Case Information
WO
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Trident Investment Partners Incorporated, No. CV-20-01848-PHX-DWL
Plaintiff, ORDER
v.
Elizabeth Evans, et al.,
Defendants.
Pending before the Court is a motion for default judgment by Plaintiff Trident Investment Partners Incorporated (“Trident”) against Defendants Elizabeth Evans (“Evans”), John Doe Evans, and The Handy Connection LLC (collectively, “Defendants”) and a motion to amend the complaint to add Susan Solebello (“Solebello”), Evans’s spouse, as a defendant. (Doc. 17.) For the following reasons, the motion for default judgment is granted and the motion to amend is denied as moot.
BACKGROUND
I. Factual Background
The following facts are derived from Trident’s complaint. (Doc. 1.) “Since November 1990, [Trident] and its predecessors . . . have operated repair services” under the word and design service marks HANDYMAN CONNECTION. ( Id. ¶ 8.) [1] In 1993, Trident’s predecessor began “offering and selling Handyman Connection franchises in the United States and Canada for the right to independently own and operate a Handyman Connection franchised business” and to utilize the marks. ( Id. ¶ 9.) In 2014, Trident acquired the rights to the “marks and franchise system.” ( Id. ) Trident operates in “25 states, including Arizona.” ( Id. )
Defendants, meanwhile, are “engaged in the business of providing home repair and lighting services” and operate under the name “The Handy Connection” in Arizona. ( Id. ¶¶ 15-16, 20.) Defendants also have “adopted a design mark featuring a house design that is nearly identical to the HANDYMAN CONNECTION design mark.” ( Id. ¶ 16.) Trident, which has “had a franchised location operating [in Arizona] since 2001” ( id. ¶ 20), claims that Defendants’ marks are confusingly similar to the HANDYMAN CONNECTION marks ( id. ¶ 17).
On June 10, 2020, Trident sent a cease and desist letter “objecting to Defendants’ use of the Infringing Mark and putting Defendants on actual notice that their use of the Infringing Mark in connection with any type of home repair . . . constitutes trademark infringement.” ( Id. ¶ 19.) [2]
Defendants continue to operate under “The Handy Connection.” ( Id. )
II. Procedural History
On September 22, 2020, Trident initiated this action by filing an eight-count complaint, which includes federal claims under the Lanham Act and various state-law claims. (Doc. 1.)
On September 25, 2020, Trident served process on Evans and The Handy Connection LLC, as well as on Evans’s spouse, Solebello. (Docs. 10, 11, 12.)
On October 20, 2020, Trident applied for an entry of default against Evans, The Handy Connection LLC, and Solebello. (Doc. 15.)
On October 23, 2020, the Clerk of Court entered default against Evans, John Doe Evans, and The Handy Connection LLC. (Doc. 16.) The Clerk did not enter default against Solebello by name. ( Id. )
On November 12, 2020, Trident moved for default judgment and moved to amend its complaint to add Solebello as a defendant. (Doc. 17.)
DISCUSSION
I. Motion For Default Judgment
The “decision whether to enter a default judgment is a discretionary one.”
Aldabe
v. Aldabe
,
“[T]he general rule” for default judgment purposes “is that well-pled allegations in
the complaint regarding liability are deemed true.”
Fair Hous. of Marin v. Combs
, 285
F.3d 899, 906 (9th Cir. 2002). “The district court is not required to make detailed findings
of fact.”
Id.
“However, necessary facts not contained in the pleadings, and claims which
are legally insufficient, are not established by default.”
Cripps v. Life Ins. Co. of N. Am.
,
A.
The First, Fifth, Sixth, And Seventh
Eitel
Factors
“In cases like this one, in which Defendants have not participated in the litigation at
all, the first, fifth, sixth, and seventh [
Eitel
] factors are easily addressed.”
Zekelman Indus.
Inc. v. Marker
,
The first
Eitel
factor weighs in favor of default judgment. If the motion for default
judgment were denied, Trident would be without other recourse for recovery.
PepsiCo,
Inc. v. Cal. Sec. Cans
,
The fifth and sixth factors weigh in favor of default judgment or are neutral. Due
to Defendants’ failure to participate, there is no dispute over material facts, and there is no
indication that default is due to excusable neglect.
Elektra Ent. Grp. Inc. v. Crawford
, 226
F.R.D. 388, 393 (C.D. Cal. 2005) (“Because all allegations in a well-pleaded complaint are
taken as true after the court clerk enters default judgment, there is no likelihood that any
genuine issue of material fact exists.”);
Laser Spine Inst., LLC v. Playa Advance Surgical
Inst., LLC
,
The seventh factor generally weighs against default judgment, given that cases
“should be decided upon their merits whenever reasonably possible.”
Eitel
, 782 F.2d at
1472. However, the existence of Rule 55(b) of the Federal Rules of Civil Procedure, which
authorizes default judgments, “indicates that this preference, standing alone, is not
dispositive.”
PepsiCo
,
B. The Fourth Eitel Factor—The Amount Of Money At Stake Under the fourth Eitel factor, the Court considers the amount of money at stake in relation to the seriousness of the defendant’s conduct. Here, Trident does not seek damages. (Doc. 17 at 4.) Instead, Trident seeks a permanent injunction “that will prohibit Defendants from using [Trident’s] trademarks or engaging in conduct that creates (or would continue to create) the likelihood of confusion between [Trident] and Defendants,” along with attorneys’ fees and costs. ( Id. at 4, 8.)
In Part I.E below, the Court addresses the sufficiency of Trident’s evidence as to an
injunction, attorneys’ fees, and costs. For purposes of the fourth
Eitel
factor, the Court
simply notes that “injunctive relief is an appropriate remedy in a trademark infringement
action,” which “weighs in favor of granting [a] motion for default judgment.”
Nestlé USA,
Inc. v. Gunther Grant, Inc.
,
C.
The Second And Third
Eitel
Factors—Merits And Sufficiency
That leaves the second and third
Eitel
factors—the merits of the claim and the
sufficiency of the complaint. “These two factors are often analyzed together and require
courts to consider whether a plaintiff has state[d] a claim on which [it] may recover.”
Vietnam Reform Party v. Viet Tan-Vietnam Reform Party
,
Here, Trident appears to request default judgment only as to its infringement, unfair competition, and dilution claims. (Doc. 17 at 7.)
1. Trademark Infringement
“To prevail on a claim of trademark infringement under the Lanham Act, 15 U.S.C.
§ 1114, a party must prove: (1) that it has a protectible ownership interest in the mark; and (2) that the defendant’s use of the mark is likely to cause consumer confusion.” Network Automation, Inc. v. Advanced Sys. Concepts, Inc. , 638 F.3d 1137, 1144 (9th Cir. 2011) (internal quotation marks omitted).
a. Trademark Ownership
As an attachment to its complaint, Trident provided evidence of the marks’
registration in the federal Principal Register (Doc. 1-2 at 3-4), which is “prima facie
evidence of the mark’s validity and entitles the plaintiff to a strong presumption that the
mark is a protectable mark.”
Zobmondo Ent., LLC v. Falls Media, LLC
,
To support its allegations of ownership, Trident provided a declaration of Jeff Wall, its president and CEO. (Doc. 17-1.) [4] The declaration establishes that, although Neubel originally owned the word mark, Neubel assigned ownership to Mamar in December 1993. (Doc. 17-1 ¶ 5.) Mamar changed its name to Handyman Connection, Inc. in February 2012. ( Id. ; Doc. 17-2.) In January 2014, Handyman Connection, Inc. “merged with, and into, Trident.” (Doc. 17-1 ¶ 5; Doc. 17-3 at 3-11.) Handyman Connection, Inc. then assigned ownership of the word mark to Trident. (Doc. 17-3 at 1-2.) [5] As for the design mark, although Mamar originally owned the design mark, Trident obtained ownership of the design mark when Handyman Connection, Inc. (formerly Mamar) and Trident merged in 2014. (Doc. 17-1 ¶ 6; Doc. 17-3 at 1-2; Doc. 1-2 at 4 [serial number 76-577,851].) Trident has sufficiently established that it owns the HANDYMAN CONNECTION marks.
…
… b. Likelihood Of Confusion
In evaluating likelihood of confusion, courts consider the Ninth Circuit’s
Sleekcraft
factors: (1) the “strength of the mark,” (2) the “proximity of the goods,” (3) the “similarity
of the marks,” (4) “evidence of actual confusion,” (5) “marketing channels used,” (6) the
“type of goods and the degree of care likely to be exercised by the purchaser,” (7) the
“defendant’s intent in selecting the mark,” and (8) the “likelihood of expansion of the
product lines.”
AMF Inc. v. Sleekcraft Boats
, 599 F.2d 341, 348-49 (9th Cir. 1979),
abrogated on other grounds by Mattel, Inc. v. Walking Mountain Prods.
,
Here, Trident has sufficiently established a likelihood of confusion. “Two
particularly probative factors are the similarity of the marks and the proximity of the
goods,”
Stone Creek, Inc. v. Omnia Italian Design, Inc.
,
Trident has also sufficiently established actual confusion. Trident alleges in its complaint that Defendants have caused “significant confusion among consumers,” as “Handyman Connection has received inquiries as to whether The Handy Connection is associated with the Handyman Connection franchise system” and some customers “mistakenly contact[ed] ‘The Handy Connection’ when they had intended to contact ‘Handyman Connection.’” ( Id. ¶¶ 21, 24.) Trident has also proffered evidence of actual confusion. Trident attached the declaration of Allen Hopkins, the owner and general manager of Handyman Connection Phoenix, in support of its motion. (Doc. 17-4.) Hopkins states that on or around September 21, 2020, a “potential customer contacted [the Handyman Connection] office,” indicating that he had scheduled services from Handyman Connection but was not listed in its system. (Doc. 17-4 ¶ 6.) “The customer asked if he had reached ‘Handyman Connection’ and he confirmed that he had scheduled with Handyman Connection.” ( Id. ) When the customer “asked if there was a person named ‘Linda’ in the office and . . . was told there was not, the customer then said he must have talked to ‘The Handy Connection.’” ( Id. ) Another incident occurred on or around October 27, 2020, after Trident filed this action, in which a customer inquired over email whether “Elizabeth Evans [was] the owner of Handyman Connection.” ( Id. ¶ 7.)
Trident’s allegations and the evidence submitted by Trident establish a likelihood
of confusion and, thus, a claim for trademark infringement. Other courts have held that
similar showings are sufficient to establish a likelihood of confusion in the default-
judgment context.
See, e.g.
,
Bob & Me Prods., Inc. v. Lemon Leaf Café, LLC
, 2020 WL
6468406, *4 (C.D. Cal. 2020) (plaintiff had successfully established likelihood of
confusion where “both logos [bore] the same restaurant name and an image of a lemon in
place of the ‘O’ in lemon”);
Sarieddine v. Area 51 Pharms, LLC
,
2. Unfair Competition
Trident has also sufficiently established a common law unfair competition claim
because “trademark infringement and unfair competition claims brought under the
common law and the Lanham Act . . . share the same analysis.”
3 Ratones Ciegos v. Mucha
Lucha Libre Taco Shop 1 LLC
,
3. Trademark Dilution
To prevail on a dilution claim, a plaintiff must show that (1) its “mark is famous and
distinctive; (2) the defendant is making use of the mark in commerce; (3) the defendant’s
use began after the mark became famous; and (4) the defendant’s use of the mark is likely
to cause dilution by blurring or dilution by tarnishment.”
Jada Toys, Inc. v. Mattel, Inc.
,
Trident has not stated a claim for trademark dilution because Trident has not sufficiently alleged that its marks are famous. Trident merely makes the conclusory allegation in its complaint that its marks “constitute famous marks within the meaning of 15 U.S.C. § 1125(c).” (Doc. 1 ¶ 38.) Trident did not provide any factual allegations demonstrating that its marks are “widely recognized by the consuming public of the United States,” “truly prominent and renowned,” “a household name,” or “part of the collective national consciousness,” as courts in this Circuit have required to prevail on a dilution claim.
D. Balancing The Factors
Having considered all of the Eitel factors, the Court concludes that default judgment is appropriate as to Trident’s claims for trademark infringement and unfair competition.
E. Injunctive Relief, Attorneys’ Fees, And Costs Trident seeks a permanent injunction, $15,420 in attorneys’ fees, and $400 in costs.
Each category is addressed below.
1. Permanent Injunction
“Injunctive relief is the remedy of choice for trademark and unfair competition
cases, since there is no adequate remedy at law for the injury caused by a defendant’s
continuing infringement.”
Century 21 Real Est. Corp. v. Sandlin
, 846 F.2d 1175, 1180
(9th Cir. 1988).
See also
15 U.S.C. § 1116(a) (authorizing district courts to grant
injunctions to prevent the “violation of any right” of the owner of a registered mark). Nevertheless, “[a]n injunction is a drastic and extraordinary remedy, which should not be
granted as a matter of course.”
Monsanto Co. v. Geertson Seed Farms
,
a. Irreparable Harm
Trident argues that, because it has demonstrated a likelihood of confusion, it is
entitled to a presumption that irreparable harm will arise in the absence of injunctive relief.
(Doc. 17 at 5.) However, the case that Trident cites to establish this proposition, which
was decided in 2011, is no longer good law. In 2013, the Ninth Circuit clarified that
“[g]one are the days when [o]nce the plaintiff in an infringement action has established a
likelihood of confusion, it is ordinarily presumed that the plaintiff will suffer irreparable
harm if injunctive relief does not issue.”
Herb Reed
,
Notwithstanding Trident’s mistaken belief that it is entitled to a presumption of
irreparable harm, the Court concludes that the evidence and allegations proffered by
Trident are sufficient—albeit only by a whisker—to establish that it has suffered
irreparable harm and will continue to do so in the absence of injunctive relief. As noted,
Trident has submitted a declaration identifying two recent incidents in which potential
customers believed they were contracting with the Handyman Connection but were, in fact,
contracting with the Handy Connection. Trident also alleges that it has “invested
significant time, money and other resources to advertise, promote and garner goodwill in
the [marks] and Handyman Connection brand generally.” (Doc. 1 ¶ 10.) Finally, the
evidence before the Court establishes that Defendants chose to continue their course of
infringing conduct even after being served with a cease-and-desist letter. Although it is
true that, “[s]ince
Herb Reed
, numerous district courts have held that evidence of consumer
confusion—including actual consumer confusion that has already occurred—is not
sufficient to establish a likelihood of irreparable harm,”
Samick Music Corp. v. Gordon
,
b. Inadequate Remedy At Law
“District courts must ascertain whether remedies available at law, such as monetary
damages, are inadequate to compensate for the injury suffered.”
Apple
, 673 F. Supp. 2d at
949. Monetary damages are inadequate where, for example, there is good reason to believe
infringement will continue.
Id.
at 950 (“[M]onetary damages would not prevent
[defendant] from continuing to infringe [plaintiff’s] copyrights . . . in the future . . . ; indeed,
[defendant’s] actions throughout this litigation and statements at oral argument reveal a
dogged determination to continue . . . .”). Here, Defendants received a cease-and-desist
letter informing them they were infringing Trident’s marks yet they did not respond or stop
their infringement. (Doc. 1 ¶ 19; Doc. 17-1 ¶ 11.) This factor weighs in favor of granting
a permanent injunction.
Adobe Sys. Inc. v. Acheampong
,
c. Balance Of Hardships
“[T]here is no indication that Defendant would suffer hardship were the court to
grant an injunction, as Defendant would only be required to stop using the Mark and would
be able to continue to operate its business.”
Bob & Me Prods.
,
… d. Public Interest
An injunction “would not disserve the public interest, but would instead ensure
compliance with trademark law. The purpose of protecting trademarks is to avoid
consumer confusion and to ensure that a producer reaps the rewards of having developed
desirable products. By forcing Defendant[s] to cease infringing . . . this Court upholds
these aims, as intended by the Lanham Act.”
PRL USA Holdings, Inc. v.
Designerbrandsforless, Inc.
, 2020 WL 6694348, *5 (C.D. Cal. 2020) (citation omitted).
See also Internet Specialties W., Inc. v. Milon-DiGiorgio Enters., Inc.
,
e. Scope
Because all factors weigh in Trident’s favor, the Court will grant its request for a
permanent injunction. “[A]n injunction must be narrowly tailored to affect only those
persons over which [the Court] has power and to remedy only the specific harms shown by
the plaintiff[], rather than to enjoin all possible breaches of the law.”
Price v. City of
Stockton
,
Trident proposes a permanent injunction which would enjoin Defendants from: (1) using service marks, trademarks, trade names or trade dress in connection with the advertisement, promotion, offering or rendering of home repair or remodeling services, or the offering of home repair franchises, that imitate or simulate Handyman Connection’s service marks, trademarks, trade names or trade dress;
(2) performing any actions or using any service marks, trademarks, trade 24 names, trade dress, words, names, styles, titles, designs or marks that are likely to cause confusion or mistake, or to deceive, or to otherwise 25 mislead the trade or public into believing that Defendants are 26 authorized by Handyman Connection, or in some manner affiliated with or associated with, or under the supervision or control of 27 Handyman Connection, or are likely in any way to lead the trade or 28 the public to associate Defendants with Handyman Connection; 1 (3) using any service marks, trademarks, trade names or trade dress or engaging in any other conduct that creates a likelihood of injury to the 2 business reputation of Handyman Connection or a likelihood of 3 misappropriation and dilution of Handyman Connection’s distinctive service marks, trademarks, trade names and trade dress and the 4 goodwill associated therewith; and 5 (4) using any trade practices whatsoever, including those complained of in the Complaint, that tend to unfairly compete with or injure 6 Handyman Connection, its businesses and the goodwill appertaining 7 thereto. 8 (Doc. 17-8.) Because Trident and Defendants offer the same type of services, the Court in 9 its discretion determines that Trident’s requested injunction is appropriate, with the 10 following adjustments. The reference to dilution will be omitted because Trident did not 11 prevail on its dilution claim. The Court will also only enjoin infringement of the word and 12 design marks that Trident asserted in this action.
13 2. Entitlement To Attorneys’ Fees
The Lanham Act authorizes courts to award “reasonable attorney fees to the
prevailing party” in “exceptional” trademark infringement actions. 15 U.S.C. § 1117(a).
“[A]n ‘exceptional case’ is simply one that stands out from others with respect to the
substantive strength of a party’s litigating position (considering both the governing law and
the facts of the case) or the unreasonable manner in which the case was litigated.”
SunEarth, Inc. v. Sun Earth Solar Power Co.
, 839 F.3d 1179, 1180 (9th Cir. 2016) (en
banc) (per curiam) (quoting
Octane Fitness, LLC v. ICON Health & Fitness, Inc.
, 572 U.S.
545, 554 (2014)). “District courts may determine whether a case is ‘exceptional’ in the
case-by-case exercise of their discretion, considering the totality of the circumstances.”
Octane Fitness
,
“Courts applying the
Octane Fitness
analysis commonly find that willful
infringement, in conjunction with non-participation in litigation, makes a case
‘exceptional.’”
ADG Concerns, Inc. v. Tsalevich LLC
,
3. Reasonableness Of The Requested Fee Award Trident seeks $15,420 in attorneys’ fees, consisting of $7,815 charged by Arizona counsel (Doc. 17-5) and $7,605 charged by Pennsylvania counsel (Docs. 17-6, 17-7). For the reasons explained below, the Court awards $11,610 in fees.
a. Arizona Counsel
A declaration attached to the motion establishes the credentials and experience of
attorney David Brooks and his billing rate. (Doc. 17-5.) Brooks has practiced for 31 years
and charged $350/hour, and his paralegal charged $100/hour. (
Id.
¶¶ 2-3.) The Court finds
the hourly rates charged to be reasonable and within the range of rates courts in this District
have found reasonable.
See, e.g.
,
Edwards v. Vemma Nutrition
,
A table containing Brooks’s time spent on this matter was also attached. (Doc. 17-
5 at 4-5.) The Court has reviewed Brooks’s time entries and finds that many fail to provide
sufficient details. “The party seeking an award of fees must adequately describe the
services rendered so that the reasonableness of the charge can be evaluated.” LRCiv
54.2(e)(2). “If the time descriptions are incomplete, or if such descriptions fails to
adequately describe the service rendered, the court may reduce the award accordingly.”
Id.
Time entries for telephone conferences “must identify all participants and the reason for
the telephone call.” LRCiv 54.2(e)(2)(A). Similarly, time entries for emails or other
correspondence that do not “identify to whom the [correspondence] was sent or the subject
matter of the [correspondence]” are insufficient.
Oskowis v. Sedona Oak-Creek Unified
Sch. Dist. #9
,
The Court will reduce the fee award accordingly. The Court will not award fees for the billing entries on September 17, 2020 and October 16, 2020, which fail to provide subject matter of the respective correspondence. The Court will not award fees for the billing entry on September 28, 2020, which merely states “Paralegal expense.” The Court will also reduce the fees requested for the following billing entries by 50%: September 29, 2020; October 15, 2020; October 20, 2020; October 21, 2020; October 22, 2020. [7] The Court will reduce the fees requested in the October 28, 2020 entry by 10%. Last, the Court will not award fees for the billing entry on November 3, 2020, which was completed by an unidentified individual. After adjusting the amount sought consistent with the reductions identified above, the Court awards Trident $6,062 for Arizona counsel’s fees.
b. Pennsylvania Counsel Trident’s Pennsylvania counsel did not appear in this case but “prepared and sent the demand letter to Defendants . . . and prepared the initial drafts of the complaint.” (Doc. 17-5 ¶ 4.) A declaration attached to the motion establishes the billing rates and length of practice of Trident’s three Pennsylvania attorneys. (Doc. 17-6.) David Allsman has practiced for 16 years and charged $425/hour, Ariel Multak has practiced for 1 year and charged $400/hour, and Joseph Brooks has practiced for 3 years and charged $350/hour. ( Id. ¶ 4.)
Although the declaration provides no explanation why Allsman’s hourly rate was
higher than his more experienced Arizona co-counsel, the Court nevertheless finds that
Allsman’s hourly rate is reasonable and is within the range that other courts in this District
have deemed reasonable.
See, e.g.
,
Swisher Hygiene Franchise Corp. v. Clawson
, 2019
WL 4169003, *10 (D. Ariz. 2019),
amended upon reconsideration on other grounds
, 2020
WL 2512788 (D. Ariz. 2020). The declaration also does not explain why Multak, who was
admitted to practice in 2019, has a higher hourly rate than Brooks, who was admitted to
practice in 2017, nor does the declaration explain why an attorney who has been admitted
to practice for just over a year warrants a $400/hour billing rate.
Cf. id.
(finding associate
rates between $212.50 and $276.25 to be reasonable). “A party seeking fees must prove
that the hourly rate sought is reasonable.”
Arnhoelter v. Kaus
,
Pennsylvania counsel’s time entries have many of the same deficiencies as those of their local counterparts. The Court will not award fees for the following billing entries due to counsel’s failure to disclose the subject matter of the referenced conference or correspondence: June 5, 2020; June 11, 2020; and September 14, 2020. The Court will not award fees for the billing entry on June 8, 2020, which merely states “attn to Phoenix infringer.” The Court will also reduce the fees requested for the following billing entries by 40%: Allsman’s entry on August 7, 2020; August 27, 2020; September 3, 2020; September 4, 2020; September 15, 2020; September 17, 2020; and September 22, 2020. [8] After adjusting the amount sought consistent with the reductions identified above, the Court awards Trident $5,548 for Pennsylvania counsel’s fees.
In total, the Court awards Trident $11,610 in attorneys’ fees.
4. Costs
Trident also requests $400 in costs, consisting of the complaint filing fee. “In cases where the plaintiff is the prevailing party, the Lanham Act [also] assigns the payment of litigation costs to the defendant.” Athena Cosmetics, Inc. v. Timbo Trading Co. , 2020 WL 4805470, *3 (C.D. Cal. 2020) (citing 15 U.S.C. § 1117(a)). The Court accordingly awards the requested $400 in costs.
5. Post-Judgment Interest
In its motion, Trident requests that “post-judgment interest be awarded at the statutory rate according to law.” (Doc. 17 at 9.) Trident does not provide any justification for its alleged entitlement to post-judgment interest. The Court thus declines to award post- judgment interest.
II. Motion To Amend Complaint
Trident also moves to amend the complaint to add Solebello, Evans’s spouse, as a defendant. (Doc. 17 at 8.) Trident “originally sued Elizabeth Evans and John Doe Evans, alleging they are a married couple.” ( Id. ) Accordingly, the Clerk of Court entered default against “Unknown Evans.” (Doc. 16.) Trident argues that, because Solebello was served with the complaint and summons, an “amendment should be allowed adding Susan Solebello as Elizabeth Evans’ spouse and default judgment should be rendered against her as well.” (Doc. 17 at 8.)
Susan Solebello is already a Defendant in this action, albeit named under a pseudonym. She was named in this action only in her capacity as “the spouse of Elizabeth Evans” and is sued only because “Evans’ conduct . . . was for and on behalf of her marital community and is binding on her marital community.” (Doc. 1 ¶ 3.)
On September 25, 2020—three days after the complaint was filed—a process server personally served Solebello. (Doc. 12.) Indeed, all of the Defendants in this action were served via hand-delivery to Solebello (Docs. 10, 11), who informed the process server that “she is Elizabeth’s spouse.” (Doc. 11.) Solebello called Evans on the telephone, and Evans then gave the process server “verbal permission to leave the documents with [Solebello].” ( Id. ) Accordingly, throughout the pendency of this litigation, Solebello has been aware that she is a defendant in this action and that she has been named under the pseudonym “John Doe Evans.” (Doc. 1.)
Although Trident asserted in the complaint that it would amend the complaint “when the name of Elizabeth Evans’ spouse becomes known,” (Doc. 1 ¶ 3), it has not done so and seeks leave to do so now. Such an amendment would be a mere formality—it would not add a defendant but rather would merely clarify (not change) the identity of an existing defendant (the “Doe” defendant—known to all to be Solebello).
The motion for default judgment against all Defendants, including Solebello, is ripe for resolution now and further delay is not in the interest of speedy determination of this action. Solebello was properly served. (Doc. 12.) The Clerk of Court entered default against Solebello, under the designation “Unknown Evans,” which is synonymous with the “John Doe Evans” pseudonym. (Doc. 16.) Solebello knows this pseudonym refers to her. There is no impediment to the Court entering default judgment against Solebello now. See, e.g. , Malibu Media, LLC v. Doe , 2020 WL 134112, *3 (E.D. Mich. 2020) (“Plaintiff provided a proof of service indicating that the summons, amended complaint and its exhibits, and the corporate disclosure statement were personally served on Defendant John Doe . . . . Granting a default judgment therefore comports with the requirements of due process.”).
Furthermore, for clarity’s sake, the Court will order the Clerk of Court to amend the
caption to replace the pseudonym “Unknown Evans, named as John Doe” with the proper
name for this defendant, Susan Solebello. All allegations in the complaint as to “John Doe
Evans,” or any other pseudonym clearly referring to Evans’s spouse, shall be deemed to
pertain to Solebello.
See, e.g.
,
Twitch Interactive, Inc. v. Johnston
,
The Court thus denies Trident’s motion to amend as moot.
…
…
… Accordingly,
IT IS ORDERED that the Clerk of Court is directed to amend the caption to replace the pseudonym “Unknown Evans, named as John Doe” with the proper name for this defendant, Susan Solebello.
IT IS FURTHER ORDERED that the request to amend the complaint is denied as moot.
IT IS FURTHER ORDERED that the motion for default judgment (Doc. 17) is granted as to all Defendants: Evans, Solebello, and The Handy Connection LLC. A separate judgment against Defendants will issue, after which the Clerk of Court shall terminate this action.
Dated this 8th day of January, 2021.
Notes
[1] “[T]he only difference between a trademark and a service mark is that a trademark identifies goods while a service mark identifies services.” Chance v. Pac-Tel Teletrac Inc. , 242 F.3d 1151, 1156 (9th Cir. 2001). “Service marks and trademarks are governed by identical standards.” Id.
[2] Trident sent this cease-and-desist letter to an address in Goodyear, Arizona. (Doc. 1-2 at 12.) However, Evans and Solebello live in Peoria, Arizona, as Trident discovered when serving the complaint. (Docs. 10, 11, 12.) According to Trident’s service documents, a woman purporting to be Evans’s aunt lives at the Goodyear address. (Doc. 11.) Trident does not acknowledge this oddity, but, in any event, the cease-and-desist letter indicates that it was also sent to what appears to be Evans’s email address. (Doc. 1-2 at 12.) This email address matches the email address listed on The Handy Connection’s Facebook page (Doc. 1-2 at 7), so the Court is satisfied that Trident has shown that Defendants received the cease-and-desist letter, notwithstanding that it may not have been physically mailed to the correct address.
[3] The filing date, not the registration date, is the critical date for establishing a
20
presumption of ownership.
See, e.g.
,
Sengoku Works Ltd. v. RMC Int’l, Ltd.
,
[4] In addition to well-pled allegations in the complaint admitted in default, courts also
22
consider “affidavits and other evidence to establish the truth of [a plaintiff’s] allegations.”
Bd. of Trs. of Pipe Trades Dist. Council No. 36 Health & Welfare Tr. Fund v. Clifton
Enters., Inc.
, 2013 WL 2403573, *8 (N.D. Cal. 2013);
Hmong I v. Lao People’s
Democratic Republic
,
[5] The trademark assignment record from the Patent and Trademark Office lists the 28 word mark’s serial number (74-347,412, Doc. 1-2 at 3), rather than the registration number (1,838,843, id. ). (Doc. 17-3 at 1.)
[6] Trident attached to its motion the declaration of Allen Hopkins, the owner and 28 general manager of Handyman Connection Phoenix, which states that Handyman Connection has operated a franchise in Phoenix since 1995. (Doc. 17-4 ¶ 2.)
[7] These entries listed more than one task within a single entry, some of which are insufficient. Because the tasks are listed together in a block, the Court is unable to determine how much time was spent on each task. The Court accordingly awards only a portion of the requested fees for those entries. See LRCiv 54.2(e)(2).
[8] These entries listed more than one task within a single entry, some of which are insufficient. Because the tasks are listed together in a block, the Court is unable to determine how much time was spent on each task. The Court accordingly awards only a portion of the requested fees for those entries. See LRCiv 54.2(e)(2).