Case 2:12-cv-05036-AB Document 17 Filed 12/23/12 Page 1 of 15

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA Land Rover, a foreign company, Case No. 2:12-cv-05036-AB Hon. Anita B. Brody

v. Granting the Rover Repairs of Collingdale, LLC, OrderMotion of Time Defendant's for an Extension of Time to Respond Defendant. to Plaintiff's Complaint OR DER After considering the Defendant's Motion for an Extension of Time, and the Plaintiff's response, it is hereby ordered that the motion is GRANTED. Defendant will fle a reply to Plaintiff's Complaint within 45 days entry of this Order. It is further ordered that the Plaintiff will pay $500.00 to an appropriate charity of the Defendant's choosing within 10 days entry of this Order. Plaintiff's counsel is also ordered to review the Code of Civility and Working Rules of Professionalism 1, and to follow the guidelines set forth therein. SO ORDERED this _________ day of ___________________, 2013.

Plaintiff,

_________________________________________ UNITED STATES DISTRICT JUDGE HON. ANITA B. BRODY

These are both available online on the Eastern District of Pennsylvania's website at http://www.paed.uscourts.gov/us08001.asp.
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA Land Rover, a foreign company, Case No. 2:12-cv-05036-AB

Plaintiff, Hon. Anita B. Brody v. Rover Repairs of Collingdale, LLC, Motion for an Extension of Time to Reply to Plaintiff's Complaint Defendant.
Motion for An Extension of Time to Reply to Plaintiff's Complaint 1. The Defendant was previously employed by the Land

Rover dealership in Wayne, Pennsylvania. 2. In June, 2008, the Defendant began doing business as

Rover Repairs of Collingdale, LLC.2 The Defendant operated openly, advertising the name of his business, and putting up a website in November 2008 at <roverrepairs.com>. 3. Despite the Defendants operation for more than four

years under this name, Land Rover, International (for unknown reasons that will be explored if discovery commences) decided to bring its legal hammer down upon this small independent Rover repair business. 4. Unable to afford counsel, Rover Repairs of Collingdales

owner, Frank Dalahan, sought to represent his business pro se. 5. Dalahan was unaware of the rule that a business entity

may not be represented pro se, and fled a Motion to Dismiss. (Dkt. 9) 6.
2

The Plaintiff opposed this Motion. (Dkt. 10).

The Defendant uses the possessive in its company name.

Case 2:12-cv-05036-AB Document 17 Filed 12/23/12 Page 3 of 15

7.

As part of its opposition, the Plaintiff correctly raised the

issue that the pro se Motion to Dismiss (Dkt. 10) should be stricken. 8. On December 21, 2012, the undersigned counsel agreed to

represent Rover Repairs of Collingdale.3 9. On December 21, 2012, counsel for the Defendant reached

out to counsel for the Plaintiff, seeking to streamline the litigation and seeking to minimize the amount of motion practice in this matter. 10. Specifcally, counsel for the Defendant suggested that the

Defendant would stipulate to the relief that the Plaintiff sought the striking of the improperly fled pro se Motion to Dismiss. See Exhibit A. 11. In exchange, the Defendants counsel requested that the

parties stipulate to a date by which a responsive pleading would be fled. See Exhibit A. 12. The Defendant believed that a 45 to 60 day period of time

would be appropriate. For starters, even if the Defendant simply waited for the Court to rule on the pending Motion, it was anticipated that an Order would not likely issue for at least 30 days. Additionally, it was presumed that if the Court did grant the Plaintiffs requested relief, that the Court would give the Defendant a reasonable amount of time in which to fle a responsive pleading.

3 The Defendant did not become more wealthy, and thus able to afford representation in the intervening months. But, the undersigned have accepted representation on a hybrid basis: they have accepted representation for a small fee with the remainder of their fees to be collected on a contingent fee basis. It is the Defendants position that these fees will be properly awarded to the Defendant under 15 U.S.C. 1117 or through other means.

Case 2:12-cv-05036-AB Document 17 Filed 12/23/12 Page 4 of 15

13.

Nevertheless, in the interest of compromise, professional-

ism, and collegiality, and in order to pitch a stipulation that no reasonable party nor attorney could deny, the Defendants counsel suggested a 20 day period of time. 14. Plaintiffs counsel, denied this request. Instead, the

Plaintiffs counsel insisted that the Defendant should fle his responsive pleading on or before December 31, 2012. 15. Under any circumstances, insisting upon 10 days in which

to fle a responsive pleading is unreasonable. However, this was even more unreasonable considering that this 10 day period, which Plaintiffs counsel insisted was reasonable included four weekend days, Christmas Eve, Christmas Day, the day after Christmas, and New Years Eve dates when Defense counsel makes an attempt to maintain some degree of work-life balance, by attending to their families. 16. Even after being given a chance to change course, by hav-

ing it pointed out to him that this 10 day period only encompassed three business days, Plaintiffs counsel engaged in the tired and poor tactic of claiming that it was his client, not his, decision. Ironically, in doing so, the Plaintiffs counsel claimed that his clients offces were closed for the holidays until Friday, December 28, 2012. 17. The Court should frst enter an order striking Dkt. 9.

Then, the Defendant should have 45 days in which to fle a responsive pleading.

Case 2:12-cv-05036-AB Document 17 Filed 12/23/12 Page 5 of 15

18.

Furthermore, the Court should assess costs and fees in-

curred in the drafting and fling of this Motion against the Plaintiff. WHEREFORE, the Defendant, Rover Repair of Collingdale, LLC, respectfully requests this Honorable Court to grant it forty-fve days to fle a response to Plaintiffs Complaint. Respectfully Submitted,

_____________________________ A. Jordan Rushie (209066) Mulvihill & Rushie LLC 2424 East York Street, Ste. 316 Philadelphia, PA 19125 Tel: (215) 385-5291 Fax: (215) 525-0909 Jordan@Fishtownlaw.com Marc J. Randazza (pro hac vice pending) Randazza Legal Group 6525 W. Warm Springs Road, Ste. 100 Las Vegas, NV 89118 Tel: (888) 667-1113
mjr@randazza.com

Attorneys for Defendant Rover

Dated: December 23, 2012

Repairs of Collingdale, LLC

Case 2:12-cv-05036-AB Document 17 Filed 12/23/12 Page 6 of 15

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA Land Rover, a foreign company, Case No. 2:12-cv-05036-AB

Plaintiff, Hon. Anita B. Brody v. Rover Repairs of Collingdale, LLC, Memorandum of Law in Support of Defendant's Motion Defendant. for an Extension of Time
Memorandum of Law Supporting Defendant's Motion of Time for an Extension to Respond to Plaintiff's Complaint Background Land Rover, a huge multinational corporation, brought a lawsuit against a small independent car repair business, which specializes in repairing Rover vehicles. This business operated openly, advertised openly, and was most certainly known to Land Rover for at least that amount of time. Nevertheless, Land Rover waited for four years before bringing suit. When the Defendant attempted to engage in settlement discussions on his own, the Plaintiff simply bulled this small business owner. When the Defendant was able to get an attorney friend, with no knowledge of trademark law, to assist him, the Plaintiff continued to exert unreasonable and undue pressure upon this small business. On December 21, 2012, its owner, Frank Dalahan, fnally found public-interest minded defense counsel with intellectual property law experience. Even if professionalism and courtesy did not mandate
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giving defense counsel some reasonable scheduling concessions, Mr. Dalahans prior pro se status entitles him to some latitude in getting current defense counsel up to speed. Federal courts give pro se

litigants latitude when failing to do so might cause them undue prejudice. Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003); Bush

v. City of Philadelphia, 367 F. Supp. 2d 722, 725 (E.D. Pa. 2005).

The Defense sought to engage in some reasonable stipulations and compromises, in order to avoid troubling the court with routine matters that should never have to clog a busy docket. The Plaintiffs counsel instead decided to try and press a temporal advantage in order to compensate for the weakness of his claims. After waiting four years to press a claim, all of a sudden, once the Defendant hired experienced intellectual property counsel, the Plaintiffs counsel appears to have panicked and now claims that his client will somehow suffer prejudice if a few weeks pass without a professionally-drafted responsive pleading. The Defendants attorneys apologize to the Court for even needing to bring such a petty matter before it. The Defendants

attorneys both acknowledge that perhaps if their powers of persuasion with diffcult people were better, they might have been able to convince one of the seven attorneys on the Plaintiffs side that they should behave more professionally and courteously. They did try. Failing in their attempt to elicit professionalism and courtesy from any of their counterparts, the Defendants were confronted with a
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dilemma: On one side, bothering a Federal judge with a motion that should never have needed to be fled. On the other side, a Hobsons choice: Randazza and Rushie could live up to their promises as husbands and fathers, or commit legal malpractice. Rather than face the ire of their malpractice carriers or angry spouses and sad children, the undersigned must trouble this Honorable Court with a request that any reasonable attorney would have stipulated to as a matter of course. Costs and fees are appropriate. The Plaintiffs counsel should be admonished that this behavior is not how we do things in this Circuit. See Marcangelo v. Boardwalk

Regency, 47 F.3d 88, 90 (3d Cir. 1995) (We do not approve of the
'hardball' tactics unfortunately used by some law frms today. The extension of normal courtesies and exercise of civility expedite litigation and are of substantial beneft to the administration of justice."); Naviant Mktg. Solutions, Inc. v. Larry Tucker, Inc ., 339 F.3d 180, 182 (3d Cir. 2003) (Collegiality and professionalism can obviate unnecessary court intervention, needless expense and fees for clients, and protracted legal proceedings.) Since the Plaintiffs attorneys decided to behave unprofessionally, the Defendant was forced to formally resolve issues that should have been readily agreed to. The Defendant does not seek onerous sanctions. While the instant motion and its companion have consumed approximately $1,000 in billable time, which would otherwise be col3

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lectable only on contingency, the Defense agrees that the Plaintiffs attorneys should be able to discharge any obligation by making a donation of $500 (that they otherwise would not have made) to a 501(c)(3) charity of their choice, and by acknowledging that in the future, they will comport themselves with honor, professionalism, and courtesy. Conclusion The Defendant respectfully requests that the Court enter an Order that the Defendant shall be permitted to fle a responsive pleading within 45 days of the Court entering its order striking the Defendants improperly-fled pro se Motion to Dismiss, and that given the fact that the Defendants Motion was fled by a pro se Defendant, with no knowledge of the Federal Rules of Civil Procedure, that the previously-fled Motion to Dismiss shall not act to waive any defenses otherwise available under Fed R. Civ. P. 12(b). Furthermore, the Court should use its inherent power to assess an award of costs and fees for the instant motion upon the Plaintiff, which should be discharged upon proof of a donation of $500 to a charity and an appropriate acknowledgement to commit to professionalism, honor, and courtesy. Respectfully submitted,

_______________________________ A. Jordan Rushie (209066) Mulvihill & Rushie LLC 4

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2424 East York Street, Suite 316 Philadelphia, PA 19125 Tel: (215) 385-5291 Fax: (215) 525-0909
Jordan@Fishtownlaw.com

Marc J. Randazza pro hac vice pending Randazza Legal Group 6525 W. Warm Springs Road Ste. 100 Las Vegas, NV 89118 888-667-1113
mjr@randazza.com

Dated: December 23, 2012

Attorneys for Defendant Rover Repairs of Collingdale, LLC

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Certificate of Service
I certify that on Sunday, December 23, 2012, a copy of this Motion for an Extension of Time was fled electronically with the Clerk of Court using the CM/ECF system. Notice of this fling will be sent to all counsel of record via the courts electronic fling system. /S/ _____________________________ A. Jordan Rushie

Case 2:12-cv-05036-AB Document 17 Filed 12/23/12 Page 12 of 15

Exhibit "A"

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"Wassom, Brian D." <BWassom@honigman.com> To: Jordan Rushie and 4 more RE: Land Rover v. Rover Repairs of Collingdale

December 22, 2012 10:44 PM

Marc, I'm sorry you feel that way. I've offered you as much accommodation as I have the authority to give. You are free to do with it what you will. The next time I expect to speak with my client (who is out of the office for the company-wide holiday shutdown) is this coming Friday morning. I should be in a position to further discuss settlement with you after that conversation. Best wishes for the holidays. Brian ________________________________________ From: Marc John Randazza [mjr@randazza.com] Sent: Saturday, December 22, 2012 4:37 PM To: Wassom, Brian D.; Kramer, Anessa Owen; Jordan Rushie; JSPollack@duanemorris.com; MAVoltchenko@duanemorris.com Subject: RE: Land Rover v. Rover Repairs of Collingdale Brian, You offer three business days (in between the holidays) for us to file a responsive pleading, and you think that is reasonable? You do realize that if we just sit back and wait for the court to rule, we'll get more time than that, right? Given your experience, I can't presume that you're a rookie who doesn't know what he's doing. I have to presume that you somehow think that this gives you a tactical advantage. Well, then I have to also presume a lot of negative things about your skills and your character. So I'll just presume that you mis-spoke, or maybe it was a typo. I'd prefer to believe anything other than you actually pulled out a calendar and said "yeah, that's reasonable." As far as my entry into the case helping both sides seal a deal goes, yes, that's always a possibility - provided you want to have a serious discussion. I'm sure that you "thought you were making progress" when putting the screws to a small business owner who was scared to death of a big multinational corporation suing him. He's defended now. He's a lot less scared than he was. The last offer that he said was on the table was that you wanted him to change the name of his shop, and you want $20,000 from him. I can see why you would call that "progress." I have a more colorful word for it. I fail to see where you got the notion that asking my client for $20,000 was reasonable. I find it quite unlikely that you are going to be able to get this case deemed to be an "exceptional case." The 1125(d) claim is not going to stick, because even if my client does not have the right to use the domain name at issue, my client had a good faith belief that he did. Drop the demand for $20,000 and we might have something to talk about. While we talk about it, you should keep in mind that my client has spent years building up his business under this name, and will need to spend a significant amount of money to re-brand. Your client has a public relations and advertising department. They can probably give you some guidance about what would be best -- for both parties. My client's maximum exposure in this case is injunctive relief. So, if we have something to talk about, it might be a stipulation to injunctive relief, or a settlement that gives you that injunctive relief, and the terms thereof. I don't even think you'll get that out of this case, if it goes forward, but in the interest of getting things settled, we're willing to talk about it -- after the holidays. ________________________________________

Marc John Randazza* Randazza Legal Group 6525 West Warm Springs Rd. Ste. 100 Las Vegas, Nevada 89118 Toll Free: 888-667-1113 email: mjr (at) randazza (dot) com eFax: 305.437.7662 Other Offices: Miami & Phoenix http://www.randazza.com ________________________________________ * Licensed in AZ, CA, FL, MA, and NV

Case 2:12-cv-05036-AB Document 17 Filed 12/23/12 Page 14 of 15

-------- Original Message -------Subject: RE: Land Rover v. Rover Repairs of Collingdale From: "Wassom, Brian D." <BWassom@honigman.com<mailto:BWassom@honigman.com>> Date: Fri, December 21, 2012 2:25 pm To: Marc John Randazza <mjr@randazza.com<mailto:mjr@randazza.com>>, "Kramer, Anessa Owen" <AKramer@honigman.com<mailto:AKramer@honigman.com>>, Jordan Rushie <jordan@fishtownlaw.com<mailto:jordan@fishtownlaw.com>>, "JSPollack@duanemorris.com<mailto:JSPollack@duanemorris.com>" <JSPollack@duanemorris.com<mailto:JSPollack@duanemorris.com>>, "MAVoltchenko@duanemorris.com<mailto:MAVoltchenko@duanemorris.com>" <MAVoltchenko@duanemorris.com<mailto:MAVoltchenko@duanemorris.com>> Marc; Ive managed to reach and discuss this with our client. We will consent to withdrawal of the motion and a responsive pleading deadline of 12/31, but we cannot go past that date. Under normal circumstances, we would gladly extend you the additional courtesy. But this case has already been languishing for months; neither the case nor the pleading are complicated; and we have an impending Rule 16 conference on 1/3 that we are not willing to postpone. Under these circumstances, we honestly dont think its onerous to ask you to have an answer on file by 12/31. Moreover, please note that weve been involved in settlement negotiations with your client for some time now, and had thought we were making progress toward a reasonable resolution. I remain optimistic that your entry into the case will help both sides seal a deal, rather than moving backwards into protracted litigation. If you have thoughts about how to get this case resolved, please let us know. Best wishes for the holidays. Brian From: Marc John Randazza [mailto:mjr@randazza.com] Sent: Friday, December 21, 2012 5:00 PM To: Kramer, Anessa Owen; Jordan Rushie; Wassom, Brian D.; JSPollack@duanemorris.com<mailto:JSPollack@duanemorris.com>; MAVoltchenko@duanemorris.com<mailto:MAVoltchenko@duanemorris.com> Subject: RE: Land Rover v. Rover Repairs of Collingdale Would you mind giving us a little more time than that, so we don't need to crank it over either christmas or the holiday break? Most of the people in my office have taken that week off, I've got fam coming in to town, etc. I was thinking January 10 would be reasonable. -------- Original Message -------Subject: RE: Land Rover v. Rover Repairs of Collingdale From: "Kramer, Anessa Owen" <AKramer@honigman.com<mailto:AKramer@honigman.com>> Date: Fri, December 21, 2012 1:50 pm To: Jordan Rushie <jordan@fishtownlaw.com<mailto:jordan@fishtownlaw.com>>, "Wassom, Brian D." <BWassom@honigman.com<mailto:BWassom@honigman.com>>, "JSPollack@duanemorris.com<mailto:JSPollack@duanemorris.com>" <JSPollack@duanemorris.com<mailto:JSPollack@duanemorris.com>>, "MAVoltchenko@duanemorris.com<mailto:MAVoltchenko@duanemorris.com>" <MAVoltchenko@duanemorris.com<mailto:MAVoltchenko@duanemorris.com>> Cc: Marc Randazza <mjr@randazza.com<mailto:mjr@randazza.com>> Mr. Rushdie, Thank you for your e-mail. We have not been able to reach our client to discuss this matter yet. If you do not hear from me to the contrary by 6 p.m. tonight, then please take that as our stipulation to allow you to strike the pending pro se motion, and to have our consent to file a responsive pleading on or before December 31. I am leaving the office shortly and will be out next week. Brian Wassom will be available next Wednesday-Friday. Please include him on your communications. Thank you. Very truly yours, Anessa Kramer Anessa Owen Kramer Honigman Miller Schwartz and Cohn akramer@honigman.com<mailto:akramer@honigman.com> 248-566-8406 From: Jordan Rushie [mailto:jordan@fishtownlaw.com] Sent: Friday, December 21, 2012 3:23 PM To: Kramer, Anessa Owen; Wassom, Brian D.; JSPollack@duanemorris.com<mailto:JSPollack@duanemorris.com>; MAVoltchenko@duanemorris.com<mailto:MAVoltchenko@duanemorris.com> Cc: Marc Randazza

Case 2:12-cv-05036-AB Document 17 Filed 12/23/12 Page 15 of 15

Subject: Land Rover v. Rover Repairs of Collingdale Dear Counsel: Please allow me to introduce myself. Me and my colleague Marc Randazza represent the defendant Rover Repairs of Collingdale in this action. We kindly ask you to stipulate to allowing us to strike the pro se motion to dismiss our client filed, and allow us time to file a responsive pleading. If that is acceptable, please let me know and I will send you a stipulation. Sincerely, ________________________________________ A. Jordan Rushie Mulvihill & Rushie LLC The Fishtown Lawyers 2424 E York Street, Suite 316 Philadelphia, PA 19125 Office: 215.385.LAW1(5291) Direct: 215.268.3978 eFax: 215.525.0909 www.fishtownlaw.com<http://www.fishtownlaw.com> ________________________________________ * Licensed in PA and NJ ********************************************************************* IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the Internal Revenue Service, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) was not intended or written to be used, and cannot be used, by any person for the purpose of (i) avoiding tax-related penalties or (ii) promoting, marketing or recommending to another person any transaction or matter addressed in this communication. ********************************************************************* Confidential: This electronic message and all contents contain information from the law firm of Honigman Miller Schwartz and Cohn LLP which may be privileged, confidential or otherwise protected from disclosure. The information is intended to be for the addressee only. If you are not the addressee, any disclosure, copy, distribution or use of the contents of this message is prohibited. If you have received this electronic message in error, please notify us immediately (313.465.7000) and destroy the original message and all copies. ********************************************************************* ********************************************************************* IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the Internal Revenue Service, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) was not intended or written to be used, and cannot be used, by any person for the purpose of (i) avoiding tax-related penalties or (ii) promoting, marketing or recommending to another person any transaction or matter addressed in this communication. ********************************************************************* Confidential: This electronic message and all contents contain information from the law firm of Honigman Miller Schwartz and Cohn LLP which may be privileged, confidential or otherwise protected from disclosure. The information is intended to be for the addressee only. If you are not the addressee, any disclosure, copy, distribution or use of the contents of this message is prohibited. If you have received this electronic message in error, please notify us immediately (313.465.7000) and destroy the original message and all copies. ********************************************************************* ********************************************************************* IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the Internal Revenue Service, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) was not intended or written to be used, and cannot be used, by any person for the purpose of (i) avoiding tax-related penalties or (ii) promoting, marketing or recommending to another person any transaction or matter addressed in this communication. ********************************************************************* Confidential: This electronic message and all contents contain information from the law firm of Honigman Miller Schwartz and Cohn LLP which may be privileged, confidential or otherwise protected from disclosure. The information is intended to be for the addressee only. If you are not the addressee, any disclosure, copy, distribution or use of the contents of this message is prohibited. If you have received this electronic message in error, please notify us immediately (313.465.7000) and destroy the original message and all copies. *********************************************************************