Fahey v. Breakthrough Films & Television Inc.

Full title: SEAN P. FAHEY and DIETERICH GRAY, Plaintiffs, v. BREAKTHROUGH FILMS …

Court: United States District Court, S.D. New York

Date published: Jul 7, 2022

Civil Action 21 Civ. 3208 (PAE) (SLC) (S.D.N.Y. Jul. 7, 2022)

Opinion

Civil Action 21 Civ. 3208 (PAE) (SLC)

07-07-2022

SEAN P. FAHEY and DIETERICH GRAY, Plaintiffs, v. BREAKTHROUGH FILMS & TELEVISION INC., BREAKTHROUGH ENTERTAINMENT, IRA LEVY, and LAUREN LEINBURD, Defendants.

SARAH L. CAVE, UNITED STATES MAGISTRATE JUDGE.

REPORT AND RECOMMENDATION

SARAH L. CAVE, UNITED STATES MAGISTRATE JUDGE.

HONORABLE PAUL A. ENGELMAYER, United States District Judge:

I. INTRODUCTION

Sean Fahey (“Fahey”) and Dieterich Gray (“Gray”) (together, “Plaintiffs”), proceeding pro se, bring this copyright and defamation action against Breakthrough Films & Television Inc. (“BFTV”), Breakthrough Entertainment (“BE,” together with BFTV, “Breakthrough”), Ira Levy (“Levy”), and Lauren Leinburd (“Leinburd”) (Breakthrough, Levy, and Leinburd, “Defendants”). (ECF No. 1). Defendants have moved to dismiss Plaintiffs' First Amended Complaint (ECF No. 28 (the “FAC”)) under Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction or, in the alternative, under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. (ECF No. 31 (the “Motion”)).

In opposing the Motion, Plaintiffs have requested that, if personal jurisdiction is lacking, the Court (i) permit jurisdictional discovery (the “Jurisdictional Discovery Request”) or, in the alternative, (ii) transfer this case to the United State District Court for the Southern District of California (the “Transfer Request”). (ECF No. 43 at 9-11; see ECF No. 36 at 6 ¶ 5, 10 ¶ 25).

For the reasons set forth below, I respectfully recommend that the Motion be GRANTED, that Plaintiffs' Jurisdictional Discovery and Transfer Requests be DENIED, and that the action be DISMISSED.

II. BACKGROUND

A. Factual Background

The Court summarizes the factual allegations in the FAC (ECF No. 28), which the Court accepts as true for purposes of the Motion. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002); Lee v. Karaoke City, No. 18 Civ. 3895 (PAE) (SDA), 2020 WL 5105176, at *3 (S.D.N.Y. Aug. 31, 2020).

1. The Parties

Plaintiffs are television writers and owners of the copyrights for “A Life Worth Living” and “Life is Worth Living,” which are “television script[s]/screenplays and [a] series pitch” for “a multiepisode historical dramatic TV series” (the “Series”) that “takes place in the 1950s” and centers on “the most popular man on television” at that time, Bishop Fulton J. Sheen (“Sheen”). (ECF No. 28 ¶¶ 7, 17).¹ Fahey is a citizen of Minnesota. (ECF No. 1 ¶ 2). Gray is a citizen of California. (Id. at 10).

1 Plaintiffs filed the FAC and its nearly 500 pages of exhibits as a single document at ECF No. 28. Because the FAC is organized by paragraph and the exhibits are not, the Court notes that citations to ECF No. 28 followed by “¶ ” refer to the paragraphs of the FAC, and citations to ECF No. 28 followed by “at ” refer to the ECF-assigned page numbers of the exhibits.

BE, which owns BFTV, “is a producer and distributor of feature films, television series, and digital content, as well as international co-productions and production services[.]” (ECF No. 28 ¶ 9). Both BE and BFTV are “incorporated under the laws of Canada and maintain[] [their] principal place of business at 35 Britain Street” in Toronto, Ontario, Canada. (Id. ¶¶ 8-9). Levy is a “Partner and Executive Producer” at BE. (Id. ¶ 10; see ECF No. 33 ¶ 1). Leinburd is the Vice President and General Counsel of BE. (ECF No. 28 ¶ 11; see id. at 58; ECF Nos. 33 ¶ 6). At all times relevant to this action, Levy and Leinburd resided in Canada and worked out of Breakthrough's headquarters in Toronto. (ECF Nos. 1 at 4; 33 ¶¶ 5-6).

2. The Series

“Over the last 10 years, [Plaintiffs] have studied Sheen's life [and] teachings, [] become experts in Catholic history in the 1950s, 60s, and 70s[,]” and developed the Series. (ECF No. 28 ¶ 19; see id. ¶ 7). “Long before [P]laintiffs began working in television, they were both altar boys in rural Illinois, where both of their dads were ordained as Deacons in the Catholic Church, and their grandparents, mothers, aunts and uncles were and are prominent figures in the Peoria Diocese.” (Id. ¶ 20). “Before he began working in television, Sheen too was an altar boy from the Peoria Diocese whose family was a prominent fixture in the Church.” (Id.) Plaintiffs “have close relationships with Sheen's living relative, his 90 year old niece, Joan Cunningham, who is featured in their [S]eries.” (Id.)

Plaintiffs summarize the plot of the Series as follows: “When the most popular man on television, Bishop Fulton Sheen, goes up against the most powerful man in New York, Cardinal Francis Spellman, their bitter feud reveals the greatest untold story of the 20^th century.” (ECF No. 28 ¶ 17). The Series is:

[s]et against the backdrop of the Cold War, the cultural revolution, and the war in Vietnam, at a moment in time when faith hung in the balance, where through the advent of television one man - Bishop Fulton J. Sheen - was able to elevate into the highest trappings of fame and inspire our nation. Meanwhile - Cardinal Francis Spellman - and his ambition as a titan of industry, sought to build a global Catholic empire. Their rivalry goes all the way to the Pope and we learn their influence and the influence of Catholic power changes our world as we know it [sic].

(Id. ¶ 18). The Series is “about faith and power in the mid century and how it impacted the world[[,]”and “the pitfalls of fame and vanity, of political influence and ambition, and what it means to adhere to a higher calling.” (Id.)

In June 2014, having developed a “pitch deck,” Plaintiffs began “to discuss potential producing partners” for the Series. (ECF No 28 ¶ 22). On July 6, 2014, Plaintiffs “finalized the first 22 pages of the first draft pilot episode” for the Series. (Id. ¶ 26). In August 2014, Plaintiffs “finished an updated version of the [Series] pilot.” (Id. ¶ 30).

In December 2014, “Fahey attended an event, seeking to pitch the [Series] to potential producing partners[,] . . . and exchanged contact information with potential producing partners,” one of which was Ramon Estevez (“Estevez”). (ECF No. 28 ¶ 31). On January 13, 2015, Fahey sent Estevez “an information package summarizing the two part mini-series” and “a solid first draft of episode 1[.]” (ECF 28 at 75). In this email, Fahey also described the “power dynamic between Sheen and Spellman” (id. ¶ 28), and his efforts to “mold Cardinal Spellman's story into Sheen's journey.” (Id. at 75). Fahey wrote:

[Spellman] was known as the Pope of the West, the Military Vicar, and was a force to recon [sic] with. I see Spellman and Sheen's conflict as one between the most powerful man in the Catholic Church and the most popular. There [sic] rift was inevitable and something that Sheen seldom discussed. There [sic] story parallels that of Beethoven and Salieri. Sheen being one of the greatest public speakers of our time and Spellman being the behind the scenes political force of the Catholic church. Spellman lacked the gravitas to move people the way Sheen did. Also I believe that Sheen was driven by his vocation and Spellman was driven by the

need to grow the church - a highly politically motivated power player. While both there [sic] efforts did amazing things for the Catholic church, Sheen's passion came from within and Spellmans [sic] from without. Sheen was called and was plucked from above while Spellman aggressively pushed from below to get to his position of power.

(Id.)

On January 21, 2015, Fahey emailed Estevez “regarding a planned trip to Los Angeles and requested an in-person meeting.” (ECF No. 28 ¶ 33). On January 22, 2015, “Estevez emailed Fahey stating his interest in the project” and asked Fahey to contact him when in Los Angeles. (Id. ¶ 34; see id. at 439). On February 15, 2015, Fahey emailed Estevez regarding their “wonderful lunch meeting[,]” and attached “the latest versions of the information package” and the first episode for the Series. (Id. at 81; see id. ¶ 35). On November 13, 2015, Fahey sent Estevez, inter alia, “a full proposal” and a “full script for episode one[.]” (Id. at 86; see id. ¶ 37).

On February 12, 2016, Plaintiffs applied to the U.S. Copyright Office to register the copyright for “A Life Worth Living,” whose year of completion they listed as 2015. (ECF No. 28 at 44).

3. The Pitch Option Agreement

“Estevez introduced BFTV to the [Series], and in the spring of 2016, BFTV and [P]laintiffs through [Estevez], began negotiating the terms of a one-year pitch option agreement.” (ECF No. 28 ¶ 40). Plaintiffs retained New York attorney Joshua Sandler (“Sandler”) to represent them in the negotiations. (Id. ¶ 57; see id. at 454; ECF No. 43 at 14 ¶¶ 2, 5).

During the negotiations, BFTV introduced Plaintiffs to Angus Fraser (“Fraser”), a writer and producer whom Breakthrough commissioned to “rewrite” the pilot episode for the Series. (ECF No. 28 ¶¶ 41, 52; id. at 447). Between May and June 2016, Plaintiffs provided Fraser with information about Sheen and “many of the character building elements, specifically related to the relationship between Sheen and Spellman[.]” (Id. ¶ 47; see id. ¶¶ 42-51). “On June 6, 2016, Plaintiffs met with Fraser in Los Angeles to talk though the story and shape the direction for the rewrite of the pilot episode, where Plaintiffs provided as much historical knowledge, direction, and materials to Fraser as possible to get him started on the rewrite.” (Id. ¶ 52). On June 22, 2016, Fahey sent Fraser a “detailed story points, plot points, deep character descriptions and scene descriptions that Plaintiffs pulled from years of research and planning on their project[.]” (Id. ¶ 56). Among other ideas, Fahey shared the following “[interesting character points[:]”

Sheen is venerated because he proved himself worthy. Spellman is not for a reason. Both men are called to vocation but each has a different way of addressing their calling. We know Sheen is vain but we also know he's incredibly dedicated, pious, deeply, concerned with care of the soul, [and] plagued by a want to do more with his vocation. We know Spellman is cunning, powerful, greedy, [and] power hungry. We can assume that his papal aspirations are modus operandi for every pawn he moves on the chess board: [John F.] Kennedy, [Ngo Dinh] Diem, [J. Edgar] Hoover, [the] Dulles Bros, [Roy] Cohn, [Eugenio Maria Giuseppe Giovanni] Pacelli (Pius XII), Sheen, and others.

(Id. at 121).

On July 26, 2016, Nghia D. Nguyen, BE's Vice President and General Counsel at the time, sent Sandler a revised draft of a proposed pitch option agreement along with the following message:

After looking at the initial agreement we sent to you, and speaking with the producers here, we realized we sent you an agreement that is less suited for the project. The pitch option we sent you would only be relevant if we were actually pitching the script that [Plaintiffs] put together. Instead, since Angus Fraser, the writer/producer that the guys met with in LA, is looking to revamp and rework the idea, we realized that a different form of rights agreement would be more appropriate for the project.

To that end, please find attached a rights agreement with Sean and Dieterich for the property. Quite a few concepts are still nebulous (amount of compensation,

percentage of net profits, etc.), but the basic concepts are still there: the fact that we want the guys to be involved throughout production and that we want to make sure they are properly compensated for their contributions to the project.

(ECF No. 28 at 447).

On September 1, 2016, Plaintiffs and BFTV entered into an “Exclusive Pitch Option” agreement (the “Pitch Option Agreement”) for the Series. (ECF No. 28 ¶ 64; see id. at 48-50).

Under the Pitch Option Agreement, “[i]n consideration of the sum of One Canadian Dollar (CDN $1.00),” Plaintiffs unconditionally granted to BFTV the “exclusive right to pitch to broadcasters and financiers worldwide, a television mini-series created by [Plaintiffs] (the ‘Work') tentatively entitled ‘A Life Worth Living' aka Bishop Sheen Project (the ‘Project')[,]” for a twelve-month period starting on September 1, 2016. (ECF No. 28 at 48). The Pitch Option Agreement provided:

The parties also agree that BFTV, with the mutual agreement of the [Plaintiffs], such agreement not to be unreasonably withheld, shall have the right to change the creative materials, if any, for the Project, if BFTV feels, using their business and creative expertise, that it would assist in the development and/or licensing of the Project by a broadcaster. BFTV agrees and acknowledges that [Plaintiffs have] written an original screenplay entitled “A Life Worth Living” (the “Script”), which may assist BFTV in its development of the Project.

(Id.) The Pitch Option Agreement further provided:

All rights to the Project, including all rights to the Work and the Script, shall remain with or automatically revert to [Plaintiffs] at end of Pitch Period or Option Extension period, unless the Long-Form Agreement and a Development Agreement have been executed. IF BFTV pays out of its own pocket for development materials or other creative materials (such as scripts or other written materials) for the Project during the Pitch Period or Option Extension period (the “Development Materials”), the parties agree that, upon reversion, they shall negotiate in good faith, on [Plaintiffs'] election, with respect to the possible acquisition by [Plaintiffs] of the Development Materials from BFTV, it being understood and agreed that [Plaintiffs] shall have no obligation to acquire such materials from BFTV and may proceed with the Work, the Script and the Project without such materials, without any further obligation to BFTV or any affiliate of BFTV, and neither BFTV nor any such affiliate shall make any claim with respect thereto.

(Id. at 49). The Pitch Option Agreement included a choice-of-law clause providing that it “shall be governed and construed in accordance with the laws of the County of Los Angeles, the State of California and the laws of the United States applicable therein.” (Id. at 50).

4. The Fraser Materials

Between September 2016 and March 2017, Fraser worked on his rewrite of Plaintiffs' Series. (ECF No. 28 ¶¶ 67-98). During that time, Plaintiffs contributed their research and provided Fraser with “creative treatment[s]” and “character and story arc information” that were incorporated into his rewrite. (See e.g., id. ¶¶ 67, 70, 74, 83, 84, 91).

“On March 12, 2017, Fraser sent [P]laintiffs the first draft of his 16-page rewrite outline” (the “Outline”). (ECF No. 28 ¶ 99). Plaintiffs allege that the Outline is “derivative of all materials sent by Plaintiffs” to Fraser. (Id.) Over the next two days, Plaintiffs sent Fraser “detailed notes” that they wanted him to address before sending the Outline to BFTV, but contend that he failed to do so. (Id. ¶¶ 99-101, 106, 108).

On June 22, 2017, Fraser sent Plaintiffs “the first draft pilot rewrite” (the “Pilot,” together with the Outline, the “Fraser Materials”). (ECF No. 28 ¶ 112). “Between June 22 and June 28, 2017,” Plaintiffs sent Fraser “detailed notes” regarding additional “elements [that] Plaintiffs were seeking to add to the [P]ilot[.]” (Id. ¶ 113).

On August 8, 2017, Yenae Tesfai, BE's Manager of Development and Production, emailed Plaintiffs, reminding them that the Pitch Option Agreement was set to expire on September 1, 2017, and attaching an agreement to extend the Pitch Option Agreement by another six months, until February 29, 2018. (ECF No. 28 at 435; see id. at 52).

On August 11, 2017, Gray sent Fraser “a comprehensive list of well organized notes for a 2nd draft of the [P]ilot[,]” which Plaintiffs wanted to see before it went to the networks. (ECF No. 28 ¶ 114). On August 18 and August 20, 2017, Fahey emailed Sandler regarding Plaintiffs' “[Pitch] Option Agreement deadline and deal concerns[.]” (Id. ¶ 115; see id. at 24750). “On August 26, 2017, Plaintiffs emailed [Levy, Lambur, and Estevez] regarding the pitch option extension and script revision notes that Plaintiffs wanted to see before [agreeing to] the extension[.]” (Id. ¶ 117).

On August 29, 2017, Sandler informed Leinburd that Plaintiffs “would agree to a three week extension to allow Fraser to complete the most recent draft of the script prior to discussing an extension beyond that.” (ECF No. 28 ¶ 122).

5. The Pitch Option Agreement Expires

On August 29, 2017, Leinburd informed Sandler and Plaintiffs that, Levy, Lambur, and Estevez had “decided to let the option lapse.” (ECF No. 28 at 437). Leinburd stated “that the script that we commission will remain our property.” (Id.)

On December 12, 2017, BFTV, through counsel, sent Sandler a letter regarding the “Expiration of the Pitch Option [Agreement] for ‘A Life Worth Living'” (the “December 2017 Letter). (ECF No. 28 at 54-55; see id. ¶ 164; ECF No. 43 at 38-39). In the December 2017 Letter, BFTV's counsel wrote:

Pursuant to the [Pitch] Option Agreement[,] [Plaintiffs] granted BFTV the exclusive right to pitch the Project to broadcasters and financiers (the “Pitch Option”) for a period of twelve (12) months (the “Pitch Period”). In the [Pitch] Option Agreement, the terms, “Work” and “Project” are both defined to mean “a television mini-series created by [Plaintiffs] . . . tentatively entitled “A Life Worth Living' . . . “ although this was in fact a proposed television mini-series based upon the Script created by [Plaintiffs]. In the end, the [Pitch] Option Agreement proved to be moot as BFTV ultimately determined not to actually pitch the Script but

rather it commissioned a new original screenplay by Angus Fraser (the “Fraser Script”) regarding the Bishop Sheen story.

As you know, the Pitch Period expired on September 1, 2017 without the parties entering into either a “Long-Form Agreement” or a “Development Agreement” (ie, as such terms are defined in paragraph 3 of the [Pitch] Option Agreement) prior to expiration. Therefore, pursuant to paragraph 5 of the [Pitch] Option Agreement, all rights in and to the Script are exclusively retained by your clients and they are free to pursue the Project without BFTV's participation. Conversely, as Bishop Sheen was a famous Catholic theologian and widely recognized public figure, BFTV is also free to pursue its own separate Bishop Sheen project based upon the Fraser Screenplay.

(ECF No. 28 at 54-55). BFTV acknowledged that Plaintiffs “provided various comments and notes, from time to time, on the [Pilot]” and, “[n]otwithstanding that it had no obligation to do so pursuant to the [Pitch] Option Agreement,” BFTV offered “to discuss in good faith fairly compensating [Plaintiffs] for such contributions provided that they and BFTV execute a mutual release which acknowledges that each party may pursue its own separate project regarding Bishop Sheen.” (Id. at 55). The December 2017 Letter concluded:

If your clients are amenable to the foregoing, please let me know and we can discuss the proposed compensation and form of the mutual release. Otherwise, please be advised that BFTV expressly reserves the right to proceed with its own separate project regarding Bishop Sheen based on the Fraser Screenplay or otherwise which, of course, will make no use of the Script created by your clients.

(Id.)

6. The February 2020 Article and the February 2020 Letter

In September 2019, the Sheen Center for Thought and Culture in New York City invited Plaintiffs to appear as artists in residence from March 15, 2020 through May 24, 2020. (ECF No. 28 ¶¶ 4, 125). “During that time in New York City[,] Plaintiffs had intended to do further writing and research for the Sheen Series, and begin engaging A-list talent for lead characters with a completed and refined pilot episode.” (Id. ¶ 4).

On February 4, 2020, in response to an article titled “Fahey, Gray take Archbishop Sheen TV series to market” (the “February 2020 Article”), (ECF No. 28 ¶ 168; see id. at 490), a reader commented, “These guys are nine months too late. There's a Canadian company developing this exact story at Netflix.” (Id. ¶ 169; see id. at 494).

On February 26, 2020, Leinburd, now BE's Vice President and General Counsel, sent a letter to the Sheen Center with the subject line “The Bishop Sheen Project” (the “February 2020 Letter”). (ECF No. 28 ¶ 26; see id. at 57-58). In the February 2020 Letter, Leinburd wrote:

It has recently come to our attention that [Plaintiffs] were appointed as fellows in your Catholic Artist Residency Program. We also understand that as artists in residence, they will be conducting research and writing on their series about [Sheen].

We are writing this letter to make you aware that [BFTV] optioned the right to pitch the television mini-series previously titled “A Life Worth Living”, also known as the “Bishop Sheen Project” (together, the “Project”) on September 1, 2016. During the pitch option period, [BFTV] hired screenwriter [Fraser] to write a pilot script (the “Fraser Script”) and a concept story arc document. The materials prepared by Fraser were shared with Fahey and Gray during the pitch option period but ultimately both parties decided not to extend the option after it expired on August 31, 2017. A formal letter was sent directly to Fahey and Gray's attorney, [Sandler], on December 12, 2017, detailing the relationship and work done to date and reiterating that the Fraser Scripts and its contents remains the property of [BFTV]. Despite our attempts to inform Fahey and Gray that they are currently developing and seeking crowdfunding for a project based heavily on creative elements which were created by Fraser and the Fraser Script, our communications with them have gone unanswered. [BFTV] has a serious concern that the script and any production based on the script elements prepared by [BFTV] would infringe copyright in the script which was written by Fraser.

(Id. at 57).

The February 2020 Letter also includes several specific claims regarding Plaintiffs' alleged infringement of BFTV's copyright in the Fraser Materials. Specifically, Leinburd wrote:

Based on the information available from press releases and the crowdfunding website, the current script in development by Fahey and Gray is about the rise of

a Catholic priest who was the least likely of candidates to become a major entertainer. This pitch directly lifts the Fraser Script's creative elements dramatizing the rise of Catholic power through the United States, throughout the 1940s, 50s, and 60s, culminating in the election of John F. Kennedy and installation of the Catholic president in Vietnam, Ngo Dinh Diem. These creative elements were brought to the project by Fraser directly and are therefore present in the Fraser Script, owned by [BFTV].

Another example in by way of Cardinal Spellman, who is a character that Fraser brought to the [BFTV] project by dramatizing Spellman's complex relationship to Sheen and to America. All notions of Catholic power underscoring Sheen's television show were brought to the project by [BFTV] exclusively. Additionally, Fraser's Script characterized and scripted the remarkable obstacles that Sheen faced in getting his show made. These items, which appear to now be present in the Fahey and Gray pitch, are directly taken from the Fraser Script.

(ECF No. 28 at 57-58). Leinburd “acknowledge[d] that the original concept itself, as owned by Fahey and Gray, is based on the life of Sheen,” but claimed that “the Fraser Script has exclusive rights to certain historical elements which were introduced by [BFTV] to Fahey and Gray during the pitch period.” (Id. at 58). The February 2020 Letter concluded:

[BFTV] is hereby putting Fahey and Gray on notice that it intends to take any and all steps necessary to enforce its copyright in [BFTV]'s intellectual property regarding the Bishop Sheen Project (including the Fraser Script). Such steps may include the commencement of court proceedings against Fahey and Gray and its licensees, co-producers and/or affiliates for copyright infringement.

We trust that you will hereby govern yourselves accordingly.

(Id. at 58).

Plaintiffs allege that the February 2020 Letter caused the Sheen Center to “terminate” Plaintiffs' contract to appear as artists in residence. (ECF No. 28 ¶ 6). On March 3, 2020, David Di Certo, the Sheen Center's interim executive director, informed Fahey:

On February 26, 2020, I received a letter from [Leinburd], Vice President and General Counsel of [BE] in Toronto, Canada, claiming a pre-existing option agreement with you in regard to a Fulton Sheen project. We were not aware of

this, as you never made any mention of it. As implied by the letter, this exposes The Sheen Center to potential liability.

We are therefore exercising our rights under our contract to terminate your Artistin-Residence agreement with The Sheen Center, effective immediately.

(Id. at 473).

B. Procedural Background

On April 13, 2021, Plaintiffs filed the original complaint, asserting claims of copyright infringement, tortious interference with contract, and defamation. (ECF No. 1 (the (“Complaint”)). On June 22, 2021, Defendants waived service. (ECF No. 9). On August 2, 2021, Defendants filed a motion to dismiss the Complaint in its entirety (ECF No. 11), arguing, inter alia, that they are not subject to personal jurisdiction in New York. (ECF No. 13 at 9-13). On August 17, 2021, Plaintiffs notified the Court of their intent to amend the Complaint, and requested an extension of time to do so. (ECF No. 22). The Court granted Plaintiffs' request, and, following two further requests, ultimately extended Plaintiffs' amendment deadline to September 30, 2021. (ECF Nos. 23-27).

On September 30, 2021, Plaintiffs filed the FAC. (ECF No. 28). They assert eight causes of action: (i) copyright infringement; (ii) defamation; (iii) breach of contract; (iv) tortious interference with contract; (v) tortious interference with business relations; (vi) tortious interference with prospective economic advantage; (vii) “Common Law Unfair Competition[;]” and (viii) “Misrepresentation in Commercial Advertising or Promotion” in violation of 15 U.S.C. § 1125 (the “Lanham Act” claim). (Id. ¶¶ 150-206).

In the FAC, Plaintiffs allege that the Court has personal jurisdiction over Defendants under Federal Rule of Civil Procedure 4(k)(2) “because [P]laintiffs served Defendants with the summons and complaint[,]” and “service of summons established personal jurisdiction where the Defendant is not otherwise subject to any state's general jurisdiction.” (ECF No. 28 ¶ 14). Plaintiffs also allege that “[p]ersonal jurisdiction is [] proper under New York's long-arm statute, [Civil Practice Law and Rules (‘CPLR')] § 302[.]” (Id. ¶ 15). To support this allegation, Plaintiffs cite two online articles. The first is an April 8, 2015 article (the “April 2015 Article”) reporting that Breakthrough had opened an office in New York City (the “New York Office”). (Id.; see id. at 502-03). The second is a May 19, 2020 article containing an interview with BE's head of distribution, Nat Abraham, reporting that, “[b]eyond Canada, Abraham has also initiated license commitments with major U.S. networks and cable channels including Discovery, CBS, Lifetime and A&E[,]” which have headquarters in New York. (Id. at 505-08; see id. ¶ 15).

On December 1, 2021, Defendants filed the Motion. (ECF No. 31). In support of the Motion, Defendants filed, inter alia, a declaration by Levy. (ECF No. 33 (the “First Declaration”)). Levy affirms that: (i) “Breakthrough is not registered to do business in New York and does not pay taxes there” (id. ¶ 4); (ii) he resides in Canada and works at Breakthrough out of its headquarters in Toronto, Ontario, Canada (id. ¶ 5); and (iii) at all times relevant to this action, Leinburd resided in Canada and served Breakthrough as its Vice President & General Counsel, working out of its headquarters in Toronto, Ontario, Canada. (Id. ¶ 6).

On January 8, 2022, Plaintiffs filed their opposition to the Motion. (ECF No. 36 (the “Opposition”)). In their Opposition, Plaintiffs argue, inter alia, that Defendants are subject to personal jurisdiction in New York because Breakthrough has engaged in various “business coproductions and collaborations” with companies headquartered in New York. (Id. at 5).

On January 24, 2022, Defendants filed a reply (ECF No. 38) and another declaration by Levy (ECF No. 37 (the “Second Declaration”)). In his Second Declaration, Levy affirms that: (i) the New York Office “only ever housed one employee of Breakthrough and was closed when that employee left the company in April 2019” (ECF No. 37 ¶ 3); (ii) the New York Office “has remained closed since that time” and “Breakthrough does not currently maintain any office or otherwise own property in New York” (id. ¶ 4); and (iii) “none of [the] projects [referenced in the Opposition] have any connection to the [New York] Office.” (Id. ¶ 5). On February 11, 2022, the Honorable Paul A. Engelmayer referred the Motion for a Report and Recommendation. (ECF No. 40).

On April 20, 2022, Plaintiffs requested permission to file a sur-reply (the “Sur-Reply”) in further opposition to the Motion. (ECF No. 43). The Sur-Reply includes: (i) a memorandum of law (id. at 3-13); (ii) a declaration by Sandler, with exhibits (id. at 14-36); and (iii) a declaration by Fahey, with a copy of a Certificate of Registration with the United States Copyright Office for the work “Life is Worth Living.” (Id. at 40-42). Sandler attests that he “represented Plaintiffs for purposes of the negotiation, execution, and proposed extension of the exclusive Pitch Option [Agreement] for the Sheen Project between Plaintiffs and [BFTV]” and that, “[f]or the duration of these negotiations, [his] offices were located at 207 West 25th Street, Suite 600, New York, NY 10001.” (Id. at 14 ¶¶ 4-5). On April 21, 2022, the Court granted Plaintiffs' request to file the Sur-Reply and “deem[ed] briefing [of the Motion] to be complete[.]” (ECF No. 44).

III. LEGAL STANDARDS

A. Motion to Dismiss under Rule 12(b)(2)

1. Burden of Proof

“On a motion to dismiss for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2), ‘the plaintiff bears the burden of establishing that the court has jurisdiction over the defendant.'” Astor Chocolate Corp. v. Elite Gold Ltd., 510 F.Supp.3d 108, 120 (S.D.N.Y. 2020) (quoting DiStefano v. Carozzi N. Am., Inc., 286 F.3d 81, 84 (2d Cir. 2001)). “[T]he showing a plaintiff must make to defeat a defendant's claim that the court lacks personal jurisdiction over it ‘varies depending on the procedural posture of the litigation.'” Dorchester Fin. Sec., Inc. v. Banco BRJ, S.A., 722 F.3d 81, 84 (2d Cir. 2013) (quoting Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir. 1990)).

“Where . . . a district court in adjudicating a motion pursuant to Federal Rule of Civil Procedure 12(b)(2) ‘relies on the pleadings and affidavits, and chooses not to conduct a fullblown evidentiary hearing, plaintiffs need only make a prima facie showing of personal jurisdiction.'” S. New Eng. Tel. Co. v. Glob. NAPs Inc., 624 F.3d 123, 138 (2d Cir. 2010) (quoting Porina v. Marward Shipping Co., 521 F.3d 122, 126 (2d Cir. 2008)). “This showing may be made through the plaintiff's ‘own affidavits and supporting materials, containing an averment of facts that, if credited, would suffice to establish jurisdiction over the defendant.'” Id. (quoting Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 208 (2d Cir. 2001)). “A plaintiff must carry [t]his burden with respect to each defendant individually.” Berdeaux v. OneCoin Ltd., 561 F.Supp.3d 379, 396 (S.D.N.Y. 2021). “In considering the materials submitted on a Rule 12(b)(2) motion, a court should, as on a Rule 12(b)(6) motion, construe the pleadings and any submitted affidavits in the light most favorable to the plaintiff and resolve all doubts in the plaintiff's favor.” Avila v. Lease Fin. Grp., LLC, No. 11 Civ. 8125 (KBF), 2012 WL 1948777, at *2 (S.D.N.Y. May 30, 2012) (citing Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 208 (2d Cir. 2001)). “The Court, however, will neither ‘draw argumentative inferences in the plaintiff's favor' nor ‘accept as true a legal conclusion couched as a factual allegation.'” E. Mishan & Sons, Inc. v. Smart & Eazy Corp., No. 18 Civ. 3217 (PAE), 2018 WL 6528496, at *3 (S.D.N.Y. Dec. 12, 2018) (quoting In re Terrorist Attacks on Sept. 11, 2001, 714 F.3d 659, 673 (2d Cir. 2013)).

2. Requirements for Personal Jurisdiction

“There are three requirements for a federal court to lawfully exercise personal jurisdiction.” Giannetta v. Johnson, No. 20 Civ. 9016 (PAE), 2021 WL 2593305, at *4 (S.D.N.Y. June 24, 2021). “First, the plaintiff's service of process upon the defendant must have been procedurally proper.” Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 673 F.3d 50, 59 (2d Cir. 2012). “Second, ‘there must be a statutory basis for personal jurisdiction that renders such service of process effective.” Giannetta, 2021 WL 2593305, at *4 (quoting Licci, 673 F.3d at 59). “Third, if there is a statutory basis for jurisdiction, the Court then asks whether ‘an exercise of jurisdiction under these laws is consistent with federal due process requirements.'” Astor Chocolate Corp., 510 F.Supp.3d at 122 (quoting Grand River Enters. Six Nations, Ltd. v. Pryor, 425 F.3d 158, 165 (2d Cir. 2005)). Here, Defendants waived service. (See ECF No. 9). Accordingly, the Court limits its discussion to the second and third requirements for personal jurisdiction.

a. Statutory basis

“In litigation arising under federal statutes that do not contain their own jurisdictional provisions, such as the Copyright Act . . ., federal courts are to apply the personal jurisdiction rules of the forum state, provided that those rules are consistent with the requirements of Due Process.” Penguin Grp. (USA) Inc. v. Am. Buddha, 609 F.3d 30, 35 (2d Cir. 2010) (citations omitted); see Giannetta, 2021 WL 2593305, at *4 (“A court must also have a statutory basis for asserting personal jurisdiction over each defendant based on the law of the state in which it sits.”). Accordingly, the Court looks to New York law in determining whether a statutory basis exists for exercising personal jurisdiction over Defendants.

i. General jurisdiction

“CPLR § 301 provides for general jurisdiction, which may arise from a foreign defendant's overall course of business in the state.” Giannetta, 2021 WL 2593305, at *4. “Such jurisdiction is proper when ‘a company has engaged in such a continuous and systematic course of doing business in New York that a finding of its presence in New York is warranted.'” Id. (quoting Sonera Holding B.V. v. Cukurova Holding A.S., 750 F.3d 221, 224 (2d Cir. 2014)).

“Factors weighing on the ‘continuity' or ‘permanence' of a defendant's ‘doing business' in New York include whether the defendant: (a) maintains an office in New York; (b) has any bank accounts or property within the state; (c) has a phone listing within New York; (d) does public relations work or solicits business within the state; and (e) has employees or agents permanently located in New York.” Avila v. Lease Fin. Grp., LLC, No. 11 Civ. 8125 (KBF), 2012 WL 1948777, at *2 (S.D.N.Y. May 30, 2012) (citing Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 98 (2d Cir. 2000)). “Neither solicitation nor the presence of an office alone is dispositive of the defendant's ‘doing business' in New York.” Id. (citing In re Rationis Enterprises, Inc. of Panama, 261 F.3d 264, 270 (2d Cir. 2001) (“While a local office may constitute a ‘continuous and systematic' contact sufficient to allow a court to hold that a defendant subjected itself to the general jurisdiction of the forum state, the presence of such an office is not dispositive[.]”) (internal citations omitted)).

ii. Specific jurisdiction

“New York's long-arm statute also provides for specific jurisdiction, which may arise from the foreign defendant's contacts with the state in connection with the cause of action.” Giannetta, 2021 WL 2593305, at *5 (citing N.Y. C.P.L.R. § 302(a)). Specifically, “[a]s to a cause of action arising from any of” the following acts, a New York court may exercise personal jurisdiction over a foreign defendant who:

1. transacts any business within the state or contracts anywhere to supply goods or services in the state; or

2. commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act; or

3. commits a tortious act without the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act, if he (i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or (ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce; or

4. owns, uses or possesses any real property situated within the state.

N.Y. C.P.L.R. 302(a)(1)-(4).

“[S]ections 302(a)(2) and (3), which permit jurisdiction over tortious acts committed in New York and those committed outside New York that cause injuries in the state, respectively, explicitly exempt causes of action for the tort of defamation from their scope, whether or not such jurisdiction would be consistent with due process protection.” Best Van Lines, Inc. v. Walker, 490 F.3d 239, 244-45 (2d Cir. 2007). While “one might think that the New York State legislature meant for no provision of the long-arm statute to grant jurisdiction over an out-ofstate defendant with respect to a cause of action for defamation[,] . . . New York courts have not gone that far.” Id. at 245 (internal citation omitted). “Under New York law, when a person utters a defamatory statement without the state that causes injury to the plaintiff within the state, jurisdiction may be acquired under section 302(a)(1),” which permits the exercise of personal jurisdiction over a foreign defendant for causes of actions arising from that defendant's business transactions within New York. Id. at 245-46. As one New York court has explained:

There is a clear distinction between a situation where the only act which occurred in New York was the mere utterance of the libelous material and on the other hand, a situation where purposeful business transactions have taken place in New York giving rise to the cause of action. Where purposeful transactions of business have taken place in New York it may not be said that subjecting the defendant to this State's jurisdiction is an unnecessary inhibition on freedom of speech or the press.

Legros v. Irving, 38 A.D.2d 53, 55-56 (1st Dep't 1971) (quotation marks omitted). In Legros, the plaintiff asserted a defamation claim based on alleged false statements contained in a book that was published and distributed in New York by the defendants. Id. at 54. In reversing the trial court's decision to dismiss the case for lack of personal jurisdiction under Section 302(a)(2), the First Department found personal jurisdiction existed under Section 302(a)(1) because it was “clear that virtually all the work attendant upon publication of the book occurred in New York.” Id. at 56. “The book was in part researched in this State by defendant Irving; negotiations with [the publisher] took place in New York; the contract with [the publisher] was executed in New York; [and] the book was printed in New York.” Id.

“New York courts evaluating specific jurisdiction under section 302(a)(1) look to both the language of the statute and the relation between the alleged conduct and the cause of action.” Best Van Lines, 490 F.3d at 246. “To determine the existence of jurisdiction under section 302(a)(1), a court must decide (1) whether the defendant ‘transacts any business' in New York and, if so, (2) whether this cause of action ‘aris[es] from' such a business transaction.” Id. (quoting Deutsche Bank Sec., Inc. v. Montana Bd. of Invs., 7 N.Y.3d 65, 71, 850 N.E.2d 1140, 1142, 818 N.Y.S.2d 164, 166 (2006)).

iii. Federal Rule of Civil Procedure 4(k)(2)

“Rule 4(k)(2), the federal long-arm statute, allows federal courts to exercise personal jurisdiction if ‘(1) plaintiff's cause of action arise[s] under the federal law; (2) the defendant is not subject to the jurisdiction of the courts of general jurisdiction of any one State; and (3) the defendant's total contacts with the United States as a whole are sufficient to confer the court with personal jurisdiction without offending due process.'” Astor Chocolate Corp., 510 F.Supp.3d at 124 (quoting Hartford Fire Ins. Co. v. M/V MSC INSA, No. 03 Civ. 2196 (SAS), 2003 WL 22990090, at *3 (S.D.N.Y. Dec. 18, 2003) (alterations omitted)). “This rule ‘extends the reach of federal courts to impose jurisdiction over the person of all defendants against whom federal law claims are made and who can be constitutionally subjected to the jurisdiction of the courts of the United States.'” Id. (quoting Chew v. Dietrich, 143 F.3d 24, 27 (2d Cir. 1998)).

“Rule 4(k)(2) thus ‘fill[s] a gap in the enforcement of federal law for courts to exercise personal jurisdiction over defendants with sufficient contacts with the United States generally, but insufficient contacts with any one state in particular.'” Astor Chocolate Corp., 510 F.Supp.3d at 124 (quoting In re Terrorist Attacks on Sept. 11, 2001, 349 F.Supp.2d 765, 807 (S.D.N.Y. 2005)). “In this Circuit, to meet the second requirement of Rule 4(k)(2), plaintiffs need to certify that, to their knowledge, the foreign defendant is not subject to jurisdiction in any other state.” Id. (collecting cases).

b. Due Process

“Once a plaintiff establishes a statutory basis for jurisdiction, the plaintiff must ‘demonstrate that the exercise of jurisdiction comports with due process.'” Astor Chocolate Corp., 510 F.Supp.3d at 125 (quoting Charles Schwab Corp. v. Bank of Am. Corp., 883 F.3d 68, 81-82 (2d Cir. 2018)); see Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). “The constitutional analysis under the Due Process Clause consists of two separate components: the ‘minimum contacts' inquiry and the ‘reasonableness' inquiry.” Astor Chocolate Corp., 510 F.Supp.3d at 125 (quoting Licci, 673 F.3d at 60).

“The ‘minimum contacts' inquiry examines ‘whether the defendant has sufficient contacts with the forum state to justify the court's exercise of personal jurisdiction.'” Astor Chocolate Corp., 510 F.Supp.3d at 125 (quoting Licci, 673 F.3d at 60). “The Court considers these contacts in totality, with the crucial question being whether the defendant has ‘purposefully avail[ed] itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws such that [the defendant] should reasonably anticipate being haled into court there.'” Id. (quoting Best Van Lines, 490 F.3d at 242-43).

“To satisfy this minimum-contacts inquiry, the Court ‘recogniz[es] two kinds of personal jurisdiction: general (sometimes called all-purpose) jurisdiction and specific (sometimes called case-linked) jurisdiction.” Giannetta, 2021 WL 2593305, at *5 (quoting Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 141 S.Ct. 1017, 1024 (2021)). The Supreme Court has “set a ‘high bar' for finding that the exercise of general jurisdiction over an out-of-state corporation comports with due process.” Al-Ahmed v. Twitter, Inc., 553 F.Supp.3d 118, 125 (S.D.N.Y. 2021) (quoting Brown v. Lockheed Martin Corp., 814 F.3d 619, 626-27 (2d Cir. 2016)); see Daimler AG v. Bauman, 571 U.S. 117, 138 (2014). “General jurisdiction exists when a defendant is ‘essentially at home' in the forum state.” Giannetta, 2021 WL 2593305, at *5 (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)). “In ‘the ‘paradigm' case, an individual is subject to general jurisdiction in her place of domicile .... And the ‘equivalent' forums for a corporation are its place of incorporation and principal place of business.'” Alwand Vahan Jewelry, Ltd. v. Lustour, Inc., No. 21 Civ. 1959 (PAE), 2021 WL 3604517, at *3 (S.D.N.Y. Aug. 13, 2021) (quoting Ford Motor Co., 141 S.Ct. at 1024). “Specific jurisdiction exists only if there is ‘some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State.'” Id. (quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958). “For specific jurisdiction to exist, ‘there must be an affiliation between the forum and the underlying controversy, principally, an activity or an occurrence that takes place in the forum State and is therefore subject to the State's regulation.'” Giannetta, 2021 WL 2593305, at *5 (quoting Ford Motor Co., 141 S.Ct. at 1025).

B. Motion to Dismiss under Rule 12(b)(6)

1. Pleading Standard

Where a defendant moves to dismiss a complaint for failure to state a claim on which relief could be granted under Fed.R.Civ.P. 12(b)(6), the Court must assess whether the complaint “contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Co. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).

To survive a motion to dismiss, “the plaintiff must provide the grounds upon which his [or her] claim rests through factual allegations sufficient ‘to raise a right to relief above the speculative level.'” ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting Twombly, 550 U.S. at 555). In evaluating a motion to dismiss, the Court “accept[s] all facts alleged in the complaint as true and draw[s] all reasonable inferences in the plaintiff's favor.” Sanderson v. Leg Apparel LLC, No. 19 Civ. 8423 (GHW), 2020 WL 7342742, at *3 (S.D.N.Y. Dec. 14, 2020) (citing Burch v. Pioneer Credit Recovery, Inc., 551 F.3d 122, 124 (2d Cir. 2008) (per curiam)). The Court is “not required to credit conclusory allegations or legal conclusions couched as factual allegations.” Id. at *2 (quoting Rothstein v. UBS AG, 708 F.3d 82, 94 (2d Cir. 2013)). “[A] complaint that offers ‘labels and conclusions' or ‘naked assertion[s]' without ‘further factual enhancement' will not survive a motion to dismiss.” Id. “‘Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.'” Id. (quoting DeJesus v. HF Mgmt. Servs., LLC, 726 F.3d 85, 87-88 (2d. Cir. 2013)). For purposes of Rule 12(b)(6), “the complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002) (citations omitted).

2. Choice of Law

The Court notes that the parties do not address which law applies to Plaintiffs' state law claims, but appear to assume that New York law applies. (See ECF Nos. 32 at 18-23; 43 at 9 n.6). Where “the parties do not dispute that New York law applies, and, where the parties assume, in their briefs, that the law of a particular state governs, that is ‘sufficient to establish the applicable choice of law.'” Horowitz v. Spark Energy, Inc., No. 19 Civ. 7534 (PGG) (DF), 2020 WL 6561600, at *7 (S.D.N.Y. July 31, 2020), adopted by, 2020 WL 4917180 (S.D.N.Y. Aug. 21, 2020) (quoting Arch Ins. Co. v. Precision Stone, Inc., 584 F.3d 33, 39 (2d Cir. 2009)); see also Smith v. Railworks Corp., No. 10 Civ. 3980 (NRB), 2011 WL 2016293, at *6 (S.D.N.Y. May 17, 2011) (“Because a choice of law analysis is fact intensive, courts often decline to make a choice of law determination at the motion to dismiss stage.”); Walker v. Thompson, 404 F.Supp.3d 819, 823 (S.D.N.Y. 2019) (“Declining to engage in a choice of law analysis is especially appropriate here, where the parties have failed to brief the question and applied New York law without analysis.”). Accordingly, for purposes of deciding the Motion, the Court applies New York law to Plaintiffs' state law claims.

C. Pro Se Considerations

In deciding a motion to dismiss, “the submissions of a pro se litigant must be construed liberally and interpreted to raise the strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation and citation omitted). Nonetheless, “a pro se plaintiff must still plead enough facts to state a claim to relief that is plausible on its face.” Gottesfeld v. Anderson, No. 18 Civ. 10836 (PGG), 2020 WL 1082590, at *5 (S.D.N.Y. Mar. 6, 2020). Despite the Court's obligation “to draw the most favorable inferences” from a complaint, it “cannot invent factual allegations that [the plaintiff] has not pled.” Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010). “The Court need not accept allegations that are ‘contradicted by other matters asserted or relied upon or incorporated by reference by a plaintiff in drafting the complaint.'” Tsinberg v. City of New York, No. 20 Civ. 749 (PAE), 2021 WL 1146942,at *4 (S.D.N.Y. Mar. 25, 2021) (quoting Fisk v. Letterman, 401 F.Supp.2d 362, 368 (S.D.N.Y. 2005)).

IV.DISCUSSION

A. Personal Jurisdiction

1. Statutory Basis

For the reasons set forth below, the Court finds that Plaintiffs have failed to establish a statutory basis for the exercise of personal jurisdiction over Defendants.

a. Defendants are not subject to general jurisdiction in New York.

As discussed above, under CPLR § 301, general jurisdiction over a non-domiciliary defendant “is proper when ‘a company has engaged in such a continuous and systematic course of doing business in New York that a finding of its presence in New York is warranted.'” Giannetta, 2021 WL 2593305, at *4 (quoting Sonera Holding B.V., 750 F.3d at 224). “Although the ‘doing business' test is most often used to find jurisdiction over a corporate defendant, this test can be applied to a nonresident individual.” Rosado v. Bondi, No. 16 Civ. 6916 (NSR), 2017 WL 4947122, at *3 (S.D.N.Y. Oct. 27, 2017) (quoting Patel v. Patel, 497 F.Supp.2d 419, 425 (E.D.N.Y. 2007)). “New York courts have interpreted CPLR § 301 to require that the defendant ‘be present in New York not occasionally or casually, but with a fair measure of permanence and continuity'; factors examined include indicia of a physical presence in the state, such as the existence of New York courts have interpreted CPLR § 301 to require that the defendant ‘be present in New York not occasionally or casually, but with a fair measure of permanence and continuity'; factors examined include indicia of a physical presence in the state, such as the existence of an office, bank accounts, or other property in the state.” Giannetta, 2021 WL 2593305, at *6 (quoting Patel, 497 F.Supp.2d at 425).

Plaintiffs have failed to establish that this Court has general jurisdiction over any Defendant. First, Plaintiffs have not provided any basis to support general jurisdiction over the individual Defendants, Levy and Leinburd. The only allegations involving them concern their actions taken in their official capacities on behalf of Breakthrough, negotiating, entering, and letting lapse the Pitch Option Agreement, and sending the February 2020 Letter. (ECF No. 28 ¶¶ 108, 117, 122; Id. at 48-50, 52, 57-58, 437). In his First Declaration, Levy has affirmed, however, that, at all relevant times, both he and Leinburd resided in Canada and worked out of Breakthrough's Toronto headquarters. (ECF No. 33 ¶¶ 5-6). “New York courts have concluded that CPLR 301 applies to persons acting only in their individual capacities, and that their activities on behalf of an employer or corporation will not support the exercise of personal jurisdiction.” Pinto-Thomaz v. Cusi, No. 15 Civ. 1993 (PKC), 2015 WL 7571833, at *5 (S.D.N.Y. Nov. 24, 2015) (citing Brinkmann v. Adrian Carriers, Inc., 29 A.D.3d 615, 617 (2d Dep't 2006) (“An individual cannot be subject to jurisdiction under CPLR 301 unless he is doing business in New York as an individual rather than on behalf of a corporation.”); see also Giannetta, 2021 WL 2593305, at *7 (collecting cases). Since Plaintiffs do not allege, much less establish, that either Levy or Leinburd transacted business in New York in their individual capacities, they have failed to establish general jurisdiction over those Defendants.

Second, Plaintiffs have failed to establish general jurisdiction over BFTV or BE. Both companies are “incorporated under the laws of Canada and maintain[] [their] principal place of business” there. (ECF No. 28 ¶¶ 8-9). In his First Declaration, Levy affirmed that both companies are “not registered to do business in New York and do[] not pay taxes there” (ECF No. 33 ¶ 4). Plaintiffs were therefore required to “allege facts demonstrating that this is the ‘exceptional case' in which the Court may exercise general personal jurisdiction over a foreign company based only on its contacts with the forum state.” George Moundreas & Co SA v. Jinhai Intelligent Mfg. Co Ltd, No. 20 Civ. 2626 (VEC), 2021 WL 168930, at *4 (S.D.N.Y. Jan. 18, 2021) (quoting Daimler AG v. Bauman, 571 U.S. 117, 139 n.19 (2014)). Plaintiffs have failed to do so.

To support general jurisdiction over BE and BFTV in New York, Plaintiffs rely on two allegations: (i) the April 2015 Article reporting that BE had opened the New York Office (ECF No. 28 ¶ 15; see id. at 502-03); and (ii) BE and BFTV's alleged business transactions with companies headquartered in New York. (ECF No. 36 at 5; see ECF No. 28 ¶ 15; id. at 505-08).

These allegations are insufficient to establish that BE or BFTV have “engaged in such a continuous and systematic course of doing business in New York that a finding of [their] presence in New York is warranted,” and, therefore, fail to establish general jurisdiction. Sonera Holding B.V., 750 F.3d at 224. Levy has affirmed that: (i) the New York Office “only ever housed one employee of Breakthrough and was closed when that employee left the company in April 2019” (ECF No. 37 ¶ 3); (ii) the New York Office “has remained closed since that time” and “Breakthrough does not currently maintain any office or otherwise own property in New York” (id. ¶ 4); and (iii) “none of [the] projects [referenced in Plainitffs' Opposition] have any connection to the [New York] Office” (id. ¶ 5). Even if the New York Office remained open, however, these contacts do not establish the type of “continuous and systematic” business dealings necessary to subject Defendants to general jurisdiction in New York. See George Moundreas & Co SA v. Jinhai Intelligent Mfg. Co Ltd, No. 20 Civ. 2626 (VEC), 2021 WL 168930, at *5 (S.D.N.Y. Jan. 18, 2021) (finding plaintiffs failed to establish general jurisdiction over a foreign defendant despite the defendant's “various business dealings with New York-based companies”); Brown v. Showtime Networks, Inc., 394 F.Supp.3d 418, 432-33 (S.D.N.Y. 2019) (finding no general jurisdiction even though defendant had entered into contracts with multiple New York-based companies, broadcast programming in New York, and employed journalists in New York); Reich v. Lopez, 38 F.Supp.3d 436, 455-57 (S.D.N.Y. 2014) (holding that defendant's use of New York office space and New York banks, among other factors, “is not one of those rare instances” in which a defendant “is subjected to a state's general jurisdiction irrespective of where they are domiciled”); Avila, 2012 WL 1948777, at *2 (“Neither solicitation nor the presence of an office alone is dispositive of the defendant's ‘doing business' in New York.”); Malmsteen v. Universal Music Grp., Inc., No. 10 Civ. 3955 (PAE), 2012 WL 2159281, at *4 (S.D.N.Y. June 14, 2012) (“Even a CEO who conducts some business from a New York office does not necessarily subject the company to general jurisdiction under § 301.”).

Accordingly, Plaintiffs have failed to establish that any Defendant is subject to general jurisdiction in New York.

b. Defendants are not subject to specific jurisdiction in New York.

Plaintiffs argue that Defendants are subject to specific jurisdiction in New York under CPLR § 302(a)(1), because “New York was the epicenter of all relevant activities in this dispute, including the negotiation, execution, and proposed extension of the parties' [Pitch] Option Agreement, as well as [D]efendants' aggressive enforcement of their perceived intellectual property rights under that agreement.” (ECF No. 43 at 3-4). Plaintiffs rely on the facts that (i) during the negotiation and performance of the Pitch Option Agreement, their attorney, Sandler, was located in New York (id. at 5-8), and (ii) Leinburd sent the February 2020 Letter to the Sheen Center in New York. (Id. at 8-9). In a footnote in their Sur-Reply, Plaintiffs also state that, “at least with respect to their tortious interference with contract claim, jurisdiction under CPLR § 302(a)(3) is independently appropriate.” (ECF No. 43 at 9 n.6). Specifically, they argue that “Defendants' intentional disruption of [P]laintiffs' contractual relationship with the Sheen Center satisfies” this provision. (Id.)

As discussed above, “[t]o establish personal jurisdiction under § 302(a)(1), two requirements must be met: (1) [t]he defendant must have transacted business within the state; and (2) the claim asserted must arise from that business activity.” Barrett v. Tema Dev. (1988), Inc., 251 Fed.Appx. 698, 700 (2d Cir. 2007). “A foreign party ‘transacts business' in New York when, looking at the totality of the circumstances, he ‘purposefully avails [himself] of the privilege of conducting activities within [New York], thus invoking the benefits and protections of its laws.'” Hill v. HSBC Bank plc, 207 F.Supp.3d 333, 338 (S.D.N.Y. 2016) (quoting Fagan v. Republic of Austria, No. 08 Civ. 6715 (LTS) (JCF), 2011 WL 1197677, at *13 (S.D.N.Y. Mar. 25, 2011)). “Random,” “fortuitous,” or “attenuated” contacts are not be sufficient. SAS Grp., Inc. v. Worldwide Inventions, Inc., 245 F.Supp.2d 543, 548 (S.D.N.Y.2003) (internal quotation marks and citation omitted). To satisfy the “arise from” requirement, Plaintiffs must demonstrate that there is “some articulable nexus between the business transacted and the cause of action sued upon.” Ross v. UKI Ltd., No. 02 Civ. 9297, 2004 WL 384885, at *4 (S.D.N.Y. Mar. 1, 2004) (quoting McGowan v. Smith, 52 N.Y.2d 268, 272 (1981)). An individual may be subject to specific jurisdiction under Section 302(a)(1) where “[t]hey were primary actors in the business transaction giving rise to the” cause of action. Wallace Church & Co. Inc. v. Wyattzier, LLC, No. 20 Civ. 1914 (CM), 2020 WL 4369850, at *4 (S.D.N.Y. July 30, 2020).

i. CPLR § 302(a)(1)

The Court finds that neither of the two New York contacts identified by Plaintiffs is sufficient to establish specific jurisdiction over any Defendant under CPLR § 302(a)(1). First, the fact that Plaintiffs elected to retain a New York-based attorney to negotiate the Pitch Option Agreement does not establish that Defendants purposefully availed themselves to the privilege of conducting activities in New York. The New York Court of Appeals has made clear that “[a] non-domiciliary defendant transacts business in New York when ‘on his or her own initiative[,] the non-domiciliary projects himself or herself into this state to engage in a sustained and substantial transaction of business.'” D & R Glob. Selections, S.L. v. Bodega Olegario Falcon Pineiro, 29 N.Y.3d 292, 298, 78 N.E.3d 1172, 1175-76 (2017) (quoting Paterno v. Laser Spine Inst., 24 N.Y.3d 370, 377, 998 N.Y.S.2d 720, 23 N.E.3d 988 (2014) (emphasis added)). “[P]urposeful availment occurs when the non-domiciliary ‘seeks out and initiates contact with New York, solicits business in New York, and establishes a continuing relationship.'” Id. (quoting Paterno, 24 N.Y.3d at 377, 998 N.Y.S.2d 720, 23 N.E.3d 988) (emphasis added). Here, it was Plaintiffs, not Defendants, who hired a New York attorney to negotiate the Pitch Option Agreement, which otherwise had no connection to New York. Indeed, the record shows that BFTV negotiated the Pitch Option Agreement from Canada, and the parties included a California choice-of-law clause. (See e.g., ECF No. 28 at 431-35, 437, 447-48 (BE's representatives communicating with Sandler from Canada); id. at 49-50 (reflecting California choice-of-law clause in the Pitch Option Agreement); ECF No. 33 ¶¶ 5-6 (Levy affirming that, at all relevant times, both he and Leinburd resided in Canada and worked out of Breakthrough's Toronto headquarters)). As Defendants correctly point out, “[w]here Mr. Sandler was located during the negotiation of the [Pitch] Option [Agreement] is . . . irrelevant.” (ECF No. 38 at 10). See Beacon Enterprises, Inc. v. Menzies, 715 F.2d 757, 766 (2d Cir. 1983) (“New York courts have consistently refused to sustain section 302(a)(1) jurisdiction solely on the basis of defendant's communication from another locale with a party in New York.”); Hill, 207 F.Supp.3d at 339 (“[A] foreign defendant's communications with a party in New York or sending of monies into New York are not sufficient to establish personal jurisdiction without the defendant having ‘projected' himself into New York for the purposes of conducting business there.”); c.f., SAS Grp., Inc. v. Worldwide Inventions, Inc., 245 F.Supp.2d 543, 549 (S.D.N.Y. 2003) (“[C]ontract negotiations occurring in New York are sufficient to support jurisdiction when they either substantially advance or were essential to the formation of a contract or if they resulted in a more solid business relationship between the parties.”) (emphasis added) (citation omitted); Premier Lending Servs., Inc. v. J.L.J. Assocs., 924 F.Supp. 13, 15-16 (S.D.N.Y.1996) (“Any contract negotiations which indicate a purposeful invocation of the laws of New York State are transactions of business for purposes of New York's long arm statute,” and a single transaction of business in New York may be sufficient.”).

Similarly, Leinburd's transmission of the February 2020 Letter to the Sheen Center in New York is not sufficient to establish specific jurisdiction under CPLR § 302(a)(1). As an initial matter, the Court notes that all of Plaintiffs' claims relating to the February 2020 Letter “unavoidably sound[] in defamation.” Giannetta, 2021 WL 2593305, at *9. The law is clear that, to constitute a business transaction, CPLR § 302(a)(1) requires more than “mere defamatory utterances sent into the state” or “the distribution of a libelous statement.” Best Van Lines, 490 F.3d 239, 248 (2d Cir. 2007). Accordingly, the February 2020 Letter is not sufficient to establish that Defendants subjected themselves to specific jurisdiction in this State. See Beacon Enterprises, Inc. v. Menzies, 715 F.2d 757, 766 (2d Cir. 1983) (“It is difficult to characterize [the defendant's] letter alleging infringement in an unspecified locale and threatening litigation in an unspecified forum as an activity invoking the ‘benefits and protections”' of New York law.”).

Accordingly, the Court finds that Plaintiffs have failed to satisfy § 302(a)(1) as to any Defendant.

ii. CPLR § 302(a)(3)

Plaintiffs have also failed to establish that Defendants are subject to specific jurisdiction under CPLR § 302(a)(3). “In order to establish personal jurisdiction under § 302(a)(3), a plaintiff must sufficiently allege that the defendant committed a tortious act outside of New York and that the defendants conduct caused injury within New York. Snowbridge Advisors LLC v. ESO Cap. Partners UK LLP, No. 21 Civ. 9086 (JSR), 2022 WL 667606, at *7 (S.D.N.Y. Mar. 7, 2022). “In addition, a plaintiff must sufficiently allege either (i) that the defendant regularly does business, or engages in any other persistent conduct, or derives substantial revenue from goods used or services rendered in the state, or (ii) that the defendant expects or reasonably should have expected the act to have consequences in New York, and that the defendant derives substantial revenue from interstate or international commerce.” Id.; see N.Y. C.P.L.R. § 302(a)(3). As discussed above, Section 302(a)(3) “explicitly exempt[s] causes of action for the tort of defamation from [its]their scope, whether or not such jurisdiction would be consistent with due process protection.” Best Van Lines, 490 F.3d at 244-45.

Here, Plaintiffs argue that their tortious interference with contract claim-premised on the February 2020 Letter and the Sheen Center's subsequent decision to terminate Plaintiffs' artist-in-residence agreement-is sufficient to establish specific jurisdiction over Defendants under CPLR § 302(a)(3). (ECF No. 43 at 9 n. 6). As noted above, however, and as discussed in more detail below (see § IV.B.4.b supra), Plaintiffs' tortious interference with contract claim “unavoidably sounds in defamation.” Giannetta, 2021 WL 2593305, at *9. Specifically, both the defamation claim and the tortious interference with contract claim are premised on the same act, i.e., the February 2020 Letter, and resulted in the same alleged harm, i.e., “loss of funding, loss of artist in residency, [and] lost [] ability to create deal flow, get into development, and revenues that would have been expected upon executing a deal with a studio or network[.]” (ECF No. 28 ¶ 182; see id. ¶¶ 157-59). In other words, this case presents “a situation where the only act which occurred in New York was the mere utterance of the libelous material[,]” and not “a situation where purposeful business transactions have taken place in New York giving rise to the cause of action.” Legros, 38 A.D.2d 53, 55-56 (finding personal jurisdiction under Section 302(a)(1) appropriate based on alleged defamatory statement where it was “clear that virtually all the work attendant upon publication of the [work] occurred in New York”). Accordingly, because Plaintiffs' tortious interference with contract claim sounds in defamation, Plaintiffs cannot rely on CPLR § 302(a)(3) to establish specific jurisdiction over any Defendant based on that claim. Giannetta, 2021 WL 2593305; see Shamoun v. Mushlin, No. 12 Civ. 3541 (AJN), 2014 WL 12776779, at *4 (S.D.N.Y. March 26, 2014) (noting that “it is well-established that Plaintiffs cannot evade [the bar to defamation claims] by recasting their defamation claims as other torts”).

Accordingly, the Court finds that Plaintiffs have failed to satisfy § 302(a)(3) as to any Defendant.

* * *

Accordingly, the Court finds that Plaintiffs have failed to establish a statutory basis under New York law for the exercise of personal jurisdiction over Defendants.

c. Rule 4(k)(2)

Plaintiffs argue, in the alternative, that jurisdiction over Defendants is appropriate under Rule 4(k)(2). (ECF No. 28 ¶ 14). As discussed above, “[u]nder that rule, the Court may exercise personal jurisdiction over a defendant where (1) a plaintiff's cause of action arises under federal law; (2) the defendant is not subject to the jurisdiction of the courts of general jurisdiction of any one State; and (3) the defendant's total contacts with the United States as a whole are sufficient to satisfy the Due Process Clause.” Astor Chocolate Corp., 510 F.Supp.3d at 134. “As to the second requirement, [Plaintiffs] bear[] the burden of certifying that, to [their] knowledge, [Defendants are] not subject to jurisdiction in any state's courts.” Id. (collecting cases declining to apply Rule 4(k)(2) where the plaintiff failed to make such a certification).

Plaintiffs have failed to establish that the Court may exercise jurisdiction over Defendants under Rule 4(k)(2). Even assuming Plaintiffs could satisfy the first and third requirements of Rule 4(k)(2), they have failed to meet the second, i.e., to certify that Defendants are not subject to the jurisdiction of the courts of general jurisdiction of any one State. Indeed, “such a certification may be impossible.” Astor Chocolate Corp., 510 F.Supp.3d at 134. As Defendants have conceded, “the most logical state in which to bring this action would have been California, where at least one Plaintiff resides and where the state's law governs the [Pitch] Option [Agreement].” (ECF No. 38 at 8 n.2). “Thus, it seems unlikely that [Plaintiffs] could have shown, had [they] attempted to do so, that [Defendants are] not subject to the jurisdiction of any state's courts.” Astor Chocolate Corp., 510 F.Supp.3d at 135 (finding that the Court could not exercise personal jurisdiction over foreign defendant under Rule 4(k)(2) where the plaintiff failed to provide the required certification).

* * *

Accordingly, the Court finds that Plaintiffs have failed to establish a statutory basis under federal law for the exercise of personal jurisdiction over Defendants.

2. Due Process

“Because the Court has found that there is no personal jurisdiction over defendants under New York law, the second step of the analysis-relating to due process-need not be addressed.” Karpov v. Karpov, No. 12 Civ. 3649 (PAE), 2012 WL 5233565, at *3 (S.D.N.Y. Oct. 23, 2012); see Giannetta, 2021 WL 2593305, at *11 (“Because CPLR § 302(a)(1) ‘permits personal jurisdiction under narrower conditions than does the Due Process Clause under the U.S. Constitution,' Knight v. Standard Chartered Bank, No. 19 Civ. 11739 (PAE), 2021 WL 1226870, at *3 (S.D.N.Y. Mar. 31, 2021), the Court need not address whether the Due Process Clause would permit this Court to exercise specific jurisdiction over [the defendant].”).

3. The Jurisdictional Discovery Request

In their Opposition and Sur-Reply, Plaintiffs argue that “jurisdictional discovery is appropriate to clarify the activities of Breakthrough's New York office, which was operative during the negotiation and execution of the [Pitch] Option Agreement, as well as the entirety of the Option period.” (ECF No. 43 at 10; see ECF No. 36 at 10 ¶ 25 (“Plaintiffs request formal discovery[,] at which time Defendants['] claim that they, do not do business in the State of New York' can be determined to be factual or not.”)). Plaintiffs note that Defendants “did not deny that [the New York Office] played a role in developing or pitching [P]laintiffs' Sheen project prior to or during the Option period.” (ECF No. 43 at 10). Plaintiffs concede that they “cannot confirm, at this time, what role Breakthrough's New York [O]ffice played in the events underlying this action[,]” but argue that “this information remained ‘peculiarly within the possession and control of the'” Defendants. (Id. at 10-11 (quoting Arista Recs., LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010)). They further argue that “it stands to reason that an office opened in order to expand Breakthrough's American alternative content operations-and active for the duration of the Option period-was likely involved in discussing, developing, or pitching [P]laintiffs' materials.” (Id. at 11).

“The Court has broad discretion in determining whether or not to permit discovery aimed at establishing personal jurisdiction.” Vista Food Exch., Inc. v. Champion Foodservice, LLC, 124 F.Supp.3d 301, 313-14 (S.D.N.Y. 2015) (citation omitted). “In exercising its discretion, a court must balance the need to avoid subjecting a foreign defendant to extensive jurisdictional discovery against a plaintiff's potential difficulty proving jurisdiction without discovery.” In re Terrorist Attacks on Sept. 11, 2001, 689 F.Supp.2d 552, 566 (S.D.N.Y. 2010). “Jurisdictional discovery is appropriate when the party has made a ‘colorable basis for personal jurisdiction, which could be established with further development of the factual record.'” Ikeda v. J. Sisters 57, Inc., No. 14 Civ. 3570 ER, 2015 WL 4096255, at *8 (S.D.N.Y. July 6, 2015) (quoting Leon v. Shmukler, 992 F.Supp.2d 179, 194 (E.D.N.Y.2014)). “Where the plaintiffs have not made out a prima facie case for jurisdiction, the court ‘is typically within its discretion to deny jurisdictional discovery.'” Joint Stock Co. Channel One Russia Worldwide v. Infomir LLC, No. 16 Civ. 1318 (GBD) (BCM), 2018 WL 4681616, at *17 (S.D.N.Y. Sept. 11, 2018) (quoting Frontera Res. Azerbaijan Corp. v. State Oil Co. of Azerbaijan Republic, 582 F.3d 393, 401 (2d Cir. 2009)).

The Court finds that jurisdictional discovery is not warranted. As discussed above, Plaintiffs have failed to establish a prima facie case of personal jurisdiction, and as discussed below, Plaintiffs have also failed to state a claim for relief. (See § IV.B, supra). Moreover, the Court has thoroughly reviewed the nearly 500 pages of exhibits Plaintiffs have submitted concerning the negotiation and execution of the Pitch Option Agreement and the development of the Fraser Materials, and has found nothing on which to conclude that these activities had a connection to New York sufficient to confer personal jurisdiction over Defendants. (See id). While Plaintiffs speculate that BE's New York Office was “involved in discussing, developing, or pitching [P]laintiffs' materials” (ECF No. 43 at 11), the record shows that the Pitch Option Agreement lapsed before a pilot script was ever finalized, and that Plaintiffs wanted to see a revised draft “before sharing the document with the networks[.]” (ECF No. 28 ¶ 114; see also id. ¶ 167 (Plaintiffs alleging that “BFTV have broken the terms of the [Pitch] [O]ption [A]greement by never actually pitching materials to studios or networks”)). In any event, even if discovery were to substantiate their speculation, Plaintiffs articulate no reason-and the Court sees none- to suggest that this would establish personal jurisdiction over any Defendant.

Accordingly, the Court respectfully recommends that Plaintiffs' Jurisdictional Discovery Request be DENIED.

4. Plaintiffs' Transfer Request

In their Sur-reply, Plaintiffs request that, “should the Court find that it lacks personal jurisdiction under New York's long-arm statue altogether, . . . this action be transferred to the United States District Court for the Southern District of California pursuant to 28 U.S.C. 1406(a).” (ECF No. 43 at 11).

“The 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). “The Second Circuit has found that ‘[l]ack of personal jurisdiction [can] be cured by a transfer to a district in which personal jurisdiction [can] be exercised, with the transfer authority derived from . . . section 1406(a)[.]"' Paroni v. Gen. Elec. UK Holdings Ltd., No. 19 Civ. 1034 (PAE), 2021 WL 5154111, at *1 (S.D.N.Y. Nov. 5, 2021) (quoting SongByrd, Inc. v. Estate of Grossman, 206 F.3d 172, 179, n.9 (2d Cir. 2000)). “A district court may transfer a case, regardless of whether venue is proper in the transferor court, only when the transfer is in ‘in the interest of justice.'” Id. (quoting Corke v. Sameiet M. S. Song of Norway, 572 F.2d 77, 80 (2d Cir. 1978)). In applying this standard, Courts consider the following factors: (i) whether transfer would alleviate a procedural obstacle, e.g., allowing the plaintiff to toll a statute of limitation that would otherwise bar him from refiling; (ii) whether transfer would enable the plaintiff to obtain personal jurisdiction over some or all of the defendants; (iii) whether transfer would severely prejudice the defendant; and (iv) whether the merits of the case are “clearly doomed.” Id. (citation committed). “Courts evaluating such factors enjoy considerable discretion in deciding whether to transfer a case in the interest of justice.” Id. “The party requesting a transfer bears a ‘heavy burden to establish that the interests of convenience and fairness will be better served by transfer to another forum.'” Seltzer v. Omni Hotels, No. 09 Civ. 9115 (BSJ) (JCF), 2010 WL 3910597, at *1 (S.D.N.Y. Sept. 30, 2010) (quoting Kiss My Face Corp. v. Bunting, No. 02 Civ. 2645 (RCC), 2003 WL 22244587, at *1 (S.D.N.Y. Sept. 30, 2003)).

Having considered the relevant factors, the Court finds that transfer is not warranted here. Even if transfer would enable Plaintiffs to obtain personal jurisdiction over the Defendants, it would not serve the interests of justice because, as discussed below, Plaintiffs have failed to state a claim for relief. See Rogers v. United States, No. 10 Civ. 1247 (NRB), 2010 WL 4968184, at *1 (S.D.N.Y. Nov. 30, 2010) (declining to transfer case where “the action [was] subject to dismissal on other grounds”); Watford v. Scully, 88 Civ. 8372 (RWS), 1989 WL 58062, at *2 (S.D.N.Y. May 24, 1989) (finding that transfer did not serve interests of justice because plaintiff failed to state a claim upon which relief could be granted).

Accordingly, the Court respectfully recommends that Plaintiffs' Transfer Request be DENIED.

B. Failure to State a Claim

In the alternative, even if personal jurisdiction existed over Defendants, the Court has reviewed the FAC and finds that Plaintiffs have failed to state a plausible claim for relief.

1. Copyright Claim

Plaintiffs allege that the Fraser Materials are derivative of their copyrighted Series, and that “Defendants' reproduction and distribution” of the Series through the creation and alleged exploitation of the Fraser Materials “has directly infringed on Plaintiffs' exclusive rights in” the Series. (ECF No. 28 ¶ 153).

Defendants argue that Plaintiffs' copyright claim fails for four reasons: (i) the FAC fails to “identify any copyright registration that [Plaintiffs] own,” instead referencing “only two copyright applications” (ECF No. 32 at 16); (ii) “nowhere is Plaintiffs' [Amended] Complaint do they allege either what is actually covered by either of these copyright applications, or that any of the Defendants copied any of the copyrightable expression therein[,]” and that “what Plaintiffs are actually trying to do is to claim ownership over the historical facts related to Bishop Sheen's life, along with well-known historical figures that he interacted with” (id. at 16-17); (iii) “the Option [Agreement] grant[ed] Breakthrough the right to prepare a derivative work based on the Pilot Script[,]” and, “[a]ccordingly, Breakthrough had the contractual right to create, and after, the expiration of the Option [Agreement], to exploit the Fraser Materials” (id. at 18); and (iv) the copyright claim is barred by the applicable three-year statute of limitations, because Plaintiffs were aware of the Fraser Materials by June 22, 2017 at the latest but did not commence this action until April 13, 2021. (Id.)

a. Legal standards

i. Elements of copyright infringement claim

“To establish a claim of copyright infringement, ‘two elements must be proven: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.'” Abdin v. CBS Broad. Inc., 971 F.3d 57, 66 (2d Cir. 2020) (quoting Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991)). “To satisfy the second element, a plaintiff ‘must demonstrate that: (1) the defendant has actually copied the plaintiff's work; and (2) the copying is illegal because a substantial similarity exists between the defendant's work and the protectible elements of plaintiff's [work].” Id. (quoting Yurman Design, Inc. v. PAJ Inc., 262 F.3d 101, 110 (2d Cir. 2001).

“The test for infringement of a copyright is of necessity vague.” Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57, 63 (2d Cir. 2010) (citation omitted). “Indeed, the determination of the extent of similarity that will constitute a substantial, and hence infringing, similarity presents one of the most difficult questions in copyright law, and one that is the least susceptible of helpful generalizations.” Id. (internal quotation and citation omitted). “For that reason, and because the question of substantial similarity typically presents an extremely close question of fact, questions of non-infringement have traditionally been reserved for the trier of fact.” Id. (internal citation omitted). The Second Circuit has “explained that courts may resolve the question of substantial similarity as a matter of law at the pleadings stage based on a review of the works in their entirety.” Shull v. TBTF Prods., Inc., No. 20-3529, 2021 WL 3027181, at *2 (2d Cir. July 19, 2021) (citing Peter F. Gaito Architecture, LLC, 602 F.3d at 63-65).

“[F]acts are not copyrightable.” Feist Publ'ns, Inc., 499 U.S. at 345. “In a work of historical fiction, very many elements of a work are drawn from historical events, not from the author's own creativity.” Effie Film, LLC v. Murphy, 932 F.Supp.2d 538, 554 (S.D.N.Y. 2013), aff'd, 564 Fed.Appx. 631 (2d Cir. 2014). “Therefore, many of the key features of a work of historical fiction- it's plot, setting, characters-are largely excluded from the ‘protectable' realm and, accordingly, from the similarity analysis.” Id. “Thus, . . . ‘the essence of infringement lies in taking not a general theme but its particular expression through similarities of treatment, details, scenes, events and characterization.'” Id. (quoting Reyher v. Children's Television Workshop, 533 F.2d 87, 91 (2d Cir.1976)).

ii. Statute of limitations

“Civil actions under the Copyright Act must be brought ‘within three years after the claim has accrued.'” Kwan v. Schlein, 634 F.3d 224, 228 (2d Cir. 2011) (quoting 17 U.S.C. § 507(b)). “[T]he principles governing the analysis of a statute of limitations defense in the copyright context differ depending upon whether the plaintiff asserts a claim focusing on disputed copyright ownership or merely infringing conduct.” Roberts v. BroadwayHD LLC, 518 F.Supp.3d 719, 730 (S.D.N.Y. 2021) (“Roberts I”). “A copyright infringement claim is an ‘ownership claim' when it ‘does not involve the nature, extent or scope of copying,' but instead focuses on competing assertions of ownership or rights in the work at issue.” Id. at 730-31 (quoting Kwan, 634 F.3d at 229). To determine whether a copyright claim is one for ownership or infringement, “[c]ourts should consider factors such as: [i] whether the plaintiff concedes in any filings that questions of ownership and authorship are at the heart of the claim; [ii] whether the plaintiff's copyright ownership is conceded by the defendant; [iii] whether the plaintiff alleges anything specific about the means of infringement; and [iv] whether the lawsuit is between two parties who claim ownership of the copyrights.” Walker v. Carter, 210 F.Supp.3d 487, 505 (S.D.N.Y. 2016) (citations omitted).

“An ownership claim accrues only once, when ‘a reasonably diligent plaintiff would have been put on inquiry as to the existence of a right.'” Kwan, 634 F.3d at 229 (quoting Stone v. Williams, 970 F.2d 1043, 1048 (2d Cir.1992)). “Under this rubric, any number of events can trigger the accrual of an ownership claim, including ‘[a]n express assertion of sole authorship or ownership.'” Id. (quoting Netzer v. Continuity Graphic Assocs., Inc., 963 F.Supp. 1308, 1315 (S.D.N.Y.1997)). The Second Circuit “has identified at least three types of events that can put a potential plaintiff on notice and thereby trigger the accrual of an ownership claim: public repudiation; private repudiation in communications between the parties; and implicit repudiation ‘by conspicuously exploiting the copyright without paying royalties.'” Wilson v. Dynatone Publ'g Co., 892 F.3d 112, 118 (2d Cir. 2018) (quoting Gary Freidrich Enters., LLC v. Marvel Characters, Inc., 716 F.3d 302, 317 (2d Cir. 2013)). “Where . . . the ownership claim is time-barred, and ownership is the dispositive issue, any attendant infringement claims must fail.” Kwan, 634 F.3d at 230; see Simmons v. Stanberry, 810 F.3d 114, 116 (2d Cir. 2016) (“Where the plaintiff's claims were rooted in her contested assertion of an ownership interest in the copyright, and that claim of ownership interest was time-barred because of the plaintiff's delay in suing, the plaintiff could not resuscitate the untimely claim by relying on claims against the defendants' continuing course of infringing publication after the plaintiff's ownership claim became time-barred.”).

b. Application

The Court first addresses the statute of limitations, which, for the reasons set forth below, bar Plaintiffs' copyright claim.

i. Plaintiffs' copyright claim is time-barred

Having carefully reviewed the FAC and its voluminous collection of exhibits, the Court finds that Plaintiffs' copyright allegations sound primarily in an ownership claim, not an infringement claim. Throughout the FAC, Plaintiffs claim to be the “sole owner” of all rights to the Series, and challenge Defendants' asserted interest in the Fraser Materials. See e.g., ECF No. 28 ¶¶ 152, 158, 178, 179, 185, 199, 201). In other words, Plaintiffs premise their copyright claim on the ownership of the rights to the Fraser Materials, and not simply on whether Defendants' exploitation of the Fraser Materials infringes on Plaintiffs' copyright. Indeed, Defendants dispute Plaintiffs' ownership of the Fraser Materials. (See ECF No. 32 at 18 (arguing that the Pitch Option Agreement “grant[ed] Breakthrough the right to prepare a derivative work based on the Pilot Script, and vest[ed] ownership of that work in Breakthrough”) (citation omitted)). While the FAC also includes allegations of copyright infringement, those allegations are attendant to the ownership claim. See Roberts I, 518 F.Supp.3d at 731 (finding copyright claim “point[ed] towards an ownership claim” where the “allegations suggest an assertion of ownership by the [] Defendants”); Ortiz v. Guitian Bros. Music Inc., No. 07 Civ. 3897 (RWS), 2008 WL 4449314, at *3 (S.D.N.Y. Sept. 29, 2008) (construing copyright claim as ownership claim where the plaintiff “place[d] ownership of the copyright squarely at issue [by alleging in] the Complaint, that he ‘is the sole owner of the copyrights in the [work]'”); c.f., Roberts v. BroadwayHD LLC, No. 19 Civ. 9200 (KPF), 2022 WL 976872, at *10 (S.D.N.Y. Mar. 31, 2022) (finding infringement, not ownership, was the “core” issue raised where the “Plaintiff allege[d] that he is the sole and exclusive owner of the copyright in the [work], and [the defendant] agree[d] with Plaintiff that it did not ever represent that it owns the [work]”) (citation omitted).

“Having determined that ‘ownership forms the backbone of the ‘infringement' claim,' the relevant inquiry is whether it is evident from the face . . . [the FAC] that [Plaintiffs'] ownership claim is time-barred.” Charles v. Seinfeld, 410 F.Supp.3d 656, 660 (S.D.N.Y. 2019), aff'd, 803 Fed.Appx. 550 (2d Cir. 2020)). As set forth above, Plaintiffs' ownership claim accrued when, with reasonable diligence, they “would have been put on inquiry as to the existence of a right.” Stone, 970 F.2d at 1048.

Here, the Court finds that, at the latest, Plaintiffs were on notice of their copyright claim by December 12, 2017, when Plaintiffs, through Sandler, received the December 2017 Letter, in which BFTV “expressly reserve[d] the right to proceed with its own separate project regarding Bishop Sheen based on the” Fraser Materials. (ECF No. 28 at 55). Drawing all inferences in Plaintiffs' favor, a reasonably diligent plaintiff would have understood that BFTV was rejecting Plaintiffs' claim to ownership of the Fraser Materials and expressly claiming ownership for itself. See Kwan, 634 F.3d at 229 (explaining that “express assertion of sole authorship or ownership” can trigger the accrual of an ownership claim) (citation omitted); Wilson v. Dynatone Publ'g Co., 892 F.3d 112, 118 (2d Cir. 2018) (explaining that “private repudiation in communications between the parties” is among the “types of events that can put a potential plaintiff on notice and thereby trigger the accrual of an ownership claim”). As a result, Plaintiffs had three years from that date-until December 12, 2020-to file their claim. Because Plaintiffs did not file their claim until April 13, 2021 (ECF No. 1), more than three years later, their copyright claim is time-barred.

Neither the February 2020 Letter, in which BFTV reiterated its alleged ownership of the Fraser Materials, nor the February 2020 Article, through which Plaintiffs allegedly learned that Defendants were purportedly exploiting the Fraser Materials, are sufficient to save Plaintiffs' copyright claim. While both allegations fall within the three-year limitations period, neither alters the Court's conclusion that Plaintiffs were on notice of BFTV's purported ownership of the Fraser Materials as of December 2017. Thus, the fact that BFTV may have subsequently engaged in infringing conduct by exploiting those materials is not sufficient to avoid the statute of limitations. See Simmons, 810 F.3d at 116 (finding that the plaintiff “could not revive [a] time-

barred claim of ownership of a copyright interest by relying on the defendants' continued exploitation of the copyright within three years of his filing suit”); Roberts I, 518 F.Supp.3d at 738 (finding copyright claim accrued on “the date at which Plaintiff became aware of the [] Defendants' assertion of ownership”); Cole v. Blackwell Fuller Music Publ'g, LLC, No. 16 Civ. 7014 (VSB), 2018 WL 4680989, at *5-6 (S.D.N.Y. Sept. 28, 2018) (holding that ownership claim accrued when plaintiff knew or should have known that defendants' predecessors-in-interest held themselves out as the copyright owners of the work); Minder Music Ltd. v. Mellow Smoke Music Co., No. 98 Civ. 4496 (AGS), 1999 WL 820575, at *2 (S.D.N.Y. Oct. 14, 1999) (“Although plaintiff attempts to portray its claim as one for an ongoing infringement, it has been established that the statute of limitations cannot be defeated by portraying an action as one for infringement when copyright ownership rights are the true matter at issue.”).

Accordingly, the Court respectfully recommends that Plaintiffs' copyright claim be DISMISSED as untimely.

ii. Plaintiffs have adequately pled a copyright infringement claim

In the alternative, if Plaintiffs' copyright claim were timely, for the reasons set forth below Plaintiffs have adequately pled the elements of this claim. As noted above, aside from its statute of limitations argument, Defendants argue that Plaintiffs' copyright claims because (i) the FAC fails to “identify any copyright registration that [Plaintiffs] own,” instead referencing “only two copyright applications” (ECF No. 32 at 16), (ii) “nowhere is Plaintiffs' [Amended] Complaint do they allege either what is actually covered by either of these copyright applications, or that any of the Defendants copied any of the copyrightable expression therein[,]” and that “what Plaintiffs are actually trying to do is to claim ownership over the historical facts related to Bishop Sheen's life, along with well-known historical figures that he interacted with” (id. at 16-17), and (iii) “the Option [Agreement] grant[ed] Breakthrough the right to prepare a derivative work based on the Pilot Script” and, “[a]ccordingly, Breakthrough had the contractual right to create, and after, the expiration of the Option [Agreement], to exploit the Fraser Materials” (id. at 18). The Court finds that Plaintiffs have alleged the elements of a copyright claim.

First, Defendants' argument that the FAC fails to “identify any copyright registration that [Plaintiffs] own” and instead references “only two copyright applications” (ECF No. 32 at 16) does not warrant dismissal. In the FAC, Plaintiffs explicitly allege that they are copyright owners of “A Life Worth Living” and “Life is Worth Living,” which are “television script[s]/screenplays and [a] series pitch” for the Series. (ECF No. 28 ¶¶ 7, 17). This is sufficient to adequately allege Plaintiffs' compliance with 17 U.S.C. § 441(a), which makes “preregistration or registration of the copyright claim has been made in accordance with this title” a prerequisite to a copyright claim. 17 U.S.C. § 411. See Warren v. John Wiley & Sons, Inc., 12 Civ. 5070 (JPO), 2013 WL 3328224, at *4-5 (S.D.N.Y. July 2, 2013) (“Plaintiffs need only ‘allege . . . that plaintiff owns the copyrights in those works' and ‘that the copyrights have been registered in accordance with the statute,' .... [I]t would be inappropriate for the Court to require production of the relevant certificates of incorporation [sic] at this preliminary stage of the litigation.”) (quoting Kelly v. L.L. Cool J., 145 F.R.D. 32, 36 (S.D.N.Y. 1992)).

Second, Plaintiffs have plausibly alleged that Defendants infringed on their copyrighted Series. As discussed above, “[t]o establish a claim of copyright infringement, ‘two elements must be proven: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.'” Abdin, 971 F.3d at 66 (quoting Feist Publ'ns, 499 U.S. at 361). “To satisfy the second element, a plaintiff ‘must demonstrate that: (1) the defendant has actually copied the plaintiff's work; and (2) the copying is illegal because a substantial similarity exists between the defendant's work and the protectible elements of plaintiff's [work].” Id. (quoting Yurman Design, 262 F.3d at 110).

Here, Defendants do not meaningfully dispute the substantially similarity between the Fraser Materials and Plaintiffs' copyrighted Series. Indeed, by arguing that the Fraser Materials do not infringe on the Series because Pitch Option Agreement “grant[ed] Breakthrough the right to prepare derivative work based on the [Plaintiffs'] Script” for the Series, Defendants arguably concede that the Fraser Materials are derivative and thus substantially similar. (ECF No. 32 at 18). Moreover, the FAC includes numerous allegations regarding the similarity between the Fraser Materials and Plaintiff's script. (See ECF No. 28 ¶¶ 66-106).

Instead, Defendants' argument primarily focuses on their claim that Plaintiffs improperly attempt “to claim ownership over the historical fats related to Bishop Sheen's life, along with well-known historical figures that he interacted with.” (ECF No. 32 at 17). This argument, however, misconstrues Plaintiffs' allegations: the FAC references various historical events and figures incorporated into both Plaintiffs' script and the Fraser Materials, but Plaintiffs are claiming that the Fraser Materials infringe on Plaintiffs' “particular expression through similarities of treatment, details, scenes, events and characterization.” Effie Film, 932 F.Supp.2d at 554 (quoting Reyher, 533 F.2d at 91). Although it is unable to “review [] the works in their entirety” Shull, No. 20-3529, 2021 WL 3027181, at *2 (2d Cir. July 19, 2021), the Court finds that Plaintiffs' allegations are sufficient to allege a plausible copyright claim.

Finally, Defendants' argument that they had the contractual right to exploit the Fraser

Materials overstates the terms of the Pitch Option Agreement. (ECF No. 32 at 18). As Plaintiffs correctly point out, the Pitch Option Agreement provided that “all rights” to the Series remained with or reverted to Plaintiffs after expiration of the Pitch Option Agreement, and that “neither BFTV nor any such affiliate shall make any claim with respect” to “Development Materials” paid for by BFTV, which would include the Fraser Materials. (ECF No. 28 ¶ 3; see id. at 49). Accordingly, Plaintiffs have plausibly alleged that they did not consent to Defendants' exploitation of the Fraser Materials.

2. Breach of Contract ²

2 The Pitch Option Agreement included a choice-of-law clause providing that it “shall be governed and construed in accordance with the laws of the County of Los Angeles, the State of California and the laws of the United States applicable therein.” (ECF No. 28 at 50). Although it is declining, at this stage, to engage in a choice of law analysis (see § III.B.2 supra), the Court notes that, “under New York law, the Court need engage in a choice-of-law analysis ‘only where there is an actual conflict of law between the two jurisdictions.'” Sharbat v. Iovance Biotherapeutics, Inc., No. 20 Civ. 1391 (ER), 2022 WL 45062, at *4 (S.D.N.Y. Jan. 5, 2022) (quoting Medtronic, Inc. v. Walland, No. 21 Civ. 2908 (ER), 2021 WL 4131657, at *4 (S.D.N.Y. Sept. 10, 2021)). “There is, however, no real conflict between the laws of California and New York for breach of contract[.]” Labajo v. Best Buy Stores, L.P., 478 F.Supp.2d 523, 528 (S.D.N.Y. 2007) (citing Bridgeway Corp. v. Citibank, N.A., 132 F.Supp.2d 297, 305 (S.D.N.Y.2001) (elements for breach of contract under New York law) and Reichert v. General Ins. Co., 442 P.2d 377, 381 (Cal. 1968) (elements for breach of contract under California law).

Plaintiffs allege that, because the Pitch Option Agreement provided that “all rights for the property revert back to the [P]laintiffs” (ECF No. 28 ¶ 165), “BFTV has committed a breach of contract” by asserting ownership of and allegedly exploiting the Fraser Materials. (Id. ¶¶ 16465). Plaintiffs also allege that “BFTV have broken the terms of the [Pitch] [O]ption [A]greement by never actually pitching materials to studios or networks with the [P]laintiffs.” (Id. ¶ 167).

Defendants argue that, “[t]o the extent Plaintiffs claim that Breakthrough breached the

Option by copying and sharing the Fraser Materials, this is preempted by the Copyright Act.” (ECF No. 32 at 20 n.3 (citation omitted)). Regarding their failure to pitch Plaintiffs' script, Defendants argue that the Pitch Option Agreement gave “Breakthrough the exclusive right, but not the obligation to pitch Plaintiff's [sic] script.” (Id. at 19 (citation omitted)).

a. Legal standards

Under New York law, “a claim for breach of contract requires ‘(1) the existence of an agreement, (2) adequate performance of the contract by the plaintiff, (3) breach of contract by the defendant, and (4) damages.'” Talon Pro. Servs., LLC v. CenterLight Health Sys. Inc., No. 20 Civ. 78 (PAE), 2021 WL 1199430, at *4 (S.D.N.Y. Mar. 30, 2021) (quoting Eternity Glob. Master Fund Ltd. v. Morgan Guar. Tr. Co. of N.Y., 375 F.3d 168, 177 (2d Cir. 2004)). “In construing a NewYork contract, ‘[i]f a contract is unambiguous on its face, its proper construction is a question of law.'” Id. (quoting Metro. Life Ins. Co. v. RJR Nabisco. Inc., 906 F.2d 884, 889 (2d Cir. 1990)).

“When Congress revised the copyright laws in 1976, it specifically provided for preemption of all state rights equivalent to those within the scope of federal copyright law.” Am. Movie Classics Co. v. Turner Entm't Co., 922 F.Supp. 926, 930 (S.D.N.Y. 1996). Section 301 of the

Copyright Act provides:

On and after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103, whether created before or after that date and whether published or unpublished, are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.

17 U.S.C. § 301(a). “[A] breach of contract claim is preempted if it is merely based on allegations that the defendant did something that the copyright laws reserve exclusively to the plaintiff (such as unauthorized reproduction, performance, distribution, or display).” Am. Movie, 922 F.Supp. at 931. “However, if the breach of contract claim is based on allegations that the parties' contract creates a right not existing under copyright law-a right based upon a party's contractual promise-and the plaintiff is suing to protect that contractual right, then the claim is not preempted.” Id.

b. Application

The Court agrees with Defendants that Plaintiffs have failed to state a claim for breach of contract. With respect to Plaintiffs' claim that BFTV breached the Pitch Option Agreement “by never actually pitching materials to studios or networks” (ECF No. 28 ¶ 167) is a nonstarter. As Defendants correctly point out, the Pitch Option Agreement granted BFTV the “exclusive right to pitch the Project[.]” (Id. at 28 (emphasis added)). It did not obligate BFTV to pitch the Project. Accordingly, BFTV's failure to pitch the Project to studios or networks could not, as a matter of law, constitute a breach of the Pitch Option Agreement.

Plaintiffs' claim that BFTV breached the Pitch Option Agreement by asserting ownership of and allegedly exploiting the Fraser Materials also fails as a matter of law. (ECF No. 28 ¶¶ 16465). The basis for this claim is Plaintiffs' assertion that, under the Pitch Option Agreement, “all rights for the property revert back to the [P]laintiffs[.]” (ECF No. 28 ¶ 165). This claim, however, is “merely based on allegations that the [D]efendant[s] did something that the copyright laws reserve exclusively to” Plaintiffs, i.e., reproduction of the Series. Am. Movie, 922 F.Supp. at 931. Accordingly, the Copyright Act preempts Plaintiffs' breach of contract claim relating to BFTV's exploitation of the Fraser Materials. Id. (finding breach of contract claim preempted where “[t]here [was] no allegation that [the defendant] breached any provisions of the Agreement other than those providing [the plaintiff] with the exclusive right to exhibit the [work] during the windows specified in the Agreement”).

Therefore, the Court respectfully recommends that Plaintiffs' breach of contract claim be DISMISSED for failure to state a claim.

3. Defamation

Plaintiffs allege that Defendants' “false statements [in the February 2020 Letter] about their ownership rights in the Fraser Materials and the terms of the Pitch Option Agreement” constitute defamation. (ECF No. 28 ¶ 28).

Defendants argue that Plaintiffs' defamation claims fails because it is barred by the one-year statute of limitations and, in any event, because Defendants' statements in the February 2020 Letter do not support a plausible defamation claim. (ECF No. 32 at 18-19).

a. Legal standards

“Defamation is the ‘making of a false statement which tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society.'” Moraes v. White, No. 21 Civ. 4743 (PAE), 2021 WL 5450604, at *9 (S.D.N.Y. Nov. 22, 2021) (quoting Foster v. Churchill, 87 N.Y.2d 744, 751 (1996)). “Under New York law, to state a claim for defamation, a plaintiff must allege ‘(1) a written [or spoken] defamatory statement of and concerning the plaintiff, (2) publication to a third party, (3) fault, (4) falsity of the defamatory statement, and (5) special damages or per se actionability.'” Id. (quoting Palin v. N.Y.Times Co., 940 F.3d 804, 809 (2d Cir. 2019)). “At the motion to dismiss stage, the court ‘must decide whether the statements, considered in the context of the entire publication, are reasonably susceptible of a defamatory connotation, such that the issue is worthy of submission to a jury.'” Id. at *10 (quoting Palin, 940 F.3d at 809).

“New York law sets a one-year statute of limitations for defamation [] claims.” Enigma Software Grp. USA, LLC v. Bleeping Computer LLC, 194 F.Supp.3d 263, 276 (S.D.N.Y. 2016) (citing N.Y. C.P.L.R. § 215(3)). “Under the ‘single publication rule,' the publication of a defamatory statement-however widespread its distribution-is ‘in legal effect, one publication which gives rise to one cause of action,' with the limitations period running from the date of publication.” Id. (quoting Gregoire v. Putnam's Sons, 298 N.Y. 119, 123 (1948)).

b. Application

The Court agrees with Defendants that Plaintiffs have failed to state a defamation claim because, even if Defendants' statements in the February 2020 Letter were defamatory, Plaintiffs' claim is time-barred. Specifically, Leinburd sent, and The Sheen Center received, the February 2020 Letter on February 26, 2020. ECF No. 28 ¶ 26; see id. at 57-58, 473). Thus, any defamation based on the publication of the February 2020 Letter accrued on that date, and Plaintiffs had until February 26, 2021 to file their claim. Plaintiffs did not file the Complaint, however, until April 13, 2021. (ECF No. 1). As a result, their defamation claim is time-barred.

Accordingly, the Court respectfully recommends that Plaintiffs' defamation claim be DISMISSED as untimely.

4. Tortious Interference With Contract

Plaintiffs allege that, “[a]s a direct result of [the February 2020 Letter], The Sheen Center exercised its rights under their contract to terminate [P]laintiffs' Artist-in-Residence agreement[.]” (ECF No. 28 ¶ 175). Plaintiffs allege that, as a result, they “could not take their Sheen series to any networks or studios for fear of more malicious behavior from BFTV, and anyone representing their false claims against [P]laintiffs.” (Id. ¶ 181). Plaintiffs also allege that they “have suffered damages including loss of funding, loss of artist in residency, lost the ability to create deal flow, get into development, and revenues that would have been expected upon executing a deal with a studio or network[.]” (Id. ¶ 182).

Defendants argue, inter alia, that Plaintiffs' tortious interference with contract claim is “based on the alleged defamatory [February 2020 [L]etter.” (ECF No. 32 at 15). The Court interprets this argument to suggest that Plaintiffs' tortious interference with contract claim is duplicative of their defamation claim.

a. Legal standards

“Under New York law, a tortious-interference claim requires: ‘(1) the existence of a valid contract between the plaintiff and a third party, (2) defendant's knowledge of that contract, (3) defendant's intentional procurement of the third-party's breach of the contract without justification, (4) actual breach of the contract, and (5) damages resulting therefrom.'” Talon Pro. Servs., LLC v. CenterLight Health Sys. Inc., No. 20 Civ. 78 (PAE), 2021 WL 1199430, at *8 (S.D.N.Y. Mar. 30, 2021) (quoting Rich v. Fox News Network, LLC, 939 F.3d 112, 126-27 (2d Cir. 2019)).

“New York law considers claims sounding in tort to be defamation claims . . . where those causes of action seek damages only for injury to reputation, [or] where the entire injury complained of by plaintiff flows from the effect on his reputation.” Hengjun Chao v. Mt. Sinai Hosp., 476 Fed.Appx. 892, 895 (2d Cir. 2012) (citation omitted). “To successfully assert both a cause of action for defamation and tortious interference, a plaintiff must allege ‘an independent source of the alleged harm.'” Sasson Plastic Surgery, LLC v. UnitedHealthcare of N.Y., Inc., No. 17 Civ.1674 (SJF) (ARL), 2021 WL 1224883, at *17 (E.D.N.Y. Mar. 31, 2021) (quoting Glob. Supplies NY, Inc. v. Electrolux Home Prods., Inc., No. 19 Civ. 4823 (LDH) (CLP), 2021 WL 1108636, at *3 (E.D.N.Y. Mar. 23, 2021)). “Absent an independent source of harm, the tortious interference cause of action is dismissed as duplicative ‘because any economic damages derive from defamatory statements.'” Id. (quoting Goldman v. Barrett, 733 Fed.Appx. 568, 571 (2d Cir. 2018)).

b. Application

The Court finds that Plaintiffs' tortious interference with contract claim is duplicative of their defamation claim. Indeed, “[t]hese converging claims are premised on identical underlying factual content,” Goldman v. Barrett, 733 Fed.Appx. 568, 571 (2d Cir. 2018), i.e., Leinburd's sending the February 2020 Letter to The Sheen Center. (ECF No. 28 ¶¶ 157-59; 172-82). Thus, “any economic damages derive from [the allegedly] defamatory statements.” Goldman, 733 Fed.Appx. at 571. “Even if the Defendants possessed more than one intention, Plaintiffs have not alleged an independent source of harm.” Id. As a result, Plaintiff's tortious interference with contract claim is duplicative of their defamation.

Accordingly, the Court respectfully recommends that Plaintiffs' tortious interference with contract claim be DISMISSED for failure to state a claim.

5. Tortious Interference With Business Relations ³

3 Plaintiffs list separate claims for tortious interference with business relations (ECF No. 28 ¶¶ 183-86) and tortious interference with prospective economic advantage (Id. ¶¶ 187-92). However, “tortious interference with business relations and tortious interference with prospective economic advantage are not distinct causes of action.” Valley Lane Indus. Co. v. Victoria's Secret Direct Brand Mgmt., L.L.C., 455 Fed.Appx. 102, 105 (2d Cir. 2012) (citing Catskill Dev., L.L.C. v. Park Place Entm't Corp., 547 F.3d 115, 132 (2d Cir.2008) (noting that tortious interference with business relations is sometimes referred to “by an alternative name, ‘tortious interference with prospective economic advantage'”). The Court therefore analyzes them as a single claim.

Plaintiffs allege that, “[b]y falsely claiming that [P]laintiffs are infringing on BFTV's copyright in the Fraser Material[s], Defendants have intentionally and wrongfully interfered with and will continue to intentionally interfere with and disrupt [P]laintiffs' prospective business relations with TV/movie producers and executives interested in pursuing further development of The Sheen Series.” (ECF No. 28 ¶ 191).

Defendants argue that Plaintiffs' tortious interference with business relations claims is duplicative of their tortious interference with contract claim. (ECF No. 32 at 20). Defendants also argue that Plaintiffs have failed to plausibly allege that Defendants possessed the requisite improper motive. (Id. at 20-22).

a. Legal standards

“[C]laims for tortious interference with business relations face a higher burden than . . . claim[s] of interference with an existing contract, as a plaintiff must show ‘more culpable conduct on the part of the defendant.'” Guzik v. Albright, No. 16 Civ. 2257 (JPO), 2018 WL 4386084, at *5 (S.D.N.Y. Sept. 14, 2018) (quoting Hadami, S.A. v. Xerox Corp., 272 F.Supp.3d 587, 602 (S.D.N.Y. 2017) (citation omitted)). “A plaintiff suing for tortious interference with business relationship must prove that: ‘(1) there is a business relationship between the plaintiff and a third party; (2) the defendant, knowing of that relationship, intentionally interferes with it; (3) the defendant acts with the sole purpose of harming the plaintiff, or, failing that level of malice, uses dishonest, unfair, or improper means; and (4) the relationship is injured.'” Id. (quoting Hadami, 272 F.Supp.3d at 602).

b. Application

The Court finds that, like their tortious interference with contract claim, Plaintiffs' tortious interference with business relations claim is duplicative of their defamation claim. As Defendants correctly point out, this claim is “based on the very same [February 2020] Letter and alleged harm” as their tortious interference with contract claim. (ECF No. 32 at 20; see ECF No. 28 ¶¶ 172-92). Having determined that Plaintiffs' tortious interference with contract claim is duplicative of their defamation claim, the Court must reach the same conclusion as to Plaintiffs' tortious interference with business relations claim. Thus, this claim is “properly dismissed as duplicative of the defamation claim because any economic damages derive from defamatory statements.” Goldman, 733 Fed.Appx. at 571.

Accordingly, the Court respectfully recommends that Plaintiffs' tortious interference with business relations claim be DISMISSED for failure to state a claim.

6. Lanham Act and Unfair Competition Claims

To support their Lanham Act claim, Plaintiffs allege that, despite “agree[ing] that [P]lainitffs would retain all rights in their intellectual property at the expiration of the [Pitch Option Agreement,]” Defendants “misappropriated, in bad faith, [P]lainitffs' good will, skills, deep knowledge and understanding of Bishop Fulton Sheen[,]” and that “Defendants intentionally and in bad faith appropriated [P]laintiffs' labor with the intent to hold itself out as being the copyright owners of the Sheen Series pitch.” (ECF No. 28 ¶¶ 197, 199). Similarly, to support their common law unfair competition claim, Plaintiffs also allege that “Defendants have made literally false and/or misleading statements falsely holding themselves out as the copyright owners of materials derived from [P]laintiffs' Sheen Project script and falsely claiming that [P]laintiffs' script infringes on protectable elements in the Fraser Materials.” (Id. ¶ 201).

Defendants argue that these allegations do not state a Lanham Act or state law unfair competition claim. (ECF no. 32 at 22-23). Defendants also argues that these claims are preempted by the Copyright Act. (ECF No. 32 at 23)

a. Legal standards

The Lanham Act provides in relevant part:

(a)(1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which-

(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or

(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities,

shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.

15 U.S.C. § 1125. “Actions arising under subsection (A), commonly known as reverse passing off claims, proscribe misrepresentations about who manufactured the product in question.” Gary Friedrich Enters., 713 F.Supp.2d 215, 234 (S.D.N.Y. 2010) (citing Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 28-30 (2003)). “It does not, however, cover misrepresentations about the author of an idea, concept, or communication embodied in those goods.” Id. (citing Dastar, 539 U.S. at 37).

“Analysis of common law claims for unfair competition ‘mirror[s] the Lanham Act.'” Gary Friedrich Enters., 713 F.Supp.2d at 231 (quoting ESPN, 586 F.Supp.2d at 230)). “To establish unfair competition, New York law requires that (1) the plaintiff possesses a ‘valid, protectable mark'; and (2) the defendant's use of the mark resulted in ‘a likelihood of confusion between the marks of the alleged infringer and the charging party.'” Gary Friedrich Enterprises, LLC v. Marvel Enters., Inc., 713 F.Supp.2d 215, 231 (S.D.N.Y. 2010) (quoting ESPN, Inc. v.Quiksilver, Inc., 586 F.Supp.2d 219, 230 (S.D.N.Y.2008)); see also Lorillard Tobacco Co. v. Jamelis Grocery, Inc., 378 F.Supp.2d 448, 456 (S.D.N.Y. 2005) (“The essence of the tort of unfair competition under New York common law is the bad-faith misappropriation, for the commercial advantage of one person, [of] a benefit or ‘property' right belonging to another [person].” (citation omitted)).

As discussed above, “[a] state-law cause of action is preempted by the Copyright Act if ‘the subject matter of the state-law right falls within the subject matter of the copyright laws and the state-law right asserted is equivalent to the exclusive rights protected by [§ 106].'”' Kelley v. Universal Music Grp., No. 14 Civ. 2968 (PAE), 2016 WL 5720766, at *8 (S.D.N.Y. Sept. 29, 2016) (quoting Kregos v. Associated Press, 3 F.3d 656, 666 (2d Cir. 1993)).

b. Application

The Court finds that Plaintiffs have failed to state either a Lanham Act or New York unfair competition claim. With respect to the Lanham Act claim, Plaintiffs' allegations premise this claim on “the misrepresentation of ideas embodied in the” Fraser Materials. Gary Friedrich Enters., 713 F.Supp.2d at 234. (See ECF No. 28 ¶¶ 200-06). The Lanham Act “does not, however, cover misrepresentations about the author of an idea, concept, or communication embodied in those goods.” Id. “Because misrepresentation of authorship lies at the heart of this action, the plaintiffs' Lanham Act claim is barred by Dastar.” Id. (dismissing author's Lanham Act claims based on unlawful use of his copyrighted characters and story).

Plaintiffs also fail to state an unfair competition claim. “Here, the essence of [P]laintiffs' unfair competition claim is that defendants have violated their exclusive rights to reproduce or prepare derivative works of” the Series. Kelley v. Universal Music Grp., No. 14 Civ. 2968 (PAE), 2016 WL 5720766, at *8 (S.D.N.Y. Sept. 29, 2016). (See ECF No. 28 ¶¶ 193-99). “As pled, this claim ‘not only is based on a copyright claim, but also lacks any extra element making it sufficiently different from a copyright claim to escape preemption.'” (Kelley, 2016 WL 5720766, at *8 (quoting Weber v. Geffen Recs., Inc., 63 F.Supp.2d 458, 462 (S.D.N.Y. 1999)). As a result, “[t]his claim must, therefore, be dismissed.” Id.

Accordingly, the Court respectfully recommends that Plaintiffs' Lanham Act and New York unfair competition claims be DISMISSED for failure to state a claim.

V.CONCLUSION

For the reasons set forth above, the Court respectfully recommends that Defendants' Motion be GRANTED, Plaintiffs' Jurisdictional Discovery and Transfer Requests be DENIED, and that the action be DISMISSED.

United States Magistrate Judge

* * *

NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION

The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Engelmayer.

FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985). If Plaintiffs do not have access to cases cited in this Report and Recommendation that are reported on Westlaw, they may request copies from Defendants' counsel. See Local Civ. R. 7.2.