United States District Court, E.D. New York
MITCHELL GROUP USA, LLC and GAPADIS HEALTH AND BEAUTY INC., Plaintiffs,
NKEM UDEH, individually and d/b/a/ "BEAUTY RESOURCE, " TIMITE & SON BEAUTY SUPPLIES, INC., AFRICAN & CARIBBEAN MARKET, INC., and JOHN DOES 1-10 and UNKNOWN ENTITIES 1-10. Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION
HONORABLE ANN M. DONNELLY UNITED STATES DISTRICT JUDGE
the Court are the parties' objections to the Report and
Recommendation ("R & R") that Magistrate Judge
James Orenstein issued on March 8, 2017, recommending that
the Court award the plaintiffs $203, 227.70 in damages and
enter a permanent injunction against the defendants. For the
reasons set forth below, I adopt Judge Orenstein's
thorough and well-reasoned R & R.
plaintiffs, Mitchell Group USA LLC ("Mitchell") and
Gapadis Health and Beauty, Inc. ("Gapardis"),
initiated this action against the defendants, Timite &
Son Beauty Supplies, Inc. ("Timite") and World
Beauty Distributor, Inc. ("World"),  asserting
trademark infringement, counterfeiting, unfair competition,
and false advertising under the federal Lanham Act and New
York common law. (Second Amended Complaint, ECF 55.) After
the defendants willfully failed to comply with multiple court
orders, the court held them in contempt and ordered their
answer stricken from the record. (ECF 80, affd,
Order dated June 16, 2015; ECF 100, adopted, ECF
117; ECF 121.)
April 26, 2016, the plaintiffs filed a motion for default
judgment, (ECF 141) which I referred to Judge Orenstein,
pursuant to 28 U.S.C. § 636(b). Judge Orenstein
recommended that the Court enter judgment against the
defendants "jointly and severally in the amount of $203,
227.70 (consisting of $100, 000 in statutory damages; $95,
627.20 in attorney's fees; and $7, 600.50 in costs), and
issue a permanent injunction." (R & R, ECF 168, at
1.) Both parties filed timely objections to the R & R on
April 19, 2017. (ECF 171, 172.)
Standard of Review
may object to a magistrate judge's R & R within 14
days. Fed.R.Civ.P. 72(b)(1). The objections must be specific;
where a party "makes only conclusory or general
objections, or simply reiterates [the] original arguments,
the Court reviews the [R & R] only for clear error."
Pall Corp. v. Entegris, Inc., 249 F.R.D. 48, 51
(E.D.N.Y. 2008) (quoting Barratt v. Joie, No. 96
Civ. 324, 2002 WL 335014, at *1 (S.D.N.Y.Mar. 4, 2002)). The
district judge must evaluate proper objections de
novo and "may accept, reject, or modify the
recommended disposition." Fed.R.Civ.P. 72(b)(3).
"[E]ven in a de novo review of a party's specific
objections, [however, ] the court will not consider
'arguments, case law and/or evidentiary material which
could have been, but were not, presented to the magistrate
judge in the first instance.'" Brown v.
Smith, No. 09 Civ. 4522, 2012 WL 511581, at *1 (E.D.N.Y.
Feb. 15, 2012) (quoting Kennedy v. Adamo, No. 02
Civ. 1776, 2006 WL 3704784, at *1 (E.D.N.Y. Sept. 1, 2006))
(alterations omitted). Moreover, "the district court is
'permitted to adopt those sections of a magistrate
judge's report to which no specific objection is made, so
long as those sections are not facially erroneous.'"
Sasmor v. Powell, No. 11 Civ. 4645, 2015 WL 5458020,
at *2 (E.D.N.Y. Sept. 17, 2015) (quoting Batista v.
Walker, No. 94 Civ. 2826, 1995 WL 453299, at *1
(S.D.N.Y. July 31, 1995)).
defendants make the same arguments they made in their
memorandum opposing the plaintiffs' motion for default
judgment, which Judge Orenstein already considered and
rejected. Accordingly, the Court reviews that part of the R
& R for clear error. See, e.g., Official Comm. of
Unsecured Creditors of Exeter Holdings Ltd. v. Haltman,
No. 13 Civ. 5475, 2016 WL 128154, at *5 (E.D.N.Y. Jan. 12,
2016) (objections to an R & R that are identical to those
put forth in motion papers are reviewed for clear error).
Having reviewed Judge Orenstein's cogent analysis, the
available record, and relevant case law, I find no clear
error in his recommendation that default judgment be entered
against the defendants.
plaintiffs object to Judge Orenstein's recommendation
that this Court enter a judgment against the defendants for
$100, 000 in statutory damages; they argue this amount is
insufficient because it does not include damages for (1) the
defendants' use of the "Fair & White" and
"Paris Fair & White" marks or (2) false
advertising of products bearing the plaintiffs'
"Maxi Skin, " "Pure Skin, " or
"Immediate Claire Maxi-Beauty" marks. These
objections are sufficiently specific to warrant de novo
review. See 28 U.S.C. § 636(b)(1) ("A
[district] court shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.").
15 U.S.C. § 1117(c), a plaintiff may recover statutory
damages for trademark infringement involving the use of
counterfeit marks. In other cases of trademark infringement,
plaintiffs are entitled to recover "(1) defendant's
profits, (2) any damages sustained by the plaintiff, and (3)
the costs of the action." 15 U.S.C. § 1117 (a).
"Even when a default judgment is warranted based on a
party's failure to defend, the allegations in the
complaint with respect to the amount of the damages are not
deemed true[;] [t]he district court must instead conduct an
inquiry in order to ascertain the amount of ...