United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
BRADLEY MURRAY UNITED STATES MAGISTRATE JUDGE
matter is before the Court on the Motion to Dismiss and/or
Transfer filed by Defendant Facebook, Inc.
(“Facebook”) (Doc. 21), Facebook's Memorandum
in Support of Motion to Dismiss and/or Transfer (Doc. 22),
Plaintiff's Opposition to Second Motion for Extension of
Time and to Dismiss or Transfer (Doc. 24), and Facebook's
Reply in Support of Motion to Dismiss and/or Transfer (Doc.
25). This motion has been referred to the undersigned
Magistrate Judge for entry of a report and recommendation,
pursuant to 28 U.S.C. § 636(b)(1)(B) and S.D. Ala. Gen
LR 72(a)(2)(S). Upon consideration of all relevant filings in
this case and the applicable law, the undersigned recommends
that Defendant Facebook, Inc.'s motion to dismiss be
March 29, 2018, Plaintiff filed her pro se complaint
against Facebook alleging copyright infringement arising from
Facebook's alleged unauthorized public display of
copyrighted images and video that were owned and/or
registered by her. (Doc. 1 at p. 1). In her complaint,
Plaintiff alleges that this Court has personal jurisdiction
over Facebook because it “conducts business
transactions in Mobile county [sic], Alabama and the causes
of action arose, in part, in Mobile county [sic],
Alabama.” (Id.). Plaintiff alleges that she is
an inventor and entrepreneur with a usual place of business
in Mobile, Alabama, and that Facebook is a Delaware
corporation with its principal place of business in Menlo
Park, California. (Id. at p. 2). Plaintiff further
alleges that “Facebook regularly and continuously does
business in the State of Alabama” and, “in 2011,
it was reported Facebook has 2 million users in the State of
Alabama.” (Id. at p. 3).
support of her cause of action against Facebook, Plaintiff
alleges that she is the sole owner of certain copyrighted
images and videos that Plaintiff and her agent placed on
Plaintiff's Facebook page or pages. (Id. at pp.
2-3). According to Plaintiff, at some point in or about 2016,
she was not able to log on and manage her pages that
contained the copyrighted materials and, therefore, in
November of 2016, she demanded that Facebook remove all
content on her pages. (Id.). However, according to
Plaintiff's complaint, “Facebook continues to
unlawfully publicly display the unauthorized work.”
(Id. at p. 4). Plaintiff alleges that this act
constitutes copyright infringement and seeks recovery of
monetary damages arising from the alleged infringement.
(Id. at pp. 4-6).
STANDARD OF REVIEW
plaintiff seeking the exercise of personal jurisdiction over
a nonresident defendant bears the initial burden of alleging
in the complaint sufficient facts to make out a prima facie
case of jurisdiction.” United Techs. Corp. v.
Mazer, 556 F.3d 1260, 1274 (11th Cir. 2009).
“Plaintiff's burden in alleging personal
jurisdiction is to plead sufficient material facts to
establish the basis for exercise of such jurisdiction.”
Future Tech. Today, Inc. v. OSF Healthcare
Sys., 218 F.3d 1247, 1249 (11th Cir. 2000) (citation
omitted). “The district court must accept the facts
alleged in the complaint as true, to the extent they are
uncontroverted by the defendant's affidavits.... [W]here
the plaintiff's complaint and the defendant's
affidavits conflict, the district court must construe all
reasonable inferences in favor of the plaintiff.”
Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir.
1990). If the defendant puts forth facts by affidavit showing
that personal jurisdiction is lacking, the plaintiff is
required to produce evidence rebutting the defendant's
showing to avoid dismissal. See Polskie Linie Oceaniczne
v. Seasafe Transp. A/S, 795 F.2d 968, 972
(11th Cir. 1986). “[T]he plaintiff's
burden is to present enough evidence, construed most
favorably to [her], to withstand a motion for directed
verdict.” Beasley v. Providence Hosp., Civ. A.
18-0004-WS-M, 2018 WL 2994380, *2 (S.D. Ala. June 13, 2018)
(citing Snow v. DirecTV, Inc., 450 F.3d 1314, 1317
(11th Cir. 2006)).
CONCLUSIONS OF LAW
first ground seeking dismissal of Plaintiff's claim,
Facebook asserts that this Court lacks personal jurisdiction.
“When jurisdiction is based on a federal question
arising under a statute that is silent regarding service of
process, Rule 4(e) of the Federal Rules of Civil Procedure
requires that both assertion of jurisdiction and service of
process be determined by state amenability standards, or the
long-arm statute.” Cable/Home Communication Corp.
v. Network Productions, Inc., 902 F.2d 829, 855
(11th Cir. 1990). Since there is no service of
process provision for copyright statutory violations, Rule
4(e) requires the Court to determine this issue under
Alabama's long-arm statute. See Id. at 856. The
limits of long-arm jurisdiction under Alabama's long-arm
statute are coextensive with due process under federal law;
therefore, the Court need only consider whether its exercise
of personal jurisdiction over Facebook in this case comports
with the Due Process Clause of the Fourteenth Amendment.
See Vascular Ventures, LLC v. American Vascular Access,
LLC, Civ. A. No. 16-00481-KD-B, 2016 WL 7471642, *7
(S.D. Ala. Dec. 7, 2016) (citing Ala. R. Civ. P. 4.2;
Frye v. Smith, 67 So.2d 882, 892 (Ala. 2011)).
bounds of jurisdiction over a non-resident defendant are in
accord with due process if the defendant has “certain
minimum contacts with [the State] such that the maintenance
of the suit does 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)). Since International Shoe, two categories of
personal jurisdiction have arisen: general jurisdiction and
specific jurisdiction. See Helicopteros Nacionales de
Colombia, S.A. v. Hall, 466 U.S. 408, 414 nn.8-9 (1984).
personal jurisdiction arises ‘when a defendant
maintains continuous and systematic contacts with the forum
state even when the cause of action has no relation to those
contacts.'” HomeBingo Network, Inc. v.
Chayevsky, 428 F.Supp.2d 1232, 1241 (S.D. Ala. 2006)
(quoting Trintec Indus., Inc. v. Pedre Promotional Prod.,
Inc., 395 F.3d 1275, 1279 (Fed. Cir. 2005) (citations
omitted); Silent Drive, Inc. v. Strong Indus., Inc.,
326 F.3d 1194, 1200 (Fed. Cir. 2003)). “A court may
assert general jurisdiction over foreign (sister-state or
foreign-country) corporations to hear any and all claims
against them when their affiliations with the State are so
‘continuous and systematic' as to render them
essentially at home in the forum State.” Goodyear
Dunlop Tires Operations, S.A. v. Brown, 564
U.S. 915, 919 (2011).
jurisdiction, on the other hand, depends on an
‘affiliatio[n] between the forum and the underlying
controversy,' principally, activity or an occurrence that
takes place in the forum State and is therefore subject to
the State's regulation.” Id. (citation
omitted). “A defendant is constitutionally amenable to
a forum's specific jurisdiction if it possesses
sufficient minimum contacts with the forum to satisfy due
process requirements, and if the forum's exercise of
jurisdiction comports with ‘traditional notions of fair
play and substantial justice.'” Vermeulen v.
Renault, U.S.A., Inc., 985 F.2d 1534, 1545
(11th Cir. 1993) (quoting Int'l Shoe,
326 U.S. at 316). The non-resident defendant's contacts
must meet three criteria to constitute sufficient minimum
contacts with the forum:
First, the contacts must be related to the plaintiff's
cause of action or have given rise to it. Second, the
contacts must involve “some act by which the defendant
purposefully avails itself of the privilege of conducting
activities with the forum …, thus invoking the
benefits and protections of its laws.” Third, the
defendant's contacts with the forum must be “such
that [the defendant] should reasonably anticipate being haled
into court there.”
Id. at 1456 (quoting Hanson v. Denckla, 357
U.S. 235, 253 (1958); World-WideVolkswagen
Corp. v. Woodson,444 U.S. 286, 297 (1980)) (internal