Krevat v. Burgers To Go, Inc. et al

Filing 63

MEMORANDUM & ORDER ADOPTING REPORT AND RECOMMENDATION; Judge Tomlinson's R&R is ADOPTED in its entirety and Plaintiff's motion for a default judgment against Burgers To Go (Docket Entry 26) is GRANTED. ORDERED that Burgers To Go's of ficers, agents, servants, employees, and representatives are PERMANENTLY ENJOINED from engaging in any activities that infringe any of Plaintiff's rights as set forth herein. Burgers To Go is ORDERED to turn over to Plaintiff for destruction a ny infringing merchandise in its possession, custody, or control. The calculation of damages against Burgers To Go is deferred until this matter is resolved as against Sultan. In light of his pro se status at the time he filed the motion for default judgment against Burgers To Go, Plaintiff is GRANTED thirty (30) days from the date of this Memorandum and Order to supplement his motion with the appropriate documentation to support his calculations regarding damages. So Ordered by Judge Joanna Seybert on 9/16/2014. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
MITCHELL KREVAT,
Plaintiff,

MEMORANDUM & ORDER
13-CV-6258(JS)(AKT)

-againstBURGERS TO GO, INC. and
SAMMY SULTAN,
Defendants.
----------------------------------X
APPEARANCES
For Plaintiff:
Robert David Katz, Esq.
Eaton & Van Winkle LLP
3 Park Avenue, 16th Floor
New York, NY 10016
For Defendants
Burgers To Go:
Sammy Sultan:

No appearances.
Sammy Sultan, pro se
1550 Pebble Lane
Hewlett, NY 11557

SEYBERT, District Judge:
Pending before the Court is Magistrate Judge A. Kathleen
Tomlinson’s Report and Recommendation (“R&R”), recommending that
the Court grant plaintiff Mitchell Krevat’s (“Plaintiff”) pending
motion for default judgment against defendant Burgers To Go, Inc.
(“Burgers To Go”) and order other, related injunctive relief
against Burgers To Go. For the following reasons, the Court ADOPTS
the R&R in its entirety.

BACKGROUND
Plaintiff1 brings this action against Burgers To Go and
its

principal,

pro

se

defendant

Sammy

Sultan

(“Sultan,”

and

together with Burgers To Go, “Defendants”), alleging unauthorized
use

of

Plaintiff’s

trademarks

hamburger restaurant.

in

connection

with

Defendants’

Plaintiff alleges that he ran and operated

“Burgers Bar,” a kosher food restaurant chain, between June 2006
and November 2011.

(Compl. ¶ 10.)

He claims that he registered

five trademarks in connection with the “promotion and sale of
Burgers Bar products,” (Compl. ¶ 9), but the Complaint only
identifies three of these marks:
MUSTAENGO.

(Compl ¶¶ 12-25.)

BURGERS BAR, CHIPAYO MAYO, and

Sometime in 2013, Plaintiff became

aware that Defendants were using his marks without his consent.
(Compl. ¶ 26.)
Based on this alleged conduct, the Complaint asserts
four causes of action: (1) unfair competition in violation of
Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a); (2) trademark
infringement in violation of Section 43(a) of the Lanham Act, 15
U.S.C. § 1125(a); (3) unfair competition under New York state law;
and (4) trademark infringement under New York state law.

(Compl.

¶¶ 38-61.) Plaintiff seeks an award of profits and damages arising
from Defendants’ alleged infringing activity, including pre- and

Plaintiff originally commenced this action pro se. However, he
has since obtained counsel, who appeared in this action on July
25, 2014. (See Docket Entry 52.)
1

post-judgment

interest

and

attorneys’

fees,

and

an

order

preliminarily and permanently enjoining Defendants from using
Plaintiff’s trademarks and directing Defendants to deliver for
destruction all infringing materials.

(Compl. at 10-11.)

On November 14, 2013 and November 19, 2013, Plaintiff
filed affidavits of service that the Summons and Complaint were
served on Burgers To Go and Sultan, respectively.

(Docket Entries

9 & 11.)

Defendants did not answer or otherwise respond to the

Complaint

and,

on

November

14,

2013,

Plaintiff

requested

a

Certificate of Default. (Docket Entry 10.) The Clerk of the Court
certified Defendants’ default on November 19, 2013.

(Docket Entry

12.)
On December 6, 2013, Plaintiff and Sultan appeared at an
initial conference before Judge Tomlinson. (See Dec. 6, 2013 Civil
Conference Minute Order (“Dec. 6th Minute Order”), Docket Entry
21.)

At the conference, Plaintiff consented to relieve Sultan of

his default and Judge Tomlinson instructed the Clerk of the Court
to vacate the certificate of default as to Sultan.
Minute Order at 1.)

(Dec. 6th

However, Judge Tomlinson reminded Sultan that

Burgers To Go, as a corporation, could not proceed pro se under
the law.

(Dec. 6th Minute Order at 1.)

Judge Tomlinson granted

Burgers To Go forty-five days to retain counsel.

(Dec. 6th Minute

Order at 1.)
Burgers To Go did not retain counsel and, on January 23,
2013, Plaintiff moved for default judgment as against Burgers To

Go only. (Docket Entry 26.) On February 18, 2013, Judge Tomlinson
held a status conference, at which Sultan represented that Burgers
To Go had not retained counsel and that it would not be represented
by counsel going forward.

(Feb. 18, 2014 Civil Conference Minute

Order,

¶

Docket

Entry

28,

2.)

On

February

21,

2013,

the

undersigned referred Plaintiff’s motion for default judgment to
Judge Tomlinson for a Report and Recommendation.2
After

a

thorough

analysis,

Judge

Tomlinson’s

R&R

concludes that Burgers to Go’s default was willful, that Burgers
To Go failed to present a meritorious defense, and that Plaintiff
stated valid claims of: (1) false designation of origin and
trademark infringement in violation of the Lanham Act, (2) unfair
competition under New York law, and (3) trademark infringement
under New York law.

(R&R at 5-16.)

The R&R also concludes that

Plaintiff demonstrated the required elements for the issuance of
an injunction, as well as the circumstances required for an order
of the return of any infringing merchandise for destruction under
Section 36 of the Lanham Act.

(R&R at 16-20.)

Judge Tomlinson’s

R&R specifically recommends that: (1) a default judgment be entered
against Burgers To Go; (2) an injunction be issued preventing

On June 12, 2013, Sultan filed a letter motion seeking to
dismiss “all charges” against him. (Docket Entry 44.)
Plaintiff has opposed that motion and also filed a motion to
amend the Complaint to allege alter ego liability against
Sultan. (Docket Entry 54.) These motions are currently pending
before the Court and will be addressed in a separate, future
order.
2

Burgers To Go from engaging in or participating in any infringing
activity; (3) Burgers To Go be directed to turn over to Plaintiff
for destruction any infringing merchandise in its possession,
custody or control; and (4) that the calculation of damages against
Burgers To Go be postponed until the case is resolved as to both
Defendants.

(R&R at 23.)
DISCUSSION

In reviewing an R&R, a district court “may accept,
reject,

or

modify,

recommendations

made

in
by

whole
the

or

in

part,

magistrate

the

findings

judge.”

28

and

U.S.C.

§ 636(b)(1)(C). If no timely objections have been made, the “court
need only satisfy itself that there is no clear error on the face
of the record.”

Urena v. New York, 160 F. Supp. 2d 606, 609-10

(S.D.N.Y. 2001) (internal quotation marks and citation omitted).
Objections were due within fourteen (14) days of service
of the R&R.

The time for filing objections has expired, and no

party has objected.3 Accordingly, all objections are hereby deemed
to have been waived.
Upon careful review and consideration, the Court finds
Judge Tomlinson’s R&R to be comprehensive, well-reasoned, and free
of clear error, and it ADOPTS the R&R in its entirety.

On August 11, 2014, Sultan filed a letter “clarify[ing]” that
Burgers To Go had not hired counsel because “it no longer has
any assets” and “cannot afford a lawyer.” (Docket Entry 60.)
To the extent that Sultan purports to object to the R&R, he has
no standing to do so, as he may not represent Burgers To Go and
the company cannot proceed pro se.
3

CONCLUSION
Judge Tomlinson’s R&R is ADOPTED in its entirety and
Plaintiff’s motion for a default judgment against Burgers To Go
(Docket Entry 26) is GRANTED.
(1)

Burgers

To

It is hereby ORDERED that:
Go’s

officers,

agents,

servants,

employees, and representatives are PERMANENTLY ENJOINED from engaging
in any activities that infringe any of Plaintiff’s rights, including,
but not limited to, infringing on Plaintiff’s marks and offering for
sale, selling, distributing, or marketing merchandise in any way that
tends to deceive, mislead, or confuse the public into believing that
Burgers To Go’s products in any way originate with, are sanctioned
by, or are affiliated with Plaintiff’s marks;

(2)

Burgers To Go is ORDERED to turn over to Plaintiff

for destruction any infringing merchandise in its possession,
custody, or control;
(3)

The calculation of damages against Burgers To Go is

deferred until this matter is resolved as against Sultan; and
(4)

In light of his pro se status at the time he filed

the motion for default judgment against Burgers To Go, Plaintiff is
GRANTED thirty (30) days from the date of this Memorandum and Order
to supplement his motion with the appropriate documentation to support
his calculations regarding damages.

SO ORDERED.

Dated: September
16 , 2014
Central Islip, New York

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.