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8 United States District Court 9 Central District of California

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11 AGUSTIN RAMIREZ et al., Case № 2:21-cv-04732-ODW (GJSx)

12 Plaintiffs,

ORDER DENYING MOTIONS FOR

13 v.

DEFAULT JUDGMENT AS TO

14 EL NUEVO CORRAL NIGHTCLUB et DEFENDANTS SIMON SEGUNDO 15 al., DBA CHICO MALO

Defendants. PRODUCTIONS, MARISCOS 16

TAMPICO BAR & GRILL, JUAN

17 MANUEL NAVARRO, AND OK

CORRAL EVENT CENTER [62, 63]

18 19 I. INTRODUCTION 20 Plaintiffs Agustin Ramirez, Agustin Ramirez, Jr., and Anthony Ramirez move 21 for entry of default judgment against Defendants Simon Segundo dba Chico Malo 22 Productions (“Simon Segundo”), Mariscos Tampico Bar & Grill, Juan Manuel 23 Navarro, and OK Corral Event Center. (Mots. Default J. (“Motions” or “Mots.”), ECF 24 Nos. 62, 63.) For the following reasons, the Court DENIES Plaintiffs’ Motions.1 25 26 27

28 1 Having carefully considered the papers filed in connection with the Motion, the Court deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. 1 II. BACKGROUND 2 The following facts are taken from Plaintiffs’ Complaint. (Compl., ECF No. 1.) 3 In the mid-1970s, Plaintiff Agustin Ramirez and his three brothers founded the 4 musical group “LOS CAMINANTES Aztecas.” (Id. ¶ 23.) After the musical group 5 signed a recording contract with Luna Records, the band dropped “Aztecas” from the 6 name, leaving “Los Caminantes.” (Id. ¶ 25.) Los Caminantes recorded more than two 7 dozen musical albums and performed throughout the United States and Mexico. (Id. 8 ¶ 26.) Although the membership of Los Caminantes changed over time, Plaintiff 9 Agustin Ramirez continuously led the musical group until his death on October 28, 10 2022, after this litigation began. (Id. ¶¶ 27–29, 31; Statement of Death, ECF No. 54.) 11 On October 30, 2012, Plaintiffs filed an application with the United States 12 Patent and Trademark Office (“USPTO”) to register the Los Caminantes name. (Id. 13 ¶ 32.) On October 1, 2013, the USPTO approved Plaintiffs’ application and issued 14 them Registration No. 4,410,019 (“Los Caminantes Trademark”). (Id.) 15 Due to past infringement of the Los Caminantes Trademark, this is not 16 Plaintiffs’ first foray into the litigation process, nor is it Plaintiffs’ first lawsuit against 17 Defendant Juan Manuel Navarro. In October 2017, Plaintiffs filed a trademark 18 infringement suit against Navarro and others, resulting in judgment for the Plaintiffs 19 and a remedy in the form of damages and a permanent injunction. J., Agustin Ramirez 20 v. Vicente Martinez, Case No. 5:17-cv-02211-FMO (GJSx), ECF No. 81 (C.D. Cal. 21 filed Aug. 19, 2019). In the injunction, Judge Olguin enjoined Navarro from “using 22 the Los Caminantes mark or trade name alone or in combination with any other words 23 or symbols . . . as to be likely to cause confusion, deception or mistake, on or in 24 connection with the advertising, offering for sale, or sale of any product or service.” 25 (Id. ¶ 3.) Navarro was further “enjoined from contacting promoters, advertisers or 26 other businesses for the purpose of offering the services of defendants as ‘Los 27 Caminantes’ or any confusingly similar or colorable imitation of the ‘Los Caminantes’ 28 name.” (Id.) 1 Plaintiffs allege that this injunction failed to adequately deter Juan Manuel 2 Navarro. In the instant action, Plaintiffs allege that Juan Manuel Navarro’s promotion 3 company promoted “an infringing tour this summer promoted as ‘El Regreso Del 4 Romnticismo [sic] #2.’” (Compl. ¶ 45.) 5 Plaintiffs attribute other conduct to Martin Navarro. It is unclear if there is any 6 relation between Martin and Juan Manuel. Plaintiffs allege that, in late 2019, they 7 learned that Martin Navarro “was once again claiming some rights to use LOS 8 CAMINANTES or ‘Los Caminantes HN.” (Id. ¶ 40.) Martin Navarro was “either 9 playing concerts as Los Caminantes HN or authorizing others [to] do so.” (Id.) 10 Additionally, without specifying which Navarro they are referring to, Plaintiffs 11 further allege that “Navarro later applied for a trademark registration on LOS 12 CAMINANTES HN, but the [USPTO] rejected the application under section 2(d) of 13 the Lanham Act, finding the application to be confusing with LOS CAMINANTES.” 14 (Id. ¶ 41.) 15 In the Complaint, Plaintiffs include no factual allegations related to Defendants 16 Simon Segundo, OK Corral Event Center, and Mariscos Tampico Bar & Grill. (See 17 generally id.) 18 On June 9, 2021, Plaintiffs brought this trademark infringement action against 19 twelve named defendants. Four defendants remain: Simon Segundo, OK Corral Event 20 Center, Juan Manuel Navarro, and Mariscos Tampico Bar & Grill (“Defendants”).2 21 The Clerk of this Court entered default against each of them. (Entries of Default, ECF 22 Nos. 39, 61). On April 21, 2023, Plaintiffs filed these two Motions for Default 23 Judgment. (Mots.) 24 III. LEGAL STANDARD 25 Federal Rule of Civil Procedure (“Rule”) 55(b) authorizes a district court to 26 grant default judgment after the Clerk enters default under Rule 55(a). Fed. R. Civ. 27

28 2 Over the last two years, Plaintiffs voluntarily dismissed all other defendants from this action. (See Notices of Dismissal, ECF Nos. 15, 34, 46, 64, 68.) 1 P. 55(b). However, before a court can enter default judgment against a defendant, the 2 plaintiff must satisfy the procedural requirements in Rules 54(c) and 55, and Local 3 Rules 55-1 and 55-2. Fed. R. Civ. P. 54(c), 55; C.D. Cal. L.R. 55-1, 55-2. If these 4 procedural requirements are satisfied, a district court has discretion to enter default 5 judgment. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980); PepsiCo, Inc., v. 6 Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1174 (C.D. Cal. 2002) (“A defendant’s default 7 does not automatically entitle the plaintiff to a court-ordered judgment.”). 8 Generally, after the Clerk enters a default, the defendant’s liability is 9 conclusively established, and the well-pleaded factual allegations in the plaintiff’s 10 complaint “will be taken as true” except those pertaining to the amount of damages. 11 TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917–18 (9th Cir. 1987) (per curiam) 12 (quoting Geddes v. United Fin. Grp., 559 F.2d 557, 560 (9th Cir. 1977)). The court 13 need not make detailed findings of fact in the event of default, except as to damages. 14 See Adriana Int’l Corp. v. Thoeren, 913 F.2d 1406, 1414 (9th Cir. 1990). 15 IV. DISCUSSION 16 The Court finds that Plaintiffs fail to meet the threshold necessary for this Court 17 to enter default judgment against Defendants on Plaintiffs’ Complaint. The record 18 suffers from deficiencies related to (1) the procedural requirements, (2) the Eitel 19 factors, and (3) proof of damages. The Court details those deficiencies below and 20 provides Plaintiffs with an opportunity to amend to cure the deficiencies. 21 A. Procedural Requirements 22 Both Motions fail to meet some of the procedural requirements set forth in the 23 Central District of California Local Rules and the Federal Rules of Civil Procedure. 24 First, Local Rule 55-1 states that parties moving for default judgment must 25 accompany the application with a declaration in compliance with Rule 55(b)(1) and/or 26 (2). C.D. Cal. L.R. 55-1. Plaintiffs fail to include a declaration in support of their 27 Motion for Default Judgment as to Defendant Simon. (ECF No. 62.) 28 1 In turn, Rule 55(b)(2) requires that, “[i]f the party against whom a default 2 judgment is sought has appeared personally or by a representative,” the plaintiff must 3 serve the defaulting party with written notice of the application at least seven days 4 before the hearing. Fed. R. Civ. P. 55(b)(2). Here, this rule applies to one defendant 5 against whom default judgment is sought: Juan Manuel Navarro. Navarro first 6 appeared in this action when he filed his answer on July 27, 2021. (Answer, ECF 7 No. 11.) The Court later struck this document. (Min. Order, ECF No. 60.) However, 8 on May 3, 2022, Navarro requested to proceed pro se in this action, which the Court 9 granted. (Req. Substitution Counsel, ECF No. 40; Order Granting Req., ECF No. 45.) 10 Because Navarro has appeared in this matter, Plaintiffs must submit a declaration 11 indicating that Navarro has been served with written notice of the application. 12 The Court may properly deny the Motions for Default as to Defendants Simon 13 Segundo and Juan Manuel Navarro on these two procedural bases. 14 B. Eitel Factors 15 In exercising discretion in whether to enter default judgment, courts consider 16 the “Eitel factors”: (1) the possibility of prejudice to the plaintiff, (2) the merits of 17 plaintiff's substantive claim, (3) the sufficiency of the complaint, (4) the sum of 18 money at stake in the action, (5) the possibility of a dispute concerning material facts, 19 (6) whether the default was due to excusable neglect, and (7) the strong public policy 20 favoring decisions on the merits. Eitel v. McCool, 782 F.2d 1470, 1471–72 (9th Cir. 21 1986). “Of all the Eitel factors, courts often consider the second and third factors to 22 be the most important.” Vietnam Reform Party v. Viet Tan - Vietnam Reform Party, 23 416 F. Supp. 3d 948, 962 (N.D. Cal. 2019) (internal quotation marks omitted). 24 In considering whether the second and third Eitel factors—the merits of 25 Plaintiffs’ substantive claims and the sufficiency of Plaintiffs’ Complaint—support 26 default judgment, the Court is concerned that the Plaintiffs fail to provide Defendants 27 with any notice of their allegedly wrongful conduct. In fact, Plaintiffs mention 28 Defendants Simon Segundo, OK Corral Event Center, and Mariscos Tampico Bar & 1 Grill in only a brief description of the parties’ citizenship in the Complaint’s opening 2 paragraphs. (Compl. ¶¶ 10, 11, 18.) These three defendants are absent from the rest 3 of the Complaint, and Plaintiffs fail to allege any facts indicating that these three 4 defendants wrongfully infringed on Plaintiffs’ trademark. Without a sufficient 5 complaint (the third Eitel factor), the Court also cannot properly assess the merits of 6 Plaintiffs’ substantive claims (the second factor), nor can it properly determine 7 whether there is a possibility of a material factual dispute (the fifth factor). Overall, 8 because of Plaintiffs’ failure to allege any facts relating to these three defendants, the 9 Eitel factors weigh against entering default judgment against them. 10 Although Plaintiffs make some factual allegations related to the fourth 11 remaining defendant, Juan Manuel Navarro, the allegations are nevertheless 12 insufficient to merit default judgment. First, Plaintiffs’ references to “Navarro” are 13 often ambiguous as to whether the alleged conduct was performed by Defendant Juan 14 Manuel Navarro or a separate, seemingly unrelated, Martin Navarro. For example, 15 Plaintiffs allege that “recent concerts played by Navarro’s [sic] were advertised in a 16 manner that would be confusing to the relevant market.” (Compl. ¶ 42.) This 17 statement is wedged between allegations involving both Juan Manuel Navarro and 18 Martin Navarro. Other than Plaintiffs’ allegations regarding the circumstances 19 surrounding the injunction Plaintiffs obtained in 2019, the only facts clearly linked to 20 Juan Manuel Navarro are limited to one paragraph in the Complaint:

21 It has recently come to light that there is an infringing tour this summer 22 promoted as “El Regreso Del Romnticismo [sic] #2.” That tour is being 23 promoted by J & J Promociones, which on information and belief, is the promotion company of Defendant Juan Manuel Navarro, who is already 24 subject to an injunction against using the LOS CAMINANTES name. 25 26 (Id. ¶ 45.) This paragraph alone is insufficient to support a cognizable claim for 27 trademark infringement against Juan Manuel Navarro, raising the same concerns as 28 1 those related to Defendants Simon Segundo, OK Corral Event Center, and Mariscos 2 Tampico Bar & Grill detailed above. 3 Second, Plaintiffs’ Complaint is filled with conclusory allegations. For 4 example, Plaintiffs allege that Juan Manuel Navarro’s tour is “infringing,” (id.), and 5 that “concerts played by Navarro’s [sic] were advertised in a manner that would be 6 confusing to the relevant market,” (id. ¶ 42). Although the Complaint’s factual 7 allegations regarding liability are taken as true upon entry of default, the Court need 8 not accept conclusory allegations as true. See Cholla Ready Mix, Inc. v. Civish, 9 382 F.3d 969, 973 (9th Cir. 2004) (noting that a court is not required to accept as true 10 allegations that are “unwarranted deductions of fact, or unreasonable inferences”); see 11 also Chavez v. United States, 683 F.3d 1102, 1108 (9th Cir. 2012) (“a court discounts 12 conclusory statements, which are not entitled to the presumption of truth, before 13 determining whether a claim is plausible”). Here, the Plaintiffs’ allegations are 14 conclusory, unsupported by any well-pleaded facts regarding where and how Juan 15 Manuel Navarro caused Plaintiffs’ injury. 16 Accordingly, the Court concludes that Plaintiffs fail to sufficiently plead a claim 17 against Juan Manuel Navarro because the Complaint lacks “necessary facts” and the 18 conclusory allegations and legal conclusions contained in the Complaint are 19 insufficient to entitle Plaintiffs to relief. See Cripps v. Life Ins. Co. of N. Am., 20 980 F.2d 1261, 1267 (9th Cir. 1992); Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009). 21 C. Proof of Damages 22 Finally, as allegations related to damages are not deemed true upon default, 23 TeleVideo Sys., 826 F.2d at 917–18, a party seeking default judgment must prove their 24 damages, Rubicon Global Ventures, Inc. v. Chongqing Zongshen Grp. Imp./Exp. 25 Corp., 226 F. Supp 3d 1141, 1148 (D. Or. 2016). “[D]istrict courts within the Ninth 26 Circuit have required plaintiffs to prove . . . compensatory damages with ‘reasonable 27 certainty’ even in situations of default.” Id. at 1149. Here, Plaintiffs do not attempt to 28 prove damages in any way. 1 Vv. CONCLUSION 2 For the reasons discussed above, the Court DENIES Plaintiffs’ Motion for 3 || Default Judgment as to Defendant Simon Segundo dba Chico Malo Productions. (ECF No. 62.) The Court further DENIES Plaintiffs’ Motion for Default Judgment as 5 || to Defendants Mariscos Tampico Bar & Grill, Juan Manuel Navarro, and OK Corral 6 || Event Center. (ECF No. 63.) 7 Plaintiffs may amend their Complaint to cure the substantive defects discussed 8 | above. If Plaintiffs choose to amend, the Amended Complaint is due no later than 9 || twenty-one days from the date of this Order, in which case Defendants shall have the 10 || opportunity to answer or otherwise respond within fourteen days of the filing. If 11 | Plaintiffs do not timely amend, the Court will dismiss this action. 12 13 IT IS SO ORDERED. 14 15 September 11, 2023 Be 16 EE ft billet 18 OTIS D. stat Il 9 UNITED STATES DISTRICT JUDGE

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