Amazon.com, Inc. et al v. Kurth et al

Filing 19

AMENDED ORDER granting Plaintiffs' 12 Motion for Default Judgment. Vera Bradley's motion for a permanent injunction is also GRANTED. Plaintiff is awarded $44,000 in damages, $485 in costs, and $15,135.70 in attorney's fees. Signed by Judge Richard A. Jones. (MW)

HONORABLE RICHARD A. JONES

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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AMAZON.COM, a Delaware corporation; and
VERA BRADLEY DESIGNS, INC., an
Indiana corporation,
Plaintiff,

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Case No. 2:18-cv-00353-RAJ
ORDER GRANTING
PLAINTIFFS’ MOTION FOR
DEFAULT JUDGMENT

v.
LINDA KURTH,
Defendant.

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I.

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Before the Court is Plaintiffs’ Motion for Default Judgment. Dkt. # 12. Defendant
Linda Kurth was properly served with a Complaint and Summons, but has not filed a
response or otherwise appeared in this action. Dkt. # 9. For the following reasons, the
Motion is GRANTED.
II. BACKGROUND

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INTRODUCTION

Plaintiffs Amazon.com (“Amazon”) and Vera Bradley Designs, Inc. (“Vera
Bradley”) allege Defendant Kurth owns and operates an Amazon Seller Account where she
sells counterfeit Vera Bradley products. Dkt. # 1 at 9. On or around June 29, 2017, Vera
Bradley received letters from U.S. Customs and Border Protection (CBP) concerning a
seizure of four imported shipments. Dkt. # 13 at 4-7. The shipments allegedly contained
products with counterfeit Vera Bradley trademarks and identified Defendant as the
ORDER – 1

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importer on record. Id. Soon thereafter, Vera Bradley informed Amazon that Kurth was

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advertising and selling purportedly genuine Vera Bradley products on Amazon’s online

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platform. Dkt. # 14. On or around August 4, 2017, Amazon ordered a “Vera Bradley

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Midnight with Mickey Campus Backpack” through Kurth’s Amazon Seller Account and,

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upon inspection, confirmed the purchased bag was a counterfeit. Dkt. # 13, ¶ 5; Dkt. # 14,

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¶ 5 . In April 2018, Vera Bradley ordered a “Vera Bradley Campus Backpack” from eBay

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seller Linda Kurth that was also a counterfeit. Dkt. # 13, ¶ 6. Amazon’s records reflect

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that Kurth sold $613,818.77 dollars of Vera Bradley products before Amazon blocked her

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account from further sales. Dkt. # 14, ¶ 6.

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On March 8, 2018, Plaintiffs filed a Complaint against Defendant for advertising,

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marketing, selling, and distributing counterfeit Vera Bradley products and for breach of

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contract. Dkt. # 1. On March 16, 2018, Kurth was served. Dkt. # 9. On or around April

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3, 2018, Kurth responded to Plaintiffs’ counsel by letter and admitted to purchasing the

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majority of the accused products from other sellers on eBay. Dkt. # 16. She claimed that

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she did know the products were counterfeits. Id. at 10. Since April 2018, Kurth has not

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communicated with Plaintiffs’ counsel or appeared in this litigation. Dkt. # 12 at 3. On

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July 17, 2018, Plaintiffs moved for default against Kurth. Dkt. # 11. On September 12,

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2018, Plaintiffs moved to enter default judgment against Kurth on all claims, seeking actual

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and statutory damages, a permanent injunction and attorney’s fees. Dkt. # 12.
III. LEGAL STANDARD

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At the default judgment stage, the court presumes all well-pleaded factual

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allegations are true, except those related to damages. TeleVideo Sys., Inc. v. Heidenthal,

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826 F.2d 915, 917–18 (9th Cir.1987); see also Fair House. of Marin v. Combs, 285 F.3d

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899, 906 (9th Cir. 2002). Although the entry of default judgment under Rule 55(b) is “an

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extreme measure,” disfavored cases should be decided upon their merits whenever

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reasonably possible. Cmty. Dental Servs. v. Tani, 282 F.3d 1164, 1170 (9th Cir. 2002);

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also see Westchester Fire Ins. Co. v. Mendez, 585 F.3d 1183, 1189 (9th Cir. 2009).

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ORDER – 2

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In addition, Federal Rule of Civil Procedure 55(b)(1) permits the court to enter

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default judgment when the plaintiff’s claim “is for a sum certain or a sum that can be made

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certain by computation.” Fed. R. Civ. P. 55(b)(1). In moving the court for default

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judgment, a plaintiff must submit evidence supporting the claims for a particular sum of

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damages. Fed. R. Civ. P. 55(b)(2)(B). If the plaintiff cannot prove that the sum it seeks is

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“a liquidated sum or capable of mathematical calculation,” the court must hold a hearing

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or otherwise ensure that the damage award is appropriate, reasonable and demonstrated by

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evidence. Davis v. Fendler, 650 F.2d 1154, 1161 (9th Cir. 1981); see also Getty Images

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(US), Inc. v. Virtual Clinics, 2014 WL 358412 (W.D. Wash. 2014). In determining

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damages, a court can rely on the declarations submitted by the plaintiff. Dr. JKL Ltd. v.

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HPC IT Educ. Ctr., 749 F. Supp. 2d 1046 (N.D. Cal. 2010). Where there is evidence

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establishing a defendant’s liability, the court has discretion, not an obligation, to enter a

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default judgment. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980); see also Alan

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Neuman Productions, Inc. v. Albright, 862 F.2d 1388, 1392 (9th Cir. 1988). Since deciding

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for or against default judgment is within the court’s discretion, a defendant’s default does

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not de facto entitle a plaintiff to a court-ordered judgment. Curtis v. Illumination Arts, Inc.,

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33 F. Supp. 3d 1200, 1210–11 (W.D. Wash. 2014).
IV. DISCUSSION

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In exercising its discretion, the Court considers the “Eitel” factors: (1) the

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substantive merits of plaintiff’s claims, (2) the sufficiency of the claims raised in the

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complaint, (3) the possibility of prejudice to the plaintiff if relief is denied, (4) the sum of

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money at stake, (5) the 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 favoring decisions on the

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merits when reasonably possible. Eitel v. McCool, 782 F.2d 1470, 1471–72 (9th Cir. 1986).

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As discussed below, the Court has considered each of the Eitel factors and finds

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they weigh in favor of granting default judgment.

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ORDER – 3

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A.

Application of Eitel Factors
i.

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Merits of the Claims, Sufficiency of the Complaint, and
Prejudice to Plaintiffs

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The substantive merits of the claims and the sufficiency of the Complaint are often

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analyzed together. Curtis, 33 F. Supp. 3d. at 1211. Additionally, while prejudice to the

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plaintiff is a factor to be analyzed independently under Eitel, it is discussed in this section

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because Plaintiffs’ recourse flows from their ability to demonstrate merit to their claims.

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Dr. JKL Ltd. v. HPC IT Educ. Ctr., 749 F. Supp. 2d at 1048. As discussed below, the Court

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finds that Plaintiffs have invoked a cognizable legal theories and alleged sufficient facts

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for the Court to conclude they have stated claims upon which relief may be granted.
1. Trademark Infringement

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Vera Bradley bases its trademark infringement claim on 15 U.S.C. § 1114 and 15

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U.S.C. § 1127. To prevail, Vera Bradley must show that Kurth used (1) a reproduction,

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counterfeit, copy or colorable imitation of plaintiff’s registered trademark, (2) without its

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consent, (3) in commerce, (4) in connection with the sale, offering for sale, distribution or

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advertising of any goods, (5) where such use is likely to cause confusion, or to cause a

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mistake or to deceive. 15 U.S.C. § 1114(1)(a); Southern California Darts Ass’n v. Zaffina,

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762 F.3d 921, 929 (9th Cir. 2014). The test of likelihood of confusion is “whether a

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reasonably prudent consumer in the marketplace is likely to be confused as to the origin of

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the goods or service bearing one of the marks.” Dreamwerks Prod. Grp., Inc. v. SKG

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Studio, dba Dreamworks SKG, 142 F.3d 1127, 1129 (9th Cir. 1998); Jada Toys, Inc. v.

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Mattel, Inc., 518 F.3d 628, 632 (9th Cir. 2008). Here, Vera Bradley alleges it owns the

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registered trademarks in this complaint. See Dkt. # 1-1 at 2-6 (copies of Vera Bradley

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trademark registrations). Vera Bradley has also set forth facts demonstrating that Kurth

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has and continues to advertise, market, sell, offer to sell and distribute counterfeit bags as

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genuine Vera Bradley products. Dkt. # 1 at 11. Therefore, Vera Bradley has stated a claim

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for trademark infringement.

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ORDER – 4

2. False Designation of Origin

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Vera Bradley’s false designation of origin claim requires it show (1) the terms or

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logos in question are valid and protectable trademarks, (2) the plaintiff own these marks as

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trademarks, (3) the plaintiff used these marks in commerce, and (4) the defendant used

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false or misleading descriptions of fact or “terms or designs similar to plaintiff’s marks

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without the consent of the plaintiff in a manner that is likely to cause confusion among

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ordinary purchasers as to the source of the goods.” 15 U.S.C. § 1125(a); Dr. JKL Ltd. v.

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HPC IT Educ. Ctr., 749 F. Supp. 2d 1041. As with the trademark infringement claim, Vera

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Bradley alleges that it owned and used the trademarks in question for its commercial

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products, that those trademarks are valid and registered, and that Kurth advertised

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counterfeit products as genuine Vera Bradley merchandise. Dkt. # 1, ¶ 35; Dkt. # 1-1 at 2-

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6. Therefore, Vera Bradley has sufficiently pled a false designation of origin claim.
3. Copyright Infringement

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To prove its claim for copyright infringement, Vera Bradley must show (1)

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ownership of the allegedly infringed work and (2) copying of the protected elements of the

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work by the Defendant. 17 U.S.C. § 501. However, it need not prove that Defendant

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copied a copyrighted work in its entirety, as substantial similarity suffices. Shaw v.

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Lindheim, 919 F.2d 1353, 1356 (9th Cir. 1990) (finding that copying may be established

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by showing the infringer had access to the protected work and that the two works are

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substantially similar). Here, Vera Bradley alleges to be the sole owner of the copyrights at

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issue and that Defendant infringed on its rights by reproducing, distributing copies of,

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publicly displaying, and creating derivative works of its designs and artistic creations

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without authorization. Dkt. #1 at 12; Dkt. # 1-1 at 7-16 (copies of Vera Bradley copyright

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registrations). The Court finds Vera Bradley has adequately pled that the Defendant

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infringed upon its copyrights.

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//

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//

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ORDER – 5

4. Breach of Contract

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Finally, Amazon brings a claim for breach of contract. Amazon must show: (1) the

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existence of a contractual duty, (2) breach, (3) causation, and (4) damages. Larson v. Union

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Investment & Loan Co., 168 Wash. 5, 10 P.2d 557 (1932); Alpine Industries, Inc. v. Gohl,

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30 Wash.App. 750, 637 P.2d 998 (1981). Here, Amazon alleges Defendant signed an

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Amazon Business Solutions Agreement (BSA) which required her to not sell counterfeit

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products on the Amazon marketplace. Dkt. # 1 at 15. Amazon claims Defendant breached

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the agreement by selling counterfeit Vera Bradley products and that her breach damaged

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the integrity of Amazon’s marketplace and tarnished its brand. Id. at 1. Based on the facts

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alleged, Amazon has established its claim.

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Turning to the issue of prejudice to Plaintiffs, the Court finds this too weighs in

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favor of default judgment. Although Defendant was properly served with Plaintiffs’

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Complaint, she failed to plead or otherwise defend. As a result, Plaintiffs’ claims cannot

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move forward on the merits and their ability to obtain effective relief will be negatively

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impacted. Elektra Entm’t Grp. Inc. v. Crawford, 226 F.R.D. 388, 391 (C.D. Cal. 2005).

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In sum, having demonstrated the merits of their claims, the sufficiency of the Complaint,

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and the fact that they will suffer prejudice in the absence of a default judgment, Plaintiffs

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have established that these factors all favor the granting of a default judgment.
ii.

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Sum of Money at Stake

This Eitel factor examines the “amount of money at stake in relation to the

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seriousness” of a defendant’s conduct.

Eitel, 782 F.2d at 1471; Craigslist, Inc. v.

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Naturemarket, Inc., 694 F.Supp.2d 1039, 1060 (N.D. Cal. 2010). Generally, courts in the

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Ninth Circuit discourage default judgments “when the money at stake in the litigation is

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substantial or unreasonable, unless “the sum of money at stake is tailored to the specific

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misconduct of the Defendant.” Ferriss v. All. Publ’g, Inc., No. 15-CV-05675-EMC, 2016

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WL 7116110, at *8 (N.D. Cal. Dec. 6, 2016) (denying default judgment where the

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plaintiff’s requested damages were between $1,214,275 and $2,098,275).

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ORDER – 6

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Plaintiffs allege that their request of $750,485 in statutory damages “is in the same

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general range of Kurth’s total sales of Vera Bradley products through Amazon, which

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exceeded $613,000.” Dkt. # 12 at 6. However, Plaintiffs admit their inability to show that

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all of Kurth’s sales consisted of counterfeit products. Dkt. # 12 at 8. While the Court

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recognizes that Kurth’s failure to appear has made it impossible to know with any precision

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what Vera Bradley’s sales would have been absent the infringement, Plaintiffs do not

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provide the type of financial statements listing detailed information on sales, expenses, and

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profits that would allow the Court to conclude that their damages estimate is reasonable.

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Wecosign, Inc. v. IFG Holdings, Inc., 845 F. Supp. 2d 1072, 1085 (C.D. Cal. 2012) (finding

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that plaintiff established $25,000 as an appropriate measure of lost profits); Microsoft

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Corp. v. Lopez, No. C08–1743JCC, 2009 WL 959219, at *3 (W.D. Wash. 2009) (finding

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a statutory damages award of $30,000.00 against defendant reasonable for willfully

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distributing counterfeit copies of Windows XP). Therefore, the Court finds this factor

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weighs against granting default judgment.
iii.

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Possibility of Dispute as to Material Facts and Excusable Neglect

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When default has been entered, the court must take the plaintiff’s factual allegations

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as true except those concerning damages. Curtis v. Illumination Arts, Inc., 33 F. Supp. 3d

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1212; Microsoft Corp., 2009 WL 959219 at *3 . This Eitel factor considers the possibility

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any material facts in dispute. Elec. Frontier Found. v. Glob. Equity Mgmt. (SA) Pty Ltd.,

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290 F. Supp. 3d 923, 947 (N.D. Cal. 2017). In assessing this factor, courts examine whether

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a defendant would be able to dispute material facts if it had appeared in the lawsuit. Elec.

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Frontier Found. v. Glob. Equity Mgmt. (SA) Pty Ltd., 290 F. Supp. 3d 923, 947 (N.D. Cal.

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2017). Here, Kurth wrote a letter to Plaintiffs’ counsel disputing certain allegations in the

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Complaint, including her knowledge that the products were counterfeit. Dkt. # 12; Dkt. #

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16 at 6. Because these allegations are material to the question of damages, the Court finds

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this weighs against granting default judgment. However, because Defendant was served

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with the complaint and summons and failed to appear, the Court finds the “excusable

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ORDER – 7

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neglect” factor cuts in favor of granting default. Microsoft Corp., 2009 WL 959219 at *3

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(finding no evidence of excusable neglect where the plaintiff made numerous attempts to

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notify the defendant of potential liability and substantial time had elapsed since the

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complaint was filed).
iv.

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Strong Policy Favors Decisions on the Merits

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This Eitel factor requires the Court to weigh whether default judgment is appropriate

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in light of the policy favoring decisions on the merits. Eitel, 782 F.2d at 1472; Getty

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Images (US), Inc. v. Virtual Clinics, No. C13-0626JLR, 2014 WL 358412, at *5. Where,

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as here, a party fails to defend on the merits of a claim, entry of default judgment is

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generally an appropriate remedy. Elektra Entm’t Grp. Inc., 226 F.R.D. at 392. However,

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this Eitel factor alone is not dispositive. Microsoft Corp., 2009 WL 959219, at *3; also

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see Getty Images (US), Inc. v. Virtual Clinics, 2014 WL 358412, at *5 (W.D. Wash. 2014)

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(“[T]his factor almost always weighs against default judgment even when a decision on the

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merits is unlikely, but the factor alone does not prevent the court from granting default

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judgment”). Because Defendant has failed to appear or respond in this action, a decision

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on the matters appears unlikely. Therefore, this weighs in favor of granting default

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judgment.
v.

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Summary of Eitel factors

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In reviewing Plaintiffs’ motion in light of the Eitel factors, the Court finds granting

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default judgment is appropriate. Accordingly, the Court turns to Plaintiff’s requested

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damages and injunctive relief.

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B.

Remedies
i.

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Monetary Damages

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Vera Bradley is entitled to separate statutory damages for Defendant’s copyright

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and trademark violations. See Nintendo of Am., Inc. v. Dragon Pac. Int’l, 40 F.3d 1007,

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1011 (9th Cir. 1994). Under the Copyright Act, a copyright infringer is liable for either

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statutory damages or “actual damages and any additional profits of the infringer.” 17

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ORDER – 8

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U.S.C. § 504(a). As district courts have noted, where proving actual damages in a default

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judgment is difficult due to the defendant’s absence, statutory damages are appropriate.

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See, e.g., Live Face on Web, LLC v. AZ Metroway, Inc., 2016 WL 4402796, at *7 (C.D.

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Cal. Aug. 15, 2016). Under the Copyright Act, the Court may award statutory damages

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between $750 and $30,000 for non-willful infringement of each copyrighted work. 17

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U.S.C. § 504(c)(1). Enhanced damages of up to $150,000 per copyright infringed may be

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granted on a finding of willful infringement. 17 U.S.C. 504(c)(2). “The court has wide

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discretion in determining the amount of statutory damages to be awarded, constrained only

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by the specified maxima [of $30,000] and minima [of $750].” Harris v. Emus Records

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Corp., 734 F.2d 1329, 1335 (9th Cir. 1984).

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Under the Lanham Act, the Court may award statutory damages between $1,000

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and $200,000 for non-willful infringement of each trademark used to pass off counterfeits.

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15 U.S.C. § 1117(c)(1). The number of awards depends on the number of works infringed,

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not the number of alleged infringements. See Friedman v. Live Nation Merch., Inc., 833

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F.3d 1180, 1189-90 (9th Cir. 2016). If the Court finds that the use of the counterfeit mark

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was willful, it may award up to $2,000,000 per counterfeit mark per type of goods or

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services sold, offered for sale, or distributed. Id. § 1117(c)(2). A court has wide discretion

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in determining the amount of statutory damages to award. See Columbia Pictures Indus.

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Inc. v. Krypton Broad. of Birmingham, 259 F.3d 1186, 1194 (9th Cir. 2001).

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As noted above, Vera Bradley seeks $750,000 in statutory damages for violations

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of its five copyrights and three trademarks. Vera Bradley explains that the $750,000

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amount is in the same general range of Kurth’s total sales of “Vera Bradley” products

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through Amazon, which exceeded $613,000. Dkt. # 12 at 7. In further support, Vera

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Bradley claims that the evidence strongly suggests Defendant’s conduct is willful. Dkt. #

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12 at 7. The Court finds that there is evidence of at least two instances of willful

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infringement. See Dkt. # 13, ¶ 5; Dkt. # 14, ¶ 5. However, the Court cannot ignore the fact

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that the evidence fails to show that all of Kurth’s sales consisted of counterfeit products.

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ORDER – 9

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Id. While it is also true that Vera Bradley could not conduct discovery to determine its

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damages, the evidence before the Court detailing two instances of counterfeit sales over a

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eight month period does not support levying statutory damages typically awarded where

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defendants operate a business with the sole purpose of selling counterfeit goods. Chanel,

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Inc. v. Lin, No. C–09–04996 JCS, 2010 WL 2557503, at *13 (N.D. Cal. May 7, 2010)

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($456,000 statutory damage award against online business selling counterfeit goods that

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infringed nineteen marks).

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Accordingly, the Court awards $4,000 under the Lanham Act for each instance of

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willful infringement per registered trademark, totaling $24,000. See Chanel, Inc. v.

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Huangteng Weng, 2011 WL 13244271 (N.D. Cal. Apr. 18, 2011) (awarding $4,000 for per

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good sold per trademark for willful counterfeiting of handbags and wallets); Coach, Inc. v.

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Diana Fashion, 2011 WL 6182332 (N.D. Cal. Dec 13, 2011) (awarding $50,000 in

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statutory damages where there were at least four trademarks infringed on the counterfeit

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handbag and evidence that there were roughly 15-20 handbags on sale at the defendants’

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store). Additionally, after considering “the nature of the copyright, the circumstances of

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the infringement and the ... express qualification that in every case the assessment must be

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within the prescribed maximum or minimum,” the Court similarly finds $4,000 per

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copyrighted work infringed, totaling $20,000, reasonable and sufficient to sanction

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Defendant and deter future infringement. See Microsoft Corp. v. Coppola, 2007 WL

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1520964, at *4 (N.D. Cal. May 24, 2007) (awarding $1,500 per copyright infringed where

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defendant had willfully sold three copies of counterfeited products to plaintiff’s

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investigators). In sum, the Court awards $44,000 in statutory damages.
ii.

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Injunctive relief

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Plaintiffs also seeks to permanently enjoin Kurth from engaging in any further

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infringement of Vera Bradley’s intellectual property and from any further sales of goods

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through Amazon’s marketplace. Dkt. #12 at 7. Because the injunction is sought under the

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Lanham Act, the Court only analyzes the request as pertaining to Vera Bradley. See Dkt.

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ORDER – 10

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# 1 (noting trademark claim brought only by Vera Bradley). For the Court to grant a

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permanent injunction, a plaintiff must demonstrate that: (1) it has suffered irreparable

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injury; (2) the remedies available at law are inadequate; (3) a remedy in equity is warranted,

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considering the hardships imposed on the parties; and (4) a permanent injunction would

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not be contrary to the public interest. See Reno Air Racing Assn v. McCord, 452 F.3d 1126,

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1137 n.11 (9th Cir. 2006). Generally, an injunction must be narrowly tailored to remedy

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only the specific harms shown by a plaintiff, rather than to enjoin all possible breaches of

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the law. See Price v. City of Stockton, 390 F.3d 1105, 1117 (9th Cir. 2004).

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Based on the allegations in the Complaint, Vera Bradley has demonstrated that is

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entitled to permanent injunctive relief against Defendant. A plaintiff’s loss of control over

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its business reputation due to a defendant’s unauthorized use of its protected copyrights

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and trademarks during the pendency of an infringement action constitutes irreparable harm.

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Stuhlbarg Intern. Sales Co., Inc. v. John D. Brush and Co., Inc., 240 F.3d 832, 840 (9th

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Cir. 2001). Because Vera Bradley has shown that Kurth’s conduct continued during this

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lawsuit, statutory damages will not fully remedy Vera Bradley’s injury and does not

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address Kurth’s ability to further violate Very Bradley’s intellectual property. See eBay

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Inc. v. MercExchange, LLC, 547 U.S. 388, 391 (2006). Furthermore, there is greater public

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interest in protecting the rights of copyright and trademark owners than in allowing an

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infringer to continue using the trademarked and copyrighted materials. Perfect 10 v.

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Amazon.com, Inc., 487 F.3d 701 (9th Cir. 2001).

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Nevertheless, the Court finds that the scope of the proposed injunction to be

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overbroad. In Paragraph (a) of the proposed injunction seeks to enjoin Defendant from

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“opening any Amazon Seller Accounts or otherwise selling products on any of Amazon’s

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websites.” Dkt. # 12-1 at 2. This request is far too overbroad given the evidence before

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the Court and does more than remedy the specific harm at issue. Price, 390 F.3d at 1117.

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Accordingly, the Court strikes paragraph (a) of the proposed injunction, but otherwise

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grants the requested relief.

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ORDER – 11

iii.

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Attorney’s fees

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Plaintiffs seek to recover attorney’s fees and costs as the prevailing party under the

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Copyright Act. See 17 USC § 505. An award of attorney fees to a prevailing plaintiff

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“serve[s] the purpose of encouraging private enforcement and deterring infringements.”

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Frank Music Corp. v. Metro–Goldwyn–Mayer Inc., 886 F.2d 1545, 1556 (9th Cir. 1989).

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In determining whether to award attorney fees, the district court should consider the degree

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of success obtained by the moving party, the frivolousness of any claims, the motivation

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for the claims, the objective reasonableness of the factual and legal arguments advanced in

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support of them and the need for compensation and deterrence. See Fantasy, Inc. v.

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Fogerty, 94 F.3d 553, 558 (9th Cir. 1996); Maljack Productions, Inc. v. GoodTimes Home

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Video, 81 F.3d 881, 889 (9th Cir. 1996). Exceptional circumstances are not a prerequisite

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for an award of attorney’s fees and costs and district courts may freely award fees that

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promote the Copyright Act’s objectives. See Historical Research v. Cabral, 80 F.3d 377,

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378 (9th Cir. 1996); Entm’t Research Group, Inc. v. Genesis Creative Group, Inc., 122

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F.3d 1211 (9th Cir. 1997).

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To determine attorney’s fees, the Court uses the “lodestar” method which involves

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multiplying the number of hours reasonably expended on the claim or motion by a

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reasonable hourly rate. See, e.g., Jordan v. Multnomah Cnty., 815 F.2d 1258, 1262 (9th

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Cir. 1987). In calculating the lodestar, the Court should consider any of the relevant factors

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listed in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975). See Jordan,

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815 F.2d at 1264 n. 11 (noting that the Ninth Circuit no longer requires that the district

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court address every factor listed in Kerr). Here, Plaintiffs’ counsel spent 37.3 hours on this

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litigation and note that the rates charges by their firm Davis Wright Tremaine to be within

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the range commensurate with the rates in the Western District of Washington. Dkt. # 16

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(hourly rates of approximately $550 and $330 for attorneys with thirty and six-years

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experience, respectively). Given the Court’s familiarity with rates in the Seattle market,

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and the lack of contrary evidence, the Court finds the rates charged and the hours expended

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ORDER – 12

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to be reasonable. See Gates v. Deukmejian, 987 F.2d 1392, 1397–98 (9th Cir. 1992).

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Plaintiffs also seek to recover costs in the amount of $485.00. This includes the

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Court’s $400 filing fee and an $85 fee incurred for serving Kurth with the summons and

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complaint. The Court finds these costs reasonable.
In sum, the Court awards Plaintiffs $15,135.70 in attorney’s fees and $485.00 in

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costs.
V. CONCLUSION

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For all of the above-stated reasons, Plaintiffs’ motion for entry of default judgment

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is GRANTED. Dkt. # 12. Vera Bradley’s motion for a permanent injunction is also

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GRANTED as stated in the Order. Vera Bradley has the responsibility to serve the

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injunction order in such a manner as to make it operative in contempt proceedings.

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Furthermore, Plaintiff is awarded $44,000 in damages, and $485 in costs, and $15,135.70

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in attorney’s fees.

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DATED this 31st day of July, 2019.

A

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The Honorable Richard A. Jones
United States District Judge

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ORDER – 13