FILED
NOT FOR PUBLICATION JAN 11 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
CRATERS & FREIGHTERS, a Colorado No. 10-16004
corporation,
D.C. No. 4:09-cv-04531-CW
Plaintiff - Appellee,
v. MEMORANDUM *
FRED BENZ; KATHY BENZ,
Defendants - Appellants,
and
DAISYCHAIN ENTERPRISES, a
California corporation,
Defendant.
Appeal from the United States District Court
for the Northern District of California
Claudia A. Wilken, District Judge, Presiding
Submitted December 19, 2011 **
Before: GOODWIN, WALLACE, and McKEOWN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Fred and Kathy Benz appeal pro se from the district court’s default judgment
in this action alleging trademark infringement, copyright infringement, and related
claims. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the
issue of whether a party has waived a defense, Owens v. Kaiser Found. Health
Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001), and we affirm.
The district court properly concluded that the Benzes waived their defense of
insufficient service of process based on their litigation conduct. See Peterson v.
Highland Music, Inc., 140 F.3d 1313, 1317-18 (9th Cir. 1998) (defenses, such as
lack of personal jurisdiction, may be waived as a result of a party’s litigation
conduct, including when the party raises the defense but does not pursue it further
until an adverse decision on the merits).
The Benzes’ remaining contentions are unavailing.
AFFIRMED.
2 10-16004