Dwight v. Third World Press Foundation, Inc.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 24-cv-03104-PAB-STV
EDWARD DWIGHT,
Plaintiff,
v.
THIRD WORLD PRESS FOUNDATION, INC.,
Defendant.
ORDER
This matter is before the Court on Plaintiff's Motion for Default Judgment [Docket
No. 18] and Motion for Status Conference or Hearing [Docket No. 19].
I. BACKGROUND
A. Factual Allegations 1
Plaintiff Edward Dwight owns the copyright to a literary work titled SOARING ON
THE WINGS OF A DREAM: The Struggles & Adventures of the “First Black Astronaut”
Candidate (the “Book”). Docket No. 1 at 1, 4, ¶¶ 1, 22; Docket No. 1-2 at 2. The Book
is autobiographical. Docket No. 1 at 2, 5, ¶¶ 2, 25. Defendant Third World Press
Foundation, Inc. (“Third World Press”) is a book publishing company located in Chicago,
Illinois. Id. at 2, 4, ¶¶ 3, 19. In 2009, Mr. Dwight met with Third World Press to discuss
the possibility of it publishing his Book. Id. at 5, ¶¶ 32-33. Ultimately, Mr. Dwight
1 Because of the Clerk of Court’s entry of default against defendant, see Docket
No. 16, the factual allegations in plaintiff’s complaint, Docket No. 1, are deemed
admitted. See Olcott v. Del. Flood Co., 327 F.3d 1115, 1125 (10th Cir. 2003).
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decided to self-publish the Book and withdrew the Book from Third World Press’s
control. Id. at 6, ¶¶ 35-36. Nevertheless, without Mr. Dwight’s consent, Third World
Press has sold copies of the Book on online distribution channels, such as Amazon. Id.
at 6-7, ¶¶ 43, 47, 50. Third World Press’s version of the Book contains several
unauthorized modifications, including the addition of photographs of Mr. Dwight and a
forged signature. Id. at 8, ¶ 53. On September 17, 2024, Mr. Dwight served a cease-
and-desist letter on Third World Press demanding that it stop marketing and distributing
infringing copies of the Book. Id. at 10, ¶ 73. Third World Press never responded to the
letter and continues to infringe Mr. Dwight’s work. Id. at 10-11, ¶¶ 74-75.
B. Procedural History
Mr. Dwight filed this lawsuit on November 6, 2024. Docket No. 1. Mr. Dwight
asserts claims against Third World Press for (1) copyright infringement under 17 U.S.C.
§ 501 and (2) false designation of origin under 15 U.S.C. § 1125(a)(1)(A). Id. at 11-15,
¶¶ 76-99.
On November 8, 2024, Mr. Dwight served Third World Press. Docket No. 8.
Third World Press has not made an appearance in this action. On January 13, 2025,
the Clerk of the Court entered default against Third World Press. Docket No. 16. On
March 28, 2025, Mr. Dwight filed the motion for default judgment. Docket No. 18.
II. LEGAL STANDARD
In order to obtain a judgment by default, a party must follow the two-step process
described in Fed. R. Civ. P. 55. First, the party must seek an entry of default from the
Clerk of the Court under Rule 55(a). Second, after default has been entered by the
Clerk, the party must seek judgment under the strictures of Rule 55(b). See Williams v.
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Smithson, 57 F.3d 1081, 1995 WL 365988, at *1 (10th Cir. June 20, 1995) (unpublished
table decision) (citing Meehan v. Snow, 652 F.2d 274, 276 (2d Cir. 1981)).
The decision to enter default judgment is “committed to the district court's sound
discretion.” Olcott, 327 F.3d at 1124 (citation omitted). In exercising that discretion, the
Court considers that “[s]trong policies favor resolution of disputes on their merits.” In re
Rains, 946 F.2d 731, 732 (10th Cir. 1991) (quotation and citations omitted). “The
default judgment must normally be viewed as available only when the adversary
process has been halted because of an essentially unresponsive party.” Id. It serves to
protect a plaintiff against “interminable delay and continued uncertainty as to his
rights.” Id. at 733. When “ruling on a motion for default judgment, the court may rely on
detailed affidavits or documentary evidence to determine the appropriate sum for the
default judgment.” Seme v. E&H Prof'l Sec. Co., Inc., No. 08-cv-01569-RPM-KMT,
2010 WL 1553786, at *11 (D. Colo. Mar. 19, 2010).
A party may not simply sit out the litigation without consequence. See Cessna
Fin. Corp. v. Bielenberg Masonry Contracting, Inc., 715 F.2d 1442, 1444-45 (10th Cir.
1983) (“a workable system of justice requires that litigants not be free to appear at their
pleasure. We therefore must hold parties and their attorneys to a reasonably high
standard of diligence in observing the courts’ rules of procedure. The threat of
judgment by default serves as an incentive to meet this standard.”). One such
consequence is that, upon the entry of default against a defendant, the well-pleaded
allegations in the complaint are deemed admitted. See 10A Charles Alan Wright &
Arthur R. Miller, Federal Practice & Procedure § 2688.1 (4th ed., 2023 rev.). “Even after
default, however, it remains for the court to consider whether the unchallenged facts
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constitute a legitimate cause of action, since a party in default does not admit
conclusions of law.” Id. A court need not accept conclusory allegations. Moffett v.
Halliburton Energy Servs., Inc., 291 F.3d 1227, 1232 (10th Cir. 2002). Although
“[s]pecific facts are not necessary” in order to state a claim, Erickson v. Pardus, 551
U.S. 89, 93 (2007) (per curiam) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)), the well-pleaded facts must “permit the court to infer more than the mere
possibility of misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (quotations and
alterations omitted). Thus, even though modern rules of pleading are somewhat
forgiving, “a complaint still must contain either direct or inferential allegations respecting
all the material elements necessary to sustain a recovery under some viable legal
theory.” Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008) (quotation and
citation omitted).
III. ANALYSIS
A. Jurisdiction
Before addressing the merits of plaintiff's motion for default judgment, the Court
must determine whether it has subject matter jurisdiction over the case and personal
jurisdiction over Third World Press. See Dennis Garberg & Assocs., Inc. v. Pack-Tech
Int'l Corp., 115 F.3d 767, 772 (10th Cir. 1997) (holding that “a district court must
determine whether it has jurisdiction over the defendant before entering judgment by
default against a party who has not appeared in the case”).
1. 	Subject Matter Jurisdiction
The Court finds that it has subject matter jurisdiction over Mr. Dwight’s claims
pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1338(a). Section 1331 confers federal
district courts with jurisdiction over “all civil actions arising under the . . . laws . . . of the
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United States.” Thus, because Mr. Dwight’s copyright infringement claim and his false
designation of origin claim both arise under federal law, the Court has subject matter
jurisdiction. Moreover, 28 U.S.C. § 1338(a) confers federal district courts with
jurisdiction over “any civil action arising under any Act of Congress relating to . . .
copyrights and trademarks.” Accordingly, this provides the Court with an alternative
basis to exercise subject matter jurisdiction over Mr. Dwight’s claims.
2. 	Personal Jurisdiction
Plaintiff bears the burden of establishing personal jurisdiction. Rambo v. Am. S.
Ins. Co., 839 F.2d 1415, 1417 (10th Cir. 1988); XMission, L.C. v. Fluent LLC, 955 F.3d
833, 839 (10th Cir. 2020). Plaintiff can satisfy its burden by making a prima
facie showing. Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1070
(10th Cir. 2008). A court will accept the well-pled allegations of the complaint as true in
determining whether plaintiff has made a prima facie showing that personal jurisdiction
exists. AST Sports Sci., Inc. v. CLF Distrib. Ltd., 514 F.3d 1054, 1057 (10th Cir. 2008).
However, “[c]onclusory allegations as to the transaction of business, devoid of further
factual support, are insufficient to establish a good faith basis for personal jurisdiction
over a defendant.” Ryuunosuke Takeshige v. Rich Board, LLC, No. 20-cv-1262-WJM-
KLM, 2021 WL 2351036, at *2 (D. Colo. June 9, 2021) (citing Daimler AG v. Bauman,
571 U.S. 117 (2014)). If the presence or absence of personal jurisdiction
can be established by reference to the complaint, the court need not look further. AST
Sports Sci., Inc., 514 F.3d, at 1057. The plaintiff, however, may also make this prima
facie showing by putting forth evidence that, if proven to be true, would support
jurisdiction over the defendant. Id.
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“In determining whether a federal court has personal jurisdiction over a
defendant, the court must determine (1) whether the applicable statute potentially
confers jurisdiction by authorizing service of process on the defendant and (2) whether
the exercise of jurisdiction comports with due process.” Trujillo v. Williams, 465 F.3d
1210, 1217 (10th Cir. 2006) (quoting Peay v. BellSouth Med. Assistance Plan, 205 F.3d
1206, 1209 (10th Cir. 2000)). The Colorado long-arm statute, Colo. Rev. Stat. § 13-1-
124, has been construed to extend jurisdiction to the full extent permitted by the
Constitution, so the jurisdictional analysis here reduces to a single inquiry of whether
jurisdiction offends due process. See Dudnikov, 514 F.3d at 1070; Archangel Diamond
Corp. v. Lukoil, 123 P.3d 1187, 1193 (Colo. 2005). Personal jurisdiction comports with
due process where a defendant has minimum contacts with the forum state and where
those contacts are such that assuming jurisdiction does not offend “traditional notions of
fair play and substantial justice.” Int'l Shoe Co. v. Washington, 326 U.S. 310, 316
(1945). Minimum contacts may be established under the doctrines of general
jurisdiction or specific jurisdiction. Howarth v. TCER, LLC, 20-cv-03230-PAB-KMT,
2021 WL 4775270, at *2 (D. Colo. Oct. 13, 2021).
Furthermore, proper service is a jurisdictional prerequisite to litigation. Jenkins v.
City of Topeka, 136 F.3d 1274, 1275 (10th Cir. 1998) (“Effectuation of service is a
precondition to suit.”). Without proper service, the Court lacks personal jurisdiction over
a defendant. Okla. Radio Assocs. v. Fed. Deposit Ins. Corp., 969 F.2d 940, 943 (10th
Cir. 1992).
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a. 	Service of Process
The Court first considers whether plaintiff properly served Third World Press.
The Federal Rules of Civil Procedure provide that a corporation, partnership, or
unincorporated association can be served “(A) in the manner 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 by law to receive service of process.” Fed. R. Civ. P. 4(h)(1).
On November 8, 2024, a private process server personally served the summons
to Third World Press’s listed address, identifying Anton Lindsey as the person with
whom the documents were left. Docket No. 8. The Illinois Secretary of State’s website
lists Antoine Lindsey as Third World Press’s registered agent. Business Entity Search,
https://apps.ilsos.gov/businessentitysearch/businessentitysearch (last visited Dec. 23,
2025). The Court presumes that this discrepancy is a typographical error and that
service was proper under Fed. R. Civ. P. 4(h)(1)(B).
b. General Jurisdiction
General jurisdiction extends to “any and all claims” brought against a defendant,
including claims that have no relation to the forum state. Ford Motor Co. v. Montana
Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1024 (2021) (citation omitted). A court may
exercise general jurisdiction only when a defendant is “essentially at home” in the
state. Id. For corporations, “the place of incorporation and principal place of
business are ‘paradig[m]... bases for general jurisdiction.’” Daimler AG, 571 U.S. at 137
(citation omitted); see also Ford Motor Co., 141 S. Ct. at 1024. Mr. Dwight states
that Third World Press is “a nonprofit corporation formed under the laws of Illinois with
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its principal place of business located [in] . . . Chicago, Illinois.” Docket No. 1 at 4, ¶ 19.
Mr. Dwight does not state any facts that would render Third World Press “essentially at
home” in Colorado. Accordingly, the Court finds that Third World Press is not subject to
general jurisdiction in Colorado.
c. 	Specific Jurisdiction
Specific jurisdiction is present only if the lawsuit “aris[es] out of or relat[es] to the
defendant’s contacts with the forum.” Bristol-Myers Squibb Co. v. Sup. Ct. of Cal., 582
U.S. 255, 262 (2017). That is, “[a] plaintiff's injury must ‘arise out of or relate to’ the
defendant's forum contacts.” Compañía de Inversiones Mercantiles, S.A. v. Grupo
Cementos de Chihuahua S.A.B. de C.V., 970 F.3d 1269, 1284 (10th Cir.
2020) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472–73 (1985)). In other
words, “there must be ‘an affiliation between the forum and the underlying controversy,
principally, [an] activity or an occurrence that takes place in the forum State and is
therefore subject to the State's regulation.’” Bristol-Myers, 582 U.S. at
262 (quoting Goodyear Dunlop Tires Operations, S. A. v. Brown, 564 U.S. 915, 919
(2011)).
The specific jurisdiction analysis is two-fold. First, a court must determine
whether a defendant has such minimum contacts with Colorado that the defendant
“should reasonably anticipate being haled into court” here. World-Wide Volkswagen
Corp. v. Woodson, 444 U.S. 286, 297 (1980). Within this inquiry, the court must
determine whether the defendant purposefully directed its activities at residents of the
forum, Burger King, 471 U.S. at 472, and whether plaintiff's claim arises out of or results
from “actions by . . . defendant . . . that create a substantial connection with the forum
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State.” Asahi Metal Indus. Co. v. Sup. Ct. of Cal., 480 U.S. 102, 109 (1987) (internal
quotations omitted). “The contacts must be the defendant’s own choice and not
‘random, isolated, or fortuitous.’” Ford Motor Co., 141 S. Ct. at 1025 (quoting Keeton v.
Hustler Magazine, Inc., 465 U.S. 770, 774 (1984)). “They must show that the defendant
deliberately ‘reached out beyond’ its home – by, for example, ‘exploi[ting] a market’ in
the forum State or entering a contractual relationship centered there.” Id. (citation
omitted). Second, if a defendant’s actions create sufficient minimum contacts, the court
must consider whether the exercise of personal jurisdiction over the defendant offends
“traditional notions of fair play and substantial justice.” Asahi, 480 U.S. at 105. The
court considers several factors as part of this analysis, including: (1) the burden on the
defendant; (2) the forum state’s interest in adjudicating the dispute; (3) the plaintiff’s
interest in obtaining convenient and effective relief; (4) the interstate judicial system’s
interest in obtaining the most efficient resolution of controversies; and (5) the shared
interest of the states in furthering fundamental substantive social policies. Burger King,
471 U.S. at 477.
Mr. Dwight argues that the Court has specific jurisdiction over Third World Press
because Third World Press marketed and sold infringing copies of the Book to Colorado
residents. Docket No. 18 at 7-8. However, the only factual support Mr. Dwight provides
are screenshots of a Colorado resident purchasing one copy of the infringing Book on
Amazon. Docket No. 1-1. The claim that Third World Press marketed the book to
Colorado residents is “vague and conclusory, and does not set forth a colorable basis
for the Court’s exercise of personal jurisdiction.” Ryuunosuke Takeshige, 2021 WL
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2351036, at *2. Therefore, the only basis for jurisdiction supported by facts is that Third
World Press sold a Colorado resident a copy of the infringing Book via Amazon.
Courts have been divided on whether an out-of-state defendant is subject to
specific jurisdiction for selling products via an online website to consumers in a specific
state. See, e.g., Herbal Brands, Inc. v. Photoplaza, Inc., 72 F.4th 1085, 1095 (9th Cir.
2023) (holding that selling products on Amazon to Arizona residents created sufficient
connections to Arizona for the exercise of personal jurisdiction); NBA Props., Inc. v.
HANWJH, 46 F.4th 614, 624 (7th Cir. 2022) (holding that selling an infringing product on
Amazon and shipping it to an Illinois address created sufficient connections to Illinois for
the exercise of personal jurisdiction); Chloe v. Queen Bee of Beverly Hills, LLC, 616
F.3d 158, 171-72 (2d Cir. 2010) (holding that selling a product online to New York
buyers created sufficient connections to New York for the exercise of personal
jurisdiction); Bros. & Sisters in Christ, LLC v. Zazzle, Inc., 42 F.4th 948, 953 (8th Cir.
2022) (holding that selling a product online to a Missouri consumer was not sufficient to
establish personal jurisdiction); Admar Int’l, Inc. v. Eastrock, L.L.C., 18 F.4th 783 (5th
Cir. 2021) (holding that selling a product online to Louisiana residents was not sufficient
to establish personal jurisdiction when the website did not specifically target Louisiana).
The Ninth, Seventh, and Second Circuits have found that selling a product online can
be sufficient to establish personal jurisdiction, while the Eighth and Fifth Circuit have
found that something more than mere online sales is required.
The Tenth Circuit has not yet discussed whether specific jurisdiction can be
established through online sales. However, courts in this District have found that, in
cases involving online sales, “minimum contacts can be established on the basis of the
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substantial or regular flow of sales from a non-resident company to residents of the
forum state.” SEBO Am., LLC v. Red Vacuums LLC, No. 23-cv-0116-WJM-
SBP, 2024 WL 964816, at *3-4 (D. Colo. Mar. 6, 2024) (collecting cases). For example,
in Otter Prods., LLC v. Big Birds, LLC, No. 19-cv-00626-DME-KLM, 2019 WL
13102793, at *1-2 (D. Colo. Aug. 9, 2019), the court found that plaintiff sufficiently
alleged that defendants had minimum contacts in Colorado based on allegations that (1)
defendants “have made substantial and regular sales of infringing products bearing
Plaintiffs’ trademarks to Colorado,” including “at least fifty such sales” occurring over a
three month period; and (2) defendants “continue to regularly sell a high volume of other
infringing products bearing Plaintiffs’ trademarks into Colorado.” (internal alterations
omitted). In Otter Prod., LLC v. Phone Rehab, LLC, No. 19-cv-00206-RM-MEH,
2019 WL 4736462, at *4 (D. Colo. Sept. 27, 2019), report and recommendation
adopted, 2019 WL 6888276 (D. Colo. Dec. 18, 2019), the court found that plaintiffs
established specific personal jurisdiction over defendants based on allegations that
defendants sold and shipped 341 infringing products to Colorado consumers via
Amazon for over a year, in addition to shipping over 1,000 other products
to Colorado during the same time period. By contrast, in Red Vacuums, the court found
that SEBO failed to establish that defendant had sufficient minimum contacts
in Colorado because SEBO's evidence only showed that defendant received seven
online orders from consumers in Colorado, including six orders from plaintiff's counsel,
and defendant only shipped one order to Colorado. Red Vacuums, 2024 WL 964816, at
*5. The court found that “seven orders” was distinguishable from the “high volume” of
sales in Big Birds and Phone Rehab. Id. Similarly, in SEBO Am., LLC v. Mega Mart
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Warehouse LLC, No. 22-cv-02898-PAB-KAS, 2024 WL 1257534, at *4-6 (D. Colo. Mar.
25, 2025), this Court found that four orders placed on Amazon were insufficient to
establish minimum contacts in Colorado.
The Court finds that Mr. Dwight has not provided sufficient jurisdictional
allegations to establish that Third World Press has minimum contacts in Colorado.
Although Mr. Dwight alleges in the complaint that Third World Press actively markets
and sells the infringing Book to Colorado residents, see Docket No. 1 at 3, ¶ 15, the
only example Mr. Dwight provides is the sale of one book on Amazon. Docket No. 1-1.
Just as the seven orders were insufficient to establish minimum contacts in Red
Vacuums, the single order here is also insufficient to establish minimum contacts. See
Red Vacuums, 2024 WL 964816, at *5.
Mr. Dwight argues that specific jurisdiction exists when out-of-state media
defendants nationally distribute printed material. Docket No. 18 at 7 (citing Keeton, 465
U.S. 770). However, this overstates the holding in Keeton. There, the Court found that
specific jurisdiction existed when the defendant regularly circulated thousands of
magazines to monthly subscribers in the forum state. Keeton, 465 U.S. at 774. The
Court stated that this number of regular sales “[could not] by any stretch of the
imagination be characterized as random, isolated, or fortuitous.” Id. This is not the
case with the single online sale shown here. Thus, Keeton does not provide support for
the Court to exercise specific jurisdiction.
Mr. Dwight may be able to plead facts demonstrating that the Court has specific
personal jurisdiction over Third World Press, but he has not done so at this stage.
Accordingly, the Court will deny the request for default judgment without prejudice for
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failure to plead sufficient facts showing personal jurisdiction. See United States v.
Noell, No. 22-cv-02538-PAB-SP, 2023 WL 4204669, at *5 (D. Colo. June 27,
2023) (denying default judgment motion without prejudice for failure to plead sufficient
personal jurisdiction allegations). Moreover, because the Court will deny the request for
default judgment, the motions for a status conference or hearing, Docket Nos. 19 and
20, are moot and will also be denied.
IV. CONCLUSION
It is therefore
ORDERED that Plaintiff's Motion for Default Judgment [Docket No. 18]
is DENIED without prejudice. It is further
ORDERED that Plaintiff’s Motion for Status Conference or Hearing [Docket No.
19] is DENIED. It is further
ORDERED that Plaintiff’s Second Motion for Status Conference or Hearing
[Docket No. 20] is DENIED.
DATED December 31, 2025.
BY THE COURT:
___________________________
PHILIP A. BRIMMER
Chief United States District Judge
______________	_ ___________
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