                           NOT FOR PUBLICATION                           FILED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,

                                          3
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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