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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

KELLIE DEFRIES,

Plaintiff, 

v. 

MSB TRADE INC., et al., 

Defendants.

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Civil Action No. 3:22-cv-00549-M 

MEMORANDUM OPINION AND ORDER

 Before the Court are Plaintiff’s Requests for the Clerk of Court to enter default judgment. 

ECF Nos. 113, 117. By July 22, 2024, Plaintiff shall address the deficiencies identified herein. 

An evidentiary hearing on Plaintiff’s claimed damages is SET for July 24, 2024, 1:30 p.m. 

CST, in Courtroom 1570, Earle Cabell Federal Building, 1100 Commerce St., Dallas, Texas. 

I. Background 

Plaintiff is the named inventor on five asserted patents: three utility patents1 and two 

design patents.2 Plaintiff alleges that the asserted patents protect her invention, a double-ended 

tool for picking up and placing crystals, gems, and rhinestones, which “generally appears in US 

commerce” as follows: 

1 Specifically, U.S. Patent Nos. 10,308,005 (“’005 patent”), 10,675,852 (“’852 patent”), and 10,967,625 (“’625 

patent”). 

2 Specifically, U.S. Patent Nos. D867,838 (“’838 patent”), and D867,839 (“’839 patent”).

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ECF No. 34 (“FAC”) ¶¶ 26–27. 

On March 3, 2023, Plaintiff filed the First Amended Complaint, asserting infringement of 

claims 1, 9–11 of the ’005 patent, claim 1 of the ’852 patent, claim 1 of the ’625 patent, claim 1 

of the ’838 patent, and claim 1 of the ’839 patent (collectively, the “asserted claims”). The First 

Amended Complaint names 285 Defendants, US-based sellers on and off Amazon, and Chinese 

entities selling on Amazon.

3

 Plaintiff alleges that Defendants sell counterfeit versions of her 

product, and in doing so, infringe the asserted claims. 

Several Defendants have been dismissed. On May 6, 2024, Plaintiff requested a Clerk’s 

entry of default for 158 Defendants, which was entered the next day. ECF Nos. 109, 110. On 

May 16, 2024, Plaintiff filed a Request for Clerk’s Entry of Default Judgment as to 33 of those 

defaulting Defendants; default judgment has not been entered. ECF No. 113. On June 20, 2024, 

Plaintiff requested a Clerk’s entry of default and default judgment for Defendant SEI Boutique, 

LLC. ECF Nos. 116, 117. The Clerk of Court entered default as to Defendant SEI Boutique, 

LLC, but has not entered default judgment. ECF No. 118. For purposes of this Order, the Court 

will refer to the 34 Defendants that Plaintiff seeks entry of default judgment for as the “34

Defaulting Defendants.” 

II. Legal Standard

Federal Rule of Civil Procedure 55 provides for entry of a default and default judgment 

when a party against whom judgment for affirmative relief is sought has failed to plead or 

otherwise defend. Fed. R. Civ. P 55(a). “Default judgment is proper only if the well-pleaded 

factual allegations in the . . . Complaint establish a valid cause of action.” United States v. 1998 

3 Specifically, the First Amended Complaint names 13 domestic Defendants using Amazon.com, 2 domestic 

Defendants not using Amazon.com, 208 foreign Amazon Defendants with email addresses, 38 foreign Amazon 

Defendants without email addresses, 5 foreign Defendants not using Amazon.com, and 19 “John Doe” Defendants 

using Amazon.com, but known only through their ASIN number. 

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Freightliner Vin #: 1FUYCZYB3WP886986, 548 F. Supp. 2d 381 (W.D. Tex. 2008); see also 

Nishimatsu Const. Co., Ltd. v. Houston Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975) (“There 

must be a sufficient basis in the pleadings for the judgment.”). After the clerk enters a default, 

“the plaintiff’s well-pleaded factual allegations are taken as true, except regarding damages.” 

U.S. For Use of M-Co Constr., Inc. v. Shipco Gen., Inc., 814 F. 2d 1011, 1014 (5th Cir. 1987).

If the plaintiff’s claim is for “a sum certain or a sum that can be made certain by 

computation,” the Clerk of Court may enter default judgment. Fed. R. Civ. P. 55(b)(1). 

Otherwise, the plaintiff must move the Court for default judgment. Fed. R. Civ. P. 55(b)(2). 

In considering a motion for default judgment, the Court will consider (1) whether the 

entry of default judgment is procedurally warranted, (2) whether a sufficient basis in the 

pleadings based on the substantive merits for judgment exists, and (3) what form of relief, if any, 

a plaintiff should receive. Lindsey v. Prive Corp., 161 F.3d 886, 893 (5th Cir. 1998). The Fifth 

Circuit employs the factors in Lindsey v. Prive Corp., 161 F.3d 886, 893 (5th Cir. 1998), when 

considering whether entry of default judgment is procedurally warranted: (1) whether material 

issues of fact exist; (2) whether there has been substantial prejudice; (3) whether grounds for 

default are clearly established; (4) whether default was caused by good faith mistake or 

excusable neglect; (5) harshness of default judgment; and (6) whether the court would feel 

obligated to set aside a default on the defendant’s motion. Id.

III. Analysis

a. Entry of default judgment by the Clerk of Court is not appropriate. 

Plaintiffs have requested that the Clerk of Court enter default judgment against the 34 

Defaulting Defendants at issue,

4 rather than the Court, asserting that Plaintiff’s requested relief is 

4 Specifically, the 34 Defaulting Defendants consist of Defendant SEI Boutique, LLC, and the 33 Defendants identified 

in Plaintiff’s May 6, 2024, Request. 

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for a “sum certain.” Specifically, Plaintiff contends that she is entitled to lost profit damages and 

pre-judgment interest based on “the sum certain total sales of infringing products within the 

Amazon.com platform by the . . . Defendants in default.” ECF Nos. 113-1 ¶ 5; 117-1 ¶ 5. In 

support of her request for lost profit damages, Plaintiff provides two affidavits. In each, she 

describes how her business, Crystal Ninja, sells “products subject to the claims of my patents,” 

and as part of that business, Plaintiff monitors online platforms for potentially infringing 

activities. ECF Nos. 113-1 ¶ 3; 117-1 ¶ 3. For the Amazon.com platform, Plaintiff’s company 

“retains the use of a third-party specialist who provides quarterly sales reports for each identified 

infringer.” Id. From these records, Plaintiff computed “the sum certain total sales of infringing 

products within the Amazon.com platform by” the Defendants named in Plaintiff’s requests for 

entry of default judgment. ECF Nos. 113-1 ¶ 5; 117-1 ¶ 5. Plaintiff’s affidavits further state that 

“[b]ecause I am the sole patent owner and sole owner of Crystal Ninja, any unauthorized sales of 

my patented products by any other entity are lost sales to my company and consequently lost 

profits to me.” ECF Nos. 113-1 ¶ 6; 117-1 ¶ 6. As a result, Plaintiff seeks $97,611.23 in alleged 

lost profits from Defendant SEI Boutique, LLC (ECF No. 117-1 ¶ 5) and $865,635.81 in alleged 

lost profits from the other 33 Defendants at issue (ECF No. 113-1 ¶ 5).5

 

The Court concludes that Plaintiff’s requested lost profits for patent infringement do not 

constitute a sum certain, and thus an entry of default judgment by the Clerk under Rule 55(b)(1) 

is not appropriate. Generally, damages are for a “sum certain” if they involve claims similar to 

“actions on [a] life insurance policy, for return of deposit, for statutory damages, lost earnings, 

5 Specifically, Plaintiff’s affidavit for the 33 Defendants contains a table listing each Defendant and an associated 

“total sales amount,” the total of which is purportedly $865,635.81. ECF No. 113-1 ¶ 5. Confusingly, Plaintiff’s 

Request for Clerk’s Entry of Default contains the same table, listing the same Defendants and same associated “total 

sales amount,” but computes the total amount as being $760,249.18. ECF No. 113 ¶ 6. In addition, several of the 

Defendants—namely, Defendant nanjingzongwei-zhongweiqiche and Defendant orgry us tech—are listed with total 

sales amounts of “$0.00.”

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paid medical expenses.” Nagy v. George, 2007 WL 9717320, at *2 (N.D. Tex. July 3, 2007). 

“Amounts based upon opinions and judgments, whether or not professional, are most likely not 

to result in a sum certain.” United States v. Aguirre, 1986 WL 13935, at *2 (S.D. Tex. Dec. 8, 

1986). 

In infringement cases, whether a patentee may be awarded lost profits is a question of 

law. DePuy Spine, Inc. v. Medtronic Sofamor Danek, Inc., 469 F.3d 1005, 1024 (Fed. Cir. 

2006). “A lost profits award is appropriate only if the patent owner can prove there was a 

reasonable probability that ‘but for’ the infringement, it would have made the infringer’s sales.” 

Kearns v. Chrysler Corp., 32 F.3d 1541, 1551 (Fed. Cir. 1994). Such entitlement to lost profits 

can be established through the Panduit test, which evaluates (1) demand for the patented 

product; (2) absence of acceptable non-infringing substitutes; (3) manufacturing and marketing 

capability to exploit the demand; and (4) the amount of the profit it would have made. Rite-Hite 

Corp. v. Kelley Co., 56 F.3d 1538, 1545 (Fed. Cir. 1995) (en banc) (citing Panduit Corp. v. 

Stahlin Bros. Fibre Works, Inc., 575 F.2d 1152 (6th Cir. 1978)). “[A] patentee is not entitled to 

lost profits if the patentee fails to establish any of the above requirements.” SmithKline 

Diagnostics, Inc. v. Helena Lab’ys Corp., 926 F.2d 1161, 1165 (Fed. Cir. 1991). 

In addition, a patentee is only entitled to recover lost profits, not lost revenues. E.g., 

Glaxo Group Ltd. v. Ranbaxy Pharmaceuticals, Inc., 262 F.3d 1333, 1339 (Fed. Cir. 2001) 

(“[P]atent damages are not paid for a total amount of lost sales.”). Thus, patentees seeking lost 

profits must provide evidence establishing incremental profit made from sale of the patented 

product. See, e.g., Info-Hold, Inc. v. Muzak LLC, 2013 WL 940393, *1–3 (S.D. Ohio 2013)

(patentee not entitled to recover lost profits where patentee produced no evidence of its gross and 

net profit margins on its products); Beckson Marine, Inc. v. NFM, Inc., 2007 WL 951706, at *2 

(W.D. Wash. Mar. 27, 2007) (“The measure of lost profits is the difference between the patent 

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owner’s cost of production and the price at which the patent owner would have sold the 

product.”). In addition, the proper measure of damages is the patentee’s lost profits and not a 

disgorgement of the infringer’s profits via an accounting.6

 See Water Techs. Corp. v. Calco, 

Ltd., 850 F.2d 660, 672 (Fed. Cir. 1988).

Both the entitlement to and calculation of lost profits involve the weighing of evidence 

and consideration of various issues, including the relevant market, manufacturing capability, and 

the calculation of marginal profit per sale. As a result, lost profits damages do not resemble the 

types of cases that typically involve sum certain damages, and thus Plaintiff’s request for lost 

profits is not eligible for entry of default judgment by the Clerk of Court. See, e.g., Tiger Team 

Techs., Inc. v. Synesi Grp., Inc., 371 F. App'x 90, 93 (Fed. Cir. 2010) (agreeing with the district 

court that a “sum certain” under Rule 55(b)(1) “does not refer to a mere claim by a party for a 

specific amount, such as a multimillion dollar claim for damages”). 

Instead, the Court construes Plaintiff’s request for Clerk’s entry of default judgment 

under Rule 55(b)(1) as a request that the Court enter default judgment under Rule 55(b)(2).7

 By 

July 22, 2024, Plaintiff will supplement her request for entry of default judgment under Rule 

55(b)(2), including to address the legal basis for her entitlement to lost profits under the Panduit

factors and a discussion of the relevant market. On July 24, 2024, at 1:30 p.m., the Court will 

hear evidence on all of Plaintiff’s claimed damages, including Plaintiff’s profit margins, the 

6 Under 35 U.S.C. § 289, a patentee may elect to recover an accused infringer’s profits—i.e., disgorgement—under 

§ 289 for design patent infringement. However, “[a] default judgment must not differ in kind from, or exceed in 

amount, what is demanded in the pleadings,” and thus Plaintiff is limited to the relief sought in her pleadings. See

Fed. R. Civ. P. 54(c). Plaintiff did not seek an award under § 289 in the First Amended Complaint, and thus cannot 

now seek disgorgement of Defendant’s profits as damages. 

7 The Court notes that Plaintiff’s requests state that “[f]or the purposes of this request for the Clerk of Court to enter 

default judgment only, Plaintiff waives all equitable forms of relief and any other forms of relief that are not calculable 

or would otherwise require a hearing before the Court.” ECF No. 113-1 ¶ 2; ECF No. 117-1 ¶ 2. Because Plaintiff 

limited her waiver solely to her request for the Clerk of Court to enter default judgment, the Court does not construe 

her waiver as extending to the Court’s decision to interpret her request under Rule 55(b)(2). 

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means by which Defendant’s sales were monitored, and the calculation of total sales per 

Defendant. 

b. Other Deficiencies

After a defendant has defaulted, the plaintiff's well-pleaded factual allegations are taken 

as true, except regarding damages. United States v. Shipco Gen., Inc., 814 F.2d 1011, 1014 (5th 

Cir. 1987); see also Nishimatsu Const. Co. v. Hous. Nat. Bank, 515 F.2d 1200, 1206 (5th Cir. 

1975) (stating that the defendant, by defaulting, “admits the plaintiff’s well-pleaded allegations 

of fact”). But a default “is not treated as an absolute confession by the defendant of his liability 

and of the plaintiff’s right to recover,” and the defendant “is not held to admit facts that are not 

well-pleaded or to admit conclusions of law.” Nishimatsu, 515 F.2d at 1206. 

In the First Amended Complaint, Plaintiff identifies accused products by way of an 

“ASIN,” which is an Amazon-specific unique identifier; each product sold on Amazon has a 

unique ASIN assigned to it. FAC ¶ 42. To allege infringement, as an example, she points to the 

product sold under ASIN B079GQR1SS, and alleges that “[e]ven a casual observer from the 

ASIN B079GQR1SS listing can note that it infringes Plaintiffs’ patents-in-suit as follows:

Id. ¶¶ 39–40. 

She contends that, prior to suit, she conducted an “identical analysis on all accused 

ASINs, concluding literal infringement, as shown supra, by visually inspecting the images listed 

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at each of the following URLs and further purchasing a product from each such URL to be 

shipped to this jurisdiction for further in-person inspection”:

Id. ¶ 42.8

 

The First Amended Complaint further includes a table connecting each Defendant—

including the 34 Defaulting Defendants—with one or more ASINs they are allegedly selling. Id. 

¶ 43. 

The Court finds that, at this juncture, it is unable to determine whether there is a 

sufficient basis in the pleadings for the default judgment requested, at least as to Plaintiff’s 

allegations of infringement of the ’852 utility patent, and ’838 and ’839 design patents. Claim 1 

of the ’852 patent, the only asserted claim, is a method claim directed to “[a] method for making 

a tool.” ’852 patent, cl. 1. “[M]ethod claims are ‘not directly infringed by the mere sale of an 

apparatus capable of performing the claimed process.’” Packet Intel. LLC v. NetScout Sys., Inc., 

965 F.3d 1299, 1314 (Fed. Cir. 2020) (quoting Joy Techs., Inc. v. Flakt, Inc., 6 F.3d 770, 773 

(Fed. Cir. 1993)). The First Amended Complaint does not plausibly allege that each of the 34 

Defaulting Defendants performed the method claimed in claim 1 of the ’852 patent.9

 For 

8 This screenshot is an excerpt of the table listing ASINs in ¶ 42 of the First Amended Complaint; the table goes on 

for several pages. 

9 On the contrary, the First Amended Complaint appears to concede as much, alleging instead that infringement is 

“assumed,” and that Plaintiff confirmed infringement of all claims “except the manufacturing method, which 

Plaintiff presumes.” FAC ¶ 41. Such allegations are insufficient to plausibly state a claim for direct infringement of 

a method claim. 

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instance, there are no allegations that a visual inspection of the accused devices confirmed the 

method by which they were manufactured, or that each Defendant both manufactures and 

distributes the accused devices. 

Regarding the design patents, the test for infringement of a design patent under 35 U.S.C. 

§ 289 is the ordinary observer test, which states “if, in the eye of the 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 purchase one supposing it to 

be the other, the first one patented is infringed by the other.” Gorham Co. v. White, 81 U.S. (14 

Wall.) 511, 528 (1871); Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665, 678 (Fed. Cir. 

2008) (en banc) (adopting the ordinary observer test as the sole test for infringement of design 

patents). 

As described above, the First Amended Complaint describes that Plaintiff “visually 

inspect[ed] the images listed” at URLs associated with the ASIN, and “purchasing a product 

from each URL” for further in-person inspection. FAC ¶ 42. However, it appears that none of 

the URLs listed in ¶ 42 of the First Amended Complaint lead anywhere, let alone to a 

functioning website displaying or offering for sale a product that appears to possibly infringe the 

asserted claims. Instead, each URL goes to a website stating “sorry, we couldn’t find that page,” 

and a link back to Amazon.com’s home page. 

As a result, it impossible to determine at this juncture whether the First Amended 

Complaint plausibly states a claim for relief for infringement, i.e., whether the listed URLs 

previously pointed to legitimate websites with accused devices that could be inspected and 

purchased, or not. Moreover, absent the Court being able to visually inspect the images of the 

accused products relied on by the Plaintiff in her allegations, it is impossible to determine 

whether Plaintiff’s claims of design patent infringement are plausible under the “ordinary 

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observer” test. See, e.g., SCG Characters LLC v. Telebrands Corp., 2015 WL 4624200, at *5 

(C.D. Cal. Aug. 3, 2015) (dismissing design patent infringement claims on the pleadings where 

“[t]he accused designs share[d] essentially no similarities with the . . . patented designs”). 

By July 22, 2024, Plaintiff shall address the deficiencies identified herein.

c. Remaining Defendants

Although Plaintiff requested, and received, entry of default as to a total of 159 

Defendants, Plaintiff has requested default judgment only as to 34 Defendants. By July 22, 

2024, Plaintiff shall report on the status of the remaining 125 Defendants with default entered 

against them, and if Plaintiff does not intend to seek entry of default judgment against them, 

explain why the Court should not dismiss her claims against them for failure to prosecute. 

IV. CONCLUSION

For the foregoing reasons, the Court construes Plaintiff’s requests for Clerk’s entry of 

default judgment under Rule 55(b)(1) as requests for the Court to enter default judgment under 

Rule 55(b)(2); as construed, the Court CARRIES Plaintiff’s requests. By July 22, 2024, the 

Plaintiff shall supplement her requests as identified in this Order. 

SO ORDERED.

July 12, 2024. 

 

BARBARA M. G. LYNN

SENIOR UNITED STATES DISTRICT JUDGE

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