StriVectin Operating Company, Inc. v. Pandora Beauty et al

Filing 39

ORDER ADOPTING REPORT AND RECOMMENDATIONS see order for full details. Ordered by Judge Joseph F. Bianco on 11/28/2016. (Bollbach, Jean)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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STRIVECTIN OPERATING COMPANY, INC.,

U.s.

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DISTRI~~"S~OUFFICE!

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RTt:O.Ny

NOV 28 2016

lONG ISLAND OFFiCE
ORDER ADOPTING REPORT
AND RECOMMENDATION
14-CV-6421 (JFB) (GRB)

Plaintiff,
-againstPANDORA BEAUTY, SHAPERS BEAUTY
SUPPLY COMPANY, PUNDIT KOHLI,
VANEET KOHLI, and JOHN DOES I-X,
Defendants.

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JOSEPH F. BIANCO, District Judge:

On October 30, 2014, plaintiff filed the complaint in this action against defendants
Pandora Beauty and John Does 1-X. 1 On May 5, 2015, plaintiff filed a first amended complaint,
which, in addition to the defendants named in the original complaint, named Shapers Beauty
Supply Company ("Shapers Beauty"), Pundit Kohli, and Vaneet Kohli as defendants. Plaintiff
served a copy of the summons and first amended complaint on defendants Shapers Beauty and
Pundit Kohli on May 23,2015, and on defendant Vaneet Kohli on Apri120, 2016.
On October 30, 2015, before plaintiff served defendant Vaneet Kohli, plaintiff requested
a certificate of default against defendants Shapers Beauty and Pundit Kohli. On November 2,

1 To

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date, Pandora Beauty has not been served. By Order dated June 6, 2016, Magistrate Judge Gary R. Brown
granted plaintiffs motion to serve Pandora Beauty via publication. However, plaintiff has been unable to identity
any jurisdiction in which Pandora Beauty is a legal operating entity. In light of this, plaintiff notified the Court in its
status report dated October 28,2016 that it will file a dismissal without prejudice as to Pandora Beauty. (ECF No.
37.)

2015, the Clerk of the Court entered the default of these defendants, and, on February 5, 2016,
plaintiff moved for default judgment against them. At this time, plaintiff had still not served
defendant Vaneet Kohli and plaintiff did not move for default judgment against him. On
February 8, 2016 the Court ordered that defendants respond in writing within fourteen days as to
why default judgment should not be entered. Defendants did not respond. By Order dated April
6, 2016, the Court referred plaintiff's motion of default judgment to Magistrate Judge Brown for
a report and recommendation. Magistrate Judge Brown held an evidentiary hearing on August
22,2016 regarding the motion. To date, defendants have failed to answer or appear in this
action.
On October 14,2016, Magistrate Judge Brown issued a Report and Recommendation
(the "R&R") based on the August 22,2016 evidentiary hearing and the submissions made by
plaintiff. The R&R recommended that the Court grant plaintiff's motion for default judgment
against defendants Shapers Beauty and Pundit Kohli, award the injunctive relief requested by
plaintiff, award statutory damages in the amount of$1 million, and deny plaintiffs request for
attorneys' fees and costs. The R&R explicitly noted that defendant Vaneet Kohli was not the
subject of the motion for default judgment. (ECF No. 34 at 2 n.l.)
On October 28,2016, plaintiff tiled an objection to the R&R, namely, that default
judgment should also be granted against defendant Vaneet Kohli. In support of this objection,
plaintiff stated that defendant Vaneet Kohli was served with Magistrate Judge Brown's July 28,
2016 Order that the parties appear at the August 22, 2016 evidentiary hearing and failed to
appear to contest the motion.
A district judge may accept, reject, or modify, in whole or in part, the findings and
recommendations of the Magistrate Judge.

See DeLuca v. Lord, 858 F. Supp. 1330, 1345

(S.D.N.Y. 1994); Walker v. Hood, 679 F. Supp. 372,374 (S.D.N.Y. 1988). As to those portions
of a report to which no "specific written objections'' are made, the Court may accept the findings
contained therein, as long as the factual and legal bases supporting the findings are not clearly
erroneous. See Fed. R. Civ. P. 72(b); Thomas v. Arn, 474 U.S. 140, 149 (1985); Greene v. WCI

Holdings Corp., 956 F. Supp. 509,513 (S.D.N.Y. 1997). When "a party submits a timely objection

to a report and recommendation, the district judge will review the parts of the report and
recommendation to which the party objected under a de novo standard of review." Jejfries v.

Verizon, 10-CV-2686 (JFB)(AKT), 2012 WL 4344188, at *1 (E.D.N.Y. Sept. 21, 2012); see also
28 U.S.C. § 636(b)(l)(C) ("A judge of the court shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which objection is
made."); Fed. R. Civ. P. 72(b)(3) ("The district judge must determine de novo any part of the
magistrate judge's disposition that has been properly objected to. The district judge may accept,
reject, or modify the recommended disposition; receive further evidence; or return the matter to
the magistrate judge with instructions.").
To obtain damages related to a default judgment, "a plaintiff must present admissible
evidentiary proof of his alleged damages, unless the claimed amount is liquidated or susceptible
to mathematical calculation." In re Suprema Specialties, Inc., 330 B.R. 40, 54-55 (S.D.N.Y.
2005)(citing SEC v. Mgmt. Dynamics, 515 F.2d 801, 814 (2d Cir.1975) ("[U]n1ess the amount of
damages are absolutely certain, the court is required to make an independent determination of the
sum to be awarded."). Rule 55(b)(2) permits a court to conduct a hearing "as it deems necessary
and proper" to calculate damages, "vesting considerable discretion in the court to establish the
procedures appropriate to the particular case." /d. at 55. However, a hearing is not necessary "as

long as (the court] ensure[s] that there [is] a basis for the damages specified in a default
judgment." Fustokv. ContiCommodityServs., Inc., 873 F.2d 38,40 (2d Cir.1989).
Having conducted a review of the full record and the ap.J?licable law, and having
reviewed the portions of the R&R to which the parties did not object for clear error 1 and the
portion of the R&R to which plaintiff did object de novo, the Court adopts the findings and
recommendations contained in the R&R in their entirety.
With respect to defendants Shapers Beauty and Pundit Kohli, the Court agrees entirely
with the analysis in the thorough and well-reasoned R&R, including the injunctive and monetary
relief for which a sufficient evidentiary showing has been made.
With respect to plaintiffs objection, the Court disagrees with plaintiff's assertion that the
Court's ruling should apply to defendant Vaneet Kohli. Plaintiffs motion for default judgment
did not name Vaneet Kohli. Further, unlike defendants Shapers Beauty and Pundit Kohli, the
Clerk of the Court had never entered a certificate of default against Vaneet Kohli. As such,
although plaintiff did serve him with notice of the hearing, this is insufficient to find that Vaneet
Kohli was on notice that default judgment might be entered against him, and the Court declines
to enter default judgment against him based solely upon that notice of hearing at this time.
Plaintiff may move for default judgment against Vaneet Kohli, if plaintiff wishes, within thirty
(30) days of this Order 2
IT IS HEREBY ORDERED that default judgment is granted against defendants Shapers
Beauty and Pundit Kohli.

1

Even under a de novo standard of review, the Court would adopt the R&R in its entirety for the same reasons
contained in the R&R.
2 The Court notes that, if plaintiff so moves against defendant Vaneet Kohli for the same amount awarded to
plaintiff by this Order, the Court would have a sufficient evidentiary basis to award those damages and would not
need to hold a secondary evidentiary hearing on that issue unless defendant Vaneet Kohli opposed the motion and
objected to the damages (after receiving the motion for default judgment from plaintiff)-

•

IT IS FURTHER ORDERED that defendants Shapers Beauty and Pundit Kohli are
permanently enjoined from:
(a) Using any version of the trademark STRIVECTIN for the sale of any products
on Pandorabeauty.com, at the retail store Shapers Beauty, or online;
(b) Using any version of the trademark STRICVECTIN, or any reproduction,

counterfeit, copy or colorable imitation of the STRIVECTIN mark, or any
other of plaintiff's marks in any manner;
(c) Competing unfairly with plaintiff or otherwise injuring plaintiffs business
reputation in the manner complained of herein;
(d) Advertising that defendants are selling STRIVECTIN and/or any other of
plaintiff's products;

(e) Infringing plaintiffs protected copyrighted materials; and
(f) Intentionally interfering with plaintiffs existing and prospective business

relations.
IT IS FURTHER ORDERED that plaintiffs are awarded $1 million in statutory damages
against defendants Beauty Shapers and Pundit Kohli.
IT IS FURTHER ORDERED that plaintiff's request for attorneys' fees and costs is
denied.
The Court will issue a judgment accordingly as to defendants Shapers Beauty and Pundit
Kohli.

IT IS FURTHER ORDERED that default judgment is not granted against defendant
Vaneet Kohli at this time (because no such motion was made). However, plaintiff may file such
a motion within thirty (30) days of this Order.

•

IT IS FURTHER ORDERED that plaintiffs serve a copy of this Order on defendants.
SjUW)R DFR£0

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J9SEPi'l F. BIANCO
UNITED STATES DISTRICT JUDGE

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Dated:

November 28,2016
Central Islip, NY