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
REPORT and RECOMMENDATION
TO THE HONORABLE GERARD E. LYNCH, UNITED STATES DISTRICT 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,
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
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
FILING OF OBJECTIONS TO THIS REPORT AND
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
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