                                                                           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                             NOT FOR PUBLICATION                            JAN 11 2012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
