Saint Louis University v. Meyer

Filing 136

MOTION for Leave to File Sur-Reply Re Defendant's Motion for Attorney's Fees under Lanham Act by Plaintiff Saint Louis University. (Attachments: # 1 Exhibit Plaintiff's Sur-Reply, # 2 Exhibit Exhibit 1 to Plaintiff's Sur-Reply)(Janoski, Frank) Modified on 6/4/2009 (DJO).

Saint Louis University v. Meyer

Doc. 136

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI EASTERN DIVISION SAINT LOUIS UNIVERSITY, a Missouri benevolent corporation, Plaintiff, v. AVIS MEYER, Defendant. ) ) ) ) ) ) ) ) ) )

Case No. 4:07CV1733 CEJ

PLAINTIFF'S MOTION FOR LEAVE TO FILE SUR-REPLY REGARDING DEFENDANT'S MOTION FOR ATTORNEY'S FEES UNDER THE LANHAM ACT

COMES NOW Plaintiff Saint Louis University ("Plaintiff"), by and through its undersigned counsel, and moves this Court for Leave to file a short four page Sur-Reply to address new issues raised by Defendant for the first time in his Reply in support of his Motion for Attorney's Fees. In support of this Motion, Plaintiff states as follows: 1. On March 17, 2009, Defendant filed his Motion for an Award of Attorney's Fees

Under the Lanham Act [dkt # 128] and Memorandum in Support thereof [dkt # 129]. 2. Defendant's Motion raises the issue of Defendant's use of Plaintiff's intellectual

property and argues Plaintiff lacked sufficient evidence of such use to provide a reasonable basis for filing this lawsuit thus making this an "exceptional case" under 15 U.S.C. § 1117. 3. On April 2, 2009, Plaintiff filed its Response in Opposition [dkt # 132] addressing

the issue of Defendant's "use" and the reasonable basis for Plaintiff's claims in this suit. 4. On April 13, 2009, Defendant filed his Reply in support of his Motion [dkt #

135]. The Reply goes well beyond the prior briefing, however, and raises new meritless and

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misleading issues regarding the scope of goods and services listed on Plaintiff's federal registration of the mark SAINT LOUIS UNIVERSITY, Registration No. 1,729,449, and the public availability of a letter Defendant sent to the Missouri Secretary of State on Plaintiff's official letterhead. 5. Plaintiff seeks leave to file the short four page Sur-Reply attached hereto to

address these newly raised issues and to clarify the record. 6. Plaintiff does not make the instant Motion for any improper purpose or to delay

these proceedings. WHEREFORE, Plaintiff Saint Louis University requests that this Court grant Plaintiff's Motion for Leave to file Plaintiff's Sur-Reply in opposition to Defendant's Reply in support of Defendant's Motion for Attorney's Fees, and for such other and further relief as the Court deems just under the circumstances. Respectfully submitted, LEWIS, RICE & FINGERSH, L.C. By: /s/ Frank B. Janoski Frank B. Janoski, #3480 Bridget Hoy, #109375 David A. Weder, #5212905 500 North Broadway, Suite 2000 St. Louis, MO 63102 Telephone: [phone] Fax: [phone] Email: [e-mail] Email: [e-mail] ATTORNEYS FOR PLAINTIFF

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CERTIFICATE OF SERVICE I further certify that on the 22nd day of April, 2009, the foregoing was filed with the Clerk of Court to be served via the Court's ECF system upon all counsel of record.

/s/ Frank B. Janoski Frank B. Janoski LEWIS, RICE & FINGERSH, L.C. 500 N. Broadway, Suite 2000 St. Louis, MO 63102 Telephone: [phone] Facsimile: [phone] E-mail: [e-mail]

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