Case Information
*1 UN ITED STATES D ISTRJCT CO U RT FO R TH E SOU THERN DISTR ICT O F FLORID A M iam i D ivision
C ase N um ber: 17-23053-C IV -M O R EN O
ZELTIQ AESTHETICS, INC.,
Plaintiff,
V S.
NAROTIQUE BEAUTY BAR, INC. d/b/a NAROTIQUE BEAUTY BAR OR
NAROTIQUE TEETH W HITENW G
SERVICES, and CASSANDRA ROBINSON,
D efendants.
/
ORDER DENYING DEFENDANT RO BINSON 'S M O TION TO O UASH This tradem ark dispute wms brought by Zeltiq Aesthetics, lnc. against N arotique Beauty Bar, lnc. and Narotique's owner, Cassandra Robinson.Zeltiq is a medical technology company that owns or is the exclusive licensee of a process know n as Cryolipolysis, a non-invasive procedure involving freezing fat cells without damaging skin.Zeltiq markets its Cryolipolysis device and system under the registered trademarks Zeltiq* , Coolsculpting@, Crm lipolysis* , and Snowflake Design m arks, which it distributes exclusively to authorized m edical professionals. Zeltiq alleges that Narotique advertises a çicoolsculpting'' body sculpting treatment. Thus, it brought this four-cotmt complaint alleging: (1) federal trademark counterfeiting and infringement; (2) federal false advertising and false designation of origin; (3) federal trademark infringement and unfair competition; and (4) violation of Florida's Deceptive and U nfair Trade Practices A ct.
On A ugust 17, 2017, the sum m ons and com plaint w ere served on both D efendants. The provided address w as vacant. The process server then attem pted a second address, w here *2 Glasford Robinson was served in his capacity as father and co-resident of Cassandra Robinson. Narotique answered the complaint without objecting to service. However, Robinson filed a 1 Z ltiq responded , and Robinson chose not to reply. m otion to quash service of process. e Robinson argues that the address listed on the summ ons is not her address, and that a diligent search of the public records would reveal her current address. Thus, Robinson argues that the address where service was effectuated was not her tlusual place of abode,'' and so her father could not accept service on her behalf. Robinson's argument fails for two reasons. First, she has not submitted sufficient evidence to show that she does not reside at the address served. Second, the motion does not comply with Local Rule 7.1(a)(3).
A defendant seeking to quash service of process Stm ust show invalidity of service by clear and convincing proof before being entitled to an order granting a m otion to quash. Any conflict in the parties' affidavits or pleadings should be resolved in favor of the plaintiff.'' Kammona v. Ontech Corp., 587 Fed. App'x 575, 578 (1 1th Cir. 2014) (intemal citations omitted). Here, although Robinson disputes that she resides at the address served, she has not subm itted any affidavit or other evidence to refute the evidence in the Affidavits of Service showing that both Defendants were properly served. W ith only a bare assertion that Robinson did not reside at the address served, absent support or any rebuttal to Zeltiq's evidence, Robinson does not overcome Zeltiq's evidence with clear and convincing proof that service was invalid. See id. at 579.
Further, Local Rule 7.1(a)(3) requires a movant to: (1) confer in good faith with the opposing party prior to filing any motion--other than certain motions not relevant here- and (2) include in the m otion a certificate of such conferral. tT aillzre to com ply w ith the requirem ents of this Local Rule may be cause for the Court to.. .deny the motion.'' S.D. Fla. L.R. 7.1(a)(3).
1 N otably , N arotique and Robinson are represented by the sam e counsel.
Accordingly, it is
ORDERED AND ADJUDGED that Robinson's M otion to Quash is DENIED. Robinson shall file an answ er to the com plaint no later than D ecem ber 12, 2017. The C ourt notes that the case is set for trial for the two-week period beginning June 1 1, 2018. J of November 2017 .
D O NE A N D O R DE RED in cham bers at M inm i, Florida, this . -M > .,r ,-,--
FEDERI A . M O REN O UN ITED STA TES D ISTRICT JU D GE Copies furnished to:
Counsel of Record