Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA390704
`ESTTA Tracking number:
`01/28/2011
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91195895
`Defendant
`Wampler's Farm Sausage Company, Inc.
`JAMES C. WRIGHT
`BUTLER, VINES & BABB, PLLC
`2701 KINGSTON PIKE, P.O. BOX 2649
`KNOXVILLE, TN 37919-4619
`UNITED STATES
`jwright@bvblaw.com
`Other Motions/Papers
`James C. Wright
`jwright@bvblaw.com, pdavis@bvblaw.com
`/s/ James C. Wright
`01/28/2011
`Wamp Motion.pdf ( 3 pages )(133886 bytes )
`JCW Affidavit.pdf ( 2 pages )(68149 bytes )
`
`Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
`
`
`ESTTA390704
`ESTTA Tracking number:
`01/28/2011
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91195895
`Defendant
`Wampler's Farm Sausage Company, Inc.
`JAMES C. WRIGHT
`BUTLER, VINES & BABB, PLLC
`2701 KINGSTON PIKE, P.O. BOX 2649
`KNOXVILLE, TN 37919-4619
`UNITED STATES
`jwright@bvblaw.com
`Other Motions/Papers
`James C. Wright
`jwright@bvblaw.com, pdavis@bvblaw.com
`/s/ James C. Wright
`01/28/2011
`Wamp Motion.pdf ( 3 pages )(133886 bytes )
`JCW Affidavit.pdf ( 2 pages )(68149 bytes )
`
`Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
`
`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE
`
`TRADEMARK TRIAL AND APPEAL BOARD
`
`SF INVESTMENTS, INC.,
`
`Opposer,
`
`v.
`WAMPLER’S FARM SAUSAGE
`
`COMPANY, INC,
`
`Applicant.
`
`)
`
`5
`i
`3
`
`)
`
`3
`
`Opp. ‘No. 91195895
`
`Motion to Withdraw Any Effective Admission
`
`Applicant respectfully submits that it filed and served responses to Opposer’s
`
`First Set of Requests for Admission on December 30, 2010.
`
`"Comes the Applicant and moves to withdraw its effective admissions pursuant
`
`to Federal Rule of Civil Procedure 36. Opposer SF Investments, Inc/s. (”Opp‘oser”) First
`
`Set of Requests for Admission were filed November 22, 2010. Under Rule 86, Opp0se1‘.’s
`
`Requests for Admission were to be admitted if no response was served within 30 days
`
`of service, or by December 22, 2010. Applicant's Responses to Opposer’s First Set of
`
`Requests for Admission were filed December 30, 2010.. This was a delay of only 8 days.
`
`Applicant's delay in filing was the result of excusable neglect, as set forth in the
`
`affidavit attached hereto and no prejudice was caused by this delay.
`
`Rule 36(b) of the Federal Rules of Civil Procedure provides the court may permit
`
`withdrawal or amendment when the presentation of the merits of the action will be subservcd
`
`thereby and the party who obtains the admissions fails to satisfy the court that withdrawal or
`
`amendment will prejudice him in maintaining his action or defense on the merits. While
`
`
`
`Rule 36(a) is designed. to facilitate proof and speed trial, but where the failure to timely respond
`
`to a request for admissions has a harsh result, Rule 3603) provides a method for obtaining relief.
`
`EEO-C v. Baby Products Co., Inc., 89 F.R.D. 12.9 (E.D‘. Mi. 1981). The notes of the Advisory
`
`Committee on Rules state that Rule 36(b) emphasizes the importance of having the action
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`resolved on the merits, while at the same time assuring each party that justified reliance. on the
`
`admission in preparation for trial will not operate to his prejudice. Hobie Designs Inc. v. Fred
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`Havinan Beverly Hills Inc. 14 U.S.P.Q.2d 2064 (1990).
`
`Specifically, Rule 36(b) states:
`
`[T]l1e court may permit withdrawal or amendment if it would promote the presentation
`of the merits of the action and if the court is not persuaded that it would prejudice the
`requesting party in maintaining or defending the action on the merits.
`
`The determination of whether a case of neglect was excusable is at ‘bottom. an equitable one,
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`taking account of all relevant circumstances surrounding the party's omission, including: danger
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`ofprejudice to the non~moving party, length ofthe delay and its impact on judicial proceedings,
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`the reason for the delay, including whether it was within the reasonable control of the movant,
`
`and whether the movant acted in good faith. Tu1‘11e1‘v.. City of Taylo.r,412 F.3d 629 (6th Cir.
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`2005). In the p.resent action, the delay resulted from inclement Weather and other circumstances
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`which either required. immediate attention away from the office or resulted in short staffing.
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`Further, no prejudice has occurred as a result of this delay. The discovery period has not
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`closed. And the parties have conducted no discovery in the interim. In the present. action, the
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`short delay of a few days in filing a -response has resulted in no prejudice to Qpposer.
`
`WI-IEREFORE, Applicant respectfully moves for its effective admissions to be
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`withdrawn such that this matter maybe resolved upon the merits of the case at hand.
`
`
`
`
`
`Attorneys for Applicant, Wa1npler’s
`Farm Sausage C0,, Inc.
`2701 Kingston Pike
`P.O. Box 2649
`
`Knoxville, TN 87901~2649
`(865) 6376531
`
`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that a true and exact Copy of the foregoing
`pleading has been served upon the following by hand delivery or by placing same in
`the United States Mail, first—class postage to carry same to its olestination.
`
`Jeffrey A. Porter
`Carl II. Pierce
`
`2500 One Liberty Place
`1650 Market St.
`
`Philadelphia, PA 19103-7801
`
`This 275 dayof
`
`.
`
`,2o11.
`
`BUTLER, VINES & BABE, PLLC
`
`489-'14/82
`\\BVBLAW2\CPSHARE\CFWIN\Hiatory\101206,_0.001\3A174.52
`
`
`
`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE
`
`TRADEMARK TRIAL AND APPEAL BOARD
`
`SF INVESTMENTS, INC,
`
`Opp oser,
`
`V.
`
`WAl\/lPLER’S FARM SAUSAGE
`
`COMPANY, INC,
`
`Applicant.
`
`\/\/\/\/\/\./\/\_/\/Q
`
`Opp. No. 91195895
`
`AFFIDAVIT OF JAMES C. WRIGHT
`
`Comes the affiant, after being duly sworn according to law, and states
`
`upon his personal knowledge as follows:
`1.
`name is James C. Wright,
`
`I am a resident of the State of
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`Tennessee and I am over the age of twe_nty~one.
`
`2.
`
`I am the attorney representing the Applicant,
`
`'Wampler’s Farm
`
`Sausage Company, Inc., in the above—captioned matter.
`
`3.
`
`During the thirty days following Opposer’s Requests for Admission
`
`were received by my office a number of occurrences lead to the 8 day delay in
`
`filing responses to same.
`
`4.
`
`During that time period, inclement weather and snow days lead to
`
`at least 4 days of local school and court closings and delays during which our
`
`office staff was unable to travel safely to WOI‘k.. Additionally, during the period
`
`local schools and courts were closed for the holidays until rec-omrnencing in
`
`
`
`January 2011, there were several days of inclement weather when local roads
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`and ‘businesses were olosed.
`
`5.
`
`Additionally, both the Thaiiksgiving and Christmas and end of year
`
`holiday season resulting in short staffing.
`
`6.
`
`Further,
`
`I was involved in the defense of a number of potential
`
`cases involving death or severe personal
`
`injury which required immediate
`
`investigation and response.
`
`Further the Affiant saith not.
`
`
`
`My C-ommission Expires:
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