1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 AMERICAN HERITAGE RAILWAYS, Case No.: 3:24-cv-1802-CAB-JLB INC., et al., 12 ORDER: Plaintiffs, 13 v. (1) DENYING MOTION TO 14 DISMISS; BRADLEY ARTHUR HIROU, 15 Defendant. (2) GRANTING PRELIMINARY 16 INJUNCTION 17 18 On October 8, 2024, Plaintiffs American Heritage Railways, et al., sued Defendant 19 Bradley Arthur Hirou for declaratory and injunctive relief, violation of California 20 Commercial Code § 9509 and Business and Professions Code § 17200, and defamation. 21 [Compl.] Plaintiffs allege Defendant Hirou filed fraudulent UCC-1 financing statements 22 with the California Secretary of State against Plaintiffs’ property. Defendant Hirou 23 apparently did so on the basis that Plaintiffs violated a common law copyright in his name. 24 Defendant Hirou, proceeding pro se, filed a motion to dismiss for lack of personal 25 jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2). [Doc. No. 8.] Plaintiffs filed a motion 26 for a preliminary injunction. [Doc. No. 9.] Defendant filed no response to that motion. 27 The Court finds this case suitable for determination on the papers and without oral 28 1 argument. See S.D. Cal. CivLR 7.1(d)(1). The Court DENIES the motion to dismiss and 2 GRANTS the motion for preliminary injunction. 3 I. BACKGROUND 4 In June 2024, Plaintiffs received documents from Defendant Hirou that purported to 5 be “Self-Executing Security Agreement[s]” in which Defendant Hirou claimed Plaintiffs 6 “violated his common law copyright in his name by using his name without authorization.” 7 [Compl. ¶¶ 20–26.] Subsequently, Defendant Hirou filed two UCC-1 financing statements 8 against Plaintiffs American Heritage and Old Tucson based on the purported violation of 9 the security agreement. Plaintiffs allege that they never entered any agreement with 10 Defendant Hirou, never granted any security interest in any property to him, and that the 11 UCC-1 statements are thus fraudulent. [Compl. ¶¶ 50–55.] They further contend that 12 Defendant Hirou possesses no copyright to his own name. [Compl. ¶ 37.] 13 Taking the allegations as true, Defendant Hirou appears to have a modus operandi. 14 Indeed, the facts alleged in this case are nearly identical to another brought against 15 Defendant Hirou in 2008 in this district. Teeple v. Hirou, No. 08-CV-2281-JAH-CAB, 16 2009 WL 10671655 (S.D. Cal. 2009). 17 II. LEGAL STANDARDS 18 A. Rule 12(b)(2) 19 Federal Rule of Civil Procedure 12(b)(2) allows a district court to dismiss an action 20 for lack of personal jurisdiction. “Where defendants move to dismiss a complaint for lack 21 of personal jurisdiction, plaintiffs bear the burden of demonstrating that jurisdiction is 22 appropriate.” Dole Food Co. v. Watts, 303 F.3d 1104, 1108 (9th Cir. 2002). “The court 23 may consider evidence presented in affidavits to assist it in its determination and may order 24 discovery on the jurisdictional issues.” Doe v. Unocal Corp., 248 F.3d 915, 922 (9th Cir. 25 2011) (citing Data Disc, Inc. v. Sys. Tech. Assocs., Inc., 557 F.2d 1280, 1285 (9th Cir. 26 1977)). “When a district court acts on a defendant’s motion to dismiss without holding an 27 evidentiary hearing, the plaintiff need make only a prima facie showing of jurisdictional 28 1 facts to withstand the motion to dismiss.” Id. (citing Ballard v. Savage, 65 F.3d 1495, 1498 2 (9th Cir. 1995)). 3 B. Preliminary Injunction 4 A preliminary injunction is “an extraordinary remedy never awarded as of 5 right.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008); see Earth Island Inst. 6 v. Carlton, 626 F.3d 462, 469 (9th Cir. 2010) (“[P]laintiffs seeking a preliminary injunction 7 face a difficult task in proving that they are entitled to this ‘extraordinary remedy.’”) 8 (quoting Winter, 555 U.S. at 24). It is “a device for preserving the status quo and 9 preventing the irreparable loss of rights before judgment.” Sierra On-Line, Inc. v. Phoenix 10 Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984). “The grant or denial of a motion for 11 a preliminary injunction lies within the discretion of the district court.” Johnson v. 12 California State Bd. of Acct., 72 F.3d 1427, 1429 (9th Cir. 1995). 13 To obtain preliminary injunctive relief, a movant must establish: (1) a likelihood of 14 prevailing on the merits; (2) a likelihood of suffering irreparable harm unless an injunction 15 issues; (3) that the balance of equities tips in the movant’s favor; and (4) that an injunction 16 is in the public interest. Winter, 555 U.S. at 20; see Garcia v. Google, Inc., 786 F.3d 733, 17 740 (9th Cir. 2015). The Ninth Circuit employs a “sliding scale approach, in which the 18 elements of the preliminary injunction test are balanced, so that a stronger showing of one 19 element may offset a weaker showing of another.” Planned Parenthood Great Nw., 20 Hawaii, Alaska, Indiana, Kentucky v. Labrador, 122 F.4th 825, 844 (9th Cir. 2024) 21 (internal quotation marks omitted). 22 III. DISCUSSION 23 A. Personal Jurisdiction 24 Defendant Hirou contends that this Court lacks personal jurisdiction over him 25 because he allegedly does not have minimum contacts with the forum state of California. 26 [Doc. No. 8.] “A defendant who is domiciled in a state . . . can be haled into court in that 27 state in any action . . . . This is known as general jurisdiction.” Freeman v. Specialty 28 Retailers, Inc., No. 13-CV-1339-CAB-BGS, 2013 WL 12084292, at *2 (S.D. Cal. 2013) 1 (citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416 (1984)). In 2 his motion to dismiss, Defendant Hirou unequivocally states that he “resides in the state of 3 California.” [Doc. No. 8 at 2.] This statement by Defendant is corroborated by the mailing 4 address in Carlsbad, California he lists in his filings, and at which he was personally served. 5 [Doc. No. 3; see, e.g., Doc. No. 18 at 1.] Accordingly, the Court is satisfied that it possesses 6 jurisdiction over Defendant Hirou and DENIES the motion to dismiss. See Teeple, 2009 7 WL 10671655 (concluding the same). 8 B. Preliminary Injunction 9 1. Likelihood of Prevailing on Merits 10 Plaintiffs assert they will prevail on the merits because they never entered a contract 11 with Hirou, never authorized the filing of a UCC-1, and Hirou possesses no copyright in 12 his own name. The Court agrees. 13 Defendant Hirou sent Plaintiffs a “Self-Executing Security Agreement” that was 14 purportedly triggered upon Plaintiffs’ alleged unauthorized use of Defendant Hirou’s 15 purported copyright, and which stated that Plaintiffs consented to Defendant Hirou’s filing 16 of a UCC-1 Financing Statement. However, Plaintiffs counter they never took any action 17 to enter into any agreement with Defendant.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 AMERICAN HERITAGE RAILWAYS, Case No.: 3:24-cv-1802-CAB-JLB INC., et al., 12 ORDER: Plaintiffs, 13 v. (1) DENYING MOTION TO 14 DISMISS; BRADLEY ARTHUR HIROU, 15 Defendant. (2) GRANTING PRELIMINARY 16 INJUNCTION 17 18 On October 8, 2024, Plaintiffs American Heritage Railways, et al., sued Defendant 19 Bradley Arthur Hirou for declaratory and injunctive relief, violation of California 20 Commercial Code § 9509 and Business and Professions Code § 17200, and defamation. 21 [Compl.] Plaintiffs allege Defendant Hirou filed fraudulent UCC-1 financing statements 22 with the California Secretary of State against Plaintiffs’ property. Defendant Hirou 23 apparently did so on the basis that Plaintiffs violated a common law copyright in his name. 24 Defendant Hirou, proceeding pro se, filed a motion to dismiss for lack of personal 25 jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2). [Doc. No. 8.] Plaintiffs filed a motion 26 for a preliminary injunction. [Doc. No. 9.] Defendant filed no response to that motion. 27 The Court finds this case suitable for determination on the papers and without oral 28 1 argument. See S.D. Cal. CivLR 7.1(d)(1). The Court DENIES the motion to dismiss and 2 GRANTS the motion for preliminary injunction. 3 I. BACKGROUND 4 In June 2024, Plaintiffs received documents from Defendant Hirou that purported to 5 be “Self-Executing Security Agreement[s]” in which Defendant Hirou claimed Plaintiffs 6 “violated his common law copyright in his name by using his name without authorization.” 7 [Compl. ¶¶ 20–26.] Subsequently, Defendant Hirou filed two UCC-1 financing statements 8 against Plaintiffs American Heritage and Old Tucson based on the purported violation of 9 the security agreement. Plaintiffs allege that they never entered any agreement with 10 Defendant Hirou, never granted any security interest in any property to him, and that the 11 UCC-1 statements are thus fraudulent. [Compl. ¶¶ 50–55.] They further contend that 12 Defendant Hirou possesses no copyright to his own name. [Compl. ¶ 37.] 13 Taking the allegations as true, Defendant Hirou appears to have a modus operandi. 14 Indeed, the facts alleged in this case are nearly identical to another brought against 15 Defendant Hirou in 2008 in this district. Teeple v. Hirou, No. 08-CV-2281-JAH-CAB, 16 2009 WL 10671655 (S.D. Cal. 2009). 17 II. LEGAL STANDARDS 18 A. Rule 12(b)(2) 19 Federal Rule of Civil Procedure 12(b)(2) allows a district court to dismiss an action 20 for lack of personal jurisdiction. “Where defendants move to dismiss a complaint for lack 21 of personal jurisdiction, plaintiffs bear the burden of demonstrating that jurisdiction is 22 appropriate.” Dole Food Co. v. Watts, 303 F.3d 1104, 1108 (9th Cir. 2002). “The court 23 may consider evidence presented in affidavits to assist it in its determination and may order 24 discovery on the jurisdictional issues.” Doe v. Unocal Corp., 248 F.3d 915, 922 (9th Cir. 25 2011) (citing Data Disc, Inc. v. Sys. Tech. Assocs., Inc., 557 F.2d 1280, 1285 (9th Cir. 26 1977)). “When a district court acts on a defendant’s motion to dismiss without holding an 27 evidentiary hearing, the plaintiff need make only a prima facie showing of jurisdictional 28 1 facts to withstand the motion to dismiss.” Id. (citing Ballard v. Savage, 65 F.3d 1495, 1498 2 (9th Cir. 1995)). 3 B. Preliminary Injunction 4 A preliminary injunction is “an extraordinary remedy never awarded as of 5 right.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008); see Earth Island Inst. 6 v. Carlton, 626 F.3d 462, 469 (9th Cir. 2010) (“[P]laintiffs seeking a preliminary injunction 7 face a difficult task in proving that they are entitled to this ‘extraordinary remedy.’”) 8 (quoting Winter, 555 U.S. at 24). It is “a device for preserving the status quo and 9 preventing the irreparable loss of rights before judgment.” Sierra On-Line, Inc. v. Phoenix 10 Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984). “The grant or denial of a motion for 11 a preliminary injunction lies within the discretion of the district court.” Johnson v. 12 California State Bd. of Acct., 72 F.3d 1427, 1429 (9th Cir. 1995). 13 To obtain preliminary injunctive relief, a movant must establish: (1) a likelihood of 14 prevailing on the merits; (2) a likelihood of suffering irreparable harm unless an injunction 15 issues; (3) that the balance of equities tips in the movant’s favor; and (4) that an injunction 16 is in the public interest. Winter, 555 U.S. at 20; see Garcia v. Google, Inc., 786 F.3d 733, 17 740 (9th Cir. 2015). The Ninth Circuit employs a “sliding scale approach, in which the 18 elements of the preliminary injunction test are balanced, so that a stronger showing of one 19 element may offset a weaker showing of another.” Planned Parenthood Great Nw., 20 Hawaii, Alaska, Indiana, Kentucky v. Labrador, 122 F.4th 825, 844 (9th Cir. 2024) 21 (internal quotation marks omitted). 22 III. DISCUSSION 23 A. Personal Jurisdiction 24 Defendant Hirou contends that this Court lacks personal jurisdiction over him 25 because he allegedly does not have minimum contacts with the forum state of California. 26 [Doc. No. 8.] “A defendant who is domiciled in a state . . . can be haled into court in that 27 state in any action . . . . This is known as general jurisdiction.” Freeman v. Specialty 28 Retailers, Inc., No. 13-CV-1339-CAB-BGS, 2013 WL 12084292, at *2 (S.D. Cal. 2013) 1 (citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416 (1984)). In 2 his motion to dismiss, Defendant Hirou unequivocally states that he “resides in the state of 3 California.” [Doc. No. 8 at 2.] This statement by Defendant is corroborated by the mailing 4 address in Carlsbad, California he lists in his filings, and at which he was personally served. 5 [Doc. No. 3; see, e.g., Doc. No. 18 at 1.] Accordingly, the Court is satisfied that it possesses 6 jurisdiction over Defendant Hirou and DENIES the motion to dismiss. See Teeple, 2009 7 WL 10671655 (concluding the same). 8 B. Preliminary Injunction 9 1. Likelihood of Prevailing on Merits 10 Plaintiffs assert they will prevail on the merits because they never entered a contract 11 with Hirou, never authorized the filing of a UCC-1, and Hirou possesses no copyright in 12 his own name. The Court agrees. 13 Defendant Hirou sent Plaintiffs a “Self-Executing Security Agreement” that was 14 purportedly triggered upon Plaintiffs’ alleged unauthorized use of Defendant Hirou’s 15 purported copyright, and which stated that Plaintiffs consented to Defendant Hirou’s filing 16 of a UCC-1 Financing Statement. However, Plaintiffs counter they never took any action 17 to enter into any agreement with Defendant. Moreover, Plaintiffs assert they did not 18 authorize Defendant Hirou’s filing of an initial financing statement, or UCC-1, as is 19 required in California. See Cal. Com. Code § 9509; see also Lightstorm Ent., Inc. v. 20 Cummings, No. 2:20-CV-08044-ODW(PVCX), 2021 WL 2483792, at *3 (C.D. Cal. 2021) 21 (“The California Commercial Code . . . provides that a person may file a UCC-1 only if the 22 debtor authorizes the filing”). Finally, Defendant Hirou’s name is not subject to common 23 law copyright protection. See, e.g., United States v. Rodriguez Ramirez, 291 F. Supp. 2d 24 266, 269 (S.D.N.Y. 2003) (voiding liens placed on property and rejecting claimed common 25 law copyright in a name as federal law preempted common law copyright and “a name is 26 not a proper subject for copyright”); see also Gannon v. Tucknott Miller, No. 1:05-CV- 27 00168 TS, 2006 WL 1793581, at *2 (N.D. Ind. 2006) (“common law copyright law does 28 not exist” and a name does not “exhibit the minimal creativity required for copyright 1 protection”); see also Ray v. Credit Union One, No. CIVA 06-11694, 2007 WL 522700, at 2 *2 (E.D. Mich. 2007) (“Plaintiff’s Complaint fails to state a claim for relief because his 3 name is not subject to copyright protection.”). 4 Accordingly, the Court finds that Plaintiffs are likely to prevail on the merits of the 5 case and that this factor weighs heavily for Plaintiffs. 6 2. Irreparable Harm 7 Plaintiffs complain of a real risk of damage to their credit and ability to obtain 8 financing given that the UCC-1 liens against Plaintiffs American Heritage Railways, Inc. 9 and Old Tuscon Entertainment, LLC are public and for $148,000,000 each. [Compl. ¶ 28.] 10 The Court finds that the potential harm to Plaintiffs will be difficult to quantify, but also 11 that traditional legal redress against Defendant Hirou appears to be futile. As shown from 12 past litigation, Defendant Hirou continues to file fraudulent UCC-1s against parties that 13 allegedly violate a copyright he possesses to his own name while frivolously asserting that 14 he is beyond the reach of the Court’s jurisdiction despite admitting to living within the 15 Southern District of California. [See, e.g., 3:08-cv-02281-JAH-CAB, Doc. No. 22 at 1, 16 (“Secured Party submits this opposition by special visitation does not concede to [sic] . . . 17 Court’s jurisdiction Secured Party [sic] is a California Citizen and resident of Carlsbad”).] 18 Accordingly, under these facts, Plaintiffs have demonstrated irreparable harm will likely 19 result without preliminary injunctive relief.1 See F.H. Cann & Assocs., Inc. v. Moorman, 20 605 F. Supp. 3d 232, 242 (D. Mass. 2022) (finding irreparable harm where Plaintiffs 21 alleged invalid UCC-1 posed risk of damage to credit and ability to exercise complete 22 rights over property subject to lien); see also United States v. Halajian, No. 1:13-CV- 23 00468-AWI, 2013 WL 5954806, at *6 (E.D. Cal. 2013), report and recommendation 24 adopted, No. 1:13-CV-00468-AWI-SKO, 2013 WL 12312786 (E.D. Cal. 2013) (finding 25 26 27 1 In reaching this conclusion, the Court additionally considered the fact that Plaintiffs’ probability of success on the merits is so high that a lesser degree of irreparable harm is required to be shown. See Mi 28 1 irreparable harm where frivolous UCC-1 liens filed against government officials); see also 2 Painewebber Inc. v. Nwogugu, No. 98 CIV. 2441 (DLC), 1998 WL 193110, at *4 3 (S.D.N.Y. 1998) (finding irreparable harm where frivolous UCC-1 liens filed against 4 corporation). 5 3. Balance of Equities 6 In contrast to the harm caused to Plaintiffs by Defendant Hirou due to the invalid 7 UCC-1 filings, Defendant Hirou will not be injured by any injunction as he was never 8 entitled to a copyright in his name, and thus could not file a valid UCC-1 against Plaintiffs. 9 See F.H. Cann, 605 F. Supp. 3d at 242 (finding balance of equities weighed for Plaintiffs 10 harmed by frivolous UCC-1 filing). 11 4. Public Interest 12 The final factor weighs for Plaintiffs as well given that guarding against the filing of 13 baseless UCC financing statements is in the public interest. See id. at 242–43; see also 14 Halajian, 2013 WL 5954806 at *6. 15 5. Security 16 “Federal Rule of Civil Procedure 65(c) permits a court to grant preliminary 17 injunctive relief ‘only if the movant gives security in an amount that the court considers 18 proper to pay the costs and damages sustained by any party found to have been wrongfully 19 enjoined or restrained.’” Johnson v. Couturier, 572 F.3d 1067, 1086 (9th Cir. 2009). “The 20 district court may dispense with the filing of a bond when it concludes there is no realistic 21 likelihood of harm to the defendant from enjoining his or her conduct.” Jorgensen v. 22 Cassiday, 320 F.3d 906, 919 (9th Cir. 2003) (citing Barahona-Gomez v. Reno, 167 F.3d 23 1228, 1237 (9th Cir. 1999)). As there is no realistic likelihood of harm to Defendant Hirou 24 in requiring him to remove the frivolous UCC-1s he filed and enjoining him from filing 25 further UCC-1s against Plaintiffs, the Court declines to order Plaintiffs to provide any 26 security. 27 28 I IV. CONCLUSION 2 With Plaintiffs establishing the four required factors, the Court GRANTS the motion 3 || for preliminary injunction. See Lightstorm, 2021 WL 2483792, at *3 (“A party improperly 4 ||named as a debtor in a UCC-1 is entitled to injunctive relief pursuant to the [California] 5 |}Commercial Code [§ 9625(a)].”); see also Teeple, 2009 WL 10671655 (granting 6 || preliminary injunction in identical case against same defendant). 7 Defendant Hirou is prohibited from acting upon the UCC-1 statements filed and 8 || from filing additional UCC-1 statements against Plaintiffs. Defendant Hirou shall remove 9 || the unauthorized UCC-1 filings against Plaintiffs by March 19, 2025. 10 Itis SO ORDERED. 11 12 13 Dated: February 26, 2025 Ki 14 Hon. Cathy Ann Bencivengo 15 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28