United States District Court, D. Nevada
before the court is plaintiffs Hyundai Motor America, Inc.
and Hyundai Motor Company's ("HMC") motion for
default judgment against defendant Isher Trading LLC
("Isher"). (ECF No. 30).
indicate that they initiated this case to bring claims
involving "federal trademark infringement, inducement of
trademark infringement, contributory trademark infringement,
false designation of origin, trademark dilution, common law
trademark infringement, unfair competition, and deceptive
trade practices under N.R.S. 598.0903, etseq."
(ECF No. 30 at 6).
filed their complaint on November 1, 2016, and their summons
was executed against Ishar on November 7, 2016. (ECF Nos. 1,
7). On December 28, 2016, Judge Koppe entered an order
recognizing that "Defendant has not appeared in this
action and Plaintiff[s] ha[ve] not filed a motion for default
or otherwise advanced the case." (ECF No. 26 at 1).
January 4, 2017, plaintiffs moved for an entry of clerk's
default against Isher, and the clerk granted default on
January 5, 2017. (ECF Nos. 28, 29). Thereafter, plaintiffs
submitted their motion for default judgment. (ECF No. 30). To
date, defendant has filed no response or opposition to that
motion, despite the passage of roughly half of a year.
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 plaintiffs 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).
it is clear that plaintiffs are prejudiced by their need to
prosecute a case wherein the defendant, after more than half
a year, has failed to appear despite proof of execution of
service. See Eitel, 782 F.2d at 1471-72.
court is satisfied by plaintiffs' discussion of its
personal and subject matter jurisdiction over this case. (ECF
No. 30). Next, plaintiffs have asserted nine claims against
Isher: (1) trademark infringement; (2) inducement of
trademark infringement; (3) contributory trademark
infringement; (4 and 5) false designation of origin; (6)
trademark dilution; (7) common law trademark infringement;
(8) common law unfair competition; and (9) deceptive trade
practices. (ECF No. 1); see also 15 U.S.C.
§§ 1114-1117; Nev. Rev. Stat. § 598.0903,
complaint has identified the relevant marks at issue and
explained the various interests that are threatened by
unauthorized dealing of gray-market goods. (ECF No. 1).
Moreover, the goods being introduced into the United States
by defendant appear materially different from those goods
distributed by HMC's authorized chain of distribution and
are therefore not "genuine." Hokto Kinoko Co.
v. Concord Farms, Inc.,738 F.3d 1085, 1092-93 (9th Cir.
2013); see also (ECF No. 1) (alleging that defendant
had dealt inferior goods subject to plaintiffs' marks,
such as those "rejected, recall or defective parts"
and that defendant was essentially free-riding off of
"the valuable and favorable reputation and goodwill of
the [marks] . . . ."). After considering the various
legal standards corresponding to plaintiffs' offered