United States District Court, W.D. Texas, Austin Division
PITMAN UNITED STATES DISTRICT JUDGE.
the Court is Plaintiff YETI Coolers, LLC's
(“YETI”) Motion for Default Judgment. (Mot., Dkt.
17). Having considered the motion, the record, and applicable
law, the Court finds that the motion should be granted.
alleges the following facts in its complaint. (Compl., Dkt.
1). YETI has for several years sold its 20 oz. and 30 oz.
RamblerTM Tumblers (collectively, “Rambler
Drinkware”) throughout the United States. (Id.
¶ 8). YETI claims trade dress rights in the
“overall look, design, and appearance” of its
Rambler Drinkware and alleges that it has become famous and
acquired substantial goodwill and secondary meaning in the
marketplace. (Id. ¶¶ 11, 13-14). Defendant
Zhejiang Zhuosheng Industry & Trade Co., Ltd.
(“Zhuosheng”) is a Chinese company that sells
drinkware that YETI claims infringes its trade dress rights
in its Rambler Drinkware. (Id. ¶ 15). YETI
therefore brings this action against Zhousheng for trade
dress dilution, trade dress infringement, unfair competition
and false designation of origin, misappropriation, and unjust
enrichment under state and federal law. (Id. 11-22).
filed its complaint on August 23, 2017. YETI alleges that it
attempted to serve Zhuosheng for several months, and on
August 3, 2018, moved to serve Zhuosheng by alternative
means. (Dkt. 8, at 2-3). The Court granted YETI's motion
on September 28, permitting YETI to serve Zhuosheng by email.
(Dkt. 9). Zhuosheng was so served October 8, 2018. (Dkt. 10).
Subsequently, on November 20, the Chinese Ministry of Justice
informed YETI that Zhuosheng had been served pursuant to the
Hague Convention on February 7, 2018. (Jungels Decl., Dkt.
17-1, ¶ 4). Zhuoshong was thus served twice; its answer
based on the Hague Convention service was due on April 9,
2018, and its answer based on the email service was due on
October 29, 2018. See Fed. R. Civ. P. 6 &
12(a)(1)(A). Zhuosheng never submitted an answer.
December 19, 2018, YETI moved the Court for an entry of
default against Zhuosheng. (Dkt. 15). The Clerk entered
default against Zhuosheng the next day, (Dkt. 16), and the
instant motion for default judgment followed on January 10,
2018, (Mot., Dkt. 17). As of this date, Zhuosheng has not
appeared in this litigation.
Rule 55 of the Federal Rules of Civil Procedure, federal
courts have the authority to enter a default judgment against
a defendant that has failed to plead or otherwise defend
itself. Fed.R.Civ.P. 55(a)-(b). That said, “[d]efault
judgments are a drastic remedy, not favored by the Federal
Rules and resorted to by courts only in extreme
situations.” Sun Bank of Ocala v. Pelican Homestead
& Sav. Ass'n, 874 F.2d 274, 276 (5th Cir. 1989).
A party is not entitled to a default judgment simply because
the defendant is in default. Ganther v. Ingle, 75
F.3d 207, 212 (5th Cir. 1996). Rather, a default judgment is
generally committed to the discretion of the district court.
Mason v. Lister, 562 F.2d 343, 345 (5th Cir. 1977).
considering YETI's motion, the Court must determine: (1)
whether default judgment is procedurally warranted, (2)
whether YETI's complaint sets forth facts sufficient to
establish that it is entitled to relief, and (3) what form of
relief, if any, YETI should receive. See United States v.
1998 Freightliner Vin #: 1FUYCZYB3WP886986, 548
F.Supp.2d 381, 384 (W.D. Tex. 2008); J & J Sports
Prods., Inc. v. Morelia Mexican Rest., Inc., 126
F.Supp.3d 809, 813 (N.D. Tex. 2015).
determine whether entry of a default judgment is procedurally
warranted, district courts in the Fifth Circuit consider six
factors: “ whether material issues of fact are at
issue,  whether there has been substantial prejudice, 
whether the grounds for default are clearly established, 
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.”
Lindsey v. Prive Corp., 161 F.3d 886, 893 (5th Cir.
Lindsey factor weighs in favor of entering a default
judgment against Zhuosheng. Because Zhuosheng has failed to
file a responsive pleading, there are no material facts in
dispute. See Nishimatsu Const. Co., Ltd. v. Hous. Nat.
Bank, 515 F.2d 1200, 1206 (5th Cir. 1975) (“The
defendant, by his default, admits the plaintiff's
well-pleaded allegations of fact.”). Zhuosheng's
failure to appear and respond to YETI's complaint has
halted the adversary process and prejudiced YETI's
interest in pursuing its claims for relief. J & J
Sports, 126 F.Supp.3d at 814 (“Defendants'
failure to respond threatens to bring the adversary process
to a halt, effectively prejudicing Plaintiff's
interests.”) (citation and quotation marks omitted).
The grounds for default are established: YETI was twice
properly served but has still not appeared or participated in
this litigation. There is also no evidence before the Court
that Zhuosheng's default was caused by a good faith
mistake or excusable neglect, and the harshness of a default
judgment in this case is mitigated by Zhuosheng's failure
to respond to YETI's complaint or otherwise appear in the
last 22 months. Id.; Epic Tech, LLC v.
Lara, 2017 U.S. Dist. LEXIS 196705, at * 12 (S.D. Tex.
Nov. 29, 2017). Finally, the Court is not aware of any facts
that would obligate it to set aside the default if challenged
by Zhuosheng. The Court therefore finds that default judgment
is procedurally warranted.
Sufficiency of YETI's Complaint
judgment is proper only if the well-pleaded factual
allegations in YETI's complaint establish a valid cause
of action. Nishimatsu, 515 F.2d at 1206. By
defaulting, a defendant “admits the plaintiff's
well-pleaded allegations of fact.” Id. To
determine whether factual allegations are sufficient to
support a default judgment, the Fifth Circuit employs the
same analysis used to determine sufficiency under Rule 8.
Wooten v. McDonald Transit Assocs., Inc., 788 F.3d
490, 498 (5th Cir. 2015). A complaint must contain “a
short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2).
The factual allegations in the complaint need only “be
enough to raise a right to relief above the speculative
level, on the assumption that all the allegations in the
complaint are true (even if doubtful in fact).”
Wooten, 788 F.3d at 498 (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, ...