UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO. 22-CV-24013-SCOLA/GOODMAN

CHENMING ZHOU,

Plaintiff,

v.

THE INDIVIDUALS, PARTNERSHIPS AND

UNINCORPORATED ASSOCIATIONS IDENTIFIED

ON SCHEDULE “A”,

Defendants.

____________________________________________/ 

REPORT AND RECOMMENDATIONS ON RENEWED MOTION

FOR DEFAULT JUDGMENT AGAINST CERTAIN DEFAULTED DEFENDANTS

In this patent infringement action, Chenming Zhou (“Plaintiff”) filed a renewed1

motion for default judgment against some (but not all) Defendants (collectively, the 

1 The Undersigned denied without prejudice and with leave to renew Plaintiff’s 

initial motion for default judgment due to issues with Plaintiff’s service of the Amended 

Complaint. [ECF No. 123]. Thereafter, Plaintiff filed a Corrected Proof of Service [ECF 

No. 127] and a Corrected Motion for Clerk’s Entry of Default [ECF No. 128]. After 

obtaining a Clerk’s Default [ECF No. 129], Plaintiff filed the instant, renewed motion 

seeking a default final judgment against some (but not all) Defendants. [ECF No. 131].

Case 1:22-cv-24013-RNS Document 138 Entered on FLSD Docket 10/04/2023 Page 1 of 28
2

“Defaulted Defendants”).2 [ECF No. 131]. The Defaulted Defendants have not filed a 

response to Plaintiff’s renewed motion and the response deadline has now expired.

United States District Judge Robert N. Scola, Jr. referred this motion to the 

Undersigned “for a report and recommendations, consistent with 28 U.S.C. § 636(b)(1)(B), 

Federal Rule of Civil Procedure 72, and Rule 1(d) of the Local Magistrate Judge Rules.”

[ECF No. 133]. As explained below, the Undersigned respectfully recommends that 

Plaintiff’s Renewed Motion [ECF No. 131] be granted.

I. Background

Plaintiff filed a one-count Amended Complaint for patent infringement in 

violation of 35 U.S.C. § 271. [ECF No. 10]. The Amended Complaint alleges that Plaintiff 

is the owner of “one (1) United States Design Patent, No. US D 955,664S, for an 

ornamental design of a pet center control seat (hereinafter ‘Plaintiff’s Patent’ or ‘664 

Patent’). Plaintiff’s Patent has been registered with the United States Patent and 

Trademark Office (‘USPTO’) and is protected from infringement under federal patent 

law.” Id. at ¶ 2.

The Amended Complaint alleges that Defendants,

[w]ithout Plaintiff’s authorization or license[,] . . . are manufacturing, 

importing, promoting, reproducing, offering for sale, selling, and/or 

distributing goods that incorporate and infringe Plaintiff’s Patent within 

2 Plaintiff seeks a default judgment against the Defaulted Defendants listed in 

Schedule A [ECF No. 131-3] of his motion.

Case 1:22-cv-24013-RNS Document 138 Entered on FLSD Docket 10/04/2023 Page 2 of 28
3

this District through various Internet based e-commerce stores and fully 

interactive commercial Internet websites operating under the seller 

identification names set forth on Schedule “A” (the “Seller IDs”).

Id. at ¶ 3. It further asserts that this “infringement is both deliberate and willful.” Id.

Plaintiff alleges that due to Defendants’ unlawful conduct, he “is enduring 

continuous damages to his design patent at the hands of [ ] Defendants herein, who 

unlawfully reproduce goods utilizing Plaintiff’s Patent to sell for substantial profits” and 

that “the goodwill associated with Plaintiff’s Patent is being harmed by Defendants 

tricking and confusing the public.” Id. at ¶ 4.

Plaintiff obtained a Clerk’s Default [ECF No. 29] and now seeks the entry of a 

default judgment against the Defaulted Defendants. [ECF Nos. 131; 131-3].

II. Applicable Legal Standard

Federal Rule of Civil Procedure 55(a) states that “[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, the clerk must enter the party’s default.” A 

party may then apply to the District Court for a default final judgment. Fed. R. Civ. P. 

55(b)(2); Alfa Corp. v. Alfa Mortg. Inc., 560 F. Supp. 2d 1166, 1173 (M.D. Ala. 2008).

A court may not enter a default final judgment based solely on the existence of a 

clerk’s default. Id. at 1174. Instead, a court is required to examine the allegations to see if 

they are well-pleaded and present a sufficient basis to support a default judgment on the 

Case 1:22-cv-24013-RNS Document 138 Entered on FLSD Docket 10/04/2023 Page 3 of 28
4

causes of action. Id. (citing Nishimatsu Constr. Co., Ltd. v. Houston Nat’l Bank, 515 F.2d 1200, 

1206 (5th Cir. 1975)).3 Only those factual allegations that are well-pleaded are admitted 

in a default judgment. Buchanan v. Bowman, 820 F.2d 359, 361 (11th Cir. 1987).

The decision whether to enter a default judgment “is committed to the discretion 

of the district court.” Hamm v. DeKalb Cty., 774 F.2d 1567, 1576 (11th Cir. 1985). Default 

judgments are “generally disfavored” because this Circuit has a “strong policy of 

determining cases on their merits.” Surtain v. Hamlin Terrace Found., 789 F.3d 1239, 1244–

45 (11th Cir. 2015). In addition to assessing whether the complaint adequately sets forth 

facts to support a plaintiff’s claims, a court considering the entry of a valid default 

judgment must “have subject-matter jurisdiction over the claims and have personal 

jurisdiction over the defendant.” Osborn v. Whites & Assocs. Inc., No. 1:20-cv-02528, 2021 

WL 3493164, at *2 (N.D. Ga. May 20, 2021) (citing Oldfield v. Pueblo De Bahia Lora, S.A., 558 

F.3d 1210, 1215 & n.13 (11th Cir. 2009)).

A court may conduct a hearing on a motion for default judgment when, in order 

“to enter or effectuate judgment, it needs to: (A) conduct an accounting; (B) determine 

the amount of damages; (C) establish the truth of any allegation by evidence; or (D) 

investigate any other matter.” Fed. R. Civ. P. 55(b)(2); see also Tara Prods., Inc. v. Hollywood 

3 In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981), our appellate court held 

that all Fifth Circuit decisions issued before September 30, 1981 would become binding 

precedent in the Eleventh Circuit.

Case 1:22-cv-24013-RNS Document 138 Entered on FLSD Docket 10/04/2023 Page 4 of 28
5

Gadgets, Inc., 449 F. App’x 908, 911-12 (11th Cir. 2011) (noting that Rule 55(b)(2) “leaves 

the decision to hold an evidentiary hearing to the court’s discretion”).

III. Analysis

“[B]efore entering a default judgment, the Court must ensure that it has 

jurisdiction over the claims and there must be a sufficient basis in the pleadings for the 

judgment entered.” Tissone v. Osco Food Servs., LLC, No. 19-CV-61358, 2021 WL 1529915, 

at *2 (S.D. Fla. Feb. 10, 2021), report and recommendation adopted, No. 19-61358-CIV, 2021 

WL 870526 (S.D. Fla. Mar. 9, 2021) (citing Nishimatsu, 515 F.2d at 1206).

a. Subject-Matter Jurisdiction

The Amended Complaint [ECF No. 10] alleges a single cause of action under the

Patent Act, 35 U.S.C. § 101, et seq. Title 28, United States Code, Section 1331 states that 

“[t]he district courts shall have original jurisdiction of all civil actions arising under the 

Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331.

Moreover, section 1338(a) provides district courts with jurisdiction over civil 

actions arising under federal statutes relating to patents. 28 U.S.C. § 1338(a); see also Daka 

Rsch., Inc. v. Individuals, P’ships & Unincorporated Ass’ns Identified on Schedule “A”, No. 22-

CV-60246, 2023 WL 5310240, at *2 (S.D. Fla. July 14, 2023), report and recommendation 

adopted sub nom. Daka Rsch. Inc. v. Individuals, P’ships, & Unincorporated Ass’ns Identified on 

Am. Schedule “A”, No. 22-60246-CV, 2023 WL 5289258 (S.D. Fla. Aug. 17, 2023) (“[T]he 

Case 1:22-cv-24013-RNS Document 138 Entered on FLSD Docket 10/04/2023 Page 5 of 28
6

Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 

(providing for federal question jurisdiction) and 1338 (governing actions involving 

patents, copyrights, and trademarks, among others).”). Therefore, the Court has subjectmatter jurisdiction over this action.

b. Personal Jurisdiction

In addition to subject-matter jurisdiction, a court must also have personal 

jurisdiction over each defendant. “A judgment rendered in the absence of personal 

jurisdiction is void and without legal effect.” Strange v. Nescio, No. 20-80947-CV, 2021 WL 

8945480, at *1 (S.D. Fla. Mar. 29, 2021) (citing Juris v. Inamed Corp., 685 F.3d 1294, 1335 

(11th Cir. 2012)). For this reason, “when deciding a motion for default judgment, a court 

has an affirmative duty to evaluate whether it has personal jurisdiction over the 

defendant and may raise the issue sua sponte.” Id.

“The concept of personal jurisdiction comprises two distinct components: 

amenability to jurisdiction and service of process. Amenability to jurisdiction means that 

a defendant is within the substantive reach of a forum’s jurisdiction under applicable law. 

Service of process is simply the physical means by which that jurisdiction is asserted.” 

Baragona v. Kuwait Gulf Link Transp. Co., 594 F.3d 852, 855 (11th Cir. 2010) (citation 

omitted).

Case 1:22-cv-24013-RNS Document 138 Entered on FLSD Docket 10/04/2023 Page 6 of 28
7

i. Service of Process

Service of process is a jurisdictional requirement. “Generally, where service of 

process is insufficient, the court has no power to render judgment and the judgment is 

void.” In re Worldwide Web Sys., Inc., 328 F.3d 1291, 1299 (11th Cir. 2003). “[W]ithout 

proper service of process, the district court ha[s] no power to enter a default judgment 

against the [defendant].” Albert v. Discover Bank, No. 21-12011, 2022 WL 1184405, at *1 

(11th Cir. Apr. 21, 2022).

Here, Plaintiff filed a motion seeking authorization for electronic service of process 

pursuant to Federal Rule of Civil Procedure 4(f)(3), which the Court granted. [ECF Nos. 

14; 17].

The Court authorized Plaintiff to “serve the summonses, [the] [A]mended 

[C]omplaint and other filings, and discovery” on Defendants through e-mail and website 

posting by:

a. sending emails to each Defendant via the e-mail accounts provided 

by each Defendant as part of the data related to its e-commerce store, 

including customer service e-mail addresses and onsite contact forms, or by 

the e-commerce platform e-mail for each of the e-commerce stores, and in 

the email providing the address to Plaintiff’s designated website to 

Defendants; and

b. publicly posting a copy of the summonses, amended complaint, and 

all filings in this matter on [Plaintiff]’s designated website found at: 

https://www.dropbox.com/sh/7jxnlm9jugvu2lg/AABoMp7AKBqiwni_WP

b_Uyca?dl=0

Case 1:22-cv-24013-RNS Document 138 Entered on FLSD Docket 10/04/2023 Page 7 of 28
8

[ECF No. 17, p. 3].

As noted above, the Undersigned denied Plaintiff’s initial motion for default 

judgment (without prejudice and with leave to refile) because Plaintiff failed to show that 

it had served the Defaulted Defendants with a copy of the Amended Complaint. [ECF 

No. 123].4

Thereafter, Plaintiff filed a Corrected Proof of Service [ECF No. 127], indicating 

that Defendants had been served with a copy of the Amended Complaint via e-mail 

service and website posting:

on January 13, 2023 (after having received e-mail contact information for 

Defendants), the Law Firm of Rubio & Associates PA effectuated service of 

process on the Defendants identified in Schedule A herein enclosed, by 

emailing copy [sic] of the Amended Complaint, Issued Summons and 

Sealed Temporary Restraining Order. In addition, service of process was 

also effectuated by publication by posting a true and correct copy of the 

Amended Complaint, Issued Summons and additional documents filed in 

this case on the website: 

https://www.dropbox.com/sh/7jxnlm9jugvu2lg/AABoMp7AKBqiwni_WPb_Uyca?dl=0.

[ECF No. 127, p. 1 (footnote omitted)].

Plaintiff explained that:

Defendants were served on January 13, 2023, with the Amended Complaint, 

however, at the time of filing the prior proofs of service, Plaintiff 

4 As noted in the Undersigned’s Order, “Judge Scola did not authorize alternative 

service of process on Defendants until December 22, 2022. [ECF No. 17]. By then, the 

Amended Complaint had already been filed and was the operative pleading in the case.” 

[ECF No. 123, p. 4 n.4].

Case 1:22-cv-24013-RNS Document 138 Entered on FLSD Docket 10/04/2023 Page 8 of 28
9

inadvertently stated it had served the Complaint, when in fact, it served 

the Amended Complaint. As such, this filing is being made to correct the 

inadvertent mischaracterization of the document that was served. This 

correction is also being made pursuant to ECF No. 123.

Id. at 1, n.1 (emphasis added).

Because Plaintiff complied with Judge Scola’s Order [ECF No. 17] authorizing 

alternative service of process over Defendants, Plaintiff has effectuated service of process 

on the Defaulted Defendants in the instant case. See Leading Edge Mktg. Inc. v. Individuals, 

P’ships & Unincorporated Ass’ns Identified on Schedule "A", No. 21-23480-CIV, 2022 WL 

16756952, at *2 (S.D. Fla. Nov. 7, 2022), report and recommendation adopted, No. 21-23480-

CIV, 2022 WL 17144227 (S.D. Fla. Nov. 22, 2022) (finding defendants have been “properly 

served . . . with the [c]omplaint and summonses via email and Internet publication, 

consistent with the Court’s Order Authorizing Alternate Service”); Ain Jeem, Inc. v. 

Individuals, P’ships & Unincorporated Ass’ns Identified on Schedule "A", No. 8:21-CV-1261-

VMC-JSS, 2022 WL 2306858, at *2 (M.D. Fla. Jan. 27, 2022), report and recommendation 

adopted sub nom. Ain Jeem, Inc. v. Individuals, No. 8:21-CV-1261-VMC-JSS, 2022 WL 2306874 

(M.D. Fla. Feb. 15, 2022) (finding that “[the] [p]laintiff [had] properly effected service on 

[the] [d]efendants pursuant to Federal Rule of Civil Procedure 4(f)(3)” by complying with 

the court’s order authorizing alternate service of process).

Case 1:22-cv-24013-RNS Document 138 Entered on FLSD Docket 10/04/2023 Page 9 of 28
10

ii. Amenability to Jurisdiction

The Amended Complaint alleges “[u]pon information and belief, Defendants are 

individuals, partnerships and/or business entities of unknown makeup, who either reside 

and/or operate in foreign jurisdictions.” [ECF No. 10, ¶ 8]. “The plaintiff has the burden 

of establishing a prima facie case of personal jurisdiction over a nonresident defendant.” 

Meier ex rel. Meier v. Sun Int’l Hotels, Ltd., 288 F.3d 1264, 1268–69 (11th Cir. 2002). “A 

plaintiff seeking the exercise of personal jurisdiction over a nonresident defendant bears 

the initial burden of alleging in the complaint sufficient facts to make out a prima facie

case of jurisdiction.” United Techs. Corp. v. Mazer, 556 F.3d 1260, 1274 (11th Cir. 2009); see 

also Warner Bros. Ent. Inc. v. Phillips, No. 6:14-CV-1294-ORL-37, 2015 WL 4590519, at *3 

(M.D. Fla. July 28, 2015) (“Even in the default judgment context, as a threshold matter, 

the plaintiff bears the burden of pleading sufficient facts to make out a prima facie case of 

personal jurisdiction over non-resident defendants.”).

In Leading Edge Mktg., Inc. v. Individuals, P’ships & Unincorporated Ass’ns Identified 

on Schedule “A”, this Court determined that it had “personal jurisdiction over the 

[d]efendants” because they had been served in accordance with the “Court’s order 

authorizing alternative service” of process and:

[the] [d]efendants directly target their business activities toward consumers 

in the United States, including Florida, and . . . [were] reaching out to do 

business with Florida residents by operating one or more commercial, 

interactive internet stores on internet marketplaces where Florida residents 

Case 1:22-cv-24013-RNS Document 138 Entered on FLSD Docket 10/04/2023 Page 10 of 28
11

[could] purchase products bearing infringing and/or counterfeit 

trademarks belonging to the [p]laintiff.

No. 23-CV-21333, 2023 WL 3392684, at *2 (S.D. Fla. May 10, 2023).

Similarly here, the Amended Complaint alleges that:

9. Defendants target their business activities towards consumers 

throughout the United States, including Florida and this District using the 

operation of Internet based e-commerce stores, such as Amazon.com, via 

Internet marketplace websites using their Seller IDs and additional seller 

identification aliases and domain names not yet known to Plaintiff.

***

15. Defendants . . . purposefully direct their sales of goods, utilizing 

Plaintiff’s Patent, to Florida residents by operating stores through online 

Platforms that offer shipping within the United States, including Florida

and this District. [ ] Defendants infringe Plaintiff’s Patent in this District

by manufacturing, importing, promoting, reproducing, offering for sale, 

selling, and/or distributing unauthorized reproductions of Plaintiff’s Patent 

through such Internet based e-commerce stores and fully interactive 

commercial Internet websites and Plaintiff’s claims arise out of these

activities.

16. . . . Defendants are, upon information and belief, aliens engaged in 

infringing activities and causing harm within this District by advertising, 

importing, promoting, reproducing, offering for sale, selling, and/or 

distributing goods that incorporate and infringe Plaintiff’s Patent into this 

District[.]

[ECF No. 10, ¶¶ 9, 15, 16 (emphasis added)].

Plaintiff has shown that the Defaulted Defendants are amenable to personal 

jurisdiction in Florida. Because “a defaulted defendant is deemed to have admitted the 

Case 1:22-cv-24013-RNS Document 138 Entered on FLSD Docket 10/04/2023 Page 11 of 28
12

movant’s well-pleaded allegations of fact,”5 these established facts provide a basis for this 

Court’s personal jurisdiction over the Defaulted Defendants. See TWOWS, LLC v. 

Individuals, P’ships & Unincorporated Ass’ns Identified on Schedule "A", No. 

823CV00139WFJMRM, 2023 WL 2837693, at *2 (M.D. Fla. Apr. 7, 2023) (“[The] [p]laintiff 

has demonstrated a prima facie showing that this Court has specific personal jurisdiction 

over the [d]efendants. [The] [d]efendants, alleged to be residing or operating in outside 

[sic] the United States, and are alleged to have committed a tortious act within the state 

of Florida in satisfaction of Fla. Stat. § 48.193(1)(b).”).6

In sum, Plaintiff has demonstrated that this Court has both subject-matter and 

personal jurisdiction over the Defaulted Defendants.

5 Perez v. Wells Fargo N.A., 774 F.3d 1329, 1339 (11th Cir. 2014).

6 See also Lead Creation Inc. v. P’ships & Unincorporated Ass’ns Identified on Schedule A, 

No. 8:23-CV-49-CEH-CPT, 2023 WL 1993971, at *2 (M.D. Fla. Feb. 14, 2023) (“[The] 

[p]laintiff has demonstrated a prima facie showing that this Court has personal jurisdiction 

over the [d]efendants, who are alleged to be residing or operating in the People’s 

Republic of China, because the [d]efendants directly target their business activities 

toward consumers in the United States, including Florida. Specifically, [the] [p]laintiff 

has provided a basis to conclude that [the] [d]efendants have targeted sales to Florida 

residents by setting up and operating e-commerce stores that target United States 

consumers using one or more [s]eller [a]liases, offer shipping to the United States, 

including Florida, accept payment in U.S. dollars and have sold the same product that 

infringes directly and/or indirectly [the] [p]laintiff’s patent-in-suit to residents of 

Florida.”).

Case 1:22-cv-24013-RNS Document 138 Entered on FLSD Docket 10/04/2023 Page 12 of 28
13

c. No Possibility of Inconsistent Judgments

In Daka Rsch., Inc. v. Individuals, Partnerships & Unincorporated Associations Identified 

on Schedule “A”, this Court denied without prejudice a motion for default judgment 

against some (but not all) defendants because “the possibility of inconsistent judgments 

between the [d]efaulting and [n]on-[d]efaulting [d]efendants weigh[ed] in favor of 

denying [the] [p]laintiff’s request for a default judgment as premature.” No. 22-CV-60246, 

2022 WL 17583434, at *1 (S.D. Fla. Oct. 27, 2022), report and recommendation adopted, ECF 

No. 73 (S.D. Fla. Mar. 21, 2023).

Notably, the operative complaint in Daka Rsch., Inc. alleged one count of patent 

infringement against all defendants and contained allegations that the defendants acted 

in concert with each other to infringe on the plaintiff’s patent. Id. at *3.7 Moreover, “[t]he 

7 Specifically, the operative complaint in Daka Rsch., Inc. alleged that:

[The] [d]efendants “without any authorization or license from [the] 

[p]laintiff, have jointly and severally, knowingly and willfully offered for 

sale, sold, and/or imported into the United States for subsequent resale or 

use products that infringe directly and/or indirectly the [p]laintiff’s 

[p]atents.” [It] further allege[d] that: (i) [the] [d]efendants, either 

individually or jointly, operate one or more e-commerce stores; (ii) [the] 

[d]efendants are in constant communication with each other and 

regularly participate in QQ.com chat rooms and through websites (such 

as sellerdefense.cn, kaidianyo.com, and kuajingvs.com) regarding tactics 

for operating multiple accounts, evading detection, pending litigation, 

and potential new lawsuits; and (iii) [the] [d]efendants are an interrelated 

group of infringers working in active concert to knowingly and willfully 

manufacture, import, distribute, offer for sale, and sell [i]nfringing 

Case 1:22-cv-24013-RNS Document 138 Entered on FLSD Docket 10/04/2023 Page 13 of 28
14

[m]otion [for default judgment] . . . [was] silent regarding the allegations in the 

[operative] [c]omplaint of joint and several liability and the possibility of inconsistent 

liability between the [d]efaulting and [n]on-[d]efaulting [d]efendants.” Id.

Here, the Amended Complaint [ECF No. 10] does not allege that Defendants are 

jointly and severally liable or that they worked together to violate the law. Moreover, 

Plaintiff asserts in the instant motion that “[t]here are no allegations of joint liability or 

possibility of inconsistent liability between the Default[ed] Defendants.” [ECF No. 131, p. 

1]; id. at 9.

Additionally, at the Undersigned’s direction [ECF No. 134], Plaintiff filed a notice 

representing that “[a]t the present time there are no remaining Defendants in this action 

that have not been defaulted.” [ECF No. 137].

Based on Plaintiff’s submissions [ECF Nos. 131; 137] and representations to the 

Court, the Undersigned is persuaded that the entry of a default judgment against the 

Defaulted Defendants will not lead to the possibility of inconsistent liability. See Max'is 

Creations, Inc. v. The Individuals, P’ships, & Unincorporated Ass’ns Identified on Schedule “A”,

No. 21-CV-22920, 2022 WL 104216, at *2 (S.D. Fla. Jan. 11, 2022) (finding “no possibility 

[p]roducts in the same transaction, occurrence, or series of transactions or 

occurrences.

2022 WL 17583434, at *3 (emphasis added; record citations omitted).

Case 1:22-cv-24013-RNS Document 138 Entered on FLSD Docket 10/04/2023 Page 14 of 28
15

of inconsistent liability between the [d]efendants” where “[the] [p]laintiff ha[d] stated in 

its [m]otion that there [were] no allegations of joint and several liability with respect to 

damages” and “[t]he [d]efendants remaining in the case ha[d] not appeared and ha[d] 

defaulted”); Safety Nailer LLC v. Individuals, P’ships , & Unincorporated Ass’ns Identified on 

Schedule “A”, No. 21-CV-22703, 2021 WL 6197744, at *2 (S.D. Fla. Dec. 30, 2021) (finding 

“a sufficient basis in the pleading for the default judgment to be entered in favor of [the] 

[p]laintiff with respect to the defaulting [d]efendants” where “[the] [p]laintiff has stated 

in its [m]otion that there [were] no allegations of joint and several liability with respect 

to damages” and “[the] [d]efendants remaining in the case ha[d] not appeared and ha[d] 

defaulted”).

d. Liability

As noted above, Plaintiff has alleged a single count of patent infringement against 

Defendants. The Amended Complaint alleges that Plaintiff is the owner of the 664 Patent, 

a federally registered patent. [ECF No. 10, ¶ 1]. A copy of the 664 Patent is attached as 

Exhibit 1 to the Amended Complaint. [ECF No. 10-1]. “A properly registered patent is 

presumed to be valid.” Kiss Nail Prod., Inc. v. Shenzhen Jinri Elec. Appliance Co., No. 

CV185625PKCAYS, 2020 WL 4679631, at *5 (E.D.N.Y. July 23, 2020), report and 

recommendation adopted, No. 18CV5625PKCAYS, 2020 WL 4676415 (E.D.N.Y. Aug. 12, 

2020) (citing 35 U.S.C. § 282). “[O]vercoming that presumption requires clear and 

Case 1:22-cv-24013-RNS Document 138 Entered on FLSD Docket 10/04/2023 Page 15 of 28
16

convincing evidence.” Spectrum Pharms., Inc. v. Sandoz Inc., 802 F.3d 1326, 1333 (Fed. Cir. 

2015). Here, the Defaulted Defendants have not challenged this presumption or otherwise 

participated in this lawsuit. Based on the uncontested record, Plaintiff is the owner of a 

valid patent.

Under the Patent Act, “whoever without authority makes, uses, offers to sell, or 

sells any patented invention, within the United States or imports into the United States 

any patented invention during the term of the patent therefor, infringes the patent.” 35 

U.S.C. § 271(a). In the instant case, Plaintiff has alleged the infringement of a design 

patent. See [ECF No. 10, ¶ 1 (“This is a civil action for design patent infringements 

pursuant to the Patent Act, 35 U.S.C. § 101 et seq., including 35 U.S.C. § 271.”)].

This Court has explained that:

A design patent is infringed when, “during the term of a patent for a design, 

without license of the owner” a defendant “(1) applies the patented design, 

or any colorable imitation thereof, to any article of manufacture for the 

purpose of sale, or (2) sells or exposes for sale any article of manufacture to 

which such design or colorable imitation has been applied." 35 U.S.C. § 289. 

“Determining whether a design patent is infringed is a two-step process. 

First, when appropriate, the design patent's claims are construed. Second, 

the patented design is compared to the accused device.” Pride Family Brands, 

Inc. v. Carl’s Patio, Inc., 992 F. Supp. 2d 1214, 1223-24 (S.D. Fla. 2014) “The 

‘ordinary observer’ test is the sole test for determining whether a design 

patent has been infringed.” Columbia Sportswear N. Am., Inc. v. Seirus 

Innovative Accessories, Inc., 942 F.3d 1119, 1129 (Fed. Cir. 2019) (citing 

Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665, 678 (Fed. Cir. 2008)). Under 

this test, “if, in the eye of an ordinary observer, giving such attention as a 

purchaser usually gives, two designs are substantially the same, if the 

resemblance is such as to deceive such an observer, inducing him to 

Case 1:22-cv-24013-RNS Document 138 Entered on FLSD Docket 10/04/2023 Page 16 of 28
17

purchase one supposing it to be the other, the first one patented is infringed 

by the other.” Gorham Mfg. Co. v. White, 81 U.S. 511, 528, 14 Wall. 511, 20 L.

Ed. 731 (1871). “Minor differences between a patented design and an 

accused article's design cannot, and shall not, prevent a finding of 

infringement.” Crocs, Inc. v. Int'l Trade Com’n, 598 F.3d 1294, 1303 (Fed. Cir. 

2010) (quoting Payless Shoesource, Inc. v. Reebok Intern. Ltd., 998 F.2d 985, 991 

(Fed. Cir. 1993)) (cleaned up).

XYZ Corp. v. Individuals, P’ships, & Unincorporated Associations Identified on Schedule “A”, 

No. 22-CV-24022, 2023 WL 2815123, at *2 (S.D. Fla. Apr. 5, 2023) (emphasis added); see 

also Shenzhen Changyu Tech. Co. v. Individuals, P’ships & Unincorporated Associations 

Identified on Schedule A, No. 21-22138-CIV, 2021 WL 4991242, at *2 (S.D. Fla. Sept. 13, 2021) 

(“[The] [p]laintiff must demonstrate that the accused product infringes a patented design. 

First, the Court must perform claim construction on the design patent claims. See Catalina 

Lighting, Inc. v. Lamps Plus, Inc., 295 F.3d 1277, 1285 (Fed. Cir. 2002). Second, the Court 

must apply the “ordinary observer” test for design patent infringement. Egyptian Goddess, 

Inc. v. Swisa, Inc., 543 F.3d 665, 678 (Fed. Cir. 2008).”).

In Shenzhen Changyu Tech. Co., this Court found that the plaintiff had met its 

burden of establishing design patent infringement liability, in the context of a default 

final judgment motion, where:

[t]he well-pleaded factual allegations of . . . [the] [c]omplaint properly 

contain[ed] the elements for the [patent infringement] claim and [were]

admitted by virtue of [the] [d]efendants’ defaults. Moreover, the 

[c]omplaint’s factual allegations ha[d] been substantiated by sworn 

declarations and other evidence and establish[ed] [the] [d]efendants’ 

liability for the claim asserted.

Case 1:22-cv-24013-RNS Document 138 Entered on FLSD Docket 10/04/2023 Page 17 of 28
18

Id. at *3 (record citations omitted).

Similarly here, the Amended Complaint alleges that:

3. Without Plaintiff’s authorization or license, Defendants are 

manufacturing, importing, promoting, reproducing, offering for sale, 

selling, and/or distributing goods that incorporate and infringe Plaintiff’s 

Patent within this District through various Internet based ecommerce stores 

and fully interactive commercial Internet websites operating under the 

seller identification names set forth on Schedule “A” . . . . Such infringement 

is both deliberate and willful.

***

21. Plaintiff has not granted a license or any other authorizations to 

Defendants to make, use, offer for sale, sell and/or import goods that 

embody the design patented in the 664 Patent which is proprietary to 

Plaintiff.

***

28. Defendants’ use of Plaintiff’s Patent to create the Counterfeit Copies, 

is without Plaintiff’s consent or authorization.

***

40. Without Plaintiff’s permission or authorization, Defendants have 

infringed one or more of Plaintiff’s exclusive rights relating to the federally 

registered 664 Patent by importing, manufacturing, offering for sale, and/or 

selling Counterfeit Copies which embody the design covered by Plaintiff’s 

Patent.

Id. at ¶¶ 3, 21, 28, 40.

Case 1:22-cv-24013-RNS Document 138 Entered on FLSD Docket 10/04/2023 Page 18 of 28
19

Additionally, in support of his patent infringement claim, Plaintiff has submitted 

his own sworn declaration [ECF No. 11] and the sworn declaration of his attorney [ECF 

No. 12]. Attached as Schedule C [ECF No. 131-1] to the instant motion is a side-by-side 

pictorial comparison of Plaintiff’s patented pet center control seat and each Defaulted 

Defendant’s infringing product.

In cases involving design patents:

If the resemblance between the two designs is sufficient to deceive the 

ordinary observer, inducing him/her to purchase one thinking it was the 

other, then the first one patented is infringed by the other. Pride Fam. Brands, 

Inc. v. Carl’s Patio, Inc., 992 F. Supp. 2d 1214, 1224 (S.D. Fla. 2014) (citation 

omitted). A proper comparison may include a side-by-side view of the 

design patent drawings and the accused products, and minor differences 

between a patented design and the design of an accused product does not 

preclude a finding of infringement. Int’l Seaway Trading Corp. v. Walgreens 

Corp., 589 F.3d 1233, 1243 (Fed. Cir. 2009).

Daka Rsch., Inc., 2023 WL 5310240, at *3 (emphasis added).

Here, the well-pled allegations in the Amended Complaint, deemed admitted by 

virtue of the default8 and bolstered by sworn declarations and other record evidence, 

including side-by-side comparisons of the 664 Patent and the infringing products,

establish the Defaulted Defendants’ liability under the Patent Act.

Moreover, in his preliminary injunction Order, Judge Scola observed that:

A simple comparison of the Injunction Defendants’ infringing goods 

with [Plaintiff]’s Patent and any layman can observe the Injunction 

8 Perez, 774 F.3d at 1339.

Case 1:22-cv-24013-RNS Document 138 Entered on FLSD Docket 10/04/2023 Page 19 of 28
20

Defendants’ infringement of Zhou’s exclusive patent rights as the images 

are virtually exact duplicates or substantially similar images to the ’664 

Patent. (Compare Patent at Ex. 1 (ECF No. 10-1) with screenshots of the 

Injunction Defendants’ products on their e-commerce stores (Sch. B., ECF

Nos. 12-1 to 12-9); Humberto Rubio, December 20, 2022, Decl. (“Rubio TRO 

Decl.”) at ¶ 5, ECF No. 12; [Plaintiff] Decl. at ¶¶ 12–15).

[ECF No. 43, p. 2 (emphasis added)]. In sum, Plaintiff showed that the Defaulted 

Defendants have infringed on the 664 Patent.

e. Damages

“Once a plaintiff has established a sufficient basis for liability, the Court must 

conduct an inquiry to determine the appropriate damages.” Gov’t Emps. Ins. Co. v. 

Compass Med. Centers Inc., No. 21-CV-23623, 2022 WL 17653816, at *2 (S.D. Fla. Nov. 10, 

2022), report and recommendation adopted, No. 21-23623-CIV, 2022 WL 17602650 (S.D. Fla. 

Dec. 13, 2022). Even in the default judgment context, the Court “has an obligation to 

assure that there is a legitimate basis for any damage award it enters.” Anheuser Busch, 

Inc. v. Philpot, 317 F.3d 1264, 1266 (11th Cir. 2003). “Although a defaulted defendant 

admits well-pleaded allegations of liability, allegations relating to the amount of damages 

are not admitted by virtue of default. Rather, the Court determines the amount and 

character of damages to be awarded.” Miller v. Paradise of Port Richey, Inc., 75 F. Supp. 2d 

1342, 1346 (M.D. Fla. 1999) (citing 10A Charles Alan Wright, Arthur R. Miller & Mary Kay 

Kane, Fed. Prac. & Proc. Civ. § 2688 at 58–59 (3d ed.1998)).

Case 1:22-cv-24013-RNS Document 138 Entered on FLSD Docket 10/04/2023 Page 20 of 28
21

Here, Plaintiff seeks: (1) the entry of a permanent injunction and (2) monetary 

damages. As discussed below, Plaintiff is entitled to the relief requested.

i. Injunctive Relief

Plaintiff seeks the issuance of a permanent injunction. [ECF No. 131, pp. 9-12]. A 

court may award injunctive relief in patent infringement cases. See Daka Rsch., Inc., 2023 

WL 5310240, at *4 (noting that “[p]ermanent injunctive relief to prevent continued patent 

infringement is appropriate” where the required factors are met); Unilin Beheer B.V. v. 

U.S. Wood Flooring, Inc., No. 17-60107-CIV, 2017 WL 5953423, at *6 (S.D. Fla. June 22, 2017)

(“In a patent infringement action, a district court ‘may grant injunctions in accordance 

with the principles of equity to prevent the violation of any right secured by patent, on 

such terms as the court deems reasonable.’” (quoting 35 U.S.C. § 283.)). Moreover, 

“[i]njunctive relief is available in a default judgment setting.” XYZ Corp., 2023 WL 

2815123, at *4 (citing PetMed Express, Inc. v. MedPets.Com, Inc., 336 F. Supp. 2d 1213, 1223 

(S.D. Fla. 2004)).

Here, Judge Scola already entered a preliminary injunction [ECF No. 43] and 

Plaintiff represents to the Court that “[n]o change has occurred since then[.]” [ECF No. 

131, p. 10].

To obtain a permanent injunction, Plaintiff must show: (1) irreparable injury; (2) 

an inadequate remedy at law; (3) that the balance of hardships weighs in favor of issuing 

Case 1:22-cv-24013-RNS Document 138 Entered on FLSD Docket 10/04/2023 Page 21 of 28
22

an injunction; and (4) the issuance of an injunction would not disserve the public interest. 

eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391, 126 S. Ct. 1837, 1839, 164 L. Ed. 2d 641 

(2006).

All four factors are met here. Plaintiff has shown that he is the owner of the 664 

Patent and that the Defaulted Defendants (without Plaintiff’s permission or license) are 

promoting, selling, reproducing, offering for sale, and/or distributing goods using 

unauthorized copies of the 664 Patent through various internet-based e-commerce stores 

and fully interactive commercial internet websites. [ECF No. 10]. Therefore, consumers 

will continue to be confused by the Defaulted Defendants’ unauthorized use of the 664 

Patent.

Plaintiff has “expended time, money and other resources developing, advertising 

and otherwise promoting the 664 Patent.” [ECF No. 11-1, ¶ 7]. He attests that monetary 

damages are insufficient “to address the loss of control over [his] intellectual property 

and goodwill” and that the infringing activity “impairs the market value of the 664 Patent 

since others competing with Defendants’ businesses, or in related business areas, will not 

want to obtain a license to [his] 064 [sic] Patent if it is already associated with a competing 

business” and “potential licensees of [his] 664 Patent will not want to pay license fees if 

they see other commercial enterprises taking and using [his] design patent for their own 

commercial purposes without paying any fee at all.” Id. at ¶¶ 17–18.

Case 1:22-cv-24013-RNS Document 138 Entered on FLSD Docket 10/04/2023 Page 22 of 28
23

Thus, so long as the Defaulted Defendants continue their infringing activities, 

Plaintiff loses his ability to control his patent and will continue to suffer irreparable harm 

to his intellectual property and goodwill. See Levi Strauss & Co. v. Sunrise Int’l Trading Inc., 

51 F.3d 982, 986 (11th Cir. 1995) (“There is no doubt that the continued sale of thousands 

of pairs of counterfeit jeans would damage LS & CO’s business reputation and decrease 

its legitimate sales.”); Ferrellgas Partners, L.P. v. Barrow, 143 F. App’x 180, 190 (11th Cir. 

2005) (noting that “[g]rounds for irreparable injury include loss of control of reputation, 

loss of trade, and loss of goodwill. Irreparable injury can also be based upon the 

possibility of confusion.” (citation omitted)).

Plaintiff has also shown he has no adequate remedy at law because monetary 

damages alone will not redress the harm to him from the Defaulted Defendant’s 

infringement. See Chanel, Inc. v. besumart.com, 240 F. Supp. 3d 1283, 1290 (S.D. Fla. 2016) 

(“[The] [p]laintiff has no adequate remedy at law so long as [the] [d]efendants continue 

to operate the [s]ubject [d]omain [n]ames and [s]eller IDs because [the] [p]laintiff cannot 

control the quality of what appears to be its products in the marketplace. An award of 

money damages alone will not cure the injury to [the] [p]laintiff’s reputation and 

goodwill that will result if [the] [d]efendants’ infringing and counterfeiting actions are 

allowed to continue.” (record citation omitted)).

Case 1:22-cv-24013-RNS Document 138 Entered on FLSD Docket 10/04/2023 Page 23 of 28
24

The balance of harms also weighs in favor of issuing a permanent injunction.

Plaintiff’s injury without an injunction outweighs the impact an injunction would have 

on the Defaulted Defendants. See Chanel, Inc. v. Replicachanelbag, 362 F. Supp. 3d 1256, 

1264 (S.D. Fla. 2019) (finding that the balance of harms favored the issuance of a 

permanent injunction where “[the] [p]laintiff face[d] hardship from loss of sales and its 

inability to control its reputation in the marketplace,” whereas “[the] [d]efendants face[d] 

no hardship if they [were] prohibited from the infringement of [the] [p]laintiff’s

trademarks, which is an illegal act.”).

Lastly, the public interest will not be disserved if the Court were to permanently 

enjoin the Defaulted Defendants because “a permanent injunction to prevent consumer 

confusion serves the public interest.” Badia Spices, Inc. v. Gel Spice Co., Inc., No. 1:15-CV24391-MGC, 2019 WL 7344820, at *2 (S.D. Fla. Oct. 23, 2019); see also Mantua Mfg. Co. v. 

Irize Mattress, Inc., No. 20-25036-CIV, 2021 WL 3375837, at *5 (S.D. Fla. Feb. 24, 2021) (“The 

public interest is served by the entry of a permanent injunction in that further confusion 

and mistake by the public will be prevented.”).

In sum, Plaintiff has shown entitlement to permanent injunctive relief. Therefore, 

the Undersigned respectfully recommends that the Court enter permanent injunctive 

relief against the Defaulted Defendants consistent with the terms listed in Plaintiff’s 

proposed final default judgment and permanent injunction [ECF No. 131-5, pp. 4–6].

Case 1:22-cv-24013-RNS Document 138 Entered on FLSD Docket 10/04/2023 Page 24 of 28
25

ii. Monetary Damages

Plaintiff seeks monetary damages pursuant to 35 U.S.C. § 289. [ECF No. 131, p. 12]; 

see also Amended Complaint [ECF No. 10, p. 10 (in the prayer for relief, listing monetary 

damages pursuant to § 289)]. “Under 35 U.S.C. § 289, a plaintiff in a case involving the 

unauthorized application or colorable imitation of a patented design on any article for 

purpose of sale may elect to receive the infringer’s ‘total profit, but not less than $250.’” 

Max’is Creations, Inc., 2022 WL 104216, at *9 (quoting 35 U.S.C. § 289).

Here, Plaintiff asks for an “award the greater of the amount restrained [by the ecommerce platforms pursuant to this Court’s preliminary injunction order [ECF No. 43]] 

or $250.00 for each Defaulting Defendant.” [ECF No. 131, p. 14]. Plaintiff notes that 

“[s]ince [the] Default[ed] Defendants have chosen not to participate in these proceedings, 

Plaintiff has limited available information regarding [the] Default[ed] Defendants’ profits 

from the sale of Infringing Products.” Id.

Plaintiff has filed a declaration from his counsel which includes a chart listing the 

amount of restrained funds9 for each Defaulted Defendant or denoting Plaintiff’s 

preference for the $250.00 minimum. [ECF No. 131-1, ¶ 11]. The Undersigned has added 

the sums listed on this chart, which total $145,163.92.

9 The balances in the restrained accounts range from $0.00 to $52,518.57. [ECF No. 

131-1, ¶ 10].

Case 1:22-cv-24013-RNS Document 138 Entered on FLSD Docket 10/04/2023 Page 25 of 28
26

In Daka Rsch., Inc., this Court awarded the amounts restrained in the defaulted 

defendants’ e-commerce accounts to compensate the plaintiff for the infringement of its 

patent, noting that:

based on the record before the Court, the undersigned finds that [the] 

[p]laintiff is entitled to monetary damages based on the [d]efaulting 

[d]efendants’ profits. More specifically, in the [m]otion, [the] [p]laintiff has 

estimated the reasonable royalties to be the amounts currently restrained 

by [t]hird [p]arty [p]roviders holding funds for the [d]efaulting 

[d]efendants. In support of its request for monetary damages, [the] 

[p]laintiff has submitted the [d]eclaration of [plaintiff’s counsel], which lists 

amounts held by Amazon in the [d]efaulting [d]efendants’ known financial 

accounts. These amounts range from $1,039.16 to $65,925.37 for each of the 

[d]efaulting [d]efendants.

2023 WL 5310240, at *5 (emphasis added; record citations omitted).

Similarly here, the Undersigned finds that the greater of $250.00 or the amount 

restrained in the e-commerce account of each Defaulted Defendant is an adequate and 

reasonable measure of damages to compensate Plaintiff for the patent violation, given 

that the Defaulted Defendants have chosen not to participate in this lawsuit and the 

Defaulted Defendants’ lost profits from the infringement cannot be ascertained.

Case 1:22-cv-24013-RNS Document 138 Entered on FLSD Docket 10/04/2023 Page 26 of 28
27

Accordingly, the Undersigned respectfully recommends that the Court award 

Plaintiff the greater of $250.00 or the amounts restrained in the e-commerce accounts 

(totaling $145,163.92) as monetary damages for the Defaulted Defendants’ infringement.

IV. Conclusion

For the reasons stated above, the Court should grant Plaintiff’s motion, issue a 

permanent injunction against the Defaulted Defendants, and award the requested sums 

in monetary damages (totaling $145,163.92).

Plaintiff will provide a copy of this Report and Recommendations to the Defaulted

Defendants in the same manner in which the Court authorized alternative service of 

process on Defendants. [ECF No. 17]. Plaintiff will file a notice of compliance on CM/ECF 

by no later than Wednesday, October 11, 2023.

V. Objections

The parties will have fourteen (14) days from the date of being served with a copy 

of this Report and Recommendations within which to file written objections, if any, with 

United States District Judge Robert N. Scola, Jr. Each party may file a response to the 

other party’s objection within fourteen (14) days of the objection. Failure to file objections 

timely shall bar the parties from a de novo determination by the District Judge of an issue 

covered in the Report and shall bar the parties from attacking on appeal unobjected-to 

factual and legal conclusions contained in this Report except upon grounds of plain error 

Case 1:22-cv-24013-RNS Document 138 Entered on FLSD Docket 10/04/2023 Page 27 of 28
28

if necessary in the interest of justice. See 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140, 

149 (1985); Henley v. Johnson, 885 F.2d 790, 794 (11th Cir. 1989); 11th Cir. R. 3-1 (2016).

RESPECTFULLY RECOMMENDED in Chambers, in Miami, Florida, on October 

4, 2023.

Copies furnished to:

The Honorable Robert N. Scola, Jr.

All Counsel of Record

Case 1:22-cv-24013-RNS Document 138 Entered on FLSD Docket 10/04/2023 Page 28 of 28