Shakey's USA, Inc. v. Tutto's Pizza Corp., et al, No. 1:2009cv00093 - Document 24 (E.D. Cal. 2010)

Court Description: REVISED ORDER ADOPTING 23 FINDINGS AND RECOMMENDATIONS signed by Judge Oliver W. Wanger on 1/6/2010. Plaintiff's 19 Motion for Default Judgment is GRANTED. Judgment is entered in this action only against Defendants Tuttos Pizza Corp., CM Restaurant Group, Inc., and Amira Hanna. (Bradley, A)

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Shakey's USA, Inc. v. Tutto's Pizza Corp., et al Doc. 24 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 SHAKEY’S USA, INC., 10 11 12 Plaintiff, v. TUTTO’S PIZZA CORP., et al., 13 Defendants. 14 ) ) ) ) ) ) ) ) ) ) ) 1:09-cv-0093 OWW DLB REVISED ORDER ADOPTING FINDINGS AND RECOMMENDATIONS (Doc. 23) 15 16 On September 30, 2009, the Magistrate Judge issued Findings 17 and Recommendation that Plaintiff’s Motion for Default Judgment 18 be granted. 19 parties appearing in the action and contained notice that any 20 objections were to be filed within thirty (30) days of the date 21 of service of the order. 22 This Findings and Recommendation was served on all No objections were filed. In accordance with the provisions of 28 U.S.C. 23 § 636(b)(1)(C), this Court has conducted a de novo review of the 24 case. 25 concludes that the Magistrate Judge’s Findings and Recommendation 26 is supported in part by the record and proper analysis. Having carefully reviewed the entire file, the Court 27 There is no showing that hourly rates above local prevailing 28 hourly rates of attorneys with comparable experience should apply 1 Dockets.Justia.com 1 for attorneys fees. No evidence has been submitted to show the 2 operating history of Tutto’s Pizza Corp., nor as to its 3 profitability. 4 The “actual” proposed damages, if trebled, would amount to 5 $110,850.00, however, in light of the absence of showing of the 6 financial ability of the Defendants or reasonable revenues and 7 expenses to support projected sales and profit, the Court 8 exercises its discretion to reduce the award of treble damages to 9 $20,000.00 times 3, the amount of $60,000.00. 10 IT IS ORDERED: 11 1. 12 The Findings and Recommendation issued September 30, 2009, are ADOPTED IN PART; 13 2. Plaintiff’s Motion for Default Judgment is GRANTED; 14 3. Judgment is entered in this action only against 15 Defendants Tutto’s Pizza Corp., CM Restaurant Group, Inc., and 16 Amira Hanna; 17 4. Plaintiff is AWARDED damages in the amount of 18 $36,950.00 [there is no showing of the reasonable amount of pizza 19 revenue or from other operations for the two years the royalty is 20 applied]; 21 22 23 5. Plaintiff is AWARDED treble damages in the amount of $60,000.00 pursuant to 15 U.S.C. § 1117(a); 6. Plaintiff is AWARDED attorneys’ fees in the amount of 24 $13,658.00, [reduced partners’ rate to $325.00 per hour, reduced 25 associates’ rate to $225.00 per hour, and re-calculated those 26 fees), computer assisted legal research subtracted from the costs 27 ($84.83). 28 7. Plaintiff shall recover its costs in the amount of 2 1 2 3 $2,004.37. 8. Plaintiff is GRANTED a permanent injunction pursuant to 15 U.S.C. § 1116(a): 4 Defendants and their employees, agents, directors, 5 officers, servants, attorneys, and those persons in 6 active concert or participation with them are required 7 to: 8 (a) immediately discontinue the use of the 9 Shakey’s Marks, including but not limited to Shakey’s 10 service marks, trademarks and trade name, the sale of 11 Mojo™ potatoes, and the use of any and all signs and 12 printed goods bearing the said Shakey’s Marks and/or 13 any references whatever thereto; 14 (b) immediately destroy all materials imprinted 15 with the name “Shakey’s” and/or “Shakey’s Pizza Parlor 16 and Ye Public House” and/or any other Shakey’s Marks; 17 (c) immediately discontinue to operate or do 18 business under any name or in any manner that might 19 tend to give the general public the impression that 20 Defendants are connected in any way with Shakey’s or 21 have any right to the use of the Shakey’s System; 22 (d) immediately discontinue to make, use or avail 23 of any of the trade secrets of, or information imparted 24 by Shakey’s or disclose or reveal any such other 25 information or any portion thereof to others; 26 (e) immediately return to Shakey’s the Operation 27 Manual and all copies thereof, together with all other 28 material containing trade secrets, operating 3 1 instructions, or business practices, if any such 2 information is currently in Defendants’ possession, 3 custody, or control; 4 (f) refrain from occupying, constructing, 5 equipping, ordering or assisting any person or persons 6 in the occupation, construction, or equipping of any 7 premises incorporating the distinctive features or 8 equipment layout which Shakey’s has originated and 9 developed and which are identifying characteristics of 10 premises operated by Shakey’s franchisees; 11 (g) immediately cease using the Restaurant, or 12 otherwise, any Shakey’s artwork and signs, interior and 13 exterior color schemes distinctive to Shakey’s, 14 distinctive window glass and lamps, or other trade 15 dress used by any licensed Shakey’s pizza parlor 16 restaurant; 17 Defendants and their employees, agents, directors, 18 officers, servants, attorneys, and those persons in 19 active concert or participation with them are 20 permanently enjoined and restrained from: 21 (a) Doing anything to cause potential purchasers 22 of Defendants’ products or services to believe that 23 Defendants’ products or services originate with 24 Shakey’s or are authorized, endorsed, or affiliated 25 with or sponsored by Shakey’s, including but not 26 /// 27 /// 28 /// 4 1 limited to using the Shakey’s Marks, trade secrets or 2 trade dress. 3 4 IT IS SO ORDERED. 5 Dated: January 6, 2010 emm0d6 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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