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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14–11814
Non-Argument Calendar
________________________
D.C. Docket No. 0:12–cv–61580–RSR
BLANCO GMBH + CO. KG,
Plaintiff-
Counter Defendant-
Appellee,
versus
VITO ANTONIO LAERA,
Defendant-
Counter Claimant-
Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(July 16, 2015)
Before MARCUS, WILLIAM PRYOR, and JULIE CARNES, Circuit Judges.
PER CURIAM:
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Defendant Vito Antonio Laera (“Defendant”) appeals from a number of
post-judgment orders issued by the district court in a trademark infringement case.
Upon review of the record and the parties’ briefs, and for the reasons set forth
below, we AFFIRM the orders of the district court.
I. BACKGROUND
Plaintiff Blanco GmbH + Co. KG (“Plaintiff”) is a German corporation that
manufactures sinks, faucets, and kitchen accessories, which products the company
distributes internationally, including in the United States. Defendant is President
of co-defendants Vlanco Industries, LLC (“Vlanco”) and G-Tech-I, Inc. (“G-Tech-
I”; with Vlanco, the “Corporate Defendants”; with Defendant and G-Tech-I,
“Defendants”), which companies also manufacture and distribute kitchen fixtures.1
In August 2012 Plaintiff filed a trademark infringement lawsuit against
Defendants, alleging the latter were “blatantly infringing its BLANCO marks by
selling VLANCO-branded products” identical to Plaintiff’s sinks and faucets.
Plaintiff further alleged that it wrote to Defendants upon discovery of the allegedly
infringing actions to request that they desist selling their VLANCO products and
assign to Plaintiff their mark in the name. Defendants did not desist, however, but
allegedly doubled-down by appropriating Plaintiff’s marketing efforts for their
1
Defendant claims on appeal that he has never served as President of Vlanco, though he
does concede that he was, at one point, President of G-Tech-I.
2
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own use, filing twenty-three applications with the United States Trademark Office,
petitioning the Trademark Office to cancel one of Plaintiff’s marks, and registering
“a large number of domain names containing the infringing designations BLANCO
or VLANCO, with the specific intention of diverting consumers from
consummating sales of Plaintiff’s goods bearing the BLANCO [m]arks.”
Plaintiff’s lawsuit did not last long—at least initially—proceeding only to
the motion to dismiss stage, at which point the parties reached a settlement during
mediation. Consequently, on April 3, 2013, they jointly filed a Stipulation of
Dismissal and request for the court to enter a final judgment. The district court
obliged shortly thereafter by entering its Final Judgment Upon Consent (the
“Consent Judgment”), over which it retained jurisdiction to ensure the parties’
compliance, and closing the case.
Generally, the terms of the Consent Judgment (1) enjoined Defendants from
attempting to register as a mark with the Trademark Office or as an internet
domain any term similar to “Blanco[,]” and from opposing Plaintiff’s applications
with the Trademark Office regarding such term; (2) obligated Defendants to cancel
a number of pending trademark applications; and (3) required Defendants to
transfer to Plaintiff the infringing internet domain names they previously
registered. Should Defendants breach any of the terms of the Consent Judgment, a
liquidated damages clause required them to pay Plaintiff $150,000 per violation
3
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and reimburse Plaintiff for any attorneys’ fees and costs it incurred recovering
those damages.
Not long after the district court closed the case, Plaintiff moved the court to
reopen it and impose sanctions upon Defendants after discovering they had
violated several provisions of the Consent Judgment. In short, Plaintiff learned
that Defendants, through the use of aliases, fictitious persons, or agents, (1) filed
applications with the Trademark Office that concerned prohibited marks, (2)
registered fifty-five new domain names containing versions of the prohibited
marks, (3) redirected those domain names and twenty-three others to a website
“using the Prohibited Designation BLANCO[,]” and (4) refused to transfer domain
names to Plaintiff in accordance with the Consent Judgment, transferring them to
third parties instead.
A second, subsequent motion for contempt alerted the court that Defendant
was committing further violations of the Consent Judgment by prosecuting two
lawsuits—both in federal court, one in the District of South Carolina and one in the
Southern District of Florida—in which he sought to circumvent the Consent
Judgment by obtaining verdicts that would enable the Corporate Defendants to use
the prohibited marks. 2 And Defendant’s violations of the Consent Judgment did
2
Plaintiff speculates that Defendant, by filing the South Carolina action on behalf of the
Corporate Defendants and a third-party alias against himself, had the additional goal of rendering
himself “judgment-proof” in the present lawsuit.
4
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not stop there: he also moved the Trademark Office to “suspend the
cancellation/opposition proceedings instituted by Plaintiff against [Defendant’s]
trademark applications that are the subject of the consent judgment, and thereby
disregard[ed]” the district court’s order to the contrary.
The district court referred Plaintiff’s motions to a magistrate judge for
review, who issued his first Report and Recommendations on December 12, 2013.
In relevant part, the magistrate judge recommended that the district court grant the
motions for contempt, having found that Plaintiff made a prima facie showing that
Defendants violated the Consent Judgment, which the Defendants failed to rebut.
As sanctions, in accordance with the Consent Judgment’s liquidated damages
clause, the magistrate judge recommended imposing four fines of $150,000 against
Defendants—one for each category of violation committed, i.e., the licensing of
and registering domain names for prohibited marks, filing trademark applications
for prohibited marks, registering prohibited domain names, and failing to transfer
certain domain name registrations to Plaintiff. While the Consent Judgement
technically would have authorized a fine of $150,000 for each violation
Defendants committed, the magistrate judge felt that such an award would be
excessive given that all the violative actions traced back to Defendant, Plaintiff’s
injuries were not quantifiable, and an award of $600,000 would effect the purpose
of the liquidated damages clause by coercing Defendant’s compliance with the
5
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terms of the Consent Judgment. In addition, the magistrate judge recommended
that the court grant Plaintiff various injunctive relief and award it attorneys’ fees
and costs, both in accordance with the Consent Judgment.
After considering the motions, evidence, and the parties’ objections, the
district court agreed that Plaintiff established a prima facie case of contempt, which
Defendants failed to rebut, and adopted the magistrate judge’s Report and
Recommendations. Accordingly, the court found that Plaintiff was entitled to
$600,000 in liquidated damages, attorneys’ fees and costs, and injunctive relief as
provided for in the Consent Judgment. Additionally, the court ordered the
Trademark Office to “dismiss” three applications filed by an alias or agent of
Defendant.3
Following the district court’s adoption of the magistrate judge’s December
12, 2013 Report and Recommendations and issuance of its corresponding orders,
the parties filed a number of motions, two of which are pertinent to this appeal.
First, Plaintiff filed a Motion for Reconsideration of the court’s Amended Order
adopting the magistrate judge’s Report and Recommendations upon uncovering
further conduct of Defendants that violated the Consent Judgment. Specifically,
Plaintiff—a German corporation—learned that Defendants redirected twenty-three
3
Roughly a week after issuing its Order adopting the magistrate judge’s Report and
Recommendations, on January 21, 2014 the district court issued an Amended Order to correct its
instructions to the Trademark Office. That is, rather than “dismiss” the three pending trademark
applications, the court ordered the Trademark Office to “abandon [them] with prejudice[.]”
6
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domain names they previously owned to a website “featuring Adolf Hitler and
atrocious Nazi war crimes, as well as a link to Heinrich Blanc, the founder of
Plaintiff, implying his involvement with the[] atrocities.”4 Thus, an individual who
tried to visit Plaintiff’s American website would be redirected to a website “with
graphic photographs of the carnage caused by Nazi Germany[,]” Nazi propaganda,
and a pre-populated email field designed to allow the visitor to “receive ‘Nazi
White Wars Propaganda’, purportedly from Plaintiff[.]” For this conduct Plaintiff
requested that the court reconsider its Amended Order and excuse Plaintiff from
certain acts it must perform under the consent judgment, and also order Defendants
to pay Plaintiff’s attorneys’ fees.
Second, Defendant filed a motion to “Void for Vagueness” the parties’
Stipulation of Dismissal and Consent Judgment, insofar as those documents
pertained to him. Defendant’s motion did not allege that the Stipulation of
Dismissal and Consent Judgment were unconstitutionally vague, though, but
merely claimed that Plaintiff had “breached intentionally several times” its duties
under the Consent Judgment, and requested that the court void the above
documents so that Defendant could “live free from fear or the chilling effect of
unpredictable actions [of] [P]laintiff[.]”
4
This was not the first time Defendant claimed that Plaintiff was connected to Nazi
Germany. In a motion struck by a magistrate judge, Defendant alleged that Plaintiff had been in
“active concert with the German State (country) which committed the acts/crimes of” genocide,
slave/forced labor, crimes against humanity, and mass murder.
7
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The district court ruled on both motions on May 21, 2014. As to the former,
the court found Defendant’s actions to be “egregious and epitomiz[ing] bad
faith[,]” and further found that Defendant had abused the terms of the consent
judgment for the purpose of “besmirching Plaintiff’s business reputation.” Given
Defendant’s use of “the redirection process solely for nefarious reasons” and his
“multiple attempts to associate Plaintiff with Nazi war crimes[,]” the court granted
Plaintiff’s Motion for Reconsideration and awarded it fees and costs.
As to Defendant’s motion, the court denied such for its lack of “factual or
legal support . . . and fail[ure] to identify even a single provision [of the Stipulation
of Dismissal and Consent Judgment] that [Defendant] seeks to dispute as vague.”
Indeed, the court could not “discern any ambiguity from the terms of the Consent
Judgment, which expressly sets forth the acts that are proscribed and the specific
marks and designations that Defendants are enjoined from using[,]” and
consequently denied Defendant’s motion as “entirely frivolous[.]” Because
Defendant “has a history of submitting baseless filings” and “continu[ally]
abus[ing] [] the litigation process,” the district court also awarded Plaintiff its
attorneys’ fees incurred while defending the motion.
Two days later the district court ordered the Clerk of Court to enter
judgment in favor of Plaintiff and against Defendants, jointly and severally, for
$600,000. The court then adopted the magistrate judge’s May 12, 2014 Report and
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Recommendations regarding Plaintiff’s tabulation of the attorneys’ fees and costs
it incurred, filed in light of the multiple sanctions awarded to Plaintiff for
Defendant’s frivolous, abusive, and offensive conduct. In total, the court found
Defendants liable for $227,387 in attorneys’ fees and $7,247.31 in costs. Later,
upon Plaintiff’s motion, the court directed the Clerk to enter this judgment in
Plaintiff’s favor, which the Clerk did on June 19, 2014.5
Consistent with his motions practice, at numerous points throughout this
litigation, Defendant filed notices of appeal as to various actions taken by the
district court. Specifically, on April 23, 2014 he filed a notice of appeal of the
district court’s Amended Order adopting the magistrate judge’s December 12,
2013 Report and Recommendations. Plaintiff moved the Court to dismiss that
appeal for untimeliness, which motion we denied.
Defendant subsequently filed two amended notices of appeal so as to also
contest (1) the district court’s initial Order adopting the magistrate judge’s
December 12, 2013 Report and Recommendations, (2) Order granting Plaintiff’s
Motion for Reconsideration, (3) Order denying Defendant’s Motion to “Void for
Vagueness” the Consent Judgment, (4) Order directing the Clerk of Court to Enter
Judgment for Plaintiff, (5) Order adopting the magistrate judge’s May 12, 2014
Report and Recommendations, (6) the magistrate judge’s May 12, 2014 Reports
5
The Clerk entered an Amended Judgment on June 24, 2014 to correct a scrivener’s
error.
9
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and Recommendations, (7) the Clerk of Court’s Entry of Judgment and Amended
Entry of Judgment for Plaintiff, and (8) “[a]l motions/orders/matters in this case,
including any and all pending motions or future motions[.]”
Following Defendant’s filing of his amended notices Plaintiff again moved
this Court to dismiss the appeal, which motion we granted in part and denied in
part. Specifically, we held that Defendant’s appeal was untimely as to the
magistrate judge’s May 12, 2014 Report and Recommendations, the district court’s
Order adopting such, and the Clerk of Court’s Entry of Judgment and Amended
Entry of Judgment for Plaintiff. We also dismissed the appeal as to any “orders
not in existence at the time the second amended notice of appeal was filed.” On
the other hand, we permitted Defendant’s appeal of the court’s Order adopting the
magistrate judge’s December 12, 2013 Report and Recommendations, as well as
“the other orders designated in [Defendant’s] notices of appeal not dismissed by
this Court[,]” to go forward.
Thus, presently before us on appeal are the district court’s (1) Amended
Order adopting the magistrate judge’s December 12, 2013 Report and
Recommendations; (2) initial Order adopting the magistrate judge’s December 12,
2013 Report and Recommendations; (3) Order granting Plaintiff’s Motion for
Reconsideration; (4) Order denying Defendant’s Motion to “Void for Vagueness”
the Consent Judgment; and (5) Order directing the Clerk of Court to Enter
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Judgment for Plaintiff. Now fully briefed, we turn to Defendant’s appeal of these
orders.
II. STANDARD OF REVIEW
We review for an abuse of discretion a district court’s order of civil
contempt, order on a motion for reconsideration, and order on a motion for relief
from a judgment. See Fed. Trade Comm’n v. Leshin, 618 F.3d 1221, 1231 (11th
Cir. 2010); Richardson v. Johnson, 598 F.3d 734, 740 (11th Cir. 2010); and BUC
Int’l Corp. v. Int’l Yacht Council Ltd., 517 F.3d 1271, 1275 (11th Cir. 2008). We
review de novo a district court’s ruling on a motion to set aside a judgment for
voidness. Stansell v. Revolutionary Armed Forces of Colombia, 771 F.3d 713, 736
(11th Cir. 2014).
III. ANALYSIS
Defendant proceeds pro se. While pro se litigants are afforded some
leniency, they still must comply with procedural rules. Moton v. Cowart, 631 F.3d
1337, 1340 n.2 (11th Cir. 2011) (collecting cases); Albra v. Advan, Inc., 490 F.3d
826, 829 (11th Cir. 2007). Defendant’s failure to do so here resolves this appeal.
A. We Do Not Consider Arguments Raised For the First Time on
Appeal
The substance of Defendant’s briefs on appeal focuses entirely upon the
alleged improprieties of attorneys involved in the case, which allegations, in his
Reply Brief, Defendant extends to the district court and magistrate judges. First,
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Defendant makes a number of claims about the conduct of certain attorneys, the
nub of which is that they represented they served him with documents when they
did not actually do so, divulged items he told them in confidence, and made a
number of misrepresentations to him and the court. Defendant believes this
alleged pervasive dishonesty violates a number of professional responsibility and
court rules, and, in his view, should subject the infringing individuals to
“discipline.” Defendant then makes similar assertions about the district court and
magistrate judges involved in the case, claiming they failed to serve him various
documents, improperly considered statements made by Plaintiff’s counsel, and
failed to conduct proceedings with order and decorum. Defendant asserts that
these actions breach the Code of Judicial Conduct and constitute due process
violations that “caused him harm and damage.”
However, Defendant did not first present these arguments to the district
court before presenting them to us in this appeal. 6 Generally, this Court does not
consider issues raised for the first time on appeal. Blue Cross & Blue Shield of
Ala. v. Weitz, 913 F.2d 1544, 1550 (11th Cir. 1990); Dean Witter Reynolds, Inc. v.
Fernandez, 741 F.2d 355, 360 (11th Cir. 1984). A number of exceptions to this
rule exist, see Princeton Homes, Inc. v. Virone, 612 F.3d 1324, 1329 n.2 (11th Cir.
6
While he did make the above claims in motions filed during later stages of the
proceedings, Defendant did not submit—nor did the court rule on—those motions before filing
his Second Amended Notice of Appeal. As noted in our January 28, 2015 order, the latter event
is the cutoff point for consideration in this appeal.
12
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2010), but none apply here. Indeed, “‘this circuit and the former Fifth Circuit have
consistently held that a court will not consider on appeal for the first time a
question that requires development of factual issues.’” Weitz, 913 F.2d at 1550
(quoting Troxler v. Owens-Ill., 717 F.2d 530, 533 (11th Cir. 1983)); see also
Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330–35 (11th Cir. 2004).
Consequently, Defendant’s claims regarding the conduct of the attorneys, district
court, and magistrate judges in this case are not properly before us, and we will not
consider these newly-raised issues.
B. Defendant Has Abandoned His Arguments Regarding the Orders
Properly Before Us On Appeal
With respect to the orders properly before the Court on appeal—those
adopting the magistrate judge’s December 12, 2013 Report and Recommendations,
granting Plaintiff’s Motion for Reconsideration, denying Defendant’s Motion to
“Void for Vagueness” the parties’ Stipulation of Dismissal and Consent Judgment,
and directing the Clerk of Court to enter judgment for Plaintiff—Defendant has
abandoned any arguments regarding their accuracy or error.
As noted, Defendant’s briefs focus entirely on the conduct of attorneys
involved in this case, the district court, and magistrate judges. Simply put,
Defendant makes no argument whatsoever about the propriety of the orders before
the Court in this appeal. His few, fleeting references to the challenged orders in his
statement of jurisdiction do not suffice. See Sapuppo v. Allstate Floridian Ins. Co.,
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739 F.3d 678, 681–82 (11th Cir. 2014) (“We have long held that an appellant
abandons a claim where he either makes only passing references to it or raises it in
a perfunctory manner without supporting arguments and authority.”).
“‘[T]he law is by now well settled in this Circuit that a legal claim or
argument that has not been briefed before the court is deemed abandoned and its
merits will not be addressed.’” Holland v. Gee, 677 F.3d 1047, 1066 (11th Cir.
2012) (quoting Access Now, Inc., 385 F.3d at 1330); see also Little v. T-Mobile
USA, Inc., 691 F.3d 1302, 1306 (11th Cir. 2012) (collecting cases). Although
briefs submitted by pro se parties receive a more liberal reading than those
submitted by counseled litigants, they are not exempted from this consequence:
“issues not briefed on appeal by a pro se litigant are deemed abandoned.” Timson
v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008). Thus, for his complete failure to
brief his issues with the orders before this Court on appeal, Defendant has
abandoned any claims he may otherwise have possessed. See Sapuppo, 739 F.3d
at 680–82 and Access Now, Inc., 385 F.3d at 1330.
A further point: “[w]e do not address arguments raised for the first time in a
pro se litigant’s reply brief[,]” as they are not properly before us. Timson, 518
F.3d at 874; Lovett v. Ray, 327 F.3d 1181, 1183 (11th Cir. 2003) (citing Walker v.
Jones, 10 F.3d 1569, 1572 (11th Cir. 1994)). So, to the extent that Defendant
questions the district court’s and magistrate judges’ compliance with the Code of
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Judicial Conduct, he has similarly abandoned those concerns by omitting them
from his opening brief and asserting them only in his Reply.
Accordingly, the orders of the district court before us on appeal are hereby
AFFIRMED.
C. The District Court Did Not Abuse Its Discretion, Nor are the
Stipulation of Dismissal and Consent Judgment Void for
Vagueness
Were we to consider the substance of the district court’s orders, though, we
would not arrive at a different result. First, the district court did not abuse its
discretion in finding that Plaintiff established a prima facie case of contempt that
Defendants failed to rebut, nor did it abuse its discretion in adopting the magistrate
judge’s December 12, 2013 Report and Recommendations to that effect. 7 Below,
Plaintiff presented evidence that Defendant—either personally, through aliases, or
by agents—attempted to register prohibited trademarks, registered prohibited
domain names, and redirected over twenty domains to a website filled with
“atrocious” Nazi images and propaganda, among other things. Because this
presentation would permit “‘a reasonable person [to] find a clear and convincing
violation’ of the [C]onsent [D]ecree[,]” the district court did not abuse its
7
“‘A district court abuses its discretion if it applies an incorrect legal standard, applies
the law in an unreasonable or incorrect manner, follows improper procedures in making a
determination, or makes findings of fact that are clearly erroneous.’” Fed. Trade Comm’n v.
Nat’l Urological Grp., Inc., 785 F.3d 477, 481 (11th Cir. 2015) (quoting Citizens for Police
Accountability Political Comm. v. Browning, 572 F.3d 1213, 1216–17 (11th Cir. 2009)).
15
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discretion by granting Plaintiff’s motions for contempt, awarding it sanctions, and
adopting the relevant Reports and Recommendations of the magistrate judge.
Leshin, 618 F.3d at 1231–32.
Second, the district court did not abuse its discretion by granting Plaintiff’s
Motion for Reconsideration. “‘The only grounds for granting [a Rule 59] motion
are newly-discovered evidence or manifest errors of law or fact.’” Arthur v. King,
500 F.3d 1335, 1343 (11th Cir. 2007) (quoting In re Kellog, 197 F.3d 1116, 1119
(11th Cir. 1999)) (alteration in original). Plaintiff filed its Motion for
Reconsideration pursuant to Federal Rule of Civil Procedure 59(e) for precisely
this reason: it uncovered new evidence of Defendant’s extensive, offensive, and
continued violations of the Consent Judgment. In light of the nature of
Defendant’s conduct and numerous violations of the Consent Judgment, the district
court did not abuse its discretion by granting Plaintiff’s Motion for
Reconsideration.
Nor did the district court err by denying Defendant’s motion to “Void for
Vagueness” the parties’ Stipulation of Dismissal and Consent Judgment. “‘It is a
basic principle of due process that an enactment is void for vagueness if its
prohibitions are not clearly defined.’” Pine v. City of W. Palm Beach, Fla., 762
F.3d 1262, 1275 (11th Cir. 2014) (quoting Grayned v. City of Rockford, 408 U.S.
104, 108 (1972)). Assuming arguendo that Defendant can challenge the
16
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Stipulation of Dismissal and Consent Judgment, 8 his claim that those documents
are unconstitutionally vague would fail. Simply, the Stipulation of Dismissal and
Consent Judgment set out in great detail the conduct Defendants were required to
avoid and the acts they were obligated to perform, and Defendant does not identify
a single provision that is impermissibly vague, confusing, or lacking adequate
direction. Consequently, the district court properly denied Defendant’s motion to
Void for Vagueness the parties’ Stipulation of Dismissal and Consent Decree.
Finally, given the foregoing, the district court was not wrong to direct the
Clerk of Court to enter a judgment reflecting the liquidated damages, attorneys’
fees, and costs for which it found Defendants jointly and severally liable.9
Accordingly, for the above reasons, we AFFIRM the orders of the district
court adopting the December 12, 2013 Report and Recommendations of the
magistrate judge, granting Plaintiff’s Motion for Reconsideration, denying
Defendant’s motion to “Void for Vagueness” the parties’ joint Stipulation of
8
Ordinarily, “[a] party [] has no standing to appeal a judgment to which he or she
consented[,]” Reynolds v. Roberts, 202 F.3d 1303, 1312 (11th Cir. 2000) (quotation omitted),
and the vagueness doctrine typically applies to statutes or other legislative prohibitions, see, e.g.,
Kolender v. Lawson, 461 U.S. 352, 358 (1983).
9
Contrary to Defendant’s half-hearted claims, the district court possessed jurisdiction
over Plaintiff’s action because its claims arose under federal trademark law, and venue was
proper in the Southern District of Florida because Defendants resided and conducted business
there. 15 U.S.C. § 1121; 28 U.S.C. §§ 1331, 1338, 1391(b), (c).
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Dismissal and Consent Judgment, and directing the Clerk of Court to enter
judgment for Plaintiff.
18