Cesari S.R.L. v. Peju Province Winery L.P. et al
| Cesari S.R.L. |
| Peju Province Winery L.P., Peju Province Corporation and Peju Family Operating Partnership, L.P. |
| 1:2017cv00873 |
| February 6, 2017 |
| US District Court for the Southern District of New York |
| Foley Square Office |
| New York |
| Naomi Reice Buchwald |
| Trademark |
| 15 U.S.C. ยง 1125 |
| Plaintiff |
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Filing
487
ORDER granting 485 Letter Motion to Seal. The application to temporarily file these documents under seal is granted. So ordered. (Signed by Judge Naomi Reice Buchwald on 11/6/2023) (mml)
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Filing
472
OPINION AND ORDER: For the reasons stated above, the Court awards profits in the amount of $666,214. It is hereby ordered that the deadline for plaintiff to file a motion for attorneys' fees and costs, if any, is October 20, 2023. That ap plication shall include: (i) caselaw support for plaintiffs application demonstrating that this action is an exceptional case; (ii) a sworn declaration providing each attorney and legal support staff's background, experience, and billing rate at the time the work was expended; (iii) copies of contemporaneous time sheets that include the date, hours expended, and nature of work completed, specifically noting the filings or motions that were worked on in that entry; (iv) a chart aggregat ing the fees and costs sought by plaintiff to each stage of the litigation (e.g., particular motions, letters, deposition preparation, depositions taken, court appearances and related preparation, etc.); (v) a chart describing any costs sought by p laintiff; and (vi) a chart detailing the attorneys' fees and costs already paid by plaintiff and those outstanding as of the date of the submission. 36 If necessary, the deadline for defendant to file an opposition to plaintiff's motion is October 20, 2023. SO ORDERED. (Motions due by 10/20/2023. Responses due by 10/20/2023.) (Signed by Judge Naomi Reice Buchwald on 9/22/2023) (mml)
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Filing
447
ORDER: At the outset, the Court wants to make it perfectly clear that regardless of any issues raised in yesterday's teleconference and the parties' letters of June 27, 2023 and June 28, 2023, see ECF Nos. 445, 446, the trial date, which was set seven months ago, is not moving. We will first address the Court's direction to the parties regarding the submission of exhibit lists. See ECF No. 444. It is the Court's understanding that both parties intend to comply with our order of June 27, 2023 to the extent that they will be submitting a list of all exhibits that they intend to rely on and proffer at trial. See ECF No. 446 at 2. Both parties shall prepare their exhibit lists in chart form to allow the other party to indicate for each exhibit whether it stipulates to or objects to its authenticity and admissibility. See ECF No. 444. For each objection, the objecting party shall briefly identify the basis for the objection, which can be expanded on at trial. The parties should exchange their exhibit charts no later than 6:00 P.M. today, and complete charts with stipulations and objections shall by filed on ECF no later than Friday, June 30, 2023 at 10:00 A.M. The parties are reminded of the importance of the documents upon which the experts rely in that the Court must make findings of fact and determine whether to adopt the experts' opinions in whole or in part. We next address plaintiff's contention that defendants did not timely comply with Fed. R. Civ. P. 26(a)(3). If plaintiff believed Rule 26(a)(3) should be applied here, plaintiff should have brought that issue to the Court's attention weeks ago as it is the responsibility of the parties to raise issues to the Court on a timely basis thus enabling the Court to resolve those issues. In any event, it is the Court's view that Rule 26(a)(3) does not directly apply to this bench trial concerning the sole issue of disgorgement. Moreover, we note that even if Rule 26(a)(3) applied, plaintiff has already received more information than she would have as she has effectively received the direct testimony of defendants' proposed witnesses in affidavits years ago. This discussion is not a ruling on whether th e Court permits the testimony of Ms. Schulz and/or Mr. Lewin as the need for testimony from witnesses other than the parties' experts will be affected by the parties' willingness to stipulate to the authenticity and admissibility of th e underlying factual documents and affidavits. For the parties' guidance, with respect to the affidavits, the parties could stipulate that, if a witness were called to testify at trial, the witness would testify to the content of their affidavit . Such a stipulation would, in effect, treat the affidavit as the witnesss direct testimony, while reserving the ability to cross examine the witness. The use of such a stipulation in no way adopts the content of the affidavit. In conclusion, the length and content of the trial will obviously be affected by the parties willingness to stipulate or not. SO ORDERED. (Signed by Judge Naomi Reice Buchwald on 6/28/2023) (vfr)
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Filing
438
ENDORSMENT: Peju's request for a Daubert hearing is denied. See ECF No. 432. As Peju's counsel recognizes, Daubert has a very limited role in the non-jury context. Given plaintiff's expert is a forensic accountant whose testimony is derived from documents provided by defendants, a Daubert hearing would not be productive. This is especially true because any issues defendants have with plaintiff's expert report itself can be raised at the scheduled trial. Additionall y, in order to prepare for trial, the Court directs defendants to provide, as was provided by plaintiff, all the documents and transcripts relied upon by defendants' expert in his report, using the same format as plaintiff. Three hard cop ies of this binder should be delivered to Chambers by Tuesday, June 20, 2023. Defendants should also email an electronic copy of the binder to the Chambers email by June 20, 2023. Finally, it has been the Court's int ention to follow at trial the common practice in this district to have the expert report constitute the direct examination of the expert, such that trial is essentially limited to cross examination and redirect. After receiving defendant's ex pert binder on Tuesday, we will conduct a conference to determine whether there may be any reason not to proceed in that fashion. SO ORDERED. (Signed by Judge Naomi Reice Buchwald on 6/14/2023) (mml)
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Filing
437
ORDER: Peju's application for a pre-motion conference to address an issue of liability is denied. See ECF No. 431. The issues of liability were resolved long ago. In 2004, the Trademark Trial and Appeal Board ("TTAB") of the United St ates Patent and Trademark Office rejected Peju's pending trademark application after broadly concluding that its mark, LIANA, was likely to cause confusion with Cesari's previously registered mark, LIANO, given "[t]he sole distincti on between the two marks is the last letter" and the parties' goods (i.e. wines in International Class 33) are "identical." See ECF No. 1-2 at 2, 4. Despite this clear ruling, six years ago, in its opposition to Cesari's f irst motion for partial summary judgment, Peju's counsel made the same argument he makes in the present application: that the TTAB decision should not preclude Peju from re-litigating the issue of likelihood of confusion, in part, because the T TAB did not consider the differences between Peju's labels, such as one iteration in which "LIANA ESTATES appears only on the back of the wine bottle." See ECF No. 29 at 8-10. The Court rejected Peju's argument in its December 11, 2017 decision on plaintiff's motion. See Cesari S.r.L. v. Peju Province Winery L.P., No. 17 Civ. 873(NRB), 2017 WL 6509004, at *34 (S.D.N.Y. Dec. 11, 2017) ("The parties each use their mark in ways that are materially the same as the usage s adjudicated by the TTAB.... Because defendants have not offered any evidence that LIANA is used with respect to goods other than wines (bicycles or soda, for instance), there are no 'nondisclosed'usages that might necessitate a successive adjudication."). Apart from not acknowledging the scope of this Court's prior rulings, Peju's argument that the Court must nevertheless evaluate the labels on its recently discovered four additional relevant SKUs is pointless, given t hat "Cesari is not seeking disgorgement relating to these newly produced SKUs." See ECF Nos. 431 at 4, 7; 434 at 4. Furthermore, Peju's attempt to now raise a fair use defense is both meritless and untimely. See ECF No. 431 at 5-8. SO ORDERED. (Signed by Judge Naomi Reice Buchwald on 6/13/2023) (mml)
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Filing
427
ENDORSEMENT: The requested subpoena appears to be both unnecessary and improper. See ECF No. 425. To the extent the subpoena is intended to ensure plaintiff's expert's attendance at her deposition, it is unnecessary as there is already an agreed upon date. To the extent the subpoena is directed to the production of documents and communications, it is clearly violative of Fed. R. Civ. P. 26(b)(4)(C) in many respects. To the extent that it seeks information consistent with Fed. R. Civ. P. 26(b)(4)(C), the Court has no reason to believe that the facts, data, and assumptions underlying plaintiff's expert's opinions have not already been disclosed in her report and extensive exhibits binder. Surely, plaintiff need not reprod uce materials already furnished. With the possible exception of compensation information, defendant is not entitled to additional materials. If the Court's assumption about the completeness of the disclosure of permissible materials is incorrect, that can be explored at plaintiff's expert's deposition. SO ORDERED. (Signed by Judge Naomi Reice Buchwald on 5/1/2023) (rro)
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Filing
415
ORDER: The Clerk of Court is directed to strike ECF No. 413 from the docket as it was filed in violation of ECF No. 411. (Signed by Judge Naomi Reice Buchwald on 2/16/2023) (ama)
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Filing
406
MEMORANDUM AND ORDER: Accordingly, defendants' application for leave to serve an expert report to pursue an advice of counsel defense is denied. SO ORDERED. (Signed by Judge Naomi Reice Buchwald on 2/6/2023) (mml)
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Filing
373
ORDER granting 367 Letter Motion to Seal. Application granted. SO ORDERED. (Signed by Judge Naomi Reice Buchwald on 8/17/2022) (mml)
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Filing
372
MEMORANDUM AND ORDER denying 324 Motion for Summary Judgment. Defendants' motion for summary judgment is denied in its entirety and defendants statute of limitations and laches affirmative defenses are dismissed with prejudice. Summary ju dgment is granted to plaintiff with respect to the extension of this Court's prior collateral estoppel ruling to Peju Partnership. The Clerk of Court is respectfully directed to terminate the motion pending at ECF No. 324. SO ORDERED. (Signed by Judge Naomi Reice Buchwald on 8/3/2022) (mml)
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Filing
368
ORDER re: 324 MOTION for Summary Judgment Notice of Motion. filed by Peju Province Winery L.P., Peju Province Corporation, Peju Family Operating Partnership, L.P.. The oral argument for defendants' motion for summary judgme nt will be held in person on June 14, 2022 at 12:00 p.m. at the Daniel Patrick Moynihan United States Courthouse, Courtroom 21A, located at 500 Pearl Street, New York, New York, 10007. ( Oral Argument set for 6/14/2022 at 12:00 PM in Courtroom 21A, 500 Pearl Street, New York, NY 10007 before Judge Naomi Reice Buchwald.) (Signed by Judge Naomi Reice Buchwald on 5/26/2022) (tg)
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Filing
301
ORDER re: 298 Letter,, filed by Cesari S.R.L.. The Court will address and rule on the issues raised in the parties' joint letter, dated September 9, 2021, at an in- person conference to be he ld on November 4, 2021 at 11:00 a.m. Given the Court's familiarity with this case and the amount of briefing that has already been submitted to date, the parties should not anticipate a full-fledged oral argument. ( Oral Argument set for 11/4/2021 at 11:00 AM before Judge Naomi Reice Buchwald.) (Signed by Judge Naomi Reice Buchwald on 10/19/2021) (tg)
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Filing
299
ORDER: This matter came before the Court on Plaintiff's unopposed application under Fed. R. Civ. P. 21 to drop from the case Defendant Peju Province Corporation. The application is made on the grounds that the remaining Peju Defendants, specifically Defendants Peju Province Winery L.P. and Peju Family Operating Partnership L.P. ("Remaining Defendants"), have agreed they will not claim in this action that Defendant Peju P rovince Corporation was the seller of any of the infringing wines. Based on that representation, the presence of Defendant Peju Province Corporation no longer affects the issues being litigated. The Court has been advised that the part ies reached this agreement solely for the purpose of narrowing the issues in the case, and that this voluntary request for the dismiss al of Defendant Peju Province Corporation will not be a ground upon which any party m ay claim costs and fees against Plaintiff under Fed. R. Civ. P. 68, the Lanham Act, or any other rule or provision. Having considered Plaintiffs unopposed request, the joint letter submitted by Plaintiff and Defendants regardin g Plaintiff s request, the Court hereby orders as follows: ORDERED that Defendant Peju Province Corporation and all claims in Plaintiffs First Amended Complaint against Defendant Peju Province Corporation only are hereby dismissed from thi s action with prejudice pursuant to Fed. R. Civ. P. 21, without costs and fees. IT IS SO ORDERED. Peju Province Corporation (a California Corporation) terminated. (Signed by Magistrate Judge Naomi R. (Magistrate) Buchwald on 10/5/2021) (tg)
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Filing
273
ORDER: granting 266 Letter Motion to Seal. Application granted, pending further review by the Court. (Signed by Judge Naomi Reice Buchwald on 2/01/2021) (ama)
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Filing
255
MEMORANDUM AND ORDER: The deposition of the CEO of plaintiff, Gianmaria Cesari, is scheduled for December 14, 2020. As the Court observed, in the context of this case, the distinction between the two is largely academic because Mr. Cesari's tes timony would be binding on plaintiff regardless of how the deposition is noticed. The specific subject of this Order is the appropriateness of the 32 topics for examination proposed in defendants' Rule 30(b)(6) deposition notice. (ECF No. 248.) Before addressing the subjects approved for examination at the upcoming deposition, some background is required. The table below summarizes the Court's rulings for each topic in defendants' proposed Rule 30(b)(6) notice (ECF No. 248-1)(a s further set forth in this Order.) None of the rulings are to be construed as waiving any applicable objection or discovery privilege that plaintiff might assert. Moreover, while the Court has permitted some leeway in the questioning even when it wa s not entirely clear how the topic related to an open issue, this accommodation should not be understood as a ruling that the topic would constitute admissible evidence at summary judgment or at trial. (Signed by Judge Naomi Reice Buchwald on 12/10/2020) (cf)
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Filing
243
ORDER: Accordingly, the following protocols will govern the deposition of plaintiff's CEO: If defendants wish to take the deposition of plaintiff's CEO under either Rule 30(b)(1) or 30(b)(6), that deposition must be done completed within th e next 45 days. To schedule that deposition, defendants must offer plaintiff by December 2, 2020 three proposed dates after December 10, 2020 for the deposition from which plaintiff may choose (excluding all weekends and December 24, 2020 through Jan uary 1, 2021); The deposition of plaintiff's CEO shall begin at 8:00 a.m. EST, shall last for no longer than seven hours, and shall be conducted over the course of a single day, regardless of whether it is noticed as a Rule 30(b)(1) and/or a Rul e 30(b)(6) deposition; and In light of the overbroad and objectionable scope of defendants' original Rule 30(b)(6) deposition notice, if defendants wish to serve another Rule 30(b)(6) notice, they must do so by December 2, 2020, and defendants will have to justify to the Court in the form of a written explanation following each and every subject they propose in that notice, and thereafter the Court shall decide whether the topic is permissible. As the parties are well aware, the Court has refrained from issuing sanctions in this case up to now. Counsel should not assume that the Court's reluctance will continue. Nor should counsel assume that if they engage in sanctionable conduct that the sanction will not be directed to them personally. And as set forth herein. SO ORDERED. (Signed by Judge Naomi Reice Buchwald on 11/23/2020) (ama)
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Filing
230
ORDER: Pursuant to Rule 26(c)(1) and 30(b)(4) of the Federal Rules of Civil Procedure and the Court's inherent authority to manage discovery, the following protocol for conducting the deposition of Kandiss Schulz scheduled for August 25, 2020 vi a remote means in the above-captioned manner is hereby ordered: 1. The deposition of Ms. Schulz shall be conducted remotely using videoconference technology, and the deponent shall be video-recorded, and as further set forth in this order. (Signed by Judge Naomi Reice Buchwald on 8/20/2020) (jwh)
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Filing
227
ORDER: The Court has reviewed the parties' letters dated August 2, 5, and 6, 2020. The deposition of Kandiss Schulz shall be taken remotely. The Court directs the parties to use Judge Lehrburger's Sample Remote Deposition Protocol, which is available on the Court's website, as the model for the protocol in this case. Any party that objects to any provision of Judge Lehrburger's Protocol shall explain their objection in writing to the Court by August 17, 2020. SO ORDERED. (Signed by Judge Naomi Reice Buchwald on 8/10/2020) (ama)
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Filing
222
MEMORANDUM: The Court has reviewed defendants' retainer agreements with Mandelbaum Salsburg P.C. Based on its review, the Court finds that the redacted amended retainer agreement that defendants produced to plaintiff, see ECF No. 183, Ex. 2, satisfies the Courts direction to defendants at the January 17, 2019 conference to produce their retainer agreement with Mandelbaum Salsburg P.C., see ECF No. 150 at 70:21-23. (Signed by Judge Naomi Reice Buchwald on 7/28/2020) (cf)
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Filing
220
ORDER terminating 196 Letter Motion for Extension of Time to File; terminating 214 Letter Motion to Seal. The Court accordingly directs defendants to furnish the unredacted amended retainer agreement under seal, and a certification that the two retainer agreements are the only retainer agreements between defendants and Mandelbaum Salsburg P.C. The parties shall provide the Court with a schedule for the taking of that deposition, and, in light of the ongoing COVID-19 pandemic, the Court enco urages the parties to explore remote alternatives. The Clerk of Court is respectfully directed to terminate the motions pending at ECF Nos. 196 and 214. (As further set forth in this Order.) (Signed by Judge Naomi Reice Buchwald on 7/13/2020) (cf)
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Filing
206
ORDER granting 205 Letter Motion to Adjourn Conference. The conference scheduled for April 15, 2020 at noon is adjourned. (Signed by Judge Naomi Reice Buchwald on 4/13/2020) (ks)
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Filing
199
ORDER: The conference scheduled for March 31, 2020 at 3:30 p.m. is rescheduled for April 15, 2020 at 12:00 p.m., and it will be held telephonically. The Court will contact the parties with dial-in instructions as April 15 approaches., ( Telephone Conference set for 4/15/2020 at 12:00 PM before Judge Naomi Reice Buchwald.) (Signed by Judge Naomi Reice Buchwald on 3/27/2020) (ama)
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Filing
194
ORDER granting 192 CONSENT LETTER MOTION to Adjourn Conference Currently Scheduled for March 23, 2020. The conference is adjourned until March 31, 2020 at 3:30pm. SO ORDERED. Status Conference set for 3/31/2020 at 03:30 PM before Judge Naomi Reice Buchwald. (Signed by Judge Naomi Reice Buchwald on 3/2/2020) (jca)
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Filing
182
MEMORANDUM AND ORDER granting in part and denying in part 176 Motion to Quash. This Memorandum and Order addresses the submissions at docket entries 176 through 181. Plaintiff has established the relevance of only (1) whether Peju Province Corpora tion and/or Peju Family Operating Partnership, L.P. controlled Peju Province Winery L.P. in the TTAB litigation, and (2) Ariana Peju's alleged lack of knowledge of Peju Province Winery L.P.'s prior trademark application to register LIANA, o r of the prior TTAB proceeding. The Court accordingly quashes plaintiff's subpoena except to the extent that it requests documents that bear on at least one of those two topics, and directs as follows. First, defendants must produce to the Court for in camera review each document on their privilege log that bears on either of the two topics listed above. Second, defendants must produce to plaintiff (if not privileged or otherwise protected) or to the Court (if privileged or otherwise prot ected) any of Frankel's documents not listed on their privilege log that bear on either of those topics. In heeding these directions, the Court reminds defendants that billing statements and engagement letters are generally not privileged, excep t for "content that reveals the motive of the client in seeking representation, litigation strategy, or the specific nature of the services provided, such as researching particular areas of law. II Newmarkets Partners, LLC v. Sal. Oppenheim Jr. & Cie. S.C.A., 258 F.R.D. 95, 101 (S.D.N.Y. 2009) (internal quotation marks and alteration omitted). Finally, the Court rejects plaintiff's arguments concerning implied waiver of privilege. The Clerk of Court is respectfully directed to terminate the motion pending at docket entry 176. SO ORDERED. (Signed by Judge Naomi Reice Buchwald on 10/3/2019) (rro)
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Filing
137
MEMORANDUM AND ORDER: terminating 85 Motion for Reconsideration; terminating 110 Letter Motion for Conference. For the reasons discussed, Cesari's renewed motion for partial summary judgment is denied with prejudice. Counsel are directed t o confer in person within two weeks of the date of this Order and make a good faith effort to resolve the discovery disputes raised in the letters listed at docket entries 85, 105, 109, 110, and 122. Within ten days of the in-person meeting, counsel shall update the Court by joint letter on the meeting's outcome and propose a revised discovery schedule for the Court's consideration. This memorandum and order resolves the motions listed at docket entries 60, 85, and 110. SO ORDERED. (Signed by Judge Naomi Reice Buchwald on 11/07/2018) (ama)
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