IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
June 15, 2010
COZAD TRAILERS SALES, LLC, PLAINTIFF,
PACIFIC COAST TRAILERS, LLC, A WASHINGTON LIMITED LIABILITY COMPANY; RELIANCE TRAILER CO., LLC, A WASHINGTON LIMITED LIABILITY COMPANY; RELIANCE TRAILER MANUFACTURING, A CALIFORNIA CORPORATION; REDWOOD RELIANCE SALES COMPANY, A CALIFORNIA CORPORATION; BRIAN LING, AN INDIVIDUAL; DONALD K. LING, AN INDIVIDUAL; AND JOSEPH MAYO, AN INDIVIDUAL, DEFENDANTS .
The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge
ORDER ON PLAINTIFFS' MOTION TO FILE SUR REPLY TO DEFENDANTS' MOTION TO DISMISS OR FOR CHANGE OF VENUE
This is an action for trademark infringement under the Lanham Act wherein the main issue in contention is ownership of the "RELIANCE" trademark (hereinafter, the "Mark"). The issue immediately in dispute is whether the proper forum for this action lies in the Eastern District of California or in the Eastern District of Washington where Pacific Coast Trailers, LLC ("Pacific Coast"), a defendant in this action, first filed a suit in the Eastern District of Washington against the plaintiff in this action, Cozad Trailers Sales, LLC ("Cozad" or "Plaintiff").
On April 26, 2010, two defendants in this action, Pacific Coast Trailers ("Pacific Coast") and Joseph Mayo ("Mayo") (collectively, "Defendants") moved to dismiss this action for lack of personal jurisdiction or, in the alternative, to transfer venue to the Eastern District of Washington. Doc. # 7. Cozad filed its opposition on May 21, 2010, and Pacific Coast and Mayo filed a reply on June 1, 2010.*fn1 On June 10, 2010, Cozad filed a request for leave to file a sur-reply. Cozad's primary contention is that Defendants' reply brief contains assertions of fact and legal arguments not presented in their original moving papers. In particular, Cozad's request for leave to file a sur-reply objects to a number of factual allegations or legal contentions that were presented for the first time in Defendants reply brief that appear to pertain to the ultimate issue of ownership of the Mark.
The court has received courtesy copies of both Cozad's proposed sur-reply and its objections to the additional facts Defendants set forth in their reply brief. As of this writing, Defendants have submitted no opposition to Cozad's request for leave to file a sur-reply. The court agrees that Defendants' reply brief does contain both allegations of fact and contentions of law that were not presented in Defendants' initial moving papers. The court will therefore grant Cozad's request to file sur-reply in order to respond to new allegations or contentions asserted by Defendants. The court has not yet, however, determined that some or any of the new alleged facts or legal contentions are relevant to the questions of either jurisdiction or venue. Until such time as the court may determine that any, some, or all of the new facts or legal contentions put forward by Defendants in their reply brief have relevance to their arguments concerning jurisdiction or venue, the court will hold Cozad's objections in abeyance.
THEREFORE, in accord with the forgoing, it is hereby ORDERED that Cozad may file and serve its proposed sur-reply to Defendants' reply to the motion to dismiss or for change of venue not later than seven (7) days from the date of service of this order.
IT IS SO ORDERED.