GIBSON et al v. POLE & PITT LLC

Filing 44

ORDER Granting Plaintiffs 40 Motion for Default Judgment as to liability only; Directing Plaintiffs to file submissions by 4/2/2020, etc. Signed by Judge Joseph H. Rodriguez on 3/3/2020. (rss, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CIELO JEAN GIBSON, URSULA
MAYES, RACHEL KOREN, INA
SCHNITZER, TIFFANY TOTH, AND
KATARINA VAN DERHAM,
v.

Plaintiffs,

POLE & PITT LLC AND HARDING
BRASS, LLC d/b/a POLE POSITION
GENTLEMEN’S CLUB,

ORDER
Hon. Joseph H. Rodriguez
Civ. Action No. 17-6570

Defendants.

This matter comes before the Court on Plaintiffs’ motion seeking entry of default
judgment against Defendant Harding Brass LLC, pursuant to Rule 55 of the Federal
Rules of Civil Procedure [Dkt. No. 40]. The Court has considered Plaintiffs’
submissions in support of their Motion for Default Judgment and notes that Defendant
Harding Brass, LLC has not responded to the motion. For the reasons stated below,
default will be granted as to liability only and Plaintiffs will be directed to file an
additional submission, including an affidavit, detailing why the damages sought in this
motion are appropriate as to Defendant Harding Brass, LLC, given that Plaintiffs have
reached settlement with the other Defendant in this case, so the Court can assure that
there is not a double recovery.
Plaintiffs Cielo Jean Gibson, Ursula Mayes, Rachel Koren, Ina Schnizter, Tiffany
Toth, and Katarina Van Derham (“Plaintiffs”) filed this action against Defendants Pole
& Pitt LLC and Harding Brass LLC d/b/a Pole Position Gentlemen’s Club
(“Defendants”) on August 30, 2017, alleging, inter alia, that Defendants used their

images and likenesses without permission or compensation in advertising for
Defendants’ strip club business in violation of the Lanham Act, 15 U.S.C. §1125 et seq.
and N.J.S.A. 56:4-1.
The docket indicates that Defendants were properly served with the Amended
Complaint on November 2, 2017. [Dkt. No. 12] Unlike Defendant Pole & Pitt LLC,
Defendant Harding Brass LLC never filed an answer or other responsive pleading.
Clerk’s entry of Default was requested and granted on April 18, 2018. [Dkt. No. 21].
Then, Plaintiffs reached a confidential settlement agreement with Defendant Pole &
Pitt LLC on July 3, 2019. [Dkt. No. 39]. According to the Amended Complaint,
Harding Brass, LLC shares the same principle place of business with and operates the
same business, the Pole Position Gentleman’s Club, as dismissed Defendant Pole & Pitt
LLC.
Plaintiffs move for Default Judgment pursuant to Rule 55 of the Federal Rules of
Civil Procedure. Rule 55 provides, in relevant part:
(a) Entering a Default. When a party against whom a judgment for affirmative
relief is sought has failed to plead or otherwise defend, and that failure is shown by
affidavit or otherwise, the clerk must enter the party’s default.
(b) Entering a Default Judgment.
(1) By the Clerk. If the plaintiff’s claim is for a sum certain or a sum that can be
made certain by computation, the clerk – on the plaintiff’s request, with an affidavit
showing the amount due – must enter judgment for that amount and costs against a
defendant who has been defaulted for not appearing and who is neither a minor nor an
incompetent person.
(2) By the Court. In all other cases, the party must apply to the court for a
default judgment. . . The court may conduct hearings or make referrals – preserving
any federal statutory right to a jury trial – when, to enter or effectuate judgment, it
needs to:
(A) conduct an accounting;
(B) determine the amount of damages;
(C) establish the truth of any allegation by evidence; or

(D) investigate any other matter.
Fed. R. Civ. P. 55.
Thus, Rule 55(b)(2) authorizes district courts to enter default judgment against a
properly served defendant who fails to answer or plead within the allotted time. See
La. Counseling and Family Services, Inc. v. Makrygialos, LLC., 543 F. Supp. 2d 359,
364 (D.N.J. 2008) (citing Anchorage Assoc. v. Virgin Is. Bd. Of Tax Rev., 922 F.2d 168,
177 n.9 (3d Cir. 1990).
Even when a properly served defendant has failed to plead or otherwise respond,
a plaintiff is not entitled to the entry of default judgment as of right, and the entry of
such a judgment is left primarily to the discretion of the district court. Hritz v. Woma
Corp., 732 F.2d 1178, 1180 (3d Cir. 1984). Default judgments are generally disfavored,
in the interest of having a case decided on its merits. United States v. $55,518.05 in
U.S. Currency, 728 F.2d 192, 194-95 (3d Cir. 1984). Defendants are deemed to have
admitted the factual allegations of the Complaint by virtue of their default, except those
factual allegations related to the amount of damages. See 10A Charles A. Wright,
Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2688, at 58-59
(3d ed. 1998).
However, the Court has considerable latitude when considering the entry of a
default judgment and, pursuant to Fed. R. Civ. P. 55(b)(2), it may conduct a hearing
when it needs to determine the amount of damages, to establish the truth of any
allegation by evidence or to investigate any other matter to effectuate a judgment.
Because of the strong disfavor for entering judgment by default, a Court must be
certain of its jurisdiction to impose personal liability upon a defendant or obligate him

or her in favor of a plaintiff before entering default judgment. See Ayers v. Jacobs &
Crumplar, P.A., 99 F.3d 565, 569 (3d Cir. 1996).
Plaintiffs set forth a cognizable claim of misappropriation of likeness and false
endorsement/ unfair competition pursuant to the Lanham Act, 15 U.S.C. §1125 et seq.
and N.J.S.A. 56:4-1. In this case, the Court harbors concerns about the propriety of
damages sought against Defendant Harding Brass through the entry of default
judgment without an explanation of how the damages Plaintiffs seek are attributable
solely to Harding Brass LLC in light of the recovery Plaintiffs received from dismissed
Defendant Pole & Pitt. Pole & Pitt LLC is an entity that shares commonality of business
address, corporate principle place of business, and the operator of the Pole Position
Gentlemen’s Club. On this record, the entry of a judgment appears improper.
The Court will direct Plaintiffs to submit additional briefing on the damages it
seeks from Defendant Harding Brass with an explanation as to why those damagers
differ from that collected from Pole & Pitt, LLC. The Court reserves the right to hold an
evidentiary hearing to investigate this matter and to hear evidence to determine
damages at that time.
Accordingly,
IT IS ORDERED on this 3rd day of March 2020 that Plaintiffs’ Motion for
Default Judgment is granted [Dkt. No. 40] as to liability only; and it is further
ORDERED that Plaintiffs shall file a submission explaining the propriety of the
damages they seek against Defendant Harding Brass in a manner that distinguishes the
damages they seek against Harding Brass from those damages collected from Pole &
Pitt; and it is further

ORDERED that Plaintiffs shall file an Affidavit detailing the damages they seek
as to Defendant Harding Brass, LLC; and it is further
ORDERED that Plaintiffs submissions are due on or before April 2, 2020.
s/ Joseph H. Rodriguez
Hon. Joseph H. Rodriguez
U.S. District Court Judge