CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA v. SERVIN et al

Filing 34

REPLY to opposition to motion re 32 MOTION for Leave to File Supplemental Brief in Opposition to Defendants' Motion to Dismiss First Amended Complaint filed by CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA. (Mueller, Michael)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
)
CHAMBER OF COMMERCE OF THE
)
UNITED STATES OF AMERICA,
)
)
Plaintiff,
)
)
) Case No.: 1:09-cv-02014 - (RWR)
v.
)
JACQUES SERVIN (aka ANDY BICHLBAUM )
)
aka HINGO SEMBRA), IGOR VAMOS (aka
)
MIKE BONANNO), SUPPORT AND
)
COMMITMENT, INC., DAVID SIEVERS,
)
MORGAN GOODWIN, SARAH MURPHY,
)
)
and JOHN and JANE DOES NOS. 1-20,
)
)
Defendants.

PLAINTIFF’S REPLY IN SUPPORT OF ITS MOTION FOR LEAVE TO FILE
SUPPLEMENTAL BRIEF IN OPPOSITION TO
DEFENDANTS’ MOTION TO DISMISS FIRST AMENDED COMPLAINT
Defendants have responded to Plaintiff’s Motion for Leave to File Supplemental Brief
with histrionics instead of addressing the issue presented by the Motion. The issue presented by
Plaintiff’s Motion is simple: Should Plaintiff be permitted to notify the Court of recent conduct
by Defendants that is relevant to Defendants’ pending Motion to Dismiss, when that conduct
occurred after Plaintiff filed its Opposition to the Motion to Dismiss?1

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Defendants have absolutely no justification for characterizing Plaintiff’s Motion as an
attempt to “game the judicial process” and “misuse the Court’s procedural authority.” Def. Opp.
at 1. Plaintiff has merely sought leave to notify the Court of new facts that are directly relevant
to Defendants’ Motion to Dismiss. Plaintiff could not possibly have mentioned those facts in its
Opposition to the Motion to Dismiss, because it filed its Opposition on February 5, 2010 -- over
five months before Defendants engaged in the conduct described in Plaintiff’s Supplemental
Brief.

1

Plaintiff submits that, in resolving Defendants’ Motion to Dismiss, the Court should be
informed of all facts relevant to Defendants’ arguments and representations. The Supplemental
Brief that Plaintiff is seeking leave to file notifies the Court that, on or about July 23, 2010,
Defendants Igor Vamos (aka Mike Bonnano) and Jacques Servin (aka Andy Bichlbaum aka
Hingo Sembra) released a “special edition” movie that includes film footage of the fraudulent
“press conference” at issue in this case, and that they are using the “special edition” of their
movie to raise money. These actions are directly relevant to Defendants’ assertion, made in
support of their Motion to Dismiss, that their misappropriations of Plaintiff’s name and marks
were not “commercial” in nature. Defendants’ actions should therefore be considered in
evaluating their representations and in resolving their Motion to Dismiss.
Moreover, Defendants cannot complain that the Supplemental Brief will prejudice them
in any way. This case has been pending for over nine months and yet, because of Defendants’
pending motion to dismiss and motion to stay discovery, Defendants have not yet filed an answer
to the complaint or provided any discovery. The Supplemental Brief will therefore cause no
disruption or delay in this case and will, instead, provide the Court with relevant information that
should be considered in resolving Defendants’ January 5, 2010 Motion to Dismiss.
WHEREFORE, Plaintiff respectfully requests that the Court grant it leave to file the
Supplemental Brief in Opposition to Defendants’ Motion to Dismiss First Amended Complaint.
Dated: August 10, 2010

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HUNTON & WILLIAMS, LLP
/s/ William E. Potts, Jr._______________
RICHARD L. WYATT, JR.
(D.C. Bar No. 424775)
MICHAEL J. MUELLER
(D.C. Bar No. 412025)
THOMAS M. HUGHES
(D.C. Bar No. 460134)
WILLIAM E. POTTS, JR.
(D.C. Bar No. 945824)
1900 K Street, NW
Washington, DC 20006
Tel: [phone]
Fax: [phone]

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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was served via
electronic mail and U.S. Mail postage pre-paid this 10th day of August, 2010 upon:

Robert Corn-Revere, Esq.
Davis Wright Tremaine, LLP
1919 Pennsylvania Avenue, N.W., Suite 200
Washington, D.C. 20006
Matthew Zimmerman, Esq.
Electronic Frontier Foundation
454 Shotwell Street
San Francisco, CA 94110
Counsel for Defendants

By: ________/s/____________
William E. Potts, Jr.

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