Beach Mart, Inc. v. L&L Wings, Inc.
| Beach Mart, Inc. |
| L&L Wings, Inc. |
| 2:2011cv00044 |
| September 9, 2011 |
| US District Court for the Eastern District of North Carolina |
| Northern Division Office |
| DARE |
| James C. Fox |
| Other Contract |
| 28 U.S.C. ยง 1332 |
| Plaintiff |
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Filing
783
CONSENT JUDGMENT - Counsel is reminded to read the order in its entirety for critical deadlines and information. Signed by District Judge Louise Wood Flanagan on 2/25/2022. (Collins, S.)
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Filing
776
ORDER granting 760 MOTION to Seal 756 Notice of Intent to Request Redaction. The Clerk is hereby directed to retain under seal the following documents: D.E. 748 and D.E. 749 . The Court Reporter is hereby directed to re dact the indicated information of D.E. 758 and D.E. 759 from the final public versions of the Trial Transcripts that are filed with the Court and to prepare sealed excerpts of the final transcript reflecting such redactions, which excerpts are to be maintained under seal in this and any other proceeding. Signed by District Judge Louise Wood Flanagan on 11/29/2021. (Collins, S.)
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Filing
754
ORDER granting 746 MOTION to Seal 743 Transcript Redaction Request, 745 Transcript Redaction Request, 744 Transcript Redaction. The Clerk is hereby directed to retain under seal the following documents: D.E. 734, D.E. 735, and D.E. 736. The Court Reporter is hereby directed to redact the indicated information of D.E. 743, D.E. 744, and D.E. 745 from the final public versions of the trial transcripts that are filed with the court, and to prepared sealed excerpts o f the final transcript reflecting such redactions, which excerpts are to be maintained under seal in this and any other proceeding. Signed by District Judge Louise Wood Flanagan on 9/24/2021.A certified copy of this Order was sent via email to the court reporter. (Collins, S.)
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Filing
688
JUDGMENT in favor of Beach Mart, Inc. against L&L Wings, Inc. It is ORDERED, ADJUDGED AND DECREED that for the reasons detailed in the Court's October 3, 2014, Order, that L&L Wings, Inc.'s claims for trademark infr ingement under 28 U.S.C. § 1114 and 15 U.S.C. § 1125(a) are dismissed with prejudice. It is further ORDERED, ADJUDGED AND DECREED that for the reasons detailed in the Court's October 3, 2014 and March 29, 2018 Orders, sanctions in the amount of $107,436.25 in attorney's fees and $11,318.83 in costs are awarded against L&L Wings, Inc., in favor of Beach Mart, Inc. JURY VERDICT. The remaining claims in this action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict. IT IS ORDERED, ADJUDGED AND DECREED that Beach Mart, Inc. has proven by the preponderance of the evidence that L&L Wings, Inc. fraudulently induced Beach Mart, Inc. to enter into the parties' ; August 29, 2005, agreement, and L&L Wings, Inc. negligently misrepresented information in connection with the parties' August 29, 2005, agreement, upon which Beach Mart, Inc. justifiably relied, thereby causing damage to Beach Mart, Inc. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Beach Mart, Inc. has proven by clear and convincing evidence that L&L Wings, Inc. knowingly made false representations of material fact with an intent to deceive to the United States Patent and Trademark Of fice in 2006, 2007, and/or 2008, resulting in the issuance of federal trademark Registration No. 3,458,144 (the " '144 Registration"), and in 2011, resulting in the issuance of federal trademark Registration No. 4,193,881 (the " & #039;881 Registration"), thereby causing injury to Beach Mart, Inc. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Beach Mart, Inc. has proven by the preponderance of the evidence that L&L Wings, Inc. made false statements and/or misrepresenta tions in connection with the solicitation and negotiation of the August 29, 2005, agreement with Beach Mart, Inc., and L&L Wings, Inc. made false statements and/or misrepresentations in connection with the 2006 application leading to the '144 Re gistration and the 2011 application leading to the '881 Registration, in or affecting commerce, thereby causing damages to Beach Mart, Inc. The Court finds that the foregoing acts of L&L Wings, Inc. constitute unfair and deceptive conduct, as pr ohibited under N.C. GEN. STAT. § 75-1.1, and Beach Mart, Inc. is entitled to recover all of its damages arising therefrom. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Beach Mart, Inc. is entitled to compensatory damages arising from the for egoing in the amount of $4,184,135.00, and that such compensatory damages shall be trebled pursuant to N.C. GEN. STAT. § 75-16 such that Beach Mart, Inc. is entitled to recover of L&L Wings, Inc. in the amount of $12,552,405.00. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Beach Mart, Inc. has proven by the preponderance of the evidence that all right, title, and interest in and to theWINGS trademark for use in connection with retail clothing stores was owned by Shepard R. Mor row in April of 1993 when L&L Wings, Inc. and Shepard R. Morrow entered into the April 29, 1993, license agreement for the use by L&L Wings, Inc. of the WINGS mark. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Beach Mart, Inc. has proven by the p reponderance of the evidence that the April 29, 1993, trademark license between Shepard R. Morrow and L&L Wings, Inc. (the "Morrow License") remains in effect and has not terminated. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that because Beach Mart, Inc. has proven by clear and convincing evidence that L&L Wings, Inc. knowingly made false representations of material fact with an intent to deceive to the United States Patent and Trademark Office in 2006, 2007, and/or 2008, resulting i n the issuance of federal trademark Registration No. 3,458,144, and in 2011, resulting in the issuance of federal trademark Registration No. 4,193,881, thereby causing injury to Beach Mart, Inc., it is hereby ORDERED AND DECREED pursuant to 15 U.S.C. § 1119 that: 1) the Clerk of Court is hereby directed to send a certified copy of this Judgment, within 14 days of the date hereof, to the Director of the United States Patent and Trademark Office, Office of the Solicitor, Mail Stop 8, P.O. Box 1450, Alexandria, Virginia 22313-1450. 2) the Director of the United States Patent and Trademark Office is directed to cancel Registration No. 3,458,144 for WINGS and Registration No. 4,193,881 for WINGS; IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Beach Mart, Inc. has proven by the preponderance of the evidence that Beach Mart, Inc. has all right, title and interest in and to its SUPER WINGS trademark arising from use for retail store services in North Carolina as of January 1, 2006. IT I S FURTHER ORDERED, ADJUDGED AND DECREED that the claims for declaratory judgment of L&L Wings, Inc. and Beach Mart, Inc., to the extent not otherwise addressed herein, are hereby dismissed with prejudice. IT IS FURTHER ORDERED, ADJUDGED AND DECREED t hat Beach Mart, Inc. shall recover pre-judgment interest, accruing from September 9, 2011, up to and until date of entry of judgment at the rate of eight percent (8%) per annum on the sum of $4,184,135.00. for a total amount of $3,196, 908.41. Beach Mart, Inc. is entitled to and shall recover post-judgment interest on the entire amount awarded under this judgment, in an amount determined by the rate established by 28 U.S.C. § 1961, accruing as of the date of entry of judgment up to and until satisfaction in full. Signed by Peter A. Moore, Jr., Clerk of Court on 3/29/2021. (Collins, S.)
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Filing
687
ORDER - Defendant's motion to require plaintiff to elect its remedies DE 651 is GRANTED IN PART and DENIED IN PART. Defendant's motion for declaratory judgment DE 658 is DENIED. Pursuant to Federal Rule of Civil Procedure 58(b)(2), upon return of jury verdict, and in accordance with decisions herein rendered, the clerk is DIRECTED to enter judgment, in the instant matter and in case No. 2:14-CV-52-FL, in the form that follows. Signed by District Judge Louise Wood Flanagan on 3/26/2021. (Collins, S.)
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Filing
649
MEMORANDUM OPINION - The court OVERRULES Beach Mart's objection to the court's jury instruction on the merger doctrine. Signed by District Judge Louise Wood Flanagan on 11/17/2020. (Collins, S.)
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Filing
638
MEMORANDUM AND OPINION - Beach Mart's request for a jury instruction on punitive damages and a related verdict form question is DENIED. Signed by District Judge Louise Wood Flanagan on 11/16/2020. (Collins, S.)
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Filing
637
MEMORANDUM AND OPINION - Beach Mart's partial motion to reconsider 619 is GRANTED IN PART AND DENIED IN PART as set forth herein. L&L Wings's motion in limine to exclude evidence of declarations of incontestability 543 and motion in limine to exclude evidence of, or reference to, legal authority 531 are DENIED. Signed by District Judge Louise Wood Flanagan on 11/13/2020. (Collins, S.)
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Filing
626
MEMORANDUM OPINION - Beach Mart's renewed motion in limine to exclude testimony of and evidence gathered by L&L Wings's private investigator Martinez 622 is DENIED. Signed by District Judge Louise Wood Flanagan on 11/10/2020. (Collins, S.)
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Filing
595
ORDER granting in part and denying in part 566 Motion in Limine No. 12 for Limited Instruction as to Court Order on Trademark Usage. Counsel is reminded to read the order in its entirety for critical information. Signed by District Judge Louise Wood Flanagan on 10/23/2020. (Collins, S.)
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Filing
525
ORDER denying 484 Motion for Partial Summary Judgment for Cancellation of L&L's Trademark Registrations for Naked Licensing. In addition, in accordance with footnote four herein, plaintiff is DIRECTED to show ca use, within 14 days of the date of this order, why Super Wings should not be dismissed as a party plaintiff in this matter, for failure to prosecute. Defendant may file a reply to plaintiff's response, if any, within 10 days of plaintiff's response. Signed by District Judge Louise Wood Flanagan on 8/25/2020. (Collins, S.)
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Filing
520
ORDER granting 509 Motion to Seal Document 500 PROPOSED SEALED Exhibit, 499 PROPOSED SEALED Exhibit Previously Ordered Sealed by Court at [392-2] and [392-3]. Signed by District Judge Louise Wood Flanagan on 5/15/2020. (Collins, S.)
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Filing
491
ORDER granting 489 Motion to Seal Document 467 PROPOSED SEALED Exhibit, 478 PROPOSED SEALED Exhibit, 384 PROPOSED SEALED Exhibit, 381 PROPOSED SEALED Exhibit, 379 PROPOSED SEALED Exhibit, 476 PROPOSED SEALED Exh ibit, 380 PROPOSED SEALED Exhibit, 464 PROPOSED SEALED Exhibit, 382 PROPOSED SEALED Exhibit, 459 PROPOSED SEALED Exhibit, 386 PROPOSED SEALED Exhibit, 465 PROPOSED SEALED Exhibit, 479 PROPOSED SEALED Exhibit, 477 PROPOSED SEALED Exhibit. Signed by District Judge Louise Wood Flanagan on 3/26/2020. (Collins, S.)
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Filing
430
ORDER denying 413 Motion for Attorney Fees. Signed by US District Judge Terrence W. Boyle on 7/19/2018. (Stouch, L.)
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Filing
411
ORDER denying 338 Motion to Amend/Correct; granting in part and denying in part 327 Motion for Summary Judgment and 332 Motion for Summary Judgment; denying as moot 365 Motion in Limine, 367 Motion in Limine, 369 Motion in Limine , 371 Motion in Limine, 373 Motion in Limine, 374 Motion in Limine, 376 Motion in Limine, 383 Motion in Limine, 395 Motion in Limine, 398 Motion in Limine, 405 Motion in Limine; granting 393 Motion to Seal; and denying as moot 410 Motion for Extension of Time to File Response. Signed by US District Judge Terrence W. Boyle on 3/28/2018. (Stouch, L.)
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Filing
409
ORDER granting 328 Motion for Summary Judgment. Signed by US District Judge Terrence W. Boyle on 3/19/2018. (Stouch, L.)
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Filing
303
ORDER denying as moot 277 Motion for Summary Judgment; denying as moot 279 Motion for Summary Judgment; denying as moot 282 Motion for Summary Judgment, to the extent it seeks judgment on count one, and DENIED in all other respects. L&L sha ll file an amended complaint (titled "Second Amended Complaint") that conforms to this Order and the November 2015 Order no later than February 23, 2017. L&L may not amend any of the dismissed claims. The parties shall filed a JOINT STATUS REPORT no later than April 10, 2017. Counsel is reminded to read the order in its entirety for critical deadlines and information. Signed by Senior Judge James C. Fox on 2/9/2017. (Edwards, S.)
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Filing
302
ORDER granting 286 Motion to Strike. L&L's Supplemental Expert Report and its accompanying exhibit [DE-287-1] are struck and are not admissible. Signed by Senior Judge James C. Fox on 1/27/2016. (Edwards, S.)
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Filing
301
ORDER granting 223 Motion for Judgment on the Pleadings; granting 227 Motion for Judgment on the Pleadings; granting 229 Motion for Judgment on the Pleadings. Signed by Senior Judge James C. Fox on 11/17/2015. (Edwards, S.)
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Filing
261
ORDER granting 260 Motion to Extend Time to Complete Limited Fact Discovery. Counsel is reminded to read the order in its entirety for critical deadlines and information. Signed by Senior Judge James C. Fox on 1/29/2015. (Edwards, S.)
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Filing
257
ORDER granting 255 Motion to Clarify the Scheduling Order. Counsel is reminded to read the order in its entirety for critical deadlines and information. Signed by Senior Judge James C. Fox on 1/13/2015. (Edwards, S.)
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Filing
246
ORDER granting 245 Motion to Schedule Settlement Conference Pursuant to Local Rule 101.2(a). This matter, including whether Shepard Morrow must personally attend the conference, is referred to United States Magistrate Judge Gates for a settlement conference at a time to be set by US Magistrate Judge Gates. Counsel is reminded to read the order in its entirety. Signed by Senior Judge James C. Fox on 11/17/2014. Copy emailed to US Magistrate Judge James E. Gates. (Edwards, S.)
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Filing
233
ORDER granting 165 Motion for Sanctions. This sanction is limited to those stores already operated by Beach Mart. Therefore, L&L's trademark infringement claims (Third and Fourth Counterclaims) of its Answer and Counterclaim [DE-18] are hereby DISMISSED. Signed by Senior Judge James C. Fox on 10/3/2014. The parties are reminded to read the order in its entirety for critical filing deadlines. (Grady, B.)
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Filing
220
ORDER granting 213 Motion To Lift Stay and for Order Setting Scheduling Conference. Scheduling conference set for 10/28/2014 at 10:00 AM. It is hereby ORDERED that the cases 2:11-CV-44-F and 2:14-CV-52-F be CONSOLIDATED. These two actions shall proceed under one consolidated case number, 2:11-CV-44-F. Signed by Senior Judge James C. Fox on 9/15/2014. The parties should read the order in its entirety for additional deadlines. (Grady, B.)
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Filing
211
ORDER denying 191 Motion to Stay; granting 198 Motion to Stay this matter pending resolution of the New York action. Counsel is DIRECTED to notify the court when the New York action is concluded, at which time the court will lift the stay. Counsel is reminded to read the order in its entirety for detailed information. Signed by Senior Judge James C. Fox on 4/7/2014. (Edwards, S.)
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Filing
204
ORDER denying as moot 77 Motion for Partial Summary Judgment; denying as moot 89 Motion for Summary Judgment. Beach Mart's request for hearing is ALLOWED and the Clerk of Court is DIRECTED to schedule and notice a hearing on the motion to amend and motion to enjoin for April 2, 2014 at 10:00 a.m. Counsel is reminded to read the order in its entirety for critical deadlines and information. Signed by Senior Judge James C. Fox on 3/17/2014. (Edwards, S.)
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Filing
169
ORDER granting in part and denying in part 168 Motion to Strike or in the Alternative, to Exceed Page Limit and for Extension of Time to Respond. Counsel is reminded to read the order in its entirety for critical deadlines and information. Signed by Senior Judge James C. Fox on 10/28/2013. (Edwards, S.)
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Filing
129
ORDER denying 31 Motion for Leave to File; denying as moot 40 Motion to Strike ; granting 42 Motion for Leave to File; denying as moot 58 Motion to Strike ; denying 72 Motion to Strike. Counsel is reminded to read the order in its entirety for further information. Signed by Senior Judge James C. Fox on 3/19/2013. (Edwards, S.)
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Filing
128
ORDER granting in part and denying in part 75 Motion to Reopen Golasa's Deposition and 94 Motion to Terminate. Signed by Magistrate Judge James E. Gates on 3/18/2013. (Foell, S.)
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Filing
97
ORDER granting 56 Motion to Compel and denying without prejudice in part and denied in part 66 Motion to Compel. Signed by US Magistrate Judge James E. Gates on 10/15/2012. (Edwards, S.)
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| Plaintiff: Beach Mart, Inc. | |
| Represented By: | Charles A. Burke |
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| Defendant: L&L Wings, Inc. | |
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