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for the

Vincent V. Tylor, )
Plaintiff )
v. ) Civil Action No. CV-14-2178 LB
Vermont Woods Studios, LLC; and )
DOES 1-10, Inclusive )
Defendants )


Now comes Defendant, Vermont Woods Studio, LLC and all unnamed Does, and
pursuant to F.R.C.P. 12 (b)(2), move to dismiss Plaintiff‟s Complaint on the grounds of lack of
personal jurisdiction, and in support thereof states as follows:
Plaintiff is a resident of Hawaii. Vermont Woods Studio, LLC (“Vermont Woods”) is a
Vermont limited liability company with its sole place of business in Vernon, Windham County,
Vermont. The sole members of Vermont Woods are Margaret and Kenneth Farabaugh, both of
whom are Vermont residents.
Plaintiff‟s complaint alleges copyright violations, and alleges personal jurisdiction over
the Defendants because the Defendants have used and “for the
purpose and aim of continuing the infringing activity alleged [in the complaint].” Complaint,
para. 4. and are both Delaware corporations which Plaintiff alleges
are “internet service providers located within [the Northern District of] California.” The
Complaint also alleges that Defendants “availed themselves of California law by . . . regularly
and systematically maintain[ing] property in California in this judicial district the form of a
„.com.‟” Complaint, para. 6.
Plaintiff makes only general allegations as to Does 1-10, with no independent basis for
personal jurisdiction.
The Defendants are not Subject to the Personal Jurisdiction of this Court.
In order to establish personal jurisdiction, the plaintiff bears the burden of showing (i)
either that the nonresident defendant has purposefully directed his activities at the forum state or
that he performed some act by which he purposefully avails himself of the privilege of
conducting activities in the forum (thereby invoking the benefits and protections of its laws) and
(ii) that the plaintiff‟s claim arises out of the forum-related activities of the nonresident
defendant. If the plaintiff meets his burden on these two prongs, then the defendant may still
defeat personal jurisdiction by showing that the exercise of jurisdiction over the nonresident
defendant would not be reasonable because it does not comport with fair play and substantial
justice. Washington Shoe Co. v. A-Z Sporting Goods, Inc., 704 F.3d 668, 672 (9
Cir. 2012).
To be purposefully directed, the tortious conduct alleged by the plaintiff must be
purposefully directed at the forum based on an “effects test that focuses on the forum in which
the defendant's actions were felt, whether or not the actions occurred within the forum.” Pooka
Pooka, at *9. The “effects test” is based on the Supreme Court's decision in Calder v. Jones, 465
U.S. 783, 104 S.Ct. 1482, 79 L.Ed. 2d 804 (1984), which the Ninth Circuit has interpreted to
require that the nonresident defendant has “ (1) committed an intentional act, (2) expressly aimed
at the forum state, (3) causing harm that the defendant knows is likely to be suffered in the forum
state.” Washington Shoe Co., supra, 704 F.3d at 673, quoting Mavrix Photo Inc. v. Brand
Techs., Inc., 647 F.3d 1218, 1228 (9
Cir. 2011). “‟Unless the plaintiff establishes all three of
the Calder elements, the purposeful-direction element is unsatisfied.‟” Pooka Pooka LLC v.
Safari Beach Club LLC, 2013 U.S. Dist. LEXIS 56900 at *10 (N.D. Calif. April 17, 2013),
quoting Facebook, Inc. v. Pedersen, 868 F.Supp.2d 953, 958 (N.D. Calif, 2012).
The Ninth Circuit discussed the second and third prongs of the Calder test in detail in
Washington Shoe Co. v. A-Z Sporting Goods, Inc., 704 F.3d 668 (9
Cir. 2012), where a
Washington entity brought a copyright infringement action in Washington against an Arkansas
defendant. The Washington Shoe Court recognized that the mere act in a non-forum state that
could have “foreseeable effects” in the forum state is not sufficient – there must be “something
more.” Id. at 675. The Court noted that where the complaint is based on tortious actions, “the
something more” requirement is met when the “acts are performed for the very purpose of
having there consequences felt in the forum state.” Id., quoting Brainerd v. Governors of the
University of Alabama, 873 F.2d 1257, 1260 (9
Cir.1989). The Court found that the second
prong had been met because the Arkansas defendant knew that its actions would affect the
plaintiff, who was based in the forum state.
As to the third prong, the Washington Shoe Court noted that where copyright
infringement is alleged, a defendant knows harm is likely to be suffered in the place where the
infringement took place and where the copyright holder has its place of business. Washington
Shoe, supra, 704 F.3d at 679.
Plaintiff has not and could not allege facts that would establish that Vermont Woods‟s
conduct was expressly aimed at California under the Washington Shoe standards. Plaintiff
does not reside in California, therefore it must meet the ”something more” requirement through
different theory. To meet this requirement, Plaintiff suggests that personal jurisdiction is
sufficient exists because Vermont Woods has a webste that can be accessed in California, and
that Vermont Woods uses social media entities that are headquartered in California.
In Pooka Pooka LLC v. Safari Beach Club LLC, 2013 U.S. Dist. LEXIS 56900 (N.D.
Calif. April 17, 2013), this Court rejected both arguments advanced by the Plaintiff to support
personal jurisdiction, holding that the use of Facebook does no subject an entity to personal
jurisdiction in this District, and that having a website that can be viewed in California is not a
basis for establishing personal jurisdiction. In Pooka Pooka, this Court dismissed a case brought
by a Hawaiian corporation against a New York corporation and two individuals residing in New
York for lack of personal jurisdiction. There, as here, the plaintiff alleged that operating a
website that could be viewed in California and using was sufficient to grant
personal jurisdiction against the out of state defendants:
“The Ninth Circuit has „struggled with the question whether tortious conduct
on a nationally accessible website is expressly aimed at any, or all, of the
forums in which the website can be viewed.‟” DFSB Kollective Co. Ltd. V.
Bourne, No. 11-CV-1046-PJH, 897 F. Supp. 2d 871, 2012 U.S. Dist. LEXIS
131078, WL 4051128 at *8 (N.D. Cal. September 13, 2012) (quoting Mavrix
Photo, Inc. 647 F.3d 1124, 1129 (9
Cir. 2010). “One rule, however, is
clear: A defendant has not purposefully availed himself of the privilege of
conducting activities in a forum state merely because he operates a website
which can be accessed there.” Id. (citations omitted); Brayton Purcell LLP v.
Recordon & Recordon, 606 F.3d 1124, 1129 (9
Cir. 2010) (“It is beyond
dispute in this circuit that maintenance of a passive website alone cannot
satisfy the express aiming prong.”). For example, the Ninth Circuit has held
that a federal court in Arizona did not have personal jurisdiction over a
Florida web site advertiser who allegedly posted a service mark without
authorization on its website and “has no contacts with Arizona other than
maintaining a home page that is accessible to Arizonans, and everyone else,
over the Internet.” Cybersell v. Cybersell, Inc. 130 F.3d 414, 415 (9
1997). Pooka Pooka, at *11-12.

Here, (as in Pooka Pooka), “Defendants' mere operation of a website potentially
accessible by Californians does not establish this court's personal jurisdiction over Defendants.
There is nothing to suggest that Defendants were targeting Californians.” Pooka Pooka at 12.
“‟The fact that an essentially passive Internet advertisement may be accessible in the plaintiff's
home state without „something more‟ is not enough to support personal jurisdiction.‟” Pooka
Pooka at 13 (quoting Facebook, Inc. v., LLC, No. CV 10-03654 RMW, 2011
U.S. Dist. LEXIS 48590, 2011 WL 1672464 (N.D. Cal. May 3, 2011) (and citing Cybersell,
supra, 130 F. 3d at 414).
The Pooka Pooka Court also rejected the theory that using social media such as facebook
was sufficient to meet the “something more” requirement:
The only other “something more” Plaintiff can offer is that “Defendants also
use and continue to use the services of Facebook, Inc., Twitter, Inc., and
YouTube, LLC, all of which are California companies, to direct Internet
users to his [sic] websites as well as to post infringing videos, [sic] artwork
on these accounts.” Motion at 5. Another court in the Northern District of
California recently addressed the same issue, also in the context of a motion
for default judgment by one out of state party against another in a copyright
infringement action, and determined that a party's use of California-based
companies to promote its business does not alone establish that the party
expressly aimed its activities at California:

Plaintiffs contend that . . . Defendant utilized accounts on
California-headquartered Internet companies Facebook,,
DeviantArt, and 4Shared to direct traffic to his Websites. While the
location of these companies is relevant for lawsuits directly
involving the companies, the Court is unpersuaded that the
headquarters of these Internet companies establishes that
Defendant expressly aimed his infringing activities at the
California market. To adopt Plaintiffs’ reasoning would render
the “expressly aimed” prong of the Calder test essentially
meaningless as it has become ubiquitous for businesses-large
and small-to maintain Facebook and/or other similar accounts
for marketing purposes and would subject millions of persons
around the globe to personal jurisdiction in California. See
NuboNau, Inc. v. NB Labs, Ltd., 2012 U.S. Dist. LEXIS 32963,
2012 WL 843503 *6 (S.D. Cal. Mar. 9, 2012) (stating that “the
Court doesn't find that merely engaging Twitter and Facebook to
promote one's business constitutes purposeful direction at
California, simply because Twitter and Facebook happen to be
based there and require users to litigate all lawsuits arising out of
their accounts in California”); cf. Collectivesource, Inc. v.
AcademyOne, Inc. 653 F.3d 1066, 1075-76 (9
Cir. 2011) (noting
that “[i]f the maintenance of an interactive website were sufficient
to support general jurisdiction in every forum in which users
interacted with the website, the eventual demise of all restrictions
on the personal jurisdiction of state courts would be the inevitable
result”) (internal quotation marks and citation omitted [by Pooka
Pooka Court]).

Pooka Pooka at 15-16, quoting DFSB Kollective Co. v. Bourne, 897 F. Supp.
2d 871, 883-884 (N.D. Calif. 2012) (emphasis added by Pooka Pooka Court).

Plaintiffs have not met their burden of establishing that Vermont Woods has minimum
contacts necessary to establish personal jurisdiction in this Court. No allegations are made as to
the “Does” so they should be dismissed as well.
Even if this Court were to find that the plaintiff has met the first two prongs of the Calder
test, exercise of personal jurisdiction over these defendants is not reasonable and does not
comport with fair play or substantial justice . Vermont Woods is a small, Vermont based
business. Plaintiff‟s concept of “minimum contacts” is beyond the pale of reason, and ends with
this Court having personal jurisdiction over more than 130 million United States facebook users.
In conclusion, Defendants respectfully request that this Court issue an order dismissing
this case for lack of personal jurisdiction and granting such other relief as is just and equitable.
Dated at ____________________________ this ____ day of June, 2014.