Lebewohl et al v. Heart Attack Grill LLC et al

Filing 17

MEMORANDUM AND ORDER: For the reasons set forth above, the defendants' application for an order compelling the plaintiffs' to respond to Interrogatories nos. 3, 4, 6, and 7 is denied. (Signed by Magistrate Judge James C. Francis on 9/14/2011) Copies Mailed By Chambers. (mro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

(ECF)

JEREMY LEBEWOHL, UNCLE ABIES DELI
INC. d/b/a 2nd AVE DELI, UNCLE
ABIES DELI ON FIRST INC., and
UNCLE ABIES DELI SANDWICH
TRADEMARKS LLC,
Plaintiffs,
against ­

11 Civ. 3153 (LAK)

(JCF)

MEMORANDUM
AND ORDER

USDS SDNY
DOCUMENT
ELECTR01'';ICALLY FILED

HEART ATTACK GRILL LLC, HAG LLC,
and JON BASSO,
Defendants.

DOC#: __~~~~_7_
DATE FILED:
II

q Y. ItT

JAMES C. FRANCIS IV
UNITED STATES MAGISTRATE JUDGE

The plaintiffs, owners of the 2nd Avenue Deli in Manhattan,
bring this action seeking a declaration that their use of the terms
"Instant Heart Attack Sandwich" and "Triple Bypass Sandwich" do not
infringe the defendants' trademarks.

The defendants have submitted

a letter application requesting an order compelling the plaintiffs
to respond to four

interrogatories relating to the plaintiffs'

selection and adoption of the challenged terms,

the goods with

which the terms are identified, the dates on which the terms were
first used, and geographic areas in which the terms have been used.
(Letter of Robert C. Kain, Jr. dated Aug. 1, 2011 ("Kain Letter")

i

Defendants' First Set of Interrogatories to Plaintiffs Nos. 1-11,
nos.

3,

4,

6,

7).

The plaintiffs oppose the defendants' application on the

1

ground

that

permitted

the

by

interrogatories

Local

Civil

in

Rule

interrogatories be limited to

question

33.3,

exceed

which

the

scope

requires

that

"seeking names of witnesses with

knowledge of information relevant to the subj ect matter of the
action,

computation of each category of damage

leged, and the

existence, custodian, location and general description of relevant
documents."

S.

&

E.D.N.Y.R. 33.3(a).

dated Sept. 9, 2011).
"may only

served

(Letter of William W. Chuang

Interrogatories that go beyond these topics
(1)

if they are a more practi

obtaining the information sought than a request
a deposition, or (2)
33.3(b).

if ordered by the court."

method of
production or

S.

& E.D.N.Y.R.

Here, the defendants' interrogatories plainly sweep more

broadly than the local

rules allow.

Interrogatory no.

4,

for

example, would require the plaintiffs to
[i]denti
all documents and set forth with specif ity
all facts regarding the selection by 2nd AVE DELI of the
"instant
attack sandwich" designation
without limitation, the date on which 2nd AVE DELI
decided to adopt the "instant heart at tack sandwich"
designation, the circumstances and method by which 2nd
AVE DELI adopted the "instant heart at tack sandwich"
designation, and the reasons why any proposed marks or
names, if any, were rejected.
(emphasis

added).

Depositions

and

documents

requests

are

a

decidedly more practical method of obtaining the information the
defendants seek.
(S.D.N.Y. 1999)

Madanes v.

Madanes,

186 F.R.D.

279,

290

("A document request is a far more practical means
2

of obtaining such information than is an interrogatory.
these

interrogatories violate

local

rule

33.3

Therefore,

and need not be

answered. "} .
In addition, the defendants' suggestion that the
"could be classified as
Local Rules"

\ content

(Kain Letter at I)

interrogatories'

does not assist them.

these were contention interrogatories,

it would gene

proper to serve them until discovery was complete.
33.3(c}.

And 1

in

any

inquiries

event,

they

are

under the
Even if
ly not be

S. & E.D.N.Y.R.
not

contention

substantive information.

interrogatories; they
Conclusion

For the reasons set forth above 1 the defendants' application
for

an

order

compelling

the

plaintiffs'

to

respond

Interrogatories nos. 3, 4, 6 1 and 7 is denied.
SO ORDERED.

(J~~~~~IL-

UNITED STATES MAGISTRATE JUDGE

Dated: New York, New York
September 14, 2011
Copies mailed this date to:
William Win-Ning Chuang, Esq.
Jakubowitz & Chuang 1 LLC
401 Broadway, Suite 408
New York, New York 10013
3

to

Michael J. Quarequio, Esq.

Michael J. Quarequio, P.A.

900 S.E. 3rd Avenue, Suite 202

Fort Lauderdale, FL 33316

Robert C. Kain, Jr., Esq.

Kain & Associates, Attorney at Law PA

900 southEast Third Avenue, Suite 205

Fort Lauderdale, FL 33316

4