Roger Cleveland Golf Company Inc v. Prince et al

Filing 130

MOTION to Alter Judgment by Bright Builders Inc. Response to Motion due by 4/28/2011 (Attachments: # 1 Memo in Support, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)No proposed order(Doolittle, Paul)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Roger Cleveland Golf Company, Inc.,
Plaintiff,
vs.
Christopher Prince, Sheldon Shelley, Prince
Distribution, LLC, and Bright Builders,
Inc.
Defendants.

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Civil Action No. 2:09-2119-MBS

DEFENDANT BRIGHT BUILDERS,
INC.’S MEMORANDUM IN SUPPORT
OF ITS MOTION FORREMITTITUR
AND TO ALTER OR AMEND THE
JUDGMENT

The Defendant Bright Builders, Inc., respectfully submits this Memorandum in
support of its Motion for Remittitur, and To Alter or Amend the Judgment.
NATURE OF THE CASE
Plaintiff filed its Amended Complaint in the present action naming Defendants
Christopher Prince, Prince Distribution, LLC, Sheldon Shelley and Bright Builders, Inc.,
as party defendants on March 23, 2010. . Plaintiff alleged Defendant Bright Builders is
liable for (1) Contributory and/or Vicarious Trademark Infringment under the Lanham
Act 15 U.S.C. §1051, et seq.; (2) Unfair Competition under South Carolina Common
Law; (3) Trademark Infringment under South Carolina Common Law; and (4) Violation
of the South Carolina Unfair Trade Practices Act (“SCUTPA”), S.C. Code § 39-5-10, et
seq.. The trial proceeded before a jury which returned a verdict in favor of Plaintiff.
Pursuant to Fed. R. Civ. P. 59, Defendant Bright Builders moves for the entry of
judgment granting remittitur and altering or amending the judgment.

STATEMENT OF THE FACTS
During the trial of the case, Defendant Prince admitted to knowingly infringing on
Cleveland’s trademarks and selling counterfeit Cleveland brand golf clubs. See Prince
Testimony at 14:1-16; 16:3-7; 46:25 – 47:6 (hereinafter “Ex. A”). Prince further testified
that he merely informed Bright Builders that he was selling “copied” clubs on his website
and he did not tell them he was selling counterfeit illegal golf clubs because nor did he
ask their advice on how to do such because he did not think Bright Builders would
approve of him selling illegal counterfeit goods on his website and it was a violation of
his Hosting Agreement with Bright Builders. Ex. A at 51:21-23; 52:1-5; 67:7-8. Despite
Prince’s admissions and the lack of any evidence indicating Bright Builders knew or had
reason to know Prince was undertaking such actions, the jury found both parties liable.
See Jury Verdict Form (hereinafter “Ex. B”). More surprisingly, the jury awarded more
than twenty seven times the amount of damages against Bright Builders as it did against
Prince, and the Court ordered Plaintiff may recover such damages from the parties. See
Ex. B; Judgment (hereinafter “Ex. C”).
ARGUMENT
Fed. R. Civ. P. 59 provides that “the court may, on motion, grant a new trial on all
or some of the issues . . . after a jury trial, for any reason for which a new trial has
heretofore been granted in an action at law in federal court.”
“[A] remittitur, used in connection with Federal Rule of Civil Procedure 59(a), is
the established method by which a trial judge can review a jury award for excessiveness.
Remittitur is a process . . . by which the trial court orders a new trial unless the plaintiff
accept a reduction in an excessive jury award. Indeed, if a court finds that a jury award is

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excessive, it is the court’s duty to require a remittitur or order a new trial.” Atlas Food
Systems and Services, Inc. v. Crane Nat’l Vendors, Inc., et al., 99 F.3d 587, 593, 1996
U.S. App. LEXIS 28085 (4th Cir. 1996). Trial court has broad discretion in granting or
refusing new trial, and court, believing that judgment for damages is excessive and
against weight of evidence, may order remittitur and alternatively direct that there be new
trial if plaintiff refuses to accept it. Holmes v Wack 464 F2d 86, 16 FR Serv 2d 928.
(1972, CA10 Okla).
The Defendant, Bright Builders, Inc., hereby specifically requests a reduction in
the damages awarded for violation of the Lanham Act. As this Court is well aware, the
jury assessed damages against Christopher Prince in the amount of $2,500.00 per mark,
and assessed damages against Bright Builders, Inc. in the amount of $70,000.00 per
mark. While these amounts are within the statutory limits under the Lanham Act, these
amounts are not justified and reasonable.
First, as noted above, the Court will recall that Christopher Prince admitted he
engaged in counterfeiting activity; whereas Bright Builders maintained throughout the
case that it had no direct knowledge of any counterfeiting activities being conducted by
Mr. Prince. In fact, Plaintiff’s counsel did not even argue the direct knowledge of Bright
Builders having specific knowledge regarding Prince’s counterfeiting activities.
Further, it is uncontested that Bright Builders did not make any profit from the
counterfeit golf clubs sold by Prince. All of the profit went directly to Prince and was not
shared in any way with Bright Builders. Prince admitted that Bright Builders did not
share in any profits from the sale of any counterfeit goods.

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As the Court will recall, there was extensive testimony from Greg Cole about the
extreme financial hardship the business was currently experiencing. Further, the Tax
Returns indicating no profits for Bright Builders were entered into evidence by the
Plaintiff’s counsel. Therefore, Bright Builders is in exactly the same position as Prince
with regards to paying any judgment.
CONCLUSION
Based on the above and pursuant to Fed. R. Civ. P. 59, Defendant Bright
Builders, Inc., respectfully requests that this Court grants Remittitur and Alters or
Amends the judgment to reduce the $70,000.00 per mark verdict rendered against Bright
Builders to $2,500.00 as this was the amount that was assessed against the direct
infringer. This would be just as Bright Builders did not take any actions with regards to
selling, marketing, delivering, distributing, or profiting from any illegal golf clubs sold by
Prince. In fact, Prince reaped all the benefits and took all the actions. Therefore, at a
maximum, the most Bright Builders should be held liable for is the same amount that the
actual counterfeiter is responsible for by way of verdict. Therefore, we respectfully
request that the Court reduce the $70,000.00 verdict amount against Bright Builders, Inc.
to $2,500.00.
Respectfully submitted,
s/Paul J. Doolittle
___________________________
Paul J. Doolittle, Esquire
Federal Bar No.: 6012
Douglas M. Fraser, Esquire
Federal Bar No.: 11019
Jekel-Doolittle, LLC
Post Office Box 2579
Mt. Pleasant, SC 29465
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Dated: April 11, 2011

[phone]
Fax: [phone]
[e-mail]
[e-mail]

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CERTIFICATION
This is to certify that a copy of the Motion for Remittitur and Altering or Amending the
Judgment and Memorandum in Support of Defendant Bright Builders’ Motion for
Remittitur and Altering or Amending the Judgment was hand delivered and/or mailed this
day, via first class mail, postage prepaid, to the following:
NELSON MULLINS RILEY & SCARBOROUGH LLP
John C. McElwaine
Federal Bar No. 6710
E-Mail: [e-mail]

151 Meeting Street / Sixth Floor
Post Office Box 1806 (29402-1806)
Charleston, SC 29401-2239
[phone]
Jeffrey S. Patterson
Federal Bar No. 6603
E-Mail: [e-mail]

One Boston Place / Suite 4040
Boston, MA 02108
[phone]
Attorneys for Plaintiff Roger Cleveland Golf Company, Inc.
Christopher D. Lizzi, Esquire
Lizzi Law Firm, PC
2170 Ashley Phosphate Road, Suite 402
N. Charleston, SC 29406
Attorneys for Defendants Christpher Prince and Prince Distribution, LLC

s/Paul J. Doolittle

Dated: April, 11, 2011

___________________________
Paul J. Doolittle, Esquire
Federal Bar No.: 6012
Douglas M. Fraser, Esquire
Federal Bar No.: 11019
Jekel-Doolittle, LLC
Post Office Box 2579
Mt. Pleasant, SC 29465
[phone]
Fax: [phone]
[e-mail]
[e-mail]
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