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MODEFINE v. BURLINGTON COAT FACTORY WAREHOUSE CORP

March 28, 1996

G.A. MODEFINE, S.A., et. al., Plaintiff, against BURLINGTON COAT FACTORY WAREHOUSE CORPORATION, et al., Defendants.


The opinion of the court was delivered by: MOTLEY

 BACKGROUND

 Plaintiffs, G.A. Modefine S.A., et al., manufacture men's ties and other consumer items under the trademark "Giorgio Armani" and other related marks. (Second Amended Complaint (hereinafter, "Complaint") at 14-16.) Defendant MXC, Inc. is alleged to be a New Jersey corporation, with its principal place of business in New York. (Complaint at P 3G.) Defendant Martin Mink ("Mink") is alleged to be "an individual resident of New York having an office and place of business at the offices of [MXC, Inc.] and is a conscious, active and dominant force behind the activities of MXC as complained of herein." (Id. at P 3H.) (Hereinafter, collectively, "MXC").

 Plaintiffs allege that MXC and other defendants in this action "commenced the manufacturing, importation, distribution, offering for sale, and/or sale in commerce of men's ties, and possibly other items, bearing counterfeits and/or infringements of one or more" of plaintiffs' trademarks. (Id. at P 10.)

 By motion dated September 29, 1995, plaintiffs moved for summary judgment against MXC, stating that there were no genuine issues of material fact regarding MXC'S liability on plaintiffs' federal claims of trademark infringement and false designation of origin as well as their state law claims of unfair competition.

 On October 12, 1995, a pre-trial conference was held in the instant consolidated proceeding. Counsel for MXC failed to attend. *fn1" Counsel for plaintiffs' informed the court that MXC was not complying with plaintiffs' discovery requests and was "boycotting" the litigation. (R. (Oct. 12, 1995) at 6.) The court ordered that MXC would have until October 16, 1995 -- the last day upon which opposition to plaintiffs' motion for summary judgment could be filed -- to respond to the motion, or default judgment would be entered. (Id. at 7; Pre-Trial Schedule and Order, dated October 12, 1995, (hereinafter "October 12th Order") at P 5). The court also noted that if MXC failed to respond to the motion by this date, "other penalties for failure to appear here at these conferences" would be considered. (R. (Oct. 12, 1995) at 7.)

 At the conference held on this date, the court also heard oral argument on the request of other defendants in the underlying proceeding that the court compel plaintiffs to allow the deposition of a witness from Italy, Monica Rossi (hereinafter "Rossi"), who could provide testimony regarding the quality of the purportedly counterfeit ties at issue in this case. After extensive oral argument, the motion was granted and plaintiffs directed to produce this witness and products relevant to the litigation. (See October 12th Order at P 14.) At the request of counsel for several of the defendants present at the October 12th conference, the court granted them an extension of time to respond to plaintiffs' motions, for summary judgment against their clients. (Id. at P 15).

 By letter dated October 13, 1995, counsel for MXC stated that he would "be hand delivering to the Court on October 16, 1995, a Certification in opposition" to plaintiffs' motion for summary judgment. (Kadish Letter, dated October 13, 1995, at 1.)

 Despite this promise, MXC failed to submit opposition to the motion by the court-imposed deadline of October 16, 1995.

 In reply to the opposition submitted by MXC, plaintiffs noted their objections both to MXC's late filing as well as the form of MXC's opposition. (See Rep. Mem. in Supp. of Sum. J.; Lindenauer Letter, dated October 19, 1995).

 By letter dated November 14, 1995, counsel for MXC asked the court to "vacate" that portion of the October 12th Order that required MXC to submit its opposition to the motion for summary judgment by October 16, 1995. (Kadish Letter, dated Nov. 14, 1995, at 1.) Not only did MXC's counsel fail to articulate a legal basis for this request, his letter contains nothing more than explicit references to arguments proffered by other defendants in opposition to the wholly independent summary judgment motions made against them by plaintiffs. Counsel also stated: 1) that it would be "inequitable and unfair" to consider the late filing of MXC's opposition where other defendants were given an extension of time to respond to the motions made against them; and, 2) that a ruling on plaintiffs' motion against MXC would be "premature" given that the deposition of plaintiffs' witness from Italy was still pending. (Id. at 2.)

 In response, counsel for plaintiffs reiterated their objections to MXC'S opposition papers and identified MXC'S other delinquent acts since the October 12, 1995 conference. (Lindenauer Letter, dated November 17, 1995, at 2-3.) Plaintiffs also highlighted for the court that it was other defendants that had sought to compel the deposition of Rossi and that these defendants had reached a tentative settlement with plaintiffs in the underlying action. Accordingly, plaintiffs stated that they would not ...


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