UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1412
ALLISON WILLIAMS,
Plaintiff - Appellant,
v.
ADVERTISING SEX, LLC; WEB TRAFFIC, INCORPORATED; SCOTT
MOLES; ZORG ENTERPRISES; CHRIS BUCKLEY; TROY SAVEGE (named
as Troy Doe); EYEGASMIC ENTERPRISES; RAYMOND WILLIAMS;
NICHOLAS CAIN; CAIN WEB DESIGN, INCORPORATED; CHARLIE HINTZ;
MENTAL SHED, LLC; DARREN MCLAUGHLIN; PERFORMANCE MARKETING
GROUP, INCORPORATED; SCOTT RICKETT; GENOCIDE PRODUCTIONS;
TRACY WHITEWICK (named as Tracey Doe); MANUEL NOTEN; CRAIG
BROWN; WEBRESULTZ PTY LTD.; FROSTYLIPS, LLC; HENRY ROTTINE;
KENNETH M. BOYD; EDITH G. BOYD; PALMBEACH-ONLINE.COM,
INCORPORATED; PETER SMALLWOOD; PURPLE SKY PRODUCTIONS;
MICHAEL VACIETIS,
Defendants - Appellees.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley,
District Judge. (1:05-cv-00051-IMK-JSK)
Submitted: January 21, 2011 Decided: February 3, 2011
Before DUNCAN, DAVIS, and KEENAN, Circuit Judges.
Reversed by unpublished per curiam opinion.
Stephen Michael LaCagnin, Parween Sultany Mascari, JACKSON
KELLY, PLLC, Morgantown, West Virginia; Ray Cooley Stoner,
JACKSON KELLY, PLLC, Pittsburgh, Pennsylvania, for Appellant.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Allison Williams appeals from the district court’s
order in her civil action denying her motion to reconsider the
court’s dismissal of a number of defendants for lack of personal
jurisdiction. For the reasons that follow, we reverse.
Williams was crowned Miss West Virginia in 2003.
According to her complaint, 1 the Defendants allegedly used her
name, pageant photograph, and title to falsely market,
advertise, and solicit sales on the Internet of a sex video,
purporting to feature Williams (hereinafter “Sex Tape”), for
financial gain. The Sex Tape — an explicit movie featuring an
unidentified couple — was available for download from the
Defendants for a price. Advertisements typically featured a
trailer of the movie, a pageant photograph of Williams, and
contained alleged defamatory text advertising the Sex Tape.
Williams has steadfastly contended that she was not
the woman in the Sex Tape and filed suit in the Northern
District of West Virginia against fifty-nine Defendants located
throughout the United States and the world. Williams alleges a
large civil conspiracy by Defendants to defame and otherwise
harm her by profiting from the defamatory postings. Defendants,
1
Due to the procedural posture of this case, the facts
primarily are gleaned from Williams’ compliant.
3
alleges Williams, also benefitted financially from the Sex Tape
in various commercial ways. The complaint lists numerous causes
of action and details the personal and professional harm
suffered by Williams while she was living in the state of West
Virginia.
In its October 3, 2008 memorandum order, the district
court detailed the factual allegations against each Defendant.
Despite being served, some of the Defendants failed to make an
appearance or respond to the complaint. The district court
referred to these twenty-eight Defendants as the “Default
Defendants.” (R. 361 at 1). Because of the procedural posture
of the case, the district court opined that “the only factual
background about them [Default Defendants] known to the Court is
what Williams has pled in her Complaint.” (R. 361 at 3-4).
Williams moved for a default judgment against the Default
Defendants. The district court dismissed the Default
Defendants, concluding that it lacked personal jurisdiction over
the parties. The court primarily relied on ALS Scan, Inc. v.
Digital Serv. Consultants, Inc., 293 F.3d 707 (4th Cir. 2002),
and its adoption of Zippo Mfg. Co. v. Zippo Dot Com Inc., 952 F.
Supp. 1119 (W.D. Pa. 1977), for its finding that the Default
Defendants’ commercial activities failed to establish the
minimum contacts with West Virginia needed to anticipate being
haled into court for purposes of personal jurisdiction.
4
In her motion to reconsider, Williams specifically
objected to the court’s finding that it lacked personal
jurisdiction over the Default Defendants. On March 17, 2009,
the district court denied Williams’ motion to reconsider under
Fed. R. Civ. P. 59(e). Williams timely appeals from the March
17 order. For the reasons that follow, we reverse.
Despite this court’s best efforts at contacting the
parties, the twenty-eight Default Defendants also have failed to
enter an appearance before this court, i.e., they have become
the “Default Appellees.” Consequently, we have no briefs before
us to support the district court’s conclusion that it lacked
personal jurisdiction over them, and there are no attorneys to
address this matter at oral argument. Accordingly, we decline
to address the issue of whether a district court must satisfy
itself, sua sponte, that it has personal jurisdiction before
entering a default judgment. Rather, we reverse the district
court’s order denying Williams’ motion to reconsider the issue,
and instruct the court to enter default judgments against the
Default Defendants as had been sought by Williams. 2
REVERSED
2
We note that the Default Defendants are commercial
enterprises and persons involved in the distribution of adult
Internet content. These relatively sophisticated litigants
pursued a litigation strategy that carried the real possibility
of having a default judgment entered against them. Nonetheless,
the Default Defendants failed to enter an appearance before the
district court or this court at their own peril.