NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 25 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 14-16421
STROUD PRODUCTIONS AND
ENTERPRISES, INC. and ANDREW
STROUD, D. C. No. 4:09-cv-03796-JSW
Plaintiffs - Appellants,
v.
MEMORANDUM*
CASTLE ROCK ENTERTAINMENT
INC.; et al.,
Defendants - Appellees.
No. 14-16422
STEVEN AMES BROWN; ESTATE OF
D C. No. 4:08-cv-02348-JSW
NINA SIMONE,
Plaintiffs-counter-
defendants - Appellees,
v.
STROUD PRODUCTIONS AND
ENTERPRISES, INC.; SCARLETT
STROUD,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1
Defendants-counter-
claimants - Appellants,
v.
SONY MUSIC HOLDINGS, INC.,
Counter-defendant -
Appellee.
Appeals from theUnited States District Court for the
Northern District of California
Jeffrey S. White, District Judge, presiding
Submitted October 17, 2016**
San Francisco, California
Before: KLEINFELD, TASHIMA and M. SMITH, Circuit Judges.
Appellants Scarlett P. Stroud, in her capacity as Executrix for the Estate of
Andrew B. Stroud, and Stroud Productions and Enterprises, Inc. appeal orders
entered against them in two related cases, Brown v. Stroud, 4:08-cv-02348-JSW,
and Stroud Prods. v. Castle Rock Entm’t, Inc., 4:09-cv-03796-JSW.1 Specifically,
they contend that the district court (1) prematurely ordered Scarlett P. Stroud (SPS)
substituted as a party, (2) lacked subject matter jurisdiction, (3) lacked personal
**
The panel unanimously concludes that this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
1
While Andy Stroud, Inc. (ASI) is noticed as an appellant, ASI was not
a party to any of the claims or counterclaims in the district court, and is therefore
not a party to this appeal.
2
jurisdiction over SPS, and (4) abused its discretion by denying several of
Appellants’ motions.
We have jurisdiction over these appeals under 28 U.S.C. § 1291, including
in Brown v. Stroud under the subsequent events doctrine. See Anderson v. Allstate
Ins. Co., 630 F.2d 677, 680–81 (9th Cir. 1980) (“subsequent events can validate a
prematurely filed appeal”).
Regarding the district court’s jurisdiction in Brown, that court had diversity
jurisdiction over the primary action pursuant to 28 U.S.C. § 1332, because
complete diversity existed between the parties to the operative complaint. The
district court also had jurisdiction pursuant to 28 U.S.C. § 1331 over the
counterclaims filed by the Estate of Nina Simone that arose under the Copyright
Act, 17 U.S.C. §§ 106, 201, 501; and supplemental jurisdiction under 28 U.S.C.
§ 1367(a) over the remaining counterclaims arising from the same set of facts.
The district court similarly had personal jurisdiction over SPS. The only
objection Appellants raise to personal jurisdiction is Appellees’ purported failure
to properly serve SPS with the motion to substitute her as a party. Federal Rule of
Civil Procedure 4(e)(1) allows service under state law of the state in which service
occurs; New York State Civil Practice Law and Rule § 308.4 in turn permits
service by affixing the document to be served to the recipient’s door and mailing
the document via first class mail. This method of service is only available,
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however, if personal service cannot be made with the exercise of due diligence.
N.Y. C.P.L.R. §§ 308.1, 308.2, 308.4.
Here, Appellees exercised due diligence by attempting service at different
times on four different days, including a Saturday, and inquiring with SPS’s
doorman and superintendent about her whereabouts. See, e.g., Deutsche Bank
Nat’l Trust Co. v. White, 972 N.Y.S.2d 664, 666 (App. Div. 2013). Failure to
leave the motion with either SPS’s doorman or her superintendent does not
preclude service via § 308.4, as neither individual blocked the process server’s
access to SPS’s door, and consequently neither was at SPS’s “actual dwelling for
purposes of service.” Colonial Nat’l Bank, U.S.A. v. Jacobs, 727 N.Y.S.2d 237,
239 (Civ. Ct. 2000) (noting that a doorman at the entrance of a multi-dwelling
building will not be considered to be at an individual’s “actual dwelling” under
these circumstances). SPS was thus properly served under § 308.4.
Appellants’ appeal further fails on the merits. The only argument SPS raises
regarding the substitution order is that her substitution was premature, as she had
not yet been appointed as the Estate’s representative. However, the district court
did not enter any sanctions against the Estate until well after the date upon which
all parties agree SPS had become the proper party for substitution, and the district
court granted SPS’s motion for reconsideration of the substitution order to the
extent that it had substituted her prior to her appointment as the Estate’s legal
4
representative. Moreover, SPS has identified no reason why the timing of the
substitution prejudiced the Estate. Accordingly, we conclude that any error in the
substitution order was harmless.
Finally, the district court’s denial of Appellants’ Motion for Enlargement of
Time was not an abuse of discretion. The district court expressly found that
Appellants and their counsel had acted in bad faith, noting “their repeated
gamesmanship and misconduct, their blatant disregard of the Court’s orders, the
Court’s need to manage its docket, and the need to prevent prejudice to the other
parties.” The finding of bad faith was not clearly erroneous; denying Appellants’
motion was therefore not an abuse of discretion. See Ahanchian v. Xenon Pictures,
Inc., 624 F.3d 1253, 1259 (9th Cir. 2010).
Appellants have identified no additional ground for finding that the district
court’s denials of Appellants’ motions constituted abuses of discretion.
AFFIRMED.
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