McKeon Prod Inc v. Howard S. Leight, et al
Filing
78
OPINION AND ORDER: (1) ADOPTING MAGISTRATE JUDGE STAFFORDS MAY 23, 2019 AMENDED REPORT AND RECOMMENDATION 68 ;(2) OVERRULING DEFENDANTS OBJECTIONS 70 ;(3) DENYING DEFENDANTS RENEWED MOTION FOR LEAVE TO FILE DECLARATION OF KORRIE LARKIN IN SUPPORT OF OBJECTIONS 71 ;and (4) GRANTING PLAINTIFFS MOTION TO REOPEN CASE AND ENFORCE THE COURTS 1997 FINAL JUDGMENT AND PERMANENT CONSENT ORDER 32 Signed by District Judge Paul D. Borman. (DTof)
Case 2:95-cv-76322-PDB-EAS ECF No. 78, PageID.913 Filed 11/25/20 Page 1 of 9
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MCKEON PRODUCTS, INC.,
Plaintiff,
v.
Case No. 95-cv-76322
Paul D. Borman
United States District Judge
HONEYWELL SAFETY PRODUCTS
USA, INC., successor-in-interest to
HOWARD S. LEIGHT AND
ASSOCIATES, INC.
Elizabeth A. Stafford
United States Magistrate Judge
Defendant.
__________________________/
OPINION AND ORDER: (1) ADOPTING MAGISTRATE JUDGE
STAFFORD’S MAY 23, 2019 AMENDED REPORT AND
RECOMMENDATION (ECF NO. 68);
(2) OVERRULING DEFENDANT’S OBJECTIONS (ECF NO. 70);
(3) DENYING DEFENDANT’S RENEWED MOTION FOR LEAVE TO
FILE DECLARATION OF KORRIE LARKIN IN SUPPORT OF
OBJECTIONS (ECF NO. 71);
and (4) GRANTING PLAINTIFF’S MOTION TO REOPEN CASE AND
ENFORCE THE COURT’S 1997 FINAL JUDGMENT AND PERMANENT
CONSENT ORDER (ECF NO. 32)
This action involves Plaintiff McKeon Products Inc.’s (“McKeon”) effort to
reopen this case to enforce the Court’s February 11, 1997 Final Judgment and
Permanent Consent Order Against Honeywell Safety Products USA, Inc., successorin-interest to Howard S. Leight & Associates, Inc. (ECF No. 32). On May 23, 2019,
Magistrate Judge Elizabeth A. Stafford issued an Amended Report and
Recommendation to grant McKeon’s motion to reopen this case to enforce the final
Case 2:95-cv-76322-PDB-EAS ECF No. 78, PageID.914 Filed 11/25/20 Page 2 of 9
judgment and consent order, and to order Defendant Honeywell Safety Products
USA, Inc., as successor-in-interest to Howard S. Leight and Associates, Inc.
(“Honeywell”), to cease selling Max and Max-Lite earplugs through the retail
market, including the online retail market, as required by the permanent injunction.
(ECF No. 68, Amended Report and Recommendation.)
Defendant Honeywell filed Objections to the Magistrate Judge’s Amended
Report and Recommendation that are presently before this Court. (ECF No. 70,
Honeywell’s Objections to the May 23, 2019 Amended Report and
Recommendation.) Honeywell argues that the Magistrate Judge, although finding
the Consent Order not ambiguous, impermissibly considered extrinsic evidence and
failed to conduct an evidentiary hearing. Honeywell further argues that because
McKeon failed to enforce the Consent Order against the sale of Max earplugs by
retail mass merchandisers, including online retail mass merchandisers, for ten or
more years, it is barred by the doctrine of laches from now enforcing the Consent
Order. McKeon responded to those Objections (ECF No. 74, Plaintiff’s Response),
and Honeywell filed a reply brief in support of its Objections (ECF No. 75,
Defendant’s Reply). Also before the Court is Defendant Honeywell’s Renewed
Motion for Leave to File Supplemental Declaration of Korrie Larkin (ECF No. 71),
2
Case 2:95-cv-76322-PDB-EAS ECF No. 78, PageID.915 Filed 11/25/20 Page 3 of 9
to which Plaintiff McKeon has responded in opposition (ECF No. 72), and to which
Honeywell has replied (ECF No. 73).
Having conducted a de novo review of the portions of the Magistrate Judge’s
Amended Report and Recommendation to which the Objections were filed by
Defendant, as well as Plaintiff McKeon’s Motion to Reopen Case and Enforce the
Court’s Final Judgment and Consent Order, the Court rejects Defendant’s
Objections (ECF No. 70), adopts Magistrate Judge Stafford’s Amended Report and
Recommendation (ECF No. 68), denies Defendant Honeywell’s Renewed Motion
for Leave to File Supplemental Declaration of Korrie Larkin (ECF No. 71), and now
grants Plaintiff McKeon’s Motion to Reopen Case and Enforce the Court’s 1997
Final Judgment and Permanent Consent Order against Defendant Honeywell,
successor-in-interest to Howard S. Leight & Associates, Inc. (ECF No. 32.)
I.
BACKGROUND
Plaintiff McKeon has sold its soft earplugs under the name “MACK’S” since
the 1960’s. (ECF No. 32, Pl.’s Mot. to Reopen Case, PgID 11.) Defendant
Honeywell’s predecessor, Howard S. Leight & Associates, Inc. (“Howard Leight”),
began selling its own line of earplugs under the trademark “MAX” in 1986. (Id.)
McKeon sued Howard Leight in 1995, and in 1996 moved for a preliminary
injunction, alleging that Howard Leight’s sales of earplugs under the registered
3
Case 2:95-cv-76322-PDB-EAS ECF No. 78, PageID.916 Filed 11/25/20 Page 4 of 9
“MAX” and “MAX-LITE” trademarks violated the Lanham Act, the Michigan
Consumer Protection Act, and Michigan common law. (ECF Nos. 1, 8, 10.) The
parties settled in 1997, and memorialized their agreement in a Final Judgment and
Permanent Consent Order Against Howard S. Leight & Associates, Inc., dated
February 11, 1997. (ECF No. 32-2, Consent Order.) It is undisputed that Defendant
Honeywell is a successor-in-interest to Howard S. Leight & Associates, Inc. and thus
bound by the terms of the Consent Order.
On March 21, 2018, Plaintiff McKeon filed its Motion to Reopen Case and
Enforce the Court’s Final Judgment and Permanent Consent Order. (ECF No. 32.)
McKeon argues that Defendant Honeywell is violating the Consent Order by selling
Max and Max-Lite earplugs through the online retail market. McKeon’s motion was
fully briefed by the parties (ECF Nos. 40, 44), and referred to Magistrate Judge
Elizabeth Stafford for a report and recommendation. (ECF No. 52.) The Magistrate
Judge issued her Report and Recommendation on November 13, 2018. (ECF No.
58.) On May 22, 2019, this Court vacated the Magistrate Judge’s Report and
Recommendation, denied as moot Defendant Honeywell’s Objections and its
Motion for Leave to File Supplemental Declaration of Korrie Larkin, and
recommitted the matter to the Magistrate Judge for clarification and a revised report
and recommendation. (ECF No. 67.) Magistrate Judge Stafford issued an Amended
4
Case 2:95-cv-76322-PDB-EAS ECF No. 78, PageID.917 Filed 11/25/20 Page 5 of 9
Report and Recommendation on May 23, 2019. (ECF No. 68.) Now before the Court
are
Defendant
Honeywell’s
Objections
to
the
Amended
Report
and
Recommendation, McKeon’s response in opposition to those Objections, and
Honeywell’s reply in support. (ECF Nos. 70, 74, 75.)
On November 27, 2019, the Court referred this matter to facilitative mediation
(ECF No. 77); the matter did not resolve. Accordingly, the Court now addresses the
Magistrate Judge’s Amended Report and Recommendation, to which Defendant
Honeywell filed Objections, as well as Honeywell’s Renewed Motion to File
Supplemental Declaration of Korrie Larkin.
II.
STANDARD OF REVIEW
Pursuant to Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1),
the Court conducts a de novo review of the portions of the magistrate judge’s Report
and Recommendation to which a party has filed “specific written objections” in a
timely manner. Lyons v. Comm’r of Soc. Sec., 351 F. Supp. 2d 659, 661 (E.D. Mich.
2004). A district court “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.” Id. Only those
objections that are specific are entitled to a de novo review under the statute. Mira
v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986). “The parties have the duty to pinpoint
those portions of the magistrate’s report that the district court must specially
5
Case 2:95-cv-76322-PDB-EAS ECF No. 78, PageID.918 Filed 11/25/20 Page 6 of 9
consider.” Id. (internal quotation marks omitted). A general objection, or one that
merely restates arguments previously presented, does not sufficiently identify
alleged errors on the part of the magistrate judge. An “objection” that does nothing
more than disagree with a magistrate judge’s determination “without explaining the
source of the error” is not a valid objection. Howard v. Sec’y of Health and Human
Servs., 932 F.2d 505, 509 (6th Cir. 1991).
When interpreting a consent decree as written, the Court must focus solely on
the language of the consent decree itself. The Sixth Circuit has explained that:
The Supreme Court has noted that “consent decrees bear some of the
earmarks of judgments entered after litigation” and that “[a]t the same
time, because their terms are arrived at through mutual agreement of
the parties, consent decrees also closely resemble contracts.” Local No.
93, Int'l Ass'n of Firefighters v. City of Cleveland, 478 U.S. 501, 519,
106 S.Ct. 3063, 92 L.Ed.2d 405 (1986). It is this resemblance to
contracts that requires that the scope of a consent decree “be discerned
within its four corners, and not by reference to what might satisfy the
purposes of one of the parties to” the consent decree. United States v.
Armour & Co., 402 U.S. 673, 682, 91 S.Ct. 1752, 29 L.Ed.2d 256
(1971). Therefore, while Navistar’s argument that the parties’ original
intent was to permanently reduce Navistar’s retiree healthcare costs
might be relevant in a motion to modify the consent decree, the
interpretation of the consent decree as written should focus only within
the four corners of the consent decree.
Shy v. Navistar Int’l Corp., 701 F.3d 523, 530 (6th Cir. 2012) (emphasis added).
Only “[i]f the language of the decree is ambiguous [may] the court’s interpretation
[] depart from the four corners.” Dotson v. HUD, 731 F.2d 313, 318 (6th Cir. 1984).
6
Case 2:95-cv-76322-PDB-EAS ECF No. 78, PageID.919 Filed 11/25/20 Page 7 of 9
III.
ANALYSIS
The Court has conducted a de novo review of the portions of the Magistrate
Judge’s Amended Report and Recommendation to which Defendant Honeywell has
filed specific objections, and reviewed the February 11, 1997 Final Judgement and
Permanent Consent Order, as well as the underlying briefing on Plaintiff McKeon’s
Motion to Reopen Case and Enforce the Court’s Final Judgment and Consent Order.
The Court concurs with the Magistrate Judge’s Amended Report and
Recommendation, that the four corners of the 1997 Consent Order preclude
Honeywell from selling Max and Max-Lite earplugs in the Retail Market, consisting
of all retail establishments including the Drug and Grocery Market and retail mass
merchandisers. (Amended Report at pp. 13-15, PgID 615-17) (Consent Order, E.
Permanent Injunction, PgID 30-32.)
This Court will enforce the 1997 Final Judgment and Permanent Consent
Order.
This Court rejects Defendant Honeywell’s contention that the doctrine of
laches applies against this motion by Plaintiff McKeon to enforce the 1997 Consent
Order. This Court notes, with approval, the 2020 decision in Cernelle v. Graminex,
L.L.C., 437 F. Supp. 3d 574 (E.D. Mich. 2020), which addressed alleged
appropriation of the plaintiff’s trademarks, that was resolved by a settlement that
7
Case 2:95-cv-76322-PDB-EAS ECF No. 78, PageID.920 Filed 11/25/20 Page 8 of 9
included a permanent injunction, and thereafter the plaintiff’s motion to enforce the
settlement agreement. In Cernelle, the defendants contended, inter alia, that the
court should apply the doctrine of laches and not invoke its inherent power to enforce
the injunction because of the plaintiff’s delay in returning to court to enforce the
settlement agreement. United States District Judge David Lawson rejected the
defendant’s laches argument, and issued an order granting the plaintiff’s motion to
enforce the settlement agreement, stating:
And in the Sixth Circuit, laches does not foreclose the plaintiff’s right
to injunctive relief and post-filing damages. Nartron Corp. [v.
STMicroelectronics, Inc.], 305 F.3d [397,] 412 [(6th Cir. 2002)] (citing
Kellogg Co. v. Exxon Corp., 209 F.3d 562, 568 (6th Cir. 2000)).
Cernelle, 437 F. Supp. 3d at 603. The instant case also involves trademark issues
resolved through a consent order, and thereafter a motion to enforce a settlement
agreement. (See Consent Order ¶¶ A, E.8., PgID 29, 31; ECF No. 32.) The Court
agrees with Judge Lawson’s reasoning, and concludes that the doctrine of laches
does not apply to bar Plaintiff McKeon’s request for injunctive relief.
Finally, Defendant Honeywell’s Renewed Motion for Leave to File
Supplemental Declaration of Korrie Larkin (ECF No. 71) is denied.
8
Case 2:95-cv-76322-PDB-EAS ECF No. 78, PageID.921 Filed 11/25/20 Page 9 of 9
IV.
CONCLUSION
For the reasons stated above, the Court hereby: (1) OVERRULES Defendant
Honeywell’s Objections to the Magistrate Judge’s Amended Report and
Recommendation (ECF No. 70); (2) ADOPTS the Amended Report and
Recommendation of Magistrate Judge Elizabeth Stafford (ECF No. 68); (3) DENIES
Defendant Honeywell’s Renewed Motion for Leave to File Supplemental
Declaration of Korrie Larkin (ECF No. 71); (4) GRANTS Plaintiff McKeon’s
Motion to Reopen Case and Enforce the Court’s Final Judgment and Permanent
Consent Order of February 11, 1997 (ECF No. 32); and (5) ORDERS, as required
by the February 11, 1997 Final Judgment and Permanent Consent Order, that
Defendant Honeywell, successor-in-interest to Howard S. Leight & Associates, Inc.,
cease selling Max and Max-Lite earplugs to and through the Retail Market,
consisting of all retail establishments including the Drug and Grocery Market,
sporting goods stores, and retail mass merchandisers, including online retail mass
merchandisers such as Amazon.com and Walmart.com.
IT IS SO ORDERED.
Dated: November 25, 2020
s/Paul D. Borman
Paul D. Borman
United States District Judge
9
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?