Opinion
01-CV-0211E(Sc)
December 16, 2002
MEMORANDUM AND ORDER
This decision may be cited in whole or in any part.
Plaintiff Lasermed, Inc. holds the patent for a dental curing light, which it has licensed exclusively to plaintiff Ivoclar Vivadent, Inc. Plaintiffs brought an infringement suit against defendant ("New Wave") March 22, 2001. Process was served on New Wave July 5, 2001 as evidenced by a return of service filed July 24, 2001. New Wave has failed to appear in this action. Consequently, plaintiffs requested a Clerk's Entry of Default, which issued and was entered March 6, 2002. Plaintiffs moved May 7, 2002 for a default judgment pursuant to Rule 55 of the Federal Rules of Civil Procedure ("FRCvP"). This matter was submitted May 31, 2002.
FRCvP 55 envisions a two-step process for entering default judgment. A party must first show, "by affidavit or otherwise," that an opposing party is in default and the Clerk must then "enter the party's default." FRCvP 55(a). After the Clerk has entered default, an application for judgment by default may be sought. See FRCvP 55(b). FRCvP 55(b)(1) provides that, "[w]hen the plaintiff's claim against a defendant is for a sum certain or for a sum which can by computation be made certain, the clerk upon request of the plaintiff and upon affidavit of the amount due shall enter judgment for that amount and costs against the defendant, if the defendant has been defaulted for failure to appear and is not an infant or incompetent person." In all other cases "the party entitled to default judgment shall apply to the court." FRCvP. 55(b)(2). "If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper and shall accord a right of trial by jury to the parties when and as required by any statute of the United States." FRCvP 55(b)(2). Inasmuch as the damages sought herein are not for a sum certain, FRCvP 55(b)(2) applies and this court must determine the propriety and amount of a default judgment. See Thomas v. Biocine Sclavo, 1998 WL 51861, at *3 (N.D.N.Y. 1998).
As stated previously, the plaintiffs have already secured an Entry of Default. Consequently, plaintiffs are entitled to default judgment if both procedural and substantive requirements are met. Rule 55(b) of the Local Rules of Civil Procedure states that "[a]n application to the Court for an entry of default judgment * * * shall be accompanied by a certificate of the Clerk of the entry of the default and by a copy of the pleading to which no response has been made." Plaintiff has so complied. Moreover, because the factual allegations of plaintiffs' Complaint are taken as true, this Court also finds that the substantive prerequisites to obtaining a default judgment are met — viz., plaintiffs have alleged facts sufficient to state a claim for relief. Accordingly, default judgment will be entered against defendant. Once a default judgment has been entered, the allegations of a complaint that establish a defendant's liability are to be accepted as true, except for those relating to the amount of damages. Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 108 (2d Cir. 1997); Bambu Sales, Inc. v. Ozak Trading Inc., 58 F.3d 849, 853 (2d Cir. 1995).
See Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981).
Accordingly, it is hereby ORDERED (1) that defendant (which includes any person or entity under defendant's control or direction) and those acting in concert with defendant are hereby permanently enjoined, pursuant to 35 U.S.C. § 283, from further infringement of United States Letters Patent No. 6,008,264, including any manufacture, sale, offers to sell, distribution or use of the New Wave curing light, (2) that defendant deliver to plaintiffs all New Wave curing lights and related articles in its possession or control, (3) that the plaintiffs may conduct discovery of defendant's sales of the New Wave curing light and (4) that plaintiffs shall notify this Court in writing when they are prepared to schedule a hearing on damages.