Tracfone Wireless, Inc. v. Technopark Co.

313 F.R.D. 680, 2016 WL 1127833, 2016 U.S. Dist. LEXIS 70256
CourtDistrict Court, S.D. Florida
DecidedMarch 18, 2016
DocketCASE NO.: 1:12-cv-20013-UU
StatusPublished
Cited by3 cases

This text of 313 F.R.D. 680 (Tracfone Wireless, Inc. v. Technopark Co.) is published on Counsel Stack Legal Research, covering District Court, S.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tracfone Wireless, Inc. v. Technopark Co., 313 F.R.D. 680, 2016 WL 1127833, 2016 U.S. Dist. LEXIS 70256 (S.D. Fla. 2016).

Opinion

ORDER GRANTING TRACFONE’S MOTION TO REOPEN CASE TO ENFORCE VIOLATION OF PERMANENT INJUNCTION

URSULA UNGARO, UNITED STATES DISTRICT JUDGE

This matter is before the Court on Plaintiff TracFone Wireless, Inc.’s (“TracFone”), Motion to Reopen Case to Enforce Violation of Permanent Injunction (the “Motion”) [D.E. 110] against Defendant Technopark Co., Ltd. (“Technopark”). Upon review of the Motion and the supporting record, the Motion is GRANTED.

[682]*682 Introduction

In the Motion, TracFone seeks an order (1) reopening this case with respect to Defendant Technopark to enforce Technopark’s violations of a the Partial Final Judgment and Permanent Injunction, which this Court entered against it on April 9, 2012 (the “Permanent Injunction”) [D.E. 64]; (2) finding Technopark in contempt for its violations of the Permanent Injunction; and (3) permitting TracFone to conduct expedited discovery in order to ascertain the amount of damages to be awarded to TracFone as a result of Teehnopark’s violations.

The Court has reviewed the several declarations on which TracFone relies in support of its Motion, and finds them to be consistent with one another and otherwise credible. Accordingly, as set forth below, the Court makes several findings of fact and conclusions of law based upon the declarations and the authority cited in TracFone’s Motion.

Findings of Fact

Details of Defendants’ Fraudulent Scheme

The Court finds that TracFone has sufficiently established that Technopark has been engaging in the same conduct prohibited by the Permanent Injunction by selling devices capable of unlocking bulk quantities of TracFone telephones in violation of TracFone’s rights.

A. Procedural History

On January 4, 2012, TracFone filed a complaint for damages and injunctive relief (“Complaint”) against Technopark, as well as other parties that asserted statutory and common law claims against Technopark in the Complaint.

The Court previously found that Techno-park failed to respond to the Complaint or otherwise appear, and, as such, was defaulted. [D.E. 50]. Thereafter, on April 4, 2012, TracFone moved for the Entry of Partial Final Judgment and Permanent Injunction against Technopark. [D.E. 58]. The Court found that TracFone, in its April 4, 2012 motion, established that Technopark admitted all of the allegations set forth in TraeFone’s Complaint, because Technopark failed to answer or otherwise respond to it. Accordingly, on April 9, 2012, the Court entered a Partial Final Judgment and Permanent Injunction, [D.E. 64], which prohibits Technopark from, inter alia:

• possessing or trafficking in any devices used to unlock and reflash TracFone Prepaid Phones;
• possessing or trafficking in certain instrumentalities that avoid, bypass, remove, disable, deactivate, or otherwise impair the technological measures within the TracFone Prepaid Software that effectively control access to the proprietary TracFone Prepaid Software;
• accessing, altering, erasing, tampering with, deleting or otherwise disabling TracFone’s proprietary prepaid cellular software contained within any model of TracFone Prepaid Phones;
• facilitating or in any way assisting other persons or entities who Teehnopark Co., Ltd. knew or should have known are engaged in reflashing and/or unlocking TracFone Prepaid Phones and/or hacking, altering, erasing, tampering with, deleting or otherwise disabling the software installed in TracFone Prepaid Phones;
• facilitating or in any way assisting other persons or entities who Technopark Co., Ltd. knew or should have known are engaged in any of the acts prohibited under this Permanent Injunction including, without limitation, the buying and/or selling of unlocked TracFone Prepaid Phones; and,

The Court has reviewed TracFone’s counsel’s statements regarding TracFone’s service of the Permanent Injunction upon Technopark. See Declaration of TracFone’s outside counsel, Aaron S. Weiss, executed February 25, 2016 (the “Weiss Declaration”) at ¶¶ 10-12 (explaining TraeFone’s diligent efforts to serve Technopark and attaching proof thereof in the form of FedEx shipping confirmations). Accordingly, the Court finds that TracFone has established that it seived the Permanent Injunction upon Technopark by FedEx on April 14, 2012, in [683]*683accordance with this Court’s order authorizing it to do so. [D.E. 9 at pp. 10-11],

The Court also notes that Permanent Injunction entered against Teehnopark retains “jurisdiction over this matter and the parties to this action in order to enforce any violation of the terms of this Permanent Injunction or the parties’ settlement,” and provides for a penalty if Teehnopark were to be found in violation of its terms:

If Teehnopark violates the terms of this Permanent Injunction, TracFone shall be entitled to file an Affidavit or Declaration of Violation requesting that the Court order the payment of compensatory damages to TracFone in the amount of Five Thousand Dollars and No Cents ($5,000,00 (U.S.)) for each Octopus Box purchased, sold, advertised, solicited and/or shipped in violation of the Permanent Injunction, or a single damages award of One Million Dollars and No Cents ($1,000,000.00 (U.S.)), whichever is greater. TracFone shall provide at least five (5) working days notice to Defendant(s) after filing an Affidavit or Declaration of Violation. The Court finds that any amounts awarded under this paragraph are compensatory and reasonable estimations of the minimum damages suffered by TracFone for such a breach and will serve to compensate TracFone for its losses in the event a Defendant violates the terms of this Permanent Injunction.

[D.E. 64 at pp. 13-14]. The Permanent Injunction also provides for the payment of attorneys’ fees to the prevailing party of any proceeding brought for purposes of enforcing the Permanent Injunction. Id. at p. 14.

B. Factual Background

TracFone brought this lawsuit against Teehnopark in 2012 because Teehnopark was improperly selling devices capable of unlocking bulk quantities of TracFone telephones in violation of TraeFone’s rights (the “Prohibited Unlocking Device Selling Scheme”). On April 9, 2014, this Court ordered Teehnopark to cease that conduct. Id. at pp. 13-14. However, as set forth below, the Court finds that TracFone has established that Techno-park has renewed this prohibited conduct and is onee-again selling devices that are capable of unlocking TracFone phones. The Court finds that TracFone has established that Teehnopark’s conduct violates the Permanent Injunction.

1. The Court has Previously Enjoined Teehnopark From Selling Prohibited Unlocking Devices

As set forth above, this Court previously enjoined Teehnopark from selling devices capable of unlocking bulk quantities of TracFone cellphones on April 9, 2012. In the Permanent Injunction, the Court found that Teehnopark sold devices known as “Octopus Boxes.” [D.E. 64 at p. 2]. The Octopus Boxes were used to hack TracFone phones in order to bypass restrictions put in place by TraeFone’s proprietary software, firmware, and default configuration files, which prevented the phone from being used on a wireless network other than TraeFone’s. See

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313 F.R.D. 680, 2016 WL 1127833, 2016 U.S. Dist. LEXIS 70256, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tracfone-wireless-inc-v-technopark-co-flsd-2016.