UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(PHILADELPHIA)
Strick Corporation,
plaintiff
v.
James B. Strickland,
defendant
Civil action no. 00-CV-3343
JUDGE BRUCE W. KAUFFMAN
REPLY TO STRICK CORPORATION'S MOTION TO DISMISS DEFAMATION CLAIM
Plaintiff Strick Corporation ("SC") has filed a Reply to Defendant's Answer to Plaintiff's Motion to Dismiss Counts and Motion and Memorandum to Dismiss Defamation Claim Pursuant to Fed.R.Civ.P. 12(c), court docket no. 23, which follows papers 20 and 21.
SC's motion to dismiss with prejudice the majority of its causes of action (trademark infringement, unjust enrichment, and cybersquatting) is unopposed; there is no question that these causes of action, should be dismissed from SC's Amended Complaint. The baseless allegations made to support them should likewise be stricken from the Amended Complaint. Defendant James B. Strickland ("Mr. Strickland") likewise consents, in the interests of judicial economy, to the dismissal with prejudice of his defamation counterclaim on the grounds that the statute of limitations applicable thereto has passed.
What remains is SC's continued effort to deny Mr. Strickland his requested summary judgments that he has not infringed trademarks, unjustly enriched himself, and cybersquatted. SC would have this Court believe that these requests for judgment are moot, but they are not; there is an actual case and controversy before this Court as to these causes of action. The absence of improper conduct by Mr. Strickland, and the falsity of SC's past accusations, form important elements of counterclaim count X, unfair competition by plaintiff, count XI, prima facie tort, count XII, replevin and quieting of title, and count XIII, cancellation of federal trademark registration for misuse by SC. It is requested that this Court grant summary judgment as to these matters.
A proposed Order is attached.
Dated December 15, 2000.
________________________
Carl Oppedahl
Admitted pro hac vice on October 12, 2000
Oppedahl & Larson LLP
P O Box 5088
Dillon, CO 80435-5088
Telephone 970-468-6600
Email: oppedahl@patents.com
Certificate of Service
I hereby certify that this paper has been served upon plaintiff, Strick Corp., by its attorneys:
Arthur H. Seidel, Esq.
Seidel, Gonda, Lavorgna & Monaco, P.C.
Two Penn Center Plaza #1800
Philadelphia, PA 19102-1786
by Federal Express, airbill number 7909 0209 7626 upon Mr. Seidel, this 15th day of December, 2000, and by fax at 215-568-5549 this 15th day of December, 2000.
___________________________
UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF PENNSYLVANIA
(PHILADELPHIA)
Strick Corporation,
plaintiff
Civil action no. 00-CV-3343
v.
JUDGE BRUCE W. KAUFFMAN
James B. Strickland,
defendant
ORDER
Upon consideration of Plaintiff Strick Corporation's Motion and Memorandum to Dismiss and subsequent papers (including court docket nos. 20, 21, and 23), it is ORDERED:
that Counts I (false designation of origin, Lanham Act section 43(a)), III (trademark infringement, Lanham Act section 32), IV (Anticybersquatting Consumer Protection Act, Lanham Act section 43(d), VII (common-law trademark infringement), and VIII (unjust enrichment) of Strick Corporation's Amended Complaint (court docket no. 4) are dismissed with prejudice;
that Count V of Strick Corporation's Amended Complaint (court docket no. 4) is dismissed with prejudice insofar as it relates to trademark infringement; and
that James B. Strickland's Motion for Summary Judgment and to Exclude (court docket no. 15) is granted in part, namely:
it is adjudged that Mr. Strickland has not engaged in and is not liable for trademark infringement, whether under Lanham Act Section 32 or 43(a), under state trademark law, or under common-law trademark law;
it is adjudged that Mr. Strickland has not violated and is not liable under the Anticybersquatting Consumer Protection Act, Lanham Act Section 43(d);
it is adjudged that Mr. Strickland has not engaged in and is not liable for unjust enrichment.
The portions of James B. Strickland's Motion for Summary Judgment and to Exclude (court docket no. 15) not granted by this Order shall proceed with briefing consistent with this Court's order of November 29, 2000, court docket no. 16.
Count IX (defamation) of Defendant's Answer and Counterclaims (court docket no. 7) is hereby dismissed with prejudice on the grounds that the statute of limitations applicable thereto has passed.
Ordered this __________ day of _________, ______.
By the Court:
______________________________
Judge Bruce W. Kauffman
United States District Judge