OPPENHEIMER v. MOUNTAINTOP GOLF AND LAKE CLUB INC (2024)

AMENDED ORDER

This cause comes before the Court on a motion by defendant Mountaintop Golf and Lake Club to transfer venue pursuant to 28 U.S.C. § 1404(a) to the United States District Court for the Western District of North Carolina. The time for responding has expired and plaintiff has failed to file a response. In this posture, the motion is ripe for ruling. For the reasons that follow, the motion is granted.

BACKGROUND

Plaintiff initiated this action by filing a complaint on November 28, 2023. [DE 1]. Plaintiff alleges claims against defendants for copyright infringement and violations of the Digital Millennium Copyright Act. Plaintiff alleges that one or more of the defendants have violated his copyrights in four photographs and that each has engaged in contributory and vicarious copyright infringement. Plaintiff further alleges that defendants violated his copyrights by intentionally omitting his copyright management information from the works and/or adding false copyright management information to the works.

In his complaint, plaintiff alleges that he is a citizen of North Carolina who resides in Buncombe County, North Carolina. The individual defendants are alleged to be citizens of North Carolina and residents of Cashiers, North Carolina. The complaint alleges the registered agent addresses of the corporate defendants, which are located in either Raleigh, North Carolina or Glendale, California, and further notes that defendant Adventure Realty does business in Cashiers, North Carolina.

Buncombe County and Jackson County, where Cashiers is located, are both located in the Western District of North Carolina. 28 U.S.C. § 113. Moving defendant Mountaintop Golf and Lake Club (the Club) contends that its principal place of business is in Cashiers, North Carolina. Defendants Mountaintop Properties and Discovery Land Company deny that venue is proper in this district as to them, [DE 13 ¶ 3], and have filed a notice of non-objection to the motion for change of venue. [DE 22]. Defendants Mountaintop Properties and Discovery Land Company further state that their third-party defendant, Old Cashiers Realty, operates in the Western District of North Carolina. The third-party complaint alleges claims against Old Cashiers Realty in the event Mountaintop Properties is found liable to plaintiff Oppenheimer. [DE 41]. Defendants Adventure Realty, Alison Moody, and Catherine Miller have filed an answer containing a motion to dismiss in which they deny that venue is proper as to them and join in the motion to transfer venue. [DE 37].

DISCUSSION

In its motion, the Club contends first that it does not have sufficient contacts within the Eastern District of North Carolina to subject it to personal jurisdiction here and that this district is the improper venue to hear this case. Although the Club's motion only cites 28 U.S.C. § 1404, improper venue is considered under 28 U.S.C. § 1406, which provides that “The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.” 28 U.S.C. § 1406(a).

Plaintiff has the burden of establishing that venue in this district is proper once an objection to venue is raised. United Coal Co. v. Land Use Corp., 575 F. Supp. 1148, 1158 (W.D. Va. 1983). As noted above, plaintiff has not filed a memorandum in opposition to the Club's motion. Plaintiff has apparently argued to the Club, however, that venue in this district is proper because the Club has a registered agent in this district.

Merely having an agent for service of process—without any further business dealings (such as having an office, bank account, real or personal property, warehouse, or local advertisements)—does not create personal jurisdiction. Ratliff v. Cooper Labs., Inc., 444 F.2d 745, 748 (4th Cir. 1971). Without personal jurisdiction, the corporation does not reside in the division, and venue is improper.

Liverett v. Dyncorp Int'l, LLC, No. 3:17-CV-282-JAG, 2017 WL 9481048, at *2 (E.D. Va. July 18, 2017); see also CoStar Realty Info., Inc. v. Meissner, 604 F. Supp. 2d 757, 773 (D. Md. 2009) (venue in copyright action under § 1400(a) proper in district which may assert personal jurisdiction over defendant). Nothing on the face of the complaint demonstrates that venue is proper in the Eastern District of North Carolina; no defendant resides in this district and the complaint does not allege that a substantial part of the events which give rise to plaintiff's claims occurred in this district. See 28 U.S.C. § 1391(b). Rather, it appears that venue is proper in the Western District of North Carolina. As all defendants either seek or do not oppose transfer of this action to the Western District, and there appearing to be no basis for venue in this district, the Court will grant the motion to transfer venue to the Western District of North Carolina.¹ See also Kotsonis v. Superior Motor Exp., 539 F. Supp. 642, 646 (M.D.N.C. 1982) (approving of transfer of third-party claim which is “ancillary to the principal action between plaintiff and defendants.”).

CONCLUSION

Accordingly, for the foregoing reasons, the motion to transfer venue [DE 17] is GRANTED. This action is hereby TRANSFERRED in its entirety to the United States District Court for the Western District of North Carolina, Asheville Division.

SO ORDERED, this 12th day of April 2024.

FOOTNOTES

1.   Even if venue were proper in this district, the Court would transfer this action to the Western District pursuant to 28 U.S.C. § 1404(a), as it appears that plaintiff's claims have no relation to this district and that many of the witnesses and evidence will likely be located in the Western District.

TERRENCE W. BOYLE, UNITED STATES DISTRICT JUDGE