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Storz Performance, Inc. v. Italia

September 15, 2008

STORZ PERFORMANCE, INC., A CALIFORNIA CORPORATION, PLAINTIFF,
v.
MOTO ITALIA, FORM UNKNOWN; LESLIE BULL, AN INDIVIDUAL; CYCLE PERFORMANCE PRODUCTS, INC.; JOHN BASORE, AND INDIVIDUAL, AND; DOES 1 TO 100, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR ENTRY OF RULE 55 DEFAULT JUDGMENT (DOC. NO. 22.)

On November 27, 2007, Plaintiff Storz Performance ("Storz") commenced this trademark infringement action. Plaintiff now seeks default judgment against Defendants Moto Italia ("Moto"), Leslie Bull ("Bull"), Cycle Performance Products, Inc. ("Cycle"), and John Basore ("Basore") (collectively, "Defendants"). (Doc. No. 22.) None of the Defendants have ever properly appeared in this action and none have filed any opposition to this motion. The Court decides the matter on the papers submitted and without oral argument. See S.D. Cal. Civ. R. 7.1(d.1). For the reasons stated herein, the Court GRANTS IN PART AND DENIES IN PART Plaintiff's motion for entry of default judgment.

I. BACKGROUND

On November 27, 2007, Plaintiff filed this action for trademark infringement, unfair competition, accounting, and injunctive relief against Defendants. (Doc. No. 1.) Plaintiff is a manufacturer and purveyor of motorcycle accessories, many of which are marketed and sold under the "Ceriani" trademark. (Compl. 2:17-28.) Plaintiff alleges that Defendant Moto is a California entity of unknown form that markets and sells motorcycles and motorcycle accessories. (Compl. 3:4-13.) Plaintiff alleges that Defendant Cycle is a foreign corporation that produces and sells motorcycle accessories. (Compl. 3:18-27.) Also according to Plaintiff, Defendants Bull and Basore each serve as owner, director, or officer of Moto Italia and Cycle Performance Products, Inc., respectively. (Compl. 3:14-17; 4:1-6.)

Plaintiff's complaint and motion for default judgment allege the following. Beginning in 1985, Plaintiff has sold its products under the name "Ceriani." (Pl.'s Mot. 2:10-11.) Plaintiff subsequently registered this trademark both in California and with the United States Patent and Trademark Office. (Pl.'s Mot. 2:11-15.) Plaintiff claims that the "Ceriani" mark "has become famous for identifying Storz as the manufacturer and seller" of various products carrying the "Ceriani" name. (Pl.'s Mot. 2:16-18.) Amongst other products, Plaintiff designs and markets motorcycle fork suspension systems under the Ceriani name. (Pl.'s Mot. 2:24-26.)

Plaintiff further alleges that Defendants have been misappropriating the "Ceriani" name while importing and selling inferior motorcycle parts, components and accessories throughout the United States. (Pl.'s Mot. 2:24-26.) Plaintiff specifically claims that Defendants have been importing and selling motorcycle front fork suspension systems with the "Ceriani" label. (Pl.'s Mot. 2:24-26.)

On February 21 and 25, 2008, Plaintiff properly served Defendants with the Complaint. (Doc. Nos. 5, 6, 9, 10.) On March 24 and April 7, 2008 the Court rejected ex parte communications attempted by Defendant Basore. (Doc. Nos. 16, 17.) To date, Defendants have failed to attempt any further filings or otherwise appear in this action.

In the instant Motion for Default Judgment, Plaintiff requests that the Court enjoin Defendants from using the "Ceriani" trademark under 15 U.S.C. § 1116(a), a provision of the statutory scheme commonly known as the Lanham Act. Plaintiff also asks that the Court order Defendants to provide Plaintiff with an accounting of all sales of products containing the "Ceriani" mark. Finally, Plaintiff requests that the Court retain jurisdiction regarding remaining monetary damages issues following Defendants' accounting.

II. LEGAL STANDARD

Rule 55(b)(2) of the Federal Rules of Civil Procedure governs applications to the court for default judgment. See Fed. R. Civ. P. 55(b)(2). Default judgment is available as long as the plaintiff establishes (1) defendant has been served with the summons and complaint and default was entered for their failure to appear; (2) defendant is neither a minor nor an incompetent person; (3) defendant is not in military service or not otherwise subject to the Soldiers and Sailors Relief Act of 1940; and (4) if defendant has appeared in the action, that defendant was provided with notice of the application for default judgment at least three days prior to the hearing. See, e.g., 50 U.S.C. § 521; Fed. R. Civ. P. 55; Twentieth Century Fox Film Corp. v. Streeter, 438 F. Supp. 2d 1065, 1070 (D. Ariz. 2006).

Entry of default judgment is within the trial court's discretion. See Taylor Made Golf Co. v. Carsten Sports, Ltd., 175 F.R.D. 658, 660 (S.D. Cal. 1997) (Brewster, J.) (citing Lau Ah Yew v. Dulles, 236 F.2d 415, 416 (9th Cir. 1956)). In making this determination, the court considers the following factors: (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff's substantive claim, (3) the sufficiency of the complaint, (4) the sum of money at stake in the action, (5) the possibility of a dispute concerning the material facts, (6) whether the default was due to excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits. Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986).

Upon entry of default, the factual allegations in plaintiff's complaint, except those relating to damages, are deemed admitted. E.g., Televideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987) (quoting Geddes v. United Fin. Group, 559 F.2d 557, 560 (9th Cir. 1977)). Respecting the damages determination, the general rule is that well-pled allegations in the complaint regarding liability are deemed true and the court is not required to make detailed findings of fact. See Fair Housing of Marin v. Combs, 285 F.3d 899, 906 (9th Cir. 2002) (finding that the district court's factual findings were sufficiently supported by evidence in the record). If sufficiently documented and detailed, damages claims may be fixed by an accounting, declarations or affidavits. See James v. Frame, 6 F.3d 307, 310 (5th Cir. 1993).

III. DISCUSSION

A. LIABILITY:DEFENDANTS ...


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