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Motorola, Inc. v. Abeckaser

August 19, 2009

MOTOROLA, INC., PLAINTIFF,
v.
GAD ABECKASER A/K/A GADI ABECKASER, GADI'S CELL, INC. D/B/A GADICELL, INC., AND GADICELL, GADIS INC., MOBILE CELLULAR, INC., AND VARIOUS JOHN DOES, JANE DOES AND ABC COMPANIES, DEFENDANTS.



The opinion of the court was delivered by: Charles P. Sifton (electronically signed) United States District Judge

MEMORANDUM OPINION AND ORDER

SIFTON, Senior Judge.

Plaintiff Motorola, Inc. brings this trademark action against defendants Gad Abeckaser a/k/a Gadi Abeckaser ("Abeckaser"); Gadi's Cell, Inc. d/b/a Gadicell, Inc. and Gadicell; Gadis Inc.; Mobile Cellular, Inc.; and various John Does, Jane Does and ABC Companies. Specifically, plaintiff alleges that defendants engaged in: (1) infringement of plaintiff's registered trademarks in violation of Section 32 of the Lanham Act, 15 U.S.C. § 1114 (Count I); (2) false designation of origin in violation of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a)(Count II); and (3) unfair competition under New York State common law (Count III). Plaintiff's claims arise out of defendants' sale of counterfeit merchandise bearing trademarks that are unauthorized copies of plaintiff's trademarks.

On April 8, 2009, I granted plaintiff's motion for partial summary judgment on Counts I and II. Thereafter, on June 9, 2009, plaintiff moved for damages, attorney's fees, costs, and entry of judgment pursuant to Rule 54(b) of the Federal Rules of Civil Procedure. The motion was referred to Chief Magistrate Judge Steven M. Gold by order filed June 16, 2009. On August 5, 2009, Magistrate Judge Gold rendered a report and recommendation disposing of this case (the "R&R"). Presently before this Court are plaintiff's objections to the R&R. For the reasons set forth below, the R&R is adopted in part and modified in part.

BACKGROUND

Familiarity with the underlying facts of this matter is presumed based on the record of proceedings before the undersigned and Magistrate Judge Gold. For a description of the underlying facts, see Motorola, Inc. v. Abeckaser, No. 07-CV-3963, 2009 WL 962809 (E.D.N.Y. Apr. 8, 2009).

DISCUSSION

I. Standard for Consideration of Objections to a Magistrate Judge's Report and Recommendation

Federal Rule of Civil Procedure 72(b)(3) provides that when ruling on objections to a Magistrate Judge's report and recommendation, which is dispositive of a case,

[t]he 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.

Fed. R. Civ. P. 72(b)(3). See also 28 U.S.C. § 636(b)(1)(C) ("A judge of the court shall make a de novo determination of those portions of the [Magistrate Judge's] report or specified proposed findings or recommendations to which objection is made . . . [and] may also receive further evidence"); Grassia v. Scully, 892 F.2d 16, 19 (2d Cir. 1989) (noting that the district court's review of a Magistrate Judge's recommendation is de novo and that the district judge may consider new evidence). Accordingly, I review Magistrate Judge Gold's R&R de novo, taking into account the new evidence plaintiff has submitted along with its objections.

II. Review of the Report and Recommendation

A. Unopposed Recommendations of the Magistrate Judge

As an initial matter, I hereby adopt the portion of the R&R to which no objection has been filed and in which, for the reasons stated therein, Magistrate Judge Gold concludes that final judgment should be entered in plaintiff's favor in the total amount of $2,508,703.31, composed of $2,400,000.00 in statutory damages, ...


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