LUXOTTICA GROUP v. TELECOMM CORPORATION (2026)

MEMORANDUM OF DECISION

Luxottica Group, S.p.A. (“Luxottica Group” or “Plaintiff”) filed this trademark infringement action against E-Z Telecomm Corporation (“E-Z Telecomm”) and its owner, Edid L. Batista (“Batista”) (together, “Defendants”). [Doc. No. 1 at ¶¶ 1–6]. Complaint asserts two causes of action. First, under Section 32 of the Lanham Act, 15 U.S.C. § 1114, Plaintiff alleges that Defendants promoted, advertised, offered for sale, and sold products bearing unauthorized counterfeit versions of one or more of Plaintiff's Ray-Ban trademarks (Count I). [Doc. No. 1 at ¶¶ 32–38]. Second, Plaintiff asserts a claim under Massachusetts common law, alleging that Defendants used unauthorized counterfeit imitations of one or more of Plaintiff's Ray-Ban trademarks (Count II). [Id. at ¶¶ 39–43]. Plaintiff seeks monetary damages, injunctive relief prohibiting Defendants from selling counterfeit Ray-Ban merchandise, statutory damages, prejudgment interest, and such other relief as the Court deems just and proper. [Id. ¶¶ 30–31; id. at 11]. Before me is Plaintiff's motion for partial summary judgment on liability as to Count I and Defendants’ affirmative defenses. [Doc. No. 19]. For the reasons below, Plaintiff's motion for partial summary judgment, [Doc. No. 19], is GRANTED in part and DENIED in part.

I. FACTUAL BACKGROUND

The following facts are undisputed. Luxottica is an internationally recognized manufacturer, distributor, and retailer of premium, luxury, and sport eyewear throughout the world, including the Ray-Ban brand. [Doc. No. 21 at ¶¶ 1–2]. Luxottica is the owner of a variety of federally registered trademarks on and in connection with the Ray-Ban brand. [Id. at ¶¶ 4–5]. Luxottica has spent substantial time, money, and other resources on developing, advertising, and otherwise promoting the Ray-Ban trademarks. [Id. at ¶ 6]. Products bearing Ray-Ban trademarks are widely recognized and exclusively associated by consumers, the public, and the trade as being products sourced from Luxottica. [Id. at ¶ 7].

E-Z Telecomm is a Massachusetts corporation that operates two check-cashing and money transfer stores in Chelsea, Massachusetts. [Id. at ¶ 9]. Approximately 6,000–7,000 customers visit E-Z Telecomm's 227 Broadway location every month. [Id. at ¶ 10]. Batista is E-Z Telecomm's sole shareholder and, since the company's incorporation in 2002, has served as its sole president, treasurer, secretary, and director. [Id. at ¶¶ 11–12]. Batista works at E-Z Telecomm's 227 Broadway location almost every day from approximately 12:00 p.m. to 8:00 p.m., Monday through Sunday, and describes himself as the store's “compliance officer.” [Id. at ¶ 13]. He personally pays E-Z Telecomm's bills, opens its mail, makes its bank deposits, maintains its books and records, and conducts employee training. [Id. at ¶ 14]. All E-Z Telecomm employees report directly to Batista. [Id. at ¶ 15]. He also has sole authority to decide what products and services are offered by E-Z Telecomm and has never delegated that authority to any employee. [Id. at ¶ 16].

Batista permitted an E-Z Telecomm employee (“Employee A”) to sell merchandise—including the Ray-Ban branded sunglasses at issue—from inside E-Z Telecomm's 227 Broadway store. [Id. at ¶ 26].¹ Batista monitors E-Z Telecomm's sales floor through surveillance cameras and has personally observed how many customers engage with the merchandise. [Id. at ¶ 29]. Batista is familiar with the Ray-Ban brand, having personally owned a pair of Ray-Ban sunglasses. [Id. at ¶ 30]. On August 9, 2025, a Luxottica investigator visited E-Z Telecomm's 227 Broadway location and observed various items for sale, including a rack of sunglasses bearing the Ray-Ban trademarks. [Id. at ¶¶ 17–19]; [Doc. No. 21-3 at 4–7]. The investigator selected one pair of Ray-Ban branded sunglasses and tendered $40.00 to an E-Z Telecomm employee (“Employee B”), who was authorized to assist in the sale of displayed merchandise when Employee A was not physically present. [Doc. No. 21 at ¶¶ 20, 27]. Employee B provided the investigator with a sales receipt, which reflected the $40.00 purchase of the sunglasses. The receipt identified E-Z Telecomm by name, listed its check-cashing license number, and was generated through the store's point-of-sale register using the “calling card” button. [Id. at ¶¶ 21–22]; [Doc. No. 21-3 at 8]. E-Z Telecomm did not preserve any surveillance footage of the August 9, 2025, transaction. [Doc. No. 21 at ¶ 43].

Luxottica's investigator transmitted the purchased sunglasses and photographs of the store display to Luxottica for examination; after inspecting the items, Luxottica determined that the sunglasses bore counterfeit versions of one or more Ray-Ban trademarks. [Doc. No. 21 at ¶¶ 23–25]. The sunglasses were neither manufactured by or for Luxottica nor manufactured, sold, or distributed with Luxottica's authorization. [Id. at ¶ 25]. Luxottica had never authorized E-Z Telecomm to sell Ray-Ban products or otherwise represented that it was permitted to do so. [Id. at ¶ 49]. After learning of this lawsuit, Batista instructed Employee A to remove “absolutely everything” from the store and “immediately prohibited” any further sales of merchandise. [Id. at ¶ 31]. The employees involved in the counterfeit sale have not been disciplined, suspended, or terminated. [Id. at ¶ 32].

II. LEGAL STANDARD

A. Summary Judgment

The role of summary judgment is “is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.” Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir. 1990). Summary judgment is appropriate in trademark infringement cases, as in any other civil action, when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Int'l Ass'n of Machinists & Aerospace Workers, AFL-CIO v. Winship Green Nursing Ctr., 103 F.3d 196, 199 (1st Cir. 1996) (quoting Boston Athletic Ass'n v. Sullivan, 867 F.2d 22, 24 (1st Cir. 1989)).

A “genuine issue” is one “that properly can be resolved only by a finder of fact because [it] may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is “material” if it could potentially affect the outcome of the suit. Winship Green Nursing Ctr., 103 F.3d at 199–200. The moving party bears the burden of demonstrating its legal entitlement to summary judgment. Devlin v. WSI Corp., 833 F. Supp. 69, 73 (D. Mass. 1993). “Once the moving party meets its initial burden, the opposing party ‘bears the burden of producing specific facts sufficient to defeat summary judgment.’ ” United States ex rel. Lokosky v. Acclarent, Inc., 675 F. Supp. 3d 15, 22 (D. Mass. 2023) (quoting González-Cabán v. JR Seafood Inc., 48 F.4th 10, 14 (1st Cir. 2022) (internal quotations omitted).

“While an inquiring court is constrained to examine the record in the light most favorable to the summary judgment opponent and to resolve all reasonable inferences in that party's favor, defeating a properly documented motion for summary judgment requires more than the jingoistic brandishing of a cardboard sword.” Winship Green Nursing Ctr., 103 F.3d at 200. Rather, “the nonmoving party must establish a trial-worthy issue by presenting enough competent evidence to enable a finding favorable to the nonmoving party.” LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 842 (1st Cir. 1993) (internal quotations omitted). “The mere existence of a scintilla of evidence in support of the [nonmoving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmoving party].” Anderson, 477 U.S. at 252, 106 S.Ct. 2505.

III. ANALYSIS

Section 32 of the Lanham Act imposes liability on any person who, without authorization, uses a registered trademark “in commerce” in connection with “the sale, offering for sale, distribution, or advertising of any goods” in a manner likely to cause confusion. 15 U.S.C. § 1114(1)(a). The sale or offering for sale is a clear example of the “use” of “goods in commerce.” See, e.g., Hearts on Fire Company, LLC v. Blue Nile, Inc., 603 F. Supp. 2d 274, 282 (D. Mass. 2009) (describing “uses in commerce” language, its interpretations, and listing “sale” and “offering for sale” as examples); Lorillard Tobacco Co. v. Amouri's Grand Foods, Inc., 453 F.3d 377, 381 (6th Cir. 2006) (“[W]e can think of no clearer ‘use’ of goods ‘in commerce’ than offering them for sale.”).

Proving trademark infringement under Section 32 is a two-pronged inquiry. First, the trademarks must be entitled to trademark protection. Bose Corp. v. Ejaz, 732 F.3d 17, 26 (1st Cir. 2013) (citing Bos. Duck Tours, LP v. Super Duck Tours, LLC, 531 F.3d 1, 12 (1st Cir. 2008)). “Registration serves as prima facie evidence that the trademarks are entitled to protection.” Id. Second, the allegedly infringing use must be likely to cause consumer confusion. Id. The central inquiry in any trademark infringement action is whether the defendant's use of the mark is likely to cause consumer confusion as to the source, sponsorship, or affiliation of the goods or services. Clemente Props., Inc. v. Pierluisi-Urrutia, 165 F.4th 1, 13 (1st Cir. 2026). Although likelihood of confusion ordinarily presents a question of fact evaluated under the First Circuit's familiar multi-factor test—including the similarity of the marks, the similarity of the goods, and evidence of actual confusion—see Boston Athletic Ass'n v. Sullivan, 867 F.2d 22, 29 (1st Cir. 1989); Copy Cop, Inc. v. Task Printing, Inc., 908 F. Supp. 37, 44 (D. Mass. 1995), a full factor-by-factor analysis is unnecessary where the challenged marks are counterfeit. Because counterfeit marks are designed to imitate genuine marks and are used on identical or substantially identical goods, a likelihood of confusion is presumed. See VMG Enters., Inc. v. F. Quesada & Franco, Inc., 788 F. Supp. 648, 661 (D.P.R. 1992).

Liability for the sale of counterfeit goods under the Lanham Act does not depend on the seller's knowledge or intent. “A counterfeit mark includes ‘a counterfeit of a mark that is registered on the principal register in the United States Patent and Trademark Office for such goods or services sold, offered for sale, or distributed and that is in use, whether or not the person against whom relief is sought knew such mark was so registered.’ ” Sound United, LLC v. SalusAudio.com, No. 21-12029, 2022 WL 14757794, at *4 (D. Mass. Oct. 25, 2022) (quoting 15 U.S.C. § 1116(d)(1)(B)(i)). Consistent with that definition, courts have recognized that the sale of counterfeit goods is effectively a strict liability offense. “The mere selling of counterfeit goods constitutes trademark infringement even if the seller did not know the goods were counterfeit.” Polo Fashions, Inc. v. Fernandez, 655 F. Supp. 664, 667 (D.P.R. 1987). Thus, a defendant's good faith, lack of intent, or subjective belief that the goods were not counterfeit is no defense. See id. (explaining that “actions for trademark infringement and Lanham Act unfair competition do not depend upon proof of wrongful or fraudulent intent.”).

A. Count I (Section 32 of the Lanham Act)

As an initial matter, Defendants have failed to properly controvert Plaintiff's Statement of Material Facts (“Plaintiff's SMF”). Although Defendants filed a Statement of Additional Material Facts (“Defendants’ SMF”), [Doc. No. 21], it does not include the required paragraph-by-paragraph response to Plaintiff's SMF as required by Local Rule 56.1 and this Court's Standing Order Regarding Motion Practice § D(1). Because Defendants do not specifically dispute Plaintiff's SMF ¶¶ 1–45 or 47–50, those facts are deemed admitted for purposes of this motion.² See [Doc. No. 25]. Further, Defendants attempt to inject new factual disputes by submitting affidavits executed after the close of discovery that contradict prior deposition testimony. See [Doc. No. 25-2] (Affidavit of Edid Batista, signed May 15, 2026); [Doc. No. 25-3] (Affidavit of Gladys Rosana Orantes, signed May 18, 2026); [Doc. No. 25-4] (Affidavit of Katie Rodriguez, signed May 15, 2026). The introduction of these affidavits is untimely, and I decline to consider them. Even if I were to consider them, they fail to create a genuine dispute of material fact sufficient to preclude summary judgment.

The undisputed facts establish the following. First, Defendant's employee sold Ray-Ban-branded sunglasses to a customer at Defendant's store, after the customer selected the sunglasses from a rack inside the store. [Doc. No. 21 at ¶¶ 17–22]. The employee completed the transaction using E-Z Telecomm's point-of-sale register and issued a receipt bearing the company's name and check-cashing license number. [Id.]. The Ray-Ban-branded sunglasses were, in fact, counterfeit. They were not manufactured by or for Plaintiff, notwithstanding Plaintiff's exclusive rights in the Ray-Ban trademarks. [Id. at ¶¶ 3–8, 24–25]. The Ray-Ban markings on the counterfeit sunglasses were “identical to, or substantially indistinguishable from” the federally registered Ray-Bans trademarks owned by Plaintiff. [Doc. No. 21-2 at ¶ 34]. Indeed, the markings looked so similar that Defendant's employee claims she did not know they were counterfeit. [Doc. No. 25 at ¶ 20].

In opposition, Defendants do not contest these facts. Instead, they argue that Batista lacked knowledge of the sale and that the transaction did not constitute a legitimate sale by E-Z Telecomm. The summary judgment record, however, does not support either contention. During his deposition, Batista testified that he has never delegated to any employee the authority to determine what products or merchandise may be offered for sale at E-Z Telecomm's 227 Broadway location. [Doc. No. 21-4 at 9–10, Batista Dep. at 10:21–24, 11:1]. He further acknowledged that he permitted Employee A to sell merchandise from prominent displays within the store during regular business hours. [Id. at 10–11, 11:15–24, 12:1–8]. Batista also testified that, although he could not monitor employees when he was away from the store, he had the ability to view the store's surveillance cameras remotely. [Id. at 11, 12:9–19]. Batista maintained that he was unaware Ray-Ban-branded sunglasses were being sold until he was served with this lawsuit, notwithstanding that he had been present in the store while the sunglasses were displayed for sale. [Id. at 14, 15:3–24]. He likewise testified that he neither assisted Employee A in setting the merchandise prices nor knew the price of the Ray-Ban-branded sunglasses until he later reviewed the sales receipt. [Id. at 15, 17:3–10].

As to E-Z Telecomm's liability, though, these facts do not address the legal issue. Plaintiff moved for summary judgment on liability for their 15 U.S.C. § 1114 claim, a statute which imposes liability on any entity or person who “use[s] in commerce” a registered mark in connection with “the sale, offering for sale, distribution, or advertising of any goods” in a manner likely to cause confusion. 15 U.S.C. § 1114(1)(a). Thus, the relevant inquiry is not whether Batista personally knew the sunglasses were counterfeit or participated in the sale, but whether E-Z Telecomm used Plaintiff's protected trademarks in commerce in a manner likely to cause consumer confusion. See Bose Corp., 732 F.3d at 26. On the first element, there is no genuine dispute that the Ray-Ban trademarks are entitled to protection. See, e.g., [Doc. No. 21 at ¶ 4]. On the second, the eight factors to weigh in assessing the likelihood of confusion likewise indicate that Plaintiff's Lanham Act claim succeeds. See Boston Athletic Ass'n, 867 F.2d at 29.

1. Factors Weighing In Favor of Confusion

Four of the eight factors identified by the First Circuit weigh in favor of confusion in this case, including the similarity of the marks, the similarity of the goods, the evidence of confusion, and the strength of the mark. To begin, there is little doubt as to the strength of the Ray-Ban mark. Plaintiff's “relative renown in its field” of eyewear speaks for itself and indicates strength in the Ray-Band brand. Boston Athletic Ass'n, 867 F.2d at 32. The similarity between the marks is likewise overwhelming. The counterfeit sunglasses bore markings that were identical to, or at least substantially indistinguishable from, Plaintiff's registered Ray-Ban trademarks. Indeed, the similarities were so convincing that E-Z Telecomm's employee testified that she believed the sunglasses were authentic. [Doc. No. 21-5 at 14, Batista Dep. 22:3–4]. The photographs in the record further confirm that the counterfeit sunglasses displayed Ray-Ban branding on the temples and lens, a Ray-Ban sticker affixed to the lens, and a hanging tag bearing the Ray-Ban logo and the phrase “Genuine Since 1937.” [Doc. No. 21-2 at 31]. As the First Circuit has observed, where “the two marks [are] more than similar”—indeed, “identical”—the similarity factor weighs heavily in favor of a likelihood of confusion. Boston Athletic Ass'n, 867 F.2d at 30.

The remaining factors likewise favor Plaintiff. The goods at issue are identical—both are marketed as Ray-Ban sunglasses—and the record contains evidence of actual confusion, as demonstrated by the employee's belief that the counterfeit sunglasses were genuine.³ See [Doc. No. 21-5 at 14, Batista Dep. 22:3–4]. Together, these factors overwhelmingly support a finding that Defendants’ use of the Ray-Ban marks was likely to cause consumer confusion.

2. Factors Weighing Against Confusion

The remaining four factors—namely, Defendants’ intent in adopting the mark and the relationship between the parties’ advertising, channels of trade, and classes of prospective purchasers—weigh against confusion. In assessing intent, the First Circuit in Boston Athletic Association looked at Defendants’ “actions,” including their active choice to put designs referring to the Boston Marathon on clothing they sold. 867 F.2d at 32. The First Circuit noted this “clearly show[ed] their intent to trade on BAA's sponsorship and management of the Boston Marathon.” Id. By contrast, the record here does not establish that E-Z Telecomm or Batista knowingly adopted or intentionally sought to exploit the Ray-Ban mark. Rather, the undisputed evidence indicates that Batista was unaware the sunglasses bore counterfeit Ray-Ban trademarks until after this action was filed. Further, these Defendants are in the check-cashing business and not owners of a sunglasses or eyewear shop. As a result, its advertising, channels of trade, and prospective customers differ substantially from those through which authentic Ray-Ban products are ordinarily marketed and sold. A consumer intending to purchase genuine Ray-Ban sunglasses would not ordinarily visit a check-cashing establishment for that purpose. Moreover, authentic Ray-Ban sunglasses typically retail for between $220 and $264, [Doc. No. 21-2 at ¶ 33], whereas the counterfeit sunglasses at issue here were sold for $40, [Doc. No. 21-4 at 15, Batista Dep. at 17:1–2], which may raise eyebrows for those interested in purchasing authentic luxury eyewear.

Nevertheless, these considerations do not alter the outcome. As discussed above, where a defendant uses counterfeit marks that are identical or substantially indistinguishable from a plaintiff's registered trademarks on the same goods, a likelihood of confusion is presumed. Accordingly, the absence of evidence that Defendants intentionally sought to trade on Plaintiff's goodwill, together with the differences in the parties’ marketing channels and customer base, is insufficient to overcome that presumption.

3. Liability

The next question is who is liable for this trademark infringement. In actions brought under Section 32 of the Lanham Act, the principal inquiry ordinarily is whether the defendant's use of the mark is likely to cause confusion as to the source or authenticity of the goods. See Black Dog Tavern Co., Inc. v. Hall, 823 F. Supp. 48, 54 (D. Mass. 1993) (citing Boston Athletic Ass'n, 867 F.2d at 28). Here, however, the likelihood-of-confusion analysis also encompasses whether consumers would be confused over who was selling the infringing product.

A consumer walking into E-Z Telecomm's 227 Broadway store would have encountered merchandise displayed for sale, including a rack of Ray-Ban-branded sunglasses. [Doc. No. 21 at ¶¶ 18–19]. Although Defendants contend that the merchandise sales were merely Employee A's side business, [Doc. No. 24 at 2], nothing about the transaction would have conveyed that distinction to an ordinary consumer. The sunglasses were displayed for sale inside E-Z Telecomm's store during regular business hours, the transaction was completed by an E-Z Telecomm employee using the store's point-of-sale register, and the purchaser received a receipt identifying E-Z Telecomm by name and displaying its check-cashing license number. [Doc. No. 21 at ¶¶ 20–21]. Under these circumstances, a reasonable consumer would attribute the sale to E-Z Telecomm rather than to Employee A acting independently. Accordingly, E-Z Telecomm used Plaintiff's trademarks in commerce within the meaning of Section 1114 and is liable for the resulting infringement. Plaintiff's motion for summary judgment is therefore GRANTED as to E-Z Telecomm.

The analysis differs as to Batista's individual liability. A corporate officer is not personally liable under the Lanham Act solely by virtue of his position within the corporation. Rather, personal liability attaches only where the individual was the “moving, active conscious force behind [the defendant corporation's] infringement.” Polo Fashions, Inc. v. Branded Apparel Merchandising, Inc., 592 F. Supp. 648, 652 (D. Mass. 1984) (quoting Marks v. Polaroid Corp., 237 F.2d 428, 435 (1st Cir. 1956), cert. denied, 352 U.S. 1005, 77 S.Ct. 564, 1 L.Ed.2d 550 (1957)). Viewing the facts in the light most favorable to Defendants, Plaintiff has not established Batista's personal liability as a matter of law. Batista testified that he was unaware Ray-Ban-branded sunglasses were being sold in the store and did not learn of the sale until he was served with this lawsuit. [Doc. No. 21-4, Batista Dep. 15:3–14]. Plaintiff argues that Batista's status as E-Z Telecomm's sole shareholder and sole corporate officer warrants the inference that he was the moving force behind the infringement. [Doc. No. 20 at 14]. I am not persuaded. Although the record could support a finding that Batista was willfully blind to the infringing activity, it could also support the inference that, beyond permitting Employee A to sell merchandise from the store, he neither directed nor participated in the sale of the counterfeit sunglasses. Because a reasonable factfinder could draw either inference, a genuine dispute of material fact remains as to whether Batista was the “moving, active conscious force” behind the infringement. Summary judgment against Batista is therefore inappropriate, and Plaintiff's motion is DENIED as to him.

B. Affirmative Defenses

Plaintiff moves for summary judgment on all seven of Defendants’ affirmative defenses pursuant to Rule 56(a), which permits a party to “move for summary judgment, identifying each claim or defense” on which summary judgment is sought. Here, the seven affirmative defenses are (1) failure to state a claim; (2) equitable estoppel; (3) failure to mitigate damages; (4) Plaintiff's own culpability; (5) overstatement of loss; (6) unjust enrichment; and (7) failure to join necessary parties. [Doc. No. 10 at 4]. Under Rule 56(c)(1)(b), the moving party can support its assertions by “showing ․ that an adverse party cannot produce admissible evidence to support the fact.” An affirmative defense is not merely a pleading device; it is a matter on which the defendant bears the burden of proof at trial. See U.S. Liab. Ins. Co. v. Selman, 70 F.3d 684, 691 (1st Cir. 1995). Accordingly, once a plaintiff demonstrates the absence of evidence supporting an affirmative defense, the burden shifts to the defendant to identify specific record evidence creating a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322–25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir. 1999). A defendant opposing summary judgment “may not rest upon mere allegation or denials,” but instead must present competent evidence demonstrating a trialworthy issue. Winship Green Nursing Ctr., 103 F.3d at 200.

Here, Plaintiff identified the absence of evidence supporting Defendants’ affirmative defenses and relied on Defendants’ discovery responses in which they failed to identify any factual or legal basis for those defenses. In response, Defendants devote their opposition almost entirely to disputing Plaintiff's prima facie case and do not meaningfully address—let alone produce evidence supporting—their affirmative defenses. Nor does Defendants’ Statement of Additional Material Facts identify facts directed to any affirmative defense.

The First Circuit has repeatedly held that arguments not developed in opposition to summary judgment are waived. See Grenier v. Cyanamid Plastics, Inc., 70 F.3d 667, 678 (1st Cir. 1995); Rocafort v. IBM Corp., 334 F.3d 115, 121 (1st Cir. 2003); see also First Choice Armor & Equip., Inc. v. Toyobo Am., Inc., 839 F. Supp. 2d 407, 415 (D. Mass. 2012) (granting summary judgment on affirmative defenses where the movant “neither expounded theories under which such defenses might apply to this case nor met its burden of offering evidence tending to prove them.”). Because Defendants bear the burden of proof on their affirmative defenses, and because they have neither produced evidence nor developed any argument demonstrating a genuine dispute of material fact as to any defense, no reasonable jury could find in their favor on those issues. Plaintiff is therefore entitled to judgment as a matter of law dismissing each of Defendants’ affirmative defenses, with the exception of (5) overstatement of loss, which I agree with Plaintiff that it pertains to damages, not liability, and is therefore inappropriate to resolve at this juncture.

Accordingly, Plaintiff's motion for summary judgment is GRANTED as to Defendants’ affirmative defenses (1)-(4) and (6)-(7).

IV. CONCLUSION

For the foregoing reasons, Plaintiff's motion for summary judgment, [Doc. No. 19], is GRANTED in part and DENIED in part. The motion is GRANTED as to E-Z Telecomm's liability under Count I and as to Defendants’ affirmative defenses (1)-(4) and (6)-(7). The motion is DENIED as to Batista's liability on Count I and as to Defendants’ affirmative defense (5).

SO ORDERED.

FOOTNOTES

1.   Employee A's name is Gladys Rosana Orantes, and Employee B's name is Katie Rodriguez. [Doc. No. 21 at ¶¶ 26–27]. However, for simplicity, they will be referred to as Employee A and Employee B throughout this memorandum.

2.   There is some dispute over ¶ 46 of Plaintiff's SMF, which is arguably addressed by Defendants’ SMF ¶ 29 and Batista's deposition testimony. However, this factual dispute is not material to resolving the motion before me, and I therefore do not address it further.

3.   While the $40 retail price this employee set for the sunglasses, considering their traditional retail value of $220 or more, could indicate that this employee's confusion was not genuine, I instead weigh this factor below as part of the class of prospective purchasers inquiry.

Joun, United States District Judge