DONOVAN FRANK, District Judge
This is a copyright action brought by Publication Services of America, Inc. ("PSA") against David Cro and Cro Photography, LLC. This matter came before the Court on August 4, 2006, pursuant to Defendants' Motion to Dismiss for Lack of Personal Jurisdiction or, in the Alternative, to Transfer to the Northern District of Georgia. For the reasons set forth below, the Court transfers this action to the Northern District of Georgia.
BACKGROUND
PSA is a North Dakota corporation with its principal place of business in Fargo, North Dakota. It also has an office in Atlanta, Georgia. PSA publishes various magazines in North Dakota that are distributed throughout the United States, including, FROM HOUSE TO HOME.
David Cro is a citizen of Georgia, and Cro Photography, LLC, is a limited liability company with its principal place of business in Atlanta. For the purposes of this motion, PSA asserts, and Defendants do not dispute, that the contacts with Minnesota of David Cro and Cro Photography, LLC's contacts with Minnesota are the same. Therefore, the Court will refer to Defendants collectively as "Cro."
In October 2004, PSA and Cro entered into an agreement, the precise form of which is the real dispute in this matter. Under that agreement, and at PSA's direction, Cro made two trips to Minnesota sometime between October 2004 and February 2006 to photograph five Minnesota homes for use in FROM HOUSE TO HOME. During that same time, Cro traveled to at least 21 other states to photograph homes for PSA, and he had substantial contact with PSA's Atlanta office.
Some time after October 2004, Cro published some of the photographs he had taken for PSA, including those taken in Minnesota, on his passive web site at www.djcro.com. He also began offering some of these photographs for sale as stock photography to competing magazines.
As a result, PSA filed a complaint against Cro in the District of North Dakota on March 21, 2006. PSA withdrew that complaint after Cro asserted that there was no personal jurisdiction over him in North Dakota. On April 20, 2006, PSA filed a two-count Complaint in this Court, alleging a claim for copyright infringement under the Copyright Act of 1976, 17 U.S.C. § 101, et seq. (2004), and asking for a declaration that PSA is the owner of the photographs at issue. Cro now moves to dismiss the Complaint for lack of personal jurisdiction or to transfer the case to the Northern District of Georgia.
DISCUSSION
I. Personal Jurisdiction
Federal Rule of Civil Procedure 12 provides that a party may move to dismiss a complaint for lack of personal jurisdiction. See Fed.R.Civ.P. 12(b)(1). To defeat a motion to dismiss for lack of personal jurisdiction, a plaintiff must only make a prima facie showing of personal jurisdiction. Romak USA, Inc. v. Rich, 384 F.3d 979, 983 (8th Cir. 2004). For the purposes of determining whether a plaintiff has made a prima facie showing, a court must view the evidence in the light most favorable to the plaintiff and resolve all factual conflicts in the plaintiff's favor. Digi-Tel Holdings, Inc. v. Proteq Telecomm., Ltd., 89 F.3d 519, 522 (8th Cir. 1996). In doing so, a court may consider matters outside the pleadings. Stevens v. Redwing, 146 F.3d 538, 543 (8th Cir. 1998).
Determining whether jurisdiction exists is a two-prong inquiry. First, the requirements of the Minnesota long-arm statute must be satisfied, and second, the requirements of the Due Process Clause of the Fourteenth Amendment must be met. Minnesota Mining Mfg. Co. v. Nippon Carbide Indus. Co., Inc., 63 F.3d 694, 697 (8th Cir. 1995). Minnesota's long-arm statute is "coextensive with the limits of due process"; therefore, the only question is whether the requirements of the Due Process Clause have been met. Id.
Federal due process requires a showing that a defendant maintains sufficient minimum contacts with the forum state such that summoning the defendant to the forum state would not "offend traditional notions of fair play and substantial justice." International Shoe Co. v. State of Wash., Office of Unemployment Compensation and Placement, 326 U.S. 310, 316 (1945). The central question is whether a defendant has purposefully availed himself of the privilege of conducting activities in the forum state and should, therefore, reasonably anticipate being haled into court there. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980).
With these principles in mind, a court looks at five distinct factors to determine whether personal jurisdiction exists: (1) the nature and quality of the defendant's contacts with the forum state; (2) the quantity of contacts; (3) the relationship between the cause of action and the contacts; (4) the forum state's interest in providing a forum for its residents; and (5) the convenience of the parties. Wessels, Arnold Handerson v. National Medical Waste, Inc., 65 F.3d 1427, 1432 (8th Cir. 1995). The third factor distinguishes between specific and general jurisdiction. Digi-Tel, 89 F.3d at 523, n. 4. The first three factors are of primary importance, while the last two are secondary factors. Nippon, 63 F.3d at 697.
A. General Personal Jurisdiction
General personal jurisdiction is present whenever a defendant's contacts with the forum state are so "continuous and systematic" that the defendant may be sued in the forum over any controversy, whether or not the cause of action has any relationship to the defendant's activities within the State. Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 416 (1984). Here, PSA does not assert that general jurisdiction exists over Cro, and the facts before the Court do not support a finding of general jurisdiction.
B. Specific Personal Jurisdiction
Specific personal jurisdiction requires that a defendant purposely direct its activities at residents of the forum and that the litigation results from alleged injuries that arise out of or relate to those activities. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985).
Cro argues that his contacts with Minnesota are insufficient to support the exercise of specific personal jurisdiction. He points out that he made only 2 trips to Minnesota in approximately 16 months and that during that same time, he traveled to at least 21 other states to take photographs for PSA. He contends that if he is subject to personal jurisdiction in Minnesota, then he is also subject to personal jurisdiction in all 21 states, a result that would not satisfy the Due Process Clause. Cro also notes that Minnesota is not convenient for the parties or the witnesses because the key witnesses are in Georgia, not Minnesota or North Dakota.
In response, relying on Dudley v. Dittmer, 795 F.2d 669 (8th Cir. 1996), PSA contends that specific personal jurisdiction exists over Cro because Cro purposefully availed himself of the privileges of doing business in Minnesota when he made two trips into the state to take photographs of five Minnesota homes. PSA also asserts that Minnesota has an interest in this dispute because Cro violated Minnesota residents' privacy rights by posting and selling photographs of the five homes. Finally, PSA argues that it would be convenient for the parties to litigate this case in Minnesota because the Fergus Falls courthouse is close to PSA's Fargo office and close to the homes Cro photographed in Minnesota.
PSA's reliance on Dudley is misplaced. In Dudley, the Eighth Circuit Court of Appeals found that the defendant, the president of a brokerage company, had purposefully availed himself of Arkansas' benefits and protections when he made numerous phone calls to the brokerage company's Arkansas office and when he visited that office twice. Dudley, 795 F.2d at 672. The court rejected the defendant's argument that he had not purposefully availed himself of Arkansas' benefits and protections because he traveled to the state at the company's request. Rather, the court found that the defendant had purposefully availed himself toward Arkansas because he benefited from his contacts with Arkansas when he traded on both customer and personal accounts. Id.
Here, Cro's contacts with Minnesota are far less than the defendant in Dudley. Neither PSA nor Cro has an office in Minnesota. Cro did not sign any contracts or make any purchases in Minnesota, and there is no record of telephone or other communication contacts with Minnesota. Moreover, while the photographs taken in Minnesota are at issue in this dispute, there are also many other photographs taken elsewhere that are in dispute. Given this, the Court concludes that the first, second, and third jurisdictional factors do not support the exercise of personal jurisdiction.
With respect to the fourth factor, Cro might impact Minnesota residents' rights by selling pictures of their homes. The Court concludes, however, that Minnesota's interest in providing a forum for its residents in this case is minimal, given that those residents consented to having the photographs taken and printed in FROM HOUSE TO HOME.
With respect to the fifth jurisdictional factor, PSA bases its argument on its assumed right to have this case heard in Fergus Falls, where it filed the case. See D. Minn. L.R. 83.11(a) (2006) (explaining that Minnesota constitutes one judicial district with six divisions). Assuming, without deciding, that this case would be tried in Fergus Falls, the Court finds that the convenience of the parties is not served by doing so. Rather, it would be more convenient to litigate the matter in Georgia, where both parties have offices and at least some of the witnesses are located.
Having considered the five jurisdictional factors in the light most favorable to PSA, the Court concludes that it does not have specific personal jurisdiction over Cro because he did not purposefully avail himself of the privileges and benefits of Minnesota by traveling there twice to take photographs for PSA.
II. Transfer
Pursuant to 28 U.S.C. § 1404(a), Cro seeks, in the alternative, to transfer this case to the Northern District of Georgia. For the convenience of the parties and witnesses or in the interest of justice, that section permits a court to transfer a civil action in which venue is properly laid to any other district where the action could have been brought. 28 U.S.C. § 1404; see also Wright, Miller Cooper, Federal Practice and Procedure: Jurisdiction 2d § 3827 (1986) (explaining venue must be proper before a court can transfer a case under 28 U.S.C. § 1404).
When, as in this case, subject matter jurisdiction is based on a federal question jurisdiction, venue is proper only in:
(1) a judicial district where any defendant resides, if all defendants reside in the same state; (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) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought.
28 U.S.C. § 1391(b). Here, Cro resides in the Northern District of Georgia, and, as discussed above, a substantial part of the events giving rise to this action did not occur in Minnesota. Accordingly, venue is not proper in the District of Minnesota.
When venue is not proper, a court may nonetheless transfer a case pursuant to 28 U.S.C. § 1406. That section provides: "The 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." 28 U.S.C. § 1406(a); see also Wright, Miller Cooper, Federal Practice and Procedure: Jurisdiction 2d § 3827 (1986) (discussing transfer of venue under 28 U.S.C. § 1406 and the difference between transfer under § 1404 and § 1406). A court can transfer a case under § 1406(a) even if it does not have personal jurisdiction over the defendant. Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466-67 (1962) (noting that § 1406 is in line with Congressional intent to remove obstacles to obtaining "an expeditious and orderly adjudication of cases and controversies on their merits").
This case could have been brought in the Northern District of Georgia because the court there has personal jurisdiction over its resident, Cro, and because venue is proper under § 1391(b)(1). Given this, the Court concludes that it is in the interest of justice to transfer this case, rather than dismiss it and require PSA to re-file it in Georgia. Accordingly, the Court grants Cro's motion to transfer.
CONCLUSION
For the reasons stated above, IT IS HEREBY ORDERED THAT:
1. David Cro and Cro Photography, LLC's Motion to Dismiss for Lack of Personal Jurisdiction, or in the Alternative, to Transfer to the Northern District of Georgia (Doc. No. 4) is DENIED IN PART insofar as it seeks dismissal of the case and GRANTED IN PART insofar as it seeks transfer to the Northern District of Georgia.
2. The Clerk of Court is directed to TRANSFER this case to the United States District Court for the Northern District of Georgia.