A.M. Surgical, Inc. v. Akhtar

Filing 16

ORDER - Pursuant to the provisions of 28 U.S.C. § 636(b) and Federal Rule of Civil Procedure 72, this Court has reviewed the R&R for clear error, and finding none, now concurs in both its reasoning and its result. Accordingly, the April 19, 2016 Report and Recommendation is adopted in its entirety, and the Plaintiffs motion for a default judgment is granted to the extent set forth therein. The Clerk of the Court is respectfully directed to enter judgment in favor of the Plaintiff in the amo unt of $60,000, and to close this case for administrative purposes. On Judge Lockes recommendation, the Court will grant the Plaintiff leave to renew its motion for reasonable attorneys fees within 30 days of the date of this Order. So Ordered by Judge Arthur D. Spatt on 5/10/2016. cm by cm/ecf to pltff's counsel and to Judgment Clerk. (Coleman, Laurie)

FILED 
CLERK 

5/10/2016 4:34 pm

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

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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A.M. SURGICAL, INC.,
Plaintiff,

ORDER
15-cv-1318(ADS)(SIL)

-againstMASOOD AKHTAR
(doing business as
A.M. Surgical and
www.amsurgical.biz)

Defendant(s).
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APPEARANCES:
Andrews Kurth LLP
Attorneys for the Plaintiff
450 Lexington Avenue
New York, NY 10017
By: Gary Abelev, Esq.
Paul D. Ackerman, Esq., Of Counsel
NO APPEARANCE:
Masood Akhtar d/b/a A.M. Surgical and www.amsurgical.biz
The Defendant
SPATT, District Judge:
On March 13, 2015, the Plaintiff A.M. Surgical, Inc. (the “Plaintiff”) commenced this
action against the Defendant Masood Akhtar d/b/a A.M. Surgical and www.amsurgical.biz
(“Akhtar” or the “Defendant”), alleging trademark infringement, unfair competition, and
false designation of origin in violation of the federal Lanham Act, as well as analogous
causes of action under New York state law arising from the Defendant’s alleged
unauthorized use of the Plaintiff’s registered trademark.

The Defendant failed to answer or otherwise appear in the action, and on November
23, 2015, the Clerk of Court noted Akhtar’s default.
On December 4, 2015, the Plaintiff moved for a default judgment.
On December 7, 2015, this Court referred the matter to United States Magistrate
Judge Steven I. Locke for a recommendation as to whether the motion for a default
judgment should be granted, and if so, whether damages should be awarded.
On April 19, 2016, Judge Locke issued a Report and Recommendation (the “R&R”),
recommending that the Plaintiff’s motion be granted in part and denied in part.

In

particular, Judge Locke recommended that the Court grant the Plaintiff’s motion and enter
a default judgment as to: (1) the first and second counts of the complaint based on federal
trademark infringement, unfair competition, and false designation of origin, in violation of
Sections 32 and 43(a) of the Lanham Act, 15 U.S.C. §§ 1114 & 1125(a), respectively; (2) the
third and seventh counts of the complaint based on common law trademark infringement
and unfair competition under New York law; and (3) the sixth count of the complaint based
on injury to business reputation and dilution of trademark in violation of New York General
Business Law (“GBL”) § 360-L.
Further, Judge Locke recommended that the Court deny the Plaintiff’s motion with
respect to: (1) the fourth count of the complaint based on a violation of the federal AntiCybersquatting Consumer Protection Act, 15 U.S.C. § 1125(d); and (2) the fifth count of the
complaint based on deceptive acts and practices, and false advertising in violation of
GBL §§ 349 and 350.
With regard to monetary damages, Judge Locke recommended that the Plaintiff be
awarded $60,000 in statutory damages under the relevant provisions of the Lanham Act,

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15 U.S.C. § 11117(c). However, the court also recommended that the Court deny without
prejudice the Plaintiff’s request for attorneys’ fees due to its failure to submit
contemporaneous time records or other evidence to allow the Court to assess the
reasonableness of the $24,833 sum requested.
Finally, Judge Locke found that the Plaintiff established its entitlement to injunctive
relief permanently enjoining the Defendant from further infringing upon the Plaintiff’s
registered trademark.
On April 20, 2016, counsel for the Plaintiff effected service of the R&R on the
Defendant. See DE [15]. More than fourteen days have now elapsed, and the Defendant has
failed to file an objection or request an extension of time to do so.
Thus, pursuant to the provisions of 28 U.S.C. § 636(b) and Federal Rule of Civil
Procedure 72, this Court has reviewed the R&R for clear error, and finding none, now
concurs in both its reasoning and its result.
Accordingly, the April 19, 2016 Report and Recommendation is adopted in its
entirety, and the Plaintiff’s motion for a default judgment is granted to the extent set forth
therein. The Clerk of the Court is respectfully directed to enter judgment in favor of the
Plaintiff in the amount of $60,000, and to close this case for administrative purposes.
On Judge Locke’s recommendation, the Court will grant the Plaintiff leave to renew
its motion for reasonable attorneys’ fees within 30 days of the date of this Order.
SO ORDERED
Dated: Central Islip, New York
May 10, 2016

/s/ Arthur D. Spatt______________
ARTHUR D. SPATT
United States District Judge

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