DP Creations LLC v. Adolly.Com

1

DP CREATIONS, LLC d/b/a BOUNTIFUL BABY, a Utah limited liability company, Plaintiff, v. ADOLLY.COM, an unknown Chinese business entity; SHENZHEN CITY AIDUOLA HUALIANWANG, LTD. d/b/a ADOLLY US, an unknown Chinese business entity; HUIZHOU CITY OTARD GIFTS, LTD. d/b/a OTARDDOLLS, an unknown Chinese business entity; RUGAO LUOEN TRADING CO., LTD. d/b/a REBORN DOLL GALLERY, an unknown Chinese business entity; and NANJING TIANZENG GIFTS, LTD. d/b/a NPK, an unknown Chinese business entity, Defendants.

No. 2:22-cv-00230-DBB

United States District Court, D. Utah

September 1, 2023

MEMORANDUM DECISION AND ORDER GRANTING IN PART AND DENYING IN PART [67] MOTION FOR RECONSIDERATION OF PORTIONS OF THE COURT'S MAY 17 ORDER AND FOR AMENDMENT OF THE COURT'S MAY 17 JUDGMENT

David Barlow District Judge

Before the court is Plaintiff DP Creations, LLC doing business as Bountiful Baby's (“Bountiful Baby”) Motion for Reconsideration of Portions of the Court's May 17 Order and for Amendment of the Court's May 17 Judgment.^[1] Bountiful Baby asks the court to reconsider portions of its Memorandum Decision and Order Granting in Part and Denying in Part Plaintiff's Second Motion for Default Judgment and Permanent Injunction.^[2] For the reasons below, the court grants in part and denies in part Bountiful Baby's motion for reconsideration.

BACKGROUND

Bountiful Baby is a Utah company that sells lifelike infant dolls known as “reborn dolls.”^[3] Defendants are five foreign businesses that sell dolls and parts: Adolly.com (“ADC”); Shenzhen City Aiduola Hualianwang, Ltd. doing business as Adolly U.S. (“AUS”); Huizhou City Otard Gifts doing business as OtardDolls (“OTD”); Rugao Luoen Trading Co., Ltd. doing business as Reborn Doll Gallery (“RDG”); and Nanjing Tianzeng Gifts, Ltd. doing business as NPK (“NPK”) (collectively “Defendants”).^[4]

On March 30, 2022, Bountiful Baby filed its Complaint, asserting that Defendants committed twenty-four counts of copyright infringement.^[5] After the Clerk of Court entered a default certificate,^[6] Bountiful Baby moved for default judgment and a permanent injunction.^[7] On November 2, 2022, the court granted the motion as to ADC.^[8] The following month, Bountiful Baby moved for leave to file another motion for default judgment.^[9] The court granted it leave to do so.^[10] And on April 13, 2023, Bountiful Baby filed its Second Motion for Default Judgment and Permanent Injunction.^[11] The court then granted default judgment as to OTD and denied judgment against AUS, RDG, and NPK because Bountiful Baby had failed to demonstrate that the court had personal jurisdiction over those defendants.^[12] On May 17, 2023, the court entered judgment against ADC and OTD.^[13] Bountiful Baby filed its Motion for Reconsideration on June 6, 2023.^[14] It asks the court to reconsider the denial of default judgment against AUS and RDG.^[15]

STANDARD

Bountiful Baby moves for reconsideration under Rule 54(b) or Rule 59(e) of the Federal Rules of Civil Procedure.^[16] Rule 54(b) permits a court to revise “any order . . . that adjudicates fewer than all the claims . . . at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities.”^[17] On the other hand, Rule 59(e) pertains to motions “to alter or amend a judgment” and such motions must be filed “no later than 28 days after the entry of the judgment.”^[18] The court need not determine which Rule applies here because the result is the same under either standard.

DISCUSSION

The court previously found that Bountiful Baby had not demonstrated that AUS and RDG consented to jurisdiction in Utah. The two defendants submitted counter-notifications to Amazon in response to Bountiful Baby's infringement notices. Under 17 U.S.C. § 512(g), a subscriber who owns the allegedly infringing material may contest a copyright infringement accusation. But by doing so a foreign subscriber consents to jurisdiction in “any judicial district in which the service provider may be found[.]”^[19] The court reasoned that Bountiful Baby had not shown Amazon was “found” in Utah.^[20]

Bountiful Baby asserts the court erred. It offers three reasons for why AUS and RDG consented to jurisdiction in Utah: § 512(g)(3)(D)'s ordinary meaning supports consent, the court must construe any statutory ambiguity against AUS and RDG, and the court improperly applied a constitutional due process analysis. The court begins with the ordinary-meaning argument.

I. Bountiful Baby Does Not Demonstrate that the Ordinary Meaning of “Found” Supports Jurisdiction in Utah.

Bountiful Baby first contends the ordinary meaning of the phrase “may be found” means a service provider is found anywhere the provider maintains a physical presence.^[21] Amazon has “multiple facilities” in Utah, so “the [c]ourt can take judicial notice that Amazon has at least one place of business in Utah.”^[22] Because Amazon allegedly has a physical presence in Utah,^[23]Bountiful Baby argues Amazon may be “found” in the state for purposes of § 512(g)(3)(D).^[24]

To support its desired interpretation for “found,” Bountiful Baby cites several district courts that address counter-notifications under § 512(g)(3)(D). Yet without exception, those cases involved defendants that had consented to jurisdiction in a given state because that state hosted the defendant's principal place of business or was the state of incorporation.^[25] Other cases involved similar facts.^[26] Such is not the case here. Amazon is incorporated in Delaware and its principal place of business is in Washington.^[27]

Bountiful Baby also identifies two district court opinions that it says implicitly found jurisdiction over foreign defendants that submitted counter-notifications to Amazon.^[28] But the courts in those two cases did not address or explain why Amazon could be “found” in those jurisdictions, namely, the Central District of California^[29] and the Southern District of New York,^[30] for jurisdictional purposes. Neither of these opinions analyze personal jurisdiction.^[31] This court will not find as persuasive and use its discretion to follow a non-binding case where the issue at bar was not analyzed.

Bountiful Baby also directs the court's attention to In re Eli Lilly & Co.^[32] There, the Fourth Circuit conducted an ordinary meaning analysis to define the word “found” in 28 U.S.C. § 1782(a). The court used the Black's Law Dictionary definition for “found” and considered the use of the word in other statutes to determine that a corporation that was not physically present in a district could not be “found” there for § 1782(a) purposes.^[33]

Following similar reasoning as In re Eli Lilly & Co., the court begins with the statutory text for § 512(g)(3)(D). The court “interprets a statute in accord with the ordinary public meaning of its terms at the time of its enactment.”^[34] “We give undefined terms their ordinary meanings, considering both the specific context in which the word is used and the broader context of the statute as a whole.”^[35] “If the statutory language is clear, our analysis ordinarily ends.”^[36]

Section 512(g)(3)(D) directs that if a foreign subscriber submits a counter-notification, that subscriber consents to jurisdiction “for any judicial district in which the service provider may be found.”^[37] The essential term is “found.” “Because Congress did not define this term, its common and ordinary usage may be obtained by reference to a dictionary.”^[38] Discussing where a corporation may be found, the relevant edition of Black's Law Dictionary states “it is necessary that [the corporation] be doing business in such state through an officer or agent or by statutory authority in such manner as to render it liable then to suit and to constructive or substituted service of process.”^[39]

But Bountiful Baby does not engage with this definition at all. It simply asks the court to take judicial notice that Amazon has “multiple facilities” in Utah, decide that those facilities constitute a “place of business” in Utah, and therefore conclude that Amazon may be “found” in Utah.^[40] Bountiful Baby does not explain how, as an ordinary meaning analysis would require, Amazon is “doing business in [Utah] .... in such manner as to render it liable then to suit and to constructive or substituted service of process.”^[41] Plaintiff bears the burden on establishing jurisdiction,^[42] but has failed to carry it.

II. AUS and RDG Did Not Draft the Consent-to-Jurisdiction Language.

Next, Bountiful Baby contends that the court should construe any ambiguity in the counter-notifications against AUS and RDG, the purported drafters.^[43] It asserts the counter- notifications equate to forum selection clauses.^[44] Since AUS and RDG submitted counternotifications with the “consent-to-jurisdiction language[,]” Bountiful Baby argues the court should interpret any ambiguity against them.^[45]

Bountiful Baby's contention relies on a key premise-that AUS and RDG drafted the counter-notification language.^[46] Not so. The specific language is mandated by § 512(g)(3)(D).^[47]The two defendants simply inserted the statutory language into their counter-notifications. Congress-not AUS or RDG-drafted it.^[48] And the issue here concerns counter-notifications sent to Amazon, not arm's length contracts or agreements between Bountiful Baby and the defendants.^[49] The court thus rejects Bountiful Baby's ambiguity argument.

Finally, Bountiful Baby requests that the court reconsider the part of its prior order borrowing from the copyright venue provision to analyze the meaning of “may be found.”^[50]Having decided the issue instead on the ordinary meaning standard discussed above, the court vacates that portion of its earlier order.^[51]

In sum,...