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`NOT FOR PUBLICATION
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEW JERSEY
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`____________________________________
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`ADEL SHOKR,
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`Plaintiff,
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`v.
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`RINKANDFIELD.COM,
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`:
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`::
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`::
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`::
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`Civil Action No. 08-4735 (JAG)
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`OPINION
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`::
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`Defendant.
`____________________________________:
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`GREENAWAY, JR., U.S.D.J.
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`This matter comes before this Court on the motion for entry of default judgment against
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`defendant, Rinkandfield.com (“Defendant” or “Rinkandfield”), filed by plaintiff, Adel Shokr
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`(“Plaintiff” or “Shokr”), pursuant to FED. R. CIV. P. 55(b). For the reasons set forth below, this
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`motion will be denied.
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`I. FACTS
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`Shokr is one of the inventors of United States Patent No. Des. 430,912 (the “’912
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`patent”) entitled “Globe Soccer Ball,” issued by the United States Patent and Trademark Office
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`on September 12, 2000, and set to expire on September 12, 2014. (Compl. ¶ 3.) Shokr was
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`granted a copyright registration (“Copyright”) on January 3, 2005 by the United States Copyright
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`Office for “Soft Sculpture of soccer ball with world/continent image imposed in red,” describing
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`the work as “two-dimensional image of world applied to 3-d soccer ball.” (Id. at ¶ 4.)
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`Since approximately September 12, 2000, Shokr has engaged in commercial sales of
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`globe soccer ball products, as claimed in the ’912 patent, and products containing her work of
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`authorship, as covered by her Copyright. (Id. at ¶ 5.)
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`On or about June 12, 2008, Shokr performed a World Wide Web search and obtained
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`information from www.rinkandfield.com, depicting the globe soccer ball and offering it for sale
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`through the website www.ebay.com. (Id. at ¶ 8.)
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`As a result, Shokr filed a complaint on September 22, 2008. A copy of this complaint,
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`along with a summons, was served on Larry Maslin on October 24, 2008. To date, Defendant
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`has not responded. Shokr now seeks entry of default judgment. Specifically, Shokr requests a
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`permanent injunction against the sale and distribution of globe soccer balls by Defendant, and
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`damages, including pre-judgment interest and attorney’s fees, due to patent infringement, trade
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`dress infringement, copyright infringement, and unfair competition practices by Defendant.
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`II. STANDARD OF REVIEW
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`A district court can enter a default judgment, pursuant to FED. R. CIV. P. 55(b)(2), which
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`states:
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`In all other cases, the party must apply for a default judgment. A default
`judgment may be entered against a minor or incompetent person only if
`represented by a general guardian, conservator, or other like fiduciary who
`has appeared. If the party against whom a default judgment is sought has
`appeared personally or by a representative, that party or its representative
`must be served with written notice of the application at least 3 days before
`the hearing. The court may conduct hearings or make referrals–preserving
`any federal statutory right to a jury trial–when, to enter or effectuate
`judgment, it needs to:
`(A) conduct an accounting;
`(B) determine the amount of damages;
`(C) establish the truth of any allegation by evidence; or
`(D) investigate any other matter.
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`FED. R. CIV. P. 55(b)(2). “The Federal Rules of Civil Procedure commit the entry of a default
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`judgment against a party to the sound discretion of the trial court.” F.T.C. v. Packers Brand
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`Meats, Inc., 562 F.2d 9, 11 (8th Cir. 1977).
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`“Default establishes the defaulting party’s liability for the well-pleaded allegations of the
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`complaint.” United States v. Gant, 268 F. Supp. 2d 29, 32 (D.D.C. 2003) (citing Brock v.
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`Unique Racquetball & Health Clubs, Inc., 786 F.2d 61, 65 (2d Cir. 1986)). Default does not
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`establish liability for the amount of damages claimed by the plaintiff. Flaks v. Koegel, 504 F.2d
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`702, 707 (2d Cir. 1974) (“While a default judgment constitutes an admission of liability, the
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`quantum of damages remains to be established by proof unless the amount is liquidated or
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`susceptible of mathematical computation.”). “The district court must instead conduct an inquiry
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`in order to ascertain the amount of damages with reasonable certainty.” Credit Lyonnais Secs.
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`(USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999).
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`The district court has considerable latitude in determining the amount of damages. Jones
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`v. Winnepesaukee Realty, 990 F.2d 1, 4 (1st Cir. 1993). In determining that amount, the district
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`court may conduct a hearing. FED. R. CIV. P. 55(b)(2). The court is not required to do so,
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`however, “as long as it ensure[s] that there [is] a basis for the damages specified in the default
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`judgment.” Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., Div. of Ace
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`Young Inc., 109 F.3d 105, 111 (2d Cir. 1997). “It is familiar practice and an exercise of judicial
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`power for a court upon default, by taking evidence when necessary or by computation from facts
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`of record, to fix the amount which the plaintiff is lawfully entitled to recover and to give
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`judgment accordingly.” Pope v. United States, 323 U.S. 1, 65 (1944).
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`III. JURISDICTION
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`Before a district court can enter default judgment against a party that has not filed
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`responsive pleadings, the court “has an affirmative duty to look into jurisdiction both over the
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`subject matter and the parties.” Williams v. Life Sav. & Loan, 802 F.2d 1200, 1203 (10th Cir.
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`1986).
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`A.
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`Subject Matter Jurisdiction
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`Since the case at hand addresses patent, trade dress, and copyright infringement, subject
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`matter jurisdiction exists, pursuant to 15 U.S.C. §§1125 and 1331, and 28 U.S.C. §1338(a).
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`Supplemental jurisdiction is also proper under 28 U.S.C. § 1367, with regard to Plaintiff’s unfair
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`competition claim.
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`B.
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`Personal Jurisdiction
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`When focusing upon an out-of-state defendant, the federal court must conduct a two-step
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`analysis to ascertain whether personal jurisdiction exists. First, the court must look to the forum
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`state’s long-arm statute to determine if personal jurisdiction is permitted over an out-of-state
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`defendant. Miller Yacht Sales, Inc. v. Smith, 384 F.3d 93, 96 (3d Cir. 2004). Second, the court
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`must determine whether the exercise of jurisdiction violates the Due Process Clause of the
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`Fourteenth Amendment. IMO Indus., Inc. v. Kiekert AG, 155 F.3d 254, 259 (3d Cir. 1998);
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`Vetrotex Certainteed Corp. v. Consol. Fiber Glass Products Co., 75 F.3d 147, 150 (3d Cir. 1996).
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`In this forum, the personal jurisdiction inquiry is collapsed into a single step because New
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`Jersey’s long arm statute permits the exercise of personal jurisdiction to the fullest limits of due
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`process, as defined under the Constitution of the United States. Federal law defines the
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`parameters of this Court’s in personam jurisdiction. IMO, 155 F.3d at 259. The Fourteenth
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`Amendment permits a state to exercise jurisdiction over an out-of-state defendant only where
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`“the defendant purposefully avails itself of the privilege of conducting activities within the forum
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`State, thus invoking the benefits and protections of its laws.” Burger King Corp. v. Rudzewicz,
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`471 U.S. 462, 475 (1985) (quoting Hanson v. Denckla, 357 U.S. 235 (1958)). It is the burden of
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`the plaintiff to prove that the defendant has purposefully availed itself of the forum state. Burke
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`v. Quartey, 969 F. Supp. 921, 924 (D.N.J. 1997).
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`To prove that a defendant has purposefully availed itself of the forum state, a plaintiff
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`may rely upon a defendant’s specific contacts with the forum state. The burden to produce actual
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`evidence of the defendant’s contacts with the forum state rests on the plaintiff. Time Share
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`Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61, 66 n.9 (3d Cir. 1984). Personal jurisdiction
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`pursuant to such contacts is known as specific jurisdiction. Specific jurisdiction is invoked when
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`a claim is related to or arises out of the defendant’s contacts with the forum. Helicopteros
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`Nacionales de Colombia, S. A. v. Hall, 466 U.S. 408, 416 (1984); Dollar Sav. Bank v. First Sec.
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`Bank of Utah, 746 F.2d 208, 211 (3d Cir. 1984).
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`A court must first determine whether the defendant had the minimum contacts with the
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`forum necessary for the defendant to have “reasonably anticipate[d] being haled into court there.”
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`World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980). What constitutes
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`minimum contacts varies with the “quality and nature of defendant’s activity.” Hanson, 357 U.S.
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`at 253. In assessing the sufficiency of minimum contacts for personal jurisdiction, the court must
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`focus on the “relationship among the defendant, the forum, and the litigation.” Keeton v. Hustler
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`Magazine, Inc., 465 U.S. 770, 775 (1984). There must be at least “a single deliberate contact”
`with the forum state that relates to the cause of action. U.S. Golf Ass*n v. U.S. Amateur Golf
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`Ass’n, 690 F. Supp. 317, 320 (D.N.J. 1988). The unilateral acts of the plaintiff, however, will
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`not amount to minimum contacts. Helicopteros Nacionales de Colombia, 466 U.S. at 417;
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`Hanson, 357 U.S. at 253. Assuming minimum contacts have been established, a court must
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`inquire whether “the assertion of personal jurisdiction would comport with ‘fair play and
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`substantial justice.’” Burger King Co., 471 U.S. at 476 (quoting Int’l Shoe Co. v. Washington,
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`326 U.S. 310, 320 (1945)); see also Pennzoil Prod. Co. v. Colelli & Assoc. Inc., 149 F.3d 197,
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`201 (3d Cir. 1998).
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`For personal jurisdiction to comport with “fair play and substantial justice,” it must be
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`reasonable to require the defendant to defend the suit in the forum state. World-Wide
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`Volkswagen Corp., 444 U.S. at 292 (1980). To determine reasonableness, a court considers the
`following factors: a) the burden on the defendant; b) the forum state*s interest in adjudicating the
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`dispute; c) the plaintiff’s interest in obtaining convenient and effective relief; d) the interstate
`judicial system*s interest in obtaining the most efficient resolution of controversies; and e) the
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`shared interest of the several States in furthering substantive social policies. Id. Only in “rare
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`cases [do the] minimum requirements inherent in the concept of ‘fair play and substantial justice’
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`. . . defeat the reasonableness of jurisdiction even [though] the defendant has purposefully
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`engaged in forum activities.” Asahi Metal Indus. Co., Ltd. v. Superior Court of Cal., Solano
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`County, 480 U.S. 102, 116 (1987) (citing Burger King Co., 471 U.S. at 462).
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`If the plaintiff cannot establish specific jurisdiction, a court may exercise general
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`jurisdiction over the defendant if the defendant has maintained “continuous and systematic”
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`contacts with the forum state. Helicopteros Nacionales de Colombia, 466 U.S. at 416. To
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`establish general jurisdiction, the plaintiff “must show significantly more than mere minimum
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`contacts” with the forum state. Provident Nat*l Bank v. California Fed. Sav. & Loan Ass’n, 819
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`F.2d 434, 437 (3d Cir. 1987). Moreover, the facts required to establish general jurisdiction must
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`be “extensive and persuasive.” Reliance Steel Products Co. v. Watson, Ess, Marshall & Enggas,
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`675 F.2d 587, 589 (3d Cir. 1982) (citing Compagnie des Bauxites de Guinea v. Ins. Co. of North
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`America, 651 F.2d 877, 890 (3d Cir. 1981) (Gibbons, J., dissenting)).
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`IV. ANALYSIS
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`In the instant case, Plaintiff has not demonstrated that this Court has personal
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`jurisdiction over Rinkandfield. Plaintiff has offered no evidence demonstrating that Rinkandfield
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`has been properly served. Even if service had been proper, Plaintiff has failed to allege any facts
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`showing that Rinkandfield has minimum contacts with New Jersey.
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`“It is an elementary requirement that personal jurisdiction must be established in every
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`case before a court has power to render any judgment.” Lampe v. Xouth, Inc., 952 F.2d 697, 700
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`(3d Cir. 1992). A court obtains personal jurisdiction over the parties when the complaint and
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`summons are properly served upon the defendant. Id. at 701. “Indeed, if a defendant is not
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`properly made a party to the action by effective service, he would not be bound by any judgment
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`rendered.” Id. “A default judgment entered when there has been no proper service of the
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`complaint is, a fortiori, void.” Gold Kist, Inc. v. Laurinburg Oil Co., 756 F.2d 14, 19 (3d Cir.
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`1985).
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`FED. R. CIV. P. 4(h) governs the procedure for serving a corporation and requires service
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`pursuant to the rule when a party is bringing an action against “a domestic or foreign corporation,
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`or a partnership or other unincorporated association that is subject to suit under a common
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`name.” FED. R. CIV. P. 4(h)(1). Service of a summons and complaint on an entity in a judicial
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`district of the United States may be effected by serving the entity “in a manner prescribed by
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`Rule 4(e)(1) for serving an individual; or . . . by delivering a copy of the summons and complaint
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`to an officer . . . and by also mailing a copy of each to the defendant.” FED. R. CIV. P. 4(h)(1).
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`In this case, Plaintiff has offered no evidence that Rinkandfield was properly served.
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`Although the record reflects that on October 23, 2008, documents were left with Larry Maslin’s
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`wife at his place of residence in Colorado, (Proof of Service, attached as Ex. A to Pls.’ Notice of
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`Motion to Enter Default J.), Plaintiff does not assert any connection between Mr. Maslin and
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`Rinkandfield. Therefore, Plaintiff has not demonstrated that service upon Mr. Maslin in his
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`individual capacity is tantamount to service upon Rinkandfield.com, the corporate entity.
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` Issues of proper service aside, Plaintiff has not shown that this Court has personal
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`jurisdiction over Rinkandfield. Plaintiff has not alleged sufficient information to show that
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`Rinkandfield has minimum contacts with New Jersey. Rinkandfield is an entity registered to a
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`Pennsylvania address, though it conducts business on the World Wide Web at the website
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`www.rinkandfield.com. (Compl. p. 2.) Shokr’s claims arise from the website’s depiction and
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`offer for sale of her work of authorship through the website– www.ebay.com. (Id. at ¶ 8.)
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`Plaintiff merely asserts in her complaint that personal jurisdiction is proper; however, this
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`statement is not supported. (See id. at ¶ 1.)
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` Although Defendant’s website is accessible from New Jersey computers, accessability
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`of a website alone is not enough to establish minimum contacts. See Zippo Mfg. Co. v. Zippo
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`Dot Com, 952 F. Supp. 1119, 1124 (W.D. Pa. 1997). Rather, “the propriety of exercising
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`jurisdiction depends on where on a sliding scale of commercial interactivity the web site falls.”
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`Toys “R” Us, Inc. v. Step Two, S.A., 318 F.3d 446, 452 (3d Cir. 2003). Thus, it is up to district
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`courts to determine whether a website is used to “actively transact business [with residents of the
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`forum state],” Decker v. Circus Hotel, 49 F. Supp. 2d 743, 748 (D.N.J. 1999), or whether the
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`website simply “makes information available to those who are interested in it.” Zippo, 952 F.
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`Supp. at 1124.
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`Rinkandfield.com falls into the former category. That is, it is a website maintained for
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`the purpose of actively transacting business, namely, the sale of merchandise. However, even
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`this does not end the jurisdictional analysis. According to the Third Circuit, “there must be
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`evidence that the defendant ‘purposefully availed’ itself of conducting activity in the forum state,
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`by directly targeting its website to the state, knowingly interacting with residents of the forum
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`state via its website, or through sufficient other related contacts.” Toys “R” Us, 318 F.3d at 454.
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`Nowhere in her submissions does Shokr provide proof that Rinkandfield either targeted
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`or knowingly interacted with New Jersey residents. Thus, Shokr has not established any basis
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`for this Court to conclude that specific jurisdiction exists over Defendant.
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`The same analysis applies to general jurisdiction. Since Shokr has not established that
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`Defendant has any contacts with New Jersey, there is no basis for finding “continuous and
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`systematic” contacts with the forum state on the part of Defendant. Helicopteros Nacionales de
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`Colombia, 466 U.S. at 416.
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`V. CONCLUSION
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`For the reasons set forth above, this Court finds that Plaintiff has failed to establish that
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`this Court has personal jurisdiction over Rinkandfield. Therefore, this Court shall deny
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`Plaintiff’s motion for default judgment (Docket No. 29), without prejudice.
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` Date: February 22, 2010
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` S/Joseph A. Greenaway, Jr.
`JOSEPH A. GREENAWAY, JR., U.S.D.J.
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