Federal Court Decisions

 

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”

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