Send Out Cards v. Tropical Advertising et al

Filing 19

MEMORANDUM DECISION and Orderdenying without prejudice 12 Plaintiff's Motion for Entry of Default. Signed by Judge Ted Stewart on 12/07/2011. (tls)

IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

SEND OUT CARDS, LLC, a Utah limited
liability company,
Plaintiff,

MEMORANDUM DECISION AND
ORDER DENYING WITHOUT
PREJUDICE PLAINTIFF’S MOTION
FOR DEFAULT JUDGMENT

vs.

TROPICAL ADVERTISING LLC, a Florida
limited liability company; MICHAEL
WILSON, an individual; DOES I-X; and
ROE CORPORATIONS I-X; inclusive,

Case No. 2:11-CV-725 TS

Defendants.

This matter is before the Court on Plaintiff’s Motion for Default Judgment Against
Defendant Tropical Advertising LLC. For the reasons discussed below, the Court will deny the
Motion without prejudice.
I. BACKGROUND
Plaintiff filed its Complaint against Defendants on August 10, 2011. Plaintiff’s
Complaint brings claims against Defendants for trademark infringement, trademark dilution,
unfair competition, and intentional interference with contractual relations. Plaintiff seeks
1

injunctive relief, monetary damages, attorney fees and costs, and punitive damages against all
Defendants.
Defendant Tropical Advertising was served in this matter, but failed to timely respond.
As a result, a Default Certificate was entered against Defendant Tropical Advertising on October
21, 2011. On that same day, Plaintiff sought default judgment against Defendant Tropical
Advertising. It appears that Plaintiff has yet to serve Defendant Wilson.
II. DISCUSSION
Upon entry of default, the court may enter default judgment against a defendant.1 But the
court will not enter default judgment if doing so creates a risk of inconsistent judgment against
the remaining defendants. “[W]hen one of several defendants who is alleged to be jointly liable
defaults, judgment should not be entered against him until the matter has been adjudicated with
regard to all defendants, or all defendants have defaulted.”2 “[J]ust as consistent verdict
determinations are essential among joint tortfeasors, consistent damage awards on the same claim
are essential among joint and several tortfeasors.”3 As a result, the rule against imposing default
judgment on less than all jointly liable defendants also extends to situations “where several
defendants have closely related defenses.”4

1

Fed.R.Civ.P. 55.

2

Hunt v. Inter-globe Energy, Inc., 770 F.2d 145, 147 (10th Cir. 1985) (quotations
omitted); see also Frow v. De La Vega, 82 U.S. (15 Wall.) 552 (1872).
3

Hunt, 770 F.2d at 148.

4

10A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 2690 (3d
ed. 2005).
2

Here, Plaintiff’s claims against all Defendants are closely related. Indeed, Plaintiff’s
Complaint does not attempt to differentiate which claims are against which Defendant and
largely makes claims against “Defendants” as a whole. Therefore, the Court finds that default
judgment against Tropical Advertising is inappropriate until the claims against all Defendants
have been resolved.
III. CONCLUSION
It is therefore
ORDERED that Plaintiffs’ Motion for Default Judgment (Docket No. 12) is DENIED
WITHOUT PREJUDICE.
DATED December 7, 2011.
BY THE COURT:

_____________________________________
TED STEWART
United States District Judge

3