United States District Court, D. Maryland
L. Hollander United States District Judge
26, 2017, plaintiff Farm Fresh Direct Direct By a Cut Above
LLC (“Farm Fresh Direct”) filed suit against
defendants Steven Downey; Clipper City Lending LLC
(“Clipper City”); Farm Fresh Direct Home Food
Services, LLC (“Farm Fresh Home”); and Jessica
Sinsky. ECF 1. Plaintiff alleged, inter alia, unfair
competition in violation of the Lanham Act, as amended, 15
U.S.C. § 1125(a). Id. The docket reflects
service on the defendants. See ECF 6 through ECF 9.
Downey subsequently filed for bankruptcy, and the case is
stayed as to him, under 11 U.S.C. §
filed an Answer on July 24, 2017. ECF 10. In an Order of July
26, 2017 (ECF 11) and again in an Order of August 15, 2017
(ECF 16), I explained that an individual may only represent
herself and that all corporate entities and limited liability
companies must be represented by counsel. However, I extended
until July 31, 2017, the time for Clipper City to respond to
the Complaint. ECF 11 at 2. That date coincided with the
response deadline for Farm Fresh Home. Id.
31, 2017, just a week after Sinsky filed her Answer, she
moved to dismiss the Complaint. ECF 12. Plaintiff opposed the
motion. ECF 14. No reply has been filed. See Docket.
That motion remains pending.
attorney has entered an appearance for Clipper City or Farm
Fresh Home. See Docket. Thus, they have not
responded to the suit. Accordingly, on August 15, 2017, I
directed plaintiff to move for Clerk's entry of default
as to Farm Fresh Home and Clipper City, or show cause why
such action is not appropriate. ECF 16. That same day,
plaintiff moved for Clerk's entry of default as to Farm
Fresh Home and Clipper City. ECF 17. The Clerk entered
default as to Clipper City on September 7, 2017 (ECF 19), and
as to Farm Fresh Home on September 27, 2017. ECF 20.
September 28, 2017, plaintiff filed a two-page Motion for
Default Judgment, solely against Farm Fresh Home. ECF 21
(“Motion”). Plaintiff asks the Court, inter
alia, to enjoin the use of the “Farm Fresh
Direct” name by Farm Fresh Home and its agents,
employees, and entities acting in concert with Farm Fresh
Home. Id. at 2. Plaintiff also asks the Court to
order Farm Fresh Home “to provide a financial
accounting of its activities from the date of its
incorporation to and including the date it produces the
accounting[.]” Id. And, citing “11
U.S.C. § 1125(a)” (an inapplicable provision of
the Bankruptcy Code),  plaintiff also seeks to recover damages
suffered by plaintiff, costs of $808, and attorneys' fees
of $14, 570. ECF 21 at 1-2. No billing records or affidavits
have been submitted.
appears to rely on 15 U.S.C. § 1117(a) (emphasis added
to indicate those portions quoted by plaintiff in ECF 21 at
When a violation of any right of the registrant of a mark
registered in the Patent and Trademark Office, a violation
under section 1125(a) or (d) of this title, or a willful
violation under section 1125(c) of this title, shall have
been established in any civil action arising under this
chapter, the plaintiff shall be entitled, subject to the
provisions of sections 1111 and 1114 of this title, and
subject to the principles of equity, to recover (1)
defendant's profits, (2) any damages sustained by the
plaintiff, and (3) the costs of the action. The court
shall assess such profits and damages or cause the same to be
assessed under its direction. In assessing profits the
plaintiff shall be required to prove defendant's sales
only; defendant must prove all elements of cost or deduction
claimed. In assessing damages the court may enter judgment,
according to the circumstances of the case, for any sum above
the amount found as actual damages, not exceeding three times
such amount. If the court shall find that the amount of the
recovery based on profits is either inadequate or excessive
the court may in its discretion enter judgment for such sum
as the court shall find to be just, according to the
circumstances of the case. Such sum in either of the above
circumstances shall constitute compensation and not a
penalty. The court in exceptional cases may award
reasonable attorney fees to the prevailing party.
hearing is necessary to resolve the Motion. See
Local Rule 105.6. For the reasons that follow, I shall deny
the Motion, without prejudice, and with leave to amend.
Default Judgment Standard
showing that a party against whom judgment is sought has
failed to plead or otherwise defend, the clerk must enter the
party's default onto the docket. Fed.R.Civ.P. 55(a).
After the clerk has entered a default, the plaintiff may seek
a default judgment. See Fed. R. Civ. P. 55(b). When
the “plaintiff's claim is for a sum certain or a
sum that may be made certain by computation, ” and it
is supported by an affidavit, the clerk must enter a default
judgment. Fed.R.Civ.P. 55(b)(1). However, a mere
“generalized statement of the amount due in [the]
plaintiff's complaint” does not establish a
“sum certain” for the purposes of Rule 55(b)(1).
10A Wright And Miller, Kane, Marcus, Spencer & Steinman,
Federal Practice And Procedure § 2683 (4th ed. 2017
Update) (“Wright and Miller”); see Monge
v. Portofino Ristorante, 751 F.Supp.2d 789, 789 (D.
Md. 2010). In that circumstance, “the party must apply
to the court for a default judgment.” Rule 55(b)(2).
of default judgment “is left to the discretion of the
court.” SEC v. Lawbaugh, 359 F.Supp.2d 418,
421 (D. Md. 2005). To be sure, it is the “'strong
policy'” of the Fourth Circuit to decide cases on
their merits. Id. (citation omitted); see United
States v. Shaffer Equip. Co., 11 F.3d 450, 453 (4th Cir.
1993); Tazco, Inc. v. Director, Office of Workers'
Compensation Program, 895 F.2d 949, 950 (4th Cir. 1990);
Disney Enters. v. Delane, 446 F.Supp.2d 402, 405 (D.
Md. 2006). That policy is not absolute, however. Default
judgment may be “'appropriate when the adversary
process has been halted because of an essentially
unresponsive party.”' Entrepreneur Media, Inc.
v. JMD Entertainment Group, LLC, 958 F.Supp.2d 588, 593
(D. Md. 2013) (citations omitted).
Fresh Home never responded to the suit. Therefore,
plaintiff's factual allegations, other than those
pertaining to damages, are deemed admitted. See Fed.
R. Civ. P. 8(b)(6); see also Ryan v. Homecomings Fin.
Network, 253 F.3d 778, 780 (4th Cir. 2001) (stating that
the court accepts as true the well pleaded factual
allegations in the Complaint as to liability). But, the court
must determine whether the undisputed factual allegations
constitute a legitimate cause of action. Id. at
780-81; see also Wright and Miller § 2688.1
(“[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 is satisfied that liability has been established, it
must then determine the appropriate amount of damages.
Ryan, 253 F.3d at 780-81. Allegations
“relating to the amount of damages” are not
deemed admitted based on a defendant's failure to respond
to a suit. Fed R. Civ. P. 8(b)(6); see Ryan, 253
F.3d at 780 (“'[D]efault is not treated as an
absolute confession by the defendant of his liability and of
the plaintiff's right to recover.'”) (citation
omitted); see also Monge, 751 F.Supp.2d at 794
(same); Trs. of the Elec. Welfare Trust Fund v. MH Passa
Elec. Contracting, Inc., No. DKC-08-2805, 2009 WL
2982951, at *1 (D. Md. Sept. 14, 2009) (“Upon default,
the well-pled allegations in a complaint as to liability are
taken as true, although the allegations as to damages are
not.”); Pentech Fin. Servs., Inc. v. Old Dominion
Saw Works, Inc., No. 6:09cv00004, 2009 WL 1872535, at *1
(W.D. Va. June 30, 2009) (“Upon default judgment,
Plaintiff's factual allegations are accepted as true for
all purposes excluding determination of damages.”).
a court must make an independent determination regarding
allegations as to damages. See Credit Lyonnais Sec.
(USA), Inc. v. Alcantara, 183 F.3d 151, 154 (2d Cir.
1999). In so doing, the court may conduct an evidentiary
hearing or require an accounting. Fed.R.Civ.P. 55(b)(2).
However, the court may also make a determination of damages
without a hearing, so long as there is an adequate
evidentiary basis in the record to support an award of the
requested damages. See Adkins v. Teseo, 180
F.Supp.2d 15, 17 (D.D.C. 2001) (“[T]he court may rely
on detailed affidavits or documentary evidence to determine
the appropriate sum.”); Monge, 751 F.Supp.2d
at 795 (same); Pentech Fin. Servs., Inc., 2009 WL
1872535, at *2 (concluding that there was “no need to
convene a formal evidentiary hearing on the issue of
damages” because plaintiff submitted affidavits and
records establishing the amount of damages); JTH Tax,
Inc. v. Smith, Civil No. 2:06CV76, 2006 WL 1982762, at
*3 (E.D. Va. June 23, 2006) (“If the defendant does not
contest the amount pleaded in the complaint and the claim is
for a sum that is certain or easily computable, the judgment
can be entered for that amount without further
under Fed.R.Civ.P. 54(c), “[a] default judgment must
not differ in kind from, or exceed in amount, what is
demanded in the pleadings.” See In re Genesys Data
Techs, Inc., 204 F.3d 124, 132 (4th Cir. 2000)
(“When a Complaint demands a specific amount of
damages, courts have generally held that a default judgment
cannot award additional damages.”). This is meant to
enable the defendant to decide, on the basis of the suit,
whether to expend the resources to defend the action.
Monge, 751 F.Supp.2d at 796.
Default Judgment as ...