IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

FLAVA WORKS, INC., )

) Case No. 12-cv-1885

Plaintiff, )

) Judge Joan H. Lefkow

v. )

)

FRANK ROSSI, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Before the court is Defendant Frank Rossi’s (“Rossi”) motion to dismiss Plaintiff Flava

Works, Inc.’s (“Flava Works”) two-count Third Amended Complaint (“complaint”). Flava

Works claims that Rossi violated its rights under the Copyright Act, 17 U.S.C. §§ 101 et seq.

Rossi has moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure (“Rule”)

12(b)(2) and (3), arguing that the court lacks personal jurisdiction over him, and that venue is

improper.1 In the Northern District of Illinois, Flava Works has filed at least four other suits,

against various defendants, alleging similar copyright infringement claims. This court

previously addressed personal jurisdiction and venue issues similar to the ones raised in the

instant case in Flava Works, Inc. v. Rowader, 12 C 7181, 2012 WL 5845648 (N.D. Ill. Nov. 16,

2012). Much of the following analysis is taken directly from that opinion because the facts and

arguments were similar in both cases. 

1

 The court denied the portion of Rossi’s motion to dismiss pursuant to Rule 12(b)(6) as moot on

September 6, 2012. See DKT. [18].

1

Case: 1:12-cv-01885 Document #: 21 Filed: 03/29/13 Page 1 of 8 PageID #:282
BACKGROUND

As alleged, Flava Works is an adult entertainment company that produces DVDs,

magazines, websites, pictures, streaming videos and various other media. It is incorporated in

Florida, and maintains offices in Miami, Florida and Chicago, Illinois. Rossi is an individual

living in New York, New York, who joined Flava Works’ websites as a paid member. When

Rossi joined Flava Works’ websites, he agreed to abide by specific terms and conditions

included in a User/Subscriber Agreement (“Agreement”). As part of the Agreement, Rossi

agreed to refrain from copying or storing any of Flava Works’ copyrighted material other than

for personal, noncommercial use. He also agreed to abide by Flava Works’ copyrights. In

Paragraph 11 of the Agreement, Rossi further agreed that any action to enforce the Agreement

“shall be brought in the federal or state courts located in Chicago, Illinois or Miami, Florida” and

consented to the “personal jurisdiction and venue of the courts located in Cook County, Illinois

or Miami-Dade County, Florida.”2 

In the complaint, Flava Works alleges that Rossi infringed its copyrights by uploading its

website videos onto an online file-sharing website, which allowed third parties to download

2

 Paragraph 11.1 of the User/Subscriber Agreement attached as Exhibit A to the complaint

states “Cook County, Illinois.” Prior versions of the Agreement stated “Cook County, Florida,” which

appears to have been a scrivener’s error. Plaintiff copied the version of Paragraph 11.1 with the

scrivener’s into Paragraph 9 of the complaint, which provides,

This Agreement has been made in and shall be construed and enforced in accordance with

either Illinois or Florida law without regard to any conflict of law provisions. You agree that

any action to enforce this Agreement shall be brought in the federal or state courts located

in Chicago, Illinois or Miami, Florida and you hereby consent to the personal jurisdiction

and venue of the courts located in Cook County, Florida [sic] or Miami-Dade County,

Florida.

(3d Am. Compl. ¶ 9.)

2

Case: 1:12-cv-01885 Document #: 21 Filed: 03/29/13 Page 2 of 8 PageID #:283
copyrighted videos without Flava Works’ permission and in violation of the terms and

conditions of membership and the Agreement. 

LEGAL STANDARD 

Rule 12(b)(2) allows for dismissal of a claim based on a lack of personal jurisdiction,

while Rule 12(b)(3) permits dismissal for improper venue. FED. R. CIV. P. 12(b)(2); FED. R. CIV.

P. 12(b)(3). Flava Works bears the burden of establishing personal jurisdiction and venue. See

Tamburo v. Dworkin, 601 F.3d 693, 700 (7th Cir. 2010) (jurisdiction); Citadel Grp. Ltd. v.

Wash. Reg. Med. Ctr., No. 07 CV 1394, 2008 WL 5423553, at *2 (N.D. Ill. Dec. 29, 2008)

(venue). Because Rossi has submitted an affidavit contesting personal jurisdiction, Flava Works

must present affirmative evidence supporting the exercise of jurisdiction. Purdue Research

Found. v. Sanofi-Synthelabo, S.A., 338 F.3d 773, 782–83 (7th Cir. 2003). In this instance, the

motion can be resolved based on the documentary evidence filed with the complaint.

ANALYSIS 

I. Personal Jurisdiction

In copyright cases, venue lies in the district where the defendant resides. 28 U.S.C. §

1400(a). Illinois law applies to determine whether personal jurisdiction exists because the

Copyright Act does not provide for nationwide service of process. See uBid, Inc. v. GoDaddy

Group, Inc., 623 F.3d 421, 425 (7th Cir. 2010); Fort Knox Music Inc. v. Baptiste, 203 F.3d 193,

196 (2d Cir. 2000); 17 U.S.C. §§ 101 et seq.; Fed. R. Civ. P. 4(k)(1)(A). Illinois law allows

personal jurisdiction to the extent authorized by the Fourteenth Amendment’s Due Process

Clause, which merges the federal constitutional and state statutory inquiries together. Tamburo,

601 F.3d at 700. Under the Illinois long-arm statute, personal jurisdiction can be general or

3

Case: 1:12-cv-01885 Document #: 21 Filed: 03/29/13 Page 3 of 8 PageID #:284
specific. uBid, 623 F.3d at 425; 735 ILL. COMP. STAT. 5/2-209©. 

General jurisdiction is a demanding standard in which a defendant can be haled into an

Illinois court if they have “‘continuous and systematic general business contacts’” with the state. 

uBid, 623 F.3d at 425–26 (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S.

408, 415–16, 104 S. Ct. 1868, 80 L. Ed. 2d 404 (1984)). Rossi is a resident of New York, who

states in his affidavit that he has “no systematic business contacts with the State of Illinois.” 

Therefore, Rossi would not be amenable to personal jurisdiction in Illinois based on general

jurisdiction. Specific jurisdiction also does not appear to apply because Rossi asserts that he has

“never conducted any business in the State of Illinois.” See be2 LLC v. Ivanov, 642 F.3d 555,

559 (7th Cir. 2011) (no personal jurisdiction over out-of-state defendant who operated website

accessible from Illinois but where there was no evidence that the defendant targeted or exploited

the Illinois market).

Fortunately for Flava Works, the Illinois long-arm statute is not the only source for

personal jurisdiction and venue in this case. Rossi waived his ability to challenge personal

jurisdiction and venue when he consented to an enforceable forum-selection in the Agreement

with Flava Works. IFC Credit Corp. v. Alian Bros. Gen. Contractors, Inc., 437 F.3d 606, 610

(7th Cir. 2006). To determine whether a defendant has waived his jurisdictional objections, the

court must decide “(1) whether the clause in the agreement is, in fact, a forum-selection clause;

and, if so (2) whether the clause is enforceable.” Macey & Aleman v. Simons, No. 10 CV 6646,

2011 WL 1456762, at *2 (N.D. Ill. April 14, 2011) (internal quotation marks omitted). Forum

selection clauses contain mandatory language. Id. at *3.

In this case, Paragraph 11.1 of the Agreement incorporates mandatory language

4

Case: 1:12-cv-01885 Document #: 21 Filed: 03/29/13 Page 4 of 8 PageID #:285
providing that “any action to enforce this Agreement shall be brought in the federal or state

courts located in Chicago, Illinois or Miami, Florida.” Accordingly, the court finds that

Paragraph 11.1 of the Agreement is a forum selection clause. Moreover, Illinois courts “have

long allowed parties to ‘substitute the laws of another place or country.’” Sarnoff v. Am. Home

Products Corp., 798 F.2d 1075, 1081 (7th Cir. 1986) (quoting McAllister v. Smith, 17 Ill. 328,

333 (Ill. 1856)) superseded on other grounds as recognized by Hart v. Schering-Plough Corp.,

253 F.3d 272, 274 (7th Cir. 2001); accord Vencor, Inc. v. Webb, 33 F.3d 840, 844 (7th Cir.

1994). They typically follow the Restatement (Second) of Conflict of Laws (1971) in making

choice of law decisions. E.g., Morris B. Chapman & Assoc., Ltd. v. Kitzman, 739 N.E.2d 1263,

1269, 193 Ill. 2d 560, 251 Ill. Dec. 141 (Ill. 2000); AT&T Capital Servs., Inc. v. Shore Fin.

Servs., Inc., No. 09 CV 1360, 2010 WL 2649874, at *5 (N.D. Ill. June 30, 2010) (collecting

cases). Where, as here, the parties have made an express choice of law in their contract, section

187 of the Restatement applies. Hall v. Sprint Spectrum L.P., 876 N.E.2d 1036, 1041, 376 Ill.

App. 3d 822, 315 Ill. Dec. 446 (Ill. App. Ct. 2007). Restatement section 187 provides,

The law of the state chosen by the parties to govern their contractual rights and

duties will be applied, even if the particular issue is one which the parties could not

have resolved by an explicit provision in their agreement directed to that issue,

unless either

(a) the chosen state has no substantial relationship to the parties or the transaction

and there is no other reasonable basis for the parties’ choice, or

(b) application of the law of the chosen state would be contrary to a fundamental

policy of a state which has a materially greater interest than the chosen state in the

determination of the particular issue and which, under the rule of § 188, would be the

state of the applicable law in the absence of an effective choice of law by the parties. 

Restatement (Second) of Conflict of Laws § 187 (1971); see Int’l Surplus Lines Inc. Co. v.

Pioneer Life Ins. Co. of Ill., 568 N.E.2d 9, 14, 209 Ill. App. 3d 144, 154 Ill. Dec. 9 (Ill. App. Ct.

5

Case: 1:12-cv-01885 Document #: 21 Filed: 03/29/13 Page 5 of 8 PageID #:286
1990) (“[T]he parties’ choice of law governs unless (1) the chosen State has no substantial

relationship to the parties or the transaction or (2) application of the chosen law would be

contrary to a fundamental public policy of a State with a materially greater interest in the issue in

dispute.”). 

 In this case, Illinois has a substantial relation to Flava Works, which has offices in

Illinois. Illinois also has an interest in protecting the copyright and contractual rights of Illinois

businesses. Furthermore, Rossi has cited no public policy of New York that would be impaired

should the clause be enforced. As the Seventh Circuit has recognized, “it is reasonable for a

corporation with far-flung interests to bargain for the law of its headquarters state.” 

Mastrobuono v. Shearson Lehman Hutton, Inc., 20 F.3d 713, 719 (7th Cir. 1994) rev’d on other

grounds, 514 U.S. 52, 115 S. Ct. 1212, 131 L. Ed. 2d 76 (1995); see Koch v. Am. Online, Inc.,

139 F. Supp. 2d 690, 694 (D. Md. 2000) (“There is no evidence in this case that AOL chose

Virginia in bad faith or in an effort to discourage meritorious suits.”); see also Restatement

(Second) of Conflict of Laws § 187 cmt. g. (“The parties’ power to choose the applicable law is

subject to least restriction in situations where the significant contacts are so widely dispersed that

determination of the state of the applicable law without regard to the parties’ choice would

present real difficulties.”). 

Finally, contrary to Rossi’s argument, the fact that the complaint includes claims for

copyright infringement and not breach of contract does not invalidate the forum selection clause. 

The Seventh Circuit has held that “a dispute over a contract does not cease to be such merely

because instead of charging breach of contract the plaintiff” alleges a different cause of action.

Am. Patriot Ins. Agency, Inc. v. Mut. Risk Mgmt., Ltd., 364 F.3d 884, 889 (7th Cir. 2004). “The

6

Case: 1:12-cv-01885 Document #: 21 Filed: 03/29/13 Page 6 of 8 PageID #:287
existence of multiple remedies for wrongs arising out of a contractual relationship does not

obliterate the contractual setting, does not make the dispute any less one arising under or out of

or concerning the contract, and does not point to a better forum for adjudicating the parties’

disputes than the one they had selected to resolve their contractual disputes.” Id. 

When Rossi chose to become a paid member of Flava Works’ websites, he agreed to

abide by specific terms and conditions included in the disputed Agreement. Among other things,

Rossi agreed not to copy and distribute Flava Works’ copyrighted videos. If fact, had Rossi not

consented to the terms of the Agreement, he would have been allowed access to the copyrighted

videos and there would be no basis for the instant lawsuit. Flava Works’ copyright infringement

claims stem directly from Rossi’s alleged violation of the Agreement and thus the forum

selection clause is applicable to this case. See Versatile Housewares & Gardening Sys., Inc. v.

Thill Logistics, Inc., No. 09 C 846, 2009 WL 4730825 at * 5 (E.D. Wis. Dec. 7, 2009) (finding

that a mandatory venue/forum selection clause applies to copyright infringement claims

stemming from a contractual agreement.).

Although this venue is not convenient for Rossi and his acceptance of the forum selection

clause was not subject to negotiation,3 the court finds no basis to interfere with the contract or to

invalidate the forum selection clause. Therefore, the court finds that it has personal jurisdiction

3 Rossi presumably could have chosen an alternative website that did not contain such a clause. 

In any event, as stated in Kinkel v. Cingular Wireless LLC, 857 N.E.2d 250, 266, 223 Ill.2d 1, 26, 306 Ill.

Dec. 157 (Ill. 2006),

[Adhesion] contracts . . . are a fact of modern life. Consumers routinely sign such agreements

to obtain credit cards, rental cars, land and cellular telephone service, home furnishings and

appliances, loans, and other products and services. It cannot reasonably be said that all such

contracts are so procedurally unconscionable as to be unenforceable.

7

Case: 1:12-cv-01885 Document #: 21 Filed: 03/29/13 Page 7 of 8 PageID #:288
over Rossi and that venue is proper in the Northern District of Illinois.

ORDER

Defendant Frank Rossi’s amended motion to dismiss for lack of personal jurisdiction and

improper venue [dkt. 9] is denied. Rossi is directed to answer the complaint by April 19, 2013. 

The parties are directed to appear for a scheduling conference on April 30, 2013 at 8:30 a.m.

Dated: March 29, 2013 Enter: ____________________________________

JOAN HUMPHREY LEFKOW

United States District Judge

8

Case: 1:12-cv-01885 Document #: 21 Filed: 03/29/13 Page 8 of 8 PageID #:289