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Perfect Fit LLC v. Inmate Legal Forms Service, Inc.

United States District Court, D. Maine

March 4, 2019

PERFECT FIT, LLC Plaintiff
v.
INMATE LEGAL FORMS SERVICE, INC. Defendant

          ORDER ON PLAINTIFF'S MOTION FOR RECONSIDERATION AND ORDER ON PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT

          Lance E. Walker, United States District Judge

         Plaintiff, Perfect Fit, LLC requests the entry of default judgment against Defendant, Inmate Legal Forms Service, Inc. On January 30, 2019, I denied the request on the ground that none of the pleadings, including Plaintiff's motion for default, set forth the amount of the damages Plaintiff anticipated it would be entitled to as of the hearing date. That ruling was in error. While a complaint must include a demand for the relief sought, a party is not required to include an “ad damnum” clause in its complaint that specifies the amount of damages it seeks, unless the damages are “special damages.” Fed.R.Civ.P. 8(a), 9(g).[1]And more to the point, a defendant served with a complaint who fails to answer and who also fails to make an appearance - such as Defendant herein - is not entitled to notice of the plaintiff's application for default judgment. Fed.R.Civ.P. 55(b)(2). Therefore, Plaintiff's failure to articulate a measure of damages in either its amended complaint or its application for judgment of default does not preclude the award of damages in a default judgment. Accordingly, Plaintiff's Motion for Reconsideration (ECF No. 20) is GRANTED, and the January 30, 2019 Order on Plaintiff's Motion for Default Judgment is VACATED. I turn, therefore, to reconsider Plaintiff's Motion for Default Judgment (ECF No. 12).

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A. Facts as Alleged in the Amended Complaint

         Upon Defendant's default, Plaintiff's allegations are “taken as true and ... considered established as a matter of law.” Libertad v. Sanchez, 215 F.3d 206, 208 (1st Cir. 2000) (quoting Brockton Sav. Bank v. Peat, Marwick, Mitchell & Co., 771 F.2d 5, 13 (1st Cir. 1985); see also In re Home Rests., Inc., 285 F.3d 111, 114 (1st Cir. 2002) (citing Franco v. Selective Ins. Co., 184 F.3d 4, 9 n.3 (1st Cir. 1999) (“A party who defaults is taken to have conceded the truth of the factual allegations in the complaint as establishing the grounds for liability.”).

         Plaintiff is a Maine limited liability company having a principal place of business in Corinna, Maine. Plaintiff manufactures and sells leather goods, specifically police and law enforcement shield wallets and accessories. The product line sold by Plaintiff includes badge/identification wallets, badge/identification cases, key holders, flashlight holders, handcuff holders, baton holders, glove holders, belts, gloves, equipment bags and accessories. Plaintiff advertises its products on a web site, accessed by the URL http://www.perfectfitusa.com. Plaintiff authorizes certain other vendors to resell Plaintiff's products over the internet, on their own websites and on Amazon.com.

         Plaintiff is the owner of the federal registered trademark “PERFECT FIT.” Plaintiff also owns the common law trademark “Perfect Fit Shield Wallets.” The common law mark is associated with Plaintiff's leather products. Plaintiff advertises its products using the registered mark and the common law mark, and labels and packages its products using the marks. Plaintiff has used the marks since at least 1988.

         Defendant is a reseller of products based in Bloomfield, New Jersey. It sells products on Amazon.com, both as a general retailer and through its own Amazon-hosted “storefront.” Defendant is not authorized to resell Plaintiff's products or use Plaintiff's marks. Products offered for sale by Defendant on its storefront on Amazon.com include “NYPD Detective Dress Leather Badge and ID Case by Perfect Fit Shield Wallets, ” “Universal Oval Belt Clip with Pocket and Chain by Perfect Fit Shield Wallets, ” “Glove Holder by Perfect Fit Shield Wallets, ” and “Double Glove Holder by Perfect Fit Shield Wallets.” The “NYPD Detective Dress Leather Badge and ID Case” sold by Defendant on its storefront on Amazon.com is further described as “Made in the USA by Perfect Fit with their proud logo embossed on the back.”

         Defendant is not authorized by Plaintiff to resell any of Plaintiff's products offered for sale on the Defendant's storefront on Amazon.com or on the Amazon.com general website. Although Defendant offers Perfect Fit products for sale on its storefront on Amazon.com and on the Amazon.com general website, in fact customers who attempt to purchase such products are sold different, inferior products.

         In May 2017, Plaintiff's agent purchased products from the ILFS storefront on Amazon.com each of the “Perfect Fit” products identified above. Upon receipt of the order, Plaintiff determined that the products were manufactured and branded by a third party. The products also arrived in different packaging. In May 2018, Plaintiff sent Defendant a cease and desist letter, but Defendant's conduct did not change.

         By using Plaintiff's marks and filling orders with a third-party product, Defendant has caused actual confusion and deceived consumers with false descriptions and designations of origin of its products. Defendant also sells the products using the same channels of trade as do Plaintiff and its authorized vendors, thereby reducing sales of Plaintiff's products. Defendant's conduct is willful and intentional.

         B. Procedural History

         On June 14, 2018, Plaintiff filed a Complaint against Defendant, ILFS, Inc. The Complaint has five counts: 1) Count I, Trademark Infringement; 2) Count II, Trademark Dilution; 3) Count III, Trademark Infringement; 4) Count IV, Trademark Dilution; 5) Count V, Deceptive Trade Practice; and 6) Count VI, Passing Off.

         On August 3, 2018, Plaintiff filed an Amended Complaint to identify the correct Defendant as Inmate Legal Forms Service, Inc. Plaintiff served Defendant the Amended Complaint on August 28, 2018. Defendant failed to file an answer and the Plaintiff filed a Motion for Default Judgment on December 5, 2018. The Clerk entered default on December 5, 2018, against Defendant and scheduled a damages hearing for January 17, 2019. At the hearing, the Court heard the testimony of Ryan Levesque and took the matter under advisement. On January 30, 2019, the Court ...


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