Wahlhuetter v. Collegehumor.com
| Decision Date | 29 November 2021 |
| Docket Number | 19-CV-1501 (LGS) (BCM) |
| Parties | SEBASTIAN WAHLHUETTER, Plaintiff, v. COLLEGEHUMOR.COM, LLC, Defendant. |
| Court | U.S. District Court — Southern District of New York |
REPORT AND RECOMMENDATION TO THE HON. LORNA G SCHOFIELD
Sebastian Wahlhuetter filed this action on February 18, 2019, alleging violations of the Copyright Act, 17 U.S.C. §§ 106, 501, and the Digital Millennium Copyright Act (DMCA), 17 U.S.C. § 1202(b), by CollegeHumor.com, LLC (CollegeHumor), for the "unauthorized reproduction and public display of a copyrighted photograph of a Himalayan Dog, owned and registered by Wahlheutter [sic], a professional photographer." Compl. (Dkt No. 1) ¶ 1.[1] On May 29, 2019, the Honorable Lorna G. Schofield, United States District Judge, issued a Default Judgment (Dkt. No 24) and referred the case to me for a damages inquest. (Dkt No. 25.) For the reasons that follow, I recommend that the judgment be vacated, for lack of personal jurisdiction, and that the action be dismissed.
Except where otherwise indicated, the following facts are taken from the well-pleaded allegations in plaintiff's Complaint, which are deemed true for purposes of this inquest. See City of N.Y. v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 137 (2d Cir. 2011) (); Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009) () (internal citation omitted).
Wahlhuetter is a professional photographer, based in Vienna, Austria, who is in the business of licensing his photographs. Compl. ¶ 5. CollegeHumor is a Delaware limited liability company, registered to do business in the State of New York, with "a place of business" at 225 Park Avenue South, 17th Floor, New York, NY 10003. Id. ¶ 6. Wahlhuetter is the author of a photograph (the Photograph) depicting a dog, with its back to the camera, sitting on a Himalayan mountain ridge and gazing towards a snowcapped range on the far side of a broad valley. Id. ¶ 7 & Ex. A. At all relevant times, plaintiff has been the sole owner of the copyright in the Photograph, which he registered with the United States Copyright Office as No. VA 2-076-821. Id. ¶¶ 7, 9-10 & Ex. A. Plaintiff published the Photograph on his own website, www.wahlhuetter.net, "with a credit to Wahlhuetter next to the Photograph." Id. ¶ 8 & Ex. B.[2]
On February 23, 2016, without obtaining a license or any other consent from plaintiff, CollegeHumor published a copy of the Photograph on its website, www.collegehumor.com, as part of a humorous article entitled "20 Random Reddit Photos Turned into Epic Movie Posters" (the CollegeHumor Article). Compl. ¶¶ 11-12 & Ex. C. Wahlhuetter alleges that defendant sourced the Photograph from plaintiff's website and removed the copyright management information (CMI) that identified him as the author of the Photograph before featuring the Photograph in the CollegeHumor Article. Id. ¶¶ 19-20.[3]
Wahlhuetter filed his complaint on February 18, 2019, served it, along with a summons, on CollegeHumor's registered agent in Delaware on February 20, 2019, and filed proof of such service on April 4, 2019. (Dkt. No. 10.) CollegeHumor failed to appear or answer.
On April 18, 2019, at plaintiff's request, the Clerk of Court issued a Certificate of Default as to CollegeHumor. (Dkt. No. 14.) On May 2, 2019, Wahlhuetter moved by proposed order to show cause for a default judgment (Dkt. No. 17), and on May 6, 2019, Judge Schofield issued the requested Order to Show Cause (OSC) (Dkt. No. 21), directing CollegeHumor to show cause on May 28, 2019, why a default judgment should not be entered against it. On May 7, 2019, plaintiff served the OSC on defendant's registered agent. (Dkt. No. 22.) On May 28, 2019, Wahlhuetter appeared through counsel for the show-cause hearing, but CollegeHumor did not appear. The next day, Judge Schofield issued the Default Judgment and referred the case to me for an inquest.
On May 30, 2019, I issued a Scheduling Order (Dkt. No. 26), directing Wahlhuetter to file his Proposed Findings of Fact and Conclusions of Law (Prop. Findings) with respect to damages, supported by admissible evidence "sufficient to permit the Court to 'ascertain the amount of damages with reasonable certainty, '" no later than July 15, 2019. Scheduling Order ¶ 2 (quoting Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999)). I also directed plaintiff to serve his inquest papers on CollegeHumor by mail "at its last known address." Scheduling Order ¶ 7. On July 22, 2019 (after obtaining a one-week extension, see Dkt. No. 28), plaintiff submitted his Proposed Findings (Dkt. No. 29), supported by the Declaration of Sebastian Wahlhuetter (Wahlhuetter Decl.) (Dkt. No. 30). On July 24, 2019, plaintiff served these documents, along with the Scheduling Order, on CollegeHumor's registered agent, and on November 19, 2019, he filed proof of such service. (Dkt. No. 32.) Defendant did not file any responding papers.
Plaintiff seeks:
This Court has subject matter jurisdiction over Wahlhuetter's claims pursuant to 28 U.S.C. § 1331 (federal question jurisdiction) and 28 U.S.C. § 1338(a) (copyright jurisdiction). Architectural Body Res. Found. v. Reversible Destiny Found., 335 F.Supp.3d 621, 634 (S.D.N.Y. 2018); Lombardi v. Suarés, 923 F.Supp. 51, 54 (S.D.N.Y. 1996). However, plaintiff has not demonstrated that this Court has personal jurisdiction over CollegeHumor, which is a "'necessary prerequisite to entry of a default judgment.'" Reilly v. Plot Commerce, 2016 WL 6837895, at *2 (S.D.N.Y. Oct. 31, 2016) ().
Plaintiff alleges that this Court "has personal jurisdiction over Defendant because Defendant resides in and/or transacts business in New York." Compl. ¶ 3. However, the only facts offered in support of this allegation are that CollegeHumor, which is a Delaware LLC, had "a place of business" on Park Avenue South in New York City and was "registered with the New York Department of State Division of Corporations to do business in the State of New York." Id. ¶ 6. Plaintiff does not allege that the premises on Park Avenue South were defendant's "principal" place of business; does not describe any of the business activity conducted by defendant in New York; and does not state or suggest that his claims arose out of anything that defendant did in New York. Nor, as shown in more detail below, are there any other allegations in the Complaint (or, for that matter, in the Proposed Findings) that could support this Court's assertion of either general or specific personal jurisdiction over CollegeHumor.
"[A] district court should not raise personal jurisdiction sua sponte when a defendant has appeared and consented, voluntarily or not, to the jurisdiction of the court[.]" Sinoying Logistics Pte Ltd. v. Yi Da Xin Trading Corp., 619 F.3d 207, 213 (2d Cir. 2010) (emphasis in the original) (internal citations omitted). A non-appearing defendant, however, cannot be said to have consented to personal jurisdiction or waived its objections thereto. Moreover, "[a] judgment obtained in the absence of personal jurisdiction is void within the meaning of Rule 60(b)(4)," de Ganay v. de Ganay, 2012 WL 6097693, *4 (S.D.N.Y. Dec. 6, 2012) (citation and internal quotation marks omitted), and vulnerable to a later motion to vacate. Thus, before entering a damages judgment against a defaulting defendant, a district court may - and as a matter of judicial economy should - satisfy itself that it has personal jurisdiction over that defendant. See Sinoying Logistics, 619 F.3d at 213 () (internal citations and quotation marks omitted); Miller v. Netventure24 LLC, 2021 WL 3934262, at *2-4 (S.D.N.Y. Aug. 6, 2021) (), report and recommendation adopted, 2021 WL 3931928 (S.D.N.Y. Sept. 2, 2021) (Schofield, J.); Hood v. Ascent Medical Corp., 2016 WL 1366920, at *6 (S.D.N.Y. Mar. 3, 2016) () (internal citation omitted), report and recommendation adopted, 2016 WL 3453656 (S.D.N.Y. June 20, 2016); Yao Wu v. BDK DSD, 2015 WL 5664256, at *2 (E.D.N.Y. Aug. 31, 2015) (), report and recommendation adopted, 2015 WL 5664534 (E.D.N.Y. Sept. 22, 2015).
The Copyright Act does not contain its own personal jurisdiction or service provisions. S...
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