United States District Court, D. Hawaii
DECATHLON S.A. AND DECATHLON USA LLC, Plaintiffs,
ALOKELE HALE LLC, d/b/a H20 NINJA, ALEXANDER KRIVOULIAN, Defendants.
FINDINGS AND RECOMMENDATION TO GRANT IN PART AND DENY
IN PART PLAINTIFFS' MOTION FOR ENTRY OF DEFAULT
Reber Porter United States Magistrate Judge.
the Court is Plaintiffs Decathlon S.A. and Decathlon USA
LLC's Motion for Entry of Default Judgment against
Defendant Alokele Hale LLC,  filed on April 30, 2019 (Motion).
ECF No. 25. The Court found the Motion suitable for
disposition without a hearing pursuant to Rule 7.2(d) of the
Local Rules of Practice of the United States District Court
for the District of Hawaii. ECF No. 28.
Court FINDS AND RECOMMENDS that Plaintiffs' Motion be
GRANTED IN PART AND DENIED IN PART.
to the Complaint, Plaintiff Decathlon S.A., a sporting goods
company, and Plaintiff Decathlon USA LLC, its distributor,
sell a product known as the “Easybreath Snorkeling
Mask” (Easybreath Mask) that features a clear,
full-face lens surrounded by a rigid frame, a breathing tube
centered at the top of the mask, and a valve at the bottom of
the mask. ECF No. 1 ¶ 14, 16. The Easybreath Mask is
protected by U.S. Design Patent No. D775, 722 S (the '722
patent), entitled “Mask with Snorkel” which the
United States Patent and Trademark Office issued on January
3, 2017. Id. ¶ 17. Plaintiff Decathlon S.A. is
the owner of the '722 patent. Id. Plaintiffs
also own trade dress rights in the Easybreath Mask because
its design, widespread sale, advertising, and promotion lead
the public to understand that the trade dress signifies
Plaintiff Decathlon S.A. as the designer and source of the
mask. Id. ¶ 19. The Easybreath Mask trade dress
has become famous. Id. ¶ 21.
Alokele Hale began marketing a H2O Ninja snorkeling mask (H2O
Mask) with a design that is nearly identical to the
Easybreath Mask. Id. ¶ 27-28. Like the
Easybreath Mask, the H2O Mask has a clear, full-face lens
surrounded by a rigid frame, a breathing tube centered at the
top of the mask, and a valve at the bottom of the mask.
Id. ¶ 29. Plaintiff alleges that the H2O Mask
mimics every key element of the Easybreath Mask trade dress
and is substantially similar to the design shown in the
'722 patent. Id. ¶ 29.
filed their Complaint on June 29, 2018, alleging patent
infringement and violations of federal and state unfair
competition practices. ECF No. 1. After Plaintiffs were
unable to effect personal service on the corporate defendant,
Defendant Alokele Hale, Defendant Alokele Hale was served via
publication pursuant to Hawaii Revised Statutes Section
634-35. See ECF Nos. 15, 20. Defendant Alokele Hale
did not appear at the return hearing or file a response to
the Complaint. See ECF No. 21. Default was entered
against Defendant Alokele Hale on November 30, 2018.
See ECF No. 24. The present Motion followed seeking
default judgment and entry of a permanent injunction against
Defendant Alokele Hale. See ECF No. 25.
judgment may be entered if the defendant has defaulted by
failing to appear and the plaintiff's claim is for a
“sum certain or for a sum which can by computation be
made certain[.]” Fed.R.Civ.P. 55(b)(1), (2). The
granting or denial of a motion for default judgment is within
the discretion of the court. Haw. Carpenters' Trust
Funds v. Stone, 794 F.2d 508, 511-12 (9th Cir. 1986).
Default judgments are ordinarily disfavored, and cases should
be decided on their merits if reasonably possible. Eitel
v. McCool, 782 F.2d 1470, 1472 (9th Cir. 1986).
considering the merits of default judgment, the Court has an
affirmative obligation to determine whether or not it has
subject matter jurisdiction over this action and personal
jurisdiction over Defendant Alokele Hale. See In re
Tuli, 172 F.3d 707, 712 (9th Cir. 1999) (“To avoid
entering a default judgment that can later be successfully
attacked as void, a court should determine whether it has the
power, i.e., the jurisdiction, to enter the judgment in the
Court has subject matter jurisdiction over Plaintiffs'
federal claims under 28 U.S.C. §§ 1331, 1338 and 15
U.S.C. § 1121, and has supplemental jurisdiction over
Plaintiffs' state law claims pursuant to 28 U.S.C. §
1367. The Court has personal jurisdiction over Defendant
Alokele Hale because Plaintiffs allege that Defendant Alokele
Hale is a Hawaii limited liability company. See ECF
No. 1 ¶ 8; ECF Nos. 20, 21.
Default Judgment Factors
a determination that jurisdiction is proper, the Court must
consider whether default judgment is appropriate. The court
should consider the following factors in deciding whether to
grant a motion for default judgment:
(1) the possibility of prejudice to the plaintiff;
(2) the merits of plaintiff's substantive claim;
(3) the sufficiency of the complaint;
(4) the sum of money at stake in the action;
(5) the possibility of a dispute concerning material facts;
(6) whether the default was due to excusable neglect; and (7)
the strong policy underlying the Federal Rules of Civil