Kci Newport, Inc. v. Smoke Tokes, LLC
| Decision Date | 17 May 2016 |
| Docket Number | CV 15-07694 RSWL (PJWx) |
| Court | U.S. District Court — Central District of California |
| Parties | KCI NEWPORT, INC., a California corporation; and KASSIR IMPORT-EXPORT CO., INC., a California corporation, Plaintiffs, v. SMOKE TOKES, LLC, a California limited liability company; SMOKE WORLD, INC., a California corporation; CC INTERNATIONAL TRADING, INC., a California corporation; MIGUEL RUIZ, an individual and doing business as EAST SIDE SMOKE SHOP; WESTSIDE TRADING LLC, a California limited liability company; and DOES 1 through 50, Defendants. |
Currently before the Court is Plaintiff KCI Newport, Inc.'s ("KCI") and Kassir Import-Export Co., Inc.'s ("Kassir") (collectively "Plaintiffs") Application for Default Judgment [50]. In their Application, Plaintiffs seek damages, injunctive relief, and attorneys' fees. The present application arises from a trademark infringement action against Defendants. For the reasons set forth below, the Court GRANTS Plaintiffs' Application [50].
Plaintiffs are California corporations with their principal places of business in Commerce, California. First Amended Complaint ("FAC") ¶ 1, ECF No. 13. Kassir is a wholesaler and distributor of general merchandise including smoking supplies, operating its business since 1995. Id. at ¶ 12.
Defendants CC International Trading, Inc. ("CC International Trading"), Smoke Tokes, LLC ("Smoke Tokes"), and Smoke World, Inc. ("Smoke World") are California corporations with their principal places of business in Los Angeles, California. Id. at ¶¶ 2-4. Defendant Miguel Ruiz is an individual residing in, and doing business as East Side Smoke Shop in Los Angeles, California. Id. at ¶ 5. Defendant Westside Trading LLC ("Westside Trading") is a California limited liability company with its principle place of business in Los Angeles, California. Id. at ¶ 6.
Kassir has a registered trademark with the United States Patent and Trademark Office ("USPTO") for a mark featuring the words "NEWPORT ZERO" (Registration No. 4,492,372), including graphic elements such as a distinctive red flame and blue rectangle, along withother distinctive graphic elements of its packaging such as "a design consisting of a tube with flints spaced aroudn the top in different levels (the "Mark"). Id. at ¶¶ 14-16; see FAC Ex. C. The Mark covers "cans containing butane gas." Id.
KCI was formed on March 6, 2013. Id. at 17. Kassir has, since its conception, distributed butane lighter gas under the Mark, as well as under the unregistered word mark "NEWPORT ZERO" (the "Trade Name").
In their FAC, Plaintiffs allege that Defendants have been importing and/or distributing glass pipes designed for smoking marijuana and marijuana derived combustibles that bear graphics closely similar to their Mark, except that the word "Newport" in the graphic is replaced with the word "Newpipe" ("Infringing Pipes"). Id. at ¶ 18. Plaintiffs believe that the Infringing Pipes are being imported from China by Defendant CC International Trading Inc., and are being sold in stores and marketed, advertised and/or sold online by the remaining Defendants listed in this action. Id. at ¶ 19. Plaintiffs allege that consumers within this judicial district have in fact purchased Defendants' Infringing Pipes. Id. Plaintiffs have not consented to Defendants' use of the Mark or the Trade Name on the Infringing Pipes. Id. at ¶ 22.
//
//
On September 30, 2015, Plaintiffs filed their Complaint [1] for injunctive and monetary relief against Defendants, alleging violations of the Lanham Act, as well as common law unfair competition and unfair competition pursuant to the California Business and Professions Code. On October 14, 2015, Plaintiffs' Complaint was served on Defendants [9, 10, 11, 12]. On October 22, 2015, Plaintiffs filed their First Amended Complaint ("FAC") [13]. On November 6, 2015, the FAC was served on Defendants [16, 17, 18, 19, 20].
On November 10, 2015, Plaintiffs requested that the clerk of court enter default against Defendants CC International Trading, Miguel Ruiz, and Smoke World [23]. On November 12, 2015, the clerk entered default against Smoke World, Miguel Ruiz, and CC International Trading [24]. On November 20, 2015, Plaintiff requested that the clerk of court enter default against Westside Trading [25]. On November 23, 2015, the clerk entered default against Westside Trading [26].
On November 25, 2015, Plaintiffs and Smoke Tokes entered into a stipulation to allow Plaintiffs to amend their First Amended Complaint, correcting some minor issues that Smoke Tokes raised in a conference of counsel [27]. On December 2, 2015, Plaintiffs filed their Second Amended Complaint ("SAC") [29]. On December 17, 2015, Plaintiffs requested that the clerk of court enter default against Defendant Smoke Tokes[30]. On December 17, 2015, Plaintiffs filed a motion withdrawing their request that the clerk enter default against Smoke Tokes [31]. On December 21, 2015, Smoke Tokes filed their Answer to Plaintiffs' SAC [32].
On December 21, 2015, Smoke Tokes filed a Counterclaim against Counter-Defendants and Third Party Defendants KCI, Kassir, and Keen Private Label Limited ("Keen") [33]. On December 23, 2015, this Court ordered Smoke Tokes' Counterclaim and Third-Party Complaint [33] to be stricken for failure to comply with the Court's Local Rules, General Orders, and/or Case Management Order [37]. On December 23, 2015, Smoke Tokes again filed a Counterclaim against Plaintiffs/Counter-Defendants KCI and Kassir . [39]. On December 23, 2015, Smoke Tokes also filed a Third Party Complaint against Third-Party Defendant Keen [40]. On January 11, 2016, Plaintiffs/Counter-Defendants filed an Answer to Smoke Tokes' Counterclaim [44]. On January 11, 2016, Defendant/Counterclaimant Smoke Tokes filed a Stipulation to Clarify its Counterclaim [45].
On February 19, 2016, Plaintiffs filed a Motion for Default Judgment against Defendants [50]. On April 7, 2015, Plaintiffs filed a Stipulation to Dismiss all claims against Smoke Tokes, and all counter-claims against counter-Defendants KCI and Kassir. [57]. On April 8, 2016, this Court granted Plaintiffs' Stipulation [58], dismissing all claims against Smoke Tokes, and all counterclaims by Smoke Tokes againstPlaintiffs. On May 6, 2016, this Court granted the parties' stipulation to dismiss all claims against Defendant Miguel Ruiz, doing business as Eastside Smoke Shop [60].
Plaintiffs now bring the instant Motion for Default Judgment [50] against the remaining Defendants in this action, Smoke World, Westside Trading, and CC International Trading.
Default judgment is within the discretion of the district court. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980); see Fed. R. Civ. P. 55. A party applying to the Court for default judgment must satisfy both procedural and substantive requirements.
Procedurally, the requirements set forth in Federal Rules of Civil Procedure Rules 55 and 56, and Local Rule 55-1 must be met. See Vogel v. Rite Aid Corp., 992 F. Supp. 2d 998, 1006 (C.D. Cal 2014). Local Rule 55-1 provides: "When an application is made to the Court for a default judgment, the application shall be accompanied by a declaration in compliance with Fed. R. Civ. P. 55(b)(1) and/or (2) and include the following: (a) When and against what party the default was entered; (b) The identification of the pleading to which default was entered; (c) Whether the defaulting party is an infant or incompetent person, and if so, whether that person isrepresented by a general guardian, committee, conservator or other representative; (d) That the Service Members Civil Relief Act, 50 U.S.C. § 521, does not apply; and (e) That notice has been served on the defaulting party, if required by Federal Rule of Civil Procedure 55(b)(2)." L.R. 55-1.
Substantively, the Ninth Circuit has directed that courts consider the following factors, referred to as the Eitel factors in deciding whether to enter default judgment: "(1) the possibility of prejudice to plaintiff, (2) the merits of plaintiff's substantive claim, (3) the sufficiency of the complaint, (4) the sum of money at stake in the action, (5) the possibility of a dispute concerning the material facts, (6) whether defendant's default was the product of excusable neglect, and (7) the strong public policy favoring decisions on the merits." See Vogel, 992 F. Supp. 2d at 1005; see also Eitel v. McCool, 782 F.2d 1470, 1471071 (9th Cir. 1986). Additionally, "[w]hen entry of judgment is sought against a party who has failed to plead or otherwise defend , a district court has an affirmative duty to look into its jurisdiction over both the subject matter and the parties." In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999).
In analyzing these factors, the Court may base its judgment entirely upon the affidavits submitted by the parties. Davis v. Fendler, 650 F.2d 1154, 1161 (9thCir. 1981). If the Court determines that the defendant is in default, "'the factual allegations of the complaint, other than those relating to damages, are taken as true.'" Televideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-918 (9th Cir. 1987) (quoting Geddes v. United Fin. Group, 559 F.2d 557, 560 (9th Cir. 1977)). Additionally, "[w]hen entry of judgment is sought against a party who has failed to plead or otherwise defend, a district court has an affirmative duty to look into its jurisdiction over both the subject matter and the parties." In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999).
1. Application for Default Judgment
Plaintiffs seeks entry of default judgment against Defendants Smoke World, CC International Trading, and Westside Trading for failure to respond or otherwise defend themselves in this matter. See generally Appl., ECF No. 50....
To continue reading
Request your trial