United States District Court, E.D. Virginia, Alexandria Division
November 7, 2016
360 PAINTING, LLC, Plaintiff,
CELESTINE OBI, Defendant.
REPORT AND RECOMMENDATION
D. Davis United States Magistrate Judge
matter is before the Court on Plaintiffs Motion for Default
Judgment against Defendant Celestine Obi
("Defendant") pursuant to Federal Rule of Civil
Procedure 55(b)(2). (Dkt. No. 12.) After neither Defendant
nor a licensed attorney for Defendant appeared at the hearing
on August 26, 2016, the undersigned Magistrate Judge took
this matter under advisement to issue this Report and
Recommendation. Upon consideration of the Complaint, the
Motion for Entry of Default Judgment, and the supporting
documents, the undersigned Magistrate Judge makes the
following findings and recommends that Plaintiffs Motion be
360 Painting, LLC ("Plaintiff) filed the Complaint on
August 20, 2015, for breach of contract seeking damages and
injunctive relief. Plaintiff has moved for default judgment
against Defendant and seeks damages in the amount of $265,
000; an injunction permanently enjoining Defendant from
utilizing Plaintiffs trade secrets or holding itself out to
the public as a franchise of Plaintiff 360 Painting; and an
Order requiring Defendant to file with the Court a report
under oath setting forth in detail the manner in which
Defendant has complied with the injunction, including
returning Plaintiffs trade secrets. (Dkt. No. 12 at 3.)
Jurisdiction and Venue
of the Federal Rules of Civil Procedure provides for the
entry of default judgment when "a party against whom a
judgment for affirmative relief is sought has failed to plead
or otherwise defend." Fed.R.Civ.P. 55(a). The court must
have both subject matter and personal jurisdiction over a
defaulting party before it can render a default judgment.
Court has subject matter jurisdiction over the claims
pursuant to 28 U.S.C. § 1332(a)(1) because diversity of
citizenship exists between Plaintiff and Defendant and the
amount in controversy exceeds $75, 000. The Complaint alleges
damages in the amount of $265, 000 exclusive of interest and
fees, thus meeting the amount in controversy requirement.
(Compl. ¶ 3.) As to citizenship, Plaintiff is a Virginia
corporation, wholly owned and Operated by Paul E. Flick,
whose principal residence is in Virginia; additionally, 360
Painting, LLC's principal place of business is also in
Virginia. (Compl. ¶ 1.) Defendant Celestine Obi is an
individual whose principal residence is in Florida. (Compl.
¶ 1.) Because Plaintiff and Defendant have complete
diversity of citizenship and the amount in controversy
exceeds $75, 000 (Compl. ¶ 3), this Court has subject
matter jurisdiction over this case.
Court has personal jurisdiction over Defendant pursuant to
the forum selection clause in the contract. (Compl.
¶¶ 3, 29.) Forum selection clauses are prima
facie valid. Insight Holding Grp., LLC v. Sitnasuak
Native Corp., 685 F.Supp.2d 582, 587 (E.D. Va. 2010)
(citing Paul Bus. Sys., Inc. v. Canon U.S.A., Inc.,
397 S.E.2d 804, 807 (Va. 1990) (holding that a forum
selection clause should be enforced unless the objecting
party establishes otherwise)). A valid forum selection clause
"may act as a waiver to objections to personal
jurisdiction." Consulting Eng'rs Corp. v.
Geometric Ltd., 561 F.3d 273, 281 n.ll (4th Cir. 2009)
(citing Nat'l Equip. Rental, Ltd. v. Szukhent,
375 U.S. 311, 315-16 (1964)). Defendant has not contested the
validity of the forum selection clause. Therefore, the forum
selection clause is valid, and this Court has personal
jurisdiction over Defendant.
is proper in this District pursuant to 28 U.S.C. §
1391(b)(2) because a substantial part of the omissions giving
rise to the claims occurred in this judicial district.
(Compl. ¶ 3.) Furthermore, forum selection clauses are
generally enforced as to selection of venue. Albemarle
Corp. v. AstraZeneca UK Ltd., 628 F.3d 643, 649 (4th
Cir. 2010). Defendant has consented to this venue by prior
agreement and has agreed to be subject to the jurisdiction of
this Court. (Compl. ¶¶ 3, 29.) Venue and
jurisdiction are therefore proper in this Court.
Service of Process
court to have personal jurisdiction over a defendant for the
purpose of entering default judgment, the plaintiff must
properly serve the defendant under federal or state law.
Miss. Publ'g Corp. v. Murphree, 326 U.S. 438,
444-45 (1946) (stating that "service of summons is the
procedure by which a court having venue and jurisdiction of
the subject matter of the suit asserts jurisdiction over the
person of the party served"); Cent. Operating Co. v.
Util. Workers of Am., 491 F.2d 245, 249-51 (4th Cir.
1974) (reversing the district court's entry of default
judgment because the court lacked personal jurisdiction where
the plaintiff failed to effectively serve the defendant with
summons and complaint). The Federal Rules of Civil Procedure
provide the manner in which service must occur.
Rule of Civil Procedure 4(e) governs service upon an
individual and allows service by "delivering a copy of
the summons and of the complaint to the individual personally
[or] leaving a copy of each at the individual's dwelling
or usual place of abode with someone of suitable age and
discretion who resides there." Fed.R.Civ.P.
4(e)(2)(A)-(B). On September 24, 2015, a certified process
server served the Defendant with the Summons and Complaint at
his dwelling. (Dkt. No. 4.) Therefore, Plaintiff properly
served Defendant pursuant to Rule 4(e).
Grounds for Default
August 20, 2015, Plaintiff filed its Complaint against
Defendant seeking damages and injunctive relief. (Dkt. No.
1.) A certified process server served Defendant on September
24, 2015. (Dkt. No. 4.) On April 20, 2016, after Defendant
failed to respond, the Clerk of Court entered default against
Defendant. (Dkt. No. 8.) On August 11, 2016, Plaintiff filed
the pending Motion for Default Judgment. (Dkt. No. 12.) This
Court held a hearing on the Motion on August 26, 2016. (Dkt.
No. 18.) After Defendant failed to appear at the August 26,
2016 hearing, the undersigned Magistrate Judge took this
matter under advisement to issue this Report and
FINDINGS OF FACT
full review of the pleadings, the undersigned Magistrate
Judge finds that Plaintiff has established the following
facts. Plaintiff 360 Painting is the licensor of the 360°
Painting System service. (Compl. ¶ 4.) Plaintiff has
licensed others to operate painting system services
businesses identified with the 360° Painting service mark
designated by 360 Painting as part of the 360° Painting
system (the "Proprietary Mark"), and to utilize
confidential methods and procedures developed by 360 Painting
for the operation of 360° Painting franchises.
(Id.) The Proprietary Mark is registered with the
United States Patent and Trademark Office and the
registration is in full force and effect. (Compl. ¶ 5.)
Plaintiff has given public notice of the registration and
Proprietary Mark as provided in 15 U.S.C. § 1111.
(Id.) Additionally, Plaintiff has acquired common
law rights with respect to the trade dress ("Trade
Dress") that is common to 360 Painting business
locations. (Compl. ¶ 7.)
Proprietary Mark and Trade Dress are distinctive and are
known as identifiers of quality painting services,
benefitting 360 Painting's business reputation. (Compl.
¶ 8.) Plaintiff provided trade secrets to Defendant for
Defendant's use including training and a confidential
operations manual. (Compl. ¶ 9.) The confidential manual
includes training and printed manuals, computerized documents
or software, information provided on the internet,
audiotapes, videotapes, and information in other forms that
Plaintiff adopts periodically for use with its 360 Painting
system and training (the "Trade Secrets").
(Id.) These materials containing the Trade Secrets
are confidential, copyrighted, protected from disclosure to
third parties, and are exclusive property of 360 Painting;
Plaintiff 360 Painting requires return of such materials at
the end of the franchise term. (Id.)
Breach of Contract
was a party to a franchise agreement (the "Franchise
Agreement") entered into on September 3, 2014, that
authorized operation of a 360 Painting Business (the
"Business"), operating out of the principal place
of business located at 2005 Highway Fall Place, Brandon,
Florida, using the Proprietary Mark, Trade Dress, and Trade
Secrets of 360 Painting. (Compl. ¶ 11.) Defendant
operated the Business identified in the Franchise Agreement
using the Proprietary Mark, Trade Dress, and Trade Secrets of
360 Painting. (Compl. ¶ 12.)
has performed its obligations pursuant to the contract.
(Compl. ¶ 31.) Defendant has failed to abide by the
terms of the Franchise Agreement by failing to pay royalty
fee payments or marketing fund contributions. (Compl.
¶¶ 31-33.) On March 5, 2015, Plaintiff provided
Defendant with written notification of default of the
Franchise Agreement and an opportunity to cure the default.
(Compl. ¶ 34.) Defendant did not timely cure the
default, and on May 6, 2015, Plaintiff provided Defendant
written notice of termination of its Franchise Agreement.
(Compl. ¶¶ 35-36.)
information and belief, Defendant failed to return the Trade
Secrets, which it is obligated to return upon termination of
the Franchise Agreement. (Compl. ¶ 37.) Defendant failed
to cease using Plaintiffs Proprietary Mark, Trade Dress, and
Trade Secrets upon termination of the Franchise Agreement,
and continues to operate the Business using Plaintiffs
Proprietary Mark, Trade Dress, and Trade Secrets without
Plaintiffs authorization. (Compl. ¶ 38.) Defendant
continues to operate the website
without Plaintiffs authorization. (Compl. ¶ 39.)
Defendant failed to cease representing to the public that
Defendant is a franchise of 360 Painting after Plaintiff
terminated the Franchise Agreement. (Compl. ¶ 40.)
has suffered harm of $65, 000 from Defendant's breach of
contract. (Compl. ¶ 41.) Plaintiff has been
substantially and irreparably harmed by Defendant's
conduct and the unauthorized use of Plaintiff s Proprietary
Mark, Trade Dress, and Trade Secrets. (Compl. ¶ 42.)
acts, practices, and conduct constitute an infringing use in
commerce of a reproduction, counterfeit, copy, or colorable
imitation of Plaintiff s registered Proprietary Mark in
connection with the sale, offering for sale, and advertising
of services, which is likely to cause confusion, mistake, or
to deceive the public in violation of 15 U.S.C. §
1114(1). (Compl. ¶ 44.) As a direct and
proximate cause of Defendant's infringement, Plaintiff
has been, and is likely to be, substantially injured in its
business, including its goodwill and reputation, resulting in
lost revenues and profits and diminished goodwill. (Compl.
¶ 45.) Plaintiff has no adequate remedy at law because
Plaintiffs Proprietary Mark is unique and represents to the
public Plaintiffs identity, reputation, and goodwill, such
that damages alone cannot fully compensate Plaintiff for
Defendant's misconduct. (Compl. ¶ 46.)
continued use of Plaintiff s Proprietary Mark and Trade Dress
will cause Plaintiff irreparable injury. (Compl. ¶ 47.)
This threat of future injury to Plaintiffs business identity,
goodwill, and reputation requires injunctive relief to
prevent Defendant's continued use of Plaintiff s
Proprietary Marks and Trade Dress, and to ameliorate and
mitigate Plaintiffs injuries. Plaintiff has suffered $200,
000 in damages from Defendant's infringement of Plaintiff
s Proprietary Mark and Trade Dress. (Compl. ¶ 48.)
EVALUATION OF PLAINTIFF'S COMPLAINT
of the Federal Rules of Civil Procedure provides for the
entry of default judgment when "a party against whom a
judgment for affirmative relief is sought has failed to plead
or otherwise defend." Fed.R.Civ.P. 55(a). A defendant in
default concedes the factual allegations of the complaint.
See, e.g., DIRECTV, Inc. v. Rawlins, 523 F.3d 318,
322 n.2 (4th Cir. 2008); Partington v. Am. Int'l
Specialty Lines Ins. Co., 443 F.3d 334, 341 (4th Cir.
2006); Ryan v. Homecomings Fin. Network, 253 F.3d
778, 780 (4th Cir. 2001). Default does hot, however,
constitute an admission of the adversary's conclusions of
law, and is not to be "treated as an absolute confession
by the defendant of his liability and of the plaintiffs right
to recover." Ryan, 253 F.3d at 780 (quoting
Nishimatsu Constr. Co., Ltd v. Houston Nat'l
Bank, 515 F.2d 1200, 1206 (5th Cir. 1975)). Instead, the
Court must "determine whether the well-pleaded
allegations in [the plaintiffs] complaint support the relief
sought in [the] action." Id.
in issuing this Report and Recommendation, the undersigned
Magistrate Judge must evaluate Plaintiffs claims against the
standards of Rule 12(b)(6) of the Federal Rules of Civil
Procedure to ensure that the Complaint contains plausible
claims upon which relief may be granted. See Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (explaining the analysis
for examining a plaintiffs claims under a 12(b)(6) motion to
dismiss). To meet this standard, a complaint must set forth
"sufficient factual matter, accepted as true, to state a
claim for relief that is plausible on its face."
Id. (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). In determining
whether allegations are plausible, the reviewing court may
draw on context, judicial experience, and common sense.
Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir.
2009) (citing Iqbal, 556 U.S. at 679).
Breach of Contract
establish a claim for breach of contract under Virginia Law,
plaintiff must show that (1) the defendant had a legally
enforceable obligation, (2) the defendant materially breached
that obligation, and (3) such breach caused the plaintiff
damage. Filak v. George, 594 S.E.2d 610, 614 (Va.
2004) (citations omitted). A plaintiff must prove damages
with reasonable certainty; contingent, speculative, or
uncertain damages are not recoverable. See Sunrise
Continuing Care, LLC v. Wright, 671 S.E.2d 132, 135 (Va.
Plaintiff alleges, and by failing to answer, Defendant
concedes, that Plaintiff 360 Painting and Defendant Celestine
Obi entered into a legally enforceable obligation. Pursuant
to the agreement, Defendant agreed to pay Plaintiff royalty
fees in the amount of five percent of the net sales of the
Business up to $500, 000 in a calendar year (Compl. ¶
14), marketing fund contributions in the amount of two
percent of the preceding week's net sales (Compl. ¶
15), a $100 late charge per delinquent operating statement
per week if Defendant fails to submit a statement of net
sales to Plaintiff for the prior week (Compl. ¶ 18), a
two percent fee for unpaid royalties if Defendant fails to
make royalty fee payments and marketing fund contributions
(Compl. ¶ 19), a one-and-a-half percent interest per
month on all past due royalty fee payments and market fund
contributions (Compl. ¶ 20), and a $100 late fee payment
for all overdue payments (Compl. ¶ 21). Upon termination
of the Franchise Agreement due to Defendant's default,
Defendant must pay liquidated damages in a lump sum of $50,
000. (Compl. ¶ 28.) Defendant is also responsible for
the costs and expenses, including reasonable attorney's
fees, incurred in obtaining relief for the enforcement of the
Franchise Agreement between the parties. (Compl. ¶ 27.)
and Defendant had a legally enforceable agreement (Compl.
¶ 14), which Defendant materially breached (Compl.
¶¶ 14-18), causing Plaintiff damages in the amount
of $65, 000. (Compl. ¶ 41.) These damages are not
speculative and can be proven with reasonable certainty.
Therefore, the undersigned finds that Plaintiff has properly
established a breach of contract claim against Defendant and
recommends that Plaintiffs Motion for Default Judgment be
granted as to the breach of contract claim.
contends that Defendant is liable for violations of certain
provisions of 15 U.S.C. § 1114(1),  also known as the
Lanham Act, for trademark infringement. (Compl. ¶ 44.)
The Lanham Act prohibits the use in commerce of "any
reproduction, counterfeit, copy, or colorable imitation of a
registered mark, " which is "likely to cause
confusion, or to cause mistake, or to deceive" the
public. 15 U.S.C. § 1114. A defendant may be held liable
for trademark infringement under this provision when the
plaintiff establishes that it has a valid, protectable
trademark and that the defendant's "use of a
colorable imitation of the trademark is likely to cause
confusion among consumers." Lone Star Steakhouse
& Saloon, Inc. v. Alpha of Va., Inc., 43 F.3d 922,
930 (4th Cir. 1995); see also Phillip Morris Inc. v.
Midwest Tobacco Inc., No. 88-1292-A, 1988 WL 150693, at
*7 (E.D. Va. Nov. 4, 1988). When a franchisee continues to
use the franchisor's trademarks following the termination
of an agreement between the parties, courts have found such
use likely to cause confusion among consumers. Allegra
Network LLC v. Reeder, No. 1:09-cv-912, 2009 WL 3734288,
at *2 (E.D. Va. Nov. 4, 2009); Prosperity Sys., Inc. v.
Ali, No. CCB-10-2024, 2010 WL 5174939, at * 2 (D. Md.
Dec. 15, 2010) (citing Merry Maids Ltd
P'ship v. Kamara, 33 F.Supp.2d 443, 445 (D. Md.
Plaintiff seeks an injunction, claiming irreparable injury to
Plaintiffs business identity, goodwill, and reputation.
(Compl. ¶ 47.) The grant of a preliminary injunction is
an extraordinary remedy to be applied in limited
circumstances. Direx Israel, Ltd. v. Breakthrough Med.
Corp., 952 F.2d 802, 811 (4th Cir. 1991). The party
seeking an injunction must normally show that it would suffer
irreparable injury absent the injunctive relief. Lone
Star, 43 F.3d at 938. In the Fourth Circuit, the
plaintiff must demonstrate the following to be granted a
preliminary injunction: (1) the plaintiff is likely to
succeed on the merits; (2) the plaintiff is likely to suffer
irreparable harm in the absence of preliminary relief; (3)
the balance of equities tips in the plaintiffs favor; and (4)
an injunction is in the public interest. Real Truth About
Obama v. Fed. Election Comm 'n, 575 F.3d 342, 347
(4th Cir. 2009).
the plaintiff must be likely to succeed on the merits.
Id. In that regard, to prevail on claims of
trademark infringement, a plaintiff must show that it
possesses a mark; that defendant used the mark; that the
defendant's use of the mark occurred in commerce; that
the defendant used the mark in connection with the sale,
offering for sale, distribution, or advertising of goods and
services; and that the defendant used the mark in a manner
likely to confuse customers. Allegra Network LLC,
2009 WL 3734288, at *2; Huthwaithe, Inc. v. Sunrise
Assisted Living, Inc., 261 F.Supp.2d 502, 512 (E.D. Va.
2003). When a former franchisee continues to operate under
the franchisor's trademarks, courts have held there is a
high risk of consumer confusion because customers will
continue to associate the former franchisee with the
franchisor. Allegra Network LLC, 2009 WL 3734288, at
*2; Merry Maids, 33 F.Supp.2d at 445. In such
situations, courts have found that there is a likelihood of
success on the merits for a trademark infringement claim.
the plaintiff must show that it is likely to suffer
irreparable harm absent an injunction. Real Truth About
Obama, 575 F.3d at 347. A finding of irreparable harm
usually follows a finding of unlawful use of a trademark and
a likelihood of confusion. Lone Star, 43 F.3d at 930
(internal citations omitted); see also Ledo Pizza Sys.,
Inc. v. Singh, 983 F.Supp.2d 632, 639 (2013). When a
terminated franchisee continues to operate its former
franchise, the franchisor loses control of its business
reputation and suffers irreparable harm, for which there may
be no meaningful monetary recovery available. Merry
Maids, 33 F.Supp.2d at 445; Long John Silver's,
Inc. v. Wash. Franchise, Inc., No. 80-540-A, 1980 WL
30249, at *1 (E.D. Va. June 24, 1980). Additionally,
irreparable harm may arise in the franchise context
"where there is an inherent injury to the goodwill and
reputation of the plaintiff resulting from the
"[v]iolation of a trademark." Dynamic Aviation
Grp. Inc., DA2, LLC v. Dynamic Int'l Airways, LLC,
No. 5:15-cv-00058, 2016 WL 1247220, at *27 (W.D. Va. Mar. 24,
2016); NaturalLawn of Am., Inc. v. W. Grp., LLC, 484
F.Supp.2d. 392, 401 (D. Md. 2007); Merry Maids, 33
F.Supp.2d at 445.
the balance of equities favors a preliminary injunction where
there is no evidence that the defendant will suffer
irreparable harm from not being able to use the plaintiffs
trademarks. Allegra Network LLC, 2009 WL 3734288, at
*3. Furthermore, the balance of equities generally favors the
franchisor, especially when the defendant's hardships
have been created by its own willful acts. Ledo Pizza
Sys., Inc., 983 F.Supp.2d at, 640.
the public interest favors granting a preliminary injunction
to prevent trademark infringement because the public interest
is served by preventing consumer confusion. Allegra
Network LLC, 2009 WL 3734288, at *3; Merry
Maids, 33 F.Supp.2d at 446.
alleges, and Defendant concedes by failing to answer, that
after termination of the franchise agreement, Defendant has
continued to operate, without authorization, Plaintiffs
Proprietary Mark, Trade Dress, and Trade Secrets. (Compl.
¶ 37.) Pursuant to the agreement between Plaintiff and
Defendant, upon termination of the franchise agreement,
Defendant is required to immediately cease using the
Proprietary Mark, signs, slogans, symbols, advertising
materials, or other materials bearing Plaintiffs Proprietary
Mark. (Compl. ¶ 24). Additionally, upon termination of
the franchise agreement, Defendant must cease to represent to
the public or hold itself out to be a present or former
franchisee of Plaintiffs business, or represent that
Defendant has the right to use Plaintiffs painting system or
Proprietary Mark. (Compl. ¶ 25.)
case, Plaintiff alleges sufficient facts to establish a
trademark infringement claim and irreparable injury
warranting an injunction. Plaintiff has established that it
is likely to succeed on the merits. Plaintiff has established
its Proprietary Mark (Compl. ¶ 6), that Defendant used
the mark in commerce and in connection with the sale of goods
and services (Compl. ¶¶ 38-40), and in a manner
that is likely to confuse the public because Plaintiffs
Proprietary Mark is unique and represents to the public
Plaintiffs identity, reputation, and goodwill. (Compl.
¶¶ 37-43, 46).
has established that it is likely to suffer irreparable harm
in the absence of a preliminary injunction. Plaintiff has
established that substantial injury to its business,
including goodwill and reputation, is likely resulting in
lost revenues and profits and diminished goodwill. Defendant
is not authorized to use Plaintiffs Proprietary Mark because
Defendant breached the contract with Plaintiff and the
franchise agreement was subsequently terminated. (Compl.
¶¶ 30-31, 36.) Defendant has failed to cease
representing to the public that Defendant is a franchisee of
Plaintiff. (Compl. ¶¶ 38-40.) Furthermore, there is
no evidence that Defendant will suffer harm from not being
able to use Plaintiffs trademark, and the balance of equities
favors a preliminary injunction. Finally, the public interest
is served by preventing consumer confusion and granting an
injunction against Defendant Celestine Obi.
has suffered harm in the amount of $200, 000 for the
infringement of its Proprietary Mark, Trade Secrets, and
Trade Dress. Plaintiff has pled sufficient facts to prove
trademark infringement and to grant a preliminary injunction.
Therefore, the undersigned finds that Plaintiff has properly
established a trademark infringement claim against Defendant
and recommends that Plaintiffs Motion for Default Judgment be
granted as to the trademark infringement claim.
default case, the plaintiffs factual allegations are accepted
as true for all purposes except in determining damages.
See Ryan v. Homecomings Fin. Network, 253 F.3d 778,
780 (4th Cir. 2001). To support a claim for damages, a
plaintiff must provide an appropriate basis for the Court to
determine whether it is entitled to the relief sought.
See Id. A default judgment "must not differ in
kind from, or exceed in amount, what is demanded in the
pleadings." Fed.R.Civ.P. 54(c). Furthermore, in default
cases in this district, "there can be no recovery over
the amount pled in the complaint." Sheet Metal
Workers' Nat'l Pension Fund v. Frank Torrone
& Sons, Inc., No. 1:04cv1109, 2005 WL 1432786, at *8
(E.D. Va. June 1, 2005); see also Cumberlander v. KCL
Site Servs., LLC, No. 08-994, 2009 WL 4927144, at *9
(E.D. Va. Dec. 17, 2009). However, "[t]he exact amounts
for interest, costs, and attorney's fees need not be pled
specifically in the Complaint." Sheet Metal
Workers' Nat'l Pension Fund, 2005 WL
1432786, at *9
discussed above, Plaintiff has stated facts sufficient to
show Defendant Celestine Obi is liable to Plaintiff for $65,
000 for breach of contract and $200, 000 for trademark
infringement. Furthermore, Plaintiff has stated facts
sufficient to grant a preliminary injunction, enjoining
Defendant from holding itself out to be a franchisee of
Plaintiff or utilizing Plaintiffs Trade Secrets, Trade Dress,
or Proprietary Mark.
reasons set forth above, the undersigned Magistrate Judge
recommends the entry of default judgment in favor of
Plaintiff 360 Painting, LLC and against Defendant Celestine
Obi. The undersigned also recommends that the order contain
the specific language requested by Plaintiff on page three
and four of its Motion for Default Judgment. Specifically the
undersigned recommends that the order instruct Defendant to
return any Trade Secrets it still possesses. The undersigned
also recommends that the order instruct Defendant to file
under oath a written report setting forth in detail the
manner in which Defendant has complied with the injunction,
including the return of Plaintiff s Trade Secrets, within
fifteen days of service of any injunction.
mailing copies of this Report and Recommendation, the parties
are notified as follows. Objections to this Report and
Recommendation, pursuant to 28 U.S.C. § 636 and Rule
72(b) of the Federal Rules of Civil Procedure, must be filed
within fourteen (14) days of service on you of this Report
and Recommendation. A failure to file timely objections to
this Report and Recommendation waives appellate review of the
substance of the Report and Recommendation and waives
appellate review of a judgment based on this Report and
Clerk is directed to send a copy of this Report and
Recommendation to all counsel of record and to the Registrant
at the following address:
 Plaintiff cites to 15 U.S.C. §
1141(1) in its complaint (Compl. ¶ 44), but uses the
language of 15 U.S.C. § 1114(1), which is the applicable
statute for this claim. Therefore, the undersigned will
analyze the trademark infringement claim under 15 U.S.C. 6
 Pursuant to the contract between the
parties, Defendant agreed to submit to the exclusive
jurisdiction and venue of this court. Furthermore, a
substantial part of the omissions giving rise to the claims
occurred in Virginia. Thus, Virginia law governs this cause
 See supra footnote 1 and