RE/MAX, LLC v. Argus & Kronos, LLC et al
Filing
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OPINION AND ORDER granting 40 Motion for Default Judgment; granting 43 Motion for Summary Judgment; adopting Report and Recommendations re 44 Report and Recommendations. by Chief Judge Marcia S. Krieger on 2/27/19. (pglov)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Marcia S. Krieger
Civil Action No. 17-cv-02006-MSK-SKC
RE/MAX, LLC,
Plaintiff,
v.
ARGUS & KRONOS, LLC, and
LARRY DECOURSEY, JR.,
Defendants.
______________________________________________________________________________
OPINION AND ORDER GRANTING DEFAULT AND SUMMARY JUDGMENTS
______________________________________________________________________________
THIS MATTER comes before the Court pursuant to the Magistrate Judge’s
Recommendation (# 44) that the Plaintiff’s (“Re/Max”) Motion for Default Judgment (# 40)
against Defendant Argus & Kronos, LLC (“A&K”) be granted, to which no objections have been
filed; and Re/Max’s Motion for Summary Judgment (# 43) on its claims against Defendant Larry
DeCoursey, Jr., to which no response was filed.
The pertinent facts can be easily summarized. In 2015, A&K entered into a franchise
agreement with Re/Max, by which A&K could use Re/Max’s trademarks and otherwise brand
itself as a Re/Max affiliate for purposes of selling real estate in exchange for making certain
periodic payments to Re/Max. Mr. DeCoursey, a principal of A&K, guaranteed A&K’s
performance under the franchise agreement. A&K failed to make certain payments under the
agreement and in January 2017, Re/Max exercised its option to terminate the franchise. By
operation of termination clauses in the franchise agreement, A&K was then required to “de-
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brand” itself, ceasing use of Re/Max’s trademarks on its signage and other materials. However,
A&K did not do so and continues to use Re/Max’s trademarks. A&K and Mr. DeCoursey also
have outstanding payment obligations to Re/Max under the terms of the agreement and
guarantee.
Re/Max commenced this action, asserting claims (# 1) sounding in trademark
infringement and copyright infringement under federal law, and breach of contract under
Colorado common law. A&K and Mr. DeCoursey briefly appeared in this action through
counsel, but counsel subsequently withdrew. Because A&K, as a legal entity, cannot appear pro
se, the Court granted (# 31, 36) A&K a period of time to retain new counsel and advised Mr.
DeCoursey of his obligations as a pro se litigant. A&K did not retain counsel as directed and
Re/Max moved (# 40) for entry of a default judgment against it. The Court referred that motion
to the Magistrate Judge, and on January 29, 2019, the Magistrate Judge recommended (# 44) that
the motion be granted. No party has filed objections to that Recommendation. Separately,
Re/Max moved for summary judgment (# 43) on its claims against Mr. DeCoursey. The time for
responding to that motion has run and Mr. DeCoursey has not filed a response.
A. Default judgment
Pursuant to Fed. R. Civ. P. 72(b)(2), the parties had 14 days from service of the
Recommendation to file objections. In the absence of objections from either party, the Court
reviews the Recommendation under whatever standard of review it deems appropriate. Summers
v. State of Utah, 927 F.2d 1165, 1167 (10th Cir. 1991). The Court has reviewed the
Recommendation for clear error and finds none. To the contrary, the Magistrate Judge’s analysis
was comprehensive and well-reasoned. Accordingly, the Court adopts the Recommendation in
its entirety and will enter judgment by default against A&K on the terms set forth therein.
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B. Summary judgment
The Court will not belabor its summary judgment analysis with an extensive recitation of
the well-known standard of review nor the elements of any particular claim. The Court is not
entirely sanguine that Re/Max has clearly delineated between those actions by taken by A&K
(perhaps through Mr. DeCoursey) that infringe on Re/Max’s trademarks and copyrights, and
those actions taken by Mr. DeCoursey as an individual. Nevertheless, Re/Max propounded
Requests for Admission to Mr. DeCoursey personally that asked him to admit that “you” – Mr.
DeCoursey – “continued to use the Re/Max marks and copyrighted works” to the present day,
and Mr. DeCoursey did not timely respond, thereby admitting those facts. Accordingly, the
Court will assume that Mr. DeCoursey personally made use of Re/Max’s trademarks and
copyrighted materials to the same extent and degree as did A&K. With that fact established, the
analysis of the statutory claims against Mr. DeCoursey is identical to that applicable to A&K as
set forth in the Recommendation, and the Court deems that analysis incorporated herein. Thus,
Re/Max is entitled to summary judgment on its trademark and copyright infringement claims
against Mr. DeCoursey.
Similarly, Mr. DeCoursey was not a party to the franchise agreement that the Magistrate
Judge analyzed when granting a default judgment to Re/Max on its breach of contract claims
against A&K. However, Re/Max has tendered a copy of a Guaranty and Assumption of
Obligations, signed by Mr. DeCoursey personally, that “guarantees . . . the full and punctual
payment and performance of each and every undertaking, agreement and covenant set forth in
the [franchise] agreement” and “agrees to be . . . personally liable for the breach of each and
every provision” in that franchise agreement. Thus, to the extent that A&K breached the
franchise agreement – and in granting the default judgment, this Court finds that it has – Mr.
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DeCoursey is personally liable for that breach to the same extent as A&K. Accordingly, Re/Max
is entitled to summary judgment on its breach of contract claim against Mr. DeCoursey on the
same terms as set forth in the Recommendation.
Accordingly, the Court ADOPTS the Recommendation (# 44), GRANTS Re/Max’s
Motion for Default Judgment (# 40) against A&K, and GRANTS Re/Max’s Motion for
Summary Judgment (# 43) against Mr. DeCoursey. Judgment consistent with this Order shall
enter contemporaneously. Upon the entry of that Judgment, the Clerk of the Court shall close
this case.
Dated this 27th day of February, 2019.
BY THE COURT:
Marcia S. Krieger
Chief United States District Judge
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