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Real v. Matteo

United States District Court, W.D. Louisiana, Lafayette Division

January 3, 2018

Real et al
v.
Matteo

          REPORT AND RECOMMENDATION

          CAROL B. WHITEHURST UNITED STATES MAGISTRATE JUDGE.

         Currently pending before the undersigned, on referral by the district judge, is a Motion To Dismiss For Lack of Jurisdiction filed by Defendant, Devescovi Matteo, [Rec. Doc. 5], Plaintiffs, Michael Real and Fancy Hat Studios, Inc's, Memorandum in Opposition [Rec. Doc. 8-1], and Matteo's Reply thereto [Rec. Doc. 16].[1] For the reasons set forth below, the undersigned recommends that the Motion To Dismiss be granted.

         I. Background

         This dispute concerns alleged copyright infringement and contributory copyright infringement under the United States Copyright Act of 1976, 17 U.S.C. §§ 101, et seq. and the Digital Millennium Copyright Act (“DMCA”). Plaintiffs, Michael Real (“Real”) and Fancy Hats Studio (“FHS”) allege that Devescovi Matteo (“Matteo”) infringed their copyright of the “Towergirls property.”[2] R. 1, p.1. Real is an individual domiciled in Australia, and FHS is a Louisiana corporation. Id. at p.1. Matteo is an individual living and doing business as a games developer in Italy. R. 5-1, p.1.

         On February 21, 2017, Matteo entered into a Memorandum of Understanding with Real wherein Real would be “Lead Artist on the Towergirls Kingdom Team for the purpose of asset generation and approved design usage for the project Towergirls: Kingdom Conquest” (“the Project”). R. 1-2; Exh. P-1.[3] Matteo used the online crowd-funding site, Patreon, as the primary source of funding for the Project. R. 5-1, p.1. Patreon is a San Francisco-based online crowd-funding site that allows small technology operations to get funding from non-traditional sources. Id. at p.5.

         Plaintiffs allege that in late September, 2017, they became aware that Matteo had added “certain morally reprehensible additions to the game [violent nonconsensual sex)” without informing Plaintiffs. They allege that such content “insulted fans of the property in a personal and unprofessional manner.” They further allege that “most critically” Matteo was making public statements undermining Plaintiffs' ownership of Towergirls.

         Thereafter, on September 25, 2017, Plaintiffs sent a “take-down-notice” to Patreon as to all of the “infringed property.” Id. at pp.5-6, Exh. P-2. Plaintiffs allege that Matteo sent a counter-notice to Patreon on September 27, which was received by Plaintiffs on September 28, 2017. Id. at p.6. In the counter-notice, Matteo contended that Towergirl properties was “fair use.”[4] Id.

         As the alleged copyright owner of Towergirls property, Plaintiffs pray that their “copyrighted property” (including, “Towergirls” name and the designs and names of all characters) as well as everything associated with “Towergirls Kingdom: Conquest game” be taken down from “The Towergirls Kingdom Team Patreon page.” Id., p.3. Plaintiffs pray for injunctive relief, compensation[5] and attorneys fees and court costs.

         On October 25, 2017, Matteo filed the instant motion to dismiss. R. 5. Plaintiffs filed an opposition to the Motion, R. 11, as well as a Motion To Strike portions of Matteo's motion to dismiss. R. 8.

         II. The Parties' Contentions

         Matteo asserts that he was emailed a copy of this lawsuit from Patreon, but has never been served by Plaintiffs. Matteo also asserts that this Court lacks personal jurisdiction, either general or specific, over him. As to specific jurisdiction, he contends that Plaintiffs' claims do not “arise out of or result from his forum-related contacts” because the allegations are directed at the alleged breaches of the contract entered into and performed in foreign countries, with no connection whatsoever to this forum. As to general jurisdiction, Matteo asserts that he lacks “continuous and systematic general business contacts” with Louisiana. Matteo further contends that Real's assignment of 30% of the “Towergirls property” to FHS does not confer jurisdiction upon this Court because FHS is not a party to the contract between Real and Matteo.

         Plaintiffs argue that Matteo voluntarily consented to personal jurisdiction by availing himself of the counter-notice procedure under the terms of the DMCA. Plaintiffs also contend there is personal jurisdiction over Matteo in this Court because FHS, a Louisiana corporation, is a copyright interest owner. Therefore, as a necessary or indispensable party to this action, jurisdiction is conferred in Louisiana. Lastly, Plaintiffs imply that Patreon's in-house counsel's indifference to venue conveys jurisdiction in Louisiana.

         III. Law and Analysis

         A. Motion to Dismiss based on Insufficient Service of Process

         1. Legal Standard

         “The general rule is that when a court finds that service is insufficient but curable, it generally should quash the service and give the plaintiff an opportunity to re-serve the defendant. Gregory v. United States Bankruptcy Court, 942 F.2d 1498, 1500 (10th Cir.1991; see also 5A Wright & Miller, § 1354, at 289-90 (explaining that where the propriety of service is unclear, “the simplest solution ... is to quash process and allow plaintiff another opportunity to serve defendant”). At the same time, dismissal without opportunity to cure is appropriate where proper service would be futile. See id.; 5A Charles A. Wright & Arthur R. Miller, ยง 1354, at 289. Proper service ...


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