Skidmore v. Zeppelin - plaintiff's response to motion to dismiss.pdf

8/10/2019 Skidmore v. Zeppelin - plaintiff's response to motion to dismiss.pdf

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United States District CourtEastern District of Pennsylvania

Michael Skidmore, as Trustee for the:

Randy Craig Wolfe TrustPlaintiff

v.

Led ZeppelinJames 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.:2:14-cv-03089

Case Filed:

May 31, 2014

Causes of Action:

Copyright Infringement

Right of Attribution

Falsification of

Rock n Roll History

Jury Trial Demanded

Oral Argument Requested

Plaintiffs Omnibus Response In Opposition to DefendantsMotions to Dismiss Pursuant to FRCP 12(b)(2, 3) and

Motions to Transfer Pursuant to 28 USC 1404

Record companies and artists who sell, market, and performtheir music in Pennsylvania, and have made and continue tomake millions of dollars from its residents, cannot then claimthat Pennsylvania has no jurisdiction over them and that theforum is inconvenient.

Case 2:14-cv-03089-JS Document 41-1 Filed 11/24/14 Page 1 of 43


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I. Summary

Defendants Motions to Dismiss pursuant to Federal Rule of Civil Procedure

12(b)(2) (lack of personal jurisdiction) and (3) (improper venue) (Doc. No. 35 & 36)1are so

clearly frivolous that they should not only be dismissed, but cost and fees should be imposedon Defendants for filing them with the Court. All Defendants conduct significant and

continuous business with Pennsylvania and the Eastern District, and, furthermore,

defendants Warner Music Group and Atlantic Recording

Corporation are precluded by collateral and judicial estoppelfrom arguing that they are

not subject to personal jurisdiction and venue in Pennsylvania.

Defendants are unequivocally subject to personal jurisdiction inPennsylvania and the Eastern District because they systematically and

continuously market, advertise, promote, sell, and perform their music,including the infringing work Stairway to Heaven, in Pennsylvaniaand Philadelphiato the tune of millions of dollars.

Moreover, the last public performance by Led Zeppelin on US soil was in Philadelphia,

Pennsylvania. They performed Stairway to Heaven at JFK Stadium in front of a crowd

of over 100,000 Pennsylvania residents. This landmark concert, Live Aid, took place on

July 13, 1985. Led Zeppelin never again publicly performed in the United States. There is

no other state, and no other district court, that is more appropriate for purposes of

jurisdiction and venue than Pennsylvania and the Eastern District of Pennsylvania. The

members of Led Zeppelin got on planes, and landed in Philadelphias airport. They used

Philadelphias police, firemen, and paramedics for security and safety. They used

Philadelphias infrastructure and highways to travel to John F. Kennedy Stadium.

Moreover, because Defendants are subject to personal jurisdiction in the Eastern District,

under the pertinent copyright venue statutes Philadelphia is undoubtedly an appropriate

venue in which to litigate these claims.

This is not the first case in which defendants Warner Music and Atlantic Recording

have filed a motion to dismiss claiming that Pennsylvania lacks personal jurisdiction over

1Defendants briefs overlap each other and advance much of the same arguments. For that

reason, Plaintiff has opted to combine his responses to both the Corporate Defendants and

the Individual Defendants in a single, omnibus response.

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them. The last time these companies did so, a district court resoundingly ruled against

Warner Music and Atlantic and held they were subject to personal jurisdiction in

Pennsylvania. The court correctly found that because they conduct systematic and

continuousbusiness in this forum, they could be sued here and that their arguments to the

contraryhadno merit.

In this prior case, Wise v. Williams, the district court made the observation Warner

and Atlantic are huge companies whose entire business consists of targeting markets, such

as Pennsylvania and Philadelphia, to exploit their artists music. Because these companies

target Pennsylvania for exploitation, it was clear to the court that personal jurisdiction and

venue undoubtedly exists in Pennsylvania over those Defendants. Importantly, that court

also found that the individual defendant artists selling their music through Warner and

Atlantic are just as subject to personal jurisdiction in Pennsylvania as the companies

they use to distribute their music. In other words, if an artist and a company sell and

market their music in Pennsylvania, and make millions of dollars from its residents, they

cannot then claim that Pennsylvania has no jurisdiction over them and that the forum is

inconvenient. Not only is this the legally correct result, but it comports with common

sense. Given how clearly erroneous Defendants position is, it is astounding to see them

still trying to foist their failed argument on this Court. Defendants are trying to improperly

relitigate an issue which has already been decided against them and are collaterally

estopped from further contesting that Pennsylvania has personal jurisdiction over them.

That this motion is frivolous is confirmed by Defendants own conduct in the last

few months. In late October 2014, as one of Plaintiffs attorneys was driving into work, he

was listening to the Philadelphia radio station 102.9 WMGK. Knowing that Defendants are

claiming Pennsylvania has no personal jurisdiction over any defendantessentially

averring that Defendants have no contacts with the Commonwealthit was with a

considerable amount of surprise he heard the DJ start promoting an interview the station

had done with defendant James Patrick Page. The interview, available on WMGKs

website, was done to market, promote, and advertise the rerelease of Led Zeppelin IVan

album that includes the infringing song Stairway to Heavenin Philadelphia and

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Pennsylvania.2 The rerelease even includes two versions of Stairway, which the

interview extensively discusses. It is astounding that defendant Page, and his fellow

defendants, filed a motion with this Court contesting personal jurisdiction, even as they

personally continue to target this forum to exploit Stairway to Heaven! The

hypocrisy is overwhelming and demonstrates that Defendants motions contesting

personal jurisdiction and venue have no merit.

Defendants also request that this Court transfer this case to California for reasons

of convenience. However, Defendants clearly fail to meet their burden and fail to identify

virtually any reason why this case should be transferred to California for conveniences

sakeCalifornia has little or no connection to this case. In reality, Defendants have

requested a transfer to California solely because they litigate in that forum often and it

gives them a home-court advantage. The individual Defendants actually requesting

this transferallegedly for reasons of conveniencelive in the United Kingdom and

will have to travel over 3,000 miles further to testify in California. Philadelphia, in

contrast, is a convenient midpoint. To claim that traveling twice as far is convenient,

doubling the required travel time, is absurd.Even most of the corporate Defendants are

headquartered in New York City, close to Philadelphia. Defendants transfer request

is factually unsupported and should be denied.

II. Facts and Procedural Posture

Plaintiff filed his Complaint on May 31, 2014. On September 17, 2014, Defendants

filed their Motions to Dismiss Plaintiffs Complaint Pursuant to FRCP 12(b)(2,3)

(contesting personal jurisdiction and venue). On October 8, 2014, Plaintiff filed an

Amended Complaint, which was amended in large part to address Defendants frivolous

arguments concerning personal jurisdiction and venue. Despite Plaintiffs Amended

Complaint, Defendants again filed motions to dismiss pursuant to FRCP 12(b)(2, 3),

motions which are devoid of any factual or legal merit.

2 Interview of Jimmy Page by John DeBella, 102.9 WMGK (October 28, 2014),

http://media.wmgk.com/Blogs/1001038/John_DeBella_Jimmy_Page_10_28_14.mp3.

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A defendant can only be sued in a state where they are subject to personal

jurisdiction. Personal jurisdiction can be established by either specific jurisdiction or

general jurisdiction.In Plaintiffs Amended Complaint, he clearly laid out the basis for

personal jurisdiction and venue over Defendants. With respect to specific jurisdiction, he

averred:

163. Defendants are subject to specific jurisdiction in this district

because they make millions of dollars from the Eastern District of

Pennsylvania by directly targeting this district for the exploitation of

Stairway to Heaven through CD sales, digital downloading, radio

and television play, advertising, marketing, concert performances,

other performances, licensing, and otherwise targeting resident

individuals and businesses to profit off the exploitation of Stairway

to Heaven.

164. Because Defendants knowingly and intentionally target this

district for album and song salesand various other advertising,

marketing, licensing, and promotional activities relating to the

exploitation of the infringing song Stairway to Heavenit is

reasonably foreseeable to all Defendants that they would be subject

to suit in this district. They have availed themselves of the privilege

of conducting activities and business within this forum and are

therefore subject to suit in this forum.

See Amended Complaint. Plaintiff continued with respect to general jurisdiction:

165. Defendants are subject to general jurisdiction because they

make millions of dollars from the Eastern District of Pennsylvania by

exploiting all of their songs through CD sales, digital downloads,

radio and television play, advertising, marketing, concert

performances, other performances, licensing, merchandising, book

sales, T-shirt sales, poster sales and otherwise targeting individuals

and businesses in the Eastern District of Pennsylvania to sell their

music and related goods and services.

166. Sales of albums, songs, and concert tickets are the bread and

butter of Defendants daily business and are their core business.Because Defendants conduct their core business in the Eastern

District of Pennsylvania, and target this district and state for

exploitation of their music copyrights, their contacts are of both a

quality and quantity that clearly subjects them to general

jurisdiction in Pennsylvania.

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167. In addition, when Led Zeppelin performed Stairway to

Heaven in concert in Philadelphia, multiple times, Defendants got

on planes and landed in Philadelphias airport. They used

Philadelphias police, firemen, and paramedics for security and

safety. They used Philadelphias infrastructure and highways to

travel to the concert venues. They used these venues to play tomillions of fans in Philadelphia and Pennsylvania.

168. For Jimmy Page, Robert Plant, or John Paul Jones, and other

Defendants, to claim in court filings that they have no regular and

systematic contacts with this foruma forum from which they each

have received millions of dollarsis disingenuous.

Id. Plaintiff also stated regarding venue:

169. Because Defendants are subject to personal jurisdiction in the

Eastern District of Pennsylvania, venue is appropriate in this districtpursuant to 28 U.S.C. 1400(a).

170. Federal district courts in Philadelphia have already held that

many of the Defendants in this suit, including Atlantic Recording and

WMG, are subject to personal jurisdiction, and venue, in

Pennsylvania.3

171. Defendants had no problem coming to Philadelphia to play for

hundreds of thousands of fans, and no problem making untold

millions from the sale of their music in this district; they should

therefore have no problem appearing in court in Philadelphia to

defend their failure to credit the man who wrote their most famous

song.

Id. In addition to the averments in Plaintiffs Amended Complaint, Plaintiff notes that

several of the Defendants have made heavy use of the judiciary in the Eastern District.

Defendant Atlantic Recording, a subsidiary of Warner Music, has filed over 400 copyright

infringement lawsuits in the Eastern District of Pennsylvania in the last decade. See

Appendix A.4

Even as they contest whether Pennsylvania and the Eastern District have personal

jurisdiction and venue over them, all Defendants continue to target the Eastern District of

3Plaintiff meant to aver in the Amended Complaint that: Federal district courts in Pennsylvania

[not Philadelphia] have already held that many of the Defendants in this suit, including

Atlantic Recording and WMG, are subject to personal jurisdiction, and venue, in Pennsylvania.4Plaintiff requests that all of the cases in Appendix A be judicially noticed.

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Pennsylvania for the exploitation of Stairway to Heaven and Led Zeppelins music. For

instance, defendant Jimmy Page did radio interviews in Philadelphia to promote the

rerelease of Led Zeppelin IV and Stairway to Heaven as recently as October 28, 2014. 5

In addition, defendant Page has been promoting and selling his book, Jimmy Page, in the

Eastern District which further serves to market and sell Led Zeppelins music, including

Stairway to Heaven.6

III. Legal Standards for Motions to Dismiss Pursuantto FRCP 12(b)

When considering a motion to dismiss pursuant to Federal Rule of Civil Procedure

12(b), a court is required to accept the plaintiff's allegations as true, and is to construe

disputed facts in favor of the plaintiff. O'Connor v. Sandy Lane Hotel Co., 496 F.3d 312,

316 (3d Cir. 2007); accord Toys R Us, Inc. v. Step Two S.A., 318 F.3d 446, 457 (3d Cir.

2003); Pinker v. Roche Holdings, Ltd., 292 F.3d 361, 368 (3d Cir. 2002).

a.

Personal jurisdiction

Personal jurisdiction concerns whether a court may properly exercise its

adjudicatory authority over a defendant appearing before it. Ruhrgas Ag v. Marathon Oil

Co., 526 U.S. 574, 584 (U.S. 1999). A court may assert personal jurisdiction over anonresident of the state in which the court sits to the extent authorized by the law of that

state. D'Jamoos v. Pilatus Aircraft Ltd., 566 F.3d 94, 102 (3d Cir. 2009)

(quoting Provident Nat'l Bank v. Cal. Fed. Sav. & Loan Ass'n, 819 F.2d 434, 436 (3d Cir.

1987)). Pennsylvanias long arm statute, 42 Pa. C.S. 5322(b), authorizes personal

5Interview of Jimmy Page by John DeBella, 102.9 WMGK (October 28, 2014),

http://media.wmgk.com/Blogs/1001038/John_DeBella_Jimmy_Page_10_28_14.mp3.

6Whenever the Complaint refers to any act or acts of a Defendants, the reference shall

also be deemed to meant that the directors, officers, employees, affiliates, controlling companies

or agents of the responsible Defendants authorized such act while actively engaged in the

management, direction or control of the affairs of Defendant, and each of them, and/or by

persons who are the alter ego of Defendants, or while acting within the scope of their

agency, affiliation, control, or employment. Whenever the Complaint refers to any act of

Defendants, the references shall be deemed to be the act of each Defendant, jointly and

severally. See Amended Complaint at 158.

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jurisdiction to the extent the Constitution permits, which means that the defendants must

have certain minimum contacts with [Pennsylvania] 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). Personal jurisdiction can be established in two ways:

specific and general.

Specific jurisdictionexists when a defendants contacts with the forum state are

related to the subject of the litigation. Specific jurisdiction must satisfy a three-element test:

(1)

whether the defendants targeted or deliberately directed their activities atPennsylvania,

(2) does the litigation concern those specific contacts, and

(3) would exercising personal jurisdiction otherwise not offend traditional

notions of fair play and substantial justice?D'Jamoos, 566 F.3d at 102 (quoting Int'l Shoe, 326 U.S. at 316). Defendants presence in

Pennsylvania is immaterial; all that matters is that Defendants have deliberately engaged

in significant activities and have therefore manifestly . . . availed [themselves] of the

privilege of conducting business here, rendering it foreseeable they would be haled into

Pennsylvania courts. Wise v. Williams, 2011 U.S. Dist. LEXIS 68898, *1011 (M.D. Pa.

May 18, 2011) (quotation marks omitted) (stating that deliberately marketing allegedly

infringing material, and placing the product in the stream of commerce, confers specificjurisdiction on a state); Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985). For

instance, in a copyright infringement case, a defendant promoted and distributed allegedly

infringing books in New Jersey. Wellness Publishing v. Barefoot, 128 F. App'x 266 (3d Cir.

2005) (per curiam). The Third Circuit held that personal jurisdiction existed over the

defendants because, when the defendants marketed and distributed the books to New

Jersey, they should have expected to be subject to jurisdiction there. Id. Importantly, the

Court observed that [t]here was nothing fortuitous about the presence of these books inNew Jersey, and that being sued in New Jersey was foreseeable to the defendants.7Id.

7Defendants maintain that only the Effects Test should be used to determine whether

specific jurisdiction exists, because they characterize the copyright claims against them as an

intentional tort. (Doc. No. 35, at p.6) and (Doc. No. 36, at p.10). Defendants position

is plainly wrong and highly misleading. Defendants essentially argue that the Effects Test

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General jurisdictionexists when a defendant has such systematic and continuous

contacts with the forum state that personal jurisdiction is appropriate even though the

defendants contacts are unrelated to the subject matter of the lawsuit. Reliance Steel

Prods. Co. v. Watson, Ess, Mashall & Enggas, 675 F.2d 587, 589 (3d Cir. 1992). When

analyzing general jurisdiction, factors to consider include if the defendant sells products in

the forum, obtains revenue from the forum, or advertises, promotes, and markets in the

forum. Wise, 2011 U.S. Dist. LEXIS 68898, *19 (citing BP Chems. Ltd. v. Formosa Chem.

& Fibre Corp., 229 F.3d 254, 262 (3d Cir. 2000)). To establish that a defendants contacts

are of sufficient quality to warrant finding general jurisdiction, those contacts must be

central to the defendants business. Provident, 819 F.2d at 438.

For either specific or general jurisdiction, [a] plaintiff may establish the

defendant's deliberate decision to market by showing that the defendant

(1) designed the product for the forum state;

(2) advertised the product in the forum state;

(3) established communication channels within the state; or

(4) marketed its product through a distributor who served as thedefendant's sales agent for that state.

Wise, 2011 U.S. Dist. LEXIS 68898, *13 (quotation marks omitted) (emphases added).

When a defendant undertakes and profits from the performance, sale, and advertising of

[an allegedly infringing song] in Pennsylvania, the defendant has availed himself of the

privilege of conducting activities within the forum State and [has] obtained the benefits

of protections of its laws. Id. at *16 (quoting Asahi Metal Indus. Co. v. Superior Court,

480 U.S. 102, 109 (1987) (plurality opinion)).

when usedshould co-opt and replace the standard specific jurisdiction test. But such an

argument is plainly incorrect; the Effects Test merely offers plaintiffs an alternative way of

finding that specific jurisdiction exists over defendantsit does not replace the standard test.

Marten v. Godwin, 499 F.3d 290, 296 (3d Cir. 2007)(stating that the Effects Test is an

alternative to the traditional specific jurisdiction evaluation, not that it replaces it). The salient

question, no matter what test is used, is whether Defendants have sufficient contacts with

the forum to warrant finding personal jurisdiction; as explained below, Defendants have

extensive and sufficient contacts with Pennsylvania. Even if the Effects Test were to be used,

each element is satisfied and warrants finding specific jurisdiction over all Defendants.

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When, in a copyright infringement music lawsuit, the defendants are in the music

business, the presence of systematic concert performances, radio play, sales, and

advertising warrant finding that general jurisdiction exists. Wise, 2011 U.S. Dist. LEXIS

68898, *23. Notably, the [s]ales of albums, songs, and concert tickets are the bread and

butter [of] their daily business, and are to be considered the defendants core

business. Id. at *24 (citing Provident, 819 F.2d 434).8

b.

Venue

In the context of copyright infringement, the controlling venue statute is 28 U.S.C.

1400(a). Section 1400(a) reads:

Civil actions, suits, or proceedings arising under any Act of Congress

relating to copyrights or exclusive rights in mask works or designs

may be instituted in the district in which the defendant or his agent

resides or may be found.

Courts interpret section 1400(a) to mean that venue is appropriate wherever a defendant

is subject to personal jurisdiction. Donner v. Tams-Witmark Music Library, Inc., 480 F.

Supp. 1229, 1234 (E.D. Pa. 1979) (citing Battle Creek Equip. Co. v. Roberts Mfg. Co., 460

F. Supp. 18, 21-22 (W.D. Mich. 1978) and Mode Art Jewelers Co. v. Expansion Jewelry

Ltd., 409 F. Supp. 921 (S.D.N.Y. 1976)); accord Elan Suisse Ltd. v. Christ, No. 06-3901,

2006 U.S. Dist. LEXIS 93861, 2006 WL 3838237, at *2 n.6 (E.D. Pa. Dec. 29, 2006)

(citing John Wiley & Sons, Inc. v. Fuchs, No. 81-2594, 1981 U.S. Dist. LEXIS 16043, 1981

WL 1389 (S.D.N.Y. Nov. 24, 1981) (The copyright statute does not require a stronger

8Defendants rely heavily on the recent Supreme Court case Daimler AG v. Bauman, 134 S.

Ct. 746, 760 (2014), claiming that it stands for the proposition that general jurisdiction may

only be asserted over a defendant where he is literally at home. See (Doc. No. 35, at

p.5) and (Doc. No. 36, at p.78). The holding of Daimler is distinguishable because it

concerned foreign corporations being sued in the United States for tortious conduct that

happened entirely in foreign countries. The Court held that general jurisdiction should not be

asserted over a foreign company given the utter lack of facts connecting the case to the

forum state. The Court noted that to be subject to general jurisdiction, a defendant should

be at home in the forum. In this case, all Defendants sell, market, advertise, and distribute

their music in Pennsylvania on a systematic and continuous basis such that they should be

considered at home in Pennsylvania. However, even if Defendants are not considered to be

at home in Pennsylvania under Daimler, they are still subject to specific jurisdictionwhich

Daimlers holding does not concern.

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presence of the defendant in the district to determine venue than to establish personal

jurisdiction.) and Kogan v. Longstreet, 374 F. Supp. 47, 50 (N.D. Ill. 1974)); Scholz

Design, Inc. v. Annunziata, No. 07-0853, 2007 U.S. Dist. LEXIS 92624, 2007 WL 4526589,

at *3 (D. N.J. Dec. 18, 2007) (citing Elan Suisse, 2006 U.S. Dist. LEXIS 93861, 2006 WL

3838237, at *2 n.6). The statute makes no distinction between corporate and individual

defendants. Donner, 480 F. Supp. at 1234. Thus, venue and personal jurisdiction coexist

for copyright infringement cases. In order to establish venue it must be shown that the

defendant is subject to personal jurisdiction in the specific district he is being sued inin this

case, the Eastern District of Pennsylvania. Wise, 2011 U.S. Dist. LEXIS 68898, *26.

IV. Collateral Estoppel and Judicial Estoppel Prevent

Warner and Atlantic from Contesting PersonalJurisdiction or Venue in the Eastern District ofPennsylvania

a.

Collateral Estoppel Precludes Defendants Warner and Atlantic FromContesting Personal Jurisdiction in Pennsylvania

Where a defendant has previously unsuccessfully litigated an issue in another court,

and had a full opportunity to argue the issue, the defendant is collaterally estopped from

rearguing the matter in another court. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 331

(U.S. 1979).9Precluding parties from contesting matters that they have had a full and fair

opportunity to litigate protects their adversaries from the expense and vexation of

attending multiple lawsuits, conserves judicial resources and fosters reliance on judicial

action by minimizing the possibility of inconsistent decisions. Koresko v. Crosswhite,

2006 U.S. Dist. LEXIS 3859 (E.D. Pa. Feb. 1, 2006) (quoting Montana v. United States,

440 U.S. 147, 153-54 (1979)). Collateral estoppel applies to determinations of personal

jurisdiction. Koresko, 2006 U.S. Dist. LEXIS 3859.

9Collateral estoppel, also known as issue preclusion, may be used offensively and does not

require mutuality of parties. See Parklane Hosiery, 439 U.S. at 331. All that is required is

Defendants had a full and fair opportunity to argue the issue in the prior action, and that

Plaintiff could not have joined that action. Id. None of those considerations are present in

this case. Defendants in the Wise case had every opportunity to defend the action, and

Plaintiff had no reason or ability to join the prior action.

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In Wise v. Williams, a case from the Middle District of Pennsylvania, the artist

Haley Williams of the band Paramore, as well as Warner and Atlantic, were sued for

copyright infringement. In Wise, as in the instant case, Warner and Atlantic filed motions

to dismiss pursuant FRCP 12(b)(2), claiming that Pennsylvania had no personal

jurisdiction over them.

The Court flatly rejected Warner and Atlantics arguments, finding that both

specific and general jurisdiction unambiguously existed over those defendants.

The Wise court, in addressing specific jurisdiction, stated that when a defendant

extensively advertise[s] and sells an infringing song in the subject jurisdiction, and

places the product in the stream of commerce, it is foreseeable that that defendant will be

called into court:

[The defendant band] knowingly and intentionally marketed and

sold CDs containing [the infringing song] to Pennsylvania residents.

In addition, the band traveled to Pennsylvania for live concerts, and

all defendants engaged in other types of advertising and

promotional activities, making it reasonably foreseeable that they

could be subject to suit here for claims arising out of or related to

the song. By undertaking and profiting from the performance, sale,

and advertising of [the infringing song] in Pennsylvania, defendants

"avail[ed themselves] of the privilege of conducting activities within

the forum State" and obtained the "benefits of protections of its

laws." Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 109,

107 S. Ct. 1026, 94 L. Ed. 2d 92 (1987) (plurality opinion)

(quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.

Ct. 2174, 85 L. Ed. 2d 528 (1985)). The nature of defendants contacts

in Pennsylvania provide a firm basis for exercising specific personal

jurisdiction over defendants

.

Id. at *1516 (emphasis added).10With respect to general jurisdiction:

[A]lthough the proportion of defendants' overall sales in

Pennsylvania is unclear, it is not the quantity, but the quality of the

contacts which determines the existence of general jurisdiction. It isclear that defendants' presence in Pennsylvania is continuous and

ongoing. Through their concert performances, radio play, sales, and

advertising . . . defendants knowingly [ship] products into

10To the extent collateral estoppel cannot apply to specific jurisdiction, the Wise courts logic

and reasoning is directly on point with this case as Stairway to Heaven is extensively

advertised, marketed, and sold in Pennsylvania and the Eastern District of Pennsylvania.

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Pennsylvania on a regular basis such that its ties to the

Commonwealth are continuous and substantial.

Furthermore, defendants are in the music business. Sales of

albums, songs, and concert tickets are the bread and butter [of] their

daily business. Their efforts to market Paramore's music in

Pennsylvania including "The Only Exception" is not merelyincidental to their core business, it is their core business. Accordingly,

the undersigned concludes that defendants' contacts are sufficient

to establish general personal jurisdiction.

Id. at 2324 (citations omitted) (quotation marks omitted) (alteration in original).

Defendants chose not to contest or appeal the Wise courts decision in anyway. 11

Given that a court has previously found that Pennsylvania has personal jurisdiction over

Warner and Atlantic, they are therefore barred from relitigating the issue in this Court.

That Warner and Atlantic are still claiming Pennsylvania lacks personal jurisdiction over

them is wholly disingenuous, improper, and needlessly wastes the resources of both

Plaintiff and the Court in responding to frivolous arguments.12

b.

Defendants Warner and Atlantic are Judicially Estopped fromAsserting that Personal Jurisdiction and Venue Do Not Exist BecauseThey Argued in Hundreds of Prior Cases that Mere Distribution ofInfringing Material Over the Internet Establishes Personal Jurisdiction

Judicial estoppel should be applied when a litigant has

(1) taken a prior inconsistent position,

(2) succeeds and benefits from maintaining that position, and

(3) then takes a contrary position merely because his interests have changed.

11It should be noted that Wise was a magistrate decision. The district court adopted the

magistrates opinion without reservation, and noted that defendants Warner and Atlantic did

not contest the magistrates ruling. See Wise v. Williams, 2011 U.S. Dist. LEXIS 63530

(M.D. Pa., June 15, 2011).12Although collateral estoppel technically does not exist over Defendants other than Warner

and Atlantic, the logic of Wise still clearly applies to them. Wise demonstrates that all

Defendants are subject to personal jurisdiction in Pennsylvania because of their targeting of

Pennsylvania and the Eastern District for the systematic and continuous exploitation of their

music, including Stairway to Heaven. Under section 1400(a), this also means that venue

is appropriate in the Eastern District.

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Zedner v. United States, 547 U.S. 489, 504 (U.S. 2006). Judicial estoppels purpose is to

prevent litigants from playing fast and loose with the legal system, changing their positions

to wherever a perceived advantage may lie.

Defendants Warner and Atlantic claim that they cannot be subjected to personal

jurisdiction in Pennsylvania, but defendant Atlantic, a subsidiary of Warner, has filed

hundreds of copyright infringement lawsuits in the Eastern District of Pennsylvania,

usually against John Doe defendants. When litigating many of these cases, Defendants

always averred personal jurisdictionpresumably specific jurisdictionand venue were

appropriate in this district solely because the allegedly infringing material was disseminated

through the Internet:

On information and belief, personal jurisdiction in this District is

proper because Defendant, without consent or permission of the

copyright owners, disseminated over the Internet copyrighted

works owned and/or controlled by the Plaintiffs. On information and

belief, such illegal dissemination occurred in every jurisdiction in the

United States, including this one. In addition, Defendant contracted

with an Internet Service Provider (ISP) found in this District to

provide Defendant with the access to the internet which facilitated

Defendants infringing activities.

See, e.g., 2:05-cv-03252-PBT (Doc. No. 1). In most of these cases, the John Doe defendants

failed to file a response and a default verdict for varying amounts of money was granted in

favor of Atlantic. To be clear, Defendants have repeated and successfully argued that

the mere act of placing infringing material on the internet anywhere in the world is

enough to create specific jurisdiction anywhere that material is accessed. Yet, despite

Defendants indisputably having far more significant contacts with the Eastern District in

this case than mere internet use, they nevertheless deny they are subject to personal

jurisdiction. Defendants want to eat their cake and have it too, arguing for the broadest

possible interpretation of personal jurisdiction when it suits their purposes, and for an

impossibly narrow interpretation when they are accused of wrongdoing.

Given that Defendants have argued in the past that just placing infringing material

on the internet is enough to create specific jurisdiction and venue in the Eastern District of

Pennsylvania, and given that defendants indisputably market and distribute Stairway to

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Heaven and other music over the internetincluding in the form of digital

downloadsthey should be judicially estopped from contesting whether personal

jurisdiction exists and venue is appropriate in the Eastern District.

V.

Argument The Amended Complaint UnequivocallyPleads Personal Jurisdiction and Venue

a.

Personal Jurisdiction

This Court must construe all disputes of facts in favor of Plaintiff when deciding a

motion to dismiss. O'Connor, 496 F.3d at 316. Here, the Court is faced with determining

whether there is specific and/or general jurisdiction over Defendants. Whether personal

jurisdiction exists can be simplified by asking a single question:

Do Defendants sell, promote, and advertise their music,including Stairway to Heaven, in Philadelphia andPennsylvania?

The answer is that they obviously do. Given that, and accepting the facts in Plaintiffs

Amended Complaint as true, both specific and general personal jurisdiction clearly exist

over Defendants.

Defendants arguments to the contrary are nonsensical. The corporate defendants

essentially argue that they cannot be sued in 48 out of the 50 states, even though by theirown admission they exploit each and every one of the 50 states and draw millions of dollars

from those states year-after-year, after year. The individual defendants, if their arguments

are taken seriously, are essentially arguing that they cannot be sued in anystate without

their consent, even though they too make millions of dollars from the exploitation of the

residents of all50 states.

i.

Specific Jurisdiction Exists Because Defendants TargetPennsylvania and the Eastern District by Selling, Marketing,

and Promoting the Infringing Song Stairway to Heaven Here

Specific jurisdictionmust satisfy a three element test:

(1) whether the defendants targeted or deliberately directed their activities atPennsylvania,

(2) does the litigation concern those specific contacts, and

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(3) would exercising personal jurisdiction otherwise not offend traditionalnotions of fair play and substantial justice?

D'Jamoos, 566 F.3d at 102. All three elements are satisfied in this case as to all Defendants.

As the Wise court noted, [a] plaintiff may establish the defendant's deliberate

decision to market by showing that the defendant . . . advertised the product in the forum

state [and] . . . marketed its product through a distributor who served as the defendant's

sales agent for that state. Wise, 2011 U.S. Dist. LEXIS 68898, *13 (quotation marks

omitted). When a defendant undertakes and profits from the performance, sale, and

advertising of [an allegedly infringing song] in Pennsylvania, the defendant has availed

himself of the privilege of conducting activities within the forum State and [has] obtained

the benefits of protections of its laws. Id. at *16 (quoting Asahi, 480 U.S. at 109).

Plaintiffs Amended Complaint avers that:

163. Defendants are subject to specific jurisdiction in this district

because they make millions of dollars from the Eastern District of

Pennsylvaniaby directly targeting this district for the exploitation of

Stairway to Heaven through CD sales, digital downloading, radio

and television play, advertising, marketing, concert performances,

other performances, licensing, and otherwise targeting resident

individuals and businesses to profit off the exploitation of Stairway

to Heaven.

164. Because Defendants knowingly and intentionally target this

district for album and song salesand various other advertising,

marketing, licensing, and promotional activities relating to the

exploitation of the infringing song Stairway to Heavenit is

reasonably foreseeable to all Defendants that they would be subject

to suit in this district. They have availed themselves of the privilege

of conducting activities and business within this forum and are

therefore subject to suit in this forum.

. . . .

167. In addition, when Led Zeppelin performed Stairway to

Heaven in concert in Philadelphia, multiple times, Defendants got

on planes and landed in Philadelphias airport. They used

Philadelphias police, firemen, and paramedics for security and

safety. They used Philadelphias infrastructure and highways to

travel to the concert venues. They used these venues to play to

millions of fans in Philadelphia and Pennsylvania.

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Indeed, one of the last times Defendants ever performed Stairway to Heaven live was

when Defendants played Live Aid in Philadelphia in 1985 in front of hundreds of thousands

of Pennsylvania residents.

Plaintiffs Amended Complaint is clear that not only do Defendants deliberately

target Pennsylvania for sales of their music, but that they directly target Pennsylvania and

the Eastern District for marketing and sales of the infringing song Stairway to Heaven.

They have done so in the past and they do so now. Defendants motions sedulously seek to

ignore and minimize these basic and crucial facts, but the Court must accept Plaintiffs

well-pled allegations as true for purposes of these motions to dismiss.

It must be pointed out that, even as Defendants contest personal jurisdiction, they

have astonishingly continued to target this jurisdiction to promote and sell Stairway to

Heaven. Defendant James Patrick Page did an interview with a Philadelphia radio station

on October 28, 2014. The interview, available on 102.9 WMGKs website, was done to

market, promote, and advertise the rerelease of Led Zeppelin IVan album that includes

the infringing song Stairway to Heavenin Philadelphia and Pennsylvania:13

Interviewer: The rereleased, remastered versions of LedZeppelin IV and

HousesoftheHolyare in stores now and with us now is Jimmy

Page. Jimmy thank you so much for spending some time with

us this morning.

Jimmy Page:

Youre welcome. Youre welcome. Its nice to be with you.

The interview focused extensively on Stairway to Heaven, including a second,

unreleased version of Stairway to Heaven that is on theLed Zeppelin IVremastered

album:

Int.:

Theres a layering, an unfolding that happens in something like

Stairway to Heaven. Even when you compare the album

version with the Sunset Sound version thats on the

companion disc, Stairway to Heaven just unfolds; it keepsopening and opening.

JP: Thank you very much. Yeah, yeah, yeah. Id like to think thats

how it is. The thing with Stairway was the fact of having

13Interview of Jimmy Page by John DeBella, 102.9 WMGK (October 28, 2014),

http://media.wmgk.com/Blogs/1001038/John_DeBella_Jimmy_Page_10_28_14.mp3. Plaintiff

requests that the Court take judicial notice of this interview.

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somethingyou know, in this whole remarkable period of

Headley Grange, you know where things were coming out of

thin air and are moving fast and fast and fast, to actually

present this idea to the rest of the band, of this piece of music

as you say that is going to unfold and actually the momentum

of it increases to the point where the pace starts to change, itwas really good that they all got the idea and bought into the

idea, because, you know, ideas may have come and gone at

Headley Grange because there was such a momentum, an

impetus to everything that was going on. But, no, everyone

got the idea of what one was trying to achieve on this, and it

was brilliant.

Int.: Jimmy, I know youre pressed for time, and I want to get to the

Sunset Sound version of Stairway to Heaven, but thank you

so much for taking this time with us.

JP: Thank you so much. Enjoy it all.

Interview of Jimmy Page, at min 8:40 to 9:58. It is astounding that defendant Page, and his

fellow defendants, filed a motion with this Court contesting personal jurisdiction, even as

they personally continue to target this forum to exploit and sell the infringing song! 14

Defendant Page also currently targets this forum in that he markets and sells a book

in this forum, Jimmy Page by Jimmy Page, exclusively about Led Zeppelin. Plaintiffs

counsel ordered this book before this lawsuit was filed, and received it after the lawsuit was

filed. Jimmy Page promotes this book in Pennsylvania and the Eastern Districtincluding

in the interview described above. Such activity is designed not only so that defendant Page

profits personally from book sales, but also to promote the sale of Defendants music,

including Stairway to Heaven.

Given Defendants extensive contacts with this forum, the Third Circuits decision

in Wellness Publishing v. Barefoot is directly on point, as is the Middle Districts Wise

14Whenever the Complaint refers to any act or acts of a Defendants, the reference shall

also be deemed to meant that the directors, officers, employees, affiliates, controlling companies

or agents of the responsible Defendants authorized such act while actively engaged in the

management, direction or control of the affairs of Defendant, and each of them, and/or by

persons who are the alter ego of Defendants, or while acting within the scope of their

agency, affiliation, control, or employment. Whenever the Complaint refers to any act of

Defendants, the references shall be deemed to be the act of each Defendant, jointly and

severally. See Amended Complaint at 158.

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decision. In Barefoot, the defendants marketed infringing books in New Jersey and shipped

the books there. Here, Defendants unambiguously market Stairway to Heaven in

Philadelphia and Pennsylvania, and ship the song to Philadelphiaas well as allow for

direct sales via digital downloading. Barefoots holding was the simple observation that it

is reasonably foreseeable that defendants who market and ship their product to a state will

be sued in that state. Barefoot, 128 F. App'x 266 (stating [t]here was nothing fortuitous

about the presence of these books in New Jersey). Restated for this case, there is nothing

fortuitous about the presence of [Stairway to Heaven] in [Pennsylvania]. The Barefoot

holding is directly applicable to this case and requires finding that specific personal

jurisdiction exists over all Defendants. The facts establishing specific jurisdiction pled in

Plaintiffs complaint are accurate and clearly demonstrate that Pennsylvania can validly

exercise personal jurisdiction over Defendants.15

ii. General Jurisdiction Exists Because Defendants TargetPennsylvania and the Eastern District by Selling, Marketing,and Promoting their Music Here

In a copyright infringement music lawsuit, when the defendants are in the music

business, the presence of systematic concert performances, radio play, sales, and

advertising warrant finding that general jurisdiction exists. Wise, 2011 U.S. Dist. LEXIS

68898, *23. Notably, the [s]ales of albums, songs, and concert tickets are the bread and

butter [of[ their daily business, and are to be considered the defendants core

business. Id. at *24 (citing Provident, 819 F.2d 434).

Plaintiffs Amended Complaint explicitly pled that all Defendants have systematic

and continuous contacts with the Eastern District of Pennsylvania and Pennsylvania:

165. Defendants are subject to general jurisdiction because they

make millions of dollars from the Eastern District of Pennsylvania by

exploiting all of their songs through CD sales, digital downloads,radio and television play, advertising, marketing, concert

performances, other performances, licensing, merchandising, book

15Plaintiff knows of no reason why in the interests of fair play and substantial justice

Defendants cannot litigate in this forum, and does not believe there are any such reasons.

Indeed, Defendants have used the Eastern District of Pennsylvania to litigate hundreds of

cases. See Appendix A.

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sales, T-shirt sales, poster sales and otherwise targeting individuals

and businesses in the Eastern District of Pennsylvania to sell their

music and related goods and services.

166. Sales of albums, songs, and concert tickets are the bread and

butter of Defendants daily business and are their core business.Because Defendants conduct their core business in the Eastern

District of Pennsylvania, and target this district and state for

exploitation of their music copyrights, their contacts are of both a

quality and quantity that clearly subjects them to general

jurisdiction in Pennsylvania.

. . . .

168. For Jimmy Page, Robert Plant, or John Paul Jones, and other

Defendants, to claim in court filings that they have no regular and

systematic contacts with this foruma forum from which they eachhave received millions of dollarsis disingenuous.

See Plaintiffs Amended Complaint. Indeed, defendant Page has personally targeted

Philadelphia and Pennsylvania residents to sell Defendants music, on behalf of all other

Defendants, when promoting, via the radio and internet, the rerelease of Led Zeppelin IV

and his own book.16Defendants Warner and Atlantic, besides being collaterally estopped

and judicially estopped from contesting personal jurisdictionand heavily promoting and

selling their music herehave also utilized the judiciary in the Eastern District of

Pennsylvania to file hundreds of copyright cases. See Appendix A. It is a remarkable double

standard for Defendants to use the court system here in Pennsylvania and Philadelphia

when it suits their purposes, but then claim that the same court system has no jurisdiction

over them when they are sued.

b.

Venue

Venue and personal jurisdiction, under section 1400(a), are coexistent for copyright

infringement cases. Thus, if Defendants are subject to personal jurisdiction in the EasternDistrict of Pennsylvania, then venue is appropriate in this district. Wise, 2011 U.S. Dist.

LEXIS 68898, *2425.

16See Amended Complaint at 158.

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As Plaintiff pled in his Amended Complaint, Defendants have extensive contacts in

the Eastern District of Pennsylvania that warrant a finding of both specific and general

personal jurisdiction in this district. All Defendants extensively market, advertise,

promote, and sell Stairway to Heaven, and their other music, in the Eastern District.

Therefore, under section 1400(a), venue is absolutely proper in the Eastern District of

Pennsylvania.

VI. Plaintiff Requests that Jurisdictional Discovery BeGranted

A party has a right to engage in jurisdictional discovery so that a jurisdictional issue

may be considered thoroughly. Square D Co. v. Scott Elec. Co., 2008 U.S. Dist. LEXIS

34127, *3 (W.D. Pa. Apr. 25, 2008); see also Sowonski v. AMTRAK, 1999 U.S. Dist.

LEXIS 9608, *56 (E.D. Pa. June 23, 1999) (noting that parties are entitled to a fair

opportunity to engage in jurisdictional discovery to obtain facts necessary for thorough

consideration of the [jurisdictional] issue (quoting Federal Ins. Co. v. Richard I. Rubin

& Co., Inc., 12 F.3d 1270, 1285 n.11 (3d Cir. 1993))). Courts have realized that when the

anemic factual record interferes with [Plaintiffs] ability to meet [their] burden in showing

the defendant is subject to personal jurisdiction, the granting of jurisdictional discovery is

necessary if Plaintiffs can make a prima facie showing jurisdiction may be

warranted. Arlington Indus. v. Elec. Custom Distribs., Inc., 2010 U.S. Dist. LEXIS 134177

(M.D. Pa. Dec. 20, 2010). Jurisdictional discovery is usually permitted unless a plaintiff's

claim is clearly frivolous. Massachusetts School of Law at Andover, Inc. v. American

Bar Assoc., 107 F.3d 1026, 1042 (3d Cir. 1997).

Plaintiff believes that his Amended Complaint makes it explicitly clear that personal

jurisdiction exists with respect to all Defendants and that the appropriateness of venue in

the Eastern District of Pennsylvania under section 1400(a) is similarly clear. However,

should the Court require more facts, Plaintiff respectfully asks for leave to conduct

jurisdictional discovery. Plaintiff has made out far more than a prima facie case in support

of personal jurisdiction over Defendants, and is confident that if allowed to develop the

factual record Defendants motions to dismiss will be shown to be meritless.

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VII. Defendants Request for a Convenience Transfer toCalifornia Pursuant to 1404 Must Be DeniedBecause California Has Nothing To Do with ThisCase

a.

Legal Standard for Convenience Transfer

Federal law provides: For the convenience of parties and witnesses, in the interest

of justice, a district court may transfer any civil action to any other district or division where

it might have been brought. See 28 U.S.C. 1404. Under section 1404 the burden lies

squarely on the Defendants to show that transfer is appropriate. In re United States, 273

F.3d 380, 388 (3d Cir. 2001). Indeed, Defendants burden is not just a preponderance, but

a strong preponderance in favor of transfer. Jumara v. State Farm Ins. Co., 55 F.3d 873,

87980 (3d Cir. 1995). There are two sets of factors that should be used in determining

whether to transfer an action: private and public factors. Id.

According to Jumara, the private factors include

(1) each partys preferred forum;

(2) where the claim arose;

(3) the relative physical and financial condition of the parties as it relates toconvenience;

(4)

witness convenience with respect to their availability for trial; and(5) where the books and records are.

Id.; Wise, 2011 U.S. Dist. LEXIS 68898, *2425. Public factors include practical reasons

that would make the trial expeditious and inexpensive, case load in the respective forums,

and the public policies in the forums. Jumara, 55 F.3d at 87980.

b. Application

Defendants motion for a transfer to California is without any merit and fails to

explain how such a transfer is convenient; in fact, it is decidedly inconvenient. The purposeof a convenience transfer under section 1404 is to hold the trial in a venue with an interest

in the litigation, and to make the litigation process easier on the parties. But what

Defendants fail to inform the Court is that this cause of action did not arise in California

where they want the case transferred toand that this case has little or no connection to

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that venue. Indeed, although Defendants claim this case arose in California, they cannot

present one fact supporting such an allegation.17Consider, Defendants themselves allege

that they wrote the infringing song in Wales, while Plaintiff alleges that Defendants first

heard and started copying Taurus while on tour. Defendants have the burden to justify

transferring the case, and wholly fail to demonstrate why this case should be transferred to

California.

i. Private Factors

A.

Parties Choice of Forum Does Not Support Transfer

Plaintiff picked Pennsylvania as a forum because Defendants are unambiguously

subjected to personal jurisdiction and venue here due to their extensive contacts with

Pennsylvania and Philadelphia. Indeed, the last public performance of Stairway to

Heaven by Led Zeppelin on US soil was in Philadelphia at Live Aid. Plaintiff also picked

Pennsylvania because it is centrally located given that many of the witnesses reside in the

United Kingdom and on the East Coast. With a case this complicated, where witnesses will

be traveling across the world and the United States, a venue that is centrally located, such

as Philadelphia, offers distinct advantages.

In contrast, Defendants want this case transferred to Los Angeles, California, but

fail to specify why California is an appropriate venue over Philadelphia. It is clear that

Defendants want this case transferred to California solely because they often litigate in that

forum and want a home-court advantage. Thus, because Plaintiffs choice of forum is

accorded deference, and because Defendants are requesting a transfer for a self-serving

reason, this factor does not help Defendants meet their burden to justify transferring this

case for reasons of convenience.

B. Where the Claims Arose Does Not Support Transfer

This copyright infringement claim did not arise in any one place, and did not arise

in California, the jurisdiction Defendants want this case transferred to. Plaintiff alleges in

17Defendants arguments for transfer largely focus on the fact that the Randy Craig Wolfe

Trust, the plaintiff in this dispute, was created in California. Therefore, they argue, that this

case arose in California. This argument is clearly nonsensical. The Trust was created in

2002, while the initial acts of infringement occurred in 196971 across the world. The

Trusts formation has no connection whatsoever to where this claim arose.

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his Amended Complaint that Defendants, while on tour with Randy Wolfe, made tape

recordings of Wolfe and his band, Spirit, that were later used to create the infringing song

Stairway to Heaven. See Amended Complaint, at 52, 18586. Plaintiff also alleges

that, while on tour, Defendants, specifically defendant Page, borrowed heavily from

Spirits setlist, songs, and technique. Id. at 4345. Concerts where Led Zeppelin and

Spirit played together include December 26, 1968 in Denver, Colorado; July 5, 1969, at the

Atlanta Pop Festival (artists included Janis Joplin); and July 27, 1969, in Seattle,

Washington (other artists included The Doors, Vanilla Fudge, and Ike and Tina Turner).

Defendants, for their part, allege that Stairway to Heaven was written in the United

Kingdom, in Wales. Id. at 5154.

Thus, when the Court is considering where the claim at issue arose, the answer is

that it arose in many places across the world. It did not arise in any one venue in the United

States, and it certainly did not arise in California. Given that the jurisdiction Defendants

want this lawsuit transferred to is not where the claim arose, this factor in no way supports

Defendants burden to justify a transfer for reasons of convenience.

Defendants bafflingly attempt to argue that this cause of action arose in California

because the Randy Craig Wolfe Trust was formed in California. (Doc. No. 35, at p.11)

([F]ocusing . . . on whose copyright was supposedly infringed the California Trusts

compels the conclusion the alleged claim arose in California). The Trust was only created

in 2002, while the initial acts of infringement occurred across the world in 196971; there

is simply no logical connection whatsoever between where the Trust was formed, and

where the cause of action in this dispute arose. That Defendants even advanced such a

nonsensical argument shows how grasping their argument for transfer is.

C. Witness Convenience Does Not Support a Transfer

A transfer to California will be decidedly inconvenient for most of the relevant

witnesses. Remember, the individual Defendants actually requesting this transfer

allegedly for reasons of conveniencelive in the United Kingdom and will have to travel

over 3,000 miles further to testify in California, and back, as would the corporate

Defendants who are headquartered in New York City! Philadelphia, needless to say, is

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actually far closer. To claim that traveling twice as far is convenient, doubling the required

travel time, is absurd.

Furthermore, Plaintiff Michael Skidmore, trustee of the Randy Craig Wolfe Trust,

would also be inconvenienced as he

lives in Massachusetts and requiring him to travel to California would be ahuge disruption of his life;

the Trust is a nonprofit, and has little to no money to support a trial across

the country;

Michael Skidmore works a Monday through Friday 9-5 job, is notindependently wealthy, and has dedicated a considerable amount of his timeand energy to handling the Trust.

It is important to realize that Mr. Skidmore does not individually benefit if this lawsuit is

successful; the Trusts beneficiaries are children who need musical instruments. As

Plaintiff noted in the Amended Complaint:

Funds obtained from a favorable resolution of this lawsuit will go to the

Randy Craig Wolfe Trust, which is run by Trustee Michael Skidmore, who

has selflessly dedicated years to preserving and promoting Randys spirit,

including releasing 12 previously unreleased albums featuring Randy

California. Mick and the Trust preserve Randys memory by supporting the

musical aspirations of children in public schools and by developing Randy

Californias music portfolio, the proceeds of which are provided to buy

children in need musical instruments.

See Amended Complaint, at n.1. Attending a lengthy trial in California would be extremely

difficult for Mr. Skidmore, if not impossible.

Many other possible witnesses are scattered around the United States, most of them

closer to Philadelphia than California. Mark Andes, a former member of Spirit lives in

Texas. Bruce Pates, a historian with much insight into this case, lives in Tennessee.

Marshall Burrell, a former tour manager of Spirit from 197577, lives in Florida. Plaintiffs

experts, who he cannot disclose at this point, mostly live in the tri-state area of

Pennsylvania, New Jersey, and Delaware. In addition, the Defendant companies are for the

most part headquartered in New York, a state extremely close to Philadelphia, especially

as compared to California.

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The only two potential witnesses who actually live in California are a former

member of Spirit, Jay Ferguson, and Randy Wolfes former publisher, Lou Adler. To the

extent that any witnesses prefer to be deposed where they live, Plaintiff is more than willing

to travel to take their deposition, as is customarily done in copyright cases. In addition,

video depositions can be utilized to lower the cost and inconvenience to any witness.

When examining the totality of what witnesses will be testifying at trial, it is

apparent that California is a far more inconvenient venue than Philadelphia. Indeed, most

of the witnesses, including the Defendants, will be required to fly nearly 3,000 miles across

the United Statesin fact, fly over Philadelphiato testify in California; this is not what

section 1404 contemplates when it provides for a transfer for convenience. That these

Defendants are nonetheless willing to claim this case must be transferred for reasons of

convenience, when such a move would actually severely inconvenience them, is telling.18

In truth, Philadelphia is a central location for many of the witnesses and is an otherwise

appropriate and convenient venue.

D.

Location of the Trusts Pertinent Books and RecordsDoes Not Support a Transfer to California as They DoNot Reside in California; They are Located inPhiladelphia

The pertinent books and records in this case do not reside in California;

Philadelphia is the location of the Trusts books and records. Plaintiff Michael Skidmore

resides in Massachusetts and administers the trust in all respects from Massachusetts.

Defendants, in a failed attempt to justify a transfer to California, make much of the fact that

the Trust was formed in California. (Doc. No. 35, at p.11). That the Trust was formed in

California is irrelevant to the copyright infringement causes of action in the Amended

Complaint, and Defendants never explain why the location of the Trusts formation is

18Defendants claim that Mary Quinting, Randy Wolfes ex-wife, and Wolfes son will be

witnesses in this case. (Doc. No. 35, at p.11). Both allegedly live in California. Plaintiff

can see absolutely no reason why these individuals would be called to testify regarding this

copyright infringement case. Their involvement in this case is nonexistent and Defendants

inclusion of them in the list of potential witnesses was done solely to improperly justify a

transfer of this case to California.

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remotely relevant. Furthermore, the Trust has little to no connection with California at this

point, and has not for many years. Even assuming the Trusts formation is somehow

relevant, Defendants, by attaching the Trusts formation documents, are missing the point:

a transfer under section 1404 must be convenientbut a transfer to California would be

inconvenient as none of the books and records currently reside there. In any case, the

documents at issue in this case are more than likely going to be tendered electronically. In

days past, the physical location of documents might have posed a significant problem, but

increasingly advances in technology have rendered such concerns moot.

E.

It Would Not Be Inconvenient for Defendants To Litigatein Philadelphia Given Their Litigation History

As Plaintiff notes above, defendant Atlantic, a subsidiary of Warner Music, has filed

literally over 400 hundred cases in the Eastern District of Pennsylvania within the last

decade. See Appendix A. Defendants are fully prepared to litigate in this forum, as they

have on many other occasions.

The burden is on Defendants to show by a strong preponderance that this case

should be transferred for reasons of convenience; they have failed to do so. In fact, this

cause of action has nothing to do with California, and

a transfer there would be inconvenient for most of the witnesses, most notably

Defendants themselves.

ii. Public Factors Do Not Justify Transferring this Case toCalifornia

A.

No State Law Apples to this Lawsuit

In a diversity case, the familiarity of a local court with governing state law can

sometimes justify a transfer under section 1404. Jumara, 55 F.3d at 879. This case, however,

is obviously not a diversity case. Although Defendants claim that California state law

applies to this dispute and governs aspects of this claim, particularly whether Plaintiff has

standing to sue for copyright infringement, this is false. Federal law, and only federal law,

explicitly governs who can sue for copyright infringement, how one can transfer their

interests in copyrights, and who has standing to sue. See generally 17 U.S. Code 201 et

seq., 501 et seq. Defendants claims that California law applies to the copyright

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infringement claims in this case are demonstrably incorrect and in no way justify a

convenience transfer.

B.

Practical Considerations Do Not Justify Trying thisAction in Los Angeles

Defendants claim that trying this case in California would make the trial easy,

expeditious, or inexpensive.Jumara, 55 F.3d at 879. However, as Plaintiff explained

above, this is not true as California has little or no connection to this dispute, and because

Philadelphia is a centrally located venue that would be far more convenient for many of the

witnesses, including Defendants. Plaintiff also notes that the individual Defendants brief

contains no factual application whatsoever concerning this factor; it merely quotes prior

court opinions whose reasoning is inapplicable to the instant matter. (Doc. No. 35, at p.13

14). Defendants have the burden to justify a transfer for reasons of convenience, and

merely quoting prior court decisions, without explaining how they are relevant, does not

satisfy that burden.

C.

There is No Administrative Difficulty that JustifiesTransferring This Case to California

Defendants attempt to claim that this action should be transferred to the Central

District of California because they allege that the Central District is less congested than the

Eastern District of Pennsylvania and that cases move more quickly in the Central District.

(Doc. No. 35, at p.14). The evidence they present simply does not back up those contentions.

Defendants base their contention that the Eastern District is more congested than

the Central District by referencing statistics they claim they received from the

Administrative Office of the U.S. Courts. These statistics allegedly compare case load in

the Central District to case load in the Eastern District. See Request for Judicial Notice

(Doc. No. 37-2). First,Plaintiff objects to the consideration of these statistics because the

numbers are presented out of context. The numbers collected by Defendants fail to identify

case types, and other pertinent information, that could better explain what these numbers

actually mean. As it stands, one cannot draw concrete conclusions and relevant insight

about the congestion of the courts from these statistics.

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Second, the statistics presented by Defendants, assuming they are accurate, are

wholly unremarkable. They show that:

An average judge in the Eastern District has 515 pending cases, slightlymore than the 469 for the Central District.

Despite this, the average time it takes a case to go to trial in the EasternDistrict is only 18.6 months, while in the Central District it is 21.1 months.

The time it takes a case to go from filing to disposition is comparable inboth districts, 5.8 months in the Central District and 8.7 in the EasternDistrict.

To characterize the relatively minor differences in case loads between these two districts,

both of which are major litigation hubs, as warranting transfer under 1404 is not realistic

and not based in fact. Defendants have the burden of justifying a transfer, and the

incomplete and unremarkable statistics they have compiled do not militate in favor of

transferring this case on grounds of convenience.

VIII.Costs and Fees

Given that all Defendants are clearly and unambiguously subject to personal

jurisdiction and venue in the Eastern District of Pennsylvania, the filing of Defendants

FRCP 12(b) motions were unreasonable, frivolous, and needlessly consumed Plaintiff and

the Courts time evaluating and responding to their arguments. Plaintiff asks that he be

awarded costs and fees incurred in responding to these frivolous motions.

IX. Conclusion

Plaintiff requests that this Court deny Defendants Motions to Dismiss and Motion

to Transfer and direct them to Answer Plaintiffs Amended Complaint.

*****

Respectfully submitted,

Francis Alexander, llc

/s/ Francis Alexander MalofiyFrancis Alexander Malofiy, EsquireAttorney ID No.: 208494

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280 N. Providence Road | Suite 105Media, PA 19063T: (215) 500-1000F: (215) 500-1005E: [email protected]

Law Firm / Lawyer for Plaintiff

/d/ November 24, 2014

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Certificate of Service

Plaintiff hereby represents that Plaintiffs Omnibus Response in

Opposition to Defendants Motions to Dismiss Pursuant to FRCP

12(b)(2, 3) and Motions to Transfer Pursuant to 28 USC 1404has been

served upon counsel by the electronic filing system.

Helene Freeman, EsquirePhillips Nizer LLP666 Fifth AvenueNew York, NY 10103-0084T: (212) 841-0547F: (212) 262-5152E: [email protected]

Attorneys for Defendants James Patrick Page, Robert Anthony Plant,and John PaulJones (collectively with John Bonham (Deceased), professionally known as Led

Zeppelin)

Michael Eidel, EsquireFox Rothschild LLP2700 Kelly Road | Suite 300Warrington, PA 18976-3624T: (215) 345-7500F: (215) 345-7507

E: [email protected] for Defendants Super Hype Publishing, Inc., Warner Music Group Corp.,Warner/Chappell Music, Inc., Atlantic Recording Corporation, and Rhino

Entertainment Company-and-Local Counsel for James Patrick Page, Robert AnthonyPlant, and John Paul Jones (collectively with John Bonham (Deceased),professionally known as Led Zeppelin)

Peter J. Anderson, EsquireLaw Office of Peter J. Anderson, PC100 Wilshire Blvd. | Suite 2010Santa Monica, CA 90401T:(310) 260-6030F: (310) 260-6040E: [email protected]

Attorney for Defendants Super Hype Publishing, Inc., Warner Music Group Corp.,Warner/Chappell Music, Inc., Atlantic Recording Corporation, and

Rhino Entertainment Company

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*****

Respectfully submitted,

Francis Alexander, llc

/s/ Francis Alexander MalofiyFrancis Alexander Malofiy, EsquireAttorney ID No.: 208494280 N. Providence Road | Suite 105Media, PA 19063T: (215) 500-1000

F: (215) 500-1005E: [email protected]

Law Firm / Lawyer for Plaintiff

/d/ November 24, 2014

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Appendix A

ATLANTIC RECORDING CORPORATION is a plaintiff in at least 402 cases in

the Eastern District of Pennsylvania.

2:05-cv-03252-PBT VIRGIN RECORDS AMERICA, INC. et al v. DOE filed 06/29/05 closed 11/08/05

2:05-cv-03303-JF VIRGIN RECORDS AMERICA, INC. et al v. DOE filed 06/29/05 closed 11/08/05

2:05-cv-03320-JG VIRGIN RECORDS AMERICA, INC. et al v. JOHN DOE filed 06/29/05 closed 11/08/05

2:05-cv-04019-ER INTERSCOPE RECORDS et al v. JOHN DOE filed 07/28/05 closed 12/15/05

2:05-cv-04026-RK VIRGIN RECORDS AMERICA, INC. et al v. JOHN DOE filed 07/28/05 closed 12/08/05

2:05-cv-04625-SD ATLANTIC RECORDING CORPORATION et al v. JOHN DOE filed 08/31/05 closed 01/18/06

2:05-cv-04626-JCJ UMG RECORDINGS, INC. et al v. JOHN DOE filed 08/31/05 closed 01/12/06

2:05-cv-04636-MAM CAPITOL RECORDS, INC. et al v. JOHN DOE filed 08/31/05 closed 01/20/06

2:05-cv-04645-HH ATLANTIC RECORDING CORPORATION et al v. JOHN DOE filed 08/31/05 closed 01/18/06

2:05-cv-04646-BWK ATLANTIC RECORDING CORPORATION et al v. JOHN DOE filed 08/31/05 closed 02/01/06

2:05-cv-04649-TON ATLANTIC RECORDING CORPORATION et al v. DOE filed 08/31/05 closed 01/18/06

2:05-cv-04676-PBT INTERSCOPE RECORDS et al v. JOHN DOE filed 08/31/05 closed 01/12/06

2:05-cv-04695-PBT SONY BMG MUSIC ENTERTAINMENT et al v. JOHN DOE filed 08/31/05 closed 01/23/06

2:05-cv-05586-BWK ARISTA RECORDS LLC et al v. JOHN DOE filed 10/26/05 closed 03/20/06

2:05-cv-05616-BWK ELEKTRA ENTERTAINMENT GROUP INC. et al v. JOHN DOE filed 10/26/05 closed 03/20/06

2:05-cv-05645-SD VIRGIN RECORDS AMERICA, INC et al v. JOHN DOE filed 10/26/05 closed 03/20/06

2:05-cv-05655-TJS CAPITOL RECORDS, INC. et al v. JOHN DOE filed 10/26/05 closed 03/20/06

2:05-cv-05656-CMR MAVERICK RECORDING COMPANY et al v. JOHN DOE filed 10/26/05 closed 03/20/06

2:05-cv-06466-NS MAVERICK RECORDING COMPANY et al v. JOHN DOE filed 12/15/05 closed 04/26/06

2:05-cv-06496-CMR FONOVISA, INC. et al v. JOHN DOE filed 12/15/05 closed 04/26/06

2:05-cv-06515-MMB PRIORITY RECORDS LLC et al v. JOHN DOE filed 12/15/05 closed 04/26/06

2:05-cv-06516-RB MOTOWN RECORD COMPANY, L.P. et al v. JOHN DOE filed 12/15/05 closed 04/26/06

2:05-cv-06524-MK ATLANTIC RECORDING CORPORATION et al v. JOHN DOE filed 12/15/05 closed 04/26/06

2:05-cv-06534-NS LONDON-SIRE RECORDS INC. et al v. JOHN DOE filed 12/15/05 closed 04/26/06

2:05-cv-06535-LS PRIORITY RECORDS LLC et al v. JOHN DOE filed 12/15/05 closed 04/26/06

2:05-cv-06536-RBS SONY BMG MUSIC ENTERTAINMENT et al v. JOHN DOE filed 12/15/05 closed 04/26/06

2:05-cv-06543-NS ATLANTIC RECORDING CORPORATION et al v. JOHN DOE filed 12/15/05 closed 04/26/06

2:05-cv-06556-PD BMG MUSIC et al v. JOHN DOE filed 12/15/05 closed 04/26/06

2:06-cv-00416-MMB CAPITOL RECORDS, INC. et al v. JOHN DOE filed 01/31/06 closed 06/06/06

2:06-cv-00456-WY ARISTA RECORDS LLC et al v. JOHN DOE filed 01/31/06 closed 06/06/06

2:04-cv-00650-CN BMG MUSIC et al v. JOHN DOE #1 filed 02/17/04 closed 02/11/052:04-cv-01241-CMR ELEKTRA ENTERTAINMENT GROUP INC. et al v. DOES 1-6 filed 03/23/04 closed 03/28/05

2:04-cv-02246-CMR MOTOWN RECORD COMPANY, L.P. et al v. DEPIETRO filed 05/24/04 closed 08/07/07

2:04-cv-02932-SD CAPITOL RECORDS, INC. et al v. DOE filed 07/01/04 closed 01/28/05

2:04-cv-02934-ER ELEKTRA ENTERTAINMENT GROUP, INC. et al v. JOHN DOE filed 07/01/04 closed 01/28/05

2:04-cv-02935-JD PRIORITY RECORDS LLC et al v. DOE filed 07/01/04 closed 01/28/05

2:04-cv-02938-CMR VIRGIN RECORDS AMERICA, INC. et al v. JOHN DOE filed 07/01/04 closed 01/28/05

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2:04-cv-02941-CRW SONY MUSIC ENTERTAINMENT INC. et al v. DOE filed 07/01/04 closed 01/28/05

2:04-cv-02943-RK SONY MUSIC ENTERTAINMENT INC. et al v. JOHN DOE filed 07/01/04 closed 01/28/05

2:04-cv-02944-PBT VIRGIN RECORDS AMERICA, INC. et al v. JOHN DOE filed 07/01/04 closed 01/28/05

2:04-cv-02948-MAM WARNER BROS. RECORDS, INC. et al v. DOE filed 07/01/04 closed 01/28/05

2:04-cv-02955-JF WARNER BROS. RECORDS INC. et al v. DOE filed 07/01/04 closed 04/07/05

2:04-cv-02959-JD ATLANTIC RECORDING CORPORATION et al v. DOE filed 07/01/04 closed 01/28/05

2:04-cv-02960-LDD SONY MUSIC ENTERTAINMENT INC. et al v. DOE filed 07/01/04 closed 01/28/05

2:04-cv-02962-BMS CAPITOL RECORDS, INC. et al v. DOE filed 07/01/04 closed 01/28/05

2:04-cv-02965-TON CAPITOL RECORDS, INC. et al v. DOE filed 07/01/04 closed 01/28/05

2:04-cv-02966-MAM BMG MUSIC et al v. JOHN DOE filed 07/01/04 closed 01/28/05

2:04-cv-02971-CMR ARISTA RECORDS, INC. et al v. DOE filed 07/01/04 closed 01/28/05

2:04-cv-02979-RB SONY MUSIC ENTERTAINMENT INC. et al v. DOE filed 07/01/04 closed 01/28/05

2:04-cv-02980-WY CAPITOL RECORDS, INC. et al v. JOHN DOE filed 07/01/04 closed 01/31/05

2:04-cv-02984-WY CAPITOL RECORDS, INC. et al v. JOHN DOE filed 07/01/04 closed 01/31/05

2:04-cv-02985-AB ATLANTIC RECORDING CORPORATION et al v. DOE filed 07/01/04 closed 01/28/05

2:04-cv-02986-JK CAPITOL RECORDS, INC. et al v. JOHN DOE filed 07/01/04 closed 01/28/05

2:04-cv-02992-MK ATLANTIC RECORDING CORPORATION et al v. DOE filed 07/01/04 closed 04/07/05

2:04-cv-02995-CG CAPITOL RECORDS, INC. et al v. DOE filed 07/01/04 closed 04/07/05

2:04-cv-02996-CMR SONY MUSIC ENTERTAINMENT INC. et al v. DOE filed 07/01/04 closed 03/29/05

2:04-cv-03002-NS SONY MUSIC ENTERTAINMENT INC. et al v. JOHN DOE filed 07/01/04 closed 03/29/05

2:04-cv-03003-RBS ELEKTRA ENTERTAINMENT GROUP INC. et al v. JOHN DOE filed 07/01/04 closed 02/04/05

2:04-cv-03004-LP ARISTA RECORDS, INC. et al v. JOHN DOE filed 07/01/04 closed 04/07/05

2:04-cv-03005-RB SONY MUSIC ENTERTAINMENT INC. et al v. JOHN DOE filed 07/01/04 closed 02/04/05

2:04-cv-03008-NS ATLANTIC RECORDING CORPORATION et al v. DOE filed 07/01/04 closed 02/04/05

2:04-cv-03010-RK UMG RECORDINGS, INC. et al v. DOE filed 07/01/04 closed 02/04/05

2:04-cv-03011-ER CAPITOL RECORDS, INC. et al v. DOE filed 07/01/04 closed 04/07/052:04-cv-03019-CG ARISTA RECORDS, INC. et al v. DOE filed 07/01/04 closed 02/04/05

2:04-cv-03020-BWK ATLANTIC RECORDING CORPORATION et al v. DOE filed 07/01/04 closed 02/04/05

2:04-cv-03021-WY WARNER BROS. RECORDS INC. et al v. DOE filed 07/01/04 closed 02/04/05

2:04-cv-03023-MMB MAVERICK RECORDING COMPANY et al v. JOHN DOE filed 07/01/04 closed 02/04/05

2:04-cv-03024-LDD ATLANTIC RECORDING CORPORATION et al v. JOHN DOE filed 07/01/04 closed 04/07/05

2:04-cv-03029-TON VIRGIN RECORDS AMERICA, INC et al v. JOHN DOE filed 07/01/04 closed 04/07/05

2:04-cv-03033-JK WARNER BROS. RECORDS INC. et al v. DOE filed 07/01/04 closed 02/04/05

2:04-cv-03037-TJS WARNER BROS. RECORDS, INC. et al v. DOE filed 07/01/04 closed 04/07/05

2:04-cv-03042-PBT UMG RECORDINGS, INC. et al v. DOE filed 07/01/04 closed 04/07/05

2:04-cv-03049-HB WARNER BROS. RECORDS INC. et al v. DOE filed 07/07/04 closed 02/04/05

2:04-cv-03050-MAM ARISTA RECORDS, INC. et al v. JOHN DOE filed 07/01/04 closed 04/07/05

2:04-cv-03060-BMS CAPITOL RECORDS, INC. et al v. JOHN DOE filed 07/01/04 closed 02/04/05

2:04-cv-03064-TJS BMG MUSIC et al v. DOE filed 07/01/04 closed 02/04/05

2:04-cv-03068-PBT ATLANTIC RECORDING CORPORATION et al v. DOE filed 07/01/04 closed 02/04/05

2:04-cv-03069-JD VIRGIN RECORDS AMERICA, INC. et al v. DOE filed 07/01/04 closed 02/04/05

2:04-cv-03070-JD CAPITOL RECORDS, INC. et al v. DOE filed 07/01/04 closed 02/04/05

2:04-cv-03071-RB WARNER BROS. RECORDS INC. et al v. DOE filed 07/01/04 closed 02/04/05

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2:04-cv-03074-PBT ARISTA RECORDS, INC. et al v. DOE filed 07/01/04 closed 02/04/05

2:04-cv-03076-MAM ATLANTIC RECORDING CORPORATION et al v. JOHN DOE filed 07/01/04 closed 02/04/05

2:04-cv-03078-MAM BMG MUSIC et al v. JOHN DOE filed 07/01/04 closed 02/04/05

2:04-cv-03082-JD CAPITOL RECORDS, INC. et al v. DOE filed 07/01/04 closed 02/04/05

2:04-cv-03092-CRW ATLANTIC RECORDING CORPORATION et al v. DOE filed 07/01/04 closed 02/04/05

2:04-cv-03095-RK CAPITOL RECORDS, INC. et al v. DOE filed 07/01/04 closed 02/04/05

2:04-cv-03098-HB VIRGIN RECORDS AMERICA, INC. et al v. JOHN DOE filed 07/01/04 closed 02/11/05

2:04-cv-03099-MK ATLANTIC RECORDING CORPORATION et al v. DOE filed 07/01/04 closed 02/11/05

2:04-cv-03106-MAM ATLANTIC RECORDING CORPORATION et al v. DOE filed 07/01/04 closed 02/11/05

2:04-cv-03117-TJS SONY MUSIC ENTERTAINMENT INC. et al v. JOHN DOE filed 07/01/04 closed 02/11/05

2:04-cv-03125-JK MAVERICK RECORDING COMPANY et al v. DOE filed 07/01/04 closed 02/11/05

2:04-cv-03129-CG VIRGIN RECORDS AMERICA, INC. et al v. DOE filed 07/01/04 closed 03/29/05

2:04-cv-03132-CRW ATLANTIC RECORDING CORPORATION et al v. JOHN DOE filed 07/01/04 closed 02/11/05

2:04-cv-03133-CMR UMG RECORDINGS, INC. et al v. JOHN DOE filed 07/01/04 closed 02/11/05

2:04-cv-03408-WY PRIORITY RECORDS LLC et al v. MACWILLIAMS filed 07/20/04 closed 03/31/05

2:04-cv-04032-RB ATLANTIC RECORDING CORPORATION et al v. GARGAN filed 08/25/04 closed 01/04/05

2:04-cv-04033-JS ARISTA RECORDS, INC. et al v. GALLAGHER filed 08/25/04 closed 06/30/05

2:04-cv-04035-CMR SONY MUSIC ENTERTAINMENT INC. et al v. JARAMILLO filed 08/25/04 closed 02/28/05

2:04-cv-04415-ER SONY MUSIC ENTERTAINMENT INC. et al v. WILLIAMS filed 09/20/04 closed 12/06/04

2:04-cv-04416-RBS ARISTA RECORDS, INC. et al v. BREESE filed 09/20/04 closed 03/24/06

Documents

Skidmore v. Zeppelin - plaintiff's response to motion to dismiss.pdf