UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Pop Warner Little Scholars, Inc.;

Barbara Doughty, individually and

on behalf of New Hampshire Pop 

Warner Football Conference; and 

Jason Patch, individually and on 

behalf of New Hampshire Pop Warner 

Football Conference,

Plaintiffs

v. Civil No. 06-cv-98-SM

Opinion No. 2006 DNH 108

New Hampshire Youth Football & 

Spirit Conference; Richard 

Pelletier; Robert Schiavoni; 

Ellen Shiavoni; and Deborah A. Smith,

Defendants

O R D E R

Plaintiffs Pop Warner Little Scholars, Inc., Barbara

Doughty, individually and on behalf of New Hampshire Pop Warner

Football Conference, and Jason Patch, individually and on behalf

of New Hampshire Pop Warner Football Conference bring suit

against defendant New Hampshire Youth Football & Spirit

Conference, Richard Pelletier, Robert Schiavoni, Ellen Schiavoni,

and Deborah A. Smith, seeking redress for trademark infringement

under 15 U.S.C. §§ 1114(a) and 1125(a), trademark dilution under

15 U.S.C. § 1125(c), cyberpiracy under 15 U.S.C. § 1125(d), and

related state statutory and common law claims. All of these

Case 1:06-cv-00098-SM Document 34 Filed 09/25/06 Page 1 of 10
2

claims arise from the alleged continued use of plaintiffs’

federally protected trademarks on defendant’s web site.

Defendants move this court to dismiss plaintiffs’ complaint

or, alternatively, to stay the case pending the outcome of

related state litigation (document no. 22). For the reasons set

forth below, plaintiffs’ motion is denied.

STANDARD OF REVIEW

Generally, “federal courts have a strict duty to exercise

the jurisdiction that is conferred upon them by Congress.”

Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716 (1996)

(citations omitted). This duty is not absolute, however, as

“federal courts may decline to exercise their jurisdiction, in

otherwise ‘exceptional circumstances,’ where denying a federal

forum would clearly serve an important countervailing interest.”

Id. (citations omitted). “[T]he authority of a federal court to

abstain from exercising its jurisdiction extends to all cases in

which the court has discretion to grant or deny relief. Id. at

718.

Case 1:06-cv-00098-SM Document 34 Filed 09/25/06 Page 2 of 10
3

BACKGROUND

The facts, taken from the pleadings and accepted, for these

purposes, as true, are as follows. Pop Warner Little Scholars,

Inc. (“Pop Warner”) is a national organization devoted to

promoting team sports among American youth by offering various

football and “spirit” programs throughout the world. (Compl. ¶¶

16-18.) Pop Warner identifies itself by using the trademark “Pop

Warner” and other related marks and logos, many of which are

registered with the Patent and Trademark Office. (Compl. ¶¶ 27-

28.) Pop Warner promotes itself, often using its trademarks,

through various means including an Internet web site available at

www.popwarner.com. Although Pop Warner does not itself sponsor

youth football teams, the organization associates with local and

regional affiliates which are chartered by Pop Warner and

licensed to use the Pop Warner trademarks in connection with

their own football and spirit programs, (Compl. ¶ 31), provided

that these local affiliates comply with certain policies and

procedures (Compl. ¶ 23.)

One of the defendants in this case, the New Hampshire Youth

Football & Spirit Conference (“NHYF”), formerly known as the New

Hampshire Pop Warner Football Conference, was one such local

affiliate that operated under a Pop Warner charter “since at

Case 1:06-cv-00098-SM Document 34 Filed 09/25/06 Page 3 of 10
4

least 1991." (Compl. ¶ 35.) During this time, NHYF operated

under the Pop Warner trademarks, consistent with the rules and

procedures set forth by Pop Warner. (Compl. ¶¶ 35-36.) One of

the mechanisms by which NHYF promoted itself was its web site,

which is available at www.nhpwfc.org. The acronym “nhpwfc” in

the domain name was derived from the organization’s prior name,

“New Hampshire Pop Warner Football Conference.” (Compl. ¶ 38.)

In June 2005, NHYF ended its relationship with Pop Warner

and associated itself with American Youth Football & Cheer

Association, a youth football and spirit organization that

essentially competes with Pop Warner. (Compl. ¶ 40.) As a

result of that decision, on June 20, 2005, NHYF changed its

corporate name from New Hampshire Pop Warner Football Conference

to its current name, New Hampshire Youth Football & Spirit

Conference. (Compl. ¶ 43.) On the same day that NHYF formally

changed its name, it registered the trade name “New Hampshire Pee

Wee Football Conference” with the New Hampshire Secretary of

State, as well as the acronym for that trade name, “NHPWFC.”

(Compl. ¶ 46.) Because the acronym for the new trade name is

identical to the acronym for the old corporate name, NHYF has

continued to use the web address www.nhpwfc.org. (Compl. ¶ 47). 

Case 1:06-cv-00098-SM Document 34 Filed 09/25/06 Page 4 of 10
5

NHYF continued to operate as it had prior to its decision to

dissociate from Pop Warner, including making use of the same bank

account. (Compl. ¶ 53). Concerned for Pop Warner’s future in New

Hampshire, Barbara Doughty and Jason Patch, both plaintiffs in

the instant action, withdrew funds from a certificate of deposit

held in NHYF’s name, and placed such funds into an escrow account

pending a resolution to the dispute. (Compl. ¶ 57). On January

17, 2006, NHYF filed a complaint in New Hampshire Superior Court

against Doughty and TD Banknorth, N.A., alleging fraud,

conversion, and other related claims. (Def.’s Mot. Dismiss, Ex.

A). On July 21, 2006, the state court stayed its suit pending

resolution of the instant federal action. (Notice of Stay in

Related Case, Ex. A).

DISCUSSION

In addition to various claims arising under federal law,

plaintiffs allege a host of state law claims, including common

law trademark infringement and fraudulent registration of a trade

name, breach of fiduciary duty, ultra vires, breach of contract,

and unfair and deceptive practices. Plaintiffs also seek a

declaratory judgment that NHYF unlawfully changed its articles of

incorporation and that its use of NHYF funds for anything other

than the promotion of Pop Warner football was likewise unlawful.

Case 1:06-cv-00098-SM Document 34 Filed 09/25/06 Page 5 of 10
6

Defendants urge this court to dismiss the action or,

alternatively, stay it pending resolution of the state suit. 

Specifically, defendants invoke two abstention doctrines, the

first articulated in Railroad Commission of Texas v. Pullman Co.,

312 U.S. 496 (1941) and the second in Colorado River Water

Conservation District v. United States, 424 U.S. 800 (1976).

Under Pullman, “‘when a federal constitutional claim is

premised on an unsettled question of state law, the federal court

should stay its hand in order to provide the state courts an

opportunity to settle the underlying state law question and thus

avoid the possibility of unnecessarily deciding a constitutional

question.” Rivera-Feliciano v. Acevedo-Vila, 438 F.3d 50, 61

(1st Cir. 2006) (citing Harris County Comm’rs Court v. Moore, 420

U.S. 77, 83 (1975)). In that case, the plaintiffs were seeking

redress for alleged constitutional violations perpetrated by a

state agency, and the Court was called upon to construe state

statutes to determine whether the agency had acted within the

scope of its authority. Pullman, 312 U.S. at 498. Noting that

although Pullman’s claim “undoubtedly tender[s] a substantial

constitutional issue,” because “constitutional adjudication

plainly [could] be avoided if a definitive ruling on the state

issue would terminate the controversy,” id., the court declined

Case 1:06-cv-00098-SM Document 34 Filed 09/25/06 Page 6 of 10
7

to rule on the issue, allowing the state an opportunity to

construe its own laws. Id. at 501.

Pullman is inapplicable here. Although the claims in the

instant action involve issues of both federal and state law, they

do not involve constitutional questions. Further, it cannot be

said that it is necessary to adjudicate the state claims in this

case in order to properly decide the federal claims. The primary

issues under state law deal with NHYF’s duties and obligations as

a charitable organization, while the federal trademark

infringement claims primarily concern consumer confusion. Unlike

Pullman, there is no risk here that, absent prior adjudication of

the state law claims, this court will unnecessarily answer a

constitutional question. Accordingly, the Pullman abstention

doctrine is inapplicable and defendants are not entitled to

dismissal on that basis.

Defendants also urge application of the Colorado River

doctrine to this case. Plaintiffs counter that Colorado River is

inapplicable here because the state and federal actions are not

parallel. 

Case 1:06-cv-00098-SM Document 34 Filed 09/25/06 Page 7 of 10
1 The Colorado River doctrine has been interpreted to

comprise a six-factor test:

(1) whether either court has assumed jurisdiction over

a res; (2) the inconvenience of the federal forum; (3)

the desirability of avoiding piecemeal litigation; (4)

8

“The basic notion underlying the Colorado River doctrine is

that in certain circumstances it may be appropriate for a federal

court to refrain from exercising its jurisdiction to avoid

duplicative litigation.” Al-Abood v. El-Shamari, 217 F.3d 225,

232 (4th Cir. 2000) (citing Colorado River, 424 U.S. at 817-19). 

“The threshold question in deciding whether Colorado River

abstention is appropriate is whether there are parallel suits.” 

Id. “[I]f the two cases are not parallel, the Colorado River

doctrine does not apply.” TruServ Corp. v. Flegles, Inc., 419

F.3d 584, 592 (7th Cir. 2005). “Suits are ‘parallel’ when

substantially the same parties are contemporaneously litigating

substantially the same issues in another forum.” La Duke v.

Burlington N. R.R. Co., 879 F.2d 1556, 1559 (7th Cir. 1989). 

“If the cases are found to be parallel, the next task is ‘to

balance the considerations that weigh in favor of, and against,

abstention, bearing in mind the exceptional nature of the

measure.’” TruServ Corp., 419 F.3d at 591-92 (quoting Finova

Capital Corp. v. Ryan Helicopters U.S.A., Inc., 180 F.3d 896, 898

(7th Cir. 1999)).1

Case 1:06-cv-00098-SM Document 34 Filed 09/25/06 Page 8 of 10
the order in which the forums obtained jurisdiction;

(5) whether federal law or state law controls; and (6)

whether the state forum will adequately protect the in

terests of the parties.

Currie v. Group Ins. Comm’n, 290 F.3d 1, 10 (1st Cir. 2002)

(quoting Moses H. Cone Mem’l Hosp., 460 U.S. 1 (1983)). “No one

factor is meant to be determinative, but rather, courts must make

a ‘carefully considered judgment taking into account both the

obligation to exercise jurisdiction and the combination of

factors counselling [sic] against that exercise.’” RiveraFeliciano, 438 F.3d at 62 (citations omitted). 

9

In this case Colorado River is inapplicable because the

state suit and the federal suit are not parallel. Although there

are some overlapping issues regarding the charitable purpose of

the organization and the board’s ability to change it, the

gravamen of this case is trademark infringement and related

claims, whereas the primary focus of the state action is the

allegedly unlawful distribution and conversion of corporate funds

from a bank account. Similarly, only several of the parties

overlap the two actions: NHYF, Richard Pelletier, Robert

Schiavoni, Ellen Schiavoni, and Deborah A. Smith are all

defendants in this case, but only two, NHYF and Pelletier, are

involved in the state case. Pop Warner, Barbara Doughty, and

Jason Patch are plaintiffs in the federal case, but only Barbara

Doughty is a party to the state case. Moreover, TD Banknorth,

N.A. is a party to the state suit, but is not involved in the

Case 1:06-cv-00098-SM Document 34 Filed 09/25/06 Page 9 of 10
10

federal action. In view of the substantial differences between

the state suit and the instant action, it cannot be said that

“substantially the same parties are contemporaneously litigating

substantially the same issues.” The suits are thus not parallel

and, accordingly, application of the Colorado River abstention

doctrine is unnecessary.

CONCLUSION

For the foregoing reasons, plaintiffs’ motion to dismiss the

complaint on abstention grounds (document no. 22) is denied.

SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

September 25, 2006

cc: Thomas J. Donovan, Esq.

Adam M. Hamel, Esq.

Michael D. Ramsdell, Esq.

Case 1:06-cv-00098-SM Document 34 Filed 09/25/06 Page 10 of 10