United States District Court, D. New Jersey
KIM COZZENS, JESSE GOLDEN, JESSICA HINTON, URSULA MAYES, SARA UNDERWOOD, and TIFFANY TOTH GRAY, Plaintiffs,
DAVEJOE RE, LLC, DAVEJOE, LLC, and MONKEYTOES, LLC d/b/a KASHMIR GENTLEMEN'S CLUB, Defendants.
PALMER MANN, BARON & BUDD, P.C., ENCINO PLAZA, Attorney
for Plaintiffs Kim Cozzens, Jessica Hinton, Ursula Mayes,
Sara Underwood, and Tiffany Toth Gray.
L. HILLMAN, U.S.D.J.
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.
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.
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. 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
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.
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.
Subject Matter Jurisdiction
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.
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)).
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
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.
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.
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.
Whether Plaintiff has Stated a Cause of
Court will determine whether each claim asserted by
Plaintiffs properly states a cause of action.