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Cozzens v. Davejoe RE, LLC

United States District Court, D. New Jersey

February 11, 2019

KIM COZZENS, JESSE GOLDEN, JESSICA HINTON, URSULA MAYES, SARA UNDERWOOD, and TIFFANY TOTH GRAY, Plaintiffs,
v.
DAVEJOE RE, LLC, DAVEJOE, LLC, and MONKEYTOES, LLC d/b/a KASHMIR GENTLEMEN'S CLUB, Defendants.

          JONAS PALMER MANN, BARON & BUDD, P.C., ENCINO PLAZA, Attorney for Plaintiffs Kim Cozzens, Jessica Hinton, Ursula Mayes, Sara Underwood, and Tiffany Toth Gray.

          OPINION

          NOEL L. HILLMAN, U.S.D.J.

         This case concerns the unauthorized use of particular models' likenesses in advertising. Presently before the Court is Plaintiffs' Motion for Default Judgment. Defendants have not responded to this motion. For the reasons stated herein, it will be granted.

         BACKGROUND

         This Court takes its facts from Plaintiffs' complaint. According to the complaint, Plaintiffs Kim Cozzens, Jesse Golden, Jessica Hinton, Ursula Mayes, Sara Underwood, and Tiffany Toth Gray are professional models and actresses. Defendants, DaveJoe RE, LLC, DaveJoe, LLC, and MonkeyToes, LLC are all limited liability companies in and citizens of New Jersey and operate Kashmir Gentlemen's Club - a strip club - located at 3926 North Delsea Drive, Vineland, New Jersey. Plaintiffs allege that, in addition to the property they operate in Vineland, Defendants collectively operate - and control the content of - two social media accounts, one on Facebook and one on Twitter, as well as a website.

         Plaintiffs allege that their careers are based on the commercialization of their image and that their reputation has a direct effect on the commercial value of their image. In other words, Plaintiffs allege they carefully screen and choose the commercial endeavors to which they attach their likeness. However, Defendants - between November 11, 2011 and September 17, 2012 - have used each of the Plaintiffs' images at least once, without their consent, in advertising published on their Facebook page.[1] Plaintiffs allege this use was knowing, willful, and intentional and was for the purpose of driving traffic to their strip club and increasing the revenue of their business.

         Each Plaintiff alleges four claims under state and federal law. First, Plaintiffs allege Defendants' actions constituted misappropriation of their likeness under New Jersey common law. Second, Plaintiffs allege Defendants' actions constituted unfair competition and/or false endorsement under the Lanham Act, codified at 15 U.S.C. § 1125(a). Third, Plaintiffs allege the same claim for unfair competition and/or false endorsement under New Jersey Statute § 56:4-1. Finally, Plaintiffs assert a New Jersey common law unfair competition claim.

         The complaint was filed on November 10, 2017 and it was served on Defendants on November 17, 2017. Defendants have failed to appear in the action, besides this Court's receipt of a letter from David Glassman, a managing member or former managing member of the Defendant entities. The Clerk entered default on April 19, 2018. The instant motion for default judgment was filed on November 5, 2018. As mentioned supra, no opposition was filed.[2]

         ANALYSIS

         A. Subject Matter Jurisdiction

         This Court has federal question jurisdiction over this case pursuant to 28 U.S.C. § 1331 and has supplemental jurisdiction over the New Jersey state law claims pursuant to 28 U.S.C. § 1367.

         B. Personal Jurisdiction

         In addition to subject matter jurisdiction, this Court must also be satisfied it possesses personal jurisdiction over the Defendants. See U.S. Life Ins. Co. v. Romash, No. 09-3510 (GEB), 2010 U.S. Dist. LEXIS 57276, at *3-4 (D.N.J. June 9, 2010) (“Before entering default judgment, the court must address the threshold issue of whether it has subject matter jurisdiction and personal jurisdiction over the parties.” (citing Williams v. Life Sav. & Loan, 802 F.2d 1200, 1203 (10th Cir. 1986)).

         It appears this Court possesses personal jurisdiction over Defendants. Plaintiffs allege Defendants are New Jersey limited liability companies - all operating out of the same location in Vineland, New Jersey. This Court is satisfied personal jurisdiction over the Defendants exists in this case.[3]

         C. Default

         The first step in obtaining a default judgment is the entry of default. “When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the Clerk must enter the party's default.” Fed.R.Civ.P. 55(a). The Clerk entered default against Defendants on April 19, 2018.

         D. Default Judgment

         “Federal Rule of Civil Procedure 55(b)(2) authorizes courts to enter a default judgment against a properly served defendant who fails to a file a timely responsive pleading.” Chanel v. Gordashevsky, 558 F.Supp.2d 532, 535 (D.N.J. 2008) (citing Anchorage Assocs. v. Virgin Is. Bd. of Tax Rev., 922 F.2d 168, 177 n.9 (3d Cir. 1990)). But, a party seeking default judgment “is not entitled to a default judgment as of a right.” Franklin v. Nat'l Maritime Union of Am., No. 91-480, 1991 U.S. Dist. LEXIS 9819, at *3-4 (D.N.J. 1991) (quoting 10 Wright, Miller & Kane, Federal Practice and Procedure § 2685 (1983)), aff'd, 972 F.2d 1331 (3d Cir. 1992). The decision to enter 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).

         Although every “well-pled allegation” of the complaint, except those relating to damages, are deemed admitted, Comdyne I. Inc. v. Corbin, 908 F.2d 1142, 1149 (3d Cir. 1990), before entering a default judgment the Court must decide whether “the unchallenged facts constitute a legitimate cause of action, since a party in default does not admit mere conclusions of law, ” Chanel, 558 F.Supp.2d at 535 (citing Directv, Inc. v. Asher, No. 03-1969, 2006 U.S. Dist. LEXIS 14027, at *3 (D.N.J. Mar. 14, 2006)). “Three factors control whether a default judgment should be granted: (1) prejudice to the plaintiff if default is denied, (2) whether the defendant appears to have a litigable defense, and (3) whether defendant's delay is due to culpable conduct.” Chamberlain v. Giampapa, 210 F.3d 154, 164 (3d Cir. 2000); United States v. $55, 518.05 in U.S. Currency, 728 F.2d 192, 195 (3d Cir. 1984). If a review of the complaint demonstrates a valid cause of action, the Court must then determine whether plaintiff is entitled to default judgment.

         a. Whether Plaintiff has Stated a Cause of Action

         The Court will determine whether each claim asserted by Plaintiffs properly states a cause of action.

         i. Misappropriat ...


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