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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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Jessica Hinton, et al., 9 10 Plaintiffs, vs. 11 12 13 14 Completely Innocent LLC, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. CV-21-01019-PHX-SPL ORDER 15 Plaintiffs Jessica Hinton, Cielo Jean Gibson, Katarina Van Derham, and Claudia 16 Sampedro (collectively, “Plaintiffs”) filed a Complaint against Defendant Completely 17 Innocent LLC (“Defendant”). (Doc. 1). The Complaint asserts seven claims related to 18 Defendant’s alleged misappropriation and unauthorized publication of images of Plaintiffs 19 to promote its nightclub. (Id. at 2). Defendant was served on July 12, 2021. (Doc. 8). 20 Defendant has failed to answer or respond to the Complaint, or to otherwise appear in this 21 action. On August 31, 2021, Plaintiffs filed an Application for Entry of Default against 22 Defendant pursuant to Federal Rule of Civil Procedure (“FRCP”) 55(a). (Doc. 10). On 23 September 2, 2021, the Clerk of Court entered default as to Defendant. (Doc. 11). 24 On October 18, 2021, this Court ordered Plaintiffs to show cause by October 22, 25 2021 why the action should not be dismissed for failure to prosecute. (Doc. 14). On October 26 22, 2021, Plaintiffs filed the instant Motion for Default Judgment pursuant to FRCP 27 55(b)(2) requesting an entry of default judgment and relief in the form of damages and an 28 injunction. (Doc. 15). Defendant has not responded. 1 Because Defendant’s default has been properly entered under FRCP 55(a) (see Doc. 2 11), the Court has discretion to grant default judgment against Defendant pursuant to FRCP 3 55(b). See Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980); Draper v. Coombs, 792 4 F.2d 915, 924 (9th Cir. 1986). Factors the Court may consider include: (1) the possibility 5 of prejudice to the plaintiff; (2) the merits of the claim; (3) the sufficiency of the complaint; 6 (4) the amount of money at stake; (5) the possibility of a dispute concerning material facts; 7 (6) whether default was due to excusable neglect; and (7) the policy favoring a decision on 8 the merits. See Eitel v. McCool, 782 F.2d 1470, 1471–72 (9th Cir. 1986). 9 In their Motion, Plaintiffs fail to meaningfully address the Eitel factors. Plaintiffs 10 argue that factors two, three, and five “strongly favor” a default judgment because Plaintiffs 11 have already succeeded on similar claims against similar defendants in other cases. 1 This 12 rather cursory argument fails to demonstrate why factors two, three, and five are met in the 13 present case. After all, the fact that another court has previously ruled in Plaintiffs’ favor 14 on similar claims says only so much about the merits of the present claims, the sufficiency 15 of the present Complaint, or the possibility of a dispute concerning material facts in the 16 present case. Moreover, even if Plaintiffs’ argument carried greater weight, it would still 17 only be persuasive as to two of Plaintiffs’ seven claims in this case—the right of publicity 18 claim and the Lanham Act claim. Plaintiffs must show—for each claim upon which default 19 judgment is sought—that they have stated claims on which they may recover. See 20 Zekelman Indus. Incorp. v. Marker, No. CV-19-02109-PHX-DWL, 2020 WL 1495210, at 21 *5 (D. Ariz. Mar. 27, 2020) (“Plaintiffs seek entry of default judgment on seven grounds, 22 covering all eight counts of their complaint. Unfortunately, Plaintiffs devoted less than half 23 of one page of their default-judgment motion to the merits and sufficiency of the complaint, 24 merely asserting in a conclusory fashion that the complaint pleads all the elements of all 25 26 27 28 1 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. 2 1 the causes of action.”). 2 Plaintiffs further fail to meaningfully address any of the other factors. Instead, 3 Plaintiffs merely assert in a conclusory fashion that they are entitled to default judgment 4 “because each of the above-enumerated factors . . . favor Plaintiffs.” (Doc. 16 at 4). 5 Because Plaintiffs do not adequately address all the Eitel factors, the Court will deny the 6 motion for default judgment without prejudice. Plaintiffs shall be afforded an opportunity 7 to refile the motion. The new motion shall fully address each Eitel factor. 8 Accordingly, 9 IT IS ORDERED that Plaintiffs’ motion for default judgment (Doc. 15) is denied 10 11 12 13 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. 14 15 Honorable Steven P. Logan United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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