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Cozzens v. Davejoe RE, LLC

United States District Court, D. New Jersey

April 8, 2019


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


          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' Supplemental Brief in Support of the Motion for Default Judgment and their Motion to Seal. Defendants have not responded to this motion. For the reasons stated herein, it will be granted.


         This Court adopts as background the facts described in its February 11, 2019 Opinion. On the same day as the Opinion, this Court issued an Order directing Plaintiffs to file a supplemental brief within thirty days. The Court directed Plaintiffs to brief more thoroughly the appropriate measure of damages in this case and to provide the full expert report of Stephen Chamberlain, of which the Court previously received only a portion. As a result, while default judgment was entered as to liability, the Court withheld judgment as to damages. It is to the issue of damages that the Court now turns.


         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. Standard for Imposition of Damages on Default Judgment

         The Court restates the standard described in the February 11, 2019 Opinion. In order to determine what damages Plaintiffs are entitled to for their judgment against Defendants, the Court may “conduct hearings or make referrals - preserving any federal statutory right to a jury trial - when, to enter or effectuate judgment, it needs to . . . determine the amount of damages.” Fed.R.Civ.P. 55(b)(2); cf. Fed.R.Civ.P. 55(b)(1) (“If the plaintiff's claim is for a sum certain or a sum that can be made certain by computation, the clerk - on the plaintiff's request, with an affidavit showing the amount due - must enter judgment for that amount and costs against a defendant who has been defaulted for not appearing and who is neither a minor nor an incompetent person.”); Jonestown Bank & Tr. Co. v. Automated Teller Mach., Servs., Inc., No. 1:12-cv-01666, 2012 U.S. Dist. LEXIS 172323, at *11 (M.D. Pa. Dec. 4, 2012) (citing 10 James Wm. Moore, et al., Moore's Federal Practice § 55.32[2][c] (Matthew Bender ed. 2010) (“[T]he ‘hearing' may be one in which the court asks the parties to submit affidavits and other materials from which the court can decide the issue.”)).

         C. Damages

         As detailed in its February 11, 2019 Opinion, this Court found Plaintiffs have stated causes of action under (1) New Jersey common law for misappropriation of likeness, (2) federal statutory law for false endorsement, and (3) New Jersey statutory and common law for false endorsement. The Court has found Defendants liable for each of these claims. It is now time to determine the amount of damages.

         At the outset, the Court notes again that it need not conduct an actual hearing as Plaintiffs have submitted declarations and have retained an expert who has opined in a declaration on the amount of damages in this case. See Bds. of Trs. of the Operating Eng'rs Local 825 Welfare Fund v. Robert Silagy Landscaping Inc., No. 06-1795, 2006 U.S. Dist. LEXIS 82475, at *9-10 (D.N.J. Nov. 9, 2006) (“Even when faced with claims for uncertain damages a district court may still, using its discretion, decline to hold a Rule 55(b)(2) hearing, particularly where the ‘amount claimed [is] capable of ascertainment from definite figures contained in the documentary evidence or in detailed affidavits.'” (quoting KPS Assocs., Inc. v. Designs by FMC, Inc., 318 F.3d 1, 19 (1st Cir. 2003))).

         In order to determine damages, the Court addresses whether Plaintiffs have cured the deficiencies noted by the Court in its February 11, 2019 Opinion. One deficiency noted by the Court was that Plaintiffs' expert, Stephen Chamberlain did not provide the methodology used in calculating damages for each Plaintiff. The Court is now satisfied that Chamberlain's expertise and methodology may be relied upon. As Chamberlain explains in his supplemental declaration, to determine pricing (and therefore damages) he considered Plaintiffs' desirability, work history, Defendants' business, the “embarrassment factor” from association with the Defendants' advertisements, history of businesses which sought Plaintiffs' services, exposure, usage, “such as advertising, social media, third party promotion, branding, coupon, extra usage, or corporate identity, ” the length of exposure, and the nature, duration, and location of any production. (Chamberlain Suppl. Decl. ¶ 12.) Considering these factors for each Plaintiff, Chamberlain came up with a “fair market fee for the use of each” Plaintiffs' image and then multiplied that number by “each image used by the ...

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