Vulcan Golf, LLC v. Google Inc. et al

Filing 148

MOTION by Plaintiff Vulcan Golf, LLC for leave to file Second Amended Complaint (Attachments: # 1 Exhibit, # 2 Second Amended Complaint)(Foote, Robert)

Vulcan Golf, LLC v. Google Inc. et al

Doc. 148

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION VULCAN GOLF, LLC, JOHN B. SANFILIPPO & SONS, INC. BLITZ REALTYGROUP, INC. and VINCENT E."BO" JACSKON Individually and on Behalf of All Others Similarly Situated, § § § § § § Civil Action No. 07 CV 3371 § Lead Plaintiffs, § § Honorable Blanche M. Manning v. § § GOOGLE INC., OVERSEE.NET, § Magistrate Judge Geraldine Soat Brown SEDO LLC, DOTSTER, INC., AKA § REVENUEDIRECT.COM § INTERNET REIT, INC. d/b/a IREIT, INC.; § and JOHN DOES I-X, § § Defendants. § MOTION FOR LEAVE TO FILE SECOND AMENDED CLASS ACTION COMPLAINT IN LAW AND EQUITY VULCAN GOLF, LLC, JOHN B. SANFILIPPO & SON, INC. ("JBSS"), BLITZ REALTY GROUP ("BLITZ"), and VINCENT E. "BO" JACKSON ("JACKSON"), Lead Plaintiffs, on behalf of themselves and all others similarly situated, pursuant to Rule 23 of the Federal Rules of Civil Procedure, by and through their undersigned Counsel of Record, filed this Motion For Leave to File Second Amended Class Action Complaint In Law And Equity ("SAC"), pursuant to this Court's March 20, 2008 Order and Rule 15 of the Federal Rules of Civil Procedure, and in so doing state as follows: 1. Pursuant to this Court's March 20, 2008 Order, Lead Plaintiffs were given 21 days

to replead those claims that were dismissed by said order. Lead Plaintiffs desire to replead most Page 1 of 7

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of the claims previously dismissed and add a claim that was not contained in the First Amended Complaint In Law and Equity ("FAC"). See March 20, 2008 Order, attached hereto as Exhibit "A." 2. In the SAC, the identity of the Parties remain the same as in the FAC. In the

SAC, the total number of claims brought by Lead Plaintiffs remains the same as in the FAC (Fourteen (14) Counts). Lead Plaintiffs chose not to re-allege violations of the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/2 and the Illinois Uniform Deceptive Trade Practices Act, 815 ILCS 510/2 and the similar or identical state statutes of the various states (Count VII of the FAC). Rather, a new Count is added to the SAC, alleging violations of the Racketeering Influenced Corrupt Organizations Act ("RICO") 18 U.S.C. § 1962(a). 3. No substantive changes to any claims for violation of the Lanham Act, 15 U.S.C.

§ 1051 et seq.; the Anticybersquatting Consumer Protection Act, 15 U.S.C. § 1125(d); trademark infringement under 15 U.S.C. § 1114(1); false designation of origin under 15 U.S.C. § 1125(a); dilution under 15 U.S.C. § 1125(c); Common Law Trademark Violations, Contributory and Vicarious Trademark Claims, and or Declaratory relief (SAC Counts: 4, 5,6,7,8,9,10, and 11), are made in the SAC. 4. Pursuant to Rule 15 of the Federal Rules of Civil Procedure the Court should

freely give leave to amend when justice so requires. Plaintiffs respectfully suggest justice requires allowing the filing of SAC given the nature of this suit, the stage of the proceedings and this Court's March 20, 2008 Order regarding the FAC. 5. To summarize the differences between the FAC and SAC, the following Chart

sets forth the relationship between the Counts in the FAC and SAC, as well as the scope of Page 2 of 7

changes (if any) made to particular claims:

Violation/Claim
Violation of RICO, 18 U.S.C. § 1962(c) Violation of RICO, 18 U.S.C. § 1962(d) Violation of 15 U.S.C. § 1125(d)

FAC Count# 1 2 3 4 5 6 7

SAC Count # 2 3 4 5 6 7 N/A

Any Changes Substantive Changes Substantive Changes No Changes No Changes No Changes No Changes Withdrawn/not replead by Lead Plaintiffs in SAC

Violation of 15 U.S.C. § 1114(1) Violation of 15 U.S.C. § 1125(a) Violation of 15 U.S.C. § 1125(c)

Violation of Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/2 and the Illinois Uniform Deceptive Trade Practices Act, 815 ILCS 510/2 and the similar or identical state statutes of the various states For Declaratory Judgment Common Law Trademark Violations Contributory Trademark Infringement Vicarious Trademark Infringement Intentional Interference With Current and Prospective Economic Advantage Unjust Enrichment Civil Conspiracy Violations of RICO, 18 U.S.C. § 1962(a)

8 9 10 11 12

8 9 10 11 12

No Changes No Changes No Changes No Changes Substantive Changes

13 14 N/A

13 14 1

Substantive Changes Substantive Changes New Count to SAC

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XII.

PRAYER FOR RELIEF WHEREFORE, Lead Plaintiffs, individually and on behalf of the Class, respectfully

request leave to file the attached SAC instanter.

Dated: April 9, 2008 ___

FOOTE, MEYERS, MIELKE & FLOWERS, LLC

/s/Robert M. Foote Robert Foote, Esq. (#03214325) Stephen W. Fung, Esq. (#06289522) Mark A. Bulgarelli, Esq. (#06284703) Foote, Meyers, Mielke & Flowers, LLC 28 North First St., Suite 2 Geneva, IL 60134 Tel. No.: [phone] Kathleen C. Chavez, Esq. (#6255735) Chavez Law Firm, P.C. 28 North First St., Suite 2 Geneva, IL 60134 William J. Harte, Esq. Dana Pesha, Esq. William J. Harte, Ltd. 111 West Washington Street Suite 1100 Chicago, IL 60602 Benjamin G. Edelman, Esq. Law Office of Benjamin Edelman 27a Linnaean Street Cambridge, MA 02138 Tel. No.: [phone] Bryan L Clobes, Esq. Cafferty Faucher, LLP 1717 Arch Street Suite 3610 Philadelphia, PA 19103 Page 4 of 7

Nyran Rose Pearson, Esq. Dominic J. Rizzi, Esq. Cafferty Faucher LLP 30 North LaSalle Street Suite 3200 Chicago, IL 60602 ATTORNEYS FOR PLAINTIFFS

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION VULCAN GOLF, LLC, JOHN B. SANFILIPPO & SONS, INC. BLITZ REALTYGROUP, INC. and VINCENT E."BO" JACSKON Individually and on Behalf of All Others Similarly Situated, Lead Plaintiffs, v. GOOGLE INC., OVERSEE.NET, SEDO LLC, DOTSTER, INC., AKA REVENUEDIRECT.COM INTERNET REIT, INC. d/b/a IREIT, INC.; and JOHN DOES I-X, Defendants. § § § § § § Civil Action No. 07 CV 3371 § § § Honorable Blanche M. Manning § § § Magistrate Judge Geraldine Soat Brown § § § § § §

CERTIFICATE OF SERVICE I hereby certify that on April 9, 2008, I electronically filed the foregoing document with the clerk of court for the U. S. District Court, Northern District of Illinois, using the electronic case filing system of the court. The electronic case filing system sent a "Notice of Electronic Filing" to the following attorneys of record who have consented in writing to accept this Notice as service of this document by electronic means: Brett A. August [e-mail] Michael H. Page [e-mail] Mariah Moran [e-mail] [e-mail] Bradley L. Cohn [e-mail] Kenneth P. Held [e-mail] Steven Borgman [e-mail] [e-mail] [e-mail] [e-mail]

Aaron Daniel Van Oort [e-mail] Page 6 of 7

Alison Conlon [e-mail] [e-mail] [e-mail] Joseph Gratz [e-mail] Alexis Payne [e-mail]

Jonathan M. Cyrluk [e-mail] [e-mail]

Misty Martin [e-mail] Ronald Rothstein [e-mail] [e-mail] [e-mail] Scott R. Wiehle [e-mail] Joseph Duffy [e-mail] [e-mail] [e-mail] Dana Marie Pesha [e-mail] [e-mail] Marlon Emile Lutfiyya [e-mail] Nyran Rose Pearson [e-mail] Anastasios T. Foukas [e-mail]

Jeffrey Singer [e-mail] Michael R. Dockterman [e-mail] [e-mail] [e-mail] William J. Harte [e-mail] [e-mail] Henry M. Baskerville [e-mail] Dominic J. Rizzi [e-mail] Thomas J. Wiegand [e-mail]

I certify that I have served the foregoing document by emailing a copy to the following individuals: Steven Atlee [e-mail] Joanna J. Cline [e-mail] Vincent V. Carissimi [e-mail] Robert J. Hickok [e-mail] s/Robert M. Foote Page 7 of 7