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United States District Court, W.D. Washington, Seattle

July 31, 2019

AMAZON.COM, a Delaware corporation; and VERA BRADLEY DESIGNS, INC., an Indiana corporation, Plaintiff,
LINDA KURTH, Defendant.


          Honorable Richard A. Jones United States District Judge.


         Before the Court is Plaintiffs' Motion for Default Judgment. Dkt. # 12. Defendant Linda Kurth was properly served with a Complaint and Summons, but has not filed a response or otherwise appeared in this action. Dkt. # 9. For the following reasons, the Motion is GRANTED.


         Plaintiffs (“Amazon”) and Vera Bradley Designs, Inc. (“Vera Bradley”) allege Defendant Kurth owns and operates an Amazon Seller Account where she sells counterfeit Vera Bradley products. Dkt. # 1 at 9. On or around June 29, 2017, Vera Bradley received letters from U.S. Customs and Border Protection (CBP) concerning a seizure of four imported shipments. Dkt. # 13 at 4-7. The shipments allegedly contained products with counterfeit Vera Bradley trademarks and identified Defendant as the importer on record. Id. Soon thereafter, Vera Bradley informed Amazon that Kurth was advertising and selling purportedly genuine Vera Bradley products on Amazon's online platform. Dkt. # 14. On or around August 4, 2017, Amazon ordered a “Vera Bradley Midnight with Mickey Campus Backpack” through Kurth's Amazon Seller Account and, upon inspection, confirmed the purchased bag was a counterfeit. Dkt. # 13, ¶ 5; Dkt. # 14, ¶ 5 . In April 2018, Vera Bradley ordered a “Vera Bradley Campus Backpack” from eBay seller Linda Kurth that was also a counterfeit. Dkt. # 13, ¶ 6. Amazon's records reflect that Kurth sold $613, 818.77 dollars of Vera Bradley products before Amazon blocked her account from further sales. Dkt. # 14, ¶ 6.

         On March 8, 2018, Plaintiffs filed a Complaint against Defendant for advertising, marketing, selling, and distributing counterfeit Vera Bradley products and for breach of contract. Dkt. # 1. On March 16, 2018, Kurth was served. Dkt. # 9. On or around April 3, 2018, Kurth responded to Plaintiffs' counsel by letter and admitted to purchasing the majority of the accused products from other sellers on eBay. Dkt. # 16. She claimed that she did know the products were counterfeits. Id. at 10. Since April 2018, Kurth has not communicated with Plaintiffs' counsel or appeared in this litigation. Dkt. # 12 at 3. On July 17, 2018, Plaintiffs moved for default against Kurth. Dkt. # 11. On September 12, 2018, Plaintiffs moved to enter default judgment against Kurth on all claims, seeking actual and statutory damages, a permanent injunction and attorney's fees. Dkt. # 12.


         At the default judgment stage, the court presumes all well-pleaded factual allegations are true, except those related to damages. TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir.1987); see also Fair House. of Marin v. Combs, 285 F.3d 899, 906 (9th Cir. 2002). Although the entry of default judgment under Rule 55(b) is “an extreme measure, ” disfavored cases should be decided upon their merits whenever reasonably possible. Cmty. Dental Servs. v. Tani, 282 F.3d 1164, 1170 (9th Cir. 2002); also see Westchester Fire Ins. Co. v. Mendez, 585 F.3d 1183, 1189 (9th Cir. 2009).

         In addition, Federal Rule of Civil Procedure 55(b)(1) permits the court to enter default judgment when the plaintiff's claim “is for a sum certain or a sum that can be made certain by computation.” Fed.R.Civ.P. 55(b)(1). In moving the court for default judgment, a plaintiff must submit evidence supporting the claims for a particular sum of damages. Fed.R.Civ.P. 55(b)(2)(B). If the plaintiff cannot prove that the sum it seeks is “a liquidated sum or capable of mathematical calculation, ” the court must hold a hearing or otherwise ensure that the damage award is appropriate, reasonable and demonstrated by evidence. Davis v. Fendler, 650 F.2d 1154, 1161 (9th Cir. 1981); see also Getty Images (US), Inc. v. Virtual Clinics, 2014 WL 358412 (W.D. Wash. 2014). In determining damages, a court can rely on the declarations submitted by the plaintiff. Dr. JKL Ltd. v. HPC IT Educ. Ctr., 749 F.Supp.2d 1046 (N.D. Cal. 2010). Where there is evidence establishing a defendant's liability, the court has discretion, not an obligation, to enter a default judgment. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980); see also Alan Neuman Productions, Inc. v. Albright, 862 F.2d 1388, 1392 (9th Cir. 1988). Since deciding for or against default judgment is within the court's discretion, a defendant's default does not de facto entitle a plaintiff to a court-ordered judgment. Curtis v. Illumination Arts, Inc., 33 F.Supp.3d 1200, 1210-11 (W.D. Wash. 2014).


         In exercising its discretion, the Court considers the “Eitel” factors: (1) the substantive merits of plaintiff's claims, (2) the sufficiency of the claims raised in the complaint, (3) the possibility of prejudice to the plaintiff if relief is denied, (4) the sum of money at stake, (5) the possibility of a dispute concerning material facts, (6) whether the default was due to excusable neglect, and (7) the strong policy favoring decisions on the merits when reasonably possible. Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986).

         As discussed below, the Court has considered each of the Eitel factors and finds they weigh in favor of granting default judgment.

         A. Application of Eitel Factors

         i. Merits of the Claims, Sufficiency of the Complaint, ...

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