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Caner vs. Autry et al. Brief in Support of Motion to Dismiss For Lack of Jurisdiction and Improper Venue

Caner vs. Autry et al. Brief in Support of Motion to Dismiss For Lack of Jurisdiction and Improper Venue

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Published by Jason Smathers
Caner vs. Autry et al. Brief in Support of Motion to Dismiss For Lack of Jurisdiction and Improper Venue
Caner vs. Autry et al. Brief in Support of Motion to Dismiss For Lack of Jurisdiction and Improper Venue

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Published by: Jason Smathers on Nov 27, 2013
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02/16/2014

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS Ergun M. Caner, : No.: 4:13-cv-494 Plaintiff : v. : Civil Action - Law : Jury Trial Demanded Jonathan Autry, Jason Smathers, : (Electronically Filed) Defendants : Brief in Support of Motion to Dismiss For Lack of Jurisdiction and Improper Venue Joshua M. Autry, Esquire Pa. Supreme Ct. I.D. 208459 Clymer Musser & Conrad, P.C. 408 W. Chestnut St. Lancaster, PA 17603 Phone: (717) 299-7101 Fax: (717) 299-5115  josh.autry@clymerlaw.com Kelly B. McClanahan, Esquire N.D. Tex. Bar #984704DC 1200 South Courthouse Road Suite 124 Arlington, VA 22204 Telephone: 301.728.5908 Date: November 26, 2013 Facsimile: 240.681.2189
Case 4:13-cv-00494-Y Document 26-1 Filed 11/26/13 Page 1 of 9 PageID 100
 
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I. Statement of the Case: A. Procedural History:
On June 18, 2013, Dr. Ergun Caner filed a Complaint in the Northern District of Texas. On October 14, 2013, Dr. Ergun Caner filed an Amended Complaint. In Counts 1 and 2, Dr. Caner alleges that Jonathan Autry infringed his copyright by posting two videos on YouTube. In Counts 3 and 4, Dr. Caner alleges that Jason Smathers infringed his copyright by posting two videos. The video in Count 1 and 3 are the same video. On November 25, 2013, Defendants filed a motion to sever the case for improper joinder. Defendants are also filing, contemporaneous with this motion, a motion to dismiss for failure to state a claim and a motion to dismiss for failure to join all necessary parties, and Jonathan Autry is filing a motion to transfer the case to the Western District of Virginia.
B. Statement of the Facts:
Jason Smathers, a resident of Arizona, posted the videos subject to Count 3 and 4 in 2010
while Dr. Caner lived in Virginia. Jonathan Autry Dec. ¶ 7 (Ex. “A”)
; Jason Smathers Dec., Dkt. #23-1, ¶ 4 (filed Nov. 25, 2013). Jonathan Autry, a Virginia resident, posted the video subject to Count 2 in Spring of 2011 while Dr. Caner lived in Virginia. Jonathan Autry Dec. ¶ 18 (Ex.
“A”). Jonathan Autry posted the Count 1 video in February 2012. Jonathan Autry Dec. ¶ 8 (Ex. “A”). This was after Dr 
. Caner moved from Virginia to Texas, but Count 1 was the same video that Mr. Smathers posted in 2010 that is subject to Count 3. Accordingly, all 3 videos were originally posted while Dr. Caner lived in Virginia.
Case 4:13-cv-00494-Y Document 26-1 Filed 11/26/13 Page 2 of 9 PageID 101
 
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II. Argument: A.
 
This Court should dismiss for lack of personal jurisdiction.
This Court should dismiss this action pursuant to FRCP 12(b)(2). Dr. Caner has not shown personal jurisdiction over Jonathan Autry or Jason Smathers. The standard for jurisdiction is as follows: Plaintiffs typically carry the burden of proof on personal  jurisdiction by making a
 prima facie
 showing. The district court usually resolves the jurisdictional issue without conducting a hearing.
Due process requires that (1) the defendant have establis
hed “minimum contacts” with the forum state; and (2) the exercise of personal jurisdiction does not offend “traditional notions of fair play and substantial justice.” A defendant has the
minimum contacts required by due process where his purposeful activities directed at the forum state have invoked the benefits of that state's laws, so that he reasonably could anticipate being hauled into court there. Purposeful forum-directed activity-even if only a single substantial act-may permit the exercise of specific  jurisdiction in an action arising from or related to such acts.
 Ham v. La Cienega Music Co.
, 4 F.3d 413, 415-16 (5th Cir. 1993) (affirming dismissal of copyright action for lack of venue). Dr. Caner cannot meet this burden. Jonathan Autry and Jason Smathers have had no contacts with Texas. Jonathan Autry and Jason Smathers have not directed any conduct towards Texas. Jason Smathers, an Arizona resident, posted the Counts 3 and 4 videos in 2010 while Dr. Caner resided in Virginia. Jonathan Autry posted the Count 2 video in the Spring of 2011 while Dr. Caner resided in Virginia. Although Jonathan Autry posted the Count 1 video after Dr. Caner moved to Texas, this was the same video posted by Mr. Smathers in Count 3 while Dr. Caner lived in Virginia. As in
 Ham
, this Court should hold that the exercise of personal jurisdiction against Jonathan Autry and Jason Smathers offends due process.
Dr. Caner’s allegation that Jonathan Autry and Jason Smathers intended to harm him,
Case 4:13-cv-00494-Y Document 26-1 Filed 11/26/13 Page 3 of 9 PageID 102

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