Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA665503
`ESTTA Tracking number:
`04/08/2015
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`92056892
`Plaintiff
`Charles Pennachio d/b/a Linear
`Lorne Kaiser, Esq.
`11555 HERON BAY BLVD, SUITE 200
`PARKLAND, FL 33076
`UNITED STATES
`charliepennachio@aol.com, lkaiser@kaiserromanello.com
`Other Motions/Papers
`Lorne Kaiser
`lkaiser@kaiserromanello.com
`/Lorne Kaiser/
`04/08/2015
`Petitioner's Notice of Filing.pdf(3638704 bytes )
`
`Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
`
`

`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`The Trademark Trial and Appeal Board
`
`Reg. No. 4,291,291
`For the mark LINEAR,
`
`Registered in the Official Registry February 19, 2013
`
`CHARLES PENNACHIO,
`
`Petitioner,
`
`vs.
`
`JOSEPH RESTIVO.
`
`-
`
`Respondent.
`
`Cancellation No. 92056892
`
` Tsl§.E_9£fl,L|fl§
`
`Petitioner. CHARLES PENNACHIO, hereby gives notice of filing 21 copy of the
`
`operative pleadings in the district court action and the court's final order of dismissal
`
`without prejudice.
`
`Respectfully submitted,
`
`[5 gfnw 23:22:52
`
`_
`
`Lorne Kaiser. Esq.
`1 1555 Heron Bay Boulevard, Suite 200
`Parkland, Florida 330736
`
`Telephone: 954.603.0100
`Facsimile: 954.827.0472
`
`Email: lkaiser@.l<;aiserro:nanel1o.eo1n
`
`

`
`CERTIFICATE OF SERVICE
`
`I hereby certify that a true and accurate copy of the foregoing document was
`
`served upon Respondent
`
`this
`
`8"‘
`
`clay of April 2015,
`
`by electronic mail
`
`to
`
`mswyers@tlietrademarl<company.com and mailing a copy via First Class Mail, postage
`
`pre-paid, to his counsel at the following address:
`
`Matthew H. Swyers
`The Trademark Company
`344 Maple Avenue. Suite 151
`Vienna, Virginia 22180-5612
`
`/s/./fame Kmm
`
`Lorne Kaiser, Esq.
`I l555 Heron Bay Boulevard, Suite 200
`Parkland, Florida 330%
`Telephone: 954.603.0100
`Facsimile: 954.827.0472
`
`Email: lkaiser@kaiserrorna:nello.corn
`
`

`
`Case 0:O8~cv-60804-WJZ Documentl Entered on FLSD Docket osxzszzoos
`
`PP
`ELE
`
`mmrMB 0.0.
`RONIC
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF FLORIDA
`
`CHARLES PENNACHIO. an individual,
`
`Case No.:
`
`May 23, 2008
`
`STEVEN M, LAFHMDRE
`CLERK u.5. olsl‘. CT.
`5.1). OF FLA.
`- MIAMI
`
`
`Plaintiff,
`
`vs.
`
`JOSEPH RESTIVO, an individual,
`WYATT PAULEY, an individual,
`METROPOLIS PROMOTIONS, INC., a
`Florida corporation,
`
`Defendants.
`
`08-60804-Civ-ZLOC H/SN OW
`
`Lorne Adam Kaiser
`
`COMPLAINT
`
`DEMAND FOR TRIAL BY JURY
`
`COMPLAINT
`
`Plaintiff, CHARLES PENNACHIO, by and through the undersigned counsel, sues
`
`Defendants, JOSEPH RESTIVO, WYATT PAULEY, and METROPOLIS PROMOTIONS, INC.,
`
`and states:
`
`JURISDICTIONAL STATEMENT
`
`1.
`
`This is a civil action seeking injunctive relief and monetary damages under the
`
`Lartham Act, 15 U.S.C. §I 125 and Florida Statute Section 540.08. The Court hasjurisdiction over
`
`the subject matter of this action under 28 U.S.C. § 1331.
`
`2.
`
`This Court has supplemental jurisdiction over the related state law claims under 28
`
`U.S.C. § 1367(a) in that these claims are so related to the above federal claims that they form part of
`
`the same case or controversy.
`
`3.
`
`This Court has personal jurisdiction over the Defendants because the Defendants all
`
`reside andfor do business in this State and this District and are promoting performances to persons
`
`who reside in this District and elsewhere. Venue is properly laid in thisjudicial district pursuant to
`
`23 U.S.C. §§ l39l.(b) and (C). and 1400(a).
`
`1D‘f‘P3
`
`

`
`Case 0:08-cv-60804-WJZ Document 1 Entered on FLSD Dockei
`
`O5.’29z‘20U8 Page 2 of13
`
`Charles Pennachio vs. Joseph Restivo, et al.
`Case No.:
`
`THE PARTIES
`
`4.
`
`Plaintiff, CHARLES I-‘ENNACHIO, is a citizen ofthe state ofFlorida. Piaintiffis a
`
`singerfsongwriterfmanager and producer, as well as founding member and owner of the subject
`name/trademark “"Linear".
`
`5.
`
`Defendant, JOSEPH RESTIVO, is a citizen of Florida, and was a member of the
`
`group “Linear-" from 1990 through 1993. Defendant JOSEPH RESTIVO is also the sole owner,
`
`president and director of Defendant METROPOLIS PROMOTIONS, INC. Defendant JOSEPH
`
`RESTIVO personally directed, authorized and approved Defendants’ infringing conduct discussed
`herein.
`
`Defendant, WYATT PAULEY, is a citizen ofFlorida, and was a member ofthe group
`6.
`“Linear" from 1990 through 1995. Defendant WYATT PAULEY conspired with Defendant
`
`JOSEPH RESTIVO to commit the infringing conduct discussed herein.
`
`7.
`
`Defendant, METROPOLIS PROMOTIONS,
`
`INC.
`
`(hereinafter referred to as
`
`“METROPOLIS ENTERTAINMENT”) was a corporation organized under the laws ofthe State of
`
`Florida with its principle place of business in Coral Springs, Florida. Defendant METROPOLIS
`
`PROMOTIONS, INC. promoted and conspired to engage in the infringing conduct discussed herein.
`
`INTRODUCTION
`
`time. The unique and priceless reputation and tremendous good will established by “Linear” is a
`
`result of (a) the extensive sales and advertising of musical compositions and recordings bearing
`Linear's name; (b) the fame and acclaim surrounding the performances ofLinear and the popularity
`oftelevision shows in which Linear has appeared; (c) the widespread public recognition ofthe name
`
`2ol'13
`
`

`
`I
`Case 0:08-cv-60804-WJZ Documentl Entered on FLSD Docket 05!29 20
`
`08 P
`
`899
`
`3 f13
`0
`
`Charles Pennachio vs. Joseph Restivo, et al.
`Case No:
`
`“Linear" and the association of that name with Plaintiff CHARLES PENNACHIO; and (d) the
`
`quality and nature ofLinear‘s musical compositions, musical recordings and performances.
`
`9.
`
`Through the extraordinary efforts and talents ofPlaintiff CHARLES PENNACHIO,
`
`the good will associated with Linear has given great value to the exclusive right ofPlaintiffto exploit
`
`the Linear trademark as well as Linear’s name and likeness.
`
`10.
`
`Through PlaintiffCHARLES PENNACI-lIO’S efforts and professional activities, the
`
`substantial use ofl;inear’s name, the hugely successful sales ofgoods and services bearing Linear’s
`
`name, and the world-wide publicity that Linear has received and continues to receive, the Linear
`
`trademark has acquired secondary meaning and is a strong trademark worthy ofthe broadest scope of
`
`protection. Over the course of three decades, Lir1ear’s name has been prominently displayed on
`
`record albums,
`
`tape cassettes, compact discs and the packaging thereof, and all manner of
`
`commercial advertisements, promotional signs and brochures.
`
`It has also been featured in
`
`newspapers, magazine articles, radio and television reports, entertainment programming, music
`
`videos and in numerous other ways since the 19803. The Linear name is distinctive and famous and
`
`is widely recognized throughout the United States and the world by millions of music fans and
`
`consumers alike.
`
`1 1.
`
`Plaintiff CHARLES PENNACI-H0 formed the popfdance group “Linear” and co-
`
`wrote what would become the band’s top five, signature gold single “Sending All My Love” with
`
`producer Tolga Katas circa 1989.
`
`In order to promote the groupfsingle, Plaintiff‘, along with
`
`producer Tolga Katas, started an independent record label called Futura International Records, Inc.
`
`After personally spending substantial time and monies promoting the groupfsingle, and as a direct
`
`and proximate result ofPlaintiffs efforts and professional activities, “I_.inear" was signed to a major
`
`30113
`
`

`
`Case O:08—cv-60804-WJZ Document 1 Entered on FLSD Docket 05l29!2008 Page 4 of 13
`
`Charles Pennachio vs. Joseph Restivo. et al.
`Case No;
`
`label, Atlantic Records.
`
`12.
`
`As the founding member of“Linear”, PlaintiffCHARLES PENNACHIO has always
`
`been a staple ofthe band and his image is synonymous with the group’s essence. However. Plaintiff
`
`CHARLES PBNNACI-{IO and producer TOLGA KATAS experimented with several different
`
`lineups prior to Defendants JOSEPH RESTIVO and WYATT PAULEY becoming members ofthe
`
`group. Consequently. Defendants did not actually participate in the original recording of Linear’s
`
`signature hit single “Sending All My Love".
`
`13.
`
`Shortly after signing with Atlantic Records, the single “Sending All My Love”
`
`charted number five and sold nearly a million records in the United States. “Linear” regularly
`
`appeared in teen magazines and the music video “Sending All My Love” was a fixture on music
`
`television stations ‘worldwide. PlaintiffCHARLES PENNACHIO was also recognized worldwide as
`
`the lead singer, songwriter, founding member and essence of the group.
`
`14.
`
`Defendants JOSEPH RESTIVO and WYATT PAULEY continued as members of
`
`Linear through the second album’s release circa 1992. Shortly thereafter, Defendants JOSEPH
`
`RESTIVO and WYATT PAULEY left the group to pursue undistinguished solo careers. Moreover,
`
`upon information and belief. due to the Defendants lack ofsuccess in the entertainment industry and
`
`inability to generate a fan—base independent of “Linear," Defendants WYATT PAULEY AND
`
`JOSEPH RES’I‘IV(} had to resort to earning a living as a journeyman electricianfhandyman and
`
`traveling Bar Mitzvah deejay respectively.
`
`15.
`
`Plaintiff CHARLES PENNACHIO as the lead singer, songwriter and founding
`
`member ofthe group continued to operate under his trademark “Linear" and released a single “Let’s
`
`Go All The Way” circa 1997’.
`
`40113
`
`

`
`Case 0'08-cv-60804—WJZ Document 1 Entered on FLSD Docket O5t29t2008 Page 5 of 13
`
`Charles Pennachio vs. Joseph Restivo, et al.
`Case No.:
`
`16.
`
`Subsequent to the release of“Let's Go All The Way" to present, Plainti ffCHARLES
`
`PENNACHl0'S primary source of income has been the entertainment business and he continues to
`
`write, record, perform, market and promote under the trademark “Lincar." Moreover, Plaintiff
`
`currently has a publishing deal with EMI Music Publishing and collaborates with some of today’s
`
`most popular rnulti-platinum recording artist such as Big & Rich, Gretchen Wilson, Mandy Moore,
`
`Anastacia, members of the popfdance group NSYNC, etc, and makes appearances on national
`
`television on the Country Music Ne-twork’s hit reality show “Gone Country."
`
`COUNT I
`
`TRADEMARK INFRINGEMENT
`AGAINST DEFENDANTS JOSEPH RESTIVO WYATT PAULEY
`AND METROPOLIS PROMOTIONS, INC.
`
`Plaintiff’alleges as though fully set forth at length, and incorporates herein by reference, all of
`
`the allegations and statements contained in paragraphs 1-16, inclusive, of the General Allegations
`
`above.
`
`17.
`
`In March of2008, Defendants JOSEPH RESTIVO and WYATT PAULEY formed a
`
`new group called “Linear Linear” and recorded a song entitled “No Me Digas," which Defendants
`
`promoted as “Linear Linear" on their website ww\v.m;§pace.conv’linearlinear. Defendants JOSEPH
`
`RESTIVO, WYATT PAULEY, and METROPOLIS PROMOTIONS, INC., also marketed upcoming
`
`shows under the na:me “Linear Linear” promoting the performance of the original popular “Linear”
`
`songs “Sending All My Love“ and Don‘t You Come Crying.”
`
`18.
`
`In connection with the promotion of their new group, particularly the name “Linear
`
`Linear” Defendants JOSEPH RESTIVO. WYATT PAULEY and METROPOLIS PROMOTIONS,
`
`INC. use Plaintiffs trademark and name without his knowledge or consent.
`
`50113
`
`

`
`Case 0:08-cv-60804-WJZ Document 1 Entered on FLSD Docket O5;’29z'2008 Page 6 of 13
`
`Charles Pennachio vs. Joseph Restivo, et 211.
`Case No.:
`
`19.
`
`Such use of the Plaintiff’ 5 trademark and name in association with the promotion of
`
`the Defendant's new group is intentional and a willful strategy to imply that there is an affiliation
`
`between “Linear Linear” and the Plaintiffs name and trademark “Linear” which is inherently false
`
`and deceptive because such use has not been authorized by Piaintiff.
`
`20.
`
`Such deceptive affiliation is likely to cause confiision or mistake, deceives as to the
`
`affiliation or association of the Plaintiff with “Linear Linear,” gives the false view that Plaintiff
`
`approved ofthe use of his name andfor trademark in connection with “Linear Linear“ and its product,
`
`all in violation of Section 43(3) of the Lanham Act, 15 U.S.C. §l 125(a).
`
`21.
`
`Such promotional conduct by the Defendants JOSEPH RESTIVO, WYATT
`
`PAULEY, and METROPOLIS PROMOTIONS, INC. is material in that it is likely to influence the
`
`purchasing decisions of
`
`the consumers who search the
`
`Internet or visit
`
`the website
`
`wwwmyspace.comflineariinear by linking the Plaintiffs name or likeness with the group “Linear
`
`Linear” or sound recordings being produced by same.
`
`22.
`
`Defendants’ conduct has been damaging to Plaintiff and there is a cognizable danger
`
`that Defendants will again exploit the Linear trademark in the future in connection with the
`
`marketing and promotion of their new group “Linear Linear” and unless Defendants’ conduct is
`
`enjoined, Plaintiff will suffer irreparable injury which cannot be adequately calculated or
`
`compensated by money damages. Plaintiff has no adequate remedy at law.
`
`23.
`
`Defendants‘
`
`trademark infringement has been committed willfully, wantonly,
`
`maliciously, and with reckless disregard for Plaintiff’ 5 rights. As a direct and proximate result ofthe
`
`conduct alleged herein, Plaintiff has been harmed in an amount to be determined by the Court.
`
`BDi'13
`
`

`
`Case O:08—cv-60804-WJZ Document 1 Entered on FLSD Docket 05!29l2008 Page 7 of
`
`13
`
`Charles Pennaciiio vs. Joseph Restivo, et al.
`Case No.:
`
`COUNT II
`
`VIOLATION OF FLORIDA STATUTE 540.08
`MISAPPROPRIATION OF VOICE AND LIKENESS
`OQJST DEFENDANTS JOSEPH RESTIVO AND WYATT PAULEY
`
`Plaintiff al leges as though fully set forth at length, and incorporates herein by reference, all of
`
`the allegations and statements contained in paragraphs 1-23, inclusive, of the General Allegations
`
`above.
`
`24.
`
`Pla.intiff has an exclusive proprietary interest in the publicity value of the “Linear”
`
`tradename, trademark, and the voice and likeness of the original recordings of “Sending All My
`
`Love” and “Don’t You Come Crying," as well as the attendant exclusive right to utilize or license
`
`others to utilize such tradename, trademark, voice and likeness for commercial exploitation.
`
`25.
`
`On April 25 and 26, 2008, Defendants performed for profit as “Linear Linear” before
`
`a live audience. During said show, Defend-ants JOSEPH RESTIVO and WYATT PAULEY lip~
`
`syncedfperforrned the hit “Linear” singles “Sending All My Love" and “Don’t You Come Crying” to
`
`the original sound recordings containing PlaintiffCHARLES PENNACHlO’S voice andfor likeness.
`
`26.
`
`Defendants JOSEPH RESTIVO and WYATT PAULEY used, for commercial profit,
`
`the tradenameftradernark "Linear" as well as the voice andfor likeness of Plaintiff CHARLES
`
`PENNACHIO without his written consent or authorization in connection with their new band
`
`“Linear Linear.”
`
`2?.
`
`By the unauthorized exploitation of the “I_.inear“ tradenanle, trademark, and the voice
`
`and likeness of Plaintiff CHARLES PENNACI-H0 in connection with the above-referenced
`
`performances, Defendants have deliberately, and without any authorization or consent,
`
`misappropriated Plaintiff‘s exclusive right to exploit the tradename/trademark “Linear” as well as his
`
`voice and likeness, both jointly and severally.
`
`70113
`
`

`
`Case 0:08-cv-60804-WJZ Document 1 Entered on FLSD Docket 05I29!2008 Page 8 of 13
`
`Charles Pennachio vs. Joseph Restivo, et al.
`Case No.:
`
`28.
`
`Defendants conduct constitutes a willful and deliberate infringement of Plaintiff’3
`
`right of publicity in violation of § 540.08 of the Florida Statutes, and is damaging to Plaintiff and
`
`there is a cognizable danger that Defendants will continue to exploit the “Linear” tradename,
`
`trademark, and voice and likeness of Plaintiff CHARLES PENNACHIO in connection with their
`
`new group “Linear Linear” and unless Defendants‘ conduct is enjoined, Plaintiff will suffer
`
`irreparable injury which cannot be adequately calculated or compensated by money damages.
`
`Plaintiff has no adequate remedy at law.
`
`29.
`
`Defendants’ violation of § 540.08, Florida Statutes, has been committed willfully,
`
`wantonly, maliciously, and with reckless disregard for Plaintiff‘s rights. As a direct and proximate
`
`result ofthe conduct alleged herein, Plaintiffhas been harmed in an amount to be determined by the
`Court.
`
`COUNT III
`QILUTION AGAINST DEFENDANTS JOSEPH RESTIVO
`AND WYATT PAULEY
`
`Plaintiffalleges as though fully set forth at length, and incorporates herein by reference, all of
`
`the allegations and statements contained in paragraphs 1-29, inclusive, of the General Allegations
`above.
`
`30.
`
`Defendants unauthorized exploitation of the “Linear” trademark in connection with
`
`the release ofnew rnaterial as “Linear Linear" in commerce via their website and the marketing and
`
`promotion ofshows worldwide has diluted and impaired, and will continue to dilute and impair, the
`
`distinctive quality ofPlaintiff’s famous protected mark “Linear” and has harmed, and will continue
`
`to harm, the reputation of Plaintiffs famous protected mark.
`
`BONE-
`
`

`
`Case 0:08-cv-60804-WJZ Document 1 Entered on FLSD Docket 05l29;'2008 Page 9 Of 13
`
`Charles Pennachio vs. Joseph Restivo, et a].
`Case No.:
`
`31.
`
`Defendants’ acts and conduct relating to the exploitation ofthe “Linear” trademark as
`
`set forth above, and their continued intention to exploit the “Linear” trademark, have caused, and
`
`will continue to cause, the Plaintiffs famous mark to lose its ability to serve as a unique identifier of
`
`Plaintiff's recordings and performances because, if allowed, consumers may no longer perceive the
`
`“Linear” mark as representing a single source or origin.
`
`32.
`
`Defendants’ acts and conduct relating to the exploitation ofthe “Linear” trademark as
`
`set forth above, and their continued intention to exploit the “Linear” trademark, have tarnished, and
`
`will continue to tarnish, the positive associations and the superior quality associated with the
`
`“Linear” trademark, music and image, due to the inferior quality ofthe Defendants’ recordings and
`
`performances.
`
`33.
`
`Defendants’ conduct constitutes a willful and deliberate violation of Section 43 ofthe
`
`Lanham Act's Federal Dilution Revision Act of 2006, I5 U.S.C. §l 125(0), and is damaging to
`
`Plaintiff and unless Defendants’ conduct is enjoined, Plaintiff will suffer irreparable injury which
`
`cannot be adequateiy calculated or compensated by money damages. Plaintiff has no adequate
`
`remedy at law.
`
`34.
`
`Defendants’ violations of IS U.S.C. §l l25(c) of the Lanham Act have been
`
`committed willfully, wantonly, maliciously, and with reckless disregard for Plaintiff‘s rights. As a
`
`direct and proximate result of the conduct alleged herein, Plaintiffhas been harmed in an amount to
`
`be determined by the Court.
`
`Sofia
`
`

`
`Case 0:08-cv-60804—W.)Z Document 1 Entered on
`
`FLSD Docket 0532912008 Page 10 07 13
`
`Charles Pennachio vs. Joseph Restivo. et al.
`Case No.:
`
`WHEREFORE, Plaintiff CHARLES PENNACHIO demands the following relief against
`
`Defendants JOSEPH RESTIVO, WYATT PAULEY and METROPOLIS PROMOTIONS, INC:
`
`A.
`
`An Order preliminarily and permanently enjoining Defendants, their agents, servants,
`
`employees, representatives, attorneys, successors and assigns and all persons. firms, corporations or
`
`entities acting under their direction, authority or control, and all persons acting directly or indirectly
`
`in concert or participation with any of them from:
`
`(i)
`
`using, in commerce, the name, tradename or trademark “Linear” or any other
`
`designation confusingly or deceptively similar to “Linear,” in connection with the manufacture,
`
`distribution, sale, promotion, copying,
`
`license,
`
`trafficking, or other exploitation of musical
`
`recordings of “Linear” or lip-sync performances using the original sound recordings of “Linear"
`
`containing the voice and likeness of Plaintiff,
`
`(ii)
`
`diluting the distinctiveness and good will built up by Plaintiffin the trademark
`
`“Linear" by using the trademark “Linear,” or any other designation confusingly or deceptively
`
`similar to “Linear," in connection with the manufacture, distribution,
`
`license, sale, or other
`
`exploitation of musical recordings or performances as “Linear Linear”;
`
`(iii)
`
`tarnishing the positive associations and the superior quality associated with the
`
`distributing, selling, promoting, copying, licensing, trafficking or otherwise disseminating, exploiting
`or exposing to the public any recordings or live performances as “Linear Linear”;
`
`(iv)
`
`committing any acts calculated to cause the public to falsely believe that any
`
`of Defendants’ recordings or performances, or other goods and services of Defendants are
`
`authorized, sponsored by, or are affiliated with Plaintiff; and
`
`1DDf13
`
`10
`
`

`
`Case 0'08—cv-60804—WJZ Document 1 Entered on FLSD Docket 05!29!2008 Page 11 Of 13
`
`Charles Pennachio vs. Joseph Restivo, et al.
`Case No.:
`
`(v)
`
`infringing, or contributing to or participating in the infringement by others of
`
`Plaintiffs exclusive right to the trademark “Linear” and use ofPlaintiff‘ s voice and likeness via the
`
`use to lip-sync to the original recordings of “Linear’s” “Sending All My Love" and Don’t You Come
`
`Curing";
`
`B.
`
`An Order directing Defendants to provide an accounting of all sales of and profits
`
`derived from the sales of goods or services,
`
`including, but not
`
`limited to,
`
`ticket sales and
`
`merchandising, utilizing the name “Linear Linear”;
`
`C.
`
`That Plaintiff be awarded any and all profits and damages, and that Plaintiff be
`
`awarded enhanced compensatory treble damages, because ofDefendants’ willful and deliberate acts
`
`and conduct, pursuant to Section 35 of the Lanham Act, 15 U.S.C. §11 17;
`
`D.
`
`That Plaintiff be awarded actual damages, but not less than Five Million Dollars
`
`($5,000,000.00) together with enhanced or punitive damages in an amount to be determined at trial,
`
`but not less than Ten Million Dollars ($1 0,000,000.00) to deter the willful and deliberately tortuous
`
`conduct of Defendants, pursuant to § 540.08 of the Florida Statutes and to avoid future confusion or
`
`deception of the public and unfair competition with Plaintiff;
`
`E.
`
`That Plaintiff be awarded his costs, including reasonable attorneys fees pursuant to §
`
`111'? of the Lanham Act and §501.2l l ofthe Florida Statutes; and
`
`F.
`
`That Plaintiff be granted such other and further relief as the Court deems just and
`
`proper.
`
`1loI'13
`
`ll
`
`

`
`Case 0:O8—cv-60804—W.JZ Document 1 Entered on FLSD Docket 05f29i2008 Page 12 of 13
`
`Charles Pennachio vs. Joseph Restivo, et al.
`Case No.:
`
`Respectfully submitted this 28th day of May, 2008.
`
`
`
`Attorney for Plaintiff
`1560 Sawgrass Corporate Parkway
`Fourth Floor
`
`Sunrise, Florida 33323
`Telephone: 954.331.8020
`Facsimile: 954.827.0472
`Florida Bar No; 56849]
`
`12 0113
`
`12
`
`

`
`Case 0:08-cv-6o8o40i8€608ifil4efi3i\I-t‘ZIe@I'5I"l3’%Giwet 05f29!2008
`M544 {Roi-mill
`CIVIL COVER SHEET
`
`
`gglfillfli ofllifii
`RONIC
`
`0.0.
`
`May 28, 2008
`
`
`
`
`
`
`STE\'EN M. LARIMCIRE
`CLERK U.S. DIST. CT-
`5.l). OF FLI.-MIAMI
`
`r ‘-3
`
`\— “) RFC Rx
`
`
`
`lace ngr sugplemei-ii the filing and aeriiice ofpleadin '01 other fiapcrs as r
`The is 44 civil cover sheet and the information contained herein neither
`the United rates in September l9'?4. 15 required For t e use oft
`by local rules ofcourt. This f01'!’1I,3ppr0\-'C{I by the Judicial Conference ci
`
`
`the civil docket sheet.
`(sea instiiucricws on THE. REVERSE or THE FORM .i
`NOTICE: Attorneys MUST Indicate All Re-filed C
`
`I. (a) PLAINTIFFS
`DEFENDANTS
`(_"l-‘;.;i¢3
`'fc,"~.'\.tt;l—~iC_;
`.§e_-'.n-‘Kiln 2€‘1'{'\UC..i
`L5 C-—'
`(I1) County of Residence of First Liircd Plaintiff
`(Tniinty ofllesidence of First Listed Defendant
`
`[EK('EPT IN‘ U 5. 9L.-UNTIFF CASES]
`
`i[N1l.S i=i.niN1‘iFi= cases ONLY]
`(C) M101-ncy’s {Firm Name. Address, and Tflcphuflc reumimi
`
`IN LAND L"l‘!NDE£M5iA'!’l0.‘€ CASES. USE THE LLJCATION (IF THE TRACT
`LAND INVOLVED.
`Lot‘ '“ 2
`i3iC5~cxr**«
`\“‘~"i “'>°~-H
`r'\
`F L. “I
`
`"
`.—
`_
`.
`'. .-
`...
`-
`._
`.‘_-..-
`T"
`°“~
`i5i_,L_.
`_,(k.__;\-LE‘-_;.S.::I1‘.J._F_«k_7
`iléez:
`«i
`:-1,--my i act.
`vr la" ioc-.
`373-13
`
`
`r;-Sq. 's'3i
`— 2§‘ct2- an
`CI MIAM1- DADL
`El MONROE
`on Check County Where Action Arose-.
`
`
`iiir:.iii.niii)s.
`
`NOTE:
`
`ll.
`
`J l
`
`J
`
`|.f_§. Liciiernziitenl
`Plaiiiiill‘
`
`lPli|:e In "X" In One flux Only}
`
`V5 Federal Question
`l"J.S Gavetnmeni Nut a Pariyl
`
`
`
`
`
`
`
`lll. CITIZENSHIP OF PRINCIPAL PARTlESr.i=im an "X" in Cine Bo: rm Piainltff
`tFiir Dllfeffl
`l.'ases Only)
`and One Bass rnr Del:-ndaiiii
`
`"-..,_"u§_" *3
`PT?
`DE]-'
`PTIF
`DEF
`Filizeii cifTliis Stale
`El
`I
`3 I
`-0
`21
`4
`\‘___
`
`incorporated or Principal Place
`nJ'Bu§nIcss In This state
`
`Cl
`
`
`
`Citi-ten nfiknetlier Stale
`
`Citizen or fiulueeiurn
`
`3
`
`CI
`
`1
`
`3
`
`El
`
`3
`
`1‘
`
`3
`
`incur;-orated and Print-.n.ii| Place
`uffluiiness In Another State
`
`Fureigahlnliun
`
`3
`
`F)
`
`5
`
`ii
`
`Cl
`
`5
`
`3 5
`
`13
`
`2
`
`1J.S. Crfl\‘£I'I'II'I'I£l'Il
`Defendant
`
`{J
`
`-I
`
`Di.-ersiiy
`{Indicate l.'lll1:ll5l!||) til‘Pmiee in Item II]:
`
`J
`
`IV.
`
`
`
`OF
`
`Placean"X"inGneBi)ii0rtl
`
`
`
`
`
`
`
`
`3 400 sure R¢ap]1[|[1',i3!Ill\(41|
`CI
`-1 IO )'\rlIlII'h5l
`CI
`-130 Banks and Banking
`3 45-0 Commerce
`3 -ill!) neponaiiuii
`El
`470 Racketeer ltifluenerd and
`Cnxrupl Organizations
`aim Consumer Credit
`Cl
`490 Ceblerset TV
`Cl
`3 Eli} Selective Service
`CI
`lifitl l"i:c|iriIie5.‘Curni'i1tsL1itie$s'
`Exciting:
`Cl
`Iii‘: (‘rim-mer Challenge
`:2 USC 34 I
`III
`J 590 rlilier Siiiiiiimy Aciiuiis
`.-Ngrieultuinincii
`CI
`iilll
`CI
`891‘ Economic Siahiliciiliuii has
`D 393 1Eni«-ruiiinrnial MIIIEIF
`Cl
`894 Energy .-\l|ui:ati'nn net
`-fl
`3“ F'""“'" "“"“""""°“ "°‘
`Cl we Appeal nffee Dcierminanen
`Under Equal Accen iei Jiisiice
`
`3 -I32 nppgiii an U31’; is:
`J 423 Withdrawal
`
`Eli USC I5‘-‘
`.
`El K20 Copyrights
`3 S10 Paleni
`-ii) Trademark
`
`
`
`
`
`
`
`
`
`
`‘JLIDLJLJ
`
`2)
`Cl
`
`
`
`LIUCICIU
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`VII. CAUSE OF ACTION
`
`Cite the U.S. Civil statute under which you are filing and Write a Brief Statctrlcnl ofCiiuiic (Do not cite jurisdictional sutures unless
`diversity):
`,1
`__
`C.
`\\ A _,
`t
`.'_1
`.
`f 5
`{E
`
`"5
`
`
`
`
`
`LE‘NGTI'~I OF TRIAL via __;;___ days estimaled (for both sides :0 try entire case}
`CHECK YES only ifdcmanded in com laint:
`CI CHECK IF THIS IS A CLASS ACTION
`DEMAND 5
`VIII. REQUESTED IN
`JURY DEMAND:
`El Yes )1";
`UNDER F-R-C-P 23
`COMPLAINT:
`
`ABOVE INFORMATION IS TRUE 8: CORRECT TO
`
`
`tiiiriz
`’t3i= RECORD
`THE BEST OF MY KNOWLEDGE
`
`
`
`
`
`
`
`00
`FOR;FF|CE. USE ONLY
`AMOUNT
`REFEEPT % IFP
`
`13ul'13
`
`
`
`
`6 I0 Agriculture
`PERSONAL INJURY CI
`PEIHOB AL INJURY
`620 Other Fund a. Drug
`362 Personal Injury -
`El
`J 310 r\Irpl.<'\lll
`625 Drug Related Seizure
`Med..\«la1preeIii:e
`.'.'I
`2|
`.\I S Airpli-.nr Fmdurl
`nrPmnei-iy II US{' Ittll
`3-65 Persriaalluiury v
`Liability
`Pmdiier Liability
`3 03!) Liquor Laws
`3 J20 Auault. Libel A‘:
`365 Asbestos Personal
`3 ML? ILR. a. Truck
`Slander
`
`Injury Product
`2|
`a5i'I Airline Ilega.
`i3 LII} Fedeu] Employers‘
`Liability
`9 aw Dteupallonal
`Lialiilily
`
`l'ER5'0NAL PROPEIFIY
`SII'£I'_I'.i'He.E1IIl
`II 346 Marine
`
`3 310 Other Fraud
`690 Uilier
`Cl 343 Marine Product
`:I
`3'-"I tiuiai in Lending
`Llflbllily
`
`
`
`
`
`
`
`
`:3
`180 Outer Personal
`3 ESEI Motor Vehicle
`slit HIA (l395i‘i‘_I
`‘I I0 Fair Lalirir Standards
`
`
`
`Property Damage
`II 355 .\-luiiir Vehicle
`Kn! Bllcl Lung [92]}
`Art
` J 360 Other Petsnniil
`J55 Property Damage
`‘3
`Product Liability
`I-iEi.1DIWL'i'DlW W iiltistgi}
`'i‘2u Lzfilbl-"Mgml. Ralarions
`
`
`lift-5 SSILI TiI|¢ XV!
`Pmducl Liabiliiy
`
`73:: Labor!!!-l gmi.Ri;p¢iI'I'ins
`i'lI'ur
`.9. Disclosure Act
`
`365 RSI £05 _
`
`
`
`CIVIL ll HTS
`PRIS NE PETITI H5
`U NIL! Railway Labor Ari
`Cl
`
`S10 Muiinna IIJ viieaie
`3 4-Ii Voting.
`3 ‘I90 Other Labor Litigation!
`
`
`-3 BTU Texes{L|.5. F1aii1IiiT
`
`3 442 Employment
`or Defendant}
`Sentence
`3 ‘-"Bl Empl
`lI.ei. Inc. Seriirii
`
`3 443 HDIISIIIE-'
`[RS
`Third Flrly
`.3 iI‘iI
`Ihlieu Cot-put:
`RBI
`D 444 Welfare
`nccanuinmiaiiaiu
`as us: ‘H509
`53:; cgmimi
`-‘I-13 Amer wffliflabtlilles -
`
`535 Death Ptllalty
`-H12 N aturalizaiiuri
`EJIIPFD)’-m°"'
`Application
`
`-
`.
`.
`Mfr Amer.
`-I61 Habeaatfeipua-Alien
`ii-.'D<.-iatiilitieii
`
`SSGCNIJ Right!
`om“
`Cl Dunn“
`-Infi Dtlietlmriiigraiina
`C! 140 Usher I.‘wiI Iligiiu
`555 Prison Cunditirie
`Actions
`
`D 950 Consliiiiriunaliiy iiI'Si.iie
`SllIulc$
`
`
`:1 0Ol:i"i:i;]:1N
`n"’2'a“i;"T:3(i“eBux0W
`fl
`R '
`-
`T“‘"‘r°”"”'°‘“
`'
`-
`-
`fiipfiiallrfiimoistrlct
`Progeeiding
`'
`siflloegunrom
`Q 3
`LR8:'l\"eIdl1e!owI
`D 4 R:3!iJgt:Lrsi::Ldd “F D 5 f5“°”'§ )‘'''“'i‘‘
`Q 6 [’i$iI£ii'l§fI'°‘ 3 7
`}f§8*“_;j:"
`VI‘ RELATENRDFILED
`I
`ii) R-::—filed Case ITJYES EINO
`in} Related Cases IIIYES DNO
`C»‘\5E(S)«
`:F:::':‘r:§|:;Lil=¢l;lDni
`JUDGE
`nocxer NUMBER
`
`
`
`
`
`CI
`
`Cl
`
`D
`
`3
`
`E1
`
`
`
`J I I0 Insurance
`3 I3! Marine
`3 IJD Milier Ac:
`3 I-ii: Negotiable Iniiirutneni
`'1 I50 Recovery DrUVEl'fli}'Ii1GlIl
`at Enfriicemenl afliidgiiieni
`J 151 Medicere Ari
`3 I52 llecurery ufbefaulted
`Sliiideiii Luans
`{I.'-,iii:l Veterans]
`3 I53 Emmi nfflveriaaymcni
`-:r
`cil Veteran‘: Benefits
`33
`I90 Other (.'i-inii-act
`lei) Stockholders‘ Suits
`195 Coiiarari Prodiiri Liatiiiiiy
`llifi Fririthlse
`
`J3
`
`
`2ILI Lani! Condemnation
`3 220 Forerlnsure
`3
`3 2.13 Rent Leue It Ejeclmerii
`3 2-1:: Tom In Land
`3 245 Tart Pmdilcl Llaliiilriy
`J 1"“! Allflihet Real Properti-
`
`

`
`Case 0:08-cv-60804-WJZ Document 6 Entered on FLSD Docket 0812532008 Page 1 of 6
`
`UNITED STATES DISTRICT COURT FOR THE
`SOUTHERN DISTRICT OF FLORIDA
`
`Case Number: 08-60804-CIV-ZLOCH
`
`CHARLES PENNACHIO,
`
`Plaintiffs,
`
`vs.
`
`JOESPH RESTIVO, WYATT PAULEY,
`and METROPOLIS PROMOTIONS, INC.
`
`MOTION FOR EXTENSION
`OF TIME TO ANSWER
`
`Defendants.
`
`I
`
`MOTION FOR EXTENSION OF TIME TO ANSWER
`
`COME NOW the Defendants JOESPH RESTIVO, WYATT PAULEY and,
`
`METROPOLIS PROMOTIONS INC, 2. Florida corporation, (hereinafter collectively
`
`referred to as "Defenclants"), by and through their undersigned counsel, and hereby
`
`make this motion and argue, as follows:
`
`1.
`
`2.
`
`This case was filed on 5!28!08.
`
`Defendants have been on tour outside of the U.S.A. and in the third world
`
`since before the initiation of this action. As such it has been very difficult
`
`to communicate with Defendants.
`
`3.
`
`Piaintiff‘s counsel verbally settled this matter twice on the phone with me.
`
`only to resurrect it again unexpectedly via faxed letter on 8i'20i08. (exhibit
`
`..A..)
`
`4.
`
`Through my discussions with opposing counsel, we have operated under
`
`the assumption that my clients have not been served. (exhibit “B")
`
`

`
`Case 0:08-cv-60804~W.JZ Document 6 Entered on FLSD Docket O8f25i2008 Page 2 of 6
`
`Despite counsel rendition in his letter dated 8:"20l'O8 that Joey Restivo has
`
`been served. Upon information and belief Mr. Restivo is a single man,
`
`living by himself, who was not in the country at the alleged time of
`service.
`
`I have been unable to contact Defendants since the letter on Bi20I08 to
`
`confirm that they wish to retain this firm for the litigation of this matter, as
`
`opposed to the prior settlement negotiations.
`
`I have attempted to contact opposing counsel several times since his
`
`letter to get a format extension of time to Answer and Copies of the
`
`Return of Service which are not in the court file on CMIECF.
`
`As the matter stands the Defendants are unaware the lawsuit is
`
`continuing, and may not have been served. White I expect to be retained
`
`to represent Mr. Restivo and his company Metropolis Promotions, Inc., I
`
`have never even discussed the matter directly with Mr. Pauiey. and have
`
`not spoken with him since before fiting this action. As such I need more
`
`time to determine both the issue of service, and my clients intentions
`
`before filing an answer.
`
`Wherefore Defendant prays for an order;
`
`a. extending the time to Answer the Complaint if actualiy served,
`
`b.
`
`requiring Plaintiff to file a Return of Service,
`
`c. and such further relief as the court deems just and proper.
`
`BY:
`
`ndants
`Attorney; f
`Neil Bryan Ty;ESQ.
`
`‘
`
`:5‘-—--—_——-
`
`Florida Bar Number: 0911100
`561-455-0280 Phone
`561-455-0281 Fax
`561-305-5214 Cellular Phone
`5341 West Atlantic Ave #301-A
`Delray Beach. FL 33484
`E-Mail: ntygar@bel|south.net
`
`

`
`Case 0:08-cv-60804~W.]Z Document 6 Entered on FLSD Docket O8r'25!2U08 Page 3 of 6
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on Monday. August 25, 2008,
`
`I electronically filed the foregoing
`
`document with the Clerk of the Court using CMJECF.
`
`I also certify that the foregoing
`
`document is being served this day to all counsel of record or pro se parties identified on
`
`the attached Service List in the manner specified. either via transmission of Notice of
`
`Electronic Filing generated by CMIECF or in some other authorized manner for those
`
`counsel or parties who are not authorized to receive electronically Notices of Electronic
`
`Filing.
`
`Service List
`
`Lorne Kaiser, P.A.. 15260 SAWGRASS PARKWAY. FOURTH FLOOR. SUNRISE,
`
`FLORIDA 33323.
`
`

`
`Rug §aDse2c[i:3§—ci:3e§0cz’2aiJ'ai5‘wJ'z °'5'3§uri13ri?§“EFiéred on FLSD ooE:‘1?e‘i TcJ%?275?£’o‘i:i§3a Page 4 of 6 F“ 3
`
`Lorne Kaiser, RA.
`1560 SAWGRASS CORPORATE PARKWAY, FOURTH FLOOR
`SUNRISE, FLORIDA 33323
`TELEPHONE: 954.331.8020
`FAX: 954.827.0472
`
`
`LAK08