United States District Court, S.D. California
BLAINE G. HARRINGTON III, Plaintiff,
EQUITY ASSET & PROPERTY MANAGEMENT, INC. d/b/a EQUITY RESIDENCE, LLC, Defendant.
ORDER GRANTING PLAINTIFF'S MOTION FOR THIRD
DEFAULT JUDGMENT, [ECF No. 27]
Gonzalo P. Curiel United States District Judge
the Court is the motion for Third Default Judgment filed by
Plaintiff Blaine G. Harrington III. ECF No. 27. Defendant
Equity Asset & Property Management, Inc. d/b/a Equity
Residences LLC has not answered Plaintiff's complaint or
otherwise appeared in this matter. For the reasons discussed
below the Court GRANTS Harrington's
January 30, 2018, Harrington filed his Complaint in this
Court. ECF No. 1. According to the Return of Service filed on
February 8, 2018, the summons and complaint were served on
“Jason Smith as Manager” at Equity's address
of 1220 Rosecrans Street, #822, San Diego, CA, 92016
(“Rosecrans Street address”). ECF No. 4. On March
13, 2018, Harrington moved for entry of default against
Equity, contending that Equity was served but did not answer
or respond to the Complaint within the allowed time to do so.
ECF No. 5. On March 14, 2018, the Clerk entered a default
against Equity. ECF No. 6. On August 14, 2018, Harrington
moved for a default judgment against Equity. ECF No. 9. On
October 15, 2018, the Court denied Harrington's first
motion for default judgment, citing a number of deficiencies
in Harrington's service of the summons and complaint on
Equity. ECF No. 12.
served the summons and complaint again on Jason Smith at the
Rosecrans Street address on November 28, 2018. ECF No. 21-3
¶ 3. That same day, Harrington also mailed the summons,
complaint, motion for default, motion for final default, and
the order denying final default to the same Rosecrans Street
address. Id. On January 4, 2019, Harrington
requested an entry of default against Equity. ECF No. 18. The
Clerk entered a default three days later. ECF No. 19. On
August 21, 2019, Harrington filed its second motion for
default judgment against Equity. ECF No. 21. On October 24,
2019, the Court denied Harrington's motion with leave to
amend within the next 30 days. ECF No. 26. On November 25,
2019, Plaintiff filed a motion for third default judgment.
ECF No. 27.
to the Complaint, Harrington is a “travel/location
photographer” based in Denver, Colorado. ECF No. 1
¶ 2. In 2011, Harrington created the photograph that
gives rise to this litigation. Id. ¶ 10. This
photograph depicts a beach scene with ocean water, sand, and
palm trees and is entitled
Work”). Id. ¶ 10. A person appears to be
laying on the beach in the photo. Id. Harrington
registered the photograph with the Register of Copyrights on
August 29, 2011. Id. ¶ 11.
is a luxury real estate investment company. Id.
¶ 3. In its motion for third default judgment,
Harrington alleges that Equity is a Nevada company with its
main office in San Diego, California. ECF No. 27-1 at 15.
Harrington asserts that Equity copied the Copyrighted Work
without Harrington's permission, and then distributed it
on the internet to promote Equity's business. ECF No. 1
¶¶ 15, 16.
a party against whom a judgment for affirmative relief is
sought has failed to plead or otherwise defend . . . the
clerk must enter the party's default.” Fed.R.Civ.P.
55(a). After default is properly entered, a party seeking
relief other than for a sum certain must apply to the Court
for a default judgment. Fed.R.Civ.P. 55(b). “[D]efault
judgments are ordinarily disfavored.” Eitel v.
McCool, 782 F.2d 1470, 1472 (9th Cir. 1986). “The
decision to grant or deny default judgment is within the
discretion of the district court.” Xifin, Inc. v.
Sunshine Pathways, LLC, No. 16-CV-01218-GPC-DHB, 2016 WL
5930313, at *2 (S.D. Cal. Oct. 12, 2016) (citing
Eitel, 782 F.2d at 1471). “In determining
whether a Plaintiff is entitled to default judgment, the
Court must first assess the adequacy of service of process on
the party against whom default is requested.” Hupp
v. San Diego Cty. Dist. Atty., No. 12-CV-492-IEG RBB,
2012 WL 2887229, at *4 (S.D. Cal. July 12, 2012) (citation
and quotation marks omitted).
order denying Plaintiff's second motion for default
judgment, the Court held that the existing record was
insufficient to exercise personal jurisdiction - both general
and specific personal jurisdiction - over Equity. ECF No. 26.
party against whom a judgment for affirmative relief is
sought has failed to plead or otherwise defend, the Court may
enter a judgment of default upon application by the plaintiff
and after an entry of default. See Fed. R. Civ. P.
55(b)(2). Before assessing the merits of a default judgment,
however, a court must confirm that it has subject matter
jurisdiction over the case and personal jurisdiction over the
parties. See In re Tuli, 172 F.3d 707, 712 (9th Cir.
1999). Because Plaintiff is asserting a violation of the
Copyright Act, 17 U.S.C. § 501, the Court has federal
question jurisdiction over that claim by virtue of 28 U.S.C.
§§ 1331, 1338(a). Accordingly, the Court has
subject matter jurisdiction over the case. Next, the Court
turns to the issue of personal jurisdiction.
entry of judgment is sought against a party who has failed to
plead or otherwise defend, a district court has an
affirmative duty to look into its jurisdiction over both the
subject matter and the parties. A judgment entered without
personal jurisdiction over the parties is void.”
Id. The Court may dismiss an action sua
sponte for lack of personal jurisdiction in order
“[t]o avoid entering a default judgment that can later
be successfully attacked as void.” Id. Even
when the Court has jurisdiction to enter judgment, the
decision whether to enter default judgment is within the
Court's discretion. See Aldabe v. Aldabe, 616
F.2d 1089, 1092 (9th Cir. 1980).
General Personal Jurisdiction
corrected his initial characterization of Equity as a
California corporation in the Complaint, see ECF No.
1 ¶ 9, now admitting that Equity is a Nevada company
with its main office in San Diego, California. ECF No. 27-1
at 10 n.1. In his third motion for default judgment,
Plaintiff argues that Equity has its principal place of
business in San Diego, California and is therefore subject to
this Court's exercise of general personal jurisdiction.
In support of this, Plaintiff alleges that Equity has its
main office in California, employees in California, a
California phone number with a San Diego area code listed on
its website, and a California address listed on its Statement
of Information filed with the California Secretary of State.
ECF No. 27-1 at 13. Plaintiff additionally alleges that
Equity is registered with the State of California Bureau of
Real Estate. Id.
respect to a corporation, the place of incorporation and
principal place of business are paradigm bases for general
jurisdiction.” Daimler AG v. Bauman, 571 U.S.
117, 137 (2014) (citations omitted). “Daimler
ma[de] clear the demanding nature of the standard for general
jurisdiction over a corporation, ” and that courts are
prohibited from exercising general jurisdiction solely on the
basis of a corporation's “substantial, continuous,
and systematic course of business” in a state.
Martinez v. Aero Caribbean, 764 F.3d 1062, 1070 (9th
Cir. 2014) (citing Daimler, 571 U.S. at 139). In
other words, “[g]eneral jurisdiction does not exist
simply because of the magnitude of the defendant's
in-state contacts.” Wright & Miller, 4 Fed. Prac.
& Proc. Civ. § 1067.5 (4th ed.) (citations omitted).
“General jurisdiction instead calls for an appraisal of
a corporation's activities in their entirety, nationwide
and worldwide.” Daimler, 571 U.S. at 139 n.20.
If the magnitude of a corporation's business activities
in the forum state substantially exceeds the magnitude of the
corporation's activities in other places, general
jurisdiction may be appropriate in the forum state. See
id. When there has been no evidentiary hearing, a
plaintiff need only make out a prima facie showing
of jurisdictional facts. See Brayton Purcell LLP v.
Recordon & Recordon, 606 F.3d 1124, 1127 (9th Cir.
2010); Data Disc, Inc. v. Sys. Tech. Assocs., Inc.,
557 F.2d 1280, 1285 (9th Cir. 1977). “It is only if the
court takes evidence on the issue or rules on the personal
jurisdiction question in the context of a trial that a
heightened, preponderance of the evidence standard
applies.” Mwani v. bin Laden, 417 F.3d 1, 7
(D.C. Cir. 2005). Absent such a showing, however, general
jurisdiction will be improper. See, e.g.,
Martinez, 764 F.3d at 1070 (finding general
jurisdiction lacking where corporation was not licensed to do
business in California and had no office, staff, or physical
presence in California, and therefore its California contacts
were minor compared to its other worldwide contacts).
prior order denying Plaintiff's motion for second default
judgment, the Court noted the need for a comparative
analysis. ECF No. 26 at 5. In his motion for third default
judgment, Harrington does not provide a comparative analysis
but alleges that Equity's principal place of business is
in San Diego, California and “does not appear to be
operating from anywhere else but California.” ECF 27-1
has not cited cases that define the requirements for a
“principal place of business” in the context of
general personal jurisdiction. At least in the context of
diversity of citizenship, the Supreme Court has referred to
the corporation's “principal place of
business” as its “nerve center, usually its main
headquarters, ” where “a corporation's
officers direct, control, and coordinate the
corporation's activities.” Hertz Corp. v.
Friend, 559 U.S. 77, 92-93 (2010).
Delphix, the Ninth Circuit permitted the exercise of
general jurisdiction over Embarcadero, a Delaware
corporation, despite Embarcadero's claims that it had
moved its principal place of business from California to
Texas. Delphix Corp. v. Embarcadero Techs., Inc.,
749 Fed.Appx. 502, 506 (9th Cir. 2018). The Ninth Circuit
found that the plaintiff had presented sufficiently extensive
evidence showing that Embarcadero's headquarters were
still in California. Specifically, the plaintiff cited the
following facts to demonstrate that Embarcadero's
principal place of business remained in California: (1)
Embarcadero continued to promote itself on social media as
having a principal place of business in California; (2)
Embarcadero had denied that its principal place of business
was in Texas in an answer to a complaint filed in the Eastern
District of Texas; (3) Embarcadero continued to represent
that it has a California address to the Trademark Office; (4)
Embarcadero had failed to substantiate in its pleadings and
discovery responses that most of its employees were located
in Texas at the time that the lawsuit was filed; and (5)
Embarcadero relied on California law and its California-based
offices in its contracts and policies addressed to consumers.
See Delphix Corp. v. Embarcadero Techs., Inc., 2016
WL 4474631, at *6 (N.D. Cal. Aug. 25, 2016), aff'd in
part, rev'd in part, 749 Fed.Appx. 502 (9th Cir.
Harrington alleges that Equity has listed a San Diego,
California phone number as the sole contact phone number on
its website and lists “La Jolla” as its location
on LinkedIn webpage; additionally, all of Equity's
employees appear to live in the greater San Diego area. ECF
No. 27-1 at 11. Harrington also presents evidence that
Defendant has real estate licenses with the State of
California that list the Rosecrans Street address as its
“main office” address. ECF Nos. 27-8, 27-9. And
finally, Equity cites California law on privacy rights in its
Harrington has presented substantial evidence corroborating
its claim that Equity's principal place of business is in
fact in San Diego, California. The Court is mindful that any
analysis of Equity's location and business conduct is
impeded by Equity's failure to appear. While the
Delphix plaintiff was able to present a more fulsome
record as to the defendant's location and business model;
here, Harrington has ultimately gathered sufficient evidence
about an absent defendant. While there is still a level of
uncertainty with respect to Equity's ties to Nevada, the
Court will afford a degree of flexibility to Harrington on
the question of jurisdiction in Equity's absence.
Mwani, 417 F.3d at 7 (“[T]he absence of the
defendants counsels greater flexibility toward the plaintiffs
because it impedes their ability to obtain jurisdictional
discovery.”). Accordingly, the Court finds that
Harrington has made a prima facie case showing that
Equity's principal place of business is in California and
that this Court has general personal jurisdiction over
Specific Personal Jurisdiction
the Court has already found general personal jurisdiction,
the question of specific personal jurisdiction is rendered
moot. However, the Court will nevertheless address this
Ninth Circuit applies the following three-prong test for
determining specific jurisdiction over a non-resident
(1) the non-resident defendant must purposefully direct his
activities or consummate some transaction with the forum or
resident thereof; or perform some act by which he
purposefully avails himself of the privilege of conducting
activities in the forum, thereby invoking the benefits and
protections of its laws;
(2) the claim must be one which arises out of or relates to
the defendant's forum-related activities; and
(3) the exercise of jurisdiction must comport with fair play
and substantial justice, i.e., it ...