United States District Court, D. Colorado
A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE.
matter is before the Court on plaintiff Gentle Giant Moving
Co., Inc.'s Motion for Sanctions and Application for
Default Judgment Against Defendants Jose M. Esquivel, and
Itamar Friedman, Sr. [Docket No. 42]. The Court has
jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1338
and 15 U.S.C. § 1121.
November 11, 2017, plaintiff filed this lawsuit against
defendants Gentle Giant Moving and Storage Inc., Empier
Moving and Storage Services Co. (collectively, “the
corporate defendants”), Jose M. Esquivel, and Itamar
Friedman, Sr. (collectively, “individual
defendants”) (collectively, “defendants”).
Docket No. 1. In its complaint, plaintiff alleges the
is a professional moving services business that has used its
company name, Gentle Giant Moving Co., Inc., since its
founding in 1980. Id. at 5, ¶ 12. It owns
multiple trademark registrations for the marks “GENTLE
GIANT, ” “GENTLE GIANT MOVING COMPANY, ”
and the company's logo, each registered for the uses
related to moving and relocation services. Id.,
¶ 13. Plaintiff's trademark application for
“GENTLE GIANT MOVING & STORAGE, ” which was
filed with the U.S. Patent and Trademark Office in 2013, is
pending. Id. at 6-7, ¶ 14.
alleges it became aware that a competing company was using
its GENTLE GIANT and GENTLE GIANT MOVING AND STORAGE
trademarks. Id. at 7, ¶ 16. Defendants had
registered a domain name at gentlegiantservices.com, which
was used in connection with defendants' packing, moving,
and storage services. Id., ¶ 17. Defendant
Gentle Giant Moving and Storage Inc. incorporated in the
state of Colorado under the name “Gentle giant moving
and storage inc” and registered to do business in the
state under the name “jose m esquivel.”
Id., ¶ 18. Defendant Empier Moving and Storage
Services Co. incorporated in Colorado under the name
“empier moving & storage services co” and
subsequently registered to do business in the state under the
assumed names “empire moving and storage inc” and
“gentle giant moving and storage inc.”
Id. at 8, ¶ 20.
2016, plaintiff's counsel sent cease and desist letters
to the corporate defendants,  demanding they stop using the
trademarks GENTLE GIANT, GENTLE GIANT MOVING AND STORAGE, and
any other trademark similar to the GENTLE GIANT mark.
Id., ¶ 23. Neither corporate defendant
responded. Id., ¶ 24. A second set of letters
similarly went unanswered. Id., ¶ 25.
initiated a Uniform Domain-Name Dispute-Resolution Policy
(“UDRP”) proceeding in 2017 regarding
defendants' use of the domain gentlegiantservices.com.
Id. at 9, ¶ 28. Defendants did not respond to
the complaint. Id., ¶ 29. While the action was
pending, defendants registered two new domains -
ggmovingservices.com and ggmovingreservations.com - and
established a website at ggmovingservices.com. Id.,
¶ 31. The domain arbitrator issued a decision ordering
the domain gentlegiantservices.com to be transferred from
defendants to plaintiff. Id., ¶ 29. Defendants
continued to use that domain until the transfer took place.
Id., ¶ 30.
alleges that it has received complaints from multiple
individuals who believed they had hired plaintiff but, in
reality, had hired defendants and were unsatisfied with
defendants' services. Id. at 11, ¶ 38.
Plaintiff asserts that defendants' actions have harmed
its business reputation and goodwill and have led to lost
sales and profits. Id., ¶ 37.
plaintiff initiated this lawsuit, defendants were properly
served, Docket No. 7, and filed an answer on December 26,
2017. Docket No. 11. One month later, defendants' counsel
moved for leave to withdraw from representation. Docket No.
19; Docket No. 22. The magistrate judge granted the motions.
Docket No. 23; Docket No. 29.
magistrate ordered the corporate defendants to retain new
counsel by March 30, 2018. Docket No. 29 at 2. Despite the
magistrate judge's order, no attorney entered an
appearance for the corporate defendants. Docket No. 34 at 2.
The magistrate judge ordered the corporate defendants to
appear at a show cause hearing on May 1, 2018 and show cause
why default judgment should not be entered against them
pursuant to Fed.R.Civ.P. 16(f). Id. at 3.
corporate defendants failed to appear at the show cause
hearing. Docket No. 35 at 1. On May 1, 2018, the magistrate
judge recommended that the Court enter default against the
corporate defendants and allow plaintiff to file a motion for
default judgment against those defendants. Docket No. 36 at
3. No party filed an objection to the Recommendation.
on April 4, 2018, plaintiff filed a Motion to Compel
Responses to Discovery Requests Propounded Upon Defendants
[Docket No. 32], alleging defendants had failed to respond to
its discovery requests. Docket No. 32 at 2-3. On May 1, 2018,
the magistrate judge ordered defendants to respond to
plaintiff's discovery requests by May 15, 2018. Docket
No. 37 at 1. The Order stated:
Defendants shall respond to Plaintiff's written
discovery requests on or before May 15, 2018. Failure to do
so may result in sanctions. Specifically,
Fed.R.Civ.P. 37 lists a variety of sanctions available when a
party must file a motion compelling compliance with discovery
obligations, which includes ‘rendering a default
judgment' or treating the behavior as contempt of court.
Id. at 1-2 (emphasis in original).
failed to respond to plaintiff's discovery requests or
the Court's order. On October 23, 2018, plaintiff filed
this Motion for Sanctions and Application for Default
Judgment Against Defendants Jose M. Esquivel and Itamar
Friedman, Sr. Docket No. 42. Plaintiff asks the Court to enter
an order granting default judgment against all defendants
under Rules 16(f) and 37(b)(2). Docket No. 42 at 3, 7. It
further requests the Court to award plaintiff damages in the
amount of $63, 903.47, to award plaintiff reasonable
attorney's fees, and to enter a permanent injunction
enjoining defendants from infringing on plaintiff's
trademarks. Id. at 8.
motion or on its own, the court may issue any just orders,
including those authorized by Rule 37(b)(2)(A)(ii)-(vii), if
a party or its attorney . . . fails to obey a scheduling or
other pretrial order.” Fed.R.Civ.P. 16(f). The Federal
Rules of Civil Procedure further permit a court to sanction a
party if the party “fails to obey an order to provide
or permit discovery.” Fed.R.Civ.P. 37(b)(2). Sanctions
for either violation may include “rendering a default
judgment against the disobedient party.” Fed.R.Civ.P.
of the correct sanction for a discovery violation is a
fact-specific inquiry, . . . and in making such a
determination trial courts are accorded broad
discretion.” Gates Rubber Co. v. Bando Chemical
Indus., Ltd., 167 F.R.D. 90, 102 (D. Colo. 1996).
“Default judgment is generally considered a harsh
sanction that should be used only when a party's
noncompliance is due to willfulness, bad faith, or any fault
of the disobedient party, and not when a party is unable to
comply with a discovery order.” Power Places Tours,
Inc. v. Free Spirit, No. 16-cv-02725-CMA-KMT, 2017 WL
2718473, at *2 (D. Colo. June 23, 2017). A willful failure to
comply is “any intentional failure as distinguished
from involuntary noncompliance. No wrongful intent need be
shown.” Id. (quoting In re Standard Metals
Corp., 817 F.2d 625, 628-29 (10th Cir. 1987). Before
imposing a default judgment as a sanction, a court should
consider “(1) the degree of actual prejudice to the
opposing party; (2) the amount of interference with the
judicial process; (3) the culpability of the litigant; (4)
whether the court warned the party in advance that [default
judgment] would be a likely sanction for noncompliance; and
(5) the efficacy of lesser sanctions.” Id.
(citing Ehrenhaus v. Reynolds, 965 F.2d 916, 920-21
(10th Cir. 1992)).
Sanctions Under Rules ...