United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON District Judge.
Scott Boehm, a professional sports photographer, filed this
copyright infringement suit against pro se defendant Richard
Moncher, alleging that Moncher displayed and offered for sale
canvases featuring one of Boehm's photos without
authorization. Moncher, a citizen of California, now moves to
dismiss Boehm's complaint for improper service of process
and lack of personal jurisdiction. Dkt. 6. Boehm moves for an
order allowing service by publication. Dkt. 16. Although it
appears that Moncher is evading service, which would allow
for service by publication, the court will not reach the
service issue because Boehm does not make a prima
facie showing of personal jurisdiction. So the court
will grant Moncher's motion, dismiss Boehm's motion
as moot, and dismiss the case.
court draws the following facts from the parties'
evidentiary submissions and the allegations in Boehm's
complaint. Dkt. 1.
lives in California. He sells Wisconsin sports memorabilia,
including prints, posters, and canvases, online. He bought
some prints and canvases from Dan Zimprich, including at
least one canvas featuring Boehm's photo of Ryan Braun,
the left fielder for the Milwaukee Brewers, and Aaron
Rodgers, the Green Bay Packers' quarterback, shaking
hands. He helped arrange for Rodgers and Bruan to sign
canvases featuring this photo, including transporting the
canvases from Madison to Milwaukee for the event. He offered
the canvas that he bought for sale online through his
directed Zimprich to send many of the other prints and
canvases to Moncher's friend, Doug Barsness. Barsness
operates a store called “PackerGreats” in Stevens
Point, Wisconsin. Dkt. 8-4, at 6. In 2013, Moncher helped to
organize a display of some of these prints and canvases in a
bank lobby in Stevens Point. It's unclear whether the
display was put on by Barness's PackerGreats store,
Moncher's packergreats.com website, or both-Moncher's
email about the display refers to “our retail
shop.” Id. at 5.
initially sued Moncher, Zimprich, and other Wisconsin
citizens for copyright infringement in Boehm v.
Zimprich, No. 14-cv-16 (W.D. Wis. filed Jan. 9, 2014),
transferred from No. 13-cv-1031 (S.D.N.Y. filed Feb.
14, 2013). Zimprich and his wife owned a sports memorabilia
store in Madison. Boehm and his co-plaintiff, David Stluka,
alleged that the Zimpriches made and sold prints and photo
canvases of dozens of plaintiffs' photos without
authorization and that they provided these products to other
defendants, including Moncher.
first attempted to serve Moncher in Boehm v.
Zimprich by delivering the summons and complaint to
Moncher's home. The case proceeded without Moncher's
participation and he defaulted. The court entered judgment
against him in 2015. A year later, the court granted
Moncher's motion to vacate the judgment and dismissed him
from the case because he was not properly served-Boehm left
the summons and complaint at a company that rents mailboxes,
not Moncher's home.
months later, Boehm filed this suit against Moncher. Boehm
located Moncher's home address and attempted to serve him
through a process server on September 7, 2016, but
Moncher's wife refused to accept the papers. The process
server returned on September 20, but no one answered the
door. According to the process server, someone peeked out
from behind the window curtains. According to Moncher, no one
was home. In October, Boehm mailed Moncher a copy of the
summons and complaint with a request for waiver of service.
Moncher refused to sign and return the waiver.
court has subject matter jurisdiction over this copyright
infringement case under 28 U.S.C. § 1331.
moves to dismiss the case for lack of personal jurisdiction.
On Moncher's motion to dismiss, the court accepts
Boehm's well-pleaded factual allegations as true and
considers the supporting evidence adduced by the parties,
resolving any factual disputes in Boehm's favor.
Purdue Research Found. v. Sanofi-Synthelabo, S.A.,
338 F.3d 773, 782 (7th Cir. 2003). Boehm bears the burden of
making a prima facie showing of personal
jurisdiction. Id. Boehm must demonstrate that
Moncher falls within Wisconsin's long-arm statute,
Wis.Stat. § 801.05, which has been interpreted to confer
“jurisdiction ‘to the fullest extent allowed
under the due process clause.'” Felland v.
Clifton, 682 F.3d 665, 678 (7th Cir. 2012) (quoting
Daniel J. Hartwig Assocs., Inc. v. Kanner, 913 F.2d
1213, 1217 (7th Cir. 1990)). If Boehm makes this showing, the
burden shifts to Moncher to show that exercising jurisdiction
over him would offend due process. Steel Warehouse of
Wis., Inc. v. Leach, 154 F.3d 712, 714 (7th Cir. 1998).
party addresses Wisconsin's long-arm statute. Although
Wis.Stat. § 801.05 is liberally construed in favor of
jurisdiction, Kopke v. A. Hartrodt S.R.L., 2001 WI
99, ¶ 10, 245 Wis.2d 396, 629 N.W.2d 662, Boehm still
bears the burden of establishing a prima facie case
for personal jurisdiction under the statute. He fails to do
contends that the court may exercise general jurisdiction
over Moncher. The applicable provision of Wisconsin's
long-arm statute is § 801.05(d)(1), which confers
jurisdiction over a defendant who “[i]s engaged in
substantial and not isolated activities within this state,
whether such activities are wholly interstate, intrastate, or
otherwise.” General jurisdiction is “a demanding
standard, ” and “considerably more
stringent” than the standard for specific jurisdiction.
Abelesz v. OTP Bank, 692 F.3d 638, 654 (7th Cir.
2012) (quoting Purdue Research Found. v.
Sanofi-Synthelabo, S.A., 338 F.3d 773, 787 (7th Cir.
2003)). Boehm adduces no evidence that Moncher engages in
substantial activities within Wisconsin. Moncher does not
live in Wisconsin, nor does he work in ...