Can Copyright Registration Be a Basis For Personal Jurisdiction in the District of Columbia?
Generally, to establish personal jurisdiction over a non-resident, a court must engage in a two-part inquiry. First, examine whether jurisdiction is applicable under the state’s long-arm statute, and second, determine whether a finding of jurisdiction satisfies the constitutional requirements of due process. See GTE New Media Servs., Inc. v. BellSouth Corp., 199 F.3d 1343, 1347 (D.C. Cir. 2000). The District of Columbia long-arm statute provides that a District of Columbia court has personal jurisdiction over any person as to a claim for relief arising out of certain enumerated contacts with the District. D.C. Code Ann. § 13-423(a). Moreover, the constitutional limits of due process are generally coterminous with the limits set forth in the D.C. long-arm statute. See Harris v. Omelon, 985 A.2d 1103, 1105 n.1 (D.C. 2009). In Environmental Research Int’l, Inc. v. Lockwood Greene Engineers, Inc., 355 A.2d 808, 813 (D.C. 1976) (en banc) the Court of Appeals for the District of Columbia sitting en banc upheld and affirmed the “long-standing and still vital doctrine that entry into the District of Columbia for the purpose of contacting federal governmental agencies is not a basis for the assertion of in personam jurisdiction.” The court went on to state that this doctrine finds its source “in the unique character of the District as the seat of national government and in the correlative need for unfettered access to federal departments and agencies for the entire national citizenry.” Id. The court also warned that to permit District of Columbia courts to assert personal jurisdiction over non-residents whose sole contact with the District consists of dealing with a federal instrumentality would “pose a threat to free public participation in government” and “also would threaten to convert the District of Columbia into a national judicial forum.”
The (federal) U.S. District Court for the District of Columbia has applied the government contacts doctrine in a number of contexts to dismiss plaintiffs’ suits against non-resident defendants. See Alkanani v. Aegis Defense Services, LLC, 976 F. Supp.2d 13, 25 (D.D.C. 2014) (citing cases); see also Morgan v. Richmond Sch. of Health and Tech., Inc., 857 F.Supp.2d 104, 108 (D.D.C. 2012) (citing cases). Included in these cases is Freiman v. Lazur, 925 F.Supp. 14, 24 (D.D.C. 1996), in which the court held that under the government contacts doctrine a defendant’s registration of a copyright with the U.S. Copyright Office located in the District of Columbia could not be used as a basis for personal jurisdiction over him. This holding was reached over the plaintiffs’ objection that the government contacts doctrine ought not to apply because defendant’s contacts with the Copyright Office are as alleged “fraudulent in and of themselves and are found to cause harm to the plaintiffs.” Id.
The U.S. Circuit Court of Appeals for the District of Columbia has on two occasions noted some tension between the government contacts doctrine as articulated en banc in Environmental Research in 1976 and in a subsequent 1978 panel decision in Rose v. Silver, 394 A.2d 1368, 1373-74 (D.C. 1978). See Naartex Consulting Corp. v. Watt, 722 F.2d 779, 786-87 (D.C. Cir. 1983) (Rose appears to limit government contacts doctrine to activities implicating first amendment rights) and Companhia Brasileira Carbureto de Calico v. Applied Indus. Materials Corp., 640 F.3d 369, 372-73 (D.C. Cir. 2011) (same).
In Naartex, the federal appellate court applied the government contact doctrine to defendants’ personal appearances before the Interior Department in defense of their lease rights, noting that such activities would qualify even under the Rose test as a protected first amendment right to petition the government. 722 F.2d at 787. But the court noted in dictum that “a different case might be presented had [the plaintiff] made credible and specific allegations in the district court that [defendants] had used the proceedings as an instrumentality of the alleged fraud.” Id. In Companhia, the D.C. Circuit was presented with a case that was to test its prior dictum in that the plaintiff made credible and specific allegations that defendants had made a fraudulent petition to the U.S. International Trade Commission (“ITC”) which resulted in the ITC assessing import duties against the plaintiff’s goods. 640 F.3d at 373. Not wanting to resolve the issue without advice from the highest court in the District of Columbia, in Companhia the D.C. Circuit certified the following question to the District of Columbia Court of Appeals:
Under District of Columbia law, does a petition sent to a federal government agency in the District provide a basis for establishing personal jurisdiction over the petitioner when the plaintiff has alleged that the petition fraudulently induced unwarranted governmental action against the plaintiff?
See Companhia Brasileira Carbureto de Calico v. Applied Indus. Materials Corp., 35 A.2d 1127, 1130 (D.C. 2012); Companhia, 640 F.3d at 371.
The D.C. Court of Appeals answered the question in the affirmative, essentially establishing a narrow fraud exception to the government contacts doctrine. 35 A.2d at 1135. However, the D.C. appeals court carefully worded its opinion to apply to the literal language of the certified question, including that “the petition fraudulently induced unwarranted action against the plaintiff.” Id. at 1133-35. The court also conceded that the apparent conflict between its en banc holding in Environmental Research and its panel holding in Rose had created uncertainty as to the law. Id. at 1133 n.5. However, the court stated that it was not attempting to resolve this uncertainty and that its limited fraud exception is appropriate even if rationales apart from the first amendment support the government contacts doctrine. Id. The D.C. appeals court’s opinion in Companhia leaves open the question as to whether its annunciated fraud exception to the government contacts doctrine would apply to an allegedly fraudulent petition to a federal government agency, such as the Copyright Office, which did not take action against the plaintiff. Put another way, is the U.S. District Court’s holding in Freiman v. Lazur that the government contacts doctrine applies to a defendant’s allegedly fraudulent copyright registration still good law after the holding of the D.C. Court of Appeals in Companhia?
This question is now before the U.S. District Court in App Dynamic ehf v. Vignisson, Civil Action No. 1:14-cv-01504-JEB (D.D.C) on defendant’s motion to dismiss for lack of personal jurisdiction. Plaintiff App Dynamic has taken the position that the court has personal jurisdiction over defendant Vignisson based entirely on defendant’s contacts with the U.S. Copyright Office in allegedly fraudulently registering a copyright. Defendant Vignisson, represented by FARKAS+TOIKKA, LLP, has moved to dismiss on the basis of the government contacts doctrine and Freiman, arguing that the scope of the Companhia fraud exception does not include an allegedly fraudulent copyright registration because the Copyright Office is not alleged to have taken action against the plaintiff. Indeed, the registration proceeding was ex parte and the registration certificate does not identify the plaintiff. Defendant’s motion has been fully briefed and the parties are awaiting a decision by the court.
© 2015 Richard S. Toikka, All Rights Reserved.