Case 9:23-cv-81004-AMC Document 9 Entered on FLSD Docket 07/10/2023 Page 1 of 17

IN THE UNITED STATES DISTRICT COURT

Case No. 9:23-cv-81004-AMC

OCEANUS ENGINEERING, INC.,

Plaintiff,
vs.

BLUE WATER MANUFACTURING, LLC,

Defendants.
___________________________________________/

FIRST AMENDED COMPLAINT FOR TRADEMARK COUNTERFEITING AND

Plaintiff, Oceanus Engineering, Inc. (“Oceanus”), sues Defendants Blue Water

Manufacturing, LLC (“Blue Water”), and Scuba Monkey Dive Center L.L.C. (“Scuba Monkey”),

collectively (“Defendants”), for violations of the Act of July 5, 1946, ch. 540, Pub. L. 79-489, 60

Stat. 427, et seq., as amended (the “Lanham Act”), codified at 15 U.S.C. § 1051, et seq., and

common law Unfair Competition, and alleges as follows:

NATURE OF THE ACTION

1. Oceanus files this action against Defendants for Trademark Counterfeiting, False

Designation of Origin, and Unfair Competition, due to Defendants’ willful use of a counterfeit of

Oceanus’ federally registered trade dress, in connection with the sale, offer for sale, advertising, and

distribution of their own directly competing products.

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JURISDICTION AND VENUE

2. This Court has original jurisdiction over the claims arising under the Lanham Act,

pursuant to 28 U.S.C. § 1338(a). This Court has original jurisdiction over the related state law

claim for Unfair Competition, pursuant to 28 U.S.C. § 1338(b).

3. This Court has personal jurisdiction over Defendants, pursuant to Fla. Stat.

§ 48.193(1)(a)(1) and (2), by virtue of their operating, conducting, engaging in, or carrying on a

business in this State, which includes their sales of the accused counterfeit infringing product, and

by virtue of their committing tortious acts within this State, as specifically related to the infringing

acts alleged herein. Defendants have advertised, offered for sale, sold and distributed the accused

products within Florida.

4. Venue is proper in this judicial district under 28 U.S.C. § 1391 because the

Defendants have committed acts of trademark infringement, false designation of origin, and

unfair competition in this juridical district, and/or a substantial portion of the events giving rise to

the claims herein arose in this judicial district, and because this Court has personal jurisdiction over

Defendants in this District. Plaintiff may require limited discovery as to the full extent of

Defendants’ sales and/or distribution of the counterfeit product throughout this District.

5. The Defendants’ business activities and operations appear to be intertwined. They

advertise, sell and distribute a wide variety of diving, swimming and watersports equipment,

accessories, and apparel, and each Defendant has separately advertised and offered for sale the

accused products at issue here. This has occurred, for example, with each entity employing mirror

image eBay ads for the accused counterfeit product for sale. The Defendants have commonly

shipped the accused products into the Southern District of Florida (See Exhibit “A”, attached). In

addition to advertising infringing products on other platforms, the Defendants employ the same

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website for the advertising, offering for sale, and sale and delivery of their goods, located at

https://scuba-monkey-dive-center.mybigcommerce.com. The companies have the same managing

member, Timothy Boehnlein, who also appears to own the domain scubamonkaydivecenter.com,

based on a WHOIS search.

6. Approximately 85% of Oceanus’ genuine lobster snares are sold within the State of

Florida, and a large proportion of that occurs within the boundaries of the Southern District of

Florida.

THE PARTIES

7. Plaintiff Oceanus is a Florida corporation with its principal place of business at 399

W. Palmetto Park Road, Suite 102, Boca Raton, Florida, 33432.

8. Defendant Blue Water is a Florida limited liability company with its principal office

located at 13585 NW 101st Drive, Suite 700, Alachua, Florida 32615.

9. Defendant Scuba Monkey is a Florida limited liability company with its principal

office located at 13585 NW 101st Drive, Suite 700, Alachua, Florida 32615.

BACKGROUND

10. Oceanus has been a supplier of U.S. manufactured diving products which it has

sold to distributors who, in turn, provide them to numerous retail outlets in the U.S. Its most well-

known product has been a revolutionary lobster snare, which was previously the subject of U.S.

patent protection, under United States Design Patent D450,801, issued November 20, 2001. This

lobster snare is currently the sole product sold by Oceanus.

11. During the 1990’s, there was no effective product or method for catching lobster

while diving. Nets and hand catching often produced collateral damage to the reef, as well as to

the lobster. The few snares then available either lacked a firm hold on the catch or sometimes

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failed to release the lobster without damage, when so desired. Then available snares employed a

heavy monofilament as a loop, however, it would eventually collapse, making it impossible to

form the necessary encirclement.

12. This problem was solved by using a stainless stranded cable, attached to a rigid

fiberglass pull rod, which could then be easily controlled with a simple, yet reliable, bias-type

locking lever. The patented Oceanus snare was ultimately used by employees of the Florida

Department of Environmental Protection and by conservation groups, for tagging. It made it

possible to remove a lobster from the reef without damaging surrounding coral, and the cable and

easy release locking system would also set the lobster free with little trauma. The product also

became successful with both novice and commercial lobster divers, because it made the process

so easy and reliable.

13. For more than 20 years, Oceanus’ lobster snares have been continuously and

exclusively sold with a green color on their shaft. They are so well recognized by divers and the

trade, that the Oceanus’ snare is frequently referred to as “The Green One”, “The Green Snare”,

or “The Green Loop”. An example of the Plaintiff’s lobster snare is shown in the photograph

attached hereto as Exhibit “B”, and reproduced below:

14. Oceanus is known in the dive industry, and among the dive community, as

providing high quality lobster snares that are identified by, and associated with, its arbitrary color

green, applied to the cylindrical tube of its lobster snare. As so applied, the color green is not

functional, nor does it serve a merely decorative or utilitarian purpose. The color green is not a

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natural by-product of the manufacturing process for the lobster snare, and has no bearing on the

cost, quality, or functionality of the product. The color green serves no purpose on the product,

other than providing a source identifying function.

15. Given the longevity and exclusivity of Oceanus’ application of the color green to

the cylinder of its lobster snare, the trade dress has an acquired distinctiveness, that is, a secondary

meaning in indicating Oceanus as the source and origin of its genuine lobster snares.

16. Oceanus is the owner of all right, title, and interest in, and to, U.S. Trademark

Registration No. 5,057,372, in International Class 028 for lobster snares. Oceanus’ trade dress

was registered on October 11, 2016, and first used in commerce in 2001. The Plaintiff’s

registration is valid and subsisting. Oceanus’ right to use the registered mark in commerce, for

lobster snares, has become incontestable, pursuant to 15 U.S.C. § 1065. The registration, and its

prior common law rights, are hereinafter collectively referred to as “the mark” or “Plaintiff’s

mark”.

17. A copy of the Registration for Oceanus trade dress is attached hereto as Exhibit

“C”. The mark consists solely of the color green, as applied to the exterior of a cylindrical tube of

a lobster snare, further comprising a snare wire at one end, and an actuator handle at the other.

The Plaintiff’s protected trade dress is thus shown below:

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18. In the past, Defendants have obtained genuine Oceanus lobster snares from one or

more of Oceanus’ distributors, for their own sales and distribution, among the wide number of

products they offer. These genuine Oceanus snares have been sold in commerce, and through

online means including into the Southern District of Florida

19. Oceanus recently learned that Defendants have also been advertising, offering for

sale, selling, and distributing lobster snares which are identical to, or virtually indistinguishable

from, Oceanus’ own genuine snares.

20. One of these counterfeit snares, is shown in Exhibit “D”, attached.

21. Exhibit “E”, attached hereto, provides a side-by-side comparison of the

Defendants’ counterfeit lobster snare, and Oceanus’ genuine lobster snare (also shown in Exhibit

“B”). As shown below, the two lobster snares are identical. They are virtually indistinguishable,

other than the Defendants’ product omitting Oceanus’ name and its patent and trademark marking,

which provides the registration numbers for the Oceanus’ design patent and registered trade dress,

molded within the Oceanus black handle.

Oceanus
Lobster Snare

Defendants’
Counterfeit
Lobster Snare

22. Defendants’ counterfeit lobster snare is not genuine, though it bears the identical

trade dress used as the source identifier of the Plaintiff’s product, as shown in Exhibits “B” and “C”.

Defendants’ counterfeit lobster snare has been sold without Oceanus’ prior knowledge or

authorization.

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23. Defendants have intentionally copied the Plaintiff’s registered mark, having actual

knowledge of Oceanus’ trade dress. At all relevant times, Defendants also had notice of Oceanus’

registration in the U.S. Patent and Trademark Office for its trademark, through the permanent

placement of Plaintiff’s trademark registration number in the handle of its lobster snare. Plaintiff’s

compliance with 15 U.S.C. § 1111 is shown in Exhibit “F”, attached.

24. The Defendants’ counterfeit snare is inferior to Oceanus’ genuine lobster snare,

including by virtue of the substandard quality of the counterfeit products’ component parts. Non-

limiting examples include the fact that: 1) the pull knob of the counterfeit snares is poorly affixed,

as compared to the pull knob of the Oceanus’ snare; 2) as compared to the genuine Oceanus snare,

the counterfeit snares employ substandard cable which easily kinks; and 3) the tubing of the

counterfeit snare employs substandard plastic and lacks the flexibility and shape memory inherent

in the genuine Oceanus snare, which ultimately affects the counterfeit snare’s ability to operate

properly. Photographs in Exhibit “G Composite”, attached, depict some of these problems.

25. Because of the inevitable confusion between the Defendants’ infringing products

bearing Oceanus’ distinctive trade dress, and the genuine Oceanus green lobster snare, any defects

or faults found with respect to the Defendants’ infringing products will negatively reflect upon,

and injure, the high reputation which has been established by Oceanus for its lobster snare.

26. In addition to the accused identical green lobster snare shown in paragraph 22,

above. Defendants have also advertised, offered for sale, sold and distributed counterfeit green

lobster snares but which are covered with a cosmetic sleeve of a different color, either red or

yellow. An examples of one of these lobster snares are shown in Exhibit “H”, attached, and

reproduced here.

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27. This sleeve material is shown further in the photo immediately below:

As seen, the heat shrink material does not neatly fit over the tubing. The fact that the material is

sloppily applied, and overlaps the end fittings, demonstrates that the snares were completely

assembled prior to application of the plastic cover.

28. The Defendants’ red and yellow sleeve covering the green snares is easily placed

over the cylindrical shaft and then shrunk with the aid of a heat gun. This cover material has no

functional use, or any cosmetic purpose. It is there to camouflage the green cylindrical tube

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underneath.

29. The cover material may be pulled off by the snare’s user, and the plastic sleeve is

removed rather easily. As soon as this occurs, the lobster snare displays the originally made green

color on the shaft – comprising Oceanus’ registered trade dress.

30. In normal use, this sleeve material will partially scrape off with contact to rocks,

barnacles, or other encrusted surfaces, at or near where lobsters shelter. This immediately results

in the actual green color of the cylindrical shaft showing through the sleeve, becoming immediately

observable.

31. This cover material, which is in the nature of a shrink tubing, is also softened by

the heat of the sun. This further enables ripping, through snagging on surfaces which are typically

present around users of lobster snares, such as boat hardware, boat ladders, swim platforms and

trim tabs. Examples of this scuffing and ripping is shown in Exhibit “I Composite”, attached.

Upon belief, the majority of available shrink tubing has little to no UV resistance, which causes

the material to rapidly degrade and disintegrate.

32. Once ripped, removal of the shrink covering by the end consumer may well become

desirable, since its only function is to conceal the green tubing underneath. Such removal is easily

accomplished. Plaintiff requires discovery as to whether any retail outlet which may have received

infringing lobster snares, with red or yellow covers, may have removed such covers prior to sale.

33. In the circumstances described, the Plaintiff’s distinctive trade dress thus becomes

visible to consumers and others, in a post -sale environment. Defendants’ counterfeit green lobster

snares, although covered by the aforementioned wrap at the time of sale, and offer for sale, would

thus become counterfeit goods, likely to create post sale confusion with the purchasing public:

potential direct purchasers of the counterfeit goods, and potential purchasers of Plaintiff’s lobster

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snare, who encounter the counterfeit goods in a post-sale environment.

34. Following Plaintiff’s discovery of the Defendants’ infringing acts, a letter was

delivered to their managing member, Timothy Boehnlein, (via overnight courier) on May 22, 2023.

The letter requested the Defendants’ response and co-operation, in lieu of litigation. No response

has ever been received on behalf of either Defendant. A copy of the letter is attached, hereto as

Exhibit “J”.

35. As of June 25, 2023, an eBay ad by Scuba Monkey Dive Center, attached hereto as

Exhibit “K Composite”, reveals that the Defendants have no intention of ceasing use of Oceanus’

registered trade dress to accomplish, at a minimum, the advertising and offering for sale of their

inferior green lobster snare.

36. As shown in Exhibit “K Composite”, the Defendants are currently advertising, and

offering for sale, green lobster snares bearing Oceanus’ registered trade dress. This is being done

in direct connection with Defendants’ advertising, offering for sale, selling and distributing of their

inferior green snares which are “covered” with a red or yellow plastic sleeve.

37. In so doing, the Defendants are purposely associating and equating their red and

yellow snares with Oceanus’ green snare. This use of Oceanus’ trade dress to advertise and offer

for sale all three snares together, as “all the same” directly harms Oceanus’ reputation and

goodwill. Defendants’ use of Oceanus’ distinctive trade dress deceptively equates Defendants’

“red or yellow” snares to the quality associated with Oceanus. Defendants are using Oceanus’

green trade dress to directly promote the acceptance and sale of the “covered” green snares.

38. This is further evidenced by the fact that the identifier for the green snare shown in

Exhibit “K Composite”, attached, is: “Blue Water Products Lobster Loop 45 in. Length with

Stainless Steel Loop and Lock”. The ad then uses the very same product description and same

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product photo for the “red” and “yellow” lobster snares, in offering them for sale. All three snares

are offered at the same price, and Scuba Monkey’s ad also promotes the “identical” snares’ “high

visibility colors (green, red, yellow).”

39. Defendants’ inferior snares are also sold at a much lower price, which will likely

cause significant damage to Oceanus’ business. Exhibit “K Composite” shows that Defendants

offer the green snare for $35.00. This price is about $15.00 less than the typical retail price for a

genuine Oceanus snare.

40. The continued advertising, offering for sale, distribution and sale of Defendants’

counterfeit products will cause damage to Plaintiff’s reputation for quality, unless enjoined.

COUNT I
FEDERAL TRADEMARK INFRINGEMENT
CONSTITUTING COUNTERFEITING
(15 U.S.C. §§ 1114 – 1117)

41. This Count alleges Trademark Infringement pursuant to 15 U.S.C. § 1114,

against the Defendants. The Plaintiff re-alleges and incorporates by reference the allegations

contained in paragraphs 1 through 40, above.

42. Oceanus is the owner of U.S. Trademark Registration No. 5,057,372, for the mark in

International Class 028 for lobster snares. A copy of the Registration is attached hereto as Exhibit

“C”.

43. The Plaintiff’s mark has acquired distinctiveness. The public associates the mark

exclusively with Oceanus, as a result of the distinctiveness acquired through long, continuous, and

exclusive use in commerce in connection with its products bearing the mark.

44. Despite these well-established rights, and without Oceanus’ authorization,

Defendants have violated 15 U.S.C. § 1114 by having intentionally used the mark in commerce,

knowing that it is identical, or virtually indistinguishable from, Plaintiff’s mark. Defendants have

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done so in connection with the sale, offering for sale, advertising, and distribution of the identical

goods for which the Oceanus mark is registered on the Principal Trademark Register of the United

States Patent and Trademark Office.

45. Defendants’ use of a counterfeit mark is likely to confuse or deceive the trade and

purchasing public into believing, contrary to fact, that Defendants’ lobster snare is sponsored,

licensed, or otherwise approved by, or is in some way connected to, or affiliated with, Plaintiff.

46. Further, Defendants’ use of the counterfeit mark is likely to cause confusion, due

to, at least, the identity of the goods, the identity of the marks, and the marketing channels used

for the respective goods.

47. Defendants’ acts constitute willful trademark counterfeiting, and has been, and

continues to be, with the intent to cause confusion, mistake, and to deceive consumers concerning

the source and/or sponsorship of Defendants’ counterfeit products.

48. Unless enjoined, Defendants’ counterfeiting/infringement has caused and will

continue to cause Oceanus immediate and irreparable injury. Accordingly, Oceanus is entitled to

injunctive relief under 15 U.S.C. § 1116 because the irreparable injury is in an amount not yet

ascertainable, and for which Oceanus has no adequate remedy at law.

49. As a direct and proximate result of Defendants’ conduct, Oceanus is entitled to

damages, treble damages, statutory damages, the equitable remedy of an accounting for, and a

disgorgement of all revenues and/or profits wrongfully derived by Defendant through its

infringement, and all attorney fees and costs, pursuant to 15 U.S.C. § 1117.

50. This an exceptional case within the meaning of 15 U.S.C. § 1117(a).

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COUNT II
FALSE DESIGNATION OF ORIGIN
(15 U.S.C. § 1125(a))

51. This Count alleges False Designation and False Association pursuant to 15 U.S.C.

§ 1125(a)(1)(A) against the Defendants. The Plaintiff re-alleges and incorporates by reference the

allegations contained in paragraphs 1 through 40, above.

52. In violation of 15 U.S.C. § 1125(a)(1)(A), Defendants have used, and continue to

use in commerce, a false and misleading designation of origin concerning Defendants’ products

and Oceanus’ products.

53. Defendants’ false designation of origin is likely to cause confusion regarding the

affiliation, connection, or association of Defendants’ products with Oceanus, as to the origin,

sponsorship, and/or approval of Defendants’ products.

54. Defendants have caused and will continue to cause their false and misleading

designations of origin to enter interstate commerce.

55. Oceanus has been and is likely to be injured as a result of the Defendants’ false and

misleading designation of origin.

56. By reason of Defendants’ actions, Oceanus has suffered irreparable harm. Unless

Defendants are restrained from their actions, Oceanus will continue to be irreparably harmed.

57. Oceanus has no remedy at law that will compensate for the continued and irreparable

harm that will be caused if Defendants’ acts are allowed to continue and is thus entitled to a

preliminary and permanent injunction.

58. As a direct and proximate result of Defendants’ conduct, Oceanus is entitled to

damages, treble damages, statutory damages, the equitable remedy of an accounting for, and

disgorgement of, all revenues and/or profits wrongfully derived by Defendants through their

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infringement, and all attorney fees and costs incurred by Oceanus pursuant to 15 U.S.C. § 1117.

59. This is an exceptional case within the meaning of 15 U.S.C. § 1117(a).

COUNT III
UNFAIR COMPETITION

60. This Count alleges Common Law Unfair Competition under the laws of Florida,

§ 2.01, Fla. Stat. against the Defendants. The Plaintiff re-alleges and incorporates by reference the

allegations contained in paragraphs 1 through 40, above.

61. Defendants improperly utilize a counterfeit of the Plaintiff’s mark which is identical

to Oceanus’ genuine mark.

62. Defendants’ actions as described above constitute unfair competition as a matter of

law, in violation of § 2.01, Fla. Stat.

63. As a result of Defendants’ conduct, Oceanus will continue to suffer damage to its

reputation and loss of business because of consumer confusion as to the origin, sponsorship,

approval, nature, characteristics, or qualities of Defendants’ products.

64. Oceanus has been, and absent injunctive relief will continue to be, irreparably

harmed by Defendants’ actions.

65. Oceanus has no adequate remedy at law for Defendants’ unfair competition.

66. Oceanus is entitled to damages in an amount to be proven at trial.

DEMAND FOR JURY TRIAL

Plaintiff respectfully demands a trial by jury on all issues so triable.

PRAYER FOR RELIEF

WHEREFORE, Oceanus respectfully prays the Court grant it the following relief:

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A. Entry of judgment that:

a. Defendants have infringed Oceanus’ mark under §§ 32 and 43(a) of the

Lanham Act, 15 U.S.C. §§ 1114 and 1125(a), respectively; and

b. Defendants have engaged in unfair competition;

c. Oceanus is entitled to actual damages due to Defendants’ violation of §§ 32

and 43(a) of the Lanham Act;

d. Oceanus is entitled to disgorgement of Defendants’ profits obtained from the

infringing conduct;

e. Pursuant to 15 U.S.C. §1117(b), judgment for three times such profits, or

damages, whichever is greater, together with reasonable attorney’s fees and

pre-judgment interest;

f. Pursuant to 15 U.S.C. §1117(c), a finding of willful use of a counterfeit

mark, and appropriate statutory damages;

g. That this is an exceptional case under 15 U.S.C. §1117, entitling Oceanus

to recover its attorneys’ fees in this action;

h. That Oceanus, to the extent authorized by the law, is entitled to punitive

damages due to Defendant’s disregard for the law under of §§ 32 and 43(a)

of the Lanham Act.

B. Entry of a preliminary injunction against Defendants and each of their agents,

employees, servants, attorneys, successors and assigns, and all others in privity or

acting in concert or participation therewith from:

a. Manufacturing, distributing, selling, offering to sell, or advertising lobster

snares bearing Plaintiff’s registered trade dress, or any colorable imitation

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thereof;

b. Offering for sale, advertising, or displaying lobster snares bearing

Plaintiff’s registered trade dress in connection with any advertisements of

lobster snares bearing color not covered by Plaintiff’s trade dress

registration, or any colorable imitation thereof; and

c. Advertising, whether in writing or through oral statements, that the sleeve

material covering over the color green from Defendants’ covered snares

(as identified in paragraphs 26-33 and Exhibit “H” to the First Amended

Complaint) can be removed;

C. Entry of judgment that Defendants and each of their agents, employees, servants,

attorneys, successors and assigns, and all others in privity or acting in concert

therewith be permanently enjoined from:

a. Using the mark in connection with lobster snares;

b. Using any trademark which consists of or incorporates the color green or

any other trademark that is confusingly similar to the mark, in connection

with the offering of any lobster snares;

c. Using the mark alone, or in combination with other words, letters and/or

symbols, in any manner which misleads, confuses or deceives or is likely to

mislead, confuse or deceive the public;

d. In connection with lobster snares, covering over the mark with any material

which is either capable of removal, or in use, scrapes away, degrades or is

otherwise capable of revealing the mark below, during the normal life of the

product.

e. Competing unfairly with Oceanus or otherwise injuring Oceanus’ business

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reputation in the manner complained of herein; and

f. Be instructed to amend their website(s) and marketing materials to conform

with the foregoing paragraphs and to send corrective statements to all

distributors, retailers, or customers who have purchased or inquired about

Defendants’ goods.

D. A judgment pursuant to § 36 of the Lanham Act, 15 U.S.C. § 1118 instructing

Defendants deliver up for destruction all advertisements, promotional materials,

labels, signs, prints, packages, wrappers, receptacles, uniforms, business cards,

stationery, menus, and all other materials in the possession or under the control of

Defendants bearing or including the mark or any other reproduction, counterfeit, copy

or colorable imitation of the mark and all plates, molds, matrices and any other

means of making or duplicating the same to Oceanus.

E. The Court award such other and further relief as it deems appropriate.

Respectfully submitted,

McHALE & SLAVIN, P.A.

Edward F. McHale
Edward F. McHale (FBN: 190300)
Andrew D. Lockton (FBN: 115519)
2855 PGA Boulevard
Palm Beach Gardens, Florida 33410
Telephone: (561) 625-6575
Facsimile: (561) 625-6572
E-mail: [email protected]

Attorneys for Plaintiff

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