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Jon Feingersh Photography, Inc. v. Pearson Education, Inc.

United States District Court, Third Circuit

October 16, 2013

JON FEINGERSH PHOTOGRAPHY, INC., Plaintiff,
v.
PEARSON EDUCATION, INC., Defendant.

MEMORANDUM

ANITA B. BRODY, District Judge.

Plaintiff Jon Feingersh Photography, Inc. ("JFPI") brings suit against Defendant Pearson Education, Inc. ("Pearson), asserting claims of copyright infringement. I exercise federal question jurisdiction over JFPI's claims against Pearson pursuant to 28 U.S.C. §§ 1331, 1338. Currently before me is Pearson's motion to transfer venue pursuant to 28 U.S.C. § 1404(a). For the reasons set forth below, I will deny Pearson's motion to transfer venue.

I. BACKGROUND[1]

Plaintiff JFPI is a stock photography agency located in Maryland. JFPI owns and is the exclusive copyright holder of photographic images that it licenses for distribution. Defendant Pearson is a corporation that publishes educational textbooks, which it sells and distributes throughout the United States. Corbis Corporation is a photography licensing agency that contracted with JFPI to issue limited licenses of JFPI's photographs to third parties.

On behalf of JFPI, Corbis Corporation sold Pearson limited licenses to use copies of JFPI's photographs in Pearson's educational publications. JFPI alleges that Pearson infringed on its copyrights from 1995 through 2009 by exceeding the terms of the limited licenses that it received from Corbis.[2] In total, JFPI brings 321 separate claims of copyright infringement for each photograph that Pearson allegedly exceeded the terms of the limited license.

During the period of the alleged infringement, Corbis entered into several volume-based pricing master licensing agreements ("MLAs") with Pearson, which covered Corbis' licensing of JFPI's photographs to Pearson. These MLAs govern approximately 234 of JFPI's claims. The remaining 87 claims are not covered by any MLA. Each MLA contains a forum selection clause.[3] The forum selection clause in the 2001 MLA designates Washington as the exclusive jurisdiction for litigation, and applies to approximately 107 of JFPI's claims. Def.'s Mot. 3 n.3; Ex. 1. The forum selection clauses in the 2004 and 2007 MLAs designate New York as the exclusive jurisdiction for litigation, and apply to approximately 127 of JFPI's claims. Def.'s Mot. 3 n.3; Exs. 2, 3. No forum selection clause applies to the 87 claims that are not covered by any MLA. Id.

II. DISCUSSION

Pearson moves to transfer venue to the Southern District of New York pursuant to 28 U.S.C. § 1404(a). Pearson argues that transfer of this case is necessary to enforce the forum selection clauses contained in the MLAs. JFPI argues that transfer to the Southern District of New York is inappropriate because 87 claims do not contain any forum selection clause, and another 107 claims designate Washington as the exclusive jurisdiction.

Section 1404(a) provides: "For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented."[4] 28 U.S.C. § 1404(a). In deciding whether to transfer a case, a court must consider "the private and public interests protected by the language of § 1404(a)." Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995). "[T]here is no definitive formula or list of the factors to consider...." Id. Private interests that have been considered include:

[P]laintiff's forum preference as manifested in the original choice; the defendant's preference; whether the claim arose elsewhere; the convenience of the parties as indicated by their relative physical and financial condition; the convenience of the witnesses-but only to the extent that the witnesses may actually be unavailable for trial in one of the fora; and the location of books and records (similarly limited to the extent that the files could not be produced in the alternative forum).

Id. (internal citations omitted). Public interests that have been considered include:

[T]he enforceability of the judgment; practical considerations that could make the trial easy, expeditious, or inexpensive; the relative administrative difficulty in the two fora resulting from court congestion; the local interest in deciding local controversies at home; the public policies of the fora; and the familiarity of the trial judge with the applicable state law in diversity cases.

Id. at 879-80 (internal citations omitted).

"[A] plaintiff's choice of a proper forum is a paramount consideration in any determination of a transfer request, and that choice should not be lightly disturbed." Shutte v. Armco Steel Corp., 431 F.2d 22, 25 (3d Cir. 1970) (internal quotation marks omitted). However, "[w]ithin this framework, a forum selection clause is treated as a manifestation of the parties' preferences as to a convenient forum." Jumara, 55 F.3d at 880. Although the burden of establishing the need for transfer usually rests with the defendant moving party, when there is a valid forum selection clause, "the plaintiff[] bear[s] the burden of demonstrating why [it] should not be bound by [its] contractual choice of forum." Id. at 879-80. "Thus, while courts normally defer to the plaintiff's choice of forum, such deference is inappropriate where the plaintiff has already freely contractually chosen an appropriate venue." Id. at 880. A forum ...


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