Opinion
1:11cv137 (LMB/IDD).
September 21, 2011
ORDER
Before the Court is a Report and Recommendation ("Report") issued by a magistrate judge on August 29, 2011 [Dkt. No. 23], which recommended that plaintiff's Motion for Default Judgment [Dkt. No. 14] be granted in part and that plaintiff be awarded damages in the amount of $569,511.63 and an injunction barring defendants "from operating any business purporting to be a Precision Franchising Center." Report at 15. The parties were advised that any objections to the Report must be filed within 14 days and that failure to file a timely objection waives the right to appeal the substance of the Report and any judgment based upon the Report. As of September 20, 2011, no party has filed an objection.
The Court has reviewed the Report, plaintiff's motion, and the case file and adopts the Report in its entirety. Specifically, the magistrate judge correctly determined that the Court has subject matter jurisdiction over this action pursuant to its federal question and supplemental jurisdiction, 28 U.S.C. §§ 1331 and 1367. The franchise agreements in this action provide that defendants will submit to personal jurisdiction in the judicial district where plaintiff's principal place of business is located and that plaintiff may bring suit for monies owed or injunctive relief in any state or federal court with jurisdiction. See Pl.'s Mem. in Supp. of Default J. Mot. at Exs. A, B, C § 26.1. Plaintiff's principal place of business is located within this district, and therefore venue and personal jurisdiction are established. The Court further finds that the documentation submitted with plaintiff's Motion for Default Judgment supports the sum of damages recommended in the Report. Accordingly, plaintiff's Motion for Default Judgment is GRANTED IN PART, and it is hereby
ORDERED that damages in the amount of $569,511.63 be and are awarded in favor of plaintiff, Precision Franchising, LLC, against the defendants K-Squared, Inc., Kurtis Johnson, and Kimberly Johnson, jointly and severally; and it is further
ORDERED that the defendants are enjoined from operating any automotive care business as a Precision Franchising Center and from using plaintiff's proprietary marks, as listed in Exhibit A attached to this Order, as well as plaintiff's trade dress and its trade secrets in any respect, without explicit permission from the plaintiff.
The Clerk is directed to enter final judgment in plaintiff's favor pursuant to Fed.R.Civ.P. 55 and to forward copies of this Order to counsel of record.
EXHIBIT A
Mark/ Registration No./ Identification of First Use Date Registration Date Goods/Services PRECISION TUNE PRECISION TUNE Design PRECISION TUNE PRECISION TUNE PRECISION TUNE Design (with color) PRECISION TUNE AUTO CARE Design PRECISION LUBE EXPRESS PRECISION TUNE AUTO CARE AMERICA'S NEIGHBORHOOD AUTO CARE EXPERTS PRECISION TUNE AUTO CARE TIRES TUNED IN TO YOU
1,214,325 Vehicle tune-up services, February 1976 October 26, 1982 in Class 37. 1,214,326 Vehicle tune-up services, October 26, 1982 in Class 37. December 1977 1,259,155 Spark plugs, in Class 7. August 1982 November 29, 1983 1,497,068 Vehicle tune-up and February 1976 July 19, 1988 lubrication services, in Class 37. 1,520,139 Vehicle tune-up services, January 10, 1989 in Class 37. December 1977 2,125,311 Auto repair, maintenance, December 30, 1997 and lubrication services, in August 1996 Class 37. 2,239,299 Vehicle oil change and August 1996 April 13, 1999 lubrication services in Class 37 3,015,281 Auto and vehicle tune-up, August 1996 Nov 15, 2005 repair and maintenance services; Repair and maintenance of automobile climate control and lighting systems, in Class 37. 3,091,303 Auto and vehicle tune-up, May 9, 2006 repair and maintenance August, 2004 services; Repair and maintenance of automobile climate control and lighting systems, in Class 37. 3,348,210 Retail store services in field December 4, 2007 of tires, in Class 35; Auto 2005 repair, maintenance and lubrication services; Installation, repair and maintenance of tires; Maintenance of automobile climate control and lighting systems in Class 37. 3,414,235 Auto and vehicle tune-up, 2007 April 22, 2008 lubrication, repair and maintenance services; Repair and maintenance of automobile climate control and lighting systems in Class 37.