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Case 2:14-cv-05927-ADS-GRB Document 16 Filed 02/25/16 Page 1 of 7 PageID #: 187


CV 14-5927 (ADS)(GRB)


GARY R. BROWN, United States Magistrate Judge:
Before the undersigned is a motion for default judgment and the imposition of permanent
injunctive relief by plaintiff Radisson Hotels International, Inc. against defendants Radisson Cars
& Limo, Inc. and Hajiasif A. Usman, which was referred to the undersigned by the Honorable
Arthur D. Spatt for report and recommendation. Docket Entries (“DE”) 14, 15. For the reasons
stated herein, the undersigned respectfully recommends that the default judgment motion be denied
without prejudice to renewal following the provision of a memorandum of law and appropriate
additional evidentiary support consistent with Local Civil Rule 7.1 and the District Court’s
Individual Rule IV.B.

On October 9, 2014, plaintiff commenced this action setting forth causes of actions for
service mark infringement, service mark dilution, cybersquatting and unfair competition under
the Lanham Act, 15 U.S.C. § 1051 et seq.; for service mark and trade name infringement, and
unfair competition under New York common law; for violation of the New York Anti-Dilution


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Statute, New York General Business Law § 360-1; and for breach of contract under New York
law. Compl. ¶¶ 26-43, DE 1. All defendants appear to have been properly served with the
complaint. DE 9, 10. On February 4, 2015, upon plaintiff’s request, the Clerk of the Court
issued Certificates of Default against the defendants. DE 12, 13. Plaintiff then filed the instant
motion for default judgment on May 26, 2015. DE 14.
The motion is supported solely by a declaration by plaintiff’s counsel attaching the
following exhibits: a copy of the complaint; plaintiff’s correspondence addressed to defendant
served along with the complaint; affidavits of service; copies of the certificates of default; and a
printout of defendants’ website found at DE 14, Ex. 1-5. Plaintiff
argues that the website material demonstrates a “clear implication of defendants’ use of
plaintiff’s famous RADISSON mark as part of defendants’ name is that defendants’ services are
plaintiff’s or are connected with or authorized by RADISSON hotels, when in fact they are not.”
DE 14.
Furthermore, plaintiff attached a Proposed Order and Judgment whereby plaintiff seeks,
inter alia, a permanent injunction directing defendants (1) to cease any further use of the
RADISSON mark in connection with transportation services; (2) to transfer the title of certain
internet domain names from defendants to plaintiff; (3) to communicate with third-party database
managers to secure the removal of certain business names from those databases and (4) to
change the names of certain corporate entities so as to eliminate the word RADISSON.
Additionally, the Proposed Order provides for the preemptive award of attorney’s fees in the
event of defendants’ future violation of the Court’s injunction. DE 14-7. Notably absent is a
memorandum of law accompanying plaintiff’s motion for default judgment, or any additional
evidentiary support for the injunctive relief sought. See generally DE 14.


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Rule 7.1 of the Local Civil Rules provides, in relevant part, as follows:
all motions shall include the following motion papers: (1) A notice
of motion, or an order to show cause signed by the Court, which
shall specify the applicable rules or statutes pursuant to which the
motion is brought, and shall specify the relief sought by the
motion; (2) A memorandum of law, setting forth the cases and
other authorities relied upon in support of the motion, and divided,
under appropriate headings, into as many parts as there are issues
to be determined; and (3) Supporting affidavits and exhibits thereto
containing any factual information and portions of the record
necessary for the decision of the motion.
Local Civ. R. 7.1. Judge Spatt’s Individual Rules reinforces this requirement by prescribing that
“all motions shall comply with Local Civil Rule 7.1, which requires a notice of motion, a
memorandum of law, and supporting affidavits and exhibits,” and cautioning that motions not in
conformity with the Individual Rules shall be rejected. Individual R. IV.B, IV.B.v.
Here, plaintiff failed to provide a memorandum of law in support of its motion for default
judgment. Moreover, given the broad injunctive relief sought, the supporting affidavit and
exhibits fail to provide sufficient material “necessary for decision of the motion.” Local Civ. R.
7.1. In this case, plaintiff’s failure to comply with these clearly-defined procedural requisites is
far from a mere technical violation.
Federal Rule of Civil Procedure (“Rule”) 55 “provides a ‘two-step process’ for the entry
of judgment against a party who fails to defend: first, the entry of a default, and second, the entry
of default judgment.” City of New York v. Mickalis Pawn Shop, LLC (“Mickalis”), 645 F.3d 114,
128 (2d Cir. 2011). In determining liability, “[i]t is an ‘ancient common law axiom’ that a
defendant who defaults thereby admits all ‘well-pleaded’ factual allegations contained in the
complaint.” Id. at 137 (citations omitted). However, “a district court is ‘required to determine


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whether the [plaintiff’s] allegations establish [the defendant’s] liability as a matter of law.” Id.;
see also Innovative Sports Mgmt., Inc. v. MI Olivia Restaruant, Corp., No. 14-CV-875 ADS
GRB, 2015 WL 1247128, at *3 (E.D.N.Y. Mar. 18, 2015) (holding “[a]fter default . . . . it
remains for the court to consider whether the unchallenged facts constitute a legitimate cause of
action, since a party in default does not admit conclusions of law.” (citation omitted)).
To be clear, the RADISSON mark is certainly familiar to the undersigned, just as it likely
known to travelers throughout the country. Compl. ¶ 7 (“For more than a century . . . Plaintiff . .
. has been and now is advertising, offering for sale, selling and distributing in interstate
commerce[,] hotel services under its distinctive trade name and service mark RADISSON.”).
The allegations of the unanswered complaint appear to give rise to liability. At first blush, the
first step of the Rule 55 process would not seem to present much difficulty. However, the
precise contours of plaintiff’s claims are not well-defined, particularly when considering the nine
causes of action set forth in the complaint. Thus, the failure to supply a memorandum of law
(and potentially other factual materials) may well undermine plaintiff’s attempt to establish
Furthermore, the plaintiff’s failure to provide any information concerning damages or any
legal support for the broad permanent injunctive relief sought proves an insurmountable barrier.
Indeed, the breadth of the injunctive relief sought in the Proposed Order and Judgment requires
the provision of legal authority and additional evidentiary support before the Court could
reasonably consider executing the proposed order. In e360 Insight v. The Spamhaus Project, a
Seventh Circuit case cited with approval in Mickalis, 645 F.3d at 143, the court held that
“although a default judgment establishes liability, it does not answer whether any particular
remedy is appropriate.” 500 F.3d 594, 604 (7th Cir. 2007). The court further held “[t]his


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principle applies with equal if not greater force in the context of equitable relief for which the
law imposes a requirement that the party seeking the injunction demonstrate the inadequacy of
legal relief.” Id.
The Second Circuit adopted the similar principle in Mickalis, where the court held that
“[t]he defendants did not, by defaulting, forfeit the right to challenge the lawfulness of the
injunctions.” 645 F.3d at 143 (citing Spamhaus Project, 500 F.3d at 603-04). There, the Court
of Appeals vacated the district court’s permanent injunction issued pursuant to a default
judgment because the injunction violated the requirements of Rule 65(d) and was overly broad.1
Id. at 144. “Rule 65(d) provides that ‘[e]very order granting an injunction . . . must: (A) state the
reasons why it issued; (B) state its terms specifically; and (C) describe in reasonable detail—and
not by referring to the complaint or other document—the act or acts restrained or required.’” Id.
(citing Fed. R. Civ. P. 65(d)).2 A district court’s injunction which “[does] not satisfy the
requirements of Rule 65(d) ‘will not withstand appellate scrutiny.’” Mickalis, 645 F.3d at 144
(citations omitted). “In addition to complying with Rule 65(d)’s specificity requirements, district
courts must take care to ensure that injunctive relief is not overbroad. Id.; see also Guthrie
Healthcare Sys. v. ContextMedia, Inc., 28 F. Supp. 3d 193, 215 (S.D.N.Y. 2014) (holding in a
trademark infringement case that “[i]njunctive relief should be narrowly tailored to fit specific
legal violations.” (citations omitted)).


In Mickalis, the defaulting defendant, instead of appearing to vacate or a set aside a default judgment under Rules
55(c) and 60(b), appealed directly to the Second Circuit from the entry of judgment. 645 F.3d at 128.
The Supreme Court has stated that “the specificity provisions of Rule 65(d) are no mere technical requirements.
The Rule was designed to prevent uncertainty and confusion on the part of those faced with injunctive orders, and to
avoid the possible founding of a contempt citation on a decree too vague to be understood. Since an injunctive order
prohibits conduct under threat of judicial punishment, basic fairness requires that those enjoyed receive explicit
notice of precisely what conduct is outlawed.” Id. (quoting Schmidt v. Lessard, 414 U.S. 473, 476 (1974)).


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Here, plaintiff’s failure to provide sufficient legal authority or factual support for the
proposed injunction undermines the motion for a default judgment. First, plaintiff has failed to
demonstrate the inadequacy of legal relief that warrants the exercise of the Court’s equitable
powers. Cf. Spamhaus Project, 500 F.3d at 604. Second, the absence of legal authority defining
the claimed bases for the injunctive relief sought as well as sufficient factual support leaves the
Court unable to state the reasons for the issuance, which would result in a clear violation of Rule
65(d). Cf. Mickalis, 645 F.3d at 144. Lastly, in the absence of the required materials, the Court
cannot “take care to ensure that the injunctive relief is not overbroad.” Cf. id. Indeed, and
simply by way of example, the plaintiff’s effort to preemptively obtain an award of legal fees in
the event of a hypothetical violation of the injunction, seems a highly questionable invocation of
the Court’s authority. See, e.g., Five And One, Inc. v. Pine Tavern, Inc., No. 00 Civ. 4556
(LAK), 2003 WL 21357123, at *2 (S.D.N.Y. June 12, 2003) (rejecting liquidated damages
provision in proposed permanent injunction where “[p]laintiff has cited no legal basis for any
such provision, and the Court is aware of none).

Based on the foregoing, the undersigned respectfully recommends that the default
judgment motion be denied without prejudice to renewal following the provision of a
memorandum of law and appropriate evidentiary support consistent with applicable rules.

A copy of this Report and Recommendation is being provided to plaintiff’s counsel via
ECF. Furthermore, the Court directs plaintiff (1) to serve copies of this Report and


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Recommendation by overnight mail upon defendants at the last known addresses, and (2) to file
proof of service on ECF within two days. Any written objections to this Report and
Recommendation must be filed with the Clerk of the Court within fourteen (14) days of service
of this report. 28 U.S.C. § 636(b)(1) (2006 & Supp. V 2011); Fed. R. Civ. P. 6(a), 72(b). Any
requests for an extension of time for filing objections must be directed to the district judge
assigned to this action prior to the expiration of the fourteen (14) day period for filing objections.
Failure to file objections within fourteen (14) days will preclude further review of this
report and recommendation either by the District Court or Court of Appeals. Thomas v.
Arn, 474 U.S. 140, 145 (1985) (“[A] party shall file objections with the district court or else
waive right to appeal.”); Caidor v. Onondaga Cnty., 517 F.3d 601, 604 (2d Cir. 2008) (“[F]ailure
to object timely to a magistrate’s report operates as a waiver of any further judicial review of the
magistrate’s decision.”).

Dated: Central Islip, New York
February 25, 2016
/s/ Gary R. Brown
United States Magistrate Judge