Free Transfer Document - District Court of California - California

Case 3:08-cv-01493-JM-BLM

Document 18

Filed 07/08/2008

Page 1 of 2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

DOWNEY BRAND LLP MICHAEL J. THOMAS (Bar No. 172326) APARNA RAJAGOPAL-DURBIN (Bar No. 218519) 555 Capitol Mall, Tenth Floor Sacramento, CA 95814-4686 Telephone: (916) 444-1000 Facsimile: (916) 444-2100 E-mail: [email protected] E-mail: [email protected] Attorneys for Plaintiff Nutrishare, Inc. UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Nutrishare, Inc., a California corporation, Plaintiff, v. BioRx, LLC, an Ohio Limited Liability Company, Defendant.

Case No. 2:08-CV-01252-WBS-EFB
REQUEST TO FILE NEWLY DISCOVERED EVIDENCE IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

Plaintiff Nutrishare, Inc. (hereinafter "Nutrishare") hereby respectfully requests that the Court accept for filing the Declaration of Kerry Stone Regarding Actual Confusion, and the Supplemental Declaration of Rodney Okamoto, both of which are submitted herewith for filing, on the grounds that these declarations contain newly-discovered evidence supporting Nutrishare's Motion for Preliminary Injunction, filed on June 24, 2008. Specifically, on June 24, 2008, along with its moving papers, Plaintiff submitted several declarations containing evidence of actual confusion by third parties regarding the source, affiliation, relationship, or sponsorship of the products and services offered by Nutrishare and NutriThrive. Since Plaintiff filed its moving papers, Plaintiff has become aware of another individual ­ Kerry Stone ­ who became confused regarding the sponsorship of products and services offered by Nutrishare and NutriThrive. In addition, yet another individual ­ the

938085.1

1

REQUEST TO FILE NEWLY DISCOVERED EVIDENCE I.S.O. MOT. FOR PRELIMINARY INJUNCTION

Case 3:08-cv-01493-JM-BLM

Document 18

Filed 07/08/2008

Page 2 of 2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

President of the Accreditation Commission for Healthcare (ACHC) ­ has expressed his concerns regarding the likelihood of confusion between Nutrishare and NutriThrive. Both incidents further support Plaintiff's arguments regarding actual confusion and potential harm to the public resulting from the likelihood of confusion between two parties. Plaintiff realizes that these declarations are being submitted after its moving papers. However, they represent newly discovered evidence of which Plaintiff was unaware on June 24, 2008. Rather than submit this new evidence along with its reply brief, due on June 27, 2008, Plaintiff would like to submit this evidence now in order to provide Defendant with this evidence long before its opposition papers are filed. Defendant has ample time to address this evidence, as its opposition papers are due on July 21, 2008, nearly two weeks from today. For the foregoing reasons, Plaintiff respectfully requests that the Court accept for filing the Declaration of Kerry Stone Regarding Actual Confusion and the Supplemental Declaration of Rodney Okamoto, and consider this evidence as if it had been submitted with Plaintiff's Motion for Preliminary Injunction, filed on June 24, 2008. Plaintiff intends to serve Defendant with these Declarations immediately upon the Court's entry of the proposed order lodged herewith. Dated: July 8, 2008 DOWNEY BRAND LLP

By:

/s/ Michael J. Thomas MICHAEL J. THOMAS Attorney for Plaintiff Nutrishare, Inc

938085.1

2

REQUEST TO FILE NEWLY DISCOVERED EVIDENCE I.S.O. MOT. FOR PRELIMINARY INJUNCTION

Case 3:08-cv-01493-JM-BLM

Document 18-2

Filed 07/08/2008

Page 1 of 2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

DOWNEY BRAND LLP MICHAEL J. THOMAS (Bar No. 172326) APARNA RAJAGOPAL-DURBIN (Bar No. 218519) 555 Capitol Mall, Tenth Floor Sacramento, CA 95814-4686 Telephone: (916) 444-1000 Facsimile: (916) 444-2100 E-mail: [email protected] E-mail: [email protected] Attorneys for Plaintiff Nutrishare, Inc. UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Nutrishare, Inc., a California corporation, Plaintiff, v. BioRx, LLC, an Ohio Limited Liability Company, Defendant.

Case No. 2:08-CV-01252-WBS-EFB
DECLARATION OF KERRY STONE REGARDING ACTUAL CONFUSION

I, Kerry Stone, hereby declare as follows: 1. I am an individual residing in La Jolla, California. I make this declaration of my

own personal knowledge, and if called to testify, could and would testify consistent with the facts stated herein. 2. I am a registered dietitian with Crescent Healthcare, Inc., a home infusion

provider. I have known of Nutrishare for several years and am acquainted with its co-founder, Tom Diamantidis. 3. As I make this declaration, I am attending the 2008 Oley Foundation Conference

in San Diego, California, which began on Thursday, July 26, 2008 and ends tonight. I am representing Crescent Healthcare, Inc., which is one of the exhibitors at this conference. A sign on the table at lunch yesterday indicated that lunch was sponsored by NutriThrive. The name
936290.1

1
DECLARATION OF KERRY STONE

Case 3:08-cv-01493-JM-BLM

Document 18-2

Filed 07/08/2008

Page 2 of 2

Case 3:08-cv-01493-JM-BLM

Document 18-3

Filed 07/08/2008

Page 1 of 2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

DOWNEY BRAND LLP MICHAEL J. THOMAS (Bar No. 172326) APARNA RAJAGOPAL-DURBIN (Bar No. 218519) 555 Capitol Mall, Tenth Floor Sacramento, CA 95814-4686 Telephone: (916) 444-1000 Facsimile: (916) 444-2100 E-mail: [email protected] E-mail: [email protected] Attorneys for Plaintiff Nutrishare, Inc. UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Nutrishare, Inc., a California corporation, Plaintiff, v. BioRx, LLC, an Ohio Limited Liability Company, Defendant.

Case No. 2:08-CV-01252-WBS-EFB
SUPPLEMENTAL DECLARATION OF RODNEY OKAMOTO IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION Date: Time: Dept: August 4, 2008 2:00 p.m. Courtroom 5

I, RODNEY OKAMOTO, hereby declare as follows: 1. I am an individual residing in Galt, California. I make this declaration of my own

personal knowledge, and if called to testify, could and would testify consistent with the facts stated herein. 2. 3. I am co-founder and President of Plaintiff in this action, Nutrishare, Inc. The Accreditation Commission for Healthcare, Inc. (ACHC) is one of the primary

national organizations that accredits in-home healthcare providers, including providers of total parenteral nutrition (hereinafter "TPN"). Attached as Exhibit A is a true and correct copy of a message from the President of the ACHC, Thomas E. Cesar, describing the purpose of the ACHC. 4.
938086.1

Although Defendant BioRx, LLC, is accredited by the ACHC, its in-home TPN 1

SUPPLEMENTAL DECL. OF RODNEY OKAMOTO IN SUPPORT OF MOT. FOR PRELIM. INJUNCTION

Case 3:08-cv-01493-JM-BLM

Document 18-3

Filed 07/08/2008

Page 2 of 2

Page 1 of 1 Case 3:08-cv-01493-JM-BLM Document 18-4
Home Contact Us

Filed 07/08/2008
Why ACHC?

Page 1 of 1
Customer Central Login Username: Password:

Order a Manual

Medicare Deeming Authority for Home Health and DMEPOS An ISO 9001:2000 Certified Company Inc. 5000 Honoree

Login

President's Message
I am pleased to welcome you to the Accreditation Commission for Health Care, Inc.(ACHC) World Wide Web site. ACHC is one of the few standard-setting accrediting bodies for home care and alternate site organizations in the country. We offer accrediting programs developed by providers for providers that reflect criteria that are conducive to providing quality care. ACHC is a not-for-profit organization that has been a symbol of quality since 1986. Utilizing experienced healthcare leaders, we offer accreditation services to a variety of community-based organizations. Our process measures the performance of an organization from its administration to its service delivery. Achieving accreditation testifies that an organization sufficiently complies with ACHC standards. ACHC is certified to ISO 9001:2000 by DNV. ISO is an internationally recognized standard for quality. Driven by commitment to excellence in the delivery of best customer services in accreditation, ACHC became the first national healthcare accreditor in the U.S. and in the world to obtain this mark of distinction. We appreciate your interest in our company.

Thomas E. Cesar President

Our experiences with the ACHC accreditation process have been positive. The effort put forth by the ACHC staff is perceptible as they use the survey process as a tool to help our company become even better.
Home MediService, Inc; Havre de Grace, MD

© Accreditation Commission for Health Care, Inc. 2008

Web site Issues? webmaster @ achc.org

http://www.achc.org/public_president.php

7/8/2008

Case 3:08-cv-01493-JM-BLM

Document 18-5

Filed 07/08/2008

Page 1 of 1

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

DOWNEY BRAND LLP MICHAEL J. THOMAS (Bar No. 172326) APARNA RAJAGOPAL-DURBIN (Bar No. 218519) 555 Capitol Mall, Tenth Floor Sacramento, CA 95814-4686 Telephone: (916) 444-1000 Facsimile: (916) 444-2100 E-mail: [email protected] E-mail: [email protected] Attorneys for Plaintiff Nutrishare, Inc. UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Nutrishare, Inc., a California corporation, Plaintiff, v. BioRx, LLC, an Ohio Limited Liability Company, Defendant.

Case No. 2:08-CV-01252-WBS-EFB [PROPOSED] ORDER GRANTING REQUEST TO FILE NEWLY DISCOVERED EVIDENCE IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

The Court, having considered Plaintiff's Request to File Newly Discovered Evidence in support of Motion for Preliminary Injunction, and finding good cause therefor, hereby grants Plaintiff's request. The Court hereby accepts for filing the Declaration of Kerry Stone Regarding Actual Confusion and the Supplemental Declaration of Rodney Okamoto, and will consider this evidence as if it had been submitted with Plaintiff's Motion for Preliminary Injunction, filed on June 24, 2008.

IT IS SO ORDERED.

Dated:_________________, 2008

_______________________________________ UNITED STATES DISTRICT COURT JUDGE 1

938133.1

[PROPOSED] ORDER GRANTING REQUEST TO FILE NEWLY DISCOVERED EVIDENCE

Case 3:08-cv-01493-JM-BLM

Document 18-6

Filed 07/08/2008

Page 1 of 2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

DOWNEY BRAND LLP MICHAEL J. THOMAS (Bar No. 172326) APARNA RAJAGOPAL-DURBIN (Bar No. 218519) 555 Capitol Mall, Tenth Floor Sacramento, CA 95814-4686 Telephone: (916) 444-1000 Facsimile: (916) 444-2100 E-mail: [email protected] E-mail: [email protected] Attorneys for Plaintiff Nutrishare, Inc. UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA Nutrishare, Inc., a California corporation, Plaintiff, v. BioRx, LLC, an Ohio Limited Liability Company, Defendant. I am a resident of the State of California, over the age of eighteen years, and not a party to the within action. My business address is Downey Brand LLP, 555 Capitol Mall, Tenth Floor, Sacramento, California, 95814-4686. On July 8, 2008, I served the within document(s): REQUEST TO FILE NEWLY DISCOVERED EVIDENCE IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION (WITH ATTACHMENTS)

Case No. 2:08-CV-01252-WBS-EFB
PROOF OF SERVICE

¨ ¨ ý ý ¨
935473.1

BY FAX: by transmitting via facsimile the document(s) listed above to the fax number(s) set forth below on this date before 5:00 p.m. BY HAND: by personally delivering the document(s) listed above to the person(s) at the address(es) set forth below. BY MAIL: by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at Sacramento, California addressed as set forth below. BY OVERNIGHT MAIL: by causing document(s) to be picked up by an overnight delivery service company for delivery to the addressee(s) on the next business day. BY PERSONAL DELIVERY: by causing personal delivery by of the document(s) listed above to the person(s) at the address(es) set forth below.

PROOF OF SERVICE

Case 3:08-cv-01493-JM-BLM

Document 18-6

Filed 07/08/2008

Page 2 of 2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
935473.1

COURTESY COPY VIA MAIL Attorney for BioRx, LLC Patricia B. Hogan Keating Muething & Klekamp PLL One East Fourth Street, Ste. 1400 Cincinnati, OH 45202 Telephone: (513) 579-6400 Facsimile: (513) 579-6457

VIA FEDERAL EXPRESS BioRx, LLC Eric Hill 10828 Kenwood Road Cincinnati, Ohio 45242

I am readily familiar with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on July 8, 2008, at Sacramento, California.

/s/ Patricia L. Pineda Patricia L. Pineda

2
PROOF OF SERVICE