Free Response ( Non Motion ) - District Court of California - California

Case 3:08-cv-00778-MHP

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Filed 02/27/2008

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1 SHEPPARD MULLIN RICHTER & HAMPTON LLP 2 3 4 5 6
A Limited Liability Partnership Including Professional Corporations NEIL A. SMITH, Cal. Bar No. 63777 NATHANIEL BRUNO, Cal. Bar No. 228118 Four Embarcadero Center, 17th Floor San Francisco, California 94111-4106 Telephone: 415-434-9100 Facsimile: 415-434-3947 E-mail: [email protected] [email protected]

7 Attorneys for Defendants DANRICK COMMERCE
GROUP, LLC a/k/a 8 MODERNCOLLECTIONS.COM and DANNY LOUIE

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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KNOLL, INC., a Delaware corporation, Case No. 08-CV-0778 MHP STATEMENT OF IMPROPERLY INCLUDED COUNTERCLAIM DEFENDANTS IN FIRST NORTHERN DISTRICT OF CALIFORNIA CASE (No. 07CV-05569-MHP) AND DEFENDANTS IN SECOND NORTHERN DISTRICT OF CALIFORNIA CASE (No. 08-CV-0778MHP) [DANRICK COMMERCE GROUP, LLC AND DANNY LOUIE] IN RESPONSE TO ADMINISTRATIVE REQUEST TO RELATE CASES Honorable Marilyn Hall Patel United States District Judge

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Plaintiff,

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v.

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DANRICK COMMERCE GROUP, LLC a/k/a 17 MODERNCOLLECTIONS.COM, DANNY LOUIE, and DOES A­Z, Retailers for 18 Alphaville Design, Inc.,

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Defendants.

Defendants DANRICK COMMERCE GROUP, LLC a/k/a

24 MODERNCOLLECTIONS.COM ("Danrick") and DANNY LOUIE ("Louie") do not object 25 solely to the relation of these cases pursuant to Civil Local Rule 3-12 (i.e., Alphaville Design, Inc. 26 v. Knoll, Inc., Case No. 07-CV-05569-MHP and Knoll, Inc. v. Danrick Commerce Group, LLC et 27 al., Case No. 08-CV-0778-MHP) or to the combined scheduling of them according to the case 28
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Case No. 08-CV-0778 MHP

STATEMENT OF DANRICK COMMERCE GROUP, LLC AND DANNY LOUIE IN RESPONSE TO ADMINISTRATIVE REQUEST TO RELATE CASES

Case 3:08-cv-00778-MHP

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Filed 02/27/2008

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1 management schedule currently established in this action (i.e., the schedule for Knoll, Inc. v. 2 Danrick Commerce Group, LLC et al., Case No. 08-CV-0778-MHP, at Docket No. 2). 3
However, Danrick and Louie do object to the incorrect and vexatious filing of three

4 expensive lawsuits against them by plaintiff Knoll, Inc., first across the country in the Southern 5 District of New York, and then twice more here in the Northern District of California, in a case 6 which the evidence will show has no merit, and is a blatant attempt by Knoll, Inc. to harass a mere 7 customer (as well as an individual owner) of declaratory judgment plaintiff Alphaville Design Inc. 8 (i.e., Danrick and Louie), to increase the expenses of Danrick and Louie, and attempt to force a 9 settlement to which plaintiff Knoll, Inc. is not entitled. 10
As to the merits, plaintiff Knoll, Inc. has obtained trademark registrations in the

11 United States Patent and Trademark Office to which it is not entitled, for designs which are public 12 domain, by making claims and using statements of the New York Museum of Modern Art which 13 are contradicted by a publication of the Museum of Modern Art. Danrick and Louie certainly do 14 not intend to prove their case at this time, but make this point to provide the background pursuant 15 to which plaintiff Knoll, Inc. has improperly filed three cases against them (the first across the 16 country in the Southern District of New York without jurisdiction), in order to unfairly increase 17 the cost to Danrick and Louie. 18
As to the relation of the cases (i.e., Alphaville Design, Inc. v. Knoll, Inc., Case No.

19 07-CV-05569-MHP and Knoll, Inc. v. Danrick Commerce Group, LLC et al., Case No. 08-CV20 0778-MHP), Danrick and Louie have no objection to relating these cases within the meaning of 21 Civil L.R. 3-12, or to adhering to the case management deadlines currently set in this action (Case 22 No. 08-CV-0778-MHP), as long as it is clear, as provided in Danrick and Louie's Proposed Order 23 submitted herewith, that none of the conditions plaintiff Knoll, Inc. attempted to force on Danrick 24 and Louie in Knoll, Inc.'s purported "Stipulation" apply. (See the purported "Stipulation" at 25 Khachatourian Declaration [Docket No. 8] at Ex. C.) 26
It should be noted that the proposed "Stipulation" which Knoll sought to force

27 Danrick and Louie to sign (which is now used as an improper excuse for Knoll to bring this so28 called "Administrative Request") was in no way designed to accomplish what Knoll now requests -2W02-WEST:5NAS1\400727492.2

Case No. 08-CV-0778 MHP

STATEMENT OF DANRICK COMMERCE GROUP, LLC AND DANNY LOUIE IN RESPONSE TO ADMINISTRATIVE REQUEST TO RELATE CASES

Case 3:08-cv-00778-MHP

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1 of this Court, i.e., the relationship of the cases and the scheduling of case management deadlines 2 according to the case management schedule currently set in this action (the later case, Case No. 3 08-CV-0778-MHP, at Docket No. 2). (See the purported "Stipulation" at Khachatourian 4 Declaration [Docket No. 8] at Ex. C.) Instead, the "Stipulation" was designed to accomplish the 5 very opposite, which was, of course, the reason why it was not signed by Danrick and Louie. (See 6 id.) 7
Plaintiff Knoll, Inc. erroneously sued Danrick and Louie as counterclaim-

8 defendants in Knoll's counterclaim in the first Northern District of California action, which was 9 filed by Alphaville Design, Inc. (i.e., Alphaville Design, Inc. v. Knoll, Inc., Case No. 07-CV10 05569-MHP). That purported counterclaim by Knoll, Inc. against Danrick and Louie was the 11 second case Knoll brought against Danrick and Louie (the first was the action brought by Knoll, 12 Inc. in the Southern District of New York). Knoll, Inc.'s bringing a purported counterclaim 13 against Danrick and Louie, who were not plaintiffs or any other type of party to the Alphaville 14 Action (Case No. 07-CV-05569-MHP), is a clearly incorrect and improper procedure. Knoll, Inc. 15 could not get a summons issued (Khachatourian Declaration [Docket No. 8] at ¶ 11), yet asked 16 Danrick and Louie's counsel to accept service of an improper action, where no summons could 17 issue to be served. There was nothing to accept service on, because no summons could be issued. 18
Knoll's proffered "Stipulation" (see Khachatourian Declaration [Docket No. 8] at

19 Ex. C) sought to accomplish something improper procedurally, asked for acceptance of a 20 summons where one could not properly be issued, and did not ask to relate the cases or adopt the 21 schedule of this action which Knoll, Inc. now tries to accomplish through its purported 22 Administrative Request. Knoll's proffered "Stipulation" did not seek to relate the cases, but rather 23 sought to dismiss the second Northern District of California case (Knoll, Inc. v. Danrick 24 Commerce Group, LLC et al., Case No. 08-CV-0778-MHP), which is actually the third case 25 brought by Knoll, Inc. against Danrick and Louie. The "Stipulation" inappropriately sought to 26 extinguish Danrick and Louie's rights to the remedies available under Fed. R. Civ. Proc. 41, which 27 include, inter alia, a dismissal with prejudice and recovery of costs. (See Khachatourian 28 Declaration [Docket No. 8] at Ex. C, ¶ 5.) This gamesmanship is improper. -3W02-WEST:5NAS1\400727492.2

Case No. 08-CV-0778 MHP

STATEMENT OF DANRICK COMMERCE GROUP, LLC AND DANNY LOUIE IN RESPONSE TO ADMINISTRATIVE REQUEST TO RELATE CASES

Case 3:08-cv-00778-MHP

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Filed 02/27/2008

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1

The Court must preserve all of Danrick and Louie's rights. The purported

2 "Stipulation" [Khachatourian Declaration [Docket No. 8] at Ex. C)] used as an excuse for Knoll, 3 Inc.'s purported Administrative Request here did not seek to relate the Northern District of 4 California cases, but sought a different schedule, putting new defendants Danrick and Louie on the 5 schedule of the earlier-filed Northern District of California action (i.e., Case No. 07-CV-055696 MHP), rather than what is now profferred, which is to relate the two Northern District of 7 California actions and adhere to the case management schedule set in this later-filed action (i.e., 8 Case No. 08-CV-0778-MHP, at Docket No. 2). Again, it is clear why the purported "Stipulation" 9 was not acceptable to any of the parties Knoll, Inc. tried to coerce into signing it. 10
Accordingly the Court should certainly add to Knoll, Inc.'s proffered Proposed

11 Order on its "Administrative Request" at least the following language: 12 13 14 15 16 17
A Proposed Order along the lines of the positions set forth above is submitted "This Order is without prejudice to any of the rights of Danrick Commerce Group, LLC a/k/a Moderncollections.com and Danny Louie (parties to this action, Case No. 08-CV-0778-MHP), as well as without prejudice to any of the rights of Alphaville Design, Inc, David Lee, and Peggy Lee (parties to Case No. 07-CV-05569MHP), including, without limitation, the right to seek a stay or dismissal of either action and/or all remedies available under Fed. R. Civ. P. 41.

18 herewith by Danrick and Louie. 19 DATED: February 27, 2008 20 21 22 23 24 25 26 27 28
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Respectfully submitted, SHEPPARD MULLIN RICHTER & HAMPTON LLP

By /s/ Neil A. Smith NEIL A. SMITH NATHANIEL BRUNO Attorneys for DANRICK COMMERCE GROUP, LLC and DANNY LOUIE

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Case No. 08-CV-0778 MHP

STATEMENT OF DANRICK COMMERCE GROUP, LLC AND DANNY LOUIE IN RESPONSE TO ADMINISTRATIVE REQUEST TO RELATE CASES