Moreland v. 1010 v. LLC

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

ANDRA CHERI MORELAND, et al. )

)

Plaintiffs, )

)

v. ) Civil Case No. 22-3795 (RJL)

)

1010 V LLC d/b/a THE LIVING ROOM, _)

et al. )

)

Defendants. )

MEMORANDUM OPINION

February® 2025 [Dkt. #10]

Plaintiffs in this action are two professional models, Andra Cheri Moreland and

Iesha Marie Crespo (together, “plaintiffs”). They brought this action against defendant

1010 V LLC (“defendant” or “1010 V”), claiming that defendant misappropriated their

images to promote its nightclub. Compl. [Dkt. #1]. This matter is now before the Court

on plaintiffs’ motion for default judgment. Pls.’ Mot. for Default J. (‘Pls.? Mot.”) [Dkt.

#10]. Because plaintiffs have not established proper service of process on defendant, I will

DENY the motion for default judgment without prejudice.!

' Plaintiffs brought this case against 1010 V and multiple other, unnamed defendants (Does 1 through 5).

See generally Compl. The Complaint asserts that the unnamed defendants are “individuals and/or entities

that 1010 V LLC worked in conjunction with, at the direction of, or in concert with, .. . includ[ing] graphic

designers, independent contractors, DJ, social media consultants, and/or others.” Compl. 711. Plaintiffs

have not identified these other defendants and only moved for default judgment against 1010 V. See Pls.’

Mot. 1. Therefore, I will only address default judgment as to the claims against 1010 V.

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I. BACKGROUND

Plaintiffs filed their Complaint on December 22, 2022. Compl. The facts, as alleged

in the Complaint, are as follows. Plaintiffs are professional models who earn their

livelihoods modeling and licensing their images to companies and individuals for

advertising purposes. Jd. { 12. Defendant operates a nightclub called The Living Room.

Id. §§ 10, 25. Defendant took plaintiffs’ photos from their social media pages and, without

plaintiffs’ permission and without compensating plaintiffs, used those photos to promote

The Living Room. Jd. 14-18, 29-33. Plaintiffs claim that this is misappropriation of

their images for defendant’s commercial and financial benefit. Jd. §§ 26-33. The

Complaint asserts numerous causes of action, including violations of the common law right

of privacy, violations of the Lanham Act, negligence, defamation, conversion, unjust

enrichment, and quantum meruit. Jd. 4] 50-122.

After plaintiffs filed the Complaint, the Clerk of Court electronically issued a

summons addressed to defendant, care of defendant’s registered agent. Summons [Dkt.

#4]. On January 17, 2023, plaintiffs filed an affidavit of service signed by their process

server. Aff. of Service [Dkt. #6].

Defendant did not answer or otherwise respond to the Complaint, but plaintiffs took

no action either. Over a year later, on April 16, 2024, the Court issued a minute order

instructing plaintiffs to show cause why they had not sought an entry of default or default

judgment against defendant. Min. Order (Apr. 16, 2024). Shortly thereafter, on April 25,

plaintiffs filed a motion for entry of default, see Mot. for Entry of Default [Dkt. #8]; the

Clerk entered default on April 26, see Clerk’s Entry of Default [Dkt. #9]. Plaintiffs then

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moved this Court for default judgment pursuant to Federal Rule of Civil Procedure 55. See

Pls.” Mot. Defendant has not responded to the motion.

IJ. LEGAL STANDARD

Federal Rule of Civil Procedure 55 empowers courts to enter default judgment

“[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead

or otherwise defend, and that failure is shown by affidavit or otherwise.” Fed. R. Civ. P.

55(a). “The determination of whether default judgment is appropriate is committed to the

discretion of the trial court.” See Int’l Painters & Allied Trade Indus. Pension Fund y.

Auxier Drywall, LLC, 531 F. Supp. 2d 56, 57 (D.D.C. 2008) (citing Jackson v. Beech, 636

F.2d-831, 836 (D.C. Cir. 1980)). Modern courts do-not favor default judgments, as there

are “strong policies favoring the resolution of genuine disputes on their merits.” See

Jackson, 636 F.2d at 835.

Prior to granting a motion for default judgment, “a court should satisfy itself that it

has personal jurisdiction.” Mwani v. Bin Laden, 417 F.3d 1, 6 (D.C. Cir. 2005). This is

particularly true in the case of an absentee defendant. See Kaplan v. Cent. Bank of the

Islamic Republic of Iran, 896 F.3d 501, 511 (D.C. Cir. 2018) (explaining that when the

defendant does not make an appearance in the case, “[t]heir absence impose[s] an

independent obligation on the district court to satisfy itself of its personal jurisdiction

before entering a default judgment against” the defendant).

Specifically, the Court should ensure that the procedural requirement of service has

been satisfied, as “[d]efault cannot be entered where there was insufficient service of

process.” See Scott v. District of Columbia, 598 F. Supp. 2d 30, 36 (D.D.C. 2009)

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(“Although default may be entered. upon a defendant’s failure to plead or otherwise defend,

a defendant’s obligation to respond to a complaint arises only upon service of the summons

and complaint.” (internal citations omitted)); see also Mwani, 417 F.3d at 8 (“Before a

federal court may exercise personal jurisdiction over a defendant, the procedural

requirement of service of summons must be satisfied.” (quoting Omni Capital Int’l Ltd. v.

Rudolf Wolff & Co., 484 U.S. 97, 104 (1987))). The party seeking default judgment bears

the burden of proving personal jurisdiction and can do so with a prima facie showing. See

Mwani, 417 F.3d at 7.

Ill. ANALYSIS

Here, plaintiffs have not shown proper service of process and I will therefore deny

their motion for default judgment. Federal Rule of Civil Procedure 4(c)(1) puts on

plaintiffs the responsibility of “having the summons and complaint served” on defendant

“within the time allowed by Rule 4(m),” which is 90 days from the filing of the complaint.

Fed. R. Civ. P. 4. Defendant here is a corporation and thus should be served pursuant to

Rule 4(h). This provision provides for service:

(A) in the matter prescribed by Rule 4(e)(1) for serving an individual; or

(B) by delivering a copy of the summons and of the complaint to an

officer, a managing or general agent, or any other agent authorized by

appointment or law to receive service of process and—if the agent is

one authorized by statute and the statute so requires—by also mailing

a copy of each to the defendant... .

Fed. R. Civ. P. 4(h)(1).

Plaintiffs initially attempted to serve defendant under Rule 4(h)(1)(B) by enlisting

a process server to deliver copies of the materials to defendant’s registered agent. This

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method was ultimately unsuccessful. Between December 30, 2022 and January 5, 2023,

the process server attempted three times to serve defendant’s registered agent at the agent’s

listed address, but each time found “the door was boarded up, the building’s interior was

vacant, and [there was] a renewal of alcohol license on the front door.” Aff. of Service 3.

The process server stated in his affidavit that, “after due search, careful inquiry, and diligent

attempt(s),” he was “unable to serve 1010 V LLC d/b/a The Living Room.” Jd.

Plaintiffs then attempted an alternative method of service. Federal Rule of Civil

Procedure 4(h)(1)(A) allows service “in the manner prescribed by Rule 4(e)(1) for serving

an individual.” Rule 4(e)(1), in turn, provides for service in a manner “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.” Fed. R. Civ. P. 4(e)(1). D.C.

law allows plaintiffs, in some circumstances, to serve entities registered in D.C. by serving

the Mayor or the Mayor’s designee. See D.C. Code § 29-104.12(d). Specifically, the D.C.

Code provides:

If an entity fails to designate or maintain a registered agent in the District as

required by law, or if an entity’s registered agent in the District cannot with

reasonable diligence be found, and if the person seeking service submits a

declaration under penalty of making false statements showing that a

registered agent for the entity cannot be found, the Mayor shall be an agent

of the entity upon whom any process against the entity may be served and

upon whom any notice or demand required or permitted by law to be served

upon the entity may be served. Service on the Mayor of the process, notice,

or demand shall be made by delivering or leaving with the Mayor, or his

designee, duplicate copies of the process, notice, or demand. If any process,

notice, or demand is so served, the Mayor shall immediately cause one of the

copies to be forwarded by registered or certified mail to the entity at its

principal office or at its last known address.

D.C. Code § 29-104.12(d).

The D.C. Mayor has designated the Superintendent of Corporations at the District

of Columbia Department of Licensing and Consumer Protection (“DLCP”) to accept

service on the Mayor’s behalf. See 56 D.C. Reg. 6804 (2009); see also Dep’t of Licensing

and Consumer Prot., Service of Process, https://dlcp.dc.gov/node/1619186 (last visited

Feb. 14, 2025) (“Superintendent of Corporations at the District of Columbia Department

of Licensing and Consumer Protection is hereby designated to accept Service of Process

on the Mayor’s behalf pursuant to Mayor’s Order 2009-65 dated April 24th, 2009.”).

Plaintiffs sought to use this method to serve defendant. Their process server served

the DLCP with the summons, civil cover sheet, and Complaint. Aff. of Service 1-2. While

this is generally an acceptable method of service in D.C., plaintiffs have failed to show that

they met all of the requirements set out in D.C. Code § 29-104.12(d). Since they bear the

burden of proving proper service and personal jurisdiction, the Court will not enter default

judgment. See Mwani, 417 F.3d at 7-8.

D.C. Code § 29-104.12(d) requires plaintiffs to establish multiple facts. First,

plaintiffs must show that defendant’s registered agent could not be found with reasonable

diligence. This requirement was met, as plaintiffs’ process server attempted service three

? The applicable D.C. regulation designates the Superintendent of Corporations at the District of Columbia

Department of Consumer and Regulatory Affairs (“DCRA”) to accept service on the Mayor’s behalf. See

56 D.C. Reg. 6804. The DCRA has since been redesignated as the DLCP, which now serves as the Mayor’s

designee. See Department of Buildings Establishment Act of 2020, D.C. Law 23-269, 68 D.C. Reg. 1490

(Apr. 5, 2021) (‘The Department of Consumer and Regulatory Affairs shall be redesignated as the

Department of Licensing and Consumer Protection.”).

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times at defendant’s registered agent’s address and each time found it boarded up and

vacant. Aff. of Service 3. The process server’s affidavit states that “after due search” and

“careful inquiry,” he was “unable to serve” the registered agent. Jd.

Second, plaintiffs must show that they served “the Mayor, or his designee, duplicate

copies of the process, notice, or demand.” See D.C. Code § 29-104.12(d). Plaintiffs also

met this requirement. They served the DLCP—the Mayor’s designee—with duplicate

copies of the summons, civil cover sheet, and Complaint. See Aff. of Service 1.

Finally, the D.C. Code requires that the Mayor or the Mayor’s designee

“immediately cause one of the copies to be forwarded by registered or certified mail to the

entity at its principal office or at its last known address.” See D.C. Code § 29-104.12(d).

This is where plaintiffs fail to meet their burden to show proper service of process.

Plaintiffs nowhere address whether the DLCP did in fact send copies of the materials to

defendant. See generally Pls.’ Mot.; Aff. of Service. Additionally, despite having the

opportunity to do so, plaintiffs did not request a certificate of service from the DLCP. See

Dep’t of Licensing and Consumer Prot, Service of Process,

https://dlcp.dc.gov/node/1619186 (last visited Feb. 14, 2025) (“Once Superintendent of

Corporations has been served, you may request certificate of service. Please reach out to

Corporations Division to ensure that service has been completed before requesting

certificate of service.”). As such, the Court is left guessing whether the last step of mailing

the documents to defendant was ever completed.

While the D.C. Code does indicate that the DLCP is responsible for mailing the

materials, it is still plaintiffs’ burden to show that the DLCP carried out that responsibility.

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See Radiant Glob. Logistics, Inc. v. Am. Indep. Distillery Coop., 2021 U.S. Dist. LEXIS

223452, at *14 (D.D.C. Nov. 19, 2021) (concluding “that the plaintiff has failed to meet its

burden of proving that the defendant had been properly served” when the plaintiff “failed

to provide any documentation confirming that the Superintendent of Corporations was ever

served, or that the DCRA in turn sent a copy of the summons and Complaint by certified

mail to the defendant”). Holding otherwise would reduce plaintiffs’ burden to ensure

proper service and put the onus of carrying out the most critical step—mailing the materials

to defendant—on the Mayor’s designee, who does not have the same incentives as

plaintiffs to ensure successful service.

In sum, the Court has no information about whether the summons, civil cover sheet,

and Complaint were in fact sent to defendant. I therefore cannot conclude service was

properly effectuated and will not enter default judgment. Underpinning my decision here

is the gravity of default judgment and the fact that “[p]roper service of process ‘is not some

mindless technicality.’” See Williams v. GEICO Corp., 792 F. Supp. 2d 58, 65 (D.D.C.

2011) (quoting Friedman vy. Estate of Presser, 929 F.2d 1151, 1156 (6th Cir. 1991)).

Default judgment can establish a defendant’s liability in a case without the defendant ever

entering an appearance or making an argument in his defense. This would be an unjust

result here, where there are open questions regarding whether defendant even had a chance

of knowing about the case.

IV. CONCLUSION

Plaintiffs have not met their burden of establishing proper service of process. The

Court therefore cannot be assured that it has personal jurisdiction, a prerequisite to entering

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default judgment. Accordingly, the Court must DENY plaintiffs’ motion for default

judgment without prejudice. The Court, however, will permit plaintiffs to, within thirty

days from the date of the issuance of this decision, either submit proof that defendant has

been properly served or submit to the Court a statement showing good cause for the delay

in serving defendant and providing an estimate of when proper service will be achieved.

A separate Order consistent with this decision accompanies this Memorandum Opinion.

RICHARD f LEON

United States District Judge