| Court: | nysd |
| Docket #: | 2:08-cv-02924 |
| Case Name: | Marvel Entertainment, Inc. v. Kellytoy (USA),Inc. |
| PACER case #: | 377652 |
| Date filed: | 2008-03-20 |
| Assigned to: | Judge Deborah A. Batts |
| Case Cause: | 17:101 Copyright Infringement |
| Nature of Suit: | 840 Trademark |
| Jury Demand: | Defendant |
| Jurisdiction: | Federal Question |
| Represented Party | Attorney & Contact Info |
| Marvel Entertainment, Inc. Plaintiff a Delaware corporation formerly known asMarvel Enterprises, Inc. |
Howard J. Smith , III Kyle C. Bisceglie |
| Marvel Characters, Inc. Plaintiff a Delaware corporation |
Howard J. Smith , III Kyle C. Bisceglie |
| Kellytoy (USA),Inc. Defendant |
Thea J. Kerman James P. Cinque |
| Kellytoy (USA),Inc. Counter Claimant |
Thea J. Kerman James P. Cinque |
| Marvel Entertainment, Inc. Counter Defendant a Delaware corporation |
Kyle C. Bisceglie |
| Marvel Characters, Inc. Counter Defendant a Delaware corporation |
Kyle C. Bisceglie |
| Date Filed | Document # | Attachment # | Short Description | Long Description | Upload date | SHA1 hash |
| 2008-03-20 | 1 | 0 | COMPLAINT against Kellytoy (USA),Inc. (Filing Fee $ 350.00, Receipt Number 645296)Document filed by Marvel Entertainment, Inc. (Attachments: # 1 ex)(jeh) (Entered: 03/24/2008) | |||
| 2008-03-20 | 2 | 0 | RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by Marvel Entertainment, Inc.(jeh) (Entered: 03/24/2008) | |||
| 2008-05-22 | 3 | 0 | NOTICE of Substitution of Attorney. Old Attorney: Kyle C. Bisceglie and Howard J. Smith, New Attorney: Kyle C. Bisceglie and Howard J. Smith, Address: Olshan Grundman Frome Rosenzweig & Wolosky LLP, Park Avenue Tower, 65 East 55th Street, New York, New York, United States of America 10022, 212-451-2300. Document filed by Marvel Entertainment, Inc.. (Smith, Howard) (Entered: 05/22/2008) | |||
| 2008-06-02 | 4 | 0 | SUBSTITUTION OF COUNSEL: Olshan Grundman Frome Rosenzweig & Wolosky, LLP, Park Avenue Tower, 65 East 55th Street, New York, NY, 10022, (212) 451-2300, shall be substituted as counsel of record for plaintiffs Marvel Entertainment, Inc. f/k/a Marvel Enterprises, Inc., and Marvel Characters, Inc. in the above captioned matter, in place of Barton Barton & Plotkin, LLP, 420 Lexington Avenue, New York, NY 10170, (212) 687-6262. ENDORSEMENT: Approved. (Signed by Judge Denny Chin on 6/2/08) (tro) (Entered: 06/02/2008) | |||
| 2008-06-03 | 5 | 0 | ANSWER to Complaint with JURY DEMAND. Document filed by Kellytoy (USA),Inc..(Kerman, Thea) (Entered: 06/03/2008) | |||
| 2008-06-16 | 6 | 0 | LETTER addressed to All parties from David Tam, Courtroom Deputy Clerk to the Honorable Denny Chin dated 6/16/08 re: Counsel for both sides are directed to attend a pretrial conference for the purpose of determining the status of the case, setting a discovery schedule, fixing a trial date, and discussing possible settlement. This Conference will be held on 7/11/08 at 11:00AM in Room 11A of the U.S.D.C., S.D.N.Y, 500 Pearl Street, New York, NY 10007.(tro) (Entered: 06/16/2008) | |||
| 2008-06-16 | 7 | 0 | LETTER from Chambers of Judge Denny dated 6/16/08 re: that counsel for both sides are directed to attend a pretrial conference for the purpose of determining the status of the case, setting a discovery scheduled, fixing a trial date, and discussing possible settlement. The conference will be held on 7/11/08 at 11:00 a.m., Room 11A. of the Unites Stated Courthouse, 5600 Pearl Street, New York, New York 10007. (pl) (Entered: 06/19/2008) | |||
| 2008-06-30 | 8 | 0 | RULE 7.1 CORPORATE DISCLOSURE STATEMENT. Identifying no as Corporate Parent. Document filed by Kellytoy (USA),Inc..(Kerman, Thea) (Entered: 06/30/2008) | |||
| 2008-08-29 | 9 | 0 | RULE 26 DISCLOSURE.Document filed by Kellytoy (USA),Inc..(Kerman, Thea) (Entered: 08/29/2008) | |||
| 2008-08-29 | 10 | 0 | REQUEST for Production of Documents.Document filed by Kellytoy (USA),Inc..(Kerman, Thea) (Entered: 08/29/2008) | |||
| 2008-09-25 | 11 | 0 | NOTICE OF APPEARANCE by James P. Cinque on behalf of Kellytoy (USA),Inc. (Cinque, James) (Entered: 09/25/2008) | |||
| 2008-10-31 | 12 | 0 | AMENDED COMPLAINT amending 1 Complaint against Kellytoy (USA),Inc. Document filed by Marvel Characters, Inc., Marvel Entertainment, Inc. Related document: 1 Complaint filed by Marvel Entertainment, Inc. (dle) (dle). (Entered: 11/03/2008) | |||
| 2008-11-14 | 13 | 0 | ANSWER to Amended Complaint., COUNTERCLAIM against all plaintiffs. Document filed by Kellytoy (USA),Inc.. Related document: 12 Amended Complaint filed by Marvel Characters, Inc., Marvel Entertainment, Inc..(Cinque, James) (Entered: 11/14/2008) | |||
| 2008-11-21 | 14 | 0 | REQUEST for Production of Documents.Document filed by Kellytoy (USA),Inc..(Cinque, James) (Entered: 11/21/2008) | |||
| 2008-12-04 | 15 | 0 | ANSWER to Counterclaim. Document filed by Marvel Entertainment, Inc., Marvel Characters, Inc..(Bisceglie, Kyle) (Entered: 12/04/2008) | |||
| 2009-01-09 | 16 | 0 | STIPULATION AND ORDER OF CONFIDENTIALITY...regarding procedures to be followed that shall govern the handling of confidential material.... (Signed by Judge Denny Chin on 1/9/09) (cd) (Entered: 01/12/2009) | |||
| 2009-02-09 | 17 | 0 | NOTICE of Hearing: The conference in the above matter will be rescheduled from February 13, 2009 to February 20, 2009 at 2:00 P.M., in Room llA of the United States Courthouse, 500 Pearl Street, New York, New York 10007. Please send a copy of this notice to your adversary, and mail a copy of a transmittal letter to the undersigned. All communication regarding this matter should be directed to Judge Chin's clerk, Mr. David Tam U.S.D.C. - S.D.N.Y. United States Courthouse 500 Pearl Street, Rm. 1020 New York, New York 10007 (212) 805-0096.(jfe) (Entered: 02/09/2009) | |||
| 2009-02-10 | 18 | 0 | REVISED SCHEDULING ORDER: The conference scheduled for February 13, 2009 shall be adjourned to 4/17/2009, at 11:30 a.m. All discovery, fact and expert, shall be completed by April 15, 2009. (Signed by Judge Denny Chin on 2/10/2009) (jfe) (Entered: 02/10/2009) | |||
| 2009-04-17 | 19 | 0 | REVISED SCHEDULING ORDER: The conference scheduled for April 17, 2009 shall be adjourned to 6/26/2009, at noon. The 30(b)(6) deposition of plaintiffs shall take place on May 5, 2009. All other fact discovery, including non-party discovery shall be completed by June 15, 2009. At the conclusion of the discovery, the parties will mediate this dispute with the Court. (Signed by Judge Denny Chin on 4/16/2009) (jpo) (Entered: 04/17/2009) | |||
| 2009-06-05 | 20 | 0 | RULE 26 DISCLOSURE.Document filed by Kellytoy (USA),Inc..(Cinque, James) (Entered: 06/05/2009) | |||
| 2009-09-25 | 21 | 0 | FIRST MOTION for Summary Judgment. Document filed by Marvel Entertainment, Inc., Marvel Characters, Inc..(Smith, Howard) (Entered: 09/25/2009) | |||
| 2009-09-25 | 22 | 0 | DECLARATION of Kyle C. Bisceglie in Support re: 21 FIRST MOTION for Summary Judgment.. Document filed by Marvel Entertainment, Inc., Marvel Characters, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Smith, Howard) (Entered: 09/25/2009) | |||
| 2009-09-25 | 23 | 0 | RULE 56.1 STATEMENT. Document filed by Marvel Entertainment, Inc., Marvel Characters, Inc.. (Smith, Howard) (Entered: 09/25/2009) | |||
| 2009-09-25 | 24 | 0 | DECLARATION of Eli Bard in Support re: 21 FIRST MOTION for Summary Judgment.. Document filed by Marvel Entertainment, Inc., Marvel Characters, Inc.. (Attachments: # 1 Exhibit 1 Pt 1, # 2 Exhibit 1 Pt 2, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4 Pt 1, # 6 Exhibit 4 Pt 2)(Smith, Howard) (Entered: 09/25/2009) | |||
| 2009-09-25 | 25 | 0 | MEMORANDUM OF LAW in Support re: 21 FIRST MOTION for Summary Judgment.. Document filed by Marvel Entertainment, Inc., Marvel Characters, Inc.. (Smith, Howard) (Entered: 09/25/2009) | |||
| 2009-09-25 | 26 | 0 | MOTION for Summary Judgment. Document filed by Kellytoy (USA),Inc.. Return Date set for 11/9/2009 at 09:30 AM.(Cinque, James) (Entered: 09/25/2009) | |||
| 2009-09-25 | 27 | 0 | DECLARATION of Jonathan S. Kelly in Support re: 26 MOTION for Summary Judgment.. Document filed by Kellytoy (USA),Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C - Part 1, # 4 Exhibit C - Part 2, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K)(Cinque, James) (Entered: 09/25/2009) | |||
| 2009-09-25 | 28 | 0 | MEMORANDUM OF LAW in Support re: 26 MOTION for Summary Judgment.. Document filed by Kellytoy (USA),Inc.. (Cinque, James) (Entered: 09/25/2009) | |||
| 2009-09-25 | 29 | 0 | RULE 56.1 STATEMENT. Document filed by Kellytoy (USA),Inc.. (Cinque, James) (Entered: 09/25/2009) | |||
| 2009-09-25 | 30 | 0 | MOTION in Limine to Preclude Testimony at Trial. Document filed by Kellytoy (USA),Inc.. Return Date set for 10/16/2009 at 09:30 AM.(Cinque, James) (Entered: 09/25/2009) | |||
| 2009-09-25 | 31 | 0 | DECLARATION of James P. Cinque in Support re: 30 MOTION in Limine to Preclude Testimony at Trial.. Document filed by Kellytoy (USA),Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Cinque, James) (Entered: 09/25/2009) | |||
| 2009-09-25 | 32 | 0 | MEMORANDUM OF LAW in Support re: 30 MOTION in Limine to Preclude Testimony at Trial.. Document filed by Kellytoy (USA),Inc.. (Cinque, James) (Entered: 09/25/2009) | |||
| 2009-10-01 | 33 | 0 | ENDORSED LETTER addressed to Judge Denny Chin from James P. Cinque dated 9/30/09 re: Counsel have no objection to the motion in limine having the same briefing schedule as set for the summary judgment motion. ENDORSEMENT: Plaintiffs' request to strike the motion in limine is DENIED. The motion in limine shall be briefed on the same schedule as the motion for summary judgment. (Signed by Judge Denny Chin on 10/1/09) (tro) (Entered: 10/02/2009) | |||
| 2009-10-26 | 34 | 0 | OPPOSITION BRIEF re: 30 MOTION in Limine to Preclude Testimony at Trial.. Document filed by Marvel Entertainment, Inc., Marvel Characters, Inc..(Smith, Howard) (Entered: 10/26/2009) | |||
| 2009-10-26 | 35 | 0 | AFFIRMATION of Howard J. Smith in Opposition re: 30 MOTION in Limine to Preclude Testimony at Trial.. Document filed by Marvel Entertainment, Inc., Marvel Characters, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10)(Smith, Howard) (Entered: 10/26/2009) | |||
| 2009-10-26 | 36 | 0 | MEMORANDUM OF LAW in Opposition re: 26 MOTION for Summary Judgment.. Document filed by Marvel Entertainment, Inc., Marvel Characters, Inc.. (Smith, Howard) (Entered: 10/26/2009) | |||
| 2009-10-26 | 37 | 0 | DECLARATION of Eli Bard in Opposition re: 26 MOTION for Summary Judgment.. Document filed by Marvel Entertainment, Inc., Marvel Characters, Inc.. (Smith, Howard) (Entered: 10/26/2009) | |||
| 2009-10-26 | 38 | 0 | COUNTER STATEMENT TO 29 Rule 56.1 Statement. Document filed by Marvel Entertainment, Inc., Marvel Characters, Inc.. (Smith, Howard) (Entered: 10/26/2009) | |||
| 2009-10-26 | 39 | 0 | RULE 56.1 STATEMENT. Document filed by Kellytoy (USA),Inc.. (Cinque, James) (Entered: 10/26/2009) | |||
| 2009-10-26 | 40 | 0 | MEMORANDUM OF LAW in Opposition re: 21 FIRST MOTION for Summary Judgment.. Document filed by Kellytoy (USA),Inc.. (Cinque, James) (Entered: 10/26/2009) | |||
| 2009-10-26 | 41 | 0 | DECLARATION of Jonathan S. Kelly in Opposition re: 21 FIRST MOTION for Summary Judgment.. Document filed by Kellytoy (USA),Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Cinque, James) (Entered: 10/26/2009) | |||
| 2009-11-09 | 42 | 0 | REPLY AFFIDAVIT of Jonathan S. Kelly in Support re: 26 MOTION for Summary Judgment.. Document filed by Kellytoy (USA),Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Cinque, James) (Entered: 11/09/2009) | |||
| 2009-11-09 | 43 | 0 | REPLY MEMORANDUM OF LAW in Support re: 26 MOTION for Summary Judgment.. Document filed by Kellytoy (USA),Inc.. (Cinque, James) (Entered: 11/09/2009) | |||
| 2009-11-09 | 44 | 0 | REPLY MEMORANDUM OF LAW in Support re: 30 MOTION in Limine to Preclude Testimony at Trial.. Document filed by Kellytoy (USA),Inc.. (Cinque, James) (Entered: 11/09/2009) | |||
| 2009-11-09 | 45 | 0 | REPLY AFFIDAVIT of Kyle C. Bisceglie in Support re: 21 FIRST MOTION for Summary Judgment.. Document filed by Marvel Entertainment, Inc., Marvel Characters, Inc.. (Attachments: # 1 Exhibit 1)(Smith, Howard) (Entered: 11/09/2009) | |||
| 2009-11-09 | 46 | 0 | REPLY MEMORANDUM OF LAW in Support re: 21 FIRST MOTION for Summary Judgment.. Document filed by Marvel Entertainment, Inc., Marvel Characters, Inc.. (Smith, Howard) (Entered: 11/09/2009) | |||
| 2010-01-15 | 47 | 0 | SUPPLEMENTAL RULE 7.1 CORPORATE DISCLOSURE STATEMENT. Identifying The Walt Disney Company as Corporate Parent. Document filed by Marvel Entertainment, Inc., Marvel Characters, Inc..(Smith, Howard) (Entered: 01/15/2010) | |||
| 2010-05-20 | 48 | 0 | NOTICE OF CASE REASSIGNMENT to Judge Deborah A. Batts. Judge Denny Chin is no longer assigned to the case. (ldi) (Entered: 05/20/2010) | |||
| 2010-08-24 | 49 | 0 | ORDER: As the parties have not yet filed pre-trial submissions in this matter, Defendant's Motion is premature, and is dismissed at this time without prejudice to later re-filing. (Signed by Judge Deborah A. Batts on 8/24/2010) (jpo) (Entered: 08/24/2010) | |||
| 2011-02-18 | 50 | 0 | MEMORANDUM AND ORDER granting in part and denying in part 21 Motion for Summary Judgment; granting in part and denying in part 26 Motion for Summary Judgment. Plaintiffs' Motion for Summary Judgment is GRANTED as to sales of pet toys in 2005 and 2006, sales of articles outside of the licensed territories, liability for associated attorney's fees, and liability for miscalculating royalties. Plaintiffs' Motion is DENIED in all other respects. Defendant's Motion for Summary Judgment is GRANTED as to sales of pet toys in 2004, and Plaintiffs' Third, Fourth and Eighth Claims for Relief. Defendants Motion is DENIED in all other respects. Parties shall submit their Proposed Voir Dire Questions and Proposed Requests to Charge to this Court, in conformity with the Court's Individual Practices, no later than sixty days from the date of this Order. Parties shall file their Joint Pre-trial Statement and respective Memoranda of Law addressing the issues raised in the JPTS within sixty days of the date of this Order. Responses to the Memoranda of Law shall be submitted no later than fourteen days after being served with the Memoranda of Law. There shall be no replies. (Signed by Judge Deborah A. Batts on 2/18/2011) (jar) Modified on 2/18/2011 (jar). Modified on 2/25/2011 (jar). (Entered: 02/18/2011) | 2011-06-02 09:13:14 | 986d02aeceb83139dda79902909f1c9a19f5c5fc | |
| 2011-04-07 | 51 | 0 | ENDORSED LETTER addressed to Judge Deborah A. Batts from Kyle C. Bisceglie dated March 31, 2011 re: We represent Plaintiffs in the above-referenced matter. Per the Court's Individual Practices, we write to request a ninety-day extension of the deadlines for the parties' pre-trial submissions and memoranda of law set forth in the Court's February 18, 2011 Memorandum and Order (the "Order") (Document No. 50) and that this matter be referred to the Court's alternative dispute resolution program. Specifically, we request that the deadline for the parties' pre-trial submissions and memoranda of law be adjourned from April 19, 2011 to July 19, 2011 to permit time for the parties to mediate the case. We also request that Defendant have until June 15, 2011 to take the deposition of Eli Bard, Esq. This is the first request for an extension of these deadlines and Defendant's counsel joins in these requests. Further, the parties jointly request that this matter be referred to mediation pursuant to Local Ru1e 83.12. Though mediation of this case was previously ordered by Judge Chin (Document No. 20), the parties have not yet engaged in mediation of this matter. ENDORSEMENT: granted. SO ORDERED. (Signed by Judge Deborah A. Batts on 4/7/11) (jmi) Modified on 4/12/2011 (jmi). (Entered: 04/11/2011) | |||
| 2011-04-11 | 52 | 0 | MEDIATION REFERRAL ORDER...the above-entitled action is eligible for mediation, pursuant to the Civil Justice Expense and Delay Reduction Plan. This action is eligible for mediation subject to the limitations and restrictions as noted: ALL ISSUES ARE ELIGIBLE. Please reference the following when corresponding with the Mediation Office. E-mail MediationOffice@nysd.uscourts.gov, telephone (212) 805-0643, and facsimile (212) 805-0647. Pursuant to Local Civil Rule 83.12(e), the Court has determined that the above-captioned case is appropriate for mediation. In light of the mediation ordered in this case, it is hereby ORDERED that this action be placed on the Court's suspense calendar, pursuant to Rule 20 of the Rules for the Division of Business Among District Judges Southern District, pending further notice from the Court. It is FURTHER ORDERED that the parties shall provide a status report to the Court immediately upon completion of mediation. Mediator to be Assigned by 4/21/2011. Mediator Expertise Request due by 4/18/2011. (Signed by Judge Deborah A. Batts on 4/11/2011) (tro) Modified on 4/12/2011 (tro). (Entered: 04/11/2011) | |||
| 2011-05-02 | 53 | 0 | ENDORSED LETTER addressed to Judge Deborah A. Batts from The Law Offices of Cinque & Cinque, P.C dated 4/27/2011 re: Counsel for defendant request an extension of the date for the parties' pre-trial submissions and memorandum of law from 7/19/2011 to 8/19/2011. ENDORSEMENT: Granted. (Signed by Judge Deborah A. Batts on 5/2/2011) (tro) (Entered: 05/03/2011) |