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Amber Arpaio v. Ashley Alexandra Dupre

March 3, 2011


The opinion of the court was delivered by: Pisano, District Judge.



On July 11, 2008, Plaintiff Amber Arpaio commenced this action against Defendants Joseph Francis, MRA Holding, LLC, Mantra Films, Inc., and Ashley Alexandra Dupre (collectively, "Defendants"). Plaintiff's claims stem from Dupre's use of Plaintiff's name and likeness in a salacious video and its subsequent publication on the Internet by Francis. The video's publication quickly followed the revelation that Dupre was the infamous prostitute at the center of the scandal that led to the resignation of New York Governor Eliot Spitzer. Though Plaintiff received a waiver of service from the other defendants, her efforts to serve Dupre encountered obstacles that cast doubt on their effectiveness. At a proof and damages hearing held before the Court on October, 19, 2010, Plaintiff detailed her efforts to serve process on Dupre, substantiated the damages caused by Defendants' actions, and requested an entry of default judgment. For the reasons set forth below, the Court enters default judgment for Plaintiff against Defendants Joseph Francis, MRA Holding, LLC, and Mantra Films, Inc. Because service of process on Defendant Dupre was not made, however, the Court orders Plaintiff to effect proper service against Dupre or her claims against her will be dismissed for failure to prosecute.

Eliot Spitzer resigned from the office of Governor of the State of New York on March 12, 2008. Two days earlier, the New York Times reported that the governor had "been caught on a federal wiretap arranging to meet with a high-priced prostitute at a Washington hotel." Danny Hakim & William K. Rashbaum, Spitzer Is Linked to Prostitution Ring, N.Y. Times, Mar. 10, 2008, available at The "high-priced prostitute" with whom Spitzer had his Washington assignation was later revealed as Defendant Ashley Alexandra Dupre.*fn1 Media coverage surrounding the affair was intense as the scandal took on a wide public following and the players became notorious. Indeed, Dupre was soon acknowledged by the celebrity gossip industry as "the most famous prostitute in America." Ashley Dupre Offered $1 Million By Girls Gone Wild, The Hollywood Gossip (Mar. 18, 2008, 12:09 PM),

I. Factual Background

Hoping to capitalize on the media attention, Defendant Joseph Francis, head of Defendant Mantra Films, Inc. ("Mantra"), offered Dupre $1 million to appear in a magazine spread and participate in a promotional tour with the "Girls Gone Wild" franchise. Solvej Schou, 'Girls Gone Wild' founder says Spitzer call girl was in video archives; pulls $1 million offer, Associated Press, Mar. 19, 2008. "Girls Gone Wild" has been described as "a popular series of sexually graphic DVDs . . . which feature young women drinking and partying while frequently exposing themselves in whole or in part." United States v. Mantra Films, Inc., 240 Fed. Appx. 372, 372 (11th Cir. 2007).*fn2 This offer was quickly pulled off the table, however, when Francis discovered that he had archived footage of Dupre from five years earlier, when Dupre joined a "Girls Gone Wild" bus tour for a week. See Schou, supra.

On April 28, 2008, Dupre filed a $10 million federal suit in Florida against Francis, alleging that he improperly used her image from archived footage to promote his "Girls Gone Wild" series. See Complaint, Dupre v. Francis, et al. ("Dupre v. Francis"), Civil Action no. 1:08-cv-21238 (S.D. Fla. 2008). Dupre further alleged that because she was only 17 years of age at the time, she did not understand the implications of signing any legal release. Id. According to news reports, Francis responded by releasing a video to the public in which a 17-year-old Dupre, covered only in a towel, provides consent to be in "Girls Gone Wild," states that she is 18, and provides her name as Amber Arpaio. Curt Anderson, 'Girls Gone Wild': Video proves call girl agreed to appear, Associated Press, Apr. 30, 2008. The video also provides a close-up view of a New Jersey driver's license in the name of Amber Arpaio. Id. Soon after the release of the video, Dupre voluntarily dismissed her suit against Francis. See Order Dismissing Case, Dupre v. Francis.

II. Service of Process

On July 11, 2008, Plaintiff Amber Arpaio filed her Complaint against Dupre, Francis, Mantra, and MRA Holding, LLC ("MRA"), seeking compensatory and punitive damages for invasion of her privacy, misappropriation of her name for Defendants' benefit, unauthorized use of her name for advertisement, defamatory injury to her reputation, and conspiracy. Plaintiff submitted an affidavit testifying to the difficulty in serving the named defendants on December 29, 2008. On January 7, 2010, Plaintiff filed proof that Francis, Mantra, and MRA waived service and the Clerk of the Court accordingly entered default against those defendants on April 5, 2010.

Service upon Dupre proved to be more problematic. On March 9, 2009, Plaintiff's process server observed a woman leaving from Dupre's "last known address" in Wall, New Jersey. Aff. of Service, (Docket Entry no. 19). Upon the woman's entering her Mercedes Benz, the process server followed her to a fitness club in nearby Manasquan. "Upon exiting the vehicle," however, "it is determined that the female is Ashley Dupre's mother who looks extremely youthful and similar to Ashley." Id. The process server returned the next day to Dupre's "last known address," where loud music was playing. Upon the process server's knocking on the front door, the music ceased. After twenty seconds, the process server began to knock again, and the music restarted. "Now [the process server] knocks on the door using a large brass knocker fastened to the door. It is an extremely loud and effective knocker, but the music continues and no one comes to the door." Id. The process server then left a copy of the summons in the residence's mailbox. From May through July 2009, Plaintiff's counsel had no less than three phone calls with another lawyer who revealed to him that she had been approached by Dupre regarding possible legal representation in this matter and acknowledged that Dupre did receive the summons and complaint.*fn3 Id. After filing with the Court an affidavit describing the previous attempts to serve Dupre, the Clerk of the Court entered default against Dupre on August 31, 2009.

The Court conducted a proof and damages hearing on October 19, 2010, in which Plaintiff moved for an entry of default judgment against all defendants. At the hearing, the Court asked Plaintiff's counsel to submit an additional affidavit of service upon Defendants, which Plaintiff filed on November 8, 2010. That affidavit, (Docket Entry no. 37), explained the initial difficulty in serving Defendants and provided proof of the waiver of service by Francis, Mantra, and MRA. The affidavit also reiterated the process server's attempts to serve Dupre and the communications between Plaintiff's counsel and the lawyer approached by Dupre. Id. The affidavit concluded by describing Plaintiff's mailing Dupre an amended complaint by certified mail, which was returned "unclaimed." Id.

III. Discussion

A. Sufficiency of Service of Process

Service of process is governed by Federal Rule of Civil Procedure 4, which provides four methods for serving an individual within a judicial district of the United States: (1) delivering a copy of the summons and of the complaint to the individual personally; (2) 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; (3) delivering a copy of each to an agent authorized by appointment or by law to receive service of process; or (4) following state law for service of process. Fed. R. Civ. P. 4(e). Generally, federal courts have no power to render a judgment against a party who has not been served properly. Taylor v. Sturgell, 553 U.S. 880, 884, 128 S. Ct. 2161, 2167 (2008) ("It is a principle of general application in Anglo-American jurisprudence that one is not bound by a judgment in personam in a litigation . . . to which he has not been made a party by service of process."). Accordingly, as a general matter, the Third Circuit recognizes that the entry of a default judgment without proper service renders that judgment void. United States v. One Toshiba Color Television, 213 F.3d 147, 156 (3d Cir. 2000) (citing Gold Kist, Inc. v. Laurinburg Oil Co., Inc., 756 F.2d 14, 19 (3d Cir.1985)). Finally, actual notice to the defendant is not an appropriate substitute for proper service of process. See, e.g., Omni Capital Int'l, ...

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