Order [Docket No. 380]

NANCY J. KOPPE, Magistrate Judge.

The matter of calculating damages for default judgment has been referred to the undersigned. See Docket No. 361. The undersigned previously rejected Ms. McCart-Pollak's request for punitive damages as not sufficiently supported. See Docket No. 374. Ms. McCart-Pollak has now filed a renewed motion to calculate damages that excludes punitive damages. Docket No. 380.1 The Court held a prove-up hearing on October 16, 2018.

A party must prove the amount of damages to be awarded through default judgment. See, e.g., Philip Morris USA, Inc. v. Castworld Prods., Inc., 219 F.R.D. 494, 498 (C.D. Cal. 2003). The Court has wide discretion in determining the amount of damages to award in default judgment. E.g., HTS, Inc. v. Boley, 954 F.Supp.2d 927, 947 (D. Ariz. 2013). In determining damages for default judgment, the Court may rely on the declaration submitted by the movant or may order a full evidentiary hearing. See Fed. R. Civ. P. 55(b)(2). The movant's burden with respect to proving up her damages is "relatively lenient." Philip Morris, 219 F.R.D. at 498. Nonetheless, lost profits and other compensatory damages must be proven with "reasonable certainty." See Rubicon Global Ventures, Inc. v. Chongqing Zongshen Grp. Import/Export Corp., 226 F.Supp.3d 1141, 1149 (D. Ore. 2016) (citing, inter alia, Jones v. Zimmer, 2016 WL 1122852, at *2 (D. Nev. Mar. 22, 2016)).

"[D]isgorgement is a remedy intended to prevent a wrongdoer from unjust enrichment." Eckard Brandes, Inc. v. Riley, 338 F.3d 1082, 1088 (9th Cir. 2003). It has long been recognized in intellectual property cases that the opposing party's profits is an appropriate remedy. See, e.g., Nintendo of Am., Inc. v. Dragon Pac. Int'l, 40 F.3d 1007, 1011 (9th Cir. 1994) (finding that "the profits made by the infringer" is an appropriate measure for actual damages under both the Copyright Act and the Lanham Act).

The affidavit filed to prove-up On Demand's profits in this case relies on several assumptions. It provides evidence as to Spiral Toys' profits for 2015. See, e.g., Docket No. 380-1 at 34. From there, however, the affidavit assumes that 30% of that revenue went to On Demand and assumes a profit margin for On Demand of 25%. Docket No. 380 at ¶¶ 26, 28. The affidavit indicates that the sales figures are unknown for 2016 to the present, but assumes consistent sales numbers for those years. See id. at ¶ 33. The affidavit concludes by seeking $1,564,500 in compensatory damages. Id. at ¶ 34.

At the prove-up hearing, Ms. McCart-Pollak presented additional exhibits and analysis that were not included in the affidavit. Ms. McCart-Pollak also alluded to an attempt to obtain discovery from Spiral Toys.2 While it appears some discovery was obtained, it is not clear from the hearing what scope of documents were requested in that subpoena or whether Spiral Toys properly complied with its obligations in responding to the subpoena.

Given the circumstances, the Court rules as follows:

IT IS SO ORDERED.