Randazza et al v. Cox et al

Filing 172

ORDER Denying without prejudice 65 Plaintiffs' Motion for Default Judgment. Signed by Judge Jennifer A. Dorsey on 3/5/14. (Copies have been distributed pursuant to the NEF - EDS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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MARC J. RANDAZZA, an individual,
JENNIFER RANDAZZA, an individual, and
NATALIA RANDAZZA, an individual,

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Plaintiffs,

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Order Denying
Motion for Default Judgment
against Eliot Bernstein
[Doc. 65]

v.
CRYSTAL COX, an individual, et al.

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Case No.: 2:12-cv-2040-JAD-PAL

Defendants.

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This cybersquatting case arises out of the alleged targeting of Plaintiffs Marc

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Randazza, his wife Jennifer, and their young daughter Natalia, by Defendants Crystal Cox,

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a self-proclaimed “investigative blogger,” and her “co-conspirator,” Eliot Bernstein.1 The

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Randazzas allege that Cox and Bernstein have engaged in an online harassment campaign

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to extort them by registering dozens of internet domain names that incorporate the

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Randazzas’ names and then demanding they agree to purchase Cox’s “reputation

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management” services to remove this allegedly defamatory material from the internet and

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rehabilitate their cyber reputations. The Randazzas sue Cox and Bernstein for violation of

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the Anti-cybersquatting Consumer Protection Act, right of publicity, and intrusion upon

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their seclusion.

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Doc. 1.
Page 1 of 3

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Bernstein was personally served with this lawsuit on December 15, 2012,2 but he

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never appeared, and the Clerk of Court entered default against him on January 9, 2013.3

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Plaintiffs now move this Court for a default judgment against Bernstein. Because the

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allegations that Plaintiffs have framed against Bernstein are inextricably intertwined with

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those against Cox, who currently remains an active participant in this litigation, it would be

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inappropriate to enter default against Bernstein at this time, and the Court denies the

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motion without prejudice to its reassertion after the claims against Cox have been resolved.

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Discussion

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In Frow v. de la Vega,4 the Supreme Court cautioned trial courts from entering default

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judgments against a non-appearing defendant while claims against a participating

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defendant remain unresolved. Frow remains “[t]he leading case on the subject of default

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judgments in actions involving multiple defendants.”5 Its guiding principle prohibits

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default judgment against a non-appearing defendant when it could result in an inconsistent

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judgment on the merits in favor of other defendants.6 Although Frow itself bars only

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default judgments in cases of jointly liable parties, the Ninth Circuit extended its reach in In

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re First T.D. & Inv., Inc., to any case in which the appearing and non-appearing defendants

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are “similarly situated.”7

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Entry of default judgment against Bernstein would run afoul of the Frow and In re

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First T.D& Investment, Inc. principles. Plaintiffs plead many of their claims against

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Bernstein and Cox jointly, and the relief prayed for is requested against both defendants

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Doc. 17.

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Doc. 39.

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Frow v. de la Vega, 82 U.S. 552, 553 (1872).

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In re First T.D. & Investment, Inc., 253 F.3d 520, 532 (9th Cir. 2001).

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Id.

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Id.

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Page 2 of 3

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without distinction. Bernstein is characterized in certain allegations as Cox’s “proxy,”8 and

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Plaintiffs assert that “Bernstein is a knowing participant in Cox’s efforts to prevent the

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plaintiff from testifying.”9 Planitiffs further allege that “Defendant Cox’s and Bernstein’s

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conduct has caused Mr. Randazza to lose control over the reputation and goodwill

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associated with his personal name,” and that both of these defendants are collectively

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causing them irreparable harm.10 The coup de grace in this analysis, however, is Plaintiffs’

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seventh cause of action, in which they allege that “Bernstein and Cox have, on information

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and belief, conspired in order to commit all of the acts herein and thus, should both be

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jointly and severally liable for the results of their co-conspirator’s wrongs.”11

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These allegations leave no doubt that the claims alleged against and relief sought

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from Bernstein and Cox are so closely intertwined that a default judgment against one of

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these defendants would be inconsistent with a judgment on the merits in favor of the other.

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The Frow rule thus precludes this Court from entering a default judgment against Bernstein

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while the claims against Cox remain unresolved.
Conclusion

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Accordingly, it is HEREBY ORDERED that Plaintiffs’ Motion for Default Judgment
(Doc. 65) is DENIED without prejudice.
March 5, 2014.

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_________________________________
Jennifer A. Dorsey
United States District Judge

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Doc. 1 at ¶¶ 22, 27.

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Id. at ¶ 34.

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Id. at ¶ 46.

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Id. at ¶ 104.

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