736 F.3d 1339 (11th Cir. 2013), 12-12501, Louis Vuitton Malletier, S.A. v. Mosseri
|Citation:||736 F.3d 1339, 108 U.S.P.Q.2d 1956|
|Opinion Judge:||HULL, Circuit Judge:|
|Party Name:||LOUIS VUITTON MALLETIER, S.A., a foreign business entity, Plaintiff-Appellee, v. Joseph MOSSERI, Defendant-Appellant.|
|Attorney:||Stephen M. Gaffigan, Stephen M. Gaffigan, PA, Fort Lauderdale, FL, Susan S. Lerner, Esq., Coral Gables, FL, for Plaintiff-Appellee. Michael I. Santucci, Daniel Devine, Allison M. Sinclair, Santucci Priore, PL, Fort Lauderdale, FL, for Defendant-Appellant.|
|Judge Panel:||Before HULL and MARTIN, Circuit Judges, and HINKLE,[*] District Judge.|
|Case Date:||December 02, 2013|
|Court:||United States Courts of Appeals, Court of Appeals for the Eleventh Circuit|
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Appeal from the United States District Court for the Southern District of Florida. D.C. Docket No. 0:10-cv-61839-JEM.
In this federal trademark infringement case, appellant Joseph Mosseri appeals the district court's denial of his motion under Federal Rule of Civil Procedure 60(b)(4) to vacate a default judgment entered against him. Appellant Mosseri does not contest that he was personally served with the lawsuit, that he received the motion for default judgment, and that he did not respond at all. Rather, over six months after service, Mosseri filed a Rule 60(b)(4) motion contending that the judgment is void because the district court in Florida lacked jurisdiction over his person. After careful review, and with the benefit of oral argument, we conclude that the district
court did not commit reversible error in denying Mosseri's motion, and we affirm.
I. FACTS AND PROCEDURAL HISTORY
The plaintiff-appellee, Louis Vuitton Malletier, S.A. (" Louis Vuitton" ) sells high-end handbags and similar products. Louis Vuitton operates retail outlets and boutiques in the Southern District of Florida and elsewhere. Unauthorized websites advertised purported Louis Vuitton bags, including in Florida. The sample advertised price was $159. Louis Vuitton knew the bags were counterfeit but did not know who was selling them. The procedural history shows how Louis Vuitton discovered defendant Joseph Mosseri was selling the counterfeit bags.
A. The Original Complaint Against Unidentified Defendants
In 2010, in the Southern District of Florida, Louis Vuitton filed a complaint against unidentified defendants who were operating websites under the domain names " pendoza.com" and " lazata.com." Louis Vuitton's original complaint stated that Louis Vuitton manufactured and distributed throughout the world, including within the Southern District of Florida, high quality luggage, belts, handbags, and wallets under federally registered trademarks. According to the original complaint, through the use of the " pendoza.com" and " lazata.com" websites, the unidentified defendants had sold counterfeit and trademark infringing luggage, belts, handbags, and wallets to consumers in the Southern District of Florida.
Louis Vuitton brought claims for trademark counterfeiting and infringement under 15 U.S.C. § 1114 and for false designation of origin under 15 U.S.C. § 1125(a). Louis Vuitton requested: (1) a permanent injunction; (2) an order that the defendants' websites be permanently disabled; and (3) actual damages, trebled or statutory damages under 15 U.S.C. § 1117(c)(2) in the amount of $2,000,000 " per each counterfeit Louis Vuitton Mark used and product sold."
B. Expedited Discovery to Identify Website Operators
Louis Vuitton requested expedited discovery to identify the website operators. Louis Vuitton filed an affidavit of Robert Holmes, a private investigator. Holmes attested that, in February 2010, he purchased a counterfeit Louis Vuitton " cosmetic pouchette" from " lazata.com." Holmes received this item in a package bearing a return address of " Pierre, LAZ Shipping, 1204 Ave U, Brooklyn, N.Y. 11229." 1 By exchanging electronic information with the website, Holmes identified: (1) the website's IP address as being issued by CSC Holdings, Inc.; and (2) HCI Fashion, Inc. of Brooklyn, New York as being the payee, although Holmes was unable to tell if this entity operated the website or was just a third party payment processor. From New York corporate records, Holmes learned the incorporator of HCI Fashion was " Inna Orel" and HCI Fashion's address was 1204 Avenue U, Brooklyn, New York 11229. An entity known as " Mail Drop Corp." owned that address.
The district court granted Louis Vuitton's requests to subpoena records from: (1) CSC Holdings; (2) Inna Orel; (3) Mail Drop Corp.; (4) United Parcel Service of America, Inc. (" UPS" ); and (5) Verizon New York, Inc. (" Verizon" ).
Louis Vuitton also filed another affidavit from its investigator Holmes describing a second Internet purchase. In October 2010, Holmes purchased a Louis Vuitton
branded canvas billfold from the " pendoza.com." website. UPS delivered the billfold to Holmes in Wilton Manors, Florida, and the payee information he received included a Verizon telephone number, which was (718) 332-0085. As discussed later, Verizon records showed who owned that number. The package had the same return address as the one on the package received after Holmes's February 2010 purchase from " lazata.com."
C. The First Amended Complaint Against Chera and Zakmo Corporation
Through this expedited discovery, Louis Vuitton initially concluded that the operator of " lazata.com" and " pendoza.com" was Raymond V. Chera, who was affiliated with Zakmo Corporation. Louis Vuitton identified Chera based on Mail Drop Corp. records showing that Chera rented the mailbox registered to HCI Fashion. Louis Vuitton amended its complaint to name " Raymond V. Chera" and " Zakmo Corp." as defendants.
D. Further Investigation and Identification of Defendant Joseph Mosseri
Louis Vuitton also received records from Verizon. The Verizon documents showed that JEM Marketing, Inc. (" JEM Marketing" ), a corporation with the address 2167 East 21st Street, Brooklyn, New York, 11229, owned the phone number— (718) 332-0085— associated with " pendoza.com" and the payee in the billfold purchase. Verizon identified (718) 332-0085 as a land line number for JEM Marketing.
The Verizon records also showed that a second number— (917) 669-2544— was associated with this JEM Marketing account. Another Louis Vuitton investigator, Linda Kadluboski, testified that this second phone number— (917) 669-2594— was listed " to Joseph Mosseri at 2167 East 21st Street in Brooklyn, New York."
Chera's attorney contacted Louis Vuitton's attorney and admitted that Chera had rented a mailbox for the purposes of sending goods marketed on the " pendoza.com" and " lazata.com" websites. However, Chera's attorney stated that Chera had done so on behalf of another person, Joseph Mosseri. Chera's attorney provided Louis Vuitton with Mosseri's personal cellular telephone number of (917) 669-2544, which was the same as the second number associated with JEM Marketing's Verizon account.
Louis Vuitton then obtained New York state records showing JEM Marketing's " Chairman or Chief Executive Officer" was Joseph Mosseri. In sum, Louis Vuitton's investigation revealed that the payee JEM Marketing and its CEO Mosseri were using the same phone number— (917) 669-2544— and same address— 2167 East 21st Street, Brooklyn, New York.
E. The Second Amended Complaint Against Joseph Mosseri
Having concluded that it was Mosseri, not Chera, who was actually behind the websites " pendoza.com" and " lazata.com," Louis Vuitton dismissed Chera as a defendant and filed a motion for leave to file a second amended complaint (the " complaint" ) adding Mosseri as a defendant. The district court granted the motion, and Louis Vuitton filed the complaint against Mosseri.
The complaint repeated the same factual allegations and claims as those in the original complaint. Louis Vuitton also alleged that defendant Mosseri engaged in the above-described illegal counterfeiting and infringing activities knowingly and intentionally or with reckless disregard or willful blindness to Louis Vuitton's rights.
This time, the complaint included new allegations relevant to jurisdiction over Mosseri. For example, Louis Vuitton's
complaint alleged that the district court may " properly exercise personal jurisdiction over Defendants since all Defendants directly target business activities towards consumers in Florida and cause harm to Louis Vuitton's business within this District through at least the fully interactive Internet websites operating under the Subject Domain Names." The complaint defined " Subject Domain Names" to include " lazata.com" and " pendoza.com."
The complaint also alleged that Mosseri resides in New York but " conducts business throughout the United States, including within this Judicial District, through the operation of the fully interactive commercial websites operating under the Subject Domain Names."
Moreover, the complaint alleged that " Defendants engage in the offering for sale and sale of counterfeit and infringing Louis Vuitton branded products within this Judicial District through multiple fully interactive commercial websites operating under at least the Subject Domain Names" and " have purposefully directed their illegal activities towards consumers in ... Florida through the advertisement, offer to sell and sale of counterfeit ... goods into the State. " In another paragraph, the complaint stated that Louis Vuitton had determined that Mosseri and his co-defendants " are promoting and otherwise advertising, distributing, selling and/or offering for sale counterfeit products, including at least handbags and wallets, using trademarks which are exact...
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