United States District Court, D. Arizona
A. Teilborg Senior United States District Judge
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.
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. 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.
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).
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).
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.
Possible Prejudice to Plaintiff
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).
Merits of Plaintiff’s Claims
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
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 Entm’t
Corp., 174 F.3d 1036, 1047, 1053 (9th Cir. 1999);
Reno Air Racing Ass’n 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)).
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 www.concordresolution.com to ...