Coach, Inc. et al v. Diana Fashion et al

Filing 18

ORDER by Judge Samuel Conti denying 14 Motion for Default Judgment (sclc1, COURT STAFF) (Filed on 10/13/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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COACH, INC.; COACH SERVICES, INC., ) Case No. 11-2315 SC
)
Plaintiffs,
) ORDER DENYING APPLICATION
) FOR DEFAULT JUDGMENT
v.
)
)
DIANA FASHION, an unknown business )
entity; DIANE DAO, an individual; )
and DOES 1-10, inclusive,
)
)
Defendants.
)
)
)

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I.

INTRODUCTION

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Plaintiffs Coach, Incorporated ("Coach") and Coach Services,

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Incorporated ("Coach Services") (collectively, "Plaintiffs") seek

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entry of Default Judgment against Defendants Diana Fashion and

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Diane Dao (collectively, "Defendants").

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Default J.").

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concludes that entry of Default Judgment against Defendants is

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inappropriate and DENIES Plaintiffs' Application without prejudice.

ECF No. 14 ("App. for

Having considered the papers submitted, the Court

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II.

BACKGROUND
The following allegations are taken from Plaintiffs'

Complaint.

Coach Services is a wholly owned subsidiary of Coach, a

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Maryland corporation with its principal place of business in

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Jacksonville, Florida.

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manufactures, markets, and sells fine leather and mixed material

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products, including handbags, wallets, and accessories.

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Coach owns the "COACH" trademark and various composite trademarks

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and assorted components (collectively, "Coach Marks").

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Additionally, Coach owns various copyright registrations, including

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the Horse and Carriage Mark and the Op Art Mark.

ECF No. 1 ("Compl.") ¶ 5.

Coach

Id. ¶ 10.

Id. ¶ 11.

Id. ¶ 13.

Plaintiffs allege that counterfeit Coach branded products were

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United States District Court

For the Northern District of California

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sold and purchased from Defendant Diana Fashion, an unknown

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business entity operating out of San Jose California.

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18.

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owner of Diana Fashion and "is the active moving, and conscious

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force" behind Diana Fashion's infringing activities.

Id. ¶¶ 6,

Plaintiffs further allege that Defendant Diane Dao is the

Id. ¶ 21.

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Plaintiffs bring claims for: (1) trademark counterfeiting; (2)

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federal trademark infringement; (3) false designation of origin and

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false advertising; (4) federal trademark dilution; (5) trademark

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dilution in violation of the California Business and Professions

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Code; (6) common law unfair competition; and (7) copyright

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infringement.

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award of Defendants' profits and all damages sustained by

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Plaintiffs as a result of Defendants' illicit acts, treble damages

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pursuant to 15 U.S.C. 1117(b), and interest, costs, and attorney's

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fees.

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Id. ¶¶ 23-87.

Plaintiffs seek injunctive relief, an

Id. at 16-17.
"Diana Dao" was personally served with a summons in this

action on June 2, 2011.

ECF Nos. 7 (Proof of Service for Diana

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2

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Fashion),1 8 ("Proof of Service for Diana Dao").

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whether the wrong person was served or the process server merely

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misspelled Defendant Diane Dao's name.

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indication in the Proof of Service that a copy of the Complaint was

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served.

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the Complaint, the clerk of the court entered default on July 1,

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2011.

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default judgment.

It is unclear

In any event, there is no

After Defendants failed to answer or otherwise respond to

ECF No. 13 ("Entry of Default").

Plaintiffs now apply for

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United States District Court

For the Northern District of California

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III. LEGAL STANDARD
After entry of a default, the Court may enter a default

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judgment.

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so, while "discretionary," Aldabe v. Aldabe, 616 F.2d 1089, 1092

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(9th Cir. 1980), is guided by several factors.

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matter, the Court must "assess the adequacy of the service of

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process on the party against whom default is requested."

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Trs. of the N. Cal. Sheet Metal Workers v. Peters, No. 00-0395,

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2000 U.S. Dist. LEXIS 19065, at *2 (N.D. Cal. Jan. 2, 2001).

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the Court determines that service was sufficient, it should

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consider whether the following factors support the entry of default

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judgment: (1) the possibility of prejudice to the plaintiff; (2)

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the merits of plaintiff's substantive claim; (3) the sufficiency of

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the complaint; (4) the sum of money at stake in the action; (5) the

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possibility of a dispute concerning material facts; (6) whether the

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default was due to excusable neglect; and (7) the strong policy

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underlying the Federal Rules of Civil Procedure favoring decisions

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Fed. R. Civ. P. 55(b)(2).

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Its decision whether to do

As a preliminary

Bd. of

If

According to the Proof of Service, Diana Dao is designated by law
to accept service of process on behalf of Diana Fashion.

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on the merits.

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Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir.

1986).

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IV.

DISCUSSION
Entry of default judgment is inappropriate because service of

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Civil Procedure 4(c)(1) provides that "[a] summons must be served

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with a copy of the complaint."

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of the full complaint constitutes ineffective service of process.

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United States District Court

process on Defendants appears to be defective.

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For the Northern District of California

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Federal Rule of

See W. Coast Theater Corp. v. Portland, 897 F.2d 1519, 1529 (9th

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Cir. 1990); see also Albra v. Advan, Inc., 490 F.3d 826, 829 (11th

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Cir. 2007).

Service of a summons without a copy

Here, Plaintiffs' Proof of Service indicates that the summons

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was served on "Diana Dao," as opposed to Defendant Diane Dao, on

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June 2, 2011.

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served or that a copy of the Complaint was included in the service.

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Because Plaintiffs appear to have failed to serve the Complaint on

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Defendants in accordance with Rule 4, Plaintiffs' Application for

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Default Judgment is denied without prejudice.

There is no indication that Defendant Diane Dao was

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V.

CONCLUSION

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For the reasons stated above, the Court DENIES Plaintiffs

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Coach, Incorporated and Coach Services, Incorporated's Application

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for Default Judgment and VACATES the Clerk's Entry of Default.

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Court will reconsider its ruling if, within fifteen (15) days of

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this Order, Plaintiffs file a corrected Proof of Service showing

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that Defendants were properly served on June 2, 2011, along with a

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The

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declaratio verify
on
ying the correcte Proof of Servi
ed
ice and d
describin
ng

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he
g
relative to the o
original Proof of Service
f
e.
th filing error r

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If Pl
laintiffs are una
s
able to d
demonstra
ate that Defendan
nts were

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in fact pr
n
roperly s
served on June 2, 2011, t
n
then Plai
intiffs s
shall hav
ve

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th
hirty (30) days f
from the date of this Ord
der to ef
ffect pro
oper

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service on Defenda
n
ants.

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or
try of de
efault if Defenda
f
ants fail to time
l
ely respo
ond to a
fo an ent

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pr
roperly served co
s
omplaint.

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re-file an applica
n
ation for default judgmen with p
r
t
nt
proof of proper

United States District Court

For the Northern District of California

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Pl
laintiffs may the re-fil an app
s
en
le
plication
n

If def
fault is entered, Plainti
,
iffs may

service.

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IT IS SO ORDE
S
ERED.

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d:
er
011
Dated Octobe 12, 20
UNITED ST
U
TATES DIS
STRICT JU
UDGE

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