Case 1:23-cv-21894-FAM Document 37 Entered on FLSD Docket 03/04/2024 Page 1 of 11
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF FLORIDA
`Case No.: 1:23-cv-21894-FAM
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`WORLD MEDIA ALLIANCE LABEL INC.,
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`Plaintiff,
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`v.
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`BELIEVE SAS, aka BELIEVE Co., aka BELIEVE,
`aka BELIEVE DIGITAL et al,
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`Defendants.
`_______________________________________/
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`DEFENDANT BELIEVE SAS’ RESPONSE IN OPPOSITION TO PLAINTIFF’S
`MOTION TO ALTER OR AMEND ORDER OF DISMISSAL
`FOR LACK OF JURISDICTION
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`Pursuant to Rule 59(e) of the Federal Rules of Civil Procedure, Defendant Believe SAS
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`aka Believe Co. aka Believe aka Believe Digital (“Believe”) files its Response in Opposition to
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`Plaintiff’s Motion to Alter or Amend Order of Dismissal for Lack of Jurisdiction (D.E. 36) and
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`states as follows:
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`INTRODUCTION
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`Plaintiff, World Media Alliance Label Inc. (“WMA”) sued Believe claiming copyright
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`infringement and tortious interference with business relationships related to musical works
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`published in Russia dating back to 1989. (See Compl. D.E. 1). The Court dismissed WMA’s
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`Complaint on January 24, 2024, because it lacks personal jurisdiction over French company
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`Believe (the “Order”) (D.E. 35). On February 18, 2024, WMA filed its Motion Under Rule 59(e)
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`to Alter or Amend Order of Dismissal for Lack of Jurisdiction (the “Motion”). WMA’s Motion
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`should be denied because it fails to show that there is a change in the controlling law, new
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`evidence available, or manifest error in dismissing this action. Rather, WMA is using this
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`1
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`Case 1:23-cv-21894-FAM Document 37 Entered on FLSD Docket 03/04/2024 Page 2 of 11
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`Motion to improperly relitigate issues that were already considered prior to dismissal.
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`Accordingly, WMA’s Motion should be denied.
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`ARGUMENT
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`Rule 59(e) allows for alteration or amendment of a judgment only in certain
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`circumstances, at the Court’s discretion. Rule 59(e) Fed. R. Civ. P., Am. Home Assur. Co. v.
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`Glenn Estess & Assocs., Inc., 763 F.2d 1237, 1238–39 (11th Cir. 1985) (“The decision to alter or
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`amend judgment is committed to the sound discretion of the district judge . . . .”).
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`The grounds that justify the grant of a Rule 59(e) motion are (1) an intervening change in
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`controlling law; (2) newly discovered evidence; or (3) the need to correct or manifest errors of
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`law or fact. PG Creative, Inc. v. Affirm Agency, LLC, No. 18-CV-24299, 2020 WL 837182, at *1
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`(S.D. Fla. Feb. 20, 2020). In bringing a Rule 59(e) motion, “the moving party must set forth facts
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`or law of a strongly convincing nature to induce the court to reverse its prior decision.” Williams
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`v. Cruise Ships Catering & Serv. Int’l, 320 F. Supp. 2d 1347, 1358 (S.D. Fla. 2004) (internal
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`quotations omitted); see also Wendy’s Int’l, Inc. v. Nu-Cape Constr., Inc., 169 F.R.D. 680, 684
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`(M.D. Fla. 1996). It is an “extraordinary remedy” that should be employed “sparingly” to protect
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`judicial resources. See Wendy’s Int’l, 169 F.R.D. at 685. Moreover, a motion to alter or amend
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`should not be used as an opportunity to “relitigate old matters, raise argument or present
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`evidence that could have been raised prior to the entry of judgment.” Michael Linet, Inc. v.
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`Village of Wellington, Fla., 408 F.3d 757, 763 (11th Cir. 2005).
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`As an initial matter, Rule 59 may not be the appropriate procedural mechanism because a
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`dismissal based on lack of personal jurisdiction is not an adjudication on the merits. See Madara
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`v. Hall, 916 F.2d 1510, 1514 n.1 (11th Cir. 1990) (explaining that a dismissal for personal
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`jurisdiction is without prejudice); Dupree v. Owens, 92 F.4th 999 (11th Cir. 2024) (same). Cases
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`2
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`in this Circuit have also hesitated to allow Rule 59 as a vehicle for amending a decision that is
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`not “on the merits.” See Emergency Recovery, Inc. v. Hufnagle, No. 19-CV-329-T-24JSS, 2021
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`WL 8775767, at *1 (M.D. Fla. Dec. 9, 2021) (finding a Rule 59(e) motion improper because the
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`court’s order was entered without prejudice pursuant to Rule 41(a)(2) and therefore not a
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`decision on the merits); Flava Works Inc. v. A4A Reseau Inc., No. 14-23208, 2016 WL 4054917
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`(S.D. Fla. Jan. 6, 2016) (denying Rule 59 motion to amend order granting attorneys’ fees because
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`attorneys’ fees order was not on the merits). WMA’s Rule 59(e) Motion asks the court to amend
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`its Order on personal jurisdiction, which did not include a decision “on the merits” of the
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`purported copyright claims. Thus, WMA’s Motion is likely improper.
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`Should the Court consider the Motion to be brought forth properly under Rule 59(e), it is
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`still unfounded. The Motion is simply an attempt by WMA to revive its copyright claim and
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`rehash arguments already presented in its Response in Opposition to Believe’s Motion to
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`Dismiss (the “Opposition”) (D.E. 29) and sets forth no valid basis to disturb this Court’s
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`dismissal. First, there is no intervening change in controlling law. Second, WMA does not
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`present any new relevant evidence that was not available before the entry of the judgment. Third,
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`the Court did not commit any manifest errors of law or fact. Dismissal was proper, and any
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`amendment would be futile. Thus, this Motion should be denied.
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`I.
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`WMA does not show an intervening change in controlling law
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`The first basis for challenging a decision under Rule 59 fails at the outset. Notably,
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`WMA’s Motion does not articulate any intervening change in controlling law regarding personal
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`jurisdiction or otherwise. WMA also does not otherwise challenge the Court’s application of
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`well-established Florida Statutes and cases applying the Florida long-arm and due process
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`framework. See (D.E. 35 at 4) (citing Carmouche v. Tamborlee Mgmt, Inc.,789 F.3d 1201,1203–
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`3
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`04 (11th Cir. 2015) (providing the two-step inquiry framework for personal jurisdiction); Fla.
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`Stat. § 48.193; Internet Solutions Corp. v. Marshall, 39 So. 3d 1201, 1215 (providing the
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`framework for personal jurisdiction in internet-based defamation cases)).
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`In analyzing specific and general jurisdiction under current controlling law, this Court
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`found that WMA failed to allege the accessibility of the works in Florida as required. (D.E. at 5)
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`(citing Jackson-Bear Group, Inc. v. Amirjazil, No. 2:10-CV-332-FTM-20, 2011 WL 1232985, at
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`*6 (M.D. Fla. Mar. 30, 2011). Similarly, the Court found that there was no “substantial contact
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`between Believe and Florida,” as required by a general jurisdiction analysis in Florida. (D.E. 35
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`at 6) (citing Louis Vuitton Malletier, S.A. v. Mosseri, 736 F.3d 1339, 1352 (11th Cir. 2013); Fla.
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`Stat. § 48.193(2). The Court further noted that WMA’s own allegations concede that Believe is a
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`“French type business entity registered in France,” “enacted under the French law,” with “no
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`registration in Florida” in correctly concluding that this Court lacks jurisdiction over Believe.
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`(D.E. 35 at 6). Because the Court adopted the proper jurisdictional framework and no laws have
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`changed the relevant jurisdictional analysis within Florida, the Motion should be denied.
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`II.
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`WMA does not present any new evidence
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`The second basis with which to challenge a decision under Rule 59 also fails. To succeed
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`on a Rule 59(e) motion based on newly discovered evidence, “the movant must show either that
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`the evidence is newly discovered or, if the evidence was available at the time of the decision
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`being challenged, that counsel made a diligent yet unsuccessful effort to discover the evidence.”
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`Chery v. Bowman, 901 F.2d 1053, 1057 n.6 (11th Cir. 1990) (denying a Rule 59(e) motion where
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`the plaintiff offered additional evidence in the form of an affidavit following the court’s
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`dismissal).
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`There is no evidence here that would form the basis for this Court to alter or amend its
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`4
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`decision (D.E. 35). WMA’s purported “new evidence” is not new (or relevant) evidence at all.
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`To that end, WMA contends that Believe registered a Designated Agent in the Digital Millenium
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`Copyright Act (“DMCA”) Designated Agent Directory (“DMCA Directory”) within the
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`Copyright Office on February 6, 2024. (D.E. 36 at 2–4). WMA’s “evidence” related to a
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`designated agent listed with the Copyright Office is flawed because it both existed prior to this
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`lawsuit and does not tend to prove jurisdiction. To that end, a simple search of the DMCA
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`Directory shows that Believe’s listing was submitted in 2018—public information readily
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`available to WMA before filing its Complaint. In fact, WMA’s Complaint included a homepage
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`link to the DMCA Directory generally, which tends to prove that WMA was aware of the
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`DMCA Directory (although irrelevant) and could have easily taken steps to locate Believe’s
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`listing. (D.E. 1 ¶ 18). Further, Believe’s listing only serves to bolster this Court’s conclusion that
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`personal jurisdiction is not appropriate in Florida because the listing displays Believe’s French
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`headquarters address. WMA also cited to no authority—and Believe is unaware of any—that
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`simply registering with the DMCA Directory subjects an international company to jurisdiction in
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`Florida. Even so, the listing is not substantial activity within Florida (or any state, for that
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`matter). 1 All of the “evidence” presented was in existence prior to the filing of WMA’s
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`Complaint and is irrelevant to jurisdiction.
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`III.
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`There is no manifest error of law or fact
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`Much like the above, WMA has similarly failed to show any manifest error of fact or law
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`as required by Rule 59. Courts have held that a manifest error arises when a court fails to apply
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`the correct legal standard, reaches a decision foreclosed by precedent, or commits a plain or
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`1 WMA also complains about YouTube’s actions related to videos on its platform. YouTube’s
`actions are irrelevant to the jurisdiction analysis as applied to Believe and improper because
`YouTube was dismissed from this case. (See D.E. 36 at 11–13).
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`5
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`indisputable error. See Negron v. Sec’y, Fla. Dep’t of Corr., 643 F. App’x 898, 901 (11th Cir.
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`2016) (citing In re District of Columbia, 792 F.3d 96, 97–98 (D.C. Cir. 2015)). See also U.S. v.
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`Jasin, 292 F. Supp. 2d 670, 676 (E.D. Pa. 2003) (stating that to demonstrate clear error a party
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`must show a “definite and firm conviction that a mistake has been committed.”); Jacobs v.
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`Tempur-Pedic Int’l, Inc., 626 F.3d 1327, 1344 (11th Cir. 2010) (stating that Plaintiffs did nothing
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`but ask the court to reexamine an unfavorable ruling in affirming that there was no error of law
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`or fact). There is no manifest error here.
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`A.
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`There are no manifest errors of law
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`WMA contends that the Court’s failure to consider the “federal law that came with the
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`DMCA” triggered a “misapplication of the law.” (D.E. 36 at 7). In connection with its DMCA
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`misapplication argument, WMA cites two different treaties, the WIPO Copyright Treaty
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`(“WCT”) and the WIPO Performance and Phonograms Treaty (“WPPT”), to suggest that
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`jurisdiction is proper under DMCA because the U.S. and France are both parties to these
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`treaties.2 See (D.E. 36 at 4–7). But WMA’s argument is misplaced. Importantly, WMA did not
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`allege any claims against Believe purporting to be violations of the DMCA, 17 U.S.C § 1201 et
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`seq., so any argument about DMCA is a red herring (See D.E. 1). It is also unclear how
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`international treaties and unspecified “federal law” surrounding a claim that WMA did not allege
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`would result in a misapplication of law pertaining to jurisdiction. Contrary, this Court correctly
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`applied the law in this jurisdiction—Florida’s long-arm statute and the cases construing it—to
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`conclude that Believe is not subject to jurisdiction in Florida. See (D.E. 35 at 4) (citing
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`Carmouche,789 F.3d at 1203–04). Accordingly, the Motion should be denied.
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`2 WMA refers to the treaties by simply including tables of contents without clear context or
`application. The treaties were also ratified by France in 2009, so it is unclear why WMA would
`raise them now.
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`6
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`B.
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`There are no manifest errors of fact
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`WMA also claims that the Court ignored several facts including: (1) Believe’s DMCA
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`Directory listing; (2) Believe’s participation in two extraterritorial cases; (3) exhibits attached to
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`WMA’s Opposition; and (4) a missing affidavit purportedly submitted by WMA’s president. But
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`none of the items WMA complains about are relevant, nor has WMA articulated what manifest
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`error has occurred. WMA’s Motion is simply a complaint about an unfavorable ruling. Jacobs,
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`626 F.3d at 1344.
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`As stated above, Believe’s DMCA Directory listing is completely irrelevant to the
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`jurisdiction analysis. See Section II, supra. Believe’s participation in federal cases outside of
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`Florida is similarly irrelevant. Ignoring the law on this point, WMA incorrectly asserts that
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`Believe is subject to personal jurisdiction in Florida because it was a named party in cases
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`pending in California and New York. See (D.E. 35 at 8).3 However, Believe’s actions in
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`California or New York courts are wholly irrelevant to Florida’s jurisdictional analysis. See
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`Louis Vuitton Malletier, S.A., 736 F.3d at 1352 (stating that general personal jurisdiction stems
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`from a “defendant’s activity in Florida without regard to where the cause of action arose.”)
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`(emphasis added). Under WMA’s theory, a company located in any state (or country) could be
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`haled into court in Florida simply because it was named in a lawsuit in another state, rendering
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`the jurisdictional analysis and due process meaningless.
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`WMA also claims that the Court ignored exhibits attached to its Opposition purporting to
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`show that WMA “wrote and downloaded official claims concerning Believe on numerous
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`3 Similarly misplaced is WMA’s suggestion that because some people in the United States speak
`Russian, jurisdiction in Florida is proper (D.E. 36 at 11).
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`7
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`occasions.” (D.E. 36 at 8–9) (listing exhibits 29-2, 29-3, 29-4, and 29-5).4 While WMA is correct
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`that the Court’s Order does not specifically reference these exhibits—emails sent by WMA and a
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`YouTube notification—it is likely because they did not affect the Court’s ruling. Activities by
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`the Plaintiff WMA are irrelevant for purposes of analyzing jurisdiction over Believe. And
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`although Believe was not the sender of the exhibit correspondence, Courts have held that even
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`where a defendant sends letters to the forum, that alone does not confer jurisdiction over the
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`sender. See R.D.T. Bus. Enterprises Inc. v. Garcoa, Inc., No. 06-60837-CIV, 2007 WL 9700852,
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`at *6 (S.D. Fla. Jan. 31, 2007) (dismissing case in finding no personal jurisdiction despite
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`defendant sending a cease-and-desist letter to Florida and where defendants’ unauthorized
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`products were sold in Florida). There is simply no activity by Believe arising to sufficient
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`minimum contacts or purposeful availment of Florida’s jurisdiction and WMA’s own actions are
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`not relevant for purposes of that analysis.
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`Finally, WMA claims that the Court ignored an affidavit issued by its president.
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`However, the docket does not include any affidavits submitted by WMA and there are no
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`affidavits attached to any of WMA’s filings. WMA also asserts that Believe did not provide any
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`evidence to support its Motion to Dismiss (D.E. 36 at 15) yet Believe submitted a declaration
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`asserting that it has no ties with Florida, which was unrefuted. (See D.E. 23). There are simply no
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`manifest errors of fact and dismissal was proper.
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`IV. WMA rehashes the arguments from its Opposition
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`Finally, the Motion is in large part a recitation of WMA’s arguments contained in its
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`dismissal Opposition. However, cases are clear that when requesting the alteration or amendment
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`of a judgment, a party should not “ask the Court to rethink what the Court has already thought
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`4 Exhibit 29-5 was not attached to WMA’s Opposition and is not on the docket.
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`8
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`through.” Siegmund v. Xuelian, No. 12-62539, 2016 WL 3186004, at *1 (S.D. Fla. June 8, 2016)
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`(citation omitted). In fact, several arguments are almost verbatim as those already considered by
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`this Court.
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`Related to jurisdiction, WMA once again concedes that Believe is a “French entity.”
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`(compare D.E. 29 at 1 to D.E. 36 at 1). WMA reiterates that Believe is based in France, in part
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`by listing the DMCA Directory listing containing Believe’s French address. (See D.E. 36 at 3).
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`Unrelated to jurisdiction, WMA repeats that Believe “was obligated to show the
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`certificates” related to the songs included in WMA’s claims and did not do so. (See D.E. 29 at 2;
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`D.E. 36 at 14). WMA practically repeats the same language in its filings:
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`Believe speculates in its MTD that it holds copyright to all of the songs to which
`WMA has copyright. However, Believe was obligated to show the certificates.
`None has been provided, making the MTD baseless. Since 2021, WMA has
`directed Believe numerous requests to remove the content to which WMA has
`copyright voluntarily. WMA has sent to Believe numerous communications
`were titled as or could be interpreted, as “cease and desist” letters. On its end,
`Believe has not responded to any of those, acting in bad faith. If Believe were
`interested in amicably resolving the copyright issues, it was its obligation to
`respond to the “cease and desist” communications showing its certificates, if any.
`It is improper for a large organization such as Believe to merely perpetuate a
`sort of cyber piracy, misusing the copyright held by WMA.
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`(D.E. 29 at 2) (emphasis added).
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`On its end Believe, in the motion papers accompanying MTD, was obligated to
`show the certificates. The District Court did not address, regrettably, the fact that
`WMA has sent to Believe numerous communications that were titled as or
`could be interpreted as “cease and desist” letters. Therefore, WMA correctly
`argued it is unlawful for a large organization such as Believe to merely
`perpetuate a sort of cyber piracy, misusing or confiscating the copyright held
`by WMA.
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`(D.E. 36 at 14–15) (emphasis added). Not only is the argument irrelevant because the Order
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`toward which the Motion is directed focused solely on jurisdiction, but it is fundamentally
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`flawed—Believe is not attempting to assert its copyright registrations against WMA (nor would
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`9
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`it have to show “certificates” in any event).
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`WMA also presents the same arguments in its Opposition regarding the ongoing war
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`between Russia and Ukraine. More specifically, WMA contends that the U.S. does not recognize
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`Russian legal actions. (D.E. 29 at 18–19; D.E. 36 at 9). As articulated in Believe’s Motion to
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`Dismiss and declaration, the ongoing Russian litigation is relevant because it affects the
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`ownership of the works alleged in the Complaint and could invalidate WMA’s purported
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`ownership. (D.E. 22, 23). Nevertheless, because the Court did not dismiss based on anything
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`other than a lack of personal jurisdiction, WMA’s arguments related to abstention based on
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`Russian proceedings are not relevant to the Order at issue in WMA’s Motion. Accordingly,
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`WMA’s rehashing of the same arguments in its Opposition is improper and the Motion should be
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`denied.
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`Finally, because WMA has not articulated any valid basis to revisit the Order on
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`dismissal and reiterates the same facts as contained in its Complaint (which on its face makes
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`clear that jurisdiction is lacking) there is no basis to allow a futile amendment. See Humana Inc.
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`v. St. Jude Med., LLC, No. 1:19-CV-23119-UU, 2020 WL 13369049, at *2 (S.D. Fla. July 14,
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`2020) (“Courts routinely find amendment to be futile where the court would not be able to
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`exercise personal jurisdiction over the defendant.”) (internal citations omitted); L.S. ex rel.
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`Hernandez v. Peterson, 982 F.3d 1323, 1332 (11th Cir. 2020) (“A district court may find futility
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`if a prerequisite to relief ‘is belied by the facts alleged in [the] complaint.’”) (quoting Surtain v.
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`Hamlin Terrace Found., 789 F.3d 1239, 1248 (11th Cir. 2015)). Dismissal was entirely proper
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`here.
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`CONCLUSION
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`WMA has not articulated any recognized grounds justifying reconsideration. WMA did
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`not proffer any intervening change in controlling law, new evidence previously unattainable, or
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`the need to correct clear errors or. Accordingly, Believe respectfully requests that this Court deny
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`WMA’s Motion and grant any further relief that this Court deems just and proper.
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`Respectfully Submitted,
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`SHULLMAN FUGATE PLLC
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`Allison S. Lovelady
`Allison S. Lovelady (Florida Bar No. 70662)
`alovelady@shullmanfugate.com
`Amber A. Couzo (Florida Bar No. 1031514)
`acouzo@shullmanfugate.com
`2101 Vista Parkway Suite 4006
`West Palm Beach, Florida 33411
`(561) 614-2592
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`Attorneys for Defendant Believe SAS
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`11
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