Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA286673
`ESTTA Tracking number:
`05/29/2009
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`92050571
`Plaintiff
`The Nokota Horse Conservancy, Inc.
`James H. Johnson
`Sutherland, Asbill & Brennan
`999 Peachtree St. NE
`Atlanta, GA 30309
`UNITED STATES
`james.johnson@sutherland.com, jason.prine@sutherland.com,
`greg.dillard@sutherland.com
`Motion to Suspend for Civil Action
`Jason M. Prine
`james.johnson@sutherland.com, jason.prine@sutherland.com,
`greg.dillard@sutherland.com, david.weslow@sutherland.com
`/Jason M. Prine/
`05/29/2009
`Petition to Suspend AS FILED.pdf ( 19 pages )(552913 bytes )
`
`Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`
`Signature
`Date
`Attachments
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`

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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`E-FILING
`
`Cancellation No.
`
`:
`
`92050571
`
`In re Registration No. :
`For the Mark
`:
`
`2,871,581
`NOKOTA
`
`Registered on
`
`:
`
`August 10, 2004
`
`
`
`
`The Nokota Horse Conservancy, Inc.,
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`Petitioner,
`
`v.
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`David J. Bernhardt,
`
`Registrant.
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`PETITIONER’S MOTION TO SUSPEND PROCEEDINGS
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`In the matter of the above-identified Cancellation No. 92050571, Nokota Horse
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`Conservancy, Inc. (“Petitionert”) hereby moves the Trademark Trial and Appeal Board to
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`suspend the cancellation proceeding against Registrant pursuant to 37 C.F.R. § 2.117(a) in light
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`of a civil action now pending between the parties.
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`SUMMARY OF FACTS
`
`On May 5, 2009, Petitioner filed a civil action against Registrant in the United States
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`District Court for the District of North Dakota. The civil action asserts claims of common law
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`trademark infringement, federal and state law unfair competition, fraud on the USPTO, and also
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`contains a claim for relief requesting that the District Court cancel U.S. Reg. No. 2,871,581. The
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`civil action is docketed as Civil Action No. 1:09-cv-00024- DLH-CSM, and a file—stamped copy
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`of the Complaint is attached hereto as Exhibit A.
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`ARGUMENT
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`Pursuant to Trademark Rule 2.117(a), the Trademark Trial and Appeal Board may
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`33557071
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`

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`suspend proceedings pending before the Board when the parties are involved in a civil action that
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`may have a bearing upon the Board proceeding. Indeed, the Board will ordinarily suspend
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`proceedings when a civil action for trademark infringement is pending between the parties. See
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`TBMP § 510.02(a) (citing, inter alia, Other Telephone Co. v. Connecticut National Telephone
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`Co., 181 USPQ 125 (TTAB 1974)).
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`The civil action now pending before the United States District Court for the District of
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`North Dakota involves issues in common with the instant opposition proceeding. Petitioner’s
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`allegations of priority and claims for trademark infringement overlap with and have a clear
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`bearing upon Petitioner’s allegations in the cancellation proceeding, and the United States
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`District Court’s decision in the civil action may be binding upon the Trademark Trial and Appeal
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`Board. See e. g. Danskin, Inc. v. Dan River, Inc, 182 USPQ 370, 372 (CCPA 1974) (affirming
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`the Board’s decision granting summary judgment based upon disposition of a prior civil action).
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`WHEREFORE, Petitioner respectfully requests that the Trademark Trial and Appeal
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`Board order a suspension of the instant cancellation proceeding pending the outcome of the civil
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`action in United States District Court for the District of North Dakota
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`Respectfully submitted,
`
`LL & BRENNAN LLP
`
`
`
`Date: May 29, 2009
`
`B
`
`James H. Johnson
`David E. Weslow
`
`Jason M. Prine
`
`999 Peachtree Street, NE
`
`Atlanta, Georgia 30309-3996
`404-853-8000 (telephone)
`404-853-8806 (facsimile)
`James.orr@sutherland.com
`Attorneys for Applicant
`
`83557011
`
`2
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`

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`PROOF or SERVICE
`
`[F.R.C.P. Rule 5, F.R.A.P. 25]
`
`I declare that I am employed in Atlanta, Georgia; I am over the age of 18 and am not a
`party to the above identified action; my business address is 999 Peachtree St., NE, Atlanta, GA
`30309-3996. On the date set forth below, I served a true and accurate copy of the document(s)
`entitled: PETITIONER’S MOTION TO SUSPEND PROCEEDINGS on the party(ies) in
`this action by placing said copy(ies) in a sealed envelope each addressed as follows:
`
`David J. Bernhardt
`
`8175 Highway 3
`Wishek, ND 58495
`
`E [By First Class Mail] I am readily familiar with Sutherland Asbill & Brennan
`LLP's practice for collecting and processing documents for mailing with the United States Postal
`Service. On the date listed herein, following ordinary business practice, I served the within
`docu1nent(s), by placing a true copy thereof, enclosed in a sealed envelope, with postage thereon
`fully prepaid, for collection and mailing with the United States Postal Service where it would be
`deposited with the United States Postal Service that same day in the ordinary course of business.
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`[By Overnight Courier] I caused each envelope to be delivered by a commercial
`C]
`carrier service for overnight delivery to the offices of the addressee(s).
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`[By Hand] I directed each envelope to the party(ies) so designated on the service
`C]
`list to be delivered by courier this date.
`'
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`[By Facsimile Transmission] I caused said document to be sent by facsimile
`I:]
`transmission to the fax number indicated for the party(ies) listed above.
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`[By Electronic Transmission] I caused said document to be sent by electronic
`I:
`transmission to the e-mail address(es) indicated for the party(ies) listed above.
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`Dated: May 29, 2009
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`8355707.!
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`3
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`

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`EXHIBIT A
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`

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`CM/ECF - ndd
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`Page 1 of l
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`COPY/PATENT/TRDMK
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`U. S. District Court for the District of North Dakota (Southwestern)
`CIVIL DOCKET FOR CASE #: 1:09-cv—00024—DLH-CSM
`
`Nokota Horse Conservancy, Inc. V. Bernhardt
`Assigned to: Chief Judge Daniel L. Hovland
`Referred to: Magistrate Judge Charles S. Miller, Jr
`Demand: $1,000,000
`Cause: 15: 105 I Trademark Infringement
`
`Date Filed: 05/01/2009
`Jury Demand: Plaintiff
`Nature of Suit: 840 Trademark
`Jurisdiction: Federal Question
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`l_’laintiff
`
`Nokota Horse Conservancy, Inc.
`
`V.
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`Ififendant
`
`David J Bernhardt
`
`represented by Donald R. Becker
`201 S. Broadway
`PO Box 658
`
`Linton , ND 58552
`701-254-4623
`
`Email: aweninge@nd.gov
`ATTORNEY TO BE NOTICED
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`Date Filed H Docket Text
`05/01/2009
`1 COMPLAINT against David J Bernhardt (Filing fee $350, receipt number
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`BI002239) filed by Nokota Horse Conservancy, Inc. (Attachments: # 1 Civil
`Cover Sheet J S 44)(rm) (Entered: 05/05/2009)
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`
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`Summons Issued as to David J Bernhardt. (rm) (Entered: 05/05/2009)
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`
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`05/05/2009
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`
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`
`
`
`sa0064
`Docket
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`Client Code:
`Search
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`990501317
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`
`
`l:09—cv-O0024-DLH-
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`
`
`l;‘3£:'_R
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`Description:
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`
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`Criteria:
`CSM
`Report
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`Cost: .08
`Billable Pages:
`1
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`https://ecf.ndd.uscourts.g0v/cgi-binfDktRpt.pl?433478898009796—L_801_0- 1
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`5/29/2009
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`

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`D
`
`I
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`UNITED STATES DISTRICT COURT
`
`DISTRICT OF NORTH DAKOTA
`
`(SOUTHWESTERN DIVISION)
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`
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`NOKOTA HORSE CONSERVANCY, INC.
`
`Plaintiff,
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`_ V.
`
`DAVID J. BERNHARDT
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`Defendant.
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`Civil Action No.
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`1: 03 - cv - oat}
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`JURY DEMANDED
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`
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`COMPLAINT
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`Plaintifi, Nokota Horse Conservancy, Inc. (“NHC”), for its complaint against defendant
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`David J. Bernhardt (“Defendant”), alleges:
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`NATURE OF THE SUIT
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`1.
`
`This is an action for trademark infringement, false designation of origin, unfair
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`competition, and fraud on the U.S. Patent and Trademark Office under federal law and related
`state law causes ofaction arising from Defendant’s wrongful actions in connection with the
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`commercial use of the purported trademark NOKOTA. Such acts have injured and are likely to
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`continue injuring Plaintifi” and unless restrained will continue to cause such damage and harm.
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`PARTIES
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`2.
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`NHC is a non—profit corporation organized and existing under the laws of the state
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`of North Dakota, having its office and principal place of business at 208 NW 1st Street, Linton,
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`North Dakota 58552..
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`3.
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`Upon information and belief, defendant David I. Bernhardt is an individual with a
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`

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`home address of8115 Highway 3, Wishek, North Dakota 58495.
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`JURESDKITION AND VENUE
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`4.
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`This is a civil action arising under the Trademark Act of 1946, 15 U.S.C. § 1051,
`
`i et seq., as amended (hereinafter “Lanha.tn Act”), as well as related state law claims ofunfair
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`competition. This Court hasjuxisdiction under 28 U.S.C. _§ 1331 {federal questionjurisdiction);
`
`28 U.S.C. § 1338(3) (any act of Congress relating to patents, copyrights and trademarks); 28
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`U.S.C.§ 133803) (action asserting a state claim ofunfair competifionjointly with a substantial
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`and related federal claim under the patent, copyright or tradeniaric laws); 28 U.S.C. §.1367
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`(supplemental jurisdiction); and the doctrines ofanciilary and pendentjurisdiction
`
`5.
`Defendant is now, -and at times relevant to this complaint has been, subject to
`personaljurisdiction in the State ofNorth. Dakota and the Disnict ofNorth Dakota.
`6.
`Venue is proper in this District pursuant to 28 USC. §§ 1391(b)(1) and (2)
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`because, on informafion and belief, a substantial part ofthe events giving rise to the alleged
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`claims in this action occurred in this District, and Defendant resides in and/or has a place of
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`business in this District.
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`l\iHC"S TRADEMARK RIGHTS
`
`— 7.
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`NHC is the owner ofthe trademarks NOKOTA and THE NOKOTA HORSE
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`CONSERVANCY collectively referred to as the “NOKOTA MarK'sf’
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`8.
`NHC has extensively used the NOKOTA Marks in commerce in connection with
`its services concerning a unique breed ofhorses and has established common law rights in and to
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`the NOKOTA Marks.
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`9.
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`NHC has used its NOKOTA marks in US. commerce from at least as early as
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`1990 when its predecessor in interest coined the term NOKOTA to refer to a specific breed of
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`2
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`

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`horse that is descended from horses in the Theodore Roosevelt National Park. These horses have
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`been managed as a distinct breed since at least 1982.
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`10.
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`NHC works to preserve this unique breed of horses through various activities
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`inciuding maintaining a breed registry and standards, caring for remaining examples ofthe breed
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`and breeding stock, and-working to create a sanctuary in which the population can thrive.
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`I1. .
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`By virtue of extensive promotion and use, the NOKOTA Marks have become well
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`known to the public as a source indicator for services associated with the preservation and
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`conservation of a specific breed ofwild horses.
`12.
`Because NHC, through its founders and predecessors in interest, coined the term
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`NOKOTA and expended considerable effort and resources towards its promotion and
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`recognition, consumers have come to associate the NOKOTA "Marks with NHC.
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`S’ INFRINGING ACTS
`;l.).____...._____....___...___...__.._._.._
`
`13,
`
`Defendant David J. Bernhardt appfied for and received a federal trademark
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`registration , US. No. 2,871,581, for horse breeding and stud services.
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`14.
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`Defendant was a member of NHC’s Board of Directors prior to filing his
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`trademark application for NOKOTA and, as such, was well aware ofNHC’ s prior rights to the
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`NOKOTA mark.
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`15.
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`Upon information and belief, Defendant operates a commercial business using the
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`alleged NOKOTA mark in the advertising, promoting, and selling of a variety of services related
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`to horse breeding.
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`16.
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`The wording of Defendant’s NOKOTA mark is similar in visual appearance to
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`NHC’s NOKOTA Marks.
`.1 7'.
`Defendanfs NOKOTA mark is similar in sound to NHC’s NOKOTA Marks.
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`3
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`

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`18.‘
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`De-fendant’s NOKOTA mark is identical and/or similar in commercial impression
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`to NHC’s NOKOTA Marks.
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`19.
`The services promoted md sold by Defendant through use ofthe NOKOTA mark
`are closely related and/or identical tothe goods and services provided byNHC through use ofits
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`NOKOTA. Marks.
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`20. Niic has sought the cancellation of U.s. Registration No. 2,371,531 on the basis of
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`fitaud because Defendant filed the application issued as Reg. No. 2,871,581 knowing that he was
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`not the owner ofthe NOKOTA mark and was not entitled to regisuation ofthe NOKOTA mark.
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`Said cancellation proceeding is now pending before the Trademark Trial and Appeal Board ofthe
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`USPTO. NI-I_C intends to file a Motion to Stay the cancellation proceeding with the Trademark
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`Trial and Appeai Board due to the pendency of this action.
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`FIRST CLAJM FOR RELIEF
`
`1 [rademark Infringement ~— Federal Law}
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`21.
`
`Plaintiffrepeats and realleges each and every allegation set forth in the foregoing
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`paragraphs, as though fiilly set forth herein.
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`22.
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`Notwithstanding NI-IC’s rights in the NOKOTA Marks, and with actual and/or
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`constructivekriowledge ofthe NOKOTA Marks, Defendant is promoting and selling in interstate
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`commerce various services related to horse breeding under the NOKOTA mark without NHC’s _
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`authorization or consent. Such use by Defendant ofthe NGKOTA mark is likely to cause
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`confusion, deception and mistake among the members ofthe public and the trade as to the source.
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`or affiliation ofor between Defendant and NHC.
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`23.
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`Defendarit’s unauthorized and wrongful use ofthe NOKOTA mark in connection
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`with services related to horse breeding, is likely to confuse and deceive members ofthe public
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`

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`and trade as to the origin, sponsorship and affiiiation of the services promoted and sold by
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`Defendant, and to cause such persons to mistakenly befieve that services promoted and sold by
`M
`Defendant originate from, are sponsored by, oraffiliated withNHC.
`24.
`Defendanfs unauthorized and wrongfizi use ofthe NOKOTA mark in connection
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`with services related to horse breeding is likely to confuse and deceive menabers ofthe pubiic
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`and trade as to the origin, sponsorship and affiliation ofthe goods and services promoted and
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`sold by NHC, and to cause such persons to mistakenly believe that the goods and services
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`promoted and sold by NHC originate from, are sponsored by, or affiliated with Defendant.
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`The foregoing actions ofDefendant have caused harm and irreparable injury to
`25.
`NHC and, unless said acts are enjoined by the Court, said acts will continue and Nnc will
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`continue to sufier harm and irreparable injury.
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`26.
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`NHC has sufiered, and will continue to suffer damages as a result of Defenclanfs
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`_ actions in an amount to be proven at trial.
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`27.
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`The above acts by Defendant constitute trademark infringement of the NOKOTA
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`Marks in violation of Section 43(a) of the Lanham Act, 15 13.5.0. § l125(a).
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`28.
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`Upon information and belief, the foregoing actions of Defendant have been
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`knowing, deliberate, willful and in utter disregard ofNHC’s rights.
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`SECOND CLAW FOR RELIEF
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`gflnfair Comgetition - Federal Law)
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`29.
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`Plaintiffrepeats and realleges each and every allegation set forth in the foregoing
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`paragraphs, as though fully set forth herein.
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`30.
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`Upon information and belief, Defendant was aware ofNHC’s use of the
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`NOKOTA Marks prior to Defendanfs adoption and use ofthe NOKOTA mark in the
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`

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`advertising, promoting, and selling ofa variety of services related to horse breeding.
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`31.
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`Defendanfs aforementioned actions create, cause and/or contribute to a false
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`association between Defendant and products and services promoted and sold by NHC.
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`Defendant’s actions have caused and contzibuted to consumer confusion as to the origin of, or
`afiiiation between, Befendant and NHC and its products and
`and have traded unfairly
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`upon NHC’s goodwill and reputation, and continue to do so.
`32.
`The foregoing actions of Defendant have caused norm and irreparable injury to
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`NHC and, unless said acts are enjoined by the Court, said acts will continue and NHC will
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`continue to suffer harm and irrepasable
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`33.
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`NI-EC has suffered, and will continue to sufier damages as a result of Defendanfs
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`actions in an amount to be proven at trial.
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`34.
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`'l“he'above acts by Defendant constitute unfair competition in violation of Section
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`43(a) ofthe Lanham Act, 15 U.S.C. § l125(a).
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`35.
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`Upon information and belief, the foregoing actions ofDefendant have been
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`knowing, deliberate, willful and in utter disregard of NHC’s tights. ,
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`THIRD CLAIM FOR RELIEF
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`alse Des‘
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`ation of Ori ‘
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`- Federal Law
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`36.
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`Plainfifi repeats and realleges each and every allegation set forth in the foregoing
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`paragraphs, as though folty set forth herein.
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`37.
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`The use by Defendant ofthe NOKOTA mark is a false designation of origin that
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`‘W1-ongly and falsely designates that the services promoted and sold by Defendant now, or in the
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`future, originate fiom, are connected with, authorized by, or otherwise associated with NHC.
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`38.
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`The foregoing actions of Defendant have caused harm and irreparable injury to
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`

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`NHC and, unless enjoined by the Court, said acts will continue and NHC will continue to suffer
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`harm and irreparable injury.
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`39.
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`NBC has sufiered, and will continue to suffer damages as a result of Defendant’s
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`actions in an amount to be proven at trial.
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`40.
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`The above acts by Defendant constitute false designation of origin in violation of
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`Section 43(3) of the Lanharn Act, 15 U.S.C. § il25(a).
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`41.
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`Upon information and belief, the foregoing actions of Defendant have been
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`knowing, deliberate, willful, and in utter disregard ofNHC’s rights.
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`FOURTH CLAIM FOR RELIEF
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`gfir-and on the USPTO - Federal Law)
`ldaintifirepeats and realleges each and every allegation set forth in the foregoing
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`42.
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`paragraphs, as though fully set forth herein.
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`43.
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`Upon information and belief, U.S. Trademark Registration No. 2,871,581 for the
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`NOKOTA mark was obtained through fraud in violation of the Trademark Act in that in the
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`formal application papers filed, under notice of 18 73.8.0. § 1001', Defendant swore and aflinned
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`the following: “he/she believes the applicant to be the owner ofthe trademark/service mark
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`sought to be registered, or, if the application is being filed under 15 U.S.C. Section 1051(0),
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`he/she believes applicant to be entitled to use such mark in commerce; to the best of his/her
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`knowledge and belief no other person,
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`corporation, or association has the right to use the
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`mark in commerce, either in the identical forrn thereof or in such near resemblance thereto as to
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`be likely, when used on or in connection with the goods/services of such other person, to cause
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`confusion, or to cause mistake, or to deceive; and that all statements made of hisfher own
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`knowledge are true; and that all statements made on information and belief are believed to be_
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`

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`true.”
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`44.
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`Upon information and belief on or before the date Defendant signed the
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`trademark application, Defendant had actual millor constructive knowledge that Defendant was i
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`not entitled to use or register the NOKOTAn:1ark Without authorization from NHC, and such
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`registration and use ofNOKOTA by Defendant was likely to cause confixsion with the N1-IC’s
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`NOKOTA Marks.
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`45.
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`Upon information and belief, said
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`statements by Defendant were made to the
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`U.S. Patent and Trademark Office with the knowledge and belief that the statements were false.
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`46.
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`Upon information and belief, the false statements were material and were made
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`by Defendant with the -intent to induce authorized agents ofthe U.S. Patent and Trademark
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`Office to approve and grant said application, and, reasonably reiying upon the truth ofsaid false
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`statements, the U.S. Patent and Trademark Office did, in fact, issue U.S. Regstration No.
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`2,871,581.
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`47.
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`The above acts by Defendant constitute fiend on the U.S. Patent and Trademark
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`Office and render Registration No. 2,871,581, void for -fraud.
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`FIFTH CLAIM FOR RELEF
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`§Common Law Trademark Infringement and Unfair Competition}
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`48.
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`Plaintifi"repeats and realleges each and every allegation set forth in the foregoing
`
`paragraphs, as though fully set forth herein.
`49.
`The foregoing actions ofDefendant constitute trademark infiingernent and unfair
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`competition in vioiation of NHC’s rights under the common law of the State of North Dakota.
`
`i
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`50.
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`Upon information and belief, the foregoing actions ofDefendant werecoinnritted
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`willfully, knowingly, maliciously and in conscious disregard of NHC’s rights.
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`

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`-51.
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`The foregoing actions of Defendant have caused immediate and irreparable injury
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`to NHC’s property and business.
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`' PRAYER FOR RELEF
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`WHEREFORE, NHC respectfully requests ofthis Court;
`
`1.
`
`2.
`
`That judgment be entered in favor of NHC and against Defendant on all counts;
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`That judgment be entered in favor ofNHC and against Defendant for all damages
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`sustained by NHC due to Defendant’s trademark inflingement; unfair competition, faise
`designation oforigin, fraud on the USPTO, andunfair and deceptive trade practices in violation
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`ofthe Lanham Act and North Dakota state law;
`
`3.
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`That an accounting be ordered in favor ofNHC and against Defendant for all
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`profits received due to Defendant’s_. trademark infringement, unfair competition, false designation
`oforigin, fiaud on the USPTO, and lmfair and deceptive trade practices in violation ofthe
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`Lanham Act and Noni Dakota state law;
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`4.
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`That actua1,compensatory, statutory, punitive and/or exemplary damages, where
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`available, be entered against Defendant for his wrongful actions;
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`5.
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`That Defendant be required to pay NHC statutory damages of $1,000,000 i
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`pursuant to 15 U.S.C. § 11 I7(c)(2);
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`6.
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`That the award to NHC for Defendant’s trademark infringernent, unfair
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`competition, and false designation of origin in violation ofthe Lanham Act be trebled andfor
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`increased pursuant to 15 U.S.C. § 1117(b);
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`7.
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`-
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`That the Court order an award of costs and reasonable attorneys’ fees, pursuant to
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`15 U.S.C._ § 1 117(a), or as otherwise permitted by law, incurred by NHC in connection with this
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`action;
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`8.
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`That NHC be awarded pre-judgn1ent interest and post~judgment interest on the
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`above damages award;
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`

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`9.
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`That the Court preliminarily and permanently enjoin Defendant from:
`
`a)
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`Imitating, copying or maldng unauthorized use of the NOKOTA Marks
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`or any other confusingly similar variation thereof;
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`b)
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`c)
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`Making any further use of the NOKOTA mark;
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`I Granting or purporting to grant permission to use the NOKOTA mark;
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`d)
`. Transferring, conveying or assigning the NOKOTA mark to any person
`or entity other than NHC;
`'
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`e)
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`Promoting, providing, selling or displaying any products or services
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`through use of the NOKOTA Marks, or any copy or colorable imitafion of the NOKOTA Marks,
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`or the NOKOTA mark; and
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`t)
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`Using any copy or colorable imitation of the NOKOTA Marks in
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`connection with the promotion, advertisement, display, sale, ofiering, for sale, manufacture,
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`printing, importation, production, circulation or distribution of any product or service, in such
`
`fashion as to relate or connect such product or service in any way to NHC, or to any goods or
`
`services sold, manufactured, sponsored or approved by, or connected with NHC.
`10.
`That the Court order such relief
`it may deem appropriate to prevent the trade
`
`and public fiom deriving any erroneous impression that any product or service displayed,
`
`advertised, sold or otherwise circulated or promoted by Defendant originates from, is affiliated
`With, or sponsored by, NHC;
`_
`
`11.
`
`That the Court order Defendant to assign the NOKOTA mark to NHC or,
`
`alternatively, that the Court instruct the US. Patent and Trademark Office to cancel Registration
`
`No. 2,871 ,58i for the NOKOTA mark; and
`
`12.
`
`That NHC be awarded such other and further relief as the Court may deem just
`
`and proper.
`
`

`
`DEMAND FOR JURY TRIAL
`
`Pursuant to Rule 38 of fhe Federal Rules of Civil Procedure, Plaintiff hereby demands a
`
`jury use on issues triab
`
`by a jury.
`
`as
`DATED: April 50, 2009
`
`Respectfully Submitted,
`
`By:
`
`Donald R. Becker
`P.O. Box 658
`
`93994)
`
`Linton, ND 58552
`Teiephone: 701.254.4623
`Facsimile: 701.254.4943 _
`Email: dbecker@nd.gov
`
`Qf Counsel
`James A. Orr
`
`Iason_M. Prine
`Sutherland Asbi11& Brennan LLP
`999 Peachtree St. NE
`
`Atlanta, GA 30309
`Telephone: 404.853 .8000
`Facsimile: 404.853.8806
`Email: james.or1'@sutherland.com
`Email:
`jason.prine@suther1and.co1:z1
`
`David E. Weslow
`Sutherland Asbill & Brennan LLP
`
`1275 Pennsylvania Ave. NW
`Washington, 13.0 20004
`Telephone: 202.383.0106
`Facsimile: 202.637.3593
`
`Emaii: davicLwes1ow@sutherlaad.com
`
`Attorneysfor Plaintgfi"
`Nakota Horse Conservancy, Inc.
`
`11
`
`

`
`A0 440 (Rev. 8101) Summons in a Civil Action
`
`
`United States District Court
`Southwestern Division - District of North Dakota
`
`Nokota Horse Conservancy, Inc.
`
`David J. Bernhardt
`
`SUMMONS IN A CIVIL CASE
`
`CASE NUMBER: 1:09-cv-024
`
`TO:
`
`Above Named Defcndant(s)
`
`YOU ARE HEREBY SUMMONED and required to serve on
`
`PLAINTlFF'S ATTORNEY (name and address)
`
`Donald R. Becker
`PO Box 658
`
`Linton, ND 58552
`
`PH: (701) 254-4623
`
`an answer to the complaint which is served on you with this summons, within Tweng [20] days after service of
`this summons on you, exclusive ofthe day of service. If you fail to do so, judgment by default will be taken against
`you for the relief demanded in the complaint. Any answer that you serve on the parties to this action must be filed
`with the Clerk of this Court within a reasonable period of time after service.
`
`
`ROBERT ANSLEY
`Clerk
`
`May 5, 2009
`
`/s/ Roxanne Muffenbier
`
`By Deputy Clerk
`
`

`
`
`
`A0 440 Rev. 8/01 Summons in a Civil Action
`
`
`
`Service of the Summons and
`Com Iaint was made b me‘
`
`DATE
`
`RETURN OF SERVICE
`
`Check one box below to indicate a roriate method of service
`
`
`
`D
`
`Served personally upon the defendant. Place where served:
`
`
`
`
`
`El
`
`
`
`
`
`
`Left copies thereof at the defendant's dwelling house or usual place of abode with a person of suitable
`age and discretion then residing therein.
`Name of person with whom the summons and complaint were left:
`
`
`
` Returned u nexecuted:
`
` Other (specify):
`
`
`
`
`
`STATEMENT OF SERVICE FEES
`
`SERVICES
`
`TOTAL
`
`DECLARATION OF SERVER
`
`
`
`TRAVEL
`
` I declare under penalty of perjury under the laws of the United States of America that the foregoing
`
`
`information contained in the Return of Service and Statement of Service Fees is true and correct.
`
`
`
`Executed on
`
`Signature of Server
`
`
`
`Address of Server
`
`1) As to who may serve a summons see Rule 4 of the Federal Rules of Civil Procedure.
`
`

`
`. CIVIL COVER SHEET .
`W4 <r<=v—w«m
`asprovided
`The15 44civilcoversheerandtheiuforuaaiionourmaingdhereinneitherre lacenorsu pleznentthefiiingandservicenfplcadingsorothergapers asreguiredbylaw,
`by lo_cal rules ofcourt. This form, approved by the Judicial Conference 0 the United tatcs in September 1974, is required for the use of
`:3 Clark of curt for the purpose ofmitiaiing
`the clvil docket sheet.
`(SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)
`
`I. (a) PLAJNTIFFS
`Nokota Horse Conservancy, inc.
`
`
`
`DEFENDANTS
`Bernhardt, David J.
`
`
`EFTIFHOTIS
`(b) County ofResidence ofFirst Lisind Plai.n1iEE'
`County ofkesidemze ofFirst Listed Defendant
`Mclntosh
`(ECCEFF 1NU.S. PLAIN'I'[E-‘F CASES)
`(IN US. PLADTTIFF CASE“: ONLY)
`IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE
`LAND ENVOLVED.
`
`NOTE:
`
`and Talqahtme Nlnnbez) -
`ii-mNamc,A
`(C) Attomegfs
`Becker. Bec er Law Office, P.O. Box 658,
`Dona d
`Linton, ND 58552—O658 - 091) 254-4523
`
`AIIDEIBYS (I.fKnmvn)
`
`
`
`
`
`
`II. BASIS OF JURISDICTION (Place an “X” in One Box Only)
`III. CITIZENSHIP OF PRINCIPAL PARTIES(Place an “X” in One Box forP1aintifi‘
`(F01 Diversity Cases Only)
`said One Box fur Defmdant)
`U i U.S. Gavemsxbent
`PTF
`PTF
`DEF
`Plaintiff
`CI
`E
`CI 4
`Cl 4'
`
`H 3 Federal
`(U.S. Govemmsat Not a Party)
`
`Citizen ofTlxis State
`
`DEF
`El
`1
`
`Incorporated arPri.m:ipal Piace
`ofBu5i11ess]n This Stare
`
`
`
`CI 2 US. Gova-um:-at
`Defendant
`
`D 4 Diversity
`(Indium ._
`
`but
`
`,
`
`inkemlm
`
`Citizen ofAnnfl1er Stat:
`
`El 2
`
`D 2
`
`_
`
`I3 5
`
`CI 5
`
`Banking,
`
`
`
`
`
`Prodllct
`
`
`
`D 120 Marine
`Ci 130 N.|3]lcr Act
`Liability
`Cl 140 Negotiable Instrument
`320 Assault, Libel 8'.
`:3 150 Recoveiy ofoverpaymnnt CI
`Slander
`&EI1fl3ICa11mlt0fJLIdg1nen
`330 Federal Employers’
`E} 151 Medians Act
`Liability
`El 152 Rccovuy ofDefaulted
`I3 340 1\-Iarine
`Studenx Loans
`Cl 345 Marine Product
`{Em}. Veterans)
`Liability
`I: 153 Rccovery ofOverpayment
`Cl 350 Motor Vehicle
`ofVctem1’s Benefits
`El 355 Motor Vehicle
`El 160 Stcckholdcrs’ Suits
`Product Liability
`El 190 0132:": Contact
`El 195 Contract Product Liability Cl 360 Oflacr Personal
`in
`CI 195 Fmnchisc
`
`
`
`
`
`
`.
`
`II
`
`‘
`
`
`
`CF
`
`Incarporawd-andPrinci;3a1P1ace
`ofBus1nessInAI1nfi1=rS1me
`D 6
`CI 6
`Foreign Nation
`3
`CI
`D 3
`Citizm or Sulziect of2:
`Fore"
` IV. NATURE OF SUIT P:acean“X“jn_0ne13ox u.
`
`
`PERSONAL INJURY
`' PERSONAL INJURY
`LI 610
`CI 422 Appeal 28 USC 158
`400 State
`
`CI
`3IOAi-i-plan:
`E1
`362 Personal in_'rury-
`D 620 Ofl1eIFood&.Drug
`El 423 Wilhdrawal
`410.A.11ti11'ust
`U 315
`Med.
`U 625 Dmg Re-laied Seizure
`23 USC 157
`430 Banks
`ufPmpcrty 21 USC 881
`III 365 Personal Injury —
`450 Cummeroe
`
`El 630 Liquor Laws
`Product Liability
`460 Dwortati.
`
`
`El 640 RR. & Tmck
`El 368 Asbestos Pasnnal
`470 Rackeaxacr Influenccd and
`
`D 650 Airline Regs.
`Injtwy Product
`Corrupt Organizations
`
`.
`Cl 660 Oc-wpaliunal
`Liability
`430 Consumer Credix
`PERSONAL PROPERTY
`Safietyll-Iealih
`490 Cablelsat TV
`El 370 Oti1ea'F.rmJd
`El 690 Other
`810 Selective Service
`Cl 371 Truth in Lending
`U 850 Secmities:'Commodi1iesf
`
`El 861 HIA (139513)
`Cl 38001112: Pu-sonal
`Exchange
`
`Cl 862 Black Lung (923)
`El 875 Customs Challenge
`Pmpeny Damage
`Cl 335 Property Damage
`12 USC 3410
`
`U 730
`El 864 SSID Title XVI
`CI S90 0315 Stamwry Actions
`Pro-dud
`
`
`& Discloalrv: Act
`CI 865 RSI (405 ))
`S91 Agicultlrral A315
`
`El 74oRnilW=Y1«'Ib0rAct
`392E<=0n0n1icS13bi1izati0nAct
`El 790 Other Labor Litigafion
`893 Environmental Matters
`510 Motions to Vacate
`Cl 791 EmpL Rat. Inc.
`894 Enczrgy Allocasiun Act
`Sentence
`Security Act
`895 Freedom ofinformatiun
`Habus Corpus:
`Act
`530 General
`
`
`.
`,
`900Appea1 ofFee m
`535 Demzh Penalty
`CI 462 Nzmralizafiun Application
`Under Equal Access
`540 Ma.n.danms & Ofimr
`445 Anosr. W/Disabilities —
`El 463 Habeas Corpus -
`to Justice ‘
`Employmmt
`El 550 Civil Rights
`-
`446 Ame‘. wlDisabiiiIies -»
`555 Prison Condition
`Alien Detainee
`950 Constimtimmlity af
`Oflmer
`CI 465 Other Immigrafion
`State Statutes
`
`440 Other Civil Rights
`‘
`Actions
`
`
`
`
`
`
`
`
`
`El 210 Land Cnndcmnmion
`D 220FoIu:losurc
`El 230 Re11tLeasc & Ejwtment
`D 240 T0115 to Land
`El 245 Tort: Product Liabifity
`El 290 All Olher Real Property
`
`
`
`
`
`
`
`
`
`
`
`
`
`(PIaocan“X"inOneBaxOnly)
`V. ORIGIN I
`D 2 Removedfiem
`[:1 3 Remandedfr
`31
`‘mm
` g State Court
`Appellate coiiii
`
`
`tated
`:1 411:’
`Regspened of
`
`-51 5
`
`fito District
`ftp
`edfim
`Tmsf
`0'?“
`“ 3?’
`3”.
`."1 D5 M1t'distn't
`[I 7
`Maglsfimfi
`mm.“ d1'°'*“°*
`Liltligzliiion G
`
` VI. CAUSE OF ACTION
`
`VII. REQUESTED IN
`Cl CHECK IF THIS IS A CLASS ACTION
`DEMAND 5
`CHECK YES only if demanded in corrxpiaint:
`
`COMPLAINT:
`UNDER F-R-C-R 23
`JURY DEMAND:
`if Yes
`:1 Ne
`
`_
`,
`VIII. RELATED CASE(S}
`DOCKET NUMBER
`'
`JUDGE
`
`
`‘(See l.1fS|1'HGt!Dl1S)‘.
`IF ANY
`
`_ DATE.
`A'l’I‘ORNEY or RECORD
`
`
`FOR OFFICE USE ONLY
`
`RECEIPT ii
`
`AMOUNT
`
`AP?LY]NG IF!’
`
`JUDGE
`
`MAG. JUDGE