BULKY
`DOCUMENT
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`(FILED ON PAPER - ENTIRE DOCUMENT EXCEEDS 100 PAGES)
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`IProceedingNo.
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`192064833
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`I Filing Date
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`I 12/6/2016
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`I Part I 1 of I 1 I
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`92064833
`
`
`DOCUMENT
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`(FILED ON PAPER - ENTIRE DOCUMENT EXCEEDS 100 PAGES)
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`IProceedingNo.
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`192064833
`
`I Filing Date
`
`I 12/6/2016
`
`I Part I 1 of I 1 I
`
`92064833
`
`
`
`TTAB
`
`Metalast, Inc.
`9900 Wilbur May Parkway
`Unit 2406
`Reno, Nevada 89521
`(775) 790-8324
`
`December 1, 2016
`
`TRADEMARK TRIAL AND APPEAL BOARD (TTAB)
`The Trademark Assistance Center
`Madison East, Concourse Level Room CSS
`600 Dulany Street
`Alexandria, Virginia 22314
`
`RE:
`
`Chemeon Surface Technology, LLC, Plaintiffv. David M. Semas, Defendant
`Answer to Petition for Cancellation 7</;;. c, 7 Lf{pj
`Cancellation Number: 92064833 -
`Registration Number: 2963106
`
`Dear TTAB Assigned Representative:
`
`With reference to the above stated Petition For Cancellation filed with the TTAB on
`November 18, 2016 I have enclosed my Answers and Exhibits to the Petition For
`Cancellation in accordance with guidelines set by the Federal Rules of Civil
`Procedure, Rule 8. General Rules of Pleading and as further defined by the TTAB
`Chapter 300, Pleadings, specifically 311 Form and Content of Answer.
`
`The Proof of Service of mailing a true and correct copy of this submission to Robert
`Ryan of Holland & Hart LLP, attorney for the Petitioner is attached to the last page of
`the Respondent's Answer to the Petition For Cancellation.
`
`Exhibits are numbered 1-12 with Cancellation case number identified and an Index
`provided. It was is intent to strictly adhere to the form and substance of the Federal
`Rules of Civil Procedure, which I hope I have demonstrated. Should you need to
`contact me directly, I can be reached by telephone at (775) 790-8324 or by email at:
`david@sierradorado.com. Thank You.
`
`ullysu~m· ed,
`tv\.
`.
`
`Semas, in
`av d
`An individual
`
`e
`
`DMS/ds-120116
`Enclosures
`CC: Robert C. Ryan
`Mike Hoy
`
`1111111111111111111111111111111111111 1111111111111111111 1111
`
`12·06·2016
`
`us. Patent & TMOtc/TM Mall Rcpt Dt # 11
`
`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE
`TRADEMARK TRIAL AND APPEAL BOARD
`
`Chemeon Surface Technology, LLC,
`
`Cancellation No. 92064833
`
`Petitioner,
`
`vs.
`
`David M. Semas,
`
`Res ondent.
`
`Mark: Metalast
`Reg. No. 2963106
`
`Response to Petition for Cancellation
`
`David M. Semas ("Respondent") responds to the Petition for Cancellation as
`
`follows:
`
`Introduction
`
`Every allegation in the Petition has already been asserted in previous and
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`pending civil litigation. Petitioner, previously named Metalast Surface Technology,
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`LLC, which was previously known as D&M-MI, LLC and DSM Partners, LTD, both of
`
`which were entities wholly-owned by Dean and Madylon Meiling (the "Meilings").
`
`Initially, Petitioner did not attack the validity of the Metalast USPTO registered
`
`trademarks as hereinafter identified ("Trademarks"), but instead claimed that it
`
`owned the Trademarks. In Metalast Surface Technology, LLC v. Semas, Case No. BK-N-
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`13-52337-BTB (Bankr.D.Nev.). Petitioner sued claiming that the Trademarks were
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`included as collateral for a secured loan from Petitioner (or its predecessor) to
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`llllllllllllllllllllllllllllllllllllllllllllllllllllllllllll
`12·06·2016
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`us Pat ent & TMOfC/TM Mall Qcpt Dt. # 1 '!
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`Page 1of11
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`
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`Metalast International, LLC ("MI-LLC"). In fact, the Trademarks were always owned
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`and registered by Metalast International, Inc. ("MI-INC"), a corporation majority
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`owned by Respondent and the Trademarks were never collateral for any loans to MI-
`
`LLC. (In paragraph 7 of the Petition, Petitioner cites to this civil litigation.) Ownership
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`of the Trademarks, name and brand was resolved by a settlement agreement entered
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`into January 27, 2015 ("Settlement Agreement"), and formally approved by the U.S.
`
`Bankruptcy Court for the District of Nevada on March 11, 2015. [Exhibit 1] Under the
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`terms of the approved Settlement Agreement, Petitioner had the right to use the
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`Metalast mark for 90 days. After that, however,
`
`[Petitioner], the Meilings, and any other entity in which the Meilings
`have an interest, will no longer to be able to use the name Metalast in
`any fashion or manner whatsoever.
`
`(Emphasis added). The clear and unambiguous meaning of the Settlement Agreement
`
`has been reaffirmed three separate times by the Bankruptcy Court as recently as
`
`12/3/2015 [2] and confirmed by Judicial Notice to Judge Du of the U.S. District Court
`
`on 2/5/2016. [3] The 90-day period stipulated in the Settlement Agreement expired
`
`on June 9, 2015. During this period, Petitioner changed its name from Metalast
`
`Surface Technology, LLC to Chemeon Surface Technology, LLC.
`
`On June 3, 2015, Petitioner commenced a second lawsuit against Ml-INC and
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`Respondent in Chemeon Surface Technology, LLC v. Meta last International, Inc., Case
`
`No. 3:15-CV-00294-MMD-VPC (D. Nev.). In this case, MI-INC and Respondent David
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`Semas asserted a counterclaim [4] alleging that Petitioner had infringed and diluted
`
`the Metalast Trademarks. As affirmative defenses, Petitioner alleged:
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`Page 2of11
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`
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`The trademark registrations procured by Counterclaimants are
`10)
`unenforceable against Counter Defendants because of fraud on the U.S.
`Patent and Trademark Office in procuring the registrations and fraud on
`the investors of Metalast International, LLC as alleged in detail in the
`Complaint (Doc. 1) at ifif14-56, irir 180-184.
`
`The trademarks registrations asserted by the Counterclaimants
`11)
`and the Metalast mark are unenforceable against Counter Defendants
`due to abandonment of the marks by Counterclaimants to the extent
`owned by them.
`
`The trademark registrations asserted by the Counterclaimants
`12)
`and the Metalast mark is invalid as to Counterclaimants for licensing in
`gross.
`
`Response to Counterclaim [S], page 6. Thus, the same allegations and requests for
`
`relief in the Petition are already asserted in pending civil litigation in the United States
`
`District Court for the State of Nevada and therefore Suspension of Proceedings with
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`the Trademark Trial and Appeal Board under 37 CFR 2.117 would apply.
`
`Petitioner claims that MI-INC and Respondent somehow defrauded the USPTO
`
`and investors in MI-LLC. In fact, Respondent started in business using the "Metalast"
`
`name before MI-LLC was formed. Ml-INC was the original registrant of the Metalast
`
`mark. After MI-LLC was formed, MI-INC entered into a licensing agreement with MI-
`
`LLC [6]. Under that license, MI-LLC did not pay royalties based of any kind, but was
`
`responsible to pay all maintenance costs, including attorney fees and USPTO filing
`
`fees. MI-LLC paid for all marketing to sell its products under the Metalast mark. But,
`
`it is the belief of the Respondent that Petitioner in fact is guilty of fraud on the USPTO.
`
`Petitioner's predecessor in interest, DSM Partners, Ltd., a partnership that was
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`owned by the Meilings made loans to MI-LLC, which were secured by a collateral
`
`interest in certain personal property executed in December of 2009. The security
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`Page 3of11
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`
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`agreement did not include an Exhibit B listing any trademarks to be included in the
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`loan collateral. [7] On June 18, 2013, Petitioner recorded the falsified security
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`agreement with the US PTO as a collateral assignment. [8] This recorded version
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`included an Exhibit B that listed the Metalast mark (and six other trademarks) as
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`collateral. The Exhibit B was fabricated, and never signed by Ml-LLC, Ml-INC (the
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`owner of the Metalast mark), or Respondent. ln fact, Petitioner and its counsel knew
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`this. On April 16, 2013, Petitioner's counsel, Bruce Leslie, told Dean Meiling that the
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`security agreement had no Exhibit 8. [9] Petitioner later used the security agreement
`
`with the phony Exhibit B to claim that a foreclosure sale of MI-LLC's assets included
`
`the Metalast trademark. The Petitioner has repeatedly alleged the sale of the MI-LLC
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`assets, as approved by the Ninth Judicial District Court of the State of Nevada, was
`
`valid and legally binding. The Petitioner and the court appointed Receiver failed to
`
`disclose they intentionally concealed material facts and misrepresented to the Court
`
`many salient issues, like the failure to obtain a business valuation and most relevant to
`
`this action the ownership of Metalast Trademarks.
`
`The US PTO rejected the June 18, 2013 recordation of the security agreement
`
`with the fabricated Exhibit 8. See USPTO Letter response (900258287) dated June 20,
`
`2013 from the USPTO Assignment Recordation Branch addressed to Tiffany L.
`
`Schwartz. [10] The letter specifically references an Amended and Restated Security
`
`Agreement with the Assignor: Metalast International, LLC ("MILLC") to Assignee:
`
`DSM Partners, LTD., a Meiling owned partnership. The US PTO rejected this
`
`assignment on June 25, 2014. For further information, see USPTO Office Action Letter
`
`Page 4of11
`
`
`
`- Denial addressed To: Metalast Surface Technology, LLC, a Meiling owned company,
`
`U.S. Trademark Application No. 86228245 - METALAST- 32963-00001. [11]
`
`Notwithstanding the fact that the USPTO informed Petitioner that MI-INC, and
`
`not MI-LLC was the registered owner of the Metalast mark, Petitioner sued MI-INC and
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`Respondent alleging that MI-LLC was the true owner in the attempt to wrest or hijack
`
`the ownership from Respondent. Then, after the matter of ownership was settled,
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`Petitioner essentially thumbed its nose at the Federal Bankruptcy Court that mediated
`
`and approved the January 2015 settlement. That court described the Settlement
`
`Agreement as containing an "absolute prohibition" against any use of the word
`
`"Metalast" by Petitioner. Yet Petitioner has constantly and consistently referred to
`
`itself as Chemeon "FORMERLY METALAST." Petitioner refers to its products as
`
`"Chemeon TCP-HF (formerly Metalast TCP-HF)," or more recently as "Metalast TCP-HF
`
`(prior to June, 2015)." [12]
`
`In summary, Petitioner has used fabricated filings with the USPTO and civil
`
`litigation to falsely claim ownership of the Metalast mark and Registration. When
`
`those efforts failed, Petitioner once again sued to have the mark cancelled, even as it
`
`continues to market itself and its products under the "Metalast" moniker.
`
`Timing of the Petition is suspect. In Chemeon Surface Technology, LLC v.
`
`Metalast International, Inc., Case 3:15-CV-00294, on October 27, 2016, the District
`
`Court entered an order approving the parties' stipulation to stay certain proceedings in
`
`order to conduct a judicial settlement conference. Before the U.S. District Court
`
`settlement conference was scheduled, Petitioner commenced this action.
`
`Page 5of11
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`
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`Finally, the Petition fails to disclose the commencement of a class action suit
`
`against Petitioner and its owners in Alexander v. Meiling, Case No. 3:16-CV-00572 (D.
`
`Nev.). In this litigation, 22 members of MI-LLC have sued Petitioner, its principals
`
`(Dean and Madylon Meiling), and others for fraud, conspiracy, conversion and other
`
`claims related to Petitioner's actions seizure of MI-LLC's assets and going concern
`
`business. The Plaintiffs seek certification of a plaintiff class of nearly 1000 investors
`
`who invested $90 million in MI-LLC before Petitioner "bought" the company for$ 5
`
`million. This action necessarily implicates the 20-year history of dealings between MI(cid:173)
`
`LLC, MI-INC, and Respondent.
`
`The Allegations
`
`Respondent admits the allegations in paragraph 1.
`
`Respondent admits that: (a) MI-LLC was formed on or about December
`
`1.
`
`2.
`
`20, 1994; (b) before formation of MI-LLC, MI-INC, incorporated in May of 1994 and the
`
`Respondent prior to its incorporation, as early as January 1993 was using the Metalast
`
`mark in commerce; (c) after formation ofMJ-LLC, MI-INC was the manager of MI-LLC,
`
`and that on August 12, 1996, MI-INC MI-LLC entered into a non-exclusive license
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`agreement for the use of the Metalast mark ("License"); (d) the license was terminable
`
`by either party at any time; (e) Respondent was the CEO, Chairman, and controlling
`
`shareholder of MI-INC after formation of MI-LLC. Respondent denies the remaining
`
`allegations in paragraph 2.
`
`3.
`
`Respondent admits the allegations in paragraph 3.
`
`Page 6of11
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`
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`4.
`
`Respondent admits the allegations in paragraph 4, and affirmatively
`
`alleges that all such expenses were incurred by MI-LLC pursuant to the License.
`
`5.
`
`Respondent admits that MI-LLC, not Respondent, entered into certain
`
`licenses with the United States Department of Navy, Naval Air Systems Command of
`
`Patuxent River, Maryland to practice certain patents, and that MI-LLC developed,
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`under the management, guidance, supervision and vision of the Respondent
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`manufactured, and marketed products under the Metalast mark.
`
`6.
`
`Respondent admits that Metalast TCP-HF can cause personal injury if
`
`improperly handled. Respondent admits that certain engineering drawings and
`
`specifications calling for Metalast TCP-HF specify the application or other use of
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`Metalast TCP-HF is used in specified metal treatment processes. Because the
`
`remaining allegations in paragraph 6 are vague and ambiguous, Respondent cannot
`
`truthfully admit or deny those allegations.
`
`7.
`
`Respondent admits that Ml-INC registered the Metalast mark and
`
`related marks. Respondent denies the remaining allegations in paragraph 7.
`
`8.
`
`Respondent admits that on April 16, 2013, Petitioner commenced an
`
`action DSM Partners, Ltd. v. Metalast International, LLC, Case No. 13-CV-0114 (Douglas
`
`County, Nevada)("Receivership Action") falsely alleging that Ml-LLC was insolvent and
`
`seeking the appointment of a receiver. Respondent admits that the Receiver reported
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`to the state court that approximately 1,000 MI-LLC members had invested more than
`
`$95 million in Ml-LLC and that MI-LLC's accumulated losses exceeded $119 million.
`
`Page 7of11
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`
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`Respondent denies that the Receiver's reports were accurate or truthful. Respondent
`
`denies the remaining allegations in paragraph 8.
`
`9.
`
`Respondent denies the allegations in paragraph 9.
`
`10.
`
`Respondent admits the allegations in paragraph 10. Ml-INC was the
`
`lawful owner of the Metalast mark, and had the legal right to cause Ml-INC to assign
`
`the Metalast mark to Respondent.
`
`11.
`
`Respondent admits that the court in the Receivership Action approved a
`
`sale of Ml-LLC's assets to Petitioner, and that this sale was part of a foreclosure of
`
`Petitioner's collateral interest in Ml-LLC's assets, and, although being presented with
`
`fabricated documents and misrepresentations of material fact that the court's order
`
`says what it says. Respondent admits that Petitioner retained some employees of Ml(cid:173)
`
`LLC, but terminated, or constructively terminated, many key employees and all senior
`
`management. Respondent admits that Petitioner changed its name to Metalast
`
`Surface Technology, LLC, and that it continued marketing products under the Metalast
`
`moniker. Respondent denies any remaining allegations in paragraph 11.
`
`12.
`
`Respondent admits that in or about May 2015, Petitioner changed its
`
`name from Metalast Surface Technology, LLC to Chemeon Surface Technology, LLC.
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`Respondent denies that, starting June 10, 2015, Petitioner halted the use of the
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`Metalast Trademarks to market its products, as reality and factual evidence clearly
`
`proves otherwise. Petitioner referred to every one of its approximately 120 chemical
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`products as Chemeon XXX (formerly Metalast XXX). This was an attempt to continue
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`Page 8of11
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`
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`using the Metalast mark in a way that violated the 2015 Settlement Agreement.
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`Respondent denies any remaining allegations in paragraph 12.
`
`13.
`
`Respondent denies the allegations in paragraph 13.
`
`14.
`
`Respondent lacks sufficient information to truthfully admit or deny
`
`allegations about what Petitioner knew and when. On that basis, Respondent denies
`
`the allegations in paragraph 14.
`
`15.
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`Respondent admits that he received exemplars of product labels used by
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`Ml-LLC long before November 3, 2013. Respondent denies the remaining allegations
`
`in paragraph 15.
`
`16.
`
`Respondent denies the allegations in paragraph 16.
`
`17.
`
`Respondent denies the allegations in paragraph 17.
`
`18.
`
`Respondent denies the allegations in paragraph 18.
`
`19.
`
`Respondent denies the allegations in paragraph 19.
`
`20.
`
`Respondent denies the allegations in paragraph 20.
`
`21.
`
`Respondent denies the allegations in paragraph 21.
`
`22.
`
`Respondent denies the allegations in paragraph 22.
`
`Count I
`Fraudulent Registration (15 U.S.C. § 1064(3))
`
`23.
`
`Respondent incorporates all prior responses to the allegations
`
`incorporated by reference into Count I.
`
`24.
`
`Respondent denies the allegations in paragraph 24.
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`Page 9of11
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`
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`Count II
`Abandonment Based on Non-Use (15 U.S.C. § 1064(3))
`
`25.
`
`Respondent incorporates all prior responses to the allegations
`
`incorporated by reference into Count II.
`
`26.
`
`Respondent denies the allegations in paragraph 26.
`
`27.
`
`Respondent denies the allegations in paragraph 27.
`
`Count III
`Confusion as to Source of Origin (15 U.S.C. § 1064(3))
`
`28.
`
`Respondent incorporates all prior responses to the allegations
`
`incorporated by reference into Count III.
`
`29.
`
`Respondent denies the allegations in paragraph 29.
`
`Request for Relief
`
`Respondent requests the following relief:
`
`A.
`
`Further investigation by the TTAB, Office of the Inspector General for the
`
`United States Department of Commerce, or other prosecutorial arm of the US PTO into
`
`Petitioner's filing and the recordation of fabricated and false documents with the USPTO;
`
`8.
`
`C.
`
`Denial of the Petition For Cancellation; and
`
`An award of fees and costs that may be allowed by applicable law.
`
`Dated: December 1, 2016
`
`Respectfully submitted,
`
`~
`
`David M. Semas, in Pro Se
`An individual
`9900 Wilbur May Parkway, Unit 2406
`Reno, Nevada 89521
`Phone:
`(775) 790-8324
`Email:
`david@sierradorado.com
`
`Page 10of11
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`
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`CERTIFICATE OF SERVICE
`
`I hereby certify that a true and correct copy of the foregoing Defendants
`
`Answers and Exhibits for a Petition for Cancellation filed with the Trademark Trail and
`
`Appeal Board by the Plaintiff on November 18, 2016 has been served on Chemeon
`
`Surface Technology, LLC by and through its legal counsel Robert C. Ryan by mailing
`
`said copy with exhibits on December 1, 2016 via United States Certified First Class
`
`Mail, postage prepaid, on Plaintiff's counsel of record for the Registration as follows:
`
`Robert C. Ryan
`Christopher B. Hadley
`Tamara Reid
`Michelle N. Brooks
`HOLLAND & HART LLP
`5441 Kietzke Lane, 2nd Floor
`Reno,Nevada89511
`
`David M. Semas, in Pro Se
`
`Page 11of11
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`
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`Exhibit Index & Page Number Reference
`
`Chemeon Surface Technology v. David M Semas
`Cancellation No. 92064833
`Registration No. 2963106
`
`Exhibit
`
`Document Title & Description
`
`Response Page No.
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`USBC Judge Beesley /Zive Settlement Approval Transcript 3/2/2015 _____ _____ __ ___ _2 ____ _____ _
`
`USBC Judge Beesley Reaffirmation Hearing Transcript 12/3/2015 _______________ ___ 2 __ ______ _
`
`Mike Hoy Request For Judicial Notice To USDC Judge Du 2/5/2016 _________ ___ ______ 2 ________ _
`
`Chemeon v. Metalast Adversary Complaint and Respondent Counter Claims ________ __ _2 __ ____ ___ _
`
`Chemeon v. Metalast Petitioner Response to Counter Claims _____________________ _ J __ ___ ____ _
`
`Metalast Trademark License Agreement between MII and MILLC ______ _____ ____ ___ J ___ ______ _
`
`DSM - MILLC Original Without Exhibit B Security Agreement 12/17 /2009 _____ ___ ___ _:1. ______ ___ _
`
`DSM - MILLC Fraudulent With Exhibit B Security Agreement 6/17 /2013 ____ ___ __ ___ _:t. _________ _
`
`DSM Attorney Brice Leslie Confirming NO Exhibit B Attached Email 4/16/2016 _______ _:1. _________ _
`
`10
`
`Tiffany L. Schwartz Unauthorized USPTO Filing of Exhibit B _____________ ____ __ ____ _:t. __ ______ _
`
`11
`
`USPTO Office Action Letter- Denial Metalast Mark 6/25/2014 ____ ________ _____ ___ l) __ ___ ___ _
`
`12
`
`Chemeon Safety Data Sheet "Metalast TCP-HF (prior to June 2015)" __ __ ___ ____ ______ 6 _____ __ _ _
`
`
`
`EXHIBIT 1
`
`Trademark Trial and Appeal Board
`
`Chemeon Surface Technology, LLC - Plaintiff
`
`David M. Semas - Defendant
`
`Cancellation No. 92064833
`
`Registration No. 2963106
`
`Defendant's Answers To Petition
`
`Prepared by: David M. Semas
`9900 Wilbur May Parkway, Unit 2406
`Reno,Nevada89521
`Tel: (775) 790-8324
`
`December 1, 2016
`
`Chemeon v. Semas
`Cancellation #92064833
`Hereafter Referenced As
`064833
`
`
`
`Case 13-52337-btb Doc 305 Entered 03/11115 14:34:39 Page 1 of 22
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`I
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`2·
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`3
`fln
`red on Docket
`Ma h 11, 2015
`5
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`6 STE£1{ENR. HARRJS. ESQ.
`; Nevada Bar No. 001463
`7 HARRIS LAW PRACTICE LLC
`8
`·6l5l Lake~i<le Drive~ Suite 210ff
`Reno, N~vada '89511
`9 Te~ephone: (775) 786-7600
`£,.Mail: steve@batrislawreno.com
`10
`Attorneys fqr Debtors
`
`UNITED STATES BANKRUPTQY COURT
`FORTfI~ DlS'fR.ICT OFNEVAPA
`* .. * *·*
`:CaseNo. l3·52337•btb
`(Cheipter 11) · · · · ·
`
`11
`12
`13
`
`INRE:
`
`14
`15
`16 DAVIDM. SEMAS and
`SUSAN 0. SEMAS,
`
`t7
`
`18
`
`Debtots.
`
`.0.RD:ER APPROVING MOTION FOR
`ORDl£RAf PR()VING C()MPRQMJSE
`,ANJ)SETTLEMENT OF CLAIMS OF
`MEILING.cREnJToiiSPuRSuANr to
`FRBP,901·9 . . .
`.
`.. ..
`.
`.
`
`19
`20
`
`21
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`22.
`
`Hrg. DATE: M~ch 2,20J5
`to:oo a.m.
`and TIME:
`Est. Time~
`5 mi.nut~
`SetBy :
`JudgeBe~sleyperOST
`The MOTION fOR GRUEil APPROVING COMPROMISE AND SEITLEMENT OF
`zj .· ·CLAIMS OF ,ME~LING CR]2:DJTORS. PURSUANT TO FRBP 9019 ("Motion'') [Docket Np.
`24 . 2S8] fi1e4 herein by DAVID M. SEMAS and SUSAN 0 ; SEMAS~11ebtors ~d Debtots-fa.,
`25 · .. Poss~ssion herein ("Debtors;,)°, came before the Court for hearing, purs~t to a,n Order
`26 ·. Short~iling Time, on March 21 2015~ at 10:00 a.m., continµed Jrqm Febl1UITT' 24, 2015, at 2:00
`27 p,m., after notice to all cre<litors Md parties in inte~st; with STEPHEN R. HARR1S, ESQ., of
`28 . , ·HARRIS t.AW PRACTICE LLC, appeariI~g 011 behalf of the Debtors, and with David Sen1as
`
`STEPHEN ~ H,\AAIS, !30,
`mJlR1S J..\W PR,l>C11C£UC
`6l5i UK~IDt DJU\IE
`~iJITE~IOO
`JWIO, NE.Yi\CA 89$11
`Tt!£PHONEt 17151 '8&-'600
`
`1
`
`06~833
`
`
`
`Case 13-52337~btb Doc 305 Entered 03/11/15 14:34:39 Page 2 of 22
`
`1 and SµSan Semas also p~sent; with TIMOTHY A. LtJKAS, ESQ, of H'.OLLANO & HART
`2 LLP, appero-ing on behalf of METALAST SUR}"'ACE TECHNOLOGY, LLC .. F.ORME:RLY
`3 KNOWN AS D&M-W,, LLC AND SUCCESSOR IN INTERES.T TO DSM P ARTNER.S,
`4· LTD; DEAN :MEILING,. AND MADYLON .MEILING;.· With the Court having :reviewed ~U of
`
`the papers and pleadings 011file herein~ including the RESPONSE TO D}3BT01lS' MOTJON
`5
`6 . FbR ORDER APPROVING COMPROMISE AND SETTLEMENT OF CLAIMS OF
`7 MEILING CREDITORS PURSUANT TO FRBP 9019 [Docket No. 267]; the Reply thereto
`8 ·. [Pocket No, 281] and the WITHDRAWAL OF RESPONSE TO DEBTORS; MOTION FOR
`9 ORDER APPROVING COMPROMISE AND SETILEMENT OF CLAIMS OF MEILINO
`10 . CREDITORS PURSUANT TO FR.BP 9019 [Docket ·· No. 294];. with no other objection or
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`1.1
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`· .response having been filed; and good ¢ause apperuin~:
`IT JS HEREBY ·ORDERED that the MOT10?4 FOR ORPER Af:P)lOVlNG
`13 . COMPROMISE AND SETTLEMENT OF CLAIMS .OF :MEILING CREDITORS PUI{SUANT
`14 TQ FRBP 9019 is approve({, as detaile4 in the Trans<:ript of Settlement Conferenc~, which is
`i 5 attached herei() andincQrpornted herein as E)l;hibit A;
`
`16.
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`IT lS FUR~R ORDE,RED th~t United States Bankniptcy Court Judge Gregg ZiVe
`shall retaiµjurisdictjonfor.,pl,.Uposes of enforcing 1,he parties' ·settlement agreement.
`Submittcxl by:
`STEPHENR HAlIBJS .• ESQ.
`HARRIS LAW J.>.RACTICELLC
`
`20
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`ls!StephenR. IJa;ris
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`Attorneys for Debtors
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`Disapproved by:
`
`1JM0Tf!YA~ LUKA$, ESQ.
`HOLLAND & HARTLLP
`
`Isl Timothy A. Lu/ca$
`
`Attorneys for Meiling .creditors
`
`STt:MU:N it MIUUS, ·~·
`iiAl>.!iiS Li.W PMC11CE LLC
`6151 I.AKE.SIDE DllJVE
`
`RENO. NEVADA 119>11
`11'.ltl'HON£: (715) 7116-760(;
`
`2
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`. 06~833
`
`
`
`ase 13-52337-btb Doc 305 Entered 03/11/15 14:34:39 Page 3 of 22
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`CERTIFICATION RE: RULE 9021
`
`ln accordance with Local Rule 902l, coimSel submitting this ~focument certilies that the ord~r
`
`accurately reflects :the cotirt1 sruling and that (oheck-0ne):
`
`__ Thecourthas waived the requiren1entset forth inLR 902l(b)(l);
`
`- · - No party app~ared at the hearing or fl.led an objection to the motion.
`
`_x_· _ Ihave delivereda c-0py ofthisproposed order to all co:Unsol who appeared ?t
`the heli.Iing, ~nd anY ~presented parties Who appeared atthe bearil).g, and each bfis
`~pproved or disapproved the order, or failed to respo11<J~ as iildicat~. b~ow[Iist each
`party and whether the party has ;:tpprov~ diS.approyed, or failed to ~P.Pn~ to the
`
`do¢µrt\erit]:
`Tim,othy A. Lukas, f;S<J.
`Attorney for M~iling Credito.i:S.
`_ .. - .. -· -. J .9er{~fy t,hat this is a case under Chapter 7 or 13, thatl ha.vie.served~ copy pf this
`order with the motion plir$uarit to LR9014(g),,and that 110 party 'has objected to the. fom1
`
`tiis~pproved
`
`or content of the ord.er.
`
`Dated this 6th day of March! 4015.
`
`/sl Stephen R. Hafrl'>
`
`. STEPHENR; HARRIS, ESQ.
`
`3
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`, 06~833
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`STEPllOl It HA!IRIS, ESQ_.
`liAIUUS LAW P!w:Tlct U.C
`6tSI l.Al!tslD<. DIUV£
`S\JITE2100
`ll0\0, NEVADA i!IS!I
`11'.LtPllOttC< ('17Sl 'l&S-760'.I
`
`
`
`ase 13-52337-btb Doc 305 Entered 03/11115 14:34:39 Page 4 of 22
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`Hirt.is L>w Prank• UC
`61$1 Lil.$klr Dri\1'
`Sulit 2100
`Rmo. ~8*11
`(775) 'lfi6 71<XJ
`
`Exhibit 11A 11
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`2
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`•· 06~833
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`
`
`Case 13-52337-btb Doc 305 Entered 03/11115 14:34:39 Page 5 of 22
`
`UIUTED STATES ~ImUPTCY C()URT
`DISTRICT OF NEVADA, (.R~O)
`
`IN ~E:
`DAV,l:D M. SEMAS and
`SUSAN 0. SEM.1\S,
`
`Debtors.
`
`METALAST SURFACE
`TECiiNOLOGY, LLC,
`
`l?lai:nt;Lf f,
`
`·v,.
`
`'P1WID M. SEM~S :.and
`ME:t'Al..A'ST INTERNATl01:'7AL; INC.,
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`·.:!
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`•
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`,•
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`•
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`• .
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`.. .
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`•
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`•
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`Deftand,ant~.
`"
`·"'
`. fl
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`~
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`~
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`· •
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`. _;..
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`. ...
`
`ca·se No. 13 ;.52337-BTB
`
`Chapter 11
`
`Adv. No. 14-05036-BTB
`
`.300 Booth Str~et
`Rener NV s9so9
`Tu.esday, Janual;"y 2."T , 2 o i: s
`3:21 p . m_
`
`TRANSCRIPT OF SETTLEMENT CbNFERENC'E
`:B:EFoR~ - i:rffli: · uoNdlU\BLE :<;P..EGGW. zJ:VE
`uN'r.TED s'J:'f\.TEs aJ>J'1rntiPTc.Y CC>1m'r .runGE
`
`APPEARANCES·:
`
`For David and Susan Semas~
`
`Fol;'. D&M..,MI, LLC and Metalast
`surface Technology, LLC:
`
`Jl.PPEARANCES CONTINUED.
`
`:.Harris Law Prac:ti ce, LLC
`:l!y : S'l'EPHEN .. R. HAR.Rt S, ESQ.
`6is1 Lakes_l,.de Drive, Su~.te 210 o
`ReJl.Q,, NV 09.Sll .
`(1isl 786•760.6
`
`Armstrong Te~sdale ;c,I-!P
`JAliTET L • CHtJBB, ESQ.
`gy;
`50 W. Liberty Street, Suite ~50
`Reno, NV ·a9so1
`(775) 322-7400
`
`Audi.a ·Operator:
`
`David Lindersmith; ECR
`
`?:ranscri,pt ion company:
`
`Access Trapscr,iptsr L:t.C.
`io110 xoung-Wood I,.an_e
`Fishers, IN 4Ei()3S
`{ass} a13-2223
`www.accesstranacripts.cqrrt
`
`Proceedings :recorded by e],ectronic sound recoi:d.ing,
`transcript produced by transcil;iption service.
`
`_{)6~833
`
`
`
`Case 13-52337-btb Doc 305 Entered 03111115 14:34:39 Page 6 of 22
`
`' APPEAAj\NCE)S (Continued):
`
`special counsel:
`
`lart F Burn::; .·6.·. A$sociates
`. IJW F :, ~mu.JS, :E:SQ •
`By·:
`. it?9() qiµghl).i:l Parkw.ay ·
`Reno, ·WJ' · S.~.519
`(775) . 82,6 ~ 6'160
`
`RoweH£\li! rtµrbide, L:C,,P
`By: M!.cHAEL S . R()WE, ESQ.
`1.638 E$meralda Avenue
`r.1inde11, NV 89423
`(77S) 782-8141
`
`ACCESS TR.ANSCRWTS, LLC
`
`± · 1-855-tJSE-ACCESS (873-2223)
`
`
`
`Case 13-52337-btb Doc 305 Entered 03/11/15 14:34:39 Page 7 of 22
`
`INDEX
`1/27/15
`
`VOIR DIRE EXAMINATION:
`
`Susa~ Semas
`
`MadylonMeiling
`
`bean Meiling
`
`3
`
`.PAGE
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`12
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`13
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`1 4
`
`l5
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`ACCESS TRANSCRIPTS, LLC
`
`:¥ 1-855-USE-ACCESS (873-2223)
`•· 06~833
`
`
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`case 13-52337-btb Doc 305 Entered 03/11/15 14:34:39 Page 8 of 22
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`4
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`l
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`2.
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`(Proceedings cc:>mmence at 3.~21 p.m,J
`
`THE COURT: Be seated. This ;is irt the matter o'f
`
`3 Metalast surfac~ Technology:, Lj..C v. Sem9s, ~rtd that i $ Adversary
`
`4. 14-05036, B.$ well as in the bctnkruptcy ca;;e 13 ~5233. 7, David @d
`
`5 Susan . Semas , May I have appearances first.
`
`6
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`MR. HARRIS; Your Honor I Steve }iarris.
`
`I represent
`
`7 bavid and Susan Semas. Tbey ;;tre both present, an<i also present
`
`s : is Mike Rowe, $peoial counsel, and Iari B~rns, special counsel.
`
`9
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`Ms. CHUBB: Good afternoon, Your Honor. Jan~.t Chubb.
`
`lO
`
`·:i:
`
`:represent Madylon and Dean Meiling and MS'J:',
`
`11
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`12
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`13
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`'i'HECOlJR'l':
`
`Metal.a~t Surtace Technology?
`
`MS. CH{Jl3B: Yes.
`
`T:aE COORT: That 1. s an :LLC a,nd they' re the managing
`
`14 members of that LLC ..
`
`IS. th,al:: correct?
`
`15
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`16
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`17
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`18
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`!"1S. CHUBS.: Yes.
`
`THE COUR,Ti
`
`Is that righ.t?
`
`MS. CHUBB; Yes.
`
`TliE COURT: All J:"ight.
`
`Pl:ea!3e be seated. Pursuant
`
`19 to ah order entered by Judge B::r;-uce a~~sl.ey, I presided at a
`20 $ettlement conference today and have reviewed a nµrnl;ier of
`21 pleadings and other materi.als submitt~d by the parties, as well
`
`22 c;s tneir confidential settlement statements.
`
`23
`
`F9llo11ting hours of good-.t;aith ~egotiat:ions, th.e
`
`24 parties have entered :into an agreement.
`
`J: haye advised the
`
`25 parties that I will pla,ce the l'i9J:°eement on t}le rec::o:td, give
`
`ACCESS TRANSCRIPTS, LLC ± I
`
`~ ~ .
`
`.· --· 1-855-USE-ACCESS(873-2223)
`
`~ -
`
`--
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`
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`Case 13-52337-btb Doc 305 Entered 03/11/15 14:34:39 Page 9 of 22
`
`5
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`1 counsel, a chance to C()~rect any errors L • ve made or note any
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`2 omissi.ons that I have made, ~hen I will ask the parties if they
`
`3 understand tbe terms <;>f tl:ie .agreement and agree to :Pea bound by
`
`4
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`s
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`6
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`the agreement. And of cqurse if t:hey have any questions at
`
`that time, they should ask me.
`
`And I 1 ve also advised the . p.art:i.es that if the
`
`7 agreement is placed on the record, as I understand it; that
`
`s
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`they .are bound immediately upon t:he completion of this heari;ng,
`
`9 that there will be a motion l;n:-ought pursuant to Federal Rule of
`
`1.0 Bankrµptcy Procedure 9019 on a stipµlated request ,for an orde:r
`
`11· shortening time for Jud.ge :f3eesley to consid,er the .sett le.ment
`
`12. pursuant to that rule, and he will enter an order after
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`13 ~:i<:erci sing h.is. discretion.. Bue as between the parties,. there
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`14 is .an, p:gr¢einent n(:iw,
`
`.it 1 s fµlly ¢nforceahle, and that I would
`
`15 .enforce it if nece~rac!.l."¥ by ~se -0f contetnPt or .:tny other r~medy
`
`16 a.vai~$le to me; and that each :Said tbey unders.tood. that and
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`17 agreed.
`
`18
`
`So at this time l am going tcj place the terms of the
`
`19 partie'S • settlement on the record. Meealast Surface ·Technology
`
`20 is a creditor in this qase. It 1 s a limited lia.bility company
`
`21 and its manag;ip.g met!'lbers are Mx:. and M;?:S. Meiling. The. Semase.$
`22 are debtor·s in possession in their individual Cha:pt;::er 11 Clise,
`
`23 The parties hav.e agreed as follows:
`
`24
`
`That th~re is · a t _rademark r~garding tpe name
`
`25 Metal~$t ..
`
`Ther~ is .a di$pute regarding ownership. Th.at
`
`ACCESS TR.ANSClUPTS, LLC
`
`1 ~855-USEwACCESS (873-2??3)
`
`•· 06~833
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`
`
`Case 13-52337-btb Doc 305 Entered 03/11/15 14:34:39 Page 10 of 22
`
`1 dispute h,as been ~esolved aa follows:
`
`2
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`Metalast .Surface 'fecpnqlogy through the Mailings will
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`3 cqptj;nue to U$e the ·mark for 90 days fo),.low:i_ng entry Ot the
`
`4 order approving the settlement: agreement by .Judge .aeesley, if
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`S he does approve it. At the end of that 90-day period; Metalast
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`6 Surface Technology, tlle Meilinss, .and any Qther entity in which
`
`7
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`8
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`the Meilings have an interest; will no loilg~r be able to use
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`the· µ.ame Metalast in any fashion o;r tl\Cl.nner whatsoever.
`
`9 Following that 90 days, the mark will be owned by Mr. cmd
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`10 Mrs. Semas, or any entity in wh,ich they choose to transfer that
`
`i1 · mark.
`
`12
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`As to the proofs of claim filed by Metal~st Surf.ace
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`13 and/or the sewases, tw.q of those claimt:i are prei:ni,seq upon
`
`14 gua~antees signed by Mr. Semas • The total .amount . of tho;ie two ·
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`lS guaranteed cle:tims is iipproximately $540, Ooo. The s·emases
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`16 and.for Metal;ast shall -~ because I Clon 1t
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`remember ex<lctl,y wbo
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`l. 7 filed the proof of claim.
`
`18.
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`19
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`MS.
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`·CHuBB: The Mei lings I think you mean.
`
`'l'HE COuRT: Meilings? Am I saying tkt wrong?
`
`20 Meiii:ngs.
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`21
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`22
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`MS • CHUBB: Yes.
`:rs the claim in the Meilings• name or
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`THE COURT:
`
`23 Metalast?
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`24
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`25
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`MS •. CHUBB!
`
`I
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`THE COURT:
`
`I. think it•s Meilin9's.
`
`ACCESS TRANSCRIPTS, LLC
`
`1-855-USE-ACCESS (873-2223)
`
`,, 06~833
`
`
`
`case 13-52337-bt
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