Opinion
3:23cv2333-MCR/ZCB
08-04-2023
PRESIDENT DONALD J. TRUMP, 45th President of the United States of America, in his individual capacity, Plaintiff v. SIMON & SCHUSTER, INC.; ROBERT WOODWARD p.k.a BOB WOODWARD; and PARAMOUNT GLOBAL, Defendants.
ORDER
M. Casey Rodgers United States District Judge
The Plaintiff, former President Donald J. Trump, filed this case against journalist Robert Woodward (professionally known as Bob Woodward); book publisher Simon & Shuster, Inc. (SSI); and SSI's parent company Paramount Global (Paramount) (together, the Defendants), alleging the “systematic usurpation, manipulation, and exploitation” of a series of recorded interviews then-President Trump gave to Mr. Woodward between December 2019 and August 2020. See First Amended Complaint (ECF No. 32) at p.2 & ¶ 37. The Defendants have filed two motions which are now pending. First, they seek dismissal or transfer of the case for improper venue pursuant to 28 U.S.C. § 1406(a) and Fed.R.Civ.P. 12(b)(3); or, in the alternative, transfer of venue to a more convenient forum pursuant to 28 U.S.C. § 1404(a) (ECF No. 37) (Def. Mot.). They also request dismissal for failure to state a claim for relief under Fed.R.Civ.P. 12(b)(6) (ECF No. 38). Mr. Trump has responded in opposition (ECF Nos. 43 & 44). For the reasons set forth below, the first motion will be granted to the extent it seeks a transfer of venue, which in turn “obviate[s] the need” to reach the second motion. See Baker v. Major League Baseball Properties, Inc., 2009 WL 1098482, at *1 n.1 (N.D. Fla. Apr. 22, 2009); see also, e.g., Keitt v. Thor Motor Coach, Inc., 2019 WL 13249018, at *2 n.1 (M.D. Fla. Dec. 20, 2019) (“Having determined that this case is subject to transfer, the Court declines to reach the merits of Defendant's arguments under Federal Rule of Civil Procedure 12(b)(6). The transferee court is the appropriate court to address these arguments[.]”) (internal citation omitted).
I. Background
The pertinent facts can be stated briefly. These facts are taken from the First Amended Complaint, so they must be-and are-accepted as true at this stage of the case. Certain uncontroverted facts are also taken from Mr. Woodward's sworn declaration attached to the motion to transfer (Woodward Dec.).
Mr. Trump, the 45th President of the United States, is a citizen and resident of the State of Florida. FAC ¶ 1. His home is at the Mar-a-Lago resort in Palm Beach (which falls under the jurisdiction of the Southern District of Florida), and he brings this action in his individual capacity. Id. ¶¶ 1, 37.
Bob Woodward is a veteran investigative journalist and an associate editor of The Washington Post. FAC ¶ 13; Woodward Dec. ¶ 2. He resides and works in Washington, D.C. FAC ¶ 4; Woodward Dec. ¶ 2. Mr. Woodward has authored at least twenty-one (21) books, fifteen (15) of which have been national bestsellers. FAC ¶ 13; Woodward Dec. ¶ 2. His books have all been published by SSI, a book publisher headquartered in New York City. Woodward Dec. ¶ 4; FAC ¶ 2. SSI is a subsidiary of Paramount, an international media and entertainment company also headquartered in New York City. FAC ¶¶ 2, 5. The Defendants have had multiple contacts with Florida by virtue of marketing, selling, and distributing Mr. Woodward's books in the state, including in this district. See Id. ¶¶ 11-23.
Mr. Woodward has written books about every United States president since Richard Nixon (All the President's Men), and he has interviewed a number of presidents-including Presidents Jimmy Carter, Bill Clinton, George W. Bush, and Barack Obama-in the Oval Office. Woodward Dec. ¶ 2. More recently, Mr. Woodward covered the Trump Administration and authored three books based on his reporting: Fear: Trump in the White House; Peril; and Rage. Woodward Dec. ¶ 3.
While writing Rage, Mr. Woodward interviewed then-President Trump on 19 occasions between December 2019 and August 2020 (the Interviews), and he recorded each one. Id. ¶ 6; FAC ¶¶ 36-37. None of the Interviews was held in the Northern District of Florida. FAC ¶ 37. Three of the Interviews took place in person in late 2019-two at the White House and one at Mar-a-Lago-while the other sixteen were conducted via telephone during the COVID-19 pandemic. FAC ¶ 37; Woodward Dec. ¶¶ 8-13. For each of the telephone Interviews, Mr. Woodward was either at his home or office in Washington, D.C., and President Trump was at the White House (except for a single call during which he was aboard Air Force One). Woodward Dec. ¶¶ 8-13.
The First Amended Complaint alleges that Mr. Woodward “repeatedly” told Mr. Trump that the recorded Interviews were for the “sole purpose” of Rage, FAC ¶ 36, and therefore Mr. Trump did not consent to the use or release of the recordings for any other purpose, id. ¶ 43. Mr. Woodward (through SSI and Paramount) subsequently published the Interviews as a stand-alone work in the form of an audiobook titled The Trump Tapes: The Historical Record and in various derivative works, including a CD, audio download, paperback, and e-book (together, The Trump Tapes). Id. at p.3 & ¶ 39. The First Amended Complaint further alleges that the Defendants not only published the Interviews without Mr. Trump's prior consent, but they “manipulated” the recordings themselves by taking “extensive and unacceptable liberties with the words actually spoken by President Trump” to alter his language and “support the particular narrative desired by Woodward, SSI, and Paramount.” Id. ¶¶ 58-60.
In creating and publishing The Trump Tapes, Mr. Woodward collaborated with his full-time assistant, SSI employees, independent contractors, and other individuals, all of whom were in either Washington, D.C. or New York. Woodward Dec. ¶¶ 5, 21-27. None of the work done on The Trump Tapes was carried out in the Northern District of Florida.
On January 30, 2023, Mr. Trump filed this action seeking “declaratory relief regarding ownership of copyrights” in The Trump Tapes (Count I), and asserting various other claims, to wit: Accounting (Count II); Unjust Enrichment (Count III-V); Promissory Estoppel (Count VI); Violation of the Florida Deceptive and Unfair Trade Practices Act (FDUTPA) (Count VII); Breach of Contract (Count VIII); and Breach of the Covenant of Good Faith and Fair Dealing (Count IX).
II. Discussion
Section 1406(a) provides that “[t]he district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.” Rule 12(b)(3) similarly provides that a party may move to dismiss a case for “improper venue.” Therefore, Section 1406(a) and Rule 12(b)(3) together authorize dismissal or transfer of a case “when venue is ‘wrong' or ‘improper' in the forum in which it was brought.” Atlantic Marine Const. Co., Inc. v. U.S. Dist. Court for Western Dist. of Tex., 571 U.S. 49, 55 (2013). Although both the statute and rule authorize a district court to dismiss a case for lack of venue, “‘the interest of justice generally favors transferring a case to an appropriate forum'” rather than outright dismissing the case. Whitfield v. Southern-Owners Ins. Co., 2020 WL 6938439, at *1 (N.D. Fla. Aug. 27, 2020) (citation omitted). Ultimately, the decision to transfer a case pursuant to Section 1406(a) “is left to the sound discretion of the district court.” Pinson v. Rumsfeld, 192 Fed. App'x 811, 817 (11th Cir. 2006) (citation omitted).
In response to a venue challenge, the plaintiff has the burden to show that venue in his chosen forum is proper. Hamel-Schwulst v. Negrotto, 2010 WL 548318, at *5 (N.D. Fla. Feb. 11, 2010) (citation omitted). In this context, a court must accept the facts in the plaintiff's complaint as true, as long as the facts are not controverted by defense affidavits. Id. The Eleventh Circuit has described the standard of review as follows:
[A]lthough we take the facts of the complaint as true, we do so only to the extent they are uncontroverted by
defendant's affidavits. When the parties submit conflicting affidavits, the court, in the absence of an evidentiary hearing, is inclined to give greater weight to the plaintiff's version of the jurisdictional facts and to construe such facts in the light most favorable to the plaintiff. In sum, Rule 12(b)(3) is a somewhat unique context of dismissal in which we consciously look beyond the mere allegations of a complaint, and, although we continue to favor the plaintiff's facts in the context of any actual evidentiary dispute, we do not view the allegations of the complaint as the exclusive basis for decision.Estate of Myhra v. Royal Caribbean Cruises, Ltd., 695 F.3d 1233, 1239 (11th Cir. 2012) (internal citations, quotation marks, brackets omitted), superseded by statute on other grounds as stated in Caron v. NCL (Bahamas), Ltd., 910 F.3d 1359, 1364 n.2 (11th Cir. 2018).
“Whether venue is ‘wrong' or ‘improper' depends exclusively on whether the court in which the case was brought satisfies the requirements of federal venue laws[.]” Atlantic Marine Const. Co., Inc., 571 U.S. at 55. In arguing that venue is proper in this district, Mr. Trump relies on Section 1400(a) (special venue statute for copyrights) and Section 1391(b) (general venue statute). FAC ¶ 24. Each is addressed in turn.
Section 1400(a) provides that:
Civil actions, suits, or proceedings arising under any Act of Congress relating to copyrights or exclusive rights in mask works or designs may be instituted in the district in which the defendant or his agent resides or may be found.
“A defendant ‘may be found' in a district in which he could be served with process; that is, in a district which may assert personal jurisdiction over the defendant.” Palmer v. Braun, 376 F.3d 1254, 1259 (11th Cir. 2004). Mr. Trump alleges that the Defendants “may be found” in the Northern District of Florida- as they could be served with process here and personal jurisdiction can be asserted over them due to their contacts with this forum in marketing, selling, and distributing Mr. Woodward's various books, including The Trump Tapes-and thus venue is proper in the Northern District of Florida under the special copyright statute in Section 1400(a). The Court disagrees.
Numerous courts have determined that the special venue statute in Section 1400(a) does not apply to copyright cases seeking declaratory relief; instead, the general venue statute in Section 1391(b) (discussed further infra) applies in this context. See, e.g., Finch v. Weigh Down Workshop Ministries, Inc., 2019 WL 1243729, at *2 (E.D. Va. Mar. 18, 2019) (“Venue in copyright cases is usually governed by 28 U.S.C. § 1400. However, because this is a declaratory judgment action, the general venue statute applies.”); Third Party Verification, Inc. v. SIGNATURELINKE, Inc., 2006 WL 8448725, at *2 n.1 (M.D. Fla. June 20, 2006) (“Generally § 1400(a) determines venue for civil cases relating to copyrights. However, case law in other circuits suggests venue for a declaratory judgment action involving copyright invalidity is governed by the general venue statute, 28 U.S.C. § 1391.”) (citing cases); Modern Computer Corp. v. Ma, 862 F.Supp. 938, 946-47 (E.D.N.Y. 1994) (“Because this is a declaratory judgment action involving patent and copyright infringement, venue is governed by the general venue statute, 28 U.S.C. § 1391, rather than the specific venue statute for infringement actions, 28 U.S.C. § 1400.”) (citing Database America, Inc. v. Bellsouth Advert. & Publ'g Corp., 825 F.Supp. 1216, 1223 n.13 (D.N.J. 1993) (“Venue in a declaratory judgment action for patent or copyright infringement is governed by the general venue statute at 28 U.S.C. § 1391(b), rather than by the specific venue statute for infringement actions at 28 U.S.C. § 1400[.]”) (collecting additional cases)). Mr. Trump cites Nu Image, Inc. v. Doe for the assertion that the copyright venue statute applies for declaratory relief for copyright ownership, see ECF No. 43 at 10 (citing Nu Image, Inc. v. Doe, 799 F.Supp.2d 34, 43 (D. D.C. 2011)); however, his reliance on this case is misplaced because Nu Image, Inc. is a copyright infringement case, not a copyright ownership case seeking declaratory relief. See 799 F.Supp.2d at 36. In short, Mr. Trump failed to cite and the Court has not found a case applying the copyright venue statute in an analogous case seeking declaratory relief for copyright ownership.
Mr. Trump's sole copyright claim in the First Amended Complaint (Count I) seeks declaratory relief regarding ownership of the copyrights in The Trump Tapes as opposed to relief for copyright infringement. See FAC ¶¶ 65-72. As a result, the special venue statute in Section 1400(a) does not apply, and instead Mr. Trump must satisfy the general venue statute in Section 1391(b) for venue to be proper in this district.
Section 1391(b) provides that:
A civil action may be brought in-
(1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located;
(2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or
(3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action.