Coldwell Banker Real Estate LLC v. DC Property & Loans, Inc. et al

Filing 30

ORDER by Judge Saundra Brown Armstrong ADOPTING 28 REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE re 17 Motion for Default Judgment. (ndr, COURT STAFF) (Filed on 10/27/2014)

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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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10 COLDWELL BANKER REAL ESTATE,
LLC, a California limited liability company,
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Plaintiff,
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vs.
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DC PROPERTY & LOANS, INC., et al.,
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Defendants.
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Case No: C 13-4732 SBA
ORDER ADOPTING REPORT AND
RECOMMENDATION OF
MAGISTRATE JUDGE
Dkt. 17, 28

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On October 10, 2013, Plaintiff Coldwell Banker Real Estate LLC filed the instant

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action against DC Property & Loans, Inc. (“DCP”), Louie T. Lo (“Lo”), and Jose C. Yee

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(“Yee”). The action arises from a dispute over a 2004 Franchise Agreement entered into

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between Plaintiff and DCP, pursuant to which DCP became a franchisee of Plaintiff. Under

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the agreement, DCP was granted a license to use Plaintiff’s marks in exchange for the

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payment of royalty fees based on DCP’s gross revenues. Yee signed a Guaranty

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Agreement, which guaranteed DCP’s performance under the Franchise Agreement. In

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addition, DCP and Yee executed a promissory note in the amount of $86,000. The note

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includes a provision allowing Plaintiff to find Defendants in default and accelerate the

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unpaid principal and all accrued interest on the note in the event the Franchise Agreement

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is terminated. According to Plaintiff, DCP failed to pay royalty fees in breach of the

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Franchise Agreement.

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The Complaint alleges eleven claims for relief: (1) trademark infringement;

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(2) common law trademark infringement; (3) violation of the Lanham Act; (4) federal

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trademark counterfeiting; (5) trademark infringement under California law; (6) violation of

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California’s Unfair Competition Law; (7) breach of contract; (8) breach of guaranty;

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(9) accounting; (10) account stated; and (11) quantum meruit. Plaintiff voluntarily

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dismissed Lo and obtained defaults against DCP and Yee. Dkt. 14, 15. Thereafter,

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Plaintiff filed a Motion for Default Judgment as to DCP and Yee which the Court referred

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to a magistrate judge for findings and recommendations. Dkt. 17, 19.

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On August 14, 2014, Magistrate Judge Nandor Vadas (“Magistrate”) issued a well-

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reasoned, 22-page Report and Recommendation in which he recommended granting

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Plaintiff’s Motion for Default Judgment. Dkt. 28. The Conclusion of the Report and

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Recommendation states as follows:

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Based on the foregoing, the court HEREBY RECOMMENDS
as follows:
1) that the district court grant Coldwell Banker’s Motion for
Default Judgment on the first, second, third, seventh, eight[h],
ninth, and eleventh claims for relief;
2) that the district court direct the Clerk to enter judgment for
Coldwell Banker on the first, second, third, seventh, eight[h],
ninth, and eleventh claims for relief;
3) that the district court award Coldwell Banker damages in the
amount of $112,647.02;
4) that the district court award Coldwell Banker attorneys’ fees
and costs in the amount of $17,701.07;
5) that the district court award Coldwell Banker a total of
$130,348.09 plus interest at the statutory rate from the time of
entry of judgment;
6) that the district court issue an injunction, permanently
enjoining Defendants from the use of the COLDWELL
BANKER® Marks.

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Dkt. 28 at 22. The Magistrate found that Plaintiff had not shown a likelihood of success on

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its fourth claim. The fifth, sixth and tenth claims were voluntarily dismissed by Plaintiff.

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Any objections to a report and recommendation must be filed within fourteen days

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of receipt thereof. Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1); Civ. L.R. 72-2, 72-3. The

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district court must “make a de novo determination of those portions of the report to which
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objection is made,” and “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); see also Civ. L.R.

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72-3(a) (requiring that any objections be accompanied by a motion for de novo

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determination).

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The deadline to file an objection to the report and recommendation was August 28,

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2014. See Fed. R. Civ. P. 6(a)(1), 72(b). To date, no objections have been filed in this

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case. In the absence of a timely objection, the Court “need only satisfy itself that there is

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no clear error on the face of the record in order to accept the recommendation.” Fed. R.

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Civ. P. 72, advisory committee notes (1983) (citing Campbell v. U.S. Dist. Court, 501 F.2d

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196, 206 (9th Cir. 1974)); see also United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th

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Cir. 2003) (en banc) (“The statute [28 U.S.C. § 636(b)(1)(C)] makes it clear that the district

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judge must review the magistrate judge’s findings and recommendations de novo if [an]

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objection is made, but not otherwise.”). The Court has reviewed the record on its face and

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finds no clear error. Accordingly,

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IT IS HEREBY ORDERED THAT the Magistrate’s Report and Recommendation

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is ACCEPTED and shall become the Order of this Court. However, because Plaintiff’s

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intentions with respect to its fourth claim for relief are unclear, the Court declines to enter

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judgment at this juncture. Within three (3) days of the date this order is filed, Plaintiff shall

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notify the Court whether it intends to dismiss or further litigate its fourth claim. In the

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event Plaintiff voluntarily dismisses said claim, the Court will immediately enter judgment

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for Plaintiff. In the event Plaintiff intends to litigate such claim, the Court will set a Case

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Management Conference forthwith.

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IT IS SO ORDERED.

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Dated: 10/27/14

______________________________
SAUNDRA BROWN ARMSTRONG
United States District Judge

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