Free Order on Motion for Summary Judgment - District Court of Arizona - Arizona

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The Court notes that there was nothing in the record of this action establishing that the defendant has filed for bankruptcy protection, which it had earlier notified the Court that it was preparing to do, and the Court has not found any indication to date in its own Internet search that the defendant is in bankruptcy.
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Best Western International, Inc., Plaintiff, vs. Hosmer Hospitality, LLC, Defendant.

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No. CV-04-0469-PHX-PGR ORDER and OPINION

Pending before the Court is plaintiff Best Western International, Inc.'s Motion for Summary Judgment (doc. #40), to which defendant Hosmer Hospitality, LLC has to date failed to file any response in opposition notwithstanding that its deadline for doing so under LRCiv 56.1(b) has long since expired.1 Having considered the plaintiff's motion and memorandum in light of the evidence of record, the Court finds that the motion should be granted in part and denied in part. The Court finds that the motion should be granted on its merits for the reasons stated therein by the plaintiff to the extent that the plaintiff seeks summary judgment on Count I (Breach of Contract) and Count II (Open Account) of its Complaint in the amount of $70,258.71, plus interest thereon at the rate of

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1.5% per month from and after August 1, 2005, and on Count III (Breach of Contract - Post Termination Use of Trademarks) of its Complaint in the amount of $1,406,977.20. The Court also finds that the motion should be denied to the extent that the plaintiff seeks the issuance of a permanent injunction with regard to Counts IV, V, VI, VII, VIII, and IX of its Complaint. The Court may not issue a permanent injunction unless there exists some cognizable danger of a recurrent violation and the Court is able to base such a determination on appropriate findings supported by the record. United States v. Laerdal Manufacturing Corp., 73 F.3d 852, 854 (9th Cir. 1995). The Court cannot make such a determination on the record before it because the plaintiff has not made any attempt in its motion to show that there is any possibility that the defendant will commit any future infringements of the plaintiff's trademarks. The Court further finds that the plaintiff is entitled to its reasonable attorney's fees and costs incurred in the enforcement of its contractual rights pursuant to A.R.S. § 12-341.01. Therefore, IT IS ORDERED that plaintiff Best Western International, Inc.'s Motion for Summary Judgment (doc. #40) is granted in part and denied in part. It is granted to the extent that the plaintiff is awarded (1) the sum of $70,258.71, plus interest thereon at the rate of 1.5% per month from and after August 1, 2005, pursuant to Counts I and II of the Complaint, (2) the sum of $1,406,977.20 pursuant to Count II of the Complaint, and (3) its reasonable attorney's fees and costs pursuant to A.R.S. 12-341.01, and it is denied to the extent that its seeks the entry of a permanent injunction pursuant to Counts IV through IX of the Complaint. ///

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IT IS FURTHER ORDERED that plaintiff Best Western International, Inc. shall submit an appropriate form of judgment no later than March 24, 2006. DATED this 7th day of March, 2006.

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