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Arbonne International, LLC v. Semerciyan

United States District Court, D. Nevada

March 27, 2019



         Presently before the court is plaintiff Arbonne International, LLC's (“Arbonne”) motion for default judgment. (ECF No. 11).

         I. FACTS

         This 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:

         On July 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. Id.

         On 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.

         On 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 account. Id.

         At some time in 2017, Arbonne discovered a website,, 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,, selling infringing products on March 8, 2018. Id.

         On July 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.

         On 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).


         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.”

         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).


         Arbonne 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 Arbonne's claims.

         a. ...

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