Ghost Controls, LLC v. Gate1Access LLC. et al

Filing 31

ORDER adopting 20 REPORT AND RECOMMENDATIONS re 19 MOTION for Default Judgment against Gate1Access LLC., Julio Toledo filed by Ghost Controls, LLC. Signed by Judge Roy B. Dalton, Jr. on 1/6/2021. (BIA)

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
GHOST CONTROLS, LLC,
Plaintiff,
v.

Case No. 5:20-cv-288-Orl-37PRL

GATE1ACCESS LLC; and JULIO
TOLEDO,
Defendants.
_____________________________________
ORDER
Plaintiff sued Defendants for trademark and copyright infringement. (Doc. 8.)
Now Plaintiff moves for default judgment against Defendants, requesting monetary
damages and injunctive relief. (Doc. 19 (“Motion”).) On referral, U.S. Magistrate Judge
Philip R. Lammens recommends the Court grant the Motion. (Doc. 20 (“R&R”).)
After Judge Lammens issued his R&R, Defendant Julio Toledo, proceeding pro se,
filed a “letter as a response to the complaint” dated three months before the R&R. (Doc.
22 (“Letter”).) The Undersigned referred the matter back to Judge Lammens to determine
how, if at all, the Letter affects his R&R. (Doc. 23.) After hearing from Plaintiff (Docs. 24,
25), Judge Lammens directed Mr. Toledo to file briefing by December 16, 2020 if he seeks
to contest default judgment (Doc. 26). Instead, Mr. Toledo filed a motion to set aside the
Clerk’s default (Doc. 28), which was denied by Judge Lammens (Doc. 29). Judge
Lammens extended Mr. Toledo’s deadline to respond to the R&R to December 30, 2020.
(Doc. 29.) Mr. Toledo failed to respond, so Judge Lammens stands by his R&R. (Doc. 30.)
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Mr. Toledo did not properly object to the R&R and the time for doing so has now
passed, despite multiple extensions. (See Docs. 20, 26, 29.) The Letter is not a proper
objection to the R&R because it fails to mention the R&R, let alone specify which parts
Mr. Toledo objects to. (See Doc. 22); Macort v. Prem, Inc., 208 F. App’x 781, 783–85 (11th
Cir. 2006). As such, the Court has examined the R&R only for clear error. See Wiand v.
Wells Fargo Bank, N.A., No. 8:12-cv-557-T-27EAJ, 2016 WL 355490, at *1 (M.D. Fla. Jan 28,
2016); see also Macort, 208 F. App’x at 784. Finding no such error, the R&R is due to be
adopted in its entirety. All that remains is the scope of injunctive relief. The Court adopts
Plaintiff’s language, except for where it amounts to an obey-the-law injunction, missing
the required specificity to be valid. See Burton v. City of Belle Glade, 178 F.3d 1175, 1200–01
(11th Cir. 1999).
Accordingly, it is ORDERED AND ADJUDGED:
1.

U.S. Magistrate Judge Philip R. Lammens’ Report and Recommendation
(Doc. 20) is ADOPTED, CONFIRMED, and made a part of this Order.

2.

Plaintiff’s Motion for Entry of Final Default Judgment (Doc. 19) is
GRANTED.

3.

The Clerk is DIRECTED to enter default judgment in favor of Plaintiff and
against Defendants.

4.

The Court AWARDS Plaintiff $106,000 in statutory damages and $12,350
in attorney’s fees.

5.

Defendants, their employees, agents, officers, directors and assigns, and all
of those in active concert and participation with any of the foregoing
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persons, are PERMANENTLY ENJOINED from:
a.

Manufacturing, distributing, selling, marketing, advertising or
promoting, any goods bearing marks confusingly similar to or
identical to Plaintiff’s trademarks or containing any copyrighted
work;

b.

Making or displaying any statement, representation, or depiction
that is likely to lead the public or the trade to believe that:
i.

Defendants’ goods are in any manner approved, endorsed,
licensed, sponsored, authorized, or franchised by or
associated, affiliated, or otherwise connected with Plaintiff; or

ii.

Plaintiff’s goods are in any manner approved, endorsed,
licensed, sponsored, authorized, or franchised by or
associated,

affiliated

or

otherwise

connected

with

Defendants;
c.

Registering or applying to register any trademark, service mark,
domain name, trade name, or other source identifier or symbol of
origin consisting of or incorporating the Ghost Controls trademarks
or any other mark that infringes or is likely to be confused with
Plaintiff’s Ghost Control trademarks, or any goods or services of
Plaintiff, or Plaintiff as their source;

6.

Defendants are DIRECTED to:
a.

Immediately cease all manufacture, display, distribution, marketing,
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advertising, promotion, sale, offer for sale and/or use of any and all
materials that feature or bear any designation or mark incorporating
the Ghost Controls Trademarks or any other mark that is a
counterfeit, copy, simulation, confusingly similar variation or
colorable imitation of Plaintiff’s Ghost Control Trademarks;
b.

Recall and deliver up for destruction or other disposition all goods,
packaging, containers, advertisements, promotions, signs, displays,
and related materials incorporating or bearing the Ghost Controls
Trademarks or any other mark that is a counterfeit, copy,
confusingly similar variation, or colorable imitation of Plaintiff’s
Ghost Controls Trademarks;

c.

Destroy or deliver up for destruction all materials in Defendants’
possession, custody or control used by Defendants in connection
with Defendants’ infringing conduct, including without limitation
all remaining inventory of the copyrighted material and any
products and works that embody any reproduction or other copy or
colorable imitation of the copyrighted material, as well as all means
for manufacturing them;

d.

At their own expense, recall and destroy or deliver up for destruction
the copyrighted material from any distributors, retailers, vendors, or
others that have distributed the material on Defendants’ behalf, and
any products, works, or other materials that include, copy, are
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derived from, or otherwise embody the copyrighted material.
7.

The Clerk is DIRECTED to close the file.

DONE AND ORDERED in Chambers in Orlando, Florida, on January 6, 2021.

Copies to:
Counsel of Record
Pro Se Party

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