Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
`
`Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA652640
`ESTTA Tracking number:
`01/28/2015
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91219450
`Plaintiff
`Lift Media, LLC
`ODIS W WILLIAMS
`THE LAW OFFICE OF ODIS WILLIAMS PC
`1640 POWERS FERRY ROAD BUILDING 19, SUITE 350
`MARIETTA, GA 30067
`UNITED STATES
`owilliams@odiswilliamspc.com
`Motion to Suspend for Civil Action
`Eric Misterovich
`eric@revisionlegal.com
`/EWM/
`01/28/2015
`1-28-15 Motion to Suspend Opposition Proceedings v2.pdf(123611 bytes )
`Exhibit 1.pdf(1977590 bytes )
`Exhibit 2.pdf(180438 bytes )
`Exhibit 3.pdf(304050 bytes )
`Exhibit 4.pdf(2776000 bytes )
`1-28-15 POS Motion to Suspend.pdf(49798 bytes )
`
`

`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`
`
`
`
`Opposition No: 91219450
`
`
`In re:
`Trademark Application Serial No.:
`85818292
`
`Filed: January 8, 2013
`
`Mark: Greater Than Gatsby
`
`Published in the Official Gazette: October
`28, 2014
`
`Lift Media, LLC;
`
`
`v.
`
`Josh Hohweiler;
`
`
`Applicant.
`
`Opposer,
`
`
`
`
`
`OPPOSER’S MOTION TO SUSPEND OPPOSITION PROCEEDINGS
`
`Pursuant to 37 C.F.R. § 2.117(a) and TBMP § 510.02(a), Opposer Lift Media, LLC
`
`respectfully requests this Board to suspend Opposition No. 91219450 (the “Opposition”) in light
`
`of dueling civil actions pending before the U.S. District Courts for the Northern District of Texas
`
`(Case No. 3:14-cv-03847) Northern District of Georgia (Case No. 1:14-cv-3470-ODE), which
`
`will have a bearing on the Opposition. Filed herewith in support of this Motion is Opposer’s
`
`memorandum of law and other supporting documents.
`
`
`
`
`
`January 28, 2015
`
`
`
`
`
`
`
`
`
`
`
`
`
`Respectfully Submitted,
`
`
`
`/s/ Eric Misterovich
`Eric Misterovich
`John Di Giacomo
`
`

`
`148 E. Front St.
`3rd Floor
`Traverse City, MI 49684
`Phone: (231) 714-0100
`Fax: (231) 714-0200
`Email: john@revisionlegal.com,
`eric@revisionlegal.com
`Attorneys for Opposer
`
`
`
`

`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`
`
`
`
`Opposition No: 91219450
`
`
`In re:
`Trademark Application Serial No.:
`85818292
`
`Filed: January 8, 2013
`
`Mark: Greater Than Gatsby
`
`Published in the Official Gazette: October
`28, 2014
`
`Lift Media, LLC;
`
`
`v.
`
`Josh Hohweiler;
`
`
`Applicant.
`
`Opposer,
`
`
`
`
`
`
`
`OPPOSER’S MEMORANDUM OF LAW IN SUPPORT OF ITS
`MOTION TO SUSPEND OPPOSITION PROCEEDINGS
`
`I.
`
`INTRODUCTION
`
`Opposer, Applicant, and Applicant’s business entity, Greater Than Gatsby, LLC
`
`(“GTG”), are currently engaged in litigation in the United States District Court for the Northern
`
`District of Texas, Dallas Division (Case No. 3:14-cv-03847) (Complaint attached as Exhibit 1)
`
`and in the United States District Court for the Northern District of Georgia, Atlanta Division
`
`(Case No. 1:14-cv-3470-ODE) (ND GA Complaint attached as Exhibit 2). The litigation centers
`
`on an agreement between the parties in relation to Opposer’s creation and management of a
`
`website for Applicant’s company Greater than Gatsby, LLC (“Joint Venture Agreement”) that
`
`was partially in writing and partially oral. Further, both cases have pending Motions to Dismiss
`
`and pending Motions to Transfer and Consolidate. (ND TX Motion to Transfer attached as
`
`

`
`Exhibit 3; ND GA Motion to Transfer attached as Exhibit 4). As a result of the great uncertainty
`
`surrounding the federal litigation, Opposer believes this proceeding should be suspended.
`
`II.
`
`STATEMENT OF FACTS
`
`Opposer Lift Media is in the business of developing and operating e-commerce retail
`
`stores. GTG, technically a non-party to this action, is a limited liability company organized under
`
`the laws of the State of Texas. Upon information and belief, Applicant is the sole member of
`
`GTG. Applicant, through GTG, is in the business of operating e-commerce retail stores.
`
`On or about September 27, 2013, Lift Media and GTG entered into a joint venture
`
`agreement (“Joint Venture Agreement”). Under the terms of the Joint Venture Agreement,
`
`Opposer was to develop and provide marketing services for an e-commerce retail store that was
`
`to be operated by Opposer. Additionally, under the terms of the Joint Venture Agreement, GTG
`
`was to collect all revenue arising from the joint venture’s offerings, account to Lift Media, and
`
`provide Lift Media with its proportional share of the joint venture’s revenue. Additionally, under
`
`the terms of the Joint Venture Agreement, GTG agreed to transfer, assign, or otherwise convey
`
`any rights of in the GREATER THAN GATSBY mark (the “Mark”) to the Joint Venture such
`
`that Lift Media and GTG would jointly own it.
`
`On January 8, 2013, Hohweiler, in his individual capacity, and not has GTG, filed an
`
`application with the United States Patent and Trademark Office for registration of the Mark mark
`
`within International Class 035 and for use in association with retail store and online retail store
`
`services (“Trademark Application”). In response, the Examining Attorney issued an Office
`
`Action for failing to properly name the owner of the mark consistent with TMEP §§ 803.03(a),
`
`803.02(a), and 803.04. Applicant failed to respond to this Office Action within the required
`
`timeframe on two separate occasions. On September 4, 2014, Applicant filed an application to
`
`

`
`revive the Trademark Application and responded to the Office Action by stating the owner of the
`
`mark was “Josh Hohweiler, DBA Greater Than Gatsby, a Texas sole proprietorship, composed
`
`of Josh Hohweiler a citizen of the United States.” Applicant filed this Office Action response and
`
`designation of ownership without the authorization or approval of Lift Media and in an attempt
`
`to exercise exclusive control over the Mark in his personal capacity. Further, Applicant
`
`improperly designated himself, in his individual/DBA capacity, as the owner instead of the GTG
`
`entity that agreed to transfer, assign, or otherwise convey rights to the Mark under the terms of
`
`the Joint Venture Agreement. As more fully detailed in the First Amended Notice of Opposition,
`
`Opposer contends Applicant committed fraud on the USPTO by failing to correctly identify the
`
`owner of the Mark.
`
`On October 28, 2014, the same date the Mark was published for opposition, Applicant,
`
`through GTG, filed a lawsuit against Lift Media in the US District Court for the Northern
`
`District of Texas under Case No. 3:14-cv-03847.
`
`Also on October 28, 2014, Lift Media simultaneously filed a lawsuit against both
`
`Hohweiler and GTG for a breach of the Joint Venture Agreement in the US District Court for the
`
`Northern District of Georgia under Case No. 1:14-cv-3470-ODE.
`
`On November 21, 2014, Opposer filed the instant Notice of Opposition. On December
`
`24, 2014, Applicant Answered and filed a Motion to Dismiss, but failed to properly serve
`
`Opposer. On January 28, 2015, Opposer filed a response to the Motion to Dismiss, a First
`
`Amended Notice of Opposition, and this Motion.
`
`
`
`

`
`III. ARGUMENT
`
`a. The Pending Federal Civil Actions Will Have a Bearing on the Opposition
`Pending Before the Board
`
`It is within the Board’s broad discretion to suspend opposition proceedings when the
`
`“parties to a pending case are engaged in a civil action…which may have a bearing on the case.”
`
`37 C.F.R. § 2.117(a); see also TBMP § 510.02(a); The Other Telephone Co. v. Conn. Nat.
`
`Telephone Co., Inc., 181 USPQ 125 (T.T.A.B. 1974) (Board suspended proceedings after a civil
`
`action was filed which had bearing on the issues pending before the Board). The Board has the
`
`option to suspend opposition proceedings even after the filing of a dispositive motion. 37 C.F.R.
`
`§ 2.117(b).
`
`The federal court actions pertain to the terms and conditions of the Joint Venture
`
`Agreement entered into by Opposer and GTG. Specifically, GTG is asking the Northern District
`
`of Texas to provide relief from the alleged breach of the Joint Venture Agreement, including a
`
`request for specific performance of intellectual property assets created under the it. See Exhibit
`
`1 – ND TX Complaint. Similarly, Lift is asking the Northern District of Georgia to declare its
`
`rights under the Joint Venture Agreement and raises a number of related causes of action arising
`
`from the breach thereof. See Exhibit 2 – ND GA Complaint. Similarly,
`
`The terms and conditions of this Joint Venture Agreement is the heart of the federal
`
`actions and this proceeding. Specifically, Opposer claims the Mark was to be transferred,
`
`assigned, or otherwise conveyed to the joint venture between Lift and GTG such that Lift is a
`
`rightful owner of the mark. See First Amended Notice of Opposition, ¶ 7-10.
`
`Since the pending federal civil actions will, or even “may”, have a direct bearing on the
`
`Opposition before the Board, the current Opposition should be suspended in accordance with 37
`
`

`
`C.F.R. § 2.117(a); TBMP § 510.02(a); New Orleans Louisiana Saints LLC v. Who Dat? Inc., 99
`
`USPQ2d 1550, 1552 (TTAB 2011) (civil action need not be dispositive of Board proceeding, but
`
`only needs to have a bearing on issues before the Board).
`
`
`b. Suspension of the Opposition Will Avoid Duplicative Proceedings and
`Unnecessary Burden to the Parties and the Board
`
`As discussed above, the terms and conditions of the Joint Venture Agreement is central to
`
`the district court actions and the instant opposition. Further, the district courts are better suited to
`
`handle the related issues arising out of the Joint Venture Agreement’s terms and conditions. As
`
`the pleadings show, a number of related issues are being litigated, including requests for a
`
`declaratory judgment and specific performance. While no trademark claims have been expressly
`
`asserted yet, the parties are capable of amending their pleadings to do so. Further, the district
`
`court actions will have a bearing on the exact entity that 1) acquired rights in the Mark
`
`(Hohweiler in his individual capacity or GTG) and 2) how those rights were transferred,
`
`assigned, or otherwise conveyed to Lift.
`
`In the Opposition proceeding, however, the Board is faced with a narrower scope of
`
`issues and may only rule on the validity of Applicant’s application. See Goya Foods Inc. v.
`
`Tropicana Products Inc., 846 F.2d 848, 853-54 (2d Cir. 1988) (where a “district court suit
`
`concerns infringement, the interest in prompt adjudication far outweighs the value of having the
`
`views of the PTO” on issues limited to registrability). As a result, the federal courts are the
`
`proper forum to adjudicate the issues that have a bearing on this proceeding.
`
`Not only will the federal courts address all of the relevant issues between the parties, but
`
`suspending this action will promotes efficiencies of everyone involved. The federal court actions,
`
`unless consolidated, will be subject to two different scheduling orders, discovery schedules, and
`
`court dockets. Also entangling discovery within an administrative proceeding will only create a
`
`

`
`more complex procedure for the parties to resolve their disputes. Simultaneously conducting
`
`discovery in three separate forums will only promote redundancies.
`
`Suspension of the Opposition is supported by the TTAB’s policy in favor of efficient
`
`adjudication of all issues in a single forum, rather than duplicative proceedings in various
`
`forums. See American Bakeries Co. v. Pan-O-Gold Baking Co., 650 F. Supp. 563, 2 USPQ2d
`
`1208 (D. Minn. 1986) (judicial economy favors resolution by the district court where the court is
`
`better equipped to efficiently handle all the issues of dispute between the parties). By ordering a
`
`suspension here, the Board will affect a more efficient resolution to all the issues between the
`
`parties. In doing so, the Board will also not cause prejudice to any party, since Applicant remains
`
`capable of adjudicating the issues relevant in the Opposition in the pending litigation before the
`
`District Court. Therefore, the current Opposition should be suspended in accordance with 37
`
`C.F.R. § 2.117(a) and TBMP § 510.02(a) so as to prevent the extraneous duplication of resources
`
`by this Board, the District Court, and the parties themselves.
`
`
`
`

`
`IV. CONCLUSION
`
`
`
`For the reasons set forth above, Opposer respectfully requests that the Board suspend
`
`Opposition No. 91219450 pending the resolution of the federal civil actions before the U.S.
`
`District Courts for the Northern District of Texas (Case No. 3:14-cv-03847) Northern District of
`
`Respectfully Submitted,
`
`
`
`/s/ Eric Misterovich
`Eric Misterovich
`John Di Giacomo
`148 E. Front St.
`3rd Floor
`Traverse City, MI 49684
`Phone: (231) 714-0100
`Fax: (231) 714-0200
`Email: john@revisionlegal.com,
`eric@revisionlegal.com
`Attorneys for Opposer
`
`
`
`
`
`Georgia (Case No. 1:14-cv-3470-ODE).
`
`
`
`January 28, 2015
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`
`
`
`CERTIFICATE OF SERVICE
`
`I, Jessica Schimpf, hereby certify that a true and correct copy of Opposer’s Motion to
`
`Suspend Opposition Proceedings, supporting Memorandum of Law, and exhibits were served via
`
`US First Class Mail, postage prepaid, to the following address:
`
`Charles A. Moster, Esq.
`Moster Law Firm
`4920 S. Loop 289, Ste. 102
`
`Date: January 28, 2015
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`____________________
`Jessica Schimpf
`Revision Legal, PLLC
`
`
`
`
`
`
`
`

`
`EXHIBIT 1
`EXHIBIT 1
`
`
`
`

`
`Case 3:14-cv-03847-M Document 1 Filed 10/28/14 Page 1 of 6 PageID 1
`Case 3:14—cv—O3847—M Document 1 Filed 10/28/14 Page 1 of 6 Page|D 1
`
`« - \ \ ‘ \ \\
`
`‘ x u q \ \ \ \ \ \ \ u \\
`
`\ \ \ \ \ \ \ \ \ u xx
`
`x \ u \ \ \ \ \ \ ‘V
`
`\ : \ \ \ \ x 1 \ \ -\
`
`\\n
`
`\ s \ 1 u x 1 I
`
`.
`
`\‘
`
`‘ \ \ \ \ x u \ \ I \ “
`T
`UNITED STATES DISTRICT COUR
`R THE NORTHERN DISTRICT OF TEXAS
`DALLAS DIVISION
`
`‘ ‘ ‘ ‘ ‘ ‘ ‘ ‘ ‘ ‘ ‘ ‘ ‘ ‘ ‘ \ \ \ \ 1 H \ I \ \ I I \ \ \ N V‘
`
`F0
`
`CAUSE N05
`
`§ § §
`
`§ § §
`
`E
`
`GREATER THAN GATSBY, LLC
`Plaintiff,
`
`V.
`
`LIFT MEDIA, LLC
`
`COMES NOW Greater Than Gatsby, LLC (“Plaintiff”), by and through
`.
`.
`‘f P f nuance, and
`undersigned counsel, and files IlJlS Complaint for Breach of Contract, Sp€C1 1c er 0
`
`Unjust Enrichment as follows:
`
`I.
`
`JURISDICTION AND VENUE
`
`1. The Complaint sets forth claims for Breach of Contract, Specific Performance, and
`
`Unjust Enrichment wherein the amount in controversy exceeds $75,000.00. This Court
`
`thus has jurisdiction pursuant to 28 U.S.C. § 1332(a).
`
`2. This Court also has diversity jurisdiction pursuant to 28 U.S.C. § 1332(a)(l) in that
`
`Plaintiff and Defendant are citizens of different states. As further alleged, Plaintiff is a
`
`Limited Liability Company duly authorized to conduct business in the State of Texas.
`
`

`
`Case 3:14-cv-03847 M Docu
`‘
`ment 1 F'|led 10/28/14 Page 2 of 6 Page|D 2
`Case 3:14-cv-03847-M Document 1 Filed 10/28/14 Page 2 of 6 PageID 2
`
`Defendant is aLimited Liability duly authorized to conduct business in the State of
`
`proper under 28 U.S.C. § l39l(b)(2) in that a substantial part ofthe events giving rise to
`the claim occurred in this Judicial District.
`
`4. Plaintiff , Greater Than Gatsby, LLC
`the laws ofthe State ofTexas and maintains its principal place ofbusiness in Heath,
`Texas. It may be served through its Attorney ofRecord,
`Charles A. Moster, Esq., The Moster Law Firm, 4920 S. Loop 289, Suite 102, Lubbock,
`
`Texas; Rockwall County,
`
`Texas 79414.
`
`5. Defendant, Lift Media, LLC (“Lift Media”), is a Georgia Limited Liability Company and
`lists the following address with the Georgia Secretary of State: 1761 Helen Drive NE,
`
`Atlanta, Georgia 30306; Fulton County, Georgia.
`6. Defendant lists it Registered Agent as follows: Suhail Seth 201 173' Street NW‘ Suite
`
`1700; Atlanta, Georgia 30363.
`
`III.
`
`COUNT 1
`
`a
`
`7. Plaintiff inco
`
`rlmra 65 Y T3 31131106 each and every allegation contained in the paragraphs
`_
`_
`.
`f
`b
`t
`
`above.
`
`f and Defendant entered into an oral 3greement
`=
`3
`8. On or about November 8 2013 Plaintif
`
`

`
`t 1
`Case 3:14-cv-03847-M Docum
`'
`Case 3:14-cv-03847-M Document 1 Filed 10/28/14 Page 3 of 6 PageID 3
`en
`Filed 10/28/14 Page 3 of 6 Page“) 3
`
`with Lift Media (the “Agreement”) which provided for the following terms:
`a. Construction of a website for use by GTG (the “GTG Website”).
`t related to the installation ofthe Magento platform for the
`
`b. Design and developmen
`
`GTG Website.
`
`c. Account Management-
`
`d.
`
`IT and Server Infrastructure and Maintenance.
`
`r the GTG Website which
`
`9. As per the Agreement, Defendant generated the source code fo
`is unique to Plaintiffs business and commercial activities (the “GTG Source Code”).
`10. During the course ofconstruction, development, and implementation ofthe GTG
`Website, Plaintiffhas tendered payments to Defendant in the amount of $290,301.63.
`11. Defendant has breached the Agreement by failing to tender delivery and ownership ofthe
`GTG Source Code which was purchased and paid for by Plaintiff.
`12. Plaintiffhas made repeated requests for the tender and delivery ofthe GTG Source Code
`
`which has been refused by Defendant.
`13. Plaintiffs are entitled to the recovery of damages resulting from Defendant’s breach of
`
`the Agreement.
`14. Plaintiffs are entitled to the recovery of attorney fees and costs relating to the prosecution
`
`of the breach of contract claim.
`
`

`
`Case 3:14-cv-03847-M Doc
`'
`Case 3:14-cv-03847-M Document 1 Filed 10/28/14 Page 4 of 6 PageID 4
`ument 1 Filed 10/28/14 Page 4 of 6 Page|D 4
`
`IV.
`
`COUNT 2
`
`SPECIFIC PERFORMANCE
`15. Plaintiff incorporates by reference each and every allegation contained in the paragraphs
`
`above .
`
`16. Plaintiff entered into a binding and enforceable Agreement with Defendant which
`provided for the generation of the GTG Source Code.
`
`Code to Plaintiff.
`
`21. Plaintiff is entitled to enforcement of its remedy of Specific Performance compelling
`Defendant to deliver and!or tender the GTG Source Code to Plaintiff.
`
`V.
`
`COUNT 3
`
`UNJUST ENRICHMENT
`
`22. Plaintiff incorporates by reference each and every allegation contained in the paragraphs
`
`above.
`
`23. Recovery under an unjust theory is not dependent on wrongdoing by the opposing party.
`
` fig_X
`.
`.
`owbra V Aver , 76 S.W.3d 663, 679 (Tex. App. Corpus Christi 2002).
`
`1
`It is an
`
`equitable principle holding that one who receives benefits unjustly should make
`
`

`
`Case 3:14—cv-03847—M D
`-
`Case 3:14-cv-03847-M Document 1 Filed 10/28/14 Page 5 of 6 PageID 5
`ocument 1 Filed 10/28/14 Page 5 of 6 Page|D 5
`
`restitution for those benefits. City of the Colony v. Texas Mun. Water District, 272
`SW.3d 699, 731 (Tex. App Fort Worth 2008).
`It occurs when the person sought to be
`charged has wrongfillly secured a benefit or passively received one which would be
`unconscionable to retain. Villarreal v. Grant Geophysical, Inc, 136 S.W.3d 265, 270
`
`(Tex. App. San Antonio 2004).
`
`24. Defendant wrongfully secured a benefit from Plaintiff.
`25. The benefit obtained was the result of Defendant taking unfair advantage of Plaintiff in
`that the compensation demanded for the services rendered constitutes a ten—fold increase
`of the reasonable market value for the identical product/services provided to GTG.
`26. The ongoing and reasonable rate in the trade and industry to construct a website with the
`identical features of the GTG Website (and attendant GTG Source Code) is in the range
`
`of between $21 ,000.00 to $3 5,000.00.
`27. As ofthe date ofthis Complaint, Plaintiff has paid Defendant $290,301.63 with respect to
`
`the construction ofthe GTG Website and GTG Source Code.
`
`28. Plaintiff has been injured as a result of Defendanfs conduct aforesaid.
`29. Defendant should make restitution by disgorging to Plaintiff the benefits wrongfully
`
`obtained, to wit — the sum of $262,301.63.
`
`VI.
`
`PRAYER
`
`30. Plaintiff respectfully requests that judgment be entered with respect to all claims asserted
`
`herein.
`
`WHEREFORE, PREMISES CONSIDERED, Plaintiff request that Defendant
`
`be cited to appear and answer, and that on trial, Plaintiffs have:
`
`

`
`ent 1 F Iled 10/28/14 Page 6 of 6 Page“) 5
`Case 3:14-cv-03847-M Docum
`'
`Case 3:14-cv-03847-M Document 1 Filed 10/28/14 Page 6 of 6 PageID 6
`
`A. Judgment against Defendant in the amount of$262,301.63 with prejudgrnent interest
`thereon and post-judgment interest thereon at the highest legal rate from the date of
`
`judgment until paid;
`
`B. Judgment for Specific Perfo
`
`Imance requiring the Defendant to tender delivery ofthe
`
`GTG Source Code to Plaintiff;
`C. Attorney Fees and Costs as authorized under Texas Law; and
`
`D. Such other and further relief that may be just and proper.
`
`Respect
`
`y Submitted,
`
`
`
`Charles A. Moster
`Texas Bar No. 00797782
`The Moster Law Firm
`Charles@themoster1awfirrn.com
`4920 S. Loop 289
`Suite 102
`Lubbock, Texas 79414
`806.778.6486
`ATTORNEY FOR PLAINTIFF
`
`

`
`Case 3:14-cv-03847-M Document 1-1 Filed 10/28/14 Page 1 of 1 PageID 7
`Case 3:14—cv—O3847—M Document 1-1 Filed 10/28/14 Page 1 of 1 PagelD 7
`JS 44—TXND (Rev. 12/12)
`
`CIVIL COVER SHEET
`
`The IS 44 civil cover sheet and the information contained herein neither replace nor suppiement the filing and service of pleadings 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 I 974, is required for the use of the Clerk of Court tor the
`purpose of initiating the civil docket sheet.
`(SEE INSTRIJCTIONS ON NEXT PAGE OF ZFHJS FORM.)
`
`1. (a) PLAINTIFFS
`
`GREATER THAN GATSBY. LLC
`
`DEFENDANTS
`LIFT MEDIA, LLC
`
`
`ROCK\NA|_L COUNTY TX
`(I1) County ofResidence ofFirst Listed Plaintiff
`(EX(.'F:)”1"IN U.S. PLAINTIFF CASES)
`
`
`FULTON COU NTY GA
`County of Residence of First Listed Defendant
`(IN US. PLAINTIFF CASES ONLY)
`TN LAND CONDEMNATION CASES, USE THE LOCA'l'l0N OF
`THE TRACT OF LAND INVOLVED.
`
`NOTE:
`
`(C) Attorneys {Finn Name. Address, and Telephone Numbeij
`Charles A. Mostor. Esq.
`Moster Law Firm
`
`4920 8. Loop 289 - Suite ‘I02 — Lubbock, Texas 79414 806.778.6486
`
`Attorneys (17K”0W"}
`
`II. BASIS OF JURISDICTION (Place an "X" in C-‘neBox Only}
`
`J 1 US. Government
`Plaintiff
`
`Cl 3
`
`Federal Question
`(US. Govemmerzr N91 a Ferry)
`
`Citizen ofThis State
`
`III. CITIZENSHIP OF PRINCIPAL PARTIES (Place on or" in Om: BoxforPIaim1]j"
`(For Diversity Gzrses Orziyj
`and One Boxfar Defendam)
`PTF
`PTF
`DEF
`H I
`E 4
`Cl 4
`
`DEF
`Cl
`
`1
`
`Incorporated or Principal Place
`ofBusiness In This State
`
`J 2 US. Government
`Defendant
`
`H 4 Diversity
`{indicate Citizenship ofParties in Item {LU
`
`Citizen of Aizoflrer State
`
`El 2
`
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`Incorporated and Principal Place
`ofBusiness In Another State
`
`Citizen or Subject of a
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`
`El 3
`
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`
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`
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`
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`
`5
`
`6
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`El 6
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`
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`CI 8'70 Taxes (U.S. Plaintiff
`or Defendant)
`El 37] lRS—-Third Party
`26 USC 7609
`
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`D 462 I‘-iatttrallzration Application
`[3 465 Other hnrnlgration
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`
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`3 120 Manne
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`& Eiiforeement of Judgment
`E3 151 Medicare Act
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`l52 Recovery of Defaulted
`Student Loans
`(Excludes Veterans)
`U 153 Recovery of Overpayment
`of Vetei-a.n’s Benefits
`Cl 16!] Stockholders’ Suits
`E I90 Other Contract
`Cl 195 Contract Product Liability
`D 196 Fra.ricl1ise
`
`
`
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`
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`El 210 Land Condemnation
`D 220 Forectosure
`Cl 230 Rent Lease & Ejectment
`El 240 Torts to Land
`Cl 245 Tort Product Liability
`Cl 290 All Other Real Property
`
`
`
`
`
`
`
`
`
`(Piraw cm "X" In One‘ 3:11.’ Only)
`-T FORFEITUREIPENALTY
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`PERSONAL INJURY
`PERSONAL INJURY
`I: 625 D@ Related Seizure
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`Cl 365 Personal lnjury -
`of Property 21 USC 881
`3 315 Aimlane Product
`Product Liability
`D 690 Other
`Liability
`CI 367 Health Care.‘
`II 32!] Assault, Libel &
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`II 333 Federal Employers’
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`Liability
`C! 368 Asbestos Personal
`El 846 Trademark
`II 34ft Marine
`Injiiry Product
`
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`3 345 Marine Product
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`PERSONAL PROPERTY CI 710 Fair Labor Standards
`Liability
`II 350 Motor Vehicle
`CI 370 Other Fraud
`Act
`3 355 Motor Vehicle
`U 371 Truth in Lending
`CI 720 Labon/Management
`Product Liability
`I3 380 Other Personal
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`El 360 Other Personal
`Property Damage
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`CI 423 Withdrawal
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`El 862 Biack Lung (923)
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`D 375 False Claims Act
`El 400 State Reapportionment
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`D 430 Banks and Banking
`El 450 Commerce
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`Cl 890 Other Statutory Actions
`Cl 891 Agricultural Acts
`Cl 893 Environmental Matters
`D 895 Freedom oflnformation
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`El 896 Arbitration
`El 899 Adminisumive Procedure
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`Cl 950 Constitutionality of
`State Statutes
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`El 440 Other Civil Rights
`El 463 Alien Detainee
`El 441 Voting
`CI 510 Motions to Vacate
`Cl 442 Employment
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`!’.'J 443 Housing!
`CI 530 General
`Accommodations
`D 445 Amer. wi’Disabilitics ~ D 535 Death Penalty
`Employment
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`D 446 Amer. wi'Disabilil:ies - D 540 Mandamus &. Other
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`Cl 550 Civil Rights
`Cl 448 Education
`Cl 555 Prison Condition
`E3 560 Civil Detainee -
`
`Conditions of
`
`Cortfineinent
`
`V. ORIGIN {Place an
`in One Bat Only)
`[J 5 Transfencd fiorn
`El 4 Reinstated or
`3 Remanded from
`X 1 Original
`El 2 Removed from
`Anotlgsr District
`Reopened
`Appeliate Court
`Proceeding
`State Court
`(spear
`Cite the US. Civil Statute under which on are filing (Do not citejurisdictional smmtes unless diversity);
`
`28 USC 1332 a 3 28 USC 1332 3
`V1‘ CAUSE OF ACTION Briefdescription ofcause:
`
`VII. REQUESTED IN
`El CHECK IF THIS IS A CLASS ACTION
`DEMAND $
`CHECK YES only if demanded in complaint:
`
`C0Mp]_,A1N'r;
`UNDER RULE 23, F.R.Cv.P.
`262,301.63
`JURY DEMAND:
`[I Yes H No
`
`El
`
`El 6 Multidisnict
`Litigation
`
`
`
`VIII. RELATED PENDING
`CLOSED CASE(S)
`
`
`
`M '"'mm°m)' JUDGEIF ANY DOCKET NUMBER
`SEC-NATURE
`DATE
`URNEY or RECORD
`10/2812014
`FOR OFFICE USE ONLY
`
`RECEIPT ii‘
`
`ANIOUNT
`
`APPLYING [FP
`
`JUDGE
`
`MAG. JUDGE
`
`

`
`EXHIBIT 2
`EXHIBIT 2
`
`
`
`

`
`Case 1:14-mi-99999-UNA Document 2224 Filed 10/28/14 Page 1 of 8
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF GEORGIA
`
`(ATLANTA DIVISION)
`
`
`
`
`
`
`
` Case No. ________
`
`COMPLAINT FOR DECLARATORY
`RELIEF AND DAMAGES
`
`Trial Date: ___________________
`
`
`Plaintiff,
`
`LIFT MEDIA, LLC,
`
`
`
`
`v.
`
`GREATER
`HOHWEILER,
`JOSHUA
`THAN GATSBY, LLC, and DOES 1–10,
`
`Defendants.
`
`
`
`
`
`Plaintiff Lift Media, LLC (“Plaintiff”) alleges as follows:
`
`PARTIES
`
`
`
`1.
`
`Plaintiff is a Georgia limited liability company with its principal place of business at
`
`996 Huff Rd. NW, Suite D, Atlanta, Georgia 30318.
`
`2.
`
`Defendant Joshua Hohweiler (“Defendant Hohweiler”) is an individual with his
`
`principal place of business at 1729 Allende Court, Plano, Texas 75074.
`
`3.
`
`Defendant Greater Than Gatsby, LLC (“Defendant Gatsby”) is a Texas limited
`
`liability company with its principal place of business at 1729 Allende Court, Plano, Texas 75074.
`
`4.
`
`Defendant Does 1 through 10 are sued herein in fictitious names because the true
`
`names and capacities of said Defendants are not now known by Plaintiff who will ask for leave of
`
`this Court to amend this Complaint when they are ascertained.
`
`JURISDICTION AND VENUE
`
`5.
`
`This action arises under the laws of the State of Georgia, with a specific remedy
`
`sought pursuant to the Federal Declaratory Judgment Act, 28 U.S.C. § 2201, as well as damages
`
`sought pursuant to state law. An actual, substantial, and continuing justiciable controversy exists
`
`between Plaintiff and Defendants that requires a declaration of rights by this Court.
`
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`1
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`PLAINTIFF’S COMPLAINT
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`1
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`2
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`3
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`4
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`Case 1:14-mi-99999-UNA Document 2224 Filed 10/28/14 Page 2 of 8
`
`
`
`6.
`
`This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§
`
`1331, 1332(a)(1), and 1367(a).
`
`7.
`
`This Court has personal jurisdiction over Defendants by virtue of Defendants’
`
`purposeful contact with this judicial district, including: (i) the solicitation of Plaintiff within this
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`district; (ii) the conduct of substantial business with customers residing in this district; and (iii)
`
`contracting with Plaintiff as an entity incorporated under the laws of the State of Georgia with its
`
`principal place of business located in this district.
`
`8.
`
`9.
`
`Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391.
`
`FACTUAL BACKGROUND
`
`Plaintiff is the owner of an extensive, integrated, e-commerce platform upon which
`
`Plaintiff develops, operates, manages, and markets proprietary and third-party websites that engage
`
`in the marketing, distribution, and sale of consumer goods and services (the “Platform”).
`10.
`
`Defendant Hohweiler is the Manager of Defendant Gatsby, the registered owner of
`
`the domain name “www.greaterthangatsby.com” (the “Domain Name”) and the service mark
`“Greater Than Gatsby” (the “Mark”), and the owner of certain action, overlay, and preset tools for
`the manipulation of digital photographic imagery using Adobe Photoshop™ (the “Products”).
`11.
`
`Defendant Gatsby is the exclusive distributor of the Products for the purpose of
`
`making the Products available for sale to consumers.
`
`12.
`
`On or about September 27, 2013 (the “Effective Date”), Plaintiff and Defendant
`Gatsby entered into a joint venture (the “Joint Venture”) whereby: (i) Plaintiff agreed to employ the
`
`Platform in the development, operation, management, and marketing of a website to be newly
`
`created by Plaintiff for the purpose of marketing, distributing, and selling the Products; and (ii)
`
`Defendant Gatsby agreed to procure the Domain Name, Mark, and Products from Defendant
`
`Hohweiler for the purpose of marketing, distributing, and selling the Products on the Platform.
`
`13.
`
`On or about November 13, 2013 (the “Launch Date”), Plaintiff launched the
`Platform at “www.greaterthangatsby.com” under the branding “Greater Than Gatsby” (the
`“Website”), which has been operated continually by Plaintiff since the Launch Date.
`
`1
`
`2
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`3
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`4
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`5
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`6
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`7
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`8
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`9
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`10
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`11
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`12
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`24
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`25
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`26
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`27
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`28
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`
`
`2
`
`PLAINTIFF’S COMPLAINT
`
`

`
`Case 1:14-mi-99999-UNA Document 2224 Filed 10/28/14 Page 3 of 8
`
`
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`1
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`2
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`3
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`4
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`5
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`14.
`
`Pursuant to the terms of the Joint Venture, Plaintiff is entitled to a share of twenty
`
`percent (20%) of all monthly gross revenues derived from the Website, less direct internet
`
`marketing expenses and payment processing fees.
`
`15.
`
`Pursuant to the terms of the Joint Venture, Defendant Gatsby is entitled to a share of
`
`eighty percent (80%) of all monthly gross revenues derived from the Website, less direct internet
`
`marketing expenses and payment processing fees.
`
`16.
`
`From the Launch Date through and including August 31, 2014, Defendant Gatsby
`
`has retained its aliquot share of the monthly Joint Venture gross revenues, net of direct internet
`
`marketing expenses and payment processing fees, totaling in excess of $1,200,000.00.
`
`17.
`
`From the Launch Date through and including August 31, 2014, Defendant Gatsby
`
`remitted Plaintiff’s aliquot share of the monthly Joint Venture gross revenues, net of direct internet
`
`marketing expenses and payment processing fees, totaling approximately $290,301.63.
`
`18.
`
`Defendant Gatsby owes Plaintiff not less than $63,464.94 for its aliquot share of the
`
`monthly Joint Venture gross revenues, net of direct internet marketing expenses and payment
`
`processing fees, for the period from September 1, 2014 through October 27, 2014.
`
`19.
`
`On October 23, 2014, Defendant Hohweiler, individually and as Manager of
`
`Defendant Gatsby, informed Plaintiff via telephone conversation that: (i) beginning Nove