Lulu Enterprises, Inc. v. N-F Newsite, LLC et al

Filing 109

MOTION for Leave to File Declaration of Kent Van Liere in Support of Motion for Preliminary Injunction by Lulu Enterprises, Inc.. (Attachments: #1 Exhibit A#2 Text of Proposed Order) (Segars, Thomas)

Lulu Enterprises, Inc. v. N-F Newsite, LLC et al

Doc. 109

Case 5:07-cv-00347-D

Document 109

Filed 10/12/2007

Page 1 of 3

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION CASE NO. 5:07-CV-347-D ____________________________________ LULU ENTERPRISES, INC., ) ) Plaintiff, ) ) PLAINTIFF LULU v. ) ENTERPRISES, INC.'S MOTION ) FOR LEAVE TO FILE N-F NEWSITE, LLC, ) DECLARATION OF KENT ) VAN LIERE IN SUPPORT OF and ) MOTION FOR PRELIMINARY ) INJUNCTION HULU TECH, INC., ) ) ) Defendants. Now comes Plaintiff Lulu Enterprises, Inc. ("Lulu") and respectfully moves this Court for leave to file the Declaration of Kent Van Liere in support of Lulu's pending Motion for Preliminary Injunction [Docket Entry No. 8]. In support of this motion, Lulu shows the Court as follows: 1. In connection with discovery in this matter, Lulu commissioned a highly

relevant consumer confusion focus group study prepared by Kent Van Liere of National Economic Research Associates, Inc. ("NERA"). A true and accurate copy of the Declaration of Kent Van Liere, which includes the results of that study, is attached hereto as Exhibit A. 2. Defendant N-F NewSite, LLC ("N-F"), through counsel, has objected to

the Court's consideration of the Declaration of Kent Van Liere on the ground that the declaration was not provided to N-F in a timely fashion. For the same reasons explained in Lulu's pending Motion for Leave to File Declaration of Hal L. Poret (which is incorporated here by this reference), however, the Declaration of Kent Van Liere is

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Dockets.Justia.com

Case 5:07-cv-00347-D

Document 109

Filed 10/12/2007

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highly relevant and, as such, will assist the Court in its resolution of the pending Motion for Preliminary Injunction. Moreover, as explained in Lulu's pending Motion for Leave to File Declaration of Hal L. Poret, N-F would suffer only slight comparative prejudice if this Court were to consider the Declaration of Kent Van Liere. 3. Lulu respectfully suggests that, under the circumstances, good cause exists

for this Court to allow the filing of the attached Declaration of Kent Van Liere in Support of its Motion for Preliminary Injunction. 4. As explained above, counsel for N-F has expressed N-F's opposition to

the relief Lulu requests. 5. A proposed Order granting this motion is being submitted herewith.

WHEREFORE, for the foregoing reasons and the same reasons set forth in the pending Motion for Leave to File Declaration of Hal L. Poret (which has been incorporated by reference here), Plaintiff Lulu Enterprises, Inc. respectfully requests that this Court grant it leave to file the Declaration of Kent Van Liere in support of its pending Motion for Preliminary Injunction, and such other and further relief as the Court deems just and proper. Respectfully submitted, this the 12th day of October, 2007. ELLIS & WINTERS LLP /s/ Thomas H. Segars Leslie C. O'Toole N.C. State Bar. No. 13640 Thomas H. Segars N.C. State Bar. No. 29433 Post Office Box 33550 Raleigh, North Carolina 27636 Telephone: [phone] Facsimile: [phone] Attorneys for Lulu Enterprises, Inc.

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Case 5:07-cv-00347-D

Document 109

Filed 10/12/2007

Page 3 of 3

CERTIFICATE OF SERVICE The undersigned attorney for Plaintiff hereby certifies that on this day the foregoing Motion was served upon the parties of record in this action through electronic means by virtue of CM/ECF as follows: Hayden J. Silver, III [e-mail] Betsy Cooke [e-mail] Kilpatrick Stockton LLP Attorneys for Defendant N-F NewSite, LLC and by United States mail, postage prepaid, first class, addressed as follows: William H. Brewster [e-mail] Sara Maurer [e-mail] Kilpatrick Stockton LLP 1100 Peachtree Street, Suite 2800 Atlanta, Georgia 30309 Facsimile: 404-815-6555 Attorneys for Defendant N-F NewSite, LLC This the 12th day of October, 2007.

/s/ Thomas H. Segars Thomas H. Segars

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