Bennett et al., v. Zydron, et al

Filing 28

MEMORANDUM ORDER denying 6 Motion to Dismiss for Failure to State a Claim by John E. Zydron; denying 15 Motion to Dismiss for Failure to State a Claim by Zydron Law Firm, PLLC; adopting 23 Magistrate Judge's Report and Recommendations. The court, having examined the Objections to the R&R filed by the Defendants, and having made de novo findings with respect thereto, does OVERRULE the Defendants' Objections, does ADOPT AND APPROVE IN FULL the findings and recommendations set fo rth in the R&R of the United States Magistrate Judge, filed on August 17, 2017. ECF No. 23. Accordingly, Defendant John Zydron's Motion to Dismiss is DENIED, and Defendant Zydron Law Firm's Motion to Dismiss is DENIED. Signed by Chief District Judge Rebecca Beach Smith and filed on 9/21/17. (tbro)

UNITED

STATES DISTRICT COURT

EASTERN DISTRICT OF VIRGINIA

Norfolk Division

CARLTON F. BENNETT, and
BENNETT AND SHARP, PLLC,
Plaintiffs,
ACTION NO.

V.

JOHN E.

2:17cv92

ZYDRON and

ZYDRON LAW FIRM,

PLLC,

Defendants.
MEMORANDUM ORDER

This

Dismiss

matter

comes

before

the

court

filed by Defendant John E,

on

Zydron

the

Motions

{''John Zydron")

to

and

Defendant Zydron Law Firm, PLLC ("'Zydron Law Firm") on March 21,

2017,

and

Memoranda
filed

a

Dismiss

Rebuttal

April
in

6,

Support.

Memorandum

on

2017,

April

respectively,

ECF Nos.

in

4,

6,

Opposition

2017.

Brief on April

ECF

10,

7,
to

No.

2017.

and

15,

16.

John

13.

accompanying

The

Zydron's

John

ECF No.

17.

Plaintiffs
Motion

Zydron

The

filed

to

a

Plaintiffs

filed a Memorandum in Opposition to Zydron Law Firm's Motion to

Dismiss on April 20,

2017.

ECF No.

20.

Zydron Law Firm filed a

Reply on April, 26. 2017. ECF No. 21.

On
Dismiss

April
and

2017,

this

court

Federal

Rule

of

Civil

States

to

pursuant to the provisions of 28 U.S.C.

and

United

Motions

J.

636 (b) (1) (B)

to

the

in

Krask,

Support

referred

Memoranda

Judge Robert
§

11,

Procedure

Magistrate

72(b),

to

conduct
and

hearings,

to

submit

findings

of

including evidentiary hearings,
to

the

fact,

if

undersigned

applicable,

and

disposition of the Motions. ECF No.
The

Magistrate

(^'R&R")

on

August

Judge
17,

filed

2017.

district

judge

proposed

recommendations

for

the

18,

the

ECF

if necessary,

Report

No.

23.

and

The

Recommendation

Magistrate

Judge

recommended that both John Zydron's Motion to Dismiss and Zydron
Law Firm's Motion to Dismiss be denied.
R&R,

the

parties

objections

to

were

the

advised

findings

of

and

R&R at 1. By copy of the

their

right

to

recommendations

written

made

by

Magistrate Judge.

See id.

filed

Objections

to

2017,

the Plaintiffs filed a Response.

2017,

Zydron Law Firm filed an Objection to the R&R,

and on September 12,
No.

the

R&R,

2017,

ECF

the

No.

24,

2017,

and

ECF No.

on
26.

Plaintiffs filed a

the

John Zydron

September

5,

On August 29,
ECF No.

25,

Response.

ECF

27.
I.

Pursuant

Procedure,

entirety,
of the
Fed.

at 16. On August 21,

file

R.

to

the

Rule

72(b)

court,

R&R to which the
P.

72(b).

in whole or in part,

of

having

shall make a ^

Civ.

LEGAL STANDARD

the

Federal

reviewed

the

Rules

of

record

in

Civil

its

novo determination of those portions
Defendants

have

specifically objected.

The court may accept,

reject,

or modify,

the recommendation of the Magistrate Judge,

or

§

recommit

the

matter

to

him

with

instructions.

28

U.S.C.

636(b) (1).
II.

DISCUSSION

A. Standing

The

Defendants'

Carlton F.

Bennett

Motions

to

(''Bennett'')

Dismiss

In the R&R,

that

Plaintiff

lacks statutory standing to bring

the complaint under the Lanham Act.

at 3-5.

allege

ECF No.

7 at 3-4; ECF No.

the Magistrate Judge disagrees,

16

stating both

that the complaint demonstrates Bennett has pled an injury to a
commercial interest in his reputation and that Bennett has pled
individual

injury

proximately

Lanham Act violations.

In both

R&R at

Objections

to

caused

by

Defendants'

alleged

9-10.

the

R&R,

the

Defendants

oppose

the

Magistrate Judge's finding that Bennett can maintain the suit as
an individual.

John Zydron Obj .

Law

to

Firm Obj.

R&R

at

3,

to R&R at 3,

ECF

No.

25.

ECF No.

These

24;

Zydron

objections

''nothing more than a

rehashing of the arguments raised in

Defendants'

to

F. Supp.

3d 487,

Support at
ECF No.

3,

497

ECF No.

Dismiss],"

(E.D.
7;

Va.

Nichols

2015);

v.

[the

Colvin,

100

see John Zydron Mem.

Zydron Law Firm Mem.

in Support at

in
5,

16.

The

object to
to

Motions

are

alert

Fourth

Circuit

has

clearly

an R&R "with sufficient
the

district

court

of

stated

that

a

party

specificity so as
the

true

ground

must

reasonably
for

the

objection."
(4th Cir.
attempt

United

2007) .
to

States

v.

Midqette,

The Objections

undermine

the

filed

478

by the

Magistrate

F.3d

616,

Defendants

622
not

findings

Judge's

do

or

recommendations by presenting additional arguments.

Such general

and blanket objections do not require this court to make ^
determinations of the R&R findings.
at

498;

(E.D.

Williams v. Astrue,

Va.

Feb.

2,

No.

See Nichols,

2;09cr60,

100 F.

novo

Supp.

2010 WL 395631,

at

3d
*1

2010).

However, even after undertaking a ^

novo review, as though

the Defendants had filed Objections to the R&R with specificity
and particularity,
finding,

that

complaint

the court agrees with the Magistrate Judge's

Bennett

under

the

has

individual

Lanham Act.

standing

Accordingly,

to

the

Zydron's

John

bring

and

Zydron Law Firms's Objections are hereby OVERRULED.
B. Claims Against Defendant John Zydron

John

Zydron's

personally

liable

Motion
for

to

the

Dismiss
actions

alleges
of

that

Zydron

Law

he

is
Firm

not
in

allegedly placing false and misleading materials on its website,
because he is a
Zydron Mem.
disagrees,

in

principal of a
Support

finding

liability on Mr.

that

Zydron

at

2.

the

limited liability company.

In

R&R,

Plaintiffs

the

^Mo

seek

Judge
impose

simply by reason of his being a

member

Instead,

not

Magistrate
to

or manager of the defendant PLLC.

that Mr.

the

John

the complaint alleges

Zydron personally engaged in the reported misconduct."

4

R&R

at

10-11.

Plaintiffs'

Thus,

Complaint

the

Magistrate

against

John

Judge

Zydron

found

in

that

his

the

individual

capacity is proper.
In John
complaint

John

Zydron's Objection to the R&R,

against

Zydron Obj.

him

to

individually

R&R at

3.

fails

This

he argues

as

a

objection

that

matter

of

repeats

the
law.

verbatim

the argument made in his Memorandum in Support of his Motion to
Dismiss.

See

John

Zydron

Mem.

in

Support

at

2.

The

Objection

does not attempt to undermine the Magistrate Judge's findings or
recommendations by presenting additional arguments.

Such general

and blanket objections do not require the court to make ^
determinations of the R&R findings.

novo

See supra Part II.A.

However, even after undertaking a ^

novo review, as though

John Zydron had filed Objections to the R&R with specificity and
particularity,

the

court

finding,

the

maintenance

that

against

John

Accordingly,

Zydron

in

Rule

Defendants'

of

Civil

Complaint

are

§ 1125(a) (1)

at 4-6;

his

with

of

the

the

Magistrate

Plaintiffs'

individual

capacity

Judge's

Complaint
is

proper.

John Zydron's Objection is hereby OVERRULED.
C.

The

agrees

Lanham Aci: Claims

Motions

Procedure

12(b) (6),

insufficient
of

the

to

Lanham

Zydron Law Firm Mem.

to

Dismiss
that

support

Act.

John

argue,

the
a

under

allegations

claim
Zydron

in Support at 5-8.

under
Mem.

15
in

Federal
in

the

U.S.C.
Support

In the R&R,

the

Magistrate

Judge

disagrees,

stating

that

''Plaintiffs

have

sufficiently alleged claims under subsection A and subsection B
of 15 U.S.C.

§ 1125(a)(1)." R&R at 11. Therefore,

Judge

that

found

the

Plaintiffs

proceed under § 1125(a)(1).

In

both

Magistrate

Objections

Judge's

sufficient

factual

Dismiss.

John

However,

these

the

Motions

Zydron Mem.
at

5-8.

to

basis

to

R&R,

that

at

3;

Objections

basis

a

Defendants

Plaintiffs
Rule

oppose

to

the

alleged

12(b)(6)

a

Motion

to

Law

Firm Obj .

at

repeat

the

arguments

made

largely

restating

adequate

Zydron

merely

Dismiss,

the

the

survive

in Support at 4-6;

Merely

an

at 16.

the

finding

Zydron Obj.

to

Id.

alleged

the Magistrate

without

alteration.

Zydron Law Firm Mem.

arguments

previously

made

See

3-4.
in

John

in Support
constitute

general objections that do not undermine the Magistrate Judge's

findings,

and thus do not require this court's ^

See supra Parts

II.A,

novo review.

II.B.

However, even after undertaking a ^

novo review,

as though

the Defendants had filed Objections to the R&R with specificity
and particularity,

the court agrees with the Magistrate Judge's

finding,

Plaintiffs

that

the

have

sufficiently

under subsection A and subjection B of 15 U.S.C.
proceed with the case. Accordingly,

alleged

claims

§ 1125(a)(1)

to

John Zydron's and Zydron Law

Firms's Objections are hereby OVERRULED.

III.

The court,

CONCLUSION

having examined the Objections to the R&R filed

by the Defendants, and having made ^
thereto,

does

OVERRULE

AND APPROVE IN FULL the
in

the

R&R

August 17,

of

the

2017.

the

ECF

Defendants'

findings

United

No.

novo findings with respect

and recommendations

States

23.

Objections,

Magistrate

does

ADOPT

set

forth

Judge,

Accordingly,

filed

Defendant

on

John

Zydron's Motion to Dismiss is DENIED, and Defendant Zydron Law
Firm's Motion to

The

Clerk

Dismiss

is

is DENIED.

DIRECTED

to

send

a

copy

of

this

Memorandum

Order to the parties.
IT

IS

SO ORDERED.

/S/

Rebecca Beach Smith
Chief Judge
REBECCA BEACH SMITH
CHIEF

September^!, 2017

JUDGE