GS Holistic, LLC v. Nagi

Filing 20

ORDER signed by Magistrate Judge Carolyn K. Delaney on 03/06/25 DENYING 16 Motion for Default Judgment without prejudice and DISMISSING Complaint with 30 days LEAVE TO AMEND. (Deputy Clerk AJB)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GS HOLISTIC, LLC,

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No. 2:23-cv-02497-CKD

Plaintiff,

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v.

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MAHER AHMED NAGI,

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Defendant.

ORDER DENYING PLAINTIFF’S MOTION
FOR DEFAULT JUDGMENT AND
DISMISSING THE COMPLAINT WITH
LEAVE TO AMEND
(ECF No. 16.)

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Plaintiff, GS Holistic, LLC, moves the court for default judgment against defendant

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Maher Ahmed Nagi. 1 (ECF No. 16.) Specifically, plaintiff seeks a default judgment against

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defendant for statutory damages in the amount of $150,000.00 on claims of trademark

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infringement and unfair competition under the Lanham Act, 15 U.S.C. 1051 et seq., costs of

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$781.60, and injunctive relief. 2

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Plaintiff has brought suit against “defendants” Maher Ahmed Nagi and Maher Ahmed Nagi,
doing business as A&S Smoke Shop & Vape. (See ECF No. 1.) However, as discussed below,
plaintiff alleges A&S Smoke Shop & Vape is a sole proprietorship, therefore it is duplicative to
sue both. See infra Part III.A. Accordingly, the court will analyze this motion relating to
defendant Maher Ahmed Nagi only.
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This motion is referred to the undersigned pursuant to Local Rule 302(c)(19) and 28 U.S.C.
§ 636(b)(1)(A).
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Defendant has neither appeared nor opposed the motion. The court previously ordered this

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motion submitted without appearance and argument pursuant to Local Rule 230(g). (ECF No.

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17.) For the reasons set forth below, plaintiff’s motion for default judgment is DENIED without

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prejudice, and the complaint is DISMISSED with LEAVE TO AMEND.

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I.

BACKGROUND
Since 2020, plaintiff has marketed and sold glass infusers and accessories using the well-

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known trademark “Stündenglass.” (ECF No. 1 at ¶ 7.) Plaintiff is the owner of three federally

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registered trademarks in association with these goods:

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a. U.S. Trademark Registration Number 6,633,884 for the standard character mark

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“Stündenglass” in association with goods further identified in international class 011;

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b. U.S. Trademark Registration Number 6,174,292 for the design plus words mark “S”

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and its logo in association with goods further identified in international class 034,

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c. U.S. Trademark Registration Number 6,174,291 for the standard character mark

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“Stündenglass” in association with goods further identified in international class 034.
(Id. ¶ 11.)
Plaintiff has used the Stündenglass trademarks in commerce continuously since 2020 in

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connection with the manufacturing of glass infusers and accessories. (Id. ¶ 12.) Plaintiff has

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expended substantial time, money, and other resources in developing, advertising, and promoting

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its trademarks, resulting in wide public recognition of its products as being high-quality. (Id.

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¶¶ 12-21.) Plaintiff’s products have a higher sales value than other similar products, and

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plaintiff’s products have been targeted by counterfeiters. (Id. ¶¶ 21-23.)

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The complaint alleges plaintiff’s investigator purchased a Glass Infuser which had

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packaging with the three Stündenglass Marks affixed to it for $322.13 from A&S Smoke Shop &

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Vape, and determined it was counterfeit. (Id. ¶ 29.) Plaintiffs never authorized defendant to sell

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any merchandise bearing any of the Stündenglass Marks. (Id. ¶ 32.) Plaintiff claims defendant

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Nagi “authorized, directed, and/or participated in A&S Smoke Shop’s offer for sale, in

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commerce, of the Counterfeit Goods.” (Id. ¶ 30.) Plaintiff alleges that the use of the counterfeit

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marks began after registration of the trademarks. (Id. ¶ 31.)
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Plaintiff initiated this action on October 27, 2023, asserting claims for Federal Trademark

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Counterfeiting and Infringement, 15 U.S.C. § 1114, and Federal False Designation of Origin and

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Unfair Competition, 15 U.S.C. § 1125(a). (See ECF No. 1.) Plaintiff filed an extension of time to

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perfect service on defendant (ECF No. 5), which the court granted (ECF No. 6). Returns of

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service filed in February 2024 indicated Maher Ahmed Nagi, doing business as A&S Smoke

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Shop & Vape, was served by personal service, and Maher Ahmed Nagi was served by substituted

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service at the place of business. (ECF No. 7.) On April 3, 2024, plaintiff filed a second motion for

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an extension of time to serve defendant because they stated that Nagi and A&S Smoke Shop &

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Vape were served via substitute service at the place of business, but that some courts in the

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Eastern District of California have found substituted service improper in other cases involving

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this plaintiff. (ECF No. 11.) Plaintiff stated they attempted to serve defendant at a different

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address in Ripon, California, on five occasions, and were unsuccessful. (Id.) The court granted

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this motion. (ECF No. 12.) On July 9, 2024, plaintiff filed returns of service for Nagi and A&S

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Smoke Shop & Vape. (ECF No. 13.)

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A & S Smoke Shop & Vape is alleged to be a sole proprietorship business formed in

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California with its principal place of business at 1725 Prescott Road in Modesto, California. (ECF

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No. 1 ¶ 5.) Defendant Maher Ahmed Nagi is allegedly domiciled in and a resident of Modesto,

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California, and is a citizen of California and conducts and solicits business in California. (Id. ¶ 6.)

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Plaintiff filed a request for Clerk’s Entry of Default as to Nagi and A&S Smoke Shop &

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Vape (ECF No. 14), however, the Clerk entered default as to defendant Nagi only on July 17,

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2024. (ECF No. 15.) Plaintiff’s motion for default judgment filed on August 6, 2024 (ECF No.

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16) is now before the court.

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II.

LEGAL STANDARDS

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Pursuant to Federal Rule of Civil Procedure 55, default may be entered against a party

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against whom a judgment for affirmative relief is sought if that party fails to plead or otherwise

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defend against the action. See Fed. R. Civ. P. 55(a). The decision to grant or deny an application

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for default judgment lies within the sound discretion of the district court. Aldabe v. Aldabe, 616

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F.2d 1089, 1092 (9th Cir. 1980).
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As a general rule, once default is entered, well-pleaded factual allegations in the operative

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complaint are taken as true except for the allegations relating to damages. TeleVideo Sys., Inc. v.

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Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987) (per curiam) (citing Geddes v. United Fin. Grp.,

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559 F.2d 557, 560 (9th Cir. 1977) (per curiam)); accord Fair Housing of Marin v. Combs, 285

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F.3d 899, 906 (9th Cir. 2002). “[N]ecessary facts not contained in the pleadings, and claims

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which are legally insufficient, are not established by default.” Cripps v. Life Ins. Co. of N. Am.,

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980 F.2d 1261, 1267 (9th Cir. 1992). Where the pleadings are insufficient, the court may require

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the moving party to produce evidence in support of the motion for default judgment. See

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TeleVideo Sys., 826 F.2d at 917-18.

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Default judgments are ordinarily disfavored. Eitel v. McCool, 782 F.2d 1470, 1472 (9th

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Cir. 1986). In making the determination whether to grant a motion for default judgment, the court

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considers the following factors:

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(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.

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Id. at 1471-72.
III.

DISCUSSION
A.

Duplicative Defendants

Plaintiff asserts the same claims against both Nagi and Nagi doing business as A&S
Smoke Shop & Vape. However, plaintiff alleges that A&S Smoke Shop & Vape is a sole
proprietorship. (ECF No. 1 at 2.) Unlike other business entities, a sole proprietorship has no legal
existence separate from its owner. Providence Wash. Ins. v. Valley Forge Ins., 42 Cal.App.4th
1194, 1199 (1996) (“A sole proprietorship is not a legal entity itself. Rather, the term refers to a
natural person who directly owns the business . . . .”) (citation omitted) (emphasis omitted). A
sole proprietorship may operate under a fictitious business name, see Cal. Bus. & Prof. Code
§ 17900 et seq., however, “[t]he business name is a fiction, and so too is any implication that the
business is a legal entity separate from its owner.” Providence Wash. Ins., 42 Cal.App.4th at
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1200. Since A&S Smoke Shop & Vape is allegedly a sole proprietorship operated by Nagi, it is

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legally indistinguishable from him. See Harrison v. Portfolio Grp. Management, Inc., 2021 WL

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2550991, at *4 (E.D. Cal. June 22, 2021); GS Holistic, LLC v. Nasher, 2024 WL 1092915, at *2

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(E.D. Cal. Mar. 13, 2024); see also Sharemaster v. U.S. Sec. & Exchange Comm’n, 847 F.3d

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1059, 1066 n.4 (9th Cir. 2017). Therefore, plaintiff’s claims against Nagi doing business as A&S

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Smoke Shop & Vape are duplicative of his claims against Nagi as an individual. Accordingly,

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plaintiff’s motion for default judgment against defendant Nagi doing business as A&S Smoke

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Shop & Vape should be denied. See GS Holistic, LLC v. Nasher, 2024 WL 1092915, at *2 (E.D.

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Cal. Mar. 13, 2024).

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Further, the court notes that Clerk’s Entry of Default was only entered against defendant

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Nagi individually, and not A&S Smoke Shop & Vape. (ECF No. 15.) Because suing both the sole

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proprietorship and the individual is duplicative, the fact that default was not entered against both

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is not an issue here.

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B.

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When default judgment is sought, the “district court has an affirmative duty to look into

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its jurisdiction over both the subject matter and the parties.” In re Tuli, 172 F.3d 707, 712 (9th

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Cir. 1999) (citations omitted). The court has subject matter jurisdiction over this action pursuant

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to 28 U.S.C. § 1331 because it arises under federal trademark law, 15 U.S.C. § 1051, et seq. In

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addition, the court has personal jurisdiction over defendant Nagi, who is alleged to be a California

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resident. (ECF No. 1, ¶¶ 5-6.) A&S Smoke Shop & Vape allegedly has its principal place of

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business in California. (Id.)

Jurisdiction

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C.

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In reviewing a motion for default judgment, the court must determine whether defendant

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Service of Complaint

was properly served with the summons and complaint. Fed. R. Civ. P. 4(c).

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A return of service filed on July 9, 2024, indicates defendant Nagi 3 was served by

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substituted service with delivery to Abdul Nagi, listed as Father/Occupant at Nagi’s “home” at

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A&S Smoke Shop & Vape was served at the same time as defendant Nagi. (ECF No. 13 at 5-8.)
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3636 Historic Court in Modesto, California. (ECF No. 13 at 1.) The registered process server

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provided a declaration setting forth three prior attempts at personal service. (Id. at 3.) The process

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server also indicated the service documents were subsequently mailed to defendant Nagi. (Id. at

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4.) Plaintiff previously filed a return of service on February 29, 2024, indicating that defendant

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Nagi was served via substituted service at Nagi’s business located at 1725 Prescott Road in

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Modesto, California. (ECF No. 7-1 at 1.) Delivery was made to Aemen Alsaidi, who is listed as

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“Administrator/Accepting service.” (Id.) The registered process server provided a declaration

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setting forth two prior attempts at service made at this location and indicated that the service

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documents were mailed to defendant Nagi at this location. (Id. at 3-4.) Based on the information

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in the returns of service, it appears defendant Nagi was properly served. See Fed. R. Civ. P.

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4(e)(1) (an individual may be served by following state law in the state where the district court is

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located); Cal. Civ. Proc. Code § 415.20(b) (providing for substituted service for an individual in

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lieu of personal delivery when the summons and complaint cannot with reasonable diligence be

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personally delivered to the person to be served, and which may be accomplished by leaving a

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copy of the summons and complaint at the person’s dwelling house, usual place of abode, or

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usual place of business and by thereafter mailing copies to the person to be served at the place

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where the initial copies were left); see also Fed. R. Civ. P. 4(e)(2)(B) (an individual may be

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served by leaving a copy of the summons and complaint at the individual’s dwelling or usual

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place of abode with someone of suitable age and discretion who resides there); G.S. Holistic, LLC

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v. AA 110, 2024 WL 2848455, at *2 (E.D. Cal. June 4, 2024) (finding substituted service on

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individual appropriate).

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D. Application of Eitel Factors
“The second and third Eitel factors both examine the merits and sufficiency of a plaintiff's

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complaint, and accordingly, are often analyzed together.” Johnson v. Qolor LLC, 2022 WL

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3348589, at *1 (N.D. Cal. Aug. 12, 2022) (internal quotation marks and citations omitted). The

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court considers whether the allegations in the complaint are sufficient to state a claim on which

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plaintiff may recover. See Danning v. Lavine, 572 F.2d 1386, 1388 (9th Cir. 1978); PepsiCo, 238

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F. Supp. 2d at 1175.
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Plaintiff brings two claims: (1) trademark counterfeiting and infringement under the

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Lanham Act, 15 U.S.C. § 1114 et seq., and (2) false designation of origin and unfair competition

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under the Lanham Act, 15 U.S.C. § 1125 et seq. (ECF No. 1 at ¶¶ 52-68.) Courts have noted there

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is “no material difference in the law governing relief” for these claims. Menendez v. Saks & Co.,

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485 F.2d 1355, 1375 n.22 (2nd Cir. 1973), rev’d sub nom. on other grounds, Alfred Dunhill of

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London, Inc. v. Republic of Cuba, 425 U.S. 682 (1976); Walter v. Mattel, Inc., 210 F.3d 1108,

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1111 (9th Cir. 2000) (“The test for false designation under the Lanham Act, as well as the . . .

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statutory unfair competition claims, is whether there was a ‘likelihood of confusion.’”) (citation

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omitted), modified on other grounds by Surfvivor Media, Inc. v. Survivor Prods., 406 F.3d 625

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(9th Cir. 2005).

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To state a claim for relief under either statute, a complaint must allege the plaintiff:

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(1) “has a protectible ownership interest in the mark”; (2) that defendant used the mark; and

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(3) “that the defendant’s use of the mark is likely to cause consumer confusion.” Dep’t of Parks

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& Rec. for State of Cal. v. Bazaar Del Mundo Inc., 448 F.3d 1118, 1124 (9th Cir. 2006). “The test

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for likelihood of confusion is whether a ‘reasonably prudent consumer’ in the marketplace is

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likely to be confused as to the origin of the good or service bearing one of the marks.”

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Dreamwerks Production Grp., Inc. v. SKG Studio, 142 F.3d 1127, 1129 (9th Cir. 1998); see also

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AMF Inc. v. Sleekcraft Boats, 599 F.2d 341, 348-49 (9th Cir. 1979) (setting forth eight factors of

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consideration) abrogated on other grounds by Mattel, Inc. v. Walking Mountain Prod., 353 F.3d

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792, 810 n.19 (9th Cir. 2003). To make this determination, courts look to the eight Sleekcraft

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factors: (1) strength of the mark; (2) proximity of the goods; (3) similarity of the marks; (4)

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evidence of actual confusion; (5) marketing channels used; (6) type of goods and the degree of

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care likely to be exercised by the purchaser; (7) defendant’s intent in selecting the mark; and (8)

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likelihood of expansion of the product lines. Punchbowl, Inc. v. AJ Press, LLC, 90 F.4th 1022,

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1027 (9th Cir. 2024). The test set forth in Sleekcraft is pliant: some factors are much more

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important than others, and the relative importance of each is case-specific. Brookfield Commc’ns,

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Inc. v. W. Coast Ent. Corp., 174 F.3d 1036, 1054 (9th Cir. 1999)) (noting it is often possible to

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determine whether there is likelihood of confusion after considering a subset of factors).
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First, federal registration of a trademark or trademarks is prima facie evidence of

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ownership of a valid trademark. 15 U.S.C. § 1057(b); Brookfield Commc’ns, 174 F.3d at 1047.

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The complaint’s allegations adequately allege a protectible interest. However, even accepting all

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well-pled factual allegations as true as required for default judgment motions, the complaint does

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not allege sufficient facts to support plausible allegations that defendant used plaintiff’s Marks in

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an infringing or counterfeiting manner.

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Second, the complaint lacks sufficient factual allegations to plausibly conclude defendant

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used plaintiff’s Marks. The complaint alleges that on October 20, 2022, plaintiff’s investigator

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“purchased a Glass Infuser that had packaging with the Stündenglass Marks affixed to it, from

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A&S Smoke Shop, for a cost of $322.13[.]” (ECF No. 1 at ¶ 29.) The investigator also observed

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that A&S Smoke Shop & Vape had glass infusers which had packaging displaying the three

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Marks. (Id.) While plaintiff alleges that all three Marks were included on the packaging, plaintiff

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has not explained how one product can bear trademarks associated with two different

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international classes of goods. See ECF No. 1 at ¶ 10(a) (Mark associated with international class

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011); id. at ¶ 10(b)-(c) (Marks associated with international class 034); see also GS Holistic, LLC

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v. Mr Vape Smoke Shop, 2024 WL 4545885, at *3 n.4 (E.D. Cal. Oct. 22, 2024); G.S. Holistic,

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LLC v. Shinwar, 2024 WL 3890082, at *5 (E.D. Cal. Aug. 20, 2024). Plaintiff’s motion for

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default judgment appears to provide some clarity on this issue by stating that the glass infusers

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can be used either for smoking purposes or infusing foods and drinks, however this does not

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adequately explain why all three marks are on one packaging.

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Also, plaintiff states in a conclusory manner that an investigator purchased a glass infuser

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that had packaging with the Marks on it, “and it was a Counterfeit product in that its packaging

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displayed the Infringing Marks.” (ECF No. 1 at ¶ 29.) However, plaintiff does not explain how

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the investigator determined the product was a counterfeit or the process the investigator used to

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confirm the similarities of the trademarks. Other courts have noted that if defendant is reselling

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plaintiff’s products, this is not infringement. See Shinwar, 2024 WL 3890082, at *5; GS Holistic,

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LLC v. Ravens Smoke Shop, Inc., 2023 WL 5504964, at *5 (C.D. Cal. July 10, 2023) (citing NEC

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Electronics v. CAL Circuit Abco, 810 F.2d 1506, 1509 (9th Cir. 1987) (noting that the sale of a
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genuine trademarked product by an unauthorized seller is not a violation of the Lanham Act)).

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Also, merely asserting that the infuser sold at A&S Smoke Shop & Vape is a “counterfeit

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product” is a conclusory statement that is not taken as true. See Paulsen v. CNF Inc., 559 F.3d

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1061, 1071 (9th Cir. 2009) (the court is not required to accept as true legal conclusions in a

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complaint “merely because they are cast in the form of factual allegations”); see also GS Holistic,

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LLC v. Cigarette Outlet Smoke Shop, 2024 WL 519783, at *2 (E.D. Cal. Feb. 9, 2024) (denying

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plaintiff’s motion for default judgment for, among other reasons, the complaint’s reliance on

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conclusory statements that “the Glass Infuser [defendant] sold to Plaintiff’s investigator was a

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Counterfeit Good with an Infringing Mark affixed to it”). Plaintiff’s complaint also states that

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defendant’s use of the Marks “began after the registration of the Stündenglass Trademarks” (ECF

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No. 1 ¶ 31), but plaintiff does not provide any details about when the use started.

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Third, the complaint does not allege sufficient facts to support a plausible claim for

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infringement regarding a consumer’s likelihood of confusion. The complaint does not contain any

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photographs or product descriptions that demonstrate the similarities between the marks; no

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allegations of actual confusion; no description of the marketing channels used; and no description

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of the degree of care consumers will likely exercise in purchasing the goods. The complaint

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makes only conclusory statements related to confusion, such as defendant uses “images and

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names identical to or confusingly similar to the Stündenglass Marks, to confuse customers and aid

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in the promotion and sale of” the allegedly counterfeit goods (ECF No. 1 at ¶ 35), and

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defendant’s unauthorized use of counterfeit marks “on and in connection with Defendants’ offer

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for sale in commerce is likely to cause confusion or mistake in the minds of the public” (id. ¶ 54).

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The complaint also makes conclusory statements that A&S Smoke Shop & Vape has “distributed,

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provided, marketed, advertised, promoted, offered for sale, and sold its water pipes in packaging

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that bears the Infringing Marks through its retail convenience store.” (Id. ¶38.) However, these

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conclusory statements lack factual support and are insufficient for the purposes of default

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judgment. See Paulsen, 559 F.3d at 1071; DIRECTV, Inc. v. Hoa Huynh, 503 F.3d 847, 854 (9th

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Cir. 2007); see also GS Holistic, LLC v. Bubbles Smoke Shop, 2023 WL 6787773, at *4 (denying

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default judgment because the complaint failed to allege facts supporting a Sleekcraft analysis and
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relied on conclusory statements about the likelihood of confusion). Plaintiff’s motion references

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the Sleekcraft factors and provides photographs of the packaging of the allegedly counterfeit

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product that has the Marks, but plaintiff does not apply the applicable legal standards. ECF No.

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16 at 16; ECF No. 16-8; see Shinwar, 2024 WL 3890082, at *6.

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The complaint also fails to adequately allege that defendant sold a counterfeit product

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because the complaint does not describe the similarities of the marks. Instead, the complaint relies

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on conclusory statements such as that “[t]he marks affixed to the Counterfeit Goods that the

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Defendants have offered for sale are spurious marks which are identical with, or substantially

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indistinguishable from, the Stündenglass Trademarks” and that “[t]he marks on the Counterfeit

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Goods are in fact counterfeit marks as defined in 15 U.S.C. § 1116(d).” (ECF No. 1 at ¶ 27.)

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Plaintiff’s allegation that an “investigator purchased a Glass Infuser that had packaging with the

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Stündenglass Marks affixed to it . . . and it was a Counterfeit product in that its packaging

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displayed the Infringing Marks” is also a conclusory statement, which is not taken as true. ECF

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No. 1 at ¶ 29; see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare recitals of the

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elements of a cause of action, supported by mere conclusory statements, do not suffice.”).

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Plaintiff also does not explain the types of goods defendant sold in the past, other than the one

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glass infuser sold to its investigator in October 2022. (ECF No. 1 at ¶ 29.) The complaint fails on

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the counterfeit theory as well. See Louis Vuitton Malletier, S.A. v. Akanoc Sols., Inc., 658 F.3d

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936, 946 (9th Cir. 2011) (reminding that a counterfeit analysis requires analysis of whether the

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defendant used a non-genuine mark identical to or substantially indistinguishable from the

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plaintiff’s registered, genuine mark, and the genuine mark was registered for use on the same

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goods to which the infringer applied the non-genuine mark); see also GS Holistic, LLC v. J’s

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Smoke Shop, 2024 WL 1054899, at *3 (E.D. Cal. Mar. 11, 2024) (rejecting counterfeit theory on

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default judgment motion because of the complaint's failure to allege facts supporting the claim

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and otherwise reliance on conclusory assertions that defendant’s goods were counterfeit).

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Because the complaint fails to sufficiently plead facts supporting trademark infringement

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and counterfeiting, or false designation of original claims, plaintiff has failed to satisfy the second

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and third Eitel factors and the undersigned recommends denial of plaintiff’s motion for default
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judgment.
E. Stündenglass Marks Suits in Federal Courts

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The court notes that plaintiff has brought many similar claims about the Stündenglass

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Marks against other defendants. See Mr Vape Smoke Shop, 2024 WL 4545885, at *3 (collecting

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cases). Some judges have granted plaintiff’s motions for default judgment. See, e.g., GS Holistic,

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LLC v. Cloud City Discount Cigarettes, 2024 WL 3441441, at *5 (E.D. Cal. July 17, 2024)

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(granting default judgment in part and limiting damages to $5,000); GS Holistic, LLC v. Nasher,

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2024 WL 1994707, at *1 (E.D. Cal. May 6, 2024) (same). But numerous other courts in the Ninth

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Circuit have found vague and conclusory allegations made by plaintiff to be insufficient to grant

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default judgment. See, e.g., Shinwar, 2024 WL 3890082, at *8 (denying motion for default

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judgment without prejudice because plaintiffs allegations were vague and conclusory and did not

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satisfy the second and third Eitel factors); Mr Vape Smoke Shop, 2024 WL 4545885, at *3

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(same); J’s Smoke Shop, 2024 WL 1054899, at *2-3 (same); GS Holistic, LLC v. Kings

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Smokeshop, 2024 WL 150217, at *2-3 (E.D. Cal. Jan. 12, 2024) (same). For the reasons stated

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above, the undersigned agrees with the cases finding plaintiff’s allegations vague and conclusory

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and that default judgment is not appropriate under the second and third Eitel factors.

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IV.

CONCLUSION

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The court finds the second and third Eitel factors are not met, and denies plaintiff’s

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motion for default judgment. See Akrura Pte. Ltd. v. Apero Tech. Grp., 2024 WL 2982971, at *1

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(C.D. Cal. Apr. 16, 2024). The court therefore dismisses the complaint with leave to amend

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because plaintiff may be able to cure its defects. Plaintiff is instructed to ensure that any amended

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pleading cures defects identified in this order, if such defects can be cured, and to ensure that

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plaintiff carries its burden on any subsequent motion for default judgment.

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If plaintiff elects to file an amended complaint, it should be titled “First Amended

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Complaint” with reference to the appropriate case number. An amended complaint must be

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complete in itself without reference to any prior pleading. See Loux v. Rhay, 375 F.2d 55, 57 (9th

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Cir. 1967); E.D. Cal. Local Rule 220. If plaintiff does not timely file an amended complaint, this

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will result in a recommendation that this action be dismissed.
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ORDER

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For the reasons set forth above, it is HEREBY ORDERED as follows:
1. Plaintiff’s motion for default judgment (ECF No. 16) is DENIED WITHOUT
PREJUDICE;

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2. The complaint (ECF No. 1) is DISMISSED; and

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3. Plaintiff is GRANTED LEAVE to file an amended complaint within thirty (30) days of

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this Order.

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Dated: March 6, 2025
_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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5, gsho.2497.23

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