CM/ECF - NCED

https://ecf.nced.uscourts.gov/cgi-bin/DktRpt.pl?344521341729796-L_1_0-1

MEDIATION,USMJ_Webb

U.S. District Court EASTERN DISTRICT OF NORTH CAROLINA (Western Division) CIVIL DOCKET FOR CASE #: 5:11-cv-00132-BO

Masterfile Corporation v. Nirvelli Day Spa Corporation et al Assigned to: District Judge Terrence W. Boyle Cause: 17:101 Copyright Infringement

Date Filed: 03/24/2011 Jury Demand: None Nature of Suit: 820 Copyright Jurisdiction: Federal Question

Date Filed 03/24/2011

# Docket Text 1 COMPLAINT against Nirvelli Day Spa Corporation, David Sefried, Heather Sefried ( Filing fee $ 350 receipt number 0417-1548162.), filed by Masterfile Corporation. (Attachments: # 1 Summons - Nirvelli Day Spa, # 2 Summons - David Sefried, # 3 Summons - Heather Sefried) (Jarrell, Douglas) (Entered: 03/24/2011) 2 FINANCIAL DISCLOSURE STATEMENT by Masterfile Corporation (Jarrell, Douglas) (Entered: 03/24/2011) Case Selected for Mediation - A printable list of certified mediators for the Eastern District of North Carolina is available on the court's Website, http://www.nced.uscourts.gov/applications/mediators.asp. Please serve this list on all parties. (Beasley, B.) (Entered: 03/25/2011) NOTICE OF DEFICIENCY re: 1 Complaint. Counsel failed to file a JS44 Civil Cover Sheet as required by the Court. Counsel should file a cover sheet using the event "Notice-Other" as soon as possible. (Heath, D.) (Entered: 03/25/2011) 3 NOTICE by Masterfile Corporation Civil Cover Sheet (Jarrell, Douglas) (Entered: 03/25/2011) NOTICE TO COUNSEL re: 1 Complaint - Summons. Counsel did not flatten the summons and they are still fillable and have the ability to be manipulated. In the future, counsel should make sure that the summons are not fillable or have the ability to be manipulated. This can be done with a "flatten" button in Adobe or by printing and scanning in the summons. (Talbert, S.) (Entered: 03/29/2011) 4 Summons Issued as to David Sefried. Counsel should print summons to effect service. (Talbert, S.) (Entered: 03/29/2011) 5 Summons Issued as to Heather Sefried. Counsel should print summons to effect service. (Talbert, S.) (Entered: 03/29/2011) 6 Summons Issued as to Nirvelli Day Spa Corporation. Counsel should print summons to effect service. (Talbert, S.) (Entered: 03/29/2011)

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05/18/2011

7 AFFIDAVIT of Service for Complaint served on Nirvelli Day Spa; David Sefried; Heather Sefried on 05/07/11; 05/10/11; 05/11/11, filed by Masterfile Corporation. (Jarrell, Douglas) (Entered: 05/18/2011) 8 MOTION for Entry of Default by Masterfile Corporation. (Attachments: # 1 Text of Proposed Order) (Jarrell, Douglas) (Entered: 06/21/2011) MOTION REFERRED to Dennis P. Iavarone, Clerk of Court: 8 MOTION for Entry of Default. (Talbert, S.) (Entered: 06/24/2011) 9 ORDER granting 8 Motion for Entry of Default against Defendants. Signed by Dennis P. Iavarone, Clerk of Court on 6/27/11. (Talbert, S.) (Entered: 06/28/2011)

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION Civil Action No.: 5:11-CV-00132 MASTERFILE CORPORATION, Plaintiff, v. NIRVELLI DAY SPA CORPORATION; DAVID SEFRIED and HEATHER SEFRIED, Defendant. COMPLAINT

Plaintiff, Masterfile Corporation (Masterfile), by its attorneys, for its complaint against Defendants, Nirvelli Day Spa Corporation (Nirvelli) and David and Heather Sefried (Sefried, jointly Defendants), alleges as follows: JURISDICTION AND VENUE 1. This claim arises under the provisions of the Copyright Act of the United

States, as amended, 17 U.S.C. 1 et seq., and is for infringement of a copyright registered in the Copyright Office of the United States. 2. This Court has subject matter jurisdiction over this action pursuant to 28

U.S.C. 1331 and 1338(a), and personal jurisdiction over Defendants pursuant to North Carolina General Statutes 1-75.4. 3. Venue is proper in this district pursuant to 28 U.S.C. 1391 in that the

Defendant is a corporation subject to a personal jurisdiction in this district and all defendants reside in this district.

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Case 5:11-cv-00132-BO Document 1 Filed 03/24/11 Page 1 of 7

PARTIES 4. Masterfile is a well known stock photography agency residing at 3

Concorde Gate, Fourth Floor, Toronto, Ontario, Canada M3C 3N7. 5. Masterfile is in the business of licensing reproduction rights in

photographs to users for a fee. 6. 7. Defendant Nirvelli is engaged in the business of spa services. Defendant Nirvelli is a corporation operating, conducting, engaging in, or

carrying on a business or business venture in North Carolina. 8. Defendant Nirvelli has an office located at 1003 High House Road, Suite

104, Cary, North Carolina 27513. 9. Defendant Nirvelli provides its services and equipment to customers in

North Carolina and solicits customers in North Carolina through the following website (the Website): www.nirvelli.com. 10. There is likely to be evidentiary support, after a reasonable opportunity for

further investigation or discovery, that Defendant Sefried are individuals residing at 1105 Fallen Oak Drive, Apex, North Carolina, USA 27502. 11. There is likely to be evidentiary support, after a reasonable opportunity for

further investigation or discovery, that Defendant Sefried are the owners of Defendant Nirvelli and hold the title of Member/Manager with Nirvelli. 12. There is likely to be evidentiary support, after a reasonable opportunity for

further investigation or discovery, that Defendant Sefried hold a significant ownership interest in Defendant Nirvelli.

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13.

There is likely to be evidentiary support, after a reasonable opportunity for

further investigation or discovery, that Defendant Sefried, as the owners of Defendant Nirvelli, are a dominant influence in the corporation and have the capacity to control the acts of the corporation. FACTS 14. On or about December 5, 2008, Masterfile discovered that Defendant

Nirvelli was using twenty-three (23) photographs (the Photographs) owned by Masterfile on the Website owned by Defendant Nirvelli. 15. Masterfile complied in all respects with the Copyright Act of the United

States and secured the exclusive right and privilege in and to the copyright of the Photographs identified by Masterfile as 700-00011502, 700-00020999, 700-00021632, 700-00021635, 700-00024191, 700-00025505, 700-00025963, 700-00026216, 70000027040, 700-00027189, 700-00027287, 700-00027604, 700-00027686, 700-00027917, 700-00029056, 700-00030869, 700-00031439, 700-00032979, 700-00033594, 70000033909, 700-00038727, 700-00039287 and 700-00042511 and by the Register of Copyrights Certificate of Registration as VA 1-023-866, VA 1-023-869, VA 1-023-876, VA 1-023-874 and VA 1-023-870. 16. Defendant Nirvelli infringed Masterfile's copyright in the Photographs by

displaying the Photographs on Defendant's website without permission or authorization. 17. Defendant Nirvelli is not, and has never been, licensed or otherwise

authorized to use the Photographs.

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18.

The Website is located on the World Wide Web and accessible throughout

the world, including in North Carolina, via the Internet. 19. The Website was developed and implemented at the direction of

Defendant Sefried. 20. Defendant Sefried, as owners of Defendant Nirvelli, had the ability to

supervise and control the development of the Website. 21. Defendant Sefried, as owners of Defendant Nirvelli, had the ability to

supervise and control content, including photographs, displayed on the Website. 22. Masterfile notified Defendant Nirvelli and Defendant Sefried that

Defendants unauthorized use of the Photographs violates Masterfiles exclusive rights as copyright owner, and gave the Defendants an opportunity to enter into a retroactive licensing agreement or make payment for Defendants unauthorized use prior to instituting the present action. COUNT 1 - COPYRIGHT INFRINGEMENT - NIRVELLI 23. Masterfile incorporates by this reference paragraphs 1-22 above as if fully

set forth herein. 24. 25. Masterfile is owner of the copyright in and to the Photographs. Defendant Nirvelli has made unauthorized copies of the Photographs and

displayed the same on its Website, without the consent of Masterfile. 26. By making the unauthorized copies, and displaying the unauthorized

copies, the Defendant Nirvelli infringes Masterfiles copyright in and to the Photographs.

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27. injury. 28.

As a consequence of the foregoing infringement, Masterfile has suffered

As a further consequence of the foregoing infringement, Defendant

Nirvelli has been unjustly enriched by using the Photographs without payment of the license fee therefore. 29. Defendant Nirvelli has caused Masterfile to suffer injury and financial

harm including, the loss of its license fee, and infringement of Masterfiles proprietary interests. COUNT 2 - COPYRIGHT INFRINGEMENT - SEFRIED 30. Masterfile incorporates by this reference paragraphs 1-22 above as if fully

set forth herein. 31. Defendant Sefried, as the owners of Defendant Nirvelli, is a dominant

influence in Defendant Nirvelli. 32. Defendant Sefried, as owners of Defendant Nirvelli, have the capacity to

control the acts of the corporation. 33. Defendant Sefried, as owners of Defendant Nirvelli, had the ability to

supervise the infringing acts of Defendant Nirvelli. 34. Defendant Sefried, as owners of Defendant Nirvelli, had a financial

interest in the infringing acts of Defendant Nirvelli. 35. Defendant Sefried, in directing the construction of the Website, personally

participated in the infringing acts of Defendant Nirvelli.

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Defendant Sefried is therefore jointly and severally liable for the

infringing acts of Defendant Nirvelli. WHEREFORE, Masterfile prays that this Court: 1. Preliminarily and permanently enjoin Defendants, its officers, directors,

principals, agents, servants, employees, successors and assigns from: a. copying, or making any unauthorized use, including the making of derivatives, of the Photographs, in any form, including but not limited to print or electronic. b. manufacturing, producing, distributing, circulating, selling, offering for sale, advertising, promoting or displaying any promotional material bearing any simulation, reproduction, counterfeit, or copy of the Photographs. c. using any simulation, reproduction, counterfeit, or copy of the Photographs, in connection with the promotion, advertisement, display, sale, offering for sale, manufacture, production, circulation or distribution of any product or service of Defendants. 2. Direct Defendants to deliver for destruction all products, magazines, signs,

prints, packages, dies, wrappers, receptacles, digital files and advertisements in its possession or under its control, bearing the Photographs, or any simulation, reproduction, counterfeit, or copy, and all plates, molds, matrices and other means of making the same. 3. Direct Defendants to account for and relinquish to Masterfile all gains,

profits, and advantages derived by Defendants through Defendants' infringement of Masterfiles copyright.

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4.

Direct Defendants to pay to Masterfile such damages, including actual or

statutory damages, as Masterfile is entitled to as a consequence of Defendants infringement of Masterfiles copyright. 5. Award to Masterfile the costs of this action together with reasonable

attorneys fees. 6. Award to Masterfile such other and further relief as the Court may deem

just and proper. This 24th day of March, 2011. /s/ Douglas M. Jarrell Douglas M. Jarrell N.C. Bar No. 21138 djarrell@rbh.com Attorneys for Plaintiff ROBINSON BRADSHAW & HINSON, P.A. 101 North Tryon Street, Suite 1900 Charlotte, North Carolina 28246 Telephone: 704.377.2536 Facsimile: 704.378.4000 OF COUNSEL: Adam B. Landa, Esq. FL-0036016 Greenberg Traurig, PA 450 S. Orange Avenue, Suite 650 Orlando, Florida 32801-4923 Telephone: (917) 282-9823 landaa@gtlaw.com

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