LANDFALL 2, INC., a Florida corporation, Plaintiff, v. DATASCORE-AI, LLC, a Texas limited liability company; Brent Biggs, individually; and Datascore Enterprises, Corp., a Delaware corporation, Defendants CASE NO. 22-80801-CV-MIDDLEBROOKS/Matthewman United States District Court, S.D. Florida Signed April 28, 2023 Counsel Christopher J. Malafis, The Malafis Firm, P.A., Merritt Island, FL, Darren Raymond Aponte, Aponte Law, P.A., Palmetto Bay, FL, for Plaintiff. Amy Yoon, Pro Hac Vice, Binah B. Yeung, Pro Hac Vice, Cairncross & Hempelmann, P.S., Seattle, WA, Woodrow Heath Pollack, Shutts and Bowen, LLP, Tampa, FL, for Defendants. Middlebrooks, Donald M., United States District Judge ORDER GRANTING MOTION FOR FINAL DEFAULT JUDGMENT *1 THIS CAUSE comes before the Court upon the Defendant and Counterclaim Plaintiff Datascore Enterprises, Corp. (“Datascore”) Motion for Final Default Judgment (“Motion”), filed on March 13, 2023. (DE 93). For the following reasons, the Motion is granted. BACKGROUND Plaintiff and Counterclaim Defendant Landfall 2, Inc. (“Landfall”), filed the instant suit on May 10, 2022 (DE 1). The matter was removed to this Court on May 31, 2022. Id. Datascore answered and counterclaimed, including for breach of contract and trademark infringement, on June 10, 2022. (DE 16). In this action, Landfall set forth 13 separate causes of action alleging the existence of an oral partnership agreement and partnership-related claims. (DE 1). Defendants asserted affirmative defenses as well as six counterclaims including for: (I) Breach of Contract; (II) Trademark Infringement; (III) Unfair Competition and False Designation of Origin; (IV) Tortious Interference; (V) Unjust Enrichment; and (VI) violations of Florida's Deceptive and Unfair Trade Practices Act (FDUTPA) (hereinafter the “Counterclaim Complaint”). (DE 16). The case was set for trial during the two-week trial period commencing February 27, 2023. (DE 19). However, due to numerous discovery violations and sanction orders, Magistrate Judge Matthewman entered a Report and Recommendation On Imposition Of Sanctions Against Plaintiff And Its Counsel For Bad Faith Misconduct, Violations Of Court Orders, and Discovery Violations Stemming From Defendant's Motion To Compel (DE 40). (DE 78). On February 16, 2023, I entered a Corrected Order Adopting Report and Recommendation, ordering that Landfall 2 Inc.’s Complaint be dismissed with prejudice, its Answer to Datascore's Counterclaim be stricken, and directing Datascore to either dismiss its counterclaims against Landfall or move for clerk's entry of default on or by February 24, 2023. (DE 83). On February 23, 2023, Datascore moved for Clerk's Entry of Default against Counterclaim Defendant Landfall 2, Inc. (DE 84). On February 24, 2023, the motion was granted. (DE 87). I then directed Datascore to file its Motion for Default Judgment on or before March 13, 2023. Datascore timely submitted the instant Motion on March 13, 2023. (DE 93). On March 15, 2023, Landfall, through a new attorney, moved to stay entry of final default judgment and any further proceedings. (DE 95). In support, Landfall's counsel represented that its client was unaware of the discovery misconduct in this case and that Datascore's damages as to its breach of contract claim were not calculable absent an evidentiary hearing. (Id. at ¶¶ 6, 13). On March 21, 2023, I denied Landfall's Motion to Stay, but granted it leave to respond to Datascore's Motion for Default Judgment for the purpose of briefing the damages issues. (DE 100 at 3). On April 7, 2023, Landfall filed a Notice of Waiver in which it stated that it “will not seek an evidentiary hearing on Count I [breach of contract] as to damages, and waives the opportunity to submit an additional brief to the Court on this particular issue.” (DE 102 at 1). LEGAL STANDARD *2 “When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by [the Federal Rules of Civil Procedure] and that fact is made to appear by affidavit or otherwise, the clerk shall enter the party's default.” Fed. R. Civ. P. 55(a). A defaulted defendant is deemed “to admit[ ] the plaintiff's well-pleaded allegations of fact,” but “is not held to admit facts that are not well-pleaded or to admit to conclusions of law.” Nishimatsu Constr. Co. v. Houston Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975). Thus, a court must ensure that the allegations in a complaint “actually state a substantive cause of action and that there is a substantive, sufficient basis in the pleadings for the particular relief sought” before entering a default judgment. Tyco Fire & Sec., LLC v. Alcocer, 218 F. App'x 860, 863 (11th Cir. 2007). Once a court determines that a complaint properly states a claim, the court must determine the amount of damages. See Safari Programs, Inc. v. CollectA Int'l Ltd., 686 F. App'x 737, 746 (11th Cir. 2017). If the amount of damages is not a liquidated sum or an amount capable of mathematical calculation, the court must hold an evidentiary hearing to determine the amount of damages. United Artists Corp. v. Freeman, 605 F.2d 854 (5th Cir. 1979); see also S.E.C. v. Smyth, 420 F.3d 1225, 1232 n.13 (11th Cir. 2005) (“[S]uch hearings are required in all but ‘limited circumstances,’ as when the district court already has a wealth of evidence from the party requesting the hearing, such that any additional evidence would be truly unnecessary to a fully informed determination of damages.”). DISCUSSION Datascore's Motion seeks final default judgment as to Datascore's counterclaims for (I) Breach of Contract; (II) Trademark Infringement, and (III) Unfair Competition and False Designation of Origin under 15 USC § 1125(a) (Lanham Act), as well as dismissal without prejudice of its remaining counterclaims. I address each of these claims below. A. Datascore's Breach of Contract Claim (Count I). Under Florida law, an adequately pled breach of contract action requires three elements: (1) a valid contract; (2) a material breach; and (3) damages. In re Standard Jury Instructions--Contract & Bus. Cases, 116 So. 3d 284, 306 (Fla. 2013). Here, the Counterclaim Complaint establishes the existence of a valid oral contract. In Paragraph 24 of the Counterclaim Complaint, Datascore pleads that at a meeting in late 2021 or early 2022, the Parties (Landfall and Datascore) “agreed to a contractual arrangement based on the following terms: (a) Landfall would market and sell Datascore's Engagement Dialing services; (b) Datascore would work with the customer to design the initial model and deliver the final product; (c) Landfall would invoice the customer and collect payment for the services; (d) Landfall would reimburse Datascore for the direct costs of delivering the services; and (e) 50% of remaining revenues would be paid to Datascore.” (DE 16 at ¶ 24). The Counterclaim Complaint further pleads that the Parties performed under the agreement for about two months, until Landfall stopped performing by failing to pay Datascore its 50% share of the revenues collected from customers for the Datascore product. (Id. at ¶¶ 25–31). Accordingly, under Florida Law, Datascore has set forth a valid cause of action for breach of contract. I therefore find entry of final default judgment against Landfall to be proper with respect to Count I of Datascore's Counterclaim Complaint. B. Datascore's Claim for Trademark Infringement (Count II) An adequately pled claim for Trademark Infringement under both Florida law and the Lanham Act, requires three elements: (1) the claimant owns a trademark; (2) the infringer used the mark in commerce without authorization; and (3) the use of the alleged infringing trademark is likely to cause confusion among consumers regarding the origin of the goods offered by the parties. See AWGI, LLC v. Atlas Trucking Co., LLC, 998 F.3d 258, 264 (6th Cir. 2021) (citation omitted); FCOA LLC v. Foremost Title & Escrow Services LLC, 57 F.4th 939, 946 (11th Cir. 2023); 15 U.S.C. § 1114(1); Anderson v. Upper Keys Bus. Grp., Inc., 61 So. 3d 1162, 1167 (Fla. 3d DCA 2011). *3 Here, the Counterclaim Complaint establishes a claim for Trademark Infringement under both federal and state law. The Counterclaim Complaint pleads that “from at least as early as 2020, Brody AI [Datascore's predecessor] and Biggs [Datascore's founder] began referring to the AI Technology as the “Engagement Model,” and its use in telecommunications as “Engagement Dialing.” (DE 16 at ¶ 14). The Counterclaim Complaint further pleads that, “in August of 2020, Brody AI began marketing Engagement Dialing services and the Engagement Model,” and as of November of 2021, Datascore was the owner of the AI Technology, the trademarks “Engagement Dialing” and “Engagement Model.” (Id. at ¶ 21). Moreover, “Datascore owns U.S. Trademark Serial Nos. 97/393,937 and 97/422,838 associated with these trademarks.” (Id. at ¶ 45). With respect to use of the mark in commerce without authorization, Datascore pleads that after sending “Landfall notification that it was terminating the Oral Contract on April 26, 2022,” “Landfall continued to market and sell Datascore's Engagement Dialing services to new customers.” (DE 16 at ¶¶ 32–33). Datascore further pleads that, “[a]s part of this unauthorized activity, Landfall also continued to collect deposits and payments from new customers for services it had no ability to provide.” (Id.). “Landfall fraudulently misrepresented to third-parties that it owned, controlled, and was able to provide Engagement Dialing services, and failed to disclose that Datascore had terminated its contract.” (Id. at ¶ 34). Furthermore, “[i]n the course of these fraudulent misrepresentations, Landfall used the terms Engagement Dialing and Engagement Model, both of which it knew to refer to Datascore's AI Technology, to falsely describe purported services that did not include such technologies.” (Id. at ¶ 35). Finally, with respect to likelihood of confusion regarding origin of goods, Datascore pleads that “[a]s a result of Landfall's misrepresentations and infringement on Datascore's Engagement Dialing and Engagement Model trademarks, customers have expressed confusion concerning who is able to provide these services and what those services entail. Datascore has lost business as a result of Landfall's actions.” (DE 16 at ¶ 36). Moreover, Datascore pleads that “when Landfall therefore no longer had any right to sell or ability to provide Engagement Dialing or Engagement Model, Landfall improperly used Datascore's Engagement Dialing and Engagement Model trademarks by: (1) misrepresenting to third-parties that it owned, controlled, and/or was able to provide Engagement Dialing services; (2) fraudulently collecting funds from such customers in exchange for these services that it has no ability to provide; and (3) misusing Datascore's trademarks to falsely describe different services which do not have the benefit of Datascore's proprietary AI Technology.” (Id. at ¶ 49). Accordingly, I find that Datascore has set forth a valid cause of action for Trademark Infringement under the Lanham Act, 15 U.S.C. and Florida state law. I therefore find entry of final default judgment against Landfall to be proper with respect to Count II of Datascore's Counterclaim Complaint. C. Datascore's Claims for Unfair Competition and False Designation of Origin under 15 USC § 1125(a) (Lanham Act) (Count III) An adequately pled claim for Unfair Competition and False Designation of Origin, includes three elements: (1) Plaintiff owns the trademark at issue; (2) Defendant used the marks without authorization; and (3) Defendant's use is likely to cause confusion, mistake, or deception as to the source, affiliation, or sponsorship of defendants’ goods. Ford Motor Co. v. O.E. Wheel Distributors, LLC, 868 F. Supp. 2d 1350, 1361 (M.D. Fla. 2012) (citing Babbit Elecs., Inc. v. Dynascan Corp., 38 F.3d 1161, 1178 (11th Cir. 1994); Dieter v. B & H Indus. of Sw. Florida, 880 F.2d 322, 326 (11th Cir. 1989)). *4 Here, the Counterclaim Complaint establishes a claim for Unfair Competition and False Designation of Origin under the Lanham Act. The first two elements (ownership and use) are established as described above. With respect to likelihood to cause confusion, mistake or deception as to the source of goods, Datascore pleads that “Landfall improperly used Datascore's Engagement Dialing and Engagement Model trademarks by: (1) misrepresenting to third-parties that it owns, controls, and/or is able to provide Engagement Dialing services; (2) fraudulently collecting funds from such customers in exchange for these services that it has no ability to provide; and (3) misusing Datascore's trademarks to falsely describe different services which do not have the benefit of Datascore's proprietary AI Technology,” and that by doing so “Landfall intentionally and wrongly implied an association with Datascore that no longer exists.” (DE 16 at ¶ 58). Datascore further pleads that “prospective customers have expressed confusion to Datascore over the distinction between Datascore and Landfall and what goods and services are provided by which entity.” (Id. at ¶ 60). Datascore pleads that it has lost business as a result of Landfall's actions. (Id.). Accordingly, I find that Datascore has set forth a valid cause of action for Unfair Competition and False Designation of Origin under 15 USC § 1125(a). I therefore find entry of final default judgment against Landfall to be proper with respect to Count III of Datascore's Counterclaim Complaint. D. Datascore's Monetary Damages In addition to non-monetary relief addressed below, Datascore requests damages in the amount of $704,897.69 on account of Datascore's Breach of Contract claim (Count I). In its Counterclaim Complaint, Datascore requested “Damages against Landfall for no less than $270,000, the exact amount to be determined at trial.” DE 16 at ¶ 76. However, in its Motion, Datascore requests a revised amount based on additional documents that it obtained through discovery. The amount requested is supported by the Declarations of Brent Biggs (Datascore's CEO) and Becky McCarty (one of Datascore's Accountants) in support of Datascore's Motion for Final Default Judgment. Once a court determines that a complaint properly states a claim, the court must determine the amount of damages. See Safari Programs, Inc. v. CollectA Int'l Ltd., 686 F. App'x 737, 746 (11th Cir. 2017). If the amount of damages is not a liquidated sum or an amount capable of mathematical calculation, the court must hold an evidentiary hearing to determine the amount of damages. United Artists Corp. v. Freeman, 605 F.2d 854 (5th Cir. 1979); see also S.E.C. v. Smyth, 420 F.3d 1225, 1232 n.13 (11th Cir. 2005) (“[S]uch hearings are required in all but ‘limited circumstances,’ as when the district court already has a wealth of evidence from the party requesting the hearing, such that any additional evidence would be truly unnecessary to a fully informed determination of damages.”). I find that the damages requested by Datascore are capable of mathematical calculation and that an evidentiary hearing is therefore unnecessary. That conclusion is buttressed by Landfall's express waiver of an evidentiary hearing or submission of further evidence. (DE 102). Specifically, Datascore's well-pled Counterclaim Complaint states that the terms of the Oral Contract are as follows: (a) Landfall would market and sell Datascore's Engagement Dialing services; (b) Datascore would work with the customer to design the initial model and deliver the final product; (c) Landfall would invoice the customer and collect payment for the services; (d) Landfall would reimburse Datascore for the direct costs of delivering the services; and (e) 50% of remaining revenues would be paid to Datascore. As set forth in the Biggs and McCarty declarations, the invoices submitted represent amounts collected by Landfall as payment for Datascore's services and total $1,913,616.77. After deducting the direct costs of delivering the services (Costs of Goods Sold) invoiced to Landfall and Datascore, per the agreement, the remaining revenues total $1,670,289.36. Fifty percent of this amount is $835,144.68, which represents Datascore's share under the Oral Contract. After taking into account the $205,570.41 in expenses for Costs of Goods Sold advanced by Datascore, and with credit for $335,817.40 paid by Landfall to Datascore to date, the outstanding balance Landfall owes to Datascore is $704,897.69. Accordingly, the Court finds it appropriate to award Datascore $704,897.69 as damages for its Breach of Contract Claim. E. Non-Monetary Relief *5 The Motion further requests non-monetary relief as set forth in the Counterclaim Complaint, including (1) a Permanent Injunction enjoining Landfall from infringing on Datascore's marks, and (2) a declaratory judgment that Datascore is the owner of the AI Technology and the marks, that the Oral Contract has been terminated, and that no partnership exists or existed between Datascore and Landfall. (DE 16 at ¶¶ 77, 78). With respect to a Permanent Injunction, having found that Datascore has established its claims for Trademark Infringement and Unfair Competition and False Designation of Origin, discussed above, the Court finds that a Permanent Injunction barring Landfall 2 Inc. from using the marks “Engagement Dialing” and “Engagement Model” is appropriate. Finally, I find that declaratory judgment that Datascore is the owner of the AI Technology and the marks “Engagement Dialing” and “Engagement Modeling” is appropriate. I further find that in light of the Order at DE 83 dismissing Landfall 2 Inc.’s Complaint with prejudice, that the request for a declaratory judgment that no partnership exists or existed between Datascore and Landfall is appropriate. I note that Datascore requested that the Court find “that cancellation of Landfall 2 Inc.’s Application under US Serial Number 97/428,187 filed May 25, 2022, for the service mark ‘Engagement Dialing’ is appropriate.” That relief is not plead so I withhold doing so. However, I note that the scope of the injunctive relief likely reaches that issue. CONCLUSION Accordingly, it is ORDERED and ADJUDGED that: 1. Datascore's (DE 93) Motion for Final Default Judgment against Landfall 2 Inc. is GRANTED IN PART as set forth above. 2. Datascore's request for Attorneys’ Fees is DENIED WITHOUT PREJUDICE. Should Datascore wish to further pursue its request for Attorneys’ Fees, it must file a motion consistent with Local Rule 7.3. 3. Final Default Judgment will be entered by separate order. SIGNED in Chambers at West Palm Beach, Florida, this 28th day of April, 2023.