Drummond

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

FCC HOTEL TOWER, LLC,

Plaintiff,

v. Case No. 2:23-cv-702-SPC-KRH

THOMAS DRUMMOND,

MBOR INVESTMENTS, LLC,

MBOR AMENITIES, LLC, and,

MBOR RENTALS, LLC,

Defendants.

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ORDER

This matter is before the Court on consideration of

Plaintiff FCC Hotel Tower, LLC’s (“FCC Hotel”) Motion in

Limine (Doc. # 122) and Defendants Thomas Drummond, MBOR

Investments, LLC, MBOR Amenities, LLC, and MBOR Rentals,

LLC’s Omnibus Motion in Limine (Doc. # 123), both filed on

March 9, 2026. Both sides have responded to the other’s

Motion. (Doc. ## 124, 126). For the reasons that follow, FCC

Hotel’s Motion is granted in part and denied in part, and

Defendants’ Motion is denied.

I. Legal Standard

“A motion in limine presents a pretrial issue of

admissibility of evidence that is likely to arise at trial,

and as such, the order, like any other interlocutory order,

remains subject to reconsideration by the court throughout

the trial.” In re Seroquel Prods. Liab. Litig., Nos. 6:06–

md–1769–ACC-DAB, 6:07–cv–15733–ACC-DAB, 2009 WL 260989, at *1

(M.D. Fla. Feb. 4, 2009). “The real purpose of a motion in

limine is to give the trial judge notice of the movant’s

position so as to avoid the introduction of damaging evidence

which may irretrievably effect the fairness of the trial.”

Id. (internal quotation omitted). “A court has the power to

exclude evidence in limine only when evidence is clearly

inadmissible on all potential grounds.” Id. (internal

quotation omitted).

“A motion in limine is not the proper vehicle to resolve

substantive issues, to test issues of law, or to address or

narrow the issues to be tried.” LSQ Funding Grp. v. EDS Field

Servs., 879 F. Supp. 2d 1320, 1337 (M.D. Fla. 2012) (citing

Royal Indem. Co. v. Liberty Mut. Fire Ins. Co., No. 07–80172–

CIV, 2008 WL 2323900, at *1 (S.D. Fla. June 5, 2008)). “Denial

of a motion in limine does not necessarily mean that all

evidence contemplated by the motion will be admitted at

trial.” In re Seroquel, 2009 WL 260989, at *1 (internal

quotation marks omitted). “Instead, denial of the motion

means the court cannot determine whether the evidence in

question should be excluded outside the trial context.” Id.

“The court will entertain objections on individual proffers

as they arise at trial, even though the proffer falls within

the scope of a denied motion in limine.” Id.

Federal Rule of Civil Procedure 401 defines “relevant

evidence” as “evidence having any tendency to make the

existence of any fact that is of consequence to the

determination of the action more probable or less probable

than it would be without the evidence.” Fed. R. Evid. 401.

Irrelevant evidence is inadmissible. Fed. R. Evid. 402. All

relevant evidence is admissible unless “its probative value

is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury,

or by considerations of undue delay, waste of time, or

needless presentation of cumulative evidence.” Fed. R. Evid.

402, 403; United States v. Ross, 33 F.3d 1507, 1524 (11th

Cir. 1994). Use of Rule 403 to exclude relevant evidence is

an “extraordinary remedy” whose “major function . . . is

limited to excluding matter of scant or cumulative probative

force, dragged in by the heels for the sake of its prejudicial

effect.” United States v. Grant, 256 F.3d 1146, 1155 (11th

Cir. 2001).

The district court has broad discretion to determine the

admissibility of evidence, and the appellate court will not

disturb this Court’s judgment absent a clear abuse of

discretion. United States v. McLean, 138 F.3d 1398, 1403 (11th

Cir. 1998); see also United States v. Jernigan, 341 F.3d 1273,

1285 (11th Cir. 2003) (“Inherent in this standard is the firm

recognition that there are difficult evidentiary rulings that

turn on matters uniquely within the purview of the district

court, which has first-hand access to documentary evidence

and is physically proximate to testifying witnesses and the

jury.”).

II. Discussion

A. FCC Hotel’s Motion

FCC Hotel seeks to exclude five categories of evidence

from trial:

1. A select exhibit from Florida state court proceedings;

2. Correspondence among the parties’ counsel regarding

Defendants’ assertions of “false advertising”;

3. Nominative fair use;

4. Abandonment; and

5. Any attack on the registered marks as descriptive or

lacking secondary meaning.

(Doc. # 122 at 3). The Court will address each separately.

1. Court order from state court proceedings

First, FCC Hotel seeks to exclude Defendants’ Exhibit

14, which is a state court order from a separate case, FCC

Hotel Tower, LLC et al v. Marco Beach Ocean Resort Condominium

Assoc., Inc., et al, No. 11-2022-CA-1769 (20th Fla. Cir. Ct.).

(Doc. # 122 at 3-5; Doc. # 124-1; Doc. # 132-2 at 3). That

order pertains to the exclusion of certain evidence

improperly obtained by the plaintiffs’ private investigators.

FCC Hotel’s Motion is granted as to category 1. The

proffered state court order arises from separate litigation

involving different claims, parties, and evidentiary issues.

It has minimal to no probative value with respect to the

trademark issues to be tried in this case. Contrary to

Defendants’ assertion, FCC Hotel’s motivation in bringing the

instant suit is not relevant. See, e.g., Ideal Image Dev.

Corp. v. Idealaser Hair Removal Corp., No. 18-20927-CIV, 2019

WL 13064870, at *1 (S.D. Fla. Aug. 28, 2019) (“Evidence of an

improper motive for filing this lawsuit is irrelevant to the

issue of trademark infringement.”); State Farm Mut. Auto.

Ins. Co. v. Complete Care Centers, LLC, No. 6:20-cv-1240-WWB-

EJK, 2023 WL 4854725, at *4 (M.D. Fla. Jan. 10, 2023) (“[T]he

Court agrees that Plaintiffs’ motivation for electing to

proceed with litigation is not relevant to the resolution of

this case and any relevance is substantially outweighed by

undue prejudice.”). Here, any marginal relevance of the state

court order is substantially outweighed by the danger of

unfair prejudice, confusion of the issues, and the risk of a

mini-trial regarding prior, separate proceedings. See Fed. R.

Evid. 401, 403. Further, the Court is not persuaded that the

exhibit is properly offered for a non-propensity purpose

under Rule 404(b). Defendants may, however, request

reconsideration outside the presence of the jury should FCC

Hotel open the door to such evidence at trial.

2. Cease-and-desist correspondence

Next, FCC Hotel seeks to exclude Defendants’ Exhibits 1

and 2, which are cease-and-desist correspondence between the

parties’ counsel in May 2025. (Doc. # 122 at 6-7; Doc. ##

124-2, 124-3; Doc. # 132-2 at 1-2). In the correspondence,

counsel for Defendants accused FCC Hotel of “false

advertising” and demanded that FCC Hotel “remove any and all

signage on the property suggesting it is a ‘resort.’” (Doc.

# 124-2 at 1). In response, counsel for FCC Hotel rejected

the demands and asserted that Defendant Drummond was the one

misleading the public. (Id. at 6).

FCC Hotel’s Motion is denied as to category 2. The

exhibits are relevant as to the parties’ disputes about the

source of potential customer confusion regarding the

provision of hotel-related services, abandonment of the marks

in relation to hotel-related services, and intent to resume

hotel-related services in the future. Contrary to FCC Hotel’s

argument, correspondence between counsel is not categorically

inadmissible hearsay and may be admissible as statements of

a party opponent. See Fed. R. Evid. 801(d)(2); see also Hanson

v. Waller, 888 F.2d 806, 814 (11th Cir. 1989) (finding

admissible “statements made by attorneys in a

representational capacity”).

3. Nominative Fair Use

Next, FCC Hotel seeks to exclude any evidence and

argument related to nominative fair use. (Doc. # 122 at 7-

8). According to FCC Hotel, “there is no allegation in the

answer, nor in any pleading or motion filed in this action,

that Defendants were referring to FCC’s services when using

FCC’s trademarks on Defendants’ advertising and website,” and

therefore “Defendants should be precluded from arguing to the

jury the defense of nominative fair use.” (Id.).

FCC Hotel’s Motion is denied as to category 3. The

Eleventh Circuit has declined to hold that nominative fair

use only applies when pled as an affirmative defense. Parsons

v. Regna, 847 Fed. App’x 766, 773 (11th Cir. 2021).

Accordingly, the Court is not persuaded that the nominative

fair use argument is barred merely because it was not raised

in Defendants’ pleadings. Moreover, nominative fair use may

also be considered as part of the likelihood-of-confusion

analysis. See Id. at n.13 (“We do note, however, that

nominative fair use is not an affirmative defense set forth

in the Lanham Act . . . and that the considerations underlying

nominative fair use appear to be more properly considered, if

at all, as part of the likelihood-of-confusion analysis.”).

As the Court noted in its Order on summary judgment, “the

property is still called Marco Beach Ocean Resort . . . [and]

FCC may also be contributing to the confusion. It maintains

the signage on the building, which continues to prominently

display both marks even after FCC ended its hotel program,

perhaps suggesting a continuity of services that could

confuse customers.” (Doc. # 100 at 23). Whether Defendants’

use of the marks qualifies as nominative fair use is a fact-

intensive and context-dependent inquiry appropriately

resolved by the jury at trial.

4. Abandonment

Next, FCC Hotel seeks to exclude any evidence and

argument related to abandonment. (Doc. # 122 at 8). According

to FCC Hotel, “Defendants did not plead the affirmative

defense of abandonment in their answer to the complaint. As

a result, this affirmative defense has been waived.” (Id.).

FCC Hotel’s Motion is denied as to category 4. Defendants

did allege that FCC Hotel abandoned the CREST DESIGN mark.

(Doc. # 90 at 18, ¶ 23). The Court also expressly analyzed

the abandonment defense in its Order on summary judgment.

(Doc. # 100 at 10-11). The Court found that Defendants “argue

FCC has abandoned its marks with respect to hotel services

because it stopped offering such services and has no plans to

resume.” (Id. at 11). The Court denied summary judgment on

the issue because genuine issues of material fact remain as

to FCC Hotel’s continued use of the marks and its intent to

resume offering hotel services. (Id.). As the Court concluded

in its Order on summary judgment, “Defendants’ claims for

cancellation of FCC’s crest mark and limited abandonment of

its word mark remain in play.” (Id. at 23).

5. Descriptive or lacking secondary meaning

Finally, FCC Hotel seeks to exclude any evidence and

argument related to attacking the registered marks as

descriptive or lacking secondary meaning. (Doc. # 122 at 9).

According to FCC Hotel, “the MARCO BEACH OCEAN RESORT and the

Crest Design registrations are incontestable . . . [and] ‘[a]

defendant in a trademark infringement action cannot assert

that an incontestable mark is invalid because it is

descriptive and lacks secondary meaning.’” (Id.) (quoting KP

Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 408

F.3d 596, 606 (9th Cir. 2005)).

FCC Hotel’s Motion is granted in part and denied in part

as to category 5. In its Order on summary judgment, the Court

stated that “the marks are at least arguably incontestable”

(Doc. # 100 at 15) and that “[t]he MARCO BEACH OCEAN RESORT

mark . . . is incontestable under 15 U.S.C. § 1065.” (Id. at

17). Accordingly, to the extent FCC Hotel’s marks are

incontestable, Defendants may not argue that such marks are

invalid on the basis that they are merely descriptive or lack

secondary meaning. See 15 U.S.C. § 1065; Park ’N Fly, Inc. v.

Dollar Park & Fly, Inc., 469 U.S. 189, 202-205 (1985) (holding

that an incontestable mark cannot be defended against on the

grounds that the mark is merely descriptive or lacking

secondary meaning).

However, Defendants may present evidence and argument

concerning the scope, strength, and use of the asserted marks,

including whether FCC Hotel uses the marks in connection with

the at-issue services and the extent to which such use bears

on the likelihood-of-confusion analysis. See HBP, Inc. v. Am.

Marine Holdings, Inc., 290 F. Supp. 2d 1320, 1329 (M.D. Fla.

2003) (“[I]ncontestable status — somewhat of a misnomer —

does not mean that a mark’s strength cannot be attacked.”),

aff’d sub nom. HBP, Inc. v. Am. Marine Holdings, 129 Fed.

App’x 601 (11th Cir. 2005); Wilhelm Pudenz, GmbH v.

Littlefuse, Inc., 177 F.3d 1204, 1208 (11th Cir. 1999) (“Once

a registration has achieved incontestable status, it is

treated as conclusive evidence of the registrant’s right to

use the trademark, subject to certain enumerated defenses.

Thus, incontestability narrows, but does not eliminate, the

grounds upon which the trademark’s validity may be called

into question by a defendant.” (citations omitted)).

B. Defendants’ Motion

Defendants seek to exclude two categories of evidence

from trial:

1. Corrective advertising damages; and

2. Online customer reviews.

(Doc. # 123). The Court will address each separately.

1. Corrective advertising damages

First, Defendants seek to exclude any evidence and

argument relating to FCC Hotel’s alleged “corrective

advertising” damages, arguing that this damages theory is

“speculative and unsupported.” (Id. at 2-5). According to

Defendants, “Plaintiff’s VP of Marketing did not offer any

expert reports,” “Plaintiff has no witness who has any

admissible opinion testimony as to the supposed corrective

advertising required,” and “Plaintiff itself simply guesses”

as to corrective advertising damages. (Id. at 4-5).

Defendants’ Motion is denied as to category 1. There is

no dispute that corrective advertising damages are

recoverable in trademark infringement actions under the

Lanham Act. See, e.g., Aronowitz v. Health-Chem Corp., 513

F.3d 1229, 1241 (11th Cir. 2008) (“‘[D]amages sustained by

the plaintiff’ include . . . the costs of corrective

advertising or injury to business reputation or goodwill.”

(citation omitted)). And “‘Lanham Act damages [such as

corrective advertising damages] may be awarded even when they

are not susceptible to precise calculations.’” Id. (citation

omitted). Moreover such damages need not be supported by

expert testimony. See Id. (finding “sufficient evidence in

the record to support [an] award for corrective advertising”

where the defendant’s chief financial officer offered

testimony “[b]ased on his personal experience with Health–

Chem and Hercon Laboratories, one of Health–Chem’s

manufacturing subsidiaries”); see also Open Sea Distribution

Corp. v. Artemis Distribution, LLC, 692 F. Supp. 3d 1151,

1245 (M.D. Fla. 2023) (excluding expert testimony on

corrective advertising but permitting third-party defendant

to testify directly about corrective advertising). “And

significantly, this Circuit has accepted an estimate of

future expenditures to support a jury’s verdict of damages

for corrective advertising.” PODS Enterprises, LLC v. U-Haul

Intern., Inc., 126 F. Supp. 3d 1263, 1283 (M.D. Fla. 2015)

(citing Aronowitz, 513 F.3d at 1241).

Here, in accordance with the parties’ agreement and the

Court’s Order on Defendants’ Daubert motion (Doc. # 104), FCC

Hotel will not offer expert testimony as to corrective

advertising. Instead, FCC Hotel intends to offer the

testimony of its Vice President of Sales and Marketing, Ms.

Jennifer Nicholson, to establish “the annual marketing

expenditures of FCC and the types of actions that would be

necessary to correct the damage to FCC’s marks.” (Doc. # 126

at 3). Such testimony from a knowledgeable corporate witness

regarding historical marketing practices and potential

remedial efforts may be relevant and admissible, and the Court

declines to categorically exclude such evidence. That said,

Defendants may raise objections at trial if FCC Hotel’s

presentation crosses from permissible testimony into

impermissible speculation.

2. Online customer reviews

Next, Defendants seek to exclude evidence of certain

online customer reviews, including Plaintiff’s Exhibits 15,

16, 25-28, and 48. (Doc. # 123 at 5-9; Doc. # 123-3; Doc. #

132-1 at 3-6). The exhibits show various screenshots of

customer reviews on Google, TripAdvisor, and AirBnB. (Doc. #

123-3). FCC Hotel represents that Plaintiff’s Exhibit 15 and

27 include reviews “associated with a Google search for ‘Marco

Beach Ocean Resort;’” Plaintiff’s Exhibits 16, 25 and 28

include “Tripadvisor reviews directly associated with

Defendants’ own website (‘Marco Beach Ocean Suites’)” and

“specifically refer to FCC’s mark MARCO BEACH OCEAN RESORT;”

and Plaintiff’s Exhibits 26 and 48 “include reviews directly

from Defendants’ Airbnb page, several of which specifically

refer to FCC’s mark MARCO BEACH OCEAN RESORT.” (Doc. # 126 at

5-6). FCC Hotel represents that it intends to offer these

exhibits “to demonstrate that numerous online viewers are

associating Drummond’s services with FCC’s mark.” (Id. at 4).

On the other hand, Defendants contend these reviews are

“cherry-picked hearsay” that “lack any probative value and

are fraught with evidentiary issues.” (Doc. # 123 at 5).

Defendants’ Motion is denied as to category 2. The online

customer reviews are not hearsay or are subject to the state

of mind exception to hearsay. See Lincare Holdings Inc. v.

Doxo, Inc., No. 8:22-cv-2349-VMC-AEP, 2024 WL 865881, at *2-

3 (M.D. Fla. Feb. 29, 2024) (collecting cases and holding

“[t]his Court agrees with the majority approach and finds

that the customers’ statements . . . are not hearsay or,

alternatively, satisfy the state of mind exception”); see

also You Fit, Inc. v. Pleasanton Fitness, LLC, No. 8:12-cv-

1917-JDW-EAJ, 2013 WL 521784, at *5 n.13 (M.D. Fla. Feb. 11,

2013) (“[T]he comments [posted on yelp.com] are not hearsay

because they are not being used to prove the truth of the

matter asserted in the comment. Rather, Plaintiffs invoke the

comments to demonstrate the consumer’s confusion, a then-

existing mental state of the declarant who posted the

comments.” (citing Fed. R. Evid. 801(c)(2) & 803(3))).

Indeed, in its Order on summary judgment, this Court found

that “FCC has established genuine disputes regarding the

strength of the marks and actual confusion,” because the

“[o]nline reviews submitted by FCC suggest at least some

actual confusion among customers.” (Doc. # 100 at 15).

Accordingly, the online customer reviews are appropriately

considered by the jury for the purposes of the actual

confusion analysis.

Defendants’ remaining arguments do not alter this

conclusion. To the extent that Defendants contend the

customer reviews are “cherry-picked” or not associated with

Defendants’ units, Defendants’ may raise those issues via

cross-examination or contrary evidence. Further, Defendants

may raise objections at trial to exclude or limit specific

exhibits if FCC Hotel fails to properly authenticate or lay

foundation, or if FCC Hotel’s presentation of the evidence

proves unduly prejudicial or misleading.

Accordingly, it is hereby

ORDERED, ADJUDGED, and DECREED:

(1) Plaintiff FCC Hotel Tower, LLC’s Motion in Limine (Doc.

# 122) is GRANTED in part and DENIED in part to the

extent explained in this Order.

(2) Defendants Thomas Drummond, MBOR Investments, LLC, MBOR

Amenities, LLC, and MBOR Rentals, LLC’s Omnibus Motion

in Limine (Doc. # 123) is DENIED.

DONE and ORDERED in Chambers in Tampa, Florida, this

lith day of May, 2026.

ins? Ihr. Hunepby Croc)

VIR IA M. HERNANDEZ’COVINGTON

UNITED STATES DISTRICT JUDGE

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