Phelan Holdings, Inc. v. Wendy's International, Inc. et al

Filing 42

ORDER adopting 41 Report and Recommendation of the Magistrate Judge. Defendant Wendy's International, Inc.'s Motion for Partial Dismissal of Plaintiff's Complaint 17 is GRANTED in part and DENIED in part: A. Counts I, III, VIII, and XII are DISMISSED with leave to amend. B. Count XIII is DISMISSED with prejudice. Plaintiff Phelan Holdings, Inc., is granted leave to file an amended complaint within FOURTEEN (14) DAYS from the date of this Order. Signed by Judge Charlene Edwards Honeywell on 7/23/2012. (BGS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
PHELAN HOLDINGS, INC.,
Plaintiff,
v.

Case No: 2:11-cv-392-FtM-DNF

WENDYS INTERNATIONAL, INC.,
JOHN DOES, JANE DOES and ABC
COMPANIES,
Defendants.
___________________________________/
ORDER
This cause comes before the Court upon the Report and Recommendation filed by United
States Magistrate Judge Elizabeth A. Jenkins on July 3, 2012 (Doc. 41). In the Report and
Recommendation, Judge Jenkins recommends that the Court grant in part and deny in part
Defendant Wendy’s International, Inc.’s (“Defendant”) Motion for Partial Dismissal of
Plaintiff’s Complaint, filed on December 9, 2011 (Doc. 17). Neither party has objected to the
Report and Recommendation and the time to do so has expired.
The Court is in agreement with the Magistrate that Plaintiff Phelan Holdings, Inc.’s
(“Plaintiff”) claims for Federal Trademark Infringement (Count I), Federal Trademark
Counterfeiting (Count III), Florida Trademark Infringement (Count VIII), and Unjust
Enrichment (Count XII) should be dismissed with leave to file an amended complaint. Doc. 41,
pp. 4-11. Indeed, the need to amend Counts I, III, and VIII arises because of Plaintiff’s incorrect
citations. Additionally, Plaintiff’s claim of Florida Misappropriation (Count XIII) should be
dismissed with prejudice because Florida does not recognize misappropriation as an independent
cause of action imposing liability for Defendant’s unauthorized use of Plaintiff’s trademark. Id.,

p. 10. Thus, after careful consideration of the Report and Recommendation of the Magistrate
Judge, in conjunction with an independent examination of the court file, the Court is of the
opinion that the Magistrate Judge's Report and Recommendation should be adopted, confirmed,
and approved in all respects.
Accordingly, it is hereby ORDERED and ADJUDGED:
1. The Report and Recommendation of the Magistrate Judge (Doc. 41) is adopted,
confirmed, and approved in all respects and is made a part of this order for all
purposes, including appellate review.
2. Defendant Wendy’s International, Inc.’s Motion for Partial Dismissal of
Plaintiff’s Complaint (Doc. 17) is GRANTED in part and DENIED in part:
A. Counts I, III, VIII, and XII are dismissed with leave to amend.
B. Count XIII is dismissed with prejudice.
3. Plaintiff Phelan Holdings, Inc. is granted leave to file an amended complaint
within FOURTEEN (14) DAYS from the date of this Order.
DONE and ORDERED in Fort Myers, Florida on July 23, 2012.

Copies furnished to:
Counsel of Record
U.S. Magistrate Judge Elizabeth Jenkins

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