United States District Court, D. Nevada
the court is defendant John Michael Osbourne's
(“Osbourne”) motion to dismiss for lack of
personal jurisdiction pursuant to Federal Rule of Civil
Procedure 12(b)(2), Osbourne and co-defendant Blizzard Music
Limited (US)'s (“Blizzard US”) motion to
transfer pursuant to 28 U.S.C. § 1404(a),
defendants' motion to dismiss or stay the action due to
binding arbitration agreement, and defendants' motion to
dismiss for failure to state a claim pursuant to Federal Rule
of Civil Procedure 12(b)(6) and Rule 9(b) (ECF No. 8).
Plaintiff Robert Daisley (“Daisley”) has opposed
(ECF No. 14), and defendants have replied (ECF No. 16).
complaint, filed in state court on August 8, 2016 and removed
to this court on August 31, 2016, Daisley asserts that he
co-authored a number of songs with defendant Osbourne and
others in late 1979, 1980, and 1981. In 1980 and 1981,
Daisley entered into songwriter agreements that assigned his
copyright interest in the songs to Blizzard UK. Blizzard UK
is an entity incorporated in the UK and owned primarily by
Osbourne. Under the terms of the agreements, Blizzard UK
acted as the publisher and administrator for Daisley's
share of the songs and was responsible for collecting and
distributing royalties to Daisley. Blizzard UK was to pay 90
percent of all royalties received on Daisley's behalf to
Daisley, retaining a ten percent fee for itself.
understood that administration of the copyrights within the
United States was done by Blizzard US, an entity created and
controlled by Osbourne. However, Daisley asserts that he did
not learn until 2014 that Blizzard U.S. was retaining fifteen
percent of the royalties it received before remitting the
royalties to Blizzard UK for distribution to Daisley. Daisley
asserts that Osbourne, Blizzard US, and Blizzard UK concealed
this fact so that Daisley would not know of the additional
deductions. Daisley asserts that the songwriting agreements
do not allow Blizzard U.S. or Blizzard UK to take an
additional fifteen percent deduction. Daisley accordingly
commenced this action against Osbourne and Blizzard U.S. for
fraud and an accounting.
resides in Australia. Osbourne resides in Los Angeles,
California, and England. Blizzard U.S. is incorporated in
Nevada and has a post office box and bank account in Nevada,
but its books and records are physically located in
California and its administration of licenses is conducted
primarily in California.
court first addresses the defendants' motion to transfer
venue pursuant to 28 U.S.C. § 1404(a).
court may transfer venue to any district “where it
might have been brought” for “the convenience of
parties and witnesses, in the interest of justice.” 28
U.S.C. § 1404(a). The moving party bears the burden of
showing that an adequate alternative forum exists. Jones
v. GNC Franchising, Inc., 211 F.3d 495, 499 n.22 (9th
Cir. 2000). “Transfer is appropriate when the moving
party shows: (1) venue is proper in the transferor district
court; (2) the transferee district court has personal
jurisdiction over the defendants and subject matter
jurisdiction over the claims; and (3) transfer will serve the
convenience of the parties and witnesses, and will promote
the interests of justice.” Pfeiffer v. Himax
Techs., Inc., 530 F.Supp.2d 1121, 1123 (C.D. Cal. 2008).
Blizzard U.S. is incorporated in Nevada, the record reflects
that its business is conducted almost exclusively in
California. Osbourne also resides in California. The Central
District of California is a district where both defendants
reside and is therefore a proper venue for this action.
See 28 U.S.C. § 1391(b)(1).
Personal and Subject Matter Jurisdiction
Osbourne resides in California. The federal district court in
California therefore has personal jurisdiction over Osbourne.
U.S. is incorporated in Nevada, has a bank account in Nevada,
and has a P.O. Box in Nevada. However, Blizzard U.S. has no
offices in Nevada, all of its books and records are located
in California, and the business of Blizzard U.S. is conducted
primarily out of California. There is no evidence that
Blizzard U.S. conducts any substantial business in Nevada.
Specifically, Blizzard U.S. is a music publisher, and the
review, negotiation, and granting of license requests are
done by Sharon Osbourne, on defendant Osbourne's behalf,
principally from her office in Los Angeles, California. (ECF
No. 22 (Sharon Osbourne Decl. ¶¶4-5)). As Blizzard
US's business is conducted primarily from Los Angeles,
California, which is also the location of its books and
records, the record supports a conclusion that Blizzard
US's principal place of business is in California. Thus,
the federal district court in California would have personal
jurisdiction over Blizzard US. The defendants have conceded
that California courts have jurisdiction over Blizzard US.
the parties do not dispute that the federal district court in
California would have jurisdiction over Daisley's claims.
Convenience of the Parties and Witnesses and Interests of
court must weigh several factors in determining whether
transfer is appropriate: (1) the location where the relevant
agreements were negotiated and executed; (2) the state that
is most familiar with the governing law; (3) the
plaintiff's choice of forum; (4) the respective
parties' contacts with the forum; (5) the contacts
relating to plaintiff's cause of action in the chosen
forum; (6) the differences in the cost of litigation in the
two forums; (7) the ...