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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KENNEDY INDUSTRIES, INC. : CIVIL ACTION - LAW

:

Plaintiff :

:

v. : No. 04-CV- 5967

:

BRIAN APARO, et al. :

:

Defendants. : Jury Trial Demanded

MOTION OF PLAINTIFF KENNEDY INDUSTRIES, INC.

FOR AN ORDER HOLDING CERTAIN DEFENDANTS IN CONTEMPT OF

THE FEBRUARY 24, 2006 ORDER OF THE COURT AND GRANTING RELIIEF

PURSUANT TO FED. R. CIV. P. 37(d)(2)

Plaintiff Kennedy Industries, Inc. (“Kennedy”), by and through its undersigned

counsel, hereby moves the Court for an Order holding in contempt of the Court’s

February 24, 2006 Order compelling discovery defendants Driving Force, Inc. and its

principals (defendants Brian Aparo, James Gaffney, and Jon Gaffney), David Wilich,

Ken Chertow’s Wear and Gear, Wrestling Central, National Outfitters, Athletic Dealers

of America, Schuylkill Valley Sports, Sports, Inc., Brian Burychka, NHSCA Outfitters,

Bethlehem Sporting Goods, Imbody, Inc., Purely Solutions, LLC, and Imbody-Purely

Solutions (sometimes hereinafter referred to as“These Defendants”). As relief, Kennedy

requests that an Order be entered pursuant to Fed. R. Civ. P. 37(d)(2)(A)-(D), to: 1)

establish for purposes of the action the matters covered by the discovery requests that are

the subject of the February 24, 2006 Order in accordance with Kennedy’s claims [Rule

37(d)(2)(A)]; 2) refuse to allow These Defendants to support their alleged defenses [Rule

37(d)(2)(B)]; 3) oppose Kennedy’s claims [Rule 37(d)(2)(B)]; 4) introduce evidence in

their defense [Rule 37(d)(2)(B)]; 5) strike out defenses in their pleadings [Rule

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37(d)(2)(C); and 6) award Kennedy’s reasonable expenses, including attorneys’fees and

costs incurred in connection with preparing and prosecuting this Motion and two related

prior motions for contempt, to compel and for sanctions filed on January 9, 2006 (Docket

No. 114) and February 1, 2006 (Docket Nos. 119 and 122) [Rule 37(d)(2)]. In support of

this Motion, Kennedy states as follows:

1. Kennedy began its discovery efforts more than a year ago, in March 2005,

at the earliest time permitted under the Federal Rules of Civil Procedure.

2. On February 10, 2006, These Defendants consented to the entry of an

Order which compelled them to meet their long-outstanding discovery obligations in this

case. A copy of the Order, which was approved by the Court on February 24, 2006

(Docket No. 125), is hereinafter referred to as the“February 24, 2006 Order”and is

included in Exhibit A attached hereto.

3. The February 24, 2006 Order resolved Kennedy’s February 1, 2006

motion to compel and for sanctions (Docket Nos. 199 and 122) and was issued following

a long history of contemptuous conduct by the defendants and their disregard for the

discovery deadlines in the case. This history is documented in the record by various

letters from Kennedy’s counsel to defendants’counsel and the Court, as well as by

Kennedy’s motions for contempt which were the subject of hearings and conferences

before the Court in 2005. More recently, Kennedy’s motions for contempt, to compel

and for sanctions filed on January 9, 2006 (Docket No. 114) and February 1, 2006

(Docket Nos. 119 and 122) set forth the undisputable facts clearly showing that These

Defendants had more than a fair opportunity to provide discovery and produce materials

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supporting any defenses they alleged in their answers. For example, the Court may

recall:

- The promises made by These Defendants and confirmed in writing on

October 28, 2005 and November 7, 2005, that they would provide the subject

discovery. Kennedy’s counsel followed up with These Defendants, but to no

avail.

- The January 13, 2006 conference call with the Court in which These

Defendants assured the Court that their violations of the Permanent Injunction

would cease immediately and that they would provide answers and all responsive

documents in response to Kennedy’s discovery within 10 days, or by January 23,

2006. Based on those promises, Kennedy’s January 9, 2006 motion for contempt

and to compel discovery was denied without prejudice (Docket No. 117).

4. The February 24, 2006 Order should be the end of the road for These

Defendants. They failed to honor their promises to the Court made during the January

13, 2006 conference call and have deliberately disobeyed the Court’s February 24, 2006

Order. These Defendants signed the Order on February 10, 2006, thereby agreeing to

provide the discovery by March 2, 2006 (see the Order included with Exhibit A; Docket

No. 125). The Order also extended the discovery period by 90 days. Despite having this

additional time, These Defendants again failed to timely respond to Kennedy’s discovery.

Instead, they ignored the Court’s Order.

5. At 11:45 PM on March 16, 2006, counsel for These Defendants sent an

email to Kennedy’s counsel requesting Kennedy’s consent to an extension of the deadline

of a“few more days”. See the March 16, 2006, 11:45 PM email, and Kennedy’s counsel

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response attached as Exhibit B(Part 1) and Exhibit B(Part2), respectively. The email was

received by Kennedy’s counsel the following day, after the Court ordered deadline had

already expired. Kennedy did not object to a“few days”, however, it is now almost three

months since These Defendants dodged Kennedy’s last motion for sanctions (Docket No.

119), and agreed to comply with discovery which has been pending for more than a year

(Docket No. 125). As documented in Kennedy’s last motion to compel and for sanctions

(Docket Nos. 119 and 122), These Defendants have also refused to cooperate with the

scheduling of depositions.

6. On March 29, 2006, counsel for Kennedy wrote to counsel for These

Defendants requesting their compliance with the February 24, 2006 Order. A copy of

Kennedy’s counsel’s March 29

th

letter is attached as Exhibit C. Despite that letter, These

Defendants failed to comply and continued to ignore the Court’s Order.

7. On March 30, 2006, counsel for Kennedy received notice from Magistrate

Rueter scheduling a settlement conference. On that same date, Kennedy’s counsel again

wrote to counsel for These Defendants and advised that in light of the settlement

conference scheduled for April 28

th

(which, at the request of the defendants, has been

moved to May 4

th

), the discovery responses must be received no later than April 5

th

. A

copy of Kennedy’s counsel’s March 30

th

letter is attached as Exhibit D. This request was

also ignored by These Defendants.

8. On April 5, 2006, counsel for Kennedy wrote to the Court, advising that

These Defendants have failed to comply with the February 24, 2006 Order and indicated

that Kennedy“once again is at the point of having to file a motion to obtain certain

defendants’compliance with an Order of the Court.”A copy of Kennedy’s counsel’s

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April 5

th

letter to the Court (attached as Exhibit A) was sent to counsel for These

Defendants. However, These Defendants ignored that letter as well.

9. On April 7, 2006, counsel for Kennedy wrote to counsel for These

Defendants to again request their compliance with the February 24, 2006 Order. A copy

of the April 7

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letter is attached as Exhibit E. Like the preceding letters, this one was

also ignored by These Defendants.

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10. Kennedy has made good faith efforts throughout this litigation to resolve

discovery issues and defendants’actions in contempt of the Court’s Permanent

Injunction. However, These Defendants have repeatedly and deliberately ignored all

discovery deadlines and have willfully violated the Court’s February 24, 2006 Order.

Having had more than ample time to comply with discovery that has been pending for as

much as 13 months, These Defendants are out of time and must now suffer sanctions

pursuant to Fed. R. Civ. P. 37(b)(2) for their collective failure to comply with this Court’s

Order.

11. Rule 37(b)(2) provides that:

(2) Sanctions by Court in Which Action is Pending. If a party . . . fails to obey

an order to provide or permit discovery, including an order made under

subdivision (a) of this rule [(Motion for Order Compelling Disclosure or

Discovery)] . . ., the court in which the action is pending may make such orders in

regard to the failure as are just, and among others the following:

1 Kennedy’s counsel’s April 7th

letter also requested These Defendants to provide proof of the

actions they have taken to remove from the internet various false claims regarding the product 99 for which

they are responsible, as they agreed to do in response to Kennedy’s contempt motions. For example, all

defendants, including These Defendants, advised the Court and Kennedy during conference calls with

respect to Kennedy’s contempt motions that they would remove the programming and search prompts

containing their false claims about 99 from all search engines and their websites, and make arrangements

with internet organizations and websites such as Google to have their false claims removed from the

internet. These Defendants failed to respond to Kennedy’s counsel’s April 7

th

letter or show any evidence

of their compliance with their promises. Kennedy reserves the right to seek all damages against defendants

which have failed to comply in this regard.

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(A) An order that the matters regarding which the order was made or any

other designated facts shall be taken to be established for the purposes of the

action in accordance with the claim of the party obtaining the order;

(B) An order refusing to allow the disobedient party to support or oppose

designated claims or defenses, or prohibiting that party from introducing

designated matters in evidence;

(C) An order striking out pleadings or parts thereof, or staying further

proceedings until the order is obeyed, or dismissing the action or proceeding or

any part thereof, or rendering a judgment by default against the disobedient party;

(D) In lieu of any of the foregoing orders or in addition thereto, an order

treating as a contempt of court the failure to obey treating as a contempt of court

the failure to obey any orders except an order to submit to a physical or mental

examination;

. . . .

In lieu of any of the foregoing orders or in addition thereto, the court shall

require the party failing to obey the order or the attorney advising that party or

both to pay the reasonable expenses, including attorney’s fees, caused by the

failure unless the court finds that the failure was substantially justified or that

other circumstances make an award of expenses unjust.

12. The record in this case supports the entry of an Order against These

Defendants under Rule 37(b)(2)(A)-(D). These Defendants have all already been found

by the Court to have violated the Lanham Act. Memorandum Opinion dated July 22,

2005, at page 13 (Docket No. 59). They have had more than ample opportunities to

provide discovery, and their failure to do so by this late date (with less than a month

remaining before discovery closes) has prejudiced Kennedy.

13. Even if These Defendants hereafter provide late responses to discovery,

there is not enough time to consider them, take follow up discovery and depositions of

These Defendants, and obtain deposition transcripts that will need to be reviewed and

analyzed by Kennedy’s damages expert. In fact, Kennedy believes that is exactly what

These Defendants planned all along to do; they have engaged in an effort to prevent

discovery in an effort to run the clock. They should not be permitted to use that litigation

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tactic for any advantage and in contempt of this Court’s Order and their repeated express

promises to the Court.

14. These Defendants’failure to produce discovery is willful and contrary to

their express representations repeatedly made to the Court, and is in contempt of the

Court’s February 24, 2006 Order. Accordingly, These Defendants are out of time and

must suffer the consequences of their willful and deliberate misconduct. An appropriate

Order under Rule 37(b)(2)(A)-(D) should be entered as follows:

(i) Holding These Defendants in contempt of the Court’s February 24,

2006 Order compelling discovery [Rule 37(b)(2)(D)];

(ii) Establishing for purposes of the action the matters covered by the

discovery requests that are the subject of the February 24, 2006

Order in accordance with Kennedy’s claims [Rule 37(d)(2)(A)];

(iii) Refusing to allow These Defendants to support alleged defenses,

oppose Kennedy’s claims, and introduce evidence in their defense

[Rule 37(d)(2)(B);

(iv) Striking out all defenses in their pleadings [Rule 37(d)(2)(C)];

(v) Awarding Kennedy’s reasonable expenses, including attorneys’

fees and costs incurred in connection with preparing and

prosecuting this Motion and two related prior motions for

contempt, to compel and for sanctions filed on January 9, 2006

(Docket No. 114) and February 1, 2006 (Docket Nos. 119 and 122)

[Rule 37(d)(2)], upon Kennedy’s application to the Court.

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WHEREFORE, Kennedy respectfully requests that an Order be entered in the

form attached.

Respectfully submitted,

BERKOWITZ · KLEIN, LLP

/s/ Robert A. Klein

Date: April 22, 2006 By : ____________________________

Robert A. Klein, Esquire

Gerald S. Berkowitz, Esquire

629 B Swedesford Road

Swedesford Corporate Center

Malvern, PA 19355-1530

610-889-3200

Attorneys for Plaintiff

Kennedy Industries, Inc.

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