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Howard & Mills, P.C.MemoTo:Lisa HowardFrom:Angeline O’BaraDate:March 23, 2019Re:Sweet Lorraine’s Systems, LLC v. Sweet Lorraine’s Bakery, LLC (File no. 3176) Research PlanThis MEMO will consist of the research plan as asked regarding the Sweet Lorraine trademark infringement case. You have stated that you want to make two separate arguments in the motion. First argument involves the federal district court having original jurisdiction over this case considering the claims arise out of federal law. Second, the diversity in citizenship between the parties. In this MEMO, the research plan will be limited to cases coming out of the Sixth Circuit Court of Appeals and the United States District Court for the Eastern District of Michigan. The research plan below will include (1) factual vocabulary list of words I anticipate using as search terms; (2) legal vocabulary list of words I anticipate using as search terms; (3) the legal issues that need to be answered in the research in order to answer the client’s questions; (4) identification of any primary sources of law I intend to research (which includes appropriate jurisdiction); (5) identification of secondary sources of law I intend to research; and (6) an estimation on how many hours the research will take.FACTUAL VOCABULARY LISTSocial Media AdvertisingRestaurant Name InfringementWebsite BusinessLikelihood of confusionLEGAL VOCABULARY LISTDiversity of CitizenshipSixth Circuit Court of AppealsUnited States District Court for Eastern District of Michigan28 U.S.C §§ 1441, 1446Seminal CasesLEGAL ISSUESDoes the federal district court have original jurisdiction over this case considering the claims arise out of federal law?Is there a diversity of citizenship between the Mr. Sawyer, who resides in Michigan, and Mrs. Donnelly, who resides in North Carolina?PRIMARY SOURCES28 U.S.C.S. §1441 states:Generally. Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending. Removal based on diversity of citizenship28 U.S.C.S. §1446 states:Generally. A defendant or defendants desiring to remove any civil action from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together, with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.Requirements; generally. Including: (1), (2) and (3)Johnson v. Jones, 149 F.3d 494, 502 (6th Cir. 1998). “The elements of a prima facie Lanham Act false designation claim are: ‘(1) the false designation must have a substantial economic effect on interstate commerce; and (2) the false designation must create a likelihood of confusion.’”Tenneco Auto. Operating Co. v. Kingdom Auto. Parts, No. 08-CV-10467, 2008 U.S. Dist. LEXIS 47153 (E.D. Mich. June 17, 2008)The federal Lanham Act claims of false designation of origin and unfair competition as alleged in Counts II and III of Tenneco's initial Complaint, premised on KAP's unauthorized use of the "Quick-Strut" mark, were "colorable" federal claims which allowed Tenneco to properly invoke federal question jurisdiction under § 1331. 15 U.S.C. § 1121(a) provides the jurisdictional basis for Lanham Act claims: "The district and territorial courts of the United States shall have original jurisdiction . . . of all actions arising under this chapter, without regard to the amount in controversy or to diversity or lack of diversity of the citizenship of the parties." The elements of a prima facie Lanham Act false designation claim are: "(1) the false designation must have a substantial economic effect on interstate commerce; and (2) the false designation must create a likelihood of confusion." Johnson v. Jones, 149 F.3d 494, 502 (6th Cir. 1998). Conifer Ins. Co. v. Cont'l Inc., No. 15-11650, 2015 U.S. Dist. LEXIS 153488 (E.D. Mich. Nov. 12, 2015) “The U.S. District Court has jurisdiction over claims based on a federal question and claims with complete diversity of citizenship between parties. Title 28 U.S.C. §1332 defines diversity jurisdiction. It provides, in pertinent part, that “the district courts shall have original jurisdiction of all civil actions where the matter in controversy…is between…citizens of different states.” 28 U.S.C. §1332(a)(1)(2006)”.SECONDARY SOURCESARTICLE: Trademark Infringement Rules in Google Keyword Advertising, 89 U. Det. Mercy L. Rev. 137All federal circuits include factors regarding the similarity of marks, evidence of actual confusion, the strength of marks, and the defendant's intent. All circuits except the First Circuit include the factor regarding the likely degree of purchaser care.However, the lists of factors are different among the federal circuits. Other factors such as the similarity of products, the similarity of channels of trade and advertising media, and relationship between the parties' advertising can be found in some federal circuits. This difference does not affect the federal circuits measurement of the likelihood of confusion because not all factors are used or relate to all trademark infringement cases. Different factors may properly be accorded different weights depending on the particular factual setting.ESTIMATION OF HOURS ON RESEARCHI estimate three hours of thorough research on this case. CONCLUSIONThis MEMO includes the requested research plan for Mrs. Donnelly’s case. A factual and legal vocabulary list has been provided as well as the legal issues that need to be addressed in my research; and to answer the client’s questions. I have also provided five primary sources that include two statutes, one Sixth Circuit Court of Appeals Case, two cases from the United States District Court for the Eastern District of Michigan, and one secondary source from an article. The estimation on how many hours of research I will conduct concludes this MEMO. Howard & Mills, P.C.February 1, 2019123 ABC LaneCharlotte, NC 28126Dear Ms. Donnelly:I am writing to inform you of the details of your case thus far. Within this letter I will explain and summarize each of the causes of action that are found in the complaint that was sent to you regarding the possible trademark infringement. I will then explain to you if there is any possible merit in these claims against you. After that, I will explain possible defenses that are backed up by previous cases that are similar to your situation, as well as federal statutes. Finally, after discussing the causes of action I will summarize our preliminary litigation strategy and I will go into detail about the discovery process. Please take notes if you have any questions on the following material. I am happy to answer any questions or explain in further detail for a better understanding. CAUSES OF ACTIONFIRST CAUSE OF ACTION – TRADEMARK INFRINGEMENT – 15 U.S.C. § 1114This cause of action claims that you, as owner of Sweet Lorraine’s Bakery, has had knowledge of “The Sweet Lorraine’s” Trademarks and the fact that the two businesses are “confusingly” similar. This also claims that your business has intentionally and knowingly advertised and distributed the “infringing” products to the public in competition against the Plaintiff’s sale of goods in or affecting interstate commerce. This basically claims that you have been selling your goods outside of the state of North Carolina; hence interstate commerce.This claims that the use of the Trademark is “likely” to cause confusion, mistake or deception among the public as to where the Plaintiff’s business originated from. Considering the “likelihood” of the confusion, they claim that this causes damage to the Plaintiff’s reputation, good will and sales. Basically, this suggests that you are using their trademarked name to make a profit for yourself by attempting to confuse the public on purpose. The Plaintiff explains that if you are not stopped, that they will continue to suffer harm and injury to their goodwill and reputation. POSSIBLE MERIT?Yes, it is possible that they are correct in this claim considering the products are somewhat similar and the name is the same. POSSIBLE DEFENSEIf you do not wish to expand and become world famous and you are content in staying forever a small family owned business in Charlotte, North Carolina, then there is a possibility that you could be entitled to the use of your business name located in your territory. A surname mark can become a trademark name once it acquires secondary meaning, but only in the territory the secondary meaning is found. In a similar case from Buscemi's Inc. v. Anthony Buscemi Delicatessen & Party Store, 96 Mich. App. 714, one of the parties were granted a territorial scope of permanent injunction. Which is when you can use your name, even though it is the same, but only in your territory that is permitted or agreed upon.SECOND CAUSE OF ACTION – FEDERAL TRADEMARK DILUTION – 15 U.S.C. § 1125(c) This cause claims that The Sweet Lorraine’s Trademarks are “famous marks” and have been famous long before your business began. The advertising, manufacturing, distribution and sale of your products is likely to cause “dilution” by blurring and tarnishing the quality of The Sweet Lorraine’s Trademarks. The word Dilution is used in a sense that your products are basically lessening the uniqueness of the Plaintiff’s trademarked products. It is also explained that you were notified of your unauthorized use of the trademarked name and that you are in knowing and willful violation of the Plaintiff’s rights under the Lanham Act. POSSIBLE MERIT?Yes, there is a possibility that they are correct on this claim. The Plaintiff included proof that shows for the past thirty years they have achieved celebrity under its Sweet Lorraine’s Trademark in the restaurant, catering and baking markets. POSSIBLE DEFENSE15 U.S.C. § 1115(b)(5) states, “A party charged with infringement will not be liable if it proves it adopted and continuously used the mark prior to its registration without knowledge of the registrant's prior use. When true, the non-registrant is permitted to use the mark free from interference within the area in which it continuously and in good faith used the mark prior to its registration.” Before Mr. Sawyer contacted you, you had no knowledge of his business’ existence. THIRD CAUSE OF ACTION – FALSE DESIGNATION OF ORIGIN – 15 U.S.C. § 1125(a)This claims that both business’s products are of the same general nature and type and that this is likely to cause confusion among the public. The Plaintiff is insinuating that by selling your products you are likely to confuse purchasers as to who and where the source and sponsorship of the merchandise is originally from. Unauthorized manufacturing, advertising and distributing of your products implies that your misrepresentations were approved by the Plaintiff and that you are profiting while the Plaintiff suffers damages and injuries. Plus, the fact that you sell your goods from North Carolina, they argue that this proves false designation of origin. False designation of origin occurs when a seller lies about who creates the products. Like if a manufacturer makes a product and then claims that it is a high-end brand name. POSSIBLE MERIT?Yes, there is a possibility that their claim can be found true if they consider just generally selling your products under the same name is considered an automatic claim of a high-end brand name like Mr. Sawyer’s company. POSSIBLE DEFENSE15 U.S.C. § 1115(b)(5) states, “A party charged with infringement will not be liable if it proves it adopted and continuously used the mark prior to its registration without knowledge of the registrant's prior use. When true, the non-registrant is permitted to use the mark free from interference within the area in which it continuously and in good faith used the mark prior to its registration.” Before Mr. Sawyer contacted you, you had no knowledge of his business’ existence and nor were you aware of anyone using your family name. FOURTH CAUSE OF ACTION – COMMON LAW TRADEMARK INFRINGEMENTThe Plaintiff claims that you are in violation of a state common law. The previous claims stating that you are infringing on their trademarked name are all federal claims, whereas this is a state violation. This cause of action basically explains the same as mentioned above. You are likely to cause confusion and your infringement is intentional.POSSIBLE MERIT?No, we are working on moving this case to the federal court. This claim has no merit since it is a state violation and you do not reside in the same state as the Plaintiff. POSSIBLE DEFENSE“The U.S. District Court has jurisdiction over claims based on a federal question and claims with complete diversity of citizenship between parties. Title 28 U.S.C. §1332 defines diversity jurisdiction. It provides, in pertinent part, that “the district courts shall have original jurisdiction of all civil actions where the matter in controversy…is between…citizens of different states.” 28 U.S.C. §1332(a)(1)(2006). There are two different states involved in this controversial matter that do not directly associate with each other, therefore the state violation claims hold no merit. FIFTH CAUSE OF ACTION – COMMON LAW UNFAIR COMPETITIONIn this cause of action, it goes on to explain that you have intentionally traded on goodwill associated with The Sweet Lorraine’s Trademarks. This is another state violation, not federal. The Plaintiff explains that you HAVE misled, and you CONTINUE to deceive the public as to the source of the goods. As well as falsely suggesting a connection with the Plaintiff. Unfair competition is when one business acts in a harmful way against another business. In this case, they are claiming that your infringing use of the same name and like products is unfair competition. POSSIBLE MERIT?No, we are working on moving this case to the federal court. This claim has no merit since it is a state violation and you do not reside in the same state as the Plaintiff. POSSIBLE DEFENSEIn the case of Johnson v. Jones, 149 F.3d 494, 502 (6th Cir. 1998) it states, "The district and territorial courts of the United States shall have original jurisdiction . . . of all actions arising under this chapter, without regard to the amount in controversy or to diversity or lack of diversity of the citizenship of the parties”. When a Plaintiff asserts federal claims then the jurisdiction should be federal and not state. They should not make both federal and state claims together in this situation. When in federal court, state claims will not hold. Once this case is moved to the federal court, then the state claims will have no merit. PRELIMINARY LITIGATION STRATEGYThis is basically what our next steps will be at this point in the case.File a Motion to Federal CourtThe very next step that we should take is a motion to remove this case to federal court. A motion is basically a request that we send to the judge before trial begins, in this case, for a decision to be made. Discovery of DocumentsThe discovery process of the case is when one party gives the other party, through their lawyers, a list of documents that can be used as evidence. This can involve all relevant papers or documents including, but not limited to, letters, manuals, contracts, agreements, receipts and anything relating to the case. This step is important for both sides to review all material in order to prepare for the case. The discovery process is set in place to avoid any surprises; therefore, making all cases as fair as possible. Sometimes documents can be protected by “privilege” where we would not be able to view specific documents. I do not think your case would involve any privileged documents; this would usually involve government agencies. Examination for DiscoveryThis step can include interviews of the parties for the purpose of collecting more facts and evidence that relate to the case. Lawyers are the ones who usually question the parties. Examinations take place under oath and are recorded word for word either taped or typed. This can help in clarifying how much merit is possibly involved in the pleadings. Discovery by InterrogatoriesSometimes, when some of the parties live in different locations, a one-on-one examination for discovery is practical. It can save cost to have the discoveries done by written examination. An interrogatory is a list of typed questions that are sent to the opposing party. The opposing party answers all questions, typed and under oath. This is designed to discover more facts and issues that involve the case. This all adds to evidence. CONCLUSIONIn conclusion, I have explained and summarized each of the causes of actions that were raised in the complaint that was sent to you regarding your alleged infringing trademarked name. I have carefully considered the merit of each cause of action and explained all possible defenses against these causes of action. Lastly, I have outlined and summarized the next steps in this case as you have agreed to move forward. If you have any questions or concerns, please feel free to call the office or email. We strive to make sure our clients know exactly what, why and how their case is being handled every step of the way. Regards,_____________________Lisa HowardAttorney at LawHoward & Mills, P.C.123 ABC LaneCharlotte, NC 28771Telephone: (123) 456-7890Email: lhoward@aoHoward & Mills, P.C.MemoTo:Lisa HowardFrom:Angeline O’BaraDate:March 23, 2019Re:Predictive Memo – Sweet Lorraine’s Systems, LLC v. Sweet Lorraine’s Bakery, LLC (File No. 3176)STATEMENT OF FACTSOur client, Ms. Donnelly, owns Sweet Lorraine’s Bakery, LLC (“SLB”) located in Charlotte, North Carolina. Ms. Donnelly has recently received a summons and complaint against SLB that was filed in Wayne County Circuit Court in the State of Michigan. Neither the client nor any employee of the client was personally ever served with the Summons and Complaint. Counsel for Mr. Sawyers, the Plaintiff, has wrongly filed this lawsuit in Michigan State Court, not federal district court. Ms. Donnelly has a one store location accompanied with a website, but no online business. In addition to the website, SLB has a Facebook page and a Twitter account where all advertising takes place, as well as by word of mouth. SLB has successfully been operating for the last eight months. Mr. Sawyer is Vice President of Sweet Lorraine’s Systems, LLC located in Detroit, Michigan. Him and his wife own and operate two separate restaurants that are in Michigan. They also have a website where they sell items across the country. Mr. Sawyer and his wife plan to open restaurants in North Carolina and had originally contacted our client and demanded her to cease and desist. Our firm advised Ms. Donnelly to stand firm and she communicated with Mr. Sawyer and advised him that she would not be changing the name of her business; hence the legal action that is not being sought against our client Ms. Donnelly. QUESTION(S) PRESENTEDWhat is the burden of proof on a motion to remove to federal court?Whether Ms. Donnelly will meet the burden of proof on the motion and how?SHORT ANSWER(S)The burden of proof on a motion to remove to federal court consists of the defendant proving the removal is based on:diversity of citizenship;if a joinder of Federal and State Law claims arises under the Constitution, laws or treaties of the United States andif a claim is not within the original or supplemental jurisdiction of the district court or a claim that has been made nonremovable by statute.Ms. Donnelly should meet the burden of proof on the motion because the plaintiff lacks evidence of substantial connections with our client in the State of Michigan. The United States District courts have jurisdiction over claims based on federal question and diversity of citizenship. ANAYLSISMs. Donnelly will need to prove that the removal is based on diversity of citizenship between the parties and that the joinder of Federal and State Law claims arises under the Constitution, laws, or treaties of the United States. 28 U.S.C. § 1441 (a) states that any civil action that is brought in a State court of which the district courts of the United States have original jurisdiction may be removed by the defendant. The burden of proof is held by the defendant. The defendant must prove the removal is based on (b) diversity of citizenship, (c)(1)(A) if a joinder of Federal law claims and State law claims arise under the Constitution, laws, or treaties of the United States and (B) a claim not within the original or supplemental jurisdiction of the district court or a claim that has been made nonremovable by statute, the entire action may be removed if the action would be removable without the inclusion of the claim. Ms. Donnelly should be able to meet the burden of proof and removing to federal court by following the procedures explained in 28 U.S.C. § 1446. This statute explains the procedure that is required for removal of civil actions according to 28 U.S.C. § 1446 Procedure for removal of civil actions:A defendant or defendants desiring to remove any civil action from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.Requirements; generally.The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.Ms. Donnelly should be successful in meeting the burden of proof since the Plaintiff fails to meet their burden of proof by exhibiting evidence of a substantial connection with our client and the State of Michigan. Cmty. Tr. Bancorp, Inc. v. Cmty. Tr. Fin. Corp., 692 F.3d 469 (6th Cir. 2012)“To determine whether a plaintiff’s exercise of jurisdiction satisfies due process, we apply a three-part specific jurisdiction analysis:First, the defendant must purposefully avail himself of the privilege of acting in the forum state or causing a consequence in the forum state. Second, the cause of action must arise from the defendant’s activities there. Finally, the acts of the defendant or consequences caused by the defendant must have a substantial enough connection with the forum state to make the exercise of jurisdiction over the defendant reasonable.”Based upon “the constitutional touchstone” of personal jurisdiction, the purposeful availment requirement ensures that the defendant’s actions create a “substantial connection” to the forum state. This protects a defendant from being “haled into a jurisdiction solely as a result of random, fortuitous, or attenuated contacts”. In our client’s case, the plaintiff fails to meet their burden of personal jurisdiction considering no substantial connection has been made. The plaintiff also fails to meet their burden of supplemental jurisdiction and original subject matter jurisdiction because no substantial part of events has occurred in the State of Michigan to give rise to these jurisdictional claims. The motion to remove to federal court should be successful based on the lack of a substantial connection to the State of Michigan.Ms. Donnelly should be successful in meeting the burden of proof since the federal district court has original jurisdiction over this case because the claims arise out of federal law. Tenneco Auto. Operating Co. v. Kingdom Auto. Parts, No. 08-CV-10467, 2008 U.S. Dist. LEXIS 47153 (E.D. Mich. June 17, 2008)The federal Lanham Act claims of false designation of origin and unfair competition as alleged in Counts II and III of Tenneco's initial Complaint, premised on KAP's unauthorized use of the "Quick-Strut" mark, were "colorable" federal claims which allowed Tenneco to properly invoke federal question jurisdiction under § 1331. 15 U.S.C. § 1121(a) provides the jurisdictional basis for Lanham Act claims: "The district and territorial courts of the United States shall have original jurisdiction . . . of all actions arising under this chapter, without regard to the amount in controversy or to diversity or lack of diversity of the citizenship of the parties”. In the case cited above, much like our client’s, the plaintiff tried to sue the defendant in state court while raising federal questions. The defendant was able to invoke federal question jurisdiction since the plaintiff accused the defendant of Lanham Act violations when the Lanham Act claims that the district and territorial courts of the United States shall have original jurisdiction of all actions arising under this chapter. The motion to remove to federal court should be successful for this reason. Ms. Donnelly should meet the burden of proof because the U.S. District Court has jurisdiction over claims based on federal question and claims with diversity of citizenship. Conifer Ins. Co. v. Cont'l Inc., No. 15-11650, 2015 U.S. Dist. LEXIS 153488 (E.D. Mich. Nov. 12, 2015) “The U.S. District Court has jurisdiction over claims based on a federal question and claims with complete diversity of citizenship between parties. Title 28 U.S.C. §1332 defines diversity jurisdiction. It provides, in pertinent part, that ‘the district courts shall have original jurisdiction of all civil actions where the matter in controversy…is between…citizens of different states.’ 28 U.S.C. §1332(a)(1)(2006)”. In our client’s case, not only is diversity of citizenship in question, but the Plaintiff also raises claims based on federal question. The U.S. District Court has jurisdiction over claims based on federal question as well as claims with diversity of citizenship. The motion should be successful considering federal questions are raised in this complaint. CONCLUSIONIn conclusion, our client should be successful in removing this case to federal court through the form of a motion. Given the required burden of proof that our client must show, such as the diversity in citizenship and because the claims arise out of federal law, Ms. Donnelly should be successful. The Plaintiff lacks substantial evidence and their own burden of proof to bar these claims from federal district court. UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGANSWEET LORRAINE’S SYSTEMS, LLC.1100 Snarl Avenue, Suite 310Detroit, MI 42330Plaintiff,DEFENDANT’S ANSWER TO COMPLAINTv.Index No.: 2013-77569SWEET LORRAINE’S BAKERY, LLC.220 West BoulevardCharlotte, NC ES NOW the Defendant, SWEET LORRAINE’S BAKERY, LLC, in answering the allegations of the Complaint on file herein as follows:FIRST CAUSE OF ACTIONAnswering paragraph 24 the averments contained therein are conclusions of the Plaintiff which no response is required. To the extent a response is deemed required, Defendant is without sufficient knowledge or information to either admit or deny the allegations contained therein and therefore denies and leaves Plaintiff to its proofs. Defendant denies having sufficient knowledge or information to form a belief as to the allegations contained in Paragraph 25.Defendant denies having sufficient knowledge or information to form a belief as to the allegations contained in Paragraphs 26, 27, 28, and 29 of the complaint, and thereupon denies said allegations.Defendant denies each and every allegation of Paragraph 30 and 31 of the complaint.SECOND CAUSE OF ACTIONAnswering Paragraph 32, Defendant repeats and restates his answers in Paragraphs 24 through 31 as if set forth fully herein.Defendant denies having sufficient knowledge or information to form a belief as to the allegations contained in Paragraphs 32, 33, 34, 35, and 36 of the complaint, and thereupon denies sail allegations. Defendant denies each and every allegation of Paragraph 37 and 38 of the complaint. THIRD CAUSE OF ACTIONAnswering paragraph 39, Defendant repeats and restates his answers in Paragraphs 24 through 38 as if set forth fully herein. Defendant denies each and every allegation of Paragraph 40, 41, 42, and 43 of the complaint.Defendant denies having sufficient knowledge or information to form a belief as to the allegations contained in paragraphs 44 and 45, and thereupon denies said allegations. FOURTH CAUSE OF ACTIONAnswering paragraph 46, Defendant repeats and restates his answers in Paragraphs 24 through 45 as if set forth fully herein.Defendant denies having sufficient knowledge or information to form a belief as to the allegations contained in Paragraph 47 of the complaint.Defendant denies each and every allegation of the Paragraphs 48 and 49 of the complaint.Defendant denies having sufficient knowledge or information to form a belief as to the allegations contained in Paragraphs 50 and 51 of the complaint, and thereupon denies said allegations. FIFTH CAUSE OF ACTIONAnswering paragraph 52, Defendant repeats and restates his answers in Paragraphs 24 through 51 as if set forth fully herein.Defendant denies having sufficient knowledge or information to form a belief as to the allegations contained in Paragraph 53 of the complaint.Defendant denies each and every allegation of Paragraph 54 and 55 of the complaint.Defendant denies having sufficient knowledge or information to form a belief as to the allegations contained in Paragraph 56 and 57 of the complaint, and thereupon denies said allegations. AFFIRMATIVE DEFENSESThe defendant now brings forth the following Affirmative Defenses:Plaintiff has failed in whole or in part to state a claim upon which relief can be granted;Plaintiff has suffered no damages by Defendant and/or has failed to mitigate its damages, if any;Plaintiff has suffered no injury by Defendant nor is there a likelihood of injury by Defendant;Plaintiff has suffered no harm and/or irreparable harm by Defendant;Plaintiff failed to protect and/or enforce its alleged rights;Plaintiff’s complaint is barred as unconscionable;Defendant hereby reserves the right to add, supplement, modify, change or amend any and all of its Affirmative Defenses as the facts and circumstances become known through further discovery and/or investigation.PRAYER FOR RELIEFHaving completely and fully provided his Answer to the Complaint, this Defendant therefore also denies Plaintiff’s prayer for relief.WHEREFORE, Defendant prays for relief as follows:The Complaint against Defendant be dismissed with prejudice;The Defendant be awarded his reasonable attorney’s fees and costs in accordance with 28 U.S.C. § 1927; andThe Defendant be awarded such other and further relief as the Court deems just and equitable.Dated: February 20th, 2019Respectfully submitted,______________________________Lisa HowardAttorney for DefendantSweet Lorraine’s Bakery, LLC123 ABC LaneCharlotte, NC 28771Telephone: (123) 456-7890Email: lhoward@UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGANSWEET LORRAINE’S SYSTEMS, LLC.1100 Snarl Avenue, Suite 310Detroit, MI 42330Plaintiff,REQUEST FOR INSPECTIONv.Index No.: 2013-77569SWEET LORRAINE’S BAKERY, LLC.220 West BoulevardCharlotte, NC 28277Defendant.TO:Marsha Jabber, Attorney of Record for Defendant, Robinson & Marx, LLP, in the above styled and numbered cause.Pursuant to the Federal Rules of Civil Procedure, Rule 34, you shall permit a representative of the Defendant to inspect and copy each of the following documents, including all documents in the custody of, or under the control of, any agent or representative of the Plaintiff. A written response to this request shall be served within thirty (30) days and the documents are requested to be produced for inspection and copying at the offices of Howard & Mills, P.C. in Charlotte, North Carolina.INSTRUCTIONS AND DEFINITIONSThis request is continuing in nature, thereby requiring you to change, supplement, and correct your production to conform to all available information, including such information as first becomes available after the initial production.“Documents” means any tangible item discoverable under Federal Rule of Civil Procedure, Rule 34. If more than one copy of a requested document exists, this request includes a request for production of all non-identical copies.The Terms “you” or “your” include the person to whom these requests are addressed, and all of that person’s agents, representatives, or attorneys.In accordance with Rule 34, the terms “document” or “documents” include all writings, drawings, graphs, charts, photographs, recordings, and other data compilations from which information can be obtained, translated, if necessary, by you through detection devices into reasonably usable form.DOCUMENTS TO BE PRODUCEDCopies of any and all statements of Christine Donnelly and/or any principal, agent, employee or representative or anyone thought to be a principal, agent employee or representative of Sweet Lorraine’s Bakery, LLC. Any and all documents, bills, statements, correspondence, electronically stored information or records of any description pertaining to Mr. & Mrs. Sawyers or Sweet Lorraine’s Systems, LLCAny and all documents, bills, statements, correspondence, electronically stored information or records of any description that constitute or relate to any and all communication between Mr. & Mrs. Sawyer and Christine Donnelly or Sweet Lorraine’s Systems, LLC between Sweet Lorraine’s Bakery, LLC.All documents, statements, correspondence, electronically stored information or records that report on, describe, refer to, and/or relate to Defendant’s use of the alleged infringed products. All documents, statements, correspondence, electronically stored information or records which the Plaintiff will rely upon to establish that the Marks have been in continuous use from the date of the first use to the present, including but not limited to any and all documents relating to any periods of non-use of the Marks. For each product or service identified in Plaintiff’s complaint, produce each type of label, container, sticker, box, bag, packaging, brochure, advertisement, website screen print out and/or other means by which Plaintiff has applied or used (or intends to apply or use) the Marks to the product or service. Dated: February 20th, 2019Respectfully submitted,______________________________Lisa HowardAttorney for DefendantSweet Lorraine’s Bakery, LLC123 ABC LaneCharlotte, NC 28771Telephone: (123) 456-7890Email: lhoward@Index No.: 2013-77569IN THE UNITED STATES DISTRICT COURTEASTERN DISTRICT OF MICHIGANSWEET LORRAINE’S SYSTEMS, LLC.1100 Snarl Avenue, Suite 310Detroit, MI 42330Plaintiff,v.SWEET LORRAINE’S BAKERY, LLC.220 West BoulevardCharlotte, NC 28277Defendant.TRIAL BRIEF IN SUPPORT OF DEFENDANT’SMOTION TO EXLUDEDATE: March 27th, 2019Lisa HowardAttorney for DefendantSweet Lorraine’s Bakery, LLC123 ABC LaneCharlotte, NC 28771Telephone: (123) 456-7890Email: lhoward@ UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGANSWEET LORRAINE’S SYSTEMS, LLC.1100 Snarl Avenue, Suite 310Detroit, MI 42330Plaintiff,TRIAL BRIEF IN SUPPORT OF DEFENDANT’S MOTION TO EXCLUDEv.Index No.: 2013-77569SWEET LORRAINE’S BAKERY, LLC.220 West BoulevardCharlotte, NC 28277Defendant.Defendant, Sweet Lorraine’s Bakery, LLC, hereby submits its Trial Brief in Support of Defendant’s Motion to Exclude states as follows:INTRODUCTIONDefendant, Sweet Lorraine’s Bakery, LLC, respectfully asks the court to exclude a statement from the Defendant that was made to the Plaintiff before the case was sued. Plaintiff refused to disclose this statement in the mandatory disclosure. Pursuant to Rule 37(c)(1) and Rule 37(d)(1)(A)(ii) of the Federal Rules of Civil Procedure, this statement should be excluded from evidence.STATEMENT OF FACTSBy this motion to exclude Defendant seeks to exclude Christine Donnelly’s, owner of Sweet Lorraine’s Bakery, LLC, statement that has recently been disclosed despite the fact it was taken before this case was sued. Defendant served a Rule 34 Request for Inspection on Plaintiff’s counsel on February 20th, 2019 and demanded Plaintiff to turn over any and all statements of the Defendant. Thus, Plaintiff’s counsel was in possession of Christine Donnelly’s statement at the time we demanded it and at the time Plaintiff should have disclosed it in his mandatory disclosure. Regardless, Plaintiff’s counsel wrongly held onto the statement until the week before trial to ambush the Defendant. ARGUMENTI.USCS Fed Rules Civ Proc R 26Pursuant to Rule 26 (a)(1)(C) “A party must make the initial disclosures at or within 14 days after the parties’ Rule 26(f) conference unless a different time is set by stipulation or court order, or unless a party objects during the conference that initial disclosures are not appropriate in this action and states the objection in the proposed discovery plan”. Plaintiff has disclosed Defendant’s statement, which was made prior to the case being sued, 7 days prior to trial despite being served a Rule 34 Request for Inspection on Plaintiff’s counsel on February 20th, 2019. This proves Plaintiff’s counsel was in possession of Defendant’s statement at the time Defendant demanded it.Pursuant to Rule 26 (3)(C) “Any party or other person may, on request and without the required showing, obtain the person’s own previous statement about the action or its subject matter. If the request is refused, the person may move for a court order, and Rule 37(a)(5) applies to the award of expenses”. Plaintiff refused the request and therefore Defendant’s statement should be excluded from evidence. II.USCS Fed Rules Civ Proc R 34Pursuant to Rule 34 (a) of the Federal Rules of Civil Procedure:In General. A party may serve on any other party a request within the scope of Rule 26(b):(1) to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party's possession, custody, or control:(A) any designated documents or electronically stored information—including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations—stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form…The statement made by the Defendant prior to the case being sued was in the possession of the Plaintiff and despite being served a Rule 34 Request for Inspection, refused to provide the statement when demanded. Pursuant to Rule 34(A) a statement made from the Defendant is considered a designated document that can be obtained directly by responding party into a reasonably usable form. Plaintiff’s use of Defendant’s statement should be excluded from evidence. III.USCS Fed Rules Civ Proc R 37Pursuant to Rule 37 (c)(1) of the Federal Rules of Civil ProcedureIf a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.Plaintiff refused to provide the Defendant’s statement when served with a Rule 34 Request for Inspection and then disclosed the statement 7 days prior to trial. This statement was made by the Defendant prior to the case being sued, thus proves the Plaintiff was in possession of this statement when Defendant demanded inspection of all documents Plaintiff intends on using in court. Pursuant to Rule 37(d)(1)(A)(ii) “a party, after being properly served with interrogatories under Rule 33 or a request for inspection under Rule 34, fails to serve its answers, objection, or written response”. Plaintiff refused to produce the Defendant’s statement when demanded a Rule 34 Request for inspection. Plaintiff did not substantially justify the failure of disclosing the Defendant’s statement, therefore Plaintiff’s use of Defendant’s statement should be excluded from evidence. CONCLUSIONWHEREFORE, I respectfully request that the Court grant the within motion, as well as such other and further relief as may be just and proper.Respectfully submitted,______________________________Lisa HowardAttorney for DefendantSweet Lorraine’s Bakery, LLC123 ABC LaneCharlotte, NC 28771Telephone: (123) 456-7890Email: lhoward@Date: March 27th, 2019Angeline O’BaraLegal Research & Writing IIFebruary 25th, 2019Portfolio Project ReflectionIn this class we continued to work on a scenario from the first class at the beginning of this program. This class was my last law class and we were able to see how we have grown and developed since the first few projects we worked on in the beginning of this Trademark Infringement case. Through the completion of this portfolio project, I have learned why law is referred to as “The Practice of Law”. The interpretation of law is endless as our society grows and changes. Law is a practice in that it never finishes, it’s always continuing. I have learned that I have continued to grow and adapt through the completion of this portfolio project. Having learned these vital lessons, this will help myself to become more successful in the workforce upon finding my future job at a law firm as a paralegal.My work process has improved by learning to set aside the right amount of time to complete each project effectively as possible. In the future, when asked to complete similar projects I will work on becoming more efficient through the use of programs such as Lexis Nexis in order to cut down on time spent on research. Learning all of the tips and tricks to help navigate through programs such as Lexis Nexis would be the best advice to give a future student beginning on a project such as this. The portfolio project helped to meet program outcomes such as, design and compose legal documents, including but not limited to correspondence, pleadings, briefs, and memoranda, that are relevant to different substantive areas of law; define, apply, and defend principles of legal ethics within a variety of settings; describe and discuss the basic responsibilities, legal and procedural theories, and limitations of a paralegal; and apply appropriate paralegal specific knowledge, skills and behaviors to analyze and interpret primary and secondary law sources and related legal documents. We were able to apply appropriate paralegal specific knowledge and skills to interpret primary and secondary law sources through the use of Lexis Nexis. We also designed and composed legal documents such as attorney affidavits, supporting briefs, answer to complaint etc. The Discussions throughout each week helped to define, apply and defend principles of legal ethics within a variety of settings. We discussed different situations where ethics would become almost a controversial issue and what to do to stay ethical. In conclusion, learning to grow and adapt to changes in the system is vital in being successful in the practice of law. Through the completion of this portfolio project, I have become confident that I can adapt to many changes and handle many different angles of a case at one time with proficiency and ease. ................
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