United States District Court, W.D. Washington
ORDER DENYING DEFAULT JUDGMENT
RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE
matter comes before the Court on Plaintiff's Motion for
Default Judgment. Dkt. #12. On May 31, 2017, the Clerk of
this Court entered default against both Defendants. Dkts. #10
and #11. Plaintiff now seeks judgment in the form of a
Declaration stating that Defendants do not have certain
rights with respect to the intellectual property at issue.
Id. The Court has reviewed the motion, which is now
DENIED for the reasons discussed herein.
filed the instant matter on November 13, 2015. Dkt. #1.
Service on Defendant Dellerba was accomplished on December
11, 2015, and service on Defendant Bresolin was accomplished
on January 18, 2016. Dkts. #5 and #6. Despite Defendants'
failure to appear after being served, Plaintiff took no
further action for more than one year. In fact, it was not
until the Court issued an Order on May 10, 2017, setting
forth certain case deadlines that Plaintiff finally moved for
default. Dkts. #8 and #9. The Clerk of the Court entered
default against Defendants, and this motion followed. Dkts.
#10 and #11.
case is a Declaratory Judgment action. Plaintiff DialMask,
Inc. is a Washington corporation owned by three Washington
residents: Mr. Aeron, Mr. Lau and Mr. Wang. Dkt. #1 at ¶
2. Defendant Fiorenzo Bresolin is a resident of Palm Beach,
Florida. Id. at ¶3. Defendant Vito Dellerba is
a resident of Montreal, Quebec at ¶ 4. As set forth in
the Complaint, the following facts led to the filing of this
of FauxPhone in 2012
Around June 2012, Mr. Aeron authored and prototyped an IPhone
software application (the “FauxPhone App”) which
provided a valuable telecommunications interface. The
FauxPhone App, written primarily as a “client
side” application, was not distributed, commercialized,
or licensed when it was developed.
Aeron put the FauxFone App on the backburner because, in June
2013, he began an MBA program at Cornell University where he
met Mr. Lau, Mr. Wang, Mr. Bresolin, and Mr. Dellerba.
of the BiziSpot App in 2014
Around February 2014, Mr. Aeron and Mr. Lau began a software
project at Cornell called BiziSpot (the “BiziSpot
App”). The BiziSpot App sought to simplify the
appointment booking of service providers such as plumbers,
electricians, barbers, etc. The BiziSpot App is not
and was not a telecommunications application and had nothing
in common with and was entirely separate and independent from
the FauxPhone App.
While in Los Angeles around July 2014, Mr. Aeron discussed
the formation of a company to support the development and
marketing of the BiziSpot App with his Cornell classmate Mr.
February 2015, Mr. Bresolin demanded a 40 percent interest in
the entity that would market the BiziSpot App. The details
were to be worked out later.
May 2015, Mr. Aeron, Mr. Lau, Mr. Bresolin and Mr. Dellerba
attended graduation at Cornell. Mr. Bresolin and Mr. Aeron
again discussed BiziSpot.
June 2015, Mr. Aeron, Mr. Lau, Mr. Bresolin and Mr. Dellerba
met in Montreal to discuss the BiziSpot App. On day one of
the Montreal meetings, Mr. Aeron and Mr. Bresolin met
privately and verbally agreed to create a company to market
the BiziSpot App (this entity will be referred to as the
“BiziSpot Venture”). The BiziSpot App and the
BiziSpot Venture are collectively referred to as
“BiziSpot.” Mr. Bresolin and Mr. Aeron agreed
that the value of the BiziSpot Venture would be $1 million.
They further agreed that Mr. Aeron's contributions to
date would be valued at $600, 000 (60 percent ownership) and
that Mr. Bresolin would contribute $400, 000 in cash (40
percent ownership). When bringing on any more partners, their
respective shares would be diluted pro rata. The
agreement was verbal, not written. Mr. Bresolin never
contributed a penny of the promised $400, 000 to the BiziSpot
the second day of Montreal meetings, Mr. Aeron and Mr.
Bresolin decided to give Mr. Lau and Mr. Dellerba 4 percent
each in the BiziSpot Venture. Thus, the ownership breakdown
for BiziSpot would be: Mr. Aeron at 55.2 percent; Mr.
Bresolin at 36.8 percent; Mr. Dellerba at 4 percent and Mr.
Lau at 4 percent. Again, there was no written agreement.
July 2, 2015, Mr. Aeron registered “BiziSpot,
Inc.” as the entity for the BiziSpot Venture with the
Washington Secretary of State. Since Mr. Bresolin had not
contributed the $400, 000 as promised, BiziSpot, Inc. was
filed only in Mr. Aeron's name. A copy of this
registration is attached as Exhibit 1.
mid-July 2015, three of the classmates met in Seattle to
discuss the BiziSpot Venture.
Bresolin Declines Participation in FauxPhone App
During dinner the night of July 15, 2015, Mr. Aeron showed
Mr. Bresolin the FauxPhone App from 2012. Mr. Aeron asked Mr.
Bresolin if Mr. Bresolin was interested and offered to let
Mr. Bresolin purchase a 10 percent interest in whatever came
from the FauxPhone App for $150, 000. Mr. Bresolin declined
and said he was not interested. His only interest was in the
After Mr. Bresolin's rejection of participation in the
FauxPhone App, Mr. Aeron decided to change the name from
FauxPhone to DialMask and he registered the domain name
“DialMask.com” on July 17, 2015.
Dellerba arrived in Seattle on July 18 and the classmates
spent the day working through the business plan, financial
plan and app features for the BiziSpot App.
Dellerba left Seattle on July 19 and Mr. Bresolin left
Seattle on July 21, 2015.
July 21, 2015, Mr. Aeron and Mr. Lau met with a Seattle
business owner to understand how his tanning shops managed
appointments. The feedback taught Mr. Aeron and Mr. Lau that
the market was highly competitive and that there were already
apps that offered features above and beyond what the BiziSpot
App purported to offer. Mr. Aeron and Mr. Lau concluded that,
without considerably more features, the BiziSpot App would
not be commercially viable.
August 10, 2015, Mr. Aeron, Mr. Lau, Mr. Bresolin and Mr.
Dellerba had a phone conference. Mr. Aeron discussed the
visit with the business owner and stated that he was no
longer interested in BiziSpot because it was not commercially
viable. In addition, Mr. Aeron was exhausted from working
long hours and never being paid for those hours. It was clear
to Mr. Aeron that Mr. Bresolin would never invest the money
he had promised to BiziSpot.
the phone conference, Mr. Bresolin and Mr. Dellerba asked Mr.
Aeron to take some time away and reconsider. Mr. Aeron
declined and said his mind was made up.
of the DialMask App and Launch of DialMask, Inc.
August 15, 2015, during a much-needed vacation with his
family, Mr. Aeron called Mr. Lau and asked if Mr. Lau wanted
to work on DialMask. Mr. Lau agreed, and the two agreed that
Mr. Lau would own 15 percent of the venture.
days later, Mr. Aeron and Mr. Lau asked Mr. Wang, who had
digital marketing experience, to join the DialMask project
for 5 percent ownership. Mr. Wang agreed.
August 22, 2015, Mr. Aeron registered DialMask, Inc. with the
Washington Secretary of State. A copy of that registration is
attached as Exhibit 2.
August 31, 2015, Mr. Aeron, Mr. Lau and Mr. Wang signed a
written “Partners' Agreement” detailing the
ownership in DialMask, Inc. A copy ...