Curves International, Inc. v. Negron et al

Filing 33

ORDER - There being no objection to Judge Browns Report, the Court adopts the Report. For the foregoing reasons, it is hereby: ORDERED that Judge Browns Report and Recommendation is adopted in its entirety, and it is further ORDERED that the Clerk o f the Court is directed to enter a default judgment against the Defendant in the amounts recommended by Judge Brown, namely $15,573.10 in attorneys fees and costs; and it is further ORDERED that the Plaintiffs request for a permanent injunction is denied; and it is further ORDERED that the Clerk of the Court is respectfully directed to mark this case as closed. Ordered by Judge Arthur D. Spatt on 9/28/2012. (Coleman, Laurie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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CURVES INTERNATIONAL, INC.,

FILED 
CLERK 

9/28/2012 11:35 am

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

Plaintiff,
-against-

ORDER
11-cv-2986 (ADS)(WDW)

DERRICK NEGRON,
Defendant.
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APPEARANCES:
Chronakis Siachos, LLC
Attorneys for the plaintiff
5 Penn Plaza
19th Floor
New York, NY 10001
By:
Peter G. Siachos, Esq., of Counsel
NO APPEARANCE:
Derrick Negron
SPATT, District Judge.
The Plaintiff Curves International, Inc. (“Curves”) commenced this action
on or about June 22, 2011, asserting various federal and state claims including and
trademark infringement and breach of contract. The Clerk of the Court noted the
default of the Defendant Derrick Negron on August 1, 2011. The Plaintiff
thereafter moved for a default judgment against Defendant Derrick Negron on
September 29, 2011, seeking both monetary and injunctive relief. On October 21,
2011, this Court referred the motion for default judgment to United States
Magistrate Judge William D. Wall for a recommendation as to whether the motion

should be granted and whether injunctive relief and attorneys’ fees and costs should
be awarded to the Plaintiff. The case was then transferred to United States
Magistrate Judge Gary R. Brown.
On August 31, 2012, Judge Brown issued a thorough Report recommending
that the Plaintiff’s motion for default judgment be granted; that the Plaintiff be
awarded $15,000 in attorneys’ fees and $573.10 in costs, for the aggregate sum of
$15,573.10; and that the Plaintiff’s application for a permanent injunction be
denied. With regard to the request for injunctive relief, Judge Brown found that the
Plaintiff had failed to provide any evidence that Negron had violated or had any
intention of violating the non-compete covenant in their franchise agreement, thus
failing to demonstrate that the requisite imminent harm exists. As for attorneys’
fees, Judge Brown found that the attorneys’ fees application was riddled with
inaccuracies, insufficiencies and inconsistencies, in that the Plaintiff failed to
indicate to the Court the experience of the attorneys involved with this litigation;
misstated a partner’s billing rate on numerous invoice entries; and overcharged for
legal work provided by students. Thus, Judge Brown recommended that the
Plaintiff be awarded $15,000 in attorneys’ fees, rather than the sum requested.
Finally, the Court found the $573.10 in requested costs to be reasonable and
appropriate.
In reviewing a report and recommendation, a court “may accept, reject, or
modify, in whole or in part, the findings or recommendations made by the
magistrate judge.” 28 U.S.C. § 636(b)(1)(C). “To accept the report and
recommendation of a magistrate, to which no timely objection has been made, a

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district court need only satisfy itself that there is no clear error on the face of the
record.” Wilds v. United Parcel Serv., 262 F. Supp. 2d 163, 169 (S.D.N.Y. 2003)
(citing Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985)). The Court has
reviewed Judge Brown’s Report and finds it be persuasive and without any legal or
factual errors. There being no objection to Judge Brown’s Report, the Court adopts
the Report.

For the foregoing reasons, it is hereby:
ORDERED that Judge Brown’s Report and Recommendation is adopted in
its entirety, and it is further
ORDERED that the Clerk of the Court is directed to enter a default
judgment against the Defendant in the amounts recommended by Judge Brown,
namely $15,573.10 in attorneys’ fees and costs; and it is further
ORDERED that the Plaintiff’s request for a permanent injunction is denied;
and it is further
ORDERED that the Clerk of the Court is respectfully directed to mark this
case as closed.
SO ORDERED.
Dated: Central Islip, New York
September 28, 2012
____/s/ Arthur D. Spatt_____
ARTHUR D. SPATT
United States District Judge

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