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Shakey's USA, Inc. v. Tutto's Pizza Corp.

January 6, 2010

SHAKEY'S USA, INC., PLAINTIFF,
v.
TUTTO'S PIZZA CORP., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

REVISED ORDER ADOPTING FINDINGS AND RECOMMENDATIONS (Doc. 23)

On September 30, 2009, the Magistrate Judge issued Findings and Recommendation that Plaintiff's Motion for Default Judgment be granted. This Findings and Recommendation was served on all parties appearing in the action and contained notice that any objections were to be filed within thirty (30) days of the date of service of the order. No objections were filed.

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a de novo review of the case. Having carefully reviewed the entire file, the Court concludes that the Magistrate Judge's Findings and Recommendation is supported in part by the record and proper analysis.

There is no showing that hourly rates above local prevailing hourly rates of attorneys with comparable experience should apply for attorneys fees. No evidence has been submitted to show the operating history of Tutto's Pizza Corp., nor as to its profitability.

The "actual" proposed damages, if trebled, would amount to $110,850.00, however, in light of the absence of showing of the financial ability of the Defendants or reasonable revenues and expenses to support projected sales and profit, the Court exercises its discretion to reduce the award of treble damages to $20,000.00 times 3, the amount of $60,000.00.

IT IS ORDERED:

1. The Findings and Recommendation issued September 30, 2009, are ADOPTED IN PART;

2. Plaintiff's Motion for Default Judgment is GRANTED;

3. Judgment is entered in this action only against Defendants Tutto's Pizza Corp., CM Restaurant Group, Inc., and Amira Hanna;

4. Plaintiff is AWARDED damages in the amount of $36,950.00 [there is no showing of the reasonable amount of pizza revenue or from other operations for the two years the royalty is applied];

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 $13,658.00, [reduced partners' rate to $325.00 per hour, reduced associates' rate to $225.00 per hour, and re-calculated those fees), computer assisted legal research subtracted from the costs ($84.83).

7. Plaintiff shall recover its costs in the amount of $2,004.37.

8. Plaintiff is GRANTED a permanent injunction pursuant to 15 U.S.C. ยง 1116(a): Defendants and their employees, agents, directors, officers, servants, attorneys, and those persons in active ...


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