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WISHFIRE ENTERPRISES, LLC et al., Plaintiffs, v. DANCING FERRET DISCS, INC. et al., Defendants. __________________________________/ ORDER DENYING THE MOTION TO DISMISS This is a copyright-infringement and breach-of-contract case. The defendants have moved to dismiss for failure to state a claim on which relief can be granted and lack of personal jurisdiction. This order denies the motion. I The complaint includes these allegations. The plaintiff The Cruxshadows is a band that records music and has had three number-one hits. The plaintiff Virgil R. Du Pont, III, is the band‟s lead member. The other plaintiffs are a limited liability company and corporation that market the band‟s music under a license from the band or its lead member. All are based in Florida. CASE NO. 4:11cv92-RH/WCS

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The defendant Dancing Ferret Discs, Inc., has a record label and distributes music throughout the United States, including in Florida. Dancing Ferret‟s principal place of business is in Pennsylvania. The defendant Patrick M. Rodgers is Dancing Ferret‟s chief executive. The Cruxshadows and Dancing Ferret entered into a series of licensing agreements that now have expired. Dancing Ferret failed to pay royalties that were due under the agreements. Dancing Ferret and Mr. Rodgers have continued to distribute The Cruxshadows‟ music and to use its marks without authority. II The Supreme Court has set out the standards governing a motion to dismiss for failure to state a claim: Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief.” Specific facts are not necessary; the statement need only “„give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.‟” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). In addition, when ruling on a defendant‟s motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint. Bell Atlantic Corp., supra, at 555-556 (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508, n.1 (2002); Neitzke v. Williams, 490 U.S. 319, 327 (1989); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). Erickson v. Pardus, 551 U.S. 89, 93 (2007). The court must accept the complaint‟s allegations as true “even if [the allegations are] doubtful in fact.” Twombly, 550 U.S. at 555. A complaint thus “does not need detailed factual allegations.” Id. Nor
Case No: 4:11cv92

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must a complaint allege with precision all the elements of a cause of action.


Swierkiewicz, 534 U.S. at 514-15 (rejecting the assertion that a Title VII complaint could be dismissed for failure to plead all the elements of a prima facie case). But neither is a conclusory recitation of the elements of a cause of action alone sufficient. A complaint must include more than “labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. A complaint must include “allegations plausibly suggesting (not merely consistent with)” the plaintiff=s entitlement to relief. Id. at

557. The complaint must set forth facts—not mere labels or conclusions—that “render plaintiffs‟ entitlement to relief plausible.” Id. at 569 n.14. A district court thus should grant a motion to dismiss unless “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. ___, 129 S. Ct. 1937, 1949 (2009) (emphasis added). This is so because the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. . . . [Federal] Rule [of Civil Procedure] 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Id. at 1949-50 (emphasis added). The defendants assert that the complaint fails to include sufficient detail or
Case No: 4:11cv92

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omits essential allegations and thus fails to state a claim on which relief can be granted. That is incorrect. The complaint includes sufficient factual detail to support an entirely plausible assertion that the defendants have engaged in copyright and trademark infringement and unfair competition and that Dancing Ferret has breached its contracts. Nothing more is required. III A motion to dismiss for lack of personal jurisdiction can properly challenge the sufficiency of the complaint‟s personal-jurisdiction allegations or the sufficiency of the actual facts to establish personal jurisdiction. Here the defendants‟ motion does both. The defendants assert that the complaint‟s allegations are insufficient. And the defendants have tendered Mr. Rodgers‟ affidavit. The affidavit says that no Dancing Ferret representative has been to Florida to deal with the plaintiffs and that Dancing Ferret and Mr. Rodgers have no business contacts in Florida. In addressing the motion to dismiss, the complaint‟s factual allegations must be accepted as true, and all reasonable inferences must be drawn in the plaintiffs‟ favor—but only to the extent the allegations are not contradicted by the defendants‟ affidavit. See, e.g., Cable/Home Commc’n Corp. v. Network Prods., Inc., 902 F.2d 829, 855 (11th Cir. 1990). The complaint‟s uncontradicted allegations include these: the defendants distribute music nationwide, including in Florida, and have infringed the plaintiffs‟ copyrights and marks. An uncontradicted reasonable
Case No: 4:11cv92

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inference is that the defendants have distributed the infringing works into Florida. If they have not, they need only file a renewed motion to dismiss supported by evidence of that fact. When, as here, a plaintiff seeks to subject a nonresident to personal jurisdiction based on the forum state‟s long-arm statute, there are two issues. First, the court must determine whether the long-arm statute provides for jurisdiction. Second, the court must determine whether exercising jurisdiction would violate the Due Process Clause—whether the defendant has sufficient “minimum contacts” with the forum state that exercising jurisdiction would “not offend „traditional notions of fair play and substantial justice.‟” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)); see also Venetian Salami Co. v. Parthenais, 554 So. 2d 499, 502 (Fla. 1989) (describing the two-part test). Federal courts must construe the Florida long-arm statute as would the Florida Supreme Court. Horizon Aggressive Growth, L.P. v. Rothstein-Kass, P.A., 421 F.3d 1162, 1166-67 (11th Cir. 2005) (citing Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir. 1990)). Florida courts construe the state‟s long-arm statute strictly. See Sculptchair, Inc. v. Century Arts, Ltd., 94 F.3d 623, 626-27 (11th Cir. 1996); see also Labbee v. Harrington, 913 So. 2d 679, 682-83 (Fla. 3d DCA 2005) (“We recognize that long-arm statutes are strictly construed and require the plaintiffs to clearly bring themselves within the ambit of the statutes.”).
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The Florida long-arm statute provides in relevant part: (1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself and, if he or she is a natural person, his or her personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following acts: .... (b) Committing a tortious act within this state. Fla. Stat. § 48.193 (2010). This provision establishes jurisdiction when a nonresident transmits material into Florida that infringes a Florida resident‟s copyright. The Eleventh Circuit so held in Cable/Home Communications Corp. v. Network Productions, Inc., 902 F.2d 829, 856-57 (11th Cir. 1990). And the court held further that exercising jurisdiction in these circumstances does not violate the Due Process Clause. See id. at 857-59. The facts there were somewhat different, and the defendants had used a Florida travel agent to plan a meeting outside the state. But the centerpiece of the court‟s holding was that copyright infringement in Florida, though initiated from elsewhere, subjects the infringer to jurisdiction in Florida, under § 48.193(1)(b). See also Precision Software Servs., Inc. v. Fortune Fin. Sys., Inc., No. 98-136-CIV-FTM-17D, 1998 WL 1759759 (M.D. Fla. Nov. 9, 1998) (exercising jurisdiction over a nonresident who sold infringing software outside Florida, knowing it would be distributed in Florida).
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The Supreme Court‟s recent confirmation that due process allows a state to exercise jurisdiction over a nonresident only if the nonresident has purposefully availed itself of the privilege of conducting activities there, see J. McIntyre Machinery, Ltd. v. Nicastro, 131 S. Ct. 2780 (2011), is fully consistent with this view. Unlike in J. McIntyre, here the defendants purposefully entered contracts with the plaintiffs, who were in Florida, and purposefully sent the plaintiffs‟ copyrighted music into Florida, allegedly infringing the plaintiffs‟ rights under the nation‟s copyright and trademark laws. This is sufficient to subject a person to personal jurisdiction in Florida. And doing so fully accords with the Due Process Clause. IV For these reasons, IT IS ORDERED: The motion to dismiss, ECF No. 10, is DENIED. SO ORDERED on October 12, 2011. Robert L. Hinkle United States District Judge

Case No: 4:11cv92