United States District Court, D. Colorado
Order Filed: September 22, 2014
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For Crossfit, Inc., a Delaware corporation, Plaintiff: Heather K. Kelly, Gordon & Rees, LLP-Denver, Denver, CO; Yuo-Fong Chang Amato, Gordon & Rees, LLP-San Diego, San Diego, CA.
OPINION AND ORDER ADOPTING RECOMMENDATION AND GRANTING MOTION FOR DEFAULT JUDGMENT
Marcia S. Krieger, Chief United States District Judge.
THIS MATTER comes before the Court pursuant to the Magistrate Judge's September 3, 2014 Recommendation (# 30) that the Plaintiff's Motion for Default Judgment (# 18) against Defendant Jenkins be granted (and the claims against the Doe Defendants be dismissed). More than 14 days have passed since the Recommendation was served and no party has filed Objections. The Court has reviewed the matter de novo, as it otherwise would pursuant to Fed.R.Civ.P. 72(b), and upon such de novo review, reaches the same conclusions as the Magistrate Judge for essentially the same reasons. Accordingly, the Court ADOPTS the Recommendation (# 30) and GRANTS the Plaintiff's Motion for Default Judgment (# 18). Judgment by default in favor of the Plaintiff, consistent with that set forth in the Recommendation, shall issue contemporaneously. The claims against the Doe Defendants are DISMISSED.
PURSUANT TO the Court's September 22, 2014 Opinion and Order Adopting Recommendation and Granting Motion for Default Judgment, judgment by default is granted in favor of the Plaintiff, Crossfit, Inc., and against the Defendant, Murrell A. Jenkins, in the amount of $122,780.09. That sum shall bear post-judgment interest from today's date until paid pursuant to 28 U.S.C. § 1961.
Mr. Jenkins shall effect the transfer of ownership of the domain name " crossfitnutrition.com" to the Plaintiff within 10 days of the date of this Judgment. If such transfer has not occurred by that time, the registrar of that domain shall have the authority to make that transfer upon the Plaintiff's demand pursuant to 15 U.S.C. § 1125(d)(1)(C).
Mr. Jenkins is further permanently enjoined, directly or indirectly, from infringing upon the Plaintiff's mark " CROSSFIT" in any way.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE UPON RECONSIDERATION PURSUANT TO ORDER DATED APRIL 21, 2014 (DOC. # 27)
Craig B. Shaffer, United States Magistrate Judge.
This civil action comes before the court for reconsideration of Plaintiff's " . . . Motion for Entry of Default Judgment and Permanent Injunction," pursuant to the Order Declining Report and Recommendations (Doc. # 27). The court declined to adopt the Recommendation filed on March 28, 2014 for several reasons: " the findings of fact were not limited to well pled allegations,
. . . the Motion for Default Judgment was not served upon Defendant Murrell" , several Doe Defendants are named, and " there has been no evidentiary determination of the loss that has or will be suffered" under " [f]our different theories for recovery [that] have been alleged, for which the measure of loss/damages vary." (See Order (Doc. # 27)).
I. Statement of the Case
Plaintiff CrossFit, Inc. (" CrossFit" ) is principally engaged in the business of fitness training and consulting. ( See Complaint (Doc. # 1) at ¶ 5). CrossFit owns protectable interests in several registered United States trademarks and service marks comprised of the term " CrossFit." ( See id.). Defendant Murrell A. Jenkins a/k/a " Jake" Jenkins (" Jenkins" ) is an individual doing business as " CrossFit Nutrition." ( See Doc. # 1 at ¶ 6). Jenkins owns and controls a website with the domain name www.crossfitnutrition.com, which offers vitamins, supplements, and nutrition products for sale. ( See id.). This case arises out of Jenkins's alleged infringement of the CrossFit marks, among other unlawful conduct. CrossFit alleges that Jenkins utilizes the CrossFit marks to trade on the goodwill associated with the CrossFit name through the website with the domain name www.crossfitnutrition.com. In its Complaint, CrossFit alleged four Counts for violations of the Lanham Act, including false designation of origin, trademark infringement, trademark dilution, and cyberpiracy under the Anticybersquatting Consumer Protection Act (" ACPA" ). ( See Doc. # 1 at 6-10 of 12). In its Motion for Entry of Default Judgment and Permanent Injunction, CrossFit seeks default judgment against Defendant Jenkins on only Count IV of the Complaint for violation of the ACPA, 15 U.S.C. § 1125(d). In Count IV, CrossFit seeks monetary relief of $100,000 in statutory damages $18,996.00 in attorney's fees, and $3784.09 in costs, for a total of $122,780.09. ( See Doc. # 19). CrossFit also seeks an order requiring the domain name registrar to transfer the www.crossfitnutrition.com domain to CrossFit, and a permanent injunction precluding Jenkins from using the CrossFit marks. ( See id.).
Fed. R. Civ. P. 55 provides for entry of default judgment " [w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend . . . ." McNeil v. United States, No. 01-5007, 12 F.App'x 805, 807 n. 1 (10th Cir. May 2, 2001). See also Jackson v. FIE Corp., 302 F.3d 515, 525 (5th Cir. 2002) (" [D]efendant by his default, admits the plaintiff's well-pleaded allegations of fact, is precluded from challenging those facts by the judgment, and is barred from contesting on appeal the facts thus established." ) (internal quotation marks and citations omitted); Buchanan v. Bowman, 820 F.2d 359, 361 (11th Cir. 1987) (" The effect of a default judgment is that the defendant admits the plaintiff's well-pleaded allegations of fact, is concluded on those facts by the judgment, and is barred from contesting on appeal the facts thus established." ) (internal quotation marks omitted).
A. Subject Matter Jurisdiction, Venue, and Personal Jurisdiction
" In determining whether a default judgment is warranted, the Court must first consider whether it has jurisdiction over the subject matter and the defendants." ProCom Supply, LLC v. Langner, No. 12-cv-00391-MSK-KMT, 2013 WL 4510243, at * 6 (D. Colo. Aug. 24, 2013) (citations omitted). Here, the court has subject matter jurisdiction over CrossFit's claims pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § § 1338(a) and (b), as the claims
arise under the trademark laws of the United States. Venue is proper in this court pursuant to 28 U.S.C. § § 1391 and 1400.
Personal jurisdiction over the defendant is required before a default judgment in a civil case may be entered. See Hukill v. Okla. Native Am. Domestic Violence Coalition, 542 F.3d 794, 797 (10th Cir. 2008) (" [A] default judgment in a civil case is void if there is no personal jurisdiction over the defendant." ). See also Dennis Garberg & Assocs. v. Pack-Tech Int'l Corp., 115 F.3d 767, 771 (10th Cir. 1997) (" [J]udgment by default should not be entered without a determination that the court has jurisdiction over the defendant." ). " Plaintiff bears the burden of establishing personal jurisdiction, but where, as here, the issue is determined on the basis of the pleadings and affidavits, that burden may be met by a prima facie showing." Sharpshooter Spectrum Venture, LLC v. Consentino, No. 09-cv-0150-WDM-KLM, 2011 WL 3159094, at *2 (D. Colo. July 26, 2011) (citing Shrader v. Biddinger, 633 F.3d 1235, 1239 (10th Cir. 2011)).
" Where, as here, the underlying action is based on a federal statute, the court applies state personal jurisdiction rules if the federal statute does not specifically provide for national service of process." Toytrackerz LLC v. Koehler, No. 08-2297-GLR, 2009 WL 1505705, at * 3 (D. Kan. May 28, 2009). Because neither the Lanham Act, 15 U.S.C. § 1051 et seq., nor the Anti--Cybersquatting Consumer Protection Act (" ACPA" ), 15 U.S.C. § 1125(d), provide for nationwide service of process, the court looks to the Colorado long-arm statute to determine whether personal jurisdiction is proper. Toytrackerz, 2009 WL 1505705, at * 4.
After unsuccessful attempts to informally resolve this matter, CrossFit filed this action on May 8, 2013. ( See Doc. # 1). On June 16, 2013, Jenkins was personally served with the summons and complaint. ( See " Proof of Service" (Doc. # 8)). His responsive pleading was due on or before July 8, 2013. See Fed.R.Civ.P. 12(a)(1)(A)(i). To date, Jenkins has not appeared, filed an Answer, or otherwise responded in this action. Upon CrossFit's motion the Clerk of the Court entered default on August 1, 2013. ( See Docs. # 12, # 13).
The well-pleaded allegations and record before the court indicate that Jenkins is a resident of Colorado. Colorado Secretary of State records reflect that Jenkins's company, Aaron Corporate Enterprises, Inc., was formed and is located in Colorado. ( See Exhibit 3 to Declaration of You-Fong C. Amato (Doc. # 21-3)). As registered agent for the corporation, Jenkins provided his address in Monument, Colorado. ( See id.). Jenkins is subject to personal jurisdiction in this court as a resident of Colorado.
Even if Jenkins were not a Colorado resident, the court would have personal jurisdiction over him based on his activities in this state. Colorado's long arm statute provides that a defendant is subject to personal jurisdiction where he or she engages in the " transaction of any business within this state" or commits a " tortious act within this state." Colo. Rev. Stat. § 13-1-124. Jenkins incorporated Aaron Corp. in Colorado. Jenkins and Aaron Corp. are the registrants for www.crossfitnutrition.com. ( See Exhibit 2 to Declaration of You-Fong C. Amato (Doc. # 21-2)). Jenkins has admitted to " owning" the website, offered it for sale to CrossFit, and threatened to auction the domain. ( See Declaration of Marshall S. Brenner (Doc. # 20) at ¶ 11); Exhibit D to Declaration of Marshall S. Brenner (Doc. # 20-4)). Aaron
Corp. is listed as the " publisher" for the marketing affiliate program for the product companies whose products are listed at www.crossfitnutrition.com. ( See Exhibits 5-7 to Declaration of You-Fong C. Amato (Docs. # 21-5, # 21-6, # 21-7)). Under Colorado's long arm statute, Jenkins is subject to personal jurisdiction in Colorado based on the transaction of business and the commission of a tort in Colorado. See Toytrackerz, 2009 WL 1505705, at * 5 (holding that plaintiffs " made a prima facie showing that the alleged tortious actions of the Individual Defendants subject them to jurisdiction under the 'commission of a tortious act' provision of the Kansas long-arm statute. . . The allegedly tortious conduct includes common law trademark infringement . . ." ); Sys. Designs, Inc. v. New CustomWare Co., 248 F.Supp.2d 1093, 1097 (D. Utah 2003) (" Trademark infringement is a tort. In a tort case, . . . jurisdiction may attach if the defendant's conduct is aimed or has an effect in the forum state." ).
B. Service of the Motion
In the context of a default judgment motion, the only service requirements are those pertaining to the service of the summons and complaint. Federal Rule of Civil Procedure 55(b)(2) states that service of an application for default judgment is required only " [i]f the party against whom a default judgment is sought has appeared personally or by a representative . . ." Fed.R.Civ.P. 55(b)(2). See also, e.g., Hukill, 542 F.3d 794, 799, 802 (10th Cir. 2008) (setting aside default judgment due to ineffective service of summons and complaint); Nikwei v. Ross School of Aviation, Inc., 822 F.2d 939, 945-46 (10th Cir. 1987) (affirming the grant of default judgment against ...