The opinion of the court was delivered by: Signed: Emmet G. Sullivan United States District Court Judge
Plaintiff Janod, Inc. ("Janod") brings this action against Defendant Echo Entertainment, Inc. ("Echo"), alleging breach of contract, intentional and/or negligent interference with prospective economic advantage, and fraud. Pending before the Court is Defendant's Motion to Dismiss pursuant to Rules 12(b)(2), (3), and (6) for lack of personal jurisdiction, improper venue, and failure to state a claim upon which relief can be granted, or in the alternative, to transfer venue pursuant to 28 U.S.C. § 1404(a) or 28 U.S.C. § 1406(a). Upon consideration of the Motion to Dismiss, the Opposition and Reply thereto, the relevant law, and the entire record in this case, and for the reasons set forth below, the Court concludes that it lacks personal jurisdiction over Defendant. Accordingly, the Court will GRANT Defendant's Motion to Dismiss.
Plaintiff Janod is a construction company incorporated in Vermont, with its principal place of business in New York. Am. Compl. ¶¶ 1, 7. Janod specializes in rock stabilization and remediation, a potentially hazardous field, which requires Janod's rock remediation technicians to perform work on unstable rock or mountainside surfaces while suspended at great heights above the ground. Id. ¶¶ 7, 9. Defendant is a production company organized under the laws of California, with its principal place of business in California. Id. ¶ 2. In April 2010, Defendant approached Janod about filming and producing a reality television series documenting Janod's work. Id. ¶ 10. The reality television show, bearing the working title "Rock Stars," was intended to be filmed and/or produced by Defendant for the benefit of the National Geographic Channel ("Nat Geo").*fn1
Id. ¶ 11. Janod agreed to film the series, and on February 15, 2011, Echo and Janod entered into a "Participant Attachment and Production Agreement" ("Participant Agreement"). Id. ¶ 15. The Participant Agreement granted Echo's film crew access to Janod's jobsites to film the television series, and it contained a clause which provided Janod the right to exercise editorial control over any content in the series that would portray Janod in a negative light. Id. ¶¶ 15-16. Janod alleges that the purpose of this clause was to help Janod protect its accumulated goodwill and reputation in the industry. Id. ¶ 16. The clause states:
Notwithstanding anything to the contrary contained herein Company [Janod] shall have final approval of the content of the Material and Project solely and only in order to ensure that there is nothing in the content which will reasonably be portrayed to the public which may portray the Company [Janod] in a negative light or defamatory manner. In all other regards, financial, creative or otherwise, Producer [Echo] shall have ultimate decision-making authority, subject to the terms of any applicable Network production or distribution agreement.
Am. Compl. Ex. A, at ¶ 2(j). The Participant Agreement also contained a clause labeled "Venue and Choice of Law," which provides:
The parties agree that any claim or controversy arising out of this Agreement shall be brought exclusively in the Federal Courts of the United States. This Agreement and all related matters shall be governed by the laws of the State of California applicable to contracts entered into and performed fully therein.
Am. Compl. Ex. A, at ¶ 19(d).
On September 24, 2010, Echo entered into a separate Commission Agreement with Nat Geo. See Def.'s Mot. to Dismiss, Ex. C. Under the Commission Agreement, Nat Geo obtained all rights to exploit the "Rock Stars" footage produced by Echo, including creative rights, alteration rights, and rights to redistribute the program. Id. In addition, the Commission Agreement contained a "Governing Law" clause, which provides:
This Agreement shall be construed and enforced in accordance with the laws of the State of California. Producer [Echo] and [Nat Geo] hereby consent to and submit to the jurisdiction of the federal and state courts located in Los Angeles, California, and any action or suit under this Agreement shall be brought in any federal or state court with appropriate jurisdiction over the subject matter established or sitting in the State of California. Neither [Echo] nor [Nat Geo] shall raise in connection therewith, and hereby waives, any defenses based upon venue, the inconvenience of the forum, the lack of personal jurisdiction, the sufficiency of service of process . . . or the like in any such action or suit brought in the State of California.
Def.'s Mot. to Dismiss Ex. C, at ¶ 19.4 (emphasis added).
Echo began filming the television series, and beginning in July 2011, Janod attempted to contact Echo to review the proposed episodes of "Rock Stars" and determine whether any of the ...