Hinton et al v. Completely Innocent LLC

Filing 17

ORDER that Plaintiffs' motion for default judgment (Doc. 15 ) is denied without prejudice. IT IS FURTHER ORDERED that Plaintiffs shall have until 12/16/2021 to file a new motion for default judgment consistent with this order. See the attached order for complete details. Signed by Judge Steven P. Logan on 11/17/2021. (RMW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jessica Hinton, et al.,

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Plaintiffs,
vs.

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Completely Innocent LLC,
Defendant.

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No. CV-21-01019-PHX-SPL
ORDER

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Plaintiffs Jessica Hinton, Cielo Jean Gibson, Katarina Van Derham, and Claudia

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Sampedro (collectively, “Plaintiffs”) filed a Complaint against Defendant Completely

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Innocent LLC (“Defendant”). (Doc. 1). The Complaint asserts seven claims related to

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Defendant’s alleged misappropriation and unauthorized publication of images of Plaintiffs

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to promote its nightclub. (Id. at 2). Defendant was served on July 12, 2021. (Doc. 8).

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Defendant has failed to answer or respond to the Complaint, or to otherwise appear in this

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action. On August 31, 2021, Plaintiffs filed an Application for Entry of Default against

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Defendant pursuant to Federal Rule of Civil Procedure (“FRCP”) 55(a). (Doc. 10). On

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September 2, 2021, the Clerk of Court entered default as to Defendant. (Doc. 11).

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On October 18, 2021, this Court ordered Plaintiffs to show cause by October 22,

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2021 why the action should not be dismissed for failure to prosecute. (Doc. 14). On October

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22, 2021, Plaintiffs filed the instant Motion for Default Judgment pursuant to FRCP

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55(b)(2) requesting an entry of default judgment and relief in the form of damages and an

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injunction. (Doc. 15). Defendant has not responded.

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Because Defendant’s default has been properly entered under FRCP 55(a) (see Doc.

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11), the Court has discretion to grant default judgment against Defendant pursuant to FRCP

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55(b). See Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980); Draper v. Coombs, 792

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F.2d 915, 924 (9th Cir. 1986). Factors the Court may consider include: (1) the possibility

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of prejudice to the plaintiff; (2) the merits of the claim; (3) the sufficiency of the complaint;

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(4) the amount of money at stake; (5) the possibility of a dispute concerning material facts;

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(6) whether default was due to excusable neglect; and (7) the policy favoring a decision on

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the merits. See Eitel v. McCool, 782 F.2d 1470, 1471–72 (9th Cir. 1986).

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In their Motion, Plaintiffs fail to meaningfully address the Eitel factors. Plaintiffs

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argue that factors two, three, and five “strongly favor” a default judgment because Plaintiffs

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have already succeeded on similar claims against similar defendants in other cases. 1 This

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rather cursory argument fails to demonstrate why factors two, three, and five are met in the

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present case. After all, the fact that another court has previously ruled in Plaintiffs’ favor

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on similar claims says only so much about the merits of the present claims, the sufficiency

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of the present Complaint, or the possibility of a dispute concerning material facts in the

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present case. Moreover, even if Plaintiffs’ argument carried greater weight, it would still

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only be persuasive as to two of Plaintiffs’ seven claims in this case—the right of publicity

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claim and the Lanham Act claim. Plaintiffs must show—for each claim upon which default

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judgment is sought—that they have stated claims on which they may recover. See

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Zekelman Indus. Incorp. v. Marker, No. CV-19-02109-PHX-DWL, 2020 WL 1495210, at

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*5 (D. Ariz. Mar. 27, 2020) (“Plaintiffs seek entry of default judgment on seven grounds,

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covering all eight counts of their complaint. Unfortunately, Plaintiffs devoted less than half

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of one page of their default-judgment motion to the merits and sufficiency of the complaint,

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merely asserting in a conclusory fashion that the complaint pleads all the elements of all

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Specifically, Plaintiffs point to two other cases in this District in which Plaintiffs
were granted summary judgment on state right of publicity claims. (Doc. 16 at 4). Plaintiffs
also point to a case in which the jury decided in their favor on a Lanham Act claim against
a similarly situated defendant. Id.
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the causes of action.”).

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Plaintiffs further fail to meaningfully address any of the other factors. Instead,

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Plaintiffs merely assert in a conclusory fashion that they are entitled to default judgment

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“because each of the above-enumerated factors . . . favor Plaintiffs.” (Doc. 16 at 4).

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Because Plaintiffs do not adequately address all the Eitel factors, the Court will deny the

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motion for default judgment without prejudice. Plaintiffs shall be afforded an opportunity

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to refile the motion. The new motion shall fully address each Eitel factor.

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Accordingly,

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IT IS ORDERED that Plaintiffs’ motion for default judgment (Doc. 15) is denied

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without prejudice.
IT IS FURTHER ORDERED that Plaintiffs shall have until December 16, 2021
to file a new motion for default judgment consistent with this order.
Dated this 17th day of November, 2021.

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Honorable Steven P. Logan
United States District Judge

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