Aviva Sports, Inc. v. Fingerhut Direct Marketing, Inc. et al

Filing 737

ORDER ADOPTING REPORT AND RECOMMENDATION 722 - IT IS ORDERED THAT: (1) Avivas Motion for Sanctions 635 is GRANTED in part and DENIED in part. (2) Default judgment is entered in Avivas favor on its claims under the Lanham Act and Minnesota Decept ive Trade Practices Act, for an amount to be determined by this Court upon proof of damages, and attorneys fees and costs at the Courts discretion. (3) Aviva shall submit to the Court proof of its damages on its Lanham Act claims. Manley is not per mitted to oppose this submission. (4)Judgment is entered in favor of Aviva and against Manley in the amount of $362,438.00, in addition to any amounts Aviva may be awarded for damages, fees, and costs associated with Avivas claims under the Lanham Act and Minnesota Deceptive Trade Practices Act. (Written Opinion) Signed by Judge Joan N. Ericksen on February 6, 2013. (CBC)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Aviva Sports, Inc.,
Plaintiff,
v.

Civil No. 09-1091 (JNE/JSM)
ORDER

Fingerhut Direct Marketing, Inc., Menard, Inc.,
Kmart Corporation, Wal-Mart Stores, Inc., and
Manley Toys, Ltd.,
Defendant.
This matter is before the Court on a Report and Recommendation issued by the
Honorable Janie S. Mayeron, United States Magistrate Judge, on January 8, 2013. After
providing a thorough history of this case and outlining the numerous occasions on which
Defendant Manley Toys, Ltd. (“Manley”) has failed to obey Court orders, the magistrate judge
recommended that Plaintiff Aviva Sports, Inc.’s (“Aviva”) Motion for Sanctions be granted in
part and denied in part. The magistrate judge recommended that default judgment be entered in
Aviva’s favor on its Lanham Act, 15 U.S.C. § 1125(a) (2006), and Minnesota Uniform
Deceptive Trade Practices Act, Minn. Stat. § 325D.44 (2010), claims, for an amount to be
determined by this Court upon proof of damages, and for attorney’s fees and costs at this Court’s
discretion. The magistrate judge denied the motion for sanctions to the extent it sought a default
judgment in Aviva’s favor on the patent infringement claims. The magistrate judge also
recommended that judgment be entered in favor of Aviva and against Manley in the amount of
$362,438.00, representing the $238,254 Manley was ordered to pay on January 3, May 9, and
June 15, 2012, the $121,184 Manley was ordered to pay on September 6, 2012, and the $3,000
that Manley was ordered to pay on September 7, 2012. Manley objected to the Report and
Recommendation, and Aviva responded. The Court has conducted a de novo review of the

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record. See D. Minn. LR 72.2(b). Based on that review, the Court adopts the Report and
Recommendation [Docket No. 722].
Therefore, IT IS ORDERED THAT:
1.

Aviva’s Motion for Sanctions [Docket No. 635] is GRANTED in part and
DENIED in part.

2.

Default judgment is entered in Aviva’s favor on its claims under the
Lanham Act and Minnesota Deceptive Trade Practices Act, for an amount
to be determined by this Court upon proof of damages, and attorney’s fees
and costs at the Court’s discretion.

3.

Aviva shall submit to the Court proof of its damages on its Lanham Act
claims. Manley is not permitted to oppose this submission.

4.

Judgment is entered in favor of Aviva and against Manley in the amount
of $362,438.00, in addition to any amounts Aviva may be awarded for
damages, fees, and costs associated with Aviva’s claims under the Lanham
Act and Minnesota Deceptive Trade Practices Act.

Dated: February 6, 2013
s/Joan N. Ericksen
JOAN N. ERICKSEN
United States District Judge

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