Law Offices of Amir Soleimanian et al v. Law Office of Kristina Wildeveld et al

Filing 63

ORDER by Judge Dean D. Pregerson: granting 56 defendants Motion to Set Aside Default. The Clerks Entry of Default is set aside. Henceforward the court shall treat Plaintiffs Motion for Permanent Injunction as a Motion for Preliminary Injunction. De fendants may file an answer to the Complaint and an opposition to the Motion for Permanent Injunction by December 18, 2012. Any reply shall be submitted by December 28, 2012. Oral argument, as currently scheduled, shall be heard on January 7, 2013, at 10:00 a.m. (lc). Modified on 12/11/2012 (lc).

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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LAW OFFICE OF AMIR
SOLEIMANIAN; AMIR
SOLEIMANIAN (an individual)
dba MR. TICKET,

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Plaintiffs,
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v.
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LAW OFFICES OF KRISTINA
WILDEVELD, KRISTINA
WILDEVELD,ESQ. (an
individual), dba MR. TICKET,

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Defendants.
___________________________

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Case No. CV 12-02564 DDP (RZx)
ORDER GRANTING DEFENDANTS’ MOTION
TO SET ASIDE CLERK’S ENTRY OF
DEFAULT
[Dkt. No. 56]

Presently before the court is Defendants’ Motion to Set Aside

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Clerk’s Entry of Default.

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I. BACKGROUND

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On March 26, 2012, Plaintiffs Law Offices of Amir Soleimanian

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and Amir Soleimanian, an individual, filed a Complaint against

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Defendants Kristina Wildeveld, Esq., an individual, and the Law

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Offices of Kristina Wildeveld, alleging infringement of Plaintiffs’

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registered trademark MR. TICKET, for legal services.

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filed no response to the Complaint, and Default was entered by

Defendants

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clerk on June 1, 2012.

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June 6, 2012.

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A corrected default was entered by clerk on

On October 9, 2012, Plaintiffs filed a Motion for Permanent

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Injunction. On November 13, 2012, Defendants filed a Motion to

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Dismiss, alleging that they had not been served with the Complaint

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and summons.

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Complaint.

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on the Permanent Injunction and set a status conference regarding

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the Entry of Default and Filed Answer for November 19, 2012, the

At the same time, they filed an Answer to the
On November 15, 2012, this court continued the hearing

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date that the hearing on the Permanent Injunction had been

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scheduled. Additionally, the court ordered the parties to meet and

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confer prior to the status conference.

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15, 2012, counsel Christien Gaumer appeared for Plaintiffs.

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were no appearances for Defendants.1

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Answer.

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At the hearing on November
There

The court struck Defendants’

On November 21, 2012, Defendants filed the present Motion to

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Set Aside Clerk’s Entry of Default.

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court denied Defendants’ Motion to Dismiss, finding that service of

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process was proper.

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II. LEGAL STANDARD

On November 28, 2012, the

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As far as the court can determine, neither party, including
Plaintiffs’ counsel who did appear, was aware of the status
conference or of the order to meet and confer. (Minute Order, Nov.
15, 2012.) Based on Defendants’ Supplement to Defendant’s Motion to
Set Aside Clerk’s Entry of Default, Decl. Kristina Wildeveld, ¶ 6,
Exh. A, it appears that the email notice of the court’s Minute
Order was truncated and did not include the full text entered onto
the docket. The email notice states only that the hearing on the
Permanent Injunction was continued to January 7, 2013, but the full
Minute Order sets the status conference for November 19, 2012, and
orders the parties to meet and confer. The court notes that the
truncated email notice was not due to any error on the part of the
Court Clerk.
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“The court may set aside an entry of default for good cause.”

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Fed. R. Civ. P. 55(c).

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consider three factors: “(1) whether the party seeking to set aside

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the default engaged in culpable conduct that led to the default;

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(2) whether it had no meritorious defense; or (3) whether reopening

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the default judgment would prejudice the other party.” U.S. v.

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Signed Personal Check No. 730 of Yubran S. Mesle, 615 F.3d 1085,

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1091 (9th Cir. 2010)(internal quotation marks and citation

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omitted).

To determine “good cause,” a court must

This standard is disjunctive “such that a finding that

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any one of these factors is true is sufficient reason for the

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district court to refuse to set aside the default.”

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“[J]udgment by default is a drastic step appropriate only in

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extreme circumstances; a case should, whenever possible, be decided

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on the merits.”

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omitted.)

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III. DISCUSSION

Id.

Id. (internal quotation marks and citations

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A. Culpability

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The court finds that any conduct by Defendants that led to the

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clerk’s entry of default was not culpable.

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November 28, 2012, this court found that service of process on

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Defendants was proper.

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served, Defendants were in the midst of moving their law offices to

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a different Las Vegas location.

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circumstances could explain how papers could have been properly

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served but nonetheless how Defendants could have failed to receive

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them, as they assert.

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///

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///

In its Order of

However, at the time when process was

(Decl. Mara Copodonna, ¶ 3.)

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Such

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B. Defenses

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“A defendant seeking to vacate a default judgment must present

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specific facts that would constitute a defense. But the burden on a

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party seeking to vacate a default judgment is not extraordinarily

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heavy.

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requirement is to allege sufficient facts that, if true, would

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constitute a defense: the question whether the factual allegation

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is true is not to be determined by the court when it decides the

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motion to set aside the default. Rather, that question would be the

All that is necessary to satisfy the ‘meritorious defense’

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subject of the later litigation.”

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No. 730 of Yubran S. Mesle, 615 F.3d 1085, 1094 (9th Cir.

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2010)(internal quotation marks and citations omitted).

U.S. v. Signed Personal Check.

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The court finds that Defendants meet this low burden.

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Defendants assert facts that, if true, would constitute a valid

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defense to Plaintiffs’ trademark infringement claim.

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the merits of a trademark infringement claim, Plaintiffs must

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establish that “defendant’s use of its mark gives rise to a

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‘likelihood of confusion’ in the consuming public.”

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Ltd. v. San Jose Mercury News, 987 F.2d 637 (9th Cir. 1993).

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Defendants have offered facts distinguishing their mark from

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Plaintiffs’ mark, pointing out that the marks have different

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imagery.

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geographic scope of their use of the mark differs from that of

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Plaintiffs, thus reducing the likelihood of confusion. (Id.)

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court makes no determination on the merits of these arguments; at

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this stage, it suffices to say that if these facts are true, they

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would constitute a defense to Plaintiffs’ trademark infringement

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claim.

(Mot. at 10.)

To succeed on

Metro Pub.,

Defendants also point out that the

Thus, Defendants have satisfied their burden.
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The

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C. Prejudice

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Neither party discusses whether Plaintiffs would be prejudiced

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if the court sets aside the clerk’s entry of default, so the court

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need not address this issue.

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that Plaintiffs would be prejudiced since Defendants assert that

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they have ceased using “Mr. Ticket” to market their legal services.

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(Mot. at 13.)

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IV. CONCLUSION

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The court notes that it is unlikely

Defendants’ Motion is GRANTED.

The Clerk’s Entry of Default

is set aside.

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Henceforward the court shall treat Plaintiff’s Motion for

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Permanent Injunction as a Motion for Preliminary Injunction.

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Defendants may file an answer to the Complaint and an opposition to

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the Motion for Permanent Injunction by December 18, 2012.

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reply shall be submitted by December 28, 2012.

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currently scheduled, shall be heard on January 7, 2013, at 10:00

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a.m.

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IT IS SO ORDERED.

Any

Oral argument, as

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Dated: December 11, 2012
DEAN D. PREGERSON
United States District Judge

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