To: Lisa Howard [mailto:lhoward@howardmills.com]

From: A. Paralegal [mailto:needsthisjob@howardmills.com]

Date: April 6, 2017 10:23 pm

Subject: SLB Civil Removal Research

Dear Ms. Howard;

I am writing in return to your requests as per the Sweet Lorraine’s case. As you are

aware, Mr. Sawyer’s attorney had filed a summons and complaint in Wayne County

Circuit Court in the State of Michigan. Due to this case having many legal errors,

including filing in the wrong jurisdiction, we are proceeding with this case, and at your

request, I have composed a memo in which outlines the research I intend to conduct in

regards to this matter.

The various legal and factual search terms I will use when conduct my research will

include, but not limited to will be: jurisdiction of federal law, removal of trademark

infringement case state to federal court, 28 U.S.C. §1441, 1446, Michigan State

jurisdiction trademark infringement, diversity of citizenship, burden of proof for removal

to Federal Court, proof required for removal to Federal Court, burden of proof for

diversity of citizenship and proof required to prove diversity of citizenship.

The legal issues that need to be asked in this case are:

Who has burden of proof in this case to remove the Sweet Lorraine’s case to Federal

Court?

What proof do we need to present to the court to show cause for removal from Wayne

County Circuit Court in the State of Michigan to Federal Court?

What primary laws support our motion to remove this case to a Federal Court?

What Federal Court rules support our ability to remove this case to Federal Court?

Who is responsible for the burden of proof in regards to the diversity of citizenship

claim?

What proof do we need to present to the court to prove diversity of citizenship?

What are our chances of the court agreeing to move this matter to Federal Court?

What are our chances the court will agree with diversity of citizenship requests?

Primary sources I intend to research will be from the Sixth Circuit Court of Appeals and

the United States District Court for the Eastern District of Michigan. I intend to research

primary law in regards to removing cases to Federal Court, and discover the rules and

laws that allow us this right. I also intend to research to discover who the burden of

proof is on and what is required for us to present to the court to support our motion to

why the case should be moved to Federal Court. I am aiming at finding at least three

primary sources directly in comparison to Sweet Lorraine’s in which cases were filed in

the wrong jurisdictions and moved to the Federal Court. I also intend to research how to

draft the motion for this task. Search terms I will be using are listed above in the second

paragraph of this memo. These terms are not narrowed to these terms, but will be a

base for my thoughts and research to grow upon and expand.

The secondary sources I will research will be jurisprudence and treatises. These

sources will further explain in more simple terms what is required, and can even lead to

some relevant cases as needed for our primary law discovery. The use of secondary

sources is important because it allows for a clearer picture of the law, and could

potentially save research time.

I am estimating my research will consist of approximately five to six hours. This is a very

rough estimate because sometimes research can be less time consuming with the use

of secondary sources. Time spent researching could also take longer due to unforeseen

issues.

If you require additional assistance, please don’t hesitate to ask.

Sincerely,

A. Paralegal

From: A. Paralegal [mailto:needsthisjob@howardmills.com]

To: Lisa Howard [mailto:howard@howardmills.com]

Date: April 20, 2017 3:23 AM

Subject: Sweet Lorraine’s Systems, LLC v. Sweet Lorraine’s Bakery, LLC (File No.

3176)

Dear Ms. Howard:

I have had the time to research removing this matter to federal court. I am including my

predictive memo regarding this, as per your request.

Statement of Facts

Eight months ago, our firm began working with Ms. Donnelly regarding incorporation of

her family owned business Sweet Lorraine’s Bakery, LLC out of Charlotte, NC. This

bakery specializes in French and Italian-inspired pastries, cakes, cookies and artisan

breads. The business is a one store location in which they feature a daily menu, create

special order occasion cakes and have a website, but does not offer any sales through

the online marketplace. All advertising is done through Facebook, Twitter and their

webpage and by word of mouth.

Two months ago, Ms. Donnelly was contacted by Mr. Greg Sawyer. Mr. Sawyer and his

wife operate Sweet Lorraine’s Café and Bar in Detroit and have two locations. Mr.

Sawyer is the vice president of Sweet Lorraine’s Systems, LLC in Detroit, MI. Mr.

Sawyer’s Café and Bar is a restaurant that specializes in American fare and includes

some baked goods on their menu. The Café and Bar offers a website in which they sell

salad dressings and apparel that are sold throughout the country. Mr. Sawyer recently

began pursuing a new franchise called “Sweet Lorraine’s Mac n’ Cheez Kitchen” and

currently have two locations open in Detroit suburbs and allegedly had been

approached by an individual from North Carolina regarding expanding into this state,

however; the exact location was not mentioned.

Mr. Sawyer contacted Ms. Donnelly because he and his wife have a trademark on the

name “Sweet Lorraine’s” for all restaurants, catering and baking services in the United

States. This trademark has been confirmed with the United States Patent and

Trademark Office. Mr. Sawyer demanded our client, Ms. Donnelly to change the name

of her business or he would commence a lawsuit against if she does not follow his

demands.

Our firm suggests Ms. Donnelly not change the name of her business because based

upon research of previous court rulings, we find Mr. Sawyer would most likely not

prevail in his claims of Ms. Donnelly committing trademark infringement.

Two months following this conversation, Ms. Donnelly received an email from Mr.

Sawyer’s attorney, Marsha Jabber. Attached to the email was a Summons and

complaint against Sweet Lorraine’s Bakery, LLC, which was filed in Wayne County

Circuit Court in the State of Michigan (a Michigan State Court). Ms. Donnelly nor any

employee of Ms. Donnelly were personally served with this summons and complaint,

nor does it appear there had been any attempt of legitimate service of process. Lastly, it

appears Mr. Sawyer’s attorney wrongly filed this court in Michigan State Court, not

Federal District Court.

Question(s) Presented

What is our burden on a motion to remove this matter to Federal Court?

Can we meet our burden of proof on the motion to remove this matter to Federal Court?

What or how do we need to meet our burden of proof on this motion?

Short Answer(s)

The burden is on the defendant to remove the matter to Federal Court.

Yes, we can meet our burden on the motion to move this matter to Federal Court by

proving Mr. Sawyer and Ms. Donnelly live in different states.

Analysis

Under the provisions of 28 U.S.C.S. § 1441, the defendant must be the moving party to

remove the matter to Federal court when involving diversity of citizenship in a civil

matter. This is because Mr. Sawyer and Ms. Donnelly reside in different states. Law to

support this finding is Schwartz v. Elec. Data Sys., Inc., 913 F.2d 279 (6th Cir. 1990),

and states exactly “Congress adopted this presumption when it enacted the removal

statute, 28 U.S.C. § 1441(b), under which a diversity action is "removable only if none of

the . . . defendants is a citizen of the State in which such action is brought." Ms.

Donnelly is not a resident of the state of Michigan, therefore she can remove this matter

to federal court.

Further stated “As in all diversity removal cases, no defendant in the action may be a

citizen of the state in which the action is brought. 28 U.S.C .S. § 1441(b ) ” in Hite v.

Norwegian Caribbean Lines, 551 F. Supp. 390 (E.D. Mich. 1982) and this means

because Mr. Sawyer and Ms. Donnelly do not reside in the same state, under the

diversity of citizenship, this allows the right for Ms. Donnelly to move this case to federal

court.

Theriot v. HSBC Bank, No. 10-CV-11617, 2010 U.S. Dist. LEXIS 135643, at *10-11

(E.D. Mich. Dec. 22, 2010) shows the provisions of 28 U.S.C.S. § 1446, and states the

notice of removal of a civil action or proceeding shall be filed within 30 days after the

receipt by the defendant, through service or otherwise, of a copy of the initial pleading

setting forth the claim for relief upon which such action or proceeding is based, or within

30 days after the service of summons upon the defendant if such initial pleading has

then been filed in court and is not required to be served on the defendant, whichever

period is shorter as shown in In an action based on diversity, the action "shall be

removable only if none of the parties in interest properly joined and served as

defendants is a citizen of the State in which such action is brought."

28 U.S.C. § 1441(b). 28 U.S.C. § 1446(d) governs the notice requirement for removal:

Promptly after the filing of such notice of removal of a civil action the defendant or

defendants shall give written notice thereof to all adverse parties and shall file a copy of

the notice with the clerk of such State court, which shall affect the removal and the State

Court shall proceed no further unless and until the case is remanded.

28 U.S.C. § 1446(d) states the removing party has the burden of proving that the federal

district court has jurisdiction.

Since trademark infringement arises out of federal law, and both parties live in different

states, this allows for Ms. Donnelly the right to motion to remove this case to federal

court.

Conclusion

Yes, Ms. Donnelly would be successful in her motion to remove this case to federal

court.

Howard & Mills, P.C.123 Main StreetCharlotte, NC 28277555-555-5555howard@howardmills.comApril 14, 2017

Sweet Lorraine’s Bakery, LLC220 West BoulevardCharlotte, NC 28277

Dear Ms. Donnelly:

I hope this letter finds you well. First off, our duty here at Howard & Mills, P.C. is to do the best to represent our clients personal interests the best we can within the scope of the law. The legal process can be very confusing and the complex terminology can frustrate even some of the best attorneys. The purpose of this letter is to explain to you each claim Mr. Sawyer has made against you in his summons and complaint, in an organized manner and in language that is understandable. Many attorney’s fail to explain to their clients what’s happening with their case, and if they do, it is usually in legal terms most people have never heard before, let alone know what these words mean. We do things differently at this firm, if you are paying us for our expertise, you deserve to know and understand what is happening through the legal process in normal language. I will explain if there is any merit in each claim, and if there is reason to believe Mr. Sawyer would have victory in any of his causes of actions. I will additionally tell you what defenses will be used to strengthen your case and why.

Summons

This page states that we must file a written answer within a certain number of days. An answer is where we go through the entire petition and either admit or deny each allegation made by Mr. Sawyer.

Complaint

This is Mr. Sawyers side of the story and what he alleges you have done that he would like a remedy for. The introduction states the story behind the use of the “Sweet Lorraine’s” and a small history of their business. Mr. Sawyers goes on to explain he obtained a patent on the trademark name of “Sweet Lorraine’s”, and lastly how he came to discover that you had been using the same general name for your business.

Parties

This section states limited information about Mr. Sawyers and yourself, Ms. Donnelly. This also describes the addresses of both businesses using the name “Sweet Lorraine’s”.

Jurisdiction and Venue

Jurisdiction is taking your case to the proper court. Not all courts hear all cases. When filing with the court, we must be sure we have the correct court. There are many different levels of courts and in different areas. Venue means location. In each state, there are different circuits or areas within the state. Each circuit deals only with certain counties in that state, and in each state, there are several circuits.

Background Facts

Mr. Sawyer lists more detailed into the background or history of his business, details of having the mark “Sweet Lorraine’s” patented and different things in which his business does, promotes, sells, or even how they market and sell their services and goods.

Defendant’s Conduct

These are the complaint(s) Mr. Sawyer alleges against you, or what you have done in which he is finding fault or legality with.

Cause of Action

I will list each cause of action separately. Each cause of action states exactly what specific law you have been accused of committing against Mr. Sawyer. This is the section in which I will explain what the law means, if I think they will prove you have committed this act, what defense we can use against their claims or how we can prove these causes of action to be disproven. Some of these causes of actions are Mr. Sawyer’s responsibility to prove, however.

First Cause of Action:

Trademark Infringement – 15 U.S.C. § 1114

In Mr. Sawyer’s claim, item 24, he claims (his business is) “highly distinctive and arbitrary.” A few examples of arbitrary marks are EXXON, Kodak and Apple. When people hear these words, these words are not related at all to the products they promote, but almost everyone knows Kodak sells cameras and things related to photography in general. In this world, there are probably a very large number of people named Lorraine. There are also a great number of bakeries and bars. Just because someone names their establishment the same name five states away, does not mean it will cause any confusion. The main idea of trademark infringement is to cause confusion among consumers.

In item 25, Mr. Sawyer notes the “Trademark is confusingly similar”, and goes on to state you have “intentionally and knowingly” been using his trademark name of Sweet Lorraine’s to cause confusion. Details of these allegations continue through number 31.

When deciding if one has committed trademark infringement, under 15 U.S.C 1114(1) there are eight factors in which mainly determine if use of a trademark causes confusion. Those eight factors are

1. The strength of the plaintiff’s mark;

2. The relatedness of the service;

3. The similarity of the marks;

4. The evidence of actual confusion;

5. The marketing channels used;

6. The likely degree of purchaser care;

7. The defendant’s intent in selecting the mark; and

8. The likelihood of expansion of the product lines.

In the case of Champions Golf Club, Inc. v. Champions Golf Club, Inc., 78 F.3d 1111 (6th Cir. 1996) both owners of these golf clubs were named the same name, and used the same ways to market and promote their businesses. The court ruled that there was no infringement because even though they both sold golf memberships and were named the same name, consumers did not confuse them. The two business owners were not in the same geographic location. These two companies had different buildings, course layout, and even though there were a few known acts of confusion, it was not sufficient to the court because the confusion was not between consumers. The court also found there was no actual intent on the behalf of either party to make others believe they were affiliated with each other or trying to take business from the other in a deceitful or fraudulent manner.

Mr. Sawyer will not be successful in this claim is because Lorraine is a common name. His business is named “Sweet Lorraine’s Café and Bar”, Your business is named “Sweet Lorraine’s Bakery”. When on sees café or bar they assume the business sells beverages, not cakes. The two businesses are in completely different states and geographic locations. The products are very different, you advertise differently and sell your products differently. Mr. Sawyer sells his products through internet sales, whereas you only advertise your services online. Sales through your business are done only by people personally coming to your store. Your business is well known by the locals, and they would not confuse your business with another business because they are familiar with you and your services.

Second Cause of Action:

Federal Trademark Dilution – 15 U.S.C. § 1125(c)

Trademark dilution is where you are using his name to make his mark less arbitrary or fanciful. In the case of Daddy's Junky Music Stores, Inc. v. Big Daddy's Family Music Ctr., 109 F.3d 275 (6th Cir. 1997) The district court found that the “Daddy’s Music Store” and the “Daddy’s” marks are arbitrary marks because daddy does not relate to music or musical instruments, however; The U.S. Patent & Trademark Office revealed fifteen registered marks with the same phrase of “Daddy’s” and another three marks pending registration. The mark “Daddy’s” alone is therefore weakened due to the dilution of the mark.

Mr. Sawyer would not be successful on this claim either because when a person names their business, many people include a name. I’m sure there is a few “Joe’s Diner” restaurants in every state. People who are local know the difference between them and there is no confusion, even if the names are the same.

Third Cause of Action:

False Designation of Origin – 15 U.S.C. § 1125(a)

In this cause of action, he is again alleging confusion amongst consumers. The court would require Mr. Sawyer to prove with financial records showing he has lost revenue because of your business and prove incidents of actual confusion. To my knowledge there has been none, and the case of Champions Golf Club, Inc. v. Champions Golf Club, Inc., 78 F.3d 1111 (6th Cir. 1996) there had been actual acts of confusion, however there had only been a few isolated incidents and they weren’t by consumers, the confusion was by golf ball suppliers. The court ruled there had not been any infringement. I also feel since this case was held in the same court district, using this case as primary law, the court will also rule the same way.

Fourth Cause of Action:

Common Law Trademark Infringement

In this action, once again, Mr. Sawyer is claiming that you have caused confusion amongst consumers, and on record, to date there has been none. The court needs Mr. Sawyer to prove that there has been actual confusion, and prove that he has lost revenue from your business. I don’t foresee any merit in this as when the defense for the plaintiff cannot prove that you have intentionally and knowingly used his name to cause and have caused actual confusion. Also, both businesses, even though they use the name “Lorraine’s”, are very different in every aspect.

Fifth Cause of Action:

Common Law Unfair Competition

This cause of action is like the other causes, just claiming that you have intentionally used the same name to damage his reputation and to take business from him. Mr. Sawyer needs to prove that there has been actual confusion, and that you are knowingly trying to gain profit by using his mark to deceive people into believing you are affiliated with him, which this is not the case.

Conclusion

In my experience with cases like yours, and extensive research conducted on this matter, I feel the court will dismiss all of Mr. Sawyers claims and you will not be forced to change your business name. There has been no infringement of Mr. Sawyer’s trademark.

Our Next Steps

Our next steps in this process however are to remove this matter from Wayne County Circuit Court for the State of Michigan to Federal District Court. There had been many errors and discrepancies with the filing of the summons and complaint, starting with the delivery of the complaint, which is called service. Secondly, the complaint was filed in the wrong jurisdiction because trademark infringement arises out of federal law, therefore needs to be heard in front of a Federal District Court. Our office must file a motion to do this. I will inform you each step of the way of what our next actions will be.

If you should have any questions, or need further clarification of anything, don’t hesitate to contact me at 555-555-5555. I will be more than happy to discuss this matter further.

Sincerely,

Signature of Lisa HowardLisa Howard, Esq.

UNITED STATES DISTRICT COURTEASTERN DISTRICT OF MICHIGAN

___________________________________________

SWEET LORRAINE’S SYSTEMS, LLC.1100 Snarl Avenue, Suite 310Detroit, MI 42330

Plaintiff, NOTICE OF MOTION

v. Index No. 2013-77569

SWEET LORRAINE’S BAKERY, LLC.220 West BoulevardCharlotte, NC 28277

Defendant.___________________________________________

PLEASE TAKE NOTICE, that the undersigned will bring a motion the remove this case to the United States District court for the Eastern Division of Michigan before this Court on a date and time which will be provided by the Court later.

Signed this 20th day of April 2017

(Signature of Lisa Howard)Lisa Howard, Esq.Howard & Mills, P.C.123 Main StreetCharlotte, NC 28277

UNITED STATES DISTRICT COURTEASTERN DISTRICT OF MICHIGAN

______________________________________________

SWEET LORRAINE’S SYSTEMS, LLC.1100 Snarl Avenue, Suite 310Detroit, MI 42330

Plaintiff, AFFIDAVIT IN SUPPORTOF MOTION

v.Index No. 2013-77569

SWEET LORRAINE’S BAKERY, LLC.220 West BoulevardCharlotte, NC 28277

Defendant.

_______________________________________________

STATE OF MICHIGANCOUNTY OF WAYNE

I, Lisa Howard, Esq., make the following affirmation under penalty of perjury:

2. I am counsel for the defendant in the above-entitled action and respectfully request that the Court issue an order to remove this case to the United States District Court for the Eastern District of Michigan.

3. The reasons why I believe I am entitled to the relief I seek are set forth below.

4. Mr. Sawyer is the vice president of Sweet Lorraine’s Systems, LLC. and resides in Detroit, Michigan.

Ms. Donnelly is the owner of Sweet Lorraine’s Bakery, LLC. and resides in Charlotte, North Carolina.

Sweet Lorraine’s Systems, LLC filed a summons and complaint against Sweet Lorraine’s Bakery, LLC, alleging trademark infringement.

Trademark infringement, 15 U.S.C § 1114 is a federal question and is in Federal Jurisdiction

Under 28 U.S.C.S. § 1441, Mr. Sawyer and Ms. Donnelly reside in different states, this rule states when there is a diversity of citizenship, the matter is under federal jurisdiction and this matter should be removed to the United States District Court for further proceedings.

5. I declare under penalty of perjury that the foregoing is true and correct, to the best

of my knowledge, information and belief.

Dated: This 20th day of April 2017

(Signature of Lisa Howard)Lisa Howard, Esq.Howard & Mills, P.C.123 Main StreetCharlotte, NC 28277

UNITED STATES DISTRICT COURTEASTERN DISTRICT OF MICHIGAN

______________________________________________

SWEET LORRAINE’S SYSTEMS, LLC.1100 Snarl Avenue, Suite 310Detroit, MI 42330

Plaintiff, MOTION TO REMOVE

v.Index No. 2013-77569

SWEET LORRAINE’S BAKERY, LLC.220 West BoulevardCharlotte, NC 28277

Defendant.

_______________________________________________

MEMORANDUM OF LAW IN SUPPORT OF MOTION TO REMOVE

BACKGROUND AND PROCEDURAL HISTORY

Eight months ago, Ms. Donnelly opened a family owned business Sweet Lorraine’s Bakery, LLC out of Charlotte, NC. This bakery specializes in French and Italian-inspired pastries, cakes, cookies and artisan breads. The business is a one store location in which they feature a daily menu, create special order occasion cakes and have a website, but does not offer any sales through the online marketplace. All advertising is done through Facebook, Twitter and their webpage and by word of mouth.Two months ago, Ms. Donnelly was contacted by Mr. Greg Sawyer. Mr. Sawyer and his wife operate Sweet Lorraine’s Café and Bar in Detroit and have two locations. Mr. Sawyer is the vice president of Sweet Lorraine’s Systems, LLC in Detroit, MI. Mr. Sawyer’s Café and Bar is a restaurant that specializes in American fare and includes some baked goods on their menu. The Café and Bar offers a website in which they sell salad dressings and apparel that are sold throughout the country. Mr. Sawyer recently began pursuing a new franchise called “Sweet Lorraine’s Mac n’ Cheez Kitchen” and currently have two locations open in Detroit suburbs and allegedly had been approached by an individual from North Carolina regarding expanding into this state, however; the exact location was not mentioned.

Mr. Sawyer contacted Ms. Donnelly because he and his wife have a trademark on the name “Sweet Lorraine’s” for all restaurants, catering and baking services in the United States. This trademark has been confirmed with the United States Patent and

Trademark Office. Mr. Sawyer demanded our client, Ms. Donnelly to change the name of her business or he would commence a lawsuit against if she does not follow his demands. Our firm suggests Ms. Donnelly not change the name of her business based upon previous court rulings, we find Mr. Sawyer would most likely not prevail in his claims of trademark infringement against Ms. Donnelly.

Two months following this conversation, Ms. Donnelly received an email from Mr. Sawyer’s attorney, Marsha Jabber. Attached to the email was a Summons and complaint against Sweet Lorraine’s Bakery, LLC, which was filed in Wayne County Circuit Court in the State of Michigan. Ms. Donnelly nor any employee of Ms. Donnelly were personally served with this summons and complaint, nor does it appear there had been any attempt of legitimate service of process. Lastly, it appears Mr. Sawyer’s attorney wrongly filed this complaint in Michigan State Court, not United States District Court for the State of Michigan.

ARGUMENT

Under the provisions of 28 U.S.C.S. § 1441, the defendant must be the moving party to remove the matter to Federal court when involving diversity of citizenship in a civil matter.

Mr. Sawyer and Ms. Donnelly reside in different states.

Law to support this finding is Schwartz v. Elec. Data Sys., Inc., 913 F.2d 279 (6th Cir. 1990), and states exactly “Congress adopted this presumption when it enacted the removal statute, 28 U.S.C. § 1441(b), under which a diversity action is "removable only if none of the . . . defendants is a citizen of the State in which such action is brought."

Ms. Donnelly is not a resident of the state of Michigan, therefore she is afforded the right to remove this matter to The United States District Court.

Further stated “As in all diversity removal cases, no defendant in the action may be a citizen of the state in which the action is brought. 28 U.S.C.S. § 1441(b)” in Hite v. Norwegian Caribbean Lines, 551 F. Supp. 390 (E.D. Mich. 1982) and this means because Mr. Sawyer and Ms. Donnelly do not reside in the same state, under the diversity of citizenship, this allows the right for Ms. Donnelly to move this case to federal court.

Theriot v. HSBC Bank, No. 10-CV-11617, 2010 U.S. Dist. LEXIS 135643, at *10-11 (E.D. Mich. Dec. 22, 2010) shows the provisions of 28 U.S.C.S. § 1446, and states the notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within

30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter as shown in In an action based on diversity, the action "shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought."

28 U.S.C. § 1441(b). 28 U.S.C. § 1446(d) governs the notice requirement for removal:Promptly after the filing of such notice of removal of a civil action the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of such State court, which shall affect the removal and the State Court shall proceed no further unless and until the case is remanded.

28 U.S.C. § 1446(d) states the removing party has the burden of proving that the federal district court has jurisdiction.

Since trademark infringement arises out of federal law, and both parties live in different states, this allows for Ms. Donnelly the right to motion to remove this case to federal court.

CONCLUSION

We respectfully request the court to order this court proceeding to be removed to The United States District Court for the State of Michigan, Eastern Division for further court proceedings.

Dated: April 22, 2017

Respectfully Submitted,

(Signature of Lisa Howard)Lisa Howard, Esq.Howard & Mills, P.C.123 Main StreetCharlotte, NC 28277

UNITED STATES DISTRICT COURTEASTERN DISTRICT OF MICHIGAN

___________________________________________

SWEET LORRAINE’S SYSTEMS, LLC.1100 Snarl Avenue, Suite 310Detroit, MI 42330

Plaintiff, ANSWER TO COMPLAINT

v. Index No. 2013-77569

SWEET LORRAINE’S BAKERY, LLC.220 West BoulevardCharlotte, NC 28277

Defendant.___________________________________________

Defendant, Christine Donnelly, owner of Sweet Lorraine’s Bakery, LLC. answers as

follows:

ADMISSIONS AND DENIALS

1. Defendant admits to the allegations in paragraphs 1, 2, 3, 7, 8, 9, 10, 12, 13, 17 and

21.

2. Defendant denies each and all allegations in paragraphs 4, 5, 6, 18, 19, 20 and 22.

3.In answer to paragraph 14 under defendant’s conduct it is alleged Defendant

organized and filed as a Limited Liability Corporation in the State of New York. This is

not correct. Defendant organized and filed as an LLC in North Carolina. All other

allegations contained in paragraph 9 are correct.

4.In answer to paragraphs 15 and 16 the “infringing products” have yet to be determined

to be infringing. All other allegations in paragraph 15 and 16 are correct. Motion for

Discovery has also been filed herein for the court to decide based upon evidence if the

said mark “Sweet Lorraine’s” has in fact been infringed upon.

First Cause of Action

Trademark Infringement – 15 U.S.C. § 1114

5. Defendant admits to the allegations in paragraph 23.

6. Defendant denies all allegations in paragraphs 25, 26, 27, 28, 29, 30 and 31.

7. Defendant denies having sufficient knowledge or information to form a belief as to the

allegations contained in Paragraph 24 of the complaint, and thereupon denies said

allegations.

First Affirmative Defense

Defendant did use the name “Sweet Lorraine’s Bakery”, however, Ms. Donnelly did not

have knowledge that “Sweet Lorraine’s” was a registered patent by Mr. Sawyer of

Sweet Lorraine’s Systems, LLC. Lorraine is a common name, and therefore, there must

be other food establishments bearing the name “Lorraine’s”. Therefore, this would

negate the claims of Federal Trademark Dilution – 15 U.S.C. § 1125(c) in the Second

Cause of Action. Under Trademark Infringement – 15 U.S.C. § 1114 there is a series of

eight (8) different criteria that must be met to prove trademark infringement. Based upon

the Motion for Inspection, the court shall base their determination and findings on the

evidence submitted in comparison to these guidelines to make their decision.

Second Cause of Action

Federal Trademark Dilution – 15 U.S.C. § 1125(c)

8. Defendant admits to allegations in paragraph 32.

9.Defendant denies all allegations in paragraphs 34, 35, 36, 37 and 38.

10. Defendant denies having sufficient knowledge or information to form a belief as to

the allegations contained in Paragraph 33 of the complaint, and thereupon denies said

allegations.

Third Cause of Action

False Designation of Origin – 15 U.S.C. § 1125(a)

11.Defendant admits to allegations in paragraph 39.

12.Defendant denies all allegations in paragraphs 40, 41, 42, 43, and 45.

13. Defendant denies having sufficient knowledge or information to form a belief as to

the allegations contained in Paragraph 44 of the complaint, and thereupon denies said

allegations

Fourth Cause of Action

Common Law Trademark Infringement

14. Defendant admits to allegations in paragraph 46.

15. Defendant denies all allegations in paragraphs 47, 48, 49, 50 and 51.

Fifth Cause of Action

Common Law Unfair Competition

16. Defendant admits to allegations in paragraph 52.

17. Defendant denies all allegations in paragraphs 53, 54, 55, 56 and 57.

Wherefore, defendant prays

1. The court enter judgement to dismiss this complaint

2. The defendant be awarded all costs incurred herein; and

3. The defendant be awarded such other and further relief as the court may deem

just.

Signed this 20th day of

April 2017

(Signature of Lisa Howard)

Lisa Howard, Esq.

Howard & Mills, P.C.

123 Main Street

Charlotte, NC 28277

UNITED STATES DISTRICT COURTEASTERN DISTRICT OF MICHIGAN

___________________________________________

SWEET LORRAINE’S SYSTEMS, LLC.1100 Snarl Avenue, Suite 310Detroit, MI 42330

Plaintiff, REQUEST FOR INSPECTION

v. Index No. 2013-77569

SWEET LORRAINE’S BAKERY, LLC.220 West BoulevardCharlotte, NC 28277

Defendant.___________________________________________

To: Marsha Jabber, Attorney of record for the plaintiff Sweet Lorraine’s Systems,

LLC., in the above styled and numbered clause

Pursuant to Rule 34 of the Federal Rules of Civil Procedure, Sweet Lorraine’s

Bakery, LLC., defendant in the above cause, requests that Sweet Lorraine’s Systems,

LLC., plaintiff in the above cause, produce for inspection and copying by Sweet

Lorraine’s Bakery, LLC., within thirty (30) days of service hereof or at such other time as

may be agreed upon by counsel for the parties, originals or legible copies of the

documents and electronically stored information in the formats specified below

requested herein. You are also requested to serve upon defendant within thirty (30)

days after service of this request a written response in accordance with Rule 34 of the

Federal Rules of Civil Procedure.

1. All statements of the client, Christine Donnelly and/or any principal, agent,

employee or representative or anyone thought to be a principal, agent, employee

or representative of Sweet Lorraine’s Bakery, LLC.

2. All agreements, documents, electronically stored information and reports that

constitute all communication in any forms with Sweet Lorraine’s Bakery, LLC by

Sweet Lorraine’s Systems, LLC.

3. All agreements, documents, electronically stored information and reports

showing Sweet Lorraine’s Systems, LLC, showing but not limited to all bank and

financial information from January 2011 to present.

4. All agreements, documents, electronically stored information and reports

showing all actual incidents of confusion by consumers.

5. All agreements, documents, electronically stored information and reports

showing proof of all methods and sources in which products are advertised by

Sweet Lorraine’s Systems.

6. All agreements, documents, electronically stored information and reports

showing how all sales by Sweet Lorraine’s Systems are sold.

7. All agreements, documents, electronically stored information and reports

showing all products offered by Sweet Lorraine’s Systems

8. All agreements, documents, electronically stored information and reports that

show all damages caused to Sweet Lorraine’s Systems, LLC by intentional acts

on behalf of Sweet Lorraine’s Bakery, LLC.

9. All company logos and motifs as used by Sweet Lorraine’s Systems, LLC

10.Photos and Photo documented proof to represent the trade dress of Sweet

Lorraine’s Systems, LLC.

11.Any other related documents, agreements, business memorandums such as but

not limited to menus, letterhead, business card and other verification of the like to

prove the similarities in the said infringement.

Signed this 20th day of

April 2017

(Signature of Lisa Howard)

Lisa Howard, Esq.

Howard & Mills, P.C.

123 Main Street

Charlotte, NC 28277

TRIAL BRIEF IN SUPPORT OF DEFENDANTS MOTION TO EXCLUDE

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SWEET LORRAINE’S SYSTEMS, LLC.

v.

SWEET LORRAINE’S BAKERY, LLC

Index No. 2013-77569

UNITED STATES DISTRICT COURTEASTERN DISTRICT OF MICHIGAN

___________________________________________

SWEET LORRAINE’S SYSTEMS, LLC.1100 Snarl Avenue, Suite 310Detroit, MI 42330

Plaintiff, TRIAL BRIEF IN SUPPORT OF

v. DEFENDANTS MOTION TO

SWEET LORRAINE’S BAKERY, LLC. EXCLUDE220 West BoulevardCharlotte, NC 28277 Index No. 2013-77569

Defendant.___________________________________________

TRIAL BRIEF IN SUPPORT OF DEFENDANTS MOTION TO EXCLUDE

Introduction

Sweet Lorraine’s Services, LLC. sues as plaintiff in the above captioned case against

Sweet Lorraine’s Bakery, LLC, defendant. Alleging Sweet Lorraine’s Bakery, LLC has

knowingly and willingly committed the acts of Trademark Infringement – 15 U.S.C. §

1114, Federal Trademark Dilution – 15 U.S.C. § 1125(c), False Designation of Origin –

15 U.S.C. § 1125(a), Common Law Trademark Infringement and Common Law Unfair

Competition.

At the onset of this litigation we prepared and served a Rule 34 Request for Inspection

on the Plaintiff’s counsel that demanded the Plaintiff provide and all statements of our

client Ms. Donnelly. Additionally, the Plaintiff should have been disclosed this

information pursuant to Rule 26(a)(1)(A)(ii) of the Federal Rules of Civil Procedure. The

Plaintiff failed to disclose this information to us within the time frame as was ordered by

the court, however had it in their possession since before the case had been brought to

court for litigation. Plaintiff’s counsel knowingly failed to disclose this information and

tried to withhold evidence from being inspected until one week prior to the court trial.

We are asking the court that pursuant to Rule 37 (c)(1) and Rule 37 (d)(1)(A)(ii) of the

Federal Rules of Civil Procedure that this piece of evidence is suppressed based on

failure to deliver evidence within the deadlines as ordered by this court and in an

attempt for an unfair trial due to not allowing us to inspect documents as set forth in the

Federal Rules of Civil Procedure as mentioned above.

Statement of Facts

Eight months ago, Ms. Donnelly sought the help of Howard & Mills, PC regarding

incorporation of her family owned business Sweet Lorraine’s Bakery, LLC out of

Charlotte, NC. This bakery specializes in French and Italian-inspired pastries, cakes,

cookies and artisan breads. This business is a one store location. They feature a daily

menu, create special order occasion cakes and have a website, but does not offer any

sales through the online marketplace. All advertising is done through Facebook, Twitter,

their webpage and by word of mouth.

Two months ago, Ms. Donnelly was contacted by Mr. Greg Sawyer. Mr. Sawyer and his

wife operate Sweet Lorraine’s Café and Bar in Detroit and have two locations. Mr.

Sawyer is the vice president of Sweet Lorraine’s Systems, LLC in Detroit, MI. Mr.

Sawyer’s Café and Bar is a restaurant that specializes in American fare and includes

some baked goods on their menu. The Café and Bar offers a website in which they sell

salad dressings and apparel that are sold throughout the country. Mr. Sawyer recently

began pursuing a new franchise called “Sweet Lorraine’s Mac n’ Cheez Kitchen” and

currently have two locations open in Detroit suburbs and allegedly had been

approached by an individual from North Carolina regarding expanding into North

Carolina, however; the exact location was not mentioned.

Mr. Sawyer contacted Ms. Donnelly because he and his wife have a trademark on the

name “Sweet Lorraine’s” for all restaurants, catering and baking services in the United

States. This trademark has been confirmed with the United States Patent and

Trademark Office. Mr. Sawyer demanded our client, Ms. Donnelly to change the name

of her business or he would commence a lawsuit against if she does not follow his

demands.

Ms. Donnelly was advised not to change the name of her business based upon previous

court rulings in this district, we feel Ms. Donnelly has not infringed the trademark of Mr.

Sawyer.

Two months following this conversation, Ms. Donnelly received an email from Mr.

Sawyer’s attorney, Marsha Jabber. Attached to the email was a Summons and

complaint against Sweet Lorraine’s Bakery, LLC, which was filed in Wayne County

Circuit Court in the State of Michigan. Ms. Donnelly nor any employee of Ms. Donnelly

were personally served with this summons and complaint, nor does it appear there had

been any attempt of legitimate service of process. Lastly, it appears Mr. Sawyer’s

attorney wrongly filed this court in Michigan State Court, not Federal District Court.

Ms. Donnelly was just recently granted permission to remove this case to the United

States District court because it had originally been filed in the wrong jurisdiction.

Argument

Trademark Infringement – 15 U.S.C. § 1114

In Mr. Sawyer’s claim, item 24, he claims (his business is) “highly distinctive and

arbitrary.” A few examples of arbitrary marks are EXXON, Kodak and Apple. When

people hear these words, these words are not related at all to the products they

promote, but almost everyone knows Kodak sells cameras and things related to

photography in general. In this world, there are probably a very large number of people

named Lorraine. There are also a great number of bakeries and bars. Just because

someone names their establishment the same name five states away, does not mean it

will cause any confusion. The main idea of trademark infringement is to cause confusion

among consumers.

Mr. Sawyer further notes the “Trademark is confusingly similar”, and goes on to state

Ms. Donnelly “intentionally and knowingly” had been using his trademark name of

Sweet Lorraine’s to cause confusion. This is incorrect. In fact, there had been not one

actual incident of confusion between any consumers. Ms. Donnelly had not even come

to know about another “Sweet Lorraine’s” until Mr. Sawyer had first contacted her,

which she immediately sought legal assistance from counsel of Howard & Mills, PC.

When deciding if one has committed trademark infringement, under 15 U.S.C 1114(1)

there are eight factors in which mainly determine if use of a trademark causes

confusion. Those eight factors are

1. The strength of the plaintiff’s mark;

2. The relatedness of the service;

3. The similarity of the marks;

4. The evidence of actual confusion;

5. The marketing channels used;

6. The likely degree of purchaser care;

7. The defendant’s intent in selecting the mark; and

8. The likelihood of expansion of the product lines.

In the case of Champions Golf Club, Inc. v. Champions Golf Club, Inc., 78 F.3d 1111

(6th Cir. 1996) both owners of these golf clubs were named the same name, and used

the same ways to market and promote their businesses. The court ruled that there was

no infringement because even though they both sold golf memberships and were

named the same name, consumers did not confuse them. The two business owners

were not in the same geographic location. These two companies had different buildings,

course layout, and even though there were a few known acts of confusion, it was not

sufficient to the court because the confusion was not between consumers. The court

also found there was no actual intent on the behalf of either party to make others

believe they were affiliated with each other or trying to take business from the other in a

deceitful or fraudulent manner.

Even though Sweet Lorraine’s Bar and Café and Sweet Lorraine’s Bakery use the same

root words of Sweet Lorraine’s, they are completely different. Logically When one sees

the words café or bar they assume the business sells beverages, not cakes. The two

businesses are in completely different states and geographic locations. The products

are very different, advertise differently and sell their products differently. Mr. Sawyer

advertises sells his products through internet sales, whereas Ms. Donnelly only

advertises her services online. Sales through Ms. Donnelly’s business are done only by

people personally coming to her store and her products are well known by the local area

in which her business is located. Based upon these facts and comparison of the law at

hand, confusion is not likely, and to date it has been proven that there had never been

an actual incident of confusion. In the case Champions Golf Club, Inc. v. Champions

Golf Club, Inc., 78 F.3d 1111 (6th Cir. 1996), there had been a few isolated incidents of

confusion, but did not show a great enough significance in this court to hold that a

likelihood of confusion exists because people are familiar with each different

establishment due to the level of purchaser care.

Federal Trademark Dilution – 15 U.S.C. § 1125(c)

Mr. Sawyer claims Ms. Donnelly has committed Federal Trademark Dilution – 15 U.S.C.

§ 1125(c). Trademark dilution is where you are using a name intentionally to make the

other person’s name less unique. In the case of Daddy's Junky Music Stores, Inc. v. Big

Daddy's Family Music Ctr., 109 F.3d 275 (6th Cir. 1997) The district court found that the

“Daddy’s Music Store” and the “Daddy’s” marks are arbitrary marks because daddy

does not relate to music or musical instruments, however; The U.S. Patent & Trademark

Office revealed fifteen registered marks with the same phrase of “Daddy’s” and another

three marks pending registration. The mark “Daddy’s” alone is therefore weakened due

to the dilution of the mark. This is similar to Sweet Lorraine’s. It’s obvious Lorraine is a

common name that many women are named. Most people also associate sweets such

as cakes and pies to being sweet. Simply because Lorraine is a common name, it still

does not prove the use of the same root name is enough to cause a likelihood of

confusion. In the case of Daddy's Junky Music Stores, Inc. v. Big Daddy's Family Music

Ctr., 109 F.3d 275 (6th Cir. 1997) These two businesses both used the root name

“Daddy’s” and both sold musical instruments. These two businesses were in the same

geographic location, and there still had not been actual confusion between the two

businesses. Again, people knew the difference between the two different businesses

despite the same root word of “Daddy’s” and their level of purchaser care when

spending money.

False Designation of Origin – 15 U.S.C. § 1125(a)

In this cause of action, Mr. Sawyer is again alleging confusion amongst consumers. The

court would require Mr. Sawyer to prove with financial records showing he lost revenue

because of Ms. Donnelly’s business and prove incidents of actual confusion. To my

knowledge there has been none, and the case of Champions Golf Club, Inc. v.

Champions Golf Club, Inc., 78 F.3d 1111 (6th Cir. 1996) there had been actual acts of

confusion, however there had only been a few isolated incidents and they weren’t by

consumers, the confusion was by golf ball suppliers. The court ruled there had not been

any infringement. I also feel since this case was held in the same court district, using

this case as primary law and holding mandatory authority, the court should also rule the

same way.

Common Law Trademark Infringement

In this action, once again, Mr. Sawyer is claiming that Ms. Donnelly caused confusion

amongst consumers, and on the record, to date there has been none. Mr. Sawyer

needs to prove to the court that there has been actual confusion, and prove that he has

lost revenue because Ms. Donnelly has allegedly used his trademark to confuse

consumers because there has been no confusion.

Common Law Unfair Competition

This cause of action is further alleging that Ms. Donnelly has knowingly and intentionally

used the mark “Sweet Lorraine’s” to intentionally confuse buyers and defraud

consumers by making them believe she is affiliated with Mr. Sawyer and knowingly

benefit financially from Mr. Sawyers hard work and reputation. This is not accurate

whatsoever, and the evidence will more than adequately prove this.

Conclusion

Based upon the facts herein, and upon counsel of the defendant knowingly and willingly

attempting to withhold documents required for inspection under Rules 26, 34, and 37 of

the Federal Rules of Civil Procedure, we request the court to exclude the statement of

Ms. Christine Donnelly due to willful failure to comply and intent to conduct an unfair trial

by withholding evidence.

Additionally, the defendant prays

1. The court enter judgement to dismiss this complaint

2. The defendant be awarded all costs incurred herein at the expense of the

plaintiff; and

3. The defendant be awarded such other and further relief as the court may deem

just.

Signed this 20th day of

April 2017

(Signature of Lisa Howard)

Lisa Howard, Esq.

Howard & Mills, P.C.

123 Main Street

Charlotte, NC 28277

Portfolio Reflection PLEG235

This project has been a lengthy challenge. Through completion of this project new

things are learned each step of the way, and this builds upon everything we have

learned to make our knowledge even greater.

Through completion of this project I have learned many how to draft many different legal

documents. I also learned how to research more ways through the use of secondary

sources, and how to find local civil rules. We continue to build our knowledge of

terminology and formatting of legal documents in each class.

I can apply what I have learned in this class to be more successful in the workforce

because I have already learned the terminology and writing techniques associated with

how to correctly draft legal documents. I also have learned that we must follow rules of

procedure.

My work process has changed because I have learned that if I am frustrated, I know

that I can always ask for help. In previous classes I had not been so willing to do this,

but I found asking for help is a lot less stressful, and it help you gain a better

understanding.

If I had to complete projects like this in the future I would try to always have a backup

way to get online to access assignments or documents. I was behind a lot of this

session because of weather related incidents that were unavoidable and if I had a way

to access the internet in different ways, or more options I may have done a better job

than I did. I also will continue to request the assistance of an instructor if I don’t

understand something, this was the best that had helped me this course.

The advice I would give to a new student just starting this project is to always try to get

work done when it is first assigned because things can happen that are totally out of our

control sometimes and we cannot access our work. When we get behind in work, it is

extremely difficult to get caught back up. Another bit of advice is to always ask the

instructor if something isn’t clear. I have received a lot of help from the instructor. I also

suggest saving documents that are needed to your computer so you can access them

when you have no way to access the internet. This was something that I had not done,

and I had no way to access important articles I needed to do my work while my power

and internet were taken out by a windstorm. It would have been helpful if I had some of

these documents printed, or a way to access them on my phone.

All the program outcomes were met fully through the completion of this project. We

constantly learn new legal terminology, new ways to research law and how to draft legal

documents, and everything we have learned in this course, we communicate in our

legal writings.

Overall this class has been a great class I learned a lot from. I know this class will be

used in my new legal profession. Some parts of this course were very challenging, but it

is key to remember why you wanted your degree to begin with. Dreams can become a

reality and you can have and be anything you want if you try and want it bad enough.

Life isn’t easy, but usually what is easy isn’t worth it. I know my degree with be worth

every effort and struggle I have had.