Talavera Hair Products, Inc. v. Taizhou Yunsung Electrical Appliance Co., LTD.

8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA TALAVERA HAIR PRODUCTS, INC., a Case No.: 18-CV-823 JLS (JLB) Nevada corporation, ORDER (1) DENYING WITHOUT Plaintiff, 13 PREJUDICE PLAINTIFF’S MOTION v. FOR DEFAULT JUDGMENT AND/OR SUMMARY JUDGMENT TAIZHOU YUNSUNG ELECTRICAL 15 AGAINST DEFAULTED APPLIANCE CO., LTD., a business DEFENDANTS AND REQUEST FOR entity; and THE INDIVIDUALS, JUDICIAL NOTICE, AND PARTNERSHIPS, AND 17 (2) DIRECTING PLAINTIFF TO UNINCORPORATED ASSOCIATIONS FILE A SUPPLEMENTAL BRIEF IDENTIFIED ON EXHIBIT “1,” CONCERNING PERSONAL 19 Defendants. JURISDICTION (ECF No. 98) 22 Presently before the Court are Plaintiff Talavera Hair Products, Inc.’s Motion for Default Judgment and/or Summary Judgment Against Defaulted Defendants1 (“Mot.,” The “Defaulted Defendants” are those against whom Plaintiff secured an entry of default on February 21, 2019, minus those who have since been dismissed, namely: allforyoushopper.usa (3), ANIMON (4), anothercloud (5), Aosend (6), AoStyle (7), AuPolus (8), Beisirui Hair Store (11), Cai ming zhil (12), Ciao Fashion (14), Enjoy&Life (19), Fosen Man (20), Georgy’s Store (22), Hairsmile (24), Judi Shop (26), Kosmasl (27), Lanmpu Creative (31), MKLOPED (32), Mokshee Mokshee/Donop (34), MyBeautyCC ECF No. 98) and Request for Judicial Notice of Default Judgments and Permanent Injunctions Involving “Seller ID” Defendants Using Amazon and eBay (“RJN,” ECF No. 100). No Defaulting Defendant has filed a response to Plaintiff’s Motion. The Court took the matter under submission without oral argument pursuant to Civil Local Rule 7.1(d)(1).

5 See ECF No. 101. Having carefully considered the pleadings, Plaintiff’s arguments, and the law, the Court DENIES WITHOUT PREJUDICE Plaintiff’s Motion and supporting Request for Judicial Notice and DIRECTS Plaintiff to file a supplemental brief concerning this Court’s personal jurisdiction over Defaulted Defendants.

9 BACKGROUND 10 “Plaintiff sells a unique and revolutionary patented product under the federally registered trademark Split-Ender® that quickly and easily trims split ends from hair.” See ECF No. 1 (“Compl.”) ¶ 13. “Plaintiff owns copyrights, trademark rights, and patent rights regarding its Split-Ender® product.” Id. ¶ 16. On April 30, 2018, Plaintiff filed the instant litigation against dozens of entities and individuals for copyright infringement pursuant to 17 U.S.C. §§ 101 et seq.; unfair competition pursuant the Lanham Act, 15 U.S.C. § 1125(a); trademark infringement pursuant to 15 U.S.C. § 1114; and infringement of Plaintiff’s U.S. Patents Nos. 6,588,108, 7,040,021, and 9,587,811 (collectively, the “U.S. Patents”) pursuant to 35 U.S.C. § 271(a). See generally Compl. Plaintiff alleges that Defendants “had full knowledge of Plaintiff’s copyrights, trademark rights and/or patent rights,” id. ¶ 20, but nonetheless “Defendants are promoting, advertising, distributing, selling, and/or offering for sale cheap copies of Plaintiff’s Split-Ender® hair trimmers in interstate commerce that infringe Plaintiff’s copyrights, trademark rights, and patent rights” on Amazon and/or eBay, id. ¶ 21; see also id. Ex. 1.

24 / / / (41), SunNatural/SunNature (44), Turritopsis nutricula (45), Ukliss Beauty (46), Wsduos (47), Yara-Yarn (48), Noledo (51), nantongaotaiguoji Trading Co Ltd (52), Beskol (53), Chunhet (54), Funny Fala (55), Huixin Economic (56), NeSexy (57), Samantha Bowen (58), Vanylihair (60), YokEnjoy (61), BEAUTYDESIGN (75), and S*SHOME (78). See generally ECF No. 98. The number in parentheses 1 On May 3, 2018, Plaintiff filed a motion for a temporary restraining order (“TRO”).

2 See ECF No. 9. On May 10, 2018, the Court granted Plaintiff’s motion. See ECF No. 10.

3 The Court enjoined “[e]ach Defendant, its officers, directors, employees, agents, subsidiaries, distributors, and all persons in active concert or participation with any Defendant having notice of this Order” “from making, manufacturing, or causing to be manufactured, importing, using, advertising or promoting, distributing, selling or offering to sell split end hair trimmer products . . . that infringe” the U.S. Patents, id. at 9–10; “from infringing any of the exclusive rights in 17 U.S.C. §106 with respect to Plaintiff’s copyrighted packaging or from using Plaintiff’s distinctive trade dress packaging on Defendants’ packaging,” id. at 10; from infringing Plaintiff’s copyrighted manual, id.; and “from infringing, counterfeiting, or diluting Plaintiff’s registered Split-Ender® trademark,” id. The TRO was extended and remains in place. See ECF No. 57 at 2.

13 On May 23, 2018, Plaintiff filed a motion requesting authorization for alternative service. See ECF No. 18. On May 24, 2018, the Court granted Plaintiff’s motion, authorizing service by e-mail and website publication. See generally ECF No. 19. On May 31, 2018, Plaintiff filed a Proof of Service of Summons and Complaint on Defendants 1, 2, 3, 4, 5, 6, 7, 8, 11, 12, 14, 15, 16, 19, 20, 21, 22, 24, 25, 26, 27, 29, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 43, 44, 45, 46, 47, 48, 75, 76, 77, 78. See ECF No. 25. On September 27, 2018, Plaintiff filed a Proof of Service of Summons and Complaint on Seller ID Defendants 51, 52, 53, 54, 55, 56, 57, 58, 59, 60 and 61. See ECF No. 60. Subsequently, Plaintiff filed a Request for Clerk’s Entry of Default, see ECF No. 63, as to the Defaulted Defendants, which the Clerk entered on February 21, 2019, see ECF No. 65.

23 On March 16, 2020, Plaintiff filed the present Motion.

24 LEGAL STANDARD 25 “When 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.” In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999) (citing Williams v. Life Sav. and Loan, 802 F.2d 1200, 1203 (10th Cir. 1986)). “A judgment entered without personal jurisdiction over the parties is void.” Id. (citing Thos. P. Gonzalez Corp. v. Consejo Nacional De Produccion De Costa Rica, 614 F.2d 1247, 1255–56 (9th Cir. 1980); Veeck v. Commodity Enterprises, Inc., 487 F.2d 423, 426 (9th Cir. 1973)). “To avoid entering a default judgment that can later be successfully attacked as void, a court should determine whether it has the power, i.e., the jurisdiction, to enter the judgment in the first place.” Id. 7 “‘It is the plaintiff's burden to establish the court’s personal jurisdiction over a defendant.’” Donell v. Keppers, 835 F. Supp. 2d 871, 876 (S.D. Cal. 2011) (quoting Doe v. Unocal Corp., 248 F.3d 915, 922 (9th Cir. 2001)). “In considering whether to enter a default judgment, a court may dismiss an action sua sponte for lack of personal jurisdiction.” Id. (citing quoting In re Tuli, 172 F.3d at 712). “A court, however, must provide to a plaintiff the opportunity to assert facts to establish that the exercise of personal jurisdiction over a nonresident defendant is proper before dismissing an action for lack of personal jurisdiction.” Facebook, Inc. v. Pedersen, 868 F. Supp. 2d 953, 957 (N.D. Cal. 2012) (citing In re Tuli, 172 F.3d at 712).

16 ANALYSIS 17 Plaintiff’s allegations of personal jurisdiction in the Complaint are conclusory.

18 Plaintiff alleges that “Defendants are subject to personal jurisdiction in this district” because they 20 purposefully direct their activities toward and conduct business with consumers throughout the United States, including within the State of California and this district, through at least the 22 Internet based Amazon or eBay e-commerce stores accessible in California and operating under their Seller IDs. [Defaulted Defendants] have purposefully directed some portion of their 24 illegal activities toward consumers in the State of California through the advertisement, offer to sell, sale, and/or shipment of infringing goods into California. Plaintiff’s infringement claims 26 arise out of those activities.

27 Compl. ¶ 6(a); see also id. ¶¶ 22–23 (containing similar allegations). Plaintiff further alleges that the Defaulted Defendants “are individuals and/or business entities of unknown makeup, each of whom, upon information and belief, either reside or operate in foreign jurisdictions.” Id. ¶ 10. Plaintiff entirely fails to address the Court’s personal jurisdiction over Defaulting Defendants in its Motion. See generally ECF No. 98.

4 The Court is unable to affirmatively find, on the facts presently before it, that it has personal jurisdiction over Defaulted Defendants. It appears, from the boilerplate allegations of the Complaint, that Plaintiff is asserting that this Court has specific jurisdiction over Defaulting Defendants. However, the Court has concerns as to whether Defaulted Defendants have purposefully directed their activities to the State of California or have purposefully availed themselves of the privilege of conducting activities in the State of California. See, e.g., Facebook, Inc. v. Pedersen, 868 F. Supp. 2d 953, 957 (N.D. 11 Cal. 2012) (finding lack of personal jurisdiction where foreign defendants’ website did not directly target the forum); DFSB Kollective Co. v. Bourne, 897 F. Supp. 2d 871 (N.D. Cal. 2012) (similar).

14 Accordingly, because Plaintiff has failed to meet its burden of establishing that this Court has personal jurisdiction over Defaulting Defendants, the Court DENIES WITHOUT PREJUDICE Plaintiff’s Motion and supporting Request for Judicial Notice.

17 CONCLUSION 18 In light of the foregoing, the Court DENIES WITHOUT PREJUDICE Plaintiff’s Motion and supporting Request for Judicial Notice. Plaintiff SHALL file a supplemental brief, not to exceed fifteen (15) pages in length, within thirty (30) days of the date of the electronic docketing of this Order, detailing why the Court has personal jurisdiction over Defaulted Defendants. Plaintiff MAY refile a motion for default judgment concurrently with the supplemental brief. Should Plaintiff elect not to file a supplemental brief and / / / / / / / / / / / / / / / || renew its motion for default judgment in accordance with this Order, the Court will dismiss || this action without prejudice as to Defaulted Defendants.

3 IT IS SO ORDERED.

4 || Dated: November 5, 2020 , tt 5 pee Janis L. Sammartino United States District Judge