Poppington, LLC v. Brooks

POPPINGTON, LLC and RAQUEL HORN, Plaintiffs, v. EDWYNA BROOKS and JOHN DOE 1-10, Defendants.

No. 20-cv-8616 (JSR)

United States District Court, S.D. New York

July 27, 2021

MEMORANDUM ORDER

JED S RAKOFF, U.S.D.J.

Before the Court is another skirmish in the ongoing legal battle between the novelist Edwyna Brooks and her former production partners in the film adaptation of her novel Mafietta. In the last episode, this Court resolved a dispute over authorship of the Mafietta production holding after a three-day bench trial that Ms. Brooks was entitled to sole authorship, and that Damon Dash and his company, Poppington LLC, had simply been hired by Ms. Brooks to provide directorial, marketing, and other services. See Brooks v. Dash, No. 19-cv-1944 (JSR), 2020 WL 2521311 (S.D.N.Y. May 16, 2020) aff'd __ Fed.Appx. __, 2021 WL 2816727 (2d Cir. July 7, 2021). Now Poppington (a company of which Dash is the CEO) and Raquel Horn (a member of Poppington) bring a one-count complaint against Brooks alleging that Brooks infringed Poppington's copyright in a photograph taken by Horn during the production of Mafietta by using that photograph without authorization on the cover of one of Brooks' novels.

Before the Court is Brooks' motion to dismiss the complaint for lack of personal jurisdiction under Rule 12(b)(2), for insufficient service of process under Rule (12)(b)(5), and for failure to state a claim under Rule 12(b)(6). The Court held an evidentiary hearing on the 12(b)(2) and 12(b)(5) motions and issued a bottom-line order denying Brooks' motion as to personal jurisdiction and service of process. See ECF 38. Cf. Mones v. Commercial Bank of Kuwait, S.A.K., 204 Fed. App'x. 988, 989-90 (2d Cir. 2006) (“[T]he district court erred in failing to determine whether it had valid personal jurisdiction over [defendant] before proceeding to the merits of [plaintiff's claim.]”). Now, after hearing argument on the Rule 12(b)(6) aspects of the motion, the Court denies the motion in full for the reasons set forth below.

I. THRESHOLD ISSUES

Brooks moved for dismissal under Fed.R.Civ.P. 12(b)(2) for lack of personal jurisdiction and under Fed.R.Civ.P. 12(b)(5) for deficient service of process. As noted, the Court has already denied these aspects of Brooks' motion in a bottom line order. See ECF 38. It now elaborates the reasons for this denial.

A. Personal Jurisdiction

Brooks, who is not a New York resident, moves to dismiss the complaint for lack of personal jurisdiction, arguing that she “has no contacts at all with the State of New York.” Mot. 12. Plaintiffs respond that specific personal jurisdiction exists because their lawyer was able to purchase a copy of Mafietta through Amazon.com and have it shipped to New York. Pl. Opp., ECF 32 at 4.

Determining personal jurisdiction in New York involves a two-step analysis: first, the Court must determine whether jurisdiction exists under New York's general jurisdiction or long-arm statute; then, if the statutory requirements are satisfied, the Court proceeds to determine whether the exercise of personal jurisdiction comports with the Due Process Clause. Minnie Rose LLC v. Yu, 169 F.Supp.3d 504, 512 (S.D.N.Y. 2016). But since the due process analysis “overlaps significantly” with the analysis under New York's long-arm statute, the Court will here treat them together. See id. at 515 (citing Best Van Lines, Inc. v. Walker, 490 F.3d 239, 247 (2d Cir. 2007)).

CPLR § 302(a)(1), New York's long-arm statute, provides for specific personal jurisdiction over any non-domiciliary that “transacts any business within the state or contracts anywhere to supply goods or services in the state.” “New York courts define ‘transacting business' as purposeful activity-'some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.'” Best Van Lines, 490 F.3d at 246. “Proof of one transaction in New York is sufficient to invoke jurisdiction, even though the defendant never enters New York, so long as the defendant's activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted.” Eades v. Kennedy, PC Law Offices, 799 F.3d 161, 168 (2d Cir. 2015).

Plaintiffs correctly argue that someone subjects herself to personal jurisdiction in New York by conducting retail sales and shipping goods into the state. The Second Circuit has found, for instance, that the “single act of shipping a counterfeit ... bag might well be sufficient, by itself, to subject [a defendant] to the jurisdiction of a New York court under section 302(a)(1).” Chloe v. Queen Bee of Beverly Hills, LLC, 616 F.3d 158, 170 (2d Cir. 2010). Brooks does not contest that she maintains a website through which she advertises and sells the Mafietta series. Nor does she dispute that the website contains hyperlinks through which buyers in New York can purchase the Mafietta books. Indeed, counsel for Plaintiffs purchased the book through Brooks' author page on Amazon.com and had it shipped to New York. See ECF 31 ¶ 9; ECF 31-6. If the sales transaction initiated by clicking the link on Brooks' website was consummated on the site, the transacting business inquiry would likely end there and support finding personal jurisdiction over Brooks.

The complicating factor -- on which the defendant hangs her hat -- is that Brooks' book sales are effectuated not through her website but through Amazon.com, a third-party. See ECF 31 ¶ 9. When a potential buyer clicks the link to purchase a book on Brooks' website, they are redirected to a purchase page on Amazon.com. Amazon, not Brooks, handles the logistics of printing, collecting payment for, and shipping the books.

Where sellers use a third party like Amazon or eBay to sell their goods into New York, courts in this district have drawn a distinction between occasional sellers who use a third-party to sell a good to a buyer who happens to be in the forum state, and commercial vendors who use the third party to establish regular business with the state. Lifeguard Licensing Corp. v. Ann Arbor T-Shirt Co., LLC, 2016 WL 3748480, at *3 (S.D.N.Y. Jul. 8, 2016). Jurisdiction is proper as to sellers in the latter category. Id.; compare EnviroCare Tech. LLC v. Simanovsky, 2012 WL 2001443 (E.D.N.Y. Jun. 4, 2012) (finding jurisdiction where defendants sold infringing products nationwide, in at least 46, 000 separate transactions, and exclusively through Amazon and eBay), with Boschetto v. Hansing, 539 F.3d 1011, 1019 (9th Cir. 2008) (finding no jurisdiction because the plaintiff did “not allege that any of the Defendants [were] using eBay to conduct business generally”).

Brooks' purpose and volume of sales place her in the latter category of commercial vendors conducting regular business through Amazon, thereby creating the factual predicate for this Court to exercise personal jurisdiction. As she testified, Brooks uses Amazon so that she personally does not “have to deal with inventory and mailing” to foreign buyers but can still reap the rewards of her sales to them. June 22, 2021 Evidentiary Hearing Transcript 19:8-9. Brooks sells her books exclusively through Amazon and estimates that she has sold 1, 500 books through the platform in the last 5 years. Even though Brooks did not personally manage the individual transactions fulfilled through Amazon, her internet activities sought to -- and did -establish regular business with foreign jurisdictions, including New York. That plaintiffs' counsel purchased the allegedly infringing book through Amazon and had it shipped to New York creates the requisite nexus between Brooks' Amazon sales, a New York transaction, and the claim asserted. See Eades, 799 F.3d at 168. Accordingly, specific personal jurisdiction over Brooks is proper under § 302(a)(1), and the Court's exercise of that jurisdiction comports with the Due Process Clause.

B. Service of Process

Brooks also moves to dismiss the complaint under Rule 12(b)(5) for insufficient service of process. Plaintiffs filed an affidavit of service on March 31, 2021, where a process server swore that he served Anthony Brooks, the defendant's husband, at their home in Hawaii. ECF 21 & 22. Anthony Brooks, however, affirmed that “no one gave [him] any documents on March 31, 2021 at any time.” ECF 25.

A process server's sworn statement of service creates a presumption that service has been effectuated in the manner so described. Old Republic Ins. Co. v. Pac. Fin. Servs. of Am., Inc., 301 F.3d 54, 57 (2d Cir. 2002). A defendant's affidavit denying service can “rebut[] the presumption of proper service established by the process server's affidavit and necessitate[ ] an evidentiary hearing, ” assuming that “the defendant swear[] to specific facts to rebut the statements in the process server's affidavits.” Id. In such situations, the plaintiff bears the burden of establishing proper service by a preponderance of the evidence. Skyline Agency, Inc. v. Ambrose Coppotelli, Inc., 502 N.Y.S.2d 479, 483-484 (2d Dep't 1986).

Having received the competing affidavits, the Court convened an evidentiary hearing and heard testimony from the process server and Mr. Brooks. At the hearing, Mr. Brooks clarified that the process server did show up at his house on March 31, 2021 and attempt to serve him with the relevant legal documents. Mr. Brooks refused to take the documents, however, forcing the process server to leave them at the doorstep.

Under the circumstances, depositing the relevant legal documents at the Brooks' doorstep suffices for proper service. Under Fed.R.Civ.P. 4(e)(2)(B), service can be effectuated by “leaving a copy of each at the individual's dwelling or usual place of abode...