United States District Court, D. Nevada
REPORT AND RECOMMENDATION
FOLEY, JR. UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Plaintiff's Motion for
Default Judgment Pursuant to Fed.R.Civ.P. 55(b)(2) (ECF No.
30), filed on July 10, 2018. No response to the motion was
filed. This proceeding is referred to the undersigned
pursuant to 28 U.S.C. 636(a) and (b) and LR IB 1-3 and 1-4 of
the Local Rules of Practice.
February 22, 2017, Plaintiff filed its complaint (ECF No. 1)
alleging claims of patent infringement, trademark
infringement, false designation of origin/unfair competition,
dilution under the Lanham Act, and common law trademark
infringement against Defendants. On March 2, 2017, Plaintiff
filed a certificate of service (ECF No. 15) of the complaint,
summonses, and other pleadings such as Plaintiff's motion
for entry of a temporary restraining order on Defendants
Fujian Jialameng Shoes Co., Ltd. and Daeast-Asia Sports
Production Co., Ltd. Defendants did not file a responsive
pleading. On May 5, 2017, the Clerk of the Court entered
default against Defendants. ECF No. 28. Based on
Defendant's failure to answer or otherwise respond,
Plaintiffs now seek a default judgment against Defendants.
Adequacy of Service of Process
preliminary matter, a court must determine whether the
service of process was adequate. A federal court does not
have jurisdiction over a defendant unless the defendant has
been properly served. See Direct Mail Specialists, Inc.
v. Eclat Computerized Tech., Inc., 840 F.2d 685, 688
(9th Cir. 1988). Rule 4 of the Federal Rules of Civil
Procedure governs service of process in a federal action.
According to Rule 4, an individual may be served by
“delivering a copy of the summons and of the complaint
to the individual personally.” Fed.R.Civ.P. 4(e)(2)(A).
A corporation, partnership, or association may be served by
delivering a copy of the summons and complaint to “an
officer, a managing or general agent, or any other agent
authorized by appointment or by law to receive service of
process.” Fed.R.Civ.P. 4(h)(1)(B).
the executed summonses indicate that a process server served
the complaint and summonses on Defendant Fujian Jialameng
Shoes Co., Ltd. and Defendant Daeast-Asia Sports Production
Co., Ltd. via their agents on February 22, 2017. See
ECF No. 15. Therefore, service of process on Defendants was
of the Federal Rules of Civil Procedure sets forth the
two-step procedure for obtaining a default judgment
“[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); see also Eitel v. McCool, 782
F.2d 1470, 1471 (9th Cir. 1986). First, the clerk of the
court must enter default against the party. Fed.R.Civ.P.
55(a). Second, the party seeking default judgment must then
petition the district court for entry of a default judgment.
Fed. R. Civ. 55(b)(2).
grant or denial of a motion for the entry of default judgment
is within the discretion of the district court. Liberty
Ins. Underwriters Inc. v. Scudier, 53 F.Supp.3d 1308,
1317 (D. Nev. 2013) (citing Aldabe v. Aldabe, 616
F.2d 1089, 1092 (9th Cir. 1980)). The Ninth Circuit has
identified the following factors as relevant to the exercise
of the court's discretion in determining whether to grant
default judgment: (1) the possibility of prejudice to the
plaintiff; (2) the merits of the plaintiff's substantive
claims; (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 the 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 the Eitel factors, the well-pleaded factual
allegations of the complaint are taken as true after the
court clerk enters a default, except for the allegations
relating to damages. See, e.g., TeleVideo Sys., Inc. v.
Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987);
Liberty Ins., 53 F.Supp.3d at 1317. “Rule 55
gives the court considerable leeway as to what it may require
as a prerequisite to the entry of a default judgment.”
TeleVideo Sys., 826 F.2d at 917. In particular, a
court may require a moving party to “establish the
truth of any allegation by evidence.” Fed.R.Civ.P.
55(b)(2)(c). The Clerk entered default against Defendants on
May 5, 2017. See ECF No. 28. Thus, the Court will
evaluate the Eitel factors.
Possibility of Prejudice to the Plaintiff
first Eitel factor favors default judgment where the
plaintiff will suffer prejudice if default judgment is not
entered. 782 F.2d at 1471. Simply delaying the resolution of
the case is not prejudicial under this standard. See TCI
Grp. Life Ins. Plan v. Knoebber, 244 F.3d 691, 701 (9th
Cir. 2001). The standard is whether plaintiff's ability
to pursue the claim will be hindered. Id. (quoting
Falk v. Allen, 739 F.2d 461, 462 (9th Cir. 1984)).
have failed to appear since being served. As a result,
Plaintiffs “will likely be without other recourse for
recovery” if default judgment is not entered in their
favor. Liberty Ins., 53 F.Supp.3d at 1318 (quoting
Pepsico, Inc. v. Cal. Security Cans, 238 F.Supp.2d
1172, 1177 (C.D. Cal. 2002)). In addition, by failing to
answer or otherwise respond to the complaint, Defendants are
deemed to have admitted the truth of Plaintiff's
averments as to liability. Philip Morris USA, Inc. v.