United States District Court, N.D. California, Oakland Division
CHARLES T. BARNARD AND FOOT TRAFFIC USA, LLC, Plaintiffs,
FOOT TRAFFIC SHOES, Defendant.
ORDER TO SHOW CAUSE REGARDING DENIAL OF MOTION FOR
DEFAULT JUDGMENT AND SETTING ASIDE ENTRY OF DEFAULT
SAUNDRA BROWN ARMSTRONG, Senior United States District Judge.
Charles T. Barnard and Foot Traffic USA, LLC (collectively,
“Plaintiffs”) bring the instant trademark
infringement action against Foot Traffic Shoes
(“Defendant”). Presently before the Court is a
Report and Recommendation (“R&R”) on
Plaintiffs' motion for default judgment prepared by
Magistrate Judge Robert M. Illman (the
“Magistrate”). Having read and considered the
papers filed in connection with this matter and being fully
informed, the Court hereby defers full consideration of the
R&R and directs Plaintiffs to show cause why the motion
for default judgment should not be denied and the entry of
default set aside to permit amendment of the complaint and
proper service of summons.
information and belief, Foot Traffic Shoes is a California
sole proprietorship having its principal place of business at
874 4th St., San Rafael, CA 94901.” Compl. ¶ 4,
Dkt. 1. Defendant's use of the “Foot Traffic”
mark allegedly infringes Plaintiffs' exclusive rights to
the same. Id. ¶¶ 9-29.
December 20, 2016, Plaintiffs initiated the instant action,
alleging causes of action for: (1) trademark infringement
under Section 23 of the Lanham Act, 15 U.S.C. § 1114;
(2) false designation or origin under Section 43(a) of the
Lanham Act, 15 U.S.C. § 1125; (3) unfair competition
under California Business and Professions Code section 17200
et seq.; and (4) deceptive, false and misleading advertising
under California Business and Professions Code section 17500
March 16, 2017, Plaintiffs filed an Amended Proof of Service,
purporting to show service of a summons and complaint on
“Defendant . . . FOOT TRAFFIC SHOES” and
“Other . . . GANA PANNETTA - OWNER.” Dkt. 12. The
proof of service describes service “in compliance with
. . . California Code of Civil Procedure” by
substituted service on a corporation, unincorporated
association, or public entity. Id. at 1-2.
did not respond to the complaint or otherwise appear in the
action. On October 20, 2017, Plaintiffs filed an Application
to Enter Default Under Fed.R.Civ.P. 55(a) Against Defendant
Foot Traffic Shoes (“Application to Enter
Default”). Dkt. 23. Plaintiffs asserted therein:
Defendant, a sole proprietorship, was served with the
Complaint on or about March 23, 2017 pursuant to Fed.R.Civ.P.
4(h)(1) and (e)(1) and Cal. Code Civ. P. 415.20.
Specifically, Defendant's manager was served with the
Summons and Complaint, and a copy of the same was sent to
Defendant by first-class mail. (See Dkt. No. 12).
Id. at 2. The Clerk of Court entered default as to
“Foot Traffic Shoes” on October 26, 2017. Dkt.
Plaintiffs filed a Motion for Default Judgment Against
Defendant Foot Traffic Shoes. Dkt. 27. The Court referred the
motion to the Magistrate. Dkt. 31. After holding a hearing,
the Magistrate issued an R&R. Dkt. 35. The Magistrate
recommends that Plaintiffs' motion be granted and
judgment entered against “Defendant Foot Traffic
Shoes.” Id. at 11.
magistrate judge may prepare findings of fact and
recommendations on dispositive matters pursuant to 28 U.S.C.
§ 636(b)(1). Once findings and recommendations are
served, the parties have fourteen days to file specific
written objections thereto. Id. § 636(b)(1)(C);
Fed.R.Civ.P. 72(b)(2). A judge must review de novo
“those portions of the report or specified proposed
findings or recommendations to which objection is
made.” 28 U.S.C. § 636(b)(1)(C); see also
United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th
Cir. 2003) (“The statute makes it clear that the
district judge must review the magistrate judge's
findings and recommendations de novo if objection is
made, but not otherwise.”) (emphasis in original).
Absent a timely objection, “the court need only satisfy
itself that there is no clear error on the face of the record
in order to accept the recommendation.” Fed.R.Civ.P. 72
advisory committee notes to 1983 amendment (citing
Campbell v. U.S. Dist. Ct., 501 F.3d 1114, 1121 (9th
Cir. 1974), cert denied, 419 U.S. 879). A judge 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)(C). In addition, a
judge may “receive further evidence or recommit the
matter to the magistrate judge with instructions.”
entry of judgment is sought against a party who has failed to
plead or otherwise defend, a district court has an
affirmative duty to look at its jurisdiction over both the
subject matter and the parties.” In re Tuli,
172 F.3d 707, 712 (1999). “Before 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); Benny v.
Pipes, 799 F.2d 489, 492 (9th Cir. 1986),
amended, 807 F.2d 1514 (9th Cir. 1987) (“A
federal court is without personal jurisdiction over a
defendant unless the defendant has been served in accordance
with Fed.R.Civ.P. 4.”). Thus, a court contemplating the