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Brighter Sky Productions, LLC v. Marriott International, Inc.

United States District Court, S.D. West Virginia, Beckley Division

May 16, 2018




         The Court has reviewed the Defendants' Motion to Dismiss (Document 8), the Memorandum of Law in Support of Defendants' Motion to Dismiss for Improper Venue and Lack of Personal Jurisdiction (Document 9), the Plaintiffs' Response to Defendants' Motion to Dismiss (Document 13), and the Defendants' Reply Memorandum of Law (Document 16). The Court has also reviewed the Plaintiffs' Motion for Leave to File Amended Complaint (Document 14), the Memorandum of Law in Support (Document 15), the Defendants' Memorandum of Law in Opposition (Document 19), and the Complaint (Document 1). For the reasons stated herein, the Court finds that the motion to dismiss should be granted and the motion to amend should be denied.


         The Plaintiffs, Brighter Sky Productions, LLC (“Brighter Sky”), Dan Ramon, Diana Belkowski, and Carl Anthony Tramon, initiated this lawsuit with a Complaint (Document 1) filed in this Court in September of 2017. They name as Defendants Marriott International, Inc., Marriott Theatre, Michael Mahler, and Aaron Thielen.

         In 1998, Homer H. Hickam, Jr., published his book Rocket Boys, a memoir of his childhood in the mining camp of Coalwood, West Virginia. The following year, Universal Studios released a movie entitled October Sky based on Mr. Hickam's book. Plaintiff Brighter Sky is a limited liability company established in New Jersey. Plaintiffs Dan Tramon, Carl Tramon, and Diana Belkowski are all residents of New York or New Jersey, and are the members of the Brighter Sky LLC. In 2006, the Plaintiffs approached Mr. Hickam to seek his approval to create a Broadway musical entitled “Rocket Boys” based on his book of the same name. Mr. Hickam had previously entered into a contract with Universal Pictures to grant Universal the rights to make October Sky. However, after requesting Universal to grant him the rights to produce a live stage performance of Rocket Boys, Mr. Hickam agreed to begin development of the musical with the Plaintiffs. On May 28, 2008, the Plaintiffs held a staged reading of the musical “Rocket Boys” in Hunstville, Alabama, and in June 2010, the musical was afforded an industry presentation in New York City.

         After garnering positive reviews in New York City, the Plaintiffs and Mr. Hickam entered into an “Underlying Rights and Author Collaboration Agreement” wherein Mr. Hickam granted Brighter Sky the exclusive rights to produce a “live stage play” of his novel. (Compl., ¶ 28.) From 2011 to 2013, the Plaintiffs “further honed” the musical “Rocket Boys” through “performance runs at Theatre West Virginia in Beckley, West Virginia.” (Id. at ¶ 28.) At some point during October 2012, Mr. Hickam's Live Stage Rights to the novel Rocket Boys became nonexclusive, and shortly thereafter, Universal Studios entered into discussions with Defendant Aaron Thielen, the Artistic Director for Marriot Theatre, about creating a live stage rendition of Universal's movie October Sky. On or about May 30, 2013, Universal's Vice President of Live Theatrics informed Mr. Hickam that it had “agreed that Marriott [Theatre] could produce a [live theatrical] version based on the [novel Rocket Boys] and the movie October Sky, ” but “assured Hickam and the Plaintiffs that they would continue to permit performances of ‘Rocket Boys.'” (Id. at ¶ 36, 38.)

         Based on Universal's assurance, the Plaintiffs and Mr. Hickam entered into a licensing agreement with Theatre West Virginia such that “the musical [‘Rocket Boys'] would become a historical presentation every year as part of the Theatre's line-up.” (Id. at ¶ 39.) In the spring of 2015, the Plaintiffs secured a performance of “Rocket Boys” in The Legacy Theatre in Atlanta, Georgia, and Universal's Vice President of Live Theatrics attended this showing. Subsequently, on June 16, 2016, Universal's Vice President of Legal Affairs sent Mr. Hickam's counsel a letter instructing him that any further performances of the “Rocket Boys” musical must be halted “at least until after the October Sky musical had completed its run” at the Marriott Theatre. (Id. at ¶ 43.) This “effectively shut down indefinitely” the Plaintiffs' production of the “Rocket Boys” musical. (Id. at ¶ 43.) Defendant Marriott ran Universal's “October Sky” musical from August 9 through October 18, 2015, at the Marriott Theatre in Lincolnshire, Illinois. The Plaintiffs allege that the Defendants' “October Sky” musical was “substantially similar” to the Plaintiff's “Rocket Boys” musical, including similar music, score, and stage play. (Id. at ¶ 46-47.)

         Based on these facts, the Plaintiffs allege one count of copyright infringement, one count of contributory infringement, and one count of vicarious liability. They claim that the Defendants copied the Plaintiffs' scenes, music, sequences, and language “exclusively written for the ‘Rocket Boys' [musical] which were not in the novel or motion picture . . . too many times to be coincidental all without the Plaintiffs' permission, authorization and consent.” (Id. at ¶ 51.)

         Bancroft S. Gordon, the Corporate Secretary of Marriott International, Inc., submitted an affidavit stating that Marriott International is a Delaware corporation with its principal place of business in Bethesda, Maryland. (Gordon Affidavit, at ¶ 3) (Document 9-1). He states that “Marriott International's business is focused on managing hotels and franchising and licensing hotels, ” and that Marriott International does not own or manage any lodging properties in West Virginia, nor does [it] own or operate any theatres in West Virginia.” (Id. at ¶ 4, 6.) According to Mr. Gordon, there were twenty-four hotels branded by Marriott in West Virginia as of September 8, 2017. However, those hotels are all owned, operated, and managed by either third parties under franchise agreements with Marriott International or subsidiaries of Marriott International. Mr. Gordon further states that Marriott International does not own or operate the Marriott Theatre or the Lincolnshire Marriott Resort in Lincolnshire, Illinois.

         Terry James, the Executive Producer at the Marriott Theatre, also submitted an affidavit. Mr. James states that the Marriott Theatre is a part of the Lincolnshire Marriott Resort, located in Lincolnshire, Illinois. According to Mr. James, during the time that the “October Sky” musical was produced and shown there, the Marriott Theatre was owned by “LA-RFMBG Lincolnshire LLC, a limited liability company created by the Bricton Group.” (James Affidavit, at ¶ 5) (Document 9-2). Mr. James further states that the theatre's production of “October Sky” took place entirely in Illinois, and that he did not visit West Virginia, transact any business in West Virginia, or have any contact with anyone in West Virginia or any of the Plaintiffs.


         A. Personal Jurisdiction-Rule 12(b)(2)

         “In order for a court to validly exercise personal jurisdiction over a non-resident defendant: (1) a statute must authorize service of process on the non-resident defendant, and (2) the service of process must comport with the Due Process Clause.” In re Celotex Corp., 124 F.3d 619, 627 (4th Cir. 1997). West Virginia's long-arm statute, contained in W.Va. Code § 56-3-33(a), “is coextensive with the full reach of due process, ” and so the statutory and constitutional queries merge. Id.; HSBC Bank USA, Nat. Ass'n v. Resh, No. 3:12-CV-00668, 2015 WL 4772524, at *2 (S.D. W.Va. Aug. 12, 2015) (Chambers, C.J.). “A court's exercise of personal jurisdiction over a non-resident defendant is consistent with the Due Process Clause if the defendant has sufficient “minimum contacts” with the forum such that requiring the defendant to defend its interests in the forum does not ‘offend traditional notions of fair play and substantial justice.'” Celotex, 124 F.3d. at 628 (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). When a defendant challenges a court's personal jurisdiction in a motion to dismiss under Federal Rule of Civil Procedure 12(b)(2) “the burden [is] on the plaintiff to ultimately prove grounds for jurisdiction by a preponderance of the evidence.” Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 60 (4th Cir. 1993). When no evidentiary hearing is held, “the plaintiff need prove only a prima facie case of personal jurisdiction” and “the district court must draw all reasonable inferences arising from the proof, and resolve all factual disputes, in the plaintiff's favor.” Id.

         A defendant's contacts can establish either specific jurisdiction or general jurisdiction. Specific jurisdiction is available where “the defendant's qualifying contacts with the forum state also constitute the basis for the suit.” Universal Leather, LLC v. Koro AR, S.A., 773 F.3d 553, 559 (4th Cir. 2014), cert. denied, 135 S.Ct. 2860, 192 L.Ed.2d 896 (2015) (internal quotation marks and citations omitted). The Fourth Circuit has established a three-part test to determine whether specific personal jurisdiction is appropriate: “(1) the extent to which the defendant purposefully availed itself of the privilege of conducting activities in the forum state; (2) whether the plaintiff's claims arose out of those activities; and (3) whether the exercise of personal jurisdiction is constitutionally reasonable.” Id. (internal punctuation and citations omitted).

         General jurisdiction is available only if a corporation's contacts with a state “are so continuous and systematic as to render it essentially at home in the forum state.” Daimler AG v. Bauman, 134 S.Ct. 746, 761 (2014) (citing and quoting from Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (U.S. 2011)).

         B. ...

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