UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
January 19, 2009
ENJOY THE CITY NORTH, INC. AND ENJOY THE CITY, INC., PLAINTIFFS,
JEFF STRANGER AND JEFF STRANGER D/B/A J.L.S. ENTERPRISES AND Z BEST DINING & ENTERTAINMENT, DEFENDANTS.
The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
SCHEDULING CONFERENCE ORDER Discovery Cut-Off: 8/31/09 Non-Dispositive Motion Filing Deadline: 9/15/09 Dispositive Motion Filing Deadline: 9/30/09 Settlement Conference Date: January 16, 2009.
I. Date of Scheduling Conference
None Pre-Trial Conference Date: 12/7/09 11:00 Ctrm. 3 Trial Date: 1/20/10 9:00 Ctrm. 3 (JT-5 days)
II. Appearances Of Counsel
Boutin Gibson Di Giusto Hodell Inc., by Michael E. Chase, Esq., appeared on behalf of Plaintiff.
There was no appearance on behalf of Defendant.
III. Summary of Pleadings
1. Plaintiffs are Enjoy the City North, Inc., a New York corporation with its principal place of business in Binghamton, New York; and Enjoy the City, Inc., a New York corporation with its principal place of business in Birmingham, Alabama.
2. Defendants are Jeff Stranger, an individual who resides in California, and J.L.S. Enterprises and Z Best Dining & Entertainment, both of which are fictitious business names used by defendant Jeff Stranger.
3. Plaintiff's First Amended Complaint alleges that Plaintiffs are the owners of certain registered trademarks which Defendants used for their financial gain without Plaintiffs' permission. Plaintiffs produce, create, and distribute a discount coupon book known as the Enjoy the City Book. Defendant Jeff Stranger is a former distributor of Plaintiffs in various markets in California. The First Amended Complaint alleges that Defendants created a new entity which directly competed with Plaintiffs' business, in violation of the parties' distributor agreements. The First Amended Complaint contains the following claims for relief: Trademark Infringement under 15 U.S.C. § 1114(1); False Designation of Origin under 15 U.S.C. § 1125(a); Trademark Dilution under 15 U.S.C. § 1125(c); Trademark Dilution under New York Gen. Bus. Law § 360-I; Trademark Infringement under New York Gen. Bus. Law § 360-k; Trademark Infringement and Unfair Competition under State Common Law; Deceptive Acts and Practices under New York Gen. Bus. Law §§ 349-350; Common Law Palming Off; Breach of Contract (monetary damages); Breach of Contract (Non-Compete Provision); Common Law Misappropriation of Proprietary Information; and Violation of California's Unfair Competition Law, Cal. Bus. & Prof. Code §§ 17200 et seq.
4. Defendants have filed a Counterclaim alleging that Plaintiffs materially breached the distributor agreements by not providing discount books with a sufficient number of prominent merchants and by failing to deliver books in a timely manner. Defendants seek money damages allegedly suffered as a result of Plaintiffs' breaches. Defendants allege that the amount of damages is not yet determined.
5. This action was previously pending in the United States District Court for the Northern District of New York prior to being transferred to this Court. While the action was pending in New York, Plaintiffs moved for a preliminary injunction which would prevent Defendants from, inter alia, using any documents of any form containing the words "Enjoy the City" or Enjoy the City logos. Defendants stipulated to that portion of the relief. Accordingly, the District Court in New York entered an Order granting Plaintiffs' motion for preliminary injunction to the extent that Defendants are preliminarily enjoined from using any documents of any form containing the words "Enjoy the City" or the Enjoy the City logos.
IV. Orders Re Amendments To Pleadings
1. Plaintiffs are currently pursuing discovery from a non-party called Profit Specialties, an entity of form unknown, to ascertain whether it unfairly and unlawfully competed with Plaintiffs through actions in concert with Defendants. Plaintiffs anticipate discovery obtained from profit Specialties will be completed by January 30, 2009. Plaintiffs request that the Court allow Plaintiffs to file a motion to further amend the Complaint to add Profit Specialties as a defendant, which motion would be filed no later than February 13, 2009.
2. Plaintiffs anticipate adding an additional party defendant. Based on objections by that potential defendant, time to join that party shall extend through and including March 18, 2009.
V. Factual Summary
A. Admitted Facts Which Are Deemed Proven Without Further Proceedings
1. Plaintiff, Enjoy the City North, Inc., is a New York corporation with its principal place of business in Binghamton, New York.
2. Plaintiff, Enjoy the City, Inc., is a New York corporation with its principal place of business in Birmingham, Alabama.
3. Jeff Stranger is an individual and at times alleged in the Complaint, resident of the Eastern District of California, Fresno Division.
4. To the best of Plaintiff's understanding, the businesses known as J.L.S. Enterprises, and Z Best Dining & Entertainment, are fictitious names utilized by Jeff Stranger, an individual.
5. On October 25, 2006, Jeff Stranger entered into a Distributorship Agreement with Enjoy the City North, Inc., regarding the Fresno, California territory.
6. On June 11, 2007, Jeff Stranger entered into a Distributorship Agreement with Enjoy the City North, Inc., regarding the Stockton, California, territory.
7. On April 3, 2007, Jeff Stranger entered into a Distributorship Agreement with Enjoy the City North, Inc., regarding the Sacramento, California territory.
B. Contested Facts
2. The remaining facts are disputed.
VI. Legal Issues
1. Jurisdiction exists under 28 U.S.C. § 1331 and the Trademark laws of the United States. Jurisdiction is also invoked under 28 U.S.C. § 1367.
2. Venue was previously contested and this case was transferred from the Northern District of New York. Venue is now proper under 28 U.S.C. § 1391.
1. The Plaintiff contends that the substantive law of the State of New York provides the rule of decision in this case to the extent it governs supplemental and any related claims not covered by Federal law. Defendants maintain that the substantive law of the State of California governs supplemental claims.
VII. Consent to Magistrate Judge Jurisdiction
1. The parties have not consented to transfer the case to the Magistrate Judge for all purposes, including trial.
VIII. Corporate Identification Statement
1. Any non-governmental corporate party to any action in this court shall file a statement identifying all its parent corporations and listing any entity that owns 10% or more of the party's equity securities. A party shall file the statement with its initial pleading filed in this court and shall supplement the statement within a reasonable time of any change in the information.
IX. Discovery Plan and Cut-Off Date
1. The parties are ordered to complete all non-expert discovery on or before April 30, 2009.
2. The parties are directed to disclose all expert witnesses, in writing, on or before June 30, 2009. Any rebuttal or supplemental expert disclosures will be made on or before July 30, 2009. The parties will comply with the provisions of Federal Rule of Civil Procedure 26(a)(2) regarding their expert designations. Local Rule 16-240(a) notwithstanding, the written designation of experts shall be made pursuant to F. R. Civ. P. Rule 26(a)(2), (A) and (B) and shall include all information required thereunder. Failure to designate experts in compliance with this order may result in the Court excluding the testimony or other evidence offered through such experts that are not disclosed pursuant to this order.
3. The parties are ordered to complete all discovery, including experts, on or before August 31, 2009.
4. The provisions of F. R. Civ. P. 26(b)(4) shall apply to all discovery relating to experts and their opinions. Experts may be fully prepared to be examined on all subjects and opinions included in the designation. Failure to comply will result in the imposition of sanctions.
X. Pre-Trial Motion Schedule
1. All Non-Dispositive Pre-Trial Motions, including any discovery motions, will be filed on or before September 15, 2009, and heard on October 16, 2009, at 9:00 a.m. before Magistrate Judge Dennis L. Beck in Courtroom 9.
2. In scheduling such motions, the Magistrate Judge may grant applications for an order shortening time pursuant to Local Rule 142(d). However, if counsel does not obtain an order shortening time, the notice of motion must comply with Local Rule 251.
3. All Dispositive Pre-Trial Motions are to be filed no later than September 30, 2009, and will be heard on November 2, 2009, at 10:00 a.m. before the Honorable Oliver W. Wanger, United States District Judge, in Courtroom 3, 7th Floor. In scheduling such motions, counsel shall comply with Local Rule 230.
XI. Pre-Trial Conference Date.
1. December 7, 2009, at 11:00 a.m. in Courtroom 3, 7th Floor, before the Honorable Oliver W. Wanger, United States District Judge.
2. The parties are ordered to file a Joint Pre-Trial Statement pursuant to Local Rule 281(a)(2).
3. Counsel's attention is directed to Rules 281 and 282 of the Local Rules of Practice for the Eastern District of California, as to the obligations of counsel in preparing for the pre-trial conference. The Court will insist upon strict compliance with those rules.
XII. Motions - Hard Copy.
1. The parties shall submit one (1) courtesy paper copy to the Court of any motions filed that exceed ten pages and any motions that have exhibits attached. Exhibits shall be marked with protruding numbered or lettered tabs so that the Court can easily identify such exhibits.
XIII. Trial Date.
1. January 20, 2010, at the hour of 9:00 a.m. in Courtroom 3, 7th Floor, before the Honorable Oliver W. Wanger, United States District Judge. Because defense counsel has not appeared, the parties shall discuss amending this schedule to provide for a trial date in late October, 2009. The Court will accept the stipulation of the parties to revise the schedule accordingly.
2. This is a jury trial. It is not indicated whether Defendants have demanded a jury trial.
3. Counsels' Estimate Of Trial Time:
a. 3-5 days.
4. Counsels' attention is directed to Local Rules of Practice for the Eastern District of California, Rule 285.
XIV. Settlement Conference.
1. The parties are directed to contact the Courtroom Deputy for Magistrate Judge Dennis L. Beck if they feel a Settlement Conference would be beneficial in this case.
2. Unless otherwise permitted in advance by the Court, the attorneys who will try the case shall appear at the Settlement Conference with the parties and the person or persons having full authority to negotiate and settle the case on any terms at the conference.
3. Permission for a party [not attorney] to attend by telephone may be granted upon request, by letter, with a copy to the other parties, if the party [not attorney] lives and works outside the Eastern District of California, and attendance in person would constitute a hardship. If telephone attendance is allowed, the party must be immediately available throughout the conference until excused regardless of time zone differences. Any other special arrangements desired in cases where settlement authority rests with a governing body, shall also be proposed in advance by letter copied to all other parties.
4. Confidential Settlement Conference Statement.
At least five (5) days prior to the Settlement Conference the parties shall submit, directly to the Magistrate Judge's chambers, a confidential settlement conference statement. The statement should not be filed with the Clerk of the Court nor served on any other party. Each statement shall be clearly marked "confidential" with the date and time of the Settlement Conference indicated prominently thereon. Counsel are urged to request the return of their statements if settlement is not achieved and if such a request is not made the Court will dispose of the statement.
5. The Confidential Settlement Conference Statement shall include the following:
a. A brief statement of the facts of the case.
b. A brief statement of the claims and defenses, i.e., statutory or other grounds upon which the claims are founded; a forthright evaluation of the parties' likelihood of prevailing on the claims and defenses; and a description of the major issues in dispute.
c. A summary of the proceedings to date.
d. An estimate of the cost and time to be expended for further discovery, pre-trial and trial.
e. The relief sought.
f. The parties' position on settlement, including present demands and offers and a history of past settlement discussions, offers and demands.
XV. Request For Bifurcation, Appointment Of Special Master, Or Other Techniques To Shorten Trial.
XVI. Related Matters Pending.
1. There is a pending case in the Superior Court of California, County of Fresno, No. 08CECG01589 DSB which involves claims by an individual named John Giannopoulos against Defendant Jeff Stranger, Z Best, business form unknown. In that case, Giannopoulos asserts Defendant failed to timely deliver certain coupon books to Giannopoulos. Stranger and Z Best have been served with the complaint and have filed a cross-complaint against Enjoy the City North in the State Court action, which includes claims for indemnification, breach of contract and negligence. That matter has not been set for trial.
2. Defendants contend that since the filing of that complaint, Giannopoulos has been employed by Enjoy the City North.
XVII. Compliance With Federal Procedure.
1. The Court requires compliance with the Federal Rules of Civil Procedure and the Local Rules of Practice for the Eastern District of California. To aid the court in the efficient administration of this case, all counsel are directed to familiarize themselves with the Federal Rules of Civil Procedure and the Local Rules of Practice of the Eastern District of California, and keep abreast of any amendments thereto.
XVIII. Effect Of This Order.
1. The foregoing order represents the best estimate of the court and counsel as to the agenda most suitable to bring this case to resolution. The trial date reserved is specifically reserved for this case. If the parties determine at any time that the schedule outlined in this order cannot be met, counsel are ordered to notify the court immediately of that fact so that adjustments may be made, either by stipulation or by subsequent scheduling conference.
2. Stipulations extending the deadlines contained herein will not be considered unless they are accompanied by affidavits or declarations, and where appropriate attached exhibits, which establish good cause for granting the relief requested.
3. Failure to comply with this order may result in the imposition of sanctions.
IT IS SO ORDERED.
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