Fuzion Vapor, LLC v. Fumizer, LLC

Filing 15

ORDER adopting 14 Report and Recommendation; dismissing Count V of the Complaint; granting, in part, and denying, in part, Plaintiff's Motion for Entry of Default Final Judgment Against Defendant. The Clerk of the Court is directed to e nter a judgment regarding attorney's fees and costs and a judgment of permanent injunction in accordance with this Order. The Clerk of the Court is further directed to terminate any pending motions and close the file. Signed by Judge Marcia Morales Howard on 8/30/2017. (JW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

FUZION VAPOR, LLC,
Plaintiff,
vs.

Case No. 3:16-cv-942-J-34PBD

FUMIZER, LLC,
Defendant.
/
ORDER

THIS CAUSE is before the Court on the Report and Recommendation (Doc. 14;
Report), entered by the Honorable Patricia D. Barksdale, United States Magistrate Judge, on
July 28, 2017. In the Report, Judge Barksdale recommends that Plaintiff’s Motion for Entry
of Default Judgment Against Defendant (Doc. 12; Motion) be granted to the extent set forth
in the Report, and that the Clerk of the Court be directed to enter judgment and close the file.
See Report at 33-35. Defendant Fumizer, LLC has failed to file objections to the Report, and
the time for doing so has now passed.
The Court “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.”

28 U.S.C. § 636(b).

If no specific

objections to findings of fact are filed, the district court is not required to conduct a de novo
review of those findings. See Garvey v. Vaughn, 993 F.2d 776, 779 n.9 (11th Cir. 1993); see
also 28 U.S.C. § 636(b)(1). However, the district court must review legal conclusions de novo.
See Cooper-Houston v. Southern Ry. Co., 37 F.3d 603, 604 (11th Cir. 1994); United States
v. Rice, No. 2:07-MC-8-FTM-29SPC, 2007 WL 1428615, at *1 (M.D. Fla. May 14, 2007).
1

Upon independent review of the file and for the reasons stated in the Report, the
Court will accept and adopt the legal and factual conclusions recommended by the
Magistrate Judge.1 Accordingly, it is hereby
ORDERED:
1.

The Magistrate Judge’s Report and Recommendation (Doc. 14) is
ADOPTED as the opinion of the Court.

2.

Count V of the Complaint and Demand for Jury Trial (Doc. 1) is DISMISSED.

3.

Plaintiff’s Motion for Entry of Default Judgment Against Defendant (Doc. 12)
is GRANTED, in part, and DENIED, in part.

4.

The Motion is GRANTED to the extent that:
a. The Clerk of the Court is DIRECTED to enter judgment in favor of Plaintiff
Fuzion Vapor, LLC and against Defendant Fumizer, LLC, with respect to
Count I, Count II, Count III, and Count IV of the Complaint in the amount
of $15,867.50 in attorney’s fees pursuant to 15 U.S.C. § 1117(a), and
$465 in costs pursuant to 28 U.S.C. § 1920. Post-judgment interest will
accrue at the statutory rate set forth in 28 U.S.C. § 1961.
b. The Clerk of the Court is further DIRECTED to enter a judgment of
permanent injunction in favor of Plaintiff Fuzion Vapor, LLC and against
Defendant Fumizer, LLC as follows:
Fumizer, LLC; its affiliated entities, servants, agents,
representatives, employees, and successors; and all other
persons in active concert or participation with any or all of

1

Had Defendant objected, the Court might have been inclined to further reduce the requested hourly
rates. However, in the absence of any objection, and in light of the persuasive authority cited by the
Magistrate Judge, the Court will accept the recommended hourly rates for purposes of this particular case.
Doing so will not serve as precedent for this Court in future cases.

2

them, who receive actual notice of the judgment by personal
service or otherwise, are permanently enjoined from:
a)

using the FUMI VAPOR, FUMIVAPOR, and FV marks,
the FV design mark, the Fumi Vapor trade name,
fumivapor.com, or any other colorable imitation of those
marks or Fuzion Vapor, LLC’s FUZION VAPOR mark
or FV design mark, in advertising, promoting,
merchandising, distributing, offering for sale, and
selling electronic-cigarette products and services and
any products or services relating to electronic cigarettes
or their use;

b)

expressly or impliedly representing to customers,
potential customers, or the public that any electroniccigarette products and services or other products or
services related to electronic cigarettes or their use are
affiliated in any way with Fuzion Vapor, LLC;

c)

representing by words or conduct that Fumizer, LLC’s
electronic-cigarette products and services or any
products or services relating to electronic cigarettes or
their use, are authorized by, sponsored by, endorsed
by, or otherwise connected with Fuzion Vapor, LLC;
and

d)

doing any other acts calculated or likely to cause
confusion or mistake in the mind of the public or lead
consumers into the belief that Fumizer, LLC’s
electronic-cigarette products and services and any
other products or services relating to electronic
cigarettes or their use are authorized, sponsored,
licensed, endorsed, or promoted by Fuzion Vapor, LLC,
or are otherwise affiliated or connected with Fuzion
Vapor, LLC,

Additionally, Fumizer, LLC, must cancel the domain name
“fumivapor.com.”
5.

In all other respects Plaintiff’s Motion for Entry of Default Judgment Against
Defendant (Doc. 12) is DENIED.

6.

Plaintiff Fuzion Vapor, LLC shall serve a copy of this final Order and the
Court’s Judgment of Permanent Injunction on Defendant Fumizer, LLC, who
3

shall have 30 days from the service date to comply with the requirements of
the permanent injunction, failing which Plaintiff may file a motion to enforce
the permanent injunction, supported by evidence of service on Defendant
and evidence of violation of the injunction.
7.

The Clerk of the Court is further directed to terminate any pending motions
and close the file.

DONE AND ORDERED at Jacksonville, Florida, this 30th day of August, 2017.

lc25
Copies to:
Honorable Patricia D. Barksdale
United States Magistrate Judge
Counsel of Record
Fumizer, LLC d/b/a Fumi Vapor
Eduard Kirakosyan, Registered Agent
7308 Laurel Canyon Boulevard
North Hollywood, CA 91605

4