Opinion
2:19-CV-00683-CRE
07-06-2020
ALANA SOUZA, CIELO JEAN GIBSON, DESSIE MITCHESON, EMILY SEARS, EVA PEPAJ, HEATHER RAE YOUNG, HILLARY FISHER VINSON, JESSICA GOLDEN, LUCY PINDER, MARIANA DAVALOS, MARKETA KAZDOVA, PAOLA CANAS, TIFFANY SELBY, RHIAN SUGDEN, AND; AND TIFFANY TOTH GRAY, Plaintiffs, v. BRASS SADDLE, INC., BETTY ANN BISACCA, Defendants
REPORT AND RECOMMENDATION
I. RECOMMENDATION
On June 12, 2019, Plaintiffs Alana Souza, Cielo Jean Gibson, Dessie Mitcheson, Emily Sears, Eva Pepaj, Heather Rae Young, Hillary Fisher Vinson, Jessica Golden, Lucy Pinder, Mariana Davalos, Marketa Kazdova, Paola Canas, Tiffany Selby, Rhian Sugden, and Tiffany Toth Gray ("Plaintiffs") filed a motion for default judgment [ECF No. 17] against Defendants Brass Saddle, Inc. and Betty Ann Bisacca. A hearing on the matter was held on June 24, 2020.
After careful review of Plaintiffs' complaint, the testimony presented at the default judgment hearing and the evidence of record, for the reasons that follow, it is respectfully recommended that Plaintiffs' motion for default judgment against Defendants be granted and the Order set forth below regarding damages be entered against Defendants.
II. REPORT
Plaintiffs, who are professional models, filed their complaint seeking injunctive relief, damages, and attorneys' fees and costs on June 12, 2019. [ECF No. 1]. Specifically, Plaintiffs asserted that they were entitled to damages from Defendants pursuant to, inter alia, section 43 of the Lanham Act, 15 U.S.C. § 1125(a)(1), because Defendants misappropriated, altered, and published without authorization for use in advertising images of Plaintiffs to promote their "strip club." See Compl. [ECF No. 1] at ¶ 1. Attached to the complaint are the images of each Plaintiff that were utilized by Defendants. See Compl. [ECF No. 1-1] at Ex. A. It is undisputed that these images are images of Plaintiffs and that Defendants used those images for business purposes without Plaintiffs' knowledge or consent. See id.
Plaintiffs personally served a copy of the complaint on Brass Saddle, Inc. by process server on October 24, 2019. See Proof of Service [ECF No. 10]. On January 22, 2020, Plaintiffs filed a motion for entry of default, and the Clerk entered default as to Brass Saddle, Inc. on January 23, 2020. See [ECF Nos. 12, 13]. On March 6, 2020, Plaintiffs filed a motion for default judgment. See [ECF No. 17]. On March 16, 2020, the court scheduled a hearing for June 24, 2020 on Plaintiffs' motion. Plaintiffs mailed Defendants a copy of that notice on June 17, 2020. See [ECF No. 24]. Defendants did not appear for the hearing.
Default Judgment Hearing
A hearing on Plaintiffs' motion for default judgment was held on June 24, 2020. During the hearing, Plaintiffs presented testimony of Stephen Chamberlin, a modeling industry expert, who testified that Defendants utilization of Plaintiffs' images resulted in a total of $1,020,000.00 in damages to Plaintiffs. See [ECF Nos. 17-2, 17-3]. Accordingly, based upon the undisputed facts, evidence of record, and the testimony presented at the hearing, it is respectfully recommended that the following Order be entered:
IT IS HEREBY ORDERED that Plaintiffs' Motion for Default Judgment [ECF No. 17] is GRANTED as follows:
1. Plaintiffs have proven by a preponderance of the evidence that Defendants are liable to them pursuant to section 43 of the Lanham Act, 15 U.S.C. § 1125(a)(1). The Court finds that Plaintiffs are entitled to an amount of $1,020,000.00 in damages; and
2. Defendants are permanently enjoined from using any images of Plaintiffs in their advertising, including without limitation those images annexed to the Complaint.
The Clerk shall hereby enter judgment on behalf of Plaintiffs in the amount of $1,020,000.00, with costs taxed to the Defendants.
III. CONCLUSION
Therefore, pursuant to 28 U.S.C. § 636(b)(1)(B) and (C), Federal Rule of Civil Procedure 72, and the Local Rules for Magistrates, the parties have until July 20, 2020 to file objections to this report and recommendation. Unless Ordered otherwise by the District Judge, responses to objections are due August 3, 2020. Failure to file timely objections may constitute a waiver of any appellate rights. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011).
Plaintiffs shall serve a copy of this Report and Recommendation upon Defendants at their last known addresses via regular first class mail and provide a certificate of service thereafter. Dated: July 6, 2020
Respectfully submitted,
s/ Cynthia Reed Eddy
Cynthia Reed Eddy
Chief United States Magistrate Judge cc: Robert J. Colville
United States District Judge
via CM/ECF electronic filing
all counsel of record via CM/ECF electronic filing