randy california v. led zeppelin - motion to dismiss amended complaint.pdf

8/10/2019 Randy California v. Led Zeppelin - motion to dismiss amended complaint.pdf

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MICHAEL SKIDMORE, as Trustee for the

RANDY CRAIG WOLFE TRUST,

Plaintiff

v.

LED ZEPPELIN, JAMES PATRICK

PAGE, ROBERT ANTHONY PLANT,JOHN PAUL JONES, SUPER HYPE

PUBLISHING, INC., WARNER MUSIC

GROUP CORP.

Parent of:

WARNER/CHAPPELL MUSIC, INC.,ATLANTIC RECORDING

CORPORATION, RHINO

ENTERTAINMENT COMPANY,

Defendants

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No. 14-cv-3089

MOTION OF DEFENDANTS JAMES PATRICK PAGE, ROBERT

ANTHONY PLANT AND JOHN PAUL JONES TO DISMISS OR

TRANSFER DIRECTED TO PLAINTIFFS AMENDED COMPLAINT

Case 2:14-cv-03089-JS Document 36 Filed 10/27/14 Page 1 of 23


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Defendants James Patrick Page, Robert Anthony Plant, and John Paul Jones,1 by and

through their undersigned counsel, move for an Order pursuant to Federal Rule of Civil

Procedure 12(b)(2), dismissing them from this action for lack of personal jurisdiction or, in the

alternative, an Order pursuant to 28 U.S.C. Section 1404(a), transferring the action to the United

States District Court for the Central District of California, Western Division.

In support of their motion, the foregoing defendants rely upon the attached Memorandum

of Law and accompanying Declarations, the concurrently-filed Request for Judicial Notice and

the Memorandum of Law and Declarations submitted by defendants Super Hype Publishing,

Inc., Warner Music Group Corp., Warner/Chappell Music, Inc., Atlantic Recording Corporation

and Rhino Entertainment Company in support of their concurrently-filed motion.

Respectfully submitted,

FOX ROTHSCHILD LLP

/s/ Michael Eidel

Michael Eidel, Esquire

2000 Market Street, 20th FloorPhiladelphia, PA 19103

(215) 918-3568(215) 345-7507 (facsimile)

Local Counsel for Defendants

Dated: October 27, 2014

PHILIPS NIZER LLP

/s/ Helene Freeman

Helene Freeman, Esquire

666 Fifth AvenueNew York, NY 10103-0084

(212) 977-9700

(212) 262-5152 (facsimile)

Attorneys for the Individual Defendants

Admitted Pro Hac Vice

1 These defendants, along with the late John Bonham, performed as Led Zeppelin. In his Amended

Complaint, plaintiff purports to name Led Zeppelin as an additional defendant even though it is the name

of a musical group and not a juridical entity capable of suing or being sued.



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CERTIFICATE OF SERVICE

The undersigned hereby certifies that a copy of the foregoing Motion of Defendants

James Patrick Page, Robert Anthony Plant and John Paul Jones to Dismiss or Transfer Directed

to Plaintiffs Amended Complaint and the Memorandum of Law and Declarations of James

Patrick Page, Robert Anthony Plant, and John Paul Jones in support thereof, were served upon

counsel for Plaintiff via the Courts ECF filing system.

/s/ Matthew S. Olesh

Matthew S. Olesh, Esquire




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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MICHAEL SKIDMORE, as Trustee for the

RANDY CRAIG WOLFE TRUST,

Plaintiff

v.

LED ZEPPELIN, JAMES PATRICK

PAGE, ROBERT ANTHONY PLANT,JOHN PAUL JONES, SUPER HYPE

PUBLISHING, INC., WARNER MUSIC

GROUP CORP.

Parent of:

WARNER/CHAPPELL MUSIC, INC.,ATLANTIC RECORDING

CORPORATION, RHINO

ENTERTAINMENT COMPANY,

Defendants

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No. 14-cv-3089

MEMORANDUM OF LAW IN SUPPORT OF MOTION OF

DEFENDANTS JAMES PATRICK PAGE, ROBERT ANTHONY

PLANT AND JOHN PAUL JONES TO DISMISS OR TRANSFER

DIRECTED TO PLAINTIFFS AMENDED COMPLAINT



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TABLE OF CONTENTS

MEMORANDUM OF LAW .......................................................................................................... 1

I. INTRODUCTION .................................................................................................................... 1

(a) Summary of Argument ....................................................................................................... 1

(b) Summary of Facts Relevant to this Motion ........................................................................ 2

(1) The Late Randy Wolfe, aka Randy California .......................................................... 2

(2) The Massachusetts Plaintiff and the California Trust of Randy Wolfe ........................ 3

(3) The Individual Defendants Are British Citizens with No Ties to Pennsylvania .......... 3

(4)

Stairway to Heaven....................................................................................................... 4

(5) Plaintiffs Additional Allegations in His Amended Complaint .................................... 5

(6) Plaintiffs Claims in this Action ................................................................................... 5

II. THE INDIVIDUAL DEFENDANTS MOTION TO DISMISS FOR LACK OF

PERSONAL JURISDICTION SHOULD BE GRANTED ...................................................... 6

(a) The Standards Applicable to this Motion ........................................................................... 6

(1) The Jurisdictional Principles ......................................................................................... 6

(2) Plaintiffs Burden on this Motion ................................................................................. 7

(b) The Individual Defendants Are Not Subject to General Jurisdiction in Pennsylvania ....... 7

(1) UnderDaimler, General Jurisdiction Is Limited to the Defendants Domicile ............ 7

(2) Plaintiff Relies on Allegations that Are Insufficient underDaimlerand Stale ............ 8

(c) The Individual Defendants Are Not Subject to Specific Jurisdiction in Pennsylvania .... 10

(1) The Effects Test for Specific Jurisdiction ............................................................... 10

(2) Pennsylvania Is Not the Focal Point of the Alleged Harm ......................................... 11

(3) Pennsylvania Is Not the Focal Point of the Alleged Tortious Activity ....................... 12



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III.ALTERNATIVELY, THE ACTION SHOULD BE TRANSFERRED ON VENUE

GROUNDS ............................................................................................................................. 14

IV.CONCLUSION ....................................................................................................................... 14



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TABLE OF AUTHORITIES

Cases

AllChem Performance Products, Inc. v. Aqualine Warehouse, LLC,

878 F. Supp. 2d 779 (S.D. Tex. 2012) ...................................................................................... 10

Bucklew v. Hawkins, Ash, Baptie & Co., LLP., 329 F.3d 923 (7th Cir. 2003) ............................. 10

Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985) ................................................................ 13

Calder v. Jones, 465 U.S. 783 (1984) ..................................................................................... 10, 12

DJamoos ex rel. Estate of Weingeroff v. Pilatus Aircraft Ltd., 566 F.3d 94

(3d Cir. 2009), cert. denied, 559 U.S. 1048 (2010) .................................................................. 14

Daimler AG v. Bauman, 134 S. Ct. 746 (2014) ................................................................ 6, 7, 8, 14

Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003) .................................... 10

Flynn v. Hovensa, LLC, 2014 WL 3375238 (W.D. Pa. 2014) ........................................................ 9

Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846 (2011) ............. 6, 7, 9, 10, 15

Hertz Corp. v. Friend, 559 U.S. 77 (2010) ..................................................................................... 7

HS Real Co., LLC v. Sher, 526 F. Appx 203 (3d Cir. 2013) ....................................................... 14

IMO Indus., Inc. v. Kiekert AG, 155 F.3d 254 (3d Cir. 1998) ...................................................... 10

Intl Shoe Co. v. Washington, 326 U.S. 310 (1945)........................................................................ 6

Klinghoffer v. S.N.C. Achille Lauro, 937 F.2d 44 (2d Cir. 1991) ............................................. 9, 13

Marten v. Godwin, 499 F.3d 290 (3d Cir. 2007) .................................................... 6, 11, 12, 14, 15

Miller Yacht Sales, Inc. v. Smith, 384 F.3d 93 (3d Cir. 2004) ........................................................ 7

OConnor v. Sandy Lane Hotel Co., Ltd., 496 F.3d 312 (3d Cir. 2007) ........................... 10, 11, 14

Patchen v. McGuire, 2012 WL 4473233 (E.D. Pa. 2012) .............................................................. 7

Perkins v. Benguet Consol. Mining Co., 342 U.S. 437 (1952) ....................................................... 8



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Petrella v. Metro-Goldwyn-Mayer, Inc., 134 S. Ct. 1962 (2014) ................................................. 13

Philadelphia Profl Collections, LLC v. Young, 2010 WL 5257651 (E.D. Pa. 2010) .................... 9

Pinker v. Roche Holdings Ltd., 292 F.3d 361 (3d Cir. 2002) ......................................................... 7

Rush v. Savchuk, 444 U.S. 320 (1980) ............................................................................................ 6

Time Share Vacation Club v. Atl. Resorts, Ltd., 735 F.2d 61 (3d Cir. 1984) ............................. 7, 8

United States v. Moghadam, 175 F.3d 1269 (11th Cir. 1999), cert. denied

529 U.S. 1036 (2000) ................................................................................................................ 13

Walden v. Fiore, 134 S. Ct. 1115 (2014) ............................................................................ 6, 12, 13

Statutes

17 U.S.C. 202 ............................................................................................................................. 14

17 U.S.C. 507 ............................................................................................................................. 13

28 U.S.C. 1404 ........................................................................................................................... 14

42 Pa. Cons. Stat. 5322 ................................................................................................................ 6

Rules

Federal Rule of Civil Procedure 4 .................................................................................................. 6

Federal Rule of Civil Procedure 12 ................................................................................................ 7



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MEMORANDUM OF LAW

I. INTRODUCTION

(a) Summary of Argument

Defendants James Patrick Page, Robert Anthony Plant and John Paul Jones2respectfully

submit this Memorandum in support of their renewed motion to dismiss plaintiffs Amended

Complaint for lack of personal jurisdiction or, in the alternative, to transfer this action to the

United States District Court for the Central District of California, Western Division.

Plaintiff Michael Skidmore a Massachusetts resident who sues as the purported trustee

of the trust of a Californian, the late Randy Wolfe asserts 43-year-old copyright infringement

claims that Wolfe never bothered to assert in his lifetime. In response to plaintiffs Complaint,

all defendants moved to dismiss or transfer, including on the ground that plaintiffs own

allegations defeat jurisdiction and venue in this district. Plaintiff responded by filing an

Amended Complaint, but it retains without change the allegations that still defeat jurisdiction and

venue, and the Amended Complaints new allegations reiterating that Stairway to Heaven has

been exploited in Pennsylvania do not avoid the inevitable conclusion that this action does not

belong here.

Recent and binding Supreme Court precedent confirms that general jurisdiction over an

individual is limited to his domicile or, at most, another forum that is essentially his home. That

standard is not met here. The individual defendants are British citizens, residing in England,

own no property in Pennsylvania and have no contacts with Pennsylvania, let alone ties

2 Plaintiff again purports to name Led Zeppelin as a defendant. See, e.g., Am. Complaint at caption

& at 12-13, 67-76. Defendants previously raised, and plaintiff ignores, that Led Zeppelin is the name

of a musical group, and not a juridical entity capable of being sued. Page Decl. at 2, 9; Plant Decl. at 2,

9; Jones Decl. at 2, 9.



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sufficient to render this forum their home. Further, because jurisdiction is determined by

contacts with the forum at the time suit is filed, plaintiffs newly added allegation concerning

Led Zeppelin concerts in Philadelphia three or more decades ago is irrelevant. Under established

case law, the Court lacks general jurisdiction over the individual defendants. See, below at 6-10.

The Amended Complaint also does not satisfy the effects test governing the assertion

of specific jurisdiction for the alleged willful copyright infringement. That test requires that

Pennsylvania be both the focal point of the alleged injury and the focal point of the individual

defendants alleged tortious activity. Pennsylvania is neither. Plaintiff is a resident of

Massachusetts and sues on behalf of a California Trust, so Pennsylvania is not the focal point of

the alleged injury. And, the individual defendants have not directed any allegedly actionable

infringing conduct to Pennsylvania. See, below at 10-14.

The individual defendants should be dismissed for lack of personal jurisdiction.

Alternatively, because, inter alia, plaintiff is not a resident of Pennsylvania, there are no

Pennsylvanian witnesses, most if not all the non-party witnesses are located in the Central

District of California and the claim did not arise here, the action is properly transferred to the

Central District of California, where all defendants consent to jurisdiction and venue. See, below

at 14.

(b) Summary of Facts Relevant to this Motion

(1) The Late Randy Wolfe, aka Randy California

Plaintiff alleges that Randy Wolfe, known professionally as Randy California, was a

guitarist and in 1967 formed the band Spirit. Am. Complaint at 5, 16. Plaintiff alleges that in

1967 Wolfe wrote the musical composition titled Taurus, a recording of which was included in

his bands 1968 album titled Spirit. Id. at 5, 18, & at 6, 20. Plaintiff also alleges that



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although Wolfe signed an Exclusive Songwriters and Composers Agreement in 1967 with

Hollenbeck Music, plaintiff disputes that Taurus is a work for hire and disputes that Hollenbeck

or Spirits record company owns the copyright in Taurus. Id. at 6-7, 22-33.

Wolfe, a resident of California, died in 1997. Id. at 12, 62.

(2) The Massachusetts Plaintiff and the California Trust of Randy Wolfe

Plaintiff Michael Skidmore is a resident of Quincy, Massachusetts. Am. Complaint at

12, 61. He sues as the alleged Trustee for the Randy Craig Wolfe Trust (id.at 12, 60),

which it is alleged owns the copyright in Taurusdespite Wolfes 1967 songwriters agreement

with Hollenbeck (id.at 12, 65). Plaintiff alleges that the Trust wasestablished by Bernice C.

Pearl, the mother of Randy Craig Wolfe, as conservator of his estate by court order on February

19, 2002. Id.at 12, 62. He alleges that when Bernice Pearl died, plaintiff, in his capacity as

Trustee, continued the administration of the Trust. Id.

Although plaintiff provides no specifics as to the Trust and does not identify or provide

the document that supposedly appointed him trustee, the Randy Wolfe conservatorship

referenced in the Complaint was established by the California Superior Court for Ventura

County and the February 19, 2002 Order was entered by that Court. See Request for Judicial

Notice at 1-2 & Exhibit 1. The Trust, in short, is a California trust, governed by California law.

(3) The Individual Defendants Are British Citizens with No Ties to

Pennsylvania

The individual defendants, with the late John Bonham, performed together as the musical

group Led Zeppelin. Am. Complaint at 12-13, 67.

The individual defendants are each citizens of the United Kingdom and reside in London,

England. Page Decl. at 1, 2; Plant Decl. at 1, 2; Jones Decl. at 1, 2. None of them have

ever resided in Pennsylvania; ever been issued a Pennsylvania drivers license; ever owned any



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real or personal property located in Pennsylvania; or ever owned any bank accounts, checking

accounts, saving accounts or brokerage accounts in Pennsylvania. Page Decl. at 2-3, 3-6;

Plant Decl. at 2-3, 3-6; Jones Decl. at 2-3, 3-6.

The individual defendants have no employees in Pennsylvania and are not parties to any

contract with a resident of Pennsylvania or with any Pennsylvania company. As far as they

know, none of them have ever been a party to any contract with a resident of Pennsylvania or

with any Pennsylvania company for the exploitation, sale or distribution of Led Zeppelin music.

Page Decl. at 2, 7-8; Plant Decl. at 2, 7-8; Jones Decl. at 2, 7-8.

The individual defendants have not been in Pennsylvania for the purpose of promoting

the exploitation, sale or distribution of Led Zeppelin music since at least 1980. And, they have

not performed as part of the musical group known as Led Zeppelin in the state of Pennsylvania

since 1985, when, without payment, they were one of many performers at a Live Aid charity

concert. None of them have even been in Pennsylvania for any purpose at any time in at least the

last three years. Page Decl. at 3, 9; Plant Decl. at 3, 9; Jones Decl. at 3, 9.

(4)

Stairway to Heaven

Stairway to Heaven was not written or recorded in Pennsylvania. To the contrary,

plaintiff alleges that Mr. Page and Mr. Plant wrote Stairway to Heavenin Wales in 1970 and the

band began recording it in London in 1970 and completed it in 1971. Am. Complaint at 10,

51 & 54. Stairway to Heaven was released in 1971 on the untitled album commonly calledLed

Zeppelin IV, and quickly became Led Zeppelins most famous song, and is universally

acknowledged as one of the greatest songs ever written. Id.at 10, 55, & at 11, 56.

Plaintiff also alleges that Stairway to Heaven, the most famous rock song of all time

(id. at 2, 6), has been and continues to be exploited and the alleged copyright infringements



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have occurred not only in this judicial district, but in the United States, and throughout the

world. Id. at 21, 161. Any exploitation of Stairway to Heaven by any of the Warner

defendants none of which are Pennsylvania corporations or have their principal place of

business here is part of national or international efforts and not targeted at Pennsylvania in

particular. Robinson Decl. at 3, 11.

(5) Plaintiffs Additional Allegations in His Amended Complaint

In addition to repeating the Complaints foregoing allegations, plaintiffs Amended

Complaint attempts to embellish the allegation that Defendants have exploited Stairway to

Heavenand other songs in Pennsylvania by alleging that the individual defendants performed as

Led Zeppelin in concerts in Pennsylvania. Am. Complaint at 21-22, 163-67. But, that was

more than 29 years ago and jurisdiction must be established as to each defendant separately

based on their own individual contacts at the time this action was filed. See, below at 9. Plaintiff

also alleges on information and belief that the initial and predicate acts of copying of Taurus by

Defendants occurred in the United States when, before creating Stairway to Heaven in 1970,

defendants supposedly taped live performances of Taurus or obtained recordings of Taurus in

and throughout the United States. Am. Complaint at 25-26, 184, 186. That conclusory

allegation is not only false but also patently irrelevant to specific jurisdiction in Pennsylvania 44

years later. See, below at 13.

(6) Plaintiffs Claims in this Action

Based on the allegation that Stairway to Heaven infringes the California Trusts copyright

in Taurus, plaintiff purports to assert on the Trusts behalf claims for direct, contributory and

vicarious copyright infringement and a claim labeled Right of Attribution Equitable Relief



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Falsification of Rock n Roll History, for the failure to acknowledge the alleged copyright

infringement and credit Randy Wolfe. Am. Complaint at 24-30, 172-202.

II. THE INDIVIDUAL DEFENDANTS MOTION TO DISMISS FOR LACK OF

PERSONAL JURISDICTION SHOULD BE GRANTED

(a) The Standards Applicable to this Motion

(1) The Jurisdictional Principles

Federal courts ordinarily follow state law in determining the bounds of their jurisdiction

over persons. Daimler AG v. Bauman, 134 S. Ct. 746, 753 (2014), citing Fed. R. Civ. P.

4(k)(1)(A). In Pennsylvania, state law provides for jurisdiction to the fullest extent allowed

under the Constitution of the United States . . . . Marten v. Godwin, 499 F.3d 290, 296 (3d Cir.

2007), quoting 42 Pa. Cons. Stat. 5322(b).

The Due Process Clause of the Fourteenth Amendment requires that nonresident

defendants have certain minimum contacts with [the forum state] such that the maintenance of

the suit does not offend traditional notions of fair play and substantial justice. Marten v.

Godwin, 499 F.3d at 296, quotingIntl Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).

These basic due process principles are reflected in the two recognized types of personal

jurisdiction (Marten, 499 F.3d at 296), general or all-purpose jurisdiction, and specific or case-

linked jurisdiction. Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846, 2851

(2011). Further, the jurisdictional inquiry as to each defendant must be conducted separately.

The Constitutional requirements must be met as to each defendant over whom a state court

exercises jurisdiction. Walden v. Fiore, 134 S. Ct. 1115, 1123 (2014), quoting Rush v. Savchuk,

444 U.S. 320, 331-32 (1980) (court erred by considering the defending parties together and

aggregating their forum contacts in determining whether it had jurisdiction).



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(2) Plaintiffs Burden on this Motion

To survive a motion to dismiss for lack of personal jurisdiction, a plaintiff bears the

burden of establishing the courts jurisdiction over the moving defendants. Miller Yacht Sales,

Inc. v. Smith, 384 F.3d 93, 97 (3d Cir. 2004). [T]he plaintiff may not rely on the bare

pleadings alone in order to withstand [dismissal]; the plaintiff must respond to the motion to

dismiss with actual proofssuch as sworn affidavits or other competent evidencenot mere

allegations. Patchen v. McGuire, 2012 WL 4473233 at *3 (E.D. Pa. 2012), quoting Time

Share Vacation Club v. Atl. Resorts, Ltd., 735 F.2d 61, 66 n. 9 (3d Cir. 1984) (at no point may a

plaintiff rely on the bare pleadings alone in order to withstand a defendants Rule 12(b)(2)

motion to dismiss for lack of in personam jurisdiction).

Here, plaintiffs own allegations establish, and the accompanying Declarations confirm,

that the Court lacks personal jurisdiction over the individual defendants.

(b) The Individual Defendants Are Not Subject to General Jurisdiction in

Pennsylvania

(1) UnderDaimler, General Jurisdiction Is Limited to the Defendants

Domicile

Under general jurisdiction, the contacts between the defendant and the forum need not

be specifically related to the underlying cause of action in order for an exercise of personal

jurisdiction over the defendant to be proper. Pinker v. Roche Holdings Ltd., 292 F.3d 361, 369

n. 1 (3d Cir. 2002). The Supreme Court has recently confirmed, however, that only a limited

set of affiliations with a forum will render a defendant amenable to all-purpose jurisdiction

there. Daimler, 134 S. Ct. at 760. As the Court stated:

For an individual, the paradigm forum for the exercise of general jurisdiction isthe individuals domicile; for a corporation, it is an equivalent place, one in which

the corporation is fairly regarded as at home . . . . Those affiliations have thevirtue of being uniquethat is, each ordinarily indicates only one placeas well



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as easily ascertainable. Id., quoting Goodyear, 131 S. Ct. at 2853-54 (2011).

Simple jurisdictional rules . . . promote greater predictability.

Daimler, 134 S. Ct. at 760, quoting Hertz Corp. v. Friend,559 U.S. 77, 94 (2010).

General jurisdiction does not exist over the individual defendants for the simple reason

that, as plaintiff concedes, they are not domiciled here. Am. Complaint at 14, 84, at 15, 93,

101; see, also Page Decl. at 1, 2; Plant Decl. at 1, 2; Jones at 1, 2. That ends the inquiry.

Even ifDaimlerwere read to allow general jurisdiction over a non-domiciliary individual

who is at home in the jurisdiction, personal jurisdiction still cannot be constitutionally

exercised over the individual defendants in this district. Daimler makes clear that only in an

exceptional case would a defendant be essentially at home in another forum. 134 S. Ct. at

761 n. 19. As an example of an exceptional case, Daimler cites Perkins v. Benguet Consol.

Mining Co.,342 U.S. 437 (1952), where the defendant Philippine corporation temporarily moved

its principal place of business from the Philippines to Ohio during the Japanese occupation of the

Philippines in World War II. Daimler, 134 S. Ct. at 755-56, 761 n. 19. Plaintiff does not and

cannot in good faith allege that the individual defendants have relocated from England to

Pennsylvania, even temporarily.

Accordingly, the individual defendants are not subject to the Courts general jurisdiction.

(2) Plaintiff Relies on Allegations that Are Insufficient underDaimlerand

Stale

In an attempt to support general jurisdiction, plaintiff repeats the conclusory allegation

that each individual defendant does substantial, continuous, and systematic business in the

Eastern District of Pennsylvania. Am. Complaint at 14, 85, & at 15, 94 & 102. But, that

allegation cannot be credited (Time Share, 735 F.2d at 66 n. 9) and is untrue (see, above at 3-4).

Moreover, Daimler held that substantial, continuous and systematic contacts with a

forum are not sufficient to establish general jurisdiction. Daimler, 134 S. Ct. at 761. Thus,



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Daimlerruled that even imputing to a defendant its subsidiarys California contacts including

regional offices and multiple other facilities in California and being the largest supplier of

luxury vehicles to the California market there would still be no basis to subject [the

defendant] to general jurisdiction in California. Id. at 752, 760. Rather, to establish general

jurisdiction the defendants contacts must go far further and render [the defendant] essentially at

home in the forum State. Daimler, 134 S. Ct. at 761, quoting Goodyear, 131 S. Ct. at 2851;

Flynn v. Hovensa, LLC, 2014 WL 3375238 at *4 (W.D. Pa. 2014) (non-residents ownership of

retail stores [in Pennsylvania] is not enough to meet the general jurisdiction standard set forth in

Daimler). The individual defendants who own no property and have no offices in

Pennsylvania do not even have the forum contacts that Daimler found insufficient, let alone the

contacts necessary to consider them domiciled here. See, above at 3-4.

In his Amended Complaint, plaintiff adds that the individual defendants performed as

Led Zeppelin in concerts in Pennsylvania. Am. Compl. at 22, 167. But, the individual

defendants toured throughout the United States and that does not make them subject to each

States general jurisdiction. Daimler, 134 S. Ct. at 761-62 (basing general jurisdiction on fact

national business includes business in State would impermissibly make general jurisdiction

available in every other State). Moreover, the individual defendants stopped touring as Led

Zeppelin in 1980 and performed in Pennsylvania only once after that, in 1985 29 years ago at

a charity concert. See, above at 4. Only contacts occurring within a reasonable period of time

prior to the filing of this action are relevant to this Courts general jurisdiction inquiry.

Philadelphia Profl Collections, LLC v. Young, 2010 WL 5257651 at *3 (E.D. Pa. 2010); see,

also Klinghoffer v. S.N.C. Achille Lauro, 937 F.2d 44, 52 (2d Cir. 1991) (personal jurisdiction

depends on the defendants contacts with the forum state at the time the lawsuit was filed).



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Concerts three or more decades ago are far too remote in time from the filing of this action for

the Court to consider them. Philadelphia Profl, 2010 WL 5257651 at *3.

Accordingly, the Court lacks general jurisdiction of the individual defendants.

(c) The Individual Defendants Are Not Subject to Specific Jurisdiction in

Pennsylvania

Specific jurisdiction is linked to the plaintiffs claim and, when present, confers the

power to adjudicate only that claim. Goodyear, 131 S. Ct. at 2851. The Court, however, also

does not have specific jurisdiction over the individual defendants.

(1) The Effects Test for Specific Jurisdiction

This Circuit recognizes a traditional analysis of specific jurisdiction and [a] slightly

refined version of this test [that] applies to intentional tort claims. OConnor v. Sandy Lane

Hotel Co., Ltd., 496 F.3d 312, 317 n. 2 (3d Cir. 2007), citing Calder v. Jones, 465 U.S. 783

(1984) & IMO Indus., Inc. v. Kiekert AG, 155 F.3d 254 (3d Cir. 1998). Here, plaintiff alleges

[c]opyright infringement[, which] is an intentional tort. Bucklew v. Hawkins, Ash, Baptie &

Co., LLP., 329 F.3d 923, 931 (7th Cir. 2003). Accordingly, the effects test applies.

OConnor, 496 F.3d at 317 n. 2; AllChem Performance Products, Inc. v. Aqualine Warehouse,

LLC, 878 F. Supp. 2d 779, 792-93 (S.D. Tex. 2012) (since copyright infringement is an

intentional tort, Calder effects test applies; personal jurisdiction not established and action

transferred).3

3 Plaintiff also adds a claim for failure to credit Wolfe, but that claim is not recognized under the

law (see, e.g., Dastar Corp. v. Twentieth Century Fox Film Corp. , 539 U.S. 23 (2003)) and, even if it

were, it is alleged as an intentional, non-contractual claim. Am. Complaint at 29, 189 (Defendants

have knowingly been exploiting Stairway to Heaven without crediting Randy California as a writer for

the last forty-two years).



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Under the effects test, a plaintiff demonstrate[s] personal jurisdiction if he or she

shows:

(1) The defendant committed an intentional tort;

(2) The plaintiff felt the brunt of the harm in the forum such that the forumcan be said to be the focal point of the harm suffered by the plaintiff as

a result of that tort;

(3) The defendant expressly aimed his tortious conduct at the forum suchthat the forum can be said to be the focal point of the tortious activity.

Marten, 499 F.3d at 297. All three elements must be established. Id. While plaintiff alleges an

intentional tort, which of course is disputed, his own allegations confirm that he cannot establish

the second and third requirements for specific jurisdiction.

(2) Pennsylvania Is Not the Focal Point of the Alleged Harm

Plaintiff cannot establish that plaintiff felt the brunt of the harm in [Pennsylvania] such

that [Pennsylvania] can be said to be the focal point of the harm suffered by the plaintiff as a

result of that tort. Marten, 499 F.3d at 297.4

If plaintiff was harmed by the alleged infringements, it certainly was not in Pennsylvania.

By plaintiffs own admission, he does not reside here. Am. Complaint at 12, 61. The Trust,

of which plaintiff claims to be trustee, also is not here to feel the alleged harm and, instead, the

alleged harm to the Trust, if any, occurred in California. Accordingly, plaintiffs own allegations

establish that Pennsylvania cannot conceivably be said to be the focal point of the harm suffered

by the plaintiff as a result of that tort. Marten, 499 F.3d at 297.

For this reason alone, plaintiff cannot satisfy the effects test and this Court lacks

specific jurisdiction.

4 While the usual practice is to assess specific jurisdiction on a claim-by-claim basis, because

plaintiffs four claims are factually overlapping and all based on the same alleged copying of Taurus,

the Court need not analyze them separately. OConnor, 496 F.3d at 318.



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(3) Pennsylvania Is Not the Focal Point of the Alleged Tortious Activity

Plaintiff also cannot establish the third requirement of the effects test, namely that

[t]he defendant expressly aimed his tortious conduct at [Pennsylvania] such that [Pennsylvania]

can be said to be the focal point of the tortious activity. Marten, 499 F.3d at 297. To

establish that the defendant expressly aimed his conduct, the plaintiff has to demonstrate the

defendant knew that the plaintiff would suffer the brunt of the harm caused by the tortious

conduct in the forum, and point to specific activity indicating that the defendant expressly aimed

its tortious conduct at the forum. Id.at 297-98, quoting IMO Indus.,155 F.3d at 266; see, also

Walden, 134 S. Ct. at 1125 (Caldermade clear that mere injury to a forum resident is not a

sufficient connection to the forum).

Because plaintiff alleges he is not a Pennsylvanian, he cannot establish that defendants

knew that the plaintiff would suffer the brunt of the harm caused by the tortious conduct in

[Pennsylvania], . . . . Marten, 499 F.3d at 297-98 (emphasis added), quoting IMO Indus.,155

F.3d at 266. For that reason alone, he cannot satisfy the third requirement of the effects test.

Instead of identifying actions targeting plaintiff in this State, plaintiff relies on allegations

that Defendants have targeted resident individuals and businesses in Pennsylvania by, e.g.,

selling CDs and digital downloads of Stairway to Heaven, playing Stairway to Heaven in

concerts and through radio and television play . . . . Am. Compl. at 21, 163. Plaintiff and the

Trust, however, are not among the resident individuals and businesses in Pennsylvania

allegedly targeted. Moreover, the individual defendants do not themselves sell CDs, operate

television or radio stations or otherwise perform or exploit Stairway to Heaven in Pennsylvania.

See, above at 4. Even if it were assumed that others, whose rights may derive from the

individual defendants, sell CDs or otherwise exploit Stairway to Heaven in Pennsylvania, [d]ue



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process requires that a defendant be haled into court in a forum State based on his own affiliation

with the State, not based on the random, fortuitous, or attenuated contacts he makes by

interacting with other persons affiliated with the State. Walden v. Fiore, 134 S. Ct. at 1123

(emphasis added), quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985). And, the

Led Zeppelin concerts performed three or more decades ago are no more relevant to specific

jurisdiction than they are to general jurisdiction. Personal jurisdiction depends on the

defendants contacts with the forum state at the time the lawsuit was filed (Klinghoffer, 937

F.2d at 52), and here there are none.

Finally, in his Amended Complaint plaintiff adds the allegation, on information and

belief, that the initial and predicate acts of copying of Taurus . . . occurred in the United States

when defendants supposedly recorded a live performance of Taurus or obtained a recording with

the intent of later using it to create Stairway to Heaven. Am. Compl. at 25-26, 185 & 186.

None of these acts are alleged to have occurred in Pennsylvania. Further, while the allegation is

disputed, neither recording a live performance nor obtaining a recording by purchase or

otherwise were infringements5and, in any event, plaintiff cannot rely on alleged acts 44 years

ago. Klinghoffer, 937 F.2d at 52. Indeed, alleged infringements outside the Copyright Acts

three year statute of limitations are also irrelevant because they are time-barred. 17 U.S.C.

507(b); Petrella v. Metro-Goldwyn-Mayer, Inc., 134 S. Ct. 1962, 1969 (2014) (Under the Acts

three-year provision, an infringement is actionable within three years, and only three years, of its

5 United States v. Moghadam, 175 F.3d 1269, 1271-72 (11th Cir. 1999) (prior to 1994, the

Copyright Act did not prohibit recording live performances), cert. denied 529 U.S. 1036 (2000); 17

U.S.C. 202 (copyright is distinct from ownership of any material object in which the work is

embodied).



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occurrence. And the infringer is insulated from liability for earlier infringements of the same

work.).

Accordingly, plaintiff also cannot satisfy the third requirement of the effects test and,

for that additional reason, this Court lacks specific jurisdiction of the individual defendants.6

III. ALTERNATIVELY, THE ACTION SHOULD BE TRANSFERRED ON VENUE

GROUNDS

Alternatively, this action was filed by a non-resident, there are no witnesses in

Pennsylvania, the non-party witnesses are largely in the Central District of California and the

claims did not arise in this district. The individual defendants have consented to both jurisdiction

and venue in the United States District Court for the Central District of California for purposes of

this action, should this Court direct its transfer there. For those and other reasons this action is

properly transferred to the Central District of California, Western Division, pursuant to 28 U.S.C.

Section 1404(a). See, Warner defendants Memo. at 9-11.

IV. CONCLUSION

Plaintiffs own allegations and the Declarations filed herewith confirm the Court lacks

personal jurisdiction over the individual defendants. They are not residents of Pennsylvania or

otherwise essentially at home here and subject to general jurisdiction. Daimler, 134 S. Ct. at

6 While the traditional analysis for specific jurisdiction does not apply, plaintiff also could not

meet the three requirements of that test. Marten, 499 F.3d at 296. First, plaintiff cannot show the

necessary . . . deliberate targeting of the forum. OConnor, 496 F.3d at 317;DJamoos ex rel. Estate of

Weingeroff v. Pilatus Aircraft Ltd., 566 F.3d 94, 104 (3d Cir. 2009) (Any connection . . . to Pennsylvania

merely was a derivative benefit of [the] successful attempt to exploit the United States as a national

market), cert. denied, 559 U.S. 1048 (2010). Second, plaintiff also cannot show that his claims arisefrom contacts with Pennsylvania. OConnor, 496 F.3d at 319, 323 (specific jurisdiction requires a closer

and more direct causal connection than that provided by the but-for test). Plaintiff, of course, cannot

seriously contend that the alleged claims would not have arisen but for contacts with Pennsylvania. HS

Real Co., LLC v. Sher, 526 F. Appx 203, 206 (3d Cir. 2013) (plaintiffs inability to even plead a but-

for causative link defeats specific jurisdiction under the traditional test). Because plaintiff could not

satisfy the first two requirements of the traditional analysis, he would not even get to the third and, even

if he did, exercising jurisdiction would not comport with fair play and substantial justice.



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761, quoting Goodyear, 131 S. Ct. at 2851. And, plaintiffs own allegations establish that

Pennsylvania where he does not reside is neither the focal point of the alleged harm nor the

focal point of the alleged tortious activity by the individual defendants. Marten, 499 F.3d at

297. As a result, the Court also lacks specific jurisdiction over the individual defendants.

Accordingly, the action is properly dismissed as to the individual defendants for lack of

personal jurisdiction or, alternatively, should be transferred to the Central District of California,

Western Division, where all defendants consent to jurisdiction and venue of this action.

Respectfully submitted,

FOX ROTHSCHILD LLP

/s/ Michael Eidel

Michael Eidel, Esquire2000 Market Street, 20th Floor

Philadelphia, PA 19103

(215) 918-3568(215) 345-7507 (facsimile)

Local Counsel for Defendants


PHILIPS NIZER LLP

/s/ Helene Freeman

Helene Freeman, Esquire

666 Fifth AvenueNew York, NY 10103-0084

(212) 977-9700(212) 262-5152 (facsimile)

Attorneys for the Individual Defendants

Admitted Pro Hac Vice


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