United States District Court, N.D. Alabama, Northeastern Division
MEMORANDUM OPINION AND ORDER
MADELINE HUGHES HAIKALA, UNITED STATES DISTRICT JUDGE
Monika Glennon brings this action for copyright infringement
under 17 U.S.C. § 501. (Doc. 1). Ms. Glennon also brings
claims for libel, invasion of privacy, outrage, and tortious
interference with business relations under Alabama law. (Doc.
1). Defendant Mollie Rosenblum has not appeared or otherwise
defended this case. On June 20, 2017, the Clerk made an entry
of default against Ms. Rosenblum. (Doc. 27). Ms. Glennon
since has filed a motion for summary judgment against Ms.
Rosenblum. (Doc. 32).
April 23, 2018, the Court notified Ms. Glennon that, in light
of the Clerk's entry of default against Ms. Rosenblum,
the Court was inclined to construe her motion for summary
judgment as a motion for default judgment. (Doc. 37). Because
Ms. Glennon has not objected to this approach, the Court
construes her motion as one for default judgment. For the
reasons stated below, the Court grants Ms. Glennon's
motion and enters judgment in her favor on her claims against
STANDARD OF REVIEW
Rule of Civil Procedure 55 establishes a two-step procedure
for obtaining a default judgment. First, when a defendant
fails to plead or otherwise defend a lawsuit, as in this
case, the clerk of court is authorized to enter a clerk's
default. Fed.R.Civ.P. 55(a). Second, after entry of the
clerk's default, if the defendant is not an infant or an
incompetent person, a court may enter a default judgment
against the defendant because of the defendant's failure
to appear or defend. Fed.R.Civ.P. 55(b)(2). “A default
judgment must not differ in kind from, or exceed in amount,
what is demanded in the pleadings.” Fed.R.Civ.P. 54(c).
motion for default judgment is not granted as a matter of
right.” Pitts ex rel. Pitts v. Seneca Sports,
Inc., 321 F.Supp.2d 1353, 1356 (S.D. Ga. 2004) (internal
footnote omitted). After a clerk enters a default pursuant to
Rule 55(a), a court must review the sufficiency of the
complaint and its underlying substantive merits to determine
whether a moving party is entitled to default judgment.
Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1370
n.41 (11th Cir. 1997). A court must ensure that the
well-pleaded allegations in the complaint state a substantive
cause of action and that a sufficient basis exists in the
pleadings for the relief sought. Cotton v. Mass. Mut.
Life Ins. Co., 402 F.3d 1267, 1278 (11th Cir. 2005). In
addition to the pleadings, a court may consider evidence
presented in the form of an affidavit or declaration.
Frazier v. Absolute Collection Serv., Inc., 767
F.Supp.2d 1354, 1362 (N.D.Ga. 2011). A defaulting defendant
“admits the plaintiff's well-pleaded allegations of
fact” for purposes of liability. Buchanan v.
Bowman, 820 F.2d 359, 361 (11th Cir. 1987) (quoting
Nishimatsu Constr. Co., Ltd. v. Houston Nat'l
Bank, 515 F.2d 1200, 1206 (5th Cir. 1975) (internal
quotation marks omitted)).
Ms. Rosenblum has not appeared in this action, she has
submitted an affidavit to Ms. Glennon's counsel in which
she recounts her role in the facts underlying this case.
(Doc. 33-2). The Court relies on Ms. Rosenblum's
affidavit, Ms. Glennon's affidavit, and the allegations
in Ms. Glennon's second amended complaint to establish
the facts examined in this opinion.
Glennon is a real estate agent with RE/MAX Alliance in
Huntsville, Alabama. (Doc. 18, ¶ 10). In 2013, Ms.
Glennon hired a photographer to take a professional portrait
of her which Ms. Glennon since has used to promote her
business in paper and digital media. (Doc. 18, ¶ 11;
Doc. 18-2, p. 2). The photographer later transferred
ownership of the image to Ms. Glennon, and Ms. Glennon
copyrighted the image. (Doc. 18, ¶ 12; Doc. 18-2, p. 2).
September 16, 2015, Ms. Rosenblum anonymously posted a story
purportedly about Ms. Glennon to a website called
“She's a Homewrecker.” (Doc. 18, ¶ 14;
Doc. 33-2, ¶ 4). The website markets itself as a forum
in which aggrieved wives can publically shame women who
allegedly have committed adultery with their husbands. (Doc.
18, ¶ 13; Doc. 18-3, pp. 2-3.) Ms. Rosenblum narrated
her tale of salacious events from the perspective of such a
wife and included Ms. Glennon's full name and her
professional portrait in the posting. (Doc. 18, ¶ 14;
Doc. 18-3, p. 2; Doc. 33-2, ¶ 8).
Rosenblum asserted that she and her husband hired Ms. Glennon
to help with their search for a new home in the Huntsville
area. (Doc. 18-2, p. 2; Doc. 33-2, ¶ 5). According to
Ms. Rosenblum, when she arrived at a potential property, she
found her husband inside the house engaging in sexual acts
with Ms. Glennon. (Doc. 18-3, pp. 2-3; Doc. 33-2, ¶5).
In the story that she posted, Ms. Rosenblum graphically
recounted the details of the alleged adulterous encounter,
referring to Ms. Glennon as “a nasty slut, ” and
“a disgusting skank of a woman.” (Doc. 18-3, p.
3; Doc. 33-2, ¶ 6). Ms. Rosenblum concluded the post by
telling readers: “DO NOT USE THIS WOMAN AS A
REALTOR.” (Doc. 18-3, p. 3).
the complaint and the parties' affidavits indicate, the
story was false. (Doc. 18, ¶ 18; Doc. 33-2, ¶¶
13, 17, 18). In fact, when she posted the story, Ms.
Rosenblum had not met Ms. Glennon. (Doc. 33-1, ¶ 5; Doc.
33-2, ¶ 13). Neither Ms. Rosenblum nor her husband, who
was deceased at the time of the alleged encounter, ever hired
Ms. Glennon as a realtor. (Doc. 33-1, ¶ 5; Doc. 33-2,
¶ 13). Although Ms. Rosenblum's motives for
targeting Ms. Glennon are not clear, she alludes to having
read online posts by Ms. Glennon which led Ms. Rosenblum to
believe, incorrectly, that Ms. Glennon was anti-Semitic.
(Doc. 33-2, ¶¶ 18, 19, 21).
false story about Ms. Glennon became one of the most popular
pieces on “She's a Homewrecker, ” and it
attracted a substantial amount of commentary from readers of
the site who referred to Ms. Glennon as a “tramp,
” among other things. (Doc. 18, ¶ 16; Doc. 18-3,
pp. 3-6; Doc. 33-2, ¶ 9). Readers then shared the story
in other online forums including Facebook and the website
“BadBiz Report.” (Doc. 33-2, ¶ 9). The story
reached the height of its popularity when it was picked up by
the news outlet AL.com and by a local television station.
(Doc. 33-1, ¶ 7; Doc. 33-2, ¶¶ 11, 12). Ms.
Rosenblum's story also was reposted on RE/MAX's
website. (Doc. 33-1, ¶ 11; Doc. 33-2, ¶ 10).
after posting the story, Ms. Rosenblum relented and contacted
various websites where the story was posted in an
unsuccessful attempt to have it removed. (Doc. 33-2,
¶¶ 19-21). The websites that continue to make the
story available have informed both Ms. Glennon and Ms.
Rosenblum that they will not de-index the story without a
court order declaring the story to be false. (Doc. 33-1,
¶ 14; Doc. 33-2, ¶ 20).
Subject Matter Jurisdiction
the Court enters a default judgment, the Court first must
ensure that it has subject matter jurisdiction over the case.
Smarter Every Day, LLC v. Nunez, 2017 WL 1247500, at
*2 (N.D. Ala. Apr. 5, 2017) (citing Sys. Pipe &
Supply, Inc. v. M/V Viktor Kurnatovskiy, 242 F.3d 322,
324 (5th Cir. 2001)). In her second amended complaint, Ms.
Glennon asserts that the Court may exercise jurisdiction over
her federal copyright claim pursuant to 28 U.S.C. § 1331
and exercise supplemental jurisdiction over her state law
claims pursuant to 28 U.S.C. § 1367. (Doc. 18, ¶
plaintiff's well-pleaded complaint alleges a cause of
action arising under federal law, the federal courts have
subject matter jurisdiction to adjudicate the federal claim.
Lobo v. Celebrity Cruises, Inc., 704 F.3d 882, 891
(11th Cir. 2013) (citing Chicago v. Int'l Coll. of
Surgeons, 522 U.S. 156, 163 (1997)). In Count One of her
second amended complaint, Ms. Glennon asserts a claim for
copyright infringement under 17 U.S.C. § 501. (Doc. 18,
p. 5). “Copyright infringement has two elements:
‘(1) ownership of a valid copyright, and (2) copying of
[protectable] elements.'” Home Design Servs.
Inc. v. Turner HeritageHomes, Inc., 825 F.3d
1314, 1320 (11th Cir. 2016) (quoting Miller's Ale
House, Inc. v. Boynton Carolina Ale House, LLC, 702 F.3d
1312, 1325 (11th Cir. 2012)). In support of her copyright
claim, Ms. Glennon alleges that Ms. Rosenblum “copied
and distributed” a copyrighted image without permission
and that Ms. Glennon owns the rights to that image. (Doc. 18,
p. 5). The Court ...