Surf's Up LLC v. Rahim et al

Filing 115

ORDER RULING ON REPORT AND RECOMMENDATION: The Court adopts the Magistrate Judge's Report (ECF No. 112 ) and incorporates it herein by specific reference. As such, the Court grants Plaintiff's motion for default judgment (ECF No. 87 ) and issues a permanent injunction enjoining Defendants Rick Rahim; Myrtle Laser Tag, LLC; and BusinessVentures.com, LLC, and any employees, agents, servants, officers, representatives, directors, attorneys, successors, affil iates, assigns, and/or entities owned or controlled by Defendants, and all those in active concert or participation with Defendants, and each of them who receives notice directly or otherwise of such injunction. The Court further orders that judg ment be entered jointly and severally against all Defendants for the following: (a) monetary damages in the amount of $1,605,208.33; (b) attorney's fees in the amount of $200,000.00; and (c) costs in the amount of $1,536.49. AND IT IS SO ORDERED. Signed by Honorable Bruce Howe Hendricks on 12/5/2017. (prou, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION

Surf’s Up, LLC,

)
)
Plaintiff,
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)
v.
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Rick Rahim; Myrtle Laser Tag, LLC;
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and BusinessVentures.com, LLC,
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Defendants.
)
________________________________)

Civil Action No. 4:14-cv-4706-BHH

ORDER

This matter is before the Court upon Plaintiff’s complaint alleging trademark claims
pursuant to the Lanham Act, 15 U.S.C. §§ 1051–1141n, and common law claims for
“trademark infringement and deceptive trade practices.” (ECF No. 1 at 1.) Currently
pending before the Court is Plaintiff’s motion for default judgment (ECF No. 87). On
November 14, 2017, in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule
73.02(B)(2)(d) (D.S.C.), Magistrate Judge Kaymani D. West issued a report and
recommendation (“Report”) outlining the issues and recommending that the Court grant
Plaintiff’s motion for default judgment. Attached to the Report was a notice advising the
parties of their right to file written, specific objections to the Report within fourteen days of
being served with a copy. To date, no objections have been filed.
BACKGROUND
Plaintiff served Defendant Myrtle Laser Tag, LLC (“Myrtle Laser Tag”) by certified
mail with a summons and complaint on January 27, 2015. Myrtle Laser Tag did not timely
answer or otherwise respond to the complaint, and Plaintiff requested that the Clerk of
Court enter default as to Myrtle Laser Tag, which the Clerk did on February 27, 2015. (ECF

No. 12.) On March 12, 2015, attorney Benjamin Parker appeared and filed a motion to
dismiss on behalf of Defendants Myrtle Laser Tag, BusinessVentures.com LLC
(“BusinessVentures.com”), and Rick Rahim (“Rahim”). (ECF No. 13.) On March 26, 2015,
Parker also filed a motion to set aside the entry of default as to Myrtle Laser Tag. (ECF No.
16.) Plaintiff’s counsel responded to the pending motions and filed a motion for preliminary
injunction, to which Defendants responded on May 18, 2015, and Plaintiff replied on May
29, 2015.
On February 18, 2016, Parker filed a motion to withdraw as counsel for all
Defendants. On March 21, 2016, the Court granted Parker’s motion to be relieved as
counsel and granted Surf’s Up’s motion to be relieved from entry of default. The Court
stayed the matter for 45 days to “allow the corporate defendants [Myrtle Laser Tag and
BusinessVentures.com] to obtain substitute counsel.” (ECF No. 25 at 3-4.) In that same
order, the Court denied Defendants’ motion to dismiss and Plaintiff’s motion for a
preliminary injunction, finding that it was unable to determine the issues on the record then
before it. (Id.)
Because the case included pro se litigants, the matter was referred to Magistrate
Judge West for pretrial handling. On March 24, 2016, Magistrate Judge West issued an
order instructing the corporate Defendants to obtain counsel on or before May 5, 2016, and
specifically advising the corporate Defendants that corporations are not permitted to
represent themselves in South Carolina, and that a failure to obtain counsel “could have
serious consequences, including, but not limited to, striking a defense, striking a pleading,
and/or holding the party in default.” (ECF No. 32 at 1-2.) The Magistrate Judge also
advised Defendant Rahim that he could proceed pro se but that he must comply with the
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Court’s rules and orders. No counsel appeared on behalf of Defendants Myrtle Laser Tag
and Businessventures.com, nor did Defendant Rahim submit additional pleadings in this
matter.

Therefore, on June 21, 2016, Magistrate Judge West issued a Report

recommending that an entry of default be entered against Defendants Myrtle Laser Tag
and BusinessVentures.com for failure to appear through counsel by the required deadline
and for failure to otherwise communicate with the Court. (ECF No. 43.)
The Court adopted the Magistrate Judge’s Report on November 7, 2016, and the
Clerk entered default as to those Defendants the same day. (ECF No. 62.) As Defendant
Rahim did not respond to the Court’s orders or otherwise respond to the complaint, on
February 21, 2017, the Magistrate Judge also recommended that the Clerk of Court be
instructed to enter default as to Rahim. (ECF No. 74.) On March 22, 2017, the Court
issued an Order instructing the Clerk of Court to enter default against Rahim, which the
Clerk did the same day. (ECF Nos. 80 and 81.)
On April 10, 2017, Plaintiff filed its motion for default judgment, and Defendants were
served with the motion on April 26, 2017; affidavits of service for each Defendant were filed
on May 2, 2017. (ECF Nos. 89 and 90.) On August 8, 2017, Magistrate Judge West set
a hearing for October 18, 2017, and instructed Plaintiff to file a supplemental memorandum
outlining its establishment of the elements of its claims and the relief it seeks, and advising
pro se Defendant Rahim that he could file a response by October 2, 2017, if he so chose,
and that Defendants Myrtle Laser Tag and BusinessVentures.com could file a response
through counsel. (ECF No. 93.) The order was sent to all Defendants at their last known
addresses by both regular and certified mail. Although the copies of the order sent to
Myrtle Laser Tag were returned as undeliverable, the certified-mail copies of the order sent
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to Rahim and BusinessVentures.com were signed for by Rahim and by an individual on
behalf of BusinessVentures.com. (ECF Nos. 101 and 102.) Plaintiff submitted the
requested supplemental briefing, but no Defendant has filed any response to Plaintiff’s
motion for default judgment. Nor has any Defendant otherwise submitted anything to the
Court since the filing of the motion.
The Magistrate Judge held a hearing on the motion on October 18, 2017, at which
counsel for Plaintiff appeared. No one appeared on behalf of any Defendant. At the
Court’s request, Plaintiff provided an affidavit with details of specific damages sought as
well as supplemental briefing as to attorneys’ fees and costs sought. (ECF No. 107.)
After considering Plaintiff’s arguments and the evidence of record, the Magistrate
Judge issued a 25-page Report on November 14, 2017, thoroughly outlining the issues and
recommending that the Court grant Plaintiff’s motion for default judgment.
DISCUSSION
The Magistrate Judge makes only a recommendation to the Court.

The

recommendation has no presumptive weight, and the responsibility to make a final
determination remains with the Court. Mathews v. Weber, 423 U.S. 261 (1976). The Court
is charged with making a de novo determination only of those portions of the Report to
which specific objections are made, and the Court may accept, reject, or modify, in whole
or in part, the recommendation of the Magistrate Judge, or recommit the matter to the
Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1). In the absence of specific
objections, the Court reviews the matter only for clear error. See Diamond v. Colonial Life
& Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that “in the absence of a
timely filed objection, a district court need not conduct a de novo review, but instead must
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‘only satisfy itself that there is no clear error on the face of the record in order to accept the
recommendation.’”) (quoting Fed. R. Civ. P. 72 advisory committee’s note).
Here, because no objections were filed, the Court has reviewed the record, the
applicable law, and the findings and recommendations of the Magistrate Judge for clear
error. After review, the Court finds no clear error and agrees with the Magistrate Judge’s
findings and conclusions as to Plaintiff’s motion for default judgment.
Accordingly, the Court adopts the Magistrate Judge’s Report (ECF No. 112) and
incorporates it herein by specific reference. As such, the Court grants Plaintiff’s motion for
default judgment (ECF No. 87) and issues a permanent injunction enjoining Defendants
Rick Rahim; Myrtle Laser Tag, LLC; and BusinessVentures.com, LLC, and any employees,
agents, servants, officers, representatives, directors, attorneys, successors, affiliates,
assigns, and/or entities owned or controlled by Defendants, and all those in active concert
or participation with Defendants, and each of them who receives notice directly or otherwise
of such injunction from:
a) using the Surf’s Up Trademark (“Trademark”), or any other trademarks
that are confusingly similar to the Trademark, for retail products, or making
any other unlawful use of the Trademark or any other trademarks owned by
Surf’s Up;
b) performing any act which is likely to lead members of the trade or public
to believe that any product manufactured, imported, distributed, offered for
sale, or sold by Defendants is in any manner associated or connected with
Surf’s Up, or is licensed, sponsored, approved, or authorized by Surf’s Up;
c) engaging in any other activity constituting infringement of the Trademark;
d) taking any action, including the unauthorized use of the Trademark, that
dilutes the unique association between the Trademark and Surf’s Up, or that
tarnishes the reputation or image of Surf’s Up;
e) disposing of, destroying, altering, moving, removing, concealing,
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tampering with, or in any manner secreting any business records (including
computer records) of any kind, including invoices, correspondence, books of
account, receipts or other documentation relating or referring in any manner
to any retail services offered in connection with the Trademark, or any mark
or designation that is confusingly similar to any of the Trademark;
f) instructing, assisting, aiding or abetting any other person or entity in
engaging in or performing any of the activities referred to in subparagraphs
(a) through (e) above.
g) ordering, pursuant to 15 U.S.C. § 1116(a)(d)(1)(A), that all counterfeit and
infringing merchandise and materials bearing any of Surf’s Up’s trademark(s)
be impounded.
The Court further orders that judgment be entered jointly and severally against all
Defendants for the following:
(a) monetary damages in the amount of $1,605,208.33;
(b) attorney’s fees in the amount of $200,000.00; and
(c) costs in the amount of $1,536.49.
AND IT IS SO ORDERED.
/s/Bruce H. Hendricks
The Honorable Bruce H. Hendricks
United States District Judge
December 5, 2017
Charleston, South Carolina

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