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October 5, 1987

National Enquirer, Inc., Plaintiff,
News Group News, Ltd., Defendant

The opinion of the court was delivered by: ARONOVITZ


 In a six count complaint, the plaintiff, National Enquirer, Inc. ("Enquirer") has brought this action against News Group Newspapers, Ltd. ("News Group"), the defendant, essentially alleging the wrongful appropriation and use of photographic pictures of the wedding of actress Joan Collins and Peter Holm. Specifically, the Enquirer charges News Group with copyright infringement, unfair trade practices and unfair competition, conversion, intentional interference with business relationships, unjust enrichment, and breach of contract.

 Collins and Holm were married on November 6, 1985 in a private ceremony in Las Vegas, Nevada. News Group published four black and white photos of the wedding in the November 10, 1985 edition of its British publication, News of the World. The Enquirer claims that this publication of the pictures was unauthorized and in contravention to its exclusive rights in the pictures. News Group argues that it had negotiated a valid contract with the Enquirer for the British publication rights of the wedding pictures.

 News Group has moved to dismiss under Fed. R. Civ. P. 12(b)(1)-(2) for lack of subject matter jurisdiction over the copyright claim, and lack of personal jurisdiction over News Group. The Court will address the personal jurisdiction issue first.


 Before beginning to state the facts material to the issue of whether the Court has personal jurisdiction over News Group, it is necessary to establish the appropriate standard for determining disputed facts. Ordinarily, the Court would restrict its inquiry to whether the plaintiff's complaint alleges adequate facts to support personal jurisdiction over a foreign defendant. In this case, the plaintiff's complaint is undeniably meager in alleging a factual basis for jurisdiction over News Group. But the Enquirer chose to supplement its complaint with affidavits and deposition evidence, and News Group responded with similar evidentiary support.

 News Group suggests that the posture of this case requires the Enquirer to prove the facts establishing in personam jurisdiction by a preponderance of the evidence. It reasons that as both parties have extensively supplemented the pleadings with affidavit and deposition evidence, the Court must resolve factual disputes against plaintiff's obligation to demonstrate jurisdiction by the preponderance of the evidence.

 News Group cites Evans v. Tubbe, 657 F.2d 661, 663 (5th Cir. 1981), as holding that where the parties have mounted a factual attack at the jurisdictional issue, as opposed merely to relying upon the pleadings, "the plaintiffs have the burden of proving that federal jurisdiction does in fact exist." The Evans court stated that "when a factual attack is made upon federal jurisdiction, no presumptive truthfulness attaches to the plaintiffs' jurisdictional allegations, and the court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case." Id.

 News Group's reliance upon Evans is misplaced. The dispute in Evans was over subject matter jurisdiction, not personal jurisdiction. Though News Group has moved to dismiss the Enquirer's copyright claims for lack of subject matter jurisdiction, the parties have no dispute as to the facts germane to subject matter jurisdiction. Furthermore, the Evans court continued its discussion of this issue by noting that even under a factual attack, the test for dismissal is a rigorous one. In fact, the Evans court reversed the district court's dismissal for lack of subject matter jurisdiction.

 But News Group overlooks a most critical issue in this regard: neither party has requested the Court to hold an evidentiary hearing on these factual disputes. Consequently, the parties, including News Group, apparently are content to rely solely upon already submitted evidence. As the Court has not held an evidentiary hearing on personal jurisdiction, the correct process for establishing jurisdictional facts for purposes of a motion to dismiss is well-established. Initially, the court accepts as true plaintiff's uncontroverted allegations of the complaint and uncontested deposition and affidavit evidence. Bracewell v. Nicholson Air Services, Inc., 748 F.2d 1499, 1504 (11th Cir. 1984). If these facts establish a prima facie case of jurisdiction, a motion to dismiss on that basis must, of course, be denied. Because the defendant had not controverted the plaintiff's jurisdictional allegations in Bracewell, the court had no cause to evaluate further the correct assignment of burdens.

 Where a plaintiff's allegations in the complaint are controverted by evidence from a defendant, the plaintiff has the burden to produce evidence substantiating his allegations. But in the absence of an evidentiary hearing, if a plaintiff's uncontroverted and substantiated allegations and evidence support a prima facie case of jurisdiction, then a plaintiff is not required to prove jurisdiction by a preponderance of the evidence. Data Disc, Inc. v. Systems Tech. Assoc., Inc., 557 F.2d 1280, 1285 (9th Cir. 1977).

 This approach to establishing jurisdictional facts has the effect of resolving contested facts in plaintiff's favor. Brown v. Flowers Industries, Inc., 688 F.2d 328, 332 (5th Cir. 1982). Without holding an evidentiary hearing, the court must give full credit to plaintiff's jurisdictional factual allegations and evidence, unless the plaintiff has failed to buttress its allegations in the complaint with affidavits or discovery material after the defendant has pierced the pleadings.


 The Court finds the following facts solely for purposes of this motion to dismiss and based upon the Enquirer's obligation merely to present a prima facie case of jurisdictional facts. On November 7, 1985, News Group's editor, Stuart Kuttner, telephoned the Enquirer's Florida office from London, England to inquire about the Collins wedding photographs. The Enquirer informed Kuttner that it was interested in internationally syndicating the photographs after it formally acquired the rights to them. On November 8, 1985, Kuttner then phoned the Enquirer's London representative, Michael Vohmann, to ask about the wedding pictures. Vohmann told Kuttner that he had no knowledge of the Collins photos, but said that he would get back to Kuttner after speaking with the Enquirer's head office in Florida and expressing Kuttner's interest in the pictures. During this initial conversation, Kuttner told Vohmann that News Group had already telexed the Enquirer in Florida to express its interest in the wedding pictures.

 News Group disputes that it telexed Florida before contacting Vohmann in London. Instead, News Group argues that it telexed Florida only after Vohmann informed the defendant that Florida would directly handle negotiations over the Collins photographs. Additionally, News Group says that it contacted Vohmann in London only after being told in its November 7, 1985 phone call to the Enquirer in Florida that London would handle negotiations. The November 8, 1985 telex stated that its purpose was "to urgently confirm interest of News of the World Sunday Magazine in acquiring exclusive British rights to Joan Collins wedding pix . . . ." News Group would thus have London as the preliminary site of negotiations which was only switched to Florida after the Enquirer so directed.

 News Groups' expression of interest could hardly have come as a surprise to the Enquirer. The Enquirer was actively seeking to syndicate the rights to publish the Collins photos to newspapers and periodicals around the world. Valerie Virga of the Enquirer was given the job of syndicating the United Kingdom rights to the photos. These rights were of particular interest to the Enquirer as it expected the United Kingdom to be the largest international market, due to the popularity there of Collins' television show, and to her English birth. In fact, the Enquirer told Vohmann to solicit bids for the photos in all of Europe except the U.K., as Virga would handle the U.K. exclusively. Virga saw the News Group telegram of November 8, 1985 before having any contact with the defendant concerning the Collins photographs.

 For purposes of this motion to dismiss, the Enquirer has corroborated sufficiently its allegation that substantive negotiations over the Collins pictures never took place in London. When Kuttner of News Group first contacted the Enquirer's Vohmann in London, Vohmann was unfamiliar with the Collins pictures. News Group's telex to Florida stated that Kuttner had already "made contact" with Vohmann, but Vohmann described this contact as merely a message left with his wife while Vohmann was out of the house.

 After contacting the Enquirer to learn the status of the Collins pictures, Vohmann called Kuttner back to tell him to deal directly with the Enquirer in Florida. But Kuttner had already telexed the Enquirer's Florida office, according to Vohmann. Vohmann had no further contact with News Group in connection with this matter. As News Group had already contacted Florida twice before Vohmann spoke with Kuttner, and Vohmann had no authority to negotiate the sale of the Collins wedding pictures, substantive negotiations did not begin in London and subsequently switch to Florida. Instead, Florida was the only place Enquirer representatives negotiated for sale of the pictures.

 Though both parties certainly had the same inclination to direct discussions towards Florida, News Group took the lead by calling the Enquirer there on November 7, 1985, and telexing the very next day to express its urgent interest in the Collins photographs. The parties exchanged numerous communications on November 8, 1985, culminating in a simultaneous exchange of telexes on that day which was to be the agreement between the parties over British publication rights to the pictures. The ...

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