United States District Court, D. New Jersey
KEVINMCNULTY, 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 appeared or responded to the complaint. The court denied
Celogen's prior motion for default judgment for lack of
proof of service that satisfied the requirements of due
process. (Opinion filed September 6, 2018, DE 10; Order, DE
11) Since that time, Celgene has filed proof of service (DE
12); the clerk has again entered default (DE 13 and entry
following); and Celgene has renewed its motion for a default
judgment (DE 14). For the reasons stated herein, the renewed
motion for a default judgment is granted.
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 U.S.
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 85 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
Personal Jurisdiction and Service of Process
a court may enter default judgment against a defendant, the
plaintiff must have properly served the summons and
complaint, and the defendant must have failed to file an
answer or otherwise respond to the complaint within the time
provided by the Federal Rules, which is twenty-one days.
See Gold Kist, Inc. v. Laurinburg Oil Co., Inc., 756
F.2d 14, 18-19 (3d Cir. 1985); Fed.R.Civ.P. 12(a).
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 the extent
allowed under the law of the 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 the long-arm statute allows the 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 omitted).
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
residents of another State, we have consistently rejected the
notion that an absence of physical contacts can defeat
personal jurisdiction there.
Burger King, 471 U.S. at 476.
has pled a prima facie case of specific jurisdiction. First,
Celgene alleges that Distinct Pharma purposefully directed
its activities to New Jersey. It is alleged that Distinct
Pharma sold pharmaceutical products directly to customers in
New Jersey (and elsewhere in the United States). (Compl.
¶ 22) See J. Mclntyre Mach., Ltd. v. Nicastro,
564 U.S. 873, 884-86 (2011) (noting the difference, for
personal jurisdiction purposes, between directly selling
products to a forum and products that end up in a forum
because of the stream of commerce). Second, the litigation
arises out of this activity. Those alleged New Jersey sales
are sales of the very products that, according to
Celgene's complaint, violate federal and state trademark
and unfair competition laws. Third, the exercise of
jurisdiction comports with "fair play and substantial
justice." Factors to consider in this inquiry include
"the burden on the defendant," "the forum
State's interest in adjudicating the dispute,"
"the plaintiffs interest in obtaining convenient and
effective relief," "the interstate judicial
system's interest in obtaining the most efficient
resolution of controversies," and the "shared
interest of the several States in furthering fundamental
substantive social policies." World-Wide Volkswagen
Corp., 444 U.S. at 292; see also Burger King,
471 U.S. at 477. These factors do not weigh against a finding
of personal jurisdiction.
Service of process
of process must satisfy both the statute under which service
is effectuated and constitutional due process. When the
defendant resides abroad, the statutory prong is governed
principally by the Hague Convention on the Service Abroad of
Judicial and Extrajudicial Documents in Civil or Commercial
Matters, an international treaty that has been ratified by
several countries, including the United States and India. As
a ratified treaty, the Hague Convention is "the supreme
Law of the Land." See U.S. Const. Art. VI, cl. 2;
Ackermann v. Levine, 788 F.2d 830, 838-39 (2d Cir.
15 of the Hague Convention permits a default judgment based
on service of a foreign defendant as long as:
(a) the document was served by a method prescribed by the
internal law of the State addressed for the service of
documents in domestic actions upon persons who are within its
(b) the document was actually delivered to die defendant or
to his residence by another method provided for by this
Convention, and that in either of these cases the service or
the delivery was effected in ...