Breach of the distributorship agreement

Federal District Court Opinions

INTERNATIONAL BRANDS USA, INC. v. OLD ST. ANDREWS LTD.,
(D.Conn. 2004) INTERNATIONAL BRANDS USA, INC. and
INTERBRANDS, INC., Plaintiffs, v. OLD ST. ANDREWS LIMITED,
Defendant. Civil Action No. 3:02CV333(MRK). United States
District Court, D. Connecticut. June 15, 2004

RULING ON MOTION FOR DEFAULT JUDGMENT

MARK KRAVITZ, District Judge

Pursuant to Rule 55(b)(2) of the Federal Rules of Civil
Procedure, Plaintiffs International Brands USA, Inc. and
Interbrands, Inc. (collectively, “International Brands”)
move for entry of a default judgment [doc. # 76] against
Defendant Old St. Andrews Limited (“OSA”). For the reasons
set forth below, the Court GRANTS in part the Plaintiffs’
Application for Judgment and Request for Expedited
Consideration [doc. #76].

I. Procedural History

International Brands imports and distributes alcoholic
beverages in the United States. OSA produced alcoholic
beverages, including Scotch whisky products bearing the
name “Old St. Andrews.” On February 26, 2002, International
Brands filed an eight count complaint [doc. # 1] against
OSA. International Brands’ principal claim was that OSA had
improperly, unfairly, and unlawfully terminated the
parties’ exclusive distributorship agreement, under which
International Brands held the exclusive right to distribute
OSA products in the United States, including a product
bearing the name Old St. Andrews Clubhouse Scotch Whisky.
For the wrongful Page 2 termination of its distributorship
agreement, International Brands asserted claims for breach
of contract, breach of the duty of good faith and fair
dealing, and violation of the Connecticut Unfair Trade
Practices Act, Conn. Gen. Stat. § 42-110a et seq.
(“CUTPA”). International Brands also asserted claims against
OSA for failure to reimburse International Brands for
certain defective products and for failure to repay monies
advanced to OSA by International Brands.

OSA answered the complaint and asserted special defenses
and counterclaims [doc. #11]. On May 8, 2002, the Court
issued a case management plan by margin endorsement [doc.
#13], and the parties proceeded with discovery. In March
2003, OSA moved to amend its counterclaims [doc. # 21] to
add counts alleging violations of state and federal law in
connection with International Brands’ alleged efforts to
register with the United States Patent and Trademark Office
the name “Clubhouse” in connection with Scotch whisky. The
Court granted OSA’s motion to amend its counterclaims on
April 11, 2003 and International Brands thereafter filed an
answer and special defenses [doc. # 31] directed to the
additional counterclaims. Discovery, including discovery on
the additional counterclaims, continued in accordance with
a scheduling order set on April 16, 2003 [doc. #27].

On November 3, 2003, International Brands filed a motion
for summary judgment [doc. #48] directed to OSA’s
counterclaims alleging trademark infringement. However,
following a telephonic conference with the Court on
December 2, 2003, the parties agreed that the Court should
deny the motion for summary judgment without prejudice and
without considering the merits of the motion [doc. #54]
since a court trial of all the claims was scheduled to
commence on April 19, 2004. However, on March 5, 2004,
OSA’s counsel informed the Court by telephone that OSA had
commenced voluntary liquidation proceedings in the United
Kingdom. On March Page 3 8, 2004, OSA’s counsel, Michael
Feldman and Kristen Schultze Greene, filed a motion to
withdraw their appearances [doc. # 60] as a result of
conversations with both OSA’s principal and the putative
“liquidator” of OSA, who indicated that OSA would not
participate further in this action. The Court took the
motion to withdraw under advisement and during a telephonic
conference with counsel on March 8, 2004 to address the
implications of the liquidation proceedings for this case,
the Court informed counsel for both International Brands
and OSA that if OSA did not retain replacement counsel by
April 12, 2004, the Court would grant the motion to
withdraw and if OSA did not appear by counsel in this
action, International Brands would be free to move for entry
of default and default judgment.

On March 17, 2004, OSA informed the Court [doc. #62] that,
among other things: 1) the liquidator had requested that
any further proceedings in this matter, including counsel’s
motion to withdraw, be stayed at least until the Creditors
Meeting scheduled for March 26, 2004; 2) the liquidator had
instructed Mr. Feldman and Ms. Greene not to take further
action in connection with the matter except to relay the
liquidator’s request for a stay; and 3) the liquidator and
Julian Haswell, OSA’s principal, had been fully informed of
the likely consequences of the granting of counsel’s motion
to withdraw and OSA’s failure to retain counsel to defend
the company in this action. Specifically, OSA was informed
of the strong likelihood that a default judgment in an
amount of $1.5 million or more would enter against OSA and
that its counterclaims would be dismissed if OSA declined
to participate in this action by retaining counsel to
appear on OSA’s behalf.

After conferring with counsel for the parties on numerous
occasions in the ensuing weeks, including on April 1, 2004,
the Court on April 2, 2004 entered an order [doc. # 69]
Page 4 granting Mr. Feldman and Ms. Greene’s motion to
withdraw their appearances, which had been supplemented by
additional affidavits and supporting papers [docs. ## 67,
68]. The Court further ordered that International Brands
would be free to move for entry of default and for default
judgment if replacement counsel did not appear on OSA’s
behalf by April 12, 2004. At the Court’s behest, Mr.
Feldman was required to serve a copy of the Court’s Order
[doc. #69] on Julian Haswell, the managing director of OSA,
and Mark Goldstein, the liquidator, and Mr. Feldman filed a
notice with the Court attesting to service of the Court’s
Order on these individuals. See Notice of Service [doc.
#73].

To date, no replacement counsel has appeared for OSA, and,
as OSA had been informed by Mr. Feldman and the Court, OSA,
as a company, could not appear pro se and has not sought to
do so. On May 10, 2004, International Brands filed an
application for entry of default for failure to appear and
defend [doc. # 74], which was served on the principal of
OSA and the liquidator. The Clerk entered a default against
OSA on May 11, 2004 [doc. # 75]. On May 13, 2004,
International Brands filed an Application for Judgment and
Request for Expedited Consideration [doc. #76], which also
was served, along with the supporting documentation, on
OSA’s principal and liquidator. See Certification, id. at
7.

In support of its request for entry of default judgment,
International Brands submitted extensive documentation,
including several affidavits, deposition transcripts, and
numerous exhibits pertaining to both the merits of its
claims as well as the damages it suffered as a result of
OSA’s conduct. See Plaintiff’s Proposed Findings of Fact
and Conclusions of Law [doc. #77], Affidavit of Plaintiff’s
Expert Harold Gorman [doc. #78], Affidavit of Plaintiff’s
Expert Andrew Hillman [doc. #79], Affidavit of Rolf
Andersen [doc. #80], Affidavit of Matt Klim [doc. #81],
Page 5 Affidavit of Marc J. Kurzman Regarding Deposition
Transcripts [doc. #82], and Affidavit of Marc J. Kurzman
Re: Attorneys’ Fees [doc. #83]. Having previously entered a
default against OSA, the issue currently before the Court
is the amount of damages to be awarded International Brands
on its claims.

II. Findings of Fact

Because of the default entered against OSA, the Court
accepts as true all of the factual allegations of the
complaint, except those relating to damages. Au Bon Pain
Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981); see
10A C. WRIGHT, A. MILLER & M. KANE, FEDERALPRACTICE &
PROCEDURE § 2688, at 58-59 (3d ed. 1998) (“If the
court determines that defendant is in default, the factual
allegations of the complaint, except those relating to the
amount of damages, will be taken as true.”). In addition,
International Brands submitted extensive documentary
evidence and affidavits in support of their motion for
default judgment. The Court was impressed by both the
detail and documentation that International Brands
submitted in support of its claim, and based upon those
affidavits and documentation, as well as the well pleaded
allegations of the Complaint, the Court makes the following
findings of fact.

International Brands USA, Inc. and Interbrands, Inc. were
at all relevant times Delaware corporations operating out
of Farmington, Connecticut engaged in the importation and
distribution of alcoholic beverages in the United States. At
all relevant times, OSA was a corporation incorporated
under the laws of the United Kingdom, and produced, through
third party distillers and bottlers, alcoholic beverages,
including Scotch whisky products bearing the name “Old St.
Andrews.”

In August of 1989, Robert Haswell, OSA’s Chairman and
majority shareholder, and Rolf Page 6 Andersen, the
President of Interbrands, Inc., reached an agreement
whereby Interbrands would develop a market in the United
States for products manufactured by OSA. The parties agreed
that Interbrands would be OSA’s exclusive United States
distributor and would be solely responsible for developing
a market in the United States for products produced by OSA.
The exclusive distributorship agreement was memorialized in
a letter of appointment dated August 2, 1989 and executed
by Mr. Haswell. The parties agreed that Interbrands would
remain OSA’s exclusive U.S. distributor so long as
Interbrands met its obligations to OSA in terms of
developing a market for products by OSA and purchasing
sufficient volume of such products. The agreement was
consistent with prevailing industry custom and practice,
under which producers/suppliers of Scotch whisky products
gave their importers/distributors exclusive
distributorships that could not be terminated without
compensation unless the producer/supplier had good cause
for termination, meaning willful misconduct, false
reporting, loss of importer’s permit, or unjustified failure
to purchase product.

For the next 12 years, until 1994, Interbrands, at its own
expense, engaged in extensive sales, distribution, and
marketing efforts to develop a U.S. distribution network
for OSA products, including aggressively promoting OSA
products, maintaining more than adequate warehouse
facilities, and purchasing on an ongoing basis sufficient
volumes of OSA products to meet market demand

In 1994, Mr. Andersen created a new company, International
Brands USA, Inc. to carry on the business of Interbrands.
With OSA’s knowledge and consent, Interbrands assigned its
rights and obligations under the exclusive distributorship
agreement to International Brands USA, Inc. OSA thereafter
dealt with International Brands USA, Inc. as its exclusive
United Page 7 States distributor. International Brands
assumed full responsibility for continuing the development
of the United States market for OSA products, and at
substantial time and cost and with OSA’s full knowledge,
International Brands worked to continue to develop the U.S.
market for OSA. International Brands was apparently quite
successful in building OSA’s distribution in the United
States, as sales of OSA products grew from 1,700 cases in
1994 to over 10,000 cases by 1998.

Throughout the period International Brands was OSA’s
exclusive distributor, International Brands made extensive
investments of its own funds on behalf of OSA and with
OSA’s full knowledge and consent. For example, at its own
expense, International Brands engaged Matt Klim, a highly
regarded marketing expert, to redesign the bottles of
certain OSA products and to create brochures,
advertisements, and promotional materials for OSA products.
Affidavits and exhibits submitted by Mr. Klim and Mr.
Andersen describe in detail the extent and costs of the
International Brands’ efforts on OSA’s behalf. See
generally, Affidavit of Matt Klim [doc. #81]; see also
Affidavit of Rolf Andersen [doc. #80], at 8-10. In the
period 1999-2001 International Brands spent over $1.4
million promoting and marketing OSA’s products. During the
same period, however, International Brands realized profits
on sales of OSA products of only $154,412. International
Brands invested these sums in reliance on OSA’s promise
that International Brands would remain OSA’s exclusive U.S.
distributor, and as a consequence, International Brands
expected that it would be able to recoup its investments
over time.

In August 1999, Mr. Andersen advised Mr. Haswell that the
United States government inspectors had determined that the
labels on the 50ml white golf ball shaped bottles of Old
St. Andrews “Classic” failed to describe the product as
Scotch whisky, and thereby failed to conform Page 8 to
U.S. law. Mr. Haswell agreed the defectively labeled
product could be returned to OSA for credit. International
Brands secured BATF permission to liquidate its inventory
of 50ml Classic until January 1, 2000, later extended to
March 30, 2000. With respect to the 50ml Classic already in
the hands of wholesalers, the State of Virginia required
International Brands either to recover the product from
roughly 180 state liquor stores or to issue a “depletion
allowance” so that the State could accelerate the sale of
the product. After discussions between Mr. Haswell, Mr.
Andersen, and Julian Haswell — the son of Robert
Haswell and eventual principal of OSA — the Haswells
agreed that OSA would credit International Brands for the
amount of any depletion allowance issued by International
Brands to the State of Virginia. Accordingly, International
Brands elected to have the 50ml Classic liquidated by the
State of Virginia rather than recover the product from 180
state liquor stores for return to OSA for full credit.

In April 2000, OSA asked International Brands to make
arrangements for the return of the mislabeled 50ml Classic,
which totaled 212 cases. In June 2000, International Brands
advised OSA that it would be returning 212 cases of
mislabeled Classic. OSA approved the shipping costs for the
return and accepted the return of the 212 cases. On July
15, 2000, International Brands issued OSA two credit
invoices, Invoices 715 and 716, for reimbursement of the
212 cases of 50ml Classic returned to OSA and for
reimbursement for the cases of 50 ml Classic sold pursuant
to the depletion allowances permitted by the State of
Virginia or returned from Virginia distributors. To date,
OSA has refused to pay the Invoices.

Mr. Haswell died in August 2000. Julian Haswell purchased
OSA in or about November 2001 from his father’s estate and
he assumed the duties of OSA’s “Managing Director.” In
early 2001, Julian Haswell proposed to Mr. Andersen a
production schedule and pricing for a new Page 9 750ml
Clubhouse product. On January 26, 2001, International
Brands submitted a formal purchase order for 4,650 cases of
the new 750ml Clubhouse product at a price of 18 pounds
sterling per case for each of the 4,650 cases. OSA accepted
International Brands’ purchase order and on February 2,
2001, OSA indicated that production was about to begin.

On February 26, 2001, Julian Haswsell asked International
Brands to wire to OSA’s bank 26,045 pounds sterling to “help
pay the cost of the bulk whisky I have purchased for your
order of 4,650 cases which is now becoming due for
payment.” International Brands agreed to advance these
funds to OSA, which were to be credited against the cost of
the 4,650 order. On March 9, 2001, International Brands
wired to OSA’s bank $40,549.01 representing the bulk whisky
advance, receipt of which was acknowledged by OSA. The
first 1,200 cases of the 4,650 Case Order were shipped in
April 2001. International Brands applied the invoiced cost
of that shipment (23,600 pounds) to the balance due from
OSA for defective products and the bulk whisky advance.

On June 5, 2001, Julian Haswell requested payment for 783
additional cases of the 750ml Clubhouse that were
purportedly ready for shipment. By letter dated June 8,
2001, Mr. Andersen reminded Julian Haswell that
International Brands already had a credit balance in its
favor of 55,302 pounds sterling for (1) defective goods
(including goods that had been returned to OSA at OSA’s
request) and (2) the bulk whisky advance. That credit
advance was sufficient to cover the cost of the 1,200 cases
that had been shipped plus an additional 783 cases.

On June 22, 2001, International Brands requested by fax
that in addition to the 783 cases of 750ml Clubhouse that
had purportedly been produced, OSA produce an additional
1,617 cases so that a 2,000 case container of 750ml
Clubhouse could be loaded and shipped to International
Page 10 Brands. However, Julian Haswell responded by fax on
June 25, 2001 that OSA would not produce any more cases of
750ml Clubhouse until it received from International Brands
payment for the 783 cases it was holding. For his part, Mr.
Andersen insisted that OSA apply the credits due
International Brands to the order.

The parties made an attempt to resolve the outstanding
payment issues and secure delivery of the balance of the
4,650 Case Order, but those efforts were ultimately
unsuccessful. OSA refused to ship the balance of the 4,650
Case Order unless International Brands paid requested
charges, and International Brands objected to OSA’s refusal
to ship and insisted that International Brands receive the
credits it was due. On November 21, 2001, Julian Haswell
advised Mr. Andersen that “with immediate effect, Old St.
Andrews will no longer be supplying their products to
International Brands, Inc. as a customer.” This lawsuit
followed.

III. Conclusions of Law

The determination of whether to grant a motion for default
judgment lies within the sound discretion of the district
court. See Shah v. N.Y. Dep’t of Civil Serv., 168 F.3d 610,
615 (2d Cir. 1999). “[W]here a party fails to respond,
after notice the court is ordinarily justified in entering
a judgment against the defaulting party.” GE Group Life
Assur. Co. v. Ruzynski, No. 3:03CV1647, 2004 WL 243346, at
*1, (D. Conn. Feb. 9, 2004) (quoting Bermudez v. Reid, 733
F.2d 18, 21 (2d Cir. 1984)). In this case, OSA was informed
about the likely consequences of failure to retain
replacement counsel and to participate in this action.
OSA’s failure to respond despite its knowledge of the
default entry and its potential consequences, as well as
the extensive documentation that International Brands has
submitted in support of its claims, justifies an entry of a
default judgment against OSA. In its application,
International Brands seeks compensatory Page 11 damages
for OSA’s breach of the distributorship agreement (Count
One), breach of the covenant of good faith and fair dealing
(Count Two), sale of defective goods (Count Six), breach of
credit agreement (Count Seven), and violation of CUTPA
(Count Eight). The Court will address each count in
turn.[fn1]

In Count One International Brands seeks reliance damages
stemming from OSA’s unlawful termination of the
distributorship agreement equal to the out-of-pocket
expenses International Brands incurred in developing,
promoting, and advertising “Clubhouse” products during the
period 1999-2001, less the profits International Brands
earned on the sale of Clubhouse products during the same
time period. Count Two is a cause of action for breach of
the duty of good faith and fair dealing, and the damages
International Brands seeks for Count Two is the same as for
Count One. On Counts One and Two, International Brands
seeks judgment of a total of $1,333,542.00, which is the sum
of the expenses International Brands incurred between 1999
and November 2001 for advertising and promoting Clubhouse
in preparation for the new Clubhouse 750ml product,
totaling $1,487,954.00, minus International Brands’ profits
on sales during the same period, which was $154,412.89.

Both case law and the affidavits of International Brands’
experts regarding the custom and practice in the industry
support International Brands’ claim for recovery of
reliance damages for OSA’s breach of the distribution
agreement. See, e.g., ATACS Corp. v. Trans World
Communications, Inc., 155 F.3d 659, 669 (3d Cir. 1998)
(“[W]here a court cannot measure lost profits with
certainty, contract law protects an injured party’s
reliance interest by seeking to Page 12 achieve the
position that it would have obtained had the contract never
been made, usually through the recovery of expenditures
actually made in performance or in anticipation of
performance.”) (citations omitted); Nashville Lodging Co.
v. Resolution Trust Corp., 59 F.3d 236, 246 (D.C. Cir.
1995) (“[W]here the prospective, `benefit of the bargain’
damages prove too difficult or speculative to calculate,
courts commonly give the plaintiff damages measured
retrospectively, protecting the plaintiff’s `reliance
interest’ by undoing the harm which his reliance on the
defendant’s promise has caused him and putting him in as
good a position as he was in before the promise was made.”)
(citations omitted); see also Affidavit of Harold Gorman
[doc. #78]; Affidavit of Andrew Hillman [doc. #79].
Moreover, the amount sought, $1,333,542.00, is supported by
ample documentary evidence. See Andersen Affidavit, Ex. ##
33, 34; Ex. ## 30, 30A; see also Klim Affidavit, Ex. ## 5,
7; Ex. ## 63, 65. Accordingly, the Court concludes that
International Brands is entitled to judgment against OSA on
Counts One and Two and is entitled to recover $1,333,542.00
for OSA’s breach of contract and breach of good faith and
fair dealing as alleged in those counts.

Next, International Brands seeks $37,903.64 in damages
under Count Six based on OSA’s failure to reimburse
International Brands for defective and unmerchantable
goods, including the 50ml Classic inventory. The sum sought
is the amount of the credit invoices International Brands
rendered to OSA for defective goods. International Brands
submitted copies of both invoices, the first in the amount
of $28,857.00 for “return of defective labeling on 50ml
white gold ball,” Andersen Affidavit, Ex. 57; the second in
the amount of $9,046.64 in “billing from the State of
Virginia for discounting the defective/mislabeled white
gold balls.” Id., Ex. 58. International Brands has
submitted ample proof of the $37,903.64 in damages for
defective and Page 13 unmerchantable goods. Consequently,
the Court concludes that International Brands is entitled
to judgment against OSA on Count Six and is entitled to
recover $37,903.64 in damages on that count.

Count Seven contains a request for reimbursement from OSA
for monies advanced by International Brands to OSA at OSA’s
request, purportedly for the purchase of bulk whisky needed
to fulfill a 4,650 case order for Old St. Andrews Clubhouse
Scotch Whisky. International Brands seeks $6,801.00 under
Count Seven, which it computes by subtracting from the
amount of its advance the price for the 1,200 cases of
Clubhouse that OSA shipped to International Brands. See
October 1, 2001 Correspondence [doc. #80], Ex. 49. This
claim is also supported by affidavits and documentary
evidence. Accordingly, the Court concludes that
International Brands is entitled to judgment against OSA on
Count Seven and is entitled to recover $6,801.00 on that
count. International Brands is therefore entitled to
recover a total of $1,378,246.64 in compensatory damages
for the claims set forth in Counts One, Two, Six, and
Seven.

Finally, in Count Eight, International Brands seeks to
recover under CUTPA for OSA’s wrongful termination of
International Brands’ exclusive distributorship and for
OSA’s failure to credit International Brands for the
advanced payments demanded by OSA or for the defective
products. Compl. § 48. On its CUTPA claim,
International Brands seeks two forms of recovery: its legal
fees, and punitive damages as assessed by the Court.

Conn. Gen. Stat. § 42-110g(d) provides that “the
court may award, to the plaintiff . . . costs and
reasonable attorneys’ fees based on work reasonably
performed by an attorney and not on the amount of
recovery.” Marc J. Kurzman, the lead attorney for
International Brands at all relevant times, submitted an
extensive affidavit and documentation which establishes
Page 14 $290,208.42 as the amount of legal fees and
expenses that International Brands incurred in this action
as a result of OSA’s conduct. See Kurzman Affidavit Re
Attorneys’ Fees, Exs. A-C. The fees and expenses requested
are reasonable in amount, appropriately documented and were
reasonably incurred in support of the diligent work of
International Brands’ counsel on behalf of his client.
Regrettably, however, this Court cannot award International
Brands its legal fees under CUTPA because the Court does
not believe that there are legally sufficient grounds to
impose CUTPA liability in this case.

While it is true that by its default OSA admitted
International Brands’ well-pleaded allegations of fact, Au
Bon Pain Corp., 653 F.2d at 65, this Court may grant
International Brands only that relief for which a
sufficient basis is asserted in its Complaint. 10 JAMES WM.
MOORE ET AL., MOORE’S FEDERAL PRACTICE, § 55.12 (3d
ed. 2004); cf. Nishimatsu Construction Co., Ltd. v. Houston
Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975). In Count
Eight, the CUTPA claim, International Brands simply
incorporates by reference the conduct described in support
of its breach of contract claims. Compl. § 48. The
Second Circuit has held that “a simple contract breach is
not sufficient to establish a violation of CUTPA,
particularly where [as here,] the count alleging CUTPA
simply incorporates by reference the breach of contract
claim and does not set forth how or in what respect the
defendant’s activities are either immoral, unethical,
unscrupulous or offensive to public policy . . .” Boulevard
Assocs. v. Sovereign Hotels, Inc., 72 F.3d 1029, 1038-39
(2d Cir. 1995) (citations omitted); see Loda Agency, Inc.
v. Nationwide Ins. Co., No. 3:00CV1750, 2000 WL 1849865, at
*4 (D. Conn. Oct. 10, 2000) (incorporating by reference the
alleged breaches of contract in the complaint without
setting forth how such conduct could be characterized as
immoral, oppressive, and unscrupulous, was insufficient to
find CUTPA Page 15 violation). Indeed, the Second Circuit
observed, “A rule to the contrary — that a company
violates CUTPA whenever it breaks an unprofitable deal
— would convert every contract dispute into a CUTPA
violation. We cannot assume that the Connecticut
legislature, in enacting CUTPA, intended such an
extraordinary alteration of the common law.” Boulevard
Assocs., 72 F.3d at 1039.

International Brands has not alleged any aggravating
circumstances or any immoral or oppressive conduct by OSA in
this case. To the contrary, it appears to the Court from
the allegations of the Complaint and the affidavits as
well, that OSA simply tried to walk away from a contract
and agreements that it had no right to terminate or ignore.
Such conduct surely constitutes a breach of contract, and
even breaches the covenant of good faith and fair dealing.
But it does not, without significantly more, violate CUTPA.
And without a CUTPA violation, this Court has no legal
basis on which to award International Brands its legal
fees.

For the same reasons, the Court cannot award International
Brands punitive damages under CUTPA. Conn. Gen. Stat.
§§ 42-110g(a). Therefore, International
Brands is not entitled to the legal fees and punitive
damages it requested in Count Eight.

IV. OSA’s Counterclaims

In addition to seeking a default judgment on its
complaint, International Brands also requests judgment on
OSA’s counterclaims. The Court has previously granted a
default against OSA [doc. #75]. Since OSA has not appeared
and prosecuted its counterclaims, International Brands is
entitled to a judgment of dismissal on all of OSA’s
counterclaims.

V. Conclusion

For the foregoing reasons, the Court GRANTS in part
International Brands’ Motion [doc. Page 16 #76] and
directs the Clerk to enter default judgment for
International Brands and against OSA on Counts One, Two,
Six, and Seven of International Brands’ complaint [doc. #
1] in accordance with this Ruling in the total amount of
$1,378,246.64. The Court also directs the Clerk to enter a
judgment of dismissal against OSA on all of OSA’s
Counterclaims [doc. ## 11, 38]. There being no further
matters remaining for disposition, the Clerk is directed to
close this file.

IT IS SO ORDERED.

[fn1] Since International Brands has decided not to pursue
any other counts of its Complaint, the Court deems those
counts abandoned. Page 1