Taylor Made Golf Co. v. Carsten Sports, Ltd.

175 F.R.D. 658, 44 U.S.P.Q. 2d (BNA) 1938, 1997 U.S. Dist. LEXIS 16998, 1997 WL 677391
CourtDistrict Court, S.D. California
DecidedOctober 29, 1997
DocketCiv. No. 96-0126-B (JFS)
StatusPublished
Cited by29 cases

This text of 175 F.R.D. 658 (Taylor Made Golf Co. v. Carsten Sports, Ltd.) is published on Counsel Stack Legal Research, covering District Court, S.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Taylor Made Golf Co. v. Carsten Sports, Ltd., 175 F.R.D. 658, 44 U.S.P.Q. 2d (BNA) 1938, 1997 U.S. Dist. LEXIS 16998, 1997 WL 677391 (S.D. Cal. 1997).

Opinion

ORDER GRANTING PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT

BREWSTER, District Judge.

I. Case Type and Jurisdiction

Plaintiff Taylor Made Golf Co. moves for judgment by default against defendant Carsten Sports, Ltd., pursuant to Rule 55(b)(2) of the Federal Rules of Civil Procedure. Defendant has never appeared in this action and has not filed an opposition to this motion. This court has jurisdiction based on 28 U.S.C. §§ 1331, 1338(a), and 1338(b). Venue is proper under 28 U.S.C. §§ 1391(b) and 1391(d).

II. Background

Plaintiff manufactures golf clubs and golf apparel. Defendant manufactures and sells golf clubs in competition with Plaintiff that Plaintiff believes are “knock-offs” of its trademarked and patented clubs. Plaintiff seeks judgment by default against Carsten Sports, Ltd. for (1) false representation based on trade dress infringement and false advertising pursuant to 15 U.S.C. § 1125(a); (2) trademark infringement pursuant to 15 U.S.C. § 1114; (3) patent infringement pursuant to 35 U.S.C. § 271; (4) unfair competition under the laws of California; and (5) violation of the California Unfair Trade Practices Act, Cal Bus. & Prof.Code § 17000, et seq. Plaintiff is a nationally known golf club manufacturer, and has several patents and trademarks registered with the U.S. Patent and Trademark Office including registrations for the “BURNER BUBBLE” line. The drivers associated with this line were created by Plaintiff with the goal of “distinctive design or appearance so that purchasers or the trade could easily identify Plaintiffs clubs.” Complaint 1112. Plaintiff has spent “substantial sums of money, time and effort to develop, advertise and promote its golf clubs identified by ... [the] Burner Bubble Trade Dress” through professional golfing events, television and print advertising. Id.

Plaintiff alleges that Defendant Carsten Sports, Ltd. is a foreign corporation residing in Taiwan with its principal place of business in Taiwan. Plaintiff also alleges that Defendant has advertised and sold colorable imitations of Plaintiffs Burner Bubble Trade Dress and that Defendant “has deliberately attempted to ride on the coattails of Plaintiff to capitalize on its well-known and distinctive Trademarks and Trade Dress.” Complaint 1131.

Plaintiff filed its first motion for default judgment on April 23, 1997. On June 16, 1997, the Court held that Plaintiff had demonstrated infringement of its trademark and patent and granted its request for injunctive relief. However, the Court denied, without prejudice, Plaintiffs plea for damages. The Court found that Plaintiff had provided no proof of actual damages, and that the alternative “relief from advertising” methodology offered by Plaintiff was too speculative to support an award of monetary damages. The Court also denied, without prejudice, Plaintiffs request for attorneys’ fees because Plaintiff provided no documentation to demonstrate the reasonableness of such fees.

III. Discussion

A. Standard of Law

Fed.R.Civ.P. 55(b)(2) governs applications to the Court for a judgment by default. Entry of judgment by default is committed to the court’s discretion. See Lau Ah Yew v. Dulles, 236 F.2d 415 (9th Cir.1956). A defendant’s default does not automatically [661]*661entitle plaintiff to judgment. See Draper v. Coombs, 792 F.2d 915 (9th Cir.1986). In assessing liability, the complaint’s allegations are taken as true. See Danning v. Lavine, 572 F.2d 1386 (9th Cir.1978). In assessing damages, the court must review facts of record, requesting more information if necessary, to establish the amount to which plaintiff is lawfully entitled upon judgment by default. See Pope v. United States, 323 U.S. 1, 65 S.Ct. 16, 89 L.Ed. 3 (1944). When determining liability, a defendant’s default functions as an admission of the plaintiffs well-pleaded allegations of fact. See Danning v. Lavine, 572 F.2d 1386 (9th Cir.1978).

No judgment by default shall be entered against an infant or incompetent person unless represented by a general guardian. If the opposing party has appeared in the case, movant must provide three days written notice of the default judgment hearing. The court may conduct such inquiries as it deems necessary and proper to quantify any damages. See Fed.R.Civ.P. 55(b)(2).

B. Notice

Plaintiff filed this action on January 24, 1996. Defendant’s general manager was served personally at Defendant’s principal place of business in Taiwan on October 5, 1996. Plaintiff returned and filed proofs of executed service on November 27, 1996. Defendant failed to answer within twenty days or to make other appearances by way of motion or notice of appearance.

Fed.R.Civ.P. 4(f)(2) allows a party to serve process by any internationally agreed means described in the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents or by the manner prescribed by the law of the foreign country in an action of its courts of general jurisdiction if there is no internationally agreed method of service. Taiwan is not a party to the Hague Convention, but “Taiwan law expressly permits service upon a corporation by delivery to ‘the manager concerned.’ ” See Cosmetech Int’l v. Der Kwei Enter., 943 F.Supp. 311, 316 (S.D.N.Y.1996).

Fed.R.Civ.P. 55(b)(2) requires that a defendant who has appeared in the case receive notice of the application for default judgment at least three days prior to the hearing. The Clerk entered a default against Defendant on March 12, 1997. Although Defendant has never appeared in this case, Plaintiff gave Defendant notice, in accordance with Fed. R.CIV.P.

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175 F.R.D. 658, 44 U.S.P.Q. 2d (BNA) 1938, 1997 U.S. Dist. LEXIS 16998, 1997 WL 677391, Counsel Stack Legal Research, https://law.counselstack.com/opinion/taylor-made-golf-co-v-carsten-sports-ltd-casd-1997.