United States District Court, E.D. Virginia, Alexandria Division
REPORT AND RECOMMENDATION
D. Davis United States Magistrate Judge
matter is before the Court on the Motion for Default Judgment
from Malibu Media. LLC against Albert Bondoc pursuant to
Federal Rule of Civil Procedure 55(b)(2). (Dkt. No. 33).
After Defendant failed to appear at the hearing on August 17,
2018, the undersigned Magistrate Judge took this matter under
advisement to issue this Report and Recommendation. Upon
consideration of the Complaint, Plaintiffs' Motion for
Default Judgment, and the memorandum thereto, the undersigned
Magistrate Judge makes the following findings and recommends
that default judgment be DENIED.
January 12, 2018, Plaintiff filed this action under Sections
106 and 501 of the Copyright Act of the United States as
amended, 17 U.S.C. §§ 106 and 501, alleging
copyright infringement. (Compl. ¶ 32). Plaintiff alleges
that Defendant willfully infringed on the copyrights for
various films, in which Plaintiff has exclusive licensing
rights. (Compl. ¶¶ 29-33). Defendant failed to
submit responsive pleadings and did not appear at the August
17, 2018 hearing on Plaintiffs Motion for Default Judgment.
(Dkt. No. 36). Plaintiff seeks a money judgment awarding
maximum statutory damages, a permanent injunction,
destruction of all copyright materials, and costs in the
amount of $640.00. (Dkt. No. 34 at 17).
Jurisdiction and Venue
court to render default judgment over a party, it must have
subject matter and personal jurisdiction over the party and
be the appropriate venue for the action. This Court has
subject matter jurisdiction over this case pursuant to 28
U.S.C. §§ 1331, 1338 because this case arises under
federal law, the Copyright Act. (Compl. ¶ 4). This Court
has personal jurisdiction over Defendant because it is
alleged that Defendant committed tortious acts in the
Commonwealth of Virginia by utilizing an Internet Protocol
("IP") address based in Virginia, Defendant resides
in the Commonwealth of Virginia, and Defendant engaged in
substantial business activity within the Commonwealth of
Virginia. (Compl. ¶ 5). Pursuant to 28 U.S.C.
§§ l39l(b)-(c), 1400(a), venue is proper in this
District because a substantial part of the events giving rise
to the claims occurred in this District and Defendant resides
in this District. (Compl. ¶¶ 7). Therefore, the
undersigned recommends a finding that jurisdiction and venue
are proper with respect to the Defendant in this action.
Service of Process
Rule of Civil Procedure 4(e) governs service upon an
individual and allows service by "delivering a copy of
the summons and of the complaint to the individual
personally," or "leaving a copy of [the summons and
complaint] at the individual's dwelling or usual place of
abode with someone of suitable age and discretion who resides
there.. . ." Fed.R.Civ.P. 4(e). Plaintiff obtained
Defendant's address by using Defendant's Internet
Service Provider ("ISP") records. (Dkt. No. 33
¶ 4). A private process server attempted to effectuate
service upon Defendant his residence located at 7719 Saratoga
Ridge Ct. Apt. 304, Springfield, VA 22153 ("Saratoga
Ridge Address") (Compl. ¶ 9; Dkt. No. 30 Ex. 2).
After three attempts on different days, the private process
server was unable to complete service. (Dkt. No. 30 Ex. 2).
using the Fairfax County Property Appraiser Records
("Appraiser Records"), Plaintiff located an
alternate address for Defendant at 9505 Yawl Court, Burke, VA
22015 ("Yawl Court Address"). (Dkt. No. 33
¶¶ 8-9). After three unsuccessful attempts of
personal service at the Yawl Court Address, Plaintiff
proceeded to substitute serve Defendant under the Virginia
Code Annotated § 8.01-296(2)(b). Va. Code Ann. §
8.01-296(2)(b) (2018); see Fed. R. Civ. P. 4(e)(1)
(providing an option to serve an individual by
"following state law for serving a summons in an action
brought in courts of general jurisdiction in the state where
the district court is located or where service is made. . .
."). Pursuant to Va. Code Ann. § 8.01-296(2)(b),
the certified private process server posted a copy of the
summons, notice, exhibits, and amended complaint on the front
door of the Yawl Court Address. (Dkt. No. 28). Such documents
were also mailed to Defendant at the Yawl Court Address.
(Id.). As there is no evidence that the Yawl Court
address is Defendant's residence, the undersigned
recommends a finding that service was improper.
of process satisfies due process when it provides
"notice reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency
of the action and afford them an opportunity to present their
objections." Amazon Web Servs. v. Global Equity
MgmL, S.A., 2017 U.S. Dist. LEXIS 148477, at *9 (E.D.
Va. 2017) (citing to Mullane v. Cent. Hanover Bank &
Trust Co., 339 U.S. 306, 314 (1950)). Plaintiff alleges
that service was satisfied by substitute serving Defendant at
the Yawl Court Address found on the Appraiser Records. (Dkt.
No. 33 ¶¶ 8-9). However, the Complaint states that
Defendant resides at the Saratoga Ridge Address. (Compl.
¶ 9). Plaintiff failed to allege or provide any details
as to whether Defendant resides at the Yawl Court address.
The Appraiser Records merely indicate that Defendant owns the
property. Ownership of property does not indicate that an
individual resides at the property.
in the absence of evidence proving Defendant resided either
at the Saratoga Ridge Address or the Yawl Court Address, the
Court cannot determine that Defendant was apprised of the
pending suit and afforded an opportunity to be heard. The
manner of service in this case did not satisfy due process.
"[A]bsent effective service of process, a court is
without jurisdiction to render a personal judgment against a
defendant." Joe Hand Promotions, Inc. v. Citibars,
Inc., 2012 U.S. Dist. LEXIS 18500, at *4 (E.D. Va. 2012)
(quoting Federal Deposit Ins. Corp. v. Schaffer, 731
F.2d 1134, 1135 (4th Cir. 1984)); see Md. State
Fireman's Ass'n v. Chaves, 166 F.R.D. 353, 354
(D. Md. 1996) ("It is axiomatic that service of process
must be effective under the Federal Rules of Civil Procedure
before a default or a default judgment may be entered against
a defendant."). Therefore, the undersigned recommends a
finding of insufficient service of process and denial of
Plaintiff s request for default judgment.
undersigned Magistrate Judge recommends denying entry of
default judgment against Defendant for willful copyright
infringement. Plaintiff did not properly serve Defendant
according to Federal Rule of Civil Procedure 4(e) and
Virginia Code Annotated § 8.01-296(2)(b).