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LimoStars v NJ Cars & Limo

LimoStars v NJ Cars & Limo

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Published by Eric Goldman

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Published by: Eric Goldman on Aug 11, 2011
Copyright:Attribution Non-commercial

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08/11/2011

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On October 14, 2010, the Court ordered Plaintiff to re-file its Complaint because theoriginal was not properly filed electronically in text-searchable .pdf format and did notcomply with this District Court’s Local Rules. See, LRCiv 5.5(b) and definition of “.pdf,”ECF Manual, at I(A), p. 2. (Doc. 9)
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 General Order 11-3, entitled Dismissal of a Civil Case Assigned to a United StatesMagistrate Judge Absent Voluntary Consent by the Parties Under 28 U.S.C. § 636(c)(1),directs that when a Phoenix Division magistrate judge to whom a civil action has beenassigned lacks jurisdiction to proceed, the order or, in this case, the report and
WO
IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF ARIZONALimoStars, Inc.,Plaintiff,vs.New Jersey Car and Limo, Inc., a NewJersey corporation,Defendant.)))))))))))))No. CV-10-2179-PHX-LOA
REPORT ANDRECOMMENDATION
,FINDINGS OF FACT, ANDCONCLUSIONS OF LAW
A default damages hearing was held in open court on June 16, 2011, afterentry of default against Defendant New Jersey Car and Limo, Inc. (“New Jersey Limo”),a New Jersey corporation, on Plaintiff LimoStars, Inc.’s (“Plaintiff”) October 12, 2010Complaint. (Docs. 1, 10
1
) Plaintiff’s President and Chief Executive Officer, CharlesWurster, III (“Wurster”) testified at the default damages hearing. Pursuant to GeneralOrder 11-3,
2
the undersigned Magistrate Judge recommends that default judgment be
Case 2:10-cv-02179-LOA Document 47 Filed 08/08/11 Page 1 of 33
 
12345678910111213141516171819202122232425262728recommendation shall be directed to Senior United States District Judge Stephen M.McNamee for ruling. General Order 11-3,www.azd.uscourts.gov at Rules/General Orders.
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The Court rejects this argument and explains why later herein in the section entitledConclusions of Law. Faltawws’ other irrelevant, collateral claims are dispelled in Plaintiff’sPost-Hearing Memorandum. (Doc. 43)- 2 -entered in favor of Plaintiff against DefendantNew Jersey Limoin the amount of $82,380.77 and include the requested injunctive relief recommended herein for thereasons set forth in this Report and Recommendation.
I. BackgroundA. The Allegations
This trademark infringement action seeks both injunctive relief andmonetary damages as a result of Defendant New Jersey Limo’s intentional infringementof Plaintiff’s federally registered “LIMOSTARS” trademark by New Jersey Limo’s useof thewww.nylimostars.comwebsite. New Jersey Limo is a New Jersey corporation,controlled by Malak Faltawws (“Faltawws”), its Chief Executive Officer (“CEO”).On April 12, 2011, the Court received a faxed letter, doc. 29, fromFaltawws, a non-lawyer, only two days before the April 14, 2011default damages hearingwhich had been scheduled since February 10, 2011. The next day the Court received asecond letter, doc. 31. Among other claims, Faltawws’ first
 
letter “question[ed] theplaintiff’s claim that jurisdiction is proper in the Courts of Arizona . . . [because] this casedoes not involve any dispute with GoDaddy.com, or my registration of the domainname.”
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(Doc. 29 at 1) The Court construed the April 13, 2011
 
letter, doc. 31, a motion tocontinue the default damages hearing which it summarily granted with very little notice toPlaintiff’s Illinois counsel, Mark L. Brown. (Doc. 33) Faltawws was informed in writingthat only licensed attorneys may represent a corporation in Arizona and New Jersey Limo“must retain an attorney, licensed to practice law in Arizona and admitted to practice inthis District Court or authorized to practice law in this District Court upon
 pro hoc vice
application, and file an appearance herein on or before
April 29, 2011
.”
 
(
 Id.
at
 
5)
Case 2:10-cv-02179-LOA Document 47 Filed 08/08/11 Page 2 of 33
 
12345678910111213141516171819202122232425262728- 3 -(emphasis in original). When no attorney appeared in this case on behalf of New JerseyLimoby May 18, 2011, the Court re-scheduled the default damages hearing for June 16,2011. (Doc. 37)Count I of Plaintiff’s Complaint alleges a trademark infringement claim inviolation of 15 U.S.C. § 1114(1)(a), which provides for the liability of anyone who,without the consent of the registrant, uses:in commerce any reproduction, counterfeit, copy, or colorable imitation of aregistered mark in connection with the sale, offering for sale, distribution, oradvertising of any goods or services on or in connection with which such use islikely to cause confusion, or to cause mistake, or to deceive.(Doc. 10 at 7-8) Count II alleges false designation of origin and unfair competition inviolation of 15 U.S.C. § 1125(a), which similarly provides for the liability of anyonewho:on or in connection with any goods or services, or any container for goods, uses incommerce any word, term, name, symbol, or device, or any combination thereof,or any false designation of origin, false or misleading description of fact, or falseor misleading representation of fact which . . . is likely to cause confusion, or tocause mistake, or to deceive as to the affiliation, connection, or association of suchperson with another person, or as to the origin, sponsorship, or approval of his orher goods, services, or commercial activities by another person.(
 Id 
. at 8-9)The Complaint requests New Jersey Limo (1) “disgorge all profits derivedfrom the sale of products or services originating from its infringing use of the LIMO-STARS trademark”; (2) “pay compensatory damages, in an amount to be determined attrial, attributable to the infringement of the LIMOSTARS trademark”; (3) “pay enhanceddamages to Plaintiff of at least treble the amount of compensatory damages, due toDefendant’s intentional, willful, deliberate, malicious, egregious and bad faith actions”;(4) pay punitive damages to Plaintiff for “Defendant’s oppressive, fraudulent andmalicious acts of infringement and unfair competition”; and (5) pay Plaintiff’s costs inbringing this action, including its reasonable attorneys’ fees and expenses. (
 Id 
. at 9-10)The Complaint also seeks a permanent injunction, prohibiting New JerseyLimo, “its officers, agents, servants, employees, affiliates, parent or subsidiary
Case 2:10-cv-02179-LOA Document 47 Filed 08/08/11 Page 3 of 33

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