United States District Court, D. Maryland
THE LIVING LEGENDS AWARDS FOR SERVICE TO HUMANITY, INC., Plaintiff,
HUMAN SYMPHONY FOUNDATION, INC., et al., Defendants.
XINIS UNITED STATES DISTRICT JUDGE.
Order addresses the Motion for Default Judgment, ECF No. 20,
filed by Plaintiff The Living Legends Awards For Service to
Humanity, Inc. (“Plaintiff”). Defendants Human
Symphony Foundation, Inc. and Mark Williams
(“Defendants”) have not filed a response, and the
time for doing so has passed. See Loc. R. 105.2.a.
Pursuant to Local Rule 105.6, a hearing is not necessary. For
the reasons stated herein, Plaintiff's Motion for Default
Judgment is granted in part and denied in part.
2006, Doreen A.K. Hines (“Hines”), while serving
as Minister of Music of the Emmanuel Brinklow Seventh-day
Adventist Church (“The Church”) hired Defendant
Mark Williams (“Williams”) to be the choir
director. See ECF No. 1 at 3. Williams helped Hines
to start a new Black History month event, marketed as The
Living Legends Awards for Service to Humanity.
See ECF No. 1 at 3. In 2010, Hines and Williams
formed the Human Symphony organization. Id. Human
Symphony was the named sponsor of subsequent programs
promoted under the title The Living Legends Awards for
Service to Humanity. Id.
served as CEO of Human Symphony until 2015 when she resigned
because of internal disagreements regarding the direction of
the Human Symphony organization. See ECF No. 1 at 4.
Upon her resignation, Hines informed Williams that she would
obtain sponsorship for future The Living Legends Awards
for Service to Humanity programming through the Church.
In November 2015, acting as the Director of The Living
Legends Awards for Service to Humanity, Hines
incorporated the Plaintiff-organization in the State of
Maryland, see ECF No. 2-2, registered the Plaintiff
as a 501(c)(3) corporation, see ECF No. 2-3, and
became its Director in November 2015, see ECF No. 1
at 4. In August 2016, Plaintiff was issued a certificate
granting a trademark designation for the name “The
Living Legends Awards for Service to Humanity, Inc.” by
the U.S. Patent and Trademark Office (“USPTO”).
See ECF No. 1 at 4.
held its 11th Annual Living Legends Awards for Service to
Humanity ceremony on February 27, 2016. In July 2016,
Plaintiff learned that Defendants were advertising a
September 10, 2016 event named “The Living Legends
Awards for Service to Humanity, ” and soliciting
funding for this event from shared donors. See ECF
No. 1 at 5; ECF No. 2-8. Defendants also used nearly
identical artwork, graphics, font style and layout as
compared to Plaintiff's promotional material.
Accordingly, Plaintiff sent a “cease and desist”
letter to the Defendants on July 25, 2016, informing
Defendants that The Living Legends Awards for Service for
Humanity was a legally protected name, the continued use
of which is prohibited. See ECF No. 2-5.
Nonetheless, Defendants continued to use the Plaintiff's
mark to solicit donors and advertise their event.
Id.; ECF No. 2-6; ECF No. 2-8.
September 9, 2016, Plaintiff filed its complaint alleging
trademark infringement under 15 U.S.C. § 1125(a),
section 43(a) of the Lanham Act (Count I), vicarious
infringement by Williams (Count II), and unfair or deceptive
trade practices under Maryland Commercial Law § 13-301
against all Defendants (Count III). At the same time,
Plaintiff also moved ex parte for the issuance of a
temporary restraining order (TRO) and preliminary injunction.
See ECF No. 8. After a hearing, the Court granted
the TRO which required the Defendant to remove immediately
all references to The Living Legends Awards for Service
to Humanity from Defendants' advertisements and
event materials. Id. Thereafter, and in violation of
the Court's order, Defendants continued to use The
Living Legends Awards for Service to Humanity name.
See ECF No. 20 at 2.
were properly served on September 8 and 10, 2016. At no point
has counsel entered an appearance for Defendant, and no
answer or responsive pleading has been filed. On November 16,
2016, the Clerk issued an Order of Default pursuant to Rule
55 of the Federal Rules of Civil Procedure. On May 2, 2017,
Plaintiff moved for default judgment. See ECF No. 20
Rule of Civil Procedure 55(b) governs the entry of default
judgments. A default judgment may be entered “[i]f the
plaintiff's claim is for a sum certain or a sum that can
be made certain by computation, ” and the defendant is
in default for failing to appear. Fed.R.Civ.P. 55(b)(1). For
“all other cases, ” in which the sum is neither
certain nor ascertainable through computation, Rule 55(b)(2)
provides: “[T]he party must apply to the court for a
default judgment . . . . The court may conduct hearings or
make referrals-preserving any federal statutory right to a
jury trial-when, to enter or effectuate judgment, it needs
to: (A) conduct an accounting; (B) determine the amount of
damages; (C) establish the truth of any allegation by
evidence; or (D) investigate any other matter.” The
entry of default judgment is a matter within the discretion
of the Court. SEC v. Lawbaugh, 359 F.Supp.2d 418,
421 (D. Md. 2005) (citing Dow v. Jones, 232
F.Supp.2d 491, 494 (D. Md. 2002)). Although “the Fourth
Circuit has a ‘strong policy that cases be decided on
the merits, '” Disney Enters. v. Delane,
446 F.Supp.2d 402, 405 (D. Md. 2006) (quoting United
States v. Shaffer Equip. Co., 11 F.3d 450, 453 (4th Cir.
1993)), “default judgment is available when the
‘adversary process has been halted because of an
essentially unresponsive party.' ” Id.
(quoting Lawbaugh, 359 F.Supp. at 421). It is within
the Court's discretion to grant default judgment when a
defendant is unresponsive. See Park Corp. v. Lexington
Ins. Co., 812 F.2d 894, 896 (4th Cir. 1987) (upholding a
default judgment awarded where the defendant lost its summons
and did not respond within the proper period); Disney
Enters., 446 F.Supp.2d at 405-06 (finding appropriate
the entry of default judgment where the defendant had been
properly served with the complaint and did not respond,
despite repeated attempts to contact him).
considering a motion for default judgment, the Court takes as
true the well-pleaded factual allegations in the complaint,
other than those pertaining to damages. Fed.R.Civ.P. 8(b)(6);
Ryan v. Homecomings Fin. Network, 253 F.3d 778, 780
(4th Cir. 2001) (“The defendant, by his default, admits
the plaintiff's well-pleaded allegations of fact, is
concluded on those facts by the judgment, and is barred from
contesting on appeal the facts thus established.”
(citation and internal quotation marks omitted));
see Fed. R. Civ. P. 8(b)(6) (“An
allegation-other than one relating to the amount of
damages-is admitted if a responsive pleading is required and
the allegation is not denied.”). It remains, however,
“for the court to determine whether these unchallenged
factual allegations constitute a legitimate cause of
action.” Agora Fin., LLC v. Samler, 725
F.Supp.2d 491, 494 (D. Md. 2010); 10A Charles Alan Wright
et al., Fed. Prac. and Proc. Civ. § 2688.1 (4th
ed. 2017) (“[L]iability is not deemed established
simply because of the default and the court, in its
discretion, may require some proof of the facts that must be
established in order to determine liability.”).
Court finds “liability is established, [it] must then
determine the appropriate amount of damages.” Agora
Fin., 725 F.Supp.2d at 484 (citing Ryan, 253
F.3d at 780-81). This is so because “an allegation
‘relating to the amount of damages' is not deemed
admitted based on a defendant's failure to deny in a
required responsive pleading.” Hartford Fin. Servs.
Grp. Inc. v. Carl J. Meil, Jr., Inc., No. WDQ-10-2720,
2011 WL 1743177, at *7 (D. Md. May 5, 2011) (quoting
Fed.R.Civ.P. 8(b)(6)); Trs. of the Elec. Welfare Trust
Fund v. MH Passa Elec. Contracting, LLC, No.
DKC-08-2805, 2009 WL 2982951, at *1 (D. Md. Sept.14, 2009)
(“Upon default, the well-plead allegations in a
complaint as to liability are taken as true, although the
allegations as to damages are not.”); Int'l
Painters & Allied Trades Indus. Pension Fund v. Metro
Glass & Mirror, Inc., No. ELH-11-2389, 2012 WL
893262, at *2 (D. Md. Mar.14, 2012) (“The court does
not accept factual allegations regarding damages as true, but
rather must make an independent determination regarding such
allegations.”). Simply put, the Court must make two
determinations. First, the Court must decide “whether
the unchallenged facts in plaintiff[‘s] complaint
constitute a legitimate cause of action.” Agora
Fin., LLC v. Samler, 725 F.Supp.2d 49, 494 (D. Md.
2010). Second, if the Court finds liability is established,
it must “make an independent determination regarding
the appropriate amount of damages.” Id.
Count I: Lanham Act, 15 ...