Kelly v. Omni Lingual Services, et al 07-CV-157-SM 09/06/07 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Nataly Kelly, Plaintiff
v. Civil No. 0 7-cv-15 7-SM Opinion No. 2007 DNH 108 Omni Lingual Services, Inc d/b/a NetworkOmni, and Manuel Mendoza, Defendants
O R D E R
Nataly Kelly brings suit against Omni Lingual Services,
Inc., doing business as NetworkOmni ("Omni" or "the Company") and
Omni's Executive Vice President, Manual Mendoza. Kelly asserts
claims of copyright infringement and a host of related state law
claims. Kelly also seeks a declaratory judgment. Omni moves to
dismiss (document no. 17), arguing that Kelly has failed to
allege facts that, if true, would support a claim of copyright
infringement, and that this court lacks subject matter
jurisdiction. Mendoza separately moves to dismiss (document no.
18), arguing that this court lacks personal jurisdiction over
him. Kelly objects. Background
The facts, taken from the pleadings and construed in the
light most favorable to Kelly are as follows.
Kelly is a widely-known scholar in the field of
sociolinguistic research. In 2004 she began working with Omni as
a consultant from her residence in Nashua, New Hampshire. At the
time she began working for Omni, she advised the Company that she
was writing a book entitled Telephone Interpreting: A
Comprehensive Guide to the Profession ("the book"), on her own
time, and without any involvement of Omni or Omni's staff. Kelly
is the sole author of the book. By February of 2005, Kelly was
engaged in negotiations with Multilingual Matters, Ltd. ("MML"),
to publish and distribute her book.
In May of 2005, Kelly was hired by Omni as a full-time
employee to work as a Senior Product Development Manager. She
gave Omni assurances that her writing pursuits would not
interfere with her job responsibilities. Kelly continued to work
from her home in Nashua, New Hampshire. Kelly also signed an
Employee Confidentiality & Inventions Agreement which provided
that Omni would be the owner of any "works of authorship,
inventions, discoveries, developments, improvements, designs,
2 ideas, innovations, inventions, formulas, processes, techniques,
know-how, and data" that she might develop during the course of
her employment. See Compl. (document no. 1), Ex. 2 5 6.
Kelly completed her book in October of 2006 and, as a
courtesy, sent a copy of the completed manuscript to Omni's Chief
Executive Officer, George Ulmer. Kelly also offered to feature
Omni on the cover of the book alongside a photograph of one of
the company's telephone interpreters.
Later in 2006, Kelly complained to Omni's human resources
department about allegedly inappropriate and discriminatory
conduct by Mendoza and other Company employees. Shortly
thereafter, Mendoza began to claim that Omni owned the copyright
in Kelly's book. Despite Kelly's continued discrimination
complaints, the Company did not take corrective action.
Accordingly, Kelly submitted a letter of resignation on March 21,
2007, with an effective date of April 5, 2007. But, she sought
to withdraw her resignation by e-mail dated March 26, 2007. Omni
refused to accept the withdrawal, and Kelly's employment was
terminated on April 5, 2007.
3 Kelly's book was scheduled for release on May 18, 2007. On
April 10, 2007, however, Omni sent MML a cease and desist letter,
claiming the copyright was owned by Omni and that the book
contained confidential and proprietary information. That letter
caused MML to suspend publication of the book until the ownership
issues could be resolved. On May 21, 2007, Kelly filed an
application for and was granted copyright pre-registration.
Kelly filed suit in this court on May 23, 2007, asserting
claims of copyright infringement (Count I), unfair business
practices (Count II), intentional interference with contractual
relations (Count IV), breach of contract (Count VI), conversion
(Count VII), wrongful discharge (Count VIII), and constructive
discharge (Count IX) against Omni, as well as intentional
interference with contractual relations (Count V) against
Mendoza. Kelly also seeks a declaratory judgment that she is the
sole owner of the copyright in her book (Count III).
Discussion
Mendoza moves to dismiss the claim against him, arguing that
this court lacks personal jurisdiction. See F e d . R. C i v . P.
12(b)(2). Omni moves to dismiss on grounds that Kelly has failed
to state a viable copyright infringement claim, see F e d . R. C i v .
4 P. 12(b)(6), and that absent the federal copyright claim, this
court lacks subject matter jurisdiction over the remaining
claims.1 See F e d . R. C i v . P. 12(b)(1). Omni also moves to
dismiss on grounds that venue in this district is improper. See
28 U.S.C. § 1406(a); F ed . R . Civ. P . 12(b)(3). Alternatively, Omni
seeks transfer of the case to the Central District of California.
Because venue is not proper, and because improper venue is
dispositive, the court declines to reach defendants' other
grounds.
I. Improper Venue
The applicable federal venue statute provides, in pertinent
part:
A civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same state, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the
1 Omni also argues that Kelly's request for declaratory judgment does not raise a federal issue and therefore is not a sufficient basis upon which to exercise federal jurisdiction. See Roval v. Leading Edge Prods.. Inc.. 833 F.2d 1, 5 ("[i]n order to gain access to a federal forum, a litigant must allege particulars which raise some substantial federal issue").
5 action is situated, or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought.
28 U.S.C. § 1391(b). In addition, /y[t]he district court of a
district in which is filed a case laying venue in the wrong
division or district shall dismiss, or if it be in the interest
of justice, transfer such case to any district or division in
which it could have been brought." 28 U.S.C. § 1406(a). When a
defendant challenges venue, the burden falls on the plaintiff to
demonstrate that venue is proper. See Ferrofluidics Corp. v.
Advanced Vacuum Components. Inc.. 78 9 F. Supp. 1201, 1206 (D.N.H.
1992) (citing Lex Computer & M q m t . Corp. v. Eslinqer & Pelton,
P.C., 676 F. Supp. 399, 406 (D.N.H. 1987)).
Omni is a resident of California. See Compl. (document no.
1) 5 2; Compl., Ex. 2 (recitals in Agreement noting that Omni is
a California corporation). Thus, venue in the District of New
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Kelly v. Omni Lingual Services, et al 07-CV-157-SM 09/06/07 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Nataly Kelly, Plaintiff
v. Civil No. 0 7-cv-15 7-SM Opinion No. 2007 DNH 108 Omni Lingual Services, Inc d/b/a NetworkOmni, and Manuel Mendoza, Defendants
O R D E R
Nataly Kelly brings suit against Omni Lingual Services,
Inc., doing business as NetworkOmni ("Omni" or "the Company") and
Omni's Executive Vice President, Manual Mendoza. Kelly asserts
claims of copyright infringement and a host of related state law
claims. Kelly also seeks a declaratory judgment. Omni moves to
dismiss (document no. 17), arguing that Kelly has failed to
allege facts that, if true, would support a claim of copyright
infringement, and that this court lacks subject matter
jurisdiction. Mendoza separately moves to dismiss (document no.
18), arguing that this court lacks personal jurisdiction over
him. Kelly objects. Background
The facts, taken from the pleadings and construed in the
light most favorable to Kelly are as follows.
Kelly is a widely-known scholar in the field of
sociolinguistic research. In 2004 she began working with Omni as
a consultant from her residence in Nashua, New Hampshire. At the
time she began working for Omni, she advised the Company that she
was writing a book entitled Telephone Interpreting: A
Comprehensive Guide to the Profession ("the book"), on her own
time, and without any involvement of Omni or Omni's staff. Kelly
is the sole author of the book. By February of 2005, Kelly was
engaged in negotiations with Multilingual Matters, Ltd. ("MML"),
to publish and distribute her book.
In May of 2005, Kelly was hired by Omni as a full-time
employee to work as a Senior Product Development Manager. She
gave Omni assurances that her writing pursuits would not
interfere with her job responsibilities. Kelly continued to work
from her home in Nashua, New Hampshire. Kelly also signed an
Employee Confidentiality & Inventions Agreement which provided
that Omni would be the owner of any "works of authorship,
inventions, discoveries, developments, improvements, designs,
2 ideas, innovations, inventions, formulas, processes, techniques,
know-how, and data" that she might develop during the course of
her employment. See Compl. (document no. 1), Ex. 2 5 6.
Kelly completed her book in October of 2006 and, as a
courtesy, sent a copy of the completed manuscript to Omni's Chief
Executive Officer, George Ulmer. Kelly also offered to feature
Omni on the cover of the book alongside a photograph of one of
the company's telephone interpreters.
Later in 2006, Kelly complained to Omni's human resources
department about allegedly inappropriate and discriminatory
conduct by Mendoza and other Company employees. Shortly
thereafter, Mendoza began to claim that Omni owned the copyright
in Kelly's book. Despite Kelly's continued discrimination
complaints, the Company did not take corrective action.
Accordingly, Kelly submitted a letter of resignation on March 21,
2007, with an effective date of April 5, 2007. But, she sought
to withdraw her resignation by e-mail dated March 26, 2007. Omni
refused to accept the withdrawal, and Kelly's employment was
terminated on April 5, 2007.
3 Kelly's book was scheduled for release on May 18, 2007. On
April 10, 2007, however, Omni sent MML a cease and desist letter,
claiming the copyright was owned by Omni and that the book
contained confidential and proprietary information. That letter
caused MML to suspend publication of the book until the ownership
issues could be resolved. On May 21, 2007, Kelly filed an
application for and was granted copyright pre-registration.
Kelly filed suit in this court on May 23, 2007, asserting
claims of copyright infringement (Count I), unfair business
practices (Count II), intentional interference with contractual
relations (Count IV), breach of contract (Count VI), conversion
(Count VII), wrongful discharge (Count VIII), and constructive
discharge (Count IX) against Omni, as well as intentional
interference with contractual relations (Count V) against
Mendoza. Kelly also seeks a declaratory judgment that she is the
sole owner of the copyright in her book (Count III).
Discussion
Mendoza moves to dismiss the claim against him, arguing that
this court lacks personal jurisdiction. See F e d . R. C i v . P.
12(b)(2). Omni moves to dismiss on grounds that Kelly has failed
to state a viable copyright infringement claim, see F e d . R. C i v .
4 P. 12(b)(6), and that absent the federal copyright claim, this
court lacks subject matter jurisdiction over the remaining
claims.1 See F e d . R. C i v . P. 12(b)(1). Omni also moves to
dismiss on grounds that venue in this district is improper. See
28 U.S.C. § 1406(a); F ed . R . Civ. P . 12(b)(3). Alternatively, Omni
seeks transfer of the case to the Central District of California.
Because venue is not proper, and because improper venue is
dispositive, the court declines to reach defendants' other
grounds.
I. Improper Venue
The applicable federal venue statute provides, in pertinent
part:
A civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same state, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the
1 Omni also argues that Kelly's request for declaratory judgment does not raise a federal issue and therefore is not a sufficient basis upon which to exercise federal jurisdiction. See Roval v. Leading Edge Prods.. Inc.. 833 F.2d 1, 5 ("[i]n order to gain access to a federal forum, a litigant must allege particulars which raise some substantial federal issue").
5 action is situated, or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought.
28 U.S.C. § 1391(b). In addition, /y[t]he district court of a
district in which is filed a case laying venue in the wrong
division or district shall dismiss, or if it be in the interest
of justice, transfer such case to any district or division in
which it could have been brought." 28 U.S.C. § 1406(a). When a
defendant challenges venue, the burden falls on the plaintiff to
demonstrate that venue is proper. See Ferrofluidics Corp. v.
Advanced Vacuum Components. Inc.. 78 9 F. Supp. 1201, 1206 (D.N.H.
1992) (citing Lex Computer & M q m t . Corp. v. Eslinqer & Pelton,
P.C., 676 F. Supp. 399, 406 (D.N.H. 1987)).
Omni is a resident of California. See Compl. (document no.
1) 5 2; Compl., Ex. 2 (recitals in Agreement noting that Omni is
a California corporation). Thus, venue in the District of New
Hampshire may not be grounded on 28 U.S.C. § 1391(b)(1) which
points, instead, toward the Central District of California. In
considering where "a substantial part of the events or omissions
giving rise to the claim occurred," see i d . at § 1391(b)(2), the
court looks "not to a single ■'triggering event' prompting the
action, but to the entire sequence of events underlying the
6 claim." Uffner v. La Reunion Francaise. S.A.. 244 F.3d 38, 42
(1st Cir. 2001). In this case, virtually all of the conduct
giving rise to Kelly's claims occurred in California. Omni acted
in California, its letter asserting copyright ownership
originated in California, the alleged discrimination occurred in
California, and the decision not to accept Kelly's withdrawal of
her resignation, which Kelly alleges amounts to wrongful
termination of her employment, also originated in California.
Thus, venue in New Hampshire is not properly grounded on
28 U.S.C. § 1391(b)(2), which also points toward the Central
District of California. And, because venue in the Central
District of California is proper under both §§ 1391(b)(1) and
1391(b)(2), venue in the District of New Hampshire may not be
grounded on 28 U.S.C. § 1391(b)(3).
Conclusion
Because venue is not proper in the District of New
Hampshire, but does lie in the Central District of California,
the case shall be transferred there. Omni's motion (document no.
17) is, therefore, granted to the extent it moves the court to
transfer this case to the Central District of California. In all
other respects, it is denied, without prejudice to refiling.
Mendoza's motion to dismiss for lack of personal jurisdiction
7 (document no. 18) is denied as moot. The Clerk of Court shall
transfer this case to the Central District of California.
SO ORDERED.
St^even J./McAuliffe Chief Judge
September 6, 2007
cc: Lauren S. Irwin, Esq. Pamela A. Smith, Esq. Jeffrey S. Brody, Esq. Matthew A. Porter, Esq.