1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GS HOLISTIC, LLC, Case No. 2:23-cv-00355-CSK 12 Plaintiff, ORDER AND FINDINGS AND RECOMMENDATIONS 13 v.
14 SAMIULLAH SHINWAR d/b/a SWAG SMOKES, (ECF No. 44) 15 Defendant. 16
17 18 Plaintiff GS Holistic, LLC asserts claims for “Federal Trademark Counterfeiting 19 and Infringement, 15 U.S.C. § 1114” and “Federal False Designation of Origin[,] 20 15 U.S.C. § 1125(a)” against Defendant Samiullah Shinwar doing business as (“d/b/a”) 21 Swag Smokes, seeking monetary damages, restitution, an injunction, and other relief. 22 Third Amended Complaint (“TAC”) (ECF No. 36). Defendant has not made an 23 appearance in this action, and a Clerk’s Default was entered on January 12, 2026. (ECF 24 No. 42.) Presently pending before the Court is Plaintiff’s motion for default judgment 25 (ECF No. 44), which was taken under submission without argument pursuant to Local 26 Rule 230(g).1 27 1 This motion is referred to the undersigned pursuant to Local Rule 302(c)(19) and 28 28 U.S.C. § 636(b)(1)(A). 1 For the reasons that follow, the Court recommends Plaintiff’s motion for default 2 judgment be DENIED with prejudice, and the Third Amended Complaint be DISMISSED 3 WITHOUT LEAVE TO AMEND. 4 I. BACKGROUND 5 A. Facts 6 The TAC alleges that since 2020, Plaintiff has marketed and sold glass infusers 7 and related accessories using “Stündenglass” trademarks. TAC ¶ 9. Plaintiff has three 8 registered trademarks: (1) Mark 6,174,292 for “the design plus words mark ‘S’ and its 9 logo in association with goods further identified in the registration in international class 10 034”; (2) Mark 6,174,291 for “the standard character mark ‘Stündenglass’ in association 11 with goods further identified in registration in international class 034”; and (3) Mark 12 6,633,884 for “the standard character mark ‘Stündenglass’ in association with goods 13 further identified in registration in international class 011.”2 Id. ¶ 12. 14 Plaintiff has used these Marks in commerce throughout the United States 15 continuously since 2020. Id. ¶ 14. The TAC alleges that products branded with these 16 Marks are “widely recognized nationally and internationally” and “known for high quality 17 and innovation.” Id. ¶ 9. The TAC alleges the Marks are famous, distinctive, and popular 18 with consumers, celebrities, and industry professionals. Id. ¶¶ 15, 17, 19-20. The TAC 19 alleges the Marks are exclusive to Plaintiff, clearly displayed on its products, packaging, 20 and advertisements, and the subject of substantial time and money investment for 21 Plaintiff. Id. ¶¶ 16, 18. Plaintiff authorizes stores in the United States to sell products 22 bearing the Marks, which typically sell for a higher price than similar non-branded 23
24 2 The Nice Agreement establishes a classification of goods and services for the purposes of registering trademarks and service marks. Class 11 goods include 25 “apparatus and installations for lighting, heating, cooling, steam generating, cooking, 26 drying, ventilating, water supply and sanitary purposes.” Class 34 goods include “tobacco and tobacco substitutes; cigarettes and cigars; electronic cigarettes and oral 27 vaporizers for smokers; smokers’ articles; matches.” See List of Goods and Services in Class Order, Nice Classification Index, accessed June 3, 2026, 11:04 a.m., available at 28 https://nclpub.wipo.int/enfr/. 1 products. Id. ¶¶ 21-22. Because of the above, the TAC alleges that products with these 2 Marks are targeted by counterfeiters, which in turn misleads consumers, tarnishes 3 Plaintiff’s public image, and affects Plaintiff’s sales of authentic products to legitimate 4 store owners. Id. ¶¶ 23-26. Plaintiff actively enforces its rights to protect its Marks, often 5 through litigation. Id. ¶ 27. 6 Defendant Shinwar is alleged to be an individual who owns, manages, and 7 operates a business known as “Swag Smokes,” a sole proprietorship with its principal 8 place of business in Stockton, California. Id. ¶¶ 6-8. The TAC states Defendant has 9 previously offered to sell glass infusers bearing reproductions or imitations of Plaintiff’s 10 Marks. Id. ¶¶ 29-31. Specifically, the TAC alleges that on October 26, 2022, Plaintiff’s 11 investigator visited Swag Smokes and “observed one Gravity Infuser device on display 12 that bore marks identical or substantially indistinguishable from the Stündenglass 13 Marks,” which the investigator purchased from the store for $270. Id. ¶ 31. Plaintiff’s 14 investigator observed the absence of Plaintiff’s authentication sticker, packaging 15 inconsistencies including a missing cleaning kit and “differences in brightness, color 16 contrast, and label design,” and the use of lower-quality materials. Id. ¶ 32. The TAC 17 states that the investigator’s observations confirmed the product “was intended to imitate 18 the appearance of authentic Stündenglass Gravity Infusers” and was a counterfeit. Id. 19 ¶ 33. The TAC concludes Defendant Shinwar willfully “authorized, directed, and/or 20 participated” in Swag Smokes’s offer for sale of the “Counterfeit Goods” and its 21 infringement of the Marks, which occurred without Plaintiff’s authorization and after 22 registration of the Marks. Id. ¶¶ 36, 39, 40, 50. 23 Plaintiff contends it has suffered losses and damage to its brand, business 24 reputation, and goodwill because of Defendant’s acts, which are “likely to cause 25 confusion, mistake, or deception among reasonably prudent consumers.” Id. ¶¶ 42-49, 26 51. Plaintiff prays for statutory and treble damages; costs; an order enjoining 27 Defendant’s sale of any counterfeit Stündenglass product and an order for destruction of 28 products bearing the Marks; an accounting and disgorgement of profits/restitution; and 1 other relief. Id. at 19-21. 2 B. Procedural Posture 3 Plaintiff initiated this action on February 26, 2023, asserting claims against Swag 4 Smokes for Federal Trademark Counterfeiting and Infringement, 15 U.S.C. § 1114 and 5 Federal False Designation of Origin and Unfair Competition, 15 U.S.C. § 1125(a). (ECF 6 No. 1.) The Clerk of the Court entered default against Swag Smokes, but after Plaintiff 7 requested leave to amend, this default was set aside. (ECF Nos. 5-9.) Plaintiff’s First 8 Amended Complaint (“FAC”) was filed on July 18, 2023, and asserted the same claims 9 against Defendant Shinwar d/b/a Swag Smokes. See FAC (ECF No. 10). The Clerk of 10 Court entered default against Defendant on November 3, 2023. (ECF No. 19.) 11 On December 8, 2023, Plaintiff filed a motion for default judgment. (ECF No. 24.) 12 The Court denied the motion without prejudice and dismissed the FAC with leave to 13 amend on August 20, 2024. 8/20/2024 Order (ECF No. 29). Plaintiff's motion for default 14 judgment was denied for failure to satisfy the second and third Eitel factors because the 15 FAC did not sufficiently allege the elements for Defendant’s use of Plaintiff's trademarks 16 and for the sale of counterfeit goods or likelihood of confusion, as required to establish 17 claims for trademark infringement and false designation of origin. 8/20/2024 Order at 8- 18 12. The Court instructed Plaintiff to ensure that any amended pleading cured the defects 19 identified in the August 20, 2024 Order and to ensure Plaintiff carried its burden on any 20 subsequent motion for default judgment. Id. at 15. On September 19, 2024, Plaintiff filed 21 the Second Amended Complaint (“SAC”). (ECF No. 30.) 22 After the SAC was filed, Plaintiff took no further action until the Court issued an 23 Order to Show Cause (“OSC”) on April 1, 2025, requiring a response from Plaintiff within 24 14 days. 4/1/2025 OSC (ECF No. 31). Plaintiff served the SAC on Defendant on May 3, 25 2025. (ECF No. 33.) After Plaintiff again took no action to advance the case after service 26 of the SAC, the Court issued another order on October 15, 2025, requiring a response 27 from Plaintiff within 14 days. 10/15/2025 Order (ECF No. 34). On October 29, 2025, 28 Plaintiff filed a status report requesting permission to proceed with a Third Amended 1 Complaint. (ECF No. 35.) The Court granted Plaintiff leave to amend one last time and to 2 proceed on the operative TAC, warning that further amendment would not be permitted. 3 11/6/2025 Order at 2 (ECF No. 37). The TAC was served on November 17, 2025. (ECF 4 No. 38.) The Clerk of Court entered default against Defendant on January 12, 2026. 5 (ECF No. 42.) On February 6, 2026, after further delay from Plaintiff, the Court ordered 6 Plaintiff to show cause why this action should not be dismissed for failure to prosecute or 7 file a motion for default judgment. 2/6/2026 OSC (ECF No. 43). Plaintiff filed the 8 operative motion for default judgment on February 27, 2026. Pl. Mot. (ECF No. 44). 9 Plaintiff served the operative motion papers on Defendant by mail at Defendant’s 10 residence. (ECF No. 48.) Defendant did not respond to the motion for default judgment. 11 See Docket. On March 27, 2026, the Court issued an order taking Plaintiff’s motion 12 under submission; vacating the hearing; ordering a written response from Defendant by 13 April 10, 2026; and directing Plaintiff to serve Defendant with a copy of the Court’s order. 14 3/27/2026 Order (ECF No. 51). A copy of the March 27, 2026 Order was served on 15 Defendant by mail on April 17, 2026. (ECF No. 52.) Defendant did not respond. See 16 Docket. 17 II. LEGAL STANDARDS 18 Under Federal Rule of Civil Procedure 55, default may be entered against a party 19 against whom a judgment for affirmative relief is sought who fails to plead or otherwise 20 defend against the action. See Fed. R. Civ. P. 55(a). However, this default does not 21 automatically entitle the plaintiff to a judgment. PepsiCo, Inc. v. Cal. Sec. Cans, 238 F. 22 Supp. 2d 1172, 1174 (C.D. Cal. 2002) (citations omitted). The decision to grant or deny 23 the entry of default judgment is within the district court’s discretion. NewGen, LLC v. 24 Safe Cig, LLC, 840 F.3d 606, 616 (9th Cir. 2016). 25 In determining whether to enter default judgment, courts consider the following 26 factors: 27 1. the possibility of prejudice to the plaintiff; 28 2. the merits of the substantive claim(s); 1 3. the sufficiency of the complaint; 2 4. the amount of money at stake in the lawsuit; 3 5. whether there are any disputes of material fact; 4 6. whether the defendant’s default was due to excusable neglect; and 5 7. the strong policy favoring decisions on the merits. 6 Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). The Ninth Circuit has long 7 disfavored default judgments, counseling that cases be decided on the merits “whenever 8 reasonably possible.” Id. at 1472. 9 Once a default is entered, all well-pleaded allegations in the complaint regarding 10 liability are deemed true. Fair Hous. of Marin v. Combs, 285 F.3d 899, 906 (9th Cir. 11 2002). “On the other hand, a defendant is not held to admit facts that are not well- 12 pleaded or to admit conclusions of law.” United States v. Cathcart, 2010 WL 1048829, at 13 *4 (N.D. Cal. Feb. 12, 2010) (citation omitted). “[I]t follows from this that facts which are 14 not established by the pleadings of the prevailing party, or claims which are not well- 15 pleaded, are not binding and cannot support the judgment.” Danning v. Lavine, 572 F.2d 16 1386, 1388 (9th Cir. 1978). Necessary facts not contained in the pleadings and claims 17 which are legally insufficient are not established by default. DIRECTV, Inc. v. Hoa 18 Huynh, 503 F.3d 847, 854 (9th Cir. 2007). Further, a plaintiff’s allegations regarding 19 damages are not deemed true at default, and the plaintiff bears the burden to prove 20 damages with evidence. See Fed. R. Civ. P. 55(b)(2)(C); Geddes v. United Fin. Grp., 21 559 F.2d 557, 560 (9th Cir. 1977). 22 III. DISCUSSION 23 A. Jurisdiction 24 When default judgment is sought, the “district court has an affirmative duty to look 25 into its jurisdiction over both the subject matter and the parties.” In re Tuli, 172 F.3d 707, 26 712 (9th Cir. 1999) (citations omitted). The Court has subject matter jurisdiction over this 27 action pursuant to 28 U.S.C. § 1331 because it arises under federal trademark law, 28 15 U.S.C. § 1051, et seq. In addition, the Court has personal jurisdiction over Defendant 1 Shinwar, who is alleged to be domiciled in California. TAC ¶ 8. The Court’s jurisdiction 2 analysis is not a finding that the claims are sufficiently pleaded. 3 B. Default Judgment 4 1. Service of Complaint 5 In reviewing a motion for default judgment, the Court must determine whether 6 Defendant was properly served with the summons and complaint. Fed. R. Civ. P. 4(c). 7 Here, a third-party process server personally delivered a copy of summons, the Court’s 8 November 6, 2025 order, and the TAC to Defendant Samiullah Shinwar. (ECF No. 38.) 9 Accordingly, Defendant was properly served. See Fed. R. Civ. P. 4(e)(2)(A). 10 2. Eitel Factors 11 Turning to the asserted claims, Plaintiff’s first claim is stated as one for “Federal 12 Trademark Counterfeiting and Infringement” under 15 U.S.C. § 1114. TAC at 16-18. The 13 TAC also alleges a claim for “Federal False Designation of Origin” under 15 U.S.C. 14 § 1125(a). Id. at 18-19. The Court has carefully reviewed the TAC and finds it deficient 15 because, under the Eitel factors, the second and third factors are not established. These 16 two factors—the merits of the claims and the sufficiency of the complaint—are often 17 analyzed together. Stockfood Am., Inc. v. Sequoia Wholesale Florist, Inc., 2021 WL 18 4597080, at *3 (N.D. Cal. June 22, 2021), report and recommendation adopted, 2021 19 WL 4595128 (N.D. Cal. Oct. 6, 2021). This is sufficient grounds for denying a motion for 20 default judgment. See GS Holistic, LLC v. Ravens Smoke Shop, Inc., 2023 WL 5504964, 21 at *3 (C.D. Cal. July 10, 2023) (“[T]he Court may render judgment based on an 22 assessment of the second and third Eitel factors alone.”). 23 a) Trademark Infringement and Counterfeiting 24 To state a claim for trademark infringement, a plaintiff must adequately allege it is 25 the owner of a valid, protectable mark, and the alleged infringer is using a similar mark 26 that is likely to confuse. See Grocery Outlet Inc. v. Albertson’s Inc., 497 F.3d 949, 951 27 (9th Cir. 2007). Courts determine the likelihood of confusion by considering: (1) the 28 strength of the mark; (2) the proximity of the goods; (3) the similarity of the marks; (4) the 1 evidence of actual confusion; (5) the marketing channels used; (6) the type of goods and 2 degree of care consumers are likely to exercise in purchasing them; (7) the intent of the 3 defendant in selecting the mark; and (8) the likelihood that the parties will expand their 4 product lines. Lodestar Anstalt v. Bacardi & Co. Ltd., 31 F.4th 1228, 1252 (9th Cir. 2022) 5 (citing AMF Incorporated v. Sleekcraft Boats, 599 F.2d 341, 348-54 (9th Cir. 1979) 6 (abrogated on other grounds by Mattel, Inc. v. Walking Mountain Prods., 353 F.3d 792 7 (9th Cir. 2003))). When analyzing a claim brought under a counterfeiting theory, courts 8 need not engage in a likelihood of confusion analysis because a defendant who 9 “deliberately copies the dress of his competitors already in the field . . . raises a 10 presumption that customers will be deceived.” Louis Vuitton Malletier, S.A. v. Akanoc 11 Sols., Inc., 658 F.3d 936, 946 (9th Cir. 2011) (citations omitted). Instead, courts examine 12 whether the defendant used a non-genuine mark identical to or substantially 13 indistinguishable from the plaintiff’s registered, genuine mark, and the genuine mark was 14 registered for use on the same goods to which the infringer applied the non-genuine 15 mark. Id. 16 Here, the TAC adequately alleges the existence of one or more valid trademarks 17 to support Plaintiff’s § 1114 infringement/counterfeit claim. The TAC alleges Plaintiff 18 owns three registered trademarks: (1) Mark 6,174,292 for “the design plus words mark 19 ‘S’ and its logo in association with goods further identified in the registration in 20 international class 034”; (2) Mark 6,174,291 for “the standard character mark 21 ‘Stündenglass’ in association with goods further identified in registration in international 22 class 034”; and (3) Mark 6,633,884 for “the standard character mark ‘Stündenglass’ in 23 association with goods further identified in registration in international class 011.” TAC 24 ¶¶ 12(a)-(c). Registration of a mark on the Principal Register in the Patent and 25 Trademark Office constitutes prima facie evidence of the validity of the registered mark. 26 Applied Info. Scis. Corp. v. eBAY, Inc., 511 F.3d 966, 970 (9th Cir. 2007). 27 However, even accepting all well-pleaded factual allegations as true as required 28 for default judgment motions, the TAC does not allege sufficient facts to support 1 plausible allegations that Defendant used Plaintiff’s Marks in an infringing or 2 counterfeiting manner. 3 First, despite Plaintiff being expressly warned that its FAC was deficient and being 4 provided two additional opportunities to amend after the FAC was dismissed, the TAC 5 continues to be deficient and lacks sufficient factual allegations to plausibly conclude 6 Defendant used Plaintiff's trademarks. See 8/20/2024 Order; see also GS Holistic, LLC 7 v. J's Smoke Shop, 2024 WL 1054899, at *2 (E.D. Cal. Mar. 11, 2024) (denying motion 8 for default judgment where, among other things, plaintiff failed to specify which of its 9 three trademarks was used); GS Holistic, LLC v. Pudasaini, 2024 WL 710890, at *4 10 (N.D. Cal. Feb. 21, 2024) (same); GS Holistic, LLC v. Bubbles Smoke Shop, 2023 WL 11 6787773, at *3 (C.D. Cal. Sept. 5, 2023) (same). The TAC states that on October 26, 12 2022, Plaintiff's investigator “observed one Gravity Infuser device on display that bore 13 marks identical or substantially indistinguishable from the Stündenglass Marks” and that 14 the “investigator purchased one Gravity Infuser from the store for $270.00.” TAC ¶ 31. 15 Although Plaintiff alleges that all three trademarks were applied to the glass infuser 16 purchased at Defendant’s store, id. ¶ 30, and includes photographs of these trademarks, 17 id. at Exh. B (ECF No. 36-2), Plaintiff fails to address how one single product could 18 infringe on two different international classes of goods. Plaintiff’s motion for default 19 judgment is no help either, as it simply states Defendant “infringed on three of the 20 Plaintiff’s trademarks with the Registration Numbers 6,633,884, 6,174,292 and 21 6,174,291.” Pl. Mot. at 21. In addition, review of the photographs attached to the TAC 22 indicate Defendant's product is utilized for smoking and does not indicate it can be used 23 as a food and beverage infuser. See TAC at Exh. B (ECF No. 36-2). Plaintiff also does 24 not address this discrepancy, which is problematic given Plaintiff seeks damages for 25 infringement as to all three trademarks. Thus, the TAC is deficient for lack of necessary 26 facts. See DIRECTV, 503 F.3d at 854; see also GS Holistic, LLC v. J's Smoke Shop, 27 2024 WL 1054899, at *2 (denying motion for default judgment where, among other 28 things, plaintiff failed to specify which of its three trademarks was used); GS Holistic, 1 LLC v. Pudasaini, 2024 WL 710890, at *4 (same); GS Holistic, LLC v. Bubbles Smoke 2 Shop, 2023 WL 6787773, at *3 (same). 3 Further, although the TAC alleges “[o]n information and belief, Defendant’s 4 unauthorized use of the Stündenglass Marks commenced after the registration of the 5 Marks in 2020,” TAC ¶ 39, it does not provide when this allegedly began—much less 6 provide any other details about Defendant’s allegedly infringing actions. The Court 7 cannot supply necessary facts that are omitted from the TAC. DIRECTV, 503 F.3d at 8 854; see also GS Holistic, LLC v. Puff+ LLC, 2024 WL 659362, at *3 (E.D. Cal. Feb. 16, 9 2024) (rejecting the plaintiff’s default judgment motion where the complaint lacked details 10 on the defendant’s alleged use where only one instance was alleged); GS Holistic, LLC 11 v. Ashes Plus Nine, 2023 WL 5993055, at *4 (N.D. Cal. Aug. 25, 2023) (same). 12 b) False Designation of Origin 13 To establish a claim for false designation of origin under 15 U.S.C. § 1125(a), a 14 plaintiff must show the defendant used a false designation of origin in interstate 15 commerce that is likely to cause confusion, mistake, or deception as to the origin, 16 sponsorship, or approval of defendants’ goods or services. Freecycle Network, Inc. v. 17 Oey, 505 F.3d 898, 902 (9th Cir. 2007). Claims for false designation of origin, as a type 18 of unfair competition claim, are analyzed similarly to infringement claims because the 19 “ultimate test” for these claims are the same: the public's likelihood of confusion. Jada 20 Toys, Inc. v. Mattel, Inc., 518 F.3d 628, 632 (9th Cir. 2008) (using the same likelihood of 21 confusion test to analyze trademark infringement and false designation of origin claims); 22 see also Brookfield Commc'ns, Inc. v. W. Coast Ent. Corp., 174 F.3d 1036, 1046 (9th 23 Cir. 1999) (considering false designation of origin claim as one of “unfair competition”); 24 Champions Golf Club, Inc. v. The Champions Golf Club, Inc., 78 F.3d 1111, 1122-23 25 (6th Cir. 1996) (“[F]alse designation is simply a species of unfair competition.”) (citing 26 McCoy v. Mitsuboshi Cutlery, Inc., 67 F.3d 917, 923 (Fed. Cir. 1995)). 27 Here, the Court has already determined the TAC fails to state an infringement 28 claim because the TAC deficiently alleges Defendant’s infringing actions. Plaintiff relies 1 on the exact same allegations for its false designation of origin claim. Pl. Mot. at 14-16. 2 Thus, the result is the same for the false designation of origin claim brought under 3 15 U.S.C. § 1125(a). See Jada, 518 F.3d at 632; see also GS Holistic, LLC v. J's Smoke 4 Shop, 2024 WL 1054899, at *3 (denying default judgment motion on plaintiff's false 5 designation claim on the same grounds as on the infringement claim—for failure of the 6 complaint to state sufficient claims and failure on the merits); GS Holistic, LLC v. Puff N 7 Go Gift Shop LLC, 2023 WL 4146232, at *5 (N.D. Cal. June 22, 2023) (same). 8 For the foregoing reasons, Plaintiff has failed to establish the second and third 9 Eitel Factors and its motion for default judgment should be denied for failure to state a 10 claim under 15 U.S.C. §§ 1114 and 1125(a). 11 C. Federal Actions Related to Plaintiff's Stündenglass Trademarks 12 Plaintiff has brought many similar, if not identical, claims about its Stündenglass 13 trademarks against other defendants. See GS Holistic, LLC v. Mr Vape Smoke Shop, 14 2024 WL 4545885, at *3 (E.D. Cal. Oct. 22, 2024) (collecting cases). Numerous courts in 15 the Ninth Circuit have found vague and conclusory allegations made by Plaintiff to be 16 insufficient to grant default judgment. See GS Holistic, LLC v. Puff+ LLC, 2024 WL 17 659362, at *3 (collecting cases where motion for default judgment was denied due to GS 18 Holistic's wholly insufficient pleadings and motion); GS Holistic, LLC v. Kings 19 Smokeshop, 2024 WL 150217, at *2 (E.D. Cal. Jan. 12, 2024) (denying motion for 20 default judgment because the complaint “has not satisfied the second and third Eitel 21 factors; i.e., the merits of plaintiff's substantive claim and the sufficiency of the 22 complaint”); GS Holistic, LLC v. Ashes Plus Nine, 2023 WL 5993055, at *5 (“[T]his Court 23 and other district courts in this Circuit have found similar (if not almost identical) 24 allegations by GS Holistic equally insufficient”); GS Holistic, LLC v. Ravens Smoke 25 Shop, Inc., 2023 WL 5504964, at *4 (C.D. Cal. July 10, 2023) (“As currently pled, these 26 factual allegations are vague and conclusory, and need not be accepted as true.”); GS 27 Holistic, LLC v. Alien Smoke Shop, 2023 WL 3402589, at *1 (C.D. Cal. Mar. 17, 2023) 28 (“Plaintiff's allegations of infringement here are insufficient to support a finding that 1 defendants willfully infringed plaintiff's trademarks”). 2 The undersigned is aware that other courts—including those in this district—have 3 granted motions for default judgment on substantially similar complaints and motions 4 filed by this Plaintiff. See GS Holistic, LLC v. Monterey Gift Shop, 2025 WL 2684386, at 5 *7 (N.D. Cal. May 15, 2025) (granting motion for default judgment in part, but limiting 6 damages to $5,000), report and recommendation adopted, 2025 WL 2684332 (N.D. Cal. 7 July 22, 2025); GS Holistic, LLC v. AA 110, 2024 WL 2848455, at *7 (E.D. Cal. June 5, 8 2024) (same), report and recommendation adopted, 2024 WL 3396380 (E.D. Cal. July 9 12, 2024); GS Holistic, LLC v. Nasher, 2024 WL 1994702, at *1 (E.D. Cal. May 6, 2024) 10 (same); GS Holistic, LLC v. Habib's Disc., 2023 WL 8644103, at *7 (E.D. Cal. Dec. 14, 11 2023) (granting motion for default and awarding $75,000 in damages), report and 12 recommendation adopted, 2024 WL 495139 (E.D. Cal. Feb. 8, 2024). The undersigned 13 respectfully disagrees, and follows the approach of the many courts that have denied 14 similar motions for default judgment brought by GS Holistic. See, e.g., GS Holistic, LLC 15 v. Puff+ LLC, 2024 WL 659362, at *3; GS Holistic, LLC v. Kings Smokeshop, 2024 WL 16 150217, at *2; GS Holistic, LLC v. Ashes Plus Nine, 2023 WL 5993055, at *5; GS 17 Holistic, LLC v. Ravens Smoke Shop, Inc., 2023 WL 5504964, at *4; GS Holistic, LLC v. 18 Alien Smoke Shop, 2023 WL 3402589, at *1. 19 D. Failure to State a Claim 20 District courts have discretion whether to enter a default judgment. Aldabe v. 21 Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). Where a complaint fails to state a claim, 22 default judgment may not be entered. See id. at 1092 (affirming the district court's denial 23 of default judgment where plaintiff's claims lacked merit); DIRECTV, 503 F.3d at 854-56 24 (holding “[t]he district court properly refused to grant default judgment” where a plaintiff's 25 complaint was not well-pleaded and instead provided only “legal conclusions” that 26 defendants were “not held to have admitted through default”). Accordingly, because 27 Plaintiff has again failed to state a claim as to trademark counterfeiting and infringement 28 under 15 U.S.C. § 1114, and false designation of origin and unfair competition under 1 15 U.S.C. § 1125(a), Plaintiff’s motion for default judgment should be DENIED. 2 E. Dismissal Without Leave to Amend 3 Plaintiff has failed to cure the deficiencies of its claims despite being informed of 4 the deficiencies and being provided ample opportunity to do so. See 8/20/2024 Order. 5 Accordingly, the Court finds further amendment would be futile. See Zucco Partners, 6 LLC v. Digimarc Corp., 552 F.3d 981, 1007 (9th Cir. 2009) (affirming district court's 7 dismissal with prejudice because “where the plaintiff has previously been granted leave 8 to amend and has subsequently failed to add the requisite particularity to its claims, ‘the 9 district court's discretion to deny leave to amend is particularly broad’”). Here, Plaintiff's 10 TAC continues to rely on conclusory allegations that are insufficient to state a claim 11 despite awareness of the applicable legal standards and deficiencies in its prior 12 pleading. Therefore, Plaintiff's TAC should be DISMISSED without leave to amend. 13 IV. CONCLUSION 14 In conclusion, IT IS HEREBY ORDERED that: 15 1. The Clerk of Court shall randomly assign a district judge to this action. 16 Further, based upon the findings above, IT IS RECOMMENDED: 17 1. Plaintiff’s motion for default judgment (ECF No. 44) be DENIED; 18 2. The Third Amended Complaint (ECF No. 36) be DISMISSED without leave 19 to amend; and 20 3. The Clerk of the Court be directed to CLOSE this case. 21 These findings and recommendations are submitted to the United States District 22 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 23 14 days after being served with these findings and recommendations, any party may file 24 written objections with the Court and serve a copy on all parties. This document should 25 be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any 26 reply to the objections shall be served on all parties and filed with the Court within 14 27 days after service of the objections. Failure to file objections within the specified time 28 may waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 1 | 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 2 3 || Dated: June 10, 2026 C S \U 4 CHI S00 KIM 5 UNITED STATES MAGISTRATE JUDGE 6 || 8, gsho.0355.23 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14