United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
J. BOYLE UNITED STATES DISTRICT JUDGE.
the Court is Plaintiff Mary Kay Inc.'s (Mary Kay) Motion
for Default Judgment. Doc. 16. For the reasons that follow,
the Court GRANTS Plaintiff's motion.
17, 2017, Mary Kay filed suit, alleging that Defendant
Elizabeth Anderson was selling Mary Kay products on eBay
“without authorization and in violation of Mary
Kay's intellectual property rights under federal and
Texas law.” Doc. 1, Compl., ¶ 32. Mary Kay claims
that it sells its products only through authorized
consultants, which allows Mary Kay to enforce quality
controls, such as requiring consultants to meet one-on-one
with customers, and prohibiting consultants from selling
expired products or selling products on the Internet.
Id. ¶¶ 9, 17-18. “Mary Kay also
provides consumers who purchase Mary Kay products through
authorized channels of distribution a complete money-back
satisfaction guarantee.” Id. ¶ 19.
According to Mary Kay, Anderson bought Mary Kay products from
a Mary Kay consultant and resold them on the Internet.
Id. ¶ 33. Thus, because Anderson is not an
authorized Mary Kay consultant, the products she sells do not
come “with the same quality controls and consumer
benefits as [authorized] Mary Kay products.”
Id. ¶ 35. Mary Kay claims that Anderson's
actions constitute trademark infringement, false advertising,
unfair competition, and trademark dilution under the Lanham
Act; trademark dilution under Texas statutory law; and
common-law trademark infringement, unfair competition, and
tortious interference with contracts and business relations.
See generally Doc. 1, Compl.
was executed on Anderson on November 9, 2017, Doc. 10, but
Anderson never answered the complaint or otherwise responded.
On December 20, 2017, Mary Kay requested that the Clerk enter
default against Anderson, Doc. 12, which the Clerk did the
same day, Doc. 14. Mary Kay filed a motion for default
judgment on February 12, 2018. Doc. 16. Thus, Mary Kay's
motion is ripe for review.
determining whether a default judgment should be entered
against a defendant, courts have developed a three-part
analysis. United States v. 1998 Freightliner Vin #:
1FUYCZYB3WP886986, 548 F.Supp.2d 381, 384 (W.D. Tex.
2008). First, courts consider whether the entry of
default judgment is procedurally warranted. See Lindsey
v. Prive Corp., 161 F.3d 886, 893 (5th Cir. 1998). The
factors relevant to this inquiry include:
 whether material issues of fact are at issue;  whether
there has been substantial prejudice;  whether the grounds
for default are clearly established; [4 ]whether the default
was caused by a good faith mistake or excusable neglect; 
the harshness of a default judgment; and  whether the
court would think itself obliged to set aside the default on
the defendant's motion.
courts assess the substantive merits of the plaintiff's
claims and determine whether there is a sufficient basis in
the pleadings for the judgment. See Nishimatsu Constr.
Co., Ltd. v. Hous. Nat'l Bank, 515 F.2d 1200, 1206
(5th Cir. 1975) (noting that “default is not treated as
an absolute confession by the defendant of his liability and
of the plaintiff's right to recover”). In doing so,
courts are to assume that due to its default, the defendant
admits all well-pleaded facts in the plaintiff's
complaint. Id. However, a “defendant is not
held to admit facts that are not-well pleaded or to admit
conclusions of law.” Id.
courts determine “what form of relief, if any, the
[plaintiff] should receive.” 1998
Freightliner, 548 F.Supp.2d at 384. Here, Mary Kay seeks
only injunctive relief. Courts have authority under the
Lanham Act to issue injunctions “‘to prevent the
violation of any right of the registrant of a mark registered
in the Patent and Trademark office.'” Mary Kay
Inc v. Weber, 661 F.Supp.2d 632, 640 (N.D. Tex.
2009)(“Weber II”) (quoting 15 U.S.C. §
1116(a)). And courts may issue such an injunction upon
finding default judgment warranted. Pathway Senior Living
LLC v. Pathways Senior Living LLC, No. 3:15-cv-02607-M,
2016 WL 1059536, at * 4 (N.D. Tex. Mar. 17, 2016); Mary
Kay Inc. v. Ayers, 827 F.Supp.2d 584, 595 (D. S.C.
Whether An Entry of Default Judgment is Procedurally
applying the six Lindsey factors to Mary Kay's
motion, the Court determines that default judgment is
procedurally warranted. First, Anderson has not filed any
responsive pleadings so there exists no material issues of
fact. Lindsey, 161 F.3d at 893; Nishimatsu
Constr., 515 F.2d at 1206 (noting that
“[t]he defendant, by his default, admits the
plaintiff's well-pleaded allegations of fact”).
Second, Anderson's “failure to respond threatens to
bring the adversary process to a halt, effectively
prejudicing Plaintiff's interests.” Ins. Co. of
the W. v. H & G Contractors, Inc., No. C-10-390,
2011 WL 4738197, at *3 (S.D. Tex. Oct. 5, 2011). Third, given
that Anderson has had sufficient time to file either an
answer to Mary Kay's complaint or explain why she has not
done so, the grounds for default are clearly established.
Cf. Elite v. KNR Grp., No. 99-41263, 2000 WL 729378,
at *1 (5th Cir. May 19, 2000) (per curiam) (holding default
judgment to be inappropriate where defendant sent letter to
court explaining his failure to appear was due to financial
privation). Fourth, there is no evidence before the Court to
suggest Anderson's silence is the result of a “good
faith mistake or excusable neglect.” Lindsey,
161 F.3d at 893. Indeed, Mary Kay alleges that Anderson twice
acknowledged Mary Kay's cease and desist letters and
refused to stop selling Mary Kay products. Doc. 1, Compl.,
¶¶ 23, 26-27. Fifth, Mary Kay seeks only the relief
the law provides it, which “mitigat[es] the harshness
of a default judgment.” John Perez Graphics &
Design, LLC v. GreenTree Inv. Grp., Inc., No.
12-CV-4194-M, 2013 WL 1828671, at *3 (N.D. Tex. May 1, 2013).
Finally, the Court is not aware of any facts that would give
rise to “good cause” to set aside the default if
it were challenged by Anderson. Lindsey, 161 F.3d at
Whether There Is a Sufficient Basis in the Pleadings ...