UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK
March 30, 2007
CALIFORNIA INNOVATIONS, INC., PLAINTIFF,
ACCESS BAG N' PACK, INC. AND IGLOO PRODUCTS CORPORATION, DEFENDANTS.
The opinion of the court was delivered by: John T. Elfvin S.U.S.D.J.
MEMORANDUM and ORDER*fn1
In this patent infringement action, Plaintiff California Innovations, Inc. alleges that the defendants have infringed several of its patents for soft-sided beverage coolers and have sold numerous products competing with Plaintiff's products using the infringed patents. Currently pending before the Court is Plaintiff's Motion for Default Judgment as to defendant Access Bag N' Pack ("Access").*fn2
Plaintiff served a Summons and Complaint on Access by service on the New York State Secretary of State on November 3, 2005. Pursuant to Rule 12(a)(1)(A) of the Federal Rules of Civil Procedure ("FRCvP") Access should have filed its Answer to the Complaint within twenty days from the date on which it was served with the Complaint. Access failed to do so. In fact, Access has not responded to the Complaint to date. On June 22, 2006 the Clerk of the Court entered Access's default and Plaintiff filed the instant Motion for Default Judgment. Access's response to the Motion was to be filed on or before August 4, 2006. Access failed to respond to the Motion.
Plaintiff alleges that it is the assignee of three valid and legally issued patents pertaining to the manufacture of soft-sided beverage coolers. The patents are: United States Patent No. 6,116,045 ("the '045 patent"), United States Patent No. 6,067,816 ("the '816 patent") and United States Patent No. 6,481,239 ("the '239 patent").*fn3 Plaintiff alleges that Access has directly infringed and continues to infringe various claims within those three patents by the manufacture and sale in commerce of Access's soft-sided cooler model "46712."*fn4 In the Complaint, Plaintiff seeks a declaration that Access has infringed the enumerated patents, an award of damages caused by the infringement, a permanent injunction against Access from further infringing the enumerated patents, attorney's fees, costs and pre- and post-judgment interest.
On this Motion however, Plaintiff seeks the entry of a permanent injunction against Access and an Order for an accounting so that Plaintiff may obtain evidence as to the number of infringing products, if any, sold by Access and determine the amount of damages, if any, to which it is entitled.
FRCvP 55(b) provides that, unless Plaintiff's claim against the defaulting defendant is for a sum certain, Plaintiff must apply to the court for judgment by default. FRCvP 55(b) also states that "[i]f, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence, the court may conduct such hearings or order such references as it deems necessary and proper %%% ."
When a default judgment is entered, the defendant is deemed to have admitted all of the well-pleaded factual allegations in the complaint pertaining to liability. See Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992), cert. denied, 506 U.S. 1080 (1993). However, where as here the amount of damages is not readily ascertainable, a plaintiff must prove the amount of damages before a final default judgment can be entered. See Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981).
By its default, Access has admitted that Plaintiff is the assignee of the three enumerated patents and that Access has and continues to infringe those patents by the manufacture and/or sale of its model "46712" soft-sided cooler. Thus, by its default, Access has admitted that it has infringed Plaintiff's patents.
Accordingly, it is ORDERED that judgment by default is entered against Access with respect to liability on Plaintiff's infringement claims and that Access is enjoined from further acts of infringement with respect to the '045, '816 and '239 patents by its model number "46712"; and it is further
ORDERED that Plaintiff is entitled to an accounting of the sales of model "46712" in order to determine its damages, if any.