Michael Grecco Productions, Inc. v. Enthusiast Gaming, Inc.
- Lucy Koh
- 5:19-cv-06399
- U.S. District Court · Northern District of California
- 11
Michael Grecco Productions v. Enthusiast Gaming: Judge Koh denied default judgment without prejudice because service was not established.
Michael Grecco Productions, Inc. could not obtain default judgment at this stage because it had not established proper service. Enthusiast Gaming, Inc. remained subject to the court’s general personal jurisdiction, but the court did not enter judgment against it. The plaintiff was given 30 days to address service or propose a schedule for serving the defendant, with possible dismissal with prejudice if it failed to do so.
What happened
In Michael Grecco Productions, Inc. v. Enthusiast Gaming, Inc., the plaintiff alleged that the defendant used a copyrighted photograph without permission and did not respond to the lawsuit.
The plaintiff asked the court to enter judgment because the defendant had not defended the case. The court found that the plaintiff had not shown that the defendant was properly served under California law, including because the record did not show prepaid postage, a required service affidavit, or a required notice on the summons.
Judge Koh denied the motion for default judgment without prejudice. She gave the plaintiff 30 days either to provide additional documents and file a renewed motion or to propose a schedule for properly serving the defendant; otherwise, the court stated that it would dismiss the case with prejudice.
The detailed version
- Michael Grecco Productions, Inc. v. Enthusiast Gaming, Inc. · No. 5:19-cv-06399
- Lucy Koh
- July 22, 2020
Background
Michael Grecco Productions, Inc. alleged that it owned the copyright to a promotional photograph of actress Nana Visitor portraying Kira Nerys in “Star Trek: Deep Space Nine.” It alleged that Enthusiast Gaming, Inc., doing business as Destructoid, published the photograph on its website without authorization and used it to promote website content and increase viewership. The complaint asserted claims for copyright infringement and vicarious or contributory copyright infringement and sought injunctive relief and statutory damages.
Procedural history
The plaintiff filed the complaint on October 7, 2019. It later stated that the defendant had been served by substitute service, and the Clerk entered default against the defendant on February 11, 2020. The plaintiff then moved for default judgment.
Court’s analysis
Before entering default judgment, the court was required to determine whether it had subject-matter jurisdiction and personal jurisdiction over the defendant. The court found subject-matter jurisdiction because the claims arose under the Copyright Act. It also found that the defendant was subject to the court’s general personal jurisdiction based on allegations that the defendant’s principal and only official place of business was in San Francisco, California.
The court concluded, however, that the plaintiff had not established valid service of process. Under California Code of Civil Procedure section 415.20(a), substitute service required leaving the summons and complaint at the company’s office with a person apparently in charge and then mailing copies with prepaid postage. Although the court found that the first two requirements were established, the record did not show that the mailing included prepaid postage.
The court also found that the plaintiff had not satisfied additional requirements for serving a corporation by substitute service. The plaintiff had not provided the required affidavit from the person who made service under section 417.10(a), and it had not shown that the summons contained the notice required by section 412.30. Because the plaintiff had not sufficiently established proper service, the court did not analyze the factors used to decide whether default judgment should be entered.
Ruling
The court denied the plaintiff’s motion for default judgment without prejudice. Within 30 days, the plaintiff was required either to file declarations and affidavits addressing the service deficiencies along with a renewed motion for default judgment, or to file a notice proposing a schedule for promptly serving the defendant under California law. The court stated that if the plaintiff failed to take the required action or cure the deficiencies within 30 days, it would dismiss the case with prejudice.
Read the full 11-page opinion on CourtListener, the free public archive maintained by the Free Law Project.