By Eric Schweibenz
On February 9, 2012, ALJ Theodore R. Essex issued Order No. 25 granting Complainant’s motion for entry of default against certain respondents and granting respondent National Cellular’s motion for default in Certain Protective Cases and Components Thereof (Inv. No. 337-TA-780).

By way of background, the investigation is based on a complaint filed by Otter Products, LLC (“Otter”) alleging violation of Section 337 in the importation into the U.S. and sale of certain protective cases and components thereof that infringe several U.S. utility and design patents.  See our May 27, 2011 post for more details.

As set forth in the Order, Otter previously filed a motion for an order directing respondents Hypercel Corp. d/b/a Naztech Technologies, Shenzhen Star & Way Trade Co/, Ltd. d/b/a DHgate sellers Best8168 and Julyoung, SmileCase, and TheCaseInPoint.com (collectively “Non-responsive Respondents”) to show cause why they should not be found in default based on their failure to respond to the Complaint and Notice of Investigation.  Otter also requested an initial determination finding the Non-responsive Respondents in default upon failure to show cause. 

In response, the ALJ issued Order No. 22, ordering the Non-responsive Respondents to show why they should not be found in default based on the Commission’s Rules of Practice and Procedure and 19 C.F.R. § 210.16.  According to the Order, no responses were received.  ALJ Essex determined that failure to respond to Order Nos. 2 (order to submit discovery statements) or 22 was enough to find the Non-responsive Respondents in default under 19 C.F.R. § 210.17.  Accordingly, the Non-responsive Respondents were held to be in default for “failing to respond to the complaint and notice of investigation…and…for failing to respond to discovery requests, respond to the show cause order, comply with Order No. 2, or otherwise participate in this investigation.”

The Order further noted that Respondent National Cellular filed a notice electing to default and requesting that the notice be treated as a motion for default.  The ALJ granted this motion pursuant to 19 C.F.R. § 210.16(a)(2) and (b)(2).  Together, the Non-responsive Respondents and National Cellular have “waived their right to appear, to be served with any further documents, and to contest the allegations at issue in the investigation.”