Case 2:14-cv-03089-JS Document 44 Filed 12/10/14 Page 1 of 13

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

No. 14-cv-3089

REPLY MEMORANDUM OF LAW IN SUPPORT OF MOTION OF DEFENDANTS

SUPER HYPE PUBLISHING, INC., WARNER MUSIC GROUP CORP.,
WARNER/CHAPPELL MUSIC, INC., ATLANTIC RECORDING CORPORATION
AND RHINO ENTERTAINMENT COMPANY TO DISMISS OR
TRANSFER DIRECTED TO PLAINTIFFS AMENDED COMPLAINT

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TABLE OF CONTENTS
REPLY MEMORANDUM OF LAW ............................................................................................ 1
I. SUMMARY OF REPLY .......................................................................................................... 1
II. THE ACTION IS PROPERLY DISMISSED OR TRANSFERRED ...................................... 1
(a) WMG and Atlantic Are Not Estopped from Challenging Jurisdiction ............................... 1
(1) Collateral Estoppel Is Inapplicable: Plaintiff Misrepresents that WMG and
Atlantic Litigated Personal Jurisdiction in Wise v. Williams ........................................ 1
(2) Judicial Estoppel Also Does Not Apply: Atlantic Complied with Due Process by
Suing Pennsylvanians in Pennsylvania ......................................................................... 1
(b) Daimler Applies and Unequivocally Confirms that the Warner Defendants Are Not
Subject to General Jurisdiction in Pennsylvania ................................................................. 2
(c) Neither Are the Warner Defendants Subject to Specific Jurisdiction Here ........................ 2
(1) The Effects Test Governs and Cannot Be Satisfied .................................................. 2
(2) Neither Can Plaintiff Satisfy the Traditional Test ........................................................ 3
(i) The Exploitation of Stairway to Heaven Is National and Not Purposefully
Directed at Pennsylvania ........................................................................................ 3
(ii) Plaintiffs Claims Do Not Arise from Contacts with Pennsylvania ........................ 4
(d) Discovery Would Not Change the Lack of Personal Jurisdiction ...................................... 4
(e) Venue Is Not Proper Because Venue Has to Lie as to All Warner Defendants ................. 5
(f) Alternatively, Transfer to the Central District of California Is Appropriate ...................... 5
(1) Plaintiff Misstates the Applicable Standard .................................................................. 5
(2) The Private Interest Factors .......................................................................................... 5
(3) The Public Interest Factors ........................................................................................... 6

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III. CONCLUSION ......................................................................................................................... 7

ii

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TABLE OF AUTHORITIES
Cases
Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102 (1987).................................................... 4
Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985) .................................................................. 3
Chao v. Roys Const., Inc., 517 F.3d 180 (3d Cir. 2008)................................................................ 2
DJamoos ex rel. Estate of Weingeroff v. Pilatus Aircraft Ltd., 566 F.3d 94 (3d Cir. 2009) ......... 4
Daimler AG v. Bauman, 134 S. Ct. 746 (2014) .............................................................................. 2
Doe v. Hesketh, 2014 WL 1661160 (E.D. Pa. 2014) ...................................................................... 5
Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408 (1984) .................................... 4
Jumara v. State Farm Ins. Co., 55 F.3d 873 (3d Cir. 1995) ....................................................... 5, 6
Kulhawik v. Holder, 571 F.3d 296 (2d Cir. 2009) .......................................................................... 6
Marten v. Godwin, 499 F.3d 290, 297 (3d Cir. 2007) .................................................................... 3
Mohsen v. Morgan Stanley & Co. Inc., 2014 WL 4593919 (S.D.N.Y. 2014) ................................ 7
Natl R.R. Passenger Corp. v. Pennsylvania Pub. Util. Commn, 288 F.3d 519
(3d Cir. 2002), cert. denied 538 U.S. 1057 ................................................................................. 1
OConnor v. Sandy Lane Hotel Co., Ltd., 496 F.3d 312 (3d Cir. 2007)......................................... 4
Pacer Global Logistics, Inc. v. Natl Passenger R.R. Corp., 272 F. Supp. 2d 784
(E.D. Wis. 2003) ......................................................................................................................... 5
Rush v. Savchuk, 444 U.S. 320 (1980) ............................................................................................ 3
Smith v. Borough of Dunmore, 516 F. Appx 194 (3d Cir. 2013) .................................................. 1
Toys R Us, Inc. v. Step Two, S.A., 318 F.3d 446 (3d Cir. 2003)................................................. 5
Walden v. Fiore, 134 S. Ct. 1115 (2014) ........................................................................................ 3
Weinstein v. Friedman, 859 F. Supp. 786 (E.D. Pa. 1994) ............................................................. 5

iii

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Wise v. Williams, 2011 WL 2446303 (M.D. Pa. 2011) .............................................................. 1, 2

Zokaites v. LandCellular Corp., 424 F. Supp. 2d 824 (W.D. Pa. 2006) ....................................... 7
Statutes
17 U.S.C. 201 ............................................................................................................................... 7
Rules
Federal Rule of Civil Procedure 12 ................................................................................................ 1
Federal Rule of Evidence 201 ......................................................................................................... 1

iv

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REPLY MEMORANDUM OF LAW

I.

SUMMARY OF REPLY
Plaintiff, a non-Pennsylvanian allegedly acting on behalf of a non-Pennsylvanian trust,

sues non-Pennsylvanians on claims that arose outside of Pennsylvania. Plaintiffs opposition to

the Warner defendants motion does not change the obvious this case does not belong here.
II.

THE ACTION IS PROPERLY DISMISSED OR TRANSFERRED

(a)

WMG and Atlantic Are Not Estopped from Challenging Jurisdiction

(1)

Collateral Estoppel Is Inapplicable: Plaintiff Misrepresents that

WMG and Atlantic Litigated Personal Jurisdiction in Wise v. Williams

Plaintiff represents to the Court that in Wise v. Williams, 2011 WL 2446303 (M.D. Pa.
2011), WMG and Atlantic filed motions to dismiss pursuant to FRCP 12(b)(2) and lost. Oppn.
at 12. That is not true: while other defendants challenged personal jurisdiction, WMG and
Atlantic only objected to venue (and their motion to transfer was granted). 2011 WL 2446303 at
*1 & *9-14. Since jurisdiction over WMG and Atlantic was never litigated in Wise, there can be
no collateral estoppel. Smith v. Borough of Dunmore, 516 F. Appx 194, 199 (3d Cir. 2013)
(collateral estoppel requires, e.g., that the issue was actually litigated by party to be bound).1
(2)

Judicial Estoppel Also Does Not Apply: Atlantic Complied with Due
Process by Suing Pennsylvanians in Pennsylvania

Plaintiff asks the Court to judicially notice 402 cases Atlantic supposedly filed, but he
fails to provide the Court with the required materials to enable it to determine the positions
Atlantic took and whether it prevailed on them. Fed. R. Evid. 201(c)(2); defendants Objections.
1

In addition, Wise applied a test for general jurisdiction rejected in Daimler AG v. Bauman, 134 S.
Ct. 746 (2014). Natl R.R. Passenger Corp. v. Pennsylvania Pub. Util. Commn, 288 F.3d 519, 525 n. 3
(3d Cir. 2002) (collateral estoppel exceptions include subsequent change of law), cert. denied 538 U.S.
1057. Also, Wises ruling on whether other defendants in that case were subject to specific jurisdiction as
to the claims alleged in Wise, is not the same issue raised here. Smith, 516 F. Appx at 199 (collateral
estoppel requirements include that the identical issue was previously adjudicated).

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Further, plaintiffs argument is that Atlantic alleged in other cases that the mere act of
placing infringing material on the internet subjects one to personal jurisdiction. Oppn. at 14.
That position is not inconsistent with Atlantics objection to personal jurisdiction here because it
does not distribute digital copies over the Internet. Robinson Decl. (Document 35-6) at 2-3, 8;
Chao v. Roys Const., Inc., 517 F.3d 180, 186 n. 5 (3d Cir. 2008) (party must have adopted
irreconcilably inconsistent positions). Moreover, plaintiff is incorrect: the pleading he quotes
based jurisdiction on the defendant also having contracted with an Internet Service Provider . . .
found in this District . . . . Oppn. at 14. In addition, plaintiff omits the immediately preceding
allegation that the Defendant may be found in this District . . . . Complaint (Document 1) at 2,
3, in 2:05-cv-03252-PBT. Thus, the action was filed in Pennsylvania because the Internet
Service Provider and presumably the defendant were in Pennsylvania.
There is nothing irreconcilably inconsistent with Atlantic suing Pennsylvanians in
Pennsylvania and requiring that plaintiff sue Atlantic where jurisdiction lies as to Atlantic.
(b)

Daimler Applies and Unequivocally Confirms that the Warner Defendants

Are Not Subject to General Jurisdiction in Pennsylvania

Plaintiff relies on a pre-Daimler case, Wise, to argue that his allegations of systematic
and continuous contacts establish general jurisdiction. Oppn. at 19-20. In addition to the fact
that plaintiffs allegations are conclusory and fail to differentiate among the defendants, Daimler
held that systematic and continuous contacts do not establish general jurisdiction. Daimler AG
v. Bauman, 134 S. Ct. 746, 760-61 (2014); Warner defendants Memo. (Document at 35) at 3-6.
(c)

Neither Are the Warner Defendants Subject to Specific Jurisdiction Here

(1)

The Effects Test Governs and Cannot Be Satisfied

Plaintiff does not try to and cannot satisfy the effects test for specific jurisdiction. As a
Massachusetts resident suing on behalf of a California trust, he cannot possibly establish that he

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or the trust 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 . . . . Marten v. Godwin, 499 F.3d 290,
297 (3d Cir. 2007).

And, because he alleges Stairway to Heaven was written outside

Pennsylvania and is exploited everywhere, he cannot possibly establish that the alleged
infringements were expressly aimed . . . at [Pennsylvania] such that [Pennsylvania] can be said
to be the focal point of the tortious activity. Id.; Warner defendants Memo. at 6-8.
Plaintiff cannot possibly satisfy the effects test for specific jurisdiction
(2)

Neither Can Plaintiff Satisfy the Traditional Test

(i)

The Exploitation of Stairway to Heaven Is National and Not

Purposefully Directed at Pennsylvania

Plaintiff argues incorrectly2 for the traditional test for specific jurisdiction, but he also
cannot satisfy that test. Its first requirement is that the defendant must have purposefully
directed his activities at the forum . . . . Marten, 499 F.3d at 296, quoting Burger King Corp.
v. Rudzewicz, 471 U.S. 462, 475 (1985). Although plaintiff must establish personal jurisdiction
as to each defendant (Walden v. Fiore, 134 S. Ct. 1115, 1123 (2014), quoting Rush v. Savchuk,
444 U.S. 320, 331-32 (1980)), plaintiff relies on conclusory allegations as to all defendants
(Oppn. at 16-17) and ignores the Warner defendants lack of contacts with Pennsylvania.3
Further, plaintiffs own allegations confirm that the exploitation of Stairway to Heaven is
not directed specifically at Pennsylvania. His allegations that it is the most famous rock song of
all time and is exploited throughout the world (Am. Complaint at 2, 6, & at 21, 160)
2

See, individual defendants Reply at 2-3.

For example, the Warner defendants do not license the Stairway to Heaven musical composition
for use in radio or television broadcasts or live performances in Pennsylvania; for at least the preceding
five years, Warner/Chappell has not issued to any Pennsylvanian a synchronization license for the
composition; SuperHype has not been involved in licensing the composition anywhere since 2000; and
the Warner defendants do not themselves sell physical or digital records, if at all, to the public.
McDowell Decl. (Document 35-7) at 2-3, 4-10; Robinson Decl. at 2-3, 8-11.

Case 2:14-cv-03089-JS Document 44 Filed 12/10/14 Page 9 of 13

establish that [a]ny connection . . . to Pennsylvania merely was a derivative benefit of [the]
successful attempt to exploit the United States as a national market. DJamoos ex rel. Estate of
Weingeroff v. Pilatus Aircraft Ltd., 566 F.3d 94, 104 (3d Cir. 2009). Even if he had shown that
distributors of Stairway to Heaven reached Pennsylvania, those efforts simply do not constitute
the type of deliberate contacts within Pennsylvania that could amount to purposeful availment of
the privilege of conducting activities in that state. Id.; Asahi Metal Indus. Co. v. Superior
Court, 480 U.S. 102, 112 (1987) (The placement of a product into the stream of commerce,
without more, is not an act of the defendant purposefully directed toward the forum State).
Accordingly, plaintiff cannot satisfy the first part of the traditional test.
(ii)

Plaintiffs Claims Do Not Arise from Contacts with Pennsylvania

The second requirement of the traditional test for specific jurisdiction is that [t]he
plaintiffs claims must also arise out of or relate to at least one of th[e] contacts the defendant
purposefully directed at the forum. OConnor v. Sandy Lane Hotel Co., Ltd., 496 F.3d 312, 318
(3d Cir. 2007), quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414
(1984). Plaintiff cannot possibly satisfy this requirement because it requires a closer and more
direct causal connection than that provided by the but-for test (OConnor, 496 F.3d at 323), and
plaintiff cannot even establish that but for contacts with Pennsylvania he would have no claim.
Accordingly, plaintiff also cannot possibly satisfy the second part of the traditional test.4
(d)

Discovery Would Not Change the Lack of Personal Jurisdiction

Plaintiff failed to raise jurisdictional discovery in response to defendants first motions or

in the October 10, 2014 telephone conference with the Court, and failed to file a motion seeking
discovery. He also fails to make the required threshold showing of factual allegations that
4

As a result, the Court need not address the third part of the traditional test, although it also cuts
against personal jurisdiction. See, individual defendants Reply at 5-6.

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suggest with reasonable particularity the possible existence of the requisite contacts between
[the party] and the forum state, . . . . Doe v. Hesketh, 2014 WL 1661160 at *13 (E.D. Pa. 2014),
quoting Toys R Us, Inc. v. Step Two, S.A., 318 F.3d 446, 456 (3d Cir. 2003). In any event,
discovery would be futile because he cannot establish personal jurisdiction. See, above at 2-4.
(e)

Venue Is Not Proper Because Venue Has to Lie as to All Warner Defendants

Plaintiff concedes venue is improper if personal jurisdiction does not lie and he does not
dispute that in order for venue to be proper in an action, it must be proper as to all defendants . .
. . Pacer Global Logistics, Inc. v. Natl Passenger R.R. Corp., 272 F. Supp. 2d 784, 788 (E.D.
Wis. 2003); Oppn. at 20-21. Since personal jurisdiction does not exist as to any, let alone all, of
the Warner defendants, venue is improper in this district. Warner defendants Memo. at 8-9.
(f)

Alternatively, Transfer to the Central District of California Is Appropriate

(1)

Plaintiff Misstates the Applicable Standard

Plaintiff quotes Jumara v. State Farm Ins. Co., 55 F.3d 873 (3d Cir. 1995), as stating the
movant must demonstrate a strong preponderance in favor of transfer. Oppn. at 22, citing
Jumara, 55 F.3d at 879-80. That language does not appear in Jumara. Further, that burden
applies only if the plaintiffs choice of forum is entitled to great deference (see, e.g. Weinstein v.
Friedman, 859 F. Supp. 786, 788 (E.D. Pa. 1994)), which is not the case here. See, below at 5-6.
(2)

The Private Interest Factors

Plaintiff concedes there are no Pennsylvania parties or witnesses, and fails to overcome
the Warner defendants showing that transfer to the Central District of California is proper.
The parties choice of forum. Plaintiff is not a Pennsylvanian and the claim did not
arise here, so his choice is not entitled to deference. Warner defendants Memo. at 10. His
assertion the Central District favors defendants is an affront to the Court, and defendants choice

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is proper since, e.g., Los Angeles-based Warner/Chappell is the publisher of Stairway to Heaven.
[W]hether the claim arose elsewhere, . . . . (Jumara, 55 F.3d at 879). Plaintiff
admits it arose elsewhere (Oppn. at 23-24), so this factor also cuts in favor of transfer.5
The convenience of the parties. Plaintiff submits no declarations and offers only his
briefs assertions, which are not evidence. Kulhawik v. Holder, 571 F.3d 296, 298 (2d Cir.
2009). He also misstates that most of the five Warner defendants are based in New York rather
than Los Angeles (Oppn. at 25): only Atlantic and WMG have their principal places of business
in New York, and WMG does not license or distribute music. Robinson Decl. at 2-3, 3, 9.
The convenience of witnesses. Plaintiff concedes there are no Pennsylvania witnesses.
He relies on bare and unproven assertions as to, e.g., where most of the witness are located,
while ignoring many of the California witnesses the Warner defendants identified. Oppn. at 2526; Anderson Decl. (Document 35-2) at 3-8, 9-20. Remarkably, plaintiff disputes that Randy
Wolfes son and the sons mother both Californians are witnesses, but he pleads standing by
alleging a settlement with the son.

Id. at 7-8, 19-20; Oppn. at 26 n. 18.

Witness

convenience tilts decidedly in favor of transfer. Warner defendants Memo. at 11-12.

The location of books and records. Plaintiff relies on unproven assertions as to his and
the California Trusts records and cannot dispute the relevance of the California court and other
records he put in issue by his own pleadings allegations. This factor cuts in favor of transfer.
(3)

The Public Interest Factors

Court familiarity with California law. Plaintiff argues that California law is irrelevant
(Oppn. at 27-28), but he bases the California Trusts alleged ownership of the Taurus copyright
5

Plaintiff contends only that, focusing on the citizenship of the alleged copyright owner, the claim
did not arise in California because the California Trust was not created until 2002 and the alleged
infringements predate 2002. Oppn. at 23 n. 17, & at 24. But, prior to 2002 the claimed copyright owner
was the California estate of Randy Wolfe and, before that, Wolfe, a Californian.

Case 2:14-cv-03089-JS Document 44 Filed 12/10/14 Page 12 of 13

on probate proceedings in California and the claimed invalidity under California law of two
California contracts. Anderson Decl. at 2, 4, & at 3-7, 9-16, 19. State law governs passing
of title by inheritance (17 U.S.C. 201(d)(1)) and the validity of a contract assigning a copyright
(Dolch v. United California Bank, 702 F.2d 178, 180 (9th Cir. 1983)). This favors transfer.
Practical considerations. Plaintiff concedes that transfer will not significantly disrupt
the litigation or result in a waste of judicial resources. Zokaites v. LandCellular Corp., 424 F.
Supp. 2d 824, 841 (W.D. Pa. 2006). And, contrary to his assertion, the Warner defendants
established the applicability of the cases they cited. Warner defendants Memo. at 10-14.
Court congestion.

Plaintiff challenges the federal judiciarys statistics, but courts

routinely rely upon them. See, e.g., Mohsen v. Morgan Stanley & Co. Inc., 2014 WL 4593919 at
*7 n. 4 (S.D.N.Y. 2014). He concedes the Central District is less congested, but misstates the
standard when he argues the difference does not militate in favor of transfer[ ]. Oppn. at 29.
The Warner defendants need only show the factors cut in favor of transfer, which they clearly do.
III.

CONCLUSION
The Warner defendants respectfully submit that their motion should be granted and the

case dismissed or transferred to the Central District of California, Western Division.

Respectfully submitted,
FOX ROTHSCHILD LLP

LAW OFFICES OF PETER J. ANDERSON P.C.

/s/ Michael Eidel

Michael Eidel, Esquire
2000 Market Street, 20th Floor
Philadelphia, PA 19103
(215) 918-3568
(215) 345-7507 (facsimile)

/s/ Peter J. Anderson

Peter J. Anderson, Esquire
100 Wilshire Boulevard, Suite 2010
Santa Monica, CA 90401
(310) 260-6030
(310) 260-6040 (facsimile)

Local Counsel for Defendants

Attorney for the Warner Defendants

Admitted Pro Hac Vice

Dated: December 10, 2014

Case 2:14-cv-03089-JS Document 44 Filed 12/10/14 Page 13 of 13

CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing Reply Memorandum of
Law of in Support of Motion of Defendants Super Hype Publishing, Inc., Warner Music Group
Corp., Warner/Chappell Music, Inc., Atlantic Recording Corporation and Rhino Entertainment
Company to Dismiss or Transfer Directed to Plaintiffs Amended Complaint, was served upon
counsel for Plaintiff via the Courts ECF filing system.

/s/ Matthew S. Olesh

Matthew S. Olesh, Esquire
Dated: December 10, 2014