Glennon v. Rosenblum

Decision Date03 July 2018
Docket NumberCase No.: 5:16-cv-00804-MHH
Citation325 F.Supp.3d 1255
Parties Monika GLENNON, Plaintiff, v. Mollie ROSENBLUM, et al., Defendants.
CourtU.S. District Court — Northern District of Alabama

Anthony S. Bocchi, Cullen and Dykman LLP, Hackensack, NJ, George P. Kobler, KoblerIP, LLC, Huntsville, AL, for Plaintiff.

MEMORANDUM OPINION AND ORDER

MADELINE HUGHES HAIKALA, UNITED STATES DISTRICT JUDGE

Plaintiff Monika Glennon brings this action for copyright infringement under 17 U.S.C. § 501. (Doc. 1). Ms. Glennon also brings claims for libel, invasion of privacy, outrage, and tortious interference with business relations under Alabama law. (Doc. 1). Defendant Mollie Rosenblum has not appeared or otherwise defended this case. On June 20, 2017, the Clerk made an entry of default against Ms. Rosenblum. (Doc. 27). Ms. Glennon since has filed a motion for summary judgment against Ms. Rosenblum. (Doc. 32).

On April 23, 2018, the Court notified Ms. Glennon that, in light of the Clerk's entry of default against Ms. Rosenblum, the Court was inclined to construe her motion for summary judgment as a motion for default judgment. (Doc. 37). Because Ms. Glennon has not objected to this approach, the Court construes her motion as one for default judgment. For the reasons stated below, the Court grants Ms. Glennon's motion and enters judgment in her favor on her claims against Ms. Rosenblum.

I. STANDARD OF REVIEW

Federal Rule of Civil Procedure 55 establishes a two-step procedure for obtaining a default judgment. First, when a defendant fails to plead or otherwise defend a lawsuit, as in this case, the clerk of court is authorized to enter a clerk's default. Fed. R. Civ. P. 55(a). Second, after entry of the clerk's default, if the defendant is not an infant or an incompetent person, a court may enter a default judgment against the defendant because of the defendant's failure to appear or defend. Fed. R. Civ. P. 55(b)(2). "A default judgment must not differ in kind from, or exceed in amount, what is demanded in the pleadings." Fed. R. Civ. P. 54(c).

"A motion for default judgment is not granted as a matter of right." Pitts ex rel. Pitts v. Seneca Sports, Inc. , 321 F.Supp.2d 1353, 1356 (S.D. Ga. 2004) (internal footnote omitted). After a clerk enters a default pursuant to Rule 55(a), a court must review the sufficiency of the complaint and its underlying substantive merits to determine whether a moving party is entitled to default judgment. Chudasama v. Mazda Motor Corp. , 123 F.3d 1353, 1370 n.41 (11th Cir. 1997). A court must ensure that the well-pleaded allegations in the complaint state a substantive cause of action and that a sufficient basis exists in the pleadings for the relief sought. Cotton v. Mass. Mut. Life Ins. Co. , 402 F.3d 1267, 1278 (11th Cir. 2005). In addition to the pleadings, a court may consider evidence presented in the form of an affidavit or declaration. Frazier v. Absolute Collection Serv., Inc. , 767 F.Supp.2d 1354, 1362 (N.D. Ga. 2011). A defaulting defendant "admits the plaintiff's well-pleaded allegations of fact" for purposes of liability. Buchanan v. Bowman , 820 F.2d 359, 361 (11th Cir. 1987) (quoting Nishimatsu Constr. Co., Ltd. v. Houston Nat'l Bank , 515 F.2d 1200, 1206 (5th Cir. 1975) (internal quotation marks omitted) ).

II. FACTUAL BACKGROUND

Although Ms. Rosenblum has not appeared in this action, she has submitted an affidavit to Ms. Glennon's counsel in which she recounts her role in the facts underlying this case. (Doc. 33-2). The Court relies on Ms. Rosenblum's affidavit, Ms. Glennon's affidavit, and the allegations in Ms. Glennon's second amended complaint to establish the facts examined in this opinion.

Monika Glennon is a real estate agent with RE/MAX Alliance in Huntsville, Alabama. (Doc. 18, ¶ 10). In 2013, Ms. Glennon hired a photographer to take a professional portrait of her which Ms. Glennon since has used to promote her business in paper and digital media. (Doc. 18, ¶ 11; Doc. 18-2, p. 2). The photographer later transferred ownership of the image to Ms. Glennon, and Ms. Glennon copyrighted the image. (Doc. 18, ¶ 12; Doc. 18-2, p. 2).

On September 16, 2015, Ms. Rosenblum anonymously posted a story purportedly about Ms. Glennon to a website called "She's a Homewrecker." (Doc. 18, ¶ 14; Doc. 33-2, ¶ 4). The website markets itself as a forum in which aggrieved wives can publically shame women who allegedly have committed adultery with their husbands. (Doc. 18, ¶ 13; Doc. 18-3, pp. 2–3.) Ms. Rosenblum narrated her tale of salacious events from the perspective of such a wife and included Ms. Glennon's full name and her professional portrait in the posting. (Doc. 18, ¶ 14; Doc. 18-3, p. 2; Doc. 33-2, ¶ 8).

Ms. Rosenblum asserted that she and her husband hired Ms. Glennon to help with their search for a new home in the Huntsville area. (Doc. 18-2, p. 2; Doc. 33-2, ¶ 5). According to Ms. Rosenblum, when she arrived at a potential property, she found her husband inside the house engaging in sexual acts with Ms. Glennon. (Doc. 18-3, pp. 2–3; Doc. 33-2, ¶ 5). In the story that she posted, Ms. Rosenblum graphically recounted the details of the alleged adulterous encounter, referring to Ms. Glennon as "a nasty slut," and "a disgusting skank of a woman." (Doc. 18-3, p. 3; Doc. 33-2, ¶ 6). Ms. Rosenblum concluded the post by telling readers: "DO NOT USE THIS WOMAN AS A REALTOR." (Doc. 18-3, p. 3).

As both the complaint and the parties' affidavits indicate, the story was false. (Doc. 18, ¶ 18; Doc. 33-2, ¶¶ 13, 17, 18). In fact, when she posted the story, Ms. Rosenblum had not met Ms. Glennon. (Doc. 33-1, ¶ 5; Doc. 33-2, ¶ 13). Neither Ms. Rosenblum nor her husband, who was deceased at the time of the alleged encounter, ever hired Ms. Glennon as a realtor. (Doc. 33-1, ¶ 5; Doc. 33-2, ¶ 13). Although Ms. Rosenblum's motives for targeting Ms. Glennon are not clear, she alludes to having read online posts by Ms. Glennon which led Ms. Rosenblum to believe, incorrectly, that Ms. Glennon was anti-Semitic. (Doc. 33-2, ¶¶ 18, 19, 21).

The false story about Ms. Glennon became one of the most popular pieces on "She's a Homewrecker," and it attracted a substantial amount of commentary from readers of the site who referred to Ms. Glennon as a "tramp," among other things. (Doc. 18, ¶ 16; Doc. 18-3, pp. 3–6; Doc. 33-2, ¶ 9). Readers then shared the story in other online forums including Facebook and the website "BadBiz Report." (Doc. 33-2, ¶ 9). The story reached the height of its popularity when it was picked up by the news outlet AL.com and by a local television station. (Doc. 33-1, ¶ 7; Doc. 33-2, ¶¶ 11, 12). Ms. Rosenblum's story also was reposted on RE/MAX's website. (Doc. 33-1, ¶ 11; Doc. 33-2, ¶ 10).

Sometime after posting the story, Ms. Rosenblum relented and contacted various websites where the story was posted in an unsuccessful attempt to have it removed. (Doc. 33-2, ¶¶ 19–21). The websites that continue to make the story available have informed both Ms. Glennon and Ms. Rosenblum that they will not de-index the story without a court order declaring the story to be false. (Doc. 33-1, ¶ 14; Doc. 33-2, ¶ 20).

III. DISCUSSION
a. Subject Matter Jurisdiction

Before the Court enters a default judgment, the Court first must ensure that it has subject matter jurisdiction over the case. Smarter Every Day, LLC v. Nunez , 2017 WL 1247500, at *2 (N.D. Ala. Apr. 5, 2017) (citing Sys. Pipe & Supply, Inc. v. M/V Viktor Kurnatovskiy , 242 F.3d 322, 324 (5th Cir. 2001) ). In her second amended complaint, Ms. Glennon asserts that the Court may exercise jurisdiction over her federal copyright claim pursuant to 28 U.S.C. § 1331 and exercise supplemental jurisdiction over her state law claims pursuant to 28 U.S.C. § 1367. (Doc. 18, ¶ 8).

When a plaintiff's well-pleaded complaint alleges a cause of action arising under federal law, the federal courts have subject matter jurisdiction to adjudicate the federal claim. Lobo v. Celebrity Cruises, Inc. , 704 F.3d 882, 891 (11th Cir. 2013) (citing Chicago v. Int'l Coll. of Surgeons , 522 U.S. 156, 163, 118 S.Ct. 523, 139 L.Ed.2d 525 (1997) ). In Count One of her second amended complaint, Ms. Glennon asserts a claim for copyright infringement under 17 U.S.C. § 501. (Doc. 18, p. 5). "Copyright infringement has two elements: (1) ownership of a valid copyright, and (2) copying of [protectable] elements.’ " Home Design Servs. Inc. v. Turner Heritage Homes, Inc. , 825 F.3d 1314, 1320 (11th Cir. 2016) (quoting Miller's Ale House, Inc. v. Boynton Carolina Ale House, LLC , 702 F.3d 1312, 1325 (11th Cir. 2012) ). In support of her copyright claim, Ms. Glennon alleges that Ms. Rosenblum "copied and distributed" a copyrighted image without permission and that Ms. Glennon owns the rights to that image. (Doc. 18, p. 5). The Court examines the substance of Ms. Glennon's copyright claim below, but for jurisdictional purposes, the Court is satisfied that Ms. Glennon has sufficiently alleged a claim arising under federal law. See Steel Co. v. Citizens for a Better Env't. , 523 U.S. 83, 89, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998).

The Court may exercise supplemental jurisdiction over Ms. Glennon's state law tort claims if those claims are so related to the federal claim that "they form part of the same case or controversy." 28 U.S.C. § 1367(a). Claims form a part of the same case or controversy when they arise from "a common nucleus of operative fact." Lucero v. Trosch , 121 F.3d 591, 597 (11th Cir. 1997) (citing United Mine Workers of Am. v. Gibbs , 383 U.S. 715, 724–25, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966) ). Ms. Glennon alleges that Ms. Rosenblum violated federal copyright law when she published the registered image of Ms. Glennon on a public website as part of the defamatory story. (Doc. 18, ¶¶ 14, 20). Ms. Rosenblum's publication of the false story to which the image was attached is the basic factual nucleus underlying each of Ms. Glennon's state law tort claims. (Doc. 18, ¶¶ 14–18). Consequently,...

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