Judge Koh should be afforded an opportunity to present each of those defenses (and all other available defenses) in a motion to dismiss after the Entry of Default has been vacated. C. Alternatively, The Entry Of Default Should Be Declared Void And Stricken From The Docket. As an alternative to setting aside the Entry of Default under Rule 55(c), the Court could simply declare it void and strike it from the docket on the basis of Judge Koh’s judicial immunity. At least two members of this Court have concluded that an entry of default is inherently void when entered against a defendant who is immune from suit.

Case 3:13-cv-05813-SC Document 21 Filed 03/18/14 Page 13 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF’S NOTICE OF MOTION -8- CASE NO.: 13-CV-05813-SC AND MOTION FOR DEFAULT JUDGMENT B. Default Against the Defendants Was Properly Entered Pursuant to Federal Rule of Civil Procedure 55(a), a clerk must enter a party’s default “[w]hen 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.” Fed. R. Civ. P. 55(a). Plaintiff served the summons and a copy of the Complaint on both Defendants on December 24, 2013.

11. On August 18, 2016, the Bank filed a Request for Entry of Default Pursuant to Fed R. Civ. P. 55(a) with respect to the Non-Answering Defendants. See Doc.

See, e.g., John Perez Graphics & Design, LLC v. Green Tree Inv. Grp., Inc., No. 12-4194, 2013 WL 1828671, at *3 (N.D. Tex. May 1, 2013) (noting this Case 1:16-cv-00631-RP Document 13 Filed 10/27/16 Page 12 of 26 9 factor weighed in favor of default judgment when “[p]laintiff seeks only the relief to which it is entitled under the law”). In sum, this Court should enter a final judgment by default granting YETI the relief described below, pursuant to Rule 55(b) because the Defendant has knowingly declined to participate in this case and the grounds supporting the default judgment are clear. See, e.g., Christus Health, 2014 WL 1092096, at *9 (granting default judgment in trademark case and entering permanent injunction sought in Complaint). B. THIS COURT SHOULD GRANT YETI’S REQUESTED RELIEF Because the factual allegations of YETI’s Complaint (ECF No. 1) are accepted as true, it is established that Kuer has willfully violated the YETI Patents and the YETI Trade Dress.

In addition, a district court is Case 1:11-cv-02598-KBF Document 396 Filed 07/07/14 Page 13 of 20 14 empowered under Rule 55(b)(2), in the exercise of its discretion, to “conduct hearings or make referrals” as may be necessary, inter alia, to determine the amount of damages or establish the truth of the plaintiff's allegations. Fed.R.Civ.P. 55(b)(2)(B)-(C). Pac. M. Int'l Corp. v. Raman Int'l Gems, Ltd., 888 F. Supp. 2d 385, 392-94 (S.D.N.Y. 2012).

“[A] court entering default judgment may conduct hearings or make referrals if it needs to determine the amount of damages.” Carazani v. Zegarra, 2013 U.S. Dist. LEXIS 93752, at *20 (D.D.C. July 3, 2013) (citing Fed. R. Civ. P. 55(b)(2)(B)). “However, a hearing is not necessary if the court can resolve the damages claims ‘on the papers alone.’”

The Court should permanently enjoin the Defaulting Defendants from future violations of Section 10(b) of the Exchange Act and Rule 10b-5 thereunder. Permanent injunctions against future violations of the securities laws may be ordered as part of a judgment by default, if a factual basis for that relief exists. SEC v. Mgmt. Dynamics, Inc., 515 F.2d 801, 814 (2d Cir. therefore defaulted in the action. See FRCP 55(a); C.A. Wright & A. R. Miller, 10A Fed. Prac. & Proc. § 2682. Moreover, Dilber’s letter did not indicate an intent to defend the action and therefore does not constitute an “appearance” within FRCP 55(b)(2) that would entitle him to notice of the present motion for default judgment.

The United States Court of Appeals for the Second Circuit (“Second Circuit”) has recognized, that, while not the usual case, in certain situations, the entry of a default judgment based upon a failure to comply with discovery is appropriate. U.S. Freight Co. v. Penn 4 Other sanctions provided for by Rule 37(b)(2)(A) are orders: (i) directing certain facts to be designated as established for purposes of the action (subsection (i)); (ii) prohibiting a party that fails to provide discovery from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence (subsection (ii)); (iii) striking pleadings in whole or part (subsection (iii)); and (iv) dismissing the action or proceeding in whole or in part (subsection (iv)). In the event the Court decides to deny the Commission’s request for a default judgment pursuant to FRCP 55(b) or 37(d), the Commission respectfully requests that it sanction Anticevic pursuant to one or more of these other provisions as it deems appropriate.

, the court may enter a default judgment. Fed. R. Civ. P. 55(b)(2). The Court finds that Plaintiff is entitled to final default judgment. It is without question that Plaintiff has the authority pursuant to 15 U.S.C. § 717f(h) (2016) to condemn the easements it seeks: “When any holder of a certificate of public convenience and necessity cannot acquire by contract, or is unable to agree with the owner of property to the compensation to be paid for, the necessary right-of-way to construct, operate, and maintain a pipe line or pipe lines for the transportation of natural gas, and the necessary land or other property, in addition to right-of- way, for the location of compressor stations, pressure apparatus, or other stations or equipment necessary to the proper operation of such pipe line or pipe lines, it may acquire the same by the exercise of the right of eminent domain in the district court of the United States for the district in which such property may be located. . . .”

Therefore, default judgment is appropriate against the Defaulted Domain Names. FED. R. CIV. P. 55; see also United Press Int’l, Inc., 2013 U.S. Dist. LEXIS 189666; Alfieri-Crispin v. Ting, 2015 U.S. Dist. LEXIS 121606 (E.D. Va. Sept. 11, 2015), adopted by 2015 U.S. Dist. LEXIS 121563 (Sept. 11, 2015); and Traffic Names, Ltd. v. Zhenghui Yiming, 2015 U.S. Dist. LEXIS 62294, at *4 (E.D. Va. May 12, 2015). 1. Violation of the ACPA Pursuant to the ACPA a person is liable to a trademark owner if that person has a bad- fath intent to profit from the trademark owner’s mark and the person registers, traffics in, or uses a domain name that is identical or confusingly similar to, or dilutive of, that mark.