# Drummond

> District Court, M.D. Florida · May 11, 2026

URL: https://www.frixlaw.com/law-library/cases/11368509

## Case

- **Full name:** FCC Hotel Tower, LLC v. Thomas Drummond, MBOR Investments, LLC, MBOR Amenities, LLC, and MBOR Rentals, LLC
- **Court:** District Court, M.D. Florida
- **Decided:** May 11, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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.
_______________________________/

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11368509. Public record. Not legal advice.