Deveraux v. Sison
| Decision Date | 22 October 2021 |
| Docket Number | CV-18-04882-PHX-DJH |
| Parties | Sydni Deveraux, Plaintiff, v. Lauren Sison, et al., Defendants. |
| Court | U.S. District Court — District of Arizona |
Pending before the Court is Plaintiff Sydni Deveraux's (“Plaintiff”) Motion for Default Judgment (Doc 76). The Motion requests the Court enter default judgment against Defendant Lauren Sison (“Defendant”), who has failed to appear or otherwise defend this action. The Motion is unopposed. For the following reasons, the Court grants the Motion in part.
As alleged in Plaintiff's First Amended Complaint (“FAC”) and her Second Amended Complaint (“SAC”), the parties in this matter are peers and competitors in the burlesque performance industry. (Docs. 10 at ¶ 25; 23 at ¶¶ 2, 23). Plaintiff alleges that she herself is a “highly successful, award-winning and internationally acclaimed burlesque performer .” (Docs. 10 at ¶ 2; 23 at ¶ 2). Defendant and Plaintiff had consensual sex on two occasions, on November 1, 2015, and on January 2, 2016. (Docs. 10 at ¶ 32; 23 at ¶ 30). In about September of 2018, Defendant began telling people in the burlesque industry that Plaintiff had sexually assaulted her on November 1, 2015. (Docs. 10 at ¶ 54; 23 at ¶ 49). As a result of Defendant's false accusations, several producers of burlesque shows backed out of agreements to have Plaintiff perform at their shows. (Docs. 10 at ¶ 55; 23 at ¶ 57).
For relief, both the FAC and the SAC sought compensatory and punitive damages, a permanent injunction to prevent Defendant from disparaging or defaming Plaintiff, and an order directing Defendant to “undertake such remedial efforts . . . necessary to restore Plaintiff's reputation . . . .” (Docs. 10 at 16; 23 at 17). The Clerk of Court entered default against Defendant on June 5, 2021. (Doc. 18).
In her Motion for Default Judgment, Plaintiff seeks $284, 568.37 in damages. (Doc. 77 at 22). It also seeks an “order directing [Defendant] to remediate her false statements” and “an order enjoining [Defendant] from making the false statements and/or promotions” concerning Plaintiff. (Id. at 24).
Although courts strongly prefer to decide cases on their merits, they may use their discretion to enter default judgment. Eitel v. McCool, 782 F.2d 1470, 1472 (9th Cir. 1986); see also Fed. R. Civ. P. 55. If default judgment is sought against a party that failed to plead or otherwise defend, courts must first determine they have subject matter jurisdiction over the matter and personal jurisdiction over the party. In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999).
If a court finds jurisdiction, it must consider: “(1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff's substantive claim, (3) the sufficiency of the complaint, (4) the sum of money at stake in the action; (5) the possibility of a dispute concerning material facts; (6) whether the default was due to excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits.” Eitel, 782 F.2d at 1471-72. Upon default, a complaint's factual allegations are taken as true, except for those relating to damages. Geddes v. United Fin. Grp., 559 F.2d 557, 560 (9th Cir. 1977).
The Court will first address the question of jurisdiction.
Plaintiff argues the SAC's Lanham Act claim provides the Court with federal question jurisdiction under 28 U.S.C. § 1331. (Doc. 77 at 10). Although the Lanham Act claim was dismissed for reasons summarized below, the Court elects to retain supplemental jurisdiction over the state-law claims. See 28 U.S.C. § 1367. Therefore, the Court has subject matter jurisdiction over this matter.
As to personal jurisdiction, the pleadings allege Defendant is a citizen of Tennessee. (Docs. 10 at ¶ 7; 23 at ¶ 6). As alleged, Defendant has performed in Phoenix, Arizona. (Docs. 10 at ¶ 12; 23 at ¶ 24). In addition, the pleadings allege that Defendant contacted producers of a burlesque show in Phoenix, and she told them the false allegation that she had been sexually assaulted by Plaintiff. (Docs. 10 at ¶ 54; 23 at ¶ 56).
There is no federal statute governing personal jurisdiction in this case, so Arizona law applies, which allows personal jurisdiction to the maximum extent permissible by the United States Constitution. Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414, 416 (9th Cir. 1997). Plaintiff does not argue that the Court has general jurisdiction over Defendant. Therefore, the Court will determine whether it has specific jurisdiction over Defendant, a nonresident Defendant, with a three-part test:
(1) The nonresident defendant must do some act or consummate some transaction with the forum or perform some act by which [s]he purposefully avails h[er]self of the privilege of conducting activities in the forum, thereby invoking the benefits and protections[;] (2) [t]he claim must be one which arises out of or results from the defendant's forum-related activities[; and] (3) [e]xercise of jurisdiction must be reasonable.
Ballard v. Savage, 65 F.3d 1495, 1498 (9th Cir. 1995). “‘Purposeful availment' requires that the defendant ‘have performed some type of affirmative conduct which allows or promotes the transaction of business within the forum state.'” Sher v. Johnson, 911 F.2d 1357, 1362 (9th Cir. 1990) (quoting Sinatra v. National Enquirer, Inc., 854 F.2d 1191, 1195 (9th Cir. 1988)). Here, the Court finds Defendant, by performing in Arizona and by making defamatory statements in Arizona to an Arizona business, has purposefully availed herself of the privilege of conducting business in Arizona, that the claims at issue here arise from her activities in Arizona, and that the exercise of jurisdiction in this instance is reasonable. Therefore, the Court may exercise specific personal jurisdiction over Defendant.
Having found jurisdiction over the matter and over Defendant, the Court will proceed with its analysis of the Eitel factors.
There is a possibility that Plaintiff will suffer prejudice if she is unable to obtain relief for Defendant's actions. The Court notes that Plaintiff may have obtained some relief when she agreed to dismiss her claims against former Defendant Nina Duryea. (See Doc. 74). However, Plaintiff is still entitled to her claims against Defendant Lauren Sison, for which she would likely not be able to obtain relief without a default judgment. Therefore, this factor weighs in favor of entering default judgment.
“Under an Eitel analysis, the merits of plaintiff's substantive claims and the sufficiency of the complaint are often analyzed together.” Dr. JKL Ltd. v. HPC IT Educ. Ctr., 749 F.Supp.2d 1038, 1048 (N.D. Cal. 2010). The SAC brings five Claims. The First Claim is for false promotion in violation of the Lanham Act. (Doc. 23 at ¶¶ 58-61). The Second Claim is for unfair competition under Arizona law. (Doc. 23 at ¶¶ 62-66). The Third is for tortious interference with contract. (Id. at ¶¶ 67-76). The Fourth is for defamation per se. (Id. at ¶¶ 77-88). Finally, the Fifth is for intentional infliction of emotional distress. (Id. at ¶¶ 89-96).[1] The SAC does not sufficiently plead the First and Second Claims. First, a Lanham Act claim requires a showing of a false or misleading statement in commercial advertising. 15 U.S.C. § 1125(a)(1). By prior Order, the Court dismissed this claim because “isolated disparaging statements” such as those made by Defendant Nina Duryea, do not constitute commercial advertising. (Doc. 72 at 3-4) (quoting eMove Inc. v. SMD Software Inc., 2012 WL 1379063, at *5 (D. Ariz. Apr. 20, 2012). Although the Court's analysis did not explicitly cover the statements made by Defendant Lauren Sison, an analysis of those statements produces the same result. Defendant's statements are best characterized as isolated disparaging statements, not commercial advertisements that give rise to a Lanham Act claim. Therefore, the Court reiterates its holding that the SAC fails to plead a Lanham Act claim.
Second, the Court also finds that the SAC fails to sufficiently plead a claim for unfair competition under Arizona law. Such claims usually arise under trademark disputes because Fairway Constructors, Inc. v. Ahern, 970 P.2d 954, 956 (Ariz.Ct.App. 1998) (quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 120 (5th ed. 1984)). Here, there are no allegations that Defendant has attempted to palm off a product as one of Plaintiff's. It is unclear how, if at all, an unfair competition claim applies here. The Court will, therefore, not grant relief under the Second Claim. Despite the inadequacies of the First and Second Claims, the Court finds that the remaining claims are adequately alleged.
The Third Claim, tortious interference with contract, requires “(1) the existence of a valid contractual relationship; (2) knowledge of the relationship on the part of the interferor; (3) intentional interference inducing or causing a breach; (4) resultant damage to the party whose relationship has been disrupted; and (5) that the defendant acted improperly.” Snow v. W. Sav. & Loan Ass'n, 730 P.2d 204, 211 (Ariz. 1986) (quoting Wagenseller v. Scottsdale Mem'l Hosp., 710 P.2d 1025, 1041-43 (Ariz. 1985)). The SAC adequately alleges that...
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