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Lorillard Tobacco Co. v. Montrose Wholesale Candies and Sundries

April 17, 2008

LORILLARD TOBACCO COMPANY, A DELAWARE CORPORATION, PLAINTIFF,
v.
MONTROSE WHOLESALE CANDIES AND SUNDRIES, INC., ET AL., DEFENDANT.



The opinion of the court was delivered by: Marvin E. Aspen United States District Judge

MEMORANDUM ORDER AND OPINION

MARVIN E. ASPEN, District Judge

On November 18, 2007, we issued a judgment awarding Lorillard Tobacco Company ("Plaintiff") $2.5 million in statutory damages under the Lanham Act.*fn1 Subsequently, Montrose Wholesale Candies and Sundries, Inc., Ray Hazemi, and Sandra Hazemi (collectively referred to as the "Defendants") filed a Rule 59(e) motion to alter or amend that judgment. We referred Defendants' motion to Magistrate Judge Cole, and he issued a Report and Recommendation on February 25, 2008 ("Report") recommending that we deny Defendants' motion. Presently before us is Defendants'*fn2 objections to Magistrate Judge Cole's Report. For the reasons set forth below, we overrule Defendants' objections and adopt the Report.

STANDARD OF REVIEW

Federal Rule of Civil Procedure 72(b) sets forth the procedure for objecting to a magistrate judge's report and recommendation on dispositive matters: "Within 10 days after being served with a copy of the recommended disposition, a party may serve and file specific, written objections to the proposed findings and recommendations." Fed. R. Civ. P. 72(b). To comply with the rule in the Seventh Circuit, a party must "specify each issue for which review is sought[, but need] not [include] the factual or legal basis of the objection." Johnson v. Zema Sys. Corp., 170 F.3d 734, 741 (7th Cir. 1999). Generally, a district court reviews a magistrate's report and recommendation for clear error. Fed. R. Civ. P. 72(a); see Hartford Accident & Indemnity v. Sullivan, No. 76 C 3319, 1987 WL 9977, at *2 (N.D. Ill. Apr. 20, 1987). However, the district court undertakes a de novo review of those portions of the Report to which a party specifically objected. Johnson, 170 F.3d at 741; Fed. R. Civ. P. 72(b).

ANALYSIS

On February 25, 2008, Magistrate Judge Cole issued a Report recommending that we deny Defendants' Rule 59(e) motion. As the Report correctly indicated, "'[a] court may grant a Rule 59(e) motion to alter or amend the judgment if the movant presents newly discovered evidence that was not available at the time of trial or if the movant points to evidence in the record that clearly establishes a manifest error of law or fact.'" County of McHenry v. Ins. Co. of the W., 438 F.3d 813, 819 (7th Cir. 2006) (quoting Matter of Prince, 85 F.3d 314, 324 (7th Cir. 1996)). However, a party may not use a Rule 59(e) motion "to advance arguments or theories that could and should have been made before the district court rendered a judgment.'" Id. (quoting LB Credit Corp. v. Resolution Trust Corp., 49 F.3d 1263 (7th Cir. 1995)).

Contrary to Defendants' arguments, Magistrate Judge Cole's Report found that: (1) we need not conduct an evidentiary hearing to determine statutory damages in this case; (2) the Lanham Act authorizes $2.5 million in statutory damages in this case; and (3) Mrs. Hazemi's arguments were insufficient to show that the court erred in holding her jointly and severally liable.

Defendants now object to the Report and argue that we should grant their Rule 59(e) motion because: (1) the court failed to make specific findings and conduct an evidentiary hearing regarding the amount of statutory damages; (2) the maximum statutory damages recoverable under the Lanham Act is $1 million based on the facts of this case; and (3) Plaintiff's Second Amended Complaint did not request statutory damages under the Lanham Act. We address each of these objections in turn below.

A. Objections to the Statutory Damages Calculation

Defendants argue that Magistrate Judge Cole erred in denying its Rule 59(e) motion because Plaintiff never produced evidence sufficient to justify the statutory damage award in this case. Specifically, Defendants now argue for the first time that we were required to weigh the seven factors listed in the Copyright Act in order to award statutory damages in this case.*fn3 (See Def. Objection at 2-4).

While courts have held that the seven factors under the Copyright Act offer some guidance in Lanham Act cases, see, e.g., Gucci v. Am. Inc. v . Duty Free Apparel, Ltd., 315 F. Supp. 2d 511, 520 (S.D.N.Y. 2004), courts are "not required to follow any rigid formula" when applying these factors. See Chi-Boy Music v. Charlie Club, 930 F.2d 1224, 1229 (7th Cir. 1991). In addition, Magistrate Judge Cole acknowledged these factors in his September 10, 2007 Report and found that they weighed against Defendants not only because they are deemed to have acted willfully by virtue of the default judgment, but also because their repeated discovery abuses prevented actual damages from being proven. (See 9/10/07 Report at 5, 6, 9 (Case No. 03-5311, Docket No. 197)). Thus, we find that Defendants' objection lacks merit.

To the extent that Defendants repeat their request for an evidentiary hearing and/or trial in this case to determine willfulness, we again find that this argument is without merit.*fn4 As we have previously indicated, because we entered a default judgment in this case, all allegations of the Plaintiff's complaint are taken as true. See Cass County Music Co. v. Muedini, 55 F.3d 263, 266 (7th Cir. 1955).*fn5 By virtue of this rule, Defendants are deemed to have acted willfully. (See Second Am. Compl. ¶ 20 (alleging that Defendants acted "with the intent to confuse and mislead the public")).*fn6

In addition to the above factors, Defendants also argue that we were required to conduct an evidentiary hearing on statutory damages. Defendants rely upon Dundee Cement Co. v. Howard Piper Concrete Products, Inc., for the proposition that even after a default judgment, a hearing on damages is required unless "the amount claimed is liquidated or capable of ascertainment from definite figures contained in the documentary evidence or in detailed affidavits." 722 F.2d 1319, 1323 (7th Cir. 1983).*fn7 Magistrate Judge Cole distinguished Dundee Cement, however, because it did not involve statutory damages. (See Report at 2; see also 9/10/07 Report at 6 (explaining that no evidentiary hearing is necessary because "cases like this, ...


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