly set forth claims for relief, because the claims are legally barred and factually
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`insufficient; and, (3) under Rule 12(b)(2) and 12(b)(3) for lack of personal jurisdiction and
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`improper venue. Further, if the Court does not dismiss this action in its entirety against both
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`Defendants, then under Rule 12(f), Defendants request that the Court strike several of the
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`allegations and demands from the Complaint.
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`I.
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`RELEVANT FACTS1
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`According to the Complaint, Plaintiff Christine Martin became acquainted with Timothy
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`Tasker when he was a sales representative for another company that she licensed work to in
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`Wyoming. Id. ¶¶ 13–14. Beginning in 1999, and in the ensuing years thereafter, Plaintiff
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`created artwork that she alleges she licensed to TGT (the “TGT Artwork”), without any
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`limitation on TGT’s use. Compl. ¶¶ 17–21, 24–25. According to the Complaint, although later
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`Plaintiff attempted to renegotiate with TGT to receive an ongoing royalty, the License that
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`Plaintiff and TGT allegedly entered into and that remained in place from 1999 until 2019 only
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`required TGT to pay one-time fees for her work, which fees TGT paid. Id. ¶¶ 16–17, 20.2
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`Plaintiff also allegedly assisted TGT’s in-house designer in modifying the TGT Artwork for
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`TGT’s business purposes. Id. ¶ 19.
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`1 The facts as alleged in the Complaint that are recited below are assumed to be true for purposes
`of this Motion only.
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`2 The Complaint also refers to one separate agreement, operative from 2002-2009, for a certain
`line of “Stylie Stickers,” under which an ongoing royalty was paid until that line of sticker
`products was discontinued many years ago. Compl. ¶ 23. This apparently extraneous allegation
`is not directed to any of Plaintiff’s claims.
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`-2-
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`The Complaint alleges that Plaintiff provided TGT with the TGT Artwork under a non-
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`exclusive and non-transferrable license, and not as part of a work-for-hire agreement, such that
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`Plaintiff was vested with all copyrights in the TGT Artwork. Id. ¶¶ 17, 26–31. Nevertheless, the
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`Complaint says, TGT filed applications for and obtained copyright registration certificates from
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`the U.S. Copyright Office in 2014 and 2018 for some of the TGT Artwork. Id. ¶¶ 32–33.
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`The Complaint alleges that in 2015 Plaintiff had an opportunity to license the TGT
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`Artwork to another entity, Lakeshirts, with which she had an existing business relationship, but
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`that she elected to forego that opportunity out of her feeling of loyalty to TGT (for whom her
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`husband also worked). Id. ¶¶ 21–22, 34–35. The Complaint alleges that in February 2019, TGT
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`sold all of its assets to Lakeshirts, which assets included the fully-paid-up License for the TGT
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`Artwork. Id. ¶¶ 36–41. Then, despite her own belief that the License was fully paid-up and that
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`TGT had assigned the License to Lakeshirts, Plaintiff then purported to terminate the License by
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`written notice to TGT and demanded that TGT tell Lakeshirts of the same, which she claims
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`TGT has not done. Id. ¶¶ 44, 46–47.
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`II.
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`ARGUMENT
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`As the Complaint makes clear, this case is really about Plaintiff’s regret of a deal she
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`made with TGT twenty years ago, because if she had made a different agreement “she could
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`have made more money.” Compl. ¶ 35. As is also abundantly clear, Plaintiff has no legitimate
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`claims here, and this case should be dismissed.
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`Even if all of her allegations were true (which they aren’t), Plaintiff’s claims would still
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`fail for several reasons. These include:
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`-3-
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`(1) Plaintiff’s alleged damages are that Lakeshirts, a non-party, has not been paying
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`royalties to Plaintiff for the TGT Artwork that Lakeshirts acquired in the asset
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`purchase from TGT. Compl. ¶ 39. But if Lakeshirts is not authorized to use the TGT
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`Artwork, or if Lakeshirts is required to pay Plaintiff royalties and is not doing so, then
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`Plaintiff’s recourse is against Lakeshirts, not Defendants.
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`(2) Even if TGT once claimed ownership of the copyrights in some or all the TGT
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`Artwork, the Complaint is clear that TGT sold all of its assets to Lakeshirts, such that
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`TGT no longer claims any such ownership. Again, if there is an ownership dispute, it
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`is between Plaintiff and Lakeshirts, not Plaintiff and Defendants.
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`(3) Along the same lines, the declaratory relief Plaintiff seeks—that she is the “owner” of
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`copyright registrations she did not apply for—simply is not available in this suit.
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`Should she desire to obtain copyright registrations, Plaintiff’s recourse is before the
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`U.S. Copyright Office.
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`(4) To the extent Plaintiff’s claims are premised on Defendants “selling” Plaintiff’s
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`artwork, her claims are nothing more than recast and preempted claims for copyright
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`infringement, which Plaintiff cannot bring because she has never applied to register
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`herself as a claimant of her alleged copyrights.
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`(5) To the extent the claims are premised on misrepresentations Defendants allegedly
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`made to Lakeshirts or that TGT breached contracts between TGT and Lakeshirts,
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`such allegations would be between TGT and Lakeshirts, and Plaintiff again has no
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`standing to pursue such claims.
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`-4-
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`Second, apart from Plaintiff’s lack of standing, most if not all of her claims are
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`preempted by copyright law and thus dismissable on that basis. Moreover, her factual
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`allegations also fail to set forth a plausible basis to grant her relief on any claim.
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`Finally, Plaintiff’s claims are defective on jurisdictional and venue grounds: Defendants
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`are not subject to personal jurisdiction in this forum, and this Court is not a proper venue.
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`A.
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`This Court Lacks Subject Matter Jurisdiction To Hear This Dispute.
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`This Court has neither original nor supplemental jurisdiction over Plaintiff’s claims, and
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`should decline to exercise supplemental jurisdiction even if it otherwise could. “The party
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`invoking federal jurisdiction bears the burden of establishing such jurisdiction as a threshold
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`matter.” Radil v. Sanborn W. Camps, Inc., 384 F.3d 1220, 1224 (10th Cir. 2004).
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`The Complaint invokes this Court’s original subject matter jurisdiction over this dispute
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`under the Copyright Act, jurisdiction “arising under” federal question jurisdiction, and
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`supplemental jurisdiction for state law claims. See Compl. ¶¶ 6–7. None of the Complaint’s
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`invocations of subject matter jurisdiction holds water.
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`1.
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`Plaintiff Cannot Make a Claim for Copyright Infringement
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`The first alleged jurisdictional basis is 17 U.S.C. § 501. That section of the Copyright
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`Act provides copyright owners with the right to sue for copyright infringement. Here, however,
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`the Complaint does not make a claim for copyright infringement. Even if it did, Plaintiff has
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`never attempted to register her copyright claims, a mandatory prerequisite for her to bring any
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`such claim. See Fourth Estate Pub. Benefit Corp. v. Wall-Street.com, LLC, 139 S. Ct. 881, 887
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`(2019) (citing 17 U.S.C. § 411(a)). Therefore, the first alleged basis for federal jurisdiction fails.
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`-5-
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`2.
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`There Is No Federal Question Jurisdiction
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`The second and third alleged bases for federal jurisdiction are 28 U.S.C. §§ 1331 and
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`1338(a). These provide for federal jurisdiction over civil claims “arising under” federal law
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`generally, in the case of the former, or under the Copyright Act specifically, in the latter. These
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`invocations of federal jurisdiction do not withstand scrutiny.
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`As previously noted, there is no claim for copyright infringement. And, while Plaintiff’s
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`Second Claim for Relief invokes the Declaratory Judgment Act, 28 U.SC. § 2201, it is axiomatic
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`that the Declaratory Judgment Act is procedural and not itself a basis for federal jurisdiction.
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`See Cardtoons, L.C. v. Major League Baseball Players Ass’n, 95 F.3d 959, 964 (10th Cir. 1996).
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`The only possible other basis for Plaintiff’s assertion of federal question jurisdiction is
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`the claim that she is the owner of several copyrights, and that TGT is not the owner of those
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`copyrights. But, for several reasons, this basis also does not raise a justiciable federal question.
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`First, the alleged ownership dispute is predicated on Plaintiff’s alleged contractual
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`agreement with Defendants, meaning her claim arises under state—not federal—law. See, e.g.,
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`1mage Software, Inc. v. Reynolds & Reynolds Co., 459 F.3d 1044, 1049 (10th Cir. 2006) (“the
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`federal grant of a copyright has not been thought to infuse with any national interest a dispute as
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`to ownership or contractual enforcement turning on the facts or on ordinary principles of contract
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`law”) (internal quotations, alterations, and citations omitted).
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`Second, the Complaint alleges that TGT sold all of its assets, and thus concedes that TGT
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`does not currently claim to own any copyrights or licenses to Plaintiff’s work. See, e.g., Compl.
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`¶ 24 (“Lakeshirts acquired TGT’s assets in February 2019”). In other words, even if an
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`ownership dispute might once have existed between Plaintiff and TGT, Plaintiff’s claim is moot
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`-6-
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`now. See Schutz v. Thorne, 415 F.3d 1128, 1138 (10th Cir. 2005) (“Constitutional mootness
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`exists when the issues presented are no longer live or the parties lack a legally cognizable interest
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`in the outcome.” (internal quotations and citation omitted)).
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`Apart from the absence of a live dispute between Plaintiff and TGT, there also is no
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`allegation anywhere in the Complaint that Timothy Tasker personally ever claimed ownership of
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`any of the TGT Artwork copyrights. See Compl.; see also Ex. 1 (summary records of
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`registration from U.S. Copyright Office).3 Given the total absence of any apparent ownership
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`dispute as between Plaintiff and Tasker—whether today or at any other time—there never would
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`have been a reasonable basis for Plaintiff’s invoking the Court’s subject matter jurisdiction
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`against Tasker.
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`3.
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`The Declaratory Relief Plaintiff Seeks Is Not Available
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`Even assuming arguendo that there exists a live dispute over ownership of the TGT
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`Artwork copyrights as between the parties here, the relief Plaintiff requests under her declaratory
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`judgment claim—to have the Court declare her “the owner of [several] U.S. Copyright
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`Registration certificate[s]”—is nonsensical and would require the Court to render an improper
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`advisory opinion. See, e.g., Jordan v. Sosa, 654 F.3d 1012, 1026 (10th Cir. 2011) (“A
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`declaratory judgment that merely seeks to affect the (uncertain) future conduct of third parties—
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`who are not named in a plaintiff’s complaint—would involve the very sort of speculative,
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`3 The Court may and is requested to take judicial notice of the contents of public records and
`other documents referenced in the Complaint, which it also may properly consider for purposes
`of this Motion, including the portions of this Motion made under Rule 12(b)(6). Berneike v.
`CitiMortgage, Inc., 708 F.3d 1141, 1146 (10th Cir. 2013).
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`-7-
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`‘hypothetical’ factual scenario that would render such a judgment a prohibited advisory
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`opinion.”). There are multiple reasons for this.
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`First, following the acquisition of TGT’s assets, Lakeshirts would be the one now
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`claiming ownership of the registrations, not TGT. In other words, there is nothing to declare as
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`between Plaintiff and TGT. Even if it wanted or was ordered to, TGT could not transfer
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`ownership of any certificates of registration that belong to Lakeshirts.
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`Second, a copyright registration is merely an administrative document by which the
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`Copyright Office records a particular person’s claim to an underlying copyright. See 17 U.S.C.
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`§ 409. A certificate of registration issued by the Copyright Office itself confers no substantive
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`copyrights. See, e.g., 17 U.S.C. § 408(a). And, as evidenced by the registration records, there is
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`no such thing as being an “owner” of a copyright registration—one may only be a registered
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`copyright “claimant” or “applicant.” See, e.g., Ex. 1. Plaintiff apparently has never sought to
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`apply to the Copyright Office to register her claim to any copyright.
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`Third, to the extent the relief sought would require the Copyright Office to cancel or
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`amend the copyright registration applications or certificates so as to name Plaintiff as the
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`applicant or claimant, the Court has no power to hear such a claim until and unless Plaintiff is
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`unsuccessful in pursuing this relief from the Copyright Office. See, e.g., Brownstein v. Lindsay,
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`742 F. 3d 55, 75-77 (3d Cir. 2014). Plaintiff’s recourse is with the Copyright Office first; only if
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`she is unsuccessful there can she then sue the Copyright Office, under the Administrative
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`Procedure Act, for the relief she seeks here. Id.
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`4.
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`There Is No Basis for Supplemental Jurisdiction
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`Each state law claim in a Complaint is assessed separately to determine whether it
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`“share[s] a common nucleus of operative facts,” with the federal claim. See, e.g., Crow v.
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`Uintah Basin Elec. Telecommunications, No. 2:09-CV-1010-TS, 2010 WL 5069852, at *4 (D.
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`Utah Dec. 6, 2010) (citations omitted). Even if the Court had original jurisdiction to decide the
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`moot and advisory claims about ownership of the copyrights as between Plaintiff and TGT, it
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`still would not have supplemental jurisdiction over the other disputes in this case—i.e., the First,
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`Third, and Fourth Causes of Action. These claims do not form part of the “same case or
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`controversy” within the meaning of 28 U.S.C. § 1367(a).
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`The First Cause of Action asserts breach of the terms of the “License,” not a dispute over
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`copyright ownership. See Compl. ¶¶ 17, 50. Similarly, the Third and Fourth Causes of Action
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`allege that Defendants assigned “the License” despite its alleged non-assignability, thereby
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`competing unfairly with Plaintiff and becoming unjustly enriched. These claims similarly turn
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`only on the terms of the alleged License. Moreover, it is clear that Plaintiff’s the state law claims
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`substantially predominate. Therefore, even if the Court were to find that it has original
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`jurisdiction over the Second Cause of Action, the Court still should decline to supplemental
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`exercise jurisdiction to hear any of the other state law claims, particularly as the Second Cause of
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`Action is subject to dismissal. See 28 U.S.C. § 1367(c).
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`B.
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`All the Claims Fail on the Face of the Complaint
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`“To survive dismissal under Rule 12(b)(6) for failure to state a claim, plaintiffs must
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`nudge their claims across the line from conceivable to plausible. A claim has facial plausibility
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`when the pleaded factual content allows the court to draw the reasonable inference that the
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`-9-
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`defendant is liable for the misconduct alleged.” Berneike v. CitiMortgage, Inc., 708 F.3d 1141,
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`1144 (10th Cir. 2013) (internal quotations, alterations, and citations omitted).
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`For the reasons discussed above, not only is the claim jurisdictionally deficient, but the
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`alleged facts do not plausibly show that Plaintiff is entitled to relief from either Defendant on her
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`Second Cause of Action. The facts alleged also do not plausibly show that Plaintiff is entitled to
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`relief from either Defendant on any of her other claims.
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`1.
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`Plaintiff’s First, Third & Fourth Causes of Action Are Not Plausible
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`Plaintiff’s First, Third and Fourth Causes of Action, for breach of contract, unfair
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`competition and unjust enrichment are not cognizable.4 Those claims assert that Defendants
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`breached the alleged License to TGT by registering copyrights, by assigning the License to
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`Lakeshirts, or by selling Plaintiff’s artwork to Lakeshirts. These claims are untenable.
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`a)
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`The Fourth Cause of Action Fails
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`Here, the premise of Plaintiff’s unjust enrichment claim is the same as TGT’s alleged
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`breach of the parties’ License. Compare Compl. ¶ 65 with id. ¶ 50. As such, the claim must be
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`dismissed as nonviable and contrary to both Utah and Wyoming law, because where “a legal
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`remedy is available, such as breach of an express contract, the law will not imply the equitable
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`remedy of unjust enrichment.” CE Providers v. Stearns Bank, No. 2:18-CV-100 TS, 2018 WL
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`3448335, at *3 (D. Utah July 17, 2018) (dismissing claim for unjust enrichment) (quoting Am.
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`Towers Owners Ass’n, Inc. v. CCI Mech., Inc., 930 P.2d 1182, 1193 (Utah 1996)); Maint. Enters.
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`4 To permit the Court to avoid engaging in a complicated choice of law analysis at this
`preliminary stage, Defendants’ analysis demonstrates that Plaintiff’s claims fail under both
`Wyoming and Utah law.
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`-10-
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`v. Dyno Nobel, Inc., No. 08-CV-170-J, 2010 WL 11507832, at *5 (D. Wyo. Mar. 19, 2010)
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`(citing cases for same rule under Wyoming law and dismissing unjust enrichment claim).
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`Alternatively, to the extent the premise of the Fourth Claim is that TGT or Tasker was
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`enriched because it or he received funds from Lakeshirts and either made misrepresentations to
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`or breached an agreement with Lakeshirts, Plaintiff has no standing to assert any such claim.
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`Moreover, to the extent the claim is based on an allegation that Defendants were enriched
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`by licensing or permitting Lakeshirts to use the disputed artwork, then, as discussed below, the
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`claim is squarely preempted by the Copyright Act.
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`Finally, to the extent the claim is based on some other theory, it would still fail on the
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`merits. The Complaint acknowledges that Plaintiff received full payment of the amounts she
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`invoiced TGT, showing that whatever benefit she conferred on TGT she was compensated for.
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`See Compl. ¶ 17. For all these reasons, there simply is no plausible basis for Plaintiff’s Fourth
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`claim for unjust enrichment.
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`b)
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`The Third Cause of Action Fails
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`The Third Cause of Action for unfair competition similarly fails. This claim also is
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`premised on the assertion that the License was non-assignable, and that TGT assigned its rights
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`under the License notwithstanding. See Compl. ¶¶ 60. The Complaint does not allege any
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`physical injury. Consequently, this claim is precluded by the economic loss doctrine. That rule,
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`which prevents contract claims from being pursued as tort claims, holds that “when a conflict
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`arises between parties to a contract regarding the subject matter of that contract, the contractual
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`relationship controls, and parties are not permitted to assert actions in tort in an attempt to
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`circumvent the bargain they agreed on.” Lee v. Thorpe, 2006 UT 66, ¶ 15, 147 P.3d 443, 446
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`(quotation and citation omitted); Anapoell v. Am. Express Bus. Fin. Corp., No. 2:07-CV-198-TC,
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`2007 WL 4270548, at *6–7 (D. Utah Nov. 30, 2007) (citing and analyzing cases, dismissing all
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`tort claims arising after parties entered into contractual relationship because source of alleged
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`duty was contractual); JBC of Wyoming Corp. v. City of Cheyenne, 843 P.2d 1190, 1197 (Wyo.
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`1992) (“tort liability can only be premised on a duty independent of contractual duties”). In
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`other words, because the premise of Plaintiff’s claim is that TGT breached a contractual
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`obligation not to assign the License, she is limited to claims sounding in contract.
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`Alternatively, to the extent the claim somehow could be construed to be based on some
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`independent duty owed to Plaintiff, the only possibility is that it arises from a duty not to infringe
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`Plaintiff’s alleged copyrights. But in that case, as discussed below, the claim is wholly
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`preempted by the Copyright Act.
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`Finally, even were the claim not precluded by the economic loss rule or preempted by the
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`Copyright Act, it still would not be plausible on the alleged facts. Claims for “unfair
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`competition” are essentially trademark claims, which are limited to either “1) passing-off or
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`palming-off claims; [or] 2) misappropriation claims.” Proctor & Gamble Co. v. Haugen, 947 F.
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`Supp. 1551, 1554 (D. Utah 1996); Overstock.com, Inc. v. SmartBargains, Inc., 2008 UT 55, ¶ 13,
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`192 P.3d 858, 862; Back v. Bank of Am., N.A., No. 17-CV-16-F, 2017 WL 5172433, at *3 (D.
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`Wyo. May 10, 2017) (under Wyoming law, unfair competition claims are “similar to common
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`law trademark or trade name infringement”).
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`The first type of claim, for “passing-off or palming-off,” is essentially one for trademark
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`infringement. This kind of claim has numerous required elements, such as protectability,
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`secondary meaning, and the likelihood of consumer confusion. Here, none of the elements of
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`this type of unfair claim are supported by any factual allegations.5
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`Misappropriation-type unfair competition claims involve the obtaining and using of the
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`valuable confidential information of another through deceptive or unlawful means. See
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`Soundvision Techs., LLC v. Templeton Grp. Ltd., 929 F. Supp. 2d 1174, 1196 (D. Utah 2013);
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`Briefing.com v. Jones, 2006 WY 16, ¶¶ 8, 15, 126 P.3d 928, 933, 936 (Wyo. 2006). Here, there
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`is no allegation that any information that Defendants obtained was confidential to Plaintiff, or
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`that any improper means were used to obtain any such confidential information.
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`Finally, unfair competition claims also require factual allegations sufficient to plausibly
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`show that Plaintiff’s reputation or business would be harmed. See, e.g., Garth O. Green
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`Enterprises, Inc. v. Harward, No. 2:15-CV-00556-DN, 2016 WL 7441636, at *9–10 (D. Utah
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`Dec. 27, 2016). But here there are no such facts alleged—only a conclusory statement. Like the
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`Fourth Cause of Action, the Third Cause of Action should be dismissed with prejudice.
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`c)
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`The First, Third, and Fourth Causes of Action Are Preempted
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`The First, Third, and Fourth Causes of Action all allege that Defendants claimed
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`ownership of or attempted to license the distribution, sale, display, or copying of Plaintiff’s
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`artwork without her consent. These claims are preempted by the Copyright Act.
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`5 This type of claim cannot cover false statements of the authorship of creative expressions; it
`only covers the “passing off’ of another’s physical goods or services as one’s own or one’s own
`goods or services as those of another. See, e.g., Dastar Corp. v. Twentieth Century Fox Film
`Corp., 539 U.S. 23, 34 (2003) (claims of unfair competition based on misrepresentations of
`authorship not cognizable because that “would create a species of mutant copyright law”).
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`-13-
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`The Copyright Act grants “the owner of copyright[s] . . . the exclusive rights to” control
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`the distribution and reproduction of their copyrighted works, see 17 U.S.C. § 106, and preempts
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`all causes of action “within the general scope of copyright as specified by section 106.” 17
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`U.S.C. § 301(a).
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`Claims for unjust enrichment and unfair competition related to the allegedly unauthorized
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`reproduction or distribution of graphic works consistently have been held by the Courts in every
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`circuit to be preempted. See, e.g., Ehat v. Tanner, 780 F.2d 876, 878 (10th Cir. 1985) (claims for
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`unfair competition and unjust enrichment under Utah common law preempted by copyright act);
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`Wilcox v. Career Step, No. 2:08-CV-998-CW, 2010 WL 624863, at *4–10 (D. Utah Feb. 19,
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`2010) (unfair competition and unjust enrichment claims preempted by Copyright Act).
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`State law claims of unauthorized sales or transfers also are preempted if based on
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`allegations of false claims of authorship or copyright ownership. See, e.g., Oaster v. Robertson,
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`173 F. Supp. 3d 1150, 1178 (D. Colo. 2016) (unjust enrichment claim preempted even where
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`ownership of copyrights disputed); Clark v. Dashner, No. CV 14-00965 KG-KK, 2016 WL
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`3621274, at *15 (D.N.M. June 30, 2016) (unfair competition claims preempted where based
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`alleged authorship or ownership of copyrights, citing Ehat and R.W. Beck, Inc. v. E3 Consulting,
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`LLC, 577 F.3d 1133, 1144–49 (10th Cir. 2009)).
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`Claims for breach of contract that are essentially equivalent to those arising under the
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`copyright laws, too, are preempted. See, e.g., Ritchie v. Williams, 395 F.3d 283, 287-88 (6th Cir.
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`2005) (“The [contract and tort] claims are that [defendant] licensed the songs . . . to others in
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`violation of the copyrights . . . of [Plaintiff]. All of these claims are ‘equivalent’ to infringement
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`claims” and therefore preempted”).
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`-14-
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`Case 2:19-cv-00289-RJS Document 11 Filed 06/03/19 PageID.52 Page 15 of 21
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`Here, as described above, Plaintiff’s tort and contract claims are nothing more than recast
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`claims of copyright infringement, and therefore they are preempted.
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`C.
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`All Claims Against Tasker Fail
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`Finally, there are no allegations in the Complaint to support Tasker’s plausible liability
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`for any of Plaintiff’s claims. There simply is no conduct that he is alleged to have engaged in
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`that is alleged to have caused any harm to Plaintiff, let alone any conduct that would give rise to
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`any personal liability on his part. Given the complete absence of any such factual allegations, or
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`at the very least allegations that would support a veil-piercing theory against TGT, there is no
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`apparent reason for Tasker to have been named in this case other than for purposes of
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`harassment. All claims against Tasker should be dismissed even if somehow they survive
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`against TGT.
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`D.
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`Defendants Are Not Subject to Personal Jurisdiction in This Forum
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`Personal jurisdiction can be established over a defendant either generally or specifically.
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`Plaintiff bears the burden of making a prima facie showing establishing personal jurisdiction
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`over defendants. Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1070 (10th Cir.
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`2008). The Court only accepts as true the un-uncontroverted and “well-pled (that is, plausible,
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`non-conclusory, and non-speculative) facts alleged in [the] complaint,” in determining whether
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`Plaintiff has made a prima facie showing that personal jurisdiction exists. Id. When the
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`presence or absence of personal jurisdiction is not established by reference to the Complaint’s
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`uncontroverted allegations, Plaintiff must put forth sufficient evidence that, if proven to be true,
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`would support jurisdiction over the defendants. Id.
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`-15-
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`Case 2:19-cv-00289-RJS Document 11 Filed 06/03/19 PageID.53 Page 16 of 21
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`Where, as here, only specific personal jurisdiction is asserted,6 the Court should assess
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`personal jurisdiction on a claim-by-claim basis. Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d
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`266, 274-75 (5th Cir. 2006); Remick v. Manfredy, 238 F.3d 248, 255 (3d Cir. 2001) (“[T]hat the
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`District Court has personal jurisdiction over one of the defendants as to a particular claim
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`asserted by [Plaintiff] does not necessarily mean that it has personal jurisdiction over that same
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`defendant as to [Plaintiff’s] other claims.”).7
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`Specific jurisdiction “requires, first, that the out-of-state defendant must have
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`purposefully directed its activities at residents of the forum state, and second, that the plaintiff's
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`injuries must arise out of defendant’s forum-related activities.” Dudnikov, 514 F.3d at 1071
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`(internal quotations and citation omitted). For purposes of the first prong, “[i]n the tort context,
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`[the Court] ask[s] whether the nonresident defendant ‘purposefully directed’ its activities at the
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`forum state; in contract cases, meanwhile, we sometimes ask whether the defendant
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`‘purposefully availed’ itself of the privilege of conducting activities or consummating a
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`transaction in the forum state.” Id. For purposes of the second prong, a claim “arises out of”
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`forum-related activities if the Plaintiff’s alleged injuries would not have arisen “but for” the
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`6 It does not appear from the Complaint that Plaintiff asserts general jurisdiction over either
`defendant. Nor could it. General jurisdiction requires Defendants to be “essentially at home” in
`Utah. BNSF Ry. Co. v. Tyrrell, 137 S. Ct. 1549, 1558 (2017) (quoting Daimler AG v. Bauman,
`571 U.S. 117, 137–39 (2014)). There is no question Tasker is not at home here. With respect to
`a corporate defendant like TGT that is not incorporated in and does not have its principal place
`of business in Utah, plaintiff must show this is the type of “exceptional case,” where “a corporate
`defendant’s operations in [Utah] ‘[are] so substantial and of such a nature as to render the
`corporation at home in [the] State.” Id. at 1558–59 (quoting Daimler, 571 U.S. at 139 n.19).
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`7 See also Grynberg v. Ivanhoe Energy, Inc., 490 Fed. App’x 86, 93 n.4 (10th Cir. 2012) (citing
`Seiferth and Remick, but declining to opine on this standard because the parties did not advance
`their arguments on a claim-by-claim basis).
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`forum-related activities, or if the forum-related activities are relevant to proving the elements of
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`the claims. See Newsome v. Gallacher, 722 F.3d 1257, 1269 (10th Cir. 2013); Bristol–Myers
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`Squibb Co. v. Super. Ct. of Cal., 137 S.Ct. 1773, 1781 (2017) (“For a court to exercise specific
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`jurisdiction over a claim there must be an “affiliation between the forum and the underlying
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`controversy, principally, an activity or an occurrence that takes place in the forum State. When
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`there is no such connection, specific jurisdiction is lacking regardless of the extent of a
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`defendant’s unconnected activities in the State.” (internal quotations, alterations, and citations
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`omitted)).
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`Here, the Complaint’s only forum-related allegation is that Plaintiff is a Utah resident and
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`that Defendants supposedly “have transacted business” in Utah “during the relevant time
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`period.” See Compl. ¶¶ 1, 4. In contrast to these minimalist allegations, every other allegation in
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`the Complaint involves Wyoming, which is: where