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Smarter Every Day LLC v. Nunez

United States District Court, N.D. Alabama, Southern Division

April 5, 2017

VICTOR NUNEZ, et al., Defendants.



         This case is before the court on Plaintiffs Motion for Entry of Default. (Doc. # 29). The court entered a Show Cause Order directing Plaintiff to address "(1) why this case should not be dismissed for lack of personal jurisdiction over Defendants, (2) why this case should not be dismissed for improper venue, and (3) whether Plaintiff properly served Defendants Victor Nunez and Victor Nunez d/b/a by publication under Federal Rule of Civil Procedure 4(e) and California Code of Civil Procedure § 415.50." (Doc. # 30 at 2). Plaintiff has responded to the Show Cause Order. (Doc. # 31). And, the court has received no response from Defendants to Plaintiffs motion for entry of default. Accordingly, Plaintiffs motion for entry of default is under submission.

         I.Procedural History and Background Facts

         In August 2015, Plaintiff filed its original complaint against Defendants Contact Privacy, Inc. and (Doc. # 1). The complaint alleged that Plaintiff held the copyright to a video entitled "Tattooing Close Up (in slow motion)." (Id. at ¶ 4). That video was posted on a Facebook account owned by, along with still photographs taken from the video. (Id. at ¶ 5). Plaintiff did not give permission to use the video's contents. (Id.). Plaintiffs counsel notified Defendant about the copyright infringement in June 2015 but received no response. (Id.).

         Plaintiff alleged that Defendants committed copyright infringement by posting the Tattooing Up Close video and still photographs from that video to a Facebook page, in violation of 17 U.S.C. §504. (Id. at ¶ 6). Plaintiff also alleged that Defendants committed fraud, misrepresentation, and deceit by (a) representing that the contents of the video belonged to Defendants and (b) placing a "vignette" over a portion of the video and images to obscure Plaintiffs watermark and insert another watermark. (Id. at ¶ 7). Plaintiff asserted that jurisdiction and venue were proper in the Northern District of Alabama because the acts mentioned in the complaint "have taken place throughout the United States and specifically within the state of Alabama and the Northern District of Alabama." (Id. at ¶ 3).

         Plaintiff then amended the complaint to add Victor Nunez as a Defendant. (Doc. # 3). The amendment stated that Nunez was the owner and registrant of (Id. at 1). According to Plaintiff, Nunez was a citizen of California. (Id. at 2). In November 2015, Plaintiff voluntarily dismissed its claims against Defendant Contact Privacy. (Docs. # 10, 11). In March 2016, Plaintiff filed a second amended complaint that referred to Defendant as Victor Nunez d/b/a (Doc. # 21 at 1).

         The second amended complaint included an attachment with two exhibits. (See Doc. # 21-1 at 7-9). In a June 2015 letter, Plaintiffs counsel informed the owners of that the company had taken Plaintiffs intellectual property and altered it to remove Plaintiffs watermark and apply's watermark. (Id. at 7). Plaintiff s counsel threatened to commence litigation if did not respond in fourteen days. (Id.). That letter did not describe the contents of Plaintiffs watermark, inform Defendants where Plaintiff was located, or inform Defendants of the forum where litigation would be filed. (See id.). Plaintiffs second exhibit is a copy of the image posted on's Facebook page. (Id. at 9). That exhibit includes's watermark but does not include Plaintiffs watermark. (See id.).

         In April 2016, Plaintiff moved for leave to serve Defendants Nunez and Nunez d/b/a by publication. (Doc. # 23). Plaintiffs agents had attempted to serve Nunez with a summons in Long Beach, California, Van Nuys, California, Glendale, Arizona, and Hawthorne, California, but they were unable to locate Nunez. (Id. at 1-3). Plaintiff determined that Nunez's most recent address was in Long Beach, California; accordingly, it sought leave to serve Nunez and Nunez d/b/a by publication in a Long Beach newspaper. (Id. at 3-4). The court granted Plaintiff leave to serve Defendant Nunez d/b/a by publication. (Doc. # 24 at 2). A clerk for a Long Beach newspaper averred that a notice of summons for this action was printed in the newspaper on May 17, 2016, May 24, 2016, May 31, 2016, and June 7, 2016. (Doc. # 25-2 at 5). Defendant Nunez d/b/a has not filed an answer to the complaint with the court or otherwise defended this action after Plaintiffs service by publication.

         Plaintiff moved for an entry of default against Defendants Nunez and Nunez d/b/a (Doc. # 29). In a show cause order, the court directed Plaintiff to justify the court's inpersonam jurisdiction and venue over this action.[1] (Doc. # 30).

         II. Standard of Review

         "[A] district court has the duty to assure that it has the power to enter a valid default judgment." System Pipe & Supply, Inc. v. M/V Viktor Kurnatovskiy, 242 F.3d 322, 324 (5th Cir. 2001). Accordingly, when a party seeks an entry of judgment against another party who has failed to appear or defend itself in an action, "a district court has an affirmative duty to look into its jurisdiction over both the subject matter and the parties." Tuli v. Republic of Iraq (In re Tuli), 172 F.3d 707, 712 (9th Cir. 1999). Unlike lack of subject matter jurisdiction, lack of personal jurisdiction and improper venue are waivable defenses. Lipofsky v. New York State Workers Compensation Bd, 861 F.2d 1257, 1258 (11th Cir. 1988). Nevertheless, a district court may consider venue or personal jurisdiction sua sponte if the issue has not been waived, although it cannot dismiss an action sua sponte on a venue or personal jurisdiction ground without providing the parties an opportunity to present their views. Id. The court has provided the parties an opportunity to address the personal jurisdiction and venue issues in this case (see Doc. # 30), and Plaintiff has presented its arguments for why this case is properly before this court.

         "A plaintiff seeking the exercise of personal jurisdiction over a nonresident defendant bears the initial burden of alleging in the complaint sufficient facts to make out a prima facie case of jurisdiction." United Techs. Corp. v. Mazer, 556 F.3d 1260, 1274 (11th Cir. 2009). The determination of whether the exercise of personal jurisdiction over a nonresident defendant is appropriate involves a two-part analysis. See Cable/Home Communication Corp. v. Network Prods., Inc., 902 F.2d 829, 855 (11th Cir. 1990); see also Alexander Proudfoot Co. World Headquarters L.P. v. Thayer, 877 F.2d 912, 919 (11th Cir. 1989). First, the jurisdictional question under the state long-arm statute is considered.[2] See Cable/Home Communication Corp., 902 F.2d at 855; see also Alexander Proudfoot Co., 877 F.2d at 919. Second, if there is a basis for the assertion of personal jurisdiction under the state long-arm statute, the next determination to be made is whether sufficient minimum contacts exist to satisfy the Due Process Clause of the Fourteenth Amendment so that "maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.'" International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)); see also Cable/Home Communication Corp., 902 F.2d at 855; Alexander Proudfoot Co., 877 F.2d at 919.

         When venue is contested, a plaintiff "has the burden of showing that venue in the forum is proper." Pritchett v. Paschall Truck Lines, Inc., 714 F.Supp.2d 1171, 1172 (M.D. Ala. 2010). The court must accept the allegations in Plaintiffs complaint as true, since those ...

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