BidZirk LLC et al v. Smith

Filing 6

MOTION for Preliminary Injunction by BidZirk LLC, Daniel G Schmidt, III, Jill Patterson. Response to Motion due by 3/3/2006 (Attachments: # 1 Memo in Support # 2 Exhibit 1# 3 Exhibit 2# 4 Exhibit 3# 5 Exhibit 4# 6 Exhibit 5# 7 Exhibit 6# 8 Exhibit 7# 9 Exhibit 8# 10 Exhibit 9# 11 Exhibit 10# 12 Exhibit 11# 13 Exhibit 12# 14 Exhibit 13# 15 Exhibit 14# 16 Exhibit 15# 17 Exhibit 16# 18 Exhibit 17# 19 Exhibit 18# 20 Exhibit 19# 21 Exhibit 20# 22 Exhibit 21# 23 Exhibit 22# 24 Exhibit 23# 25 Exhibit 24# 26 Exhibit 25# 27 Exhibit 26# 28 Exhibit 27# 29 Exhibit 28# 30 Exhibit 29# 31 Exhibit 30# 32 Exhibit 31# 33 Exhibit 32# 34 Exhibit 33# 35 Exhibit 34# 36 Exhibit 35# 37 Exhibit 36# 38 Exhibit 37# 39 Exhibit 38# 40 Exhibit 39# 41 Exhibit 40# 42 Exhibit 41)No proposed order(Elwell, Kevin) Modified on 2/14/2006 to edit repeated words (awil).

BidZirk LLC et al v. Smith

Doc. 6 Att. 40

6:06-cv-00109-HMH

Date Filed 02/13/2006

Entry Number 6-41

Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA GREENVILLE DIVISION BIDZIRK, LLC, DANIEL G. SCHMIDT, III, and JILL PATTERSON, Plaintiffs, v. PHILIP RUSS SMITH, Defendant. ____________________________________ ) ) ) ) ) ) ) ) ) )

Civil Action No. 6:06-CV-00109-HMH AFFIDAVIT OF KEVIN M. ELWELL

CAME BEFORE ME, the undersigned officer duly authorized to administer oaths, Kevin M. Elwell, who, upon being sworn, deposes and states: 1. My name is Kevin M. Elwell. I am over 18 years of age and am competent in all respects to testify to the matters asserted herein. I have personal knowledge of those matters and know them to be true. This affidavit is given in support of Plaintiffs' motion for preliminary injunction in the above-captioned action, and for any other lawful purpose. 2. I am counsel for Plaintiffs in the above-captioned action. In connection with my

representation, I have had telephone contact with Defendant, and have corresponded with him via letter as well. On December 28, 2005, I received a telephone call from Defendant regarding a letter I had sent to him demanding that he cease publication of BidZirk's trademarks and defamatory remarks regarding Plaintiffs Schmidt and Patterson. Defendant during this

Exhibit stia p. 1 Dockets.Ju39, .com

6:06-cv-00109-HMH

Date Filed 02/13/2006

Entry Number 6-41

Page 2 of 3

conversation informed me that he makes a practice of recording all of his telephone conversations, and that he was in fact recording our conversation. 3. During me December 28, 2005 telephone conversation with Defendant, he offered to remove material from his web site, www.jackwhispers.blogspot.com, in return for a payment of $500 from Plaintiffs. Defendant contended that $500 was money he was owed from BidZirk as unpaid eBay auction proceeds. 4. Defendant has refused all demands to cease infringement of BidZirk's trademarks, and his conduct has necessitated the preparation and filing of BidZirk's motion for preliminary injunction in this case. 5. I have spent 24.6 hours through the filing of BidZirk's motion for preliminary injunction on research, drafting, compiling exhibits and preparing the papers for electronic filing with the Court. My hourly rate for this work is $250 per hour, which is commensurate with my

experience, prevailing rates in the community and the sort of legal work being performed. BidZirk's total legal fees and expenses related to preparation of its motion for preliminary injunction, for which my firm, K.M. Elwell, P.C., is actually charging BidZirk, total $6,150.00, plus related costs and expenses of $212.00, or $6,367.00.

2 Exhibit 39, p. 2

6:06-cv-00109-HMH

Date Filed 02/13/2006

Entry Number 6-41

Page 3 of 3

Exhibit 39, p. 3