Novus Franchising, Inc. v. AZ Glassworks, LLC et al
| Novus Franchising, Inc. |
| AZ Glassworks, LLC, Capital One Auto Glass, LLC, Edward Longoria and Jeannie Hersh |
| 0:2012cv01771 |
| July 23, 2012 |
| US District Court for the District of Minnesota |
| DMN Office |
| Scott |
| Michael J. Davis |
| Tony N. Leung |
| Trademark |
| 28 U.S.C. ยง 1338 |
| None |
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Filing
54
ORDER GRANTING PLAINTIFF'S MOTION FOR ENTRY OF DEFAULT JUDGMENT ON COUNTS VI AND VIII PURSUANT TO FED. R. CIV. P. 55(b)(2) AGAINST DEFENDANT EDWARD LONGORIA AND DISMISSING ALL REMAINING COUNTS AGAINST DEFENDANT EDWARD LONGORIA. Granting 44 Motion for Default Judgment on Counts VI and VIII. (Written Opinion). Signed by Chief Judge Michael J. Davis on 5/3/13. (GRR)
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Filing
52
MEMORANDUM OF LAW & ORDER. IT IS HEREBY ORDERED: Plaintiff's Motion for Entry of Default Against Defendants AZ Glassworks, LLC, Capital One Auto Glass, LLC, and Jeannie Hersh Pursuant to Fed. R. Civ. P. 55(b)(2) 32 is GRANTED IN PART an d DENIED IN PART as follows: 1. Novus shall have judgment entered in its favor and against Defendants AZ Glassworks, Capital One, and Hersh on all of the claims set forth in its Verified Complaint. 2. Novus shall have judgment entered in its favor against Defendant AZ Glassworks and Hersh, jointly and severally, for past due amounts owing under the Franchise Agreements and Personal Guaranties to those Franchise Agreements in the amount of $18,654.66, plus interest. 3. N ovus's request for judgment entered in its favor against Defendant AZ Glassworks and Hersh, jointly and severally, for future royalties and other amounts due and owing under the Franchise Agreements and Personal Guaranties to those Franchise Agr eements in the amount of $68,040.00 is DENIED. 4. Defendants AZ Glassworks and Hersh shall submit all financial records referring or relating to their NOVUS businesses dating from September 2011 through the date of this order to Novus with in ten days of the date of this order. In the event an audit of the financial records shows that additional royalties are due and owing to Novus, Novus shall have the right and authority to petition this Court for judgment in the additional amount. If the amounts due and owing are in excess of $500.00, Novus shall be awarded its reasonable costs and expenses associated with the audit. 5. Novus shall have judgment entered in its favor against Defendants AZ Glassworks, Capital One, an d Hersh, jointly and severally, in the amount of $42,654.29 for its attorneys fees, costs, and disbursements incurred in connection with this matter. 6. Novus is entitled to and shall have a permanent injunction entered in its favor and a gainst the Defaulting Defendants as follows: (a) Effective immediately, and continuing for two years from the date of this Order, Defendant Hersh, and her immediate family members, are hereby restrained and enjoined from owning, operating, leas ing, franchising, licensing, conducting, engaging in, consulting with, being connected with, having any interest in, or assisting any person or the entity engaging in any or other business that is in any way competitive with or similar to the NOVUS B usiness System or the NOVUS Business (including any automotive glass repair and/or replacement or installation business): (1) within the geographic area comprising the counties of Maricopa and Pinal Counties in the State of Arizona and Orange Count y in the State of California; (2) in an area of primary responsibility Novus grants to any other NOVUS franchisee or business; or (3) within ten miles of any business location of any NOVUS franchise or business in the United States and its possession s. (b) Effective immediately, Defendants Capital One and Hersh, and all persons acting in active concert with them who receive notice of this Order, and all purported assignees of any of the registered NOVUS Marks and all derivations and uses the reof who receive notice of this Order, and all recipients of any of the property described below who receive notice of this Order, are hereby permanently restrained and enjoined from: (i) Any use of the registered NOVUS Marks and all derivations thereof; and(ii) Retaining any manual or other confidential or proprietary information provided to AZ Glassworks and/or Hersh under the Franchise Agreements. (c) Effective immediately, Defendants AZ Glassworks, Hersh, and Capital One, and all persons acting in active concert with them who receive notice of this Order, and all purported assignees of any of the registered NOVUS Marks and all derivations and uses thereof who receive notice of this Order, and all recipients of any of the prop erty described in Section (b) above or as described below who receive notice of this Order, shall: (i) Return all confidential and proprietary materials of Novus to Novus including, but not limited to, all manuals and equipment, within five (5) d ays of the date of this Order; (ii) Remove and return to Novus or destroy all signage, promotional materials, and other materials bearing the NOVUS Marks, including internet websites, within five (5) days of the date of this Order; (iii) Im mediately take such steps as necessary to effect the transfer of all telephone numbers, including all fax numbers and other listings for or associated with AZ Glassworks former NOVUS franchises, including the number (800) 503-5035, to Novus or its de signee. (iv) In the event AZ Glassworks or Hersh fail to effect the transfer of the telephone, fax, and other listings for or associated with their former NOVUS franchises, AZ Glassworks and Hersh authorize Novus to direct the telephone company , all listing agencies, and internet service providers, to transfer all fax and telephone numbers and listings to Novus. A copy of this order shall serve as authorization to the telephone company, all listing agencies, and internet service providers , to transfer any telephone and/or fax numbers formerly associated with AZ Glassworks NOVUS franchises, including but not limited to (800) 503-5035, to Novus or its designee. 7. This permanent injunction shall be effective immediately, and no bond shall be required. (Written Opinion). Signed by Chief Judge Michael J. Davis on 3/18/13. (GRR)
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Filing
30
ORDER ADOPTING REPORT AND RECOMMENDATIONS for 26 Report and Recommendation (Written Opinion) Novus's Motion for a Preliminary Injunction Against All Defendants 3 is GRANTED IN PART. Novus's Motion for a Preliminary Injunction Against All Defendants 3 is DENIED IN PART WITHOUT PREJUDICE with respect to AZ. Novus's request for attorneys fees and costs is denied without prejudice. Any injunction order shall become effective upon personal service thereof upon Capital One and the posting of a $5,000 bond by Novus. Signed by Chief Judge Michael J. Davis on 10/18/12. (KMW)
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