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January 29, 1998

GUCCI AMERICA, INC., Plaintiff, against GOLD CENTER JEWELRY, et al., Defendants. GUESS?, INC., Plaintiff, -against- GOLD CENTER JEWELRY, et al., Defendants.

The opinion of the court was delivered by: KAPLAN

 LEWIS A. KAPLAN, District Judge.

 These matters are before the Court on motions to vacate default judgments entered against many of the defendants on claims of violation of the Trademark Act of 1946 as amended by the Anticounterfeiting Consumer Protection Act of 1996 (the "1996 Act"). Briefly stated, the plaintiffs are manufacturers of trademarked goods marketed under the Gucci and Guess? brands. The defendants all appear to be retail jewelry stores doing business in the Bronx. Each is alleged to have sold counterfeit Gucci and Guess? merchandise even after agreeing to cease and desist from doing so. In view of the plethora of post-judgment applications, some of them repetitive, and two notices of appeal filed by counsel for a number of the defendants, it is essential to begin with a detailed summary of the course of proceedings in these cases.


 Both actions were commenced in late February 1997. The complaints make similar allegations of trademark infringement and counterfeiting. Both sought damages and injunctive relief. The Gucci complaint named as defendants Gold Center Jewelry ("Gold Center"), Home Boy 2000 ("Home Boy"), Big Time Jewelry ("Big Time"), Gold Fortune Jewelry ("Gold Fortune") and John Does 1-8. The Guess complaint also named Gold Center, Home Boy, Big Time and twenty John Doe defendants. In addition, it named Empire Jewelry ("Empire"), Gold "N" Ice ("Gold"), Gold Spot Jewelry ("Gold Spot"), Golden Touch Bronx Corp. ("Golden Touch"), Manny's Joyeria Jewelry ("Manny's"), Oro-Uno Jewelry, Inc. ("Oro-Uno") and Senobar Jewelry ("Senobar"). Affidavits purportedly reflecting service on each of the defendants except Gold Fortune and the Does were filed in April 1997. *fn1"

 The Default Judgments

 With the exception of Gold Spot, which moved unsuccessfully to dismiss the Guess complaint pursuant to Rules 12(b)(4) and (5), none of the defendants appeared in either action. *fn2" In consequence, on May 6, 1997, the Court granted plaintiffs' applications for default judgments in both cases as to each of the defaulting defendants -- Gold Center, Home Boy and Big Time in both cases and Empire, Gold, Golden Touch. Manny's, Oro-Uno and Senobar in the Guess case. The judgments granted principally injunctive relief and retained jurisdiction to award damages, including statutory damages, as well as attorneys' fees and costs. In June 1997, the Court granted plaintiffs' applications for leave to conduct discovery against the defaulting defendants in order to enable plaintiffs to present their damages cases, and several of the defaulting defendants were deposed.

 The Damage Awards

 On September 17, 1997, the plaintiffs filed papers in support of applications for the entry of judgments for damages pursuant to Rule 55(b)(2). The applications specifically sought awards of statutory damages pursuant to the 1996 Act in the amount of $ 25,000 against each defaulting defendant in each case. Although the applications were served on each defaulting defendant, none appeared or filed any papers in response. By orders entered October 16, 1997, the Court granted the applications and directed the Clerk to modify the judgments previously entered to award $ 25,000 plus costs and attorneys' fees against each defaulting defendant in each case. The Court found that the defendants had engaged in deliberate and wilful counterfeiting, even after receiving cease and desist letters. The amount of damages, the Court concluded, was necessary to deter defendants from future infringing activities. Amended judgments were filed on October 20, 1997.

 The Applications to Vacate the Judgments

 The first of the applications to vacate the default judgments was filed in the Guess case on behalf of Empire by the law firm of Tratner & Molloy on October 31, 1997. It argued that its default was excusable because it was the product of its principal's limited abilities in the English language. The Court, however, denied the motion because the record showed that Empire had retained Tratner & Molloy in June 1997, the firm represented it at a deposition conducted on June 30, and Empire offered no excuse for the lengthy delay in seeking relief from the judgment. *fn3"

 Gold Center, Golden Touch, and Oro-Uno

 The issuance of writs of execution prompted additional applications. On December 3, 1997, Gold Center, Golden Touch and Oro-Uno -- all represented by Mr. Hauser -- moved by orders to show cause to set aside the judgments against them, Gold Center in both cases and Golden Touch and Oro-Uno in the Guess case.

 Gold Center argued in substance that it had assumed that plaintiffs would seek no relief against it by virtue of the Court's comment at a pretrial conference, attended by Gold Center's principal (in June 1997), that the matter probably would resolve itself if he cooperated with plaintiffs. He nonetheless admitted service of process, did not contest receipt after the conference of the application to award damages against him, and offered no other excuse for its default. The Court denied Gold Center's motion for failure to establish excusable neglect. *fn4"

 Golden Touch denied having been served while Oro-Uno contended that it had been misled by plaintiffs' counsel. Following an evidentiary hearing on these two motions, the Court found that Golden Touch had not been served and that Oro-Uno had not been misled by plaintiffs' counsel. It vacated the judgment against Golden Touch and denied Oro-Uno's motion. *fn5"

 Home Boy

 On December 30, 1997, Home Boy, represented by the Lederman firm, moved in both cases by order to show cause to vacate the judgments against it. During argument on January 16, 1998, counsel for Home Boy indicated that it seeks to vacate only the award of money damages and an opportunity to litigate the amount that should be awarded. *fn6"

 Gold and Senobar

 On December 31, 1997, Mr. Hauser presented another order to show cause in the Guess case, this one seeking a temporary restraining order and vacatur of the judgments against Gold and Senobar. While the Court declined to issue the restraining order, *fn7" it made the motion to vacate returnable on January 9, 1998.

 Big Time and Manny's

 On January 9, 1998, Mr. Hauser appeared with still another order to show cause, this one captioned in both cases. The order itself sought a stay of all enforcement efforts and to bring on a motion to vacate the defaults as to Big Time (both cases) and Manny's (Guess case). The moving affidavit, however sought to vacate the judgments against not only Big Time and Manny's, but also against Gold Center, Gold, Golden Touch, Oro-Uno (a/k/a A & D) and Senobar although the judgment against Golden Touch already had been vacated. *fn8" It argued, for the first time, that the monetary relief granted against the defendants exceeded in kind and amount that prayed in the complaint and therefore was impermissible under Rule 54(c). While the Court declined to issue the requested stay, it made the motion returnable on January 15, 1998.

 The Appeals and Other Proceedings

 Confusing matters still further. Mr. Hauser filed notices of appeal on January 9, 1998 in both cases. Each purports to appeal on behalf of "defendants" -- although Mr. Hauser does not represent all of the defendants -- from the judgments against the defendants and the orders refusing to vacate the default judgments. The appeals in the Gucci case, however, were dismissed on January 22, 1998 and the mandate filed in this Court on the following day.

 On January 15, 1998, Guess?, Inc. stipulated with Gold, Manny's and Senobar to vacate the monetary provisions entered against them in the Guess case. Similarly, Gucci America, Inc. agreed to vacate the monetary provisions of ...

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