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' 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.
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
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.
Standard for Imposition of Damages on Default
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[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.”)).
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.
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))).
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 ...