Mot Dismiss Skee Ball V Full Circle United

Case 1:11-cv-06277-NGG-JO Document 5 Filed 11/09/11 Page 1 of 21 PageID #: 101
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SEDGWICK LLP Robert M. Harkins, Jr. (State Bar No. 179525) Jennifer Ming (State Bar No. 260367) 333 Bush Street, 30th Floor San Francisco, CA 94104-2834 Telephone: 415.781.7900 Facsimile: 415.781.2635 Attorneys for Defendant FULL CIRCLE UNITED, LLC
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SKEE BALL, INC., a Pennsylvania corporation, Plaintiff, v. FULL CIRCLE UNITED, LLC, a New York company, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. 3:11-cv-4930-EDL FULL CIRCLE UNITED, LLCS MOTION TO DISMISS OR TRANSFER Date: Time: Crtrm: Judge: December 20, 2011 9:00 a.m. E, 15th Floor Mag. Elizabeth D. Laporte
FULL CIRCLE UNITED, LLCS MOTION TO DISMISS OR TRANSFER
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TABLE OF CONTENTS I. II. III. PAGE INTRODUCTION ...............................................................................................................2 FACTUAL AND PROCEDURAL BACKGROUND.........................................................3 THE COURT SHOULD DISMISS THE COMPLAINT IMPROPER VENUE AND LACK OF PERSONAL JURISDICTION ...........................................................................5 The Complaint Fails to Set Forth a Legitimate Basis for Bringing Suit in This District......................................................................................................................5 The Allegations of the Complaint Are Intertwined with a Contract that Sets Venue in New York, and the Case Should Be Dismissed in Favor of the Lawsuit Now Pending in New York. .....................................................................................7 1. The Court Should Dismiss The Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(3) ..............................................................................7 The Parties Agreed that Related Disputes Must Be Litigated in New York .....................................................................................................7
B.
C.
The Court Should Find that It Lacks Personal Jurisdiction Over Full Circle. .........8 1. Full Circle Does Not Meet the Legal Test for Personal Jurisdiction in the Northern District of California.....................................................................8 The Facts Alleged As a Basis for the Complaint Do Not Meet the Personal Jurisdiction Test. .....................................................................9
D. IV.
The Court Should Find that This Is An Improper Venue for the Case. .................10
ALTERNATIVELY, THE CASE SHOULD BE TRANSFERRED TO THE EASTERN DISTRICT OF NEW YORK PURSUANT TO 28 U.S.C. 1404(a). ..11 The Court Has Discretionary Authority To Transfer This Case To The Eastern District of New York .............................................................................................11 The Interests Of Justice And Convenience Of The Parties And Witnesses Compel A Transfer Of This Action To The Eastern District of New York .......................................................................................................................12 Convenience and the Interests of Justice Compel a Transfer to the Eastern District of New York ................................................................................12 Convenience of the Parties.........................................................................13 Convenience of the Witnesses ...................................................................13 The Interests of Justice Favor the Transfer ................................................14
B.
C.
CONCLUSION ..................................................................................................................17
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TABLE OF AUTHORITIES PAGE
Cases Adobe Sys. Inc. v. Childers 2011 U.S. Dist. LEXIS 14534, at *8 (N.D. Cal. Feb. 14, 2011) .............................................. 10 Am. Tel. & Tel. Co. v. Compagnie Bruxelles Lambert 94 F.3d 586 (9th Cir. 1996) ........................................................................................................ 8 Argueta v. Banco Mexicano, S.A. 87 F.3d 320 (9th Cir. 1996) ........................................................................................................ 7 Commodity Futures Trading Commission v. Savage 611 F.2d 270 (9th Cir. 1979) .................................................................................................... 12 Decker Coal Co. v. Commonwealth Edison Co. 805 F.2d 834 (9th Cir. 1986) .............................................................................................. 11, 12 Doe 1 v. AOL LLC 552 F.3d 1077 (9th Cir. 2009) .................................................................................................... 7 Facebook, Inc. v. Teachbook.com, LLC 2011 U.S. Dist. LEXIS 48590 (N.D. Cal. May 2, 2011) ............................................................ 9 Garvey v. Piper Rudnick LLP Long Term Disability Ins. Plan 2008 U.S. Dist. LEXIS 120458, *7-*8 (D. Or. Jan. 3, 2008) ................................................... 11 Gulf Oil Corp. v. Gilbert 330 U.S. 501, 67 S. Ct. 839 (1947) ........................................................................................... 11 Hatch v. Reliance Ins. Co. 758 F.2d 409 (9th Cir. 1985) .................................................................................................... 12 Helicopteros Nacionales de Colombia, S.A. v. Hall 466 U.S. 408, 104 S. Ct. 1868, 80 L. Ed. 2d 404 (1984) ............................................................ 8 In re Volkswagen of America, Inc. 506 F3d 376 (5th Cir. 2007) ..................................................................................................... 14 Inherent.com v. Martindale-Hubbell 420 F.Supp.2d 1093 (N.D.Cal. 2006) ....................................................................................... 12 Int'l. Shoe Co. v. Wash. 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945) ....................................................................... 8 Jones v. GNC Franchising 211 F.3d 495 (9th Cir. 2000) ........................................................................................ 11, 12, 14 Jumara v. State Farm Ins. Co. 55 F.3d 873 (3d Cir. 1995) ....................................................................................................... 11 Kukje Hwajae Ins. Co. v. M/V Hyundai Liberty 408 F.3d 1250 (9th Cir. 2005) .................................................................................................... 7 Love v. Associated Newspapers, Ltd. 611 F.3d 601 (9th Cir. 2010) ...................................................................................................... 9 Manetti-Farrow, Inc. v. Gucci America, Inc. 858 F.2d 509 (9th Cir. 1988) ...................................................................................................... 7 Morales v. Navieras de Puerto Rico 713 F. Supp. 711 (D.N.Y. 1989) ......................................................................................... 13, 14 iii
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New Image, Inc. v. Travelers Indem. Co. 536 F.Supp. 478 (E.D.Pa. 1981) ............................................................................................... 15 OHopp v. Contifinancial Corp 88 F.Supp.2d 31 (E.D.N.Y. 2000) ............................................................................................ 16 Pacific Car and Foundry Co. v. Pence 403 F.2d 949 (9th Cir. 1968) .................................................................................................... 15 Reiffin v. Microsoft Corp. 104 F.Supp.2d 48 (D.D.C. 2000) .............................................................................................. 16 Schwarzenegger v. Fred Martin Motor Co. 374 F.3d 797 (9th Cir. 2004) .................................................................................................. 8, 9 Securities Investor Protection Corp. v. Vigman 764 F.2d 1309 (9th Cir. 1985) .................................................................................................. 15 Silver Valley Partners, LLC v. De Motte 2006 U.S. Dist. LEXIS 67745, *4-*5 (W.D. Wash. Sept. 21, 2006) ....................................... 11 Ventress v. Japan Airlines 486 F.2d 1111 (9th Cir. 2007) .................................................................................................. 12 Williams v. Granite Constr. Co. 2009 U.S. Dist. Lexis 10756 at * 1-2 (N.D.Cal. 2009)............................................................. 13 Zimpelman v. Progressive Northern Ins. Co. 2010 U.S. Dist. LEXIS 5582, *7 (N.D. Cal. Jan. 8, 2010) ....................................................... 15 Statutes 28 U.S.C. 1404 ......................................................................................................... 10, 11, 12, 14 28 U.S.C. 1406 ............................................................................................................................. 5 Rules Cal. Code Civ. Proc. 410.10 ........................................................................................................ 8
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TO PLAINTIFF AND ITS ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on December 20, 2011 at 9:00 a.m., or as soon thereafter as the matter may be heard, in the United States District Court for the Northern District of California, Defendant Full Circle United, LLC shall and hereby does move the Court for an order dismissing this complaint, or, in the alternative, transferring the action to the United States District Court for the Eastern District of New York, where venue is proper. This motion is based on this notice of motion and supporting memorandum of points and authorities; the supporting declarations of Eric Pavony and Robert Harkins including exhibits thereto; and such other written or oral argument as may be presented at or before the time this motion is taken under submission by the Court. DATED: November 9, 2011 SEDGWICK LLP By:/s/ Robert Harkins Robert Harkins Attorneys for Defendant FULL CIRCLE UNITED, LLC
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MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION A cursory review of the caption of the Complaint in this case immediately reveals that this case does not belong in the Northern District of California. Skee Ball, Inc. (SBI), a Pennsylvania corporation, is suing Full Circle United, LLC (Full Circle) a New York limited liability company. There are no California plaintiffs or defendants. The choice of venue here constitutes nothing more than forum shopping used as a bullying tactic. Full Circle is a small company run by two young entrepreneurs in Brooklyn, New York. The company has one location in Brooklyn and no locations anywhere else. These facts were known to SBI when it filed the complaint, as Full Circle and SBI have communicated with each other multiple times over the years, beginning in 2005 when the owners of Full Circle met with SBIs CEO and discussed their new Brewskee-Ball league idea, and SBIs CEO told them SBI had no objection. Now, evidently having changed its mind about its support of Full Circles league, SBI apparently hoped to intimidate the smaller company by filing suit all the way across the country, increasing cost to Full Circle and making it more difficult and expensive for Full Circle to defend itself. Full Circle is not subject to personal jurisdiction in this district, and venue certainly is not proper. The complaint also violates an agreement between SBI and Full Circle. The companies entered a written agreement to explore working together, and by the terms of the agreement, any disputes related to the agreement had to be brought in court in New York. Full Circle believes that SBI is in material breach of that agreement, and has filed an action in the Eastern District of New York, as it must. The facts related to that case relate to this action as well. Thus, this case should be dismissed for lack of personal jurisdiction and for improper venue, or at least transferred to the Eastern District of New York, where the defendant resides, the location to which SBI's registration for "SKEE BALL" issued (the trademark SBI asserts in this case), the location to which Full Circles BREWSKEE-BALL trademark issued (the trademark SBI seeks to cancel), the headquarters of the skee-ball league about which SBI now complains, and the location the parties agreed to litigate disputes related to their agreement. 2
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II.
FACTUAL AND PROCEDURAL BACKGROUND Skee-ball is a type of arcade game with a flat surface bounded on two sides, leading to a
ramp. Beyond the ramp are holes associated with point values. A player rolls a ball toward the ramp in an attempt to cause the ball to become airborne and land in one of the holes. According to SBI, the skee-ball game has been in existence for more than 100 years. (See Exhibit 1 to the Declaration of Robert Harkins [hereinafter Harkins Decl.] [statement of SBI CEO Joseph Sladek from SBIs website].) Different companies manufactured skee-ball machines over the years and continue to manufacture them, including SBI, the plaintiff in this action. (See, e.g., Harkins Decl., Exh. 2.) Traditionally, skee-ball has been considered a game played by children, particularly because skee-ball machines in arcades reward the user with paper tickets that arcades allow players to trade for toys appealing to children. (See Harkins Decl., Exh. 3.) In 2005, two young entrepreneurs, Eric Pavony and Evan Tobias, had an idea. They thought they could introduce skee-ball it into an adult setting, specifically bars, and making the game more fun for adults by employing a league play format. (See Declaration of Eric Pavony [hereinafter Pavony Decl.], 2.) They took their idea to SBI and had a meeting with Joseph Sladek, SBIs CEO, at his office in Pennsylvania. (Pavony Decl., 3.) During the meeting, Messrs. Pavony and Tobias told Mr. Sladek their idea. (Id.) He told them that SBI was a manufacturer and wasnt in the business of skee-ball leagues, but told them SBI had no problem with them pursuing their Brewskee-Ball league. (Id.) Based on SBIs representations, Full Circle pursued its Brewskee-Ball league and obtained a federal trademark for BREWSKEE-BALL to avoid confusion with imitators forming their own skee-ball leagues. (Id., 4; see also Complaint, Exh. B.) Full Circle has never manufactured skee-ball machines and only used machines it manufactured by SBI. (Pavony Decl., 4.) The companies were not competitors. Due in large measure on Full Circles efforts, skee-ball became more popular as a sport and source of entertainment for adults. SBI contacted Full Circle to discuss benefits of the two companies working together. (Pavony Decl., 5.) The parties entered a confidentiality agreement so that Full Circle could be protected when it divulged its plans to SBI to see if they could work 3
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together. The written agreement was executed by both sides and was effective as of March 9, 2010. (See Pavony Decl., 6 & Exh. 1.) The agreement has a venue provision that states that relevant disputes between the companies must be litigated in New York. (See id.) Per the terms of that agreement, Full Circle provided confidential information, only to then be hit with a cease and desist letter from counsel for SBI dated April 16, 2010. (See Exhibit G to Complaint.) The letter itself references the confidential discussions. (Id.) Subsequently, however, a representative told Full Circle it could disregard the letter. However, a year later, counsel for SBI sent a second cease and desist letter dated July 6, 2011. (See Exhibit H to Complaint.) Counsel for Full Circle responded to the letter. (See Harkins Decl., Exh. 4.) Then, on October 5, 2011, SBI filed suit against Full Circle, not in New York, where Full Circle is located, nor in Pennsylvania, where SBI is located, but in San Francisco, all the way across the country from both companies. (See Complaint, p. 1.) It became clear to Full Circle that SBI, upon obtaining Full Circle confidential information, decided to breach the agreement, threaten Full Circle, and then obtain the benefit of Full Circles plans exclusively for itself. This was all the more galling because SBI based its suit on the idea that SBI owned the name skeeball, which for many decades has been the generic name for the skee-ball game. In arcades, one finds videogames, pinball games, skee-ball games, and air hockey games. To the extent SBI previously obtained a trademark for the term skee-ball in the 1920s, the name long ago became generic and unenforceable. The Patent and Trademark Office itself recognized this fact when it required Full Circle to describe its BREWSKEE-BALL trademark as related to the category of games known as skee-ball games. (See Harkins Decl., Exh. 5.) The instant suit, asserting an invalid trademark in a forum selected across the country from both parties and seeking to cancel Full Circles legitimate trademark, is nothing more than an attempt by a bigger company to employ improper tactics, including forum shopping, to intimidate a small company. On November 8, 2011, Full Circle filed a lawsuit for breach of contract as well related to SBIs improper conduct, as well as to obtain an order cancelling the trademark registration for "SKEE-BALL," a declaration that Full Circle's actions including any use of the term "skee-ball" to describe the game or its league and its BREWSKEE-BALL trademark do not infringe any 4
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SBI trademark, breach of the covenant of good faith and fair dealing, unfair business practices, and antitrust violations; the complaint was filed in New York as was required by the terms of the agreement. (See Harkins Decl., Exh. 6.) Full Circle now moves for this Court to dismiss the instant suit in favor of that one, which is located where the parties agreed and where such a dispute belongs. In the alternative, Full Circle asks the Court to transfer the action to the Eastern District of New York to be consolidated with the other lawsuit. III. THE COURT SHOULD DISMISS THE COMPLAINT IMPROPER VENUE AND LACK OF PERSONAL JURISDICTION Rule 12(b) of the Federal Rules of Civil Procedure states that a party may assert the following defenses by motion: (2) lack of personal jurisdiction; (3) improper venue. The Court is further authorized to dismiss an action by statute: The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought. 28 U.S.C. 1406(a). In this case, while it is true the parties have a dispute that relates to their trademarks, that dispute is bound up in a dispute over breach of contract they have with each other than includes a New York forum selection clause. In such cases, dismissal is proper under Rule 12(b)(3). Additionally, dismissal is proper under both Rule 12(b)(2) for lack of personal jurisdiction and Rule 12(b)(3) for improper venue related to Full Circles lack of activities in this district. A. The Complaint Fails to Set Forth a Legitimate Basis for Bringing Suit in This District. There is no good reason for this lawsuit to have been brought in the Northern District of
23 California. As apparent from the fact of the Complaint, no parties are from this district or even 24 from this state. The dispute is brought by SBI, a Pennsylvania company that asserts trademark 25 infringement and related claims. But those claims would be proper only in the state where the 26 defendant resides and is performing the acts for which trademark infringement is allegedNew 27 Yorkor the jurisdiction where the company might be injured by such alleged infringement 28
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SBIs state of Pennsylvania. Additionally, the primary claim brought in this action is to cancel Full Circles registered BREWSKEE-BALL trademark, and the location of the office from which that trademark was registered is in Brooklyn, New York. (See Complaint, 17 & Exh. B.) The owners of Full Circle, as alleged in the complaint, both also reside in Brooklyn, New York, and not this district. (Pavony Decl., 7.) The complaint alleges as a basis for venue that Full Circles skee-ball league lists several cities as included, one of them being San Francisco. (See Complaint, 20-21 & Exh. C-F.) However, it is also clear from the exhibits that Full Circle is based in Brooklyn, not San Francisco. (See id.) The fact that other bars not owned by Full Circle may participate in the league does not mean those locations are proper for the suit. Moreover, there is no more reason for this suit being in San Francisco than any other city listed in the league, such as Austin, Texas or Wilmington, North Carolina. Rather, what is clear from the website is that if others want to join the Brewskee-Ball league, they need to contact Full Circle in Brooklyn, New York. (See id.) There is no evidence that Full Circle has any offices or locations of its own in San Francisco. In reality, Full Circle has no offices or employees in California at all. Full Circles only office is in Brooklyn, New York, and this is also the only location of any of its employees. (Pavony Decl., 7.) Beyond this, Full Circle does not derive any licensing revenue from California for Brewskee-Ball. (Id.) Furthermore, the complaint does not allege that the plaintiff has any offices or employees in this district or even this state either, or has any reason why it is suffering particular harm in this district or state. On the contrary, SBIs website lists only one location, in Pennsylvania. (Harkins Decl., Exh. 7.) Instead, the filing of this lawsuit appears to be nothing more than a calculated exercise in forum shopping. The case should be dismissed from this venue. /// /// /// /// /// 6
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B.
The Allegations of the Complaint Are Intertwined with a Contract that Sets Venue in New York, and the Case Should Be Dismissed in Favor of the Lawsuit Now Pending in New York. 1. The Court Should Dismiss The Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(3)
A motion to dismiss for improper venue based on a forum selection clause is properly based on Rule 12(b)(3). Kukje Hwajae Ins. Co. v. M/V Hyundai Liberty, 408 F.3d 1250, 1254 (9th Cir. 2005); Argueta v. Banco Mexicano, S.A., 87 F.3d 320, 324 (9th Cir. 1996). To assess the motion, the pleadings need not be accepted as true and the court can consider facts outside of the pleadings. Id. Federal common law applies to forum clauses in contracts. See Doe 1 v. AOL LLC, 552 F.3d 1077, 1081 (9th Cir. 2009) ("We apply federal law to the interpretation of the forum selection clause."); Manetti-Farrow, Inc. v. Gucci America, Inc., 858 F.2d 509, 513 (9th Cir. 1988) ("because enforcement of a forum clause necessarily entails interpretation of the clause before it can be enforced, federal law also applies to interpretation of forum selection clauses"). 2. The Parties Agreed that Related Disputes Must Be Litigated in New York
Here, SBIs Complaint alleges trademark infringement and unfair competition. What it 18 fails to note is that prior to filing this complaint or sending a cease and desist letter, and with a 19 long history of full knowledge and consent to Full Circles activities, SBI entered a written 20 agreement with Full Circle to explore the possibility of joint development for skee-ball-related 21 commercial activities. (Pavony Decl., 6 & Exh. 1.) The agreement has a venue provision that 22 states that relevant disputes between the companies must be litigated in New York. (Id.) The 23 agreement was signed by Full Circle in Brooklyn, New York, and by SBI in Pennsylvania, not in 24 California. (Id.) After Full Circle began to provide SBI with its confidential information under 25 the supposed protection of the agreement, SBI improperly used that information. SBI has 26 materially breached its agreement with Full Circle, and, pursuant to its terms, Full Circle has 27 filed an action in the Eastern District of New York. The same facts that would be at issue in this 28
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case are at issue in that case, including SBIs waiver of any claim of trademark infringement against Full Circle and its actions collaterally stopping it from pursuing claims against Full Circle, among others. As a result, although in its attempt to forum shop SBI carefully omitted reference to the agreement, the agreement and related lawsuit require this suit to be dismissed in favor of the one now pending in New York or transferred there. C. The Court Should Find that It Lacks Personal Jurisdiction Over Full Circle. 1. Full Circle Does Not Meet the Legal Test for Personal Jurisdiction in the Northern District of California.
"For a court to exercise personal jurisdiction over a nonresident defendant, that defendant must have at least 'minimum contacts' with the relevant forum such that the exercise of jurisdiction 'does not offend traditional notions of fair play and substantial justice.'" Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 801 (9th Cir. 2004) (quoting Int'l. Shoe Co. v. Wash., 326 U.S. 310, 316, 66 S. Ct. 154, 90 L. Ed. 95 (1945)). California's long-arm statute authorizes the exercise of jurisdiction on any basis not inconsistent with the state or federal Constitutions. Cal. Code Civ. Proc. 410.10. As such, the analysis of personal jurisdiction collapses into a single inquiry under federal due process. Here, Plaintiff SBI has the burden of establishing the existence of jurisdiction. "In determining whether [plaintiff] has met this burden, uncontroverted allegations in [the] complaint must be taken as true, and 'conflicts between the facts . . . must be resolved in [plaintiff's] favor for purposes of deciding whether a prima facie case for personal jurisdiction exists.'" Am. Tel. & Tel. Co. v. Compagnie Bruxelles Lambert, 94 F.3d 586, 588 (9th Cir. 1996) (citations omitted). Although personal jurisdiction may be either general or specific, here the complaint does not include any allegations of general jurisdiction. On the contrary, the complaint notes that Full Circle has one office, in Brooklyn, New York. Instead, the complaint relies upon purported specific jurisdiction, which requires that the suit arises out of or is related to Full Circles contacts with the California. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n.8, 104 S. Ct. 1868, 80 L. Ed. 2d 404 (1984).
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The Ninth Circuit applies a three-element test for analyzing claims of specific jurisdiction: (1) The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protection of its laws; (2) The claim must be one which arises out of or relates to the defendant's forum-related activities; and (3) The exercise of jurisdiction must comport with fair play and substantial justice, i.e., it must be reasonable. Schwarzenegger, 374 F.3d at 802. Under this test, Full Circle is not subject to personal jurisdiction in this district.
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2.
The Facts Alleged As a Basis for the Complaint Do Not Meet the Personal Jurisdiction Test.
The Complaint does not establish personal jurisdiction over Full Circle. In the first instance, there is no purposeful availment as required in the first prong of the test under Schwarzenegger. The acts complained of originate in New York and are not particularly directed toward the plaintiff in California. In such a case, "[b]ecause the defendant did not purposefully direct any of the relevant intentional acts at California, it was not subject to the jurisdiction of a court in that state." Facebook, Inc. v. Teachbook.com, LLC, 2011 U.S. Dist. LEXIS 48590 (N.D. Cal. May 2, 2011) (Whyte, J.) (quoting Love v. Associated Newspapers, Ltd., 611 F.3d 601, 609 (9th Cir. 2010)). In Teachbook.com, the plaintiff was a Company headquartered in this district, and yet the court held that a website alleged to have a confusingly similar name was held not to bring the defendant within the personal jurisdiction of the court because the activities were not sufficiently aimed at the forum. See id. Here, the facts similarly show that Full Circle is not subject to personal jurisdiction in this district. Full Circle does not make or sell skee-ball machines. (Pavony Decl., 4.) It has no ownership interest in the bar that is part of its league in San Francisco and it does not receive any licensing fees from use of its trademark in California. (Id., 7.) Its website is passiveit does not sell products via the Internet. (Id., 7.) Thus, it is not purposefully availing itself of the 9
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jurisdiction. Furthermore, the actions alleged in the complaint, the main one being obtaining registration for the BREWSKEE-BALL mark in Brooklyn, running a league in Brooklyn, and putting up a website in Brooklyn, do not relate to California-related activities. Thus, the Complaint does not establish personal jurisdiction under the first two elements. Additionally, were any tentative connection between Full Circle and California found sufficient to meet the first two elements, exercise of such jurisdiction would not meet the last element because it would not comport with fair play and substantial justice. Full Circle is a small business with only one location in Brooklyn, New York. (Pavony Decl., 7.) It does not have substantial resources to defend itself throughout a federal lawsuit across the country from where it is located, and it would be a heavy financial burden for the company to have its witness travel to California for trial. (Id., 8.) Moreover, there is no reason for it to do so, as the plaintiff is not located here either, but instead is only a car ride away in Eastern Pennsylvania. Substantial justice would be met only by having the case located near the parties. Therefore, the Court should find that there is no personal jurisdiction over Full Circle and dismiss the Complaint. D. The Court Should Find that This Is An Improper Venue for the Case. Were SBI to meet its jurisdictional burden, the case would nonetheless be subject to dismiss for improper venue under Rule 12(b)(3) unless SBI could prove that Full Circle "entered" this district in a way that would create confusion for plaintiff's customers. See Adobe Sys. Inc. v. Childers, 2011 U.S. Dist. LEXIS 14534, at *8 (N.D. Cal. Feb. 14, 2011) (Fogel, J.). As discussed above, Full Circle does not have any locations or employees in California. Its use of its trademark is in Brooklyn, New York, where the Full Circle bar is located. Its activities were directed to New York, and, to the extent SBI now believes the use of the mark BREWSKEE-BALL infringes, that stems from New York and could possibly be seen as being related to Pennsylvania, where SBI is. Nothing gives California a special interest in this dispute, and Full Circles actions are not particularly directed to his state.
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IV. A.
ALTERNATIVELY, THE CASE SHOULD BE TRANSFERRED TO THE EASTERN DISTRICT OF NEW YORK PURSUANT TO 28 U.S.C. 1404(a). The Court Has Discretionary Authority To Transfer This Case To The Eastern District of New York If it serves the convenience of the parties and witnesses, and if it is consistent with the
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interests of justice, a court may, in its discretion, transfer an action to any district where the case could have originally been filed. 28 U.S.C. 1404(a). Section 1404(a) provides: For the convenience of the parties and witnesses, in the interests of justice, a district court may transfer any civil action to any other district or division where it might have been brought. In ruling on a motion to transfer, a district court must consider each of the factors enumerated in section 1404(a): convenience of the parties and witnesses; the relative ease of access to sources of proof; the availability of process to compel the presence of unwilling witnesses; the practical problems indicating that the case can be tried more expeditiously and inexpensively elsewhere; and the interests of justice. Garvey v. Piper Rudnick LLP Long Term Disability Ins. Plan, 2008 U.S. Dist. LEXIS 120458, *7-*8 (D. Or. Jan. 3, 2008), citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-509, 67 S. Ct. 839 (1947). In deciding whether to transfer on grounds of convenience and in the interest of justice, the Court considers eight factors: (1) the location where the relevant agreements were negotiated and executed; (2) the state that is most familiar with the governing law; (3) the plaintiff's choice of forum; (4) the respective parties' contacts with the forum (5) the contacts relating to the plaintiff's cause of action in the chosen forum; (6) the differences in the cost of litigation in the two forums; (7) the availability of compulsory process to compel attendance of unwilling non-party witnesses; and (8) the ease of access to sources of proof. Silver Valley Partners, LLC v. De Motte, 2006 U.S. Dist. LEXIS 67745, *4-*5 (W.D. Wash. Sept. 21, 2006) (citing Jones v. GNC Franchising, Inc., 211 F.3d 495, 498-99 (9th Cir. 2000)). The Ninth Circle also considers the presence of a forum selection clause. See Jones, at 499. Courts have also considered the relative docket congestion of the transferor and transferee courts. See, e.g., Jumara v. State Farm Ins. Co., 55 F.3d 873, 883 (3d Cir. 1995). For the reasons discussed below, the Court should exercise its discretion and transfer this case to the Eastern District of New York, pursuant to 28 U.S.C. 1404(a). 11
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B.
The Interests Of Justice And Convenience Of The Parties And Witnesses Compel A Transfer Of This Action To The Eastern District of New York A party moving to transfer venue must make a preliminary showing that jurisdiction and
proper venue would exist in the district to which a transfer is requested. Commodity Futures Trading Commission v. Savage, 611 F.2d 270, 278-279 (9th Cir. 1979). Under 28 U.S.C. 1404(a), an action may be transferred only to a district in which it could have been brought. The transferor court must first determine whether the action might have been brought in the transferee court, and then the court must make an individualized, case-by-case consideration of convenience and fairness. Inherent.com v. Martindale-Hubbell, 420 F.Supp.2d 1093, 1098 (N.D.Cal. 2006), citing Hatch v. Reliance Ins. Co., 758 F.2d 409, 414 (9th Cir. 1985); Jones v. GNC Franchising, 211 F.3d 495, 498 (9th Cir. 2000)). Here, the Eastern District of New York is an appropriate venue for a dispute between Full Circle, a New York company, and SBI, a Pennsylvania company. This contrasts distinctly with the Northern District of California, a venue where neither party resides. SBI alleges in its complaint that it resides in Pennsylvania and that Full Circle resides in Brooklyn, New York. (Complaint, p. 1 & 5.) Thus, the first and second element of the section 1132(e)(2) analysis permits transfer to the Eastern District of New York. C. Convenience and the Interests of Justice Compel a Transfer to the Eastern District of New York 28 U.S.C. 1404(a) identifies three general factors to guide the district court in exercising its discretion to transfer a case: the convenience of the parties, the convenience of the witnesses, and the interests of justice. Weighing of the factors for and against transfer involves subtle considerations and is best left to the discretion of the trial judge. Ventress v. Japan Airlines, 486 F.2d 1111, 1118 (9th Cir. 2007), citing Commodity Futures Trading Comm'n v. Savage, 611 F.2d 270, 279 (9th Cir. 1979). Further, as discussed above, a court ruling on a motion to transfer also may consider judicial economy, relative ease of access to proof, availability of compulsory process, and relative docket congestion. 12
Decker Coal Co. v.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SF/2592877v1
Commonwealth Edison Co., supra, 805 F. 3d at 843. Application of these factors mandates an order transferring the action to the Eastern District of New York. 1. Convenience of the Parties
Because plaintiff is based in Pennsylvania, it cannot argue that the Northern District of California is a more convenient forum for it. See Morales v. Navieras de Puerto Rico, 713 F. Supp. 711, 173 (D.N.Y. 1989) (Because plaintiff is a resident of Puerto Rico he does not, nor can he, seriously argue that New York is a more convenient forum than Puerto Rico, especially when none of the operative facts occurred in New York, but rather occurred in Puerto Rico.). The fact that the Northern District of California may be convenient to plaintiffs counsel, who maintains a law office in this district, is not relevant. [T]he convenience of the parties counsel is given little or no weight in the convenience analysis. 17 Moore's Federal Practice, sec. 111.13[e][iii]; see also, Williams v. Granite Constr. Co. 2009 U.S. Dist. Lexis 10756 at * 1-2 (N.D.Cal. 2009). Transfer to the Eastern District of New York would be significantly more convenient for Full Circle, as it is headquartered and has its only office there. It would also be more convenient for SB, as Pennsylvania is a neighboring state to New York and over 2,000 miles closer to the Eastern District of New York that the Northern District of California. 2. Convenience of the Witnesses
The relevant witnesses are located in the Eastern District of New York or in neighboring Pennsylvania: Full Circle was and always has been a New York limited liability company based in Brooklyn, NY (Pavony Decl., 7); The two individuals referenced by name in the complaint, Eric Pavony and Evan Tobias, reside in New York (Id.); The trademark that SBI seeks to cancel was issued to Full Circle in Brooklyn, NY (Complaint, Exh. B); Full Circles records reside in Brooklyn, NY (Pavony Decl., 7); With respect to SBI, its trademark registration was originally also to the Eastern 13
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SF/2592877v1
District of New York, and subsequently was assigned to company in Eastern Pennsylvania, a short distance away from neighboring New York (Complaint, Exh. A); SB employees who are witnesses in this case also work in Pennsylvania, including SBIs CEO Joseph Sladek (See Harkins Decl., Exh. 7 [only SBI location is in Pennsylvania]); The complaint does not allege that SBI has any offices or records in California, and these, too, are presumably in Pennsylvania; The communications between Full Circle and SB, and in particular with SBs CEO, occurred between Brooklyn, NY and Pennsylvania (see Pavony Decl., 3-7).
3.
The Interests of Justice Favor the Transfer
The equitable factors identified by the Ninth Circuit in Jones v. GNC Franchising, supra, 211 F.3d 495, 498, also favor transfer of the case. When the distance between an existing venue for trial of a matter and a proposed venue under 1404(a) is more than 100 miles, the factor of inconvenience to witnesses increases in direct relationship to the additional distance to be traveled. In re Volkswagen of America, Inc. 506 F3d 376, 386 (5th Cir. 2007). Transfer will effect judicial economy and prevent waste of time and money. a) Lack of contacts with the Northern District of California
A primary factor in determining a section 1404(a) motion to transfer is where the operative facts occurred. Morales v. Navieras de Puerto Rico, 713 F.Supp. 711, 712 (S.D.N.Y. 1989). Here, the league about which SBI complains was founded in the Eastern District of New York and has been run exclusively from that district. It the same district to which both
trademark registrations in this case issued. It is where Full Circle is based and acted from, including all actions discussed in the Complaint. In short, the operative facts indeed all events occurred in the Eastern District of New York. This factor weighs heavily in favor of transfer.
14
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SF/2592877v1
b)
No deference should be given to Plaintiffs choice of forum
Some courts have held that a plaintiffs choice of forum is accorded substantial weight in proceedings under section 1404(a). Securities Investor Protection Corp. v. Vigman, 764 F.2d 1309, 1317 (9th Cir. 1985). However, deference to plaintiffs choice of forum is substantially attenuated where plaintiff has commenced the action in a forum that is not his or her residence. In such cases, plaintiffs choice of forum is given much less weight in ruling on a discretionary transfer motion. New Image, Inc. v. Travelers Indem. Co., 536 F.Supp. 478 (E.D.Pa. 1981). Here, plaintiff is a resident of Pennsylvania, not the Northern District of California. SB never resided or even had any offices in this district during the relevant time period alleged in the complaint. As a result, the plaintiffs forum choice in the Northern District of California carries no weight on whether to transfer the action. In judging the weight to be given [to plaintiff's choice of forum] ... consideration must be given to the extent both of the defendant's business contacts with the chosen forum and of the plaintiff's contacts, including those relating to [plaintiff's] cause of action. If the operative facts have not occurred within the forum of original selection and that forum has no particular interest in the parties or the subject matter, the plaintiff's choice is only entitled to minimal consideration. Zimpelman v. Progressive Northern Ins. Co., 2010 U.S. Dist. LEXIS 5582, *7 (N.D. Cal. Jan. 8, 2010), citing Pacific Car and Foundry Co. v. Pence, 403 F.2d 949, 954 (9th Cir. 1968). None of the operative facts occurred in the Northern District of California; thus, this district has no interest in the subject matter of the complaint. SBI may assert that it formed a California connection when it hired a marketing company in California named Dimensional Branding Group to promote its brand. However, the actions of Dimensional Branding create no such connection for this case. The allegations of the complaint relate to cancelation of the BREWSKEE-BALL mark registration based on facts that have nothing to do with SBIs marketing company. The Complaint also relates to allegations of Full Circles use of the BREWSKEE-BALL mark and its skee-ball league, which are based in New York, not California. To the extent employees of Dimensional Branding Group had
communications with Full Circle, those may relate to Full Circles complaint for breach of 15
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SF/2592877v1
contract, already pending in New York per the express terms of the agreement, but they do not relate to the purported trademark infringement. Whether or not Full Circle used its own mark or used SBIs purported mark, whether SBI has any rights to enforce in the name skee-ball, and whether SBI gave permission for Full Circles actions, all relate to actions and communications that occurred in New York and Pennsylvania, not California. Thus, this district is no more than substantially attenuated to the claims in the Complaint, and relevant authority supports transfer in such cases to a forum with more direct involvement. c) Plaintiffs attempt to forum shop should not succeed
An important interest of justice factor is the prevention of forum shopping. The transfer statute has a built-in mechanism to remedy the evils of forum shopping by giving little or no weight to the plaintiffs choice of forum away from the plaintiffs home and without ties to the controversy. See, OHopp v. Contifinancial Corp, 88 F.Supp.2d 31, 36 (E.D.N.Y. 2000) (holding that forum shopping clearly motivated the choice of filing the suit in the Eastern District, because the case had far more connections to the Southern District; and that the need for consistency of rulings and trial coordination, as well as the interest of efficiency and justice, militated in favor of transfer); see also Reiffin v. Microsoft Corp., 104 F.Supp.2d 48, 54, fn. 12 (D.D.C. 2000) (choice of venue disregarded when it was apparent plaintiff was engaged in forum shopping and the alternative venue was equally convenient). SBI should not be permitted to forum shop here, where the Northern District of California is far away from the matters giving rise to the dispute, and the offices of both parties are all the way across the country from this district. /// /// /// /// /// /// /// 16
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SF/2592877v1
V.
CONCLUSION Based on the foregoing, Full Circle respectfully requests that the Court dismiss this action
or transfer it to the Eastern District of New York, where the majority of acts underlying this litigation occurred as well as where a related case is pending. DATED: November 9, 2011 SEDGWICK LLP By: /s/ Robert Harkins Robert Harkins Attorneys for Defendant FULL CIRCLE UNITED, LLC
17
Case 1:11-cv-06277-NGG-JO Document 5-1 Filed 11/09/11 Page 1 of 36 PageID #: 122
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SF/2594006v1
SEDGWICK LLP Robert M. Harkins, Jr. (State Bar No. 179525) Jennifer Ming (State Bar No. 260367) 333 Bush Street, 30th Floor San Francisco, CA 94104-2834 Telephone: 415.781.7900 Facsimile: 415.781.2635 Attorneys for Defendant FULL CIRCLE UNITED, LLC
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SKEE BALL, INC., a Pennsylvania corporation, Plaintiff, v. FULL CIRCLE UNITED, LLC, a New York company, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. 3:11-cv-4930-EDL DECLARATION OF ROBERT HARKINS IN SUPPORT OF FULL CIRCLE UNITED, LLCS MOTION TO DISMISS OR TRANSFER
I, Robert Harkins, hereby declare as follows: 1. I am a duly licensed attorney in the State of California and a partner with the law
firm of Sedgwick LLP, representing Full Circle United, LLC in this action. I have personal knowledge of the facts stated herein and, if called as a witness, could and would testify competently thereto. 2. Attached to this declaration as Exhibit 1 is a true and correct copy of the web page
at <http://www.skeeball.com/welcome.htm> obtained from that address on November 7, 2011. 3. Attached to this declaration as Exhibit 2 is a true and correct copy of the web page
at <http://www.thepinballcompany.com/skeeballlanes.aspx> obtained from that address on November 7, 2011. 4. Attached to this declaration as Exhibit 3 is a true and correct copy of the web page
at <http://www.squidoo.com/arcade-skeeball> obtained from that address on November 7, 2011. -1DECLARATION OF ROBERT HARKINS ISO FULL CIRCLES MTN TO DISMISS OR TRANSFER
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SF/2594006v1
5.
Attached to this declaration as Exhibit 4 is a true and correct copy of a letter from
Oliver Chernin to Jann Moorhead, dated July 19, 2011. 6. Attached to this declaration as Exhibit 5 is a true and correct copy of an excerpt of
correspondence from the U.S. Patent and Trademark Office regarding U.S. Trademark Application No. 78932776 for BREWSKEE-BALL and dated December 27, 2006. 7. Attached to this declaration as Exhibit 6 is a true and correct copy of a complaint
filed in the Eastern District of New York on or about November 8, 2011. 8. Attached to this declaration as Exhibit 7 is a true and correct copy of the web page
at <http://www.skeeball.com/contactus.htm> obtained from that address on November 7, 2011. I declare under the penalty of perjury under the laws of the United States of America and the State of California that each of the above statements are true and correct, and that this declaration was executed on November 9, 2011, in the City of San Francisco, California. /s/ Robert Harkins Robert Harkins
-2DECLARATION OF ROBERT HARKINS ISO FULL CIRCLES MTN TO DISMISS OR TRANSFER
EXHIBIT 1
11/7/11
Skee-Ball Amusement 5-1 Welcome Case 1:11-cv-06277-NGG-JO Document Games -Filed 11/09/11 Page 4 of 36 PageID #: 125
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Skeeball was one of the first redemption games put into arcades. Redemption games were made to give out tickets depending on how many points a player earned. After getting enough tickets they could be traded in for a prize. Skeeball is played by rolling a ball up a slope in order to get the ball into holes that represent different amounts of points. Each game uses 9 balls to try and get as many points as you can. Skeeball was invented in 1909 by JD Estes from Philadelphia. In 1914 skeeball games were sold and used by outdoor amusement parks. The original Skeeball was actually much longer than today. The lane for the balls was 36 feet long and it was somewhat difficult for some women and children to get the ball all the way up. The lane was soon changed to 14 feet in 1928 and later to 10 or 13 feet when it became big in arcades. In 1935 the Wurlitzer company bought the rights to manufacture and sell Skeeball machines. The original game only went up to 50 points at 10 point increments. It wasn't until more recently that 2 100 point holes were added at the top left and right corners. Skeeball is a big part of the arcade experience. Kids love earning tickets to trade in for prizes. The Max Retropub | Tulsa, OK
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EXHIBIT 4
EXHIBIT 5
To: Subject: Sent: Sent As: Attachments:
Pavony, Eric Harris (info@brewskeeball.com) TRADEMARK APPLICATION NO. 78932776 - BREWSKEE-BALL - N/A 12/27/06 11:29:50 AM ECOM110@USPTO.GOV
UNITED STATES PATENT AND TRADEMARK OFFICE

SERIAL NO: APPLICANT: 78/932776 Pavony, Eric Harris
*78932776*
RETURN ADDRESS:
Commissioner for Trademarks P.O. Box 1451 Alexandria, VA 22313-1451
CORRESPONDENT ADDRESS: PAVONY, ERIC HARRIS 141 DEVOE ST STE 3 BROOKLYN, NY 11211-3725
MARK:
BREWSKEE-BALL
Please provide in all correspondence: 1. Filing date, serial number, mark and applicant's name. 2. Date of this Office Action. 3. Examining Attorney's name and Law Office number. 4. Your telephone number and e-mail address.
CORRESPONDENTS REFERENCE/DOCKET NO : N/A CORRESPONDENT EMAIL ADDRESS: info@brewskeeball.com
OFFICE ACTION
RESPONSE TIME LIMIT: TO AVOID ABANDONMENT, THE OFFICE MUST RECEIVE A PROPER RESPONSE TO THIS OFFICE ACTION WITHIN 6 MONTHS OF THE MAILING OR EMAILING DATE. MAILING/E-MAILING DATE INFORMATION: If the mailing or e-mailing date of this Office action does not appear above, this information can be obtained by visiting the USPTO website at http://tarr.uspto.gov/, inserting the application serial number, and viewing the prosecution history for the mailing date of the most recently issued Office communication. Serial Number 78/932776 The assigned trademark examining attorney has reviewed the referenced application and has determined the following:
Office Records Search The Office records have been searched and no similar registered or pending mark has been found that would bar registration under Trademark Act Section 2(d), 15 U.S.C. 1052(d). TMEP 704.02. Identification of Services The identification of services is unacceptable as indefinite because applicant must specify the services provided with regard to its league by common commercial name and classify the services properly according to the Manual of Acceptable Identifications of Goods and Services at http://tess2.uspto.gov/netahtml/tidm.html. Applicant must rewrite the identification of services in its entirety because of the nature and extent of the amendment. 37 C.F.R. 2.74(b). Please note that promoting ones own services is not itself a service. Trademark Act 1, 3 and 45, 15 U.S.C. 1051, 1053 and 1127; TMEP 1215.02. Therefore, if applicants promotion services are provided for others, applicant must so specify in the identification. However, if applicants promotion services are only performed for the applicant, such services must be deleted from the identification. The applicant may adopt the following recitation, if accurate: Providing a website that provides management of a skee-ball league. International Class 35. Entertainment in the nature of skee-ball games; entertainment services, namely, arranging and conducting of skee-ball competitions; providing a website that provides statistics for skee-ball league players; providing recognition and incentives by the way of awards to demonstrate excellence in the field of skeeball. International Class 41. Please note that, while an application may be amended to clarify or limit the identification, additions to the identification are not permitted. 37 C.F.R. 2.71(a); TMEP 1402.06. Therefore, the applicant may not amend to include any goods or services that are not within the scope of the goods and services recited in the present identification. For assistance with identifying and classifying goods and/or services in trademark applications, please see the online searchable Manual of Acceptable Identifications of Goods and Services at http://tess2.uspto.gov/netahtml/tidm.html. Multiple Class Requirements If applicant prosecutes this application as a combined, or multipleclass application, then applicant must comply with each of the requirements below for those services based on actual use in commerce under Trademark Act Section 1(a): (1) Applicant must list the services by international class with the classes listed in ascending numerical order; (2) Applicant must submit a filing fee for each international class of services not covered by the fee already paid (current fee information should be confirmed at http://www.uspto.gov); and (3) For each additional class of services, applicant must submit: (a) dates of first use of the mark anywhere and dates of first use of the mark in commerce, or a

statement that the dates of use in the initial application apply to that class; the dates of use, both anywhere and in commerce, must be at least as early as the filing date of the application; (b) one specimen showing use of the mark for each class of services; the specimen must have been in use in commerce at least as early as the filing date of the application; (c) a statement that the specimen was in use in commerce on or in connection with the services listed in the application at least as early as the filing date of the application; and (d) verification of the statements in 3(a) and 3(c) in an affidavit or a signed declaration under 37 C.F.R. 2.20. (NOTE: Verification is not required where (1) the dates of use for the added class are stated to be the same as the dates of use specified in the initial application, or (2) the original specimens are acceptable for the added class.) 37 C.F.R. 2.6, 2.34(a), 2.59, 2.71(c), and 2.86(a); TMEP 810, 904.09, 1403.01 and 1403.02(c). The specimens presently of record are acceptable with respect to class 41. General Response Guidelines When responding to this Office action, applicant must make sure to respond to each refusal and requirement raised. If there is a refusal to register the proposed mark, then applicant may wish to argue against the refusal, i.e., explain why it should be withdrawn and why the mark should register. If there are other requirements, then applicant should simply set forth, in the appropriate place in the TEAS response form, the required changes or statements. Applicant must also sign and date its response. The applicant filed the application electronically and rather than submitting a paper response, the applicant is encouraged to file its response to this Office action electronically through the Trademark Electronic Application System (TEAS), available at http://www.uspto.gov/teas/index.html. TMEP refers to the Trademark Manual of Examining Procedure (4th ed., 2005), available on the United States Patent and Trademark Office website at www.uspto.gov/main/trademarks.htm. This is a detailed guidebook written by the Office to explain the laws and procedures that govern the trademark application, registration and post registration processes.
Sara N. Thomas /Sara Thomas/ Examining Attorney Law Office 110 571.272.8847 fax (formal response only) 571.273.9110
HOW TO RESPOND TO THIS OFFICE ACTION: ONLINE RESPONSE: You may respond using the Offices Trademark Electronic Application

System (TEAS) Response to Office action form available on our website at http://www.uspto.gov/teas/index.html. If the Office action issued via e-mail, you must wait 72 hours after receipt of the Office action to respond via TEAS. NOTE: Do not respond by e-mail. THE USPTO WILL NOT ACCEPT AN E-MAILED RESPONSE. REGULAR MAIL RESPONSE: To respond by regular mail, your response should be sent to the mailing return address above, and include the serial number, law office number, and examining attorneys name. NOTE: The filing date of the response will be the date of receipt in the Office, not the postmarked date. To ensure your response is timely, use a certificate of mailing. 37 C.F.R. 2.197. STATUS OF APPLICATION: To check the status of your application, visit the Offices Trademark Applications and Registrations Retrieval (TARR) system at http://tarr.uspto.gov. VIEW APPLICATION DOCUMENTS ONLINE: Documents in the electronic file for pending applications can be viewed and downloaded online at http://portal.uspto.gov/external/portal/tow. GENERAL TRADEMARK INFORMATION: For general information about trademarks, please visit the Offices website at http://www.uspto.gov/main/trademarks.htm FOR INQUIRIES OR QUESTIONS ABOUT THIS OFFICE ACTION, PLEASE CONTACT THE ASSIGNED EXAMINING ATTORNEY SPECIFIED ABOVE.
EXHIBIT 6
EXHIBIT 7
11/7/11
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Mot Dismiss Skee Ball V Full Circle United

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Mot Dismiss Skee Ball V Full Circle United

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Case 1:11-cv-06277-NGG-JO Document 5 Filed 11/09/11 Page 1 of 21 PageID #: 101

FULL CIRCLE UNITED, LLCS MOTION TO DISMISS OR TRANSFER

Case 1:11-cv-06277-NGG-JO Document 5 Filed 11/09/11 Page 2 of 21 PageID #: 102

Case 1:11-cv-06277-NGG-JO Document 5 Filed 11/09/11 Page 3 of 21 PageID #: 103

TABLE OF AUTHORITIES PAGE

Case 1:11-cv-06277-NGG-JO Document 5 Filed 11/09/11 Page 4 of 21 PageID #: 104

Case 1:11-cv-06277-NGG-JO Document 5 Filed 11/09/11 Page 5 of 21 PageID #: 105

Case 1:11-cv-06277-NGG-JO Document 5 Filed 11/09/11 Page 6 of 21 PageID #: 106

Case 1:11-cv-06277-NGG-JO Document 5 Filed 11/09/11 Page 7 of 21 PageID #: 107

Case 1:11-cv-06277-NGG-JO Document 5 Filed 11/09/11 Page 8 of 21 PageID #: 108

Case 1:11-cv-06277-NGG-JO Document 5 Filed 11/09/11 Page 9 of 21 PageID #: 109

Case 1:11-cv-06277-NGG-JO Document 5 Filed 11/09/11 Page 10 of 21 PageID #: 110

Case 1:11-cv-06277-NGG-JO Document 5 Filed 11/09/11 Page 11 of 21 PageID #: 111

Case 1:11-cv-06277-NGG-JO Document 5 Filed 11/09/11 Page 12 of 21 PageID #: 112

Case 1:11-cv-06277-NGG-JO Document 5 Filed 11/09/11 Page 13 of 21 PageID #: 113

Case 1:11-cv-06277-NGG-JO Document 5 Filed 11/09/11 Page 14 of 21 PageID #: 114

Case 1:11-cv-06277-NGG-JO Document 5 Filed 11/09/11 Page 15 of 21 PageID #: 115

Case 1:11-cv-06277-NGG-JO Document 5 Filed 11/09/11 Page 16 of 21 PageID #: 116

Decker Coal Co. v.

Case 1:11-cv-06277-NGG-JO Document 5 Filed 11/09/11 Page 17 of 21 PageID #: 117

Case 1:11-cv-06277-NGG-JO Document 5 Filed 11/09/11 Page 18 of 21 PageID #: 118

The Interests of Justice Favor the Transfer

Case 1:11-cv-06277-NGG-JO Document 5 Filed 11/09/11 Page 19 of 21 PageID #: 119

No deference should be given to Plaintiffs choice of forum

Case 1:11-cv-06277-NGG-JO Document 5 Filed 11/09/11 Page 20 of 21 PageID #: 120

Case 1:11-cv-06277-NGG-JO Document 5 Filed 11/09/11 Page 21 of 21 PageID #: 121

Case 1:11-cv-06277-NGG-JO Document 5-1 Filed 11/09/11 Page 1 of 36 PageID #: 122

Case 1:11-cv-06277-NGG-JO Document 5-1 Filed 11/09/11 Page 2 of 36 PageID #: 123

-2DECLARATION OF ROBERT HARKINS ISO FULL CIRCLES MTN TO DISMISS OR TRANSFER

Case 1:11-cv-06277-NGG-JO Document 5-1 Filed 11/09/11 Page 3 of 36 PageID #: 124

!I' !" .F !"

Case 1:11-cv-06277-NGG-JO Document 5-1 Filed 11/09/11 Page 5 of 36 PageID #: 126

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Case 1:11-cv-06277-NGG-JO Document 5-1 Filed 11/09/11 Page 8 of 36 PageID #: 129

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