J&J Sports Productions, Inc. v. Fialko et al, No. 1:2017cv03275 - Document 17 (N.D. Ill. 2018)
Court Description: MEMORANDUM Opinion and Order. Signed by the Honorable Harry D. Leinenweber on 1/26/2018. Mailed notice (mc, )
Download PDF
<![CDATA[
J&J Sports Productions, Inc. v. Fialko et al Doc. 17 32IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION J&J SPORTS PRODUCTIONS, INC., Plaintiff, Case No. 17 C 3275 v. Judge Harry D. Leinenweber KEVIN FIALKO, et al., Defendants. MEMORANDUM OPINION AND ORDER Defendant Kevin Fialko’s Motion to Dismiss for Lack of Personal Jurisdiction [ECF No. 7] is granted. Plaintiff J&J Sports Productions, Inc.’s claims against Mr. Fialko are dismissed without prejudice. I. STATEMENT According to the Complaint [ECF No. 2], Plaintiff J&J Sports Productions, nationwide Inc. (“J&J”) television paid for distribution and obtained rights to a the May exclusive 2, 2015, championship fight between Floyd Mayweather, Jr. and Manny Pacquiao (the “Program”). intercepted the Junction Sports ¶ 21.) J&J J&J alleges that without authorization, Defendants fight Bar broadcast and accordingly Grill and in brought showed Oswego, this it at the Illinois. action Prohibition (See, Compl. against Defendants, alleging violations of the Communications Act of 1934, 47 U.S.C. § 605 et seq., and the Cable and Television Consumer Protection and Dockets.Justia.com Competition Act of 1992, 47 U.S.C. § 553 et seq. Defendants moved this Court to dismiss J&J’s claims against Defendants Kevin Fialko (“Fialko”) personal and Mattoon Investments, jurisdiction. subsequently (J&J’s stipulated to Mot., Mattoon’s LLC ECF (“Matoon”) No. for 7.) lack Both dismissal. The of parties Court now considers Fialko’s Rule 12(b)(2) motion. II. DISCUSSION A lengthy analysis is not necessary here. The jurisdictional allegations in the Complaint are taken as true unless controverted by the defendant’s affidavits, Turnock v. Cope, 816 F.2d 332, 333 (7th Cir. 1987), superseded on other grounds, and any conflicts among affidavits must be resolved in the plaintiff’s favor. RAR, Inc. v. Turner 1997). Diesel, plaintiff Ltd., bears the 107 F.3d burden 1272, of 1275 providing (7th Cir. sufficient establish a prima facie case for personal jurisdiction. evidence The to Id. at 1276. J&J has not met its burden here, so Fialko’s Motion to Dismiss is granted. In federal question cases such as this one, “a federal court has personal jurisdiction over the defendant if either federal law or the law of the state in which the court sits authorizes service of process to that defendant.” Mobile Anesthesiologists Chicago, LLC v. Anesthesia Assocs. of Houston Metroplex, P.A., 623 F.3d 440, 443 (7th Cir. 2010) (citation omitted). at issue do not authorize Where, as here, the federal statutes nationwide service of process, see, 47 U.S.C. § 605 et seq.; 47 U.S.C. § 553 et seq., the Court may exercise - 2 - jurisdiction over the defendants only “if it would be permitted to do so under the Illinois long-arm statute.” Inc., 623 F.3d P. 4(k)(1)(A)). 421, 425 (7th Cir. uBID, Inc. v. GoDaddy Group, 2010) (citing FED. R. CIV. Illinois’s long-arm statute permits the exercise of personal jurisdiction if it would be allowed under either the Illinois Constitution or the United States Constitution. Stat. 5/2–209(c). constitutional Accordingly, requirements “the state merge.” uBID, See, 735 Ill. Comp. statutory Inc., 623 and F.3d federal at 425 (citing Illinois v. Hemi Grp. LLC, 622 F.3d 754, 756-57 (7th Cir. 2010)) (citation omitted). Personal jurisdiction may be “general” or “specific.” jurisdiction systematic” lies only contacts where with the the defendant forum has state. General “continuous See, and Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 415-16 (1984). Defendants subject to general jurisdiction may be haled into court “for any alleged wrong . . . no defendant’s contacts with the forum.” (citation limited. omitted). In contrast, matter how unrelated to the uBID, Inc., 623 F.3d at 426 specific jurisdiction is more Specific jurisdiction lies for controversies that arise out of or are related to the defendant’s forum contacts. See, Hyatt Int’l Corp. v. Coco, 302 F.3d 707, 713 (7th Cir. 2002). Even if a court finds that it has general or specific jurisdiction over a defendant, the court must still determine whether exercising personal jurisdiction would comport with “fair play and substantial justice.” - 3 - Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476 (1985) (quoting Int’l Shoe Co. v. State of Washington, 326 U.S. 310, 320 (1945)). Because Fialko has brought a 12(b)(2) motion, it is J&J’s burden to provide a prima facie case for personal jurisdiction. 623 F.3d at 423. As this Court sees it, J&J’s uBID, Inc., arguments sufficient minimal contacts fall into two different groups. for In the first, J&J argues for the Court’s exercise of personal jurisdiction because Mr. Fialko transacts business, owns real estate, and made or performed a contract or promise in Illinois. 4.) (See, J&J’s Resp. at 2- All of these alleged Illinois contacts are predicated upon the Prohibition Junction’s liquor license application, which J&J reads as evidence that Mr. Fialko owns the bar. second group of arguments, J&J (Id. at 3, 4, 7.) maintains that Mr. In its Fialko is susceptible to personal jurisdiction because he committed a tortious activity in Illinois by either personally publishing the Program at the Prohibition Junction on May 2, 2015, or else by directing said publication from afar. (Id. at 4, 6.) To support its first group of arguments, J&J submits the Village of Oswego liquor license application for Prohibition Junction, which J&J holds Illinois. out as proof of Mr. Fialko’s sufficient contacts with Some description of that application will be helpful: Mr. Fialko apparently filled it out, seeking a liquor license for “Oswego Junction Enterprises LLC d.b.a. Prohibition Junction Sports Bar and Grill.” (Liquor Lic. App., Ex. 3 to J&J’s Resp. at 1, ECF 13-3.) Mr. Fialko wrote his own name on the line labeled “Applicant Name,” - 4 - and then later answered “Yes” to the question, “Does the applicant own the premises?” (Id. at 1, 3.) Elsewhere on the application, Mr. Fialko wrote in “Oswego Junction Enterprises LLC” as the “Business Owner Name.” (Id. at 1.) J&J argues that this license application evinces Mr. Fialko’s ownership of the Prohibition Junction premises (which are Illinois real estate) and thus that he has sufficient instate minimum jurisdiction. contacts to fall within the Court’s personal See, 735 ILCS 5/2-209(a)(3). But there is a problem. Mr. Fialko asserts that he does not own the Prohibition Junction premises and that his answers on the liquor license application do not indicate otherwise. 5, ECF No. 14.) (Fialko’s Reply at 3- Instead, he asserts that the Prohibition Junction premises are owned by Oswego Junction, LLC, which is in turn fully owned and managed by former Defendant Mattoon Investments, of which Mr. Fialko is a member and director. (Id. at 3.) The Court will not now reiterate all of Mr. Fialko’s justifications for his imprecise answer on the liquor license application. Simply put, he argues that answering “Yes” to the ownership question was shorthand; he answered as the director and representative of Mattoon, which fully and solely owns Oswego Junction, LLC, which owns the premises. Mr. Fialko further states that the Prohibition (Id. at 4-5.) Junction business entity (as opposed to the business’s premises) is owned by Mattoon directly. (Id.) Finally, Mr. Fialko submits documents from the Office of the Illinois Secretary of State showing that both Oswego Junction Enterprises, LLC (d/b/a Prohibition Junction Sports Bar and - 5 - Grill) and Oswego Junction, LLC are solely managed by Mattoon. (Oswego Junction Enters. Detail Rpt., ECF No. 14-1; Oswego Junction Detail Rpt., ECF No. 14-2.) From the documents presently available to the Court, Mr. Fialko does not appear to be the owner of either the Prohibition Junction or its premises. The Court disagreement over ownership as a “conflict” that must be resolved in J&J’s favor. RAR, Inc., 107 F.3d at 1275. does not view this Rather, it appears that given Mr. Fialko’s shorthand completion of the liquor license application, J&J simply misunderstood the true ownership of the Junction’s premises. As such, J&J has not established that Mr. Fialko owns real estate in Illinois. Further, Mr. Fialko’s controlling interest in Mattoon is not enough to bring Mr. Fialko within this Court’s personal jurisdiction. See, Cent. States v. Reimer Express World Corp., 230 F.3d 934, 943 (7th Cir. 2000) (“[C]orporate ownership alone is not sufficient for personal jurisdiction.”); Flexicorps, Inc. v. Benjamin & Williams Debt Collectors, Inc., No. 06 C 3183, 2007 WL 1560212, at *3 (N.D. Ill. May 29, 2007) (finding lack of personal jurisdiction over individual with controlling interest in corporate entity that allegedly committed torts in Illinois when plaintiff failed to establish that individual purposefully directed the entity’s business activities in Illinois). In its second group of arguments, J&J insists that Mr. Fialko is susceptible to personal jurisdiction because he committed a tortious act in Illinois. (J&J’s Resp. at 4.) But J&J utterly fails to set forth how or when Mr. Fialko committed any such tort. - 6 - Initially, J&J’s Complaint asserted that Mr. Fialko published, exhibited the Program at the Prohibition Bar & Grill. 27.) divulged, and (Compl. ¶¶ 21, But in his affidavit, Mr. Fialko asserts that he was out of the country on the day of the Program and that he did not cause the Program to be exhibited at any location. (Fialko Aff., Ex. B to Fialko’s Mot. ¶¶ 8-9, ECF No. 7-2.) J&J does not respond with even vague assertions to the contrary. Instead, J&J merely complains: “Fialko cannot seriously be suggesting that, possible to operate a business remotely.” Mr. Fialko does not argue that he in 2017, it is (J&J’s Resp. at 6.) could not have directed not Yet the activities in the Prohibition Junction on May 2nd, only that he did not. J&J does not advance how, when, or even if Mr. Fialko directed the exhibition of the Program from abroad. J&J cries that Mr. Fialko should still be liable for tortious acts committed at the Prohibition Junction even in his absence. (J&J’s Resp. at 6.) This may well be true in some contexts, but this Court may not find Mr. Fialko liable for anything before J&J puts forth a prima facie case for personal jurisdiction. It is true that the Court must take conflicts of fact in favor of the plaintiff. RAR, Inc., 107 F.3d at 1275. But this does not mean that the Court must take at face value every undeveloped hypothetical the plaintiff required. advances. Further jurisdictional analysis is not J&J has failed to meet its burden to put forth a prima facie case for this Court’s exercise of personal jurisdiction over Mr. Fialko. Accordingly, Mr. Fialko’s Motion is granted and J&J’s claims - 7 - against him are dismissed without prejudice. If J&J has a clearer vision of Mr. Fialko’s contacts with the state of Illinois, J&J may feel free to articulate them in an amended complaint. Lastly, J&J asks the Court to permit jurisdictional discovery. (Resp. at 10-11.) will not here. Though the Court has the discretion to do so, it See, Reimer Express, 230 F.3d at 946 (noting that standard of review on appeal is abuse of discretion). To warrant such discovery, the plaintiff must at minimum establish a colorable or prima facie showing of personal jurisdiction. Id. (citation omitted). Generally, courts will grant jurisdictional discovery if the plaintiff can show the factual record is at least ambiguous or unclear on the jurisdictional issue. See, e.g., In re Testosterone Replacement Therapy Prod. Liab. Litig., 136 F.Supp.3d 968, 973 (N.D. Ill. 2015); Gilman Opco LLC v. Lanman Oil Co., No. 13-CV-7846, 2014 WL 1284499, at *6 (N.D. Ill. Mar. 28, 2014). This is a low hurdle to clear, but J&J has not made it over. Had Mr. Fialko not pointed out that he does not in fact own the Prohibition Junction or its premises, J&J’s argument would yet fly. But Mr. Fialko owns neither, and he filled out the liquor license application only as the director of the LLC that does. J&J has not explained away Mr. Fialko’s affirmations on these points. claims Mr. Fialko committed an in-state tort. Next, J&J Yet J&J’s only support for Mr. Fialko’s alleged tort is a reference (see, J&J’s Resp. at 4) to its Complaint, which contains a bare assertion that each Defendant published, divulged, and exhibited the Program unlawfully. - 8 - (Compl. ¶¶ 21-23, 27-29.) J&J puts forth no explanation as to how Mr. Fialko allegedly accomplished this given his unrebutted affirmation that he was out of the country on the date the Program aired. The law J&J cites on this point is similarly unhelpful; none of those cases rule on 12(b)(2) motions, and they are irrelevant here. See, Joe Hand Promotions, Inc. v. Tickle, 2016 WL 393797 (M.D.Pa. Feb 2, 2016); J&J Sports Prods., Inc. v. Ruiz, 2015 WL 587060 (N.D. Ill. Feb. 11, 2015); Joe Hand Promotions, Inc. v. Jorgenson, 2013 WL 64629 (E.D. Wis. Jan. 4, 2013). J&J has not shown that the record is unclear on the jurisdictional issue, so J&J’s request for leave to conduct jurisdictional discovery is denied. III. CONCLUSION For the reasons stated herein, Defendant Kevin Fialko’s Motion to Dismiss for Lack of Personal Jurisdiction [ECF No. 7] is granted. Plaintiff J&J’s claims against him are dismissed without prejudice. IT IS SO ORDERED. Harry D. Leinenweber, Judge United States District Court Dated: 1/26/2018 - 9 -
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
