United States District Court, D. Nevada
before the court is plaintiff Arbonne International,
LLC's (“Arbonne”) motion for default
judgment. (ECF No. 11).
action arises from defendant Nayat Semerciyan's
(“Nayat”) willful infringement of Arbonne's
intellectual property through the sale of counterfeit
products. (ECF No. 1). Arbonne asserts the following
allegations in its compliant:
22, 2016, Arbonne filed a complaint against Nayat in the
United States District Court for the District of Nevada.
Arbonne Int'l, LLC v. Semerciyan, No.
2:16-cv-01728-JAD-VCF (D. Nev. 2017); (ECF No. 1). Nayat and
her co-defendant, Nu-Vo, did not timely file an answer.
Id. After Arbonne moved for entry of default, Nayat
contacted Arbonne's counsel to discuss the lawsuit.
November 7, 2016, Arbonne entered into a settlement agreement
with Nayat and Nu-vo. Id. Arbonne has provided a
copy of the agreement, which provides that Nayat would not
sell, advertise, or facilitate the sale or advertisement of
any products bearing Arbonne's intellectual property.
Id. The agreement also contains a liquidated damages
clause that requires Nayat to pay $15, 000 for each violation
of Arbonne's intellectual property rights. Id.
December 27, 2017, the court entered a final judgment and
permanent injunction restraining Nayat from infringing
Arbonne's intellectual property pursuant to the
settlement agreement. Id. Shortly thereafter, Nayat
began advertising infringing products through her Facebook
page. Id. Arbonne provided Facebook with a copy of
the final judgment and Facebook suspended Nayat's
time in 2017, Arbonne discovered a website,
www.ijewelsintl.com, that advertised and sold
products that infringed Arbonne's trademarks.
Id. These products included various accessories such
as necklaces, earrings, and hats. Id. On March 28,
2018, Arbonne filed a lawsuit against the website and
eventually discovered that Nayat was the operator.
Id. Discovery also revealed that Nayat had opened a
second website, www.iwiall.com, selling infringing
products on March 8, 2018. Id.
25, 2018, Arbonne initiated the instant action, asserting
five causes of action: (1) counterfeiting in violation of the
Lanham Act, 15 U.S.C. 1051 et. seq.; (2) trademark
infringement; (3) unfair competition and false designation in
violation of the Lanham Act; (4) copyright infringement; and
(5) breach of contract. Id.
September 10, 2018, Arbonne filed a motion for entry of
clerk's default against Nayat. (ECF No. 7). On September
11, 2018, the clerk entered default. (ECF No. 8). Now,
Arbonne moves for default judgment. (ECF No. 11).
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.”
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).
has complied with Rule 55(a) and Nayat has had ample
opportunity to participate in this litigation. See
Fed R. Civ. Proc. 55(a). Accordingly, the court now considers
the Eitel factors to determine whether to issue
default judgment in favor of Arbonne. The court first
addresses the sufficiency of the complaint and the merits of