Professional Documents
Culture Documents
11
Case 1:07-cv-06036-SAS Document 11 Filed 08/24/2007 Page 1 of 21
Defendants. :
--------------------------------------------------------------X
(“Ed’s”), by and through their undersigned counsel, Serrins & Associates LLC and
Markowitz & Chattoraj LLP, submit the following answer and affirmative defenses to the
response is required, but to the extent a response is required, Defendants admit that
Plaintiff purports to bring this action against Defendants on the basis of allegations in its
Complaint.
to the truth or falsity of the allegations contained in Paragraph 2 of the Complaint, except
Defendants deny that Rebecca Charles (“Charles”) created and developed “[e]very menu
item, as presented at Pearl, as well as its restaurant design,” and admit that Pearl Oyster
Dockets.Justia.com
Case 1:07-cv-06036-SAS Document 11 Filed 08/24/2007 Page 2 of 21
Complaint, except admit that Defendants opened a restaurant called “Ed’s Lobster Bar”
response is required, but to the extent a response is required, Defendants admit that
Plaintiff purports to base subject matter jurisdiction on the statutes cited therein.
response is required, but to the extent a response is required, Defendants admit that
Plaintiff purports to base venue in the United States District Court for the Southern
District of New York on the basis that Defendants are doing business in this district, and
Defendants deny that any harm occurred or is occurring in this district to Plaintiff as a
to the allegations contained in Paragraph 6 of the Complaint, except Defendants deny that
Pearl’s characteristics (whether “culinary, visual, esthetic [or] environmental”) are either
“unique” or “distinctive,” and admit that Pearl opened as a restaurant in or about 1997
that is located at 18 Cornelia Street in Manhattan and that Plaintiff has annexed as
Complaint except admit that Defendant McFarland resides at 266 Tabb Avenue,
Piscataway, New Jersey 08854, that Defendant McFarland has a financial interest in
Defendant Ed’s Lobster Bar LLC, which owns and operates Ed’s Lobster Bar, a
restaurant located at 222 Lafayette Street in Manhattan that opened to the public on
2
Case 1:07-cv-06036-SAS Document 11 Filed 08/24/2007 Page 3 of 21
March 16, 2007, and that Defendant McFarland, who is the chef at Ed’s Lobster Bar, was
previously the sous chef at Pearl, where he was employed from August 2000 to January
2007.
Complaint.
Complaint, except admit that Andrew Rasiej has a financial interest in Ed’s Lobster Bar
LLC.
except deny that Charles undertook “all” the steps to conceive, locate, design, construct,
equip, manage and operate Pearl and that Charles originated “all” aspects of Pearl since
its opening.
Complaint with respect to the importance, input, and responsibilities of the position of
sous chef at “restaurants” generally, and aver that the allegation regarding the sous chef
being “in a position of trust and confidence that is fiduciary in every sense of the word” is
3
Case 1:07-cv-06036-SAS Document 11 Filed 08/24/2007 Page 4 of 21
except deny that it is “commonly” accepted in the New York restaurant community that a
sous chef should give an employer at least two months’ advance notice before departing.
to the truth or falsity of the allegations contained in Paragraph 15 of the Complaint, and
Defendants respectfully refer the Court to the contents of the alleged public statements.
except admit that Paragraph 16 of the Complaint purports to set forth quotations from the
except admit that Paragraph 17 of the Complaint purports to set forth quotations from the
United States Personal Chef Association Code of Ethics and respectfully refer the Court
Complaint, except admit that Charles hired Defendant McFarland in or about 2000 to
work as a sous chef at Pearl and that, when Defendant McFarland began his employment
4
Case 1:07-cv-06036-SAS Document 11 Filed 08/24/2007 Page 5 of 21
at Pearl, he temporarily worked as a line cook for a short period of time due to a shortage
of workers.
Complaint, except admit that Defendant McFarland’s annual salary for working at Pearl
in 2007 was to be $65,000 and that he was to receive annual health benefits worth
another $5,000.
innovation and “completely secret information,” except admit that, as an employee who
worked and cooked at Pearl from 2000 to 2007, Defendant McFarland observed the
Complaint are legal conclusions to which no response is required but, to the extent a
McFarland while he worked at Pearl was “confidential and proprietary” and that
Complaint, except admit that, approximately one year before Defendant McFarland
in Pearl.
Complaint.
5
Case 1:07-cv-06036-SAS Document 11 Filed 08/24/2007 Page 6 of 21
Complaint.
Complaint.
Complaint, except admit that Defendants have contemplated opening another Ed’s
Complaint, and aver that Defendant McFarland advised Charles in or about September
2005 that he would be leaving Pearl and that, in or about December 2006, Defendant
Complaint, and aver that, in or about December 2006, Defendant McFarland formally
announced he would be leaving Pearl to open his own restaurant and that Defendant
McFarland continued to work at Pearl for a period longer than one month after he gave
Complaint.
Complaint.
Complaint.
6
Case 1:07-cv-06036-SAS Document 11 Filed 08/24/2007 Page 7 of 21
Complaint.
33. Defendants admit that Defendant Ed’s Lobster Bar LLC, the entity which
owns Ed’s Lobster Bar, was formed on November 6, 2006, and respectfully refer the
Court to Exhibit B to the Complaint which, upon information and belief, contains a copy
of the information appearing on the website for the Division of Corporations of the New
York State Department of State as of March 16, 2007 with respect to the entity in
question.
Complaint, except admit that an individual who had been previously employed at Pearl
Complaint.
Complaint.
Complaint.
Complaint.
Complaint.
Complaint.
7
Case 1:07-cv-06036-SAS Document 11 Filed 08/24/2007 Page 8 of 21
Complaint, except admit that Defendant McFarland received a letter from Charles dated
March 27, 2007, that Plaintiff purports to attach that letter as Exhibit C to the Complaint,
and that Defendant McFarland spoke with a Pearl employee named Roger on a day in or
about April 2007 and asked that individual what he paid for lobster that day.
Complaint, except admit that Ed’s Lobster Bar is not an Italian-themed restaurant and
Complaint.
Complaint.
Complaint.
Complaint.
Complaint.
Complaint.
Complaint.
8
Case 1:07-cv-06036-SAS Document 11 Filed 08/24/2007 Page 9 of 21
Complaint.
Complaint.
Complaint.
Complaint, except admit that Ed’s Lobster Bar has been open to the general public since
Complaint.
Complaint.
Complaint.
9
Case 1:07-cv-06036-SAS Document 11 Filed 08/24/2007 Page 10 of 21
response is required, but to the extent a response is required, Defendants deny the
response is required, but to the extent a response is required, Defendants deny the
Complaint, and particularly deny that Charles has created “a trade dress which is unique
Pearl in the space, service style, menu or presentation of Ed’s Lobster Bar, except deny
allegations concerning Charles’s past or present state of mind and Pearl’s current
response is required, but to the extent a response is required, Defendants deny the
except Defendants deny that Ed’s Lobster Bar “intentionally was designed to simulate”
10
Case 1:07-cv-06036-SAS Document 11 Filed 08/24/2007 Page 11 of 21
Complaint.
Complaint.
Complaint.
Complaint.
Complaint.
response is required, but to the extent a response is required, Defendants deny the
response is required, but to the extent a response is required, Defendants deny that
Complaint.
response is required, but to the extent a response is required, Defendants deny the
11
Case 1:07-cv-06036-SAS Document 11 Filed 08/24/2007 Page 12 of 21
response is required, but to the extent a response is required, Defendants deny the
response is required, but to the extent a response is required, Defendants deny the
response is required, but to the extent a response is required, Defendants deny the
Complaint.
Complaint.
Complaint.
Complaint.
12
Case 1:07-cv-06036-SAS Document 11 Filed 08/24/2007 Page 13 of 21
Complaint.
response is required, but to the extent a response is required, Defendants deny the
Complaint.
Complaint.
Complaint.
Complaint.
response is required, but to the extent a response is required, Defendants deny the
13
Case 1:07-cv-06036-SAS Document 11 Filed 08/24/2007 Page 14 of 21
response is required, but to the extent a response is required, Defendants deny the
response is required, but to the extent a response is required, Defendants deny the
response is required, but to the extent a response is required, Defendants deny the
response is required, but to the extent a response is required, Defendants deny the
response is required, but to the extent a response is required, Defendants deny the
response is required, but to the extent a response is required, Defendants deny the
Complaint.
14
Case 1:07-cv-06036-SAS Document 11 Filed 08/24/2007 Page 15 of 21
response is required, but to the extent a response is required, Defendants deny that
Complaint.
Complaint.
Complaint.
Complaint.
Complaint.
Complaint.
Complaint.
Complaint.
15
Case 1:07-cv-06036-SAS Document 11 Filed 08/24/2007 Page 16 of 21
Complaint.
Complaint.
Complaint.
Complaint.
Complaint.
response is required, but to the extent a response is required, Defendants deny the
response is required, but to the extent a response is required, Defendants deny the
response is required, but to the extent a response is required, Defendants deny the
Complaint.
16
Case 1:07-cv-06036-SAS Document 11 Filed 08/24/2007 Page 17 of 21
response is required, but to the extent a response is required, Defendants deny that
Complaint.
Complaint.
Complaint.
Complaint.
Complaint.
Complaint.
Complaint.
Complaint.
Complaint.
17
Case 1:07-cv-06036-SAS Document 11 Filed 08/24/2007 Page 18 of 21
Complaint.
Complaint.
Complaint.
Complaint.
response is required, but to the extent a response is required, Defendants admit that
Plaintiff purports to allege that there is an actual, justiciable controversy between Plaintiff
Complaint.
response is required, but to the extent a response is required, Defendants admit that
Plaintiff purports to allege that there is a continuing actual and justiciable controversy
AFFIRMATIVE DEFENSES
18
Case 1:07-cv-06036-SAS Document 11 Filed 08/24/2007 Page 19 of 21
139. Plaintiff’s Complaint fails to state a claim against Defendants upon which
140. Plaintiff’s claims are barred, in whole or in part, by the Court’s lack of
141. All or some of the elements of plaintiff’s purported trade dress are
functional and are not entitled to any protection under federal, state or common law.
142. All or some of the elements of Defendants’ trade dress at Ed’s Lobster Bar
143. Plaintiff’s purported trade dress is not inherently distinctive and/or lacks
distinctiveness, and is not entitled to any protection under federal, state or common law.
144. Plaintiff’s purported trade dress is not entitled to protection because all or
some elements of Plaintiff’s purported trade dress are in the public domain.
145. Plaintiff’s purported trade dress has not acquired secondary meaning and
146. Plaintiff’s purported trade dress is generic and is not entitled to protection
19
Case 1:07-cv-06036-SAS Document 11 Filed 08/24/2007 Page 20 of 21
148. Plaintiff’s claims are barred, in whole or in part, by the doctrine of fair
use.
149. Plaintiff’s claims are barred, in whole or in part, by the doctrine of laches.
abandonment.
20
Case 1:07-cv-06036-SAS Document 11 Filed 08/24/2007 Page 21 of 21
liabilities, costs, and expenses, including attorney fees, incurred in defending against the
(3) granting such other and further relief as the Court deems just and proper.
JURY DEMAND
&
21