United States District Court, D. Nevada
M. Navarro, Chief Judge United States District Judge
before the Court is the Report and Recommendation
(“R&R”), (ECF No. 33), in which Magistrate
Judge Foley recommends that the Motion for Default Judgment,
(ECF No. 30), filed by Plaintiff Nike, Inc.
(“Plaintiff) be granted. Plaintiff timely filed a
limited Objection to the R&R, (ECF No. 35). For the
reasons discussed below, Plaintiffs Objection is
SUSTAINED and Judge Foley's R&R is
ACCEPTED and ADOPTED in
brings this trademark infringement action against Defendants
Fujian Jialaimeng Shoes Co., Ltd. and Daeast-Asia (Fujian)
Sports Production Co., Ltd. (collectively
“Defendants”). In light of Defendants'
failure to appear in this action, Plaintiff obtained a
clerk's entry of default, (ECF No. 28), and subsequently
filed their Motion for Default Judgment, (ECF No. 30). Judge
Foley recommends that default judgment be granted in favor of
Plaintiff and against Defendants, and an injunction be issued
as to Defendants. (Id. 9:18-22).
Court “may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b)(1). Where a party
timely objects to a magistrate judge's report and
recommendation, then the court is required to “make a
de novo determination of those portions of the [report and
recommendation] to which objection is made.”
limited Objection, Plaintiff asserts that while Judge Foley
found in their favor and recommends default judgment against
Defendants, Judge Foley “did not appear to address all
of [Plaintiffs] requests for relief.” (Obj. 3:12, ECF
No. 35). Specifically, Plaintiffs contend that the R&R
does not address Plaintiffs requests for: (a) an award of
damages adequate to compensate Plaintiff for Defendants'
infringement; (b) an award of attorneys' fees and
expenses; and (c) the return of the $25, 000 deposit Nike
tendered to secure a preliminary injunction in this case.
upon this apparent omission, Plaintiff seeks the following
relief form the Court: (1) adoption of the R&R to the
extent is recommends entering default judgment and issuing a
permanent injunction; and (2) granting Plaintiffs additional
relief included in the Motion for Default Judgment.
review of Plaintiff's underlying Motion, as well as Judge
Foley's R&R, the Court concludes the lack of a
recommendation as to Plaintiff's other forms of requested
relief was a mere oversight, and not intentional. As
Plaintiff points out, the R&R's recommended permanent
injunctive relief “makes clear that Defendants were not
‘wrongfully enjoined, '” and thus are
entitled to a return of their bond under Rule 65(c).
(Id. 3:22-25). Additionally, the R&R expressly
considers the “sum of money at stake” prong of
the default-judgment factors and notes that Plaintiffs seek
monetary relief. (R&R 6:8-13). The incongruity of that
analysis with the non-monetary relief granted, further
satisfies the Court that a full grant of Plaintiff s
requested remedies was contemplated.
Foley made express findings that Plaintiff has sufficiently
stated claims for patent infringement, trademark infringement
under §32(1) of the Lanham Act, false designation of
origin/unfair competition under § 43(a) of the Lanham
Act, dilution under § 43(c) of the Lanham Act, and
common law trademark infringement. (R&R 3:27-6:6). Given
that Judge Foley has already considered the relevant factors
supporting default judgment, and particularly made findings
as the sums of money at stake, (Id. 6:8-13), the
Court finds that Plaintiff is entitled to damages under 15
U.S.C. § 1117(a), 35 U.S.C. § 289, as well as
attorneys' fees under 15 U.S.C. § 1117 and 35 U.S.C.
§ 285, as requested. Additionally, given Judge
Foley's comprehensive analysis on the propriety of a
permanent injunction-with which the Court agrees-Plaintiff is
entitled to a return of its $25, 000 bond.
IT IS HEREBY ORDERED that the Report and
Recommendation, (ECF No. 30), is ACCEPTED
and ADOPTED in part. The order is
ACCEPTED and ADOPTED as to Judge Foley's
recommendation that Plaintiff be granted default judgment and
is entitled to permanent injunctive relief against
IS FURTHER ORDERED that Plaintiff's Motion for
Default Judgment, (ECF No. 30), is GRANTED.
IS FURTHER ORDERED that Plaintiff's Objection,
(ECF No. 35), is SUSTAINED. Specifically,
the relief Plaintiff requested in its Motion for ...