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John C. Flood of Virginia, Inc. v. John C. Flood

February 1, 2008

JOHN C. FLOOD OF VIRGINIA, INC., ET AL., PLAINTIFFS AND COUNTER-DEFENDANTS,
v.
JOHN C. FLOOD, INC., ET AL., DEFENDANTS AND COUNTER-PLAINTIFFS.



The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge

MEMORANDUM OPINION

Before me is defendant and counter-plaintiffs' Motion for Protective Order of Defendant/Counterclaim-Plaintiff and Defendants ("Motion"), which was referred to me for resolution by Judge Richard J. Leon.

Background

This case pits two groups against each other over the use of the trade name "John C. Flood." Plaintiffs include the company "John C. Flood of Virginia, Inc." and other companies controlled by Clinton Haislip and James L. Seltzer, Jr. (collectively, "Virginia Flood"). The defendants include "John C. Flood, Inc." and "John C. Flood of DC, Inc." (collectively, "1996 Flood").*fn1

In early 1996, Joanne and Robert Smiley and 1996 Flood purchased the trade names and associated goodwill in and to "John C. Flood" and "Flood" (together, the "Flood Marks") for $425,000 in a sale conducted under Section 363 of the U.S. Bankruptcy Code. Memorandum in Support of Defendants' Motion for a Protective Order ("Memo.") at 2. They therefore insist that they "trace their priority rights in the trade names and goodwill they acquired in that sale back to 1984, when the corporate debtor-in-bankruptcy, John C. Flood, Inc. ("1984 Flood") first began using the mark[, and] at all times since the purchase in February, 1996, [] have used JOHN C. FLOOD." Id.

Virginia Flood insists that 1984 Flood abandoned the Flood Marks and that it has priority of use of those marks over 1996 Flood. Virginia Flood's Statement of Points and Authorities in Opposition to 1996 Flood's Motion for a Protective Order ("Opp.") at 4. It has therefore propounded discovery concerning the extent to which 1984 Flood and 1996 Flood were actually doing business and using the Flood Marks. Id.

The Information Sought

Virginia Flood seeks the following information:

1. All documents evidencing the income 1996 Flood has received for each of the past five years from the sale of its goods and services under the Flood Marks and its projected annual income for the next year five years. Virginia Flood Parties' First Set of Requests for the Production of Documents and Things by Defendant/Counterclaim-Plaintiff John C. Flood, Inc. and Defendants John C. Flood of D.C., Inc., Robert Smiley, Joanne Smiley, Mark Crooks and Mel Davis ("First Doc. Reqs."), attached to Motion as Exh. A (as Defendants' Responses to First Doc. Reqs.), at No. 6.

2. All documents setting forth the pricing or intended pricing of 1996 Flood's goods and services. Id. at No. 7.

3. Tax returns "for the years in which the Defendants filed on behalf of their named companies and employees." Id. at No. 34.

4. Franchise returns filed in D.C., Virginia or Maryland by 1996 Flood. Id. at No. 35.

5. All filings and correspondence with the Internal Revenue Service and governmental departments in D.C., Virginia or Maryland by 1986 Flood and 1996 Flood. Id. at Nos. 39-40.

6. Tax returns for defendants Crooks and Davis from 1989, and for defendants Joanne and Robert ...


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