Simonian v. Maybelline LLC

Filing 39

NOTICE by Maybelline LLC of Recent Related Decision (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Drake, Jeffrey) [Transferred from Illinois Northern on 3/21/2011.]

Simonian v. Maybelline LLC

Doc. 39

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION THOMAS A. SIMONIAN, Plaintiff, v. MAYBELLINE LLC, Defendant. ) ) ) ) ) ) ) ) )

Civil Action No. 1:10-cv-01615 Hon. Virginia M. Kendall

NOTICE OF RECENT RELATED DECISION Defendant Maybelline LLC ("Maybelline"), by and through its undersigned counsel, respectfully submits this Notice of Recent Related Decision. Since the recent briefing on

Maybelline's Motion to Transfer [dkt. No. 25], the United States District Court for the Northern District of California, San Jose Division, in San Francisco Technology, Inc. v. The Glad Products Company, et al., Case No. 10-00966, severed and transferred plaintiff's false marking complaint against Maybelline to the Southern District of New York, the exact remedy sought by Maybelline in this case. A copy of the opinion is attached hereto as Exhibit A. A copy of San Francisco Technology, Inc.'s ("SFTI") complaint (which pre-dates the complaint in the instant case) is attached hereto as Exhibit B. The presence of a related litigation in the transferee forum is relevant to transfer. Keppen v. Burlington Northern Railroad Co., 749 F. Supp. 181, 184 (N.D. Ill. 1990). The instant case and the recently transferred case both involve the alleged false marking of the same expired patents by the same entity (Maybelline) on one of the same product lines (Lash Discovery®). (Compare Ex. B, ¶ 100 with Dkt. 1.) Maybelline also submits as Exhibit C a recent decision out of the United States District Court for the Eastern District of Pennsylvania in Hollander v. Etymotic Research, Inc., No. 10-

Dockets.Justia.com

cv-526 (E.D. Pa. July 2010). That decision, in particular Section III beginning on page 7, is relevant to the issues raised by Maybelline in its motion to dismiss (Dkt. 20).

Respectfully submitted, /s/Jeffrey M. Drake Jeffrey M. Drake Wood Phillips 500 West Madison Street Suite 3800 Chicago, IL 60661-2562 Ph: [phone] [e-mail]. Of Counsel: Francis DiGiovanni Geoffrey A. Zelley Connolly Bove Lodge & Hutz LLP 1007 N. Orange Street Wilmington, Delaware 19899 Ph: [phone] [e-mail] [e-mail] Attorneys for Defendant Maybelline LLC

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CERTIFICATE OF SERVICE I, Jeffrey M. Drake, hereby certify that on the July 20, 2010 the attached document was electronically filed with the Clerk of the Court using CM/ECF which will send notification of such filing to the registered attorney(s) of record that the document is available for viewing and downloading from CM/ECF: Joseph M. Vanek, Esquire David P. Germaine, Esquire Jeffrey R. Moran, Esquire VANEK, VICKERS & MASINI, P.C. 111 S. Wacker Drive Suite 4050 Chicago, IL 60606 Ph: [phone] Fax: [phone] ([e-mail]) ([e-mail]) ([e-mail]) Eugene M. Cummings, Esquire David M. Mundt, Esquire David Lesht, Esquire Martin Goering, Esquire Konrad V. Sherinian, Esquire Panasarn Aim Jirut, Esquire Jessica Rissman, Esquire EUGENE M. CUMMINGS, P.C. One North Wacker Drive Suite 4130 Chicago, IL 60606 Ph: [phone] Fax: [phone] ([e-mail]) ([e-mail]) ([e-mail]) ([e-mail]) ([e-mail]) ([e-mail]) ([e-mail]) Attorneys for Plaintiff Thomas A. Simonian By: Bruce S. Sperling, Esquire Robert D. Cheifetz, Esquire SPERLING & SLATER, P.C. 55 West Monroe Street Suite 3200 Chicago, IL 60603 Ph: [phone] Fax: [phone] ([e-mail]) ([e-mail])

/s/Jeffrey M. Drake Jeffrey M. Drake