`
`IN THE UNITED STATES PATENT AND TRADEMARK OFl*1L,‘i:
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`~/
`« /
`’ 7/ 770, 5 ff
`
`Soft Serve, Inc. d/b/a Sprinkles,
`
`Opposer/Petitioner,
`
`v.
`
`Sprinkles Cupcakes, Inc.,
`
`Applicant/Registrant.
`
`\y\y\/\/g/\/\/g/\y\J\/\./xy
`
`Opposition No. 91194188
`Opposition No. 91 195669
`Opposition No. 91195985
`Opposition No. 91195986
`Opposition No. 91 196035
`Opposition No. 91 196061
`Opposition No. 91196087
`
`Cancellation No: 92053109
`
`(as consolidated)
`
`SPRINKLES CUPCAKES’ REPORT RE
`
`.
`
`TERMINATED DISTRICT COURT PROCEEDING
`
`On March 4, 2011, the Board issued an Order consolidating and staying the above-
`
`referenced proceedings, and striking portions of the Notices of Opposition and Petition to Cancel.
`
`In the Order, the Board further directed defendant Sprinkles Cupcakes, Inc. (“Sprinkles”) to file
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`copies of the pleadings in the Eastern District of Pennsylvania case Ryan Mealey v. Sprinkles
`
`Cupcakes, Inc., as well as a report on the status of the case. The case has been terminated.
`
`Mealey was a declaratory judgment action, with a counterclaim by Sprinkles for
`
`infringement of its trademarks. The matter was resolved by settlement and stipulated injunction on
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`January 28, 2010, and terminated by Court Order on May 7, 2010. The Mealey case was
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`terminated months before Opposer/Petitioner Soft Serve, Inc. (“Soft Serve”) filed the Petition of
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`Cancellation referencing the case on September 30, 2010.
`CERTIFICATE OF MAILING
`UNDER 37 C.F.R. §2.190
`
`I hereby certify that this correspondence is being deposited with the United States
`Postal Service as first class mail in an envelope addressed to Trademark Trial and
`Appeal Board, U.S. Patent and Trademark Office, PO. Box 1451 Alexandria, VA
`22313-1451.
`
`Date of Deposit
`
`Jo Ann H lton
`Printed Name
`
`March 24 2011
`
`4265990_3
`
`mmmnnnmmnm
`U3-29-2011
`
`: =,(,H( .3, TMQP;/TN N511 Rcpt BL
`
`832
`
`
`
`In compliance with the Board’s Order, copies of the Complaint, Answer and Counterclaim,
`
`and Stipulated Injunction are attached as Exhibits A, B, and C, respectively. However, as the
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`Mealey case has been finally resolved, it would not give rise to a suspension in the present
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`consolidated proceeding. A copy of the Court Order tenninating the case is attached as Exhibit D.
`
`Dated: March 24, 20ll
`
`Respectfully Submitted,
`
`WILSON SONSINI GOODRICH & ROSATI
`Professional Corporation
`
`By:
`
`L. Slafsky
`
`Hollis Beth Hire
`
`fi
`
`.
`
`Attorneys for Applicant/Registrant
`Sprinkles Cupcakes, Inc.
`
`42o1559_1
`
`
`
`
`
`CERTIFICATE OF SERVICE BY MAIL
`
`I, J0 Ann Hylton, declare:
`
`I am employed in Santa Clara County.
`
`I am over the age of 18 years and not a party to the
`
`within action. My business address is Wilson Sonsini Goodrich & Rosati, 650 Page Mill Road,
`
`Palo Alto, California 94304-1050.
`
`I am readily familiar with Wilson Sonsini Goodrich & Rosati’s practice for collection and
`
`processing of correspondence for mailing with the United States Postal Service. In the ordinary
`
`course of business, correspondence would be deposited with the United States Postal Service on
`
`this date.
`
`On this date, I served:
`
`SPRINKLES CUPCAKES’ REPORT RE TERMINATED DISTRICT COURT
`PROCEEDING
`
`on each person listed below, by placing the document described above in an envelope addressed as
`
`indicated below, which I sealed.
`
`I placed the envelope for collection and mailing with the United
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`States Postal Service on this day, following ordinary business practices at Wilson Sonsini Goodrich
`
`& Rosati.
`
`Thomas J. Vande Sande
`
`Hall & Vande Sande, LLC
`_ 10220 River Road, Suite 200
`Potomac, Maryland 20854
`
`I declare under penalty of perjury under the laws of the State of California that the
`
`foregoing is true and correct. Executed at Palo Alto, California on March 24, 2011.
`
`/T
`
`Jo Ann Hylton
`
`4201559_1
`
`
`
`
`
`
`
`Case 2:O9—cv-O4048—MAM Document 1
`
`Filed 09/04/09 Page 1 of 8
`
`LAW OFFICES OF ERNEST SASSO
`
`By: Ernest Sasso, Esquire
`Pennsylvania Attorney Identification No. 34883
`2300 Computer Avenue, Suite M-69
`Willow Grove, Pennsylvania 19090-1745
`215-706-2000 [Telephone]
`215-598-0977 [Fax]
`<intllaw@ernestsasso.com> [E-Mail]
`
`Attorney for Plaintiffs RYAN MEALEY,
`MATTHEW MEALEY, and DAN MEALEY
`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE EASTERN DISTRICT OF PENNSYLVANIA
`
`RYAN MEALEY, MATTHEW MEALEY,
`and DAN MEALEY
`
`:
`'
`
`Plaintiffs,
`
`V.
`
`Civil Case No.
`
`SPRINKLES CUPCAKES, INC..
`
`Defendant.
`
`COMPLAINT FOR DECLARATORY JUDGMENT
`
`Plaintiffs, by and through their undersigned counsel, aver as follows:
`
`NATURE OF ACTION
`
`1.
`
`This is an action for declaratory judgment under the Federal Declaratory
`
`Judgment Act, 28 U.S.C. §§ 2201 and 2202.
`
`JURISDICTION AND VENUE
`
`2.
`
`This Court has subject matter jurisdiction over Plaintiffs’ federal claims pursuant
`
`to 15 U.S.C. § 1121, and 28 U.S.C. §§ 1331 and 1338 in that this Complaint raises federal
`
`questions arising under the Trademark Act of 1946, as amended (“Lanham Act”), 15 U.S.C. §
`
`
`
`
`Case 2:O9—cv-O4048—MAM Document 1
`
`Filed 09/04/09 Page 2 of 8
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`1051, et seq., and arising out of interstate commerce, 15 U.S.C. § 1127.
`
`3.
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`This Court has personal jurisdiction because Sprinkles Cupcakes, upon
`
`information and belief, conducts business in the Commonwealth of Pennsylvania, and has sold
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`products which are the subject of this action in this district.
`
`4.
`
`Venue is proper in this judicial district under 28 U.S.C. § l39l(b) and 1391(c).
`
`PARTIES
`
`5.
`
`Plaintiff Ryan Mealey, a natural person, is domiciled in the Commonwealth of
`
`Pennsylvania.
`
`6.
`
`Plaintiff Matthew Mealey, a natural person, is domiciled in the Commonwealth of
`
`Pennsylvania.
`
`7.
`
`Plaintiff Dan Mealey, a natural person, is domiciled in the Commonwealth of
`
`Pennsylvania.
`
`8.
`
`Plaintiffs Ryan Mealey and Matthew Mealey (collectively, “the Mealeys”) are
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`siblings, and are the children of Plaintiff Dan Mealey (collectively——in tandem with his
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`chi1dren——“the Plaintiffs”).
`
`10.
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`Defendant Sprinkles Cupcakes, Inc. (“Sprinkles Cupcakes” or “Defendant”) is a
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`California corporation with its principal place of business at 9635 Santa Monica Boulevard,
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`Beverly Hills, California 90210-4401.
`
`FACTS
`
`11.
`
`On June 19, 2009, the Mealeys opened the first of four frozen-yogurt stores under
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`the name of “Sprinkles Yogurt” in Cherry Hill, New Jersey. Plaintiffs expect to open their
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`second shop on or about September 10, 2009, in Philadelphia, near the University of
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`Pennsylvania campus; two more facilities are scheduled to open in the latter part of 2009 in West
`
`[2]
`
`
`
`Case 2:O9—cv—O4048-MAM Document 1
`
`Filed 09/04/09 Page 3 of 8
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`Chester and Malvern, Pennsylvania. The Mealeys further intend to open four additional frozen-
`
`yogurt stores in 2010.
`
`12.
`
`Concomitant with the opening of the New Jersey store on June 19, 2009, the
`
`Philadelphia Business Journal (“PBJ”) featured an article about the Mealeys’ venture entitled
`
`“Sibs seek to Sprinkles area with yogurt.” Throughout the article, the Mealeys’ store, Sprinkles
`
`Yogurt, was repeatedly shortened and referred to as “Sprinkles,” and not the proper name of
`
`“Sprinkles Yogurt.” The nomenclature of “Sprinkles” is solely the reporter’s term; throughout
`
`their interview with the PBJ staff writer, the Mealeys used the name “Sprinkles Yogurt” only to
`
`identify their new venture.
`
`13.
`
`Shortly after publication of the PBJ article, the Mealeys received a letter from
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`Hollis Beth Hire, an attorney at Wilson Sonsini Goodrich & Rosati (“Wilson Sonsini”), counsel
`
`to Sprinkles Cupcakes. A copy of that letter is attached as Exhibit A hereto. Ms. Hire claimed
`
`that her client "‘recently became aware that [the Mealeys] have adopted the name ‘Sprinkles’ for
`
`a chain of frozen yogurt stores.” In her letter, Ms. Hire repeatedly referred to her client, Sprinkles
`
`Cupcakes, as “Sprinkles,” and averred that “Sprinkles” owned three U.S. trademark registrations,
`
`which she identified by registration number and name.
`
`The trademark registrations referenced by Ms. Hire for Sprinkles Cupcakes—
`
`Registration Numbers 3271643 and 3250609———featured product and store images exclusively
`
`named “Sprinkles Cupcakes,” and incorporated an express disclaimer for use of the term
`
`“ ‘CUPCAKES’ apart from the mark as shown.”
`
`In her letter, Ms. Hire further claimed that Sprinkles Cupcakes was concerned that the
`
`Mealeys’ “adoption and use of the name ‘Sprinkles’ [wa]s likely to cause confusion among
`
`consumers who may believe that [the Mealeys] products and stores are offered by, associated
`
`[3]
`
`
`
`Case 2:O9—cv—04048—MAM Document 1
`
`Filed 09/04/09 Page 4 of 8
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`with, or approved by Sprinkles.” Ms. Hire requested that the Mealeys refrain from further use of
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`“the SPRINKLES name or mark or any other similar trademarks .
`
`.
`
`. [and that they] transition
`
`away from the SPRINKLES brand in connection with [the Mealeys’] business.”
`
`14.
`
`On July 23, 2009, the Mealeys’ undersigned attorney sent a letter to Ms. Hire in
`
`reply to her original communication. A copy of this letter is attached hereto as Exhibit B.
`
`Counsel’s reply set forth the contention that the Mealeys’ nomenclature for their frozen yogurt
`
`brand was dissimilar from, and would not cause confusion with the trademarks registered by Ms.
`
`Hire’s client, Sprinkles Cupcakes.
`
`15.
`
`On August 6, 2009, in reply to the undersigned counsel’s letter, Ms. Hire sent an
`
`e-mail communication repeating her client’s contention that the Mealeys’ “continued use of the
`
`SPRINKLES name or mark [wa]s likely to cause confusion” and would be violative of “the
`
`nation-wide [sicl trademark protection that Sprinkles’ federal registrations convey.” A copy of
`
`this communication is attached hereto as Exhibit C.
`
`Ms. Hire identified two additional U.S. trademark registrations putatively incorporating
`
`“the SPRINKLES mark,” and attached to her communication the PBJ article repeating the
`
`reporter’s assertion that the Mealeys’ “shops will be known .
`
`.
`
`. as .
`
`.
`
`. ‘Sprinkles.’” Claiming
`
`that the marks were “identical,” not merely “highly similar,” Ms. Hire averred that cupcakes and
`
`frozen yogurt “are highly related in the minds of consumers, as all are popular retail dessert
`
`items, even often found at the same location.” Ms. Hire reiterated her request that the Mealeys
`
`totally “transition away from the SPRINKLES brand in connection with their business.”
`
`16.
`
`On August 21, 2009, Plaintiffs, through their undersigned attorney, filed an
`
`Intent—to-Use (“ITU”) trademark Application (Serial Number 77810064) with the United States
`
`Patent and Trademark Office for the mark SPRINKLES YOGURT. With the opening of their
`
`[4]
`
`
`
`Case 2:09—cv—04048-MAM Document 1
`
`Filed 09/04/09 Page 5 of 8
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`first Pennsylvania facility, Plaintiffs intend to amend the ITU Application to reflect the interstate
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`venue of their retail store product(s) and services featuring frozen yogurt.
`
`17.
`
`Defendant’s claims and demands have created a reasonable apprehension of
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`litigation against Plaintiffs, and the Mealeys in particular, and have placed a cloud over the
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`Mealeys’ ability to use the term “Sprinkles” in connection with their business, as well as use of
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`the name “Sprinkles Yogurt” to identify their business.
`
`18.
`
`Plaintiffs intend to continue to devote substantial resources to the development
`
`and expansion of their frozen-yogurt stores. Defendant’s claims and demands impair their ability
`
`to carry on this business.
`
`19.
`
`An actual controversy thus exists between the parties based on Defendant’s
`
`claims and demands.
`
`20.
`
`So that they may continue to use the term “Sprinkles” and identify their store(s) as
`
`“Sprinkles Yogurt” without interference by Defendant, Plaintiffs, and the Mealeys in particular,
`
`desire to promptly resolve this controversy and establish that they are not infringing or otherwise
`
`violating any trademark rights of Defendant.
`
`COUNT I
`
`DECLARATION THAT PLAINTIFFS’ USE OF “SPRINKLES” AND
`
`“SPRINKLES YOGURT” DOES NOT CONSTITUTE INFRINGEMENT,
`UNFAIR COMPETITION, DILUTION, OR ANY OTHER TRADEMARK-BASED
`ACTION
`
`21.
`
`Plaintiffs reallege and incorporate by reference the allegations adumbrated in
`
`paragraphs 1 through 20 hereof as if set forth herein in full.
`
`22.
`
`Plaintiffs use of “Sprinkles” and “Sprinkles Yogurt” in connection with their
`
`product line, retail store services, and promotional material does not constitute infringement,
`
`unfair competition, dilution, or otherwise violate any right of Defendant under the Lanham Act,
`
`[5]
`
`
`
`
`
` i’7i’
`Case 2:09—cv—04048—MAM Document 1
`Filed 09/04/09 Page 6 of 8
`
`15 U.S.C. §§ 1114(1) or 1125.
`
`DEFENDANT ’S ALLEGED MARK “SPRINKLES” IS GENERIC, HAS NOT
`ACQUIRED DISTINCTIVENESS, AND THEREFORE IS NOT ENTITLED TO
`TRADEMARK PROTECTION
`
`COUNT II
`
`23.
`
`Plaintiffs reallege and incorporate by reference the allegations adumbrated in
`
`paragraphs 1 through 22 hereof as if set forth herein in full.
`
`24.
`
`The widespread use of “sprinkles” throughout the food industry, etc. establishes
`
`that the term refers to a topping or additive, and is thus clearly generic and not capable of
`
`’
`
`trademark protection. To afford trademark status to the generic name of a product or service-
`
`sprinkles—would prevent all other users of the product or service from identifying it.
`
`Pursuant to 15 U.S.C. § 1119, the United States Patent and Trademark Office should be
`
`directed to cancel Defendant’s registration of the “Sprinkles” mark—Registration Number
`
`3306772.
`
`DEFENDANT’S ALLEGED MARK “SPRINKLES” IS DESCRIPTIVE, HAS NOT
`ACQUIRED DISTINCTIVENESS, AND THEREFORE IS NOT ENTITLED TO
`TRADEMARK PROTECTION
`
`COUNT III
`
`25.
`
`Plaintiffs reallege and incorporate by reference the allegations adumbrated in
`
`paragraphs 1 through 24 hereof as if set forth herein in full.
`
`26.
`
`The widespread use of “sprinkles” throughout the food industry, etc. establishes
`
`that the term refers to a topping or additive, is merely descriptive, and thus not capable of
`
`trademark protection. On February 2, 2009, the United States Patent and Trademark Office
`
`disallowed registration of the mark SALAD SPRINKLES (Serial Number 77605554) on the
`
`grounds that the term “SALAD” “was merely descriptive of a food item which the applicant’s
`
`[6]
`
`
`
`Case 2:09-cv-04048-MAM Document 1
`
`Filed 09/04/09 Page 7 of 8
`
`goods are to be used,” and that the term “SPRINKLES” “was merely descriptive of how the
`
`goods are to be used, namely, as a topping for particular foods.”
`
`Pursuant to 15 U.S.C. § 1119, the United States Patent and Trademark Office should be
`
`directed to cancel Defendant’s registration of the “Sprinkles” mark—Registration Number
`
`3306772.
`
`ALTERNATIVELY, PLAINTIFFS’ USE OF “SPRINKLES” CONSTITUTES
`FAIR USE UNDER THE LANHAM ACT
`
`COUNT IV
`
`27.
`
`Plaintiffs reallege and incorporate by reference the allegations adumbrated in
`
`paragraphs 1 through 26 hereof as if set forth herein in full.
`
`28.
`
`Plaintiffs have not used the term “Sprinkles” as a trademark; their use of
`
`“Sprinkles Yogurt” is descriptive of, used fairly, correctly, and in good faith only to describe
`
`Plaintiffs’ product line and goods. Moreover, there is no likelihood of confusion concerning the
`
`origin of the competing products—Plaintiffs’ “Sprinkles Yogurt” and Defendant’s Sprinkles
`
`Cupcakes.
`
`29.
`
`Plaintiffs use of the term “Sprinkles” and “Sprinkles Yogurt” therefore constitutes
`
`a fair use under the Lanham Act, 15 U.S.C. §§ ll15(b)(4), barring Defendant’s claims of
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`trademark infringement and unfair competition.
`
`
`
`Case 2:09—cv-04048—MAM Document 1
`
`Filed 09/04/09 Page 8 of 8
`
`PRAYER FOR RELIEF
`
`WHEREFORE, Plaintiffs Ryan Mealey, Matthew Mealey, and Dan Mealey accordingly
`
`pray for judgment as follows:
`
`1. For a declaration that Plaintiffs’ use of the term “Sprinkles” and “Sprinkles Yogurt,”
`in connection with their product line and retail store services, does not violate the
`Lanham Act, 15 U.S.C. § 1125;
`
`2. For a declaration that Defendant’s trademark of “SPRINKLES” should be cancelled
`because its use of the common descriptive term “Sprinkles” for its cupcakes is
`generic and is thus not properly registerable as a trademark.
`
`3. For a declaration that Defendant’s trademark of “SPRINKLES” should be cancelled
`because its use of the common descriptive term “Sprinkles” for its cupcakes is merely
`descriptive and is thus not properly registerable as a trademark.
`
`4. For Plaintiffs’ attorneys’ fees;
`
`5. For Plaintiffs’ costs and disbursements in this action; and
`
`6. For such other and further equitable and legal relief as the court shall find just and
`proper.
`
`Respectfully submitted,
`
`LAW OFFICES OF ERNEST SASSO
`
`Dated: September 4, 2009
`
`By:
`
`Ernest Sasso
`
`M
`
`Attorney for Plaintiffs
`RYAN MEALEY, MATTHEW MEALEY,
`and DAN MEALEY
`
`
`
`
`
`TD
`
`‘J5 44 (M ,2/0,)
`
`Case 2:O9—cv—04048-BIN/lILD€fimE'fi
`
`09/04/09 Page 1 of 2
`
`' The JS 44‘civi1 cover sheet and the information contained herein neither re lace nor su plement the filing and service ofpleadings or other Eapers as re uired by law, except as provided
`by local rules of court. This fonn, approved by the Judicial Conference 0 the United tates in September 1974, is required for the use oft e Clerk of ourt for the purpose of initiating
`the Civil docket sheet.
`(SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)
`
`I. (a) PLAINTIFFS
`
`DEFENDANTS
`
`(b) County of Residence of First Listed Plaintiff Montgomery
`(EXCEPT IN U.S. PLAINTIFF CASES)
`
`L05 Angeles
`County of Residence of First Listed Defendant
`(IN US. PLAINTIFF CASES ONLY)
`IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE
`LAND INVOLVED.
`
`NOTE:
`
`(C) Attomey’s (Firm Name, Address, and Telephone Number)
`
`Attorneys (If KNOW")
`
`Law Offices of Ernest Sasso, 2300 Computer Avenue, Suite M-69,
`Willow Grove PA 19090-1745' 215 706-2000
`II.
`OF
`(Place an “X” in One Box Only)
`
`III.
`
`Hollis Beth Hire, Esq., Wilson Sonsini Goodrich & Rosati, 650
`Page Mill Road. Palo Alto. CA 94304-1050
`OF
`PARTIES(Place an “X" in One Box for Plaintiff
`(For Diversity Cases Only)
`and One Box for Defendant)
`PTF
`PTF
`DEF
`D 1
`D 4
`D 4
`
`DEF
`D 1
`
`Incorporated or Principal Place
`of Business In This State
`
`Citizen of This State
`
`Citizen of Another State
`
`D 2
`
`D 2
`
`Citizen or Subject ofa
`Forein Count
`
`D 3
`
`D 3
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`Incorporated and Principal Place
`of Business In Another State
`Foreign Nation
`
`D 5
`
`D 5
`
`D 6
`
`D 6
`
`D 1
`
`U.S. Government
`Plaintiff
`
`8 3 Federal Question
`(US. Government Not a Party)
`
`D 2 U.S. Government
`Defendant
`
`‘
`D 4 Diversity
`(Indicate Citizenship of Parties in Item III)
`
`IV.
`
`Place an “X” in One Box Onl
`
`
`
`'
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`
`
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`
`
`
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`
`PERSONAL INJURY
`PERSONAL INJURY
`D l 10 Insurance
`D 422 Appeal 28 USC 158
`D 610 Agriculture
`D 362 Personal Injury -
`D 310 Airplane
`D 120 Marine
`D 423 Withdrawal
`D 620 Other Food & Drug
`Med. Malpractice
`D 315 Airplane Product
`D 130 Miller Act
`28 USC 157
`D 625 Drug Related Seizure
`D 365 Personal Injury -
`Liability
`D 140 Negotiable lnstniment
`of Property 21 USC 881
`
`Product Liability
`D 150 Recovery of Overpayment D 320 Assault, Libel &
`D 630 Liquor Laws
`
`D 368 Asbestos Personal
`&Enforceinent ofJudgment
`Slander
`D 640 RR. & Truck
`D 820 Copyrights
`Injury Product
`D 151 Medicare Act
`D 330 Federal Employers’
`D 650 Airline Regs.
`D 830 Patent
`Liability
`D 152 Recovery of Defaulted
`Liability
`N 840 Trademark
`D 660 Occupational
`
`PERSONAL PROPERTY
`Student Loans
`D 340 Marine
`Safety/Health
`(Excl. Veterans)
`D 345 Marine Product
`D 370 Other Fraud
`D 690 Other
`
`Liability
`D 371 Truth in Lending
`,
`D 153 Recovery of Overpayment
`
`D 350 Motor Vehicle
`D 380 Other Personal
`D 710 Fair Labor Standards
`D 861 I-IIA (1395ff)
`of Veteran’s Benefits
`
`
`
`D 355 Motor Vehicle
`Property Damage
`Act
`D 862 Black Lung (923)
`D 160 Stockholders’ Suits
`D 720 Labor/Mgmt. Relations
`D 190 Other Contract
`Product Liability
`D 385 Property Damage
`D 863 DIWC/DIWW (405(g))
`
`
`
`D 195 Contract Product Liability D 360 Other Personal
`D 730 Labor/Mgmt.Reporting
`Product Liability
`D 864 SSID Title XVI
`U
`D 865 RSI 405 ;
`D 1% Franchise
`In'
`& Disclosure Act
`
`FEDERAL ‘TAX SUITS
`
`D 740 Railway Labor Act
`D 870 Taxes (U.S. Plaintiff
`D 510 Motions to Vacate
`D 790 Other Labor Litigation
`D 210 Land Condemnation
`D 441 Voting
`
`D 220 Foreclosure
`D 442 Employment
`Sentence
`D 791 Empl. Ret. Inc.
`or Defendant)
`Security Act
`D 871 IRS4"I1iird Pany
`D 230 Rent Lease & Ejectrnent
`D 443 Housing/
`Habeas Corpus:
`
`26 USC 7609
`D 240 Torts to Land
`Accommodations
`D 530 General
`
`D 245 Tort Product Liability
`D 444 Welfare
`D 535 Death Penalty
`D 290 All Other Real Property
`D 445 Amer‘ w/Disabilities — D 540 Mandamus & Other
`i 462 Naturalization Application
`Employment
`D 550 Civil Rights
`D 463 Habeas Corpus -
`D 446 Amer. w/Disabilities -
`555 Prison Condition
`Alien Detainee
`
`D 465 Other Immigration
`Other
`D 440 Other Civil Rights
`Actions
`
`
`
`
`DD D
`
`400 State Reapportionment
`410 Antitrust
`430 Banks and Banking
`450 Commerce
`460 Deportation
`470 Racketeer Influenced and
`Corrupt Organizations
`D 480 Consumer Credit
`D 490 Cable/Sat TV
`D 810 Selective Service
`850 Securities/Cominodities/
`Exchange
`D 875 Customer Challenge
`12 USC 3410
`D 890 Other Statutory Actions
`D 891 Agricultural Acts
`D 892 Economic Stabilization Act
`
`DDD
`
`D 893 Environmental Matters
`D 894 Energy Allocation Act
`D 895 Freedom of Information
`Act
`D 900Appeal of Fee Detennination
`Under Equal Access
`to Justice
`D 950 Constitutionality of
`State Statutes
`
`
`
`
`
`
`
`
`AP Cal to District
`5 Trmfifergfd f.“t’m ‘ El 6 Multidistrict
`El 7
`‘[311 3° frotm
`Jud ment
`amt Fr 15"”
`Litigation
`agls fa C
`
`
`Cjltgthj Stfitjlitea dgqlo grgtaigfgtérésdictional statutes unless diversity):
`Brief descri
`tion of cause:
`Deciara ory Judgment T01‘ Non-infringement OT Irademark
`
`
`
`VI. CAUSE OF ACTION
`
`
`
`
`
`VII. REQUESTED IN
`COMPLAINT:
`
`Cl CHECK IF THIS IS A CLASS ACTION
`UNDER F-R-C-P 23
`
`DEMAND $
`
`CHECK YES only if demanded in complaint:
`JURY DEMAND:
`D Yes
`D No
`
`VIII. RELATED CASE(S)
`IF ANY
`
`‘
`_
`_
`S
`‘ e°'"5‘”‘°“°"S)'
`
`DATE
`
`JUDGE
`SIGNATURE OF ATTORNEY OF RECORD
`
`DOCKET NUMBER
`
`09/04/2009
`
`FOR OFFICE USE ONLY
`
`RECEIPT #
`
`MAG. JUDGE
`JUDGE
`‘
`APPLYING IFP
`AMOUNT
`_T__
`
`
`
`V.
`8 1 Original
`Proceeding
`
`
`(Place an “X” in One Box Only)
`CI 2 Removed from
`El
`State Court
`
`3 Remanded from
`Appellate Court
`
`El 4 Reinstated or Cl
`Reopened
`
`
`
`
`
`
`
`
`JS 44 Reverse (Rev. I2/07)
`I
`
`I
`
`Case 2:09-cv—04048—MAM Document 1-1
`
`Filed 09/04/09 Page 2 of 2
`
`INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44
`
`Authority For Civil Cover Sheet
`
`The J S 44 civil cover-sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as required
`by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use
`of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint
`filed. The attorney filing a case should complete the form as follows:
`
`(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use only
`I.
`the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, giving
`both name and title.
`
`(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the time
`offiling. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time offiling. (NOTE: In land condemnation cases,
`the county of residence of the “defendant" is the location of the tract of land involved.)
`
`(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting
`in this section “(see attachment)”.
`
`Jurisdiction. The basis ofjurisdiction is set forth under Rule 8(a), F.R.C.P., which requires thatjurisdictions be shown in pleadings. Place an “X” in one
`II.
`ofthe boxes. Ifthere is more than one basis ofjurisdiction, precedence is given in the order shown below.
`
`United States plaintiff. (l) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.
`
`United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an “X” in this box.
`
`(3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment to the
`Federal question.
`Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, and box
`I or 2 should be marked.
`
`Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship of the
`different parties must be checked.
`(See Section III below; federal question actions take precedence over diversity cases.)
`
`Residence (citizenship) of Principal Parties. This section ofthe JS 44 is to be completed ifdiversity ofcitizenship was indicated above. Mark this section
`III.
`for each principal party.
`
`Nature of Suit. Place an “X" in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is sufficient
`IV.
`to enable the deputy clerk or the statistical clerks in the Administrative Office to determine the nature of suit. If the cause fits more than one nature of suit, select
`the most definitive.
`
`V.
`
`Origin. Place an "X” in one ofthe seven boxes.
`
`Original Proceedings.
`
`(1) Cases which originate in the United States district courts.
`
`Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441. When the petition
`for removal is granted, check this box.
`
`Remanded from Appellate Court.
`
`(3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date.
`
`Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.
`
`Transferred from Another District.
`litigation transfers.
`
`(5) For cases transferred under Title 28 U.S.C. Section l404(a). Do not use this for within district transfers or multidistrict
`
`Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407. When this box
`is checked, do not check (5) above.
`
`Appeal to District Judge from Magistrate Judgment. (7) Check this box for an appeal from a magistrate judge’s decision.
`
`Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not citejurisdictional statutes
`VI.
`unless diversity.
`Example:
`U._S. Civil S_tat_ute: 47 USC 553
`_
`_
`Brief Description: Ilnautfiorized reception of cable service
`
`VII.
`
`Requested in Complaint. Class Action. Place an "X” in this box ifyou are filing a class action under Rule 23, F.R.Cv.P.
`
`Demand.
`
`In this space enter the dollar amount (in thousands of dollars) being demanded or indicate other demand such as a preliminary injunction.
`
`Jury Demand. Check the appropriate box to indicate whether or not ajury is being demanded.
`
`VIII. Related Cases. This section of the J S 44 is used to reference related pending cases if any. If there are related pending cases, insert the docket numbers
`and the corresponding judge names for such cases.
`
`Date and Attorney Signature. Date and sign the civil cover sheet.
`
`
`
`Case 2:09-cv-04048—MAM Document 1-2
`
`Filed 09/04/09 Page 1 of 2
`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE EASTERN DISTRICT OF PENNSYLVANIA
`
`CASE MANAGEMENT TRACK DESIGNATION FORM
`
`RYAN MEALEY, MATTHEW MEALEY,
`and DAN MEALEY
`
`Plaintiffs,
`
`v.
`
`:
`:
`
`CIVIL ACTION NO.
`
`SPRINKLES CUPCAKES, INC.
`Defendant.
`
`In accordance with the Civil Justice Expense and Delay Reduction Plan of this court, counsel for
`plaintiff shall complete a Case Management Track Designation Form in all civil cases at the time of
`filing the complaint and serve a copy on all defendants.
`(See § 1:03 of the plan set forth on the
`reverse side of this form.)
`In the event that a defendant does not agree with the plaintiff regarding
`said designation, that defendant shall, with its first appearance, submit to the clerk of court and serve
`on the plaintiff and all other parties, a Case Management Track Designation Form specifying the
`track to which that defendant believes the case should be assigned.
`
`SELECT ONE OF THE FOLLOWING CASE MANAGEMENT TRACKS:
`
`(a) Habeas Corpus — Cases brought under 28 U.S.C. § 2241 through § 2255.
`
`(b) Social Security — Cases requesting review of a decision of the Secretary of Health
`and Human Services denying plaintiff Social Security Benefits.
`
`(c) Arbitration — Cases required to be designated for arbitration under Local Civil Rule 53.2.
`
`(cl) Asbestos — Cases involving claims for personal injury or property damage from
`exposure to asbestos.
`
`(e) Special Management — Cases that do not fall into tracks (a) through (d) that are
`commonly referred to as complex and that need special or intense management by
`the court. (See reverse side of this form for a detailed explanation of special
`management cases.)
`
`(t) Standard Management — Cases that do not fall into any one of the other tracks.
`
`(
`
`(
`
`(
`
`(
`
`)
`
`)
`
`)
`
`)
`
`(
`
`)
`
`( X)
`
`September 4, 2009
`Date
`
`(215) 706-2000
`Telephone
`
`Ernest Sasso
`Attorney-at-law
`
`(215) 598-0977
`FAX Number
`
`Plaintiffs
`Attorney for
`
`int||aw@ernestsasso.com
`E-Mail Address
`
`(Civ. 660) 10/02
`
`
`
`Case 2:09—cv—04048-MAM Document 1-2
`
`Filed 09/04/09 Page 2 of 2
`
`Civil Justice Expense and Delay Reduction Plan (
`Section 1:03 - Assignment to a Management Track
`
`(a)
`
`The clerk of court will assign cases to tracks (a) through (d) based on the initial pleading.
`
`In all cases not appropriate for assignment by the clerk of court to tracks (a) through (d), the
`(b)
`plaintiff shall submit to the clerk of court and serve with the complaint on all defendants a case management
`track designation form specifying that the plaintiff believes the case requires Standard Management or Special
`Management. In the event that a defendant does not agree with the plaintiff regarding said designation, that
`defendant shall, with its first appearance, submit to the clerk of court and serve on the plaintiff and all other
`parties, a case management track designation form specifying the track to which that defendant believes the
`case should be assigned.
`9
`
`The court may, on its own initiative or upon the request of any party, change the track
`(c)
`assignment of any case at any time.
`
`Nothing in this Plan is intended to abrogate or limit a judicial officer's authority in any case
`(d)
`pending before that judicial officer, to direct pretrial and trial proceedings that are more stringent than those
`of the Plan and that are designed to accomplish cost and delay reduction.
`
`Nothing in this Plan is intended to supersede Local Civil Rules 40.1 and 72.1, or the
`(e)
`procedure for random assignment of Habeas Corpus and Social Security cases referred to magistrate judges of
`the court.
`
`SPECIAL MANAGEMENT CASE ASSIGNMENTS
`
`(See §1.02 (e) Management Track Definitions of the
`Civil Justice Expense and Delay Reduction Plan)
`
`Special Management cases will usually include that class of cases commonly referred to as "complex
`litigation" as that term has been used in the Manuals for Complex Litigation. The first manual was prepared
`in 1969 and the Manual for Complex Litigation Second, MCL 2d was prepared in 1985. This term is
`intended to include cases that present unusual problems and require extraordinary treatment. See §O.1 of the
`first manual. Cases may require special or intense management by the court due to one or more of the
`following factors: (1) large number of parties; (2) large number of claims or defenses; (3) complex factual
`issues; (4) large volume of evidence; (5) problems locating or preserving evidence; (6) extensive discovery;
`(7) exceptionally long time needed to prepare for disposition; (8) decision needed within an exceptionally
`short time; and (9) need to decide preliminary issues before final disposition. It may include two or more
`related cases. Complex litigation typically includes such cases as antitrust cases; cases involving a large
`number of parties or an unincorporated association of large membership; cases involving requests for
`injunctive relief affecting the operation of large business entities; patent cases; copyright and trademark cases;
`common disaster cases such as those arising from aircraft crashes or m
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