ULTRA ATHLETE LLC v. ARAUJO et al
| ULTRA ATHLETE, LLC |
| SUPERCARE MEDICAL AND SPORTING ARTICLES CO., LTD, JB SPORTS, LLC, Jalmar Araujo and DONGGUAN SUPERCARE SPORTING ARTICLES CO. |
| 1:2020cv10194 |
| February 3, 2020 |
| U.S. District Court for the District of Massachusetts |
| Indira Talwani |
| Patent |
| 35 U.S.C. § 271 |
| Plaintiff |
Docket Report
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| Filing 115 ELECTRONIC NOTICE of Case Assignment. Judge Indira Talwani assigned to case. If the trial Judge issues an Order of Reference of any matter in this case to a Magistrate Judge, the matter will be transmitted to Magistrate Judge Judith G. Dein. (Danieli, Chris) |
| Filing 114 Case transferred in from District of Indiana Southern; Case Number 4:17-cv-00237. |
| Filing 113 Transfer Letter to Clerk of the District of Massachusetts. Case transferred electronically to District of Massachusetts, on 1/31/2020. (TMC) |
| Filing 112 CLOSED TRANSFER to District of Massachusetts - Accordingly, Defendants Motion to Transfer (Filing No. #82 ) is GRANTED. The Clerk is directed to transfer this cause forthwith. Signed by Judge Richard L. Young on 1/31/2020.(TMC) |
| Filing 111 NOTICE of Appearance by Melanie Ann Eich on behalf of Defendants JALMAR ARAUJO, JB SPORTS, LLC. (Eich, Melanie) |
| Filing 110 Entry from Settlement Conference - The parties, by their personal representatives, and by counsel, appeared for a settlement conference on November 6, 2019, with the magistrate judge. The conference was held and concluded without settlement. Signed by Magistrate Judge Debra McVicker Lynch. (JLS) |
| Filing 109 MARGINAL ENTRY - #108 MOTION to Attend Settlement Conference Telephonically is DENIED. The courtroom deputy provided multiple dates to counsel for the settlement conference and specifically asked that counsel respond with the dates "all parties will be available to appear in person." Defense counsel responded that "November 7 will work for Defendants." In addition, the court finds the conferences more productive when all participate in person. Signed by Magistrate Judge Debra McVicker Lynch on 8/28/2019.(TMC) |
| Filing 108 MOTION to Attend Settlement Conference Telephonically, filed by Defendants JALMAR ARAUJO, JB SPORTS, LLC. (Attachments: #1 Exhibit 1 - Declaration of Jalmar Araujo, #2 Text of Proposed Order)(Overhauser, Paul) |
Filing 107
ORDER granting #103 Motion to Withdraw Attorney Appearance. Attorney April M. Jay withdrawn. Signed by Magistrate Judge Debra McVicker Lynch on 8/9/2019. (TMC)
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| Filing 106 Submission of Proposed Order , re #103 MOTION to Withdraw Attorney Appearance April M. Jay, filed by Defendants JALMAR ARAUJO, JB SPORTS, LLC. (Jay, April) |
| Filing 105 Entry from Discovery Conference - The parties, by counsel, appeared for a discovery conference on July 29, 2019, with the magistrate judge. The court heard arguments of counsel and provided some guidance. Signed by Magistrate Judge Debra McVicker Lynch. (AKW) |
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Filing 104
SCHEDULING ORDER: Settlement Conference set for 11/7/2019 at 9:30 AM (Eastern Time) in room #277, United States Courthouse, 46 E. Ohio Street, Indianapolis, Indiana before Magistrate Judge Debra McVicker Lynch. See order for related deadlines. Signed by Magistrate Judge Debra McVicker Lynch on 8/2/2019.(TMC)
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| Filing 103 MOTION to Withdraw Attorney Appearance April M. Jay, filed by Defendants JALMAR ARAUJO, JB SPORTS, LLC. (Jay, April) |
| Filing 102 Submission OF THE PARTIES PER SCHEDULING ORDER (DKT. 100), filed by Plaintiff ULTRA ATHLETE LLC. (Attachments: #1 Exhibit 1 - PLAINTIFF ULTRA ATHLETE, LLCS SECOND SUPPLEMENTED RESPONSE TO DEFENDANTS FIRST REQUESTS FOR PRODUCTION OF DOCUMENTS AND THINGS, #2 Exhibit 2 - PLAINTIFF ULTRA ATHLETE, LLCS FIRST SUPPLEMENTED RESPONSE TO DEFENDANTS FIRST REQUESTS FOR PRODUCTION OF DOCUMENTS AND THINGS)(Duncan, Kevin) |
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Filing 100
SCHEDULING ORDER: Telephonic Discovery Conference set for 7/29/2019 at 9:00 AM (Eastern Time) before Magistrate Judge Debra McVicker Lynch. The court will contact counsel by separate email through the court's electronic filing system with the call-in information to be used to participate in the conference. See Order for additional information. Signed by Magistrate Judge Debra McVicker Lynch on 7/24/2019.(LBT)
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| Filing 99 Surreply re #80 MOTION for Attorney Fees and Reply in Support of Motion for Attorney Fees (Dkt. 90), filed by Defendants JALMAR ARAUJO, JB SPORTS, LLC. (Attachments: #1 Exhibit 2 - Redacted Email Chain)(Jay, April) |
| Filing 98 MARGINAL ENTRY - #93 Motion to Strike is DENIED. The motion to file surreply is GRANTED. Defendant is given leave to file a surreply by June 27, 2019, that addresses only the contentions made in connection with exhibits 1-6 of the reply brief. Signed by Magistrate Judge Debra McVicker Lynch on 6/13/2019. (LBT) |
| Filing 97 REPLY in Support of Motion re #93 MOTION to Strike #90 Reply in Support of Motion New Argument and Allegations, or in the alternative, Leave to File a Sur-Reply , filed by Defendants JALMAR ARAUJO, JB SPORTS, LLC. (Jay, April) |
| Filing 96 RESPONSE in Opposition re #93 MOTION to Strike #90 Reply in Support of Motion New Argument and Allegations, or in the alternative, Leave to File a Sur-Reply , filed by Plaintiff ULTRA ATHLETE LLC. (Duncan, Kevin) |
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Filing 95
ORDER on Motion to Seal - #92 Motion to Maintain Document Under Seal is DENIED. At the end of the period addressed in Local Rule 5-11(g), the Clerk is directed to unseal Dkt #91 . Signed by Magistrate Judge Debra McVicker Lynch on 6/3/2019. (LBT)
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| Filing 94 STATUS REPORT On Service of Process on Manufacturer by ULTRA ATHLETE LLC. (Duncan, Kevin) |
| Filing 93 MOTION to Strike #90 Reply in Support of Motion New Argument and Allegations, or in the alternative, Leave to File a Sur-Reply, filed by Defendants JALMAR ARAUJO, JB SPORTS, LLC. (Attachments: #1 Exhibit 1 - May 2019 correspondence to K. Duncan)(Jay, April) |
| Filing 92 MOTION to Maintain Document Under Seal #91 SEALED Document (Case Participants - doc) , filed by Plaintiff ULTRA ATHLETE LLC. (Attachments: #1 Text of Proposed Order Granting Motion to Seal Dkt. 91)(Duncan, Kevin) |
| Filing 91 SEALED Exhibit 6, re #90 Reply in Support of Motion, filed by Plaintiff ULTRA ATHLETE LLC. (Duncan, Kevin) |
| Filing 90 REPLY in Support of Motion re #80 MOTION for Attorney Fees , filed by Plaintiff ULTRA ATHLETE LLC. (Attachments: #1 Exhibit 1 - Email from KTD to PO regarding AEO designations, #2 Exhibit 2 - Letter to PO regarding AEO designations, #3 Exhibit 3 - Letter from PO regarding meet-and-confer designations, #4 Exhibit 4 - Letter to PO regarding AEO designations, #5 Exhibit 5 - Second Amended Complaint Exhibit H)(Duncan, Kevin) |
| Filing 89 RESPONSE in Opposition re #80 MOTION for Attorney Fees and Brief in Support of Motion for Attorney Fees (Dkt. 81), filed by Defendants JALMAR ARAUJO, JB SPORTS, LLC. (Attachments: #1 Exhibit 1 - Defendant Araujos Supplemental Responses)(Jay, April) |
| Filing 88 REPLY in Support of Motion re #82 MOTION to Transfer Case , filed by Defendants JALMAR ARAUJO, JB SPORTS, LLC. (Overhauser, Paul) |
| Filing 87 RESPONSE in Opposition re #82 MOTION to Transfer Case , filed by Plaintiff ULTRA ATHLETE LLC. (Duncan, Kevin) |
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Filing 86
ORDER on Motion to Strike (Dkt. #84 ) - The court DENIES the defendants' motion (Dkt. #84 ) to strike the plaintiff's motion for sanctions and attorneys' fees. Local Rule 7.1(g) does not dictate what the court must do if a motion for attorneys' fees is filed without the movant having first conferred with opposing counsel to resolve the matter. Further, in this case, it would be futile to require the parties to confer about sanctions in the form of fees. Despite efforts to do so, the parties were not able to resolve without judicial intervention the discovery and other issues that are the subject of the plaintiff's motion for sanctions. If the defendants wish to make a substantive response to the plaintiff's motion for sanctions and attorneys' fees, that response must be filed by May 8, 2019. Any reply brief must be filed by May 15, 2019. The defendants' response does not need to address the plaintiff's request for fees based on the defendants' refusal to return the product samples, at Section C of the plaintiff's memorandum (Dkt. #81 , pp. 9-10). The court already ruled on the plaintiff's request for fees (denying the request) when it ruled on the motion to compel return of the samples. See Dkt. #58 at p. 4. The court finds no grounds to revisit that ruling. The defendants' motion to strike (Dkt. #84 ) is DENIED. Signed by Magistrate Judge Debra McVicker Lynch on 4/30/2019. (MAT)
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Filing 85
Entry and Order from Status Conference - The parties, by counsel, appeared for a status conference on April 18, 2019, with the magistrate judge. By May 18, 2019, plaintiff shall file a status report on service of process on the manufacturer. Signed by Magistrate Judge Debra McVicker Lynch. (JLS)
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| Filing 84 MOTION to Strike #81 Brief/Memorandum in Support of Plaintiff's Motion for Attorneys' Fees #80 , filed by Defendants JALMAR ARAUJO, JB SPORTS, LLC. (Attachments: #1 Text of Proposed Order)(Overhauser, Paul) |
| Filing 82 MOTION to Transfer Case , filed by Defendants JALMAR ARAUJO, JB SPORTS, LLC. (Attachments: #1 Exhibit 1 - Massachusetts Complaint and Duncan Email, #2 Exhibit 2 - P. Overhauser Declaration, #3 Exhibit 3 - J. Araujo Declaration, #4 Exhibit 4 - R. Peters Deposition Transcript, #5 Exhibit 5 - Spreadsheet from US Courts Statistics Table)(Overhauser, Paul) |
| Filing 81 BRIEF/MEMORANDUM in Support re #80 MOTION for Attorney Fees , filed by Plaintiff ULTRA ATHLETE LLC. (Attachments: #1 Affidavit Exhibit A - Affidavit of Kevin T. Duncan in Support of Plaintiff's Motion for Attorney Fees, #2 Exhibit 1 - Attorney Time Summary in Support of Affidavit of Kevin T. Duncan)(Duncan, Kevin) |
| Filing 80 MOTION for Attorney Fees , filed by Plaintiff ULTRA ATHLETE LLC. (Attachments: #1 Text of Proposed Order Granting Plaintiff's Motion for Attorney Fees)(Duncan, Kevin) |
| Filing 79 NOTICE of Answer in lawsuit sent to Director of U.S. Patent and Trademark Office. (Attachments: #1 Answer) (LBT) |
| Filing 78 Defendants' ANSWER to #76 Amended Complaint (Second Amended), filed by JALMAR ARAUJO, JB SPORTS, LLC.(Jay, April) |
| Filing 77 NOTICE of Amended Complaint in lawsuit sent to Director of U.S. Patent and Trademark Office. (Attachments: #1 Amended Complaint with exhibits) (LBT) |
| Filing 76 AMENDED COMPLAINT Second Amended Complaint against All Defendants, filed by ULTRA ATHLETE LLC. (Attachments: #1 Exhibit A - US 6,749,578, #2 Exhibit B - US 6,858,017, #3 Exhibit C - US D550,370, #4 Exhibit D - JB Sports Massachusetts State Filings for 2010, #5 Exhibit E - Jalmar Araujo Flexibrace eBay Seller's Page, #6 Exhibit F - Flexibrace USPTO Trademark Registration Page, #7 Exhibit G - Declaration of Jalmar Araujo, #8 Exhibit H - Search Results from Import Genius for JB Sports, #9 Exhibit I - Search Results from Enigma Public for JB Sports, #10 Exhibit J - Supercare Ankle Brace Product Listings)(Duncan, Kevin) |
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Filing 75
ORDER granting #72 Motion for Status Conference - Telephonic Status Conference set for 4/18/2019 at 10:30 AM (Eastern Time), before Magistrate Judge Debra McVicker Lynch. The court will contact counsel by separate email through the court's electronic filing system with the call-in information to be used to participate in the conference. Signed by Magistrate Judge Debra McVicker Lynch on 3/21/2019. (MAT)
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Filing 74
ORDER Granting in Part and Denying in Part Motion for Leave to Amend and Denying Motions to Seal - The motions to seal (Dkts. #61 , #62 ) are DENIED. The Clerk is directed to unseal the filings at Dkts. #60 , #61 , and #62 , fourteen days from the date of this order, as provided by Local Rule 5-11. The motion for leave to amend (Dkt. #60 ) is GRANTED IN PART AND DENIED IN PART as set forth above. See Order for details. Signed by Magistrate Judge Debra McVicker Lynch on 3/18/2019. (MAT)
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| Filing 73 NOTICE of Answer in lawsuit sent to Director of U.S. Patent and Trademark Office. (Attachments: #1 Answer) (LBT) |
| Filing 72 MOTION for Status Conference, filed by Plaintiff ULTRA ATHLETE LLC. (Attachments: #1 Text of Proposed Order Granting Plaintiff's Motion for Status Conference)(Duncan, Kevin) |
| Filing 71 ANSWER to #25 Amended Complaint along with Affirmative Defenses, filed by JALMAR ARAUJO, JB SPORTS, LLC.(Overhauser, Paul) |
| Filing 70 ENTRY ON DEFENDANTS' MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION, FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED, IMPROPER VENUE OR, IN THE ALTERNATIVE, MOTION FOR MORE DEFINITE STATEMENT - #33 Motion to Dismiss is GRANTED in part and DENIED in part. It is GRANTED with respect to Plaintiff's patent infringement claims (Counts I, II, VI, and VII) and Lanham Act unfair competition claim (Count IV) and DENIED with respect to Plaintiff's Lanham Act trade dress and state law unfair competition claims (Counts III and V). Defendants' alternative motion for more definite statement is DENIED. See Entry for details. Signed by Judge Richard L. Young on 3/1/2019. (LBT) |
| Filing 69 REPLY IN SUPPORT re #66 Brief/Memorandum in Support re #61 MOTION to Maintain Document Under Seal #60 SEALED MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT, #62 SEALED MOTION to Seal Plaintiff's Motion to Maintain Documents Under Seal, filed by Defendants JALMAR ARAUJO, JB SPORTS, LLC. (Jay, April) Modified on 8/30/2018 (LBT). |
| Filing 68 SEALED REPLY in support of Motion re #60 SEALED MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT , filed by Plaintiff ULTRA ATHLETE LLC. (Duncan, Kevin) |
| Filing 67 SEALED RESPONSE re #61 MOTION to Maintain Document Under Seal #60 SEALED MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT , #62 SEALED MOTION to Seal Plaintiff's Motion to Maintain Documents Under Seal , filed by Plaintiff ULTRA ATHLETE LLC. (Attachments: #1 Exhibit 1- Import Genius Records, #2 Exhibit 2- Enigma Public Records, #3 Exhibit 3- Ankle Brace Product Listings, #4 Exhibit 4- Excerpt of Declaration of Rickie E Peters)(Duncan, Kevin) |
| Filing 66 BRIEF/MEMORANDUM in Support re #61 MOTION to Maintain Document Under Seal #60 SEALED MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT , #62 SEALED MOTION to Seal Plaintiff's Motion to Maintain Documents Under Seal , filed by Defendants JALMAR ARAUJO, JB SPORTS, LLC. (Attachments: #1 Exhibit 1 - Declaration of Jalmar Araujo, #2 Exhibit 2 - Redacted Documents, #3 Text of Proposed Order)(Jay, April) |
| Filing 65 RESPONSE in Opposition re #60 SEALED MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT , filed by Defendants JALMAR ARAUJO, JB SPORTS, LLC. (Jay, April) |
| Filing 64 RESPONSE in Opposition re #62 SEALED MOTION to Seal Plaintiff's Motion to Maintain Documents Under Seal at Dkt. 62-1 Proposed Order, filed by Defendants JALMAR ARAUJO, JB SPORTS, LLC. (Attachments: #1 Exhibit 1 - Replacement Proposed Order, Redacted)(Jay, April) |
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Filing 63
Entry from Status Conference - The parties, by counsel, appeared for a status conference on July 23, 2018, with the magistrate judge. The conference was held and concluded without further order. Signed by Magistrate Judge Debra McVicker Lynch. (AKW)
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| Filing 62 **UNSEALED PER ORDER AT DKT. 74** SEALED MOTION to Seal #61 Plaintiff's Motion to Maintain Documents Under Seal, filed by Plaintiff ULTRA ATHLETE LLC. (Attachments: #1 Text of Proposed Order Granting Plaintiff's Motion to Seal Dkt. No. 61)(Duncan, Kevin) Modified on 8/6/2018 to create link to related motion (LBT). Modified on 4/2/2019 (MAT). |
| Filing 61 **UNSEALED PER ORDER AT DKT. 74** MOTION to Maintain Document Under Seal #60 SEALED MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT , filed by Plaintiff ULTRA ATHLETE LLC. (Attachments: #1 Text of Proposed Order Granting Plaintiff's Motion to Maintain Documents Under Seal)(Duncan, Kevin) Modified on 8/3/2018 to restrict filing (MAT). Modified on 4/2/2019 (MAT). |
| Filing 60 **UNSEALED PER ORDER AT DKT. 74** SEALED MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT, filed by Plaintiff ULTRA ATHLETE LLC. (Attachments: #1 Text of Proposed Order Granting Plaintiff's Motion for Leave to File Second Amended Complaint, #2 Exhibit 1 - Second Amended Complaint, #3 Exhibit A - U.S. 6,749,578, #4 Exhibit B - U.S. 6,858,017, #5 Exhibit C - U.S. D550,370, #6 Exhibit D - JB Sports Massachusetts State Filings for 2010, #7 Exhibit E - Jalmar Araujo - Flexibrace eBay Seller's Page, #8 Exhibit F - Flexibrace - USPTO Trademark Registration Page, #9 Exhibit G - Declaration of Jalmar Araujo, #10 Exhibit H - Invoice for Flexibrace HSG Products from Defendant Manufacturer to JB Sports, #11 Supplement Memorandum in Support of Plaintiff's Motion for Leave to File Second Amended Complaint)(Duncan, Kevin) Modified on 4/2/2019 (MAT). |
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Filing 58
ORDER on Motion to Compel Return of Property - #49 Motion to Compel Return of Property is GRANTED, except that it does not award attorneys' fees. The plaintiff's motion does not cite any legal basis on which the court could make an award of fees, and there is no obvious fit with Rule 37. The court ORDERS the parties to work cooperatively to make arrangements for the defendants' counsel to return the product samples within five business days at defendants' counsel's expense and in a manner of delivery chosen by the plaintiff that is reasonable (such as overnight delivery, pick-up by the plaintiff with mileage paid by defendants' counsel, etc.). Signed by Magistrate Judge Debra McVicker Lynch on 7/11/2018. (LBT)
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| Filing 57 REPLY in Support of Motion re #49 MOTION to Compel Return of Property , filed by Plaintiff ULTRA ATHLETE LLC. (Duncan, Kevin) |
| Filing 56 RESPONSE in Opposition re #49 MOTION to Compel Return of Property , filed by Defendants JALMAR ARAUJO, JB SPORTS, LLC. (Attachments: #1 Exhibit 1 - Plaintiffs Responses to Defendants Requests for Production of Documents, #2 Exhibit 2 - Subpoena to Rick Peters, #3 Exhibit 3 - Discovery Transmittal Letter, #4 Exhibit 4 - P. Overhauser Declaration)(Overhauser, Paul) |
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Filing 55
ENTRY-marginal-Notice of withdrawal of motion for time-The Clerk is directed to show #52 MOTION for Extension of Time to until 3 days following entry of protective order to Produce Documents withdrawn. Signed by Magistrate Judge Debra McVicker Lynch on 6/28/2018.(CBU)
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| Filing 54 NOTICE of Withdrawal of Motion, filed by Defendants JALMAR ARAUJO, JB SPORTS, LLC, re #52 MOTION for Extension of Time to until 3 days following entry of protective order to Produce Documents. (Overhauser, Paul) |
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Filing 53
ORDER approving #32 Motion for Protective Order. Signed by Magistrate Judge Debra McVicker Lynch on 6/27/2018. (CBU)
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| Filing 52 ***WITHDRAWN PER MARGINAL ENTRY ON 6/28/2018*** MOTION for Extension of Time to until 3 days following entry of protective order to Produce Documents, filed by Defendants JALMAR ARAUJO, JB SPORTS, LLC. (Attachments: #1 Exhibit 1 - Meet & Confer Email 6/27/2018, #2 Text of Proposed Order)(Overhauser, Paul) Modified on 6/29/2018 (CBU). |
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Filing 51
ORDER on Plaintiff's Motion to Compel Discovery - #43 Motion to Compel is GRANTED. The court overrules all of Mr. Araujo's objections to providing information identifying the manufacturer of the HSG products and producing all documents referring or relating to that manufacturer, including communications and other documents shared between the defendants and the manufacturer. The defendants may withhold only those documents within the foregoing parameters for which they in good faith assert an attorney-client or work product privilege. Mr. Araujo must supplement his responses to discovery to provide the requested information within 10 days of the entry of this order on the docket. That supplement must include answers under oath to the deposition questions he refused to answer about the manufacturer. See Order for details. Signed by Magistrate Judge Debra McVicker Lynch on 6/22/2018. (LBT)
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| Filing 50 BRIEF/MEMORANDUM in Support re #49 MOTION to Compel Return of Property , filed by Plaintiff ULTRA ATHLETE LLC. (Attachments: #1 Exhibit A - Excerpt of Deposition of Rickie E. Peters, #2 Exhibit B - Declaration of Kevin T. Duncan in Support of Plaintiff's Motion to Compel Return of Property, #3 Exhibit C - Declaration of of Rickie E. Peters in Support of Plaintiff's Motion to Compel Return of Property, #4 Exhibit D - Emails Between Kevin T. Duncan and Paul Overhauser)(Duncan, Kevin) |
| Filing 49 MOTION to Compel Return of Property, filed by Plaintiff ULTRA ATHLETE LLC. (Attachments: #1 Text of Proposed Order Text of Proposed Order Granting Plaintiff's Motion to Compel Return of Property)(Duncan, Kevin) |
| Filing 48 REPLY in Support of Motion re #43 MOTION to Compel Discovery , filed by Plaintiff ULTRA ATHLETE LLC. (Attachments: #1 Exhibit A - Excerpt of Jalmar Araujo Deposition Transcript, #2 Exhibit B - May 18, 2018, Email from Kevin T. Duncan to Paul Overhauser Discussing Rule 26, #3 Exhibit C - March 8, 2018, Email from Paul Overhauser to Kevin T. Duncan Discussing Defendants Product Sales in Indiana, #4 Exhibit D - Excerpt of Rickie Peters Deposition Transcript)(Duncan, Kevin) |
| Filing 47 REPLY in Support of Motion re #33 MOTION to Dismiss for Lack of Jurisdiction MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM upon Which Relief May Be Granted, Improper Venue, or in the alternative, Motion for a More Definite Statement (Amended Complaint Dkt. 25)) , filed by Defendants JALMAR ARAUJO, JB SPORTS, LLC. (Attachments: #1 Exhibit 3 - Araujo Deposition Excerpt, #2 Exhibit 5 - Peters Deposition Excerpt, #3 Exhibit 6 - Population Chart, U.S. Census Bureau, Population Division)(Overhauser, Paul) |
| Filing 46 RESPONSE in Opposition re #43 MOTION to Compel Discovery , filed by Defendants JALMAR ARAUJO, JB SPORTS, LLC. (Attachments: #1 Exhibit 1- Declaration of Ingalls, #2 Exhibit 2 - Declaration of Overhauser, #3 Exhibit 3 - Peters Depo. Excerpts)(Overhauser, Paul) |
| Filing 45 RESPONSE in Opposition re #33 MOTION to Dismiss for Lack of Jurisdiction MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM upon Which Relief May Be Granted, Improper Venue, or in the alternative, Motion for a More Definite Statement (Amended Complaint Dkt. 25)) , filed by Plaintiff ULTRA ATHLETE LLC. (Attachments: #1 Exhibit A - Defendants Redacted Production Bates No. JB Sports 0027-0070, #2 Exhibit B - Mailing Labels, #3 Exhibit C - Declaration of Kevin T. Duncan in Support of Plaintiffs Reply to Defendants Motion to Dismiss, #4 Exhibit D - Defendants First Set of Interrogatories Submitted to Plaintiff, Ultra Athlete, LLC)(Duncan, Kevin) |
| Filing 44 BRIEF/MEMORANDUM in Support re #43 MOTION to Compel Discovery , filed by Plaintiff ULTRA ATHLETE LLC. (Attachments: #1 Exhibit 1 - Plaintiff's First Set of Interrogatories, #2 Exhibit 2 - Plaintiff's First Requests for Production, #3 Exhibit 3 - Plaintiff's First Requests for Admission, #4 Exhibit 4 - Declaration of Jalmar Araujo, #5 Exhibit 5 - Defendant's Response to the First Set of Interrogatories, #6 Exhibit 6 - Defendant's Response to the First Requests for Production, #7 Exhibit 7 - Defendant's Response to the First Requests for Admission, #8 Exhibit 8 - Declaration of Kevin T. Duncan in Support of Plaintiff's Motion to Compel Discovery)(Duncan, Kevin) |
| Filing 43 MOTION to Compel Discovery, filed by Plaintiff ULTRA ATHLETE LLC. (Attachments: #1 Text of Proposed Order Text of Proposed Order Granting Plaintiff's Motion to Compel Discovery)(Duncan, Kevin) |
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Filing 42
ENTRY and ORDER from Discovery Conference held before Magistrate Judge Debra McVicker Lynch on 5/25/2018. The court has not yet issued the case management order, so there is currently no deadline for amendments to the pleadings in place. Deadlines will be established after resolution of the current discovery dispute. The plaintiff shall file its motion to compel by May 30, 2018. The plaintiff's time to respond to the pending motion to dismiss is extended to June 6, 2018. Signed by Magistrate Judge Debra McVicker Lynch. (JLS)
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| Filing 41 RESPONSE to Discovery Request from Jalmar Araujo, filed by Plaintiff ULTRA ATHLETE LLC.(Duncan, Kevin) |
| Filing 40 REQUEST for Admissions, filed by Plaintiff ULTRA ATHLETE LLC.(Duncan, Kevin) |
| Filing 39 RESPONSE to Discovery Request from Jalmar Araujo, filed by Plaintiff ULTRA ATHLETE LLC.(Duncan, Kevin) |
| Filing 38 REQUEST for Production of Documents, filed by Plaintiff ULTRA ATHLETE LLC.(Duncan, Kevin) |
| Filing 37 RESPONSE to Discovery Request from Jalmar Araujo, filed by Plaintiff ULTRA ATHLETE LLC.(Duncan, Kevin) |
| Filing 36 DISCOVERY First Set of Interrogatories Propounded to Defendant Jalmar Araujo, filed by Plaintiff ULTRA ATHLETE LLC.(Duncan, Kevin) |
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Filing 34
SCHEDULING ORDER: Telephonic Discovery Conference set for 5/25/2018 at 9:30 AM (Eastern Time) before Magistrate Judge Debra McVicker Lynch. The court will contact counsel by separate email through the court's electronic filing system with the call-in information to be used to participate in the conference. At least one business day before the conference, the parties must file the discovery requests and written responses related to the nature of the dispute. Signed by Magistrate Judge Debra McVicker Lynch on 5/23/2018.(LBT)
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| Filing 33 MOTION to Dismiss for Lack of Jurisdiction , MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM upon Which Relief May Be Granted, Improper Venue, or in the alternative, Motion for a More Definite Statement (Amended Complaint Dkt. 25)), filed by Defendants JALMAR ARAUJO, JB SPORTS, LLC. (Attachments: #1 Exhibit 1 - Bell v. Kirchner, Case No. 1:13-cv-12, Dkt. #106, #2 Exhibit 2 - Amended Araujo Declaration)(Overhauser, Paul) |
| Filing 32 MOTION for Protective Order , filed by Plaintiff ULTRA ATHLETE LLC. (Attachments: #1 Text of Proposed Order Uniform Stipulated Protective Order-Instructions, #2 Exhibit A - Agreement to be Bound by Protective Order)(Duncan, Kevin) |
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Filing 31
ORDER Striking Stipulated Protective Order - On May 8, 2018, the plaintiff filed #29 Motion for Protective Order. Despite styling this filing as a motion, no motion accompanied the Stipulated Protective Order. Fed. R. Civ. P. 26(c) states: "A party or any person from whom discovery is sought may move for a protective order...") (emphasis added). Furthermore, the submitted Stipulated Protective Order is unsigned by counsel. Docket No. 29 is, therefore, stricken. If the parties seek a protective order, they should properly move for one, and they must sign it. Signed by Magistrate Judge Debra McVicker Lynch on 5/14/2018.(LBT)
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| Filing 30 NOTICE of Service of Initial Disclosures , filed by Plaintiff ULTRA ATHLETE LLC. (Duncan, Kevin) |
| Filing 29 **STRICKEN PER NO. 31** MOTION for Protective Order , filed by Plaintiff ULTRA ATHLETE LLC. (Attachments: #1 Exhibit A - Agreement to be Bound by Protective Order)(Duncan, Kevin) Modified on 5/14/2018 (LBT). |
| Filing 28 CASE MANAGEMENT PLAN TENDERED, filed by Plaintiff ULTRA ATHLETE LLC . (Duncan, Kevin) |
| Filing 27 NOTICE of Amended Complaint in lawsuit sent to Director of U.S. Patent and Trademark Office. (Attachments: #1 Amended Complaint with exhibits) (LBT) |
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Filing 26
ORDER Striking Discovery Materials - The court STRIKES the discovery materials from the docket, at Dkts. #20 , #21 , #22 , and #23 . The parties should not make routine filings of discovery materials. See Order for details. Signed by Magistrate Judge Debra McVicker Lynch on 5/1/2018.(LBT)
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| Filing 25 AMENDED COMPLAINT First Amended Complaint against All Defendants, filed by ULTRA ATHLETE LLC. (Attachments: #1 Exhibit A - US 6749578, #2 Exhibit B - US 6858017, #3 Exhibit C - US D550370, #4 Exhibit D - JB Sports MA State Filings 2010, #5 Exhibit E - Araujo-Flexibrace eBay Seller's Page, #6 Exhibit F - Flexibrace USPTO Trademark Registration Page)(Duncan, Kevin) |
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Filing 24
ENTRY and ORDER from Initial Pretrial Conference held before Magistrate Judge Debra McVicker Lynch on 4/26/18. The case management plans submitted in this case were not approved. The parties shall confer and, within 7 days, file a new proposed CMP that permits claim construction briefing earlier and separate from the briefing of any other summary judgment issues. However, the CMP must set dates certain, not conditioned on the date of the Markman ruling. The motion for leave to amend (Dkt. #19 ) is GRANTED. The plaintiff must file its amended complaint with its exhibits within five business days. The motion todismiss (Dkt. #16 ) is DENIED AS MOOT. Telephone Status Conference set for 7/23/2018 at 10:30 AM (Eastern) before Magistrate Judge Debra McVicker Lynch. Signed by Magistrate Judge Debra McVicker Lynch. (KGK)
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| Filing 23 **STRICKEN PER NO. 26** REQUEST for Production of Documents, filed by Plaintiff ULTRA ATHLETE LLC.(Duncan, Kevin) Modified on 5/1/2018 (LBT). |
| Filing 22 **STRICKEN PER NO. 26** REQUEST for Admissions, filed by Plaintiff ULTRA ATHLETE LLC.(Duncan, Kevin) Modified on 5/1/2018 (LBT). |
| Filing 21 **STRICKEN PER NO. 26** DISCOVERY First Set of Interrogatories Propounded to Defendant Jalmar Araujo, filed by Plaintiff ULTRA ATHLETE LLC.(Duncan, Kevin) Modified on 5/1/2018 (LBT). |
| Filing 20 **STRICKEN PER NO. 26** NOTICE of Taking Deposition by ULTRA ATHLETE LLC (Duncan, Kevin) Modified on 5/1/2018 (LBT). |
| Filing 19 MOTION for Leave to File First Amended Complaint, filed by Plaintiff ULTRA ATHLETE LLC. (Attachments: #1 Text of Proposed Order Text of Proposed Order Granting Motion for Leave to File First Amended Complaint, #2 Supplement Memorandum In Support of Motion for Leave to File First Amended Complaint, #3 Affidavit Warning Order Attorney Affidavit, #4 Exhibit Exhibit 1 - First Amended Complaint, #5 Exhibit Exhibit A to First Amended Complaint - US 6749578, #6 Exhibit Exhibit B to First Amended Complaint - US 6858017, #7 Exhibit Exhibit C to First Amended Complaint - US D550370, #8 Exhibit Exhibit D to First Amended Complaint - JB Sports MA State Filings 2010, #9 Exhibit Exhibit E to First Amended Complaint - Araujo-Flexibrace eBay Seller's Page, #10 Exhibit Exhibit F to First Amended Complaint - Flexibrace USPTO Trademark Registration Page)(Duncan, Kevin) |
| Filing 17 CASE MANAGEMENT PLAN TENDERED, filed by Plaintiff ULTRA ATHLETE LLC . (Duncan, Kevin) |
| Filing 16 MOTION to Dismiss for Lack of Jurisdiction and, MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM upon which relief may be granted, or in the alternative,, MOTION for More Definite Statement , filed by Defendants JALMAR ARAUJO, JB SPORTS, LLC. (Attachments: #1 Exhibit 1 - Bell v. Kirchner, Case No. 1:13-cv-12, Dkt. #106, #2 Exhibit 2 - Araujo Declaration)(Overhauser, Paul) |
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Filing 15
ORDER granting #14 Motion for Extension of Time to 4/17/2018 for the defendants to respond to the plaintiff's complaint. Signed by Magistrate Judge Debra McVicker Lynch on 3/16/2018. (LBT)
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| Filing 14 Unopposed MOTION for Extension of Time to April 17, 2018 in which to #1 Complaint respond to the Complaint, filed by Defendants JALMAR ARAUJO, JB SPORTS, LLC. (Attachments: #1 Text of Proposed Order)(Overhauser, Paul) |
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Filing 13
SCHEDULING ORDER: Initial Pretrial Conference set for 4/26/2018 at 11:00 AM (Eastern Time), in room #224, United States Courthouse, 121 W. Spring Street, New Albany, Indiana before Magistrate Judge Debra McVicker Lynch. Requests by counsel to participate by telephone must be made by contacting the magistrate judge's staff at 317.229.3630 at least one week in advance of the IPTC. No fewer than seven days before the IPTC, counsel must file a proposed CMP. See Order for details. Signed by Magistrate Judge Debra McVicker Lynch on 3/12/2018. (MAT)
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| Filing 12 Reassignment of Case to Magistrate Judge Debra McVicker Lynch. Magistrate Judge Tim A. Baker is no longer assigned to this case. Please include the new case number (4:17-cv-237-RLY-DML), which includes the initials of the newly assigned judge, on all future filings in this matter. (MAT) |
| Filing 11 WAIVER OF SERVICE Returned Executed, filed by ULTRA ATHLETE LLC. JB SPORTS, LLC waiver sent on 1/17/2018. (Duncan, Kevin) |
| Filing 10 WAIVER OF SERVICE Returned Executed, filed by ULTRA ATHLETE LLC. JALMAR ARAUJO waiver sent on 1/17/2018. (Duncan, Kevin) |
| Filing 9 Corporate Disclosure Statement by JB SPORTS, LLC. (Overhauser, Paul) |
| Filing 8 NOTICE of Appearance by Paul B. Overhauser on behalf of Defendants JALMAR ARAUJO, JB SPORTS, LLC. (Overhauser, Paul) |
| Filing 7 NOTICE of Appearance by April M. Jay on behalf of Defendants JALMAR ARAUJO, JB SPORTS, LLC. (Jay, April) |
| Filing 6 NOTICE of Change of Attorney Information. Consistent with Local Rule 5-3, Kevin Todd Duncan hereby notifies the Clerk of the court of changed contact information. (Duncan, Kevin) |
| Filing 5 NOTICE of Initial Filing in lawsuit sent to Director of U.S. Patent and Trademark Office. (Attachments: #1 Complaint with attachments) (LBT) |
| Filing 4 MAGISTRATE JUDGE's NOTICE of Availability to Exercise Jurisdiction issued. (LBT) |
| Filing 3 Corporate Disclosure Statement by ULTRA ATHLETE LLC. (Duncan, Kevin) |
| Filing 2 NOTICE of Appearance by Kevin Todd Duncan on behalf of Plaintiff ULTRA ATHLETE LLC. (Duncan, Kevin) |
| Filing 1 COMPLAINT for patent and trade dress infringement and unfair competition against All Defendants, filed by ULTRA ATHLETE LLC. (Filing fee $400, receipt number 0756-4687471) (Attachments: #1 Exhibit Exhibit A - US 6749578, #2 Exhibit Exhibit B - US D550370, #3 Civil Cover Sheet Cover - Ultra Athlete v Araujo et al - Federal Question - Patent)(Duncan, Kevin) |
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