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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS Ergun M. Caner, Plaintiff v. Jonathan Autry, Jason Smathers, Defendants : No.: 4:13-cv-494 : : Civil Action - Law : Jury Trial Demanded : (Electronically Filed) :

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 Facsimile: 240.681.2189

Date: November 26, 2013

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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.

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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 established 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. Caners allegation that Jonathan Autry and Jason Smathers intended to harm him, 2

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now a Texas resident, does not create personal jurisdiction over them. The Fifth Circuit has rejected a similar allegation: Appellants' sole evidence is their state court petition, which alleges on information and belief that Appellee knew Appellants are Texas residents and knew its actions would intentionally cause harm to Appellants in Texas. Appellants present no other evidence of Appellee's contacts with Texas relating to Appellants' claims, and thus the district court properly concluded that the allegations are merely conclusory. Panda Brandywine Corp. v. Potomac Elec. Power Co., 253 F.3d 865, 869 (5th Cir. 2001). Further, Jonathan Autry and Jason Smathers did not direct any actions towards Texas, and Dr. Caner lived in Virginia in 2010 when Jason Smathers posted the Count 1 / Count 3 video and the Count 4 video and in the Spring of 2011 when Jonathan Autry posted the Count 2 video. Even if Dr. Caner had lived in Texas (which he did not), that would not alone create personal jurisdiction in this Court. "Foreseeable injury alone is not sufficient to confer specific jurisdiction, absent the direction of specific acts toward the forum." Wien Air Alaska, Inc. v. Brandt, 195 F.3d 208, 212 (5th Cir. 1999). The Supreme Court has explained the foreseeability standard: [T]he foreseeability that is critical to due process analysis is that the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985) (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980)). Quoting Burger King, the Fifth Circuit clarifies the law: To conclude that a defendant should reasonably anticipate being haled into the forum State requires some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and 3

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protections of its laws, or purposefully directs its efforts toward the forum State residents. Panda Brandywine, 253 F.3d at 869 (quoting Burger King, 471 U.S. at 475-76). Jonathan Autry and Jason Smathers have done nothing to expect being haled into court in Texas. They have not purposefully availed themselves of the protection of Texas laws. Nor have they purposefully directed efforts toward Texas residents. This case is like Papa Berg, Inc. v. World Wrestling Entm't, Inc., 2013 WL 2090547, *7*8 (N.D. Tex. May 15, 2013), where this Court dismissed defendants in a copyright action who had no contacts with Texas. The plaintiff argued in that case that this Court should exert jurisdiction simply because of those defendants intent to harm the plaintiff, a Texas corporation. Id. at *8. This Court rejected that argument under the effects test: [P]ersonal jurisdiction under the effects test is rare, and plaintiffs must still show that a defendant purposefully availed itself of the benefits of the forum state or purposely directed conduct at the forum state. See Stroman Realty v. Wercinski, 513 F.3d 476, 486 (5th Cir.2008); see also Hoffman v. L & M Arts, 774 F.Supp.2d 826, 84345 (N.D.Tex.2011) (the effects test is but one facet of the ordinary minimum contacts analysis, to be considered as part of the full range of the defendant's contacts with the forum, and the plaintiff's residence in the forum, and suffering of harm there, will not alone support jurisdiction under Calder ) (citing, inter alia, Revell v. Lidov, 317 F.3d 467, 473 (5th Cir.2002); Panda Brandywine Corp. v. Potomac Elec. Power Co., 253 F.3d 865, 869 (5th Cir.2001) (plaintiff must show purposeful availment besides the plaintiff's residence in the state and the foreseeability of defendant's actions causing injury in Texas)). Papa has not established through a prima facie case that Seitz or Johnston put the allegedly infringing works into the stream of commerce or specifically directed any conduct towards Texas. Nor has Papa established that Papa's causes of action arose from any of Seitz's or Johnston's contacts with Texas. In light of the full range of Seitz's and Johnston's minimal contacts with Texas, even considering the alleged harm to Papa, the effects test alone does not support personal jurisdiction over the Individual Defendants in this case. 4

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Overall, Papa has not established a prima facie case of specific personal jurisdiction over the Individual Defendants. Id. See also Sablatura v. Kokopelli, Inc., 98 U.S.P.Q.2d 1919, 2010 WL 4394250, *2 (S.D. Tex. Oct. 29, 2010) (dismissing trademark claim for improper venue in spite of defendants knowledge that plaintiff was in Texas). As in Papa, Dr. Caner has not established that Jason Smathers or Jonathan Autry directed the videos at Texas. In fact, the videos were posted before Dr. Caner even moved to Texas. Further, Dr. Caner does not allege any harm in this case. Even if Dr. Caner could allege harm for which he would be entitled to damages, which he cannot, that harm would have occurred when the videos were posted in 2010 while he lived in Virginia. The fact that Jonathan Autry and Jason Smathers posted content on the internet cannot create jurisdiction either. Under such a standard, Dr. Caner would be able to pick any forum. For internet posts, the Fifth Circuit has adopted a sliding scale approach to personal jurisdiction: Courts addressing the issue of whether personal jurisdiction can be constitutionally exercised over a defendant look to the nature and quality of commercial activity that an entity conducts over the Internet. At the one end of the spectrum, there are situations where a defendant clearly does business over the Internet by entering into contracts with residents of other states which involve the knowing and repeated transmission of computer files over the Internet. In this situation, personal jurisdiction is proper. At the other end of the spectrum, there are situations where a defendant merely establishes a passive website that does nothing more than advertise on the Internet. With passive websites, personal jurisdiction is not appropriate. In the middle of the spectrum, there are situations where a defendant has a website that allows a user to exchange information with a host computer. In this middle ground, the exercise of jurisdiction is determined by the level of interactivity and commercial nature of the exchange of information that occurs on the Website. Mink v. AAAA Dev. LLC, 190 F.3d 333, 336 (5th Cir. 1999) (citation omitted). In this case, the video posts were clearly passive and do not confer personal jurisdiction upon the Northern 5

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District of Texas. To hold otherwise would permit defendants to forum shop across the entire country in any case involving the internet. B. This Court should dismiss this case for improper venue.

For similar reasons, this Court should dismiss this action for improper venue under FRCP 12(b)(3). Congress has provided that a plaintiff can bring a copyright suit in the district in which the defendant or his agent resides or may be found. 28 U.S.C. 1400(a). Jonathan Autry resides in the Eastern District of Virginia. At the time of the filing of the Complaint and when he posted the videos, he resided in the Western District of Virginia. At all relevant times, Jason Smathers has resided in the District of Arizona. Venue for Counts 1 and 2 would have been proper in the Western District of Virginia, and venue for Counts 3 and 4 would have been proper in the District of Arizona, where a substantial part of the events or omissions giving rise to the claim occurred. 28 U.S.C.A. 1391(b)(2). But venue is not proper in the Northern District of Texas where no events took place.

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III.

Conclusion Therefore, Jonathan Autry and Jason Smathers request this Honorable Court dismiss this

action with prejudice.

Respectfully Submitted, By: _/s/ Joshua M. Autry_________________ Joshua M. Autry, Esquire Attorney I.D. #208459 408 West Chestnut Street Lancaster, PA 17603 Telephone: 717.299.7101 Facsimile: 717.299.5511 _/s/ Kelly B. McClanahan_____________ Kelly B. McClanahan, Esquire N.D. Tex. Bar #984704DC 1200 South Courthouse Road Suite 124 Arlington, VA 22204 Telephone: 301.728.5908 Facsimile: 240.681.2189

Date: November 26, 2013

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CERTIFICATE OF SERVICE I hereby certify that on the date listed below I electronically filed the foregoing with the Court using the CM/ECF system, which sent notification of such filing to the following person(s) at the following email address(es): David C. Gibbs dgibbs@gibbsfirm.com

/s/ Joshua M. Autry__________ Joshua M. Autry, Esquire

Dated: November 26, 2013