Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA459133
`ESTTA Tracking number:
`02/29/2012
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91203708
`Defendant
`Fiber Composites, LLC
`DEBRA S. SEROTA
`FISH & RICHARDSON P.C.
`PO BOX 1022
`MINNEAPOLIS, MN 55440-1022
`
`tmdoctc@fr.com
`Motion to Suspend for Civil Action
`John M. Nading
`Tamar.Duvdevani@dlapiper.com, John.Nading@dlapiper.com,
`David.Huff@dlapiper.com
`/John M. Nading/
`02/29/2012
`Cambridge v Fiber - Applicant Mot to Susp Proceed Disp of Fed Lit - Opp No
`91203708.pdf ( 20 pages )(463879 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
`
`In the matter of Trademark
`Application Serial No. 85/142,604
`Mark: ARMORGUARD
`Filing Date: September 30., 2010
`Publication date: January '10, 2012
`
`
`CAMBRIDGE PAVERS, INC.,
`Opposer,
`
`V.
`FIBER COMPOSITES, LLC,
`Applicant.
`
`i
`i
`g
`3
`
`___:____:___gQ
`
`Opposition No. 91203708
`
`APPLICANT’S MOTION TO SUSPEND PROCEEDING PENDING
`DISPOSITION OF FEDERAL LITIG.ATION AND MEMORANDUM IN SUPPORT
`
`Applicant Fiber Composites, LLC (hereinafter “App1icant”), by and through the
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`undersigned counsel, files this Motion to Suspend Proceeding Pending Disposition of Federal
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`Litigation and Memorandum in Support, pursuant to 37 C.F.R. § 2.ll7(a) and TBMP §
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`510.02(a).
`
`For the reasons set out below, Opposer Cambridge Pavers, Inc.’s (hereinafier
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`“Opposjer”) Notice of Opposition, which was filed February '7, 2012, should be suspended
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`pending the outcome of a prior pending federal district court action.‘
`
`ARGUMENT
`
`This Opposition Proceeding should be Suspended pending the outcome of a federal
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`district court action for trademark infringement, false designation of origin, dilution, and unfair
`
`
`
`1 While the Trademark Trial and Appeal Board (“Board”) considers this Motion, Applicant
`respectfully requests that the Board suspend this Opposition Proceeding “with respect to all
`matters not germane to the motion” pursuant to 37 C.F.R. § 2.12’/'(d).
`
`EAS'T\47990 I 58.2
`
`

`
`competition between these same parties and involving the identical claim in the United States
`
`District Court for the District of New Jersey, Case No. 2:11-CV-05543 (WJM)(MF) (hereinafier
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`“federal litigation” or “federal court action”) (see true and correct copy of Opposer’s Complaint,
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`attached hereto as Exhibit A). Opposer, as Plaintiff, filed the federal court action on September
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`23, 2011 against Applicant, as Defendant, and Homer TLC, Inc. Opposer then filed the Notice
`
`of Opposition on February 7, 2012.
`
`“To. the extent that a civil action in a [f]ederaI district court involves issues in common
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`with those in a proceeding before the Board, the- decision of the [f]e_deral district court is often
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`binding upon the Board.” TBMP § 510.02(a). “[W_]hile a decision by the District Court would
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`be binding upon the [United States Patent and Trademark Office (“USPTO”)], a decision by the
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`[Board] would only be advisory in respect to the disposition of the case pending in the District
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`Court.”
`
`Tokaido v. Honda Assocs.
`
`Inc.,
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`179 U.S.P.Q. 861,
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`862 (T.T.A.B.
`
`1973)
`
`(“[N]otwithstandi.ng the fact that the [USPTO] proceeding was the first to be filed, it is deemed
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`to be the better policy to suspend proceedings herein until
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`the civil suit has been finally
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`concluded”) (citations omitted). See also Whopper~Burger, Inc. v. Burger King Corp., 171
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`U.S.P.Q. 805, 807 (1971) (“The duty of this Court, as _of every other judicial tribunal, is to decide
`
`actual controversies by a judgment which can be carried into effect, and not to give opinions
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`upon moot questions or abstract propositions, or to declare principles or rules of law which
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`cannot affect the matter in issue in the case before it.”) (quotation omitted). “The only question
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`for determination .
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`.
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`. is whether the outcome of the civil action will have a bearing on the issues
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`involved in the opposition proceeding.” Other Tel. Co. v. Conn. Nat’! Tel. C0,, Inc., 181
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`U.S.P.Q. 1'25, 126 (T.T.A.B. 1974), petition denied, 181 U.S.P.Q. 779 (Comm'r 1974). Here,
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`the federal court action has been ongoing for five months and the final determination of that
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`EAS'I‘\47990l5'_8.2
`
`

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`federal court action will have a bearing on the i=ssues before the Board because both proceedings
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`are between the same parties and involve the same claims.
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`Specifically, both the Notice of Opposition and the federal litigation involve Applicant’s
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`ARMORGUARD Mark, as depicted in Application Serial No. 85142604, and Oppose;-’s
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`ARMORTEC Mark, as depicted in stylized font & design in Registration No.s. 3094763 and
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`3.105701. In the Notice of Opposition, Opposer asserts that Applicant's ARMORGUARD Mark
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`should be refused registration because of an alleged likelihood of confusion with Op'poser’s
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`ARMORTEC Mark. Likewise, in the federal action, the basis for Opposer’s claims for relief is-
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`an alleged likelihood of confusion between A.pplicant’s ARMORGUARD Mark and 0pposer’s
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`ARMORTEC Mark. See Exhibit A, pp. 4-7. Indeed, Opposer specifically identifies Applicant’s
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`Application Serial No. 85142604 for the ARMORGUARD Mark, as well as Opposer’s
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`Registration Nos. 3094763 and 3105701 in the Complaint in the federal litigation. See Exhibit
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`A, Paras. 8, 12, and 17.
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`There can be no doubt then that the final resolution of the federal litigation will be
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`dispositive of the issues in this Opposition Proceeding. To proceed further with a claim in this
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`forum would waste the resources of this agency, while the federal court is considering identical
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`evidence‘ and arguments on the exact same claim. For all these reasons, the Notice of Opposition
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`should be suspended pending the outcome of the federal. court action.
`
`CONCLUSION
`
`For the reasons set forth herein, Applicant respectfiilly submits that it has established
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`good cause for the suspension of this Opposition Proceeding and requests the granting of its
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`Motion to Suspend Proceeding Pending Disposition of Federal Litigation.
`
`EAST\47990 1 58.2
`
`

`
`Dated: February ‘29, 2012
`
`Respectfully submitted,
`
`By:
`
`DLA PIPER LLP (US)
`
`Isl John M. Nading
`
`Tamar Y. Duvdevani
`John M. Nading
`500 8th Street, NW
`Washington, DC 20004
`Tel. (202) 799-4157
`Fax (202) 799-5157
`
`Attorneysfor Applicant
`Fiber Composites, LLC
`
`EAS'I'\47990158.2
`
`

`
`EXHIBIT A
`
`EAST\47990 I 58.2
`
`

`
`Case 2:11-cv-05543—WJM -MF Document 1
`
`Filed 09/23/11 Page 1 of 9 Page|D: 1
`
`Lawrence D. Mandel
`
`Gertner, Mandel & Peslak, LLC
`P.0. Box 499
`
`Lakewood, New Jersey 08701
`(732) 363-3333
`Fax (732) 363-3345
`Attorneys for Plaintiff
`
`UNITED STATES DISTRICT COURT
`
`DISTRICT OF NEW JERSEY
`
`CAMBRIDGE PAVERS, INC.
`
`Plaintiff,
`
`v.
`
`FIBER COMPOSITES, LLC and
`ll-IOMER TLC, INC.,
`
`Defendants.
`
`CIVIL ACTION NO.
`
`COMPLAINT AND JURY DEMAND
`
`CAMBRIDGE PAVERS, INC. by its -attorneys, Gertner, Mandel & Peslak, LLC, for its
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`complaint against, FIBER COMPOSITES, LLC and HOMER TLC,
`
`INC hereby alleges as
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`follows:
`
`1.
`
`Plaintiff, CAMBRIDGE PAVE-RS,
`
`INC.,
`
`("Cambridge")
`
`is a New Jersey
`
`corporation having a business address at Base of Jerome Avenue, Lyndhurst, New Jersey 07071.
`
`2.
`
`Upon information and belief, Defendant FIBER COMPOSITES, LLC, (“Fiber”)
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`is- a Delaware Limited Liability Company with an address at 34570 Random Drive, New
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`London, North Carolina 28127.
`
`

`
`Case 2:11-cv-05543-WJM -MF Document 1
`
`Filed 09/23/11 Page 2 of 9 Page|D: 2
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`3.
`
`Upon information and belief, Defendant HOMER TLC.
`
`INCL, (“Homer”) is a
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`Delaware corporation with a registered agent address at Corporation Service Company, 2711
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`Centerville Road, Suite 400, Wilmington, Delaware 19808.
`
`JURISDICTION AND VENUE
`
`4.
`
`This is a Civil Action arising under the Federal Trademark Act of 1947, as
`
`amended, 15 U .S.C. § 1051, et. .seq., the common law of the State of New Jersey, the New Jersey
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`Unfair Competition Act, N..l.S.A. § 56:4-1, -at. sea, and the New Jersey Trademark Act, N..l.S.A.
`
`§ 56:3-13.1a, et. seq. This Court has subject matter jurisdiction under the provisions of 15
`
`U.S.C. § 1121, 28, U.S.C. §_ 1331 and 28 U.S.C. § 1367. Defendants are transacting and doing
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`business within this judicial district; have contracted to supply goods and/or services into this
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`judicial district; regularly do or sol.icit business or engage in a persistent course of conduct or
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`derive substantial revenue from goods and/or services used or consumed within this judicial
`
`district and derive substantial
`
`revenue from interstate commerce; and are subject
`
`to the
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`jurisdiction of this Court, pursuant to the laws of this State and Rule 4 of the Federal Rules of
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`Civil Procedure. Venue is proper in this district pursuant to 28 U.S.C. § 1391.
`
`FACTS COMMON TO ALL CAUSES OF ACTION
`
`5.
`
`6.
`
`Plaintiff is a leading. manufacturer of paving stones in the United States.
`
`Plaintiff has used the mark ARMORTEC since at
`
`least as early as 1995 to
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`distinguish its goods, namely "paving stones with a hardfacing top surface."
`
`7.
`
`Through its extensive sales and advertising, Plaintiff has developed extensive
`
`good will throughout the United States with respect to the mark ARMORTEC.
`
`8.
`
`Plaintiff is the owner of U.S. Trademark Registration No. 3,094,763.
`
`

`
`Case 2:11—cv-05543-WJM -MF Document 1
`
`Filed 09123111 Page 3 of 9 PagelD: 3
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`9.
`
`Plaintiffs U .S. Trademark Registration for ARMORTEC is valid, subsisting and
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`incontestable.
`
`10.
`
`i’laint_iff’s ARMORTEC trademark is used in conjunction with what is promoted
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`as its “advanced technology” which protects the colors of the paving stones against fading and
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`keeps the surface smooth, yet skid resistant.
`
`ll.
`
`Plaintiff's ARMORTEC products are promoted under the slogan: “They’li Look
`
`Like New l9'orever.”
`
`12.
`
`Plaintiff is the owner of U.S. "I"ra.dema'rk Registration No. 3,105,701 for the mark
`
`“TH EY’LL LOOK LIKE NEW FOREVER.” CAMBRIDGE PAVING STONES WITH
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`ARMORTEC & Design, which Trademark Registration is valid, subsisting and iiicoiitestable.
`
`I3.
`
`I4.
`
`Defendant, Fiber. markets and sells composite decking with protection.
`
`Fiber
`
`is
`
`selling
`
`composite
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`decking with
`
`protection with
`
`the ma-rk
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`ARMORGUARD exclusively through Home Depot stores owned by def'en'dant Homer and has
`
`filed a Federal trademark application for the mark ARMORGUARD.
`
`15.
`
`To promote the -sale of Fiber‘s composite decking with protections. Defendants
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`have distributed materials which promote ARMORGUARD composite decking with protection
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`which is “warranted against staining and fading."
`
`I6.
`
`Defendants’ ARMORGUARD trademark is used to promote an outdoor living
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`surface having a protective surface that maintains its color, and is able to withstand most
`
`common weather conditions and everyday wear and tear.
`
`

`
`Case 2:11-cv-05543-WJM —MF Document 1
`
`Filed 09/23/11 Page 4 of 9 PagelD: 4
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`17.
`
`Defendant Fiber has applied to register
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`the mark, ARMORGUARD for
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`“composite decking composed of non-metal materials” under U.S. Trademark Application Serial
`
`No. 85/ 142,604.
`
`18.
`
`Outdoor decking materials compete directly with pavers for consumers in the
`
`market to improve and expand their outdoor living space.
`
`19.
`
`Defendants have acted with full knowledge of Plaintiffs rights.
`
`COUNT I
`FEDERAL TRADEMARK INFRINGEMENT
`
`20.
`
`Plaintiff repeats and realleges the allegations of Paragraphs 1 through 19 he-reof
`
`with the same three and affect as if‘set forth herein at length.
`
`21.
`
`The conduct of Defendants as alleged herein with regard to ARMORGUARD
`
`constitutes infringement of Plaintiffs registered trademark ARMORTEC.
`
`22.
`
`Del'e'ndants’ unauthorized activities and infringement are likely to cause
`
`confusion or to cause mistake or to deceive the consuming public as to the true source of the
`
`goods sold by Defendants.
`
`23.
`
`Defendants have full knowledge of Plaintiffs exclusive and long established
`
`proprietary rights in and to the trademark but continue to proceed in complete disregard thereof.
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`24.
`
`The activities and conduct of Defendants as alleged herein have damaged Plaintiff
`
`and will, unless re'strai.ncd, further impair the value of Plaintiff’s trademark and the valuable
`
`good will which has been built up in the trademark, and Plaintiff has no adequate remedy at law.
`
`

`
`Case 2:11-cv-05543-WJM -MF Document 1
`
`Filed 09/23/11 Page 5 of 9 PagelD: 5
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`COUNT II
`FALSE DESIGNATION OF ORIGIN
`
`25.
`
`Plaintiff repeats and realleges the allegations of Paragraphs 1 through 24 hereof
`
`with the same force and affect as if set forth herein at length.
`
`26.
`
`Defendant's unauthorized use of ARMORGUARD tends. to falsely represent that
`
`Defendants are connected with or that Defendants’ activities are authorized by Plaintiff and is
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`likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection or
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`association of Defendants with Plaintiff, or as to the origin, sponsorship, or approval of
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`Defendants‘ goods or commercial activities by Plaintiff. Any failure of Defendants to maintain
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`acceptable standards of quality and service will
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`reflect adversely on Plaintiff and cause
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`irreparable harm to Plaintiff.
`
`27'.
`
`Plaintiff has no control over the quality of the goods sold by Defendants, and
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`because of the confusion as to the source engendered by Defendants, l’laintiff’s valuable good
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`will in respect-of its _trademark is at the mercy of Defendants.
`
`28.
`
`Said actions of Defendants constitute a violation of 15 U.S.C. § l125(a) in that
`
`such false designations and representations of origin and quality have been and continue to be
`
`used on or in connection with goods sold by Defendants or which affect commerce.
`
`29.
`
`Defendants’ false designation of origin and quality has caused substantial and
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`irreparable damage and injury to Plaintiff, for which Plaintiff has no adequate remedy at law.
`
`COUNT III
`
`DLLlJ"l‘1_0N
`
`30.
`
`Plaintiff repeats and realleges the -allegations of Paragraphs 1 through 29 hereof
`
`with the same force and affect as if s.et forth herein at length.
`
`

`
`Case 2:11-cv-05543-WJM —MF Document 1
`
`Filed 09/23/11 Page 6 of -9 Page|D: 6
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`31.
`
`Defendants’ actions constitute a violation of 15 U.S.C. § 1125(c) in that such use
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`of ARMORGUARD has caused and will continue to cause dilution of the distinctive quality of
`
`Plaintiffs mark ARMOR'I‘EC.
`
`COUNT IV
`
`COMMON LAW UNFAIR COMPETITION
`
`32.
`
`This count arises under the New Jersey common law of Unfair Competition.
`
`Jurisdiction is supplemental
`
`to Count I pursuant to U.S.C. § 1367. Venue is proper in this
`
`district under 28 U.S.C. § 139].
`
`33.
`
`Plaintiff repeats and realleges the allegations of Paragraphs 1 through 32 hereof
`
`with the same force and affect as if set forth herein at length.
`
`34.
`
`By Defendants’ unauthorized -use of ARMORGUARD, Defendants are. guilty of
`
`unfair competition in violation of the New Jersey Common Law of Unfair Competition and are
`
`likely to cause confusion, mistake or to deceive the public.
`
`35.
`
`Defendants’ unlawful conduct will continue to damage Plaintiff unless enjoined
`
`by this court. Plaintiff has no adequate remedy at law.
`
`COUNT V
`NEW JERSEY STATUTORY UNFAIR COMPETITION
`
`36.
`
`Plaintiff repeats and realleges the allegations of Paragraphs 1 through 35 hereof
`
`with the same force and al‘l’ect as if set forth herein at length.
`
`37.
`
`Defendants’ unauthorized use of ARMORGUARD in connection with their sales
`
`and marketing of goods constitutes appropriation of Plaintiffs trademark, reputation and good
`
`will in direct violation of the New Jersey Unfair Competition Act, N.J.S.A. § 56:4-l.
`
`

`
`Case 2:11-cv-05543-WJM —MF Document 1
`
`Filed 09/23/11 Page 7 of 9 Page|D: 7
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`38.
`
`The activities of Defendants alleged herein have caused and, if not enjoined, will
`
`continue to cause, irreparable harm t-o the rights of Plaintiff. Plaintiff has no -adequate remedy at
`
`law.
`
`COUNT VI
`NEW JERSEY TRADEMARK ACT
`
`39.
`
`Plaintiff repeats and realleges the allegations of Paragraphs 1
`
`through 3.83 hereof
`
`with the same force and affect as if set forth herein at length.
`
`40.
`
`Defendant's unauthorized use of ARMORGUARD in connection with their sales
`
`and marketing of goods constitutes appropriation of Plaintiffs trademark, in direct violation of
`
`the New Jersey Tr-ademark Act, N.J.S.A. § 56:3—l3.l6.
`
`41.
`
`The activities of Defendants alleged herein have caused and, if not enjoined, will
`
`continue to cause, irreparable harm to the rights of Plaintiff. Plaintiff has no adequate remedy at
`
`law.
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`WHE.REFORl3, Plaintiff prays forjudgment that:
`
`(a)
`
`Defendants have-, by their unauthorized use of a mark confusingly similar to
`
`Plaintiff’s trademarks, infringed the trademarks, used and applied false designations of origin,
`
`diluted the distinctive quality of Plaintiff's trademarks, competed unfairly with Plaintiff and have
`
`injured Plaintiffs good will and business reputation, in violation of Federal and State Law and
`
`have done so willfully all to the detriment of Plaintiff.
`
`(b)
`
`Defendants,
`
`their agents, servants, employees, successors and assigns and all
`
`persons in active concert, privity, or participation with Defendants, be preliminarily and
`
`permanently enjoined from infringing upon the Federally registered trademark of Plaintiff, from
`
`using any false designation or false description or representation, from engaging in any act or
`
`-7-
`
`

`
`Case 2:11-cv-05543-WJM -MF Document 1
`
`Filed 09/23/11 Page 8 of 9 PagelD: 8
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`series of acts which either alone or in combination constitutes deceptive or unfair methods of
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`competition by Defendants with Plaintiff and from otherwise interfering with or injuring the
`
`busine.s.s reputation of Plaintiff, or diluting the distinctive quality of the Plaintiffs trademarks or
`
`the good will associated therewith.
`
`(c)
`
`Defendants be required to account for and pay over to Plaintiff, Defendants’
`
`profits and any damages suffered by Plaintiff as a result of Defendants’ acts of trademark
`
`infringement. false designation of origin, and unfair competition, together with interest and costs.
`
`(d)
`
`Defendants be required to pay to Plaintiff an amount three times the profits of
`
`Defendants or damages of I’iaintii‘f.
`
`(e)
`
`(l)
`
`Defendants be required to pay an award of statutory damages to Plaintiff.
`
`Defendants be required to cease all use of the mark ARMORGAURD. or any
`
`mark confusingly similar to Plaintiffs trademarks.
`
`(g)
`
`Defendants be ordered to surrender for destruction all products, signs,
`
`labels,
`
`advertisements and other materials constituting infringement of Plaintiff's trademarks.
`
`(h)
`
`Defendants be required to pay Plaintiff the costs of this action, together with
`
`reasonable attorney’s fees, costs and disbursements.
`
`(i)
`
`Plaintiff be awarded such other and further relief, as this Court deems just and
`
`equitable.
`
`DEMAND FOR TRIAL BY JURY
`
`Plaintifl"demands trial by jury on all issues so triable in this matter.
`
`

`
`Case 2:11-cv-05543-WJM -MF Document 1
`
`Filed 09/23/11 Page 9 of 9 PagelD: 9
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`CERTIFICATION PURSUANT TO LOCAL CIVIL RULE 11.2
`
`Pursuant to Local Civil Rule 11.2, it is stated that the matter in controversy is not the
`
`subject of any other action pending in any court or of a pending arbitration or administrative
`
`proceeding to the best ofour knowledge -or belief. Also, to the best of our knowledge or belief,
`
`no other action, administrative proceeding or arbitration is contemplated.
`
`Dated: September 23, 201 l
`
`GERTNER, MANDEL & PESLAK. LLC
`
` Lawrence D. Mandi:
`
`PO. Box 499
`
`Lakewood, NJ 0870]
`
`(732) 36303333
`Attorneys for Plaintiff
`
`

`
`Case 2:11-cv-05543-WJM -MF Document 1-1
`
`Filed 09123111 Page 1 of 2 Page|D': 10
`
`l2."GԤ) Summons inn Civil Action
`M) 440 (Rev.
`
`
`UNITED STATES DISTRICT COURT
`for the
`
`District of New Jersey
`
`CAMBRIDGE PAVERS, INC.
`P!
`'
`‘
`arnlrfl
`v.
`
`FIBER COMPOSITES. LLC and HOMER TLC, INC.
`
`mwfl.........__n_u____.W
`
`)
`)
`)
`)
`
`;
`
`)
`
`Civil Action No.
`
`SUMMONS IN A CIVIL ACTION
`
`T0: filefiencfrrnt Zr nrmre and adcfressj FIBER COMPOSITES, LLC
`345770 Random Drive
`New London. NC 28127
`
`A lawsuit has been filed against you.
`
`Within 2| days after service of this summons on you (not counting the day you received it) — or 60 days if you
`are the United States or a United States agency, or an officer or ‘employee of the United States described in Fed. R. Civ.
`P. 12 (a)(2) or (3) ——- you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of
`the Federal Rules of Civil Procedure. The answer or motion must be sewed on the plaintiff or pIaintifi"s attorney,
`whose name and address are:
`Lawrence D, Mandel
`Gertner, Mandel & Peslak. LLC
`P.O. Box 499
`Lakewood. NJ 08701
`
`If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.
`You also must file your answer or motion with the court.
`
`Date:
`
`CLERK OF COURT
`
`Signature afClerk or Deputy Cierk
`
`

`
`Case 2:11-cv-05543-WJM -MF Document 1-1
`
`Filed 09/23/11 Page 2 of 2 Page|D: 11
`
`
`A0 440 (Rev. l2-I09) Summons in a Civil Action (Page 2)
`Civil Action No.
`
`(Tlris section should not befiled with the court unless required by Fed. R. Civ. P. 4 (1))
`
`PROOF OF SERVICE
`
`This summons for (riame ofindividualamirirle, ifrmyj
`
`Fiber Composites. LLC
`
`was received by me on (date)
`
`El
`
`I personally served the summons on the individual at (place)
`
`on (date)
`
`; or
`
`D I left the summons at the individual’s- residence or usual place of abode with (name)
`
`on (date)
`
`, a person of suitable age and discretion who resides there,
`, and mailed a copy to the individual’s last known address; or
`
`Cl
`
`I served the summons on (name afindividuay
`
`on (date)
`
`; or
`
`Cl
`
`I returned the summons unexecuted because
`
`C! Other (specyfv):
`
`, who is
`
`; or
`
`My fees are S
`
`for travel and $
`
`for services, for a total of $
`
`0,00
`
`l declare under penalty of perjury that this information is true.
`
`Date:
`
`Server '5 sigmiruw
`
`Printed name rindfi-tie
`
`Server '3 address
`
`Additional information regarding attempted service, etc:
`
`

`
`Case 2:11—cv-05543-WJM -MF Document 1~2
`
`Filed 09/23/11 Page 1 of 2 Page|D: 12
`
`A0 44f! (Rev. 12/09) Summons in ii Civil Action
`
`
`UNITED STATES DISTRICT COURT
`for the
`
`District of New Jersey
`
`CAMBRIDGE PAVERS, INC.
`N .
`.
`rrrntrfl
`v.
`
`FIBER COMPOSITES. LLC and HOMER TLC, INC.
`
`_
`
`Defimdanr
`
`)
`)
`)
`)
`
`g
`
`)
`
`Civil Action No.
`
`SUMMONS IN A CIVIL ACTION
`
`TO: '(Defi=ndanI‘s ncrme and address) HOMER TLC, INC.
`clo Corporation Service company
`2711 Centerville Rd.. Suite. 400
`Wilmington, DE 19808
`
`A lawsuit has been filed against you.
`
`Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you
`are the United States or a United States agency, or an officer or employee of the United States described‘ in Fed. R. Civ.
`P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or "a motion under Rule 12 of
`the Federal Rules of Civil Procedure. The answer-or motion must be served on the plaintiff or plaintiff‘s attorney,
`whose name and address are:
`Lawrence D_ Mandel
`Gertner, Mandel & Peslak, LLC
`P.0. Box 499
`Lakewood. NJ 08701
`
`If you fail to respond,judgment by default will be entered against you for the relief -demanded in the complaint.
`You also must file your answer or motion with the court.
`
`Date:
`
`_________
`Slgrzature ofC1erk or Deputy Clerk
`
`CLERK OF COURT
`
`

`
`Case 2:11—cv—05543-WJM -MF Document 1-2
`
`Filed 09l23l11 Page 2 of 2 PagelD: 13
`
`A0 4.40 (Rev. l2i()9) Sunimcns in :1 Civil Action (Page 2);
`Civil Action No.
`
`(This section slmutd not befiled with the court unless requtrert by Fed. R. Civ. P. 4 (1))
`
`PROOF OF SERVICE
`
`This summons for (ntmre ofindivirfttat and title. tjfarty) Homer TLC. Inc.
`
`was received by me on (date)
`
`D I personally served the summons on -the individual at (place)
`
`on (date)
`
`; or
`
`['_'l
`
`I left the summons at the individual’s residence-or usual place of abode with (name)
`
`on (date)
`
`, and mailed a copy to the individual‘s last known address; or
`
`, a person of suitable age and discretion who resides there,
`
`III
`
`I served the summons on (name ofindividual)
`
`. Who is
`
`designated by law to accept service of process on behalf of (name oforganization)
`
`on (date)
`
`; 01'
`
`El Iretumed the summons unexecuted because
`
`__ M H
`
`_______ :0T
`
`D Other (spect‘fir}.'
`
`My fees are $
`
`for travel and $
`
`for services, for a total of $
`
`0.00
`
`.
`
`I declare under penalty of perjury that this information. is true.
`
`Date :
`
`Server '5 st'gnatm'e
`
`Printed name and title
`
`Server '5' atidress
`
`Additional information regarding attempted service, etc:
`
`

`
`Case 2:11-cv-05543—WJM -MF Document 1-3
`
`Filed 09/23/11 Page 1 of1 PagelD: 14
`
`"IIS'l'-I
`
`(Rc\'. 12107. NJ 5/om
`
`CIVIL COVER SHEET
`
`'l'!tc JS 44 civil cover sherotttttd the ittthrmatiott CUl‘lll2lI|lt}‘l.I_ heroin nuithur rc lace not sit plotrtcnt the filing and set-yicc ol'_plcaditt s or other moors us roquircd by law. except as provided
`by Iu_ca_t rules ofcourt. ‘I his form, approved by the Jud total Conference 0 the United . totes in ‘September I974, is required fort o use oft Clerk ul‘Cuut1 for-the purpose or mt'tial'ing
`the cm] docket shcct.
`(S1-Eli tN51'RU(‘.'t‘l0Ns ON "mt: REVERSE Ol~"1'H[i FORM.)
`DEFENDANTS
`
`
`1. (a) PLAINTI FFS
`Cambridge. Pavers, Inc.
`Fiber Composites, LLC and Homer TLC, Inc.
`
`(I3) Cuuttty of Residence of First Listed Plaititil't' Bergen
`
`(c) Attorney’: [Firm Name. Address. Telephone Number and Email Address)
`
`Lawrence D. Mandel, Esq.
`Gertner. Mandel & Peslak
`P.O. Box 499
`Lakewood. NJ 08701
`
`County of Residence of First Listed Defendant
`
`
`OUI Of State
`
`NOTE:
`
`IN LAND CONDEMNATION CASES. USE THE LOCATION OF THE
`
`I-AND INVOLVED-
`Attorneys (I r Known)
`
`
`
`
`
`III. CITIZENSHIP OF PRINCIPAL l’ARTlES(t=tacean “X” in one Box for Plaintifl‘
`II. BASIS OF JURISDICTION (Plateau "X" itt Ont: Box Only)
`(For Diversity Cases Only)
`ttnd Ortc Box for Dcfcttdnttt)
`It! 3 l"t:tItmt| out-.stiun
`til
`I
`u.s. Govctttttmnl
`PT!‘-'
`DEF
`PTF
`DEF
`P|aiI'IliIT
`(U,S. Government Not rt Party)
`III
`1
`E]
`l
`13
`CI 4
`
`incorporated 04'' PI‘i"¢ill"‘ P13“
`ofliusittess In This State
`
`4
`
`Citiztttt 01'This Sttttc
`
`[.3 2 US. Government
`°°r°"““’“
`
`Cl :4 Divcntily
`.t1mtic..1= Cilizcttsltip ol'Pa.rtios in item: my
`
`Citizen OFAIIOIIIH Stat:
`
`El 2
`
`Cl
`
`2
`
`El
`
`5
`
`El
`
`5
`
`
`
`
`
`incorporated am! Principal Place
`“I B"““"'“ 5“ “‘°-"‘°' 5"”
`El 6
`6
`El
`Foreign Nation
`3
`III
`D 3
`Citizen or Sulijcctofa
`Forcl
`tt Count
`Place an "X." in One Box Ditl
`IV. NATURE OF SUIT
`
`
`
`" ‘-1
`'--
`-‘A
`'-
`
`PERSONAI. IN-l.llR\’
`PERSONA L INJ ll RV
`El 610 Agriculture
`
`Cl 400 Stalo Reapportionment
` ct 422 Appeal 23 USC tstt
`D I I0 Insurance
`
`
`
`D 362 Pcrsotttttl lujtity —
`U 620 Utltor Food & Dntg,
`D 423 Withdrawal
`El 410 Atttitnts!
`_|:| [20 Marina
`CI
`JIU Airplane
`El 625 Dmg Rclatcd Seizure
`23 USC I57
`Mod. Malpractice
`III 430 Battits anti Bnttltittg
`C! I30 Millet’ MI
`Cl SIS Airplutte Product
`
`365 Personal Injury -
`of Property 21 USC 88!
`El 450 C01lll'l|I:fl:l
`[Tl Mt) Negotiable lttstrumcttt
`Liability
`Protlttct Liability
`Cl 630 Liquor Laws
`El 460 Dolauntllion
`0 I50 Rccovcry ofoverpayment El
`320 Assault. Libel 8:.
`Il6tl.flutltt:st:-ut Po.-rsmtal
`['3 640 RR, &..'l'rut:k
`El 470 Racltctocr Influenced and
`Sc I’-'.rtl'nrt:un-tr.-.t1t oflutlgtncttt
`Blonder
`lttjuty Pttxluct
`D 1550 Airline Rugs.
`Corrupt Organizations
`D [St Medicare Act
`330 Fttklcrttl F.:ttployttrs'
`Liability
`C] 660 Occupatiottal
`D 430 Cottautncr Crctlit
`0 I52 Rccm-cry ol" Defaulted
`Liability
`Sttulcttl Loans
`D 340 Marine
`PERSONAL PROPERTY
`Safe-tyfl~Ictt1Ilt
`CI 490 Cableffit TV
`El
`3-15 Mntinc Product
`Cl
`.110 Other Fraud
`D .590 Otltcr
`(I-Zxcl. Vctormts)
`Cl 310 Selective Service
`liability
`Q 31] 'I't'ttIl1 in Lcttding
`El I53 Recovery ofthurpuyntcnt
`E]
`il5tl'Securitiest’Cnn1tnoditicst'
`
`
`El
`350 Motor Vulticle
`Cl Smother Pcrsnnnl
`
`El rm Fair Labor Stnttdartls
`Cl 861 HIA( l39Sfl)
`nl' Vctc_rmi‘s Benefits
`Excltangc
`El
`355 Motor Vclticlc
`Propctty Datrtagc
`Act
`Cl
`I562 Black Lung (923)
`0 I60 Stockholders‘ Suits
`El 875 Cttslontcr Challenge
`Product Liability
`[3 385 Property Damage
`El 720 Lnhorfmgmt. Rotations
`Cl 863 DIWCIDIWW (405m))
`Cl I90 Dtltcr Cottlract
`E2 US"-(2 .14 10
`D I95 Ctttttract Prottttct Lialiility El
`350 Other Persomtl
`Protlttct Liability
`El 730 Lalx-trt‘Mgtttt.Rcponittg
`D 864 SSID Title XV!
`El E9!) Other-Statutory Actions
`
`
`
`3 [90 FI'%II1I=h'l-'i8'
`|n‘u '
`Jr. Disclosure Act
`El 865 RSI 40 _-
`El 891 Agricultural Acts
`' .3; ‘PRO? RT? '-
`'
`-
`El 140 Railway Lnbor Act
`El 892 Economic Stabilization Act
`U 370 Tmtcti (U.S. Pia|.ntilT
`El M1 Voting
`Cl 210 Land Cottdcmtttttion
`El 790 Othcr Labor Litigttlinn
`Cl 89'} Envimnnrcntal Matters
`5l0 Motions to Vacate
`or Defendant)
`El 442 Employment
`Cl 220 Foreclosure
`D 79l Etttpl. Rcl. Inc.
`El 894 Energy Allocation Act
`Sentence
`
`(‘J 230 Rent Lease at Ejccttrtent D 443 Housing]
`"Ilka!" Corpus‘:
`Sccurity Act
`['3 87] IRS-—'l'hird Party
`Cl 895 Freedom of Illf0m'Iti.lI0!l
`D 240 Torts to Land
`Actzouttttotltttitms
`530 Gcncral
`26 USC 7609
`Act
`-
`535 Death Pctttslty
`D. 9tl0Appual ot‘Fce'Dctermin::tion
`El 245 Ton Product Liability
`D 444 Welfare
`
`Cl 445 Amer. w-‘Disabilities — I
`5'40 Mandamus at Otltcr
`I 462 Naturalization App icrtttott
`Cl 290 All Other Real Property
`Under Equal Access-
`El. 550 Civil Rights
`El 463 I-Iabcai Corpus -
`Entployment
`to Jttstioc
`
`555 Prison Cotttlition
`Alion Dctuittoc
`E! 446 Atncr. wlDisabilitics-
`D 950 Cotttstitutiouality of
`El 465 other Immigration
`Other
`State Statutes
`
`Actions
`D 4'40 Other Civil Rights
`
`
`
`
`
`
`El 820 Onpyrigltls
`F] 830 Patent
`ii] 840 Trademark
`
`
`
`
`
`
`
`
`
`Cl
`
`Cl
`
`
`
`III
`
`
`
`
`
`'-
`
`-
`
`
`
`AP eat”-I Dismcl
`_
`_
`(Place ttrt"X“itt (')rtc'Hmt Only)
`V. ORIGIN
`[J 4 Rcittstated or E] 5 Tmgfigeggfi fr?“ Cl 6 M_u_ltidistrit:t
`E]
`'1'
`"u‘ag%tlr';"'f‘
`(RI Original.
`El 2 Removed from
`D 3 Rcmattded from
`
`
`
`*3" Bit.’
`Ltttgatton
`J“d3'mem"
`Reopened
`' "°
`Pmcecdtng
`Statecourt
`Appcllatecourt
`
`
`l'I III
`I rat I
`T!‘
`Do
`I
`I
`I
`(IIV
`II
`.'
`C"
`,'._C‘ IS
`WI!‘ h
`
`to you are III‘-lg (
`not: tejtt
`s ctona s
`u ettun ass
`crs 3:)
`
`tion ofcausc:
`Brierdoscrl
`lradem rktntnngement
`
`CHECK was only ifdcmanclecl in complaint:
`DEMAND s
`VII. REQUESTED IN
`D CHECK IFTHIS IS A CLASS ACTION
`
`COMPLAINT:
`UNDER F-R13-P-23
`Jtttw DEMAND:
`it! Yes
`ct Nu
`
`VI. CAUSE OF ACTION
`
`
`
`vttt. REl...ATE‘.D CASE(S)
`
`(Soc instructions):
`
`DOCKET NUMBER
`JUDGE
`Explnttaliott:
`
`
`
`F RECORD
`
`
`

`
`CERTIFICATE OF SERVICE
`
`This is to certify that a copy of the foregoing APPLICANT’S MOTION TO SUSPEND
`
`PROCEEDING PENDING DISPOSITION OF FEDERAL LITIGATION AND
`
`MEMORANDUM IN SUPPORT was served via U.S. First Class mail, postage prepaid, and
`
`properly addressed to Opposer’s counsel of record:
`
`this 29th day of February, 2012.
`
`Lawrence D. Mandel
`
`Gertner Mandel & Peslak, LLC
`Post Office Box 499
`
`Lakewood, NJ 08701
`
`Is! John M. Nading
`John M. Nading
`Attorneyfor App-licant
`
`EAST\47990l58.2