United States District Court, S.D. New York
INTREPIDUS, LLC, a member of Seductive Approach LLC, suing in the right of SEDUCTIVE APPROACH LLC, Plaintiff,
GLENN J. BIVINS and ERIC MONSE, Defendants.
MEMORANDUM OPINION AND ORDER
TAYLOR SWAIN United States District Judge
action arising from the creation and alleged diversion of an
Internet-based style and dating advice business, Plaintiff
Intrepidus, LLC ("Intrepidus" or
"Plaintiff"), suing as a member and on behalf of
Seductive Approach LLC, asserts the following causes of
action against Defendant Glenn J. Bivins
("Bivins") (1) copyright infringement, (2)
misappropriation, (3) conversion, (4) tortious interference,
(5) declaratory judgment, (6) fraud, and (7) fraud in the
inducement, in violation of both the Copyright Act and New
York state law. Plaintiff asserts copyright infringement and
declaratory judgment claims against Defendant Eric Monse
("Monse"). The Court has subject matter
jurisdiction of this action pursuant to 28 U.S.C.
§§ 1331, 1338, and 1367.
moves, pursuant to Federal Rule of Civil Procedure 55(b)(2),
for a default judgment against Bivins and Monse
(“Defendants”). Plaintiff seeks a judgment on the
merits against Defendants as to each of its causes of action.
Defendants have not opposed the instant motion.
Court has reviewed Plaintiff's submissions carefully and,
for the following reasons, the motion for default judgment is
granted in part and denied in part.
case arises from a business transaction between Bivins and
Intrepidus for the joint creation of Seductive Approach, LLC
(“Seductive Approach”). Seductive Approach
“is a company that specializes in personal lifestyle
development and enhancement with an emphasis on confidence,
fashion and personal development, and a strong emphasis on
dating techniques.” (Am. Compl. ¶¶40-41;
Seductive Approach Operating Agreement, Plaintiff's Brief
Exhibit (“Pl. Ex.”) E § 3.1
(“Operating Agreement”).) Bivins, a “PUA
(pick up artist)”, presented Brian Engelbert with a
business proposal in early 2012, and Engelbert agreed to be
the financial backer for the proposal through, Intrepidus, a
newly created company. (Am. Compl. ¶¶42-43.)
Intrepidus provided $68, 000, or 100% of the financial
investment, and Bivins' contribution was to consist of
his coaching expertise, ideas, intellectual property, and
services. Bivins became the managing member and sole employee
of the company and received an 85% ownership stake in
Seductive Approach while Intrepidus received a 15% ownership
stake. (Am. Compl. ¶¶44-47.)
Approach holds United States copyright registrations for the
literary content of the Seductive Approach website, and for
the literary works titled “Same Day Lays by Glenn
Pearce, ” “Banter Lines by Glenn Pearce, ”
and “Six Biggest Fails by Glenn Pearce.” The
United States Copyright Office granted the copyright
registrations in February and March of 2015. (Am. Compl.
¶¶129-32; Docket Entry No. 33, Seductive Approach
Copyright Registrations, Pl. Ex. N (“Copyright
about April 2013, Engelbert approached Bivins with numerous
concerns about his management of the company. (Am. Compl.
¶69.) Bivins then began creating a rival company,
Attractive Approach, and converted Seductive Approach's
property for use by the new company. (Am. Compl.
¶¶77-128.) Bivins converted the Seductive Approach
website into the Attractive Approach website, using Seductive
Approach funds for the change and costs of the new site. (Am.
Compl. ¶¶94-99.) Bivins also used Seductive
Approach assets to make payments for services rendered to
Attractive Approach, his unrelated Glenn Jason Hair Design
Business, his unincorporated business run through
www.glennpua.com., and his personal attorney. (Am.
Compl. ¶¶75, 128.) Bivins admitted that he took the
Seductive Approach website and materials because he believed
he would ultimately resolve any dispute with Intrepidus in a
settlement. (Settlement Negotiation Emails, Pl. Ex. X.
(“Settlement Emails”).) Defendant Monse aided in
the theft of Seductive Approach's intellectual property
by advertising promotional material, which was comprised of
Seductive Approach's intellectual property, on his
website, while knowing that Bivins was stealing from
Seductive Approach and Intrepidus. (Am. Compl.
Attractive Approach website mirrored the Seductive Approach
website and business plan in its offerings and Bivins
promoted his new coaching service on websites run by
Defendant Monse. (Am. Compl. ¶¶ 86-96, 123.) Bivins
earned revenue from his coaching services that were promoted
on the Attractive Approach website and from the sale of
Seductive Approach products on Attractive Approach's
website, as well as other websites. (Am. Compl.
alleges that Bivins knowingly and intentionally made false
representations during the initial negotiations for the
creation of Seductive Approach. Specifically, Intrepidus
alleges that Bivins falsely claimed "he would transfer
the intellectual property he had previously created for the
PUA industry to Seductive Approach, would implement the
copyright registrations for such works listing Seductive
Approach as the rightful owner, and that Bivins'
previously created intellectual property, as well as the
intellectual property he created while working for ...
Seductive Approach would be the sole and exclusive property
of Seductive Approach." (Am. Compl. ¶164.)
Plaintiff also alleges that, without these inducements,
“there would be no reason for Engelbert to invest his
monies through Intrepidus.” (Am. Compl. ¶¶
36-38.) Plaintiff further alleges that Bivins intended that
Plaintiff would rely on these false statements when entering
into the Operating Agreement and that Plaintiff did rely on
such statements, resulting in harm and damages to Plaintiff.
(Am. Compl. ¶¶164-69, 171-77.)
commenced this action by the filing of a complaint on
Seductive Approach's behalf against Defendants Phillip
Salsbury Schloss (“Schloss”), Bivins, The
Salsbury Fortress, LLC (“Salsbury Fortress”), and
Monse. On December 12, 2015, Plaintiff filed an Amended
Complaint. (See generally Docket Entry Nos. 1 and
33.) Defendants filed a motion to dismiss on December 29,
2015. (Docket Entry No. 40.) On March 9, 2016, the Court
granted defense counsel's motion to withdraw, and ordered
Defendants to each file a notice of appearance by new counsel
within 60 days. (Docket Entry No. 56.) On May 31, 2016, the
Court endorsed Plaintiff's notice of voluntary dismissal
with prejudice as against Salsbury Fortress and Schloss in
light of the parties' settlement agreement. (Docket Entry
No. 60.) On that same day, the Court renewed the 60-day
period by which Defendants Bivins and Monse were required to
file notices of appearance by new counsel or pro se,
directing that "[f]ailure to file such notice of
appearance by August 7, 2016, will result in the striking as
abandoned of the pending motion to dismiss the complaint and
an entry of default against Defendants who have not appeared,
and authorization of default judgment motion practice."
(Docket Entry No. 59.) Bivins and Monse have neither filed
notices of appearance, nor made any submissions, since their
former attorney withdrew.
August 16, 2016, the Court terminated Defendants' motion
to dismiss as abandoned, directed the Clerk of Court to issue
a certificate of default, and authorized Plaintiff to make a
motion for default judgment. (Docket Entry No. 65.) The Clerk
of Court issued a certificate of default on August 17, 2016
(Docket Entry No. 66), and on August 30, 2016, Plaintiff
filed this motion for default judgment. (Docket Entry No.
determining whether to grant a motion for default judgment,
courts within this district first consider three factors:
"(1) whether the defendant's default was willful;
(2) whether defendant has a meritorious defense to
plaintiff's claims; and (3) the level of prejudice the
non-defaulting party would suffer as a result of the denial
of the motion for default judgment." Indymac Bank,
F.S.B. v. National Settlement Agency, Inc., 2007 WL
4468652, at *1 (S.D.N.Y. Dec. 20, 2007) (internal citation
omitted); see also Guggenheim Capital, LLC v.
Birnbaum, 722 F.3d 444, 455 (2d Cir. 2013) (applying
these factors in review of lower court grant of a default
judgment). The Court finds that all three of the foregoing
factors weigh in Intrepidus' favor.
failure to make an appearance after their previous counsel
withdrew and their failure to respond to Intrepidus'
Motion for Default Judgment are indicative of willful
conduct. See Indymac Bank, F.S.B., 2007 WL 4468652,
at *1 (holding that non-appearance and failure to respond to
a Complaint or Motion for Default Judgment indicates willful
conduct.). With respect to the second factor, because
Defendants have failed to make a new appearance and their
motion to dismiss was abandoned and stricken, there is no
information before the Court indicating that Defendants have
any meritorious defense to Intrepidus' claims. Finally,
the Court finds that Intrepidus will be prejudiced if it
cannot seek relief for its claims in light of Defendants'
default in this case, as the case has been pending since
the court finds that these factors favor the plaintiff, it
must determine whether the plaintiff has pleaded facts
supported by evidence sufficient to establish the
defendant's liability with respect to each cause of
action. See Au Bon Pain Corp. v. Artect, Inc., 653
F.2d 61, 65 (2d Cir. 1981). "[A] party's default is
deemed to constitute a concession of all well pleaded
allegations of liability" except those relating to
damages. Greyhound Exhibitgroup, 973 F.2d at 158.
Thus, "[w]ithout a response from [the defendant, a]
court must first determine whether the allegations in