Ferriss v. Alliance Publ'g, Inc.
| Decision Date | 06 December 2016 |
| Docket Number | Case No. 15-cv-05675-EMC |
| Parties | TIMOTHY FERRISS, et al., Plaintiffs, v. ALLIANCE PUBLISHING, INC., et al., Defendants. |
| Court | U.S. District Court — Northern District of California |
PUBLIC/REDACTED VERSION
Plaintiffs Timothy Ferriss and Krisa Performance, LLC brought this lawsuit against Defendants Peagan Twitty, Alliance Publishing, Inc. (API), Alliance Publishing Services, Inc. (APS) (collectively, the Alliance Defendants), Candice Cunningham, and Wealth Partners Publishing (collectively, the Wealth Partners Defendants) for the unauthorized use of Ferriss's name, photograph, persona, and likeness, as well as Krisa's protected trademarks, through a "get rich quick" scheme offered on the Internet and by mail. Docket No. 1 (Complaint); Docket No. 12 (First Amended Complaint).
Plaintiffs served the Alliance Defendants, Docket Nos. 10, 21, 22, but the Alliance Defendants have not appeared in the case. The Clerk of the Court entered the Alliance Defendants' default on March 8, 2016. Docket No. 34. When Defendant Twitty received the Clerk's entry of default, she contacted Plaintiffs' counsel claiming that her identity had been stolen, but failed to provide any evidence to support her claim. Docket No. 55 (Declaration of Lauren B. Cohen) at ¶¶ 3-5. In contrast, the Wealth Partners Defendants agreed to the entry of a final judgment and permanent injunction against Cunningham and Wealth Partners Publishing, Docket No. 68, which this Court approved on October 17, 2016, Docket No. 71.
Pending before the Court is Plaintiffs' motion to enter judgment against the Alliance Defendants for an injunctive relief barring future infringing conduct, compensatory and punitive damages, attorneys' fees, and costs of suit. Docket No. 53 (Plaintiffs' Motion for Default Judgment). This motion is GRANTED IN PART and DENIED IN PART.
Plaintiff Ferriss is an author, podcaster, and public speaker. Docket No. 12 (First Amended Complaint) at ¶¶ 14, 17. He wrote three number one New York Times best-selling books. Id. at ¶ 15. Ferris also has a podcast, which has been ranked number one podcast on all of iTunes and has exceeded tens of millions of downloads. Id. at ¶ 17. Ferriss has been featured by more than 100 media outlets, including The New York Times, and has been a popular guest lecturer at Princeton University since 2003. Id. at ¶ 18. In addition, Ferriss has been invited to speak at innovative organizations, including MIT, the Central Intelligence Agency, Microsoft, and has been invited to speak and keynote at world-renowned technology summits. Id. at ¶ 19.
Ferriss resides in San Francisco, California. Id. at ¶ 1. Ferriss also runs his business, including Krisa Performance, in San Francisco, California. See Docket No. 78 (Second Supplemental Declaration of Timothy Ferriss) at ¶ 4. San Francisco is where the vast majority of his business operations take place. See Docket No. 77 (Supplemental Brief) at 2.
Ferriss's company, Plaintiff Krisa Performance, LLC, owns the trademarks associated with his books, including the following federally registered marks: the TIM FERRISS marks (Registration Nos. 3,977,565 and 4,462,764); the TIMOTHY FERRISS marks (Registration Nos. 3,977,567 and 4,536,123); and THE 4-HOUR WORKWEEK marks (Registration Nos. 3,492,243 and 3,861,282) (the Krisa Trademarks). Docket No. 12 (First Amended Complaint) at ¶¶ 21-29.
Krisa is a California limited liability company located in San Francisco, California. Id. at ¶ 3. It has its principal place of business in San Francisco. Docket No. 78 (Second Supplemental Declaration of Timothy Ferriss) at ¶ 3.
The Alliance Defendants are engaged in direct marketing "get rich quick" scheme. DocketNo. 12 (First Amended Complaint) at ¶ 30. They advertised the scheme with their marketing flyer (hereinafter the Alliance Flyer), which they distributed through the mail and on the Internet. Id. at ¶¶ 30-31. Plaintiffs believe that Defendant Peagan Twitty is responsible for creating and distributing the Alliance Flyer. Id. at ¶ 32. The Alliance Flyer lists Alliance Publishing Inc. as the responsible corporate entity and uses the contact email address alliancepublishingonline@gmail.com. Id.; Docket No. 12, Ex. D ).
The scheme advertised in the Alliance Flyer purports to give individuals access to a system that will help them earn money. See Docket No. 12, Ex. D. To participate in the scheme, the Alliance Flyer directs individuals interested in the scheme to mail $97 to Alliance Publishing, Inc. and $100 to a "dealer" located in Fort Wayne, Indiana, who will then mail out the individual's flyers. Id. The Flyer does not, however, describe precisely how one earns money. At the top of the first page and on the third page of the flyer, the Alliance Flyer displays Ferriss's name and picture, as well as the Krisa Trademarks, and attributes a false quote to Ferriss endorsing the scheme. See id. Ferriss claims to have never endorsed the scheme or made the statement attributed him; nor did he authorize the use of his name or photograph in connection with the scheme. Docket No. 12 (First Amended Complaint) at ¶ 31.
Defendant Cunningham claims that she received the Alliance Flyer from Alliance Publishing, Inc. and subsequently sent payment to Alliance Publishing, Inc. in exchange for the rights to distribute the flyer. Docket No. 55 (Declaration of Lauren B. Cohen) at ¶ 8. Cunningham then revised the Alliance Flyer to include contact information for herself and Wealth Partners Publishing (hereinafter the Wealth Partners Flyer). Id. at ¶ 9; see Docket No. 12, Ex. F. Cunningham also claims that she distributed the Wealth Partners Flyer to approximately 27,500 individuals at the direction of Alliance Publishing, Inc. Docket No. 55 (Declaration of Lauren B. Cohen) at ¶ 10. The mailing list provided to Cunningham by Alliance Publishing Inc. contains approximately 35 pages of individuals with California addresses. Id. at ¶ 11.
On December 11, 2015, Plaintiffs brought this suit against Defendants Alliance Publishing,Inc., Wealth Partners Publishing, Candice Cunningham, and Peagan Twitty, alleging four causes of action: (1) violation of the right of publicity (Cal. Civ. Code § 3344); (2) false designation of origin (15 U.S.C. § 1125(a)); (3) trademark infringement (15 U.S.C. § 1114); and (4) unfair competition (Cal. Bus. & Prof. Code § 17200). Docket No. 1 (Complaint).
On December 15, 2015, Plaintiffs personally served Twitty, residing in Maryland. Docket No. 10. In attempting to serve API, Plaintiffs discovered that it is not an existing corporation. Docket No. 12 (First Amended Complaint) at ¶ 4; see Docket No. 17. Plaintiffs claim that Alliance Publishing, Inc. may be an alternate name for Alliance Publishing Services, Inc. or a fictitious business name for Twitty. Docket No. 12 (First Amended Complaint) at ¶¶ 4, 32.
On January 7, 2016, Plaintiffs filed their First Amended Complaint (FAC). Docket No. 12. The FAC clarified that API is a fictitious business name used by Defendant Twitty. Id. Additionally, the FAC added a new defendant, Alliance Publishing Services, Inc., a Florida corporation registered by Defendant Twitty. Id. at ¶ 3. On January 14, 2016, Plaintiffs personally served APS. Docket No. 21. Additionally, on January 19, 2016, Plaintiffs personally served Defendant Twitty on behalf of API, the alleged fictitious business name used by Twitty. Docket No. 22. Further, Plaintiffs served Defendant Twitty with the FAC by mail, per Fed. R. Civ. P. 5(a)(2). Docket No. 53 () at 6.
The Alliance Defendants failed to respond to either the Complaint or the FAC. Id. On March 8, 2016, the Clerk of the Court entered the default of the Alliance Defendants. Docket No. 34. On March 10, 2016, Twitty left a voicemail with the legal secretary of Plaintiffs' counsel, claiming that she had received the Clerk's notice. Docket No. 55 (Declaration of Lauren B. Cohen) at ¶ 2. On March 11, 2016, Plaintiffs' counsel Lauren B. Cohen spoke with Twitty regarding the case. Id. at ¶ 3. Twitty claimed that her identity had been stolen and that another person had set up the Alliance Publishing corporations using her name and was running the scam under her name. Id. When Cohen asked for proof of the alleged identity theft, Twitty claimed to have no such proof. Id. at ¶ 4. Twitty never provided Plaintiffs' counsel with any evidence corroborating her claim that her identity was stolen. Id.
Plaintiffs and the Wealth Partners Defendants agreed to the entry of a final judgment andpermanent injunction against Cunningham and Wealth Partners Publishing, Docket No. 68, which this Court approved on October 17, 2016, Docket No. 71.
Plaintiffs moved to enter default judgment against the Alliance Defendants. Docket No. 53 (Plaintiffs' Motion for Default Judgment).
The Alliance Defendants have not raised any jurisdictional challenge. However, this does not excuse the Court from its "affirmative duty to look into its jurisdiction over both the subject matter and the parties" when "entry of judgment is sought against a party who has failed to plead or otherwise defend." In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999).
Plaintiffs claim trademark infringement under 15 U.S.C. § 1114 and false designation of origin under 15 U.S.C. § 1125(a). See Docket No. 12 (First Amended Complaint) at ¶¶ 9, 49-61. These claims involve federal questions pursuant to 28 U.S.C. § 1331 and arise under federal law pursuant to 28 U.S.C. § 1338(a). Thus, the Court has subject matter jurisdiction...
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