Hinton et al v. Completely Innocent LLC

Filing 20

ORDER - 1. That Plaintiffs' Motion for Default Judgment (Doc. 18 ) is granted. Default judgment, pursuant to FRCP 55(b)(2), is entered in favor of Plaintiffs on Counts One (Lanham Act false association claim) and Two (right of publicity claim ). 2. That Counts Three through Seven of the Complaint are dismissed in their entirety. 3. That Plaintiffs shall be awarded $85,000 in actual damages pursuant to 15 U.S.C. § 1117(a). 4. That Plaintiffs' request for costs and fees is denied without prejudice. Plaintiffs shall have the opportunity to timely file an application for attorneys' fees and costs in accordance with FRCP 54(d), LRCiv 54.2, and LRCiv 54.1; 5. That Plaintiffs' request for a permanent injunction is denied. 6. That the Clerk of Court shall enter judgment accordingly and terminate this action. (See document for further details). Signed by Judge Steven P Logan on 1/7/2022. (LAD)

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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 Completely Innocent LLC, Defendant. 13 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV-21-01019-PHX-SPL ORDER 15 Before the Court is Plaintiffs Jessica Hinton, Cielo Jean Gibson, Katarina Van 16 Derham, and Claudia Sampedro’s (collectively, “Plaintiffs”) Motion for Default Judgment 17 Against Defendant Completely Innocent LLC. (Doc. 18). No response to the Motion has 18 been filed. Having reviewed Plaintiffs’ Motion, the exhibits attached thereto, and the record 19 in this matter, the Court will grant the Motion. 20 I. BACKGROUND 21 On June 11, 2021, Plaintiffs filed a Complaint against Defendant Completely 22 Innocent LLC, doing business as Club Luxx (“Defendant” or “Club Luxx”). (Doc. 1). The 23 Complaint seeks damages and injunctive relief for Defendant’s alleged misappropriation 24 and unauthorized publication of images of Plaintiffs to promote its nightclub. (Id. at 2). 25 The Complaint has seven counts: (1) false association, in violation of § 43 of the Lanham 26 Act, 15 U.S.C. § 1125 et seq.; (2) a violation of the common law right of publicity; (3) 27 unfair or deceptive trade practices under A.R.S. Title 44, Chapter 9, et seq.; (4) unfair 28 competition; (5) negligence and respondeat superior; (6) conversion; and (7) unjust 1 enrichment. (Id. at 12–19). However, Plaintiffs have withdrawn the third through seventh 2 causes of action, leaving only the Lanham Act claim and the right of publicity claim at 3 issue with this Motion. (Doc. 19 at 5 n.1). The Court will therefore not consider an entry 4 of default judgment against Defendant as to Plaintiffs’ other five claims (unfair or 5 deceptive trade practices, unfair competition, negligence and respondeat superior, 6 conversion, and unjust enrichment) and will instead dismiss those Counts in their entirety. 7 Defendant was served on July 12, 2021 and its deadline to answer or otherwise move 8 against the Complaint was August 3, 2021. (Doc. 8). Defendant has failed to answer or 9 respond to the Complaint or otherwise appear in this action. On August 31, 2021, Plaintiffs 10 filed an Application for Entry of Default against Defendant pursuant to Federal Rule of 11 Civil Procedure (“FRCP”) 55(a). (Doc. 10). On September 2, 2021, the Clerk of Court 12 entered default as to Defendant. (Doc. 11). On October 18, 2021, this Court ordered 13 Plaintiffs to show cause by October 22, 2021 why the action should not be dismissed for 14 failure to prosecute. (Doc. 14). On October 22, 2021, Plaintiffs filed a Motion for Default 15 Judgment pursuant to FRCP 55(b)(2) requesting an entry of default judgment and relief. 16 (Doc. 15). This Court denied Plaintiffs’ Motion without prejudice and gave Plaintiffs an 17 opportunity to refile the Motion in accordance with the Court’s Order. (Doc. 17). On 18 December 16, 2021, Plaintiffs filed a second Motion for Default Judgment—the Motion 19 presently before this Court. (Doc. 18). 20 Plaintiffs seek $85,000 in actual damages, an order permanently enjoining 21 Defendant from using Plaintiffs’ images, and an award to Plaintiffs of all costs and fees 22 incurred in prosecuting this action. (Doc. 19 at 13). To the extent this Court concludes that 23 Plaintiffs’ evidence does not sufficiently establish the fair market value of Defendant’s use 24 of Plaintiffs’ images for commercial purposes, Plaintiffs request the Court conduct an 25 inquest into the issue of damages pursuant to FRCP 55(b)(2). (Id.). Defendant has not 26 responded to Plaintiffs’ Motion. 27 /// 28 /// 2 1 II. DISCUSSION 2 A. Subject Matter Jurisdiction, Personal Jurisdiction, and Service of Process 3 When default judgment is sought against a non-appearing party, a court has “an 4 affirmative duty to look into its jurisdiction over both the subject matter and the parties.” 5 In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999) (“To avoid entering a default judgment that 6 can later be successfully attacked as void, a court should determine whether it has the 7 power, i.e., the jurisdiction, to enter judgment in the first place.”). A court has a similar 8 duty with respect to service of process. See Fishman v. AIG Ins. Co., No. CV 07-0589- 9 PHX-RCB, 2007 WL 4248867, at *3 (D. Ariz. Nov. 30, 2007) (“Because defendant has 10 not been properly served, the court lacks jurisdiction to consider plaintiff’s motions for 11 default judgment.”). These considerations are “critical because ‘[w]ithout a proper basis 12 for jurisdiction, or in the absence of proper service of process, the district court has no 13 power to render any judgment against the defendant’s person or property unless the 14 defendant has consented to jurisdiction or waived the lack of process.’” Id. (citing S.E.C. 15 v. Ross, 504 F.3d 1130, 1138–39 (9th Cir. 2007)). 16 First, as to subject-matter jurisdiction, the Court may exercise subject-matter 17 jurisdiction because Plaintiffs have stated a claim under the Lanham Act, “which ‘confers 18 broad jurisdictional powers upon the courts of the United States’ in conjunction with 28 19 U.S.C. § 1331.” La Quinta Worldwide LLC v. Q.R.T.M., S.A. de C.V., 762 F.3d 867, 872– 20 73 (9th Cir. 2014). “The Lanham Act grants federal subject-matter jurisdiction over ‘all 21 actions arising under this chapter, without regard to the amount in controversy or to 22 diversity or lack of diversity of the citizenship of the parties.” Id. (citing 15 U.S.C. § 23 1121(a)). As to Plaintiffs’ only remaining state-law claim—violation of the common-law 24 right of publicity—this Court exercises its supplemental jurisdiction because the claim 25 arises out of the same case or controversy, i.e., Defendant’s unlawful use of Plaintiffs’ 26 images. 28 U.S.C. § 1367(a) (“[T]he district courts shall have supplemental jurisdiction 27 over all other claims that are so related to claims in the action within such original 28 jurisdiction that they form part of the same case or controversy under Article III. . . .”); see 3 1 also Kuba v. 1–A Agric. Ass’n, 387 F.3d 850, 855–56 (9th Cir. 2004) (“Nonfederal claims 2 are part of the same ‘case’ as federal claims when they derive from a common nucleus of 3 operative fact and are such that a plaintiff would ordinarily be expected to try them in one 4 judicial proceeding.”). 5 Next, as to personal jurisdiction, the Court has personal jurisdiction over Defendant 6 because Defendant is a citizen of Arizona and because Defendant was properly served. See 7 Pennoyer v. Neff, 95 U.S. 714 (1877) (noting that “every State possesses exclusive 8 jurisdiction and sovereignty over persons and property within its territory.”); Benny v. 9 Pipes, 799 F.2d 489, 492 (9th Cir. 1986) (noting that a federal court lacks personal 10 jurisdiction over defendant unless defendant properly served). According to the Complaint, 11 Defendant “is a limited liability company organized and existing pursuant to the laws of 12 the State of Arizona doing business as a night club under the name Club Luxx” in Phoenix, 13 Arizona. (Doc. 1 at 3). As to service of process, Defendant—through its statutory agent, 14 Tony Herrera—was served copies of the summons, complaint, and preliminary order by a 15 certified private process server in person on July 12, 2021. (Doc. 8 at 1). The Court finds 16 that service in this case was proper under the relevant federal and state rules, which 17 authorize service of a limited liability company by in-person delivery of the summons and 18 complaint to an agent of the company who is authorized to receive service. See Fed. R. 19 Civ. P. 4(h); Ariz. R. Civ. P. 4.1(i). 20 21 With preliminary considerations of jurisdiction and service of process out of the way, the Court turns to whether default judgment is appropriate. 22 B. Default Judgment Analysis: Eitel Factors 23 “A defendant’s default does not automatically entitle a plaintiff to a default 24 judgment.” Hartford Life & Accident Ins. Co. v. Gomez, No. CV-13-01144-PHX-BSB, 25 2013 WL 5327558, at *2 (D. Ariz. Sept. 24, 2013). Instead, once a default has been entered, 26 the district court has discretion to grant a default judgment. See Fed. R. Civ. P. 55(b)(2); 27 Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). Factors the Court may consider 28 include: (1) the possibility of prejudice to the plaintiff; (2) the merits of the claim; (3) the 4 1 sufficiency of the complaint; (4) the amount of money at stake; (5) the possibility of a 2 dispute concerning material facts; (6) whether default was due to excusable neglect; and 3 (7) the policy favoring a decision on the merits (collectively, the “Eitel factors”). See Eitel 4 v. McCool, 782 F.2d 1470, 1471–72 (9th Cir. 1986). In applying the Eitel factors, “the 5 factual allegations of the complaint, except those relating to the amount of damages, will 6 be taken as true.” Geddes v. United Fin. Grp., 559 F.2d 557, 560 (9th Cir. 1977). 7 i) The First, Fifth, Sixth, and Seventh Eitel Factors 8 “In cases like this one, in which [Defendant has] not participated in the litigation at 9 all, the first, fifth, sixth, and seventh factors are easily addressed.” Zekelman Indus. Inc. v. 10 Marker, No. CV-19-02109-PHX-DWL, 2020 WL 1495210, at *3 (D. Ariz. Mar. 27, 2020). 11 The first factor—the possibility of prejudice to the plaintiff—weighs in favor of granting 12 default judgment. Defendant has failed to appear in this action, despite being served on 13 July 12, 2021. (Doc. 8). If Plaintiffs’ Motion is denied, then Plaintiffs will likely be without 14 other recourse for recovery. Zekelman, 2020 WL 1495210, at *3 (citing PepsiCo, Inc. v. 15 Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1177 (C.D. Cal. 2002)). 16 The fifth and sixth factors—the possibility of a dispute concerning material facts 17 and whether default was due to excusable neglect—also weigh in favor of granting default 18 judgment. Given the sufficiency of the Complaint (discussed below) and Defendant’s 19 default, the Court finds that no genuine dispute of material facts would preclude granting 20 the Motion. And because Defendant was properly served and has never appeared in this 21 case, the Court finds that it is unlikely that Defendant’s failure to appear and the resulting 22 default was the result of excusable neglect. See id. at *4 (“Due to Defendants’ failure to 23 participate, there is no dispute over material facts (except as to damages) and no indication 24 that default is due to excusable neglect.”). 25 The seventh factor—the policy favoring a decision on the merits—generally weighs 26 in favor of denying default judgment because “[c]ases should be decided upon their merits 27 whenever reasonably possible.” Eitel, 782 F.2d at 1472. But the mere existence of FRCP 28 55(b) “indicates that this preference, standing alone, is not dispositive.” PepsiCo, 238 F. 5 1 Supp. 2d at 1177. Moreover, Defendant’s unexplained absence at this juncture of the case 2 makes a decision on the merits impossible. Thus, the Court is not precluded from entering 3 default judgment against Defendant. See Emp. Painters’ Tr. v. Ethan Enters., Inc., 480 F.3d 4 993, 1000–01 (9th Cir. 2007); Zekelman, 2020 WL 1495210, at *4 (citation omitted) 5 (“[T]he default mechanism is necessary to deal with wholly unresponsive parties who 6 could otherwise cause the justice system to grind to a halt. Defendants who appear to be 7 ‘blowing off’ the complaint should expect neither sympathy nor leniency from the court.”). 8 ii) The Second and Third Eitel Factors 9 The second and third factors—the merits of the claims and the sufficiency of the 10 complaint—weigh in favor of granting default judgment. “These two factors are often 11 analyzed together and require courts to consider whether a plaintiff has stated a claim on 12 which it may recover.” Zekelman, 2020 WL 1495210, at *5 (citation omitted). When the 13 complaint sufficiently states a claim for relief, these factors favor a default judgment. See 14 Danning v. Lavine, 572 F.2d 1386, 1388–89 (9th Cir. 1978). “Of all the Eitel factors, courts 15 often consider the second and third factors to be the most important.” Zekelman, 2020 WL 16 1495210, at *5 (citation omitted). 17 Here, the Court finds that, taking the allegations in the Complaint as true, Plaintiffs 18 have sufficiently stated claims for relief against Defendant for violations of the Lanham 19 Act and of Arizona’s common-law right of publicity. First, under the Lanham Act, a claim 20 for false association has the following elements: 21 22 23 24 25 26 27 1) the defendant used a word, term, name, symbol, or device (or any combination thereof) or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact; 2) the usage was in commerce, in connection with goods or services; 3) the usage is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person; and 4) the plaintiff has been or is likely to be injured as a result of the usage. 28 6 1 Id. at *7–8 (citing 15 U.S.C. § 1125(a)(1)(A)). Here, Plaintiffs have clearly established the 2 elements of a § 1125(a)(1)(A) false association claim. Defendant used images of Plaintiffs 3 on social media posts for Club Luxx without first seeking or obtaining permission from 4 Plaintiffs. (Doc. 1 at 5–8). Defendant’s use of Plaintiffs’ images on its social media1 was 5 likely to cause confusion or deceive viewers into believing that Plaintiffs worked at, 6 promoted, endorsed, or were otherwise affiliated with Club Luxx or the events being 7 advertised. Such a representation of Plaintiffs was false, as none had ever been employed 8 at or affiliated with Club Luxx at any time. (Id. at 9). The Plaintiffs neither consented to, 9 nor received any remuneration for, Defendant’s use of their images. (Id. at 8). Finally, 10 Plaintiffs were injured by being denied the fair market value of Defendant’s use of their 11 images in promotional, marketing, and advertising media on its websites and social media. 12 Turning to Plaintiffs’ right of publicity claim, the Court first notes that Arizona law 13 recognizes a right of publicity. See In re Estate of Reynolds, 235 Ariz. 80, 82–83 (Ct. App. 14 2014). A right of publicity claim requires the plaintiff to show “(1) the defendant’s use of 15 the plaintiff’s name or likeness, (2) the appropriation of the plaintiff’s name or likeness to 16 the defendant’s advantage, (3) lack of consent, and (4) resulting injury.” Lemon v. Harlem 17 Globetrotters Int’l, Inc., 437 F. Supp. 2d 1089, 1100 (D. Ariz. 2006). Here, Defendant used 18 Plaintiffs’ images on its own social media posts for its own commercial advantage. 19 Plaintiffs never consented to Defendant’s use of their images and were injured because 20 they were denied fair market revenue for Defendant’s use of their name or likeness. This 21 Court finds that Plaintiffs have sufficiently stated claims—for violations of the Lanham 22 Act and of Arizona’s common-law right of publicity—on which they may recover. 23 Therefore, the second and third Eitel factors favor default judgment in Plaintiffs’ favor. 24 25 26 27 28 Courts have recognized that online advertisements are “in commerce.” Zekelman, 2020 WL 1495210, at *8 (citing TrafficSchool.com, Inc. v. Edriver, Inc., 653 F.3d 820, 829 n.3 (9th Cir. 2011)). To the extent that the second element of a false association claim is at issue, this Court finds that the social media posts constituted online advertisements for Club Luxx and that Plaintiffs’ images were therefore used “in commerce, in connection with goods or services.” See 15 U.S.C. § 1125(a)(1)(A). 1 7 iii) 1 The Fourth Eitel Factor 2 Under the fourth factor, this Court “must consider the amount of money at stake in 3 relation to the seriousness of Defendant’s conduct.” Philip Morris USA, Inc. v. Castworld 4 Prods., Inc., 219 F.R.D. 494, 500 (C.D. Cal. 2003). “When the money at stake in the 5 litigation is substantial or unreasonable, default judgment is discouraged.” Zekelman, 2020 6 WL 1495210, at *4 (internal quotations omitted) (citation omitted). 7 Here, Plaintiffs seek $85,000. While $85,000 is no small sum, this Court does not 8 find it to be so substantial or unreasonable as to discourage default judgment. Instead, this 9 Court finds that $85,000 is an appropriate and reasonable damages calculation in this case 10 for several reasons. First, the $85,000 sum represents the combined damages sustained by 11 not one, but four individual Plaintiffs. It also represents the combined damages caused by 12 Defendant’s use of at least ten different images of Plaintiffs over a nearly three-year 13 period—this was not a one-off instance. Second, this Court acknowledges that Plaintiffs 14 reasonably withdrew five of their seven claims, evidencing Plaintiffs’ efforts to narrow and 15 simplify their case for purposes of this Motion. Third, and most importantly, Plaintiffs 16 sufficiently support their damages calculation with the sworn declaration of Stephen 17 Chamberlin. (Doc. 19-1 at 2). Mr. Chamberlin is a model and talent agent with extensive 18 experience in the industry and with valuating image uses and model contracts. (Id.). The 19 declaration explains the methodology of Mr. Chamberlin’s valuations, including the many 20 factors considered when determining the fair market value of each image use. Plaintiffs 21 provided the Court with details of Mr. Chamberlin’s damages estimate in the present case, 22 including how it breaks down per Plaintiff and per image used. (Id. at 21). All told, given 23 the supporting documentation and the overall reasonableness of Plaintiffs’ damages 24 calculation, this Court finds that the fourth factor weighs in favor of default judgment. 25 All told, this Court finds that the Eitel factors weigh in favor of default judgment as 26 to Counts One (Lanham Act false association claim) and Two (right of publicity claim). 27 The Court now turns to the relief sought by Plaintiffs. 28 /// 8 1 C. Relief Sought 2 As noted above, Plaintiffs seek $85,000 in actual damages, an award of all costs and 3 fees, and injunctive relief permanently enjoining Defendant from using Plaintiffs’ images. 4 As a starting point, “‘[a] judgment by default shall not be different in kind from . . . that 5 prayed for in the demand for judgment’ contained in the complaint.” U.S. v. Dutson, No. 6 04-2585-PHX-EHC, 2006 WL 1390816, at *1 (D. Ariz. Mar. 7, 2006) (citing Fed. R. Civ. 7 P. 54(c)). This requirement creates no issue here, however, as the relief sought is consistent 8 with the relief requested in the Complaint. (See Doc. 1 at 20). 9 As to actual damages, this Court finds that $85,000 is appropriate. Under the 10 Lanham Act, the award of monetary remedies in a § 1125(a) false association action 11 includes an award of defendant’s profits, any damages sustained by the plaintiff, and the 12 costs of the action. 15 U.S.C. § 1117(a). Here, Plaintiffs seek actual damages based on “the 13 compensation each Plaintiff would and should have received for the use of her images by 14 Defendant.” (Doc. 19 at 12–13). As noted above, Plaintiffs offer the sworn declaration of 15 Mr. Chamberlin as evidence that $85,000 represents the combined fair market value of 16 such compensation for all four Plaintiffs. (Doc. 19-1 at 2). Review of the declaration 17 persuades this Court that $85,000 is appropriate. Mr. Chamberlin’s extensive experience 18 as a model and talent agent supports the credibility of his fair market valuation. (Id. at 2– 19 3, 17–19) Mr. Chamberlin reviewed all relevant and available information—including, 20 among other things, the Complaint, the photographic images of Plaintiffs used by 21 Defendant, the product advertised and media used, each Plaintiff’s individual modeling 22 profile, and the nature of Defendant’s business. (Id. at 4). Mr. Chamberlin explicitly did 23 not consider reputational damages, career damages, or what profits Defendant earned from 24 its use of Plaintiffs’ images—damages that tend to be more forward-looking or 25 hypothetical in nature. (Id. at 6). Instead, Mr. Chamberlin focused exclusively on “the fair 26 market value of Defendant’s use of each Plaintiff’s image in promotional, marketing and 27 advertising media, on websites, social media and other forum.” (Id. at 3). In doing so he 28 “employed the same approach, methodology, and process that [he] would typically employ 9 1 when determining what to charge a company or other entity that is interest in hiring models 2 [he] represents.” (Id. at 7). In presenting his final fair market valuation, Mr. Chamberlin 3 breaks down the $85,000 damage total per Plaintiff and per image usage. (Id. at 21). The 4 Court finds Mr. Chamberlin’s declaration to be thorough, well-founded, and sufficient 5 evidence of the actual damages Plaintiffs suffered in this case. Therefore, this Court finds 6 it appropriate to award them $85,000 in actual damages. 7 In addition to actual damages, Plaintiffs seek an award of all costs and fees incurred 8 in prosecuting this action. The Lanham Act permits an award of the costs of the action to 9 a plaintiff who establishes a violation under § 1125(a) and an award of reasonable 10 attorneys’ fees to the prevailing party in “exceptional cases.” See 15 U.S.C. § 1117(a). 11 However, an award of attorneys’ fees is “never automatic and may be limited by equitable 12 considerations.” Rolex Watch, U.S.A., Inc. v. Michel Co., 179 F.3d 704, 711 (9th Cir. 1999) 13 (citation omitted). Here, while such an award may be appropriate, the Court is unaware of 14 the amount of such costs and fees, as Plaintiffs have not yet submitted accounting records, 15 affidavits, or other evidence that indicate and verify the amount of fees and costs incurred. 16 The Court directs Plaintiffs to file any motion for attorneys’ fees and/or costs in accordance 17 with FRCP 54(d), LRCiv 54.1, and LRCiv 54.2. 18 Finally, Plaintiffs seek an order permanently enjoining Defendant from using 19 Plaintiffs’ images. The Lanham Act states that a district court “shall have power to grant 20 injunctions, according to the principles of equity and upon such terms as the court may 21 deem reasonable, to prevent . . . a violation under [§ 1125(a)].” 15 U.S.C. § 1116(a); see 22 also Levi Strauss & Co. v. Shilon, 121 F.3d 1309, 1314 (9th Cir. 1997); Interstellar Starship 23 Servs., Ltd. v. Epix, Inc., 304 F.3d 936, 948 (9th Cir. 2002). Injunctive relief may be 24 appropriate, even in the default judgment setting under FRCP 55. Dutson, 2006 WL 25 1390816, at *1 (citing S.E.C. v. Worthen, 98 F.3d 480 (9th Cir. 1996); Playboy Enters. 26 Int’l, Inc. v. Muller, 314 F. Supp. 2d 1037, 1040 (D. Nev. 2004)). That said, “[a] plaintiff 27 is not automatically entitled to an injunction simply because it proves its affirmative 28 claims.” PepsiCo, 238 F. Supp. 2d at 1177 (citing Pyrodyne Corp. v. Pyrotronics Corp., 10 1 847 F.2d 1398, 1402 (9th Cir. 1988) (“[T]he grant of injunctive relief is not a ministerial 2 act flowing as a matter of course.”)); see also Monsanto Co. v. Geertson Seed Farms, 561 3 U.S. 139, 165 (2010) (“An injunction is a drastic and extraordinary remedy, which should 4 not be granted as a matter of course.”). Rather, “[a]ccording to well-established principles 5 of equity, a plaintiff seeking a permanent injunction must satisfy a four-factor test before a 6 court may grant such relief.” eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006). 7 The four factors a plaintiff must demonstrate are: “(1) that it has suffered an irreparable 8 injury; (2) that remedies available at law, such as monetary damages, are inadequate to 9 compensate for that injury; (3) that, considering the balance of hardships between the 10 plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest 11 would not be disserved by a permanent injunction.” Id. 12 Here, Plaintiffs have failed to address any of the four factors required for this Court 13 to impose a permanent injunction. Instead, Plaintiffs’ Motion “assumes that injunctive 14 relief should automatically be issued against the Default Defendants for failure to appear 15 and answer the Complaint.” Magna-RX, Inc. v. Holley, No. CV 05-3545-PHX-EHC, 2008 16 WL 5068977, at *4 (D. Ariz. Nov. 25, 2008). While Plaintiffs allege that they were denied 17 the fair market value of Defendant’s use of their images and that their reputations, 18 character, and careers were harmed—allegations this Court takes as true—they make no 19 attempt to demonstrate that these harms are irreparable2 absent an injunction, that legal 20 21 22 23 24 25 26 27 28 The Court notes that, under the Lanham Act, “[a] plaintiff seeking [a permanent injunction] shall be entitled to a rebuttable presumption of irreparable harm upon a finding of a violation identified in this subsection.” 15 U.S.C. § 1116(a) (emphasis added). However, Plaintiffs fail to “address or provide authority as to whether default judgment constitutes ‘a finding of a violation.’” Amazon.com, Inc. v. Expert Tech Rogers Pvt. Ltd., No. 20-cv-07405-PJH (JSC), 2021 WL 4461601, at *10 (N.D. Cal. Sept. 22, 2021) (quoting § 1116(a)). Plaintiffs also fail to address “whether the statute’s amended language abrogates the Ninth Circuit’s prior holding that ‘actual irreparable harm must be demonstrated to obtain a permanent injunction [in a Lanham Act case].’” Id. (citing Herb Reed Enters., LLC v. Fla. Ent. Mgmt., Inc., 736 F.3d 1239, 1249 (9th Cir. 2013)). Therefore, absent any effort by the Plaintiffs to address these issues, this Court will not presume that irreparable harm occurred. 2 11 1 remedies such as monetary damages are inadequate to compensate them, that the balance 2 of hardships is in Plaintiffs’ favor, or that the public interest would not be disserved by a 3 permanent injunction. See id. (“Factual allegations from Plaintiff’s complaint alone, even 4 admitted as true, are not sufficient to grant a permanent injunction. Plaintiff must satisfy 5 the four-factor test in eBay.”). This Court will not conduct the four-factor analysis sua 6 sponte and therefore denies Plaintiffs’ request for a permanent injunction. III. 7 CONCLUSION 8 Having reviewed Plaintiffs’ Motion and supporting documents, and having 9 considered the Eitel factors in doing so, this Court concludes that the entry of default 10 judgment is appropriate as to Plaintiffs’ Lanham Act and right of publicity claims. 11 Accordingly, 12 IT IS ORDERED: 13 1. That Plaintiffs’ Motion for Default Judgment (Doc. 18) is granted. Default 14 judgment, pursuant to FRCP 55(b)(2), is entered in favor of Plaintiffs on Counts 15 One (Lanham Act false association claim) and Two (right of publicity claim). 2. That Counts Three through Seven of the Complaint are dismissed in their 16 entirety. 17 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 12 1 2 3. That Plaintiffs shall be awarded $85,000 in actual damages pursuant to 15 U.S.C. § 1117(a). 3 4. That Plaintiffs’ request for costs and fees is denied without prejudice. Plaintiffs 4 shall have the opportunity to timely file an application for attorneys’ fees and 5 costs in accordance with FRCP 54(d), LRCiv 54.2, and LRCiv 54.1; 6 5. That Plaintiffs’ request for a permanent injunction is denied. 7 6. That the Clerk of Court shall enter judgment accordingly and terminate this 8 9 action. Dated this 7th day of January, 2022. 10 11 Honorable Steven P. Logan United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13

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