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Blumedia Inc. v. Sordid Ones BV

United States District Court, Tenth Circuit

November 18, 2013

BLUMEDIA INC., a Colorado corporation, a/k/a Intense Cash d/b/a BrokeStraightBoys.com and d/b/a BrokeStraightGuys.com, Plaintiff,
v.
SORDID ONES BV d/b/a Gaygravy.com; DEECASH d/b/a TripleXCash and d/b/a TripleXCash.com and d/b/a MitZasInc.com and d/b/a DeeDevelopments.com d/b/a AdultDevelopments.com and d/b/a Studpay.com; JOHN DOES 1-20; JANE DOES 1-20; XYZ COMPANIES 1-20; and Defendants.

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

BOYD N. BOLAND, Magistrate Judge.

This matter arises on the plaintiff's Motion for Default Judgment [Doc. # 63, filed 6/26/2013]. I respectfully RECOMMEND that the Motion for Default Judgement be GRANTED against defendants, Sordid Ones BV and DeeCash, as specified.

In order to obtain a judgment by default, a party must follow the two-step process described in Fed.R.Civ.P. 55. First, it must obtain an entry of default from the Clerk of the Court under Rule 55(a); then, after default has been entered, it must seek default judgment pursuant to Rule 55(b).

Rule 55(a), Fed. R. Civ. P., allows a default to enter against a party when it "has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise...." This action was commenced by the filing of a Complaint [Doc. # 1] on April 1, 2011. Service was perfected against Sordid Ones BV and DeeCash on August 7, 2011. Certificate of Service [Doc. # 7]. Sordid Ones BV and DeeCash failed to answer or otherwise respond to the Complaint within the time allowed.

The plaintiff filed an Amended Complaint [Doc. # 30] on August 13, 2012. The Amended Complaint was served on Sordid Ones BV and DeeCash on January 8, 2013. Sordid Ones BV and DeeCash did not answer or otherwise respond to the Amended Complaint within the time allowed and have never answered or responded. The Clerk entered default against Sordid Ones BV and DeeCash on March 6, 2013. Clerk's Entry of Default [Doc. # 61].

"Once the default has been established, defendant has no further standing to contest the factual allegations of plaintiff's claim for relief." 10A Wright, Miller & Kane, Federal Practice and Procedure: Civil 3d § 2688 at p. 63; accord Olcott v. Delaware Flood Co. , 327 F.3d 1115, 1125 n. 11 (10th Cir. 2003)(stating that "[a]fter an entry of default, a defendant cannot defend a claim on the merits"). In addition:

Even after default, however, it remains for the court to consider whether the unchallenged facts constitute a legitimate cause of action, since a party in default does not admit mere conclusions of law.... Once the court determines that a judgment by default should be entered, it will determine the amount and character of the recovery that should be awarded.

10A Wright, Miller & Kane, supra. A default judgment "must normally be viewed as available only when the adversary process has been halted because of an essentially unresponsive party." Ruplinger v. Rains , 946 F.2d 731, 732 (10th Cir. 1991).

Jurisdiction exists under the Lanham Act, 15 U.S.C. § 1121, and 28 U.S.C. § 1331 (federal question).

Sordid Ones BV and DeeCash are artificial entities and are not infants, incompetent persons, officers or agencies of the United States or the State of Colorado, or in the military service.

The unrebutted allegations of the Amended Complaint establish that Sordid Ones BV and DeeCash engaged in conduct which infringed the plaintiff's trademarks and trade dress for "broke straight boys, " "BrokeStraightBoys.com, " and "BrokeStraightGuys.com." The plaintiff seeks the following relief:

(1) Money damages based on Sordid Ones BV and DeeCash's infringement of the plaintiff's trade dress and trademarks;

(2) A permanent injunction prohibiting Sordid Ones BV and DeeCash from infringing the plaintiff's trade dress and trademarks;

(3) Statutory damages of $100, 000.00 under the Anti-Cybersquatting Protection Act, 15 U.S.C. § 1125(d), "for each of the two domains ...


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