Zdrok v. v. Secret Catalogue, Inc.

215 F. Supp. 2d 510, 2002 U.S. Dist. LEXIS 14779, 2002 WL 1837963
CourtDistrict Court, D. New Jersey
DecidedAugust 13, 2002
DocketCiv. 01-4282(WGB)
StatusPublished
Cited by2 cases

This text of 215 F. Supp. 2d 510 (Zdrok v. v. Secret Catalogue, Inc.) is published on Counsel Stack Legal Research, covering District Court, D. New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Zdrok v. v. Secret Catalogue, Inc., 215 F. Supp. 2d 510, 2002 U.S. Dist. LEXIS 14779, 2002 WL 1837963 (D.N.J. 2002).

Opinion

OPINION

BASSLER, District Judge.

Defendants (referred to collectively in this Opinion as “Victoria’s Secret”) have moved pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss the Complaint for failure to state a claim upon which relief may be granted. For the following reasons, Victoria’s Secret’s motion to dismiss the Complaint is granted.

Victoria’s Secret has also filed a motion for sanctions, seeking an award of attorneys fees pursuant to 28 U.S.C. § 1927 and under the Court’s inherent power. The Court concludes that Victoria’s Secret demonstrated that Plaintiff Victoria Zdrok’s (“Zdrok”) conduct was sufficiently vexatious so as to warrant an award of fees pursuant to 28 U.S.C. § 1927. Accordingly, the Court grants Victoria’s Secret’s motion for costs and attorney’s fees.

I. FACTUAL BACKGROUND

This procedurally complicated dispute between the parties began as an ordinary intellectual property action in Ohio, traveled to California, and then relocated to New Jersey. That action stemmed from a rather colorful Internet website created by Zdrok. Zdrok earned her Bachelor of Arts degree from West Chester State University, her Juris Doctor degree from Vil-lanova Law School, her Masters Degree in Psychology from Hahnemann University, and is currently pursuing her Ph.D. in Clinical Psychology. She financed her education by working as a model and actress, and appeared as a Playboy Playmate in Playboy’s October 1994 issue.

In the summer of 1998, Zdrok began an interactive website dedicated to her modeling career. Zdrok’s site was originally registered under the domain name “victo- *512 riassecretdesires.com.” Though Zdrok later changed her website location to “www.planetvictoria.com,” she retains the domain name “victoriassecretdesires.com.” Zdrok continues to use links to the old domain, though those links are hidden from the public’s view.

On both the old and new sites, by paying a monthly fee, Zdrok’s fans can gain access to original, copyrighted photographs, videos, and writings which they can view and download to their personal computers. The site contains an auction program in which fans may bid on and purchase her worn, used lingerie. From the inception of her site, one page has also been titled “Victoria’s Secret of the Month.” This page carries a monthly quiz, and those who get the right answers can win autographed pictures of Zdrok.

On January 22, 2001, Victoria’s Secret, national purveyor of lingerie and other intimate apparel, filed an action in the United States District Court for the Southern District of Ohio, Eastern Division — V Secret Catalogue, Inc. v. Zdrok, Case No. C2-01-0059 (“Ohio action”) — alleging that Zdrok violated Victoria’s Secret’s trademark, inter alia, by using the phrase “Victoria’s Secret” in connection with her domain name, text portions of the website, and her pre-worn lingerie auction. Although the Complaint alleged personal jurisdiction over Zdrok pursuant to Ohio Revised Code § 2807.382(A), it stated no facts to prove personal jurisdiction existed in Ohio.

Victoria’s Secret claims that Zdrok was properly served, but Zdrok alleges that no attempt was made to serve her in a manner provided under Fed.R.Civ.P. 4(e). Zdrok contends she received a copy of the Summons and Complaint in the ordinary mail and was never personally served.

Zdrok believes that Victoria’s Secret selected Ohio as a forum because it was a long way from her New Jersey home and would require her to expend a substantial amount of money to defend herself. She also believes that because Victoria’s Secret is a major employer in the Ohio area, it would enjoy a “home town advantage” before the local judges of the Southern District court.

On February 26, 2001, Zdrok’s counsel, Steven L. Sloca (“Sloca”), wrote to Judge Edmund A. Sargus, Jr. in the Southern District of Ohio explaining Zdrok’s version of the facts and asking the assistance of the Court in trying to settle the case. In that and a subsequent letter, Sloca stated that he would represent Zdrok for no fee; however, Sloca advised that Zdrok could not afford to hire local counsel as required by Ohio local rules. Judge Sargus treated Sloca’s first letter as a “Request to Proceed Without Local Counsel” and requested that Victoria’s Secret submit a reply. Victoria’s Secret subsequently replied and filed a request for a default judgment.

On April 6, 2001, Judge Sargus denied Zdrok the right to proceed without local counsel. On April 10, 2001, the Court in a four page order entered a default judgment, which awarded Victoria’s Secret $100,000 in damages and enjoined Zdrok from having a “Victoria’s Secret of the Month” web page or using the domain name “victoriassecretdesires.com.” Zdrok claims that she did not receive notice of Judge Sargus’ rulings and that by the time she received a mailed copy of Victoria’s Secret’s request for a default judgment, the Court had already entered thé judgment.

On September 18, 2001, Judge Sargus signed a five page order containing findings of fact and conclusions of law supplementing, but not amending, his order of April 10, 2001. The court made a specific finding that it had personal jurisdiction over Zdrok pursuant to Ohio Revised Code § 2307.382(A).

*513 Zdrok did not seek relief from Judge Sargus. Instead, on May 4, 2001, Zdrok filed an action in the United States District Court for the Central District of California, Western Division — Zdrok v. v. Secret Catalogue, Inc., Case No. 01-4113 (“California action”) — seeking to void the default judgment entered against her in Ohio. She filed her collateral attack pursuant to Fed. R.Civ.P. 60(b). Sloca, who is a California attorney, appeared as Zdrok’s counsel.

On August 1, 2001, Judge Dickran Tev-rizian in the Central District of California granted Victoria’s Secret’s Motion to Dismiss on the grounds that principles of judicial comity, fairness, and efficiency precluded Zdrok’s “horizontal appeal” of Judge Sargus’ default judgment. Judge Tevrizian dismissed the action without prejudice to Zdrok’s right to refile in the proper forum and indicated more than once that the U.S. District Court in Ohio was the appropriate forum for this action.

Despite Judge Tevrizian’s order, Zdrok commenced her action before this Court on September 6, 2001. In a Complaint almost identical to the one filed in the California action, Zdrok again seeks to void the default judgment entered by Judge Sargus in Ohio. Victoria’s Secret has now moved to dismiss, on grounds that Judge Tevrizian’s order precludes Zdrok from commencing this action anywhere but the Southern District of Ohio.

II. MOTION TO DISMISS

A.

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Related

SigmaPharm, Inc. v. MUTUAL PHARMACEUTICAL CO.
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Bluebook (online)
215 F. Supp. 2d 510, 2002 U.S. Dist. LEXIS 14779, 2002 WL 1837963, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zdrok-v-v-secret-catalogue-inc-njd-2002.