Contraband Sports v. Fit Four - Complaint
Contraband Sports v. Fit Four - Complaint
Contraband Sports v. Fit Four - Complaint
COMPLAINT
hereby seeks declaratory judgement that Contraband is not infringing any valid patent rights
owned by Defendant Fit Four LLC. (“Fit Four” or “Defendant”) by its sale of its Contraband
Lifting Gloves. The need for such relief exists because Fit Four has wrongfully accused
Contraband of patent infringement and has filed several Notices of Intellectual Property Rights
Contraband Lifting Gloves listings and content, which prevents Contraband from selling its
products.
PRELIMINARY STATEMENT
including its popular “Pink Label” and “Black Label” gloves used by both men and women
bodybuilders, powerlifters, Mixed Martial Artists, and Cross Fit Athletes. Contraband has
filed several patent and trademark applications with the United States Patent and Trademark
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Glove”), a glove which features grip-lock padding around the palm region and an adjustable
strap. See Exhibit A. Micro Gloves are offered in a variety of colors and sizes including
extra small, small, medium, and large for $15 per pair. Since their creation in 2015, the
Micro Gloves quickly gained popularity on Amazon and was recognized as an “Amazon’s
Choice” award winner based on its superior ratings and value. Reviewers have rated Micro
Gloves a 4.4/5-star award leading to over 1000 sales in the last year.
2. In response to the popularity of the Micro Gloves, Fit Four sent a threatening
email on October 2, 2017 wrongfully accusing Contraband of infringing its design patent
infringement and providing points of distinction between the glove designs. See Exhibit C.
4. On November 21, 2017, attorneys for Fit Four filed a Notice of Intellectual
Property Rights Violation with Amazon’s Seller Performance Team alleging patent
infringement by Contraband and resulting in the immediate removal of all extra small black
Micro Gloves listings, approximately one week before the busiest online shopping day of the
differences between the products upon which Defendant had submitted its Notice of
Intellectual Property Rights Violation and U.S. Design Patent No. D652,607 upon which
Defendants based its claims, and demanded that the wrongful Amazon Notices be retracted.
See Exhibits E and F. In the Defendant’s response on November 22, 2017, they denied
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Contraband’s request and provided a description of products which does not match the Micro
Rights Violation with Amazon’s Seller Performance Team alleging patent infringement by
Contraband and resulting in immediate removal of all small pink and black Micro Gloves
7. On December 19, 2017, attorney for Fit Four filed a third Notice of Intellectual
Property Rights Violation with Amazon’s Seller Performance Team alleging patent
infringement by Contraband and resulting in immediate removal of all medium black Micro
Gloves listings, one of Contraband’s top selling products, during the busy holiday shopping
season and less that one week before Christmas. See Exhibit I
PROCEDURAL BACKGROUND
A. The Parties
under the laws of Florida, with its principal place of business at 1749 NE Miami Court, Apt.
9. Defendant FIT FOUR, LLC is a limited liability company formed under the laws
of the State of Utah, with its principal places of business at 1065 South 500 # 3, Bountiful,
Utah 84010.
10. This is a civil action seeking monetary and injunctive relief for declaratory
judgement under 28 U.S.C. § 2201, federal question under 28 U.S.C. § 1331, Patent Act
under 28 U.S.C. § 1338, and for substantial and related claims of tortious interference with a
3
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contract, unjust enrichment, and unfair and deceptive trade practices under the statutory and
common laws of the State of Florida. The matter in controversy, exclusive of interest and
costs, exceeds the sum or value of seventy-five thousand dollars ($75,000) and arises under
11. This Court has personal jurisdiction over defendant because Fit Four solicits
business with parties located in Florida, a substantial part of the events and omissions
occurred in this district, and the causation of tortious injury within the state by acts or
12. The Court has subject matter jurisdiction pursuant to, 28 U.S.C. §§ 1331 and
1338(a) and (b) of the federal law claims. This Court has supplemental jurisdiction over
Contraband’s state law claims pursuant to 28 U.S.C. § 1367(a) because those claims are so
related to the claims in this action within the Court’s original jurisdiction that they form part
13. Venue is proper in this district under 28 U.S.C. §§ 1391(b)(1) - (2) and (c) and/or
14. Contraband re-alleges paragraphs 1 through 11 above as if fully set forth herein.
15. Contraband is not infringing any valid claim of Fit Four’s U.S. Design Patent No.
D652,607 (“the ’607 patent”). Fit Four has accused Contraband of infringing claim 1 of the
’607 patent. Contraband’s sale of the Micro Glove does not constitute infringement of claim
1 of the ’607 patent because the Micro Glove, unlike the ’607 Patent, includes, among other
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a distinct grip-lock padding pattern of silicon rubber beads throughout the bottom surface;
and reinforced grip pads along the bottom-side finger portions, including two elongated grip
pads that extend beyond the finger hole for the middle two fingers.
16. Under the circumstances, a judicial declaration is necessary and appropriate at this
time so that the parties and others may determine their rights and duties under the laws at
issue.
17. Contraband is entitled to a declaratory judgement that it has not infringed claim 1
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18. Contraband re-alleges paragraphs 1 through 11 above as if fully set forth herein.
19. Contraband alleges that Fit Four has and is currently engaged in deceptive and
unfair trade practice under sections 501.203(3) and 501.204(1), Florida Statutes (FDUTPA).
20. As described above, Defendant has engaged in unfair trade practices by falsely
filing a Notice of Intellectual Property Rights Violation with Amazon’s Seller Performance
Contraband’s online sales during the busiest shopping period of the year.
21. Defendant has engaged in false and misleading representations and omissions of
material fact to Amazon’s Seller Performance Team consumers and has engaged in deceptive
conduct designed to intentionally interfere with Contraband’s online market and sales.
22. Defendant’s false and misleading representations and deceptive conduct are
material in that they have caused and are likely to cause prospective consumers of the
Plaintiff’s products to be forced to purchase the Defendant products based on the absence of
23. Defendant has disparaged the goods and services and business reputation of
Plaintiff through false and misleading representations of material fact by falsely filing a
Performance Team in violation of Florida’s Deceptive and Unfair Trade Practices Act,
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24. As a direct and proximate result of such misleading and deceptive conduct, the
Plaintiff, as well as consumers, have sustained and are likely to continue to sustain damages
26. Pursuant to Florida’s Deceptive and Unfair Trade Practices Act §§ 501.207 –
501.2075, the Plaintiff is entitled to enjoin Defendant’s unlawful conduct as well as obtain
27. Contraband re-alleges paragraphs 1 through 11 above as if fully set forth herein.
with Amazon.com, whereby Contraband was able to advertise and sell its products through
Amazon’s website, which is one of the most successful sales enterprises in the world,
29. Contraband has attributed approximately ninety percent of its yearly sales to its
business relationship with Amazon and its ability to sell products to Amazon’s huge
customer base.
Amazon by falsely informing Amazon that Contraband was selling products that infringed
Defendant’s patent, causing Amazon to remove Contraband items from sale on Amazon.
8
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32. As a result of Contraband products being removed from Amazon, Contraband has
suffered loss of sales, loss of profits, loss of reputation, and potential loss of customers.
35. Contraband repeats and re-alleges each and every allegation of paragraphs 1
36. Contraband been denied financial compensation from the proceeds of sales as a
with Amazon’s Seller Performance Team, and have benefitted from Contraband’s inability to
sell their product on Amazon by selling products to potential customers of Contraband who
could no longer find Contraband’s products on Amazon. Defendant has received monies that
unjustly enrich it at Contraband’s expense. This constitutes unjust enrichment under Florida
common law. The circumstances are such that equity and good conscience require the
37. Contraband requests that in order to facilitate the disgorgement of Defendant’s ill-
gotten proceeds, this Court impose a constructive trust against the Defendant from its illicit
38. Contraband repeats and re-alleges each and every allegation of paragraphs 1
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the Florida tort of libel per se because the false and malicious statements accuse Contraband
Amazon’s Seller Performance Team in each Notice filed with Amazon in which Defendant
falsely stated that the Micro Gloves cited therein infringed the ’607 Patent.
40. Such false statements made by Defendant about Contraband were stated as though
they were facts, not opinions, and are attacks on Contraband’s professional character.
41. Such false statements were made by Defendant with actual malice and the intent
to injure Contraband’s reputation, divert business from Contraband, and have caused harm to
incidental, and punitive damages, together with court costs, and attorney’s fees.
continue to suffer damaged reputation and financial loss through loss of business and loss of
DAMAGES
45. Contraband repeats and re-alleges each and every allegation of paragraphs 1
through 11 as if fully set forth herein. Contraband affirmatively pleads and seeks monetary
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Jury Demand
46. Contraband hereby demands pursuant to Federal Rule of Civil Procedure 38(b) a
customers or to other third parties, that Contraband’s sales of the Micro Glove constitute
3. Fit Four be required to pay Contraband the Defendant’s profits and any costs of
this action and any damages which the Contraband sustained as a result of Defendant’s
willful deceptive acts and unfair trade practices, tortious interference, unjust enrichment, and
4. Fit Four be required to pay any exceptional damages under 35 U.S.C. §285.
5. Fit Four be required to pay to Plaintiff actual damages against the Defendant on
the cause of action alleged herein and the recovery of pre-judgment and post-judgement
6. Fit Four be required to pay the Plaintiff its reasonable attorney’s fees and costs
7. The Court grants such other and further relief, both general and special, at law or
11
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Respectfully Submitted,
Dated: December 19, 2017
12
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I electronically filed the foregoing document with the Clerk of
the Court using CM/DE. I also certify that the foregoing document is being served this day on all
counsel of record or pro se parties identified on the attached service list in the manner specified,
either via transmission of Notices of Electronic Filing generate by CM/DE or in some other
authorized manner for those counsel or parties who are not authorized to receive electronically
Service List
Timothy D. Nichols
60 East South Temple
Suite 1000
Salt Lake City, UT 84111
Telephone: (801) 322-8442
Email: TNichols@WNLaw.com
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EXHIBIT A
12/19/2017
Case 1:17-cv-24615-RNSContraband
DocumentPink Label
1-1 5537Entered
Womens MICRO Lifting Gloves
on FLSD Docket| Contraband Sports
12/19/2017 Page 2 of 26
PRODUCT INFORMATION
MICRO GLOVE DESIGN – Custom designed to allow your hands to feel free while still providing
protection where you need it most. Adjustable closure velcro provides just the right amount of tightness as
preferred by the user.
GRIP-LOCK PADDING – Silicone rubber beading on the glove palm provides a high traction surface to
grab a barbell, dumbbell, or other piece of equipment and hold it securely without losing grip. This provides
a much better grip than traditional leather palm gloves.
COMFORT SOFT INTERIOR – Glove interior is soft to provide comfort for extended use. The materials
help to pull sweat from the hands and absorb in order to maintain a firm fit without slippage.
QUICK REMOVAL FINGER TABS – Placed on the index and ring finger, the pointed tabs allow for quick
removal of the gloves. Rather than dig around trying to get a grip on the glove, the tabs are easy to grip
and make removing the gloves extremely easy.
NO HASSLE RETURNS AND WARRANTY – There is a full purchase price refund within 30 days of your
purchase if you are not happy for any reason. After 30 days, there is a 1yr full replacement warranty on
these gloves for any manufacturing defect.
http://contrabandsports.com/portfolio/contraband-pink-label-5537-womens-micro-lifting-gloves/ 1/1
Case 1:17-cv-24615-RNS Document 1-1 Entered on FLSD Docket 12/19/2017 Page 3 of 26
EXHIBIT B
Case 1:17-cv-24615-RNS Document 1-1 Entered on FLSD Docket 12/19/2017 Page 4 of 26
For your security, Amazon removed parts of this message. Click here to learn more:
http://www.amazon.com/gp/help/customer/display.html?nodeId=200465390
I am one of the owners of Fit Four, LLC. We, as you obviously are aware, own the rights to and
manufacture the 4 finger Gripper Glove.
We own a design patent on the Gripper Glove that you are in direct violation of with your gloves, ASIN
B01CZGMV1W.
To avoid Amazon getting involved and further legal action please reply to this email with the information
below and stop selling the violating gloves immediately.
1 Confirm that you have stopped selling the gloves.
2 Tell us if you are the manufacturer of the gloves or a distributor.
3 If you are not the manufacturer please give us the name and contact info for the manufacturer.
Regards,
Matt Mantell
[link removed]
EXHIBIT C
Case 1:17-cv-24615-RNS Document 1-1 Entered on FLSD Docket 12/19/2017 Page 6 of 26
Hi,
Thanks for your email. We investigated your gloves prior to our design and through our patent lawyer
determined that we would not be in violation, additionally our design was able to be submitted for a
patent which has been done. Please inspect our item compared to yours and see the major differences
in the designs. While you do have a patent on your design, it does not cover all products that could
potentially cover half the hand, therefore we were able to design a product that covers half the hand
and performs very differently than the gripper glove. If you have any questions, please have your patent
lawyer contact us and present evidence of how our design infringes on your patent, we will evaluate
with our patent lawyer however this was already done prior to design of our gloves.
We respect the patents that other businesses have and it gives you the ability to protect something that
you have designed. The patent system is also meant to allow innovation in which an individual or a
company can take a previous design, enhance it, and patent the new product, which is exactly what we
have done. We evaluated all products that were similar to the gripper gloves, including the gripper
gloves. We determined what the patent provided for and what it didn't. Then we designed our product
based on what we would be allowed to do that would not violate your patent.
Sincerely,
Christopher French
Contraband Sports
----------------------------------
Case 1:17-cv-24615-RNS Document 1-1 Entered on FLSD Docket 12/19/2017 Page 7 of 26
EXHIBIT D
Case 1:17-cv-24615-RNS Document 1-1 Entered on FLSD Docket 12/19/2017 Page 8 of 26
Hello,
We are contacting you because we received a report of patent infringement. Sellers on Amazon.com are
not allowed to create listings or detail pages that infringe third-party patents.
We removed the content listed at the end of this email. We may let you list this content again if we
receive a retraction of the complaint from the rights owner. Their contact information can be found
below.
--tnichols@wnlaw.com
If the rights owner agrees to retract their complaint, they must send the retraction to us at notice-
dispute@amazon.com.
If you believe that the reported content does not infringe the rights owner’s patent, you may email
notice-dispute@amazon.com with supporting information.
If the rights owner does not retract their complaint, or you do not provide supporting information, we
may provide your contact information to the rights owner upon their request.
We consider allegations of intellectual property infringement a serious matter and your account is under
review. If we receive more complaints about your listings, we may not allow you to sell on Amazon.com.
To learn more about this policy, search for 'Intellectual Property Violations' in Seller Central Help.
ASIN(s):
B01CZGMV1W
Complaint ID: 1203301981
Infringement type: Patent
Sincerely,
EXHIBIT E
Case 1:17-cv-24615-RNS Document 1-1 Entered on FLSD Docket 12/19/2017 Page 10 of 26
We have reviewed what we believe is the patent at issue in this matter, USD652607S1 to
Robbins. Please correct me if I am mistaken. After reviewing your client’s issued patent and
comparing it with our client's design, we are very confident that our client's gloves do not
infringe your client’s ‘607 patent. Specifically, when comparing the two designs side-by-side,
the Robbins Patent fails to disclose many of the key features shown in our client’s design such as
a fastening mechanism, padded palm area, incorporated grips, elongated middle and ring finger
grips, and overall topside design/appearance, and we are confident that an ordinary observer
would not view them as substantially similar. Further, based on these glaring differences, we are
confident the Intellectual Property Rights Violation Notice filed by your client was designed to
interfere with our clients current business and contractual relationships and/or disrupt our client
sales during the busiest sales period of the year. With that said if your client does not
immediately retract their violation request to Amazon by 5:00 pm on Wednesday,
November 22, 2017, we will seek judicial relief including all available remedies.
This e-mail is from the Rapacke Law Group, P.A. (“RLG”), and is intended solely for the use of the individual(s) to whom it is addressed. If you
believe you received this e-mail in error, please notify the sender immediately, delete the e-mail from your computer and do not copy or
disclose it to anyone else. If you are not an existing client of RLG, do not construe anything in this e-mail to make you a client unless it contains
a specific statement to that effect and do not disclose anything to RLG in reply that you expect it to hold in confidence. If you properly received
this e-mail as a client, co-counsel or retained expert of RLG, you should maintain its contents in confidence in order to preserve the attorney-
client or work product privilege that may be available to protect confidentiality.
Case 1:17-cv-24615-RNS Document 1-1 Entered on FLSD Docket 12/19/2017 Page 11 of 26
EXHIBIT F
Case 1:17-cv-24615-RNS Document 1-1 Entered on FLSD Docket 12/19/2017 Page 12 of 26
USOOD652607S
(12) United
Robbins
States Design Patent (10) Patent No.: US D652,607 S
(45) Date of Patent: ... Jan. 24, 2012
Fig. 7
Case 1:17-cv-24615-RNS Document 1-1 Entered on FLSD Docket 12/19/2017 Page 18 of 26
Fig. 8
Case 1:17-cv-24615-RNS Document 1-1 Entered on FLSD Docket 12/19/2017 Page 19 of 26
Fig. 9 Fig. 10
Case 1:17-cv-24615-RNS Document 1-1 Entered on FLSD Docket 12/19/2017 Page 20 of 26
EXHIBIT G
Case 1:17-cv-24615-RNS Document 1-1 Entered on FLSD Docket 12/19/2017 Page 22 of 26
Mr. Rapacke-
We represent Fit Four, LLC in its intellectual property matters. This email is in response to your set of
emails dated November 21, 2017.
You are correct in that my client has filed an infringement report with Amazon against your client’s
MICRO Weight Lifting Gloves based on U.S. Design Patent D652607 (see attached). Regarding your
contention of non-infringement, we disagree.
As you are well aware, a design patent is infringed if an ordinary observer would think that the accused
design is substantially the same as the patented design when the two designs are compared in the
context of the prior art. We have purchased and reviewed your client’s MICRO Weight Lifting Gloves
and determined that they infringe my client’s patented design. More particularly, we have found that an
ordinary observer would think the two overall designs are substantially the same (see Exhibit
A). Notably, the gloves we purchased on Amazon do not include elongated middle and ring finger grips
as you suggest and even if they did your client does not escape liability for infringement by trivial add-
ons to my client’s patented design. In determining infringement of a design patent, any differences
must be evaluated in the context of the claimed design as a whole, and not in the context of separate
elements in isolation.
With all of that being said, my client declines your request to withdraw its complaint by your given
deadline. Fit Four has however expressed interest in initiating discussions regarding how Fit Four and
Contraband Sports may work together to find a solution to this situation before Fit Four looks to other
courses of action.
Please confirm receipt of this email immediately and respond substantively by November 29, 2017,
confirming whether your client is interested in discussing a potential business solution with Fit Four.
Thanks,
TIMOTHY D. NICHOLS
ATTORNEY AT LAW
WORKMAN | NYDEGGER
OFFICE DIRECT:801-322-8442
Case 1:17-cv-24615-RNS Document 1-1 Entered on FLSD Docket 12/19/2017 Page 23 of 26
EXHIBIT H
Case 1:17-cv-24615-RNS Document 1-1 Entered on FLSD Docket 12/19/2017 Page 24 of 26
Hello,
We are contacting you because we received a report of patent infringement. Sellers on Amazon.com are
not allowed to create listings or detail pages that infringe third-party patents.
We removed the content listed at the end of this email. We may let you list this content again if we
receive a retraction of the complaint from the rights owner. Their contact information can be found
below.
--matt@fitfour.com
If the rights owner agrees to retract their complaint, they must send the retraction to us at notice-
dispute@amazon.com.
If you believe that the reported content does not infringe the rights owner’s patent, you may email
notice-dispute@amazon.com with supporting information.
If the rights owner does not retract their complaint, or you do not provide supporting information, we
may provide your contact information to the rights owner upon their request.
We consider allegations of intellectual property infringement a serious matter and your account is under
review. If we receive more complaints about your listings, we may not allow you to sell on Amazon.com.
To learn more about this policy, search for 'Intellectual Property Violations' in Seller Central Help.
ASIN(s): B01CZGMVOY
Complaint ID: 1239746671
Infringement type: Patent
Sincerely,
EXHIBIT I
Case 1:17-cv-24615-RNS Document 1-1 Entered on FLSD Docket 12/19/2017 Page 26 of 26
Hello,
We are contacting you because we received a report of infringement from the rights owner listed below.
Sellers on Amazon.com are not allowed to create listings or detail pages that infringe intellectual
property rights. We removed the following content:
ASIN: B01CZGMV8A, Contraband Pink Label 5537 Womens MICRO Weight Lifting Gloves w/ Grip-Lock
Padding (PAIR) (Black, Medium)
We may let you list this content again if we receive a retraction from the rights owner. Their contact
information can be found below.
Timothy Nichols
tnichols@wnlaw.com
If the rights owner agrees to retract their complaint, they must send the retraction to us at notice-
dispute@amazon.com.
If you believe that the reported content does not infringe the rights owner’s intellectual property rights,
you may email notice-dispute@amazon.com with supporting information.
We consider allegations of intellectual property infringement a serious matter and your account is under
review. If we receive more complaints about your listings, we may not allow you to sell on Amazon.com.
To learn more about this policy, search for "Intellectual Property Violations" in Seller Central Help.
Sincerely,
CIVIL
Case 1:17-cv-24615-RNS Document
JS 44 (Rev. 06/17) FLSD Revised 06/01/2017 1-2 COVER
Entered SHEET
on FLSD Docket 12/19/2017 Page 1 of 1
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose
of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.) NOTICE: Attorneys MUST Indicate All Re-filed Cases Below.
I. (a) PLAINTIFFS Contraband Sports, LLC DEFENDANTS Fit Four, LLC
(b) County of Residence of First Listed Plaintiff Miami-Dade, FL County of Residence of First Listed Defendant
Davis, UT
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.
(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)
Andrew S. Rapacke 1836
N.
Pine
Island
Rd. Timothy D. Nichols 60
East
South
Temple
The Rapacke Law Group, P.A. Plantation,
FL
33322 (801) 322-8442 Suite
1000
(954)
951-‐0154 Salt
Lake
City,
UT
84111
(d) Check County Where Action Arose: ✔ MIAMI- DADE MONROE BROWARD PALM BEACH MARTIN ST. LUCIE INDIAN RIVER OKEECHOBEE HIGHLANDS
II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff)
(For Diversity Cases Only) and One Box for Defendant)
1 U.S. Government ✔ 3 Federal Question PTF DEF PTF DEF
Plaintiff (U.S. Government Not a Party) Citizen of This State 1 1 Incorporated or Principal Place ✔ 4 4
of Business In This State
2 U.S. Government 4 Diversity Citizen of Another State 2 2 Incorporated and Principal Place 5 ✔ 5
Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State
VI. RELATED/ (See instructions): a) Re-filed Case YES ✔ NO b) Related Cases YES ✔ NO
RE-FILED CASE(S) JUDGE: DOCKET NUMBER:
Cite the U.S. Civil Statute under which you are filing and Write a Brief Statement of Cause (Do not cite jurisdictional statutes unless diversity):
VII. CAUSE OF ACTION 28
U.S.C.
§
2201
-‐
2202
-‐
Declaratory
Judgment
and
further
relief
LENGTH OF TRIAL via 5 days estimated (for both sides to try entire case)
VIII. REQUESTED IN CHECK IF THIS IS A CLASS ACTION
DEMAND $ CHECK YES only if demanded in complaint:
COMPLAINT: UNDER F.R.C.P. 23
JURY DEMAND: ✔ Yes No
ABOVE INFORMATION IS TRUE & CORRECT TO THE BEST OF MY KNOWLEDGE
DATE SIGNATURE OF ATTORNEY OF RECORD
12/19/2017
/s/
Andrew
S.
Rapacke
If you fail to respond, judgment by default will be entered against you for the relief demanded in
the complaint. You also must file your answer or motion with the court.
_________________________________