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Nike v Kau Summary Judgement

Nike v Kau Summary Judgement

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Published by marty7838
summary judgment decision denied as it is based on self-serving testimony
summary judgment decision denied as it is based on self-serving testimony

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Published by: marty7838 on Mar 22, 2012
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08/25/2013

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UNITED STATES DISTRICT COURTEASTERNDISTRICT
OF
NEW YORKNlKE,INC.,
MEMORANDUM
&
ORDER
FilED
IN
CLERK'S OFFICEU.S.OISTRICTCOURTE.D.N.Y.
*.
MAR
192012
*
BROOKLYN
OFFICEPlaintiff,-
against-
STEVE KWAIAU, a/kJa TONY AU,
a/kJaJ
TONY KAU, a/kJa STEVE K AU10-CV-1163
j
Appearances:For the plaintiff:For the defendant:Defendant.Martin Jon FeinbergOlshan Grundman Frome Rosenzweig
&
Wolosky LLP
65
East 55th StreetNew York, NY 10022Michael Walls HolihanHolihan Law
1101
NorthLakeDestiny Road, Suite 275Maitland, FL 32751Safia Anisa AnandOlshan Grundman Frome Rosenweig
&
Wolosky LLP
65
East55th Street
New
York,
NY
10022
HughHMo
The Law Firm
of
Hugh
H.
Mo, P.C.225 Broadway, Suite 2702New York,
NY
10007
 
,_
T
JACK
B.
WEINSTEIN,
Senior.United States District
Judge:
I.
Introduction
This case arises out
of
a seizure
of
8,800 pairs
of
shoes allegedly bearing Nike, Inc.trademarksatthe port
of
Newark, NJ by U.S.Customsand Border Protection (the "PrimaryEntry"). Theshoeswere imported under the name HTT International, Inc. ("HTT"). PlaintiffNike, Inc. ("Nike") initially brought claims againstseveralcorporations and individuals involvedin the customs and shipping businesses for trademarkcounterfeiting,trademark infringement,false designation
of
origin, trademark dilution,importation
of
goods bearing infringing marks,and violation
of
the Tariff Act. These defendants included U-Freight,Inc. ("U-Freight"), afreight forwarding and warehouse logistics company that provided comprehensive transportationservices for
HIT,
including clearing goodsthroughcustoms; Steve Kwai Au a/kJa Tony Aua/kJa Tony Kaua/kJaSteve K Au("Au"),a U-Freight employee who coordinated freight forwarding servicesfor
HIT
shipmentsfromChina;Cathy ChiuLamCHB Inc. d/b/aAsian Jade Customs Brokerage (
"A
sian Jade"),acustomsbroker; andCathyChiu Lam, theowner
of
Asian Jade.All
of
the defendants except Au have eithersettledwith, or been voluntarily dismissedby,Nike.
See
Notice
of
Voluntary Dismissal, Doc. Entry 36, Aug. 23,
2010
(voluntarilydismissing defendant U-Freight
of
America, Inc.);Order DismissingCase,Doc. Entry
Ill,
Oct.18,2011(settlingcase with defendants CathyChiuLam CHB Inc. d/b/a Asian Jade Customs Brokerage and Cathy Chiu Lam).Thesedefendants have since provided sworn deposition testimony that implicatesAu asthe orchestrator
of
the counterfeit shoe importation.
Seegenerally
Pl.'s 56.1 Statement, Doc. Entry 118,Jan.
23
,2012.For the reasons setforthbelow, plaintiffs motion for summary judgment against Au isdenied.2
 
II. Facts
and
Contentions
Nike argues that
HTT
and V-Freight convincingly deny any knowledge
of
or
involvement in the Primary Entry.
It
claims that Au forged a
power
of
attorney
(POA)
fromHTT, as well as entry documents, to facilitate the transaction.
See
PI.
's
56.1 Statement
~~
27-30,Doc. Entry 118, Jan. 23, 2012. Asian Jade relied on these fraudulent shipping documents, whichidentified the Primary Entry as lighting fixtures, to create entry documents for the Primary Entry.
Id.
~~
25, 30. In support
of
its motion, Nike relies upon testimony by Hu, an
HIT
employee, andLam that
Au
admitted:
1)
that he stole
HIT's
identity in order to smuggle in counterfeit Nikeshoes; and2)that the
HTT
POA was forged and that he caused it to be forged.
Id.
~~
31-34.There is deposition testimony from three other non-party companies that Au passed on POAs
or
shipping documents to Asian Jade that fraudulently used their names.
Id.
~
46.At his deposition, Au repeatedly asserted his right against self-incrimination.
See
id.
~
47(stating that"Au asserted his Fifth Amendment right against incrimination over 300 times duringhis deposition held
on
September 30, 2011");
seegenerally
Def.'s
56.1Statement,Doc.Entry 120, Feb.
15,2012
(asserting his right against self-incrimination). He does not dispute that theshoes seized are counterfeit,
or
that the marks they bear infringe
on
Nike's
copyrights.The defendant has not come forward with anyaffirmativeevidence to refute
Nike's
account
of
events. Rather, he argues that the statements made by
HIT,
V-Freight, Asian Jade,Hu, and Lam areself-servingand therefore notcredible.He also claims that
Hu's
and
Lam's
testimony regarding hisadmissionsare inadmissibleashearsay. He contends that granting summary
judgment
in favor
ofNike
would impermissibly sanction his exercise
of
his FifthAmendment privilege againstself-incrimination.3

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