Tammy Taylor Nails, Inc. v. Viljoen

• Court: District Court, S.D. California
• Decided: April 16, 2025
• Docket: 3:24-cv-00624
• Status: Unknown

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 TAMMY TAYLOR NAILS, INC., Case No. 24-cv-0624-BAS-DTF

10 Plaintiff, ORDER REQUESTING 11 v. SUPPLEMENTAL BRIEFING RE: SERVICE OF PROCESS AND 12 MELANY VILJOEN, PEET VILJOEN, SPECIFIC JURISDICTION TAMMY TAYLOR GLOBAL 13 FRANCHISING, and DOES 1 14 THROUGH 10, 15 Defendants. 16 17 This case concerns a United States business that agreed to allow two individuals in 18 South Africa to license and distribute its business throughout Australia and Africa using its 19 Marks. Tammy Taylor Nails, Inc., is the United States business and the plaintiff (“TTN” 20 or “Plaintiff”). Melany and Peet Viljoen (“the Viljoens”) are two of the defendants and the 21 two individuals who agreed to license and distribute franchises and products under the TTN 22 name in Africa. 23 In April 2017, TTN entered into an International Distribution Agreement (the 24 “Distribution Agreement”) with the Viljoens. (FAC ¶¶ 10, 27; FAC Ex. J.) The 25 Distribution Agreement granted the Viljoens the rights to distribute TTN products in 26 Australia and Africa. (Id. ¶ 27; id., Ex. J.) Accordingly, the Distribution Agreement also 27 granted the Viljoens the limited ability to use TTN’s trademarks “solely in connection with 28 the promotion, advertising, and distribution of the Products within the Territory and only 1 during the Term.” (Id. ¶ 27 (quoting id., Ex. J).) The Distribution Agreement also included 2 language to govern the Viljoens’ rights after the Distribution Agreement was terminated. 3 It specifically stated, and the Viljoens agreed to the specific clause, that the Viljoens were 4 not to use any of TTN’s trademarks after the Distribution Agreement was terminated. 5 (Id.¶ 29; id., Ex. J.) 6 A year and a half after entering into the Distribution Agreement, TTN entered into 7 a Master License Agreement (the “License Agreement”) with the Viljoens, giving them 8 rights to use TTN’s marks and TTN’s system for operating nail salons so the Viljoens could 9 open nail salons in Africa under the Tammy Taylor Nails name. (Id. ¶¶ 10, 30; id., Ex. K.) 10 The License Agreement also required the Viljoens to acknowledge that TTN owned the 11 trademarks, including the United States Marks and the Oval Double T Mark. (Id. ¶ 31; id., 12 Ex. K.) Like the Distribution Agreement, the License Agreement revoked the Viljoens’ 13 rights, and any sublicenses they had been granted, whenever the License Agreement was 14 terminated. (Id. ¶ 32; id., Ex. K.) The business relationship between the Viljoens and TTN 15 was relatively short-lived after that. TTN terminated both Agreements in 2021, effectively 16 terminating the Viljoens’ rights under the Agreements by April 2022. (Id. ¶¶ 10, 33.) 17 Since terminating the Agreements, TTN alleges the Viljoens formed a company in 18 South Africa whose very name infringes one of TTN’s Marks: “Tammy Taylor Global 19 Franchising” (collectively, with the Viljoens, “Defendants”). (Id. ¶¶ 10, 35.) Defendants 20 have advertised Tammy Taylor Global Franchising with a billboard in Times Square and 21 by offering global franchises on their website https://tammytaylornails.org.za (the 22 “Website”). (Id. ¶ 35; see also ECF No. 20, Ex. 28 at 145 (showing a website, registered 23 to Tammy Taylor Global Franchising, that seems to offer the opportunity to “OWN A 24 FRANCHISE”).) 25 While TTN’s principal place of business is in Southern California (FAC ¶ 5), the 26 two individual defendants, Melany and Peet Viljoen, are each domiciled in South Africa, 27 and Tammy Taylor Global Franchising is an entity formed in South Africa with its 28 principal place of business located there (id. ¶¶ 6–8). 1 Plaintiff filed its Complaint on April 2, 2024, and then filed its First Amended 2 Complaint on April 22, 2024. (ECF Nos. 1, 5.) Plaintiff attempted service on May 16, 2024. 3 (ECF Nos. 6–7.) On June 24, 2025, the clerk entered default against Defendants. (ECF No. 4 10.) Plaintiff now seeks default judgment against Defendants. (ECF No. 17.) 5 6 I. LEGAL STANDARD 7 Generally, after entry of default, a party is entitled to apply to the court for default 8 judgment when a party has failed to plead or defend. Fed. R. Civ. P. 55(b)(2). Upon entry 9 of default, the factual allegations in a plaintiff’s complaint, except those relating to 10 damages, are deemed admitted. TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917–18 11 (9th Cir. 1987) (citation omitted). 12 When ruling on a motion for default judgment, “a district court has an affirmative 13 duty to look into its jurisdiction over both the subject matter and the parties” given that “[a] 14 judgment entered without personal jurisdiction over the parties is void.” In re Tuli, 172 15 F.3d 707, 712 (9th Cir. 1999). Thus, “[t]o avoid entering a default judgment that can later 16 be successfully attacked as void, a court should determine whether it has the power, i.e., 17 the jurisdiction, to enter the judgment in the first place.” Id.; see also Facebook, Inc. v. 18 Pedersen, 868 F. Supp. 2d 953, 961 (N.D. Cal. 2012) (recommending the district judge 19 “deny Facebook’s motion for default judgment and . . . dismiss this action for lack of 20 personal jurisdiction”). “The Court is also required to assess the adequacy of the service 21 of process on the party against whom default is requested.” DFSB Kollective Co. v. Bourne, 22 897 F. Supp. 2d 871, 877 (N.D. Cal. 2012) (citation omitted). 23 Having satisfied itself as to the procedural considerations and jurisdiction, entry of 24 default judgment is within the trial court’s discretion. Aldabe v. Aldabe, 616 F.2d 1089, 25 1092 (9th Cir. 1980). 26 27 28 1 II. PERSONAL JURISDICTION 2 At this point, the Court is not satisfied that it has personal jurisdiction over each of 3 the defendants as to each of the claims. “Personal jurisdiction must exist for each claim 4 asserted against a defendant.” Action Embroidery Corp. v. Atl. Embroidery, Inc., 368 F.3d 5 1174, 1180 (9th Cir. 2004) (citing Data Disc, Inc. v. Sys. Tech. Assocs., Inc., 557 F.2d 6 1280, 1289 n.8 (9th Cir. 1977)). 7 The general rule provides personal jurisdiction over a defendant is proper if it is 8 permitted by a long-arm statute and if the exercise of that jurisdiction does not violate 9 federal due process. Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1154 (9th Cir. 2006). 10 Federal courts generally follow the forum state’s law in determining the limits of their 11 jurisdiction over individuals. Glob. Commodities Trading Grp., Inc. v. Beneficio de Arroz 12 Choloma, S.A., 972 F.3d 1101, 1106 (9th Cir. 2020) (citation omitted). Both the federal 13 and California’s long-arm statutes require compliance with due process requirements. Fed. 14 R. Civ. P. 4; Cal. Civ. Proc. Code § 410.10. For due process to be satisfied, a defendant 15 must have “minimum contacts” within the forum state such that asserting jurisdiction over 16 the defendant would not “offend traditional notions of fair play and substantial justice.” 17 Pebble Beach Co., 453 F.3d at 1155 (citing Int’l Shoe Co. v. State of Wash., Off. of 18 Unemployment Comp. & Placement, 326 U.S. 310, 315 (1945)). 19 There are two types of personal jurisdiction: general and specific. Daimler AG v. 20 Bauman, 571 U.S. 117, 118 (2014). Because no defendant here is domiciled in or could be 21 considered as residing in California or even the United States, only specific jurisdiction is 22 relevant here. Specific jurisdiction permits the court to exercise jurisdiction over a 23 defendant who has availed itself of the forum by conducting forum-related activities that 24 gave rise to the action before the court. Bancroft & Masters, Inc. v. August Nat’l Inc., 223 25 F.3d 1082, 1086 (9th Cir. 2000), overruled on other grounds in part by Yahoo! Inc. v. La 26 Ligue Contre Le Racisme Et L’Antisemitisme, 433 F.3d 1199 (9th Cir. 2006). 27 Service of process is a prerequisite for personal jurisdiction over a defendant. See 28 Jackson v. Hayakawa, 682 F.2d 1344, 1347 (9th Cir. 1982) (“Defendants must be served 1 in accordance with . . . the Federal Rules of Civil Procedure, or there is no personal 2 jurisdiction.”). “Neither actual notice, nor simply naming the person in the caption of the 3 complaint, will subject defendants to personal jurisdiction if service was not made in 4 substantial compliance with Rule 4.” Id. (citations omitted). 5 Accordingly, the Court analyzes service of process and minimum contacts as to each 6 of the individual defendants and then as to the corporate defendant. Because the Court finds 7 service of process was not perfected as to the corporate defendant, and specific jurisdiction 8 was not established as to each of the defendants and each of the federal claims, the Court 9 requests supplemental briefing on the issues of service of process and specific jurisdiction. 10 A. The Viljoens 11 1. Service of process. 12 Sufficiency of service of process is governed by Federal Rule of Civil Procedure 4. 13 Specifically, Rule 4(f) governs service on an individual in a foreign country. The Viljoens 14 reside in South Africa and therefore Rule 4(f) governs appropriate service of process 15 procedure. (FAC ¶¶ 6–7.) 16 Rule 4(f) offers several possible methods for effecting service on an individual in a 17 foreign country. For instance, an individual may be served “by any internationally agreed 18 means of service that is reasonably calculated to give notice, such as those authorized by 19 the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents.” 20 Fed. R. Civ. P. 4(f)(1). Plaintiff does not cite to, nor could this Court discover, an 21 internationally agreed-upon means of service (entered into by both the United States and 22 South Africa) by which Plaintiff could serve the Viljoen Defendants. Therefore, Rule 23 4(f)(1) does not apply. 24 Fortunately, Rule 4(f)(2)(A) allows service on a party in a foreign country so long 25 as that service is executed in accordance with the “the foreign country’s law for service in 26 that country in an action in its courts of general jurisdiction.” South African law permits 27 personal service. Rule 4 of the South African Uniform Rules of Court (“Uniform Rules”) 28 governs service of process and provides for various means of service in courts of general 1 jurisdiction in South Africa. Of relevance here, Uniform Rule 4(1)(a)(i) provides that 2 service of any process of the court be directed to the sheriff and that a sheriff effects service 3 by delivering a copy to a named defendant personally, Uniform Rule 4(1)(a)(i), or that a 4 sheriff may effect service “by delivering a copy thereof at the place of employment of the 5 said person, . . . to some person apparently not less than sixteen years of age and apparently 6 in authority over him;” Uniform Rule 4(1)(a)(iii). 7 The Viljoen Defendants have each been served in accordance with Universal Rule 8 4. Peet Viljoen was personally served by a sheriff in Menlyn, South Africa, at an office 9 park. (ECF No. 7.) The sheriff attests Peet Viljoen was served with the civil summons, 10 report on the filing or determination, the Complaint, the First Amended Complaint, and 11 disclosure statement. (Id.) The contents of the sheriff’s affidavit show service upon Peet 12 Viljoen complied with Uniform Rule 4’s requirements as contained in Uniform Rule 13 4(1)(b)–(d). Service took place at a permissible time. (Compare ECF No. 7 (showing 14 service took place at 10:31), with Uniform Rule 4(1)(b) (requiring service be effected “as 15 near as possible between the hours of 7 a.m. and 7 p.m.).) Service did not take place on a 16 Sunday. (Compare ECF No. 7 (showing service took place on May 17, 2024, a Friday), 17 with Uniform Rule 4(1)(c) (requiring service not take place on a Sunday unless otherwise 18 directed by a court or judge).) And the nature and contents of the served documents were 19 explained to Peet Viljoen. (Compare ECF No. 7 (“[T]he nature and contents thereof [were] 20 explained to [Peet Viljoen]”), with Uniform Rule 4(1)(d) (“It shall be the duty of 21 the sheriff or other person serving the process or documents to explain the nature and 22 contents thereof to the person upon whom service is being effected and to state in his return 23 or affidavit or on the signed receipt that he has done so.).) That Peet Viljoen evidently 24 refused to sign does not appear to have an impact on the legitimacy of service of process. 25 See generally Uniform Rule 4. 26 The affidavit attesting to service upon Melany Viljoen is virtually identical except 27 that service took place via substitute service upon Peet Viljoen, evidently in compliance 28 with Uniform Rule 4(1)(a)(iii), wherein a sheriff effects service by leaving a copy of the 1 documents with a person in charge at the location. (See ECF No. 6 (attesting that the sheriff 2 served the documents upon “MR P VILJOEN” (Peet Viljoen) and identifies him as the 3 “HUSBAND” before noting service was completed in accordance with “Rule 4 4(1)(a)(iii)”).) Because this substitute service took place at virtually the same moment as 5 service upon Peet Viljoen, and the contents of the affidavit are nearly identical, minus the 6 language regarding substitute service, service of process likewise appears to have complied 7 with Uniform Rule 4. 8 Accordingly, under Federal Rule of Civil Procedure 4(f)(2)(A), the Viljoens were 9 served “as prescribed by [South Africa’s] law for service in [South Africa] in an action in 10 its courts of general jurisdiction.” Therefore, under Federal Rule of Civil 11 Procedure 4(l)(2)(B), the Court is satisfied that the summons and complaint were properly 12 served upon the Viljoens. 13 2. Specific jurisdiction over the Viljoens 14 Having determined service was proper, the Court now turns to whether each of the 15 Viljoens had sufficient minimum contacts to be subject to specific jurisdiction as to each 16 of the claims alleged against them. Action Embroidery Corp. v. Atl. Embroidery, Inc., 368 17 F.3d 1174, 1180 (9th Cir. 2004) (“Personal jurisdiction must exist for each claim asserted 18 against a defendant.” (citation omitted)). 19 i. Breach of contract claims 20 From the outset, Plaintiff notes that the Viljoens consented to this Court’s 21 jurisdiction regarding claims concerning the Agreements when they signed the 22 Agreements. (Mot. at 17 n.2.) Indeed, Tammy Taylor (“Taylor”) attests that she signed the 23 Distribution Agreement and the License Agreement along with the Viljoens. (Id., Taylor 24 Decl. ¶¶ 10, 12.) Plaintiff has included copies of these signed agreements as Exhibits 24 25 (the Distribution Agreement) and 25 (the License Agreement). Taylor attests the copies of 26 these Agreements are true and correct. (Id.) The Distribution Agreement forum selection 27 clause reads, “each party irrevocably submits to the exclusive jurisdiction of the federal 28 and state courts located in the State of California for the purposes of any action or 1 proceeding arising out of or relating to this Agreement.” (Mot., Ex. 24 at § 14(b).) The 2 License Agreement includes identical language. (Id., Ex. 25 at § 11.2.) 3 “Forum selection clauses are presumptively valid.” Melendez, 2017 WL 8183139, 4 at *3, (citing M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10 (1972)); see also Argueta 5 v. Banco Mexicano, S.A., 87 F.3d 320, 325 (9th Cir. 1996) (“Although Bremen is an 6 admiralty case, its standard has been widely applied to forum selection clauses in general.”) 7 The Ninth Circuit has further recognized that the acceptance of a forum selection clause 8 constitutes consent to personal jurisdiction in the identified forum. SEC v. Ross, 504 F.3d 9 1130, 1149 (9th Cir. 2007) (citing Nat’l Equip. Rental, Ltd. v. Szukhent, 375 U.S. 311, 315– 10 16 (1964); Dow Chem. Co. v. Calderon, 422 F.3d 827, 831 (9th Cir. 2005)). 11 The Court sees no reason to find the instant forum selection clauses as anything other 12 than valid. Accordingly, this Court has personal jurisdiction over each of the Viljoens as 13 to the breach of contract claims. 14 ii. Federal statutory claims 15 As to the remaining claims raised against the Viljoens, the Court questions whether 16 it has personal jurisdiction to hear them. Because the Viljoens are not subject to general 17 jurisdiction in any particular state, the Court must determine if it may exercise specific 18 jurisdiction over the Viljoens via the federal long-arm statute. The Viljoens are South 19 African citizens, and therefore not subject to general jurisdiction in any of the United 20 States’ courts of general jurisdiction. However, the federal long-arm statute allows any 21 district court in the United States to exercise personal jurisdiction “[f]or a claim that arises 22 under federal law,” over a defendant who “is not subject to jurisdiction in any state’s courts 23 of general jurisdiction,” so long as “exercising jurisdiction is consistent with the United 24 States Constitution and laws.” Fed. R. Civ. P. 4(k)(2); see also Holland Am. Line Inc. v. 25 Wartsila N. Am., Inc., 485 F.3d 450, 461 (9th Cir. 2007). 26 Due process requires that a nonresident defendant have “‘certain minimum contacts’ 27 with the forum ‘such that the maintenance of the suit does not offend traditional notions of 28 fair play and substantial justice.’” AMA Multimedia, LLC v. Wanat, 970 F.3d 1201, 1208 1 (9th Cir. 2020) (quoting Int’l Shoe, 326 U.S. at 316). The type and number of contacts 2 required by the due process clause are a function of whether the plaintiff is asserting 3 “specific” personal jurisdiction or “general” personal jurisdiction. See Walden v. Fiore, 4 571 U.S. 277, 283 n.6 (2014). As noted, this case requires specific personal jurisdiction. 5 “For a State to exercise [specific] jurisdiction [under its state long-arm statute] consistent 6 with due process, the defendant’s suit-related conduct must create a substantial connection 7 with the forum State.” Id. at 284. The analysis under the federal long-arm statute is the 8 same except for one difference: rather than “considering contacts between the [defendant] 9 and the forum state, [the court must] consider contacts with the nation as a whole.” Holland 10 Am. Line Inc., 485 F.3d at 462; see also Wanat, 970 F.3d at 1208 (same). 11 In the Ninth Circuit, courts conduct a three-pronged inquiry to determine whether a 12 nonresident defendant has sufficient “minimum contacts” with the forum (here, the United 13 States) to warrant the exercise of specific personal jurisdiction: 14 (1) the defendant must either “purposefully direct his activities” toward the forum or “purposefully avail [] himself of the privileges of conducting 15 activities in the forum”; 16 (2) “the claim must be one which arises out of or relates to the defendant’s forum-related activities”; and 17 (3) “the exercise of jurisdiction must comport with fair play and substantial 18 justice, i.e. it must be reasonable”.

19 Wanat, 970 F.3d at 1208 (quoting Axiom Foods, Inc. v. Acerchem Int’l, Inc., 874 20 F.3d 1064, 1068 (9th Cir. 2017)). 21 As to prong one, for claims sounding in tort like the infringement claims brought 22 here, courts look to whether a defendant purposefully directed its activities at the forum 23 state. Wanat, 970 F.3d at 1208. Courts apply the “effects” test from Calder v. Jones, 465 24 U.S. 783 (1984), to make this determination. The Calder effects test asks, “whether the 25 defendant: ‘(1) committed an intentional act, (2) expressly aimed at the forum state, (3) 26 causing harm that the defendant knows is likely to be suffered in the forum state.’” Will 27 Co. v. Lee, 47 F.4th 917, 922 (9th Cir. 2022) (quoting Schwarzenegger v. Fred Martin 28 Motor Co., 374 F.3d 797, 803 (9th Cir. 2004); see also Ford Motor Co. v. Mont. Eighth 1 Jud. Dist. Ct., 592 U.S. 351, 361 (2021). All three components must be met for a defendant 2 to have purposefully directed its activities to the forum state. Pakootas v. Teck Cominco 3 Metals, Ltd., 905 F.3d 565, 577 (9th Cir. 2018). 4 The Court requests supplemental briefing as to each of the Viljoens’ contacts with 5 the United States and whether the contacts related to each of the federal claims are 6 sufficient to survive the Calder effects test. Should Plaintiff wish to impute any contacts 7 of Tammy Taylor Global Franchising to the Viljoens (or vice versa), it must sufficiently 8 allege a compelling legal theory for that imputation. 9 B. Tammy Taylor Global Franchising 10 1. Service of process 11 As it served the Viljoens, Plaintiff appears to have attempted to serve Tammy Taylor 12 Global Franchising in accordance with South Africa’s rules directing service. Uniform 13 Rule 4 also governs service on a corporation: 14 in the case of a corporation or company, by delivering a copy to a responsible employee thereof at its registered office or its principal place of business 15 within the court’s jurisdiction, or if there be no such employee willing to 16 accept service, by affixing a copy to the main door of such office or place of business, or in any manner provided by law. 17

18 Uniform Rule 4(1)(a)(v) (S. Afr.) (emphasis added).

19 Attempted service of process on Tammy Taylor Global Franchising apparently took 20 place contemporaneously with service on the Viljoens. (See ECF No. 8.) However, this 21 Court cannot verify that appropriate service of process took place on Tammy Taylor Global 22 Franchising because it is unclear whether the address where service took place, Menlyn 23 Woods Office Park, 291 Sprite Avenue, Menlyn, is either a registered office or principal 24 place of business of Tammy Taylor Global Franchising. (Id.) Accordingly, Plaintiff does 25 not meet the requirements for service upon a corporation in South Africa, which requires 26 copies of the documents be delivered to a “registered office or [the corporation’s] principal 27 place of business within the court’s jurisdiction.” Uniform Rule 4(1)(a)(v). Plaintiff alleges 28 1 that South Africa is Tammy Taylor Global Franchising’s principal place of business, but 2 this is insufficiently specific. (FAC ¶ 8.) 3 Therefore, this Court may not exercise jurisdiction over Tammy Taylor Global 4 Franchising. However, Plaintiff is invited to either submit supplemental briefing 5 demonstrating Tammy Taylor Global Franchising was served at a registered office or its 6 principal place of business or otherwise make an argument as to why service of process 7 was proper in this case. 8 2. Specific jurisdiction 9 Even if Plaintiff appropriately served Tammy Taylor Global Franchising, the Court 10 requires additional briefing as to whether grounds exist to exercise specific jurisdiction 11 over the company. 12 Because Tammy Taylor Global Franchising is not subject to general jurisdiction in 13 any specific state, the Court must determine if it may exercise specific jurisdiction over the 14 defendant via the federal long-arm statute. Defendant Tammy Taylor Global Franchising 15 is a South African corporation, nowhere do its contacts with a state appear to be so systemic 16 and continuous as to make the company subject to general jurisdiction there, and therefore 17 the company is not subject to jurisdiction in any of the United States’ courts of general 18 jurisdiction. 19 Against Tammy Taylor Global Franchising, Plaintiff raises three claims under 20 federal law of (1) Trademark Infringement Under 15 U.S.C. § 1114, (2) Violation of 21 Lanham Act by Use of False Designation in Interstate Commerce, and (3) Counterfeiting 22 under 15 U.S.C. § 1117.1 23 The same rules of specific jurisdiction apply to the claims against Tammy Taylor 24 Global Franchising as apply to the claims against each of the Viljoens. Accordingly, in 25 supplemental briefing, Plaintiff must explain and (to the extent practicable) provide support 26 27 1 The cause of action is in fact established under 15 U.S.C. § 1114, and the recovery for violation 28 | why this Court has specific jurisdiction over Tammy Taylor Global Franchising as to 2 || each of the claims asserted against it. 3 4 ||. CONCLUSION 5 Accordingly, it is hereby ORDERED that Plaintiff file supplemental briefing with 6 || the Court no later than May 7, 2025. This briefing must address the adequacy of service of 7 || process on Tammy Taylor Global Franchising; and why personal jurisdiction exists over 8 Melany Viljoen, (2) Peet Viljoen, and (3) Tammy Taylor Global Franchising. 9 IT IS SO ORDERED. 10 ~ 11 ||} DATED: April 16, 2025 pallu Bahan □□ H n. Cynthia Bashant, Chief Judge United States District Court 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 419.