The opinion of the court was delivered by: Ronald S.W. Lew Senior, U.S. District Court Judge
ORDER re: Defendant Manley's Motion for Summary Judgment, or Alternatively, Partial Summary Judgment as to Damages  On July 27, 2010, Defendant, Manley Toys, Ltd.'s, Motion for Summary Judgment as to Plaintiff Wham-O, Inc.'s Second Amended Complaint or alternatively Partial Summary Judgment on the Second Amended Complaint, or alternatively Partial Summary Judgment as to Damages came on for regular calendar before this Court. The Court having reviewed all papers submitted pertaining to this Motion and having considered all arguments presented to the Court, NOW FINDS AND RULES AS FOLLOWS:
As a preliminary matter, Plaintiff and Defendant's requests for judicial notice are GRANTED.
Defendant's Motion is GRANTED IN PART AND DENIED IN PART.
The Court DENIES Defendant's Motion for Summary Judgment as to Plaintiff Wham-O, Inc.'s Second Amended Complaint. The Court finds that res judicata does not preclude Plaintiff's claims in this action.
"Under res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action." Allen v. McCurry, 449 U.S. 90, 94 (1980).
"In order to bar a later suit under the doctrine of res judicata, an adjudication must (1) involve the same 'claim' as the later suit, (2) have reached a final judgment on the merits, and (3) involve the same parties or their privies." Nordhorn v. Ladish Co., 9 F.3d 1402, 1404 (9th Cir. 1993).
The Court finds that this action involves separate claims from the prior action, entitled CV-06-1382-RSWL. Moreover, the Court finds a triable issue of material fact as to whether Defendant Manley is in privity with Defendant SLB Toys USA, Inc. Therefore, Plaintiff's claims are not precluded by res judicata.
The Court GRANTS Defendant's Motion for Partial Summary Judgment as to Damages.
Plaintiff in this action seeks damages against Defendant Manley pursuant to the Lanham Act, 15 U.S.C. § 1111 et seq. The Lanham Act, 15 U.S.C. § 1117(a), states that recovery for a violation of trademark rights may include: (1) defendant's profits, (2) any damages sustained by the plaintiff, and (3) the costs of the action. The Court finds that Plaintiff seeks damages for itself, and not on behalf of any other entity, pursuant to section 1117(a).
Therefore, the Court GRANTS Defendant's Motion for Partial Summary Judgment as to Damages.
Finally, the Court DENIES Plaintiff's request to grant summary judgment in its favor, sua sponte, as a result of the arguments set forth in Defendant's Motion. As stated above, a triable issue exists as to privity in this matter and the Court shall not grant summary judgment sua sponte as requested. If Wham-O wishes to pursue summary judgment, it must file a properly noticed motion with the Court.
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