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Gordon v. Houghton Mifflin Harcourt Publishing Co.

United States District Court, E.D. Pennsylvania

June 23, 2015

JOEL GORDON, d/b/a JOEL GORDON PHOTOGRAPHY
v.
HOUGHTON MIFFLIN HARCOURT PUBLISHING CO. TABLE 1

MEMORANDUM

L. Felipe Restrepo, J.

Presently before the Court is Defendant Houghton Mifflin Harcourt Publishing Co. (“HMH”)’s Motion to Transfer Venue to the Southern District of New York pursuant to 28 U.S.C. § 1404. For the reasons that follow, Defendant’s Motion to Transfer Venue will be granted, and the case will be transferred to the United States District Court for the Southern District of New York.

I. FACTUAL AND PROCEDURAL HISTORY

Plaintiff Joel Gordon is a professional photographer who resides in New York, New York. Compl. ¶ 1. Gordon makes his living by creating and licensing his photographs, and operates under the business name “Joel Gordon Photography.” Id. Defendant HMH is a Massachusetts corporation, with a principal place of business in Boston, Massachusetts. Id. at ¶ 2. HMH is one of the world’s longest-established publishing houses and largest providers of pre-K-12 educational textbooks. Id. HMH sells and distributes its publications throughout the United States, including within the Eastern District of Pennsylvania. Id. at ¶ 3.

At issue in this action is HMH’s use of 71 photographs authored and owned by Gordon (the “Photographs”).[1] The Photographs have been registered with the United States Copyright Office. Compl. ¶ 7; see also Compl. ex. 1. Between 1990 and 2008, Gordon licensed the Photographs to HMH for use in HMH’s educational publications. Compl. ¶ 8. Each of the licenses placed certain restrictions on HMH’s use of the Photographs, including the number of copies, distribution area, language, duration, and/or permissible media. Id.; see also Compl. Ex. 1.

The Photographs were licensed to HMH by way of invoice, which generally contained the terms and conditions of the license on the reverse side of the invoice. Def.’s Mem. of Law in Supp. 2 n.2. The Photographs were licensed via 35 invoices. Compl. Ex. 1; Def.’s Mem. of Law in Supp. 2. The parties have thus far located 29 of those invoices, but they have only been able to locate the complete terms and conditions for a portion of those invoices. Def.’s Mem. of Law in Supp. at 2. Twenty of the licenses contain what HMH describes a “permissive forum selection clause.”[2] One of the licenses contains what HMH describes as a “mandatory forum selection clause.”[3] The terms of the remaining invoices/licenses are unknown at this time or neutral as to venue. Table 1 (below) summarizes the current state of affairs.

TABLE 1

No. of Invoices/Licenses

No. of Photographs/Claims

“Permissive” Clause

20

46

“Mandatory” Clause

1

1

Unknown/Neutral

14

24

Total

35

71

Gordon alleges that shortly after obtaining licenses for the Photographs, HMH exceeded the licenses and infringed Gordon’s copyrights in various ways, including: (1) printing more copies of the Photographs than Gordon authorized; (2) distributing publications containing the Photographs outside the authorized distribution area; (3) publishing the Photographs in electronic, ancillary, or derivative publications without permission; (4) publishing the Photographs in international editions and foreign publications without permission; (5) publishing the Photographs beyond the specified time limits; and/or (6) publishing and distributing the Photographs in subsequent editions, foreign language translations, and various other publications without obtaining authorization. Compl. ¶ 13. Gordon alleges that these infringements were no mistake – Gordon claims HMH intended at all times to exceed the scope of the licenses and infringe on Gordon’s copyrights, and deliberately mislead Gordon in the licensing negotiations to secure a more favorable price for the photographs. Id. at ¶¶ 9-12. Gordon also alleges that HMH has engaged is a pattern of similar copyright infringement, as evidenced by tens of similar suits filed across the country by photographers and stock photography agencies against HMH. Id. at ¶¶ 16-20. Gordon alleges that HMH’s business model is “built on a foundation of pervasive and willful copyright infringement, [and that HMH’s conduct] deprived Gordon and hundreds of other photographers and visual art licensor of their rightful compensation and unjustly enriched HMH with outlandish profits in the process.” Id. at ¶ 16. HMH denies Gordon’s allegations. See generally Def.’s Answer.

Gordon filed the Complaint in this action on August 11, 2014. ECF No. 1. Following an extension of time to answer the Complaint, HMH timely filed the pending Motion to Transfer Venue on October 22, 2014, and timely filed its Answer to the Complaint on October 24, 2014. ECF Nos. 7-8. Gordon filed a Response in Opposition to the Motion to Transfer on November 5, 2014. ECF No. 10. HMH filed a Reply in Support of the Motion to Transfer on November 12, 2014. ECF No. 11. The Court held oral argument on the Motion to Transfer on December 16, 2014. ECF Nos. 15-16.[4]

II. DISCUSSION

“For the convenience of the 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.” 28 U.S.C. § 1404(a).

“Analysis of a request for a § 1404(a) transfer has two components.” Family Financial Centers LLC v. Cox, 2015 WL 790038, at *3 (E.D. Pa. Feb. 25, 2015). First, both the original venue and the requested venue must be proper. Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995). Second, “the Court is required to undertake a balancing test in deciding whether the ‘interests of justice [would] be better served by a transfer to a different forum.’” Family Financial Centers LLC, 2015 WL 790038, at * 3 (quoting Jumara, 55 F.3d at 879).

With respect to the first component, the Complaint sets forth a single count of Copyright infringement, and asserts no other federal or state law claims. Compl. 8-9. Accordingly, venue for this action is governed by a specific venue provision, 28 U.S.C. § 1400(a), which reads: “Civil actions, suits, or proceedings arising under any Act of Congress relating to copyrights or exclusive rights in mask works or designs may be instituted in the district in which the defendant or his agent resides or may be found.” Venue for this action is also governed by the general venue provision, 28 U.S.C. § 1391(b), which states that venue is proper in: “(1) a judicial district in which any defendant resides . . .; (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred . . . .” For all venue purposes, when a business entity like HMH is a defendant, it shall be deemed to reside in any judicial district in which such defendant is subject to the court’s personal jurisdiction with respect to the civil action in question. 28 U.S.C. § 1391(c)(2). In addition, a corporation that is subject to personal jurisdiction at the time the action is commenced shall be deemed to reside in any district in that state within which its contacts would be sufficient to subject it to personal jurisdiction if that district were a separate state. 28 U.S.C. § 1391(d). The parties do not dispute that HMH has sufficient contacts with the Eastern District of Pennsylvania to establish this Court’s personal jurisdiction over the Defendant. Furthermore, HMH’s registered agent in Pennsylvania “resides” and “may be found” in the Eastern District of Pennsylvania, as set forth by 28 U.S.C. § 1400(a).[5]Accordingly, HMH resides in the Eastern District of Pennsylvania for venue purposes. Thus, venue is proper in the Eastern District of Pennsylvania.

HMH’s requested venue for the action, the Southern District of New York, is also proper. HMH undoubtedly “resides” in the Southern District of New York on account of its substantial operations in New York, New York. Furthermore, a substantial part of the events giving rise to Gordon’s claim occurred in the Southern District of New York, as the relevant licenses were negotiated and granted by Gordon while he operated in that ...


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