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HARLES
OLMAN
LAW
USDC SDNY
DOC:.JMENT
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during which I have represented the Defendant and in light of opposing counsel's
DATE FILED:__j0Jd7/IY
PlLC
I phrase my request in this manner in an effort to avoid misconstruing the intended interaction of this
Court's Individual Rules of Practice and the procedures specified in Standing Order l 1-MISC-00388, In re:
Pilot Project Regarding Case Management Techniques for Complex Civil Cases in the Southern District of
New York, I :14-CV-08011-JGK, Docket Entry No. 3, at 17 (filed Oct. 3, 2014) ("A party intending to file a
(pre-trial] motion governed by the preceding paragraph (other than Rule 12(b) motions must request by
letter ... a pre-motion conference in advance of filing any such motion.") (emphasis added)~ id. ("Motions
pursuant to Rule 12(b) are subject to a different procedure [than other pre-trial motions]. The Court may
consider one of the following options"-specifically, (a) not requiring a pre-motion conference, (b)
requinng the parties to exchange letters in the hope of curing pleading deficiencies, or (c) holding a
conference after the motion is made.) The Standing Order provides, of course, that it applies only to a
designated case "unless the judge to whom [a qualifying] case is assigned determines otherwise," id. at I,
but the Order has been entered on the docket of this case in full. As the applicable Local Rules and ECF
Rules likewise defer to each judge's preferences concerning the logistics of motion practice, they do not
provide additional guidance in this area. Thus, as discussed below, if it is possible to proceed without a
pre-motion conference, I request that the Court do so, especlally if no addrtional time will be provided.
qualified consent, but also because issues to be raised in the forthconring motion are
relatively complex, involving (1) arguments that Plaintiff has not properly invoked-and
cannot properly invoke- - the Lanham Act, as a threshold matter, in this dispute; (2) a
demonstration of the implausibility/non-cognizable nature of Plaintiff's claims, as well as
the dispositive applicability, as a matter oflaw, of both statutory and judge-made
defenses to Plaintiff's claims for federal and state trademark infringement and dilution;
(3) an analysis showing why all of Plaintiff's claims are foreclosed, as a matter of law, by
Defendant's First Amendment rights; and (4) arguments concerning the preclusion of
liability in this case under both constitutional and statutory-interpretation principles that
govern trademark-copyright interface. Please note that this is a non-exhaustive, non-final
list of the bases for my client's planned Motion to Dismiss under Rule 12(b)(6).
As mentioned above, Plaintiff's counsel has consented to the following filing and
briefmg timetable for Defendant's 12(b)(6) Motion, subject to the Court's approval:
November 7, 2014:
November 21, 2014: Deadline for Plaintiff to file Opposition to Motion to Dismiss
November 28, 2014: Deadline for Defendant to file Reply Brief in Support of Motion
Plaintiff's counsel has stated that a pre-motion conference will be necessary in
this case, noting that the proposed dates must accord with the Court's scheduling of such
a conference. However, for reasons identified in footnote 1, it is not clear to me that a
pre-motion conference is, in fact, in required here. Further, while I certainly do not
object to the Court's scheduling of a pre-motion conference, I do informally request that
the Court decline to order such a conference in this case, as the arguments Defendant
plans to make are best suited a full analysis on the papers and, as the Court sees fit, in
post-filing oral argument.
Respectfully submitted,