42 - Motion For Leave To File Sur-Reply

Case3:12-cv-05072-MMC Document42 Filed12/06/12 Page1 of 3
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18
WESLEY E. OVERSON (CA SBN 154737) [email protected] JENNIFER LEE TAYLOR (CA SBN 161368) [email protected] NATHAN B. SABRI (CA SBN 252216) [email protected] JULIA D. KRIPKE (CA SBN 267436) [email protected] MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105-2482 Telephone: 415.268.7000 Facsimile: 415.268.7522 Attorneys for Defendants RESTORATION HARDWARE, INC. and GARY FRIEDMAN UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION
EMECO INDUSTRIES, INC., Plaintiff, v. RESTORATION HARDWARE, INC., GARY FRIEDMAN, and Does 1-10, Defendants.
Case No. 3:12-cv-5072 MMC DEFENDANTS MOTION FOR ADMINISTRATIVE RELIEF TO FILE SURREPLY IN SUPPORT OF OPPOSITION TO PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION
19 20 21 22 23 24 25 26 27 28
DEFENDANTS MOTION FOR ADMINISTRATIVE RELIEF TO FILE SURREPLY CASE NO. 3:12-CV-5072 MMC sf-3225465
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Defendants seek leave to file the surreply attached hereto as Exhibit 1 and the supporting declaration of Hal Poret attached as Exhibit 2. This surreply is in support of Defendants Opposition to Plaintiffs Motion for Preliminary Injunction. In its reply brief, Plaintiff mischaracterizes both the survey of Mr. Hal Poret that Restoration Hardware submitted in opposition to the preliminary injunction motion and the legal framework in which it fits. These mischaracterizations confuse the issues and deserve a response. For example, Plaintiff mischaracterizes Mr. Porets survey in this case as a secondary meaning survey, and then argues that a secondary meaning survey is inapplicable to incontestable registered marks. In fact, Mr. Porets survey is a confusion survey, not a secondary meaning survey, and therefore is applicable to incontestable registered marks. Plaintiff also attached to its reply papers Mr. Porets testimony from a prior case to make it appear as if he has criticized the approach he used in this case, ignoring that the different marketplace conditions in the two cases necessitated different approaches. Defendants respectfully submit that a brief surreply is justified, and necessary to assist the Court in resolving Plaintiffs motion by correcting and clarifying the record. This Court has granted motions for leave to file surreplies in such situations. Toomey v. Nextel Commcns, Inc., Case No. C-03-2887 MMC, 2004 U.S. Dist. LEXIS 30793, at *2 (N.D. Cal. Sept. 23, 2004) (granting motion for leave to file surreply to address arguments raised for the first time in [defendants] reply, and purported misstatements of fact in [defendants] reply.); Sharper Image Corp. v. Consumers Union of United States, Inc., Case No. 03-4094 MMC, 2004 U.S. Dist. LEXIS 24484, at *2 n.1 (N. D. Cal. Feb. 23, 2004) (granting motion for leave to file surreply and considering to extent surreply responds to arguments raised for the first time in reply). Defendants request that the Court grant leave to file a brief surreply of five pages, supported by a similarly brief declaration from Mr. Poret responding to the attacks on his survey. Defendants sought Plaintiffs stipulation to the filing of a surreply and supporting declaration, but Plaintiffs counsel indicated that Plaintiff would oppose such request. (Declaration of Wesley E. Overson in Support of Defendants Motion for Leave to File Surreply 2.)
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Dated: December 6, 2012
MORRISON & FOERSTER LLP
By: /s/ Wesley E. Overson WESLEY E. OVERSON Attorneys for Defendants RESTORATION HARDWARE, INC. and GARY FRIEDMAN
Case3:12-cv-05072-MMC Document42-1 Filed12/06/12 Page1 of 7
EXHIBIT 1
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18
Case No. 3:12-cv-5072 MMC DEFENDANTS RESTORATION HARDWARE AND GARY FRIEDMANS SUR-REPLY TO PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION Date: Dec. 14, 2012 Time: 9:00 a.m. Ctrm: 7 Hon. Maxine M. Chesney
19 20 21 22 23 24 25 26 27 28
DEFENDANTS SUR-REPLY TO PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION CASE NO. 3:12-CV-5072 MMC sf-3220447
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
INTRODUCTION In its reply brief, Emeco mischaracterizes both the survey of Mr. Hal Poret that Restoration Hardware submitted in opposition to the preliminary injunction motion and the legal framework in which it fits. Mr. Poret surveyed for likelihood of confusion arising from the Restoration Hardware chair as it appeared in the Restoration Hardware catalog, and he found virtually none. Restoration Hardware submitted the survey to show that Emeco had failed to meet its burden on likelihood of confusion, an essential element of its claims that is separate and apart from the validity of the registrations. Contrary to Emecos reply brief, Restoration Hardware did not submit the Poret survey to challenge Emecos registrations validity for lack of secondary meaning. Restoration Hardware challenged the chair design registration because it is genericas admitted by Emecos own employees (Oppn at 2, 11) and shown by widespread industry use including third-party sales of identical chairs to the Navy.1 A challenge on the basis of genericness does not require a survey, and one is not required at the preliminary injunction stage to defeat Emecos motion.2
Emeco inexplicably claims that third-party suppliers of the exact same chair to the Navy are irrelevant. (Reply at 3 n.1.) Not only is there no Naval exception that would avoid a genericness conclusion where identical chairs are sold to the Navy, the claim is particularly puzzling because Emeco is simultaneously claiming it has trade dress rights due to its own sales to the U.S. Navy. Emecos citation of Anti-Monopoly, Inc. v. Gen. Mills Fun Grp., Inc., 684 F.2d 1316 (9th Cir. 1982), and Magic Wand, Inc. v. RDB, Inc., 940 F.2d 638 (Fed. Cir. 1991), is inapposite, as they address use of a word generically by a small part of the public or scattered consumers, which courts held were insufficient on their own to show genericness of a word mark. Restoration Hardware showed that identical and nearly identical chairs are on sale across the Internet, visible in restaurants and malls, and even sold to the Navyliteral Navy chairsby entities other than Emeco. Such widespread use in the industry is the very definition of generic trade dress. Walker & Zanger, Inc. v. Paragon Indus., Inc., 465 F. Supp. 2d 956, 962 (N.D. Cal. 2006) (trade dress generic if the product design is so common in the industry that it cannot be said to identify a particular source.) Emeco argues that serious litigants introduce surveys on genericness (Reply at 4-5), but cites no case that so requires. In fact, survey evidence is not required to show genericness, and courts regularly resolve the issue without looking to surveys. Van Well Nursery, Inc. v. Mony Life Ins. Co., 421 F. Supp. 2d 1321, 1331 (E.D. Wash. 2006) (survey evidence not required to resolve issues of genericness.); see also Kendall-Jackson Winery, Ltd. v. E. & J. Gallo Winery, 150 F.3d 1042, 1049 (9th Cir. 1998) (where particular design was used widely in the industry, it was generic); Walker, 465 F. Supp. 2d at 962-64 (finding plaintiffs product design trade dress generic based on general nature of claimed trade dress and common use in industry).
2
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
Emeco also criticizes the Poret survey as inadequate, attaching Mr. Porets testimony from another case to its reply brief and suggesting that the survey does not meet Mr. Porets own requirements for testing likelihood of confusion. As Mr. Poret explains in his supplemental declaration, the survey that Emeco cites tested likelihood of confusion at the point of sale in a case where the drink products were displayed side-by-side in a store. The design of that survey has no bearing here, where the products were offered for sale in the Restoration Hardware catalog and on the Restoration Hardware website, and never made it into any stores. ARGUMENT I. EMECO MISCHARACTERIZES THE PORET SURVEY.
Contrary to Emecos assertions, Mr. Poret did not conduct a secondary meaning survey, nor did Restoration Hardware rely on the Poret survey as suchthe survey is even titled Survey to Determine Whether There is a Likelihood That Consumers Who View the Restoration Hardware Naval Chair Will Confuse It or Associate It with Emecos Navy Chair. (Poret Decl. Ex. 1.) Nowhere in the report does Mr. Poret characterize his survey as one to test secondary meaning. Restoration Hardwares reference to Mr. Porets extremely low survey results in the secondary meaning portion of its brief was merely to surmise that the reason that Emeco did not submit a secondary meaning survey is that it knew that such a survey would not support a finding of secondary meaning. That reference cannot convert Mr. Porets survey on likelihood of confusion into a secondary meaning survey. Emecos argument that the Poret survey at best go[es] solely to secondary meaning (Reply at 1 (emphasis added)) is specious. II. THE PORET SURVEY APPLIED A SOUND METHODOLOGY TO TEST FOR LIKELIHOOD OF CONFUSION.
The Poret survey tested whether consumers are likely to confuse or associate Restoration Hardwares aluminum naval chair with Emecos Navy Chair. The survey was methodologically 24 sound; it showed images of Restoration Hardwares chair to Restoration Hardwares consumers 25 in settings that replicated both post-sale and point-of-sale marketplace conditions. Hansen 26 Beverage Co. v. Cytosport, Inc., Case No. CV 09-0031-VBF(AGRx), 2009 U.S. Dist. LEXIS 27 28
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
120508, at *39 (C.D. Cal. Nov. 4, 2009) (the proper universe to survey is composed of potential buyers of the junior users goods or services); Poret Decl. Ex. 1 at 3-9, 12.) When shown the chair alone, respondents were asked if they associated the overall appearance of the chair with any particular company or brand of chair. (Poret Decl. Ex. 1 at 3-5.) If they responded affirmatively, they were then asked which company or brand as well as why they gave that answer. (Id. at 5.) This question allowed respondents an opportunity to respond that they associated Restoration Hardwares chair with Emeco when seen outside the context of a Restoration Hardware catalog or website. (Id. at 5.) In other words, they were given an opportunity to connect Restoration Hardwares chair to Emeco even if they did not actually believe the chair shown was Emecos chair. (Id.). Nonetheless, the results remained inescapably lowMr. Poret concluded that there was only a negligible likelihood that the appearance of the Restoration Hardware chair will cause any association with Emecos Navy Chair. (Id. at 21.) Respondents were then shown two images from the Restoration Hardware catalog and were asked if they had an opinion about what company or brand makes the chair. (Id. at 8.) If they answered affirmatively, they were then asked which company or brand and the basis for their response. (Id. at 9.) Those who had initially responded that they had an opinion about the company or brand that makes the chair, but then did not name a specific company or brand, were then asked what made them answer that they had an opinion in the first instance. (Id.) All respondents were then asked if they believed the chair was affiliated with or authorized by any company or brand. (Id.) Those who responded affirmatively were asked to identify that company or brand and their reason for doing so, and those who did not identify a particular company or brand were asked what made them answer that they believed the chair was affiliated with or authorized by any company or brand. (Id.) Mr. Poret has done hundreds of likelihood of confusion surveys and this is a standard series of questions designed to test whether there is likelihood of confusion as to source, sponsorship, or affiliation based upon the look of the defendants products. (Poret Decl. Ex. 1 at 2; Poret Sur-Reply Decl. 7-9.) Emeco inexplicably disregards these questions and claims that the Poret survey solely tested secondary meaning. By misconstruing and even ignoring the
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Poret surveys findings and conclusions, Emeco seeks to obscure the reality: there is no likelihood of confusion between Restoration Hardwares chair and Emecos Navy Chair. Thus, Emeco is not likely to prevail on the merits.3 Moreover, Emecos criticism that the Poret survey fails to show Emeco and Restoration Hardwares chair side-by-side is misplaced. A key tenet underlying likelihood of confusion surveys is their need to replicate realistically the marketplace conditions in which the products are generally encountered. Walt Disney Prods. v. Air Pirates, 581 F.2d 751, 759 (9th Cir. 1978) (reversing summary judgment on trademark infringement claim for plaintiff as comparison of marks should not be a simple, visual, side-by-side comparison but rather the mark and the imitation should be viewed in light of what occurs in the marketplace, and context of respective marks markedly diminished likelihood of confusion) (quotation omitted). (Poret Sur-Reply Decl. 10.) In some situations, such as with handbags or energy drinks, which are often sold in the same store area or aisle, consumers encounter the plaintiffs and defendants products in close proximity, (e.g., Malletier v. Dooney & Bourke, Inc., 525 F. Supp. 2d 558, 574 (S.D.N.Y. 2007) (sequential line-up survey would better approximate[] marketplace conditions.); ECF No. 37-3 Ex. 11 at 7 (prior report of Hal Poret explaining sequential lineup appropriate where products commonly found on the shelf together in stores)), and it would make sense to show images of both parties products to test point-of-sale confusion. In Cytosport, Mr. Poret properly noted that it was appropriate to show respondents both parties products where the products could be found side-by-side on store shelves and the issue was point of sale confusion. (ECF No. 37-3 Ex. 11 at 8.) Emeco tries to shoehorn the facts here into a counterfeiting case so that it can argue in the alternative that it is not even required to demonstrate a likelihood of confusion. This is not a counterfeiting case. Counterfeiting is the act of producing or selling a product with a sham trademark . . . the most blatant and egregious form of passing off. J. McCarthy on Trademarks & Unfair Competition 25:10; see, e.g., Ubiquiti Networks, Inc. v. Kozumi USA Corp., Case No. C 12-2582 CW, 2012 U.S. Dist. LEXIS 85665, at *38-39 (N.D. Cal. June 20, 2012) (counterfeit products used design, hardware, and software identical to genuine product, as well as plaintiffs registered word mark, name, and corporate address). Restoration Hardware never represented that the chairs it was offering were Emeco chairs. (Oppn at 15.) At best, Emecos reply brief establishes that there are numerous sources for cheap chairs that look like the Emeco chairnot that the world is full of counterfeiters.
3
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Emeco grossly misconstrues Mr. Porets statements in Cytosport as a blanket indictment of surveys that do not show both parties products in close proximity. It was not, and his comments have no relevance where the same sales conditions are not present. Here, the Poret survey realistically replicated marketplace conditions by showing images of the chair from Restoration Hardwares actual catalog. Indeed, that is the only way that consumers currently can encounter the chair, as it is no longer shown on Restoration Hardwares website and it has never been available for sale in Restoration Hardwares stores. (Oppn at 4-5.) When the products are never sold side-by-side, or even in the same stores, it would be inappropriate to conduct the type of survey that Mr. Poret advocated for energy drinks in the Cytosport casein fact, had Mr. Poret made such a comparison, it would have weakened the evidentiary value, not strengthened it. See J. McCarthy on Trademarks & Unfair Competition 32:163 ([T]he closer the survey methods mirror the situation in which the ordinary person would encounter the trademark, the greater the evidentiary weight of the survey results.). Dated: December 6, 2012 MORRISON & FOERSTER LLP
By: /s/ Wesley E. Overson WESLEY E. OVERSON Attorneys for Defendants RESTORATION HARDWARE, INC. and GARY FRIEDMAN
EXHIBIT 2
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18
Case No. 3:12-cv-5072 MMC
SUR-REPLY DECLARATION OF HAL PORET
19 20 21 22 23 24 25 26 27 28
SUR-REPLY DECLARATION OF HAL PORET CASE NO. 3:12-CV-5072 MMC
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
I, Hal Poret, declare: 1. I am a Senior Vice President at ORC International. I previously submitted a
declaration, dated November 15, 2012, in connection with this proceeding. I incorporate that previous declaration here by reference. 2. As explained in my previous declaration, Restoration Hardware, Inc. (Restoration
Hardware) through its counsel at Morrison & Foerster LLP, retained me to design and conduct a survey to determine the extent to which, if at all, consumers who see the accused Restoration Hardware chair would confuse it with Emeco Industries, Inc.s (Emeco) Navy Chair or would otherwise associate it with Emecos Navy Chair. 3. The methodology and results of the survey I conducted are detailed in the Expert
Report of Hal Poret in Matter of Emeco Industries, Inc. v. Restoration Hardware, Inc. et al. (the Report). The Report is attached as Exhibit 1 to my previous declaration. 4. I have reviewed Emecos reply brief in support of its motion for a preliminary
injunction. That reply brief mischaracterizes the survey I conducted in connection with this case. Nowhere in the Report did I purport to conduct a secondary meaning survey. Nor do any of the conclusions in the Report discuss secondary meaning. The survey I conducted tested whether there is a likelihood that consumers who view Restoration Hardwares chair will confuse it or associate it with Emecos Navy Chair. Secondary meaning surveys typically show images of the plaintiffs trade dress to the plaintiffs consumers and ask respondents whether they associate the overall appearance of that trade dress with any particular company. This survey did not use this design. Rather, the survey showed images of the defendant Restoration Hardwares chair to the defendant Restoration Hardwares consumers and then asked respondents various questions about the source of the chair. 5. After the screening questions, respondents were shown Restoration Hardwares
chair alone and were asked if they associated the overall appearance of the chair with any particular company or brand of chair. If respondents answered affirmatively, they were then asked with which company or brand do they associate the overall look of the chair. Those who named a company or brand were asked what makes them associate the overall look of the chair
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
with that company or brand. Those who did not name a company or brand were instead asked why they answered that they associate the overall look of the chair with a particular company or brand of chair. This gave respondents an opportunity to express that they associate the look of the chair with Emecos Navy Chair even if they do not know the name Emeco or do not know of Navy Chair as a brand name. Thus, the survey did not assume that respondents would know the name Emeco or Navy Chair as a brand name. 6. The purpose of this initial series of questions was to test the extent to which
respondents would associate the look of the Restoration Hardware chair with Emeco or its Navy Chair, even when seen outside the context of a Restoration Hardware catalog or web page. These questions presented respondents with an opportunity to express that they associate the look of the chair with Emeco or its Navy Chair, whether or not they actually believed the chair shown was Emecos chair. For there to be any likelihood of confusion as to source, sponsorship, or affiliation, consumers must first associate Restoration Hardwares chair with Emecos chair. As I concluded in the Report, there is only a negligible likelihood that the appearance of the chair will cause an association with Emecos Navy Chair. 7. Respondents were then shown images of two pages from the Restoration Hardware
catalog and were asked questions to test for confusion. Specifically, respondents were asked if they had an opinion about what company or brand makes the chair shown in these images. Respondents who answered in the affirmative were then asked what company or brand they believe makes the chair. Those who named a company or brand were asked what makes them believe that the chair is made by that company or brand. Those who did not name a company or brand were instead asked what made them answer that they have an opinion about what company makes the chair. Again, this gave respondents an opportunity to express an opinion about the source of the chair even if they do not know the name Emeco or Navy Chair. Thus, the survey did not assume that respondents would know the name Emeco or Navy Chair as a brand name. 8. This is a standard series of questions designed to test whether there is a likelihood
of confusion as to source. As I concluded in the Report, there is only a negligible likelihood that
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
the Restoration Hardware chair will be confused with Emeco or its Navy Chair. 9. All respondents were next asked if they believe the chair shown is affiliated with
or authorized by any company or brand that they are aware of. Those who answered in the affirmative were next asked what other company or brand do they believe the chair is affiliated with or authorized by. Those who named a company or brand were asked what makes them believe the chair is affiliated with or authorized by that company or brand. Those who did not name a company or brand were asked what made them answer that they believe the chair is affiliated with or authorized by a company or brand that they are aware of. This is a standard series of questions designed to test whether there is a likelihood of confusion as to sponsorship or affiliation. The survey results support the conclusion that there is no likelihood of confusion as to affiliation or authorization between the Restoration Hardware chair and Emeco or its Navy Chair. 10. In its reply brief, Emeco criticizes the survey for failing to show both Emecos
chair and Restoration Hardwares chair such that consumers can compare them directly. This is an improper attack on the survey methodology. Likelihood of confusion surveys seek to replicate realistic marketplace conditions. In the present case, there is no reason to believe that consumers will view Restoration Hardwares catalog alongside or in close proximity to images of Emecos Navy Chair. In fact, showing respondents the actual Restoration Hardware catalog pages was an ideal replication of marketplace conditions. Because the Restoration Hardware chair is not in stores and has not been sold, the primary way consumers would see the chair is in the catalog (or on the website before its removal). Moreover, Emeco has argued that it will be harmed by distribution of the catalog containing images of the chair. Showing survey respondents the chair in the context of the catalog simulates the manner in which real consumers would encounter the product, and it directly tests a key scenario underlying Emecos infringement allegation in its motion for a preliminary injunction. 11. In its reply brief, Emeco cites a rebuttal report I submitted in connection with
CytoSport Inc. v. Vital Pharmaceutical, Inc., No. 2:08-cv-02632-JAM-GGH (ECF No. 195-13) (E.D. Cal. July 11, 2012). In that report, I pointed out that it was appropriate to show respondents both parties products where the products could be found side-by-side on store shelves and can
1
2 3 therefore be viewed in close proximity by consumers. But my statements in that rebuttal report were not a blanket critique of all likelihood of confusion surveys that do not show both parties' products. Rather, my critique was based on the specific facts of that case and the marketplace conditions in which consumers normally encountered the products at issue. Indeed, I have conducted many surveys applying the same format that I used here in the present case. I declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed by me this 6th day of December 2012 in S}ffb \1-o\\()l:few York.
6
7
8 9 10
11
Hal Poret
12
13
14
15
16
17 18
19 20 21 22 23 24
25
26
27
28
SUR-REPLY DECLARATION OF HAL PORET
CASE NO. 3:12-CV-5072MMC
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18
WESLEY E. OVERSON (CA SBN 154737) [email protected] JENNIFER LEE TAYLOR (CA SBN 161368) [email protected] NATHAN B. SABRI (CA SBN 252216) [email protected] JULIA D. KRIPKE (CA SBN 267436) [email protected] MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105-2482 Telephone: 415.268.7000 Facsimile: 415.268.7522 Attorneys for Defendants RESTORATION HARDWARE, INC., GARY FRIEDMAN UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION
Case No.
3:12-cv-05072 MMC
DECLARATION OF WESLEY E. OVERSON IN SUPPORT OF DEFENDANTS MOTION FOR ADMINISTRATIVE RELIEF TO FILE SURREPLY
19 20 21 22 23 24 25 26 27 28
DECLARATION OF WESLEY E. OVERSON IN SUPPORT OF REQUEST TO FILE SURREPLY CASE NO. 3:12-CV-05072 MMC sf-3226322
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
I, WESLEY E. OVERSON, declare as follows: 1. I am a partner in the law firm of Morrison & Foerster LLP, counsel for Restoration
Hardware, Inc. and Gary Friedman (Defendants). I am licensed to practice law in the State of California and admitted to practice before this Court. I have personal knowledge of the matters stated herein or understand them to be true from members of my litigation team. I make this declaration in support of Defendants Motion for Administrative Relief to File Surreply in Support of Opposition to Plaintiffs Motion for Preliminary Injunction. 2. I spoke to Plaintiffs counsel on December 4, 2012, to inquire whether Plaintiff
would stipulate to Defendants filing of a surreply and supplemental declaration. Counsel responded that Plaintiff would not so stipulate. I declare under penalty of perjury that the foregoing is true and correct. Executed this 6th day of December, 2012 at San Francisco, California. /s/ Wesley E. Overson Wesley E. Overson
DECLARATION OF WESLEY E. OVERSON IN SUPPORT OF REQUEST TO FILE SURREPLY CASE NO. 3:12-CV-05072 MMC sf-3226322
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Defendants. 19 20 21 22 23 24 25 26 27 28
[PROPOSED] ORDER GRANTING DEFENDANTS MOTION TO FILE SURREPLY CASE NO. 3:12-CV-5072 MMC sf-3226329
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION
EMECO INDUSTRIES, INC., Plaintiff, v. RESTORATION HARDWARE, INC., GARY FRIEDMAN, and Does 1-10,
Case No. 3:12-cv-5072 MMC [PROPOSED] ORDER GRANTING DEFENDANTS MOTION FOR ADMINISTRATIVE RELIEF TO FILE SURREPLY
1 2 3 4 5 6 7 8 9
Plaintiff filed a motion for administrative relief seeking leave to file a surreply to respond to criticisms of the survey of Mr. Hal Poret that Defendants submitted in opposition to the preliminary injunction motion and purported misstatements of fact in Plaintiffs reply. Defendants motion is GRANTED. The Court will consider the proposed surreply filed as Exhibit 1 and the supplemental declaration filed as Exhibit 2 to Defendants motion for administrative relief.
IT IS SO ORDERED. Dated: _______________________ ______________________________ Hon. Maxine M. Chesney United States District Judge
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
[PROPOSED] ORDER GRANTING DEFENDANTS MOTION TO FILE SURREPLY CASE NO. 3:12-CV-5072 MMC sf-3226329

42 - Motion For Leave To File Sur-Reply

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

42 - Motion For Leave To File Sur-Reply

Uploaded by

Copyright:

Available Formats

Case3:12-cv-05072-MMC Document42 Filed12/06/12 Page1 of 3

Case3:12-cv-05072-MMC Document42 Filed12/06/12 Page2 of 3

Case3:12-cv-05072-MMC Document42 Filed12/06/12 Page3 of 3

Dated: December 6, 2012

MORRISON & FOERSTER LLP

Case3:12-cv-05072-MMC Document42-1 Filed12/06/12 Page1 of 7

Case3:12-cv-05072-MMC Document42-1 Filed12/06/12 Page2 of 7

Case3:12-cv-05072-MMC Document42-1 Filed12/06/12 Page3 of 7

Case3:12-cv-05072-MMC Document42-1 Filed12/06/12 Page4 of 7

Case3:12-cv-05072-MMC Document42-1 Filed12/06/12 Page5 of 7

Case3:12-cv-05072-MMC Document42-1 Filed12/06/12 Page6 of 7

Case3:12-cv-05072-MMC Document42-1 Filed12/06/12 Page7 of 7

Case3:12-cv-05072-MMC Document42-2 Filed12/06/12 Page1 of 6

Case3:12-cv-05072-MMC Document42-2 Filed12/06/12 Page2 of 6

Case No. 3:12-cv-5072 MMC

SUR-REPLY DECLARATION OF HAL PORET

Case3:12-cv-05072-MMC Document42-2 Filed12/06/12 Page3 of 6

Case3:12-cv-05072-MMC Document42-2 Filed12/06/12 Page4 of 6

Case3:12-cv-05072-MMC Document42-2 Filed12/06/12 Page5 of 6

CASE NO. 3:12-CV-5072MMC

Case3:12-cv-05072-MMC Document42-3 Filed12/06/12 Page1 of 2

Case3:12-cv-05072-MMC Document42-3 Filed12/06/12 Page2 of 2

Case3:12-cv-05072-MMC Document42-4 Filed12/06/12 Page1 of 2

Case3:12-cv-05072-MMC Document42-4 Filed12/06/12 Page2 of 2

You might also like