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Warren v. Cardoza Publishing Co.

United States District Court, E.D. Missouri, Eastern Division

February 6, 2017




         This matter is before the Court on Defendants Cardoza Publishing Company and Avery Cardoza's Motion to Dismiss for Lack of Personal Jurisdiction and Estoppel (ECF No. 23). The motion is fully briefed and ready for disposition.


         On April 22, 2016, Plaintiff filed a Complaint against Defendants Cardoza Publishing Company ("Cardoza Publishing") and Avery Cardoza, a/k/a Allan Silberstang ("Cardoza"), raising seven counts related to six publishing book contracts the parties entered into between June 1996 and September 2004. (Compl. ¶¶ 1-4, 8, ECF No. 1) The book contracts granted Defendant Cardoza Publishing the right to publish, sell, and license books authored by Plaintiff pertaining to the game of poker. (Id. at ¶¶ 8-9) The contracts also provided for royalties to be paid to Plaintiff. (Id. at ¶ 10) Plaintiff is the registered owner of the copyright of each book. (Id. at ¶ 14) Plaintiff contends that his books sold many more copies, both domestically and in foreign countries, than Defendants reported. (Id. at ¶ 17) In addition, he alleges that the books had been translated into other languages and sold abroad, which Defendants failed to communicate. (Id. at ¶¶ 18-19) Plaintiff claims that Defendants have failed to make royalty payments to Plaintiff for many years and that he terminated the book contracts based upon Defendants' breach of the contracts. (Id. at ¶¶21-22) However, Plaintiff maintains that Defendants have continued to publish and sell Plaintiffs books, including internet sales since 2010. (Id. at 23-26)

         Defendant Cardoza Publishing is a Florida corporation with its principal place of business in Las Vegas, Nevada. (Id. at ¶ 2) Cardoza is a resident and citizen of the State of Nevada. (Id. at ¶ 3) Plaintiff Kenneth Warren is a resident of St. Charles County, Missouri. (Id. at ¶ 1)

         On July 26, 2010, Plaintiff filed an action in this court against Defendants based upon the same contracts set forth above ('Warren I'). Ken Warren v. Cardoza Publishing, Inc., et al, No. 4:10-CV-01353 SNLJ. Plaintiffs First Amended Complaint in the 2010 law suit alleged breach of contract, request for an accounting, declaratory and injunctive relief, unjust enrichment, and fraud. On December 2, 2011, United States District Judge Stephen N. Limbaugh, Jr., issued a Memorandum and Order granting Defendants' Motion to Dismiss Due to Lack of Personal Jurisdiction and dismissing all of Plaintiff s claims without prejudice. Warren v. Cardoza Publ'g, Inc., "No. 4:10-CV-01353 SNLJ, 2011 WL 6010758 (E.D. Mo. Dec. 2, 2011).

         On February 21, 2012, Plaintiff filed a petition in the Circuit Court of St. Charles County, Missouri asserting the same claims contained in the 2010 law suit (Warren II). (Compl. ¶ 27; Defs.' Ex. L, Kenneth Warren v. Cardoza Publ'g, et al, No. 1211-CC00182, ECF No. 24-12) Plaintiff voluntarily dismissed the case without prejudice on April 24, 2015 after the state court heard argument on Defendants' motion to dismiss for lack of jurisdiction and ordered Plaintiff file a memorandum in opposition no later than April 24, 2015. (Defs.' Exs. M and N, ECF No. 24-14, 24-15)

         The Complaint now before the Court, which is Plaintiffs third law suit against Defendants regarding the book contracts ("Warren IIF), alleges Copyright Infringement (Count I); Breach of Contract (Count II); Request for an Accounting (Count III); Unjust Enrichment (Count IV); Fraud (Count V); Declaratory and Injunctive Relief (Count VI); and Money Had and Received (Count VII). Plaintiff claims that venue is proper in this Court "because a substantial part of the events or omissions giving rise to the claims occurred in this judicial district." (Compl. ¶ 7) Specifically, Plaintiff contends that Defendant Cardoza Publishing markets and sells Plaintiff s copyrighted books through "brick and mortar" retail locations and through its website and other online outlets and internet websites. (Id.) Plaintiff further asserts that the allegedly infringing products are regularly sold within the Eastern District of Missouri. (Id.)

         On August 12, 2016, Defendants filed a Motion to Dismiss for Lack of Personal Jurisdiction and Estoppel based on Judge Limbaugh's determination that the court lacked personal jurisdiction over Defendants. Plaintiff filed a response in opposition, contending that collateral estoppel does not apply because Plaintiff has raised a new claim, copyright infringement, and raised new facts regarding brick-and-mortar sales, internet sales, and direct mail marketing. Thus, Plaintiff asserts that the Court now has subject matter jurisdiction over Plaintiffs claims.

         Legal Standards

         To survive a motion to dismiss for lack of personal jurisdiction under Rule 12(b)(2) of the Federal Rules of Civil Procedure, "a plaintiff must make a prima facie showing of personal jurisdiction by pleading facts sufficient to support 'a reasonable inference that the defendant[ ] can be subjected to jurisdiction within the state.'" Valez v. Portfolio Recovery Assocs., 881 F.Supp.3d 1075, 1080 (E.D. Mo. 2012) (quoting K-V Pharm. Co. v. J. Uriach & CIA, S.A., 648 F.3d 588, 591-92 (8th Cir. 2011) (internal quotation and citations omitted)). Where '"the district court does not hold a hearing and instead relies on pleadings and affidavits, . . . the court must look at the facts in the light most favorable to the nonmoving party, and resolve all factual conflicts in favor of that party."' Pangaea, Inc. v. Flying Burrito LLC, 647 F.3d 741, 745 (8th Cir. 2011) (quoting Dakota Indus., Inc. v. Dakota Sportswear, Inc., 946 F.2d 1384, 1387 (8th Cir. 1991) (internal citations omitted)). Id. (citation omitted). "Although the Court may consider affidavits and other matters outside the pleadings on a Rule 12(b)(2) motion, the pleader's burden, in the absence of an evidentiary hearing, is only to make a 'minimal' prima facie showing of personal jurisdiction . . . ." Scarpino v. Bodian, No. 4:12CV1458 HEA, 2013 WL 4042216, at *3 (E.D. Mo. Aug. 3, 2013) (citation omitted). The party seeking to establish personal jurisdiction carries the burden of proof, and that burden does not shift to the party that challenges jurisdiction. Fastpath, Inc. v. Arbela Techs. Corp., 760 F.3d 816, 820 (8th Cir. 2014) (citation omitted).

         To determine whether personal jurisdiction exists, the forum state's long-arm statute must be satisfied, and the exercise of personal jurisdiction must be consistent with due process. Wells Dairy, Inc. v. Food Movers Int'l, Inc., 607 F.3d 515, 518 (8th Cir. 2010) (citation omitted). "Missouri has construed its long-arm statute to confer jurisdiction to the fullest extent permitted by the United States Constitution." Helenthal v. Polk, No. 4:08-CV-1791 CEJ, 2010 WL 546313, at *1 (E.D. Mo. Feb. 9, 2010) (citations omitted). Due process requires that minimum contacts exist between a nonresident defendant and the forum states such that the exercise of personal jurisdiction is consistent with traditional notions of fair play and substantial justice. Wells Dairy, 607 F.3d at 518 (citations omitted). '"Sufficient contacts exist when the defendant's conduct and connection with the forum state are such that [it] should reasonably anticipate being haled into court there.'" Id. (quoting Bell Paper Box, Inc. v. U.S. Kids, Inc., 22 F.3d 816, 818 (8th Cir. 1994)). A defendant reasonably anticipates being haled into the forum state's court where the defendant performs some act by which it '"purposefully avails itself of the privilege of conducting activities within the forum [s]tate, thus invoking the benefits and protections of its laws.'" Id. (quoting Bell Paper Box, 22 F.3d at 818-19).

         With regard to collateral estoppel, "[d]ismissal of a suit for lack of federal subject matter jurisdiction precludes relitigation of the same issue of subject matter jurisdiction in a second federal suit on the same claim." Oglala Sioux Tribe of Pine Ridge Indian Reservation v. Homestake Mining Co.,722 F.2d 1407, 1411 (8th Cir. 1983) (citing 18 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure ยง 4403, at 11). "In order for collateral estoppel to apply, (1) 'the issues in both proceedings must be identical'; (2) 'the issue in the prior proceedings must have been actually litigated and actually decided'; (3) 'there must have been [a] full and fair opportunity for .. . litigation in the prior proceeding'; and (4) 'the issue previously litigated must have been necessary to support a valid and ...

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