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Barnard v. Foot Traffic Shoes

United States District Court, N.D. California, Oakland Division

May 3, 2018



          SAUNDRA BROWN ARMSTRONG, Senior United States District Judge.

         Plaintiffs 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.

         I. BACKGROUND[1]

         “Upon 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.

         On 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 et seq.

         On 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.

         Defendant 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. 25.

         Thereafter, 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.[2] The Magistrate recommends that Plaintiffs' motion be granted and judgment entered against “Defendant Foot Traffic Shoes.” Id. at 11.


         A 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.” Id.


         “When 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 entry ...

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