UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

PFIP, LLC

v. Civil No. 06-cv-108-JD

Aspen Total Fitness

Centereach, LLC, et al.

O R D E R

On March 22, 2006, PFIP, LLC, filed a complaint alleging

trademark infringement and related claims against Aspen Total

Fitness Centereach, LLC, and Aspen Total Fitness Management, LLC. 

On May 12, 2006, PFIP filed affidavits of service from Deputy

Sheriff Glenn Muller that the two defendants were served with the

complaint and summons “[b]y delivering to and leaving with

Gregory Rosenfeld the Owner/Vice President for the defendant

personally a true copy thereof.” The same day, Gregory Rosenfeld

and Gene Brem, proceeding pro se, filed a motion to dismiss

and/or to transfer the case to the Eastern District of New York.

On May 16, 2006, the court sent an order to Aspen Total

Fitness Centereach, LLC, and Aspen Total Fitness Management, LLC,

that an appearance of counsel must be filed on their behalf by

June 6, 2006. The order also notified the defendants that if no

appearance were filed by that time, the file would be referred to

a judicial officer for further action which might include entry

of default against them. Rosenfeld and Brem responded to the May

16 order by filing a letter to the deputy clerk assigned to this

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case that acknowledged the order to have an appearance filed by

counsel. Rosenfeld stated, however, that he and Brem had

purchased the assets of Aspen Total Fitness Centereach, LLC, but

did not purchase the corporate entity. Rosenfeld and Brem

interpreted the complaint to allege claims against them, rather

than against the corporations, and stated that they were

appearing on their own behalf. 

On May 26, 2006, PFIP filed a memorandum in opposition to

the motion to dismiss in which it pointed out that Rosenfeld and

Brem are not parties in this action and cannot appear or file a

motion to dismiss on behalf of the corporate defendants. PFIP

also noted that a third corporate entity mentioned in the motion,

Middle County Road Fitness, Inc., appeared to be doing business

as Aspen Total Fitness of New York. Based on that information,

PFIP filed an amended complaint, with the memorandum in

opposition to the motion to dismiss, adding Middle County Road

Fitness, Inc., as a defendant. Summons were issued

electronically for the three defendants on June 1, 2006, and the

affidavits or returns have not yet been filed.

Rosenfeld and Brem are not parties in this action. 

Therefore, they lack standing to file a motion to dismiss and/or

to transfer. The two corporate defendants named in the original

complaint, Aspen Total Fitness Centereach, LLC, and Aspen Total

Fitness Management, LLC, have not had appearances by counsel

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filed on their behalf. The amended complaint adds a third

corporate defendant, Middle Country Road Fitness, Inc., that also

must be represented by counsel and respond to the complaint as

provided by the Federal Rules of Civil Procedure.

Because of the overlapping filings and the apparent

confusion about the status of the parties in this case, the court

will allow all three corporate defendants to respond through

counsel to the amended complaint, as required by the federal

rules, without entering default as to the original two

defendants. The motion to dismiss and/or transfer is terminated

as having been improperly filed by nonparties.

Conclusion

For the foregoing reasons, the motion to dismiss and/or to

transfer (document no. 7) is terminated. The defendants named in

the amended complaint shall respond through counsel as is

required by the Federal Rules of Civil Procedure. Failure to

respond in a timely manner through counsel will result in an

entry of default.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

June 7, 2006

cc: Teresa C. Tucker, Esquire

Aspen Total Fitness Centereach, LLC

Aspen Total Fitness Management, LLC

Middle Country Road Fitness, Inc.

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