Yellow Cab Company of Orlando, Inc. v. Celebration Transportation, Inc.

Filing 86

ORDER granting in part and denying in part 55 Motion for Sanctions; adopting in part Report and Recommendations re 61 Report and Recommendations. Defendant and Jose Valdez have forfeited the phone number in question, Plaintiff has agreed not to seek monetary sanctions, and Plaintiff and Defendant through Jose Valdez have agreed to jointly remove the infringing number from all websites. See Order for further details. Signed by Judge Elizabeth A. Kovachevich on 3/24/2015. (rjm)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

YELLOW CAB COMPANY OF
ORLANDO, INC.,
Plaintiff,
v.

Case No.: 8:12-CV-1910-T-17MAP

CELEBRATION TRANSPORTATION, INC.,
d/b/a CELEBRATION TAXI and d/b/a
THE YELLOW CAB COMPANY,
Defendant.
/
ORDER ADOPTING IN PART THE REPORT AND RECOMMENDATION
This cause is before the Court on the Report and Recommendation (R&R)
Magistrate Judge Mark A. Pizzo issued October 8, 2014. (Doc. 61). Magistrate Judge
Pizzo recommended the Court grant Plaintiffs Second Motion for Sanctions and
Contempt based on Defendant’s failure to comply with the Court’s injunctive order and
first contempt order. (Doc. 55). Defendant never retained legal counsel and Defendant’s
CEO Jose Valdez continued to appear in Court on behalf of Defendant despite the Court’s
numerous warnings to the contrary. Defendant did not file objections to the R&R, and
Plaintiff provide notices of further violations in October and December. While Defendant
is not a era se entity, this Court conducted a hearing January 21, 2015—an effort to
provide Defendant every opportunity to respond to both the Second Motion for Sanctions
and the R&R. For the reasons stated below, the Court ADOPTS in PART the R&R.

STANDARD OF REVIEW
When a party makes a timely and specific objection to a finding in a report and
recommendation—whether factual or legal in nature—the district court should make a de
novo review of the record with respect to that issue. 28 U.S.C. § 636(b)(1); U.S. v.
Raddatz. 447 U.S. 667 (1980); Jeffrey S. v. State Board of Education of State of Georgia.
896 F.2d 507 (11th Cir. 1990). “The district judge may consider arguments not presented
to the magistrate judge” when considering objections. Charlebois-Deubler v. Prudential
Ins. Co. of America. 2013 WL 980260 (M.D. Fla. 2013) (citing Stephens v. Tolbert. 471
F.3d 1173,1174 (11th Cir. 2006)).
DISCUSSION
While Defendant did not file timely objections, the R&R considered the imposition
of incarceration, and Mr. Valdez informed the Court his company was on the brink of
bankruptcy and he lacked the financial ability to secure legal counsel. Therefore, while
unconventional, this Court construed liberally Mr. Valdez’ representations during the
January 21, 2015, hearing as Defendant’s objections to the R&R.
At that hearing, Mr. Valdez informed the Court he was in the process of removing
all websites and information that would result in confusion and, therefore, violation of the
Court’s orders. Mr. Valdez stated to the extent he was able, he would coordinate with
Plaintiffs counsel upon the discovery of additional sites to which Mr. Valdez was allegedly
unaware. Mr. Valdez finally objected to relinquishing the number [phone] to
Plaintiff, despite the Court’s previous orders. Instead, Mr. Valdez stated he would endure
incarceration before transferring the number to a corporation he deemed had no legal
claim to the number, despite the procedural posture and this Court’s legal findings.

Upon considerable and persistent discussion between the parties and the Court,
Mr. Valdez relented, and stated he would personally forfeit ownership of the number, but
he would not transfer the number to Plaintiff. The Court, seeking to enforce the essence
of previous orders—and mindful of both Defendant’s and Mr. Valdez’ lack of legal
counsel—reconsidered the injunctive relief, and determined that although Plaintiff would
not own the number, if Mr. Valdez forfeited the number, the crux of the injunctive relief
would be resolved—Defendant could not use the [phone] number to conduct
business resulting in confusion and, therefore, the infringement would cease.
After Mr. Valdez forfeited the number to Plaintiff’s counsel’s satisfaction,
Magistrate Judge Pizzo presided over Mr. Valdez’ deposition, in which Plaintiff’s counsel
ascertained Mr. Valdez’ and Defendant’s financial condition. On February 11, 2015,
Plaintiff notified the Court it would not seek monetary sanctions against Defendant and
Mr. Valdez due to the unlikelihood of recovery and in the interest of judicial economy and
the expenditure of future resources. (Doc. 84 at 1J3).
Accordingly, it is ORDERED that the Report and Recommendation, (Doc. 61), is
ADOPTED in PART and INCORPORATED by REFERENCE consistent with this Order.
The Court AFFIRMS the findings of fact, ADJUDGES a second finding of contempt, and
imposes sanctions as suggested, with the exception of monetary sanctions. Defendant
forfeited the number, and Plaintiff no longer seeks monetary sanctions. Therefore, Mr.
Valdez is ORDERED to serve a period of twenty (20) days’ incarceration, suspended on
the condition that Defendant and Valdez, within fourteen (14) days from the date of this
Order, comply with the injunction by deleting any and all references to the number (407)
222-2222 from Defendant’s and Mr. Valdez’ websites, including, but not limited to:

www.shuttlesaver.com; www.taxiorlando407-222-2222.com: www.orlandotaxi407-2222222.com: www.orlandotaxicab.com: www.celebrationtaxi.com: and any other websites,
social media pages, and promotional materials—including the company taxis. The Court
has given great consideration to Defendants’ and Mr. Valdez’ financial condition;
Defendant and Mr. Valdez are cautioned to meticulously comply with this Court’s Order.
DONE and ORDERED in Chambers, in Tampa, Florida, this J ^ ^ clav of March,
2015.

Assigned Magistrate Judge