Mortgage Electronic Registration Systems, Inc. v. Brosnan et al

Filing 86

STIPULATION PERMANENT INJUNCTION, JUDGMENT. Signed by Judge ARMSTRONG on 7/27/10. (lrc, COURT STAFF) (Filed on 7/27/2010)

Mortgage Electronic Registration Systems, Inc. v. Brosnan et al

Doc. 86

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 MORGAN, LEWIS &
BOCKIUS LLP
S A N FR A N C I S C O A T T O R N E Y S A T LAW

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., a Delaware corporation, Plaintiff, vs. JOHN BROSNAN, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., a California corporation Defendants. Case No. C 09-3600 SBA STIPULATED PERMANENT INJUNCTION AND JUDGMENT AGAINST COMPANY DEFENDANT AND [PROPOSED] ORDER

Plaintiff Mortgage Electronic Registration Systems, Inc. ("MERS"), Defendant John Brosnan ("Mr. Brosnan") and Defendant XZVR, Inc., formerly known as Mortgage Electronic Registration Systems, Inc. ("Company Defendant") (collectively the "Parties") have entered into an agreement to resolve this action (hereinafter the "Settlement Agreement"), with reference to the following facts: A. Plaintiff Mortgage Electronic Registration Systems, Inc. ("MERS") filed an ex

parte motion for temporary restraining order and order to show cause on August 6, 2009. On
DB1/64393436.2

STIPULATED INJUNCTION AND JUDGMENT AGAINST COMPANY DEFENDANT AND [PROPOSED] ORDER C 09-01922 SBA

Dockets.Justia.com

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
MORGAN, LEWIS & BOCKIUS LLP
A T T O R N E Y S A T LAW S A N FR A N C I S C O

August 12, 2009, the Court entered a temporary restraining order prohibiting defendants from using MERS' name and accepting service of process of documents intended for MERS, and requiring defendants to forward any documents in their possession intended for MERS to MERS' counsel (hereinafter the "TRO"). The TRO required the defendants to show cause on August 26, 2009, why a preliminary injunction should not be entered against them. The Court conducted a hearing on MERS' motion for a preliminary injunction on August 26, 2009. The Court issued a Preliminary Injunction on September 4, 2009 ("PI Order"). B. The Court issued a Contempt Order on November 5, 2009, against Mr. Brosnan

and Company Defendant for their failure to comply with the PI Order. Mr. Brosnan is the sole owner of Company Defendant. Company Defendant changed its name to XZVR, Inc., effective on March 1, 2010, as shown in the document attached as Exhibit A hereto. C. D. Default was entered as to Company Defendant on November 19, 2009. MERS and Company Defendant have entered into a Settlement Agreement and,

pursuant to the Settlement Agreement, they have agreed to the terms of this Stipulated Permanent Injunction and Default Judgment. Pursuant to the same Settlement Agreement, MERS and Mr. Brosnan will stipulate to dismissal of the remaining claims in this action upon Mr. Brosnan's satisfaction of the obligations in Paragraph 1 of the Settlement Agreement. MERS and Company Defendant stipulate, and the Court hereby orders, as follows: (1) Company Defendant, together with any entity under its control or anyone acting on

its behalf in any capacity, shall not engage in, commit or perform, directly or indirectly, any of the following acts: (a) Using or applying to register MORTGAGE ELECTRONIC

REGISTRATION SYSTEMS (with or without an "S"), MERS or any confusingly similar designations, as a mark, business name, domain name, email address, meta-tag, keyword, or otherwise except for what strictly qualifies as nominative fair use, using either names or marks only to refer specifically to the Delaware entity that is a plaintiff in this action, and only as much as is required to convey that identification and only in such manner so as not to cause likelihood of confusion; Company Defendant cannot claim any ownership rights in either designation; and
DB1/64393436.2

28

2

STIPULATED INJUNCTION AND JUDGMENT AGAINST COMPANY DEFENDANT AND [PROPOSED] ORDER C 09-01922 SBA

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 MORGAN, LEWIS &
BOCKIUS LLP
S A N FR A N C I S C O A T T O R N E Y S A T LAW

(b)

Accepting service of process or other documents intended for MERS,

including summonses, complaints, subpoenas, or any other legally-required notices naming or involving mortgage liens held by Mortgage Electronic Registration Systems, Inc., a Delaware corporation. (2) Company Defendant shall deliver or cause to be delivered to MERS all documents

and things that it, or any person or entity under its control or anyone acting on its behalf in any capacity, receives that were addressed to or otherwise intended for MERS. Such documents shall be sent within three business days of receipt, and shall be sent directly to MERS' in-house counsel, by first-class mail or other mutually agreeable method, addressed as follows: Mortgage Electronic Registration Systems, Inc. c/o Joseph J. Patry, Counsel 1818 Library Street, Suite 300 Reston, VA 20190 (3) This Court, or a magistrate designated by the Court, shall retain jurisdiction with

respect to enforcement of this Stipulated Permanent Injunction and the Settlement Agreement, the terms of which are incorporated herein by reference. The Court retains broad discretion to impose sanctions, including fines, an award of attorneys' fees, issue sanctions, and/or imprisonment, in the event that Company Defendant fails to comply any of the terms of this Order. (4) The above terms shall supersede the terms of the Preliminary Injunction with

respect to Company Defendant. (5) The Parties hereby stipulate that judgment shall be entered against Company

Defendant pursuant to the terms herein. // // // // // //
DB1/64393436.2

3

STIPULATED INJUNCTION AND JUDGMENT AGAINST COMPANY DEFENDANT AND [PROPOSED] ORDER C 09-01922 SBA

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
MORGAN, LEWIS & BOCKIUS LLP
A T T O R N E Y S A T LAW S A N FR A N C I S C O

Each Party shall bear its or his own costs and attorneys' fees.

Dated: March ____, 2010

MORGAN, LEWIS & BOCKIUS LLP

By Carla B. Oakley Attorneys for Plaintiff MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. Dated: March ____, 2010 DUANE TUCKER, ESQ.

By Duane Tucker Attorney for Company Defendant XZVR, Inc., a California corporation Dated: March ____, 2010 John Brosnan, as sole owner of defendant XZVR, Inc., a California corporation ___________________________________

Having considered the Stipulated Permanent Injunction and Judgment, the Court finds no just reason for delay in entering a permanent injunction and judgment against defendant Mortgage Electronic Registration Systems, Inc., a California corporation. PURSUANT TO STIPULATION, IT IS SO ORDERED.

Dated: July 27, 2010

__________________________________ The Honorable Saundra Brown Armstrong United States District Judge

28
DB1/64393436.2

4

STIPULATED INJUNCTION AND JUDGMENT AGAINST COMPANY DEFENDANT AND [PROPOSED] ORDER C 09-01922 SBA

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
MORGAN, LEWIS & BOCKIUS LLP
A T T O R N E Y S A T LAW S A N FR A N C I S C O

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., Plaintiff, v. JOHN BROSNAN et al, Defendant. / Case Number: CV09-03600 SBA CERTIFICATE OF SERVICE I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on July 27, 2010, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.

John Brosnan 848 North Rainbow Boulevard #1643 Las Vegas, NV 89107 Robert Edwin Jacobsen P.O. Box 1386 Lafayette, CA 94549 Dated: July 27, 2010 Richard W. Wieking, Clerk By: LISA R CLARK, Deputy Clerk

28
DB1/64393436.2

5

STIPULATED INJUNCTION AND JUDGMENT AGAINST COMPANY DEFENDANT AND [PROPOSED] ORDER C 09-01922 SBA