Philip Morris USA, Inc. v. Dhillon

119 F. App'x 62

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 13, 2004
• Docket: No. 04-55087
• Status: Published

Opinion

MEMORANDUM

**

Chi Hon and Sui Lam, individually and doing business as H & H Liquor (collectively Hon), appeal pro se under 28 U.S.C. § 1291 from the district court’s denial of their motion to vacate the default judgment entered against them for infringement and false designation of registered trademarks under the Lanham Act §§ 32, 43(a), and unfair competition violations under California law. We review the district court’s decision not to vacate the default judgment for abuse of discretion. See Cmty. Dental Servs. v. Tani, 282 F.3d 1164, 1167 n. 7 (9th Cir.2002); De Saracho v. Custom Food Mach., Inc., 206 F.3d 874, 880 (9th Cir.2000).

Hon contends that Philip Morris did not provide them with adequate notice of the underlying and default judgment proceedings and that Philip Morris’ allegedly fraudulent consent order offers and representations concerning the legal process prevented them from defending themselves and responding to the complaint. Hon has not proved fraud by clear and convincing evidence, and the record strongly supports the determination that no fraud, misrepresentation, or extraordinary circumstances existed that warranted vacating the motion. In addition, the unrefuted record reflects that Philip Morris provided Hon with proper notice. Thus, as no circumstances justified vacating the default judgment order pursuant to Federal Rule of Civil Procedure 60(b), the district court did not abuse its discretion by denying Hon’s motion. See Fed.R.Civ.P. 60(b); Cmty. Dental Servs., 282 F.3d at 1168; De Saracho, 206 F.3d at 880.

The motion filed on December 6, 2004, to strike portions of appellants’ reply brief is denied.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.