Photographic Illustrators Corporation v. Kelly Supply Company et al
| Massachusetts District Court | |
| Judge: | Richard G Stearns |
| Case #: | 1:15-cv-13619 |
| Nature of Suit | 820 Property Rights - Copyrights |
| Cause | 17:501 Copyright Infringement |
| Case Filed: | Oct 21, 2015 |
| Terminated: | Mar 30, 2016 |
| Last checked: Monday Apr 18, 2016 4:33 AM EDT |
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Defendant
Kelly Supply Company, Norfolk
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Represented By
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Defendant
Kelly Supply Company, d/b/a KSCdirect.com
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Defendant
Kelly Supply Company
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Represented By
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Plaintiff
Photographic Illustrators Corporation
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Represented By
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| Docket last updated: 8 hours ago |
| Wednesday, March 30, 2016 | ||
| 21 | 21
order
Order Dismissing Case
Wed 03/30 2:46 PM
Judge Richard G. Stearns: ORDER DISMISSING CASE without prejudice to refiling the case in the proper forum, ENTERED.(Flaherty, Elaine) |
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| 20 | 20
order
Order on Motion to Dismiss
Wed 03/30 2:24 PM
Judge Richard G. Stearns: ELECTRONIC ORDER entered granting12 Motion to Dismiss. Defendants Kelly Supply Company and Kelly Supply Company, Norfolk, (together Kelly Supply), Nebraska corporations with principal places of business in Omaha, Nebraska, move to dismiss this case for lack of personal jurisdiction and improper venue. As both parties have filed exhibits and affidavits in support of their pleadings, including the Complaint, the court will consider those submissions. Kelly Supply, a wholesale provider of industrial, plumbing, and electrical supplies, maintains a website (kscdirect.com) to display and facilitate purchasing products, including Sylvania lighting. Plaintiff Photographic Illustrators Corporation (PIC) instituted this action against Kelly Supply asserting that the Sylvania pictures on Kelly Supply's website were obtained "unlawfully"; that Kelly Supply had removed PICs "copyright management information," allegedly harm[ing] PIC's business and depriv[ing] it of potential customers. Pl. Opp'n at 3. Luke Kelly, Secretary and a Director of Kelly Supply, states that, as with all of its manufacturers or vendors, it received the disputed images used on its website directly from Sylvania. The pictures came in five batches on January 29, 2008; February 25, 2009; May 1, 2009; August 31, 2011; and June 15, 2012. Kelly testifies that it did not alter the images in any way, and upon notice on October 22, 2015, that there was a potential lawsuit regarding the pictures, it immediately removed the photos from its website. Kelly Aff. paras. 5-7. Kelly also testifies that "[b]etween January 29, 2008, the date Kelly Supply first received images from Sylvania, and October 22, 2015, the date Kelly Supply removed the allegedly offending images from the Kelly website, Kelly Supply did not sell a single Sylvania product to any customer located in Massachusetts." Id. para. 8. Further Kelly affirms that "[d]uring the same time period of nearly eight years, the total amount of Kelly Supply's sales to persons in the state of Massachusetts, regardless of manufacturer or vendor, is just $18,979.25." Id. para. 9. PIC insists that the court has jurisdiction over Kelly Supply in Massachusetts as "Kelly admits that it received these images from Sylvania... " a Massachusetts resident, " and it sells and ships products to buyers in Massachusetts. Pl. Opp'n at 3, 6 (emphasis in original). Notably, Sylvania is not a party to this case. As the undisputed evidence shows Kelly Supply's unrelated, minimal sales in Massachusetts during the relevant period, PIC fails to meet its burden of demonstrating that this court has personal jurisdiction over Kelly Supply or that Massachusetts is a proper venue for this litigation. See Daynard v. Ness , 290 F.3d 42, 50 (1st Cir. 2002); see also Walden v. Fiore , 134 S. Ct. 1115, 1121 (2014) ("For a State to exercise jurisdiction consistent with due process, the defendant's suit-related conduct must create a substantial connection with the forum State.... [T]he relationship must arise out of contacts that the 'defendant himself'creates with the forum State."), quoting Keeton v. Hustler Magazine, Inc. , 465 U.S. 770, 775 (1984). The motion to dismiss is ALLOWED without prejudice to refiling the case in a proper forum. PIC asks for jurisdictional discovery from Kelly Supply, mostly to verify Kelly's sworn testimony. In light of the 323 pages of exhibits attached to PIC's Complaint, PIC's Keeton Affidavit and exhibits, Kelly Supply website images embedded in PIC's Opposition, and the Kelly affidavit provided to the court, there seems little point in the further discovery PIC is requesting as it is confusing the issue of whether a wrong was done with the issue of jurisdiction. Moreover, even if there was something more than an unverified allegation to counter Kelly's sworn statement that Kelly Supply did nothing to alter the images Sylvania provided, the majority of the requested discovery involves actions taken by a nonparty and a Nebraska resident at its place of business. Accordingly, the request is DENIED. (Zierk, Marsha) |
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| Thursday, March 24, 2016 | ||
| 19 | 19
respm
Opposition to Motion
Thu 03/24 3:41 PM
Opposition re12 MOTION to Dismiss filed by Photographic Illustrators Corporation. (Rader, Michael) |
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| 18 | 18
misc
Declaration
Thu 03/24 3:36 PM
DECLARATION re12 MOTION to Dismiss by Photographic Illustrators Corporation.(Rader, Michael) |
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Att: 1
Exhibit A,
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Att: 2
Exhibit B,
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Att: 3
Exhibit C,
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Att: 4
Exhibit D,
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Att: 5
Exhibit E,
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Att: 6
Exhibit F
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| Friday, March 04, 2016 | ||
| 17 | 17
order
Order on Motion for Extension of Time
Fri 03/04 3:41 PM
Judge Richard G. Stearns: ELECTRONIC ORDER entered granting16 Motion for Extension of Time until March 24, 2016 to oppose defendant's motion to dismiss. (RGS, int2) |
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motion
Extension of Time
Fri 03/04 1:15 PM
MOTION for Extension of Time to March 24, 2016 to Extend Deadline for Plaintiff to Oppose Defendants' Motion To Dismiss [UNOPPOSED] by Photographic Illustrators Corporation.(Miller, Joshua) |
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| Thursday, March 03, 2016 | ||
| 15 | 15
notice
Notice of Appearance
Thu 03/03 4:56 PM
NOTICE of Appearance by Hunter D. Keeton on behalf of Photographic Illustrators Corporation (Keeton, Hunter) |
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| Thursday, February 25, 2016 | ||
| 14 | 14
misc
Corporate Disclosure Statement
Thu 02/25 4:39 PM
CORPORATE DISCLOSURE STATEMENT by Kelly Supply Company. (Brown, Michael) |
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| 13 | 13
misc
Corporate Disclosure Statement
Thu 02/25 4:38 PM
CORPORATE DISCLOSURE STATEMENT by Kelly Supply Company, Norfolk. (Brown, Michael) |
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| 12 | 12
motion
Dismiss
Thu 02/25 4:36 PM
MOTION to Dismiss by Kelly Supply Company, Kelly Supply Company, Norfolk.(Brown, Michael) |
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Att: 1
Memo ISO of Motion,
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Att: 2
Affidavit of Luke Kelly
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| Tuesday, January 26, 2016 | ||
| 11 | 11
order
Order on Motion for Extension of Time
Tue 01/26 9:40 AM
Judge Richard G. Stearns: ELECTRONIC ORDER entered granting10 Motion for Extension of Time for Kelly Supply Company and Kelly Supply Company Norfolk to answer or otherwise respond to the Complaint until February 25, 2016. In the future, parties must state a basis for any request to alter the time periods prescribed by the federal procedural rules. The court is not inclined to further extension. (Zierk, Marsha) |
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| Monday, January 25, 2016 | ||
| 10 | 10
motion
Extension of Time
Mon 01/25 11:40 AM
Assented to MOTION for Extension of Time to February 25, 2016 to File Answer of Kelly Supply Company, Norfolk and Kelly Supply Company, d/b/a KSCdirect.com by Photographic Illustrators Corporation.(Miller, Joshua) |
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| Thursday, January 14, 2016 | ||
| 9 | 9
service
Summons Returned Executed
Thu 01/14 10:53 AM
SUMMONS Returned Executed Kelly Supply Company, Norfolk served on 1/5/2016, answer due 1/26/2016. (Rader, Michael) |
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| 8 | 8
service
Summons Returned Executed
Thu 01/14 10:52 AM
SUMMONS Returned Executed Kelly Supply Company served on 1/5/2016, answer due 1/26/2016. (Rader, Michael) |
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| Friday, October 23, 2015 | ||
| 7 | 7
notice
Notice of Appearance
Fri 10/23 12:42 PM
NOTICE of Appearance by Joshua J. Miller on behalf of Photographic Illustrators Corporation (Miller, Joshua) |
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| 6 | 6
notice
Notice of Appearance
Fri 10/23 12:40 PM
NOTICE of Appearance by Turhan F. Sarwar on behalf of Photographic Illustrators Corporation (Sarwar, Turhan) |
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| 5 | 5
misc
Corporate Disclosure Statement
Fri 10/23 12:37 PM
CORPORATE DISCLOSURE STATEMENT by Photographic Illustrators Corporation. (Rader, Michael) |
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| Thursday, October 22, 2015 | ||
| 4 | 4
service
Summons Issued
Thu 10/22 1:59 PM
Summons Issued as to All Defendants. Counsel receiving this notice electronically should download this summons, complete one for each defendant and serve it in accordance with Fed.R.Civ.P. 4 and LR 4.1. Summons will be mailed to plaintiff(s) not receiving notice electronically for completion of service. (Geraldino-Karasek, Clarilde) |
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| 3 | 3
notice
Notice of Case Assignment
Thu 10/22 1:19 PM
ELECTRONIC NOTICE of Case Assignment. Judge Richard G. Stearns assigned to case. If the trial Judge issues an Order of Reference of any matter in this case to a Magistrate Judge, the matter will be transmitted to Magistrate Judge Marianne B. Bowler. (Abaid, Kimberly) |
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| Wednesday, October 21, 2015 | ||
| 2 | 2
misc
Report on the filing/termination of copyright case
Wed 10/21 9:40 PM
REPORT on the filing/termination of copyright case . (Rader, Michael) |
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| 1 | 1
cmp
Complaint
Wed 10/21 9:38 PM
COMPLAINT and Jury Demand against Kelly Supply Company, Norfolk, Kelly Supply Company, d/b/a KSCdirect.com Filing fee: $ 400, receipt number 0101-5804163 (Fee Status: Filing Fee paid), filed by Photographic Illustrators Corporation.(Rader, Michael) |
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Att: 1
Exhibit A, Part 1,
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Att: 2
Exhibit A, Part 2,
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Att: 3
Exhibit B,
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Att: 4
Exhibit C, Part 1,
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Att: 5
Exhibit C, Part 2,
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Att: 6
Exhibit D, Part 1,
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Att: 7
Exhibit D, Part 2,
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Att: 8
Exhibit E,
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Att: 9
Civil Cover Sheet,
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Att: 10
Category Form
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