CIV 99-2062-PHX-RGS

O R D E R

Urantia Foundation, Plaintiff,

vs.

Michael Foundation, Inc., Defendants.

I. INTRODUCTION

On November 22, 1999, Plaintiff Urantia foundation ("Urantia"), an Illinois based charitable trust, filed its complaint against Defendant Michael Foundation, Inc. ("Michael"), an Oklahoma non-profit corporation, alleging claims of copyright infringement Urantia also filed a petition for order to show cause as to why the injunctive relief requested in its complaint should not be issued. Urantia alleges infringement of two of the rights granted to it under the Copyright Act: the right to reproduce the copyrighted work in copies and the right to distribute copies of the work to the public by sale. See 17 U.S.C. 5 106(l) and (3). Currently pending before the Court is Michael's Motion to Dismiss or for Change of Venue.

II. BACKGROUND

Urantia first published The Urantia Book under notice of copyright in 1955. The text of the Urantia Book is comprised of 196 papers, referred to as "The Urantia Papers," a Table of Contents and a Titles of the Papers section. Urantia alleges that Michael published and sold a book titled Jesus - A New Revolution ("JANR") that reproduced the text of the Urantia Papers 121 through 196.

III. DISCUSSION

Michael’s Motion to Dismiss contends that the Court must dismiss Urantia’s complaint for lack of personal jurisdiction and for improper venue. Alternatively, Michael requests that the Court transfer this matter to a more convenient forum pursuant to 28 U.S.C. § 1406(a).

A. Personal Jurisdiction

In its Motion to Dismiss, Michael contends that the Court must dismiss Urantia’s complaint pursuant to Fed.R.Civ.P. 12(b)(3) since there is no basis for the Court’s exercise of personal jurisdiction over it. At the motion to dismiss stage, the Court must not attempt to weigh conflicting evidence to determine whether Urantia has demonstrated personal jurisdiction by a preponderance of the evidence. Rather, the Court is to look solely to Urantia’s evidence to determine whether a prima facie case establishing personal jurisdiction has been presented. See Data Disc, Inc. v. Systems Technology Associates, Inc., 557 F.2d 1280, 1285 (9^th Cir. 1977).

There is no federal statute governing personal jurisdiction in this instance and, thus, Arizona’s long-arm statute applies. Arizona Rule of Civil Procedure 4.2(a) provides that a court may exercise jurisdiction over parties, whether found within or outside the state, to the maximum extent permitted by the Constitution of the United States.

Accordingly, under Rule 4.2(a), the Court may exercise jurisdiction over Defendants so long as doing so comports with due process. Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414, 416 (9^th Cir. 1997). Consistent with the Due Process Clause of the United States Constitution, a court may assert either specific or general jurisdiction over a defendant. Helicopteros Nacionales De. Colombia S.A. v. Hall, 104 S.Ct. 1868, 1869 (1984). General jurisdiction exists when a defendant is domiciled in the forum state or his activities there are "substantial" or "continuous and systematic." Panavision Int’l L.P. v. Toeppen, 141 F.3d 1316, 1320 (9^th Cir. 1998); Helicopteros Nacionales De. Colombia S.A. v. Hall, 104 S.Ct. 1868, 1872-73 (1984). Specific jurisdiction exists if the controversy is sufficiently related or arises out of the defendant’s contacts with the forum state. Omeluk v. Langsten Slip & Batbygeri A/S, 52 F.3d 267, 270 (9^th Cir. 1995). In order to determine whether specific jurisdiction exists, the following three-part test is utilized:

Panavision Int’l, L.P., 141 F.3d at 1320; Omeluk, 52 F.3d at 270.

In response to Michael’s Motion to Dismiss, Urantia references the affidavit of Harry McMullan, III, the president of Michael, wherein he explains that "[a]pproximately 34 of the books sold or given away by Michael Foundation were shipped to persons who reside in Arizona." Doc. 10, exh. A at ¶4. Additionally, it appears that Michael advertised JANR in the Life and Life Journal which was distributed in Arizona. Doc. 35, exh. A. In Airola v. King, 505 F.Supp. 30, 31 (D.Ariz. 1980), cited by Michael in its Motion to Dismiss, the court found that exercising personal jurisdiction over the defendant magazine where the defendant merely placed its magazine "for sale in stores to the general public" and "the magazine in which the article which is the subject of the lawsuit, was published was purchased in Phoenix, Arizona," would offend traditional notions of fair play and substantial justice. The Court finds Michael’s contacts with the State of Arizona are analogous to the defendant’s contacts in Airola. While it is undisputed that Michael sold and/or shipped 34 copies of JANR to Arizona residents, the record is devoid of any evidence alleging that Michael directed its sales efforts specifically at Arizona.

Moreover, the fact that Michael advertised in a national magazine which is distributed in Arizona is insufficient to justify the Court’s exercise of personal jurisdiction over Michael. See Amana Refrigeration, Inc. v. Quadlux, Inc., 172 F.3d 852, 857 (Fed.Cir. 1999) (holding that solicitation of sales in national magazine distributed in forum state was insufficient to justify exercise of personal jurisdiction); Dart Int’l v. Interactive Target Systems, Inc., 877 F.Supp. 541, 544 (D.Col. 1995) (recognizing that advertising in national magazines which reach Colorado was not sufficient for assertion of specific jurisdiction since such advertising is indirect and the defendant had no control over who ultimately received the magazines.)

Even though the Court finds that Michael’s contacts with the State of Arizona are limited, "jurisdiction may be exercised with a lesser showing of minimum contacts than would otherwise be required if consideration of reasonableness dictate." Haisten v. Grass Valley Medical Reimbursement, 784 F.2d 1392, 1397 (9^th Cir. 1986). In addressing the issue of reasonableness, the Court considers seven factors: (1) the extent of Michael’s purposeful interjection; (2) the burden on Michael in defending in Arizona; (3) the extent of conflict with the sovereignty of Michael’s state; (4) Arizona’s interest in adjudicating the dispute; (5) the most efficient judicial resolution of the controversy; (6) the importance of Arizona to Urantia’s interest in convenient and effective relief and (7) the existence of an alternative forum. Panavision, 141 F.3d at 1323; Burger King, 105 S.Ct. at 2184-85.

Analyzing the seven factors set forth above, the Court finds that "considerations of reasonableness" do not dictate its exercise of jurisdiction over Michael. Importantly, the Court finds that the burden on Michael, as a Oklahoma non-profit corporation, to litigate this action in Arizona is substantial. Additionally, the Court finds that Arizona has no interest in adjudicating this dispute. Urantia, the party seeking to have its copyright protected, does not reside in Arizona nor does it have its principal place of business in Arizona. Moreover, with respect to the most efficient resolution of the controversy, the Court finds that Arizona is not the most efficient forum. Specifically, the majority of potential witnesses named by both parties reside outside of Arizona. See doc. 16, exh. 1 at ¶5 and doc. 10, exh. A at ¶7. Based upon the foregoing,

IT IS ORDERED

granting Defendant Michael’s Motion to Dismiss. (Doc. 10);

IT IS FURTHER ORDERED

denying as moot all other pending motions in this matter.

 

DATED this 8th day of May, 2000.

HONORABLE ROGER G. STRAND

U.S. DISTRICT COURT JUDGE