Joe Hand Promotions Inc. v. Social Major League Sports Bar & Grill

Joe Hand Promotions Inc. v. Social Major League Sports Bar & Grill
Court (s) Database
Federal Court Decisions
Date
2009-07-03
Neutral citation
2009 FC 699
File numbers
T-920-08
Decision Content
Date: 20090703
Docket: T-920-08
Citation: 2009 FC 699
Vancouver
,
British Columbia
, July 3, 2009
PRESENT: Roger R. Lafrenière, Esquire
Prothonotary
BETWEEN:
JOE HAND PROMOTIONS INC.
Plaintiff
and
JOHN DOE #1 CARRYING ON BUSINESS UNDER THE FIRM NAME
AND STYLE OF MAJOR LEAGUE SPORTS BAR & GRILL,
JOHN DOE #2 CARRYING ON BUSINESS UNDER THE FIRM NAME
AND STYLE OF JP MALONE’S BAR & GRILL,
JOHN DOE #3 CARRYING ON BUSINESS UNDER THE FIRM NAME
AND STYLE OF WESTSIDE CHARLIES AND
JOHN DOE #4 CARRYING ON BUSINESS UNDER THE FIRM NAME
AND STYLE OF WESTSIDE CHARLIES
Defendants
REASONS FOR ORDER AND ORDER
[1] The Plaintiff moves ex parte pursuant to Rule 210(2) and Rule 369 of the Federal Courts Rules for default judgment against three "John Doe" Defendants.
[2] On a motion for default judgment, the Court has two questions before it. First, is the defendant in default and second, is there evidence to support the plaintiff's claim. The former assumes that there is party against whom relief can be obtained. The latter requires that there be evidence that the said party is liable to the plaintiff.
[3] The practice of using the term "John Doe" in the style of cause is directed at permitting a plaintiff to sue a person whose name the plaintiff does not know. The practice is perfectly acceptable; however, the expectation is that the plaintiff will take reasonable steps to identify the unnamed defendant and then move to amend the style of cause. Further, in order to obtain default judgment, the plaintiff must establish that service of the statement of claim was properly effected in accordance with the Federal Courts Rules.
[4] On the evidence before me, it is unclear whether the three unnamed defendants are individuals, corporations, or sole proprietorships. I am therefore unable to conclude whether service of the Statement of Claim by registered mail to business addresses where the copyright infringement took place was effective service on the John Doe Defendants. In any event, the Plaintiffs cannot succeed upon the bare fact of some unnamed defendant’s failure to defend the claim. The proof required must persuade the Court on a balance of probabilities that the Plaintiff is entitled to the relief which it seeks against specific individuals or entities. The Court is not prepared to grant blank judgments, particularly since they cannot realistically be enforced.
[5] The motion is dismissed, without prejudice to the Plaintiff’s right to re-apply with better evidence.
ORDER
THIS COURT ORDERS that the motion is dismissed.
“Roger R. Lafrenière”
Prothonotary
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-920-08
STYLE OF CAUSE: JOE HAND PROMOTIONS INC. v.
JOHN DOE #1 CARRYING ON BUSINESS
UNDER THE FIRM NAME AND STYLE OF
MAJOR LEAGUE SPORTS BAR & GRILLS et al.
EX PARTE MOTION IN WRITING WITHOUT PERSONAL APPEARANCE OF THE PARTIES
REASONS FOR ORDER
AND ORDER: LAFRENIÈRE P.
DATED: July 3, 2009
WRITTEN REPRESENTATIONS:
Mr.
Murray
L. Engelking
FOR THE PLAINTIFF
N/A
FOR THE DEFENDANTS
SOLICITOR OF RECORD:
Engelking Wood
Edmonton
,
Alberta
FOR THE PLAINTIFF
N/A
FOR THE DEFENDANTS