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Fasoli v. Voltage Pictures, LLC

United States District Court, N.D. Illinois, Eastern Division

December 22, 2014

FRANCO FASOLI (a/k/a

MEMORANDUM OPINION AND ORDER

ROBERT W. GETTLEMAN, District Judge.

Plaintiffs Franco Fasoli ("Jaz"), Nicolas Santiago Romero Escalada ("Ever"), and Derek Shamus Mehaffey ("Other"), filed a three-count complaint against defendants Voltage Pictures, LLC ("Voltage"), The Zanuck Co. ("Zanuck"), MediaPro Pictures ("MediaPro"), Well Go USA, Inc. ("Well Go"), Amplify Releasing ("Amplify"), David Warren, Terrence Gilliam, and ten unnamed defendants, alleging: (1) copyright infringement in violation of 17 U.S.C. § 501 (Count I); (2) unfair trade practices in violation of 815 ILCS 510/1 et seq. (Count II); and (3) consumer fraud and deceptive business practices in violation of 815 ILCS 505/1 et seq. (Count III). On September 22, 2014, plaintiffs filed a motion for preliminary injunction, which has been fully briefed. Defendants Voltage and Amplify have filed the instant motion to transfer venue from this court to the United States District Court for the Central District of California pursuant to 28 U.S.C. § 1404(a). Defendants Zanuck and Well Go have joined defendants' motion. For the reasons stated below, the motion is granted.

BACKGROUND[1]

Plaintiffs are international visual artists who, in December 2010, painted a mural in latex and spray-paint on Fitz Roy Street in Buenos Aires, Argentina. The mural is located in a well-known area referred to as zona de graffiti ("street art zone"), and is signed only with plaintiffs' pseudonymous, "OTHERJAZEVER." Plaintiffs Jaz and Ever, both citizens of Argentina, later registered the mural with the Argentinian Copyright Office under the title Castillo. Plaintiff Other, a Canadian citizen, is not referenced on the copyright. The copyright became effective on November 15, 2013.

According to defendants, California based production companies, Voltage and Zanuck, began producing the film "The Zero Theorem" in 2012. Defendant Terry Gilliam directed the film and defendant David Warren served as the movie's production designer. The movie was filmed in Romania with help from MediaPro, a Romanian production company. "The Zero Theorem" was first exhibited at film festivals in Italy and Texas in the Fall of 2013 and was later released, on a limited scale, in the United States in 2014. Defendants assert that the film has principally been distributed throughout the United States via digital streaming services. Amplify, a film distributor with its principal place of business in Los Angeles, California, has been responsible for distribution and promotion in the United States. According to plaintiffs, defendant Well Go, a Texas based company, has collaborated with Amplify to distribute the movie on DVD and Blu-Ray throughout the United States.

"The Zero Theorem" is a science fiction film about a computer programer, Qohen Leth, working on a formula that may reveal the meaning of life. Plaintiffs allege that much of the movie takes place in the main character's home, a chapel that has been partially converted into residential space. Plaintiffs complain that in violation of their copyright, the outside of the chapel, which is shown throughout the movie, is painted with a recreation of plaintiffs' mural, Castillo. Plaintiffs allege that screen-shots of the chapel's exterior, which includes plaintiffs' artwork, are "used repeatedly by the filmmakers in promotional materials, " including on the film's official websites and on various social media sites maintained by defendants.

DISCUSSION

A. Legal Standard

28 U.S.C. § 1404(a) provides that, "For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." The court may transfer a case to another jurisdiction when: (1) venue is proper in both the transferor and the transferee courts; (2) transfer is for the convenience of the parties and witnesses; and (3) transfer is in the interest of justice. Moore v. Motor Coach Indus., Inc., 487 F.Supp.2d 1003, 1006 (N.D. Ill. 2007). The moving party has the burden of showing that the circumstances favor a transfer. Id . A transfer must promote the efficient administration of justice, rather than simply shift the inconvenience from one party to the other. See Black v. Mitsubishi Motors Credit of America, Inc., No. 94-C-3055, 1994 WL 424112, at *1 (N.D. Ill. Aug. 10, 1994). District courts have broad discretion in deciding whether transfer is warranted. Cote v. Wadel, 796 F.2d 981, 985 (7th Cir. 1986).

B. Analysis

In opposition to defendants' motion to transfer, plaintiffs first contend that defendant Voltage cannot claim that the Northern District of Illinois is inconvenient because it has filed numerous actions here through a subsidiary. In support of this argument, plaintiffs attach to their response, as Exhibit A, a list of cases with variations of the case caption Dallas Buyers Club, LLC v. Does. Plaintiffs' contention fails because there is nothing to indicate that these cases arise from actions taken outside this district and/or involve defendants that do not reside here.

Plaintiffs next argue that defendants' motion is premature because not all defendants have filed answers or appeared in this case. However, as defendants point out, plaintiffs similarly filed their motion for preliminary injunction before the instant motion to transfer was filed and before all of the parties had been properly served. Additionally, two other defendants, Zanuck and Well Go, have subsequently joined in the instant motion to transfer, and all defendants, with the exception of MediaPro, have been served or have waived service at this time. Consequently, defendants' motion is not untimely.

In their response brief, plaintiffs do not contest that venue is proper in the Central District of California or that transfer is in the interest of justice. As such, the court has discretion to transfer the case if doing so is for the convenience of the parties and witnesses and in the interest of justice.[2] "In determining whether a forum is more convenient, the court must consider the private interests of the parties as well as the public interest of the court."[3] Aldridge v. Forest River, Inc., 436 F.Supp.2d 959, 960 (N.D. Ill. 2006). The factors related to the parties' private interests include: "(1) the plaintiffs' choice of forum; (2) the situs of material events; (3) the relative ease of access to sources of proof; (4) the convenience of the parties; and (5) the convenience of the witnesses.'" Spread Spectrum Screening, LLC v. Eastman Kodak Co., No. 10-C-1101, 2010 WL 3516106, at *3 (N.D. Ill. Sept. 1, 2010), quoting Amoco Oil Co. v. Mobile Oil Corp., 90 F.Supp.2d 958, 960 (N.D. Ill. 2000).

Plaintiffs argue that defendants have failed to establish that the Central District of California is more convenient than this venue. In support of this position, plaintiffs quote Fink v. Declassis, 738 F.Supp. 1195, 1198 (N.D. Ill. 1990), for the proposition that defendants must "demonstrate that the balance of the factors weighs heavily in favor of transfer." However, the Fink court never made this holding. Instead, the court ...


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