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MGM Resorts International v. Registrant of Livemgm.Com

United States District Court, D. Nevada

January 25, 2018

MGM RESORTS INTERNATIONAL, Plaintiffs,
v.
REGISTRANT OF LIVEMGM.COM, Defendants.

          ORDER

         Presently before the court is plaintiff MGM Resorts International's motion for default judgment. (ECF No. 22).

         I. Facts

         Plaintiff 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.

         In 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 <mgmgrand.com>. Id.

         Defendant 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.

         The 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.”[1] Id.

         On 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 livemgm@domainsbyproxy.com.[2] (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).

         II. Legal Standard

         Obtaining 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.”

         Courts 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).

         In the 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).

         III. Discussion

         a. Jurisdiction over the claims

         Plaintiff's motion first addresses whether the court has subject matter and personal jurisdiction over the claims and parties.

         i. Subject matter jurisdiction

         District 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.

         ii. Personal jurisdiction

         Plaintiff 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).

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&ldquo;When no federal statute governs personal jurisdiction, the district court applies the law of the forum state.&rdquo; Boschetto, 539 F.3d at 1015; see also Panavision Int&#39;l L.P. v. Toeppen, 141 F.3d 1316, 1320 (9th Cir. 1998). Where a state has a &ldquo;long-arm&rdquo; 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 Arbella Mut. Ins. Co. v. ...


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