Norris v. Shenzhen IVPS Technology Company Limited

• Court: District Court, D. Arizona
• Decided: December 8, 2022
• Docket: 2:20-cv-01212
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Ronald Norris, No. CV-20-01212-PHX-DWL

10 Plaintiff, ORDER

11 v.

12 Shenzhen IVPS Technology Company Limited, et al., 13 Defendants. 14 15 On November 1, 2022, the Court issued an order denying Defendant Shenzhen IVPS 16 Technology Company Ltd.’s (“Shenzhen IVPS”) motion to set aside default. (Doc. 37.) 17 Now pending before the Court is Shenzhen IVPS’s motion for reconsideration. (Doc. 38.) 18 For the following reasons, the motion is denied. 19 LEGAL STANDARD 20 “Reconsideration is appropriate if the district court (1) is presented with newly 21 discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, 22 or (3) if there is an intervening change in controlling law.” Sch. Dist. No. 1J, Multnomah 23 Cnty., Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). See also 2 Gensler, Federal 24 Rules of Civil Procedure, Rules and Commentary, Rule 54, at 77-78 (2022) (“[T]rial courts 25 will exercise their discretion to reconsider interlocutory rulings only when there is a good 26 reason to do so, including (but not limited to) the existence of newly-discovered evidence 27 that was not previously available, an intervening change in the controlling law, or a clear 28 error rendering the initial decision manifestly unjust.”); LRCiv 7.2(g)(1) (“The Court will 1 ordinarily deny a motion for reconsideration of an Order absent a showing of manifest error 2 or a showing of new facts or legal authority that could not have been brought to its attention 3 earlier with reasonable diligence.”). “Clear error occurs when the reviewing court on the 4 entire record is left with the definite and firm conviction that a mistake has been 5 committed.” Smith v. Clark Cnty. Sch. Dist., 727 F.3d 950, 955 (9th Cir. 2013) (internal 6 quotation marks omitted). For example, “it is a clear error of law to not apply controlling 7 . . . precedent.” Id. “[M]anifest injustice is defined as an error in the trial court that is 8 direct, obvious, and observable.” Smith v. City of Quincy, 2011 WL 1303293, *1 (E.D. 9 Wash. 2011) (internal quotation marks omitted). 10 ANALYSIS 11 In the November 1, 2022 order, the Court evaluated whether good cause existed to 12 set aside the entry of default against Shenzhen IVPS. (Doc. 37.) As part of this evaluation, 13 the Court considered the three Falk factors: “(1) whether the plaintiff will be prejudiced, 14 (2) whether the defendant has a meritorious defense, and (3) whether culpable conduct of 15 the defendant led to the default.” Falk v. Allen, 739 F.2d 461, 463 (9th Cir. 1984). The 16 standard is “disjunctive,” such that a determination adverse to Shenzhen IVPS on any one 17 of these factors would have been a “sufficient reason . . . to refuse to set aside the default.” 18 United States v. Signed Pers. Check No. 730 of Yubran S. Mesle, 615 F.3d 1085, 1091 (9th 19 Cir. 2010). The Court determined that all three factors were adverse to Shenzhen IVPS. 20 Because denying the motion to vacate was within the Court’s discretion if any one 21 factor was adverse, Shenzhen IVPS would likely need to demonstrate that the Court made 22 mistakes as to all three Falk factors for the Court to be “left with the definite and firm 23 conviction” that its decision was wrong. As explained below, the Court is not persuaded 24 that it erred as to any one factor, let alone all three.1

25 1 Shenzhen IVPS also suggests there might have been “confusion” as to the contents of its motion to vacate default. (Doc. 38 at 1.) In particular, Shenzhen IVPS takes issue 26 with the assertion in the November 1, 2022 order that “[t]he portion of Shenzhen IVPS’s motion arguing that the Court should vacate the entry of default” is “less than three pages 27 long” (Doc. 37 at 11), arguing that “the first seven (7) pages of the responsive pleading constitute IVPS’s Motion to Vacate.” (Doc. 38 at 1.) There was no confusion on this point. 28 Pages 1 through 4 of the motion contain an “introduction” and “statement of facts and procedural posture,” whereas the “Argument” section begins on page 5, line 8 and 1 I. Culpability 2 As for culpability, Shenzhen IVPS concedes that it “is a sophisticated party” and 3 acknowledges that “[w]hen dealing with a sophisticated defendant the Court may assume 4 the defendant understood the consequences of its actions, and with it, find it intentionality.” 5 (Doc. 38 at 4-5.) The reconsideration analysis could end right there. It would not be an 6 abuse of discretion—and therefore would not be clearly erroneous or manifestly unjust— 7 to assume Shenzhen IVPS’s culpability from its sophistication alone and decline to vacate 8 the entry of default on that basis. It would be harsh, perhaps, but allowable under Ninth 9 Circuit precedent and therefore not “manifestly” unjust. 10 Nevertheless, the Court will further address Shenzhen IVPS’s reconsideration 11 arguments. The Court did not, in fact, assume Shenzhen IVPS’s culpability from its 12 sophistication alone. The Court found that Shenzhen IVPS’s “conduct evinces ‘bad faith.’” 13 (Doc. 37 at 8.) Shenzhen IVPS states that the culpability analysis in the November 1, 2022 14 order was based on unfounded assumptions. (Doc. 38 at 5.) However, Shenzhen IVPS 15 fails to demonstrate that the line of reasoning in the November 1, 2022 order is flawed. In 16 its motion to vacate, Shenzhen IVPS claimed that it “believed a responsive pleading was 17 not yet due” because “Plaintiff had not completed service by filing an Affidavit of Service.” 18 (Doc. 21 at 5.) The Court reasoned that “Shenzhen IVPS could not know that an affidavit 19 of service had not yet been filed with the Court unless it was checking the docket for this 20 case.” (Doc. 37 at 7.) Shenzhen IVPS offers no alternative explanation for how it could 21 have known that Plaintiff had not filed an affidavit of service. As such, Shenzhen IVPS 22 makes no challenge to the reasoning supporting the Court’s finding. 23 Nor does Shenzhen IVPS’s claim of “inadvertent error” (id. at 5) make any sense in 24 the context of the Court’s analysis. The Court began its culpability analysis with the 25 premise that Shenzhen IVPS, based on its own assertion that it had erred in interpreting the 26 applicable rules and believed it could wait to respond until Plaintiff filed an affidavit of 27 service, must have been reviewing the docket to see when that affidavit of service had been 28 concludes on page 7, line 8. (Doc. 21.) It is, in fact, barely more than two pages long. 1 filed. Shenzhen IVPS does not expressly deny this, and again, offers no other explanation. 2 The Court then questioned why Shenzhen IVPS failed to respond even after Plaintiff filed 3 an affidavit of service on October 12, 2021. (Id. at 7-8.) Perhaps there was some 4 “inadvertent error” there, but Shenzhen IVPS does not explain what it might have been. 5 The Court then noted that a review of the docket would have enabled Shenzhen IVPS to 6 see the lengths to which Plaintiff was going in his effort to obtain entry of default, yet 7 Shenzhen IVPS waited until Plaintiff successfully obtained entry of default before finally 8 appearing to file a motion to vacate that entry of default. Shenzhen IVPS does not offer a 9 good-faith explanation for that conduct. It is unclear how an “inadvertent error” of any 10 sort could explain it. 11 II. Prejudice 12 As for prejudice to Plaintiff, Shenzhen IVPS asserts that “all evidence which goes 13 to the heart of Plaintiff’s products liability action—the product, the design and 14 manufacturing plans for the product, Plaintiff’s injuries, and Plaintiff’s medical records— 15 remains accessible through the normal course of discovery.” (Doc. 38 at 4.) 16 Shenzhen IVPS once again “fails to substantively address Plaintiff’s specific 17 assertions regarding prejudice, including the allegation that ‘[o]ne of Defendant’s social 18 media accounts, Smok_Tech, has been taken down and no longer exists.’” (Doc. 37 at 11 19 [quoting Doc. 22 at 5].) To the extent Shenzhen IVPS’s argument is that the missing 20 evidence would only be relevant to the issue of personal jurisdiction and would not be 21 relevant for purposes of Plaintiff’s “case in chief,”2 this argument is both factually 22 questionable (it is certainly possible that the contents of the now-defunct social media 23 account might have contained information about “the product” and/or “the design and 24 manufacturing plans for the product”) and legally irrelevant (Shenzhen IVPS cites no law 25 in support of the contention that prejudice, for purposes of the Falk analysis, must be to

26 2 Shenzhen IVPS’s motion contains the following passage: “The focus of Plaintiff, and in turn the Court, has been on the issue of personal jurisdiction. Plaintiff failed to 27 establish how he was prejudiced by any delay in proving its case in chief.” (Doc. 38 at 4.) Although this passage is not a model of clarity, the Court construes it, as discussed in the 28 text above, as an argument about the issues as to which the missing evidence is (and is not) relevant. 1 proving a plaintiff’s case-in-chief rather than proving jurisdiction). 2 Shenzhen IVPS also argues that “Plaintiff’s concern over witnesses becoming stale 3 and former employees becoming unavailable are [sic] undercut by the fact that Plaintiff did 4 not file suit until one day before the statute of limitations was set to run, and then took 5 several months to comply with the Court’s order to obtain a translation of the certificate of 6 service.” (Doc. 38 at 4.) This argument does not merit reconsideration because the Court 7 already addressed, in the November 1, 2022 order, the time Plaintiff took to comply with 8 the order to obtain a translation of the affidavit of service:

9 Less time might have elapsed between Shenzhen IVPS’s failure to respond to the complaint by the May 19, 2021 deadline and entry of default on June 10 1, 2022 had Plaintiff been speedier in obtaining an English translation of the affidavit of service needed to obtain entry of default. Nevertheless, in light 11 of the finding that Shenzhen IVPS’s failure to respond was culpable and the fact that at any time during the year-long delay, Shenzhen IVPS could have 12 filed an answer, obviating Plaintiff’s need to pursue default and thereby ending the needless delay, the Court considers Shenzhen IVPS responsible 13 for the delay. 14 (Doc. 37 at 11 n.5.) 15 Furthermore, the time Plaintiff took to file suit does not undercut Plaintiff’s 16 assertions of prejudice. The injury that caused the statute of limitations to begin running 17 arose from “a substantial fire” in Plaintiff’s residence that caused him to be “severely 18 injured.” (Doc. 1 ¶ 13.) Plaintiff no doubt needed time to heal and attend to the damage 19 to his residence before turning his attention to litigation. At any rate, Plaintiff acted within 20 the time allotted to file suit. 21 III. Meritorious Defense 22 The portion of Shenzhen IVPS’s two-page vacatur argument that was devoted to the 23 “meritorious defense” Falk factor was four lines long and read, in its entirety, as follows:

24 IVPS has a meritorious defense to the allegations contained in Plaintiff’s Complaint as IVPS is simultaneously moving to dismiss the Complaint for a 25 lack of personal jurisdiction. For the reasons set out further hereinbelow, IVPS is not subject to the jurisdiction of the Court and is respectfully 26 requesting to be dismissed. 27 (Doc. 21 at 6:9-12.) However, Shenzhen IVPS later filed a motion to withdraw its motion 28 to dismiss for lack of personal jurisdiction. (Doc. 35.) The motion to withdraw stated, in 1 its entirety:

2 Defendant Shenzhen IVPS Technology Co., Ltd. (“IVPS”) moves to partially withdraw its Motion to Dismiss for Lack of Personal Jurisdiction and 3 Alternatively Motion for More Definite Statement. This request does not impact IVPS’s Motion to Vacate Default. IVPS is NOT withdrawing its 4 Motion to Vacate Default. IVPS moves to withdraw its Motion to Dismiss for Lack of Personal Jurisdiction and Motion for a More Definite Statement, 5 Exhibit A “Declaration of Yuan Fumin” (DKT 21-1), and Exhibit A “Declaration of Yuan Fumin” (DKT 29-1), ONLY. As the Court is aware, 6 IVPS recently retained new counsel to represent it in this matter. IVPS wishes for its new counsel to have the opportunity to perform its own due 7 diligence and research into the issues brought forward in these motions before being addressed by this Court. If warranted, IVPS may bring these 8 motions later within any period provided to file a responsive pleading to the Complaint. 9 10 (Id., emphasis omitted). Based on this development, the Court ruled as follows in the 11 November 1, 2022 order: “[O]nly one sentence [of the motion to vacate] is devoted to 12 arguing that Shenzhen IVPS has a meritorious defense: ‘IVPS has a meritorious defense to 13 the allegations contained in Plaintiff’s Complaint as IVPS is simultaneously moving to 14 dismiss the Complaint for a lack of personal jurisdiction’ . . . [but] Shenzhen IVPS 15 subsequently withdrew its motion to dismiss for lack of personal jurisdiction (as well as its 16 motion for a more definite statement). As such, Shenzhen IVPS has withdrawn its only 17 asserted defense.” (Doc. 37 at 11.) 18 In its reconsideration request, Shenzhen IVPS now argues that “[a]lthough [it] 19 withdrew its Motion to Dismiss, the personal jurisdiction defense was still asserted in 20 IVPS’s Motion to Vacate.” (Doc. 38 at 3.) This argument is logically incoherent—as 21 discussed above, Shenzhen IVPS expressly withdrew its personal jurisdiction challenge 22 and the evidence on which that challenge was based. Shenzhen IVPS cannot have it both 23 ways—it cannot withdraw its motion to dismiss for lack of jurisdiction from the Court’s 24 consideration but then still expect the Court to consider it. 25 At any rate, any personal jurisdiction defense would have been meritless. Although 26 the Court will not undertake a full-blown analysis, it will briefly discuss Shenzhen IVPS’s 27 raised-then-withdrawn-and-now-apparently-reasserted jurisdictional argument. 28 Both parties submitted evidence bearing on personal jurisdiction. Shenzhen IVPS 1 submitted two declarations from Yuan Furmin, its marketing director. (Docs. 21-1, 29-1.)3 2 Plaintiff submitted documentary evidence, primarily in the form of screenshots of 3 Shenzhen IVPS’s website and social media pages. (Doc. 22-1.) 4 The factual assertions in Furmin’s initial declaration were as follows: Shenzhen 5 IVPS “does not sell directly to consumers,” “does not have any direct customers in Arizona 6 and has never made any direct sales to Arizona,” “has never sold or shipped any products 7 directly to Arizona,” “only sells goods to distributors,” has “distributorship agreements” 8 which designate “countries as authorized territories” but do not subdivide the territories 9 into states, “has no control” and “no knowledge” as to where its products are sold beyond 10 knowing they are sold and shipped to the “authorized territories,” “receives payments for 11 its products in Chinese yuan,” does not have property or offices in Arizona, “does not 12 advertise, market, or solicit any business in Arizona,” has no employees, agents, or 13 representatives who have “ever visited Arizona for business purposes,” is not “licensed” 14 or “registered” to “do business” in Arizona, has never paid taxes in Arizona, has never 15 agreed to perform contractual duties in Arizona, has never “made any in-person contact” 16 with an Arizona resident regarding any business relationship, does not “directly” transact 17 business in Arizona, “does not sell its products to anyone with known connections to 18 Arizona,” does not sell its products “through eBay, Amazon, or similar websites,” and 19 never “performed service, repair, or maintenance” on Plaintiff’s e-cigarette “in Arizona” 20 before it exploded. (Doc. 21-1.) 21 Plaintiff, in response, provided evidence that contradicted some of the facts asserted 22 in Furmin’s initial declaration. Plaintiff included screenshots of the website 23 www.smoketech.com, which states that it is subject to “Copyright © 2022 Shenzhen IVPS 24 Technology Co., Ltd. All Rights Reserved.” (Doc. 22-1 at 3.) This website includes a 25 page entitled “About IVPS,” which includes a photograph of a corporate lobby with a large 26 desk, behind which the wall prominently displays the word brand name SMOK®. (Id. at 27 2.) According to its “About IVPS” page, through “its e-cigarette research and 28 3 Both declarations were subsequently withdrawn. 1 development” and by “focusing on brand construction and operation, sale channels 2 development and management from both home and abroad and continuous innovation,” 3 Shenzhen IVPS has made its “leading brand,” SMOK®, “a first class global brand in the 4 electronic cigarette industry.” (Id. at 2, 4.) The SMOK® brand “launched an exclusive 5 [app]” called “IVPS Tour,” which serves as a “vaporizer management” system and “social 6 platform” to allow its customers to “make friends with other vapers all over the world.” 7 (Id. at 4.) Shenzhen IVPS promotes itself as having “established a complete customer 8 service system,” assuring customers that “choosing IVPS” or “choosing SMOK®” is 9 “choosing a trustworthy friend.” (Id. at 2, 4.) Notably, the website has a link, accessible 10 from each page of the website, entitled “STORE.” (Id. at 2, 3, 4, 5, 7.) The store features 11 photos of various products and their prices, and there is an icon of a shopping cart bearing 12 the word “CART.” (Id. at 9-15.) 13 The second Furmin declaration, which was attached to Shenzhen IVPS’s reply in 14 support of its now-withdrawn motion to dismiss, stated that the smoktech.com website “has 15 been used by multiple companies since it was launched” and that it has not been 16 “exclusively maintained, operated or copyrighted” by Shenzhen IVPS. (Doc. 29-1 ¶¶ 9- 17 10.) The assertion that Shenzhen IVPS’s ownership was not “exclusive” does not amount 18 to a denial of ownership of the website, nor is there any challenge to the authenticity of the 19 screenshots or any denial of the veracity of the website’s contents. At any rate, because 20 “all disputed facts” must be resolved “in favor of the plaintiff” when resolving a motion to 21 dismiss for lack of personal jurisdiction, Burri L. PA v. Skurla, 35 F.4th 1207, 1213 (9th 22 Cir. 2022), Plaintiff’s evidence was sufficient to establish that Shenzhen IVPS sold its 23 products directly to consumers and offered ongoing customer service to consumers. 24 Plaintiff also submitted screenshots of social media pages. A Facebook account 25 with the username “Smok”—which is Shenzhen IVPS’s leading brand—and a profile 26 photo bearing the SMOK® corporate emblem posted the following invitation to its 27 “Valued Customers”: “Welcome to visit our Booth at EuroTab and Tucson Arizona Vape 28 Expo.” (Doc. 22-1 at 17.) Also included were two links to the www.smoketech.com 1 website. (Id.) A similar invitation to visit Smok’s booth at a vaping expo in Phoenix was 2 also posted. (Id. at 21.) The Furmin reply declaration included an assertion that Shenzhen 3 IVPS “did not attend” either show (Doc. 29-1 ¶¶ 4-7), but the declaration did not disclaim 4 ownership of the Facebook account or deny promoting the booths showcasing Shenzhen 5 IVPS’s products at these Arizona expos. Additionally, the Furmin reply declaration 6 acknowledged that Shenzhen IVPS “does use the SMOK_SHOW Instagram account” 7 (Doc. 29-1 ¶ 8), which also has a profile photo bearing the SMOK® corporate emblem. 8 (Doc. 22-1 at 22.) Plaintiff submitted screenshots highlighting that Shenzhen IVPS’s 9 Instagram account includes tags and hashtags directed at Arizona cities 10 (“@phoenix_vapor_,” “#yuma,” “#yumavapors,” “#yumacommunity”), promotes an 11 Arizona business (“@azswaggsauce”), and offers a “free shipment for clearance code” 12 (328freeship) to use when purchasing products from Shenzhen IVPS’s website. (Id. at 22- 13 28.) 14 If the Court had been asked to rule on Shenzhen IVPS’s jurisdictional challenge 15 (instead of that challenge being withdrawn), it would have applied the Ninth Circuit’s 16 three-prong test to determine whether Shenzhen IVPS was subject to specific personal 17 jurisdiction in Arizona: 18 (1) The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or 19 perform some act by which he purposefully avails himself of the 20 privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; 21

22 (2) the claim must be one which arises out of or relates to the defendant’s forum-related activities; and 23 24 (3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e., it must be reasonable. 25 26 Morrill v. Scott Fin. Corp., 873 F.3d 1136, 1142 (9th Cir. 2017). 27 Without wading too deep into the analysis, the Court has no trouble concluding that 28 the motion to dismiss for lack of personal jurisdiction would have been denied had it not 1 been withdrawn. Resolving all disputed facts in Plaintiff’s favor, the three prongs above 2 would have been met. The first prong would have been satisfied because Shenzhen IVPS 3 sold its products and offered ongoing support to consumers in Arizona, promoted booths 4 showcasing its products at expos in Tucson and Phoenix, and specifically targeted Arizona 5 cities via social media hashtags. The second prong would have been satisfied because 6 Plaintiff’s claim arises out of Shenzhen IVPS’s direct sale4 of allegedly defective goods to 7 a consumer in Arizona, resulting in an injury in Arizona. The third prong would have been 8 satisfied because Shenzhen IVPS failed to “present a compelling case that the presence of 9 some other considerations would render jurisdiction unreasonable.” Burger King Corp. v. 10 Rudzewicz, 471 U.S. 462, 477 (1985). 11 Aside from personal jurisdiction, Shenzhen IVPS asserts in its motion for 12 reconsideration that its motion to vacate also raised three substantive defenses to liability 13 pursuant to A.R.S. § 12-683: “the state-of-the-art, product modification or alteration, and 14 product misuse or abuse.” (Doc. 38 at 2-3.) But it is revisionist history for Shenzhen IVPS 15 to suggest that it identified these defenses as part of the “meritorious defense” argument in 16 its motion to vacate default. 17 In the second paragraph of its two-paragraph argument as to the “culpable conduct” 18 Falk factor—not the “meritorious defense” Falk factor—Shenzhen IVPS stated that it 19 “believe[d] that the Complaint failed to meet the minimum pleading standard” and that 20 “[t]he lack of any identifying information regarding the product at issue in the pleading led 21 IVPS to believe that it could not be responsible for the same nor needed to respond to the 22 same.” (Id. at 5-6.) This was not an assertion of a meritorious defense—it was a rationale 23 for not responding to the complaint, which the Court addressed as follows:

24 A defendant can choose not to respond to a complaint and instead allow default to be entered, but it is a risky choice—it amounts to a concession of 25 all facts alleged in the complaint—and the making of such a choice does not provide grounds for vacating the opted-for entry of default. 26 27 (Doc. 37 at 9.)

28 4 The complaint alleges that Plaintiff’s aunt ordered the e-cigarette online “from” Shenzhen IVPS. (Doc. 1 ¶ 10.) 1 Shenzhen IVPS also briefly discussed alleged pleading deficiencies in its motion in 2 the alternative for a more definite statement (Doc. 21 at 12-13), but Shenzhen IVPS later 3 took steps to expressly withdraw that motion (as well as the motion to dismiss for lack of 4 personal jurisdiction) from the Court’s consideration. (Doc. 35.) At any rate, at no point 5 in the filing at Doc. 21 did Shenzhen IVPS ever mention A.R.S. § 12-683 or the purported 6 defenses of “the state-of-the-art, product modification or alteration, and product misuse or 7 abuse.” These defenses were never timely raised and do not warrant reconsideration. 8 Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (a motion for 9 reconsideration “may not be used to raise arguments or present evidence for the first time 10 when they could reasonably have been raised earlier in the litigation”). 11 CONCLUSION 12 The Court will not reconsider its order denying Shenzhen IVPS’s motion to vacate 13 entry of default. 14 Also, Plaintiff has now filed a motion for default judgment. (Doc. 39.) As noted in 15 the November 1, 2022 order, Shenzhen IVPS’s response may not challenge the truth of the 16 well-pleaded allegations in the complaint, which are taken as true due to the default, but it 17 may challenge whether those allegations, taken as true, entitle Plaintiff to relief. Alan 18 Neuman Prods., Inc. v. Albright, 862 F.2d 1388, 1392 (9th Cir. 1988) (“Although the entry 19 of default was within the court’s discretion, Albright may contest the legal sufficiency of 20 allegations contained in the complaint.”). Shenzhen IVPS also may challenge Plaintiff’s 21 evidence as to damages. Geddes v. United Fin. Grp., 559 F.2d 557, 560 (9th Cir. 1977) 22 (“[U]pon default the factual allegations of the complaint, except those relating to the 23 amount of damages, will be taken as true.”). See generally Greyhound Exhibitgroup, Inc. 24 v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992) (“While a party’s default is 25 deemed to constitute a concession of all well pleaded allegations of liability, it is not 26 considered an admission of damages. Damages, which are neither susceptible of 27 mathematical computation nor liquidated as of the default, usually must be established by 28 the plaintiff in an evidentiary proceeding in which the defendant has the opportunity to 1 || contest the amount.’’) (citations omitted); Rubicon Global Ventures, Inc. v. Chongqing 2|| Zongshen Group Import/Export Corp., 226 F.Supp.3d 1141, 1147 (D. Or. 2016) (“[C]ourts 3|| generally agree that a defaulting party has the right to participate in [a damages] hearing. 4|| This does not mean the defaulting party may present evidence going solely to liability, but 5 || she may cross-examine the opposing witnesses and introduce evidence on her own behalf || in mitigation of the damages. ... [R]egardless of the reason Defendants defaulted, they were present and active in this case at the time the evidentiary hearing was held. In fact, 8 || their involvement prior to the hearing was extensive, and forbidding them from 9|| participating at this point would be incongruent with modern treatment of defaulting || parties.) (cleaned up). 11 Accordingly, 12 IT IS ORDERED that Shenzhen IVPS’s motion for reconsideration (Doc. 38) is || denied. 14 Dated this 8th day of December, 2022. 15 16 Am ee 17 f t _o——— Dominic W. Lanza 18 United States District Judge 19 20 21 22 23 24 25 26 27 28

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