Ruggers, Inc. v. United States of America Rugby Football Union, Ltd.

Filing 82

Judge Michael A. Ponsor: MEMORANDUM AND ORDER entered. As follows: Upon de novo review, the court hereby ADOPTS the Report and Recommendation of JudgeNeiman dated February 17, 2011 (Dkt. No. 78 ). The damages to be awarded against Defendant XP will be in the amount of $23 million with attorneys fees in the amount of $24,600.00. Plaintiff may be assured that this finding will have no bearing on the continuing litigation between Plaintiff and USA Rugby and the counterclaim back by USA R ugby against Plaintiff. These claims remain for further adjudication. Based on the lack of opposition, the court hereby ALLOWS USA Rugbys Motion for Default Judgment on the crossclaim of XP (Dkt. No. 80 ). The court will decline to issue separate ju dgment pursuant to Fed. R. Civ. P. 54(d). Thus, the adoption of Judge Neimans Report and Recommendation, and the allowance of USA Rugbys motion against XPs cross-claim will create no appealable judgment. Final judgment will not enter pending completion of all the litigation in this case. See the attached memo and order for complete details. (Lindsay, Maurice)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
RUGGERS, INC., d/b/a
KOOGA NORTH AMERICA,
Plaintiff
v.
UNITED STATES OF AMERICA
RUGBY FOOTBALL UNION, LTD.
d/b/a USA RUGBY, ET AL.,
Defendants

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C.A. No. 09-cv-30051-MAP

MEMORANDUM AND ORDER REGARDING
REPORT AND RECOMMENDATION WITH REGARD TO
PLAINTIFF’S DAMAGES AGAINST DEFENDANT XP APPAREL, LLC,
AND DEFENDANT USA RUGBY’S
MOTION FOR DEFAULT JUDGMENT ON CROSS-CLAIM
ASSERTED BY XP APPAREL, LLC
(Dkt. Nos. 78 & 80)
April 21, 2011
PONSOR, D.J.
Plaintiff has charged Defendants XP Apparel, LLC (“XP”)
and America Rugby Football Union, LTD d/b/a USA Rugby (“USA
Rugby”) with trademark infringement under the Lanham Act, 15
U.S.C. § 114(a).

As part of the litigation, Defendant XP

asserted a cross-claim against Co-Defendant USA Rugby.
In November of 2010, this court allowed the attorneys
for XP to withdraw from the case.

At that time, XP

requested additional time to provide automatic disclosures,
which they had up to that point failed to provide.

The

court gave Plaintiff the opportunity to move for default and
indicated that XP could retain new counsel and oppose the

motion for default.

Ultimately, Plaintiff did request a

default on liability and this request was allowed based on
the absence of any opposition from XP.

Thereafter, the

portion of the litigation between Plaintiff and XP was
referred to Magistrate Judge Kenneth P. Neiman for a damages
hearing.
On February 17, 2011, Judge Neiman issued his Report
and Recommendation, to the effect that Plaintiff should be
awarded $23 million in damages against Defendant XP, along
with attorney’s fees in the amount of $24,600.00.

XP

offered no objection to this Report and Recommendation.
Plaintiff offered only a limited objection (Dkt. No. 79), to
insure that if the damage recommendation were adopted “the
findings will have no bearing or effect whatsoever as to any
of the claims asserted by Ruggers against USA Rugby in its
second amended complaint or by USA Rubgy against Ruggers in
its counterclaim, which matters remain for later
adjudication.”

Id. at 2.

On March 4, 2011, Defendant USA Rugby filed a Motion
for Default Judgment on the cross-claim asserted by XP (Dkt.
No. 80).

No opposition has been filed to this motion.

It

is obvious that XP lacks either the means or inclination to
participate in this litigation, or both.
Based upon the foregoing,, upon de novo review, the
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court hereby ADOPTS the Report and Recommendation of Judge
Neiman dated February 17, 2011 (Dkt. No. 78).

The damages

to be awarded against Defendant XP will be in the amount of
$23 million with attorney’s fees in the amount of
$24,600.00.

Plaintiff may be assured that this finding will

have no bearing on the continuing litigation between
Plaintiff and USA Rugby and the counterclaim back by USA
Rugby against Plaintiff.

These claims remain for further

adjudication.
Based on the lack of opposition, the court hereby
ALLOWS USA Rugby’s Motion for Default Judgment on the crossclaim of XP (Dkt. No. 80).
The court will decline to issue separate judgment
pursuant to Fed. R. Civ. P. 54(d).

Thus, the adoption of

Judge Neiman’s Report and Recommendation, and the allowance
of USA Rugby’s motion against XP’s cross-claim will create
no appealable judgment.

Final judgment will not enter

pending completion of all the litigation in this case.
It is So Ordered.

/s/ Michael A. Ponsor
MICHAEL A. PONSOR
U. S. District Judge

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