Bentley Motors Ltd. v. Matthew Mcentegart, Fugazzi Cars, Inc.

• Decision Date: 30 September 2013
• Docket Number: Case No. 8:12–cv–1582–T–33TBM.
• Citation: 976 F.Supp.2d 1297
• Parties: BENTLEY MOTORS LIMITED CORPORATION and Bentley Motor, Inc., Plaintiffs, v. Matthew McENTEGART, Fugazzi Cars, Inc., Robert Frary III, and Keeping It Real Auto Customizing, Inc., Defendants.
• Court: U.S. District Court — Middle District of Florida

976 F.Supp.2d 1297

BENTLEY MOTORS LIMITED CORPORATION and Bentley Motor, Inc., Plaintiffs,

v.Matthew McENTEGART, Fugazzi Cars, Inc., Robert Frary III, and Keeping It Real Auto Customizing, Inc., Defendants.

Case No. 8:12–cv–1582–T–33TBM.

United States District Court,

M.D. Florida,

Tampa Division.

Sept. 30, 2013.

Armando Pedro Rubio, Cole, Scott & Kissane, PA, Miami, FL, Gregory D. Phillips, Jason P. Eves, Scott R. Ryther, Phillips Ryther & Winchester, LLC, Salt Lake City, UT, for Plaintiffs.

Matthew McEntegart, St. Petersburg, FL, pro se.

John F. McGuire, McGuire Law Offices, PA, Clearwater, FL, for Defendants.

ORDER

VIRGINIA M. HERNANDEZ COVINGTON, District Judge.

This matter comes before the Court in consideration of Plaintiff Bentley's Motion for Entry of Summary Judgment Against the Frary Defendants and Renewal of Motion for Default Judgment Against the Fugazzi Defendants. (Doc. # 94), filed on June 27, 2013. Defendants Robert Frary III and Keeping It Real Auto Customizing, Inc. filed an affidavit (Doc. # 106) as well as a memorandum (Doc. # 109) in opposition to Bentley's Motion on August 29, 2013, and September 6, 2013, respectively. As further detailed herein, the Court grants Bentley's Motion for Summary Judgment as to the Frary Defendants and grants Bentley's Motion for Default Judgment as to the Fugazzi Defendants.

I. Background

Bentley Motors Limited Corporation is a foreign corporation organized under the laws of the United Kingdom. (Doc. # 1 at ¶ 14).¹ Bentley Motors, Inc., is a Delawarecorporation that maintains its principal place of business in Boston, Massachusetts. ( Id. at ¶ 15). These entities, collectively referred to herein as “Bentley,” employ certain trademarks “in connection with the sale, distribution, maintenance, service, and repair of ... Bentley automobiles and related products and services.” ( Id. at ¶ 26).

Defendant Fugazzi Cars, Inc. is a Florida corporation operating in St. Petersburg, Florida. (Doc. # 43 at 2). Defendant Matthew McEntegart is the owner and operator of Fugazzi. ( Id.). The Court refers to Fugazzi and McEntegart collectively as “the Fugazzi Defendants” herein. Defendant Keeping It Real Auto Customizing, Inc. is a Florida corporation operating in Clearwater, Florida. ( Id.). Defendant Robert Frary is the “president and CEO” of Keeping It Real. (Frary Dep. Doc. # 94–4 at 1). The Court refers to Frary and Keeping It Real collectively as “the Frary Defendants” herein.

According to Bentley, “Defendants unlawfully manufacture[d] Bentley body kits that transform ordinary and inexpensive Chrysler and Ford vehicles into knockoff Bentley vehicles,” and “intentionally misappropriated the overall appearance and shape of the Bentley GTC automobile, as well as [various Bentley] trademarks, ... by incorporating them into ‘Bentley Car Kits' ....” (Doc. # 1 at ¶¶ 1–7).

On July 16, 2012, Bentley initiated this action against Defendants for (1) trademark dilution pursuant to 15 U.S.C. § 1125(c); (2) trademark infringement and counterfeiting pursuant to 15 U.S.C. § 1114(1); (3) false advertising, false designation of origin, and trade dress infringement pursuant to 15 U.S.C. § 1125(a); and (4) design patent infringement pursuant to 35 U.S.C. § 271. ( Id. at ¶¶ 39–64).

On July 18, 2012, Bentley filed a motion for preliminary injunction, seeking to enjoin Defendants from, among other activities, “manufacturing, advertising, and/or selling knockoff ‘Bentley vehicles' or ‘Bentley body kits.’ ” (Doc. # 5 at 1). On September 19, 2012, the Honorable Thomas B. McCoun III, United States Magistrate Judge, issued a Report and Recommendation which recommended that the motion for preliminary injunction be granted. (Doc. # 43). Finding Judge McCoun's Report and Recommendation to be thorough and well-reasoned, the Court adopted the Report and Recommendation and granted the motion for preliminary injunction on October 9, 2012. 899 F.Supp.2d 1291 (M.D.Fla.2012).

On October 26, 2012, Bentley moved for a Clerk's entry of default against the Fugazzi Defendants, and on November 26, 2012, the Clerk entered default against these Defendants pursuant to Federal Rule of Civil Procedure 55(a). (Doc. 55, 60). On December 18, 2012, Bentley filed a motion for default judgment against the Fugazzi Defendants. (Doc. # 71). On December 19, 2012, the Court held a hearing at which McEntegart stated his acquiescence to the entry of default judgment against him. (Doc. # 73).

Rather than granting Bentley's motion for default judgment at that time, the Court denied the motion without prejudice for consideration at a later stage of the litigation, noting that this action would remain pending between Bentley and the Frary Defendants. (Doc. # 75). Instead, the Court granted Bentley's request for a permanent injunction against the Fugazzi Defendants. ( Id. at 4).

On June 27, 2013, Bentley filed the instant Motion for Entry of Summary Judgment against the Frary Defendants and Renewal of Motion for Default Judgment Against the Fugazzi Defendants. (Doc. # 94). Within the Motion, Bentley seeks: (1) entry of a permanent injunction against the Frary Defendants, (2) an award of statutory damages “in an amount of at least $1,000,000.00 pursuant to 15 U.S.C. § 1117(c),” and (3) an award of Bentley's attorney fees and costs pursuant to 15 U.S.C. § 1117(a). ( Id. at 6–7).

The Frary Defendants, who are represented by counsel, failed to file a response to Bentley's Motion within the time provided by the Court's Case Management and Scheduling Order. Noting this failure to respond, the Court entered a separate Order on August 15, 2013, directing the Frary Defendants to file a response to Bentley's Summary Judgment Motion on or before August 22, 2013. (Doc. # 105). Again, the Frary Defendants failed to respond on or before the deadline imposed by the Court. However, on August 29, 2013, the Frary Defendants filed an unauthorized “response” to the Motion for Summary Judgment, consisting of only Frary's own, brief affidavit (the 2013 Affidavit). (2013 Aff. Doc. # 106).

Contemporaneously with the 2013 Affidavit, the Frary Defendants filed a “Motion for Extension of Time as to Plaintiffs' Motion for Summary Judgment” (Doc. # 107), explaining that “Defendant Robert Frar[y] III, owner of Keeping it Real Auto, Inc.[,] filed an original affidavit on September 10, 2012” (the 2012 Affidavit), and that “Defense believed his affidavit was testimony in opposition to Plaintiff's Motion for Summary Judgment,” despite having been filed more than eight months prior to the relevant Motion. ( Id. at 1). On August 30, 2013, the motion for extension of time was denied without prejudice for failure to comply with the Local Rules of this Court. (Doc. # 108).

On September 6, 2013, the Frary Defendants filed a memorandum in opposition to Bentley's Motion for Summary Judgment (Doc. # 109), and on the same date filed a second motion for extension of time (Doc. # 110). Within this extension motion, the Frary Defendants certified that they had contacted Bentley and that Bentley did not object to the Frary Defendants' requested extension of time to file a memorandum in opposition, provided Bentley would be permitted to file, within 5 days, “a short response and affidavits.” ( Id. at 2). On September 9, 2013, the Court entered an Order granting the motion for extension of time, granting Bentley leave to file a reply, and specifying that the Court would consider the 2013 Affidavit of Robert Frary and the corresponding memorandum in opposition as if timely filed. (Doc. # 111). Bentley filed a reply on September 13, 2013. (Doc. # 112).

The Court has carefully reviewed the Motion, the response, and the reply, and is otherwise fully advised in the premises.

II. The Frary Defendants' ResponseA. Affidavits and Testimony

As a preliminary matter, the Court will consider the practical impact of Frary's 2013 and 2012 Affidavits on the Court's summary judgment analysis. Notably, Bentley has provided relevant excerpts of Frary's deposition testimony in support of its Motion. (Doc. # 94–4). The Court is thus tasked with reconciling the factual content of Frary's Affidavits with that of his deposition testimony.

Within Frary's deposition, when asked about the extent of his work with the Bentley kit cars, Frary testified as follows:

Q: All right. So this was for a Bentley kit that you were working on for Mr. Johnson?

A: Yes.

Q: And then it says, mold and fill door jambs, mold and fill trunk jambs, bodywork and paint car, close door gaps, trunk, extra time, and then paint and strut and core support. So that's work that you-all performed?

A: Yes.

Q: And it looks like you charged him $5,885?

A: Yes.

( Id. at 9). Later, in response to a question about a check written to Frary for $2,000.00, Frary testified as follows:

Q: Why are they writing you a check for—what's your understanding of why they're writing you a check for $2,000?

A: It was for money owed for work that I was doing for Fugazzi Cars.

Q: And what work did you do for Fugazzi Cars that was the subject of this check?

A: Paint and body.

Q: And was this also for a Bentley kit?

A: Yes.

( Id. at 10–11). Furthermore, in reference to certain pictures taken of Bentley kit cars in various stages of completion, Frary testified as follows:

Q: Okay. And then could you tell me what the next page is on Exhibit 9? There's nine, it looks like, photocopies of photos.

A: Pictures of bodywork being performed.

Q: And where was that bodywork being performed?

A: At Keeping It Real.

Q: And those were Bentley kits as well?

A: Yes. That was the kit we were working on.

( Id. at 12). Frary additionally testified that he ordered online a “Bentley-style sticker for a Chrysler 300 [wheel]” and placed the sticker on the wheel of a Bentley kit car himself ( Id. at 20–21), and also provided a detailed description of the events taking place in a series of pictures supplied by Bentley's counsel:

Q: So that's Nick on the left and you on the right?

A:...