Michael Lichter Photography, LLC v. GIT Corp. et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 24-cv-02975-PAB-SBP
MICHAEL LICHTER PHOTOGRAPHY, LLC,
Plaintiff,
v.
GIT CORP., and
RAY PELOSI,
Defendants.
ORDER
This matter comes before the Court on the Motion for Entry of Default Judgment
and Attorney’s Fees [Docket No. 30].
I. BACKGROUND
A. Factual Allegations 1
Plaintiff Michael Lichter Photography, LLC (“Lichter Photography”) owns the
copyrights to twelve different works, consisting of collections of photographs and texts
(the “Works”). Docket No. 1 at 7-9, ¶¶ 23, 30-31; Docket No. 1-1 at 2-3; Docket No. 1-2
at 2-3; Docket No. 1-3 at 2-3; Docket No. 1-4 at 2-3; Docket No. 1-5 at 2-3; Docket No.
1-6 at 2-3; Docket No. 1-7 at 2-3; Docket No. 1-8 at 2-3; Docket No. 1-9 at 2-3; Docket
No. 1-10 at 2-3; Docket No. 1-11 at 2-3; Docket No. 1-12 at 2-3. Defendant GIT Corp.
1 Because of the Clerk of Court’s entry of default against defendants, see Docket
Nos. 23 and 27, 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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(“GIT”) is a New York corporation that licenses and digitizes print content. Docket No. 1
at 2, ¶ 2. Upon information and belief, defendant Ray Pelosi is a New York resident
who is the operator and 100% owner of GIT. Id., ¶ 3. Easyriders—a magazine known
for coverage of motorcycles and related activity—was founded in 1970 and was
published monthly for over 50 years. Id. at 4-5, ¶ 11. In 2021, GIT licensed the
Easyriders brand and began publishing the magazine as Classic Easyriders in print and
digital form. Id. at 5, ¶ 12. Lichter Photography’s owner, Michael Lichter, previously
had his work published in Easyriders. Id. at 4-6, ¶ 9, 14. GIT contracted with Lichter
Photography to include Lichter Photography content in issues of Classic Easyriders. Id.
at 6, ¶ 15. GIT never paid for the content, but nevertheless included the Works in
Classic Easyriders issues. Id. at 7-8, ¶¶ 21-23. Neither Mr. Pelosi nor GIT has received
any license to use the Works in any way. Id. at 8, ¶ 26. On March 2, 2023, Lichter
Photography sent a cease-and-desist letter to defendants. Id., at 9, ¶ 28. Defendants
ignored the letter. Id.
B. Procedural History
Lichter Photography filed this lawsuit on October 24, 2024. See generally id.
Lichter Photography asserts claims against GIT and Mr. Pelosi for (I) Copyright
Infringement; (II) Breach of Contract; (III) Claim for Account Stated under Colorado Law;
(IV) Claim for Account Stated under New York Law; (V) Unjust Enrichment; (VI)
Promissory Estoppel; and (VII) Equitable Estoppel. 2 Id. at 9-16, ¶¶ 29-91.
2 Lichter Photography also brought claims against GIT Media Group, Inc. and
Graphic Imaging Technology, Inc., Docket No. 1 at 2, ¶ 2, but dismissed both
defendants pursuant to Fed. R. Civ. P. 41(a)(1). Docket Nos. 19 and 20.
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On January 9, 2025, Lichter Photography served Mr. Pelosi. Docket No. 12. On
January 14, 2025, Michael Lichter served GIT. Docket No. 13. Neither defendant has
made an appearance in this action. On March 21, 2025, the Clerk of the Court entered
default against GIT. Docket No. 23. On March 27, 2025, the Clerk of the Court entered
default against Mr. Pelosi. Docket No. 27. On April 21, 2025, Michael Lichter filed the
motion for default judgment. Docket No. 30.
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.
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).
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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
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).
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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 defendants. 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
Lichter Photography claims that the Court has subject matter jurisdiction over its
claims pursuant to 28 U.S.C. §§ 1332(a)(1), 1331, 1367, 1338(a), and 1338(b). Docket
No. 30 at 5-6.
Section 1332(a)(1) grants federal district courts original jurisdiction over “all civil
actions where the matter in controversy exceeds the sum or value of $75,000, exclusive
of interest and costs, and is between—(1) citizens of different States.” 28 U.S.C.
§ 1332(a)(1). In its complaint, Lichter Photography alleges that it is a Colorado limited
liability company with its principal place of business in Colorado. Docket No. 1 at 1, ¶ 1.
The citizenship of a limited liability company is determined not by its state of
organization or principal place of business, but by the citizenship of all of its members.
See Siloam Springs Hotel, LLC v. Century Sur. Co., 781 F.3d 1233, 1237-38 (10th Cir.
2015) (“[I]n determining the citizenship of an unincorporated association for purposes of
diversity, federal courts must include all the entities’ members.”). However, in its
Federal Rule of Civil Procedure 7.1 Corporate Disclosure Statement, Lichter
Photography claims that it is “a Colorado corporation,” Docket No. 2, which makes little
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sense since its name includes the acronym “LLC” or “limited liability company.”
Moreover, the Colorado Secretary of State’s website identifies Michael Lichter
Photography, LLC as a limited liability company. Summary,
https://www.coloradosos.gov/biz/BusinessEntityDetail.do?quitButtonDestination=Busine
ssEntityResults&nameTyp=ENT&masterFileId=19951044247&entityId2=19951044247&
fileId=19951044247&srchTyp=ENTITY (last visited Jan 15, 2026). Thus,
notwithstanding the Rule 7.1 disclosure statement, the Court presumes Lichter
Photography is a limited liability company. Thus, because Lichter Photography does
not allege the citizenship of its members, its allegations are insufficient to show that the
Court has diversity jurisdiction in this case. Furthermore, Lichter Photography’s
allegations regarding Mr. Pelosi are insufficient to establish that he is a New York
citizen. Lichter Photography alleges that Mr. Pelosi is “a New York resident.” Docket
No. 1 at 2, ¶ 3. However, “allegations of mere ‘residence’ may not be equated with
‘citizenship’ for the purposes of establishing diversity.” Whitelock v. Leatherman, 460
F.2d 507, 514 (10th Cir. 1972). Therefore, Lichter Photography has not shown that the
Court has diversity jurisdiction over this case under § 1332(a)(1).
Section 1331 confers federal district courts with jurisdiction over “all civil actions
arising under the . . . laws . . . of the United States.” 28 U.S.C. § 1331. One of Lichter
Photography’s claims, copyright infringement, arises under federal law. Thus, the Court
has subject matter jurisdiction over that claim. Moreover, 28 U.S.C. § 1338(a) confers
federal district courts with jurisdiction over “any civil action arising under any Act of
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Congress relating to . . . copyrights and trademarks.” This provides the Court with an
alternative basis to exercise jurisdiction over the copyright infringement claim. 3
Lichter Photography’s remaining six claims arise under state law. Pursuant to 28
U.S.C. § 1367(a), the Court can exercise supplemental jurisdiction over these state law
claims if they are “so related to claims in the action within such original jurisdiction that
they form part of the same case or controversy.” “A claim is part of the same case or
controversy if it derives from a common nucleus of operative fact.” Price v. Wolford,
608 F.3d 698, 702-03 (10th Cir. 2010) (quotations, alterations, and citations omitted).
“[T]he Supreme Court repeatedly has determined that supplemental jurisdiction is not a
matter of the litigants’ right, but of judicial discretion,” and “district courts may decline to
exercise supplemental jurisdiction.” Est. of Harshman v. Jackson Hole Mountain Resort
Corp., 379 F.3d 1161, 1165 (10th Cir. 2004). The Court finds that all of the claims
derive from a common nucleus of operative fact. Specifically, all the claims arise out of
defendants’ failure to pay Lichter Photography for a license to use the Works, as per the
parties’ agreement. Docket No. 1 at 9-16, ¶¶ 29-91. However, there is reason for the
Court to decline to exercise supplemental jurisdiction. Section 1367(c)(2) gives district
courts discretion to decline the exercise of supplemental jurisdiction if “the claim
substantially predominates over the claim . . . over which the district court has original
jurisdiction.” 28 U.S.C. § 1367(c)(2). Here, Lichter Photography’s claims arguably
3 Lichter Photography argues that 28 U.S.C. § 1338(b) provides another ground
for the Court to exercise subject matter jurisdiction. Docket No. 1 at 3, ¶ 6. Section
1338(b) confers district courts with jurisdiction “of any civil action asserting a claim of
unfair competition when joined with a substantial and related claim under the copyright
. . . laws.” 28 U.S.C. § 1338(b). This is inapplicable here, since Lichter Photography
alleges no unfair competition claim. See generally Docket No. 1.
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center around the breach of the parties’ agreements for defendants to pay Lichter
Photography for the license to use the Works, with defendants publishing the Works
without payment. Moreover, the six state law claims quantitatively predominate over the
one federal claim. On the other hand, the breach of the agreement centers around the
fact that defendants infringed Lichter Photography’s copyright. Ultimately, the Court
does not find it necessary to determine whether it should exercise supplemental
jurisdiction over the state law claims because other legal issues preclude entering
default judgment, as will be explained below.
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). The 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
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facie showing by putting forth evidence that, if proven to be true, would support
jurisdiction over the defendant. Id.
“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
Federal Rule of Civil Procedure 4(e) governs the service of individuals. Rule
4(e)(2) states that service on individuals may be effectuated by “(A) delivering a copy of
the summons and of the complaint to the individual personally; (B) leaving a copy of
each at the individual’s dwelling or usual place of abode with someone of suitable age
and discretion who resides there; or (C) delivering a copy of each to an agent
authorized by appointment or by law to receive service of process.” Fed. R. Civ. P.
4(e)(2). Mr. Pelosi is an individual. Docket No. 1 at 2, ¶ 3. On January 9, 2025, Lichter
Photography’s process server served Mr. Pelosi at 25 Half Mile Rd., Red Bank, New
Jersey. Docket No. 12. Lichter Photography asserts that Mr. Pelosi was served at his
residence. Docket No. 30 at 5. Therefore, the Court finds that Mr. Pelosi was properly
served.
Federal Rule of Civil Procedure 4(h) governs the service of corporations. Rule
4(h)(1)(B) provides that a plaintiff may serve process on a corporation “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)(B); see also Howarth, 2021 WL 4775270, at *3. GIT is a
corporation. Docket No. 1 at 2, ¶ 2. On January 14, 2025, Lichter Photography’s
process server served Tyla Hyman. Docket No. 13. The proof of service form states
that Ms. Hyman is “designated by law to accept service of process on behalf of . . .
GIT.” Id. Therefore, the Court finds that GIT was properly served.
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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., 592 U.S. 351, 358 (2021) (citation omitted). A court may exercise
general jurisdiction only when a defendant is “essentially at home” in the state. Id. “For
an individual, the paradigm forum for the exercise of general jurisdiction is the
individual’s domicile.” Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915,
924 (2011). “To establish domicile in a particular state, a person must be physically
present in the state and intend to remain there.” Smith v. Cummings, 445 F.3d 1254,
1260 (10th Cir. 2006). 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., 592 U.S. at 358-59. Lichter
Photography alleges Mr. Pelosi is “a New York resident.” 4 Docket No. 1 at 2, ¶ 3.
Lichter Photography also alleges that GIT is a “New York corporation[ ] . . . with a
principal place of business in Brooklyn, New York.” Docket No. 1 at 2, ¶ 2. Lichter
Photography does not state any facts that would render Mr. Pelosi or GIT “essentially at
home” in Colorado. Accordingly, the Court finds that neither defendant is subject to
general jurisdiction in Colorado.
c. 	Specific Jurisdiction
Specific jurisdiction is present 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
4 Lichter Photography does not allege that Mr. Pelosi intends to remain in New
York and thus does not sufficiently allege that Mr. Pelosi is domiciled in New York.
Docket No. 1 at 2, ¶ 3.
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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., 564 U.S. at 919).
The specific jurisdiction analysis is two-fold. First, the court must determine
whether a defendant has such minimum contacts with Colorado that the defendant
“should reasonably anticipate being haled into court” there. 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
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., 592 U.S. at 359 (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
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“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.
Lichter Photography’s sole allegation that the Court has personal jurisdiction is
that “each of the Defendants has had substantial contacts with Colorado related to the
actions and offenses alleged in this Complaint.” Docket No. 1 at 3, ¶ 7. Lichter
Photography provides no information regarding what those contacts are or why
defendants should anticipate being haled into court in Colorado. See generally id.;
Docket No. 30. Plaintiff makes no allegations, for example, that the contract was
negotiated or drafted in Colorado or that the infringing Works were marketed to
Colorado citizens. As the court noted in Ryuunosuke Takeshige, 2021 WL 2351036, at
*2, “Plaintiff's sole allegation as to personal jurisdiction is vague and conclusory, and
does not set forth a colorable basis for the Court's exercise of personal jurisdiction over
Defendant.” Lichter Photography may be able to plead facts demonstrating that the
Court has specific personal jurisdiction over defendants, but it has not done so at this
stage. Accordingly, the Court will deny the request for default judgment without
prejudice for failure to plead sufficient facts showing personal jurisdiction. See United
States v. Noell, No. 22-cv-02538-PAB-SBP, 2023 WL 4204669, at *5 (D. Colo. June 27,
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2023) (denying default judgment motion without prejudice for failure to plead sufficient
personal jurisdiction allegations).
IV. CONCLUSION
It is therefore
ORDERED that the Motion for Entry of Default Judgment and Attorney’s Fees
[Docket No. 30] is DENIED without prejudice.
DATED January 26, 2026.
BY THE COURT:
___________________________
PHILIP A. BRIMMER
Chief United States District Judge
__________________________
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