United States District Court, D. Oregon
FINDINGS AND RECOMMENDATION
F. BECKERMAN United States Magistrate Judge
Schaefer (“Plaintiff”) brings this action against
Invents Company LLC (“Defendant”), alleging
claims of improper and deceptive invention promotion in
violation of 35 U.S.C. §§ 297(a) and (b), and state
law fraud, contract, and business name registration claims.
(ECF No. 1.) Plaintiff now moves for entry of
default judgment, pursuant to Federal Rule of Civil
Procedure 55(b). (ECF No. 16.) The Court has
jurisdiction over this matter pursuant to 28 U.S.C. §
1331. For the reasons that follow, the Court recommends that
the district judge grant Plaintiff's motion for default
invented a sound-dampening attachment for electronic hair
clippers that she refers to as “The Silencer.”
(Compl. ¶ 16.) Defendant is an “invention
promoter” that purports to provide “invention
promotion services” to assist inventors with patenting
and licensing their inventions for manufacturing. (Compl.
¶ 10.) Defendant promised to promote
Plaintiff's invention. (Compl. ¶ 18.)
entered into a contract with Defendant to secure
Defendant's invention promotion services. (Compl.,
Ex. 3.) She entered into that contract in reliance on
Defendant's false statements about its ability to market
her invention and about its success on behalf of other
inventors. (Compl. ¶¶ 34-36, 38-39.) Defendant
failed to disclose all of the information required under 35
U.S.C. § 297(a) before entering into that agreement.
(Compl. ¶ 24.) Defendant also failed to perform the
services promised in the contract. (Compl. ¶¶
30-31.) Additionally, Defendant was doing business in Oregon
under an unregistered name. (Compl. ¶ 40.)
result of Defendant's actions, Plaintiff's invention
was published before Plaintiff secured a patent or other
safeguard over her intellectual property. (Compl.
¶¶ 20-22.) She suffered economic loss as a result.
filed a complaint on April 7, 2017. (ECF No. 1.) She served
Defendant on May 23, 2017. (ECF No. 10.) Defendant has not
appeared in this action.
23, 2017, Plaintiff moved for entry of default. (ECF No. 11.)
Plaintiff served Defendant with a Request for Default. (ECF
No. 12.) Defendant did not respond. Pursuant to the
Court's order, the Clerk of Court entered default on June
8, 2017. (ECF Nos. 14, 15.) Plaintiff filed a motion for
default judgment on September 14, 2017, with a declaration
from patent attorney J. Curtis Edmondson supporting her
requested monetary relief. (Mot. Default J.)
STANDARD OF REVIEW
to Rule 55(a), the Clerk of Court is required to
enter an order of default if a party against whom affirmative
relief is sought fails timely to plead or otherwise defend an
action. Fed. R. Civ. P. 55(a). “The general
rule is that upon default the factual allegations of the
complaint, except those relating to the amount of damages,
will be taken as true.” Geddes v. United Fin.
Group, 559 F.2d 557, 560 (9th Cir. 1977) (citations
omitted); see also City of N.Y. v. Mickalis Pawn
Shop, LLC, 645 F.3d 114, 128 (2d Cir. 2011)
(“[E]ntry of a default, while establishing liability,
‘is not an admission of damages[.]'”)
55 “provides that after the clerk's entry of
default against a defendant, a court may enter default
judgment against that defendant.” FirstBank P.R. v.
Jaymo Props., LLC, 379 F. App'x 166, 170 (3d Cir.
2010). “The district court's decision whether to
enter a default judgment is a discretionary one.”
Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir.
1980). In exercising this discretion, district courts in the
Ninth Circuit consider the factors articulated in Eitel
v. McCool, 782 F.2d 1470 (9th Cir. 1986). See
U.S. v. Panter, No. 11-cv-03052, 2012 WL 2367369, at
*4 (D. Or. May 24, 2012). The Eitel factors are: (1)
the possibility of prejudice to Plaintiff; (2) the merits of
Plaintiff's substantive claims; (3) the sufficiency of
the operative complaint; (4) the sum of money at stake in the
litigation; (5) the possibility of dispute concerning
material facts; (6) whether the default was due to excusable
neglect; and (7) the strong policy underlying the Federal
Rules of Civil Procedure favoring decisions on the merits.
Eitel, 782 F.2d at 1471-72. The “starting
point” of the district court's analysis, however,
“is the general rule that default judgments are
ordinarily disfavored.” Id. at 1472.
Entry of ...