Malofeev v. Unknown Party et al
Filing
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ORDER denying 52 Motion for Default Judgment. Within 7 days of the date of entry of this Order, Plaintiff shall show cause why the case should not be dismissed. Failure to respond will result in termination of the case without further order of the Court. (See Order for details.) Signed by Judge Douglas L Rayes on 1/19/2016. (MMO)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Konstantin Malofeev,
Plaintiff,
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ORDER
v.
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No. CV-14-02684-PHX-DLR
Unknown Party, et al.,
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Defendants.
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Before the Court is Plaintiff Konstantin Malofeev’s Motion for Default Judgment.
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(Doc. 52.) For the reasons stated below, the motion is denied.
BACKGROUND
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On December 14, 2014, Malofeev, a Russian citizen, filed suit against
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GoDaddy.com, LLC, and several unknown parties alleging defamation and false light.
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(Doc. 1.) On March 13, 2015, Malofeev filed a second amended complaint, which
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included a claim for violation of 15 U.S.C. § 1125, and named Alexei Sorokin, Sarkis
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Grigoryan, and Mikhail Kovalenko as Defendants (the “Individual Defendants”). (Doc.
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11.)
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Malofeev alleges that the Individual Defendants run several websites:
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www.malofeev.com, www.malofeev.biz, www.malofeev.info, www.malofeev.co, and
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www.kandidatmalofeev.com. (Id., ¶¶ 4-6.) Using these websites, which are hosted by
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GoDaddy.com, the Individual Defendants allegedly published false information about
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Malofeev; namely, that he is involved in criminal activities, such as fraud or money
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laundering, and that he was criminally investigated in Russia.
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Malofeev asserts these websites contain defamatory subject matter and cast him in a false
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light, for which he seeks $50,000,000 in damages and transfer of the websites to his
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name.
(Id., ¶¶ 7, 13-15.)
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The Individual Defendants were served with the complaint via email, (Doc. 26),
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and the Clerk entered default against them on October 20, 2015, (Doc. 51). Malofeev
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now moves for default judgment against the Individual Defendants and an order
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transferring the rights to the websites to him. (Doc. 52.)
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LEGAL STANDARD
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“Entry of default judgment . . . is left to the trial court’s sound discretion.” Aldabe
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v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). Once default has been entered by the
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Clerk, the Court may enter default judgment pursuant to Rule 55(b). See Eitel v. McCool,
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782 F.2d 1470, 1471 (9th Cir. 1986). Courts may consider several factors in determining
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whether to enter default judgment, including (1) the possibility of prejudice to the
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plaintiff, (2) merits of the claims, (3) sufficiency of the complaint, (4) amount of money
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at stake, (5) possibility of factual disputes, (6) whether default is due to excusable
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neglect, and (7) the strong policy underlying the Federal Rules of Civil procedure
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favoring decisions on the merits. Id. at 1471-72. All allegations in the complaint are
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taken as true, and the plaintiff “is required to prove all damages sought in the complaint.”
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Philip Morris USA, Inc. v. Castworld Prods., Inc., 219 F.R.D. 494, 498 (C.D. Cal. 2003).
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ANALYSIS
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Malofeev’s motion does not analyze the merits of his case and he makes no
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attempt to examine the Eitel factors. Instead, the two-page motion merely recites the
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procedural history of the case and requests that the Court enter default judgment
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transferring the five websites to him. (Doc. 52 at 1-2.) Notwithstanding the deficient
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motion, the Court declines to enter default judgment for several reasons.
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First, the Court likely lacks personal jurisdiction over the Individual Defendants.
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Malofeev alleges that he is a Russian citizen. The complaint does not list his address or
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state whether he currently resides in the United States. He seeks default judgment against
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three Individual Defendants, all of whom are alleged to have Russian addresses, and all
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of whom were served via email. (Doc. 11, ¶¶ 4-6.) Although he argues that each
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Individual Defendant consented to jurisdiction in this forum via GoDaddy.com’s terms of
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service, he fails to provide any allegations relating to those terms. Most importantly, the
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terms of service are binding between the Individual Defendants and GoDaddy.com; not
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between the Individual Defendants and Malofeev.
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Furthermore, Malofeev does not allege that any harm occurred to him in this
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jurisdiction or that the Individual Defendants targeted the forum with their allegedly
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defamatory websites. Malofeev does not allege that the Individual Defendants have any
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contacts with the forum. Simply put, the Court’s exercise of personal jurisdiction over
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the Individual Defendants in this case would violate due process. See Brink v. First
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Credit Res., 57 F. Supp. 2d 848, 858 (D. Ariz. 1999) (“[T]he Due Process Clause requires
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that nonresident defendants have certain minimum contacts with the forum state such that
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the exercise of personal jurisdiction does not offend traditional notions of fair play and
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substantial justice.”) (emphasis in original).
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Second, even assuming the truth of the factual allegations, the second amended
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complaint fails to state a claim. Malofeev brings three claims: (1) defamation, (2) false
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light, and (3) violation of 15 U.S.C. § 1125. In order to establish defamation, the plaintiff
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must prove: (1) defendant made a false statement regarding plaintiff, (2) the statement
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was defamatory, (3) the statement was published to a third party, (4) defendant made the
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statement with actual malice, and (5) damages. See Morris v. Warner, 770 P.2d 359, 366
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(Ariz. Ct. App. 1988). Actual malice is required because Malofeev alleges that he is a
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public figure, (Doc. 11, ¶ 13), and requires “proof that the defamatory statement was
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made with knowledge that it was false or with reckless disregard of whether it was false
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or not.” Curtis Publ’g Co. v. Butts, 388 U.S. 130, 162 (1967) (internal quotation marks
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omitted). Malofeev does not identify a single defamatory statement in his complaint.
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Nor does he specify which statements appeared on which website. There are no factual
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allegations demonstrating that the statements are false, or that Defendants harbored ill
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will toward Malofeev. The claim is insufficiently pled.
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With respect to false light, “a public figure may bring a false light claim for
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statements that relate to his private life and presents his private life in a false light.”
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Ultimate Creations, Inc. v. McMahon, 515 F. Supp. 2d 1060, 1066 (D. Ariz. 2007)
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(internal quotation marks omitted). Because Malofeev does not identify any allegedly
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false statements, the Court is unable to conclude whether the statements relate to
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Malofeev’s private life or his life as an alleged public figure. As such, this claim fails.
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Section 43 of the Lanham Act, codified as 15 U.S.C. § 1125, “is a broad federal
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unfair competition provision which protects unregistered trademarks.” Van Praagh v.
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Gratton, 993 F. Supp. 2d 293, 301 (E.D.N.Y. 2014) (internal quotation marks and
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alterations omitted). “An unregistered mark . . . can be protected under the Lanham Act
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if it would qualify for registration as a trademark.” Lopez v. Gap, Inc., 883 F. Supp. 2d
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400, 414 (S.D.N.Y. 2012). “To qualify for trademark registration, a mark must be either
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(1) inherently distinctive, where its intrinsic nature serves to identify its particular source;
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or (2) distinctive by virtue of having acquired a secondary meaning in the minds of
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consumers.”
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alterations omitted).
Van Praagh, 993 F. Supp. 2d at 302 (internal quotation marks and
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Malofeev alleges his “name is distinctive as he is highly involved . . . in his local
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community.” (Doc. 11, ¶ 38.) But the extent to which Malofeev is known in his
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community is irrelevant. Trademark law protects names and symbols used in connection
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with goods or services. Malofeev does not allege that his name is tied to a specific
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product or service. Nor does he allege that his name is a registered trademark, or that he
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has sought to register it. This claim fails as a matter of law.
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Last, the Court finds no prejudice to Malofeev. He has failed to identify any
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concrete harm suffered from the allegedly false information listed on the websites.1 As
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An internet search conducted by the Court on January 13, 2016 revealed that all
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such, the Court finds Malofeev will not suffer harm in the absence of default judgment.
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IT IS ORDERED that Plaintiff’s motion for default judgment, (Doc. 52), is
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DENIED. Within 7 days of the date of entry of this Order, Plaintiff shall show cause
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why the case should not be dismissed. Failure to respond will result in termination of the
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case without further order of the Court.
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Dated this 19th day of January, 2016.
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Douglas L. Rayes
United States District Judge
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of the websites have been taken down or are in the process of being cancelled. None of
the content on any of the sites was able to be viewed.
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