marc joseph ny v. clark's - complaint

7/27/2019 Marc Joseph NY v. Clark's - Complaint

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Gary L. CutlerGary L. Cutler, P.C.

160 Broadway, Suite 600New York, NY 10038

Tel.: (212) 227-4358Fax: (973) 735-6663

[email protected]

UNITED STATES DISTRICT COURTEASTERN DISTRICT OF NEW YORK

---------------------------------------------------------------::

Marc Joseph NY, Inc., : Case No. 13-cv-_____ (: Jury Trial Demanded

Plaintiff, ::

-against- ::

C. & J. Clark America, Inc., C. & J. Clark, Ltd., :C. & J. Clark Retail, Inc., C. & J. Clark :

Manufacturing, Inc. and John Does 1-20, ::

Defendants. :---------------------------------------------------------------:

COMPLAINT

Plaintiff Marc Joseph NY, Inc., by and through its counsel, for its Complaint

for relief against defendants C. & J. Clark America, Inc., C. & J. Clark, Ltd., C. & J

Retail, Inc., C. & J. Clark Manufacturing, Inc. and John Does 1-20, alleges as follow

NATURE OF THE ACTION

1. This is an action arising under the Trademark Laws of the United Sta

U.S.C. 1051 et seq. (the "Lanham Act"), and in particular for (a) trade dress infr

Case 1:13-cv-04672-PKC-RER Document 1 Filed 08/19/13 Page 1 of 20


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2. This action also arises under New York State law and alleges: 1) tra

dilution in violation of N.Y. Gen. Bus. Law 360-l; 2) trade dress infringement in v

N.Y. Gen. Bus. Law 360-k; 3) common law unfair competition; and, 4) deceptive

trade practices in violation of N.Y. Gen. Bus. Law 349.

3. This action asks the Court to stop the brazen copying of Plaintiff Ma

NY, Inc.'s ("MJ") widely successful shoe, the "Cypress Hill" driving moccasin, by t

(collectively "Clarks") and the sale of the copied item, the "Dunbar Racer." It also

damages through recovery by MJ of Clarks' profits, actual and treble damages to MJ

from lost profits, as well as punitive damages, attorneys' fees and prejudgment inter

injunctive and statutory relief. In every critical aspect, defendants have reproduced

Hill driving moccasin in the Dunbar Racer. Defendants have appropriated for their

and profit, Cypress Hill's characteristic hand-stitching, the pattern of the shoes' rubb

rubber name plate on the exterior backs of the heels, and the stitching detail of the a

foot and "Marc Joseph bow-tie" tassel (collectively referred to as the "Details" and/

Dress"). Clarks began marketing the Dunbar Racer at least three years after MJ beg

marketing the Cypress Hill. The two designs are so similar, indeed virtually identic

apparent that Clarks has copied MJ's design in bad faith, maliciously and willfully.

4. The outright arrogation of the distinctive design of the Cypress Hill T

by defendants has led to enormous confusion in the marketplace between the two sh

Defendants have diluted the famous Cypress Hill Trade Dress by selling the identica



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the Cypress Hill Trade Dress and will continue to do so as long as MJ's distinctive d

copied, a permanent injunction is warranted against the further sale of Clarks Dunba

5. Both shoes are sold in the same markets including common shoe web

department stores and boutique shoe stores. MJ has suffered enormous lost sales fro

trade dress infringement and trade dilution. Because of these losses and the blatant

by Clarks through the appropriation and sale in the same markets of its own identica

Clarks' profits from the sale of the Dunbar Racer should be disgorged. MJ must als

compensated for the loss of its goodwill and damages sustained by MJ in lost sales.

PARTIES

6. Plaintiff Marc Joseph NY, Inc. ("MJ") is a corporation organized

under the laws of the State of New York, with its principal placeof business at 1

Street, Building A, Unit 8-M, Brooklyn, NY 11220. Plaintiff resides in this Courts

district.

7. Defendants C. & J. Clark America, Inc., C. & J. Clark Retail, Inc.C. & J. Clark Manufacturing, Inc. are corporations organized and existing under t

laws of the State of Pennsylvania, with their principal placesof business at 156 O

Street, Newton Upper Falls, MA 02464. Defendant C. & J. Clark Retail, Inc. is

registered as a foreign business corporation with the state of New York.

8. Defendant C. & J. Clark, Ltd., upon information and belief, is a lliability company organized and existing under the laws of the State of Pennsylv



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Clark Retail, Inc., and/or C. & J. Clark Manufacturing, Inc., and which has a principa

business at 118 Carlisle Street, Hanover, PA 17331.

9. Defendants C. & J. Clark America, Inc., C. & J. Clark Retail, Inc.Clark Manufacturing, Inc. and C. & J. Clark, Ltd. shall be collectively referred to

Clarks, and the term Clarks should be read to mean all such defendants jointly

severally.

JURISDICTION AND VENUE

10. This Court has jurisdiction over the subject matter of this action and

partiespursuant to 28 U.S.C. 1331 (federal question) and 15 U.S.C. 1121 (Lan

Subjectmatter jurisdiction exists over Plaintiffs state law claims pursuant to 28 U.S.

1367(a)(supplemental jurisdiction).

11. This Court has personal jurisdiction over all defendants because they

engaged in substantial and regular business in the State of New York and in the Ea

District of New York including by selling their shoes through their own outlets and

retail partners located in the Eastern District of New York and through numerous in

sales into the Eastern District of New York. Personal jurisdiction over C. & J. Cla

Inc. exists for the additional reason that that entity is registered as a foreign corpora

State of New York. Additionally, the defendants' acts have caused injury to Plaint

the State of New York and the Eastern District of New York.



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including selling its shoes in this district and Clarks has numerous retail stores and

partners in this judicial district through which it sells its shoes. (Source: The Clark

website).

FACTS AND ALLEGATIONS COMMON TO ALL COUNTS

13. MJ opened in 2006. MJ is a leading manufacturer of designer brand

forward footwear. The Marc Joseph brand is well known among both customers a

leaders, and has been profiled in various magazines such as TravelSmith, Colorado

Style and Mom Trends. In particular, MJ is most famous for its driving moccasins

writer commented are "designed by a Manhattan team recognized worldwide for it

quality, comfort and fit." Consumer recognition of the MJ brand is further enhanc

that Marc Joseph footwear is sold in over 200 independent boutiques, 20 online ret

and 1,000 retail outlets, including many high end department stores and other natio

recognized department stores and retail distribution channels. MJs best-selling sh

2009 has been their Cypress Hill womens driver moccasin. As of the current da

million pairs of the Cypress Hill women's driver moccasin have been sold.

14. MJ designed the Cypress Hill womens driver moccasin on May 26,

began in August 2009, and deliveries were being fulfilled in January, 2010.

15. The Cypress Hill womens driver moccasin has several non-function

distinctive Trade Dress features, including but not limited to metal studded tassels

functional leather shoelace (known as the Marc Joseph bow-tie), the patterns of



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aesthetic, artistic Details are essential to the function or use of the shoe, the purpos

nor do they affect the cost or quality of the shoe. Prior to the actions of Clarks com

herein, no other shoe in the world ever had these inherently distinctive and non-fun

Details. A true and accurate photograph of the Cypress Hill womens driver mocc

attached and incorporated herein as Exhibit 1.

16. MJ, directly and through its distributors and retailers, has spent subst

of money advertising, promoting and otherwise cultivating the goodwill in the Cyp

Trade Dress, such that the Details have come to be associated with MJs high quali

workmanship and detail in shoemaking. The non-functional Details of the Cypres

womens driver moccasin have developed secondary meaning in the marketplace.

people see any of these Details, they immediately recognize the shoe as the Marc J

Cypress Hill womens driver moccasin. Some evidence of the secondary meaning

Details of the Cypress Hill womens driver moccasin is attached and incorporated h

Exhibit 2A - Exhibit 2N.

17. MJ has at all times been the owner of the Trade Dress and Details of

Hill womens driver moccasin as well as all of the Cypress Hill intellectual proper

used the Details as its Trade Dress in interstate commerce continuously since 2009

18. MJs exclusive right to use this Trade Dress and Details of the Cypre

womens driver moccasin has never put competitors at any significant non-reputati

disadvantage. None of the Details make the shoe more functional. In fact, Plaintif



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19. At some point in 2012 or 2013, Clarks, without the authority or cons

began using MJs Details and Trade Dress in interstate commerce. Clarks began th

manufacture, distribution, sale, offering for sale and advertising of its Dunbar Rac

moccasin (the Infringing Product), which is identical in aesthetic design to MJs

shoe, using each and every one of the aforementioned Details in its design, and is l

cause confusion or mistake or to deceive as to the affiliation, connection, or associ

person with another person, or as to the origin, sponsorship, or approval of his or h

services, or commercial activities by another person, in violation of 15 U.S.C. 11

Clarks website featuring Dunbar Racer, attached as Plaintiffs Exhibit 4).

20. When the Infringing Product is held next to the MJ Cypress Hill shoe

virtually indistinguishable.

21. Clarks sells the Infringing Product to consumers for a price significan

the price of MJs Cypress Hill shoe.

22. Clarks advertises, sells and/or offers for sale the Infringing Product o

than thirty one (31+) websites, including many websites where MJs Cypress Hill s

including but not limited to 6pm.com, Amazon.com, Belk.com, Bonton.com, Clark

Comfortfeetshop.com, Dillards.com, Footwearetc.com, Lord&Taylor.com, Macys

Nordstrom.com, Onlineshoes.com, Orvadirect.com, Overstock.com, Peltzshoes.co

Piperlime.com, Planetshoes.com, Plow&hearth.com, Polyvore.com, QVC.com, Sc

Seventhavenue.com, Sterlingleather.com, Shoebuy.com, Shoegalleryonline.com,



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23. Clarks advertises, sells and/or offers for sale the Infringing Product i

of its own retail stores around the country (the exact number of Clarks stores in the

States is not known to Plaintiff). (See Clarksusa.com website and Exhibits 4, 5).

24. Clarks advertises, sells and/or offers for sale the Infringing Product i

of third party retails stores around the country, including retail stores where MJs C

shoe is sold. Clarks provides the Infringing Product to thousands of retail stores w

of causing the retail stores to put the Infringing Product in use. In fact, to further a

confusion of the Trade Dress, some of these retail stores display MJs Cypress Hill

directly next to the Infringing Product.

25. Confusion in the marketplace is evident to MJ, as numerous distribut

customers and end users have purchased the Infringing Product when they intended

MJs Cypress Hill Shoe. Some have ceased purchasing the MJ Cypress Hill shoe

started purchasing the Infringing Product instead. At least one website has been di

tells consumers who intend to purchase MJs Cypress Hill Shoe to purchase the Inf

Product instead due to the lower price of the Clarks shoe. A copy of said website i

and incorporated herein as Exhibit 6.

26. On January 29, 2013, Plaintiff, by and through different legal counse

written cease and desist letter and notice of infringement (including trade dress) to

upon Clarks. On February 4, 2013, Clarks responded through its counsel that it ref

and desist on its infringement upon MJs trade dress. (See correspondence attache



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COUNT I

FEDERAL TRADE DRESS INFRINGEMENT(15 U.S.C. 1125(a))

27. MJ incorporates herein by reference all of the allegations set forth he

reference as if rewritten fully.

28. Clarks, without the consent of MJ, are using or have used in commer

Details and Trade Dress, in connection with the sale, offering for sale, distribution

advertisingof the Infringing Product, which, because of its confusing similarity to t

Cypress Hill Trade Dress, is likely to cause confusion or mistake or to deceive as to

affiliation, connection, or association of such person with another person, or as to t

sponsorship, or approval of his or her goods, services, or commercial activities by

person, in violation of 15 U.S.C. 1125(a).

29. Clarks adoption, use and continued use after being warned by MJ

Details and Trade Dress in connection with its Infringing Product, including as des

above, was in bad faith, malicious and in willfuldisregard of MJ's rights, with inten

on and appropriate the reputation andgoodwill that MJ has built in the MJ Cypres

Details and Trade Dress, and to divert customers and revenues from MJ.

30. The aforementioned actions and activities of Clarks have caused and

continue to cause MJ irreparable harm unless and until such time as they are enjoin

this Court. Pursuant to 15 U.S.C. 1116, a district court has the power to grant inj

for trade dress violations contrary to 15 U S C 1125(a) (c) according to the pri



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31. MJ will suffer irreparable harm in that it has and will continue to lose

over the reputation of its trade dress in the Cypress Hill Trade Dress. The Cypress

driving moccasin has a solid reputation and garnered substantial goodwill among it

customers as evidenced by the volume of sales, MJ's extensive marketing and adve

campaigns, and word of mouth recommendations by its customers.

32. Defendants by employing MJ's trade dress in the Dunbar Racer have

to directly profit from the goodwill and reputation that MJ has created for the Cypr

Trade Dress.

33. Due to the high likelihood of confusion and actual confusion betwee

shoes, MJ's reputation and goodwill will be substantially damaged without the issu

permanent injunction enjoining future sales of Clarks Dunbar Racer.

34. The balance of the equities favor MJ in its request for a permanent in

Consumer confusion and potential loss to plaintiffs in terms of reputation, goodwil

sales threaten to cause MJ serious continuing harm. Any harm to defendants is mit

the fact that Clarks can continue to market an extensive line of non-infringing shoe

the Clarks brand.

35. The consuming public has a protectable interest in being free from co

deception and mistake. The public has a right to not be deceived, that is, in being a

that the trade dress it associates with a product is not attached to goods of unknown

and quality. Due to the likelihood of confusion and actual confusion engendered b



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37. Defendants' conduct has caused and is likely to continue causing sub

injury to the public and to plaintiff and plaintiff is entitled to injunctive relief and to

defendants' profits, actual damages sustained by the plaintiff, punitive damages, co

reasonable attorneys' fees and other remedies pursuant to 15 U.S.C. 1125(a), 11

and 1118.

COUNT IIFEDERAL TRADE DRESS DILUTION

(15 U.S.C. 1125(c))

38. MJ realleges and incorporates herein by reference all of the allegat

forth in paragraphs 1 through 37.

39. The MJ Cypress Hill Details and Trade Dress are distinctive and fam

having beenused by MJ in connection with the advertisement, promotion and sale o

goods and services since 2009.

40. Clarks began using the MJ Cypress Hill Details and Trade Dress afte

Details and Trade Dress became famous, and thereby caused, and are causing, the d

the distinctive quality of the MJ Cypress Hill Details and Trade Dress in violation of

1125(c).

41. Clarks adoption, use and continued use despite warning to cease

desist from such use of the MJ Cypress Hill Details and Trade Dress in connection

Infringing Product, was inbad faith, malicious and in willful disregard of MJ's righ

intent to trade on and appropriate the reputation and goodwill that MJ has built in th



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43. As the acts alleged herein constitute a willful violation of 15 U.S.C.

Plaintiff is entitled to injunctive relief as well as monetary damages and other remed

provided by 15 U.S.C. 1116, 1117, 1118 and 1125(c), including defendants' prof

damages sustained by the plaintiff, treble damages, reasonable attorney's fees, costs

prejudgment interest.

COUNT IIINEW YORK TRADE DRESS DILUTION

(N.Y. GEN. BUS. LAW 360-l)

44. Plaintiff realleges and incorporates herein by reference all of the alle

Paragraphs 1 through 43.

45. The MJ Cypress Hill Details and Trade Dress are distinctive and fam

beenused by MJ in connection with the advertisement, promotion and sale of its g

services since 2009.

46. Defendants began using the MJ Cypress Hill Details and Trade Dres

trade dress became famous, and thereby caused, and are causing and/or are likely t

dilution of the distinctive qualityof the MJ Cypress Hill Details and Trade Dress in

N.Y. Gen. Bus. Law 360-1.

47. Defendants' adoption and use of the MJ Cypress Hill Details and Tra

connection with its goods, including as described above, was inbad faith and in w

disregard of MJs rights, with intent to trade on and appropriate thereputation and

that MJ has built in the MJ Cypress Hill Details and Trade Dress, and to divert cust


C 1 13 04672 PKC RER D 1 Fil d 08/19/13 P 13 f 20


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48. Sale of Clarks Dunbar Racer has led to a likelihood of dilution of the

quality of the trade dress Cypress Hill Trade Dress. Accordingly, a permanent inju

against further sales of the Dunbar Racer also is warranted under NY Gen. Bus. La

49. The aforementioned actions of Defendants have caused and will cont

irreparable harm unless and until such time as they are enjoined by this Court.

COUNT IVNEW YORK COMMON LAW UNFAIR COMPETITION

50. Plaintiff realleges and incorporates herein by reference all of the a

Paragraphs 1 through 49.

51. Consumers primarily associate the trade dress of the Cypress Hill dri

moccasin to MJ and MJ possesses a valid and protectable trade dress in its Cypress

Dress.

52. Defendants have misappropriated the labors and expenditures of MJ

copying the trade dress of the Cypress Hill Trade Dress.

53. Defendants' unlawful conduct causes actual confusion between the C

Trade Dress and the Dunbar Racer and is likely to cause confusion between the tw

54. Defendants' foregoing unlawful conduct, including the adoption and

Cypress Hill Details and Trade Dress, in connection with Defendants' goods and c

activities, was in bad faith and in willful disregard of MJ's rights, with intent to trad

misappropriate the reputation and goodwill that MJ has built, and to divert custome

f MJ


C 1 13 04672 PKC RER D t 1 Fil d 08/19/13 P 14 f 20


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56. The aforementioned activities of Defendants constitute unfair com

including but not limited to the unlawful brand confusion between the MJ Cypr

Details and Trade Dress and the Infringing Product, in violation of the common

State of New York.

57. Defendants' foregoing unlawfulconduct, including the adoption a

the MJ Cypress Hill Details and Trade Dress, in connectionwith its goods and co

activities, was in bad faith and in willful disregard ofMJs rights, with intent t

and appropriate the reputation and goodwill that MJ has built, and to divert cu

revenues from MJ.

58. By reason of the foregoing, Plaintiff has suffered and will suffer substan

and Defendants have made and will make substantial profits in amounts to be determi

59. Plaintiff has no adequate remedy at law for defendants' continuing vi

rights as set forth above. Plaintiff seeks injunctive relief, and exemplary or punitiv

for defendants' intentional misconduct.

COUNT V

NEW YORK TRADE DRESS INFRINGEMENT

(N.Y. GEN. BUS. LAW 360-k)

60. Plaintiff realleges and incorporates herein by reference all of the

allegations in Paragraphs 1through 59.

61. Defendants, without the consent of MJ, are using or have used in

MJ C Hill D t il d T d D i ti ith th l


Case 1:13 cv 04672 PKC RER Document 1 Filed 08/19/13 Page 15 of 20


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confusion or mistake among consumers, or to deceiveconsumers, as to the sour

such goods, services, in violation of N.Y. Gen. Bus. Law 360-k.

62. Defendants' unlawful conduct, including as described above, was

faith and in willful disregard of MJs rights, with intent totrade on and appropr

reputation and goodwill that MJ has built, and to divertcustomers and revenues

MJ. Defendants committed the foregoing acts with the intent to cause confusio

mistake and to deceive

63. By reason of the foregoing, Plaintiff has suffered and will suffer sub

damages and Defendants have made and will make substantial profits in amounts to

determined at trial.


cause irreparable harm unless and until such time as they are enjoined by this Court

Plaintiff has no adequate remedy at law for defendants' continuing violation of its r

set forth above. Plaintiff seeks injunctive relief, and defendants' profits, exemplary

punitive damages for defendants' intentional misconduct.

COUNT VI

NEW YORK DECEPTIVE AND UNFAIR TRADE PRACTICES

(N.Y. GEN. BUS. LAW 349)

65. Plaintiff realleges and incorporates by reference paragraphs 1 to 64 a

forth herein.




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67. Defendants' sale and marketing of the Clarks Dunbar Racer was misl

material way in that the design of the shoe was copied from and virtually identical to

existing MJ's Cypress Hill Trade Dress. The virtually identical design was likely to

cause confusion between the two shoes and diluted the goodwill of MJ's Cypress Hi

Dress built by MJ through extensive marketing and advertising campaigns and word

promotion by satisfied consumers. Defendants copied the Cypress Hill Trade Dress

marketed and sold the Dunbar Racer with the intention of capitalizing on MJ's reput

goodwill as well as the confusion Clarks created between the two shoes.

68. As a result of Clarks intentional copying of MJ's Cypress Hill Trade

marketing and sales of the Dunbar Racer, MJ suffered injuries in the form of lost pro

reputation and goodwill for the future sales of its Cypress Hill Trade Dress and conf

created between the two shoes.

69. As a result of the intentional foregoing acts of defendants and Clarks

marketing and sale of the Dunbar Racer, Clarks has engaged in Deceptive and Unfa

Practices in violation of N.Y. Gen. Bus. Law 349.

70. By reason of the foregoing, Plaintiff has suffered and will suffer subs

damages and Defendants have made and will make substantial profits in amounts to

determined at trial.


cause irreparable harm unless and until such time as they are enjoined by this Court




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seeks injunctive relief, actual damages, and treble damages for defendants' intention

misconduct.

REQUEST FOR RELIEF

WHEREFORE, Plaintiffprays for the following relief as may be applica

various defendants, jointly and severally herein:

1. That defendants, their officers, agents, servants, employees and athose in active concert or participation with them or any of them, pursuant to 1

1116, N.Y. Gen. Bus. Law 360-l, N.Y. Gen. Bus. Law 360-k, N.Y. Gen. Bu

349, common law and the law of equity be permanently enjoined and restrained

(a) from using in any manner MJ Trade Dress and Designs, alocombination with any other words or designs, in manner li

cause confusion, deception, or mistake on or in in connect

advertising, offering for sale or sale of any goods not man

MJ, or not authorized by MJ to be sold in connections wit

respective said marks;

(b) From representing, suggesting in any fashion to any third paperforming any act which may give rise to the belief that

Defendants, or any of their goods, are authorized or sponsor

(c) From passing off inducing or enabling others to sell or pa




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(d) From otherwise competing unfairly with plaintiffs in any2.

That Defendants be required to deliver up to plaintiffs for destruction

goods in their possession or under their control that were or are being advertised,

offered for sale or sold in connection with the MJ Trade Dress and/or Designs, w

alone or inany combination with any words or designs.

3. That Defendants be required to deliver up to plaintiffs for destructionall catalogs, circulars and other printed material in their possession or under cont

displaying or promoting the goods which were or are being advertising, prom

for sale or sold in connection with theMJ Trade Dress and/or Designs, whethera

any combination with any words or designs.

4. That Defendants be required to supply Plaintiff with a complete lor individuals to whom they have offered for sale the goods which were or are b

advertising, promoted, offered for sale or sold in connection with the MJ Trade D

Designs, whether alone or inany combination with any words or designs, and be r

contact such entities, inform them that such items in Defendants' catalog or on Def

websites are no longer for sale and may no longer be offered for sale, and providin

the means of blacking out the offerings of infringing goods in such catalogs or o

advertising materials.

5. That Defendants be ordered pursuant to 15 U.S.C. 1116(a) to fiCourt and serve upon Plaintiff, within thirty (30) days of the entry of injunction




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6. That Defendants be required, pursuant to 15 U.S.C. 1117, to accplaintiffs for any and all profits derived by them, individually and/or jointly

damages sustained by Plaintiff by reason of Defendants actions complained of

including an award of treble damages as provided for statute.

7. That Plaintiff be awarded actual damages to be proven at trial.8. That Plaintiff be awarded as damages Defendants profits from its sa

Infringing Product

9. That Plaintiff be awarded treble its actual damages as a result of Cknowing and willful misconduct;

10. That Plaintiff be awarded punitive damages.11. That Plaintiff be awarded both pre-judgment and post-judgment

each andevery damage award.

12. That pursuant to 15 U.S.C. 1117 and N.Y. Gen. Bus. Law 349,recovers from Defendants, its reasonable attorneys fees, costs and disbursemen

civil action.

13. That Plaintiff receive such other and further relief as the Court maand proper.

DEMAND FOR JURY TRIAL

Plaintiff requests trial by jury of all issues so triable.

g



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Dated: New York, NY Gary L. Cutler, P.C.August 19, 2013

By: _____/s/_________

Gary L. Cutler160 Broadway, Suite 600

New York, NY 10038Tel.: (212) 227-4358

Fax: (973) [email protected]

Attorney for Marc Joseph NY,

The Lindner Law Firm LLC

Daniel A. Lindner, Esq.2077 E. 4

thStreet, 2

ndFloor

Cleveland, OH 44115Tel.: (216) 737-8888

Attorney for March Joseph NY, Inc.

(Not Yet Admitted Pro Hac Vice)

Case 1:13-cv-04672-PKC-RER Document 1-1 Filed 08/19/13 Page 1 of 2


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JS 44 (Rev. 1/2013) CIVIL COVER SHEETTh e JS 44 c ivil cover shee t an d th e information contained herein neither replace nor supplement the filing and service of pleadings or o ther papers aprovided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required fo r th e us e ofpurpose of initiating the c ivil docket sheet. (SEE lNSTRUCTIONS ONNEXT PAGE OF THIS FORM)

DEFENDANTS. (a) PLAINTIFFSMarc Joseph NY, Inc. C. & J. Clark America, Inc., C. & J. Clark, LtC. & J. Clark Manufacturing, Inc. and John (b) County of Residence of First Listed Plaintiff Kings County, NY

(EXCEPT lN US. PLAlNTIFF CASES)

(C) Attorneys (Firm Name, Address, and Telephone Number)Gary L. Cutler, P.C.160 Broadway, Suite 600New York, NY 10038 - (212) 227-4358

County of Residence of First Li sted Defendant M(IN US. PLAINTIFF CASES O

NOTE: IN LAND CONDEMNATION CASES, USE THTHE TRACT OF LAND INVOLVED .Attorneys (I fKnown)Stephen P. McNamara, Esq.St. Onge Steward Johnston & Reens LLC986 Bedford St, Stamford. CT 06905 - (203

II. BASIS OF JURISDICTION (P/acean "X"inOneBoxOnly) ill. CITIZENSHIP OF PRINCIPAL PARTIES(For Diversity Cases Only)0 1 U.S. Government Federal Question PTF DE F

Plaintiff (U.S. Government Not a Party) Citizen of This State 0 1 0 I Incorporated or Prof Business In T

0 2 U.S. Government 04 Diversity Citizen of Another State 0 2 0 2 incorporated and PDefendant (Indicate Citizenship ofParties in Item l/ l) of Business In A0 3 0 3 Foreign Nation

IV. NATURE OF SUIT (Place an "X" in One Box Only)I CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY0 I I 0 Insurance PERSONAL INJURY PERSONAL INJURY 0 625 Drug Related Seizure 0 422 Appeal 28 USC 158 0 120 Marine 0 3 I 0 Airplane 0 365 Personal Injury - of Property 2 1USC881 0 423 Withdrawal0 !30Miller Act 0 3 I 5 Airplane Product Product Liability 0 690 Other 28 USC 1570 l40 Negotiable Instrument Liability 0 367 Health Care/0 150 Recovery of Overpayment 0 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS& Enforcement of Judgment Slander Personal Injury 0 820 Copyrights0 I 5 Medicare Act 0 330 Federal Employers' Product Liability 0 830 Patent0 15 2 Recovery of Defaulted Liabi lity 0 368 Asbestos Personal ~ 840 TrademarkStudent Loans 0 340 Marine Injury Product(Excludes Veterans) 0 345 Marine Product Liability LABOR so ......TS.Er 11.1TY0 153 Recovery of Overpayment Liability PERSONAL PROPERTY 0 7 I0 Fair Labor Standards 0 861 illA (1395ff)

of Veteran's Benefits 0 350 Motor Vehicle 0 370 Other Fraud Act 0 862 Black Lung (923) 0 160 Stockholders' Suits 0 355 Motor Vehicle 0 371 Truth in Lending 0 720 Labor/Management 0 863 DIWC/DTWW (405(g))0 I 90 Other Contract Product Liability 0 380 Other Personal Relations 0 864 SSID Title XVI0 195 Contract Product Liability 0 360 Other Personal Property Damage 0 740 Railway Labor Act 0 865 RSI (405(g))0 196 Franchise Injury 0 3 85 Prope rty Damage 0 75 I Family and Medical0 362 Personal Injury - Product Liability Leave Act Medical Maloractice 0 790 Other Labor LitigationI REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS 0 791 Employee Retirement FEDERAL TAX SUITS0 210 Land Condemnation 0 440 Other Civi l Ri ghts Habeas Corpus: Income Security Act 0 870 Taxes (U.S. Plaintiff0 220 Foreclosure 0 441 Voting 0 463 Alien Detainee or Defendant)0 230 Rent Lease & Ejectment 0 442 Employment 0 5 IO Motions to Vacate 0 871 IRS- Third Party0 240 Torts to Land 0 443 Housing/ Sentence 26 use 76090 245 Tort Product Liability Accommodations 0 530 General0 290 All Other Real Property 0 445 Amer. w/Disabilities - 0 535 Death Penalty IMMIGRATIONEmployment Other: 0 462 Naturalization Application0 446 Amer. w/Disabilities - 0 540 Mandamus & Other 0 465 Other ImmigrationOther 0 550 Civil Rights Actions

0 448 Education 0 555 Prison Condition0 560 Civil Detainee -Conditions ofConfinement

V_ ORIGIN (Place an ' 'X' ' in One Box Only)JI( I Original 0 2 Removed fromProceeding State Court 0 3 Remanded fromAppe llate Court O 4 Reinstated orReopened 0 5 Transferred fromAnother District(specify)

0 6 MultidistrLi tigation



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EDNY Revision 1/2013CERTIFICATION OF ARBITRATION ELIGIBILITYLocal Arbitration Rule 83 .10 provides that with certain exceptions, actions seeking money damages only in an amount not inexclusive of interest and costs, are eligible for compulsory arbitration. The amount of damages is presumed to be below the thcertification to the contrary is filed.I, , counsel for , do hereby certify that the above captineligible for compulsory arbitration for the following reason(s):

D monetary damages sought are in excess of$150,000, exclusive of interest and costs,D the complaint seeks injunctive relief,D the matter is otherwise ineligible for the following reason

DISCLOSURE STATEMENT - FEDERAL RULES CIVIL PROCEDURE 7Identify any parent corporation and any publicly held corporation that owns 10% or more or its

None.

RELATED CASE STATEMENT (Section VIII on the Front of this Form)Please list all cases that are arguably related pursuant to Division of Business Rule 50.3.1 in Section VIII on the front of this provides that "A civil case is "related" to another civil case for purposes of this guideline when, because of the similarity of fbecause the cases arise from the same transactions or events, a substantial saving of udicial resources is likely to result fromsame judge and magistrate judge." Rule 50.3 .1 (b) provides that" A civil case shall not be deemed "related" to another civil ccase: (A) involves identical legal issues, or (B) involves the same parties." Rule 50.3.1 (c) further provides that "Presumptiveof a judge to determine otherwise pursuant to paragraph (d), civil cases shall not be deemed to be "related" unless both casescourt."

NY-E DIVISION OF BUSINESS RULE SO.l(d)(2)1.) Is the civil action being filed in the Eastern District removed from a New York State Court located in Na

C o u n t y : _ N _ o _ - - - - - - - - - ~2.) If you answered "no" above:

a) Did the events or omissions giving rise to the claim or claims, or a substantial part thereof, occur in NCounty?_N_o_._ _ ____ ___b) Did the events of omissions giving rise to the claim or claims, or a substantial part thereof, occur in thDistrict? Yes.~ - - - - - - - - - -

I f your answer to question 2 (b) is "No," does the defendant (or a majority of the defendants, ifthere is more thanSuffolk County, or, in an interpleader action, does the claimant (or a majority of the claimants, if there is more thaor Suffolk County?___ _____ _ _(Note: A corporation shall be considered a resident of the County in which it has the most significa

BA R ADMISSIONI am currently admitted in the Eastern District of New York and currently a member in good standing of the bar olgj Yes D No



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Case 1:13-cv-04672-PKC-RER Document 1-3 Filed 08/19/13 Page 1 of 13 PageID #: 24


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marc joseph ny v. clark's - complaint

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