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Poparic v. Video

June 25, 2009

ALEXSANDER POPARIC, INDIVIDUALLY, PLAINTIFF,
v.
LINCOLN SQUARE VIDEO, NIHAD NEZIC, ANITA KOSTIC, DUSKO DUSKO VUKMIROVIC, BOSNA VIDEO, RASIM SILAHIC, DSD DELICATESSEN, INC., BELRADA; FLORODANKA KECMAN, V.A.M.D., INC., HARZCAK'S SAUSAGE, TASTE OF EUROPE, LLC, AND DOES 1 THROUGH 20, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Charles P. Kocoras, District Judge

MEMORANDUM OPINION

This matter comes before the court on the motion of Defendant Taste of Europe, LLC ("Taste") to dismiss Plaintiff Alexsander Poparic ("Poparic")'s complaint as to it pursuant to Fed. R. Civ. P. 12(b)(2) for lack of personal jurisdiction and 12(b)(5) for insufficient service of process. For the following reasons, the motion is granted as to Rule 12(b)(2); the Rule 12(b)(5) motion is moot.

BACKGROUND

According to the allegations contained in the complaint, Taste owns and operates a store containing many of Poparic's copyrighted films. On January 10, 2008, Poparic claims that Taste sold one copy of Poparic's films to a third party without the authority to do so. Poparic asserts that his claim arises under the Copyright Act of 1976, 17 U.S.C. § 101, et seq. because Taste illegally reproduced, sold, and displayed his copyrighted works.

Poparic filed suit against Taste and other defendants on June 18, 2008. Taste was not served until February 8, 2009, by mail. The instant motion seeks to dismiss the allegations against Taste pursuant to Fed. R. Civ. P. 12(b)(2) for lack of subject matter jurisdiction and 12(b)(5) for insufficient service of process.

LEGAL STANDARDS

I. Motion to Dismiss for Lack of Personal Jurisdiction

When faced with a motion to dismiss for lack of personal jurisdiction under Fed. R. Civ. P. 12(b)(2), a plaintiff bears the burden of making a prima facie showing that jurisdiction over the defendant is proper. Purdue Research Found. v. Sanofi-Synthelabo, S.A., 338 F.3d 773, 782 (7th Cir. 2003). In considering the motion, the court accepts all well-pleaded allegations as true unless controverted by affidavits. Turnock v. Cope, 816 F.2d 332, 333 (7th Cir. 1987).

Federal jurisdiction over this case is based on claims of copyright infringement. Since the Copyright Act does not provide for nationwide service of process, personal jurisdiction is based on the law of the forum state, Illinois. See Fed. R. Civ. P. 4; Janmark, Inc. v. Reidy, 132 F.3d 1200, 1201 (7th Cir. 1997). In Illinois, a court may exercise jurisdiction "only when it is fair, just, and reasonable to require a nonresident defendant to defend an action in Illinois, considering the quality and nature of the defendant's acts which occur in Illinois or which affect interests located in Illinois." Rollins v. Ellwood, 565 N.E.2d 1302, 1316 (Ill. 1990).

II. Motion to Dismiss for Insufficient Service

Under Fed. R. Civ. P. 12(b)(5), a complaint may be dismissed for "insufficiency of service of process." Rule 4(h) prescribes the appropriate methods for service of process upon corporations, associations, and limited liability companies. Fed. R. Civ. P. 4(h). Rule 4(h)(1) allows for serving process on a corporation or limited liability company by "delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by law to receive service of process." If proper service is not made on a defendant within 120 days of the filing of the complaint, a court shall dismiss the complaint, without prejudice, or "shall extend the time for service for an appropriate period" if the plaintiff shows good cause for failing to effect proper service.

Panaras v. Liquid Carbonic Indus. Corp., 94 F.3d 338, 339 (7th Cir. 1997). Even if a plaintiff does not demonstrate good cause, a court may, in its discretion, allow the plaintiff a reasonable extension of time to effectuate service. Henderson v. United States, 517 U.S. 654, 662, 116 S.Ct. 1638 (1996).

With these principles in mind, we turn to the ...


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