Two Men and a Truck/International, Inc.
Filing
23
ORDER AND PERMANENT INJUNCTION - Plaintiff's Motion for Entry of Final Judgment and Permanent Injunction by Default Against Defendant Robert Lee Thomas, Individually and D/B/A "Two Men and Two Trucks" (Filing No. 20 ) is granted. Plaintiff shall recover from Thomas the sum of $39,493.47 in attorney fees. This Court shall retain jurisdiction over this matter to enforce any violation of the terms of this Final Judgment and Permanent Injunction by Default. The Clerk of the Court is directed to close this case for statistical purposes. A separate judgment will be entered. Ordered by Chief Judge Laurie Smith Camp. (GJG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
TWO MEN AND A
TRUCK/INTERNATIONAL, INC.,
CASE NO. 8:12CV340
Plaintiff,
ORDER AND
PERMANENT INJUNCTION
vs.
ROBET LEE THOMAS, individually and
d/b/a “TWO MEN AND TWO TRUCKS,”
Defendant.
This matter is before the Court on Plaintiff Two Men and a Truck/International,
Inc.’s Motion for Entry of Final Judgment and Permanent Injunction by Default Against
Defendant Robert Lee Thomas, Individually and D/B/A “Two Men and Two Trucks”
(Filing No. 20), filed November 13, 2012 (the “Motion”).
The Court has carefully
considered the evidence Plaintiff has submitted and the allegations in Plaintiff’s Verified
Complaint. The Court finds that judgment should be entered in favor of Plaintiff and that
the Plaintiff’s motion for permanent injunction should be granted.
On September 21, 2012, Plaintiff filed its Verified Complaint alleging three claims
for relief against Defendant Robert Lee Thomas, individually and d/b/a Two Men and
Two Trucks” (collectively, “Thomas”): (1) infringement of federally registered trademarks
under Section 32 of the Lanham Act, 15 U.S.C. § 1114; (2) federal unfair competition
and false designation of origin under Section 43(a) of the Lanham Act, 15 U.S.C. §
1125(a); and (3) unfair competition and infringement in violation of the common law of
the State of Nebraska. On September 25, 2012, Plaintiff filed a Motion for Preliminary
Injunction (Filing No. 8), supported by a brief (Filing No. 9) and index of evidence (Filing
No. 10). On October 3, 2012, Thomas was duly served with a copy of the Verified
Complaint, together with a properly-issued Summons, Plaintiff’s Motion for Preliminary
Injunction, and brief and index of evidence that supported of Plaintiff’s Motion for
Preliminary Injunction, by personal service at 7611 Pacific Street, Omaha, Nebraska
68124. (Filing No. 11.)
Thomas has not answered or otherwise pleaded, and has not appeared in this
matter. On October 26, 2012, Plaintiff filed a Motion for Entry of Default. (Filing No. 13.)
On October 29, 2012, the Clerk granted Plaintiff’s motion. Thomas’s default has been
entered on the record.
(Filing No. 15.)
On November 7, 2012, the Court granted
Plaintiff’s Motion for Preliminary Injunction (Filing No. 19), and on November 13, 2012,
Plaintiff filed the present Motion.
The Court finds that the requirements of Federal Rule of Civil Procedure 55(b)
have been satisfied.
Furthermore, Thomas is deemed to have admitted the facts
alleged in the Verified Complaint and the facts presented in Plaintiff’s brief in support of
its motion for preliminary injunction. See Big Rig Repair, Inc. v. Heatflexx, Inc., No.
8:08CV397, 2009 WL 1409259 (D. Neb. May 18, 2009); NECivR 7.1(b)(1)(C).
Plaintiff has properly alleged violations of sections 1114 and 1125(a) of the
Lanham Act, and that Thomas’s conduct constituted unfair competition in violation of
Nebraska law. Plaintiff had ownership rights in its TWO MEN AND A TRUCK Mark, and
Thomas has used a confusingly similar variation of that mark that is likely to cause
consumer confusion as to the source, origin, or affiliation of Thomas’s services.
Moreover, the Court finds that Thomas’s conduct constituted a willful infringement of
Plaintiff’s registered trademarks. As a direct and proximate result of Thomas’s unlawful
conduct, Plaintiff has suffered, and will continue to suffer, irreparable damages and
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inherently unquantifiable injury and harm to its business, reputation, and customer
goodwill. Such conduct has impaired and, unless enjoined, will continue to impair the
ability of Plaintiff’s authorized franchisees to operate successfully in Nebraska.
Consequently, Plaintiff is entitled to permanent injunctive relief against Thomas. See 15
U.S.C. § 1116. Moreover, the Court finds that this is an “exceptional case” for which
Plaintiff may recover an award of attorney fees pursuant to 15 U.S.C. § 1117(a). See
Cmty. of Christ Copyright Corp. v. Devon Park Restoration Branch of Jesus Christ's
Church, 634 F.3d 1005, 1013 (8th Cir. 2011).
Plaintiff seeks a monetary award in the amount of its reasonable attorneys’ fees
and expenses incurred in connection with this action. Plaintiff has pointed to evidence
indicating that the amount of attorneys’ fees and expenses it has incurred equals
$39,493.47. (Filing No. 22.) The Court finds that this amount constitutes a reasonable
attorney fee pursuant to Hensley v. Eckerhart, 461 U.S. 424 (1983),1 and that such an
award is appropriate in lieu of an award of damages or a disgorgement of profits.
1
See Quigley v. Winter, 598 F.3d 938, 956-57 (8th Cir. 2010) (quoting Hensley, 461 U.S. at 433–
34 & n.7)):
The most useful starting point for determining the amount of a reasonable fee is the
number of hours reasonably expended on the litigation multiplied by a reasonable hourly
rate. This calculation provides an objective basis on which to make an initial estimate of
the value of a lawyer's services. The party seeking an award of fees should submit
evidence supporting the hours worked and rates claimed. Where the documentation of
hours is inadequate, the district court may reduce the award accordingly.
The district court also should exclude from this initial fee calculation hours that were not
“reasonably expended.” Cases may be overstaffed, and the skill and experience of
lawyers vary widely. Counsel for the prevailing party should make a good-faith effort to
exclude from a fee request hours that are excessive, redundant, or otherwise
unnecessary, just as a lawyer in private practice ethically is obligated to exclude such
hours from his fee submission.
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Accordingly,
IT IS ORDERED:
1.
Plaintiff’s Motion for Entry of Final Judgment and Permanent Injunction by
Default Against Defendant Robert Lee Thomas, Individually and D/B/A “Two Men and
Two Trucks” (Filing No. 20) is granted;
2.
Plaintiff shall recover from Thomas the sum of $39,493.47 in attorney
3.
Thomas and all affiliated or related entities, agents, officers, employees,
fees;
representatives, successors, assigns, attorneys, and all other persons acting for, with,
by, through, or under authority from Thomas, or in concert or participation with Thomas,
are permanently enjoined and restrained from:
a)
using
the
designation
“Two
Men
and
Two
Trucks,”
the
URL
, and any other confusingly similar
imitation of Plaintiff’s TWO MEN AND A TRUCK Mark, in connection with
Thomas’s business or services, including but not limited to the advertising
of those services and use of the above-referenced marks or designations
within the phrase “formerly known as . . .”; and
b)
using any trademark, service mark, name, logo, or source designation of
any kind that is a copy, reproduction, colorable imitation, or simulation of
or confusingly similar to, or in any way similar to, the trademarks, service
marks, or logos, of Plaintiff, or is likely to cause confusion, mistake,
deception, or public misunderstanding that Thomas’s business or services
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are the business or services of Plaintiff, or are sponsored by or in any way
related to Plaintiff.
4.
Thomas shall surrender immediately and without financial encumbrance to
Plaintiff the URL and the telephone number (402)
208-0210, and Thomas shall deliver up to Plaintiff for destruction all labels, signs,
packages, receptacles, advertising, promotional materials or the like in the possession,
custody, or control of Thomas that are found to adopt or infringe Plaintiff’s TWO MEN
AND A TRUCK Mark, including without limitation the designation “Two Men and Two
Trucks.”
5.
Within thirty (30) days of the entry of this Permanent Injunction and Order,
Thomas on behalf of himself and his affiliated or related entities, agents, officers,
employees, representatives, successors, assigns, attorneys, and all other persons
acting for, with, by, through, or under authority from Thomas, or in concert or
participation with Thomas, shall submit to the Court a written report, under oath,
detailing his efforts to comply, and certifying his compliance, with this Permanent
Injunction and Order. The report shall include confirmation that Thomas surrendered
without financial encumbrance to Plaintiff the URL
and the telephone number (402) 208-0210, and that Thomas destroyed all labels, signs,
packages, receptacles, advertising, promotional materials or the like in the possession,
custody, or control of Thomas that are found to adopt or infringe Plaintiff’s TWO MEN
AND A TRUCK Mark, including without limitation the designation “Two Men and Two
Trucks.”
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6.
This Court shall retain jurisdiction over this matter to enforce any violation
of the terms of this Final Judgment and Permanent Injunction by Default. If any such
violation occurs, the Court will award (a) without regard to proof of actual damages, an
amount the Court deems adequate to compensate Plaintiff for such breach; (b)
injunctive relief enjoining any further breach of this Final Judgment and Permanent
Injunction by Default, or such modifications to the present Permanent Injunction and
Order as the Court deems appropriate; (c) attorneys’ fees, costs, and disbursements;
and (d) such other relief as the Court deems just and proper.
7.
The Clerk of the Court is directed to close this case for statistical
purposes.
8.
A separate judgment will be entered.
Dated this 10th day of December, 2012.
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge
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