United States District Court, N.D. Alabama, Southern Division
DAVID PROCTOR UNITED STATES DISTRICT JUDGE.
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
Inkedtilldeath.com 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.
History and Background Facts
August 2015, Plaintiff filed its original complaint against
Defendants Contact Privacy, Inc. and
Inkedtilldeath.com. (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 Inkedtilldeath.com, along
with still photographs taken from the video. (Id. at
¶ 5). Plaintiff did not give Inkedtilldeath.com
permission to use the video's contents. (Id.).
Plaintiffs counsel notified Defendant
Inkedtilldeath.com about the copyright infringement
in June 2015 but received no response. (Id.).
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).
then amended the complaint to add Victor Nunez as a
Defendant. (Doc. # 3). The amendment stated that Nunez was
the owner and registrant of Inkedtilldeath.com.
(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
Inkedtilldeath.com as Victor Nunez d/b/a
Inkedtilldeath.com. (Doc. # 21 at 1).
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
Inkedtilldeath.com that the company had taken Plaintiffs
intellectual property and altered it to remove Plaintiffs
watermark and apply Inkedtilldeath.com's
watermark. (Id. at 7). Plaintiff s counsel
threatened to commence litigation if
Inkedtilldeath.com 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
Inkedtilldeath.com's Facebook page.
(Id. at 9). That exhibit includes
Inkedtilldeath.com's watermark but does not
include Plaintiffs watermark. (See id.).
April 2016, Plaintiff moved for leave to serve Defendants
Nunez and Nunez d/b/a Inkedtilldeath.com 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
Inkedtilldeath.com by publication in a Long Beach
newspaper. (Id. at 3-4). The court granted Plaintiff
leave to serve Defendant Nunez d/b/a
Inkedtilldeath.com 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
Inkedtilldeath.com has not filed an answer to the
complaint with the court or otherwise defended this action
after Plaintiffs service by publication.
moved for an entry of default against Defendants Nunez and
Nunez d/b/a Inkedtilldeath.com. (Doc. # 29). In a
show cause order, the court directed Plaintiff to justify the
court's inpersonam jurisdiction and venue over
this action. (Doc. # 30).
Standard of Review
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.
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. 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.
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