United States District Court, D. Columbia.
For MARK GREENE, Plaintiff: Lita T. Rosario, LEAD ATTORNEY, Washington, DC; Johnnie D. Bond, Jr., BOND LAW FIRM, PLLC, Washington, DC.
[116 U.S.P.Q.2d 1920] MEMORANDUM OPINION
COLLEEN KOLLAR-KOTELLY, United States District Judge.
Plaintiff Mark Greene is a performer, an original member of the musical group known as " The Moments," and the owner of the federally-registered trademark, " The Moments." In this case, Plaintiff brings a claim for trademark infringement and counterfeiting under the Lanham Act against Defendant William " Billy" Brown, a member of the performing
[116 U.S.P.Q.2d 1921] group " Ray, Goodman & Brown." Plaintiff seeks monetary and injunctive relief. Plaintiff alleges that Defendant wrongfully used the " Moments" trademark in advertising live performances of his performing group and in promoting the group Ray, Goodman & Brown on the Internet. Before the Court is Plaintiff's  Renewed Motion for Default Judgment. Upon consideration of the pleadings, the relevant legal authorities, and the record as a whole, the Court GRANTS IN PART and DENIES IN PART Plaintiff's  Renewed Motion for Default Judgment. The Court will enter a default judgment in the amount of $83,606.60 in Plaintiff's favor, including $82,500 in treble profits and $1,106.60 in costs, based on the allegations in the complaint and the documentation that Plaintiff submitted in support of the Renewed Motion for Default Judgment. The Court denies Plaintiff's request for a permanent injunction because Plaintiff has not shown a threat of continuing harm. The Court denies without prejudice Plaintiff's request for attorneys' fees because Plaintiff has not provided the documentation necessary for the Court to issue such an award.
Plaintiff and Defendant are both recording and performing artists. Am. Compl. ¶ ¶ 3-4. Plaintiff was an original member of The Moments, a recording and performing musical group. Id. ¶ 6. Plaintiff is the owner of the federally-registered trademark for The Moments, Registration No. 2656413, Serial No. 76364446 (the " Moments Mark" ). Id. ¶ 7. Plaintiff acquired the trademark on December 3, 2002, and renewed it for a second ten-year period on September 8, 2012. Id. ¶ ¶ 8-9. Plaintiff uses the Moments Mark to promote his singing group, which he advertises as " The Moments, featuring Mark Greene." Id. ¶ 10. Defendant is the last surviving original member of the performing group, Ray, Goodman & Brown. Id. ¶ 12.
Defendant has used the Moments Mark to advertise live performances of his singing group, Ray, Goodman & Brown, as " The Moments." For example, Defendant used the Moments Mark to advertise live performances in San Diego, California, at the Cox Arena, on or about February 2010; live performances in Universal City, California, at the Gibson Amphitheatre, on or about April 2011; and a live performance at The Arc Theater in the District of Columbia on December 17, 2011. Id. ¶ ¶ 15, 17, 18. In addition, Defendant has used the Moments Mark on the internet, specifically on the Ray, Goodman & Brown MySpace and Facebook pages, as well as on YouTube, to advertise and promote Ray, Goodman & Brown. Id. ¶ 16.
After Plaintiff discovered that Defendant was using the Moments Mark to advertise his performing group, Plaintiff, through counsel, sent Defendant several cease and desist notices requesting that Defendant cease using the Moments Mark. Id. ¶ 14. Specifically, Plaintiff sent cease and desists notices on April 12, 2010, and on April 19, 2011. Id., Ex. 1(b). Defendant continued to use the Moments Mark to advertise his group after Plaintiff sent these cease and desist notices. See id. ¶ ¶ 15-18.
Plaintiff filed this action on December 16, 2011. Defendant Brown was served personally in Washington, D.C., on December 17, 2011. Affidavit of Service by Private Process Server, ECF No. 3. After Defendant Brown failed to file a timely answer or otherwise respond to the complaint, Plaintiff moved for the entry of default, see ECF No. 6, and the Clerk of the Court entered default as to Defendant Brown on April 4, 2012. On April 12, 2012, Plaintiff filed his first Motion for Entry of Default Judgement, ECF No. 9. The Court denied that motion without prejudice because it did not specify the damages sought, and it did not include any evidentiary support. See Order dated April 30, 2012, ECF No. 12. Plaintiff filed a  Revised Motion for Default Judgment, including evidentiary support, on October 15, 2013. The Court denied without prejudice that Revised Motion for Default Judgment, as well, due to a fundamental inconsistency between Plaintiff's Complaint and the Revised Motion for Default Judgment. See Order dated May 27, 2014, ECF No. 24, at 2. Specifically, while Plaintiff sought damages in the Revised Motion for Default Judgment under 15 U.S.C. § 1114 of the Lanham Act,
[116 U.S.P.Q.2d 1922] Plaintiff never cited this provision or asserted a claim under this provision in the original Complaint. See id. at 2. Pursuant to the Court's orders, Plaintiff amended his Complaint and served the Amended Complaint on Defendant Brown on November 7, 2014. See Amended Affidavit of Service, ECF No. 32. Upon Plaintiff's request, the Clerk of the Court entered default as to Defendant Brown on January 13, 2015, and Plaintiffs filed the Renewed Motion for Default Judgment that is now before the Court.
II. LEGAL STANDARD
After a default has properly been entered by the Clerk, a party may move the court for a default judgment. Fed.R.Civ.P. 55(b)(2). " The determination of whether default judgment is appropriate is committed to the discretion of the trial court." Int'l Painters & Allied Trades Indus. Pension Fund v. Auxier Drywall, LLC, 531 F.Supp.2d 56, 57 (D.D.C. 2008) (citing Jackson v. Beech, 636 F.2d 831, 836, 205 U.S.App.D.C. 84 (D.C. Cir. 1980)). Upon entry of default by the clerk of the court, the " defaulting defendant is deemed to admit every well-pleaded allegation in the complaint." Int'l Painters & Allied Trades Indus. Pension Fund v. R.W. Amrine Drywall Co., Inc., 239 F.Supp.2d 26, 30 (D.D.C. 2002) (internal citation omitted). " Although the default establishes a defendant's liability, the court is required to make an independent determination of the sum to be awarded unless the amount of damages is certain." Id. (citing Adkins v. Teseo, 180 F.Supp.2d 15, 17 (D.D.C. 2001)). Accordingly, when moving for a default judgment, the plaintiff must prove its entitlement to the amount of monetary damages requested. Id. " In ruling on such a motion, the court may rely on detailed affidavits or documentary evidence to determine the appropriate sum for the default judgment." Id.
In his Renewed Motion for Default Judgment, Plaintiff requests injunctive and monetary relief. The Court discusses, in turn, its jurisdiction over this action, Defendant's liability, and the various forms of relief that Plaintiff requests.
Because Defendant has not responded or appeared, the Court will briefly address its jurisdiction. " [T]he procedural posture of a default does not relieve a federal court of its 'affirmative obligation' to determine whether it has subject-matter jurisdiction over the action." Philadelphia Indem. Ins. Co. v. Emerson, No. CV 14-301(ESH), 2015 WL 1359681, at *2, 308 F.R.D. 16 (D.D.C. Mar. 24, 2015) (quoting James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1092, 317 U.S.App.D.C. 281 (D.C. Cir. 1996)). Here, the Court has subject matter jurisdiction over the Lanham Act claim -- the sole claim in this action -- pursuant to 28 U.S.C. § 1338. In addition, " a court should satisfy itself that it has personal jurisdiction before entering judgment against an absent defendant." Mwani v. Bin Laden, 417 F.3d 1, 6, 368 U.S.App.D.C. 1 (D.C. Cir. 2005). Here, the Court is satisfied that it has personal jurisdiction over the Defendant because Defendant personally performed in a concert in the District of Columbia -- on December 17, 2011 -- that gave rise to this litigation. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (" [A] forum legitimately may exercise personal jurisdiction over a nonresident who purposefully directs his activities toward forum residents" where " the litigation results from alleged injuries that arise out of or relate to those activities." (internal quotations and citations omitted)). The Court notes, as well, that Defendant Brown was served with the original Complaint while inside the District of Columbia for the purpose of performing the aforementioned December 2011 concert, which is the subject of this litigation. See Affidavit of Service by Private Process Server, ECF No. 3. Accordingly, the Court is satisfied that it has subject matter jurisdiction over this action and that it has personal jurisdiction over Defendant Brown.
Where, as here, there is a complete " absence of any request to set aside the default or suggestion by the defendant that it has a meritorious defense, it is clear that the standard for default judgment has been satisfied." Auxier Drywall, LLC, 531 F.Supp.2d at 57 (internal quotation marks omitted). The Clerk of the Court has entered Defendant's default, and the factual allegations in the Amended Complaint are therefore taken as true. R.W. Amrine Drywall Co., Inc., 239 F.Supp.2d at 30. The Court finds that Plaintiff's Amended Complaint sufficiently alleges ...