United States District Court, D. New Jersey
MCNULTY, UNITED STATES DISTRICT JUDGE.
an action asserting claims of Trademark Infringement (Count
I), Unfair Competition (Count II), and False Designation of
Origin (Count III) under the Lanham Act, 15 U.S.C. §
1051 et seq.; and violation of the New Jersey
Deceptive Trade Practices Act (Count IV). Plaintiff Celgene
Corporation, a Delaware corporation, sues Distinct Pharma, an
entity located in Mumbai, India, for unauthorized and
regulatorily unapproved internet sales of Celgene's drug
REVLIMID® (lenalidomide). Defendant Distinct Pharma has
not responded to the complaint and the clerk has entered
default. For the reasons stated herein, Celgene's motion
for default judgment is denied without prejudice to renewal
in light of further facts about the Indian government's
efforts, if any, to serve the defendant.
entry of a default judgment is left primarily to the
discretion of the district court." Hritz v. Woma
Corp., 732 F.2d 1178, 1180 (3d Cir. 1984) (citing
Tozer v. Charles A. Krause Milling Co., 189 F.2d
242, 244 (3d Cir. 1951)). Because the entry of a default
judgment prevents the resolution of claims on the merits,
"this court does not favor entry of defaults and default
judgments." United States v. $55, 518.05 in US.
Currency, 728 F.2d 192, 194 (3d Cir. 1984). Thus, before
entering default judgment, the court must determine whether
the "unchallenged facts constitute a legitimate cause of
action, since a party in default does not admit mere
conclusions of law." DirecTV, Inc. v. Asher,
No. 3-CV-1969, 2006 WL 680533, at *1 (D.N.J. Mar. 14, 2006)
(citing 10A Wright & Miller, Federal Practice &
Procedure § 2688 (3d ed. 1998)).
are deemed to have admitted the factual allegations of the
Complaint by virtue of their default, except those factual
allegations related to the amount of damages." Doe
v. Simone, No. 12-cv-5825, 2013 WL 3772532, at *2
(D.N.J. July 17, 2013). While "courts must accept the
plaintiffs well-pleaded factual allegations as true,"
they "need not accept the plaintiffs factual allegations
regarding damages as true." Id. (citing
Chanel, Inc. v. Gordashevsky, 558 F.Supp.2d 532, 536
(D.N.J. 2008)). Moreover, if a court finds evidentiary
support to be lacking, it may order or permit a plaintiff
seeking default judgment to provide additional evidence in
support of the allegations in the complaint. Id. at
a court can enter a default judgment, the court must be
satisfied of personal jurisdiction and effective service of
jurisdiction, unlike subject matter jurisdiction, may be
waived, and a court generally will not raise personal
jurisdiction sua sponte as grounds for dismissal.
See Allaham v. Naddaf, 635 Fed.Appx. 32, 36 (3d Cir.
2015). Nonetheless, when a default judgment is requested, a
court is required to make a threshold determination regarding
any jurisdictional defects. See id.; Bolden v.
Se. Penn. Transp. Auth., 953 F.2d 807, 812 (3d Cir.
1991) (citing Mansfield, Coldwater & Lake Michigan
R.R. v. Swan, 111 U.S. 379, 382 (1884)). If a court
lacks personal jurisdiction over a defendant, the court does
not have authority to render a default judgment, and any such
judgment will be deemed void. Budget Blinds, Inc. v.
White, 536 F.3d 244, 258 (3d Cir. 2008). "In the
absence of an evidentiary hearing, a plaintiffs complaint
need only establish a prima facie case of personal
jurisdiction." Allaham, 635 Fed.Appx. at 36-37
(citing Eurofins Pharma U.S. Holdings v. BioAlliance
Pharma SA, 623 F.3d 147, 155 (3d Cir. 2010);
Metcalfe v. Renaissance Marine, Inc., 566 F.3d 324,
330 (3d Cir. 2009)). If an evidentiary hearing is held, a
plaintiff bears the burden of proving that the court has
personal jurisdiction over the defendant by a preponderance
of the evidence. See Control Screening LLC v. Tech.
Application & Prod. Co., 687 F.3d 163, 167 (3d Cir.
2012); Carteret Sav. Bank, FA v. Shushan, 954 F.2d
141, 142 n.1 (3d Cir. 1992).
district court sitting in diversity may assert personal
jurisdiction over a nonresident defendant to die extent
allowed under the law of die forum state."
Metcalfe, 566 F.3d at 330; see Fed. R. Civ.
P. 4(k)(1)(A) (authorizing the exercise of personal
jurisdiction over a defendant "who is subject to the
jurisdiction of a court of general jurisdiction in the state
where the district court is located"). In a state such
as New Jersey, where die long-arm statute allows die exercise
of personal jurisdiction to the full extent permitted by the
Constitution, the standard for a federal court sitting in
diversity is whether a "defendant ha[s] 'minimum
contacts," such "that the exercise of jurisdiction
comport[s] with 'tradition notions of fair play and
substantial justice."' Allaham, 635
Fed.Appx. at 37 [Remick v. Manfredy, 238 F.3d 248,
255 (3d Cir. 2001) (quoting Int'l Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945))).
are two distinct theories under which personal jurisdiction
can arise: general and specific. Grimes v. Vitalink
Commc'ns Corp., 17 F.3d 1553, 1559 (3d Cir. 1994). A
court has general jurisdiction when a defendant has
"continuous and systematic" contacts with the forum
state. O'Connor v. Sandy Lane Hotel
Co., 496 F.3d 312, 317 (3d Cir. 2007). A court has
specific jurisdiction when a plaintiffs claim arises from a
defendant's actions within the forum state, such that the
defendant could "reasonably anticipate being haled into
[the state's] court[s]." Vetrotex Certainteed
Corp. v. Consol. Fiber Glass Prods. Co., 75 F.3d 147,
151 (3d Cir. 1996) (quoting World-Wide Volkswagen Corp.
v. Woodson, 444 U.S. 286, 297 (1980)) (internal
quotation marks omitted).
does not claim that this court has general jurisdiction over
Distinct Pharma. Rather, Celgene argues that the court has
specific jurisdiction because Distinct Pharma sells its
allegedly infringing pharmaceuticals in places including New
satisfy federal due process limits (incorporated by the New
Jersey long-arm statute), a defendant's minimum contacts
are examined in relation to "the nature of the
interactions and type of jurisdiction asserted."
Telcordia Tech Inc. v. Telkom SA Ltd., 458 F.3d 172,
177 (3d Cir. 2006). "[T]he relationship among the
defendant, the forum, and the litigation ... [is] the central
concern of the inquiry into personal jurisdiction."
Shaffer v. Heitner, 433 U.S. 186, 204 (1977). For
specific jurisdiction, the Supreme Court has delineated three
due process requirements: First, the plaintiff must
demonstrate that the defendant "purposefully directed
[its] activities at the forum." O'Connor,
496 F.3d at 317 (quoting Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 472 (1985)) (internal quotation
marks omitted). Second, "the litigation must 'arise
out of or relate to' at least one of those
activities." Id. (quoting Helicopteros
Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414
(1984)). Third, if the plaintiff satisfies the first two
requirements, "a court may consider whether the exercise
of jurisdiction otherwise 'comport[s] with fair play and
substantial justice." Id. (quoting Burger
King Corp., 471 U.S. at 476) (internal quotation marks
defendant can be subject to personal jurisdiction in a state
it never entered:
Jurisdiction in these circumstances may not be avoided merely
because the defendant did not physically enter the
forum State. Although territorial presence frequently will
enhance a potential defendant's affiliation with a State
and reinforce the reasonable foreseeability of suit there, it
is an inescapable fact of modern commercial life that a
substantial amount of business is transacted solely by mail
and wire communications across state lines, thus obviating
the need for physical presence within a State in which
business is conducted. So long as a commercial actor's
efforts are "purposefully directed" toward