Facebook, Inc. v. Sahinturk

• Decision Date: 02 May 2022
• Docket Number: 20-cv-08153-JSC
• Parties: FACEBOOK, INC., et al., Plaintiffs, v. ENSAR SAHINTURK, Defendant.
• Court: U.S. District Court — Northern District of California

FACEBOOK, INC., et al., Plaintiffs, v. ENSAR SAHINTURK, Defendant.

No. 20-cv-08153-JSC

United States District Court, N.D. California

May 2, 2022

ORDER RE: MOTION FOR DEFAULT JUDGMENT RE: DKT. NO 29

JACQUELINE SCOTT CORLEY UNITED STATES DISTRICT JUDGE

Facebook Inc. and Instagram, LLC (“Plaintiffs”), filed suit against Ensar Sahinturk, alleging cybersquatting and trademark dilution in violation of the Lanham Act, 15 U.S.C §§ 1125(c) and (d), and state law claims of breach of contract and unjust enrichment. Now pending before the Court is Plaintiffs' motion for default judgment seeking damages, permanent injunctive relief, and attorneys' fees and costs. (Dkt. No. 29.) For the reasons set forth below, the Court GRANTS Plaintiffs' motion.

BACKGROUND

I. Complaint Allegations

Plaintiffs are Delaware corporations with their principal places of business in Menlo Park, California. (Dkt. No. 1 ¶¶ 3-4.) Instagram is a subsidiary of Facebook. (Id. ¶ 4.) Mr. Sahinturk is an individual residing in Istanbul, Turkey. (Id. ¶ 5.) Mr. Sahinturk controlled a network of website domains with names similar to Instagram: jolygram.com, imggram.com, imggram.net, finalgram.com, and ingram.ws (collectively, the “domain names”). (Id. ¶ 26.) Mr. Sahinturk registered jolygram.com, imggram.com, and imggram.net in his name. (Dkt. No. 1 ¶ 26.) Finalgram.com and ingram.ws were registered anonymously; however, Mr. Sahinturk registered these domain names as well. (Id.)

“Instagram” is a federally registered trademark, the rights to which are owned exclusively by Instagram. (Dkt. No. 1 ¶¶ 23, 24; Dkt. No. 1-1 at 5-17.) Mr. Sahinturk's reference to his services as “Jolygram, ” Imggram, ” “Finalgram, ” and “Ingram” and the listing of copyrights for these names on his websites dilutes the Instagram trademarks (“IG Marks”). (Id. ¶ 29; Dkt. No. 11 at 38-46.)

Mr. Sahinturk created Instagram clone websites that were hosted under these Domain Names by “scraping” thousands of publicly-available Instagram accounts and republishing the improperly collected Instagram user data on Mr. Sahinturk's clone sites. (Dkt. No. 1 ¶¶ 32, 34.) “Scraping is a form of data collection that relies on unauthorized automation for the purpose of extracting data from a website or app.” (Id. ¶ 30.) Mr. Sahinturk's clone websites provided his users functions not available in the Official Instagram App or website, such as the ability to download Instagram user data. (Id. ¶ 35.) Mr. Sahinturk's clone websites also did not require users to agree to Instagram's Terms of Use (“TOU”) or any user authentication on Instagram before using the website. (Id.) Moreover, Mr. Sahinturk generated revenue by displaying ads on his clone websites. (Id.)

II. Procedural History

In November 2020, Plaintiffs filed this action alleging trademark infringement and state law claims. (Dkt. No. 1.) Prior to filing the action, Plaintiffs sent multiple cease and desist letters to Mr. Sahinturk, revoked his access to Instagram and Facebook, and disabled thousands of Instagram accounts that Mr. Sahinturk used to scrape data from Instagram. (Id. ¶¶ 39-40.)

After receipt of one of the cease and desist letters, Mr. Sahinturk temporarily stopped operating the jolygram.com website. (Id. ¶ 43.) Upon discovering that Mr. Sahinturk had resumed operating jolygram.com and continued to operate other websites and to access Instagram by creating additional user accounts, Plaintiffs sent another cease and desist letter to Mr. Sahinturk and disabled his five remaining Facebook accounts. (Id. ¶¶ 44-46.) Plaintiffs then initiated service through the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 20 U.S.T. 361 (the “Hague Convention”) by using the physical address that Mr. Sahinturk previously provided to Facebook. (Dkt. No. 17 at 2, 4.) While service through the Hague Convention was pending, Plaintiffs and Mr. Sahinturk conferred by Zoom videoconference. (Id. at 5.) During the videoconference, Mr. Sahinturk stated that he had reviewed the Complaint, then proceeded to ignore Plaintiffs' emails following the videoconference. (Dkt. No. 17-1 at ¶ 6.) The Turkish Ministry of Justice eventually determined that Mr. Sahinturk's address was invalid and could not serve Mr. Sahinturk in accordance with the Hague Convention. (Id. at ¶ 3.)

Plaintiffs thereafter filed a motion to effectuate service by email. (Dkt. No. 17.) The Court granted the motion on September 21, 2021, and Plaintiffs served Mr. Sahinturk by email that same day. (Dkt. Nos. 18 and 19.) Because Mr. Sahinturk did not respond to the Complaint, Plaintiffs requested entry of default against Mr. Sahinturk on October 13, 2021. (Dkt. No. 20.) The Clerk entered default on January 3, 2022. (Dkt. No. 26.) Plaintiffs now move for default judgment against Mr. Sahinturk. (Dkt. No. 29.)

DISCUSSION

I. Jurisdiction

District courts have an affirmative duty to examine their jurisdiction-both subject matter and personal jurisdiction-when default judgment is sought against a non-appearing party. See In Re Tuli, 172 F.3d 707, 712 (9th Cir. 1999).

A. Subject Matter Jurisdiction

The Court has federal question jurisdiction under 28 U.S.C. § 1331 because Plaintiffs plead trademark infringement under the Lanham Act. (Dkt. No. 1 ¶ 6.) The Court has supplemental jurisdiction over the state law claims alleged in the Complaint under 28 U.S.C. § 1367. Supplemental jurisdiction exists because these claims emerge from the same nucleus or set of operative facts as Plaintiffs' federal causes of action. (Dkt. No. 1 ¶ 7.) Alternatively, the Court has diversity jurisdiction under 28 U.S.C. § 1332 over all causes of action because complete diversity exists and the amount in controversy exceeds $75, 000. (Id. ¶ 8.)

B. Personal Jurisdiction

Plaintiffs bear the burden of establishing personal jurisdiction over a nonresident defendant. Facebook, Inc. v. Pederson, 868 F.Supp.2d 953, 957 (N.D. Cal. 2012). They make two arguments as to why the Court has personal jurisdiction over c: 1) Mr. Sahinturk consented to the Court's jurisdiction by agreeing to a forum selection clause, and 2) Mr. Sahinturk has purposefully availed himself of the benefits and protections of a California forum. (Dkt. No. 29 at 8-11.)

1. Forum Selection Clause

Forum selection clauses constitute consent to personal jurisdiction if “freely negotiated” and not “unreasonable and unjust.” Chain v. Society Expeditions, Inc., 39 F.3d 1398, 1406 (9th Cir. 1994) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 n.14 (1985)). Forum selection clauses are presumptively valid, M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10 (1972), and courts “apply federal law to the interpretation of the forum selection clause.” Doe 1 v. AOL LLC, 552 F.3d 1077, 1081 (9th Cir. 2009) (citing Manetti-Farrow, Inc. v. Gucci Am., Inc., 858 F.2d 509, 513 (9th Cir. 1988)).

“Contract terms are to be given their ordinary meaning, and when the terms of a contract are clear, the intent of the parties must be ascertained from the contract itself. Whenever possible, the plain language of the contract should be considered first.” Klamath Water Users Protective Ass'n v. Patterson, 204 F.3d 1206, 1210 (9th Cir. 1999). A contract is interpreted as a whole and each part is interpreted with reference to the whole. Id. “A primary rule of interpretation is ‘[t]hat the common or normal meaning of language will be given to the words of a contract unless circumstances show that in a particular case a special meaning should be attached to it.'” Hunt Wesson Foods, Inc. v. Supreme Oil Co., 817 F.2d 75, 77 (9th Cir. 1987) (quoting 4 Williston, A Treatise on the Law of Contracts, § 618 (W. Jaeger 3d ed. 1961)). However, when the intent of the parties cannot be discerned, California courts construe ambiguous contract language “against the drafter.” Lamps Plus, Inc. v. Varela, 139 S.Ct. 1407, 1417 (2019); see also Royal Alliance Assocs., Inc. v. Mora, No. 3:15-cv-03706-JST, 2016 WL 926907, at *6 (N.D. Cal. Mar. 10, 2016).

Here, the operative forum selection clause is found in Instagram's TOU that is applicable to users in Turkey:

If you are a consumer, the laws of the country in which you reside will apply to any claim, cause of action, or dispute you have against us that arises out of or relates to these Terms (“claim”), and you may resolve your claim in any competent court in that country that has jurisdiction over the claim. In all other cases, you agree that the claim must be resolved exclusively in the U.S. District Court for the Northern District of California or a state court located in San Mateo County, that you submit to the personal jurisdiction of either of these courts for the purpose of litigating any such claim, and that the laws of the State of California will govern these Terms and any claim, without regard to conflict of law provisions.

(Dkt. No. 29-1 at 2, 7.) A plain reading of this paragraph does not support Plaintiffs' bald assertion that Mr Sahinturk consented to a Northern District of California forum. The forum selection clause defines “claim” as “any claim, cause of action, or dispute you have against us that arises out of or relates to these Terms (“claim”)” (emphasis added). (Dkt. No. 29-1 at 7.) Thus, when the paragraph states that “[i]n all other cases, you agree that the claim must be resolved exclusively in the U.S. District Court for the Northern District of California . . . you submit to the personal jurisdiction of either of these courts for the purpose of litigating “any such claim, ” (id. (emphasis added)), “the claim” and “any such claim, ” refers to a claim that the user has against Instagram. While the language regarding the user agreeing to submit to the personal jurisdiction...