Free Motion to Dismiss Case - District Court of Arizona - Arizona

Robert M. Frisbee #018779 FRISBEE & BOSTOCK, PLC 2 1747 Morten Ave. E. Suite 108 Phoenix, Arizona 85020 3 Phone: (602) 354-3689 [email protected] 4 Attorneys for Defendant Greg Hancock
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA MERITAGE CORPORATION, a Maryland corporation Plaintiff, vs. ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

NO. CIV 04-0384-PHX-ROS

GREG HANCOCK, an individual; RICK HANCOCK, an individual; and 12 RICK HANCOCK HOMES, L.L.C., an Arizona Corporation,
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LEGAL AUTHORITY IN SUPPORT OF RULE 50 MOTION FOR DISMISSAL OR DIRECTED VERDICT

Defendants.
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I. FACTS
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Plaintiff has now submitted its case in chief. It has not even mentioned, much less
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proved, that the Rick Hancock Homes project constituted a trade dress violation under the
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Lanham Act. To the contrary, plaintiff's own witness testified that the Rick Hancock homes
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were larger, more expensive and had different floor plans. In addition, their witnesses
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testified that the Rick Hancock project offered no competition to Meritage. Even were that
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not the case it has offered no proof whatever that Greg Hancock assisted Rick Hancock
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Homes in any manner whatever other than selling it land. Accordingly, there being no nexus
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whatever to the jurisdiction of this Court, and no proved damage, there is no choice but to
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dismiss the case in its entirety.
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Case 2:04-cv-00384-ROS

Document 610

Filed 09/16/2008

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II. LEGAL AUTHORITY A. License Dispute An exclusive licensee cannot sue a licensor under the Lanham Act. It is a "well known settled proposition established in trademark, patent and copyright cases that a suit wherein an affirmative declaration of title or ownership to the mark, patent or copyright is sought is not within the jurisdiction of the federal court." Silverstar

Enterprises, Inc. v. Aday, 537 F. Supp. 241-242 (S.D.N.Y. 1982, and In Re Houbigant, 914 F. Supp. 964, 990 (S.D.N.Y. 1995). A licensee cannot sue a licensor for trademark infringement. McCarthy on Trademarks, § 18.20 at 18-97; Wortham v. K. Kahn, Inc., 932 F. Supp. 1176 (E.D.Mo. 1996). If the pivotal issue turns on the interpretation of a contract, e.g. whether a party may cancel a license agreement, only a state law issue is presented. Jasper v. Bovina Music, Inc., 314 F.2d 42 (2d Cir. 2002). B. Supplemental Jurisdiction "Although it may seem an obvious construction of the supplemental jurisdiction statute, we have not previously had occasion to state in explicit terms the rule that supplemental jurisdiction cannot exist without original jurisdiction. Several of our sister circuits have squarely addressed the issue, however, and all concur that where there is no underlying original federal jurisdiction, the court has no authority to adjudicate claims under § 1367. [Citations omitted]" Herman Family Revocable Trust v. Teddy Bear, 254 F.3d 802, 807 (9th Cir. 2001) (Emphasis supplied.) The case centered on the aborted sale of a yacht, and the plaintiff invoked the court's admiralty jurisdiction as well supplemental jurisdiction over state claims. It was held that since the court had no admiralty jurisdiction over a dispute about the sale of vessel, a matter of state law, it had no jurisdiction over the supplemental claims: "The statute's plain language makes clear that supplemental jurisdiction may only be invoked when the district court has a hook of original jurisdiction on which to hang it. As a leading treatise explains, if the federal claim is dismissed for lack of subject matter jurisdiction, a district court has no discretion to retain the supplemental claims for adjudication. The dismissal means that there never was a valid claim within the court's original jurisdiction to which the state claims may be supplemental. Therefore, the district court has no discretion to exceed the scope of its Article III
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power, and must dismiss the sate law claims without prejudice. Id., at 807. Judge McKeown clearly was not happy to have reached the result: "We are well aware of the unfortunate posture in which our decision will leave the parties, who have already been through discovery, trial and appeal. Rather than receiving a decision on the merits, as they had hoped, the parties are now back to square one with respect to their dispute over the yacht sale. Were jurisdiction a matter of equity or discretion, we might simply decide the case on its merits. But it isn't so. Regrettably, questions of time, cost, and efficiency do not undergird jurisdiction. Nor is jurisdiction a question of equity - a court lacking jurisdiction to hear a case may not reach the merits even if acting `in the interest of justice.' Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 818, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988)." Id., at 808. III. CONCLUSION

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As defendant has contended all along, when plaintiff filed this case it no actual
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evidence upon which it could claim the jurisdiction of this court. It continued to mislead the
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court for over four years. Then, when it got its trial, it introduced no evidence whatever
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giving a basis for federal jurisdiction. As unfortunate as that is in terms of the time and
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expense to the Court and the parties, the Court has no choice but to dismiss the case. At least
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it can defray later the unjust cost imposed on Greg Hancock by awarding him the fees, costs
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and Rule 11 sanctions he will later seek.
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RESPECTFULLY SUBMITTED this _____ day of September, 2008.
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FRISBEE & BOSTOCK, PLC
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______________________________ Robert M. Frisbee Attorney for Greg Hancock