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Concord Servicing Corp. v. Concord Resolution Incorporated

United States District Court, D. Arizona

July 6, 2016

Concord Servicing Corporation, Plaintiff,
Concord Resolution Incorporated, Defendant.


          James A. Teilborg Senior United States District Judge

         Pending before the Court is Plaintiff Concord Servicing Corporation’s motion for default judgment, (Doc. 12), against Defendant Concord Resolution, Inc., pursuant to Fed.R.Civ.P. 55(b). No response has been filed by Defendant. The Court will grant the motion.


         This action commenced on July 9, 2015, with the filing of the Complaint. (Doc. 1). Defendant has failed to answer or file any motion to dismiss in accordance with Federal and Local Rules.[1] Upon application, (Doc. 10), the Clerk of the Court entered default against Defendant on September 4, 2015. (Doc. 11). Plaintiff thereafter filed the pending motion for default judgment on September 21, 2015. (Doc. 12). Since the motion was filed, Defendant has failed to respond in any capacity.

         After entry of default, the factual allegations of the Complaint, except those relating to the amount of damages, are taken as true. Yoo v. Arnold, 615 Fed.Appx. 868, 870 (9th Cir. 2015); Fair Housing of Marin. v. Combs, 285 F.3d 899, 906 (9th Cir. 2002); Televideo Systems, Inc. v. Heidenthal, 826 F.2d 915, 917 (9th Cir. 1987). The Court thus accepts as true the well-pleaded facts contained in the Complaint. (Doc. 1).


         Fed. R. Civ. P. 55(a) establishes that “[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules . . . the clerk shall enter the party’s default.” Once a default has been entered, and a defendant fails to appear to move to set aside the default, then the Court may enter a default judgment pursuant to Fed.R.Civ.P. 55(b)(2). The “general rule” with respect to default judgments is that they “are ordinarily disfavored, ” as “[c]ases should be decided upon their merits whenever reasonably possible.” Eitel v. McCool, 782 F.2d 1470, 1472 (9th Cir. 1986) (citing Pena v. Sequros La Comercial, S.A., 770 F.2d 811, 814 (9th Cir. 1985)). Nonetheless, “[g]ranting default judgment is within the court’s discretion.” EEOC v. Recession Proof United States LLC, No. 11-CV-01355-PHX-BSB, 2013 U.S. Dist. LEXIS 171524, at *8 (D. Ariz. Aug. 19, 2013).

         Plaintiff moves the Court to exercise its discretion and enter default judgment against Defendant and issue injunctive relief for (1) trademark infringement and (2) cybersquatting. (Doc. 12 at 1). In determining whether default judgment is appropriate, the Court is guided by consideration of the following factors: “(1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff’s substantive claim, (3) the sufficiency of the complaint, (4) the sum of money at stake in the action; (5) the possibility of a dispute concerning material facts; (6) whether the default was due to excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits.” Eitel, 782 F.2d at 1471-72 (citation omitted). The Court will address each of the applicable factors in turn.

         A. Possible Prejudice to Plaintiff

         The first Eitel factor weighs in favor of granting Plaintiff’s motion, as Plaintiff will be prejudiced if default judgment is not entered in its favor. At no point has Defendant responded to this action, and the record reflects that Plaintiff gave proper notice. (Docs. 2, 5, 9). If the motion is not granted, Plaintiff “will likely be without other recourse for recovery.” PepsiCo, Inc. v. Cal. Sec. Cans., 238 F.Supp.2d 1172, 1177 (C.D. Cal. 2002); see also United States v. $86, 496.00 in United States Currency, No. CV-07-1693-PHX-DGC, 2008 U.S. Dist. LEXIS 115052, at *4-5 (D. Ariz. July 1, 2008) (citation omitted).

         B. Merits of Plaintiff’s Claims

         Where, as here, default has been entered, the factual allegations of the Complaint are taken as true. However, for this factor to weigh in favor of granting a motion for default judgment, a plaintiff must plead sufficient facts to “state a claim on which it may recover, which often requires establishing a prima facie case.” Getty Images (US), Inc. v. Virtual Clinics, No. C13-0626JLR, 2014 U.S. Dist. LEXIS 12449, at *8-9 (W.D. Wash. Jan. 31, 2014) (citing Danning v. Lavine, 572 F.2d 1386, 1388 (9th Cir. 1978)); see also Cripps v. Life Ins. Co. of N. Am., 980 F.2d 1261, 1267 (9th Cir. 1992). Thus, the Court must analyze Plaintiff’s claims of trademark infringement and cybersquatting.

         1. Trademark Infringement

         To state a prima facie claim for trademark infringement under Title 15 U.S.C. § 1125 of the Lanham Act, Plaintiff must establish: (a) it has a valid, protectable trademark; and (b) Defendant’s use of the mark is likely to cause confusion. See Rearden LLC v. Rearden Commerce, Inc., 683 F.3d 1190, 1202-03 (9th Cir. 2012); Applied Info. Scis. Corp. v. eBay, Inc., 511 F.3d 966, 969 (9th Cir. 2007) (citing Brookfield Communs., Inc. v. W. Coast Entmt Corp., 174 F.3d 1036, 1047, 1053 (9th Cir. 1999); Reno Air Racing Assn v. McCord, 452 F.3d 1126, 1134 (9th Cir. 2006) (citing KP Perm. Make-Up, Inc. v. Lasting Impression, Inc., 408 F.3d 596, 602 (9th Cir. 2005)).

         Plaintiff obtained a federal trademark registration for CONCORD in 1993, and again in 2005. (Doc. 1 at 2). Plaintiff has made continuous and exclusive use of the CONCORD mark for “many years” in providing “financial services, including delinquent collections of installment contracts and other consumer obligations.” (Id. (internal quotation marks omitted)). Plaintiff enjoys a positive reputation throughout the United States, clients “identify the CONCORD mark with Plaintiff, ” and Plaintiff “receives clients and referrals from throughout the United States and internationally” based on its positive reputation. (Id.). On October 31, 2014, Defendant was formed and began using the business name CONCORD for debt collection services on behalf of pay day lenders. (Doc. 1 at 1). Defendant also registered the domain name to ...

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