Long John Silvers, Inc. v. Willingham et al

Filing 1

COMPLAINT against All Defendants Filing fee $ 350, receipt number 644-1280591., filed by Long John Silvers, Inc.. (Attachments: # 1 Cover Sheet, # 2 Exhibit A. Oracle Fran Ag part 1 & 2, # 3 Exhibit B. Broadway Fran Ag part 1 & 2, # 4 Exhibit C. Guaranty Agreements, # 5 Exhibit D. Conditional Reinstatement, # 6 Exhibit E. Default Ltrs, # 7 Exhibit F. Termination Ltr, # 8 Exhibit G. Bankruptcy Desist Ordr, # 9 Exhibit H. LJS Trademarks, # 10 Summons J. Willingham, # 11 Summons P. Willingham) (JSS)

SIGNED.

Dated: July 29, 2011

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Eric Slocum Sparks
Arizona State Bar No. 11726
LAW OFFICES OF ERIC SLOCUM SPARKS, P.C.
110 South Church Avenue #2270
Tucson, Arizona 85701
Telephone [phone]
Facsimile [phone]
[e-mail]

James M. Marlar, Chief Bankruptcy

Judg

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Attorney for Debtors
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IN THE UNITED STATES BANKRUPTCY

COURT

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FOR THE DISTRICT OF ARIZONA
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Inre:

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SOUTHWEST SEAFOOD
SHOPPES, LLC.

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No. 4: 11-BK-14185-JMM

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(Chapter 11)

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Debtors.

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STIPULATED ORDER DENYING
(1) MOTION TO MODIFY THE AUTOMATIC
STAY TO PERMIT LONG JOHN SILVER'S,
INC. TO INITIATE LITIGATION AND
(2) MOTION TO DISMISS OR CONVERT
TO CHAPTER 7 CASE AND VACATING
ORDER REJECTING DEBTOR'S FRANCHISE
AGREEMENT WITH LONG JOHN
SILVER'S, INC. (DOC. NO. 65)

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Long John Silver'S, Inc. ("LJS") having filed a Motion to Modify the Automatic Stay to Permit

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Long John Silver's Inc., to Initiate Litigation ("Motion for Relief From Stay") and a Motion to Dismiss
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or Convert to Chapter 7 Case ("Motion to Dismiss or Convert"), and it appearing to the Court that cause
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does not exist to modify the automatic stay to permit LIS to pursue its remedies under the Franchise
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Agreements against the Debtor, Southwest Seafood Shoppes, LLC ("Debtor") in another fomm; and the
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Court further holding that cause does not exist at this time to dismiss or convert Debtor's case to a case
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under Chapter 7 of the Bankruptcy Code.
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IT IS HEREBY

ORDERED

that the Motion for Relief From Stay to permit LJS to pursue its

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remedies under the Franchise Agreements against the Debtor in another forum is denied.
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IT IS FURTHER

ORDERED

that the Debtor's Motion to Reject the Franchise Agreements

ORDERED

that Franchisee immediately comply with the Post-Termination

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is granted;
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IT IS FURTHER

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1 Obligations under the Franchise Agreements, including, without limitation:
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1. Discontinuing the use of any and all service marks, trademarks, and trade names ofLJS and

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the use of any and all signs, menu board inserts, point of sale materials, and printed goods bearing such

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marks or names or any reference thereto;

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2. Renovating or refurbishing the restaurant sufficiently to eliminate any possibility of confusion

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in the mind of the public that the restaurants are in any manner connected with LJS or any of its licensed

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restaurants by changing the building interior and exterior color schemes and removing glass, light

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fixtures, and other items bearing any ofthe trade dress, marks, symbols, color schemes, or identifications

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ofLJS and removing any marks, symbols, color schemes, or identifications that are similar to those of

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3. Ceasing operating or doing business under any name or in any manner that might tend to give

12 the general public the impression that the franchise with LJS is still in force or that Franchisee is in any
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4. Disconnecting telephone service for any numbers used by Debtor as an US-branded

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5. Returning to US all materials containing, in whole or in part, any trade secrets, confidential

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6. Ceasing making, using, or availing itself of any trade secrets, trademarks of, or information

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imparted by LJS, and not disclosing or revealing any such other information or any portion thereofto

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others; and

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IT IS FURTHER ORDERED that any claims that Debtor used US's trademarks and service

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marks in violation of the Franchise Agreements and the Lanham Act, any claims that Debtor is

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prohibited from operating a competing restaurant, and any other claims by US against Debtor shall be

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resolved in the Bankruptcy Case or by adversary proceeding.

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IT IS FURTHER ORDERED that the Motion to Dismiss or Convert is denied without
prejudice.

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DATED, SIGNED, AND ORDERED ABOVE
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The Parties have stipulated that the Order Rejecting Debtor's Franchise Agreement with

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Long John Silver's, Inc., Under 11 U.S.C. §365(a) and Local Rule 6006-1(a), entered on July 14,

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2011 at Docket Number 65 is vacated.

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/s Jonathan M. Saffer (with permission)

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Jonathan M. Saffer, Esq.

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Attorney for Southwest Seafood Shoppes, LLC.

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