II. DEFENDANT'S STATE LAW COUNTERCLAIMS SHOULD BE DISMISSED WITHOUT PREJUDICE
Defendant's third, fourth and fifth counterclaims raise state, not federal, claims.
A district court may exercise pendent jurisdiction over state law claims "whenever the federal-law claims and state-law claims in the case 'derive from a common nucleus of operative fact' and are 'such that [a plaintiff] would ordinarily be expected to try them all in one judicial proceeding.'" Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 349, 108 S. Ct. 614, 618, 98 L. Ed. 2d 720 (1988) (quoting United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S. Ct. 1130, 1138, 16 L. Ed. 2d 218 (1966)). The decision whether to exercise pendent jurisdiction, however, is within the discretion of the district court, which should consider such factors as "judicial economy, convenience, fairness and comity." Carnegie-Mellon, 484 U.S. at 349-50, 108 S. Ct. at 618-19; Block v. First Blood Assocs., 988 F.2d 344, 351 (2d Cir. 1993).
When the federal claims are dismissed before trial, the Supreme Court has stated that the District Court ordinarily should decline the exercise of jurisdiction by dismissing the state claims without prejudice. Carnegie-Mellon, 484 U.S. at 350 n.7, 108 S. Ct. at 619 n.7 ("in the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine -- judicial economy, convenience, fairness, and comity -- will point toward declining to exercise jurisdiction over the remaining state-law claims."); Gibbs, 383 U.S. at 726, 86 S. Ct. at 1139 ("if the federal claims are dismissed before trial . . . the state claims should be dismissed as well.").
Thus, I recommend that in the exercise of its discretion, the Court dismiss defendant's pendent state law counterclaims without prejudice.
III. BUTI'S MOTION TO STRIKE AFFIDAVITS IS GRANTED IN PART AD SANCTIONS ARE GRANTED
Plaintiff Buti has moved to strike two of defendant's affidavits and has requested sanctions.
The Court agrees that the affidavit of defendant's counsel Mr. Jaroslawicz is incompetent and impermissible to the extent it purports to set forth facts. "Attorneys' affidavits not based upon personal knowledge have been held not to comply with Rule 56(e) at least since Automatic Radio Manufacturing Co. v. Hazeltine Research, Inc., 339 U.S. 827, 831, 70 S. Ct. 894, 896, 94 L. Ed. 1312 (1950), a position this court has frequently reiterated." Kamen v. American Tel. & Tel. Co., 791 F.2d 1006, 1010 (2d Cir. 1986) (citing cases); accord, e.g., Burger v. Health Ins. Plan of Greater N.Y., 684 F. Supp. 46, 54 (S.D.N.Y. 1988); 10A C. Wright, A. Miller & M. Kane, Federal Practice & Procedure § 2738 at 495-96 (2d ed. 1983).
Accordingly, the Jaroslawicz affidavit is struck, except for its submission of exhibits containing discovery material (the Buti and Santambrogio deposition transcripts and documents produced in discovery).
As for the Kates Affidavit, whether or not it contains hearsay, the Court need not strike it because nothing in it creates a dispute as to an issue of material fact. The Court also declines to strike defendant's counter Rule 3(g) statement.
Plaintiff's request for sanctions is granted to the limited extent of the reasonable cost of researching and preparing that portion of the motion to strike dealing with defense counsel's affidavit. Plaintiff's counsel shall file an affidavit, attaching contemporaneous time records, if counsel desires to pursue the sanctions request. Such affidavit must be submitted within ten days hereof and any response from defendant's counsel must be submitted within 7 days thereof. (All papers shall be served on opposing counsel by hand, fax, or by next day delivery service.)
For the reasons set forth above, plaintiff Buti is the senior user of the mark "Fashion Cafe" in the United States. I recommend that the Court grant plaintiff Buti summary judgment on its declaratory judgment claims and further recommend that the Court grant plaintiff summary judgment dismissing defendant Impressa Perosa's federal trademark claims with prejudice and state law claims without prejudice. Finally, I also recommend that the Court deny defendant Impressa Perosa's cross-request for summary judgment.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from receipt of this Report to file written objections. See also Fed. R. Civ. P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Allen G. Schwartz, 500 Pearl Street, Room 1350, and to the chambers of the undersigned, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Schwartz. Failure to file objections may result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 130 L. Ed. 2d 38, 115 S. Ct. 86 (1994); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S. Ct. 825, 121 L. Ed. 2d 696 (1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).
Dated: New York, New York
July 18, 1996
Andrew J. Peck
United States Magistrate Judge