42 - motion for leave to file sur-reply

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DEFENDANTS’ MOTION FOR ADMINISTRATIVE RELIEF TO FILE SURREPLY CASE NO. 3:12-CV-5072 MMC sf-3225465

WESLEY E. OVERSON (CA SBN 154737)[email protected] JENNIFER LEE TAYLOR (CA SBN 161368) [email protected] NATHAN B. SABRI (CA SBN 252216) [email protected] JULIA D. KRIPKE (CA SBN 267436) [email protected] MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105-2482 Telephone: 415.268.7000 Facsimile: 415.268.7522

Attorneys for Defendants RESTORATION HARDWARE, INC. and GARY FRIEDMAN

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

EMECO INDUSTRIES, INC.,

Plaintiff,

v.

RESTORATION HARDWARE, INC., GARY FRIEDMAN, and Does 1-10,

Defendants.

Case No. 3:12-cv-5072 MMC

DEFENDANTS’ MOTION FOR ADMINISTRATIVE RELIEF TO FILE SURREPLY IN SUPPORT OF OPPOSITION TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

Case3:12-cv-05072-MMC Document42 Filed12/06/12 Page1 of 3

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DEFENDANTS’ MOTION FOR ADMINISTRATIVE RELIEF TO FILE SURREPLY CASE NO. 3:12-CV-5072 MMC 1sf-3225465

Defendants seek leave to file the surreply attached hereto as Exhibit 1 and the supporting

declaration of Hal Poret attached as Exhibit 2. This surreply is in support of Defendants’

Opposition to Plaintiff’s Motion for Preliminary Injunction.

In its reply brief, Plaintiff mischaracterizes both the survey of Mr. Hal Poret that

Restoration Hardware submitted in opposition to the preliminary injunction motion and the legal

framework in which it fits. These mischaracterizations confuse the issues and deserve a response.

For example, Plaintiff mischaracterizes Mr. Poret’s survey in this case as a secondary meaning

survey, and then argues that a secondary meaning survey is inapplicable to incontestable

registered marks. In fact, Mr. Poret’s survey is a confusion survey, not a secondary meaning

survey, and therefore is applicable to incontestable registered marks. Plaintiff also attached to its

reply papers Mr. Poret’s testimony from a prior case to make it appear as if he has criticized the

approach he used in this case, ignoring that the different marketplace conditions in the two cases

necessitated different approaches.

Defendants respectfully submit that a brief surreply is justified, and necessary to assist the

Court in resolving Plaintiff’s motion by correcting and clarifying the record. This Court has

granted motions for leave to file surreplies in such situations. Toomey v. Nextel Commc’ns, Inc.,

Case No. C-03-2887 MMC, 2004 U.S. Dist. LEXIS 30793, at *2 (N.D. Cal. Sept. 23, 2004)

(granting motion for leave to file surreply to address arguments “raised for the first time in

[defendant’s] reply, and purported misstatements of fact in [defendant’s] reply.”); Sharper Image

Corp. v. Consumers Union of United States, Inc., Case No. 03-4094 MMC, 2004 U.S. Dist.

LEXIS 24484, at *2 n.1 (N. D. Cal. Feb. 23, 2004) (granting motion for leave to file surreply and

considering to extent surreply “responds to arguments raised for the first time” in reply).

Defendants request that the Court grant leave to file a brief surreply of five pages, supported by a

similarly brief declaration from Mr. Poret responding to the attacks on his survey.

Defendants sought Plaintiff’s stipulation to the filing of a surreply and supporting

declaration, but Plaintiff’s counsel indicated that Plaintiff would oppose such request.

(Declaration of Wesley E. Overson in Support of Defendants’ Motion for Leave to File Surreply ¶

2.)


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DEFENDANTS’ MOTION FOR ADMINISTRATIVE RELIEF TO FILE SURREPLY CASE NO. 3:12-CV-5072 MMC 2sf-3225465

Dated: December 6, 2012

MORRISON & FOERSTER LLP

By: /s/ Wesley E. Overson WESLEY E. OVERSON



EXHIBIT 1

Case3:12-cv-05072-MMC Document42-1 Filed12/06/12 Page1 of 7

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DEFENDANTS’ SUR-REPLY TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION CASE NO. 3:12-CV-5072 MMC sf-3220447







Plaintiff,

v.


Defendants.


DEFENDANTS RESTORATION HARDWARE AND GARY FRIEDMAN’S SUR-REPLY TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

Date: Dec. 14, 2012 Time: 9:00 a.m. Ctrm: 7 Hon. Maxine M. Chesney


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DEFENDANTS’ SUR-REPLY TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION CASE NO. 3:12-CV-5072 MMC 1sf-3220447

INTRODUCTION

In its reply brief, Emeco mischaracterizes both the survey of Mr. Hal Poret that

Restoration Hardware submitted in opposition to the preliminary injunction motion and the legal

framework in which it fits. Mr. Poret surveyed for likelihood of confusion arising from the

Restoration Hardware chair as it appeared in the Restoration Hardware catalog, and he found

virtually none. Restoration Hardware submitted the survey to show that Emeco had failed to

meet its burden on “likelihood of confusion,” an essential element of its claims that is separate

and apart from the validity of the registrations.

Contrary to Emeco’s reply brief, Restoration Hardware did not submit the Poret survey to

challenge Emeco’s registrations’ validity for lack of secondary meaning. Restoration Hardware

challenged the chair design registration because it is generic—as admitted by Emeco’s own

employees (Opp’n at 2, 11) and shown by widespread industry use including third-party sales of

identical chairs to the Navy.1 A challenge on the basis of genericness does not require a survey,

and one is not required at the preliminary injunction stage to defeat Emeco’s motion.2

1 Emeco inexplicably claims that third-party suppliers of the exact same chair to the Navy

are irrelevant. (Reply at 3 n.1.) Not only is there no “Naval exception” that would avoid a genericness conclusion where identical chairs are sold to the Navy, the claim is particularly puzzling because Emeco is simultaneously claiming it has trade dress rights due to its own sales to the U.S. Navy. Emeco’s citation of Anti-Monopoly, Inc. v. Gen. Mills Fun Grp., Inc., 684 F.2d 1316 (9th Cir. 1982), and Magic Wand, Inc. v. RDB, Inc., 940 F.2d 638 (Fed. Cir. 1991), is inapposite, as they address use of a word generically by “a small part” of the public or “scattered consumers,” which courts held were insufficient on their own to show genericness of a word mark. Restoration Hardware showed that identical and nearly identical chairs are on sale across the Internet, visible in restaurants and malls, and even sold to the Navy—literal Navy chairs—by entities other than Emeco. Such widespread use in the industry is the very definition of generic trade dress. Walker & Zanger, Inc. v. Paragon Indus., Inc., 465 F. Supp. 2d 956, 962 (N.D. Cal. 2006) (trade dress generic “if the product design is so common in the industry that it cannot be said to identify a particular source.”)

2 Emeco argues that “serious” litigants introduce surveys on genericness (Reply at 4-5), but cites no case that so requires. In fact, survey evidence is not required to show genericness, and courts regularly resolve the issue without looking to surveys. Van Well Nursery, Inc. v. Mony Life Ins. Co., 421 F. Supp. 2d 1321, 1331 (E.D. Wash. 2006) (survey evidence “not required to resolve issues of genericness.”); see also Kendall-Jackson Winery, Ltd. v. E. & J. Gallo Winery, 150 F.3d 1042, 1049 (9th Cir. 1998) (where particular design was “used widely in the industry,” it was generic); Walker, 465 F. Supp. 2d at 962-64 (finding plaintiff’s product design trade dress generic based on general nature of claimed trade dress and common use in industry).


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Emeco also criticizes the Poret survey as inadequate, attaching Mr. Poret’s testimony from

another case to its reply brief and suggesting that the survey does not meet Mr. Poret’s own

requirements for testing likelihood of confusion. As Mr. Poret explains in his supplemental

declaration, the survey that Emeco cites tested likelihood of confusion at the point of sale in a

case where the drink products were displayed side-by-side in a store. The design of that survey

has no bearing here, where the products were offered for sale in the Restoration Hardware catalog

and on the Restoration Hardware website, and never made it into any stores.

ARGUMENT

I. EMECO MISCHARACTERIZES THE PORET SURVEY.

Contrary to Emeco’s assertions, Mr. Poret did not conduct a secondary meaning survey,

nor did Restoration Hardware rely on the Poret survey as such—the survey is even titled “Survey

to Determine Whether There is a Likelihood That Consumers Who View the Restoration

Hardware Naval Chair Will Confuse It or Associate It with Emeco’s Navy Chair.” (Poret Decl.

Ex. 1.) Nowhere in the report does Mr. Poret characterize his survey as one to test secondary

meaning. Restoration Hardware’s reference to Mr. Poret’s extremely low survey results in the

secondary meaning portion of its brief was merely to surmise that the reason that Emeco did not

submit a secondary meaning survey is that it knew that such a survey would not support a finding

of secondary meaning. That reference cannot convert Mr. Poret’s survey on likelihood of

confusion into a secondary meaning survey. Emeco’s argument that the Poret survey “at best

go[es] solely to secondary meaning” (Reply at 1 (emphasis added)) is specious.

II. THE PORET SURVEY APPLIED A SOUND METHODOLOGY TO TEST FOR LIKELIHOOD OF CONFUSION.

The Poret survey tested whether consumers are likely to confuse or associate Restoration

Hardware’s aluminum naval chair with Emeco’s Navy Chair. The survey was methodologically

sound; it showed images of Restoration Hardware’s chair to Restoration Hardware’s consumers

in settings that replicated both post-sale and point-of-sale marketplace conditions. Hansen

Beverage Co. v. Cytosport, Inc., Case No. CV 09-0031-VBF(AGRx), 2009 U.S. Dist. LEXIS


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120508, at *39 (C.D. Cal. Nov. 4, 2009) (“the proper universe to survey is composed of potential

buyers of the junior user’s goods or services”); Poret Decl. Ex. 1 at 3-9, 12.)

When shown the chair alone, respondents were asked if they associated the overall

appearance of the chair with any particular company or brand of chair. (Poret Decl. Ex. 1 at 3-5.)

If they responded affirmatively, they were then asked which company or brand as well as why

they gave that answer. (Id. at 5.) This question allowed respondents an opportunity to respond

that they associated Restoration Hardware’s chair with Emeco “when seen outside the context of

a Restoration Hardware catalog or website.” (Id. at 5.) In other words, they were given an

opportunity to connect Restoration Hardware’s chair to Emeco even if they did not actually

believe the chair shown was Emeco’s chair. (Id.). Nonetheless, the results remained inescapably

low—Mr. Poret concluded that there was only a “negligible likelihood” that the appearance of the

Restoration Hardware chair will cause any association with Emeco’s Navy Chair. (Id. at 21.)

Respondents were then shown two images from the Restoration Hardware catalog and

were asked if they had an opinion about what company or brand makes the chair. (Id. at 8.) If

they answered affirmatively, they were then asked which company or brand and the basis for their

response. (Id. at 9.) Those who had initially responded that they had an opinion about the

company or brand that makes the chair, but then did not name a specific company or brand, were

then asked what made them answer that they had an opinion in the first instance. (Id.) All

respondents were then asked if they believed the chair was affiliated with or authorized by any

company or brand. (Id.) Those who responded affirmatively were asked to identify that company

or brand and their reason for doing so, and those who did not identify a particular company or

brand were asked what made them answer that they believed the chair was affiliated with or

authorized by any company or brand. (Id.)

Mr. Poret has done hundreds of likelihood of confusion surveys and this is a standard

series of questions designed to test whether there is likelihood of confusion as to source,

sponsorship, or affiliation based upon the look of the defendant’s products. (Poret Decl. Ex. 1 at

2; Poret Sur-Reply Decl. ¶¶ 7-9.) Emeco inexplicably disregards these questions and claims that

the Poret survey “solely” tested secondary meaning. By misconstruing and even ignoring the


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Poret survey’s findings and conclusions, Emeco seeks to obscure the reality: there is no likelihood

of confusion between Restoration Hardware’s chair and Emeco’s Navy Chair. Thus, Emeco is

not likely to prevail on the merits.3

Moreover, Emeco’s criticism that the Poret survey fails to show Emeco and Restoration

Hardware’s chair side-by-side is misplaced. A key tenet underlying likelihood of confusion

surveys is their need to replicate realistically the marketplace conditions in which the products are

generally encountered. Walt Disney Prods. v. Air Pirates, 581 F.2d 751, 759 (9th Cir. 1978)

(reversing summary judgment on trademark infringement claim for plaintiff as comparison of

marks “should not be a simple, visual, side-by-side comparison but rather the mark and the

imitation should be viewed in light of what occurs in the marketplace,” and context of respective

marks “markedly diminished” likelihood of confusion) (quotation omitted). (Poret Sur-Reply

Decl. ¶ 10.) In some situations, such as with handbags or energy drinks, which are often sold in

the same store area or aisle, consumers encounter the plaintiff’s and defendant’s products in close

proximity, (e.g., Malletier v. Dooney & Bourke, Inc., 525 F. Supp. 2d 558, 574 (S.D.N.Y. 2007)

(sequential line-up survey would “better approximate[] marketplace conditions.”); ECF No. 37-3

Ex. 11 at 7 (prior report of Hal Poret explaining sequential lineup appropriate where products

“commonly found on the shelf together in stores”)), and it would make sense to show images of

both parties’ products to test point-of-sale confusion. In Cytosport, Mr. Poret properly noted that

it was appropriate to show respondents both parties’ products where the products could be found

side-by-side on store shelves and the issue was point of sale confusion. (ECF No. 37-3 Ex. 11 at

8.)

3 Emeco tries to shoehorn the facts here into a counterfeiting case so that it can argue in the alternative that it is not even required to demonstrate a likelihood of confusion. This is not a counterfeiting case. Counterfeiting is “the act of producing or selling a product with a sham trademark . . . the most blatant and egregious form of ‘passing off.’” J. McCarthy on Trademarks & Unfair Competition § 25:10; see, e.g., Ubiquiti Networks, Inc. v. Kozumi USA Corp., Case No. C 12-2582 CW, 2012 U.S. Dist. LEXIS 85665, at *38-39 (N.D. Cal. June 20, 2012) (counterfeit products used design, hardware, and software identical to genuine product, as well as plaintiff’s registered word mark, name, and corporate address). Restoration Hardware never represented that the chairs it was offering were Emeco chairs. (Opp’n at 15.) At best, Emeco’s reply brief establishes that there are numerous sources for cheap chairs that look like the Emeco chair—not that the world is full of counterfeiters.


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Emeco grossly misconstrues Mr. Poret’s statements in Cytosport as a blanket indictment

of surveys that do not show both parties’ products in close proximity. It was not, and his

comments have no relevance where the same sales conditions are not present. Here, the Poret

survey realistically replicated marketplace conditions by showing images of the chair from

Restoration Hardware’s actual catalog. Indeed, that is the only way that consumers currently can

encounter the chair, as it is no longer shown on Restoration Hardware’s website and it has never

been available for sale in Restoration Hardware’s stores. (Opp’n at 4-5.) When the products are

never sold side-by-side, or even in the same stores, it would be inappropriate to conduct the type

of survey that Mr. Poret advocated for energy drinks in the Cytosport case—in fact, had Mr. Poret

made such a comparison, it would have weakened the evidentiary value, not strengthened it. See

J. McCarthy on Trademarks & Unfair Competition § 32:163 (“[T]he closer the survey methods

mirror the situation in which the ordinary person would encounter the trademark, the greater the

evidentiary weight of the survey results.”).

Dated: December 6, 2012

MORRISON & FOERSTER LLP

By: /s/ Wesley E. Overson WESLEY E. OVERSON



EXHIBIT 2


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SUR-REPLY DECLARATION OF HAL PORET CASE NO. 3:12-CV-5072 MMC







Plaintiff,

v.


Defendants.


SUR-REPLY DECLARATION OF HAL PORET


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SUR-REPLY DECLARATION OF HAL PORET CASE NO. 3:12-CV-5072 MMC 1

I, Hal Poret, declare:

1. I am a Senior Vice President at ORC International. I previously submitted a

declaration, dated November 15, 2012, in connection with this proceeding. I incorporate that

previous declaration here by reference.

2. As explained in my previous declaration, Restoration Hardware, Inc. (“Restoration

Hardware”) through its counsel at Morrison & Foerster LLP, retained me to design and conduct a

survey to determine the extent to which, if at all, consumers who see the accused Restoration

Hardware chair would confuse it with Emeco Industries, Inc.’s (“Emeco”) Navy Chair or would

otherwise associate it with Emeco’s Navy Chair.

3. The methodology and results of the survey I conducted are detailed in the Expert

Report of Hal Poret in Matter of Emeco Industries, Inc. v. Restoration Hardware, Inc. et al. (the

“Report”). The Report is attached as Exhibit 1 to my previous declaration.

4. I have reviewed Emeco’s reply brief in support of its motion for a preliminary

injunction. That reply brief mischaracterizes the survey I conducted in connection with this case.

Nowhere in the Report did I purport to conduct a secondary meaning survey. Nor do any of the

conclusions in the Report discuss secondary meaning. The survey I conducted tested whether

there is a likelihood that consumers who view Restoration Hardware’s chair will confuse it or

associate it with Emeco’s Navy Chair. Secondary meaning surveys typically show images of the

plaintiff’s trade dress to the plaintiff’s consumers and ask respondents whether they associate the

overall appearance of that trade dress with any particular company. This survey did not use this

design. Rather, the survey showed images of the defendant Restoration Hardware’s chair to the

defendant Restoration Hardware’s consumers and then asked respondents various questions about

the source of the chair.

5. After the screening questions, respondents were shown Restoration Hardware’s

chair alone and were asked if they associated the overall appearance of the chair with any

particular company or brand of chair. If respondents answered affirmatively, they were then

asked with which company or brand do they associate the overall look of the chair. Those who

named a company or brand were asked what makes them associate the overall look of the chair


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with that company or brand. Those who did not name a company or brand were instead asked

why they answered that they associate the overall look of the chair with a particular company or

brand of chair. This gave respondents an opportunity to express that they associate the look of

the chair with Emeco’s Navy Chair even if they do not know the name Emeco or do not know of

“Navy Chair” as a brand name. Thus, the survey did not assume that respondents would know

the name Emeco or “Navy Chair” as a brand name.

6. The purpose of this initial series of questions was to test the extent to which

respondents would associate the look of the Restoration Hardware chair with Emeco or its Navy

Chair, even when seen outside the context of a Restoration Hardware catalog or web page. These

questions presented respondents with an opportunity to express that they associate the look of the

chair with Emeco or its Navy Chair, whether or not they actually believed the chair shown was

Emeco’s chair. For there to be any likelihood of confusion as to source, sponsorship, or

affiliation, consumers must first associate Restoration Hardware’s chair with Emeco’s chair. As I

concluded in the Report, there is only a negligible likelihood that the appearance of the chair will

cause an association with Emeco’s Navy Chair.

7. Respondents were then shown images of two pages from the Restoration Hardware

catalog and were asked questions to test for confusion. Specifically, respondents were asked if

they had an opinion about what company or brand makes the chair shown in these images.

Respondents who answered in the affirmative were then asked what company or brand they

believe makes the chair. Those who named a company or brand were asked what makes them

believe that the chair is made by that company or brand. Those who did not name a company or

brand were instead asked what made them answer that they have an opinion about what company

makes the chair. Again, this gave respondents an opportunity to express an opinion about the

source of the chair even if they do not know the name “Emeco” or “Navy Chair.” Thus, the

survey did not assume that respondents would know the name Emeco or “Navy Chair” as a brand

name.

8. This is a standard series of questions designed to test whether there is a likelihood

of confusion as to source. As I concluded in the Report, there is only a negligible likelihood that


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the Restoration Hardware chair will be confused with Emeco or its Navy Chair.

9. All respondents were next asked if they believe the chair shown is affiliated with

or authorized by any company or brand that they are aware of. Those who answered in the

affirmative were next asked what other company or brand do they believe the chair is affiliated

with or authorized by. Those who named a company or brand were asked what makes them

believe the chair is affiliated with or authorized by that company or brand. Those who did not

name a company or brand were asked what made them answer that they believe the chair is

affiliated with or authorized by a company or brand that they are aware of. This is a standard

series of questions designed to test whether there is a likelihood of confusion as to sponsorship or

affiliation. The survey results support the conclusion that there is no likelihood of confusion as to

affiliation or authorization between the Restoration Hardware chair and Emeco or its Navy Chair.

10. In its reply brief, Emeco criticizes the survey for failing to show both Emeco’s

chair and Restoration Hardware’s chair such that consumers can compare them directly. This is

an improper attack on the survey methodology. Likelihood of confusion surveys seek to replicate

realistic marketplace conditions. In the present case, there is no reason to believe that consumers

will view Restoration Hardware’s catalog alongside or in close proximity to images of Emeco’s

Navy Chair. In fact, showing respondents the actual Restoration Hardware catalog pages was an

ideal replication of marketplace conditions. Because the Restoration Hardware chair is not in

stores and has not been sold, the primary way consumers would see the chair is in the catalog (or

on the website before its removal). Moreover, Emeco has argued that it will be harmed by

distribution of the catalog containing images of the chair. Showing survey respondents the chair

in the context of the catalog simulates the manner in which real consumers would encounter the

product, and it directly tests a key scenario underlying Emeco’s infringement allegation in its

motion for a preliminary injunction.

11. In its reply brief, Emeco cites a rebuttal report I submitted in connection with

CytoSport Inc. v. Vital Pharmaceutical, Inc., No. 2:08-cv-02632-JAM-GGH (ECF No. 195-13)

(E.D. Cal. July 11, 2012). In that report, I pointed out that it was appropriate to show respondents

both parties’ products where the products could be found side-by-side on store shelves and can



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therefore be viewed in close proximity by consumers. But my statements in that rebuttal report

were not a blanket critique of all likelihood of confusion surveys that do not show both parties'

products. Rather, my critique was based on the specific facts of that case and the marketplace

conditions in which consumers normally encountered the products at issue. Indeed, I have

conducted many surveys applying the same format that I used here in the present case.

I declare under penalty of perjury that the foregoing is true and correct and that this

declaration was executed by me this 6th day of December 2012 in S}ffb \1-o\\()l:few York.

SUR-REPLY DECLARATION OF HAL PORET

CASE NO. 3:12-CV-5072MMC

Hal Poret

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DECLARATION OF WESLEY E. OVERSON IN SUPPORT OF REQUEST TO FILE SURREPLY CASE NO. 3:12-CV-05072 MMC 1sf-3226322


Attorneys for Defendants RESTORATION HARDWARE, INC., GARY FRIEDMAN





Plaintiff,

v.


Defendants.


DECLARATION OF WESLEY E. OVERSON IN SUPPORT OF DEFENDANTS’ MOTION FOR ADMINISTRATIVE RELIEF TO FILE SURREPLY


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DECLARATION OF WESLEY E. OVERSON IN SUPPORT OF REQUEST TO FILE SURREPLY CASE NO. 3:12-CV-05072 MMC 2sf-3226322

I, WESLEY E. OVERSON, declare as follows:

1. I am a partner in the law firm of Morrison & Foerster LLP, counsel for Restoration

Hardware, Inc. and Gary Friedman (“Defendants”). I am licensed to practice law in the State of

California and admitted to practice before this Court. I have personal knowledge of the matters

stated herein or understand them to be true from members of my litigation team. I make this

declaration in support of Defendants’ Motion for Administrative Relief to File Surreply in

Support of Opposition to Plaintiff’s Motion for Preliminary Injunction.

2. I spoke to Plaintiff’s counsel on December 4, 2012, to inquire whether Plaintiff

would stipulate to Defendants’ filing of a surreply and supplemental declaration. Counsel

responded that Plaintiff would not so stipulate.

I declare under penalty of perjury that the foregoing is true and correct. Executed this

6th day of December, 2012 at San Francisco, California.

/s/ Wesley E. Overson Wesley E. Overson


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[PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO FILE SURREPLY CASE NO. 3:12-CV-5072 MMC 1sf-3226329





Plaintiff,

v.


Defendants.


[PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION FOR ADMINISTRATIVE RELIEF TO FILE SURREPLY


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[PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO FILE SURREPLY CASE NO. 3:12-CV-5072 MMC 2sf-3226329

Plaintiff filed a motion for administrative relief seeking leave to file a surreply to respond

to criticisms of the survey of Mr. Hal Poret that Defendants submitted in opposition to the

preliminary injunction motion and purported misstatements of fact in Plaintiff’s reply.

Defendants’ motion is GRANTED. The Court will consider the proposed surreply filed as

Exhibit 1 and the supplemental declaration filed as Exhibit 2 to Defendants’ motion for

administrative relief.

IT IS SO ORDERED.

Dated: _______________________ ______________________________ Hon. Maxine M. Chesney

United States District Judge


42 - motion for leave to file sur-reply

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