Free Motion for Leave to File - District Court of California - California

Case 3:07-cv-04913-SC

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Filed 02/15/2008

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Richard E. Levine (SB #88729) LEVINE & BAKER LLP One Maritime Plaza, Suite 400 San Francisco, CA 94111 Telephone: (415) 391-8177 Facsimile: (415) 391-8488 [email protected] Joseph V. Norvell (pro hac vice) Joseph T. Kucala (pro hac vice) Jay M. Burgett (pro hac vice) NORVELL IP LLC 1776 Ash Street Northfield, IL 60093 Telephone: (847) 809-2212 Facsimile: (312) 268-5063 [email protected] Attorneys for Plaintiffs ROBERT TRENT JONES II, INC. ROBERT TRENT JONES LICENSING GROUP, LLC

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

ROBERT TRENT JONES II, INC. and ROBERT TRENT JONES LICENSING GROUP, LLC Plaintiffs,

Case No. 07-CV-04913-SC PLAINTIFFS' MOTION FOR CLARIFICATION AND MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION OF ORDER DENYING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION Judge Samuel Conti

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v.
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GFSI, INC. d/b/a GEAR FOR SPORTS, INC. Defendant. Pursuant to Federal Rule of Civil Procedure 60(b) and Local Rule 7-9, Robert Trent Jones II, Inc. and Robert Trent Jones Licensing Group, LLC file this Motion for Clarification and Motion for Leave to file Motion for Reconsideration of Order denying Plaintiffs' Motion for
MOTION FOR LEAVE TO FILE MOTION FOR CLARIFICATION AND RECONSIDERATION OF ORDER DENYING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

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Preliminary Injunction. A copy of Plaintiffs' proposed Motion for Reconsideration of Order Denying Plaintiffs' Motion for Preliminary Injunction and Request for Oral Hearing and Leave to Submit Additional Evidence is attached as Exhibit A. INTRODUCTION

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On December 3, 2007, Plaintiffs filed their Motion for Preliminary Injunction. (Docket
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No. 11). Plaintiffs' Motion sought to preliminarily enjoin Defendant from two destructive
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activities: (1) the sale of apparel bearing the "Robert Trent Jones" trademark to discount stores;
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and (2) the sale or distribution of damaged, defective, seconds or non-conforming apparel bearing the "Robert Trent Jones" trademarks to any person or entity without first removing said trademarks. After briefing by both parties, the Court entered its Order, on February 4, 2008, denying Plaintiffs' Motion for Preliminary Injunction with respect to the first activity, but did not opine on the second activity for which an injunction was also sought. (Docket No. 50). ARGUMENT A. Plaintiffs Respectfully Request Clarification On the Order Regarding the Sale of Damaged, Defective Apparel Bearing the Robert Trent Jones Trademarks. Plaintiffs hereby move this Court for clarification regarding the Court's Order dated February 4, 2008 ("Order) denying Plaintiffs' motion for preliminary injunction, under Rule 60(b) of the Federal Rules of Civil Procedure. Rules 60(b)(1) & (6) allow the Court to relieve a party from an Order based upon "mistake, inadvertence, surprise or excusable neglect" or "any other reason that justifies relief." Fed. R. Civ. P. 60(b)(1) & (6). Plaintiffs' Motion for Preliminary Injunction sought relief regarding two separate activities of Defendant: (1) the sale of apparel bearing the "Robert Trent Jones" trademarks to

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discount stores; and (2) the sale or distribution of damaged, defective, seconds or non25

conforming apparel bearing the "Robert Trent Jones" trademarks to any person without first
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removing said trademarks. The Order denied Plaintiffs' Motion for Preliminary Injunction with respect to the first activity, but did not opine on the second activity for which an injunction was also sought. (Docket No. 50). The evidence submitted by Plaintiffs included the following: Defendant's admissions regarding the sale of damaged or defective apparel bearing the Robert Trent Jones trademarks; Defendant's handling of damaged or defective apparel bearing the

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Robert Trent Jones trademarks; and Defendant's sale of damaged or defective apparel bearing
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the Robert Trent Jones trademarks, physical samples of which were presented to the Court.
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(Docket Nos. 11 & 39). The Order issued by the Court, either through mistake or inadvertence, neither grants nor denies Plaintiffs' second request for relief regarding the sale of damaged, defective product bearing the Robert Trent Jones trademarks. While the Order acknowledges Plaintiffs' allegation that Defendant is selling damaged or defective goods bearing the Robert Trent Jones marks out of its warehouse during "dock sale" events and that Defendant agreed it would monitor the dock sales to assure that it was not selling defective merchandise bearing the Robert Trent Jones marks, Plaintiffs are entitled to an order effectively restraining Defendant from continuing to sell damaged or defective apparel bearing the Robert Trent Jones marks. (Order pp. 4-5). Thus,

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Plaintiffs request clarification from the Court on this issue.
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B. Motion for Leave of Court to file a Motion for Reconsideration of the Court's Order Denying Plaintiff's Motion for Preliminary Injunction under Local Rule 7-9. Local Rule 7-9(a) states "Before the entry of judgment adjudicating all of the claims and the rights and liabilities of all the parties in a case, any party may make a motion before a Judge requesting that the Judge grant the party leave to file a motion for reconsideration." Local Rule 7-9(b) set forth the grounds for a motion for leave to file a motion for reconsideration. Plaintiffs specifically make this motion on the basis of the following: (1) there exists a material difference
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in fact from that which was presented to the Court; and (2) the Court failed to consider material facts and dispositive legal arguments which were presented to the Court before the order denying Plaintiff's Motion for Preliminary Injunction. Local Rules 7-9(b)(1) & (3). The substance of Plaintiffs' arguments supporting their bases for reconsideration are more specifically detailed in Plaintiffs' proposed Motion for Reconsideration of Order denying Plaintiffs' Motion for

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Preliminary Injunction and Request for Oral Hearing and Leave to Submit Additional Evidence,
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a copy of which is attached as Exhibit A.
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CONCLUSION Based upon the foregoing, Plaintiffs respectfully request clarification from the Court on their second claim for relief regarding the sale of damaged, defective, seconds or otherwise nonconforming apparel bearing the Robert Trent Jones trademarks. Plaintiffs further request that the Court grant Plaintiffs leave and enter Plaintiffs' Motion for Reconsideration of Order denying Plaintiffs' Motion for Preliminary Injunction and Request for Oral Hearing and Leave to Submit Additional Evidence. If leave is granted by the Court, then Plaintiffs hereby request an expedited briefing schedule. Plaintiffs submit herewith a proposed order, including a proposed briefing schedule.

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Respectfully submitted,
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Dated: __February 15, 2008_____

___________________________________ Richard E. Levine (SB #88729) LEVINE & BAKER LLP One Maritime Plaza, Suite 400 San Francisco, CA 94111 Telephone: (415) 391-8177 Facsimile: (415) 391-8488 [email protected] Joseph V. Norvell (pro hac vice)

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Joseph T. Kucala (pro hac vice) Jay M. Burgett (pro hac vice) NORVELL IP LLC 1776 Ash Street Northfield, IL 60093 Telephone: (847) 809-2212 Facsimile: (312) 268-5063 [email protected] Attorneys for Plaintiffs ROBERT TRENT JONES II, INC. ROBERT TRENT JONES LICENSING GROUP, LLC

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