United States District Court, W.D. Washington, Seattle
AMAZON.COM, a Delaware corporation; and VERA BRADLEY DESIGNS, INC., an Indiana corporation, Plaintiff,
LINDA KURTH, Defendant.
ORDER GRANTING PLAINTIFFS' MOTION FOR DEFAULT
Honorable Richard A. Jones United States District Judge.
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.
Amazon.com (“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.
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.
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).
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).
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).
discussed below, the Court has considered each of the
Eitel factors and finds they weigh in favor of
granting default judgment.
Application of Eitel Factors
Merits of the Claims, Sufficiency of the Complaint,