David Boggs, LLC, et al v. Soltis, et al

Filing 56

ORDER adopting 55 REPORT AND RECOMMENDATIONS re 53 MOTION for partial final judgment against My Affordable Roof, LLC filed by David Boggs, LLC, Mac Mar, LLC. Signed by Judge Roy B. Dalton, Jr. on 9/17/2019. (JLC) Modified on 9/17/2019 (JLC).

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
DAVID BOGGS, LLC; and
MAC MAR, LLC,
Plaintiffs,
v.

Case No. 6:18-cv-687-Orl-37GJK

MY AFFORDABLE ROOF, LLC,
Defendant.
_____________________________________
ORDER
Plaintiffs sued Defendants My Affordable Roof, LLC (“MAR LLC”) and Matthew
Soltis alleging they have been using Plaintiffs’ service mark, “My Affordable Roof,” in
violation of the Lanham Act, Florida trademark statutes, and common law. 1 (Doc. 1.)
Plaintiffs seek relief for misleading representations, dilution, unfair competition and
trademark infringement. (Id.)
Plaintiffs successfully obtained an entry of default against MAR LLC after it failed
to properly appear. (Docs. 29, 31.) Now, Plaintiffs request default judgment against MAR
LLC and a permanent injunction. (Doc. 53 (“Motion”).) On referral, U.S. Magistrate Judge
Gregory J. Kelly recommends the Court: (1) grant the Motion; (2) enter a default judgment
and appropriate permanent injunction against MAR LLC; (3) require MAR LLC to notify
its commercial associates, vendors, customers, and clients of this judgment and

MAR LLC is the only Defendant remaining because Plaintiffs and Mr. Soltis
settled. (Docs. 52, 54.)
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permanent injunction; (4) retain jurisdiction over this action to enforce the judgment and
permanent injunction; and (5) direct the Clerk to close the case. (Doc. 55 (“R&R”).)
The parties did not object to the R&R, and the time for doing so has now passed.
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 v. Prem, Inc., 208 F. App’x 781, 784 (11th Cir. 2006). Finding no such error, the
Court finds that the R&R is due to be adopted in its entirety.
All that is left for the Court to decide is the appropriate scope of the permanent
injunction recommended by Magistrate Judge Kelly. Under Federal Rule of Civil
Procedure 65(d), an injunction must “state its terms specifically” and “describe in
reasonable detail . . . the act or acts restrained or required.” So an injunction “should
clearly let defendant know what he is ordered to do or not to do” and “should be phrased
in terms of objective actions, not legal conclusions.” Planetary Motion, Inc. v. Techsplosion,
Inc., 261 F.3d 1188, 1203 (11th Cir. 2001) (quoting John H. Harland Co. v. Clarke Checks, Inc.,
711 F.2d 966, 984–85 (11th Cir. 1983)). Relevant here, “[a]n injunction which merely forbids
a defendant from performing acts of unfair competition or from infringing on plaintiff’s
trademarks and trade secrets adds nothing to what the law already requires.” Id. (internal
quotations omitted).
Plaintiffs request this permanent injunction against MAR LLC:
Defendant and its agents, officers, directors, servants, employees, attorneys,
its successors and assigns, and all others in active concert or participation
with it, be permanently enjoined from directly or indirectly:

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(a) Using Plaintiffs’ Service Mark, or any other marks which are similar to
or are colorable imitations of Plaintiffs’ Service Mark including any known
or common acronyms for such Service Mark, used alone or together with
any geographic designation, alone or as a part of or together with any other
designs, word or words, trademark, service mark, trade name, trade dress
or other business or commercial designation or any logo, symbol or design;
(b) Committing any act that, in and of itself, or from the manner or under
the circumstances in which it is done amounts to false description or false
representation of Defendant’s Infringing Services; and
(c) Otherwise unfairly competing with Plaintiffs or committing dilution or
infringement of Plaintiffs’ rights.
(Doc. 53, p. 10.) On review, Plaintiffs’ proposed language is overbroad and not specific
enough to put MAR LLC on notice of prohibited conduct. See Fed. R. Civ. P. 65(d).
Further, to the extent the proposed injunction prohibits MAR LLC from unfair
competition and trademark infringement or dilution, this language adds nothing to what
the law already requires and is inappropriate as injunctive relief. See Planetary Motion,
Inc., 261 F.3d at 1203 (quoting John H. Harland Co., 711 F.2d at 984–85). Therefore, the
Court will order more narrowly tailored injunctive relief.
Accordingly, it is ORDERED AND ADJUDGED as follows:
1.

U.S. Magistrate Judge Gregory J. Kelly’s Report and Recommendation
(Doc. 55) is ADOPTED, CONFIRMED, and made a part of this Order.

2.

Plaintiff’s Motion for Partial Final Judgment Against Defendant, My
Affordable Roof, LLC (Doc. 53) is GRANTED IN PART AND DENIED IN
PART:
a.

The Motion is DENIED to the extent the Court declines to enter the
proposed permanent injunction. Instead, the Court will enter a
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modified permanent injunction.
b.
3.

In all other respects, the Motion is GRANTED.

Defendant, My Affordable Roof, LLC, as well as its principals, employees,
agents, and assigns, and all others acting through it, are PERMANENTLY
ENJOINED from directly or indirectly using Plaintiffs’ service mark, “MY
AFFORDABLE ROOF,” or any colorable imitation, confusingly similar
variation, or variation likely to cause dilution of Plaintiffs David Boggs,
LLC’s and MAC MAR, LLC’s service mark.

4.

Defendant My Affordable Roof, LLC is DIRECTED to notify its commercial
associates, vendors, customers, and clients of this Judgment, Order, and
Permanent Injunction.

5.

The Court retains jurisdiction over this action to enforce this Judgment,
Order and Permanent Injunction.

6.

The Clerk is DIRECTED to:
a.

Enter default judgment in favor of Plaintiffs David Boggs, LLC and
MAC MAR, LLC and against Defendant My Affordable Roof, LLC;
and

b.

Close the case.

DONE AND ORDERED in Chambers in Orlando, Florida, on September 17, 2019.

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Copies to:
Counsel of Record

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