United States District Court, D. Nevada
before the court is plaintiff MGM Resorts International's
motion for default judgment. (ECF No. 22).
is a Delaware corporation with its headquarters in Las Vegas,
Nevada. (ECF No. 9-1). It owns and operates over twenty
resort properties in the United States and abroad.
Id. Plaintiff and its predecessor entities have
expended significant time and resources in developing and
promoting the MGM trademark. Id. Pursuant to
plaintiff's extended use of the MGM mark, it has acquired
common law rights in the mark as related to hotel and casino
services, entertainment services, and a variety of other
goods and services. Id.
addition to common law rights, plaintiff owns federal
trademark registrations for the mark and similar marks.
Id.; see also (ECF No. 9-1 Ex. A). Its
primary website is <mgmresorts.com>, and it maintains
other websites for its individual properties, such as
set up an English and Chinese language website, accessible to
U.S. citizens from inside the United States, using the domain
name <livemgm.com>. Id. When setting up the
website, defendant used a host service called Domains By
Proxy, which is an affiliate of GoDaddy. Id. The
Domains By Proxy service allows for users to remain
anonymous. Id. Plaintiff alleges that defendant
deliberately chose this domain host to mask its true identity
and thwart detection. Id.
domain name drives internet users to an online casino
operated by defendant. Id. The online casino has no
official relationship with plaintiff. Id. However,
the website uses plaintiff's MGM marks (including its
distinctive lion's roar mark) and indicates that it is an
online casino operated by MGM through, amongst other false
portrayals, a copyright notice at the bottom of the homepage,
stating “Copyright © MGM Resorts International.
All Right [sic] Reserved.” Id.
March 9, 2017, plaintiff filed its complaint. (ECF No. 1). On
April 7, 2017, the court permitted plaintiff to serve the
complaint and summons on defendant via email to
email@example.com. (ECF No. 11). Defendant did not
answer or otherwise respond to the complaint. Plaintiff moved
the clerk for entry of default (ECF No. 20), which the clerk
granted (ECF No. 21).
a default judgment is a two-step process. Eitel v.
McCool, 782 F.2d 1470, 1471 (9th Cir. 1986). First,
“[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). Federal Rule of Civil Procedure 55(b)(2) provides that
“a court may enter a default judgment after the party
seeking default applies to the clerk of the court as required
by subsection (a) of this rule.”
considering a motion for default judgment must ensure that
they have jurisdiction over the action, which includes
subject matter jurisdiction over the claims and personal
jurisdiction over the parties. In re Tuli, 172 F.3d
707, 712 (9th Cir. 1999) (holding that a judgment without
jurisdiction is void). The choice whether to enter a default
judgment lies within the discretion of the court. Aldabe
v. Aldabe, 616 F.3d 1089, 1092 (9th Cir. 1980).
determination of whether to grant a default judgment, the
court should consider the seven factors set forth in
Eitel: (1) the possibility of prejudice to plaintiff
if default judgment is not entered; (2) the merits of the
claims; (3) the sufficiency of the complaint; (4) the amount
of money at stake; (5) the possibility of a dispute
concerning material facts; (6) whether default was due to
excusable neglect; and (7) the policy favoring a decision on
the merits. 782 F.2d at 1471-72. In 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).
Jurisdiction over the claims
motion first addresses whether the court has subject matter
and personal jurisdiction over the claims and parties.
Subject matter jurisdiction
courts have “original jurisdiction of all civil actions
arising under the Constitution, laws, or treaties of the
United States.” 28 U.S.C. § 1331. Here, the
complaint alleges claims for relief pursuant to the Lanham
Act, 15 U.S.C. §§ 1114 and 1125. See (ECF
No. 1) (plaintiff's complaint). Accordingly, the court
has subject matter jurisdiction over the claims.
bears the burden of demonstrating that its allegations
establish a prima facie case for personal jurisdiction.
See Boschetto v. Hansing, 539 F.3d 1011, 1015 (9th
Cir. 2008). Allegations in the complaint must be taken as
true and factual disputes should be construed in the
plaintiff's favor. Rio Props., Inc. v. Rio Int'l
Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002).
no federal statute governs personal jurisdiction, the
district court applies the law of the forum state.”
Boschetto, 539 F.3d at 1015; see also Panavision
Int'l L.P. v. Toeppen, 141 F.3d 1316, 1320 (9th Cir.
1998). Where a state has a “long-arm” statute
providing its courts jurisdiction to the fullest extent
permitted by the due process clause, as Nevada does, a court
need only address federal due process standards. See
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