United States District Court, D. Nevada
For Floyd Mayweather, Plaintiff: Bethany Rabe, Mark G Tratos, Greenberg Traurig LLP, Las Vegas, NV; Tyler Andrews, Greenberg Traurig, Las Vegas, NV.
REPORT & RECOMMENDATION
CAM FERENBACH, UNITED STATES MAGISTRATE JUDGE.
This matter involves Floyd Mayweather's publicity and trademark action against The Wine Bistro and 2nd To None Entertainment, LLC. ( See generally Amend. Compl. #6). Before the court is Mayweather's Amended Motion for Default Judgment (#46). For the reasons stated below, Mayweather's motion should be granted.
The Wine Bistro is a restaurant, nightclub, and bar in New Orleans, Louisiana. ( See Amend. Compl. (#6) at ¶ 2). It is located at 1011 Gravier Street, two blocks from the French Quarter and a half mile from the Mercedes-Benz Superdome. In 2013, Gravier Street was a prime location for a restaurant, nightclub, and bar because New Orleans was hosting Super Bowl XLVII between the San Francisco 49ers and the Baltimore Ravens.
The Wine Bistro aimed to profit from the event. In late January, it began publicizing a Super Bowl kickoff party. The Wine Bistro's Facebook and YouTube pages ran flashy advertisements for a " SUPER BOWL TAKEOVER!" sponsored by 2nd To None Entertainment. ( See, e.g., Mot. for Default J. (#46-1) at Ex 5). The event would last all weekend long; but the main attraction was scheduled for Friday night: " 'Ball So Hard, SUPER BOWL Kick-Off!' Hosted by, 'Floyd Mayweather' & 'The Money Team!'" (Id.) General admission was $50.00. (Doc. (#6) at ¶ 28). VIP tickets cost $100.00. (Id.) Tickets could be purchased online at 2nd To None Entertainment's webpage. (Doc. (#6) at Ex. 6).
Floyd Mayweather is a world-renown boxer. In 47 bouts, he has never been defeated. The Money Team is his entourage. It includes Justin Bieber, Li'l Kim, 50 Cent, Miss Jackson, and other celebrities. (Doc. (#46-1) at 3, n. 3). It is not uncommon for Mayweather and The Money Team to host parties. (Doc. (#6) at ¶ 20). In addition to being a boxer, Mayweather is a businessman and entertainer. (Id. at ¶ 19). In order to promote his brand, he appears at nightclubs, acts as a special guest or host, and is paid as much as $100, 000.00 for his appearance. (Id. at ¶ 20).
When The Wine Bistro advertised that Mayweather would host their Super Bowl kickoff party, fans became excited. Posts on The Wine Bistro's Facebook page read, " I well [ sic ] be there love some money Floyd Mayweather!" and " All cash on MAYWEATHER$$$$$$$." (Doc. (#46-1) at Ex. 5). There was just one problem: neither Mayweather nor The Money Team ever agreed to appear at The Wine Bistro. (Doc. (#6) at ¶ 29).
Mayweather commenced this action four days after the Raven's victory in Super Bowl XLVII. He alleges that The Wine Bistro and 2nd To None Entertainment, LLC's false advertising violated his publicity and trademark rights by using his name and image to sell tickets. On August 13, 2013, The Wine Bistro and 2nd To None Entertainment were served. ( See Docs. #14, #16). However, both Defendants have failed to answer or otherwise defend against Mayweather's claims. Accordingly, on September 19, 2013, the Clerk of Court entered default against Wine Bistro and 2nd To None Entertainment. (Doc. #22). Now, Mayweather moves for default judgment.
On November 5, 2014, the court held a hearing on Mayweather's motion. On November 12, 2014, Mayweather entered a notice of voluntary dismissal against all defendants except The Wine Bistro and 2nd To None Entertainment, LLC. ( See Doc. #57). This report and recommendation follows.
Federal Rule of Civil Procedure 55 governs default judgment. It states that " [w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default." Fed.R.Civ.P. 55(a). After the Clerk of Court enters a default, the plaintiff must petition the court to obtain a default judgment. Fed.R.Civ.P. 55(b)(2).
Before considering whether default judgment should be entered, the court has " an affirmative duty" to ensure that it has personal jurisdiction over the defaulted defendant and subject-matter jurisdiction over the plaintiff's action. In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999) (citing Williams v. Life Sav. and Loan, 802 F.2d 1200, 1203 (10th Cir. 1986)). A judgment without jurisdiction is void. Id. (citations omitted).
If jurisdiction exists, the court's decision to enter default judgment is discretionary. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980); see also Heidenthal, 826 F.2d at 917 (" Rule 55 gives the court considerable leeway as to what it may require as a prerequisite to the entry of a default judgment."). Generally, the court accepts the factual allegations in the plaintiff's complaint as true but requires the plaintiff to prove damages. Televideo Video Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987).
The Ninth Circuit has adopted seven factors that courts " may" consider when adjudicating a motion for default judgment. Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986) (citing 6 Moore's Federal Practice ¶ 55-05, at 55-24 to 55-26). The factors are: (1) the possibility of prejudice to the plaintiff; (2) the merits of the plaintiff's substantive claim; (3) the sufficiency of the complaint; (4) the sum of money at stake in the action; (5) the possibility of a dispute concerning material facts; (6) whether the default was due to excusable neglect; and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits. Eitel, 782 F.2d at 1471-72 (applying four of the seven factors).
Under Rule 55, the court must engage in three inquiries when recommending default judgment against The Wine Bistro and 2nd To None Entertainment: (1) whether the court can enter default judgment ( i.e., does jurisdiction exist?); (2) whether the court should enter default judgment ( i.e., do the Eitel factors favor Mayweather?); and (3) whether Mayweather has proven damages. Each inquiry is addressed below.
I. Whether Jurisdiction Exists
The court's analysis of Mayweather's motion begins with jurisdiction. In re Tuli, 172 F.3d at 712. When examining a motion for default judgment, the court has " an affirmative duty" to ensure that it has personal jurisdiction over the defaulted defendant and subject-matter jurisdiction over the plaintiff's action. Id. Generally, jurisdictional allegations must be plausible. Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014) cert. denied, 135 S.Ct. 361, 190 L.Ed.2d 252, 2014 WL 3817554 (U.S. 2014). However, on a motion for default judgment, the court accepts the plaintiff's allegations as true. Heidenthal, 826 F.2d at 917-18. As discussed below, the court finds that it has subject-matter jurisdiction over Mayweather's action and personal jurisdiction over The Wine Bistro and 2nd To None Entertainment.
A. Subject-Matter Jurisdiction
Mayweather predicates the court's subject-matter jurisdiction on 28 U.S.C. § 1332, 28 U.S.C. § 1331, and 28 U.S.C. § 1367. (Amend. Compl. (#6) at ¶ ¶ 14-16). As discussed below, each statute confers jurisdiction over Mayweather's action. Under 28 U.S.C. § 1332, a federal district court has original jurisdiction over actions between citizens of different states for which the amount in controversy exceeds $75, 000.00. Diversity jurisdiction exists only where there is complete diversity among the parties. Caterpillar Inc. v. Lewis, 519 U.S. 61, 68, 117 S.Ct. 467, 136 L.Ed.2d 437 (1996) (citing Strawbridge v. Curtiss, 7 U.S. 267, 3 Cranch 267, 2 L.Ed. 435 (1806)).
Mayweather's complaint satisfies section 1332's requirements. It alleges that each defendant resides in a different state ( i.e., Georgia, Louisiana, and Wisconsin) from Mayweather, who resides in Nevada. ( See Doc. (#6) at ¶ ¶ 1-12). Additionally, Mayweather alleges that " the [amount] in controversy exceeds the sum of $75, 000.00, exclusive of interest and costs." (Id. at ¶ 14). Because the court takes these allegations are true, ...