Collins v. Binduo Electronic Business Inc.

Filing 28

ORDER by Chief Judge Philip A. Brimmer on 3/26/2024, re: 21 Plaintiff's Motion for Default Judgment is DENIED. ORDERED that, within 30 days of the entry of this order, Ms. Collins shall serve Binduo pursuant to Fed. R. Civ. P. 4.(dgumb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 23-cv-00133-PAB-SBP
PEGGY COLLINS,
Plaintiff,
v.
BINDUO ELECTRONIC BUSINESS INC.,
Defendant.
ORDER
This matter comes before the Court on Plaintiff’s Motion for Default Judgment
[Docket No. 21]. The Court has subject matter jurisdiction pursuant to 28 U.S.C.
§ 1331.
I. BACKGROUND 1
Plaintiff Peggy Collins is a professional digital artist. Docket No. 1 at 2, ¶ 10. Ms.
Collins’ digital artworks are original, creative works, and she has obtained active and
valid copyright registrations for many of them. Id. at 2-3, ¶¶ 12-13. Defendant Binduo
Electronic Business Inc. (“Binduo”) is a Colorado corporation that “owns and operates a
vendor account on Walmart 2 named [ ] Binduo (the ‘Account’).” Id. at 1-2, ¶¶ 3, 6

Because of the Clerk of Court’s entry of default against defendant, see Docket
No. 18, the factual allegations in plaintiff’s complaint, Docket No. 1, are deemed
admitted. See Olcott v. Del. Flood Co., 327 F.3d 1115, 1125 (10th Cir. 2003).
2 The complaint does not explain what an “account on Walmart” is.
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(footnote added). Binduo uses the Account to sell merchandise to the public. Id. at 3,
¶ 17.
On December 24, 2018, Ms. Collins authored a digital artwork of a stained-glass
cat (“Digital Artwork”). Id., ¶ 18. On June 10, 2021, the Digital Artwork was registered
by the United States Copyright Office (“USCO”) under Registration No. VA-2-258-963.
Id., ¶ 19. On February 12, 2022, Ms. Collins “observed the Digital Artwork on the
Account in a listing as a Picture Kit.” Id., ¶ 20. The Digital Artwork was displayed eight
times at the following web address: https://www.walmart.com/ip/Binduo-Cute-Cat-5DDIY-Full-Drill-Square-Diamond-paint-Mosaic-Art-Picture-Kit/965636503. Id., ¶ 21; see
Docket No. 1-1. Binduo did not have permission from Ms. Collins to display the Digital
Artwork. Docket No. 1 at 1, 4, ¶¶ 4, 23.
Ms. Collins brings one claim for direct copyright infringement in violation of 17
U.S.C. § 501 et seq. Id. at 6-8, ¶¶ 39-47.
II. ANALYSIS
Before addressing the merits of Ms. Collins’ motion for default judgment, the
Court must determine whether it has personal jurisdiction over Binduo. See Dennis
Garberg & Assocs., Inc. v. Pack-Tech Int’l Corp., 115 F.3d 767, 772 (10th Cir. 1997)
(holding that “a district court must determine whether it has jurisdiction over the
defendant before entering judgment by default against a party who has not appeared in
the case”). The plaintiff bears the burden of establishing personal jurisdiction. Rambo
v. Am. S. Ins. Co., 839 F.2d 1415, 1417 (10th Cir. 1988). The plaintiff can satisfy this
burden by making a prima facie showing. Dudnikov v. Chalk & Vermilion Fine Arts, Inc.,
514 F.3d 1063, 1070 (10th Cir. 2008). A court will accept the well-pled allegations of

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the complaint as true in determining whether a plaintiff has made a prima facie showing
that personal jurisdiction exists. AST Sports Sci., Inc. v. CLF Distrib. Ltd., 514 F.3d
1054, 1057 (10th Cir. 2008). If the presence or absence of personal jurisdiction can be
established by reference to the complaint, the court need not look further. Id. The
plaintiff, however, may also make this prima facie showing by putting forth evidence
that, if proven to be true, would support jurisdiction over the defendant. Id.
Proper service is a jurisdictional prerequisite to litigation. Jenkins v. City of
Topeka, 136 F.3d 1274, 1275 (10th Cir. 1998) (“Effectuation of service is a precondition
to suit.”). Without proper service, a court lacks personal jurisdiction over a defendant.
Okla. Radio Assocs. v. Fed. Deposit Ins. Corp., 969 F.2d 940, 943 (10th Cir. 1992).
The Federal Rules of Civil Procedure provide that a corporation, partnership, or
unincorporated association can be served in the manner prescribed under Rule 4(e)(1)
for serving an individual. Fed. R. Civ. P. 4(h)(1)(A). Rule 4(e)(1) allows service to be
made “following state law” of either the state where the district court is located or where
service is made. Fed. R. Civ. P. 4(e)(1).
Ms. Collins argues that Binduo was served pursuant to Colo. Rev. Stat. § 7-90704(2). Docket No. 21-1 at 2. That statute provides:
If an entity that is required to maintain a registered agent pursuant to this part 7
has no registered agent, or if the registered agent is not located under its
registered agent name at its registered agent address, or if the registered agent
cannot with reasonable diligence be served, the entity may be served by
registered mail or by certified mail, return receipt requested, addressed to the
entity at its principal address.
Colo. Rev. Stat. § 7-90-704(2). The certificate of service states that a copy of the
summons, complaint, and exhibits was served on Binduo via USPS Certified Mail at the
address for Binduo’s listed registered agent:
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Binduo Electronic Business Inc
c/o Nana Guo
1329 Main Street
Carbondale, CO 81623
Docket No. 13. This mailing address is Binduo’s principal place of business. See
Docket No. 1 at 2, ¶ 6. Pursuant to Colo. Rev. Stat. § 7-90-704(2), a plaintiff may serve
a corporation that has a registered agent by certified mail at the corporation’s “principal
address” if (1) the registered agent is not located under its registered agent name at its
registered agent address; or (2) the registered agent cannot be served with reasonable
diligence. Colo. Rev. Stat. § 7-90-704(2). Ms. Collins provides no evidence that
Binduo’s registered agent is not located under its registered agent name at its
registered agent address. Furthermore, Ms. Collins provides no evidence that she
attempted to serve Binduo’s registered agent by any means other than certified mail.
Because Ms. Collins has failed to show that the registered agent could not be located at
the listed address or be served with reasonable diligence, the Court finds that service
via certified mail does not constitute proper service. Cf. Warming Trends, LLC v. Flame
DesignZ, LLC, No. 22-cv-00252-PAB-STV, 2023 WL 196288, at *3 (D. Colo. Jan. 17,
2023) (holding that defendant could be served by certified mail where plaintiff provided
evidence that it had unsuccessfully attempted service at the registered agent’s listed
address, at a different address where an investigator had located the agent, and at
defendant’s alternate business address).
Ms. Collins has not perfected service against Binduo, and the Court therefore
lacks personal jurisdiction over Binduo. Because service on Binduo is “insufficient but
curable,” Ms. Collins will be allowed an opportunity to properly serve Binduo with
process. See AMG Nat’l Corp. v. Wright, No. 20-cv-02857-PAB-KLM, 2021 WL
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4170459, at *4 (D. Colo. Sept. 14, 2021) (denying motion for default judgment based on
improper service and providing time for plaintiff to attempt proper service). Therefore,
within 30 days of the entry of this order, Ms. Collins may attempt to serve Binduo
pursuant to Fed. R. Civ. P. 4.
III. CONCLUSION
Therefore, it is
ORDERED that Plaintiff’s Motion for Default Judgment [Docket No. 21] is
DENIED without prejudice. It is further
ORDERED that, within 30 days of the entry of this order, Ms. Collins shall serve
Binduo pursuant to Fed. R. Civ. P. 4.

DATED March 26, 2024.

BY THE COURT:
___________________________
PHILIP A. BRIMMER
Chief United States District Judge

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