Lebewohl et al v. Heart Attack Grill LLC et al
A New York City culinary landmark, the 2nd Avenue Deli sued for declaratory judgement, asking a federal court to rule that its 'Instant Heart Attack Sandwich' does not infringe upon the claimed mark of the Heart Attack Grill, an Arizona restaurant.
The lawsuit also asks that a trademark application for the restaurant's upcoming 'Triple Bypass Sandwich' â a hunk of kosher pastrami slathered between fried potato latkes â does not violate any rights held by the Arizona restaurant's unkosher, cheeseburger labeled the 'Triple Bypass Burger.'
| Jeremy Lebewohl, Uncle Abies Deli Inc., Uncle Abies Deli on First, Inc. and Uncle Abies Deli Sandwich Trademarks LLC |
| Heart Attack Grill LLC, Hag LLC and Jon Basso |
| 1:2011cv03153 |
| May 10, 2011 |
| US District Court for the Southern District of New York |
| Foley Square Office |
| New York |
| Lewis A. Kaplan |
| Trademark |
| 15 U.S.C. § 1114 |
| Plaintiff |
Docket Report
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This docket was last retrieved on December 3, 2012. A more recent docket listing may be available from PACER.
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Filing 86
OPINION & ORDER denying re: #102284 81 MOTION for Reconsideration re; 79 Clerk's Judgment filed by Uncle Abies Deli Sandwich Trademarks LLC, Jeremy Lebewohl, Jack Lebewohl, Uncle Abies Deli on First, Inc., Uncle Abies Deli Inc. The Clerk of Court is directed to terminate the motion at docket number 81. (Signed by Judge Paul A. Engelmayer on 9/5/2012) (cd) Modified on 9/5/2012 (jab).
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| Filing 85 RESPONSE in Opposition re: 81 MOTION for Reconsideration re; 79 Clerk's Judgment,,,,,,,.. Document filed by Jon Basso, Diet Center LLC(Delaware), Diet Center LLC(Texas), Hag LLC, Heart Attack Grill LLC. (Kain, Robert) |
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Filing 84
ORDER. The Court has received plaintiffs' Motion for Reconsideration of the Court's July 5, 2012 Opinion & Order. The Court welcomes a response from defendants. Such a response is due Monday, August 20, 2012. (Responses due by 8/20/2012). (Signed by Judge Paul A. Engelmayer on 8/10/2012) (rjm)
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| Filing 83 AFFIRMATION of William W. Chuang in Support re: 81 MOTION for Reconsideration re; 79 Clerk's Judgment,,,,,,,.. Document filed by Jack Lebewohl, Jeremy Lebewohl, Uncle Abies Deli Inc., Uncle Abies Deli Sandwich Trademarks LLC, Uncle Abies Deli on First, Inc.. (Attachments: # 1 Exhibit A - Clerk's Judgment, # 2 Exhibit B - Email From Kain, # 3 Exhibit C - Plaintiffs' Memo In Support of Summary Judgment)(Chuang, Willliam) |
| Filing 82 MEMORANDUM OF LAW in Support re: 81 MOTION for Reconsideration re; 79 Clerk's Judgment,,,,,,,.. Document filed by Jack Lebewohl, Jeremy Lebewohl, Uncle Abies Deli Inc., Uncle Abies Deli Sandwich Trademarks LLC, Uncle Abies Deli on First, Inc.. (Chuang, Willliam) |
| Filing 81 MOTION for Reconsideration re; 79 Clerk's Judgment,,,,,,,. Document filed by Jack Lebewohl, Jeremy Lebewohl, Uncle Abies Deli Inc., Uncle Abies Deli Sandwich Trademarks LLC, Uncle Abies Deli on First, Inc..(Chuang, Willliam) |
| Filing 79 CLERK'S JUDGMENT That for the reasons stated in the Court's Opinion and Order dated July 6, 2012, as to the Instant Heart Attack Sandwich mark: The Delis motion for summary judgment on its claim for a declaratory judgment that its current use of that mark does not infringe HAG's Heart Attack Grill mark is granted; in the exercise of its equitable authority, the Court also enters a concurrent use order permitting the Deli to use the Instant Heart Attack Sandwich mark at current or future restaurants within Manhattan; to advertise the Instant Heart Attack Sandwich on interior and exterior signs at its Manhattan restaurants; to use that mark on its in-person menus in Manhattan; and to reproduce in its Internet advertising the menu used in its Manhattan restaurants; the Court denies the Delis motion for a declaratory judgment that it may use the Instant Heart Attack Sandwich mark outside of Manhattan, including throughout the tri-state area (New York, New Jersey, and Connecticut) and that it may use that mark to the exclusion of HAG's mark; as to the Triple Bypass Sandwich mark: the Delis motion for a declaratory judgment that it may use that mark pursuant to a concurrent use order is granted; under that order, the Deli may use its Triple Bypass Sandwich mark at its current restaurants, but only on its hard copy menu and its online menu; the Deli may not use any images of the sandwich on either menu, or reference the Triple Bypass Sandwich mark on signage on either the interior or exterior of its restaurants; HAG's motion to voluntarily dismiss its counterclaims against Plaintiff is granted; and both parties' requests for attorneys fees are denied; accordingly, the case is closed. (Signed by Clerk of Court Ruby Krajick on 7/13/12) (Attachments: # 1 notice of right to appeal)(ml) |
| Filing 80 INTERNET CITATION NOTE: Material from decision with Internet citation re: 78 Memorandum & Opinion. (Attachments: # 1 If you could choose one deli- Manhattan - Chowhound) (tro) |
| Transmission to Judgments and Orders Clerk. Transmitted re: 78 Memorandum & Opinion,,,,,,,, to the Judgments and Orders Clerk. (js) |
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Filing 78
OPINION AND ORDER: As to the Instant Heart Attack Sandwich mark: The Delis motion for summary judgment on its claim for a declaratory judgment that its current use of that mark does not infringe HAG's Heart Attack Grill mark is granted. In the exercise of its equitable authority. the Court also enters a concurrent use order permitting the Deli to use the Instant Heart Attack Sandwich mark at current or future restaurants within Manhattan; to advertise the Instant Heart Attack Sandwich on interior and exterior signs at its Manhattan restaurants; to use that mark on its in-person menus in Manhattan; and to reproduce in its Internet advertising the menu used in its Manhattan restaurants. The Court denies the Deli's motion for a declaratory judgment that it may use the Instant Heart Attack Sandwich mark outside of Manhattan, including throughout the tri-state area(New York, New Jersey, and Connecticut) and that it may use that mark to the exclusion of HAG's mark. As to the Triple Bypass Sandwich mark: The Deli's motion for a declaratory judgment that it may use that mark pursuant to a concurrent use order is granted. Under that order, the Deli may use its Triple Bypass Sandwich mark at its current restaurants, but only on its hard copy menu and its online menu. The Deli may not use any images of the sandwich on either menu, or reference the Triple Bypass Sandwich mark on signage on either the interior or exterior of its restaurants. HAG's motion to voluntarily dismiss its counterclaims against Plaintiff is granted. Both parties' requests for attorneys' fees are denied.The Clerk of the Court is directed to terminate the motions at docket entry numbers 53 and 62, and to close this case. (Signed by Judge Paul A. Engelmayer on 7/6/2012) (js)
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| Minute Entry for proceedings held before Judge Paul A. Engelmayer: Oral Argument held on 5/22/2012 re: 53 MOTION for Summary Judgment filed by Jon Basso, Diet Center LLC(Delaware), Diet Center LLC(Texas), 62 MOTION for Summary Judgment Of Non-Infringement filed by Uncle Abies Deli Sandwich Trademarks LLC, Jeremy Lebewohl, Jack Lebewohl, Uncle Abies Deli on First, Inc., Uncle Abies Deli Inc. Oral argument held on the record regarding Plaintiff's and Defendant's Motions for summary judgment (Docket No. 53 and No. 62). Court's decision reserved. (lmb) |
| Filing 77 DECLARATION of William W. Chuang in Support re: 62 MOTION for Summary Judgment Of Non-Infringement.. Document filed by Jack Lebewohl, Jeremy Lebewohl, Uncle Abies Deli Inc., Uncle Abies Deli Sandwich Trademarks LLC, Uncle Abies Deli on First, Inc.. (Chuang, Willliam) |
| Filing 76 REPLY MEMORANDUM OF LAW in Support re: 62 MOTION for Summary Judgment Of Non-Infringement.. Document filed by Jack Lebewohl, Jeremy Lebewohl, Uncle Abies Deli Inc., Uncle Abies Deli Sandwich Trademarks LLC, Uncle Abies Deli on First, Inc.. (Chuang, Willliam) |
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Filing 75
ORDER: The Court has received defendants' letter requesting oral argument on defendants' motion for summary judgment, and plaintiffs' letter requesting oral argument on plaintiffs' motion for summary judgment (attached). Oral Argument set for 5/22/2012 at 02:45 PM in Courtroom 9A at the U.S. Courthouse, 500 Pearl Street, New York, NY 10007 before Judge Paul A. Engelmayer. (Signed by Judge Paul A. Engelmayer on 5/7/2012) (ft)
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| Filing 74 RESPONSE in Opposition re: 62 MOTION for Summary Judgment Of Non-Infringement.. Document filed by Jon Basso, Diet Center LLC(Delaware), Diet Center LLC(Texas), Hag LLC, Heart Attack Grill LLC. (Attachments: # 1 Appendix A Defendants' Counter-Statement of Facts, # 2 Appendix B USPTO Identification of Goods)(Kain, Robert) |
| Filing 73 DECLARATION of Jack Lebewohl in Support re: 62 MOTION for Summary Judgment Of Non-Infringement.. Document filed by Jack Lebewohl, Jeremy Lebewohl, Uncle Abies Deli Inc., Uncle Abies Deli Sandwich Trademarks LLC, Uncle Abies Deli on First, Inc.. (Attachments: # 1 Exhibit B - Redacted FedEx Invoices, # 2 Exhibit D - Redacted Vendor Statements)(Chuang, Willliam) |
| Filing 72 REPLY to Response to Motion re: 53 MOTION for Summary Judgment. By Defendants HAG. Document filed by Jon Basso, Diet Center LLC(Delaware), Diet Center LLC(Texas), Hag LLC, Heart Attack Grill LLC. (Attachments: # 1 Appendix Comparison of HAG Statement of Facts and DELI's Counter-Statement)(Kain, Robert) |
| Filing 71 ENDORSED LETTER addressed to Judge Paul A. Engelmayer from William W. Chuang dated 4/13/12 re: Counsel for the plaintiffs requests that Exhibit B and D to the Declaration of Jack Lebewohl in support of the motion be filed under seal. ENDORSEMENT: Plaintiff's request to file a redacted version of Exhibits B and D to the Declaration of Jack Lebewohl is hereby granted. The Court will file the unredacted documents under seal. Plaintiff is instructed to file the unredacted versions on ECF forthwith. (Signed by Judge Paul A. Engelmayer on 4/25/2012) (mro) |
| Filing 70 SEALED DOCUMENT placed in vault.(mps) |
| Filing 69 ENDORSED LETTER addressed to Judge Paul A. Engelmayer from Robert C. Kain, Jr. dated 4/20/2012 re: HAG requests a two (2) day extension of time to file its reply brief supporting its motion for summary judgment, D.E. 53. Plaintiff, 2nd Avenue Deli, DOES NOT OBJECT to this extension. ENDORSEMENT: HAG's reply brief is due on April 25, 2012., ( Replies due by 4/25/2012.) (Signed by Judge Paul A. Engelmayer on 4/24/2012) (lmb) |
| Filing 68 COUNTER STATEMENT TO Document filed by Jack Lebewohl, Jeremy Lebewohl, Uncle Abies Deli Inc., Uncle Abies Deli Sandwich Trademarks LLC, Uncle Abies Deli on First, Inc.. (Attachments: # 1 Exhibit A - 5/19/04 Chowhound, # 2 Exhibit B - 7/04 Morning Calm, # 3 Exhibit C - 1/13/05 Chowhound, # 4 Exhibit D - Shadjian Depo. Tr., # 5 Exhibit E - 04/05 Deli Menu, # 6 Exhibit F - 8/10/05 Menu Invoice, # 7 Exhibit G - 1/6/06 NY Times Article, # 8 Exhibit H - 12/18/07 - Bloomberg Article, # 9 Exhibit I - Triple Bypass Sandwich Trademark App., # 10 Exhibit J - Excerpts From Basso Depo. Tr.)(Chuang, Willliam) |
| Filing 67 AFFIDAVIT of Jack Lebewohl in Opposition re: 53 MOTION for Summary Judgment.. Document filed by Jack Lebewohl, Jeremy Lebewohl, Uncle Abies Deli Inc., Uncle Abies Deli Sandwich Trademarks LLC, Uncle Abies Deli on First, Inc.. (Attachments: # 1 Exhibit A - 2004-2005 Menu, # 2 Exhibit C - Vendor invoices)(Chuang, Willliam) |
| Filing 66 MEMORANDUM OF LAW in Opposition re: 53 MOTION for Summary Judgment.. Document filed by Jack Lebewohl, Jeremy Lebewohl, Uncle Abies Deli Inc., Uncle Abies Deli Sandwich Trademarks LLC, Uncle Abies Deli on First, Inc.. (Chuang, Willliam) |
| Filing 65 RULE 56.1 STATEMENT. Document filed by Jack Lebewohl, Jeremy Lebewohl, Uncle Abies Deli Inc., Uncle Abies Deli Sandwich Trademarks LLC, Uncle Abies Deli on First, Inc.. (Attachments: # 1 Exhibit A - Excerpts From Deposition Transcript of Jon Basso, # 2 Exhibit B- Chowhound Review from 2004, # 3 Exhibit C - Morning Calm Review from 2004, # 4 Exhibit D - Chowhound Review From 2005, # 5 Exhibit E - IHAS App Part 1, # 6 Exhibit E - IHAS App Part 2, # 7 Exhibit F - TBS App, # 8 Exhibit G, # 9 Exhibit H - 2005 Menu, # 10 Exhibit I - HAG Armband, # 11 Exhibit J, # 12 Exhibit K - HAG Menu, # 13 Exhibit L - HAG Menu, # 14 Exhibit M - Chowhound IHAS At New Deli, # 15 Exhibit N - NY Times Article, # 16 Exhibit O - Bloomberg Article, # 17 Exhibit P - Picture of IHAS, # 18 Exhibit Q - Picture of TBS)(Chuang, Willliam) |
| Filing 64 DECLARATION of Jack Lebewohl in Support re: 62 MOTION for Summary Judgment Of Non-Infringement.. Document filed by Jack Lebewohl, Jeremy Lebewohl, Uncle Abies Deli Inc., Uncle Abies Deli Sandwich Trademarks LLC, Uncle Abies Deli on First, Inc.. (Attachments: # 1 Exhibit A - 2ND AVE DELI Menu, # 2 Exhibit C - Invoices)(Chuang, Willliam) |
| Filing 63 MEMORANDUM OF LAW in Support re: 62 MOTION for Summary Judgment Of Non-Infringement.. Document filed by Jack Lebewohl, Jeremy Lebewohl, Uncle Abies Deli Inc., Uncle Abies Deli Sandwich Trademarks LLC, Uncle Abies Deli on First, Inc.. (Chuang, Willliam) |
| Filing 62 MOTION for Summary Judgment Of Non-Infringement. Document filed by Jack Lebewohl, Jeremy Lebewohl, Uncle Abies Deli Inc., Uncle Abies Deli Sandwich Trademarks LLC, Uncle Abies Deli on First, Inc.. Responses due by 4/30/2012(Chuang, Willliam) |
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Filing 61
ORDER: Plaintiffs are directed to properly re-file their motion for summary judgment, and properly serve such motion on defendants, forthwith. Because it is apparent that defendants were in fact prejudiced by plaintiffs' failure to properly file the motion, and that pursuant to defendants' representation to the Court, defendant first had actual access to plaintiffs' briefs on April 10, 2012, the deadline for submission of defendants' opposition briefs is hereby extended to April 30, 2012. The deadline for plaintiffs' reply briefs is extended to May 7, 2012. Plaintiffs are further directed to consult the Court's individual rules relating to filing documents under seal as set forth in this order. Plaintiffs are required to submit all requests for redactions and filing under seal to the Court in conformity with this rule. Any request by plaintiffs to file any document related to the summary judgment motion in redacted form or under seal must be made to the Court by Tuesday, April 17, 2012. Any opposition to such a motion must be submitted to the Court by Friday, April 20, 2012., ( Motions due by 4/17/2012., Responses due by 4/20/2012., Replies due by 5/7/2012.) (Signed by Judge Paul A. Engelmayer on 4/13/2012) (lmb)
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| Filing 60 SEALED DOCUMENT placed in vault.(mps) |
| ***NOTE TO ATTORNEY TO RE-FILE DOCUMENT - EVENT TYPE ERROR. Note to Attorney Robert C. Kain to RE-FILE Document 54 MOTION for Summary Judgment. Use the event type Declaration in Support of Motion found under the event list Replies, Opposition and Supporting Documents, then link to 53 Motion. (db) |
| Filing 59 NOTICE of Filing Plaintiffs' Responses to Defendants' Requests to Admit Nos. 1-114 in Support of its Motion for Summary Judgment re: 53 MOTION for Summary Judgment.. Document filed by Jon Basso, Diet Center LLC(Delaware), Diet Center LLC(Texas). (Attachments: # 1 Appendix DELI REsponses to HAG Requests to Admit)(Kain, Robert) |
| Filing 58 NOTICE of Filing Jon Basso's Declaration in Support of its Motion for Summary Judgment re: 53 MOTION for Summary Judgment.. Document filed by Jon Basso, Diet Center LLC(Delaware), Diet Center LLC(Texas). (Attachments: # 1 Affidavit Declaration of Basso)(Kain, Robert) |
| Filing 57 NOTICE of of Re-Filing Exhibits (Marked). Document filed by Jon Basso, Diet Center LLC(Delaware), Diet Center LLC(Texas). (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15)(Kain, Robert) |
| Filing 56 FILING ERROR - WRONG EVENT TYPE SELECTED FROM MENU - MOTION for Summary Judgment. Document filed by Jon Basso, Diet Center LLC(Delaware), Diet Center LLC(Texas). Responses due by 4/16/2012 (Attachments: # 1 Appendix DELI Responses to HAG requests to Admit)(Kain, Robert) Modified on 3/27/2012 (db). |
| Filing 55 FILING ERROR - WRONG EVENT TYPE SELECTED FROM MENU - MOTION for Summary Judgment. Document filed by Jon Basso, Diet Center LLC(Delaware), Diet Center LLC(Texas). Responses due by 4/16/2012 (Attachments: # 1 Exhibit Exhibit, # 2 Exhibit Exhibit, # 3 Exhibit Exhibit, # 4 Exhibit Exhibit, # 5 Exhibit Exhibit, # 6 Exhibit Exhibit, # 7 Exhibit Exhibit, # 8 Exhibit Exhibit, # 9 Exhibit Exhibit, # 10 Exhibit Exhibit, # 11 Exhibit Exhibit, # 12 Exhibit Exhibit, # 13 Exhibit Exhibit, # 14 Exhibit Exhibit, # 15 Exhibit Exhibit)(Kain, Robert) Modified on 3/27/2012 (db). |
| Filing 54 FILING ERROR - WRONG EVENT TYPE SELECTED FROM MENU - MOTION for Summary Judgment. Document filed by Jon Basso, Diet Center LLC(Delaware), Diet Center LLC(Texas). Responses due by 4/16/2012 (Attachments: # 1 Affidavit Declaration of Basso)(Kain, Robert) Modified on 3/27/2012 (db). |
| Filing 53 MOTION for Summary Judgment. Document filed by Jon Basso, Diet Center LLC(Delaware), Diet Center LLC(Texas). Responses due by 4/16/2012 (Attachments: # 1 Appendix Annex of Uncontestable Material Facts)(Kain, Robert) |
| Filing 52 ENDORSED LETTER addressed to Judge Paul A. Engelmayer from William W. Chuang dated 3/14/2012 re: Plaintiffs request an extension for submitting moving papers for summary judgment. Plaintiffs propose the following briefing schedule: Moving Papers Due: March 23, 2012. Opposition Papers Due: April 13, 2012. Response Papers Due: April 27, 2012. ENDORSEMENT: The time to depose additional witnesses is hereby closed. Moving papers for summary judgment are due March 26, 2012. Opposition papers are due April 16, 2012. Reply papers are due April 23, 2012. Upon review of the papers, the Corut will determine if oral argument will be necessary. ( Motions due by 3/26/2012, Responses due by 4/16/2012, Replies due by 4/23/2012.) (Signed by Judge Paul A. Engelmayer on 3/20/2012) (djc) |
| Filing 51 NOTICE OF CHANGE OF ADDRESS by Willliam Win-Ning Chuang on behalf of All Plaintiffs. New Address: Jakubowitz & Chuang LLP, 325 Broadway Suite 301, New York, NY, USA 10007, 212-898-3700. (Chuang, Willliam) |
| CASHIERS OFFICE REMARK on 46 Motion to Appear Pro Hac Vice in the amount of $200.00, paid on 01/03/2012, Receipt Number 1025780. (jd) |
| Minute Entry for proceedings held before Judge Paul A. Engelmayer: Interim Pretrial Conference held on 2/15/2012. Court Reporter present. (rjm) |
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Filing 50
ORDER: The Court hereby sets the following schedule aimed at moving this case forward expeditiously. The discovery deadline is hereby extended to February 15, 2012. By that date, the parties should complete all depositions which are not subject to dispute among the parties. Any remaining dispute with respect to such discovery will be discussed and resolved at the conference scheduled to be held, in person, on February 15, 2012 at 3:45 PM, as further set forth within. (Deposition due by 2/15/2012. Discovery due by 2/15/2012. Status Conference set for 2/15/2012 at 03:45 PM before Judge Paul A. Engelmayer.) (Signed by Judge Paul A. Engelmayer on 2/2/2012) (ab)
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Filing 49
ORDER: The Court is in receipt of plaintiffs' January 25, 2012 letter requesting sanctions against defendants in this case. The letter, but not its attachments, is enclosed. The Court has not received a letter from defendants in response. The parties shall appear at an in-person conference on February 15, 2012 at 3:45 p.m. in Courtroom 18C at the U.S. Courthouse, 500 Pearl Street, New York, New York 10007, to discuss the issues raised in plaintiffs letter and the ongoing discovery dispute.( Status Conference set for 2/15/2012 at 03:45 PM in Courtroom 18C, 500 Pearl Street, New York, NY 10007 before Judge Paul A. Engelmayer.) (Signed by Judge Paul A. Engelmayer on 1/31/2012) (mro)
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| Filing 48 ADMISSION TO PRACTICE PRO HAC VICE: granting 46 Motion for Darren Spielman to Appear Pro Hac Vice. The motion for admission to practice pro hac vice in the above captioned matter is granted. The admitted attorney Darren Spielman is permitted to argue or try this particular case in whole or in part as counselor advocate for defendants. This Order becomes effective upon the Court's receipt of the required $200.00 fee and confirms your appearance as counsel in this case. A notation of your admission pro hac vice in the above listed case will be made on the roll of attorneys.(Signed by Judge Paul A. Engelmayer on 1/18/2012) (lmb) |
| Filing 47 ENDORSED LETTER: addressed to Judge Paul E. Engelmayer from William W. Chuang dated 1/11/2012 re: Therefore, Plaintiffs ask far! JAG to identify all members of the Diet Center LLC. Furthermore, as Plaintiff will be deposing Mr. Basso and the corporate defendants this Friday, January 13, Counsel requests that the Court compel HAG to disclose the identities of their members before that date. ENDORSEMENT: HAG is required to identify any persons when Mr. Basso referenced as part-owners. Any investor who is other than a purely passive investor must be identified. An investor who has the power, whether or not to act on behalf of HAG, or it's affiliates including by signing an agreement, must be identified. If this information is not forthcoming during tomorrow's deposition, the parties may call the Court. In the event of non-compliance tomorrow with the Court's orders, the Court will schedule a second certification date for the deposition. (Signed by Judge Paul A. Engelmayer on 1/12/2012) (js) |
| Filing 45 ENDORSED LETTER addressed to Judge Paul A. Engelmayer from Robert Karin, Jr. dated 1/10/2012 re: Counsel for the defendants write to seek clarification of the Court's Order, D.E. 42, compelling HAG to disclose all "HAG owners and manager[s]." ENDORSEMENT: HAG is warned that the identity of a shareholder who has no role in managing HAG's business need not be disclosed. (Signed by Judge Paul A. Engelmayer on 1/12/2012) (ft) |
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Filing 44
ORDER: The Court has been informed by Magistrate Judge Francis that settlement negotiations with the parties in this matter were not successful. The summary judgment motion briefing schedule set at the January 4, 2012 conference stands. If defendants choose to move the Court for summary judgment, their opening brief must be submitted to the Court by January 27, 2012. Plaintiffs' response is due February 21, 2012, and defendants' reply is due March 6, 2012. If defendants choose not to move the Court for summary judgment, the parties shall submit to the Court a proposed joint pretrial order by February 17, 2012. The parties are instructed to consult the Court's individual rules and practices with respect to the drafting ofthe proposed joint pretrial order. ( Motions due by 1/27/2012. Proposed Pretrial Order due by 2/17/2012, Responses due by 2/21/2012, Replies due by 3/6/2012.) (Signed by Judge Paul A. Engelmayer on 1/11/2012) (djc)
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| Minute Entry for proceedings held before Magistrate Judge James C. Francis: Settlement Conference held on 1/6/2012. (mro) |
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Filing 43
AMENDED CONSENT SCHEDULING ORDER: All parties do not consent to conducting all further proceedings before a Magistrate Judge, including motions and trial. 28 U.S.C. § 636(c). The parties are free to withhold consent without adverse substantive consequences. This case is to be tried to a jury. Fact Discovery due by 1/13/2012. Deposition due by 1/13/2012. Motions due by 1/27/2012. Responses due by 2/21/2012. Replies due by 3/6/2012. Final Pretrial Order due by 2/13/2012. Counsel for the parties have conferred and their present best estimate of the length of trial is two days. (Signed by Judge Paul A. Engelmayer on 1/5/2012) (ft)
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Filing 42
ORDER: The Court has received plaintiffs' 1/3/2012 letter alleging that defendant HAG LLC has failed to provide adequate responses to plaintiffs' interrogatories (attached). In particular, plaintiffs continue to seek, pursuant to the Court's 12/20/2011 Order (Dkt. No. 39), the identities of the owners and managers of Diet Center LLC (Delaware). The parties discussed this dispute at a conference before the Court today. The Court's December 20 Order declined to enforce interrogatories calling for the identification of HAG investors, but did compel disclosure of the identities of HAG owners andmanagers. Thus, if an owner or manager is also an investor, their identity as an owner or manager cannot be hidden under the cloak of investor status; their identity with respect to their position as owner or manager must be disclosed. Accordingly, HAG is hereby directed to respond in good faith to plaintiffs' second set of interrogatories, within one week of this order, and to produce all requested identities of HAG owners and manager. (Signed by Judge Paul A. Engelmayer on 1/4/2012) (ft)
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Filing 41
ORDER granting in part and denying in part 31 Motion to Dismiss. Defendant's Motion for Voluntary Dismissal is partially granted. Count I (Federal Trademark Dilution) of Defendant's Counterclaims is hereby dismissed with prejudice. Defendants request to voluntarily dismiss Counts II, III, and IV without prejudice is denied. (Signed by Judge Paul A. Engelmayer on 1/5/2012) (ft)
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| Set/Reset Deadlines: Motions due by 1/27/2012. Responses due by 2/21/2012. Replies due by 3/6/2012. (rjm) |
| Minute Entry for proceedings held before Judge Paul A. Engelmayer: Status Conference held on 1/4/2012. The Court will issue an Order that the defendant is to identify all owners and investors to plaintiff's counsel. Defense counsel to submit an Order to the Court by 1/5/12 dismissing Count 1 of Counterclaim with prejudice. Defendant's motion for Summary Judgment due 1/27/12; Plaintiff's response due 2/21/12; Reply due 3/6/12. Plaintiff's counsel will submit a scheduling order regarding the above dates for Summary Judgment. The deposition of the principal defendant will be conducted in person by counsel, if they cannot agree upon an alternate plan. The conference the Court had scheduled for Feb. 24, 2012 is adjourned. (rjm) |
| Filing 40 ENDORSED LETTER: addressed to Judge Paul A. Engelmayer from Robert C. Kain, Jr. dated 12/22/2011 re: Counsel for defendants request to attend the pre-motion conference scheduled for January 4, 2011 at 3:00 p.m. via telephone. ENDORSEMENT: The Court hereby grants Jon Basso permission to appear by telephone at the January 4, 2012 conference. So Ordered. (Signed by Judge Paul A. Engelmayer on 1/3/2012) (js) |
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Filing 39
ORDER: The Court has received plaintiffs' December 9, 2011 letter alleging that defendant HAG LLC has failed to provide adequate responses to certain interrogatories (attached), and defendants' December 14, 2011 letter in response (attached). Specifically, plaintiffs allege that HAG has failed to provide adequate responses to plaintiffs' second set of interrogatories, which were issued after the Diet Center LLC entities were added to this case. Plaintiffs seek the identities of certain HAG personnel, copies of licensing and franchising agreements, documents referring to the Diet Center LLCs, financial records, and communications to and from HAG investors. HAG responds, inter alia, by noting that the parties previously agreed to specific limitations as to the disclosure of HAG investors. As to interrogatories that call for the identification of (or communication among) HAG investors, the Court declines to enforce those interrogatories. The Court is reluctant to override explicit agreements among parties as to the scope of discovery, and here an agreement appears to have put the identities of investors off-limits. In addition, the Court sees these investor communications as having minimal potential probative value. However, as to the other discovery disputes raised in plaintiffs' letter, the Court rules for plaintiffs. HAG is hereby directed to respond in good faith to plaintiffs' second set of interrogatories, within one week of this order, and to produce all documents responsive to plaintiffs' discovery requests. (Signed by Judge Paul A. Engelmayer on 12/20/2011) (jfe)
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Filing 38
ORDER: A pre-motion conference is hereby scheduled for January 4, 2011, at 3:00 p.m. in Courtroom 18C at the U.S. Courthouse, 500 Pearl Street, New York, New York 10007, to discuss defendants' motion for summary judgment. At the conference, the parties should also be prepared to address defendants' motion to dismiss their counterclaims without prejudice. ( Pre-Motion Conference set for 1/4/2012 at 03:00 PM in Courtroom 18C, 500 Pearl Street, New York, NY 10007 before Judge Paul A. Engelmayer.) (Signed by Judge Paul A. Engelmayer on 12/20/2011) (jfe)
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| Filing 37 DECLARATION of William W. Chuang in Opposition re: 31 MOTION to Dismiss (on a Voluntary Basis) Counterclaims.. Document filed by Jack Lebewohl, Jeremy Lebewohl, Uncle Abies Deli Inc., Uncle Abies Deli Sandwich Trademarks LLC, Uncle Abies Deli on First, Inc.. (Chuang, Willliam) |
| Filing 36 MEMORANDUM OF LAW in Opposition re: 31 MOTION to Dismiss (on a Voluntary Basis) Counterclaims.. Document filed by Jack Lebewohl, Jeremy Lebewohl, Uncle Abies Deli Inc., Uncle Abies Deli Sandwich Trademarks LLC, Uncle Abies Deli on First, Inc.. (Chuang, Willliam) |
| ***DELETED DOCUMENT. Deleted document number 36 Order. The document was incorrectly filed in this case. (jar) |
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Filing 35
ORDER: By Friday, December 16, 2011, plaintiffs shall submit any opposition to the motion to voluntarily dismiss all counterclaims without prejudice pursuant to Fed. R. Civ. P. 41(a)(2). If plaintiffs do not submit an opposition by that date, the Court will consider that motion to be unopposed. As to defendants' application for summary judgment on plaintiffs' claim for declaratory relief, by Wednesday, December 14, 2011, plaintiffs shall submit to the Court a letter stating whether they oppose that motion, and, if so, stating the basis of their opposition, and specifically responding to the arguments made by defendants. If plaintiffs do not oppose defendants' request to move for summary judgment, plaintiffs shall submit a status letter by the same date, proposing a deadline by which the parties shall submit a stipulation of dismissal as to plaintiffs' claims. (Signed by Judge Paul A. Engelmayer on 12/9/2011) (jfe) (Main Document 35 replaced on 12/14/2011) (jar).
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| Set Deadlines/Hearing as to 31 MOTION to Dismiss (on a Voluntary Basis) Counterclaims. : Responses due by 12/16/2011 (Signed by Judge Paul A. Engelmayer on 12/9/2011) (jfe) |
| Set/Reset Deadlines: Motions due by 12/14/2011. (jfe) |
| Filing 34 RESPONSE to Discovery Request from 2nd Ave Deli to HAG's Request to Admit.Document filed by Jon Basso, Diet Center LLC(Delaware), Diet Center LLC(Texas), Hag LLC, Heart Attack Grill LLC.(Kain, Robert) |
| Filing 33 NOTICE of of Filing 2nd Ave Deli's Reply to HAG's Request to Admit in Support of HAG's Motion for Voluntary Dismissal re: 32 Notice (Other), Notice (Other), 31 MOTION to Dismiss (on a Voluntary Basis) Counterclaims.. Document filed by Jon Basso, Diet Center LLC(Delaware), Diet Center LLC(Texas), Hag LLC, Heart Attack Grill LLC. (Kain, Robert) |
| Filing 32 NOTICE of of Filing Jon Basso Declaration in Support of Defendants' Motion to Voluntarily Dismiss Counterclaims re: 31 MOTION to Dismiss (on a Voluntary Basis) Counterclaims.. Document filed by Jon Basso, Diet Center LLC(Delaware), Diet Center LLC(Texas), Hag LLC, Heart Attack Grill LLC. (Kain, Robert) |
| Filing 31 MOTION to Dismiss (on a Voluntary Basis) Counterclaims. Document filed by Jon Basso, Diet Center LLC(Delaware), Diet Center LLC(Texas), Hag LLC, Heart Attack Grill LLC. Responses due by 12/23/2011(Kain, Robert) |
| ***NOTE TO ATTORNEY TO RE-FILE DOCUMENT - DEFICIENT DOCKET ENTRY ERROR. Note to Attorney Robert C. Kain to RE-FILE Document. ERROR(S): Supporting Documents are filed separately, each receiving their own document #. (db) |
| Filing 30 NOTICE of of Filing 2nd Ave Deli's Reply to HAG's Request to Admit. Document filed by Jon Basso, Diet Center LLC(Delaware), Diet Center LLC(Texas), Hag LLC, Heart Attack Grill LLC. (Attachments: # 1 Exhibit 2nd Ave Deli's Reply to HAG's Requests to Admit)(Kain, Robert) |
| Filing 29 FILING ERROR - DEFICIENT DOCKET ENTRY - MOTION to Dismiss (Counterclaims Under Rule 41(a)(2)(Voluntary Dismissal). Document filed by Jon Basso, Diet Center LLC(Delaware), Diet Center LLC(Texas), Hag LLC, Heart Attack Grill LLC. Responses due by 12/23/2011 (Attachments: # 1 Affidavit by Jon Basso (Declaration))(Kain, Robert) Modified on 12/7/2011 (db). |
| Filing 28 FILING ERROR - DEFICIENT DOCKET ENTRY - MOTION to Dismiss (Voluntary) Motion to Dismiss Counterclaims. Document filed by Jon Basso, Diet Center LLC(Delaware), Diet Center LLC(Texas), Hag LLC, Heart Attack Grill LLC. Responses due by 12/23/2011 (Attachments: # 1 Affidavit Declaration by Jon Basso)(Kain, Robert) Modified on 12/6/2011 (db). |
| ***NOTE TO ATTORNEY TO RE-FILE DOCUMENT - DEFICIENT DOCKET ENTRY ERROR. Note to Attorney Robert C. Kain to RE-FILE Document 28 MOTION to Dismiss (Voluntary) Motion to Dismiss Counterclaims. MOTION to Dismiss (Voluntary) Motion to Dismiss Counterclaims. ERROR(S): Supporting Documents are filed separately, each receiving their own document #. (db) |
| Filing 27 ANSWER to 25 Amended Complaint, with JURY DEMAND., COUNTERCLAIM against All Plaintiffs. Document filed by Hag LLC, Diet Center LLC(Delaware), Jon Basso, Diet Center LLC(Texas), Heart Attack Grill LLC. (Attachments: # 1 Exhibit A)(Kain, Robert) |
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Filing 26
CONSENT SCHEDULING ORDER: All parties do not consent to conducting all further proceedings before a Magistrate Judge. This case is to be tried to a jury and is estimated to last 2 days. Joinder of Parties due by 11/4/2011. Fact Discovery due by 1/13/2012. Deposition due by 1/13/2012. Motion for summary judgment due by 1/27/2012. Final Pretrial Order due by 2/13/2012. Case Management Conference set for 2/24/2012 at 10:30 AM before Judge Paul A. Engelmayer. (Signed by Judge Paul A. Engelmayer on 11/2/2011) (ab)
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| Filing 25 SECOND AMENDED COMPLAINT amending 12 Amended Complaint, against Jon Basso, Hag LLC, Heart Attack Grill LLC, Diet Center LLC(Texas), Diet Center LLC(Delaware).Document filed by Jeremy Lebewohl, Jack Lebewohl, Uncle Abies Deli on First, Inc., Uncle Abies Deli Inc., Uncle Abies Deli Sandwich Trademarks LLC. Related document: 12 Amended Complaint, filed by Uncle Abies Deli Sandwich Trademarks LLC, Jeremy Lebewohl, Jack Lebewohl, Uncle Abies Deli on First, Inc., Uncle Abies Deli Inc.(mro) (ama). |
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Filing 24
ORDER REFERRING CASE TO MAGISTRATE JUDGE. Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for Settlement. Referred to Magistrate Judge James C. Francis. (Signed by Judge Paul A. Engelmayer on 10/26/2011) (cd)
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| Minute Entry: for proceedings held before Judge Paul A. Engelmayer: Status Conference held on 10/25/2011. Discovery to close 1/13/12 no further extensions - counsel to submit rescheduling order by 10/28/11. Plaintiff's counsel to submit revised pleadings by 10/28/11. Defendant's counsel to submit revised pleadings by 11/4/11 (djc) |
| Filing 23 ENDORSED LETTER addressed to Judge Paul A Engelmayer from Robert Kain dated 10/13/2011 re: Request to attend the 10/25/2011 conference by telephone. ENDORSEMENT: Counsel for the Defendants may appear at the 10/25/2011 conference by telephone. (Signed by Judge Victor Marrero for Judge Paul A. Engelmeyer on 10/18/2011) (cd) |
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Filing 22
ORDER. As counsel may be aware, this case has been reassigned to my docket. All current deadlines and schedules ordered by Judge Kaplan remain in effect, including the dates for the completion of discovery. In addition, a conference has been scheduled for Tuesday, October 25, 2011 at 4:00 p.m., to be held in Courtroom 18C at the U.S. Courthouse, 500 Pearl Street, New York, New York 10007. The parties shall be prepared to discuss the background and current posture of the case, as well as any issues that, in either party's view, need to be resolved by the Court prior to trial. In addition, Defendant's counsel shall send by fax a copy of the August 1, 2011 letter, originally sent by Mr. Kain (dkt no. 18), by the close of business on October 12, 2011. The Court's fax number is (212) 805-7992, and as further set forth. (Conference set for 10/25/2011 at 04:00 PM in Courtroom 18C, U.S. Courthouse, 500 Pearl Street, New York, NY 10007 before Judge Paul A. Engelmayer.) (Signed by Judge Paul A. Engelmayer on 10/11/11) (rjm)
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| Filing 21 NOTICE of Non-Availability. Document filed by Jon Basso, Hag LLC. (Kain, Robert) |
| Filing 20 NOTICE OF CASE REASSIGNMENT to Judge Paul A. Engelmayer. Judge Lewis A. Kaplan is no longer assigned to the case. (pgu) |
| Filing 19 Letter addressed to Judge Lewis A. Kaplan from William W. Chuang dated 9/9/2011 re: My firm represents the Plaintiffs in this case. I write in response to the letter from Mr. Kain dated August 1, 2011. We request that the Court deny Defendants' request for relief. Document filed by Jack Lebewohl, Jeremy Lebewohl, Uncle Abies Deli Inc., Uncle Abies Deli Sandwich Trademarks LLC, Uncle Abies Deli on First, Inc.(lmb) |
| Filing 18 Letter addressed to Judge Lewis A. Kaplan from Robert C. Kain, Jr. dated 8/1/2011 re: We represent the Defendants, Heart Attack Grill, LLC, HAG, LLC and Jon Basso (collectively "Heart Attack Grill"), in this case and request a pre-motion conference on this discovery dispute. Heart Attack Grill requests relief from the Court and an order waiving Local Rule 33.3 for interrogatories Nos. 3, 4, 6 and 7. Counsel for the Plaintiffs was contacted prior to this correspondence and disagrees with the requested relief. Heart Attack Grill requests that the Court enter the pro hac vice order permitting the undersigned to participate in this litigation. Document filed by Jon Basso, Hag LLC, Heart Attack Grill LLC.(lmb) Modified on 9/19/2011 (lmb). |
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Filing 17
MEMORANDUM AND ORDER: For the reasons set forth above, the defendants' application for an order compelling the plaintiffs' to respond to Interrogatories nos. 3, 4, 6, and 7 is denied. (Signed by Magistrate Judge James C. Francis on 9/14/2011) Copies Mailed By Chambers. (mro)
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| Filing 16 MEMO ENDORSEMENT on 4 Motion for Robert C. Kain Jr. to Appear Pro Hac Vice as counsel for Jon Basso, Hag LLC and Heart Attack Grill LLC.: Granted. (Signed by Judge Lewis A. Kaplan on 9/8/2011) (ab) |
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Filing 15
ORDER OF REFERENCE TO A MAGISTRATE JUDGE. Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for Specific Non-Dispositive Motion/Dispute: Response to Interrogatories. Referred to Magistrate Judge James C. Francis. (Signed by Judge Lewis A. Kaplan on 9/6/2011) (mro)
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| Filing 14 ANSWER to 13 Counterclaim. Document filed by Jack Lebewohl, Jeremy Lebewohl, Uncle Abies Deli Inc., Uncle Abies Deli Sandwich Trademarks LLC, Uncle Abies Deli on First, Inc..(Chuang, Willliam) |
| Filing 13 ANSWER to 12 Amended Complaint, with JURY DEMAND., COUNTERCLAIM against Jack Lebewohl, Jeremy Lebewohl, Uncle Abies Deli Inc., Uncle Abies Deli Sandwich Trademarks LLC, Uncle Abies Deli on First, Inc.. Document filed by Hag LLC, Jon Basso, Heart Attack Grill LLC. (Attachments: # 1 Exhibit A to Counterclaim)(Kain, Robert) |
| Filing 12 AMENDED COMPLAINT amending 1 Complaint, against Jon Basso, Hag LLC, Heart Attack Grill LLC.Document filed by Uncle Abies Deli on First, Inc., Uncle Abies Deli Inc., Uncle Abies Deli Sandwich Trademarks LLC, Jeremy Lebewohl, Jack Lebewohl. Related document: 1 Complaint, filed by Uncle Abies Deli Sandwich Trademarks LLC, Jeremy Lebewohl, Uncle Abies Deli on First, Inc., Uncle Abies Deli Inc.(mro) |
| Filing 11 ANSWER to 6 Counterclaim. Document filed by Jeremy Lebewohl, Uncle Abies Deli Inc., Uncle Abies Deli Sandwich Trademarks LLC, Uncle Abies Deli on First, Inc..(Chuang, Willliam) |
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Filing 10
STIPULATION AND AGREED UPON PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION...regarding procedures to be followed that shall govern the handling of confidential material...Notwithstanding anything to the contrary herein. 1. Any papers filed under seal in this action shall be made part of the public record on or after 7/26/16 unless the Court otherwise orders. 2. Any person may apply to the Court for access to any papers filed under seal pursuant to this order. Should such an application be made, the person or persons who designated the sealed material as Confidential shall have the burden of establishing good cause for the continuation of the sealing order unless the Court previously made an individualized determination of the existence of good cause for sealing. (Signed by Judge Lewis A. Kaplan on 7/26/11) (cd)
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Filing 9
CONSENT SCHEDULING ORDER: Joinder of Parties due by 7/31/2011. Amended Pleadings due by 8/31/2011. Rule 26(a)(2) disclosures: expert witnesses due by 10/10/2011; rebuttal expert witnesses due by 11/1/2011. All Discovery due by 11/22/2011. Depositions of experts due by 11/22/2011. The parties shall participate in mediation no later than 12/15/2011. Joint Pretrial Order due by 12/23/2011. (Signed by Judge Paul A. Crotty (part 1) on 7/21/2011) (jar)
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| ***NOTE TO ATTORNEY TO RE-FILE DOCUMENT - NON-ECF DOCUMENT ERROR. Note to Attorney Robert C. Kain to E-MAIL Document No. 8 Stipulation and Protective Order to judgments@nysd.uscourts.gov. This document is not filed via ECF. (ldi) |
| Filing 8 FILING ERROR - ELECTRONIC FILING FOR NON-ECF DOCUMENT - CONSENT MOTION for Protective Order Regarding Confidential Information, Stipulated and Agreed to by all Parties. Document filed by Jon Basso, Heart Attack Grill LLC.(Kain, Robert) Modified on 7/15/2011 (ldi). |
| Filing 7 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. Identifying Heart Attack Grill, LLC and HAG LLC as Corporate Parent. Document filed by Jon Basso, Hag LLC, Heart Attack Grill LLC.(Kain, Robert) |
| Filing 6 ANSWER to 1 Complaint, with JURY DEMAND., COUNTERCLAIM against Jeremy Lebewohl, Uncle Abies Deli Inc., Uncle Abies Deli Sandwich Trademarks LLC, Uncle Abies Deli on First, Inc.. Document filed by Hag LLC, Heart Attack Grill LLC, Jon Basso. (Attachments: # 1 Exhibit A)(Kain, Robert) |
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Filing 5
ORDER RE SCHEDULING AND INITIAL PRETRIAL CONFERENCE: Initial Conference set for 7/25/2011 at 02:00 PM in Courtroom 12D, 500 Pearl Street, New York, NY 10007 before Judge Lewis A. Kaplan. (Signed by Judge Lewis A. Kaplan on 6/23/2011) (jfe)
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| CASHIERS OFFICE REMARK on 4 Motion to Appear Pro Hac Vice in the amount of $25.00, paid on 06/20/2011, Receipt Number 9671. (jd) |
| Filing 4 MOTION for Robert C. Kain Jr. to Appear Pro Hac Vice. Document filed by Jon Basso, Hag LLC, Heart Attack Grill LLC.(pgu) |
| Filing 3 NOTICE OF APPEARANCE by Michael Joseph Quarequio on behalf of Jon Basso, Hag LLC, Heart Attack Grill LLC (Quarequio, Michael) |
| Filing 2 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by Jeremy Lebewohl, Uncle Abies Deli Inc., Uncle Abies Deli Sandwich Trademarks LLC, Uncle Abies Deli on First, Inc..(rdz) |
| Filing 1 COMPLAINT against Jon Basso, Hag LLC, Heart Attack Grill LLC. (Filing Fee $ 350.00, Receipt Number 465401006315)Document filed by Uncle Abies Deli on First, Inc., Uncle Abies Deli Sandwich Trademarks LLC, Jeremy Lebewohl, Uncle Abies Deli Inc..(rdz) |
| SUMMONS ISSUED as to Jon Basso, Hag LLC, Heart Attack Grill LLC. (rdz) |
| Case Designated ECF. (rdz) |
| Magistrate Judge James C. Francis IV is so designated. (rdz) |
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