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United States District Court, S.D. New York

May 5, 2004.

PHILIP MORRIS USA, INC., Plaintiff, -against- GABRIEL CORDOVI, ET AL., Defendants

The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge



In this action for trademark infringement, the defendants failed to answer or move with respect to the complaint. Consequently, plaintiff Philip Morris USA, Inc. ("Philip Morris"), by Order to Show Cause, made an application for: (a) a default judgment to be entered against each of the defendants, pursuant to Rule 55(b)(2) of the Federal Rules of Civil Procedure and Rule 55.2 of the Local Civil Rules of this court; and (b) an order granting it injunctive relief. On April 30, 2004, a hearing was held on the plaintiff's application. The plaintiff attended the hearing. However, the defendants failed to do so, although the plaintiff reported to the Court that it gave the defendants notice of the date and time of the hearing, in accordance with directives your Honor issued on April 14, 2004.

  Fed.R.Civ.P. 55 provides, in pertinent part, that "[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter the party's default." Fed.R.Civ.P. 55(a). In such a circumstance, a court may enter a judgment against the defaulting party following a determination of damages. See Fed.R.Civ.P. 55(b)(2). In addition, in order to prevent trademark infringement and dilution, a court has the statutory authority to "grant injunctions, according to the principles of equity and upon such terms as the court may deem reasonable." 15 U.S.C. § 1116(a), 1125(c); see, e.g., Sara Lee Corp. v. Bags of New York. Inc., 36 F. Supp.2d 161, 162 (S.D.N.Y. 1999) (noting that, following defendants' default, court granted injunctive relief pursuant to Trademark Act of 1946).

  In support of the instant application, the plaintiff has submitted: a proposed default judgment; a copy of the complaint; an affidavit of service; the affidavit of Jennifer L. Larson, counsel to the plaintiff; and a certificate of default from the Clerk of Court stating that his records show that the defendants were served with a copy of the summons and complaint but have not answered or moved with respect to the complaint. The plaintiff has also submitted the proposed default judgment to the court's Judgment Clerk, as required by your Honor's Individual Rules of Practice, and the Judgment Clerk approved the form of the proposed judgment.

  Based upon a review of the materials submitted by the plaintiff and the proceeding held on April 30, 2004, the Court finds that the plaintiff has satisfied the requirements for entry of a default judgment and injunctive relief, as provided for in the relevant rules and statutes noted above. Moreover, the defendants have failed to show why the plaintiff's application should not be granted, although they were provided an opportunity to do so.


  For the reasons set forth above, the plaintiff's application should be granted.


  Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Gerard E. Lynch, 40 Centre Street, Room 803, New York, New York, 10007, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Preska. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Am. 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).

  * * *

  The plaintiff is directed to serve this Report and Recommendation on the defendants electronically and shall submit proof of service to the court.


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