12.23.12 Motion for an Extension (ECF)

7/30/2019 12.23.12 Motion for an Extension (ECF)

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IN THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF PENNSYLVANIA

Land Rover, a foreign company,

Plaintiff,v.

Rover Repairs of Collingdale, LLC,

Defendant.

Case No. 2:12-cv-05036-ABHon. Anita B. Brody

Order Granting the Defend-ant's Motion of Time for anExtension of Time to Respondto Plaintiff's Complaint

ORDER

After considering the Defendant's Motion for an Extension of

Time, and the Plaintiff's response, it is hereby ordered that the motion

is GRANTED. Defendant will le a reply to Plaintiff's Complaint

within 45 days entry of this Order.

It is further ordered that the Plaintiff will pay $500.00 to an ap-

propriate charity of the Defendant's choosing within 10 days entry of

this Order. Plaintiff's counsel is also ordered to review the Code of Ci-

vility and Working Rules of Professionalism1, and to follow the

guidelines set forth therein.

SO ORDERED this _________ day of ___________________,

2013.

_________________________________________UNITED STATES DISTRICT JUDGEHON. ANITA B. BRODY

1These are both available online on the Eastern District of Pennsylvania's website at

http://www.paed.uscourts.gov/us08001.asp.

Case 2:12-cv-05036-AB Document 17 Filed 12/23/12 Page 1 of 15


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Plaintiff,v.


Defendant.

Case No. 2:12-cv-05036-AB

Hon. Anita B. Brody

Motion for an Extension of Timeto Reply to Plaintiff's Complaint

Motion for An Extension of Time to Reply to Plaintiff'sComplaint

1. The Defendant was previously employed by the LandRover dealership in Wayne, Pennsylvania.

2. In June, 2008, the Defendant began doing business as

Rover Repairs of Collingdale, LLC.2 The Defendant operated openly,

advertising the name of his business, and putting up a website in

November 2008 at .

3. Despite the Defendants operation for more than four

years under this name, Land Rover, International (for unknown reas-

ons that will be explored if discovery commences) decided to bring its

legal hammer down upon this small independent Rover repair busi-

ness.

4. Unable to afford counsel, Rover Repairs of Collingdales

owner, Frank Dalahan, sought to represent his businesspro se.

5. Dalahan was unaware of the rule that a business entity

may not be representedpro se, and led a Motion to Dismiss. (Dkt. 9)

6. The Plaintiff opposed this Motion. (Dkt. 10).2The Defendant uses the possessive in its company name.

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7. As part of its opposition, the Plaintiff correctly raised the

issue that thepro seMotion to Dismiss (Dkt. 10) should be stricken.

8. On December 21, 2012, the undersigned counsel agreed to

represent Rover Repairs of Collingdale.3

9. On December 21, 2012, counsel for the Defendant reached

out to counsel for the Plaintiff, seeking to streamline the litigation and

seeking to minimize the amount of motion practice in this matter.

10. Specically, counsel for the Defendant suggested that the

Defendant would stipulate to the relief that the Plaintiff sought the

striking of the improperly led pro seMotion to Dismiss. See Exhibit

A.

11. In exchange, the Defendants counsel requested that the

parties stipulate to a date by which a responsive pleading would be

led. See Exhibit A.

12. The Defendant believed that a 45 to 60 day period of time

would be appropriate. For starters, even if the Defendant simplywaited for the Court to rule on the pending Motion, it was anticipated

that an Order would not likely issue for at least 30 days. Additionally,

it was presumed that if the Court did grant the Plaintiffs requested re-

lief, that the Court would give the Defendant a reasonable amount of

time in which to le a responsive pleading.

3The Defendant did not become more wealthy, and thus able to afford representationin the intervening months. But, the undersigned have accepted representation on ahybrid basis: they have accepted representation for a small fee with the remainderof their fees to be collected on a contingent fee basis. It is the Defendants positionthat these fees will be properly awarded to the Defendant under 15 U.S.C. 1117 orthrough other means.

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13. Nevertheless, in the interest of compromise, professional-

ism, and collegiality, and in order to pitch a stipulation that no reason-

able party nor attorney could deny, the Defendants counsel suggested

a 20 day period of time.

14. Plaintiffs counsel, denied this request. Instead, the

Plaintiffs counsel insisted that the Defendant should le his respons-

ive pleading on or before December 31, 2012.

15. Under any circumstances, insisting upon 10 days in which

to le a responsive pleading is unreasonable. However, this was even

more unreasonable considering that this 10 day period, which

Plaintiffs counsel insisted was reasonable included four weekend

days, Christmas Eve, Christmas Day, the day after Christmas, and

New Years Eve dates when Defense counsel makes an attempt to

maintain some degree of work-life balance, by attending to their famil-

ies.

16. Even after being given a chance to change course, by hav-

ing it pointed out to him that this 10 day period only encompassed

three business days, Plaintiffs counsel engaged in the tired and poor

tactic of claiming that it was his client, not his, decision. Ironically, in

doing so, the Plaintiffs counsel claimed that his clients ofces were

closed for the holidays until Friday, December 28, 2012.

17. The Court should rst enter an order striking Dkt. 9.

Then, the Defendant should have 45 days in which to le a responsive

pleading.

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18. Furthermore, the Court should assess costs and fees in-

curred in the drafting and ling of this Motion against the Plaintiff.

WHEREFORE, the Defendant, Rover Repair of Collingdale, LLC,

respectfully requests this Honorable Court to grant it forty-ve days to

le a response to Plaintiffs Complaint.

Respectfully Submitted,

_____________________________

A. Jordan Rushie (209066)Mulvihill & Rushie LLC2424 East York Street, Ste. 316Philadelphia, PA 19125Tel: (215) 385-5291Fax: (215) [email protected]

Marc J. Randazza (pro hac vicepending)Randazza Legal Group6525 W. Warm Springs Road,Ste. 100Las Vegas, NV 89118

Tel: (888) [email protected]

Attorneys for DefendantRoverRepairs of Collingdale, LLC

Dated: December 23, 2012

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Plaintiff,v.


Defendant.

Case No. 2:12-cv-05036-AB

Hon. Anita B. Brody

Memorandum of Law in Sup-port of Defendant's Motionfor an Extension of Time

Memorandum of Law Supporting Defendant's Motion of Time for an

Extension to Respond to Plaintiff's Complaint

Background

Land Rover, a huge multinational corporation, brought a lawsuit

against a small independent car repair business, which specializes in

repairing Rover vehicles. This business operated openly, advertised

openly, and was most certainly known to Land Rover for at least that

amount of time. Nevertheless, Land Rover waited for four years before

bringing suit.

When the Defendant attempted to engage in settlement

discussions on his own, the Plaintiff simply bulled this small business

owner. When the Defendant was able to get an attorney friend, with

no knowledge of trademark law, to assist him, the Plaintiff continued

to exert unreasonable and undue pressure upon this small business.

On December 21, 2012, its owner, Frank Dalahan, nally found

public-interest minded defense counsel with intellectual property law

experience. Even if professionalism and courtesy did not mandate

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giving defense counsel some reasonable scheduling concessions, Mr.

Dalahans prior pro sestatus entitles him to some latitude in gettingcurrent defense counsel up to speed. Federal courts give pro se

litigants latitude when failing to do so might cause them undue

prejudice. Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003); Bush

v. City of Philadelphia, 367 F. Supp. 2d 722, 725 (E.D. Pa. 2005).

The Defense sought to engage in some reasonable stipulations

and compromises, in order to avoid troubling the court with routine

matters that should never have to clog a busy docket.The Plaintiffs counsel instead decided to try and press a

temporal advantage in order to compensate for the weakness of his

claims. After waiting four years to press a claim, all of a sudden, once

the Defendant hired experienced intellectual property counsel, the

Plaintiffs counsel appears to have panicked and now claims that his

client will somehow suffer prejudice if a few weeks pass without a

professionally-drafted responsive pleading.The Defendants attorneys apologize to the Court for even

needing to bring such a petty matter before it. The Defendants

attorneys both acknowledge that perhaps if their powers of persuasion

with difcult people were better, they might have been able to convince

one of the seven attorneys on the Plaintiffs side that they should

behave more professionally and courteously. They did try.

Failing in their attempt to elicit professionalism and courtesy

from any of their counterparts, the Defendants were confronted with a

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dilemma: On one side, bothering a Federal judge with a motion that

should never have needed to be led. On the other side, a Hobsonschoice: Randazza and Rushie could live up to their promises as

husbands and fathers, or commit legal malpractice.

Rather than face the ire of their malpractice carriers or angry

spouses and sad children, the undersigned must trouble this

Honorable Court with a request that any reasonable attorney would

have stipulated to as a matter of course.

Costs and fees are appropriate.The Plaintiffs counsel should be admonished that this behavior

is not how we do things in this Circuit. See Marcangelo v. Boardwalk

Regency, 47 F.3d 88, 90 (3d Cir. 1995) (We do not approve of the

'hardball' tactics unfortunately used by some law rms today. The

extension of normal courtesies and exercise of civility expedite

litigation and are of substantial benet to the administration of

justice."); Naviant Mktg. Solutions, Inc. v. Larry Tucker, Inc., 339 F.3d180, 182 (3d Cir. 2003) (Collegiality and professionalism can obviate

unnecessary court intervention, needless expense and fees for clients,

and protracted legal proceedings.)

Since the Plaintiffs attorneys decided to behave unprofession-

ally, the Defendant was forced to formally resolve issues that should

have been readily agreed to. The Defendant does not seek onerous

sanctions. While the instant motion and its companion have consumed

approximately $1,000 in billable time, which would otherwise be col-

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lectable only on contingency, the Defense agrees that the Plaintiffs at-

torneys should be able to discharge any obligation by making a dona-tion of $500 (that they otherwise would not have made) to a 501(c)(3)

charity of their choice, and by acknowledging that in the future, they

will comport themselves with honor, professionalism, and courtesy.

Conclusion

The Defendant respectfully requests that the Court enter an Or-

der that the Defendant shall be permitted to le a responsive pleading

within 45 days of the Court entering its order striking the Defendantsimproperly-ledpro seMotion to Dismiss, and that given the fact that

the Defendants Motion was led by a pro se Defendant, with no know-

ledge of the Federal Rules of Civil Procedure, that the previously-led

Motion to Dismiss shall not act to waive any defenses otherwise avail-

able under Fed R. Civ. P. 12(b). Furthermore, the Court should use its

inherent power to assess an award of costs and fees for the instant mo-

tion upon the Plaintiff, which should be discharged upon proof of adonation of $500 to a charity and an appropriate acknowledgement to

commit to professionalism, honor, and courtesy.

Respectfully submitted,

_______________________________A. Jordan Rushie (209066)Mulvihill & Rushie LLC

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2424 East York Street, Suite 316Philadelphia, PA 19125

Tel: (215) 385-5291Fax: (215) [email protected]

Marc J. Randazzapro hac vicependingRandazza Legal Group6525 W. Warm Springs RoadSte. 100Las Vegas, NV 89118888-667-1113

[email protected]

Attorneys for Defendant RoverRepairs of Collingdale, LLC

Dated: December 23, 2012

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mailto:[email protected]:[email protected]:[email protected]:[email protected]


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Certicate of Service

I certify that on Sunday, December 23, 2012, a copy of this Motion

for an Extension of Time was led electronically with the Clerk of Courtusing the CM/ECF system. Notice of this ling will be sent to all counsel

of record via the courts electronic ling system.

/S/

_____________________________A. Jordan Rushie



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Exhibit "A"



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Marc,

I'm sorry you feel that way. I've offered you as much accommodation as I have the authority to give. You are free to do with it what you will.

The next time I expect to speak with my client (who is out of the office for the company-wide holiday shutdown) is this coming Friday morning. Ishould be in a position to further discuss settlement with you after that conversation.

Best wishes for the holidays.

Brian________________________________________From: Marc John Randazza [[email protected]]Sent: Saturday, December 22, 2012 4:37 PMTo: Wassom, Brian D.; Kramer, Anessa Owen; Jordan Rushie; [email protected]; [email protected]: RE: Land Rover v. Rover Repairs of Collingdale

Brian,

You offer three business days (in between the holidays) for us to file a responsive pleading, and you think that is reasonable? You do realize that ifwe just sit back and wait for the court to rule, we'll get more time than that, right? Given your experience, I can't presume that you're a rookie whodoesn't know what he's doing. I have to presume that you somehow think that this gives you a tactical advantage. Well, then I have to also presumea lot of negative things about your skills and your character. So I'll just presume that you mis-spoke, or maybe it was a typo. I'd prefer to believeanything other than you actually pulled out a calendar and said "yeah, that's reasonable."

As far as my entry into the case helping both sides seal a deal goes, yes, that's always a possibility - provided you want to have a serious discussion.I'm sure that you "thought you were making progress" when putting the screws to a small business owner who was scared to death of a bigmultinational corporation suing him. He's defended now. He's a lot less scared than he was.

The last offer that he said was on the table was that you wanted him to change the name of his shop, and you want $20,000 from him. I can see whyyou would call that "progress." I have a more colorful word for it.

I fail to see where you got the notion that asking my client for $20,000 was reasonable. I find it quite unlikely that you are going to be able to get thiscase deemed to be an "exceptional case." The 1125(d) claim is not going to stick, because even if my client does not have the right to use thedomain name at issue, my client had a good faith belief that he did.

Drop the demand for $20,000 and we might have something to talk about. While we talk about it, you should keep in mind that my client has spentyears building up his business under this name, and will need to spend a significant amount of money to re-brand. Your client has a public relationsand advertising department. They can probably give you some guidance about what would be best -- for both parties.

My client's maximum exposure in this case is injunctive relief. So, if we have something to talk about, it might be a stipulation to injunctive relief, or asettlement that gives you that injunctive relief, and the terms thereof. I don't even think you'll get that out of this case, if it goes forward, but in theinterest of getting things settled, we're willing to talk about it -- after the holidays.

________________________________________

Marc John Randazza*Randazza Legal Group

6525 West Warm Springs Rd. Ste. 100Las Vegas, Nevada 89118Toll Free: 888-667-1113email: mjr (at) randazza (dot) comeFax: 305.437.7662

Other Offices: Miami & Phoenixhttp://www.randazza.com________________________________________

* Licensed in AZ, CA, FL, MA, and NV

"Wassom, Brian D."

RE: Land Rover v. Rover Repairs of Collingdale



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-------- Original Message --------Subject: RE: Land Rover v. Rover Repairs of CollingdaleFrom: "Wassom, Brian D." Date: Fri, December 21, 2012 2:25 pmTo: Marc John Randazza , "Kramer, Anessa Owen", Jordan Rushie ,"[email protected]" ,"[email protected]"

Marc;

Ive managed to reach and discuss this with our client. We will consent to withdrawal of the motion and a responsive pleading deadline of 12/31, butwe cannot go past that date. Under normal circumstances, we would gladly extend you the additional courtesy. But this case has already beenlanguishing for months; neither the case nor the pleading are complicated; and we have an impending Rule 16 conference on 1/3 that we are notwilling to postpone. Under these circumstances, we honestly dont think its onerous to ask you to have an answer on file by 12/31.

Moreover, please note that weve been involved in settlement negotiations with your client for some time now, and had thought we were makingprogress toward a reasonable resolution. I remain optimistic that your entry into the case will help both sides seal a deal, rather than movingbackwards into protracted litigation. If you have thoughts about how to get this case resolved, please let us know.

Best wishes for the holidays.

Brian

From: Marc John Randazza [mailto:[email protected]]Sent: Friday, December 21, 2012 5:00 PMTo: Kramer, Anessa Owen; Jordan Rushie; Wassom, Brian D.; [email protected];[email protected]: RE: Land Rover v. Rover Repairs of Collingdale

Would you mind giving us a little more time than that, so we don't need to crank it over either christmas or the holiday break? Most of the people inmy office have taken that week off, I've got fam coming in to town, etc.

I was thinking January 10 would be reasonable.-------- Original Message --------Subject: RE: Land Rover v. Rover Repairs of CollingdaleFrom: "Kramer, Anessa Owen" Date: Fri, December 21, 2012 1:50 pmTo: Jordan Rushie , "Wassom, Brian D.", "[email protected]"

,"[email protected]"Cc: Marc Randazza Mr. Rushdie,

Thank you for your e-mail.

We have not been able to reach our client to discuss this matter yet. If you do not hear from me to the contrary by 6 p.m. tonight, then please takethat as our stipulation to allow you to strike the pending pro se motion, and to have our consent to file a responsive pleading on or before December31.

I am leaving the office shortly and will be out next week. Brian Wassom will be available next Wednesday-Friday. Please include him on yourcommunications.

Thank you.

Very truly yours,Anessa Kramer

Anessa Owen KramerHonigman Miller Schwartz and [email protected]

From: Jordan Rushie [mailto:[email protected]]Sent: Friday, December 21, 2012 3:23 PMTo: Kramer, Anessa Owen; Wassom, Brian D.; [email protected];[email protected]: Marc Randazza



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Subject: Land Rover v. Rover Repairs of Collingdale

Dear Counsel:

Please allow me to introduce myself. Me and my colleague Marc Randazza represent the defendant Rover Repairs of Collingdale in this action. Wekindly ask you to stipulate to allowing us to strike the pro se motion to dismiss our client filed, and allow us time to file a responsive pleading.

If that is acceptable, please let me know and I will send you a stipulation.

Sincerely,________________________________________

A. Jordan Rushie

Mulvihill & Rushie LLCThe Fishtown Lawyers2424 E York Street, Suite 316Philadelphia, PA 19125Office: 215.385.LAW1(5291)Direct: 215.268.3978eFax: 215.525.0909

www.fishtownlaw.com________________________________________* Licensed in PA and NJ

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12.23.12 Motion for an Extension (ECF)

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