Dugan v. Boston Digital Enterprises LLC et al

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
ALEXANDRA DUGAN, )
)
Plaintiff, )
)
v. ) Case No. CIV-25-157-SLP
)
BOSTON DIGITAL ENTERPRISES, )
LLC, a Delaware Limited Liability )
Company; and )
EXERGEN CORPORATION, a )
Massachusetts Corporation, )
)
Defendants. )
O R D E R
Before the Court is Defendant Boston Digital Enterprises, LLC’s Renewed Motion
to Dismiss for Lack of Personal Jurisdiction (Motion) [Doc. No. 29].1 The matter is fully
briefed. See Resp. [Doc. No. 32]; Reply [Doc. No. 36]; Surreply [Doc. No. 40]. The parties
have also submitted sworn declarations in support of their arguments. See Am. Dec. of
Charles Murphy (Murphy Declaration) [Doc. No. 30]; Dec. of Alexandra Dugan (Dugan
Declaration) [Doc. No. 33].2 For the reasons that follow, Boston Digital Enterprises,
LLC’s (Boston Digital’s) Motion is granted.
1 Defendant Exergen Corporation’s Motion to Partially Dismiss Plaintiff’s First Amended
Complaint and Brief in Support [Doc. No. 31] will be addressed via separate order.
2 The Court strongly admonishes Defendant Boston Digital for its prior misrepresentation to the
Court regarding the location of the photoshoot being in Oregon rather than Oklahoma. See Mtn.
to Dismiss for Lack of Pers. Juris. [Doc. No. 21]; Aff. of Charles Murphy [Doc. No. 22]. However,
the Court will consider the facts presented in the Murphy Declaration [Doc. No. 30] to the extent
they do not conflict with Plaintiff’s declaration. See Wenz v. Memery Crystal, 55 F.3d 1503, 1505
(10th Cir. 1995).
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I. Introduction
This action arises out of Defendants’ unauthorized use of copyrighted photographs
created by Plaintiff. See generally Am. Compl. [Doc. No. 25]. Plaintiff brings federal law
claims against Defendants Boston Digital and Exergen Corporation (Exergen) under the
Digital Millenium Copyright Act, 17 U.S.C. §§1201 et seq., and the Copyright Act, 17
U.S.C. §§ 101 et seq. Plaintiff also asserts several state law claims against the Defendants.
Boston Digital has moved to dismiss the claims against it for lack of personal
jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2). In its Motion, Boston Digital primarily
asserts the Court cannot exercise personal jurisdiction over it because Boston Digital lacks
sufficient minimum contacts with the state of Oklahoma. See Mot. [Doc. No. 29] at 5-9.
Plaintiff argues the interactions of Boston Digital’s employees with her are sufficient for
the exercise of personal jurisdiction. See Resp. [Doc. No. 32] at 7-10.
II. Governing Law
The plaintiff has the burden of establishing personal jurisdiction. OMI Holdings,
Inc. v. Royal Ins. Co. of Canada, 149 F.3d 1086, 1091 (10th Cir. 1998). A motion to dismiss
decided without an evidentiary hearing requires Plaintiff to make only a prima facie
showing that jurisdiction exists. See id.; Wenz, 55 F.3d at 1505. Plaintiff must establish a
prima facie showing with respect to each claim and each defendant. Dental Dynamics,
LLC v. Jolly Dental Grp., LLC, 946 F.3d 1223, 1228 (10th Cir. 2020); Newsome v.
Gallacher, 722 F.3d 1257, 1265-66 (10th Cir. 2013). This showing can be made “through
affidavits or other written materials.” Dental Dynamics, 946 F.3d at 1228. Uncontroverted
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allegations in the complaint are taken as true. Wenz, 55 F.3d at 1505. If the other side
presents conflicting affidavits, factual disputes are resolved in favor of the plaintiff. Id.
“However, only the well pled facts of plaintiff’s complaint, as distinguished from mere
conclusory allegations, must be accepted as true.” Id.
As an initial matter, the federal Copyright Act, 17 U.S.C. § 101 et seq., does not
authorize nationwide service of process over Boston Digital. See Fed. R. Civ. P. 4(k)(1)(C);
Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1070 (10th Cir. 2008). As
such, this Court has personal jurisdiction over defendants “subject to the jurisdiction of a
court of general jurisdiction in the state where the district court is located.” Fed. R. Civ. P.
4(k)(1)(A); see also United States v. Botefuhr, 309 F.3d 1263, 1271 (10th Cir. 2002). This
exercise of jurisdiction must “not offend the due process clause of the Fourteenth
Amendment.” Far W. Cap., Inc. v. Towne, 46 F.3d 1071, 1074 (10th Cir. 1995). Because
Oklahoma “permits the exercise of any jurisdiction that is consistent with the United States
Constitution[,]” this Court’s exercise of personal jurisdiction “collapses into a single due
process analysis[.]” Botefuhr, 309 F.3d at 1271 (quotations omitted). The due process
inquiry requires satisfying two elements: (1) “a defendant must have ‘purposefully
established minimum contacts within the forum state’” and (2) “the assertion of personal
jurisdiction must comport with traditional notions of fair play and substantial justice.”
Dental Dynamics, 946 F.3d at 1229 (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310,
316 (1945)). A defendant’s contacts with the forum may be used to establish the existence
of specific or general personal jurisdiction over the defendant. See Old Republic Ins. Co.
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v. Cont'l Motors, Inc., 877 F.3d 895, 903 (10th Cir. 2017); OMI Holdings, 149 F.3d at 1091-
92. Because the parties do not dispute that the exercise of general personal jurisdiction
over Boston Digital is improper, the Court’s analysis focuses on specific personal
jurisdiction.
As to specific jurisdiction, “the ‘minimum contacts’ standard requires, first, that the
out-of-state defendant must have ‘purposefully directed’ its activities at residents of the
forum state, and second, that the plaintiff’s injuries must ‘arise out of’ defendant’s forum-
related activities.” Dudnikov, 514 F.3d at 1071 (citing Burger King Corp. v. Rudzewicz, 471
U.S. 462, 472 (1985)).
III. Factual Background
Plaintiff Alexandra Dugan is a professional photographer who resides in the state of
Oklahoma. See First Am. Compl. [Doc. No. 25] at ¶ 1. Boston Digital is a Delaware
limited liability company, whose sole member is a Delaware corporation.3 Boston Digital
and its employees primarily operate out of Boston, Massachusetts. See First Am. Compl
[Doc. No. 25] at ¶ 3.
In May of 2024, Exergen retained Boston Digital to, among other tasks, provide
design services for Exergen’s website. See First Am. Compl. [Doc. No. 25] at ¶ 7; Murphy
Declaration [Doc. No. 30] at ¶ 5. On June 11, 2024, Rich Blumenthal (Blumenthal), an
3 While the Amended Complaint does not confirm the residency of the LLC members of Boston
Digital, Boston Digital has clarified in its Disclosure Statement [Doc. No. 24] that its sole member
is a Delaware corporation. See Defendant Boston Digital Enterprises, LLC’s Disclosure Statement
Identifying Constituents of LLC [Doc. No. 24].
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Exergen Employee, emailed two Boston Digital employees regarding a photo shoot
occurring at a pediatric clinic in Edmond, Oklahoma. See Murphy Declaration [Doc. No.
30] at ¶ 5. Blumenthal and the owners of the pediatric clinic “agreed that it makes sense
for Boston Digital to speak with [the owner’s] photographer about what type of photos
would be most helpful for the new Exergen website.” Id. (quoting email attached to
Murphy Declaration, see generally [Doc. No. 30-1]). On June 12, 2024, one of the
pediatric clinic owners introduced, via email, Plaintiff to Dylan Wilson (Wilson), the
Creative Director at Boston Digital, and Jim Brockman, the Vice President of Project
Management at Boston Digital. See First Am. Compl. [Doc. No. 25] at ¶ 8; Dugan
Declaration [Doc. No. 33] at ¶ 3. Brockman, Wilson, and Plaintiff exchanged emails and
arranged a telephone conference for June 17, 2024 between Wilson and Plaintiff. See First
Am. Compl. [Doc. No. 25] at ¶ 8-10; Dugan Declaration [Doc. No. 33] at ¶¶ 3-4.4 On June
17, Wilson called Plaintiff and explained that “Defendants needed photographs of
Exergen’s pediatric thermometers being used in a clinical environment.” See First Am.
Compl. [Doc. No. 25] at ¶ 10; Dugan Declaration [Doc. No. 33] at ¶¶ 5-6. Plaintiff
suggested taking the photographs at the photoshoot scheduled at the pediatric clinic. See
First Am. Compl. [Doc. No. 25] at ¶ 10.
The photoshoot occurred on June 19, 2024, where Plaintiff took photos and videos
as requested by Wilson. See First Am. Compl. [Doc. No. 25] at ¶ 12; Dugan Declaration
4 The parties do not dispute that Plaintiff was located in Oklahoma and Boston Digital employees
were located outside of Oklahoma during all communications. See Dugan Declaration [Doc. No.
33] at ¶ 16; Murphy Declaration [Doc. No. 30] at ¶ 13-15.
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[Doc. No. 33] at ¶ 7. On June 27, 2025, Plaintiff emailed Wilson regarding the photoshoot
and that she would provide photo proofs to the Defendants. See First Am. Compl. [Doc.
No. 25] at ¶ 14. Plaintiff provided Wilson with a link to an image gallery (the Proof
Gallery) to view the photo proofs on July 8, 2024. See First Am. Compl. [Doc. No. 25] at
¶ 15; Dugan Declaration [Doc. No. 33] at ¶ 8. Each of the images in the Proof Gallery
contained a watermark with Dugan’s initials and “embedded metadata listing [Plaintiff] as
the copyright owner.” See First Am. Compl. [Doc. No. 25] at ¶ 16. The Proof Gallery
provided employees of Defendants with the ability to view the images, but did not allow
the employees to “download, copy, or modify the images without a numeric pin.” See First
Am. Compl. [Doc. No. 25] at ¶¶ 17-18. On July 9, 2024, Wilson contacted Ms. Dugan and
requested five high-resolution photographs of the proofs contained in the Proof Gallery
(the Dugan Photographs) for use in a Boston Digital internal presentation for Exergen. See
First Am. Compl. [Doc. No. 25] at ¶ 19; Dugan Declaration [Doc. No. 33] at ¶ 8. The
Dugan Photographs contained copyright management information indicating it was
Plaintiff’s copyrighted work. See First Am. Compl. [Doc. No. 25] at ¶ 20. On July 11,
2024, Plaintiff uploaded the Dugan Photographs and videos from the photoshoot to the file-
sharing service WeTransfer. See First Am. Compl. [Doc. No. 25] at ¶ 21; Dugan
Declaration [Doc. No. 33] at ¶ 9. Wilson downloaded the Dugan Photographs and videos
on the same day and Boston Digital employees subsequently forwarded the WeTransfer
link to Exergen. See First Am. Compl. [Doc. No. 25] at ¶¶ 21-22; Dugan Declaration
[Doc. No. 33] at ¶ 9.
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Plaintiff and Exergen employees communicated in August and early September
regarding pricing for the rights to use the photographs. See First Am. Compl. [Doc. No.
25] at ¶¶ 23-29; Dugan Declaration [Doc. No. 33] at ¶¶ 13-14. On October 2, 2024,
Plaintiff sent Mr. Wilson an email notification that the Proof Gallery was set to expire. See
Oct. 2, 2024 Email Thread [Doc. No. 33-7] at 1-2. That same day, Wilson requested access
to high-resolution photographs of the images contained in the Proof Gallery as well as
pricing for use of the photographs. See First Am. Compl. [Doc. No. 25] at ¶ 30-31; Dugan
Declaration [Doc. No. 25] at 15. Wilson indicated in a phone call with Plaintiff that same
day “that he would ‘ping’ Exergen as he expected that Exergen was planning on using the
Dugan Photographs on Exergen’s website.” See First Am. Compl. [Doc. No. 25] at ¶ 31.
On October 10, 2024, Wilson emailed Plaintiff and stated he forwarded the Proof Gallery
link to employees of Exergen again. See id. at ¶ 32. Plaintiff received no further
communications from employees of Boston Digital or Exergen after Wilson’s October 10,
2024 email. See id. at ¶ 33. Furthermore, Boston Digital nor Exergen “paid for the use
and modifications of the Dugan Photographs[.]” See id. at ¶ 34. As of February 4, 2025,
the date the original Complaint was filed, modified versions of “two of the Dugan
Photographs were posted and visible on Exergen’s website” without permission or
authorization from Plaintiff. See id. at ¶¶ 35-44.
IV. Analysis
Boston Digital asserts that it doesn’t have sufficient minimum contacts with the
state of Oklahoma in order for the Court to exercise jurisdiction over it. Alternatively,
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Boston Digital asserts that the exercise of personal jurisdiction over does not comport with
traditional notions of fair play and substantial justice.
1. Minimum Contacts
Specific jurisdiction requires “some act by which the defendant purposefully avails
itself of the privilege of conducting activities within the forum State, thus invoking the
benefits and protections of its laws.” E.g., Bell Helicopter Textron, Inc. v. Heliqwest Intern.,
Ltd., 385 F.3d 1291, 1296 (10th Cir. 2004) (quoting Hanson v. Denckla, 357 U.S. 235, 253
(1958). In evaluating purposeful direction, the Court looks to “both the quantity and
quality of a defendant’s contracts with the forum.” XMission, L.C. v. PureHealth Research,
105 F.4th 1300, 1308 (10th Cir. 2024) (citations omitted). “It is well-established that
phone calls and letters are not necessarily sufficient in themselves to establish minimum
contacts.” Far West, 46 F.3d at 1077. Here, Plaintiff assets that Boston Digital solicited
Plaintiff for her photography services, and thus purposely directed its activities towards
Oklahoma. See Resp. [Doc. No. 32] at 8-10. However, the Court finds that Boston Digital
did not independently seek the services of Plaintiff and solicit her services. Rich
Blumenthal of Exergen was the initial individual who proposed that Boston Digital
employees should speak with Plaintiff. See Murphy Declaration [Doc. No. 30] at ¶ 5; June
11, 2024 Email Thread [Doc. No. 30-1] at 3. Exergen employees proposed that Boston
Digital could get the photos of the Exergen products at Plaintiff’s photoshoot that had
already been scheduled at a pediatric clinic in Edmond, Oklahoma. Id. Plaintiff was then
introduced by a business partner of the pediatric clinic to employees of Boston Digital via
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email. See First Am. Compl. [Doc. No. 25] at ¶ 8; Dugan Declaration [Doc. No. 33] at ¶
3; Murphy Declaration [Doc. No. 30] at ¶ 6. Boston Digital employees then arranged a
call with Plaintiff to discuss photos needed for the Exergen website. See First Am. Compl.
[Doc. No. 25] at ¶ 10; Dugan Declaration [Doc. No. 33] at ¶¶ 4-5. Plaintiff alleges she
“suggested that she could take the photographs needed by Boston Digital and Exergen” at
the previously scheduled photoshoot in Edmond, Oklahoma, to which Boston Digital
agreed. See First Am. Compl. [Doc. No. 25] at ¶¶ 10-11. Boston Digital’s use of Plaintiff
as a photographer based in Oklahoma appears to be merely incidental to their design of
Exergen’s website. As alleged, the use of Plaintiff as the photographer for the website
photos was initially suggested by employees of Exergen, not Boston Digital. Furthermore,
the location of the photoshoot in Edmond, Oklahoma was suggested by both Exergen and
Plaintiff. While Boston Digital employees provided Plaintiff with what photos were
desired for the Exergen website, the photoshoot’s location in Oklahoma was not something
independently chosen by Boston Digital. Purposeful direction is not established where a
defendant whose actions towards a state are the result of a third party’s choice of location.
See C5 Med. Werks, LLC v. CeramTec GMBH, 937 F.3d 1319, 1323-24 (10th Cir. 2019);
Far West, 46 F.3d at 1075-76. The fact that the photoshoot took place in Oklahoma was
mere happenstance to Boston Digital’s procurement of photos needed for the website.
Even if the Court were to assume that Boston Digital solicited Plaintiff for her photography
services, solicitation alone is not sufficient to establish purposeful direction. See Far West,
46 F.3d at 1076; Silver Lining Enterprises, LLC v. Worldwise Fashion Consulting, No. CIV-
21-00112-JD, 2023 WL 8719624 at *4 (W.D. Okla. Dec. 18, 2023) (citing Far West).
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The Court also finds that Boston Digital did not “create continuing relationships and
obligations with” Plaintiff sufficient to establish purposeful direction. Burger King, 471
U.S. at 473 (citations omitted). While Boston Digital was the party who described to
Plaintiff what photographs were needed for the Exergen website, Exergen was ultimately
the party who would have provided payment to Plaintiff. Exergen employees originally
facilitated the introduction of Boston Digital and Plaintiff. See Murphy Declaration [Doc.
No. 30] at ¶ 5; June 11, 2024 Email Thread [Doc. No. 30-1] at 3. The Parties understood
that the photos Plaintiff took were planned to be used for Exergen’s website. See First Am.
Compl. [Doc. No. 25] at ¶ 10; Dugan Declaration [Doc. No. 33] at ¶ 5. Boston Digital
employees requested the use of the Dugan Photographs in July of 2024 for an internal
presentation relating to the Exergen website project. See First Am. Compl. [Doc. No. 25]
at ¶ 19. In August and September of 2024, Exergen employees and Plaintiff discussed the
pricing and use of the Dugan Photographs. See generally id. at ¶¶ 23-29; Dugan
Declaration [Doc. No. 33] at ¶¶ 13-14. Boston Digital employees were not involved in
these discussions. When Plaintiff and Wilson spoke in October 2024, Wilson indicated that
he would talk with Exergen and that “Exergen was planning on using the photographs on
Exergen’s website.” First Am. Compl. [Doc. No. 25] at ¶ 31. There are no facts indicating
that a contract existed between Boston Digital and Plaintiff as Boston Digital did not have
any independent use for the photographs outside of the Exergen website project. There is
also no indication that Boston Digital intended to use Plaintiff for any other projects outside
of the photos needed for the Exergen website project. Boston Digital’s contacts with
Oklahoma are too attenuated to find purposeful direction as Boston Digital employees were
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merely facilitating the creation of photographs for Exergen’s website. See Dental
Dynamics, 946 F.3d 1223 (finding no purposeful direction where party only “serve[d] as a
broker in transactions”).
Plaintiff also notes the strong connections she and the photoshoot had to Oklahoma,
including: (1) Plaintiff was located in Oklahoma during all communications with Boston
Digital; (2) the photoshoot occurred in Oklahoma; (3) the subjects of the photos were
Oklahoma-based residents. See, e.g., Resp. [Doc. No. 32] at 8. However, the fact Plaintiff
has strong connections to Oklahoma does not demonstrate how Boston Digital
purposefully directed its activities toward Oklahoma. See Rockwood Select Asset Fund CI
(6)-1, LLC v. Devine, Millimet & Branch, 750 F.3d 1178, 1180 (10th Cir. 2014). Because
Boston Digital did not purposefully direct its activities towards the state of Oklahoma, the
Court does not address the causation prong of the minimum contacts analysis.
Accordingly, the Court finds that Plaintiff has failed to demonstrate that Boston
Digital has minimum contacts with the state of Oklahoma sufficient for this Court to
exercise personal jurisdiction.
2. Fair Play and Substantial Justice
Even if the Court were to find that Plaintiff alleged barely sufficient minimum
contacts between Boston Digital and Oklahoma, the Court finds that the exercise of
“personal jurisdiction would offend ‘traditional notions of fair play and substantial
justice.’” AST Sports Sci., Inc. v. CLF Distribution Ltd., 514 F.3d 1054, 1061 (10th Cir.
2008) (citing Asahi Metal Indus. Co. v. Superior Ct. of California, Solano Cnty., 480 U.S.
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102, 113 (1987)). “The analyses of minimum contacts and reasonableness are
complementary, such that the reasonableness prong of the due process inquiry evokes a
sliding scale: the weaker the plaintiff’s showing on minimum contacts, the less a defendant
need show in terms of unreasonableness to defeat jurisdiction.” Id. at 1061 (cleaned up
and citations omitted). The Court looks to five factors in its analysis:
(1) the burden on the defendant, (2) the forum state’s interest in resolving the dispute, (3)
the plaintiff’s interest in receiving convenient and effective relief, (4) the interstate judicial
system’s interest in obtaining the most efficient resolution of controversies, and (5) the
shared interest of the several states in furthering fundamental social policies.
Id. (quoting Pro Axess, Inc. v. Orlux Distrib., Inc., 428 F.3d 1270, 1279-80 (10th Cir.
2005)).
The first factor weighs in favor of Boston Digital. Notably, “[t]his factor is of special
significance, because it serves to prevent the filing of vexatious claims in a distant forum
where the burden of appearing is onerous.” OMI Holdings, 149 F.3d at 1096 (citations
omitted). None of Boston Digital’s employees “ha[ve] ever travelled to Oklahoma for
Boston Digital-related business” nor has Boston Digital “done work for any client based in
Oklahoma.” Murphy Declaration [Doc. No. 30] at ¶¶ 16-17. Even if the Court were to
consider the communications between Boston Digital employees and Plaintiff, such
communications were isolated and initiated by Exergen. “Defending an action in
Oklahoma despite having no business dealings, property, or offices there is burdensome.”
Dental Dynamics, 946 F.3d at 1232.
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As to the second factor, “Oklahoma undoubtedly has an interest in providing
residents with a convenient forum for redressing grievances.” Id. However, while this
factor may weigh slightly in favor of Plaintiff, the State’s interest is mitigated as seven of
Plaintiff’s ten causes of action arise under federal copyright law, rather than Oklahoma law.
It is also unclear from the First Amended Complaint what state’s laws would govern
Plaintiff’s remaining claims.
The third factor, Plaintiff’s interest in obtaining relief, is neutral. Plaintiff states that
litigating in Massachusetts “would increase her burden and expense” without any
additional explanation. See Resp. [Doc. No. 32] at 14. Plaintiff has not presented any
“evidence indicating that litigating this action in a separate forum, such as [Massachusetts],
would practically foreclose pursuit of the lawsuit.” Id. at 1233 (citing OMI Holdings, 149
F.3d at 1097)) (emphasis added).
For the fourth factor, judicial efficiency, courts look to the “location of the witnesses,
where the wrong underlying the lawsuit occurred, what forum’s substantive law governs
the case, and whether jurisdiction is necessary to prevent piecemeal litigation.” AST Sports
Science, 514 F.3d at 1062. Key evidence, such as the photographs, email communications,
and business records, would be available electronically and have no effect on this analysis.
Plaintiff is located in Oklahoma, but employees of Boston Digital and Exergen who could
testify would presumably be located in Massachusetts. Regarding governing law, as
addressed above, seven of Plaintiff’s ten claims relate to federal copyright law and it is
unclear at this time what state’s laws govern Plaintiff’s remaining claims. However, the
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Court does have personal jurisdiction over Exergen, and there is the potential for piecemeal
litigation were Plaintiff to pursue an action against Boston Digital in Massachusetts. In
sum, the fourth factor weighs slightly in favor of Plaintiff.
Finally, the fifth factor bears little weight. The Parties’ briefing on this factor is
threadbare. Neither party has adequately set forth a fundamental social policy at play.
Taking all the factors in consideration, as well as Boston Digital’s minimal contacts
with the state of Oklahoma, the exercise of personal jurisdiction would offend traditional
notions of fair play and substantial justice. There is not is “an especially strong showing
of reasonableness” that overcomes Plaintiff’s weak showing of minimum contacts. See
AST Sports Science, 514 F.3d 1054, 1061 (citations omitted). Accordingly, the Court finds
that the exercise of personal jurisdiction over Boston Digital is improper.
V. CONCLUSION
IT IS THEREFORE ORDERED Defendant Boston Digital Enterprises, LLC’s
Renewed Motion to Dismiss for Lack of Personal Jurisdiction [Doc. No. 29] is GRANTED.
Plaintiff’s claims against Defendant Boston Digital are DISMISSED WITHOUT
PREJUDICE for lack of personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2).
IT IS SO ORDERED this 26th day of March, 2026.
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