Theresa M. Gillis (TG-2036) 

JONES DAY 

222 East 41st Street 

New York, NY 10017 

212-326-3939 

Attorneys for Defendant 

The Timken Company 

IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF NEW YORK 

GEORGE EDWARD McCAIN, 

Plaintiff, 

v. 

RAHAL LETTERMAN RACING LLC, 

et al. 

Defendants. 

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Civil Action No. 07-CV-5729 

DEFENDANT THE TIMKEN COMPANY’S 

MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS

Case 1:07-cv-05729-JSR Document 28 Filed 07/31/2007 Page 1 of 8
CLI-1537620v1 -2-

I. INTRODUCTION 

On June 15, 2007, Plaintiff George McCain brought this action alleging various acts of 

copyright infringement against twenty-nine separate defendants, among them, The Timken 

Company. The Timken Company (“Timken”) is an Ohio corporation with its principal place of 

business in Ohio. Because this Court lacks personal jurisdiction over Timken and venue is 

improper in this district, Count Twenty-Eight of the Complaint, which contains the only 

substantive allegations against Timken, should be dismissed. 

II. STATEMENT OF FACTS 

According to the Complaint, plaintiff George Edward McCain is a photographer in 

Tucson, Arizona. Compl. ¶ 4. In 2002, McCain allegedly participated in a two-day photography 

session with race-car driver Danica Patrick, which yielded hundreds of photographs. Id. ¶ 35. 

McCain subsequently filed a single copyright registration covering all or at least some of those 

photographs, which was assigned registration number Vau-564-275. Id. McCain alleges that in 

2005, after Ms. Patrick had attained a degree of fame, one of his photographs of her appeared on 

a “hero card,” attached as Exhibit 29 to the Complaint, without his authorization. Id. ¶ 36 & 160. 

McCain alleges on information and belief that this card was reproduced and distributed by 

Timken. Id. ¶ 160. Significantly, McCain does not allege that any of this activity took place in 

New York State or in this district. 

In his Complaint, McCain acknowledges, as he must, that Timken is an Ohio corporation 

with its principal place of business in Canton, Ohio. Id. ¶ 21. As set forth in the attached 

Declaration of Scott A. Scherff, Timken has no real property, offices, plants, equipment or 

employees in the State of New York. Scherff Decl. ¶¶ 6&7. Timken does not have any bank 

accounts or telephone listings in the State of New York. Id. ¶¶ 8&10. Timken is not registered 

to do business in the State of New York, has no registered agent for service of process in New 

York and has not been required to pay New York State taxes in any of the past three years. Id.

¶¶ 9&11. Although Timken’s products reach New York, those products are sold through a 

wholly-owned subsidiary, which is, itself, an Ohio corporation with a principal place of business 

Case 1:07-cv-05729-JSR Document 28 Filed 07/31/2007 Page 2 of 8
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in Ohio, and through independent distributors. Id. ¶ 5. In short, Timken does not have sufficient 

contacts with New York for this Court to exercise personal jurisdiction over Timken or to make 

this Court a proper venue for McCain’s claim against Timken. 

III. ARGUMENT: THIS COURT DOES NOT HAVE PERSONAL JURISDICTION 

OVER TIMKEN AND VENUE OVER TIMKEN IS NOT PROPER IN THIS COURT 

Because Timken is a corporation, the existence of personal jurisdiction also determines 

the propriety of venue.1

 The Copyright Act does not provide for nationwide service of process, 

so a court applies the law of the forum state in which it sits to determine personal jurisdiction. 

Fort Knox Music v. Baptiste, 203 F.3d 193, 196 (2d Cir. 2000). New York’s general jurisdiction 

statute, C.P.L.R. § 301, provides that “a court may exercise such jurisdiction over persons, 

property or status as might have been exercised heretofore.” 2 N.Y. CP.L.R. § 301. In Landoil 

Resources Corp. v. Alexander & Alexander Services, Inc., 77 N.Y.2d 28 (1990), the Court of 

Appeals of New York explained the operation of § 301: 

A foreign corporation is amenable to suit in New York courts 

under CPLR 301 if it has engaged in such a continuous and 

systematic course of “doing business” here that a finding of its 

“presence” in this jurisdiction is warranted. The test for “doing 

business” is a “simple [and] pragmatic one,” which varies in its 

application depending on the particular facts of each case. The 

court must be able to say from the facts that the corporation is 

“present” in the State “not occasionally or casually, but with a fair 

measure of permanence and continuity.” 

77 N.Y.S.2d at 33-34 (alterations in original; internal citations omitted). The nearest that the 

Complaint approaches to pleading facts to support personal jurisdiction over Timken and proper 

 1

 In copyright cases, venue is proper in “the district in which the defendant or his agent 

resides or may be found.” 28 U.S.C. § 1400(a). A corporation is deemed to reside in any 

judicial district in which it is subject to personal jurisdiction; if a State includes multiple districts, 

a corporation is deemed to reside in any district in the State within which its contacts would be 

sufficient to subject it to personal jurisdiction if that district were a separate State. 28 U.S.C. 

§ 1391(c). Therefore, because no personal jurisdiction exists over Timken in New York, venue 

is also improper. 

2

 New York’s specific personal jurisdiction statute, C.P.L.R. § 302, does not apply to this 

case because it is limited to causes of action “arising from any of the acts enumerated” therein. 

N.Y. C.P.L.R. § 302. McCain has not alleged that any of the operative facts of his cause of 

action took place in New York. See Compl. ¶¶ 35-36 & 159-160; Scherff Decl. ¶ 4. 

Case 1:07-cv-05729-JSR Document 28 Filed 07/31/2007 Page 3 of 8
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venue in this Court is a single sentence in paragraph 21: “Upon information and belief, Timken 

engages in systematic and continuous business with companies located throughout New York, 

including New York City.” Compl. ¶ 21 (emphasis added). 

McCain’s recitation that Timken’s alleged business contacts with New York are 

“systematic and continuous” may have been intended to satisfy the Landoil test, but it fails to do 

so. The Landoil court makes clear that only the foreign company’s own acts of doing business in 

New York are considered, not the foreign company’s acts of doing business with companies 

located in New York, as McCain has alleged. See Compl. ¶ 21. A hypothetical example will 

clarify the distinction. If a New York company maintains an office in Ohio, and one of its 

employees in that office actively negotiates a contract in Ohio with an Ohio corporation, the New 

York company may fairly be said to be doing business in Ohio, but the Ohio company cannot be 

said to be doing business in New York. The location of Timken’s alleged business partners is 

irrelevant. Thus, McCain has failed even to allege a prima facie case for this Court to exercise 

personal jurisdiction over Timken or that venue is proper in this Court. 

As this Court noted in Semi Conductor Materials, Inc. v. Citibank International PLC, 

“[t]he traditional indicia to which courts refer in deciding whether a foreign corporation is doing 

business in New York under this approach [‘doing business’ under § 301] include (1) the 

existence of an office in New York, (2) the solicitation of business in New York, (3) the 

existence of bank accounts or other property in New York, and (4) the presence of employees of 

the foreign defendant in New York.” 969 F. Supp. 243, 245 (1997) (Rakoff, J.). As described 

above, Timken does not do business in the State of New York, much less do so continuously and 

systematically. Timken does not have an office in New York. Scherff Decl. ¶ 6. Timken does 

not have any bank accounts in New York or own or lease any plant, real property or equipment 

in New York. Id. ¶¶ 7&8. Timken has no employees in New York. Id. ¶ 6. Timken is not 

registered to do business in New York; it does not even have a New York telephone listing. Id. 

¶¶ 9&10. Timken does not solicit business in New York. The most that can be said is that 

Timken’s products reach New York through the efforts of its independent distributors and its 

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wholly-owned subsidiary, an Ohio corporation. Id. ¶ 5. But in Landoil, the Court of Appeals 

confirmed its earlier holding that “mere sales of a manufacturer's product in New York, however 

substantial, have never made the foreign corporation manufacturer amenable to suit in this 

jurisdiction.” Landoil, 77 N.Y.S.2d at 34 (quoting Delagi v. Volkswagenwerk AG, 29 N.Y.S.2d 

426, 433 (1972)). Thus, none of the four traditional factors weighs in favor of the existence of 

personal jurisdiction. Because personal jurisdiction is lacking, venue is also improper. See 28 

U.S.C. §§ 1400(a) & 1391. 

IV. CONCLUSION 

Because Timken is a foreign corporation not continuously and systematically doing 

business in New York State or this district, this Court has no personal jurisdiction over Timken 

and venue is improper in this Court. Accordingly, this Court should dismiss County TwentyEight of the Complaint, the only cause of action against Timken. 

Dated: July 31, 2007 Respectfully submitted, 

/s/Theresa M. Gillis 

Of Counsel: 

Robert P. Ducatman 

Sheryl H. Love 

JONES DAY 

901 Lakeside Avenue 

Cleveland, Ohio 44114 

(216) 586-3939 

Theresa M. Gillis (TG-2036) 

JONES DAY 

222 East 41st Street 

New York, New York 10017-6702 

(212)326-3939 

Attorneys for Defendant 

The Timken Company 

Case 1:07-cv-05729-JSR Document 28 Filed 07/31/2007 Page 5 of 8
CERTIFICATE OF SERVICE 

 I hereby certify that a copy of the foregoing DEFENDANT THE TIMKEN 

COMPANY’S MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS was served on 

July 31, 2007, by electronic filing on all parties so registered and via overnight courier as set 

forth below: 

John Anthony Pelosi (JAP-9066) 

PELOSI, WOLF, EFFRON & SPATES, LLP 

Woolworth Building, 233 Broadway 

22nd Floor 

New York, New York 10279 

Counsel for Plaintiff George Edward 

McCain 

Richard E. Haftel 

HAFTEL & SILVERMAN, P.C. 

260 Madison Avenue, 18th Floor 

New York, NY 10016 

David J. Pasternak 

John W. Patton, Jr. 

PASTERNAK, PASTERNAK & PATTON 

A Law Corporation 

1875 Century Park East, Suite 2200 

Los Angeles, CA 90067 

H. Ritchey Hollenbaugh 

CARLILE PATCHEN AND MURPHY, LLP 

366 East Broad Street 

Columbus, OH 43215 

Counsel for Defendant 

Rahal Letterman Racing LLC and 

Bobby Rahal Automotive Group 

Andrew B. Lachow 

Deputy General Counsel 

Time, Inc. 

Time & Life Building 

1271 Avenue of the Americas 

New York, New York 10020-1393 

Counsel for Defendants 

Time, Inc. d/b/a Sports Illustrated & People 

Magazine 

Karen Bekker 

Mark Fowler 

SATTERLEE STEPHENS BURKE & 

BURKE LLP 

230 Park Avenue 

New York, NY 10169 

Counsel for Defendant 

Gannett Co., Inc. d/b/a USA Today 

Case 1:07-cv-05729-JSR Document 28 Filed 07/31/2007 Page 6 of 8
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H. Rowan Gaither, IV 

Reema S. Abdelhamid 

RICHARDS KIBBE & ORBE, LLP 

One World Financial Center 

New York, New York 10281-2702 

Michael H. Gottschlich 

BARNES & THORNBURG LLP 

11 South Meridian Street 

Indianapolis, Indiana 46204-3535 

Counsel for Defendant 

Table Moose Media LLC 

d/b/a Indy Men’s Magazine 

Margaret A. Dale 

PROSKAUER ROSE LLP 

1585 Broadway 

New York, New York 10036-8299 

Counsel for Defendant 

American Honda Motor Co., Inc. 

George Cacoulidis 

Attorney at Law 

590 Madison Avenue 

21st Floor 

New York, New York 10022 

Counsel for Defendant 

American LeMans Series LLC 

Jason M. Gonder 

MILBANK, TWEED, HADLEY & 

MCCLOY LLP 

One Chase Manhattan Plaza 

New York, New York 

Counsel for Defendant BEA Systems, Inc. 

James Rosenfeld 

DAVIS, WRIGHT, TERMAINE LLP 

1633 Broadway 

New York, New York 10019-6708 

Counsel for Defendant 

Gawker Media LLC 

Richard Sotot 

HUNTON & WILLIAMS LLP 

20 Park Avenue 

New York, New York 10166-0136 

Counsel for Defendant 

Times Publishing Company 

d/b/a St. Petersburg Times 

Case 1:07-cv-05729-JSR Document 28 Filed 07/31/2007 Page 7 of 8
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Carl E. Person 

Carl E. Person - An Individual Practitioner 

325 W. 45th St. - Suite 201 

New York, NY 10036 

Counsel for Defendant 

Ellen Emerson d/b/a Hondabeat.com

 __/s/Theresa M. Gillis 

 Theresa M. Gillis (TG-2036) 

Dated: New York, New York 

 July 31, 2007 

Case 1:07-cv-05729-JSR Document 28 Filed 07/31/2007 Page 8 of 8