The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
VACATING THE CLERK'S
ENTRY OF DEFAULT
ORDER DENYING PLAINTIFF'S
MOTION FOR DEFAULT JUDGMENT WITHOUT
On November 28, 2011, Plaintiffs, Coach Inc., and Coach Services Inc., ("Plaintiffs") filed an Application for Default Judgment against Defendant, Envy ("Defendant") in this action. (Docs. 14-15). Defendant did not file an opposition to the application. The hearing scheduled for January 6, 2012 was vacated and the matter was taken under submission pursuant to Local Rule 230 (c) and (g). Upon a review of the pleadings, Plaintiff's Motion for Default Judgment is DENIED WITHOUT PREJUDICE.
On April 9, 2010, Plaintiffs filed a complaint alleging that Coach Inc. is a Maryland corporation with its principal place of business located in New York, New York. (Doc. 1 at ¶ 5).
Similarly, Coach Services, a wholly owned subsidiary of Coach, is a Maryland corporation with its principal place of business in Jacksonville, Florida. Id. Plaintiffs allege that Coach manufactures, markets, and sells fine leather and mixed material products, including handbags, wallets, and accessories. Id. at ¶ 10. Coach owns the "COACH" trademark and various composite trademarks and assorted components (collectively, "Coach Marks"). Id. ¶ at 11. Additionally, Coach owns various copyright registrations, including the Horse and Carriage Mark and the Op Art Mark. Id. at ¶ 12. Coach has been manufacturing and selling interstate commerce high quality leather products under the Coach Marks for a long period. Plaintiffs contend that through this longstanding use, advertising, and registration, the Coach Marks have attained a high degree of consumer recognition and constitute famous marks. Id. at ¶ 11.
Plaintiffs allege that counterfeit Coach branded products were observed for sale and purchased from Envy, a retail store located at the Vintage Fair Mall, at 3401 Dale Toad in Modesto, California. Id. ¶¶ at 17, 18. Plaintiffs further allege that Coach representatives have inspected the Coach-brand merchandise and confirmed that the merchandise is counterfeit. Moreover, Defendant is not authorized by Coach to manufacture, distribute, advertise, offer for sale, and/or sell merchandise bearing any of Coach's trademarks and/or copyrighted works. Id. at ¶¶ 19, 20.
Plaintiffs' complaint asserts claims for: (1) trademark counterfeiting; (2) federal trademark infringement; (3) false designation of origin and false advertising; (4) federal trademark dilution; (5) trademark dilution in violation of the California Business and Professions Code; (6) common law unfair competition; and (7) copyright infringement. Id. at ¶¶ 21--83. Plaintiffs seeks the following: an award of Defendant's profits and all damages sustained by Plaintiffs as a result of Defendant's illicit acts; damages pursuant to 15 U.S.C. 1117(a)-(c), 17 U.S.C.,§ 504(b) and (c), and 17 U.S.C. § 505; punitive damages; injunctive relief; as well as interest, costs, and attorney's fees. Id. at pgs. 16--17.
Plaintiffs assert that they served Defendant with a copy of the complaint on June 28, 2011. (Doc. 9). The Clerk of the Court entered default on September 15, 2011. (Doc. 12). Plaintiffs filed the instant application on November 28, 2011, and seek judgment in the amount of $100,000.00 in statutory damages, injunctive relief, and costs. (Doc. 14). However, as explained below, the Court finds the service of the summons and complaint is deficient. Accordingly, the Clerk's entry of default is VACATED and Plaintiffs' application for default judgment is DENIED WITHOUT PREJUDICE.
1. Service of the Summons and Complaint "[A] court must first assess the adequacy of the service of process on the party against whom default judgment is requested." Bricklayers and Allied Craftworkers Local Union No. 3 v. Palomino, WL 2219595 at * 2 (N.D. Cal. June 2, 2010) (citations omitted). "[B]efore a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied." Omni Capital Int'l., Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104, (1987), superseded by statute on other grounds, Futures Trading Practices Act of 1992, Pub.L. No. 102-546, § 211, 106 Stat. 3590, 3607-08 (1992); see also Direct Mail Specialists, Inc. v. Eclat Computerized Techs., Inc., 840 F.2d 685, 688 (9th Cir.1988) (stating that a federal court does not have jurisdiction over a defendant unless the defendant has been properly served under Fed. R. Civ. P. 4). Where the party seeking default judgment has not shown that the defendant has been provided with adequate notice of an action, "it is inappropriate to conclude that the defendant 'has failed to plead or otherwise defend' " under Fed. R. Civ .P. 55(a). See Downing v. Wanchek, No. 2009 WL 256502, at *3 (E.D.Cal. Jan.30, 2009).
In the request for a Motion for Default Judgment, Plaintiffs contend that Defendant was properly served and default was issued. (Doc. 14-1 at pg. 2). However, a review of the current docket reveals this is mistaken. Federal Rule of Civil Procedure 4(h) in relevant section provides that service of a ...