Malofeev v. Unknown Party et al

Filing 56

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)

Download PDF
1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Konstantin Malofeev, Plaintiff, 10 11 ORDER v. 12 No. CV-14-02684-PHX-DLR Unknown Party, et al., 13 Defendants. 14 15 Before the Court is Plaintiff Konstantin Malofeev’s Motion for Default Judgment. 16 17 (Doc. 52.) For the reasons stated below, the motion is denied. BACKGROUND 18 19 On December 14, 2014, Malofeev, a Russian citizen, filed suit against 20, LLC, and several unknown parties alleging defamation and false light. 21 (Doc. 1.) On March 13, 2015, Malofeev filed a second amended complaint, which 22 included a claim for violation of 15 U.S.C. § 1125, and named Alexei Sorokin, Sarkis 23 Grigoryan, and Mikhail Kovalenko as Defendants (the “Individual Defendants”). (Doc. 24 11.) 25 Malofeev alleges that the Individual Defendants run several websites: 26,,,, and 27 (Id., ¶¶ 4-6.) Using these websites, which are hosted by 28, the Individual Defendants allegedly published false information about 1 Malofeev; namely, that he is involved in criminal activities, such as fraud or money 2 laundering, and that he was criminally investigated in Russia. 3 Malofeev asserts these websites contain defamatory subject matter and cast him in a false 4 light, for which he seeks $50,000,000 in damages and transfer of the websites to his 5 name. (Id., ¶¶ 7, 13-15.) 6 The Individual Defendants were served with the complaint via email, (Doc. 26), 7 and the Clerk entered default against them on October 20, 2015, (Doc. 51). Malofeev 8 now moves for default judgment against the Individual Defendants and an order 9 transferring the rights to the websites to him. (Doc. 52.) 10 LEGAL STANDARD 11 “Entry of default judgment . . . is left to the trial court’s sound discretion.” Aldabe 12 v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). Once default has been entered by the 13 Clerk, the Court may enter default judgment pursuant to Rule 55(b). See Eitel v. McCool, 14 782 F.2d 1470, 1471 (9th Cir. 1986). Courts may consider several factors in determining 15 whether to enter default judgment, including (1) the possibility of prejudice to the 16 plaintiff, (2) merits of the claims, (3) sufficiency of the complaint, (4) amount of money 17 at stake, (5) possibility of factual disputes, (6) whether default is due to excusable 18 neglect, and (7) the strong policy underlying the Federal Rules of Civil procedure 19 favoring decisions on the merits. Id. at 1471-72. All allegations in the complaint are 20 taken as true, and the plaintiff “is required to prove all damages sought in the complaint.” 21 Philip Morris USA, Inc. v. Castworld Prods., Inc., 219 F.R.D. 494, 498 (C.D. Cal. 2003). 22 ANALYSIS 23 Malofeev’s motion does not analyze the merits of his case and he makes no 24 attempt to examine the Eitel factors. Instead, the two-page motion merely recites the 25 procedural history of the case and requests that the Court enter default judgment 26 transferring the five websites to him. (Doc. 52 at 1-2.) Notwithstanding the deficient 27 motion, the Court declines to enter default judgment for several reasons. 28 First, the Court likely lacks personal jurisdiction over the Individual Defendants. -2- 1 Malofeev alleges that he is a Russian citizen. The complaint does not list his address or 2 state whether he currently resides in the United States. He seeks default judgment against 3 three Individual Defendants, all of whom are alleged to have Russian addresses, and all 4 of whom were served via email. (Doc. 11, ¶¶ 4-6.) Although he argues that each 5 Individual Defendant consented to jurisdiction in this forum via’s terms of 6 service, he fails to provide any allegations relating to those terms. Most importantly, the 7 terms of service are binding between the Individual Defendants and; not 8 between the Individual Defendants and Malofeev. 9 Furthermore, Malofeev does not allege that any harm occurred to him in this 10 jurisdiction or that the Individual Defendants targeted the forum with their allegedly 11 defamatory websites. Malofeev does not allege that the Individual Defendants have any 12 contacts with the forum. Simply put, the Court’s exercise of personal jurisdiction over 13 the Individual Defendants in this case would violate due process. See Brink v. First 14 Credit Res., 57 F. Supp. 2d 848, 858 (D. Ariz. 1999) (“[T]he Due Process Clause requires 15 that nonresident defendants have certain minimum contacts with the forum state such that 16 the exercise of personal jurisdiction does not offend traditional notions of fair play and 17 substantial justice.”) (emphasis in original). 18 Second, even assuming the truth of the factual allegations, the second amended 19 complaint fails to state a claim. Malofeev brings three claims: (1) defamation, (2) false 20 light, and (3) violation of 15 U.S.C. § 1125. In order to establish defamation, the plaintiff 21 must prove: (1) defendant made a false statement regarding plaintiff, (2) the statement 22 was defamatory, (3) the statement was published to a third party, (4) defendant made the 23 statement with actual malice, and (5) damages. See Morris v. Warner, 770 P.2d 359, 366 24 (Ariz. Ct. App. 1988). Actual malice is required because Malofeev alleges that he is a 25 public figure, (Doc. 11, ¶ 13), and requires “proof that the defamatory statement was 26 made with knowledge that it was false or with reckless disregard of whether it was false 27 or not.” Curtis Publ’g Co. v. Butts, 388 U.S. 130, 162 (1967) (internal quotation marks 28 omitted). Malofeev does not identify a single defamatory statement in his complaint. -3- 1 Nor does he specify which statements appeared on which website. There are no factual 2 allegations demonstrating that the statements are false, or that Defendants harbored ill 3 will toward Malofeev. The claim is insufficiently pled. 4 With respect to false light, “a public figure may bring a false light claim for 5 statements that relate to his private life and presents his private life in a false light.” 6 Ultimate Creations, Inc. v. McMahon, 515 F. Supp. 2d 1060, 1066 (D. Ariz. 2007) 7 (internal quotation marks omitted). Because Malofeev does not identify any allegedly 8 false statements, the Court is unable to conclude whether the statements relate to 9 Malofeev’s private life or his life as an alleged public figure. As such, this claim fails. 10 Section 43 of the Lanham Act, codified as 15 U.S.C. § 1125, “is a broad federal 11 unfair competition provision which protects unregistered trademarks.” Van Praagh v. 12 Gratton, 993 F. Supp. 2d 293, 301 (E.D.N.Y. 2014) (internal quotation marks and 13 alterations omitted). “An unregistered mark . . . can be protected under the Lanham Act 14 if it would qualify for registration as a trademark.” Lopez v. Gap, Inc., 883 F. Supp. 2d 15 400, 414 (S.D.N.Y. 2012). “To qualify for trademark registration, a mark must be either 16 (1) inherently distinctive, where its intrinsic nature serves to identify its particular source; 17 or (2) distinctive by virtue of having acquired a secondary meaning in the minds of 18 consumers.” 19 alterations omitted). Van Praagh, 993 F. Supp. 2d at 302 (internal quotation marks and 20 Malofeev alleges his “name is distinctive as he is highly involved . . . in his local 21 community.” (Doc. 11, ¶ 38.) But the extent to which Malofeev is known in his 22 community is irrelevant. Trademark law protects names and symbols used in connection 23 with goods or services. Malofeev does not allege that his name is tied to a specific 24 product or service. Nor does he allege that his name is a registered trademark, or that he 25 has sought to register it. This claim fails as a matter of law. 26 Last, the Court finds no prejudice to Malofeev. He has failed to identify any 27 concrete harm suffered from the allegedly false information listed on the websites.1 As 28 1 An internet search conducted by the Court on January 13, 2016 revealed that all -4- 1 such, the Court finds Malofeev will not suffer harm in the absence of default judgment. 2 IT IS ORDERED that Plaintiff’s motion for default judgment, (Doc. 52), is 3 DENIED. Within 7 days of the date of entry of this Order, Plaintiff shall show cause 4 why the case should not be dismissed. Failure to respond will result in termination of the 5 case without further order of the Court. 6 Dated this 19th day of January, 2016. 7 8 9 10 11 Douglas L. Rayes United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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. -5-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?