United States District Court, D. Nevada
SECURITY ALARM FINANCING ENTERPRISES, L.P. d/b/a SAFEGUARD SECURITY, Plaintiffs,
MIKAYLA NEBEL, et al., Defendants.
before the court is plaintiff Security Alarm Financing
Enterprises, L.P.'s (“SAFE”) motion for
default judgment against defendant Russell Niggemyer. (ECF
is the sole defendant remaining in this civil action; his
co-defendant, Mikayla Nebel, was dismissed with prejudice on
April 6, 2017. (ECF No. 121). Notably, Nebel's dismissal
moots her counterclaims, which in turn moots Magistrate Judge
Ferenbach's report and recommendation. (ECF No. 100).
judgment is appropriate “[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.” Fed.R.Civ.P. 55(a). The party must apply
to the court for default judgment when the claim's sum
value is uncertain. Fed.R.Civ.P. 55(b)(2).
a default judgment is a two-step process:
First, the party seeking a default judgment must file a
motion for entry of default with the clerk of a district
court by demonstrating that the opposing party has failed to
answer or otherwise respond to the complaint, and, second,
once the clerk has entered a default, the moving party may
then seek entry of a default judgment against the defaulting
UMG Recordings, Inc. v. Stewart, 461 F.Supp.2d 837,
840 (S.D. Ill. 2006).
choice whether to enter a default judgment lies within the
discretion of the trial court. Aldabe v. Aldabe, 616
F.2d 1089, 1092 (9th Cir. 1980). When determining whether to
grant a default judgment, the trial court should consider the
seven factors articulated in Eitel v. McCool, 782
F.2d 1470, 1471-72 (9th Cir. 1986):
(1) the possibility of prejudice to the plaintiff, (2) the
merits of 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.
applying the Eitel factors, “the factual
allegations of the complaint, except those relating to the
amount of damages, will be taken as true.” Geddes
v. United Fin. Grp., 559 F.2d 557, 560 (9th Cir. 1977);
see also Fed. R. Civ. P. 8(d).
was served with the summons on September 23, 2015.
(ECF No. 7). Defendant filed a motion to dismiss for lack of
personal jurisdiction with the United States District Court,
Northern District of California on November 9, 2015. (ECF No.
23). That court granted the motion, finding that defendants
“did not expressly aim” any alleged copyright
infringement at California. (ECF No. 52 at 12). The order
further found suggests
plaintiff's claims were not frivolous and filed in good
faith. (See id.). That court transferred the action
to the United States District Court, District of Nevada on
March 14, 2016, where
because both defendants were citizens of
Nevada. (Id. at 13).
continued to communicate with plaintiff but failed to appear
or otherwise respond to the complaint after the case was
transferred. (ECF No. 101). Due to defendant's inaction,
plaintiff filed a motion for entry of clerk's default
(ECF No. 88), and the clerk entered default against defendant
on September 26, 2016. (ECF No. 91).
the Eitel factors, the court holds that default
judgment is appropriate. (EFC No. 101). First, without
judgment, plaintiff will be unable to prevent Niggemyer from
using products that are still in his possession and bear
SAFE's mark. (Id. at 7). Defendant previously
used the marks without plaintiff's consent; it appears he
encouraged Nebel's social media posts featuring
plaintiff's mark while ignoring plaintiff's cease and
desist letters. (Id. at 8). Thus, Niggemyer's
behavior suggests plaintiff's claims have merit and these
claims are well-pled in plaintiff's complaint.
plaintiff seeks injunctive relief and damages, calculated
from federal copyright statutory limits. (Id. at 9);
see also 17 U.S.C. § 504(c)(2). Third, there
are no issues of material fact and defendant's
post-transfer inaction does not suggest excusable neglect.
(Id. at 12).
default judgment is appropriate because plaintiff will suffer
irreparable harm from Niggemyer's continued trademark
infringement without injunctive relief and damages.
(Id. at 14). In sum, the Eitel ...