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October 27, 1992


The opinion of the court was delivered by: SAUNDRA BROWN ARMSTRONG

 Plaintiff, JouJou Designs, Inc. (JDI), a maker of women's and junior miss apparel, brings a suit alleging trademark infringement and unfair competition against defendant, JOJO Ligne Internationale, Inc., and Joesph H. Linus, its founder and "president". *fn1" Both parties submitted a number of motions and cross-motions to this court. After reading all of the papers submitted and considering the arguments therein, the court concludes that: defendant's motion to dismiss for failure to prosecute should be denied; plaintiff's motion to compel defendant's deposition should be granted; defendant's motion to conform a previous order to the judge's intent should be denied; defendant's motion to file counterclaims should be denied; plaintiff's motion to strike affidavits should be granted; defendant's motion for summary judgment and partial summary judgment should be denied; and plaintiff's motion for partial summary judgment should be granted.

 Defendant's motion to dismiss for failure to prosecute. Plaintiff's motion to compel deposition.

 Pursuant to Fed. R. Civ. P. 41(b), defendant asks this court to dismiss plaintiff's action for failure to prosecute. Defendant bases this claim on his assertion that plaintiff has undertaken no discovery in this case since its inception. Plaintiff, however, provides fairly uncontroverted evidence that they have, in fact, been trying to conduct discovery for over a year and that defendant refuses to comply.

 Defendant admits that he was served with numerous deposition notices that were addressed to a Mr. JoJo Ligne. Defendant states that as he was served only with papers naming a non-party, he had no notice that plaintiff was attempting to take his deposition. Defendant further suggests that plaintiff's labelling error was an attempt to trick him into some sort of admission concerning his name.

 Although plaintiff could have taken greater care in preparing its papers, the issue is whether the defendant had "actual notice" of the discovery request that could be imputed to him as a party despite the wrong name. Schiavone v. Fortune, 477 U.S. 21, 91 L. Ed. 2d 18, 106 S. Ct. 2379 (1986). Mr. Linus admits that he is the president of JOJO Ligne Internationale. Further, in his papers to this court, Mr. Linus refers to himself as "Joseph 'JOJO' Linus". Finally, the address provided for Mr. Linus in the same as the address provided for JOJO Ligne Internationale. These elements, coupled with Mr. Linus' admission that he did in fact receive the mistitled deposition notices, are sufficient to conclude that defendant had notice that plaintiff wished to take his deposition.

 Defendant's argument is further compromised by his admission that he did not respond to a properly titled and noticed document request. Defendant supports this failure to respond by asserting that Fed. R. Civ. P. 34 suggests that a document request from a party is only allowed when such request is included as part of a deposition notice to such party. (Defendant's Opposition to Plaintiff's Motion to Compel at 6). According to defendant, because he was never properly noticed in a deposition request, he was not required to respond to the document request. Defendant's reading of Rule 34 is baseless. Rule 34(b) clearly states that a document request may be served any time after the commencement of the action, it makes no mention of the document request being part of a deposition. Thus, even if defendant had an excuse for failing to allow plaintiff to take his deposition, which he does not, he has no excuse for failing to comply with plaintiff's document request.

 Notwithstanding Mr. Linus' assertions, this court finds that Mr. Linus had actual notice that plaintiff was attempting to serve him with the deposition notice and that he was served with a properly noticed document request. As such, he was not entitled to simply ignore these notices and now assert that plaintiff has failed to undertake discovery. Defendant's motion is thus denied, and plaintiff's motion to compel deposition and discovery is granted.

  It is also noted that Mr. Linus presented to this Court in June a motion substantially similar to the current motion. *fn2" This court rejected that motion based upon much of the same reasoning employed herein. Given the court's ruling in the previous similar motion, Mr. Linus could not have reasonably concluded that the current motion had merit. As such this court concludes that Mr. Linus has abused the processes of this court in filing a patently frivolous motion. Plaintiff's request that defendant be sanctioned under Fed. R. Civ. P. 11 is granted, and defendant will pay plaintiff's cost of defending the duplicitous motion.

 Defendant's motion to conform Order.

 At a hearing before this court in June, the status of JOJO Ligne Internationale, Inc. as a named defendant was discussed. Although Mr. Linus had held JOJO Ligne Internationale, Inc. out as a corporation, he, in fact, had never incorporated. As an unincorporated entity, JOJO Ligne Internationale, Inc. lacks the capacity to be sued. At the hearing, plaintiff's counsel agreed to the voluntary dismissal of the named corporation with the understanding that defendant Mr. Linus would be responsible for all of the acts complained of in the event of judgment. Defendant Linus expressed no objection, and this court dismissed the named corporation. On June 24, 1992 this court filed an Order dismissing the named corporation. Mr. Linus filed no objection to this Order, either before or after it was filed.

 Defendant now wishes to have that Order altered to conform to what he contends was this court's intent in signing it. Mr. Linus asserts that because the court allowed a "condition" to the dismissal--that Mr. Linus would be responsible in the event of a judgment--that the dismissal was meant to be with prejudice. Mr. Linus further claims that the dismissal was involuntary. Neither of those contentions has any merit.

 There was no indication at the hearing that plaintiff intended the dismissal to be with prejudice. Plaintiff dismissed the named corporation solely because they did not have the capacity to be sued. Plaintiff indicated at the hearing that they reserved the right to bring suit against JOJO Ligne Internationale, Inc. if such were ever incorporated. Further, this court drafted its Order pursuant to Fed. R. Civ. P. 41(b) which states that voluntary dismissals by order of the court are presumed to be without prejudice unless the order states otherwise. The language of the Order is clearly silent, and the Order is therefore deemed to be without prejudice.

 Defendant's second contention is that the dismissal was involuntary. Defendant provides no support for this argument. It is undisputed that defendant expressed no objection to the plaintiff's voluntary dismissal of the named corporation at the hearing. Further, plaintiff filed no objections after the hearing or after the filing of the Order.

 Defendant's motion to file counterclaims.

 Defendant brings this motion, presumably pursuant to Fed. R. Civ. P. 13(d), *fn3" stating that he would like to file a counterclaim. Rule 13(d) provides that a claim which either matured or was acquired by the pleader after serving a pleading may, with permission of the court, be presented as a counterclaim by supplemental pleadings. Since defendant has served his answer, he now asks the court's permission to file supplemental pleadings laying out his counterclaims.

 At a hearing before this court on January 30, 1992, defendant indicated that he had numerous counterclaims to file. In order to expedite matters in this case, the court ordered defendant to bring all proposed counterclaims in a hearing before this court on May 12, 1992. On April 17, the defendant filed a letter with this court stating that he had no counterclaims to file. Defendant stated that his proposed counterclaims arose out of different transactions or occurrences than those at issue in the instant case and as such could be brought in a separate action.

 This court now finds that defendant's proposed counterclaim should have been presented at the May 12 hearing. While the proposed counterclaims fall within the ambit of Rule 13(d) in that they were acquired or matured after defendant served his answer, the proposed counterclaims do not appear to encompass any events which occurred after May 12, 1992. As such, defendant had notice of these claims in time to present them to the court. Since defendant declined to present ...

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