Rovio Entertainment, Ltd. v. Allstar Vending, Inc.

97 F. Supp. 3d 536, 114 U.S.P.Q. 2d (BNA) 1820, 2015 U.S. Dist. LEXIS 43781, 2015 WL 1508497
CourtDistrict Court, S.D. New York
DecidedApril 1, 2015
DocketNo. 14-cv-7346 (KBF)
StatusPublished
Cited by67 cases

This text of 97 F. Supp. 3d 536 (Rovio Entertainment, Ltd. v. Allstar Vending, Inc.) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Rovio Entertainment, Ltd. v. Allstar Vending, Inc., 97 F. Supp. 3d 536, 114 U.S.P.Q. 2d (BNA) 1820, 2015 U.S. Dist. LEXIS 43781, 2015 WL 1508497 (S.D.N.Y. 2015).

Opinion

OPINION & ORDER

KATHERINE B. FORREST, District Judge:

On September 11, 2014, plaintiff Ro-vio Entertainment, Ltd. (“plaintiff,” or “Rovio”) filed this counterfeiting and trademark infringement action against defendants Allstar Vending Inc., Myrna Dorfman, Toy Amazon Corporation (“Toy Amazon”), Han When Kuo, Yun Long Kuo a/k/a Johnson Kuo, and ten [541]*541Doe defendants, alleging that defendants have exploited and engaged in the unauthorized use of Rovio’s copyrights and trademarks relating to the popular video game Angry Birds. (ECF No. 1 (“Compl.”).) Defendants Alistar Vending Inc. and Myrna Dorfman subsequently settled with plaintiff, and the action was discontinued as to them. (ECF No. 22.) Rovio served the complaint on Toy Amazon, Han When Kuo, and Yun Long Kuo (collectively, the “Toy Amazon defendants”) on October 15-16, 2014. (ECF Nos. 7-11.) Pursuant to Federal Rule of Civil Procedure 12(a)(1)(A)(i), the latest deadline for any of the Toy Amazon defendants to answer plaintiffs complaint was November 6, 2014.

Under Rule 55 of the Federal Rules of Civil Procedure, a court must follow a two-step process before entering default judgment. First, under Rule 55(a), the Clerk of Court must determine that the party against whom a judgment for affirmative relief is sought has failed to “plead or otherwise defend” itself, and then enter that party’s default. See Fed.R.Civ.P. 55(a). Second, under Rule 55(b)(2), the party seeking affirmative relief must apply to the court for a default judgment. See Fed.R.Civ.P. 55(b)(2).

On November 10, 2014, Rovio obtained certificates of default against each of the Toy Amazon defendants. (ECF Nos. 16-18.) On January 30, 2015, Rovio filed a motion for default judgment against the Toy Amazon defendants, which Rovio served on them on February 2, 2015. (ECF Nos. 30, 35.) On February 4, 2015, the Court ordered the Toy Amazon defendants to appear and show cause why default judgment should not enter against them at a hearing on March 12, 2015. (ECF No. 36.) Rovio served this order and again served the default judgment motion materials on the Toy Amazon defendants on February 11, 2015. (ECF No. 37.) The Toy Amazon defendants did not appear at the March 12, 2015 hearing. To date, Toy Amazon, Han When Kuo, and Yun Long Kuo have failed to answer or otherwise respond to the complaint, and they have not appeared or sought to defend themselves at any time during this litigation.

For the reasons set forth below, the Court hereby enters default judgment and issues a permanent injunction as against the Toy Amazon defendants.

I. JURISDICTION

A. Subject Matter Jurisdiction

This Court has federal subject matter jurisdiction over this action under 28 U.S.C. §§ 1331 & 1338 in that the case arises out of claims under the federal copyright and trademark laws.

B. Personal Jurisdiction

This Court looks to the law of the forum state in determining whether it has personal jurisdiction over defendants. Licci v. Lebanese Canadian Bank, 732 F.3d 161, 168 (2d Cir.2013). This Court may only exercise personal jurisdiction over a foreign defendant if doing so is consistent with the Constitution’s due process protections. Id.

1. New York long-arm statute.

“[B]efore a court grants a motion for default judgment, it may first assure itself that it has personal jurisdiction over the defendant .... ” Sinoying Logistics Pte Ltd. v. Yi Da Xin Trading Corp., 619 F.3d 207, 213 (2d Cir.2010) (citations omitted). Under New York’s long-arm statute, “a court may exercise personal jurisdiction over any non-domiciliary ... who in person or through an agent ... transacts any business within the state or contracts any[542]*542where to supply goods or services in the state.” Chloe v. Queen Bee of Beverly Hills, LLC, 616 F.3d 158, 163-64 (2d Cir.2010) (citing N.Y. C.P.L.R. 302(a)(1)). Even a single act of contact with New York may permit a court to exercise personal jurisdiction over a defendant, so long as there is a substantial relationship between the transaction and the claim asserted. E.g., id. at 170. A defendant’s operation of -a “highly interactive” website that offers merchandise for sale to consumers. in New York and shipment of such merchandise to there “sufficiently demonstrate[s] [the defendant’s] purposeful availment of the benefits of transacting business in New York.” Id. at 170-71; see also Hsin Ten Enter. USA, Inc. v. Clark Enters., 138 F.Supp.2d 449, 456 (S.D.N.Y.2000) (“Generally, an interactive website supports a finding of personal jurisdiction over the defendant.”).

Rovio alleges that Toy Amazon advertised, marketed, promoted, and sold the infringing products to New York customers via two highly interactive websites. (Compl. ¶¶ 4, 8, 36; ECF No. 31 (Pl.’s Br.) at 10-11; Declaration of Ashly E. Sands, ECF No. 32 (“Sands Deck”) ¶¶ 18-19 & ex. 2.) Rovio also alleges that plaintiffs counsel made a purchase of temporary tattoos from one of Toy Amazon’s websites on October 12, 2012, and these products were delivered to Rovio’s counsel’s New York office. (Pl.’s Br. at 10; Sands Decl. ¶ 19.) Plaintiff has therefore adequately pleaded that Toy Amazon ran a highly interactive website that offered merchandise that New York customers could buy and have shipped to them within the state. The Court may therefore exercise personal jurisdiction over Toy Amazon consistent with New York’s long-arm statute.

A single act of selling counterfeit goods in New York may also establish personal jurisdiction under N.Y. C.P.L.R. 302(a)(1). Chloe, 616 F.3d at 170; see also Mattel, Inc. v. Adventure Apparel, No. 00 CIV. 4085(RWS), 2001 WL 286728, at *3 (S.D.N.Y. Mar. 22, 2001) (single online transaction was sufficient to establish that defendant transacted business in New York within meaning of N.Y. C.P.L.R. 302(a)(1)). Rovio alleges that investigators it hired made an online purchase of infringing products that had been advertised on the internet by the Toy Amazon defendants, and then received them in New York on December 10, 2012. (Sands Deck ¶ 22 & ex. 3.). This supports the Court’s exercise of personal jurisdiction over Toy Amazon.

N.Y. C.P.L.R. 302(a) “also confers jurisdiction over individual corporate officers who supervise and control an infringing activity.” Chloe, 616 F.3d at 164. “At the heart of this inquiry is whether the out-of-state corporate officers were ‘primary actor[s] in the transaction in New York’ that gave rise to the litigation, and not merely ‘some corporate employee[s] ... who played no part in’ it.” Karabu Corp. v.

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97 F. Supp. 3d 536, 114 U.S.P.Q. 2d (BNA) 1820, 2015 U.S. Dist. LEXIS 43781, 2015 WL 1508497, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rovio-entertainment-ltd-v-allstar-vending-inc-nysd-2015.