Mohawk Carpet Distribution, Inc. v. Beaulieu Group, Llc

REPLY BRIEF re MOTION to Dismiss For Lack of Subject Matter Jurisdiction or Transfer MOTION to Transfer Case

N.D. Ga.February 3, 2017

1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA Atlanta Division MOHAWK CARPET DISTRIBUTION, INC., Plaintiff, v. BEAULIEU GROUP LLC, Defendant, Civil No. 1:16-cv-02266-WSD BEAULIEU GROUP LLC, Counterclaim-Plaintiff, v. MOHAWK CARPET DISTRIBUTION, INC. and MOHAWK CARPET, LLC, Counterclaim-Defendants. BEAULIEU’S REPLY IN SUPPORT OF ITS MOTION TO DISMISS AMENDED COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION OR TRANSFER Mohawk’s Opposition includes extensive discussion of matters that are either not in dispute, or which are not relevant to the current Motion. The question of subject matter jurisdiction that Beaulieu has raised is narrow, and accordingly Beaulieu will only address those points on which this motion turns. First, as argued by Mohawk, and articulated by this Court, the limited area exception to a Case 1:16-cv-02266-WSD Document 40 Filed 02/03/17 Page 1 of 14 2 federal incontestable trademark registration at most allows a party to assert prior state law rights, and a corresponding state law claim. Thus Mohawk’s allegations that Beaulieu’s HOLLYTEX FASHION ESSENTIALS carpet brand infringes its FLOORCARE ESSENTIALS line of cleaning products do not create a federal question, and should be brought in the appropriate state courts. Second, Mohawk’s allegation of a single past online use of FASHION ESSENTIALS, which was removed before the Amended Complaint was even filed, is too insubstantial a claim on which to base federal subject matter jurisdiction. Third, Beaulieu has not challenged venue in the U.S. District Court for the Northern District of Georgia under 28 U.S.C. § 1391. There is no question that, pursuant to the Local Rules and 28 U.S.C. § 1404, Mohawk’s claims were brought in the wrong division, and thus should be transferred to the Rome division, where both parties are located. I. Mohawk’s Claims Are Based on State Law Mohawk argues that its claims are not truly state law claims, but instead that state law rights are merely “an element of proof” for Mohawk’s federal infringement claims. Mohawk cites no statutory language or case law that supports this proposition, and there is none. To the extent prior use is an “exception” to incontestability, it is a state-by-state exception, explicitly limited to where the mark “infringes a valid right acquired under the law of any State or Territory.” 15 Case 1:16-cv-02266-WSD Document 40 Filed 02/03/17 Page 2 of 14 3 U.S.C. § 1065. Contrary to Mohawk’s position, this language does not create a hybrid federal/state cause of action, where the Court must first find infringement under the state law of all fifty states as an “element” of a federal claim. Opp. (Dkt. 39) at 18. Instead, at most, this language allows for a state law infringement claim against the holder of an incontestable federal registration. 1 The few Courts which have considered which law applies to a party asserting prior common law rights under 15 U.S.C. § 1065 (in the defensive context, have found that state law, rather than federal law, applies to such a claim. For example, in Dorpan, S.L. v. Hotel Melia, Inc., 728 F.3d 55, 63 (1st Cir. 2013) the Court found that the law of Puerto Rico determined the scope of the senior’s user’s rights against the holder of an incontestable federal registration, and also governed the likelihood of confusion analysis. Id. at 63, 65 n.13; see also Advance Stores Co. Inc. v. Refinishing Specialties, Inc., 188 F.3d 408, 413 (6th Cir. 1999) 1 Mohawk’s argument that an incontestable federal registration merely creates an evidentiary presumption, rather than any conclusive rights, is contradicted by Park 'N Fly, Inc. v. Dollar Park & Fly, Inc., which holds that an incontestable registration is “conclusive evidence of the registrant’s exclusive right to use the mark, subject to the conditions of § 15.” 469 U.S. 189, 196 (1985) (emphasis in original). As discussed above, the only Section 15 exception claimed by Mohawk here are state law prior rights. Thus Beaulieu’s incontestable registration indisputably serves as a shield from attack based on Mohawk’s own federal trademark registration. Case 1:16-cv-02266-WSD Document 40 Filed 02/03/17 Page 3 of 14 4 (holding that Kentucky state law, and not federal common law, applied to decide claim against junior holder of incontestable registration brought by senior common law user under 15 U.S.C. § 1065). Thus, were it to adjudicate Mohawk’s claims, this Court will, in fact, have to decide fifty different infringement claims under fifty different bodies of state law. Mohawk argues that the distinction between state law and federal law is irrelevant, because trademark rights under both regimes stem from use. This is a red herring. While most trademark rights in the United States derive from use (with the notable exception of federal trademark registrations obtained pursuant to Trademark Act Section 66(a), 15 U.S.C. § 1141f(a)), the scope of those rights, the remedies available, and the courts in which such claims must be brought, vary based on whether the claimant has rights under federal law, or rights under state law. 3 McCarthy on Trademarks and Unfair Competition §§ 22.1, 22:2, (4th ed.) (discussing variations in state trademark laws, and that federal law does not preempt separate and distinct regime of state trademark law). The Lanham Act did not preempt state trademark law, and the Lanham Act did not create “hybrid” claims. The Lanham Act also did not give federal courts jurisdiction over purely state law claims. 6 McCarthy on Trademarks and Unfair Competition § 32:7 (4th Case 1:16-cv-02266-WSD Document 40 Filed 02/03/17 Page 4 of 14 5 ed.). Mohawk’s citation to and discussion of subject matter jurisdiction over federal unfair competition claims is not applicable here, where the claimed “exception” to incontestability on which Mohawk relies is explicitly limited to state rights. While federal courts can decide state law trademark claims under supplemental jurisdiction, such claims must be joined with a substantial claim under federal law. 28 U.S.C. § 1138(b); 28 U.S.C. § 1367. As discussed below, Mohawk has not alleged a substantial federal claim here. II. Defendant’s Allegation of a Single Past Use of Fashion Essentials on an Internal Webpage Is Insufficient to Create Subject Matter Jurisdiction Mohawk states that its case turns on Beaulieu’s “prominent” use of the FASHION ESSENTIALS element of Beaulieu’s incontestable registered trademark, and therefore it still has a federal claim. Opp. (Dkt. 39) at 12. However, the “prominence” of Beaulieu’s use of the “Fashion Essentials” element within its HOLLYTEX FASHION ESSENTIALS registered trademark is not relevant. Beaulieu’s federal registration for HOLLYTEX FASHION ESSENTIALS is for the standard character word mark, not a stylized version or a logo treatment. See Dkt. 12-4 at 5. This means that Beaulieu is free to use its trademark in any format it wishes, including with FASHION ESSENTIALS as the most prominent portion of the mark. Citigroup Inc. v. Capital City Bank Grp., Inc., 637 F.3d 1344, 1352 (Fed. Cir. 2011) (holding that range of permissible uses Case 1:16-cv-02266-WSD Document 40 Filed 02/03/17 Page 5 of 14 6 for a mark registered in standard character format included all possible font sizes, styles or colors, including emphasizing one portion of the mark and deemphasizing others). Thus, Mohawk’s complaint about the “prominence” of FASHION ESSENTIALS is still based on Beaulieu’s use of its incontestable registered trademark HOLLYTEX FASHION ESSENTIALS. Based on this Court’s prior order-and Mohawk’s own arguments-Mohawk can only maintain this claim in the face of Beaulieu’s incontestable federal registration by relying on its claimed state law rights. Whether these rights consist of common law rights under state law, or state trademark registrations (which Mohawk has not asserted), this means that Mohawk must prove the scope of its trademark rights under the law of each state. This is therefore not a federal question, but instead an amalgamation of state law claims that is not properly before this Court. Furthermore, given that Mohawk’s claim regarding HOLLYTEX FASHION ESSENTIALS is based on state law rights, Mohawk rests its entire claim for subject matter jurisdiction on a 2006 internal webpage, which had not been updated in ten years, and which was taken down before the Amended Complaint was filed, on which Beaulieu called its HOLLYTEX FASHION ESSENTIALS Case 1:16-cv-02266-WSD Document 40 Filed 02/03/17 Page 6 of 14 7 brand, “Fashion Essentials”. Barge Decl. (Dkt. 12-2) ¶¶ 2-6.2 This is the only use of “Fashion Essentials” Mohawk has identified, despite the fact that the HOLLYTEX FASHION ESSENTIALS brand has been sold for over ten years. Beaulieu would have removed (and did remove) this obsolete page had Mohawk bothered to ask, because Beaulieu is discontinuing HOLLYTEX FASHION ESSENTIALS, and ceased promoting it years ago. This isolated and de minimus use of “Fashion Essentials”, unconnected to any actual sales, is too insubstantial to justify jurisdiction in federal court. As the Fifth Circuit explained: Federal courts are proper forums for the resolution of serious and substantial federal claims. They are frequently the last, and sometimes the only, resort for those who are oppressed by the denial of the rights given them by the Constitution and laws of the United States. Fulfilling this mission and the other jurisdiction conferred by acts of Congress has imposed on the federal courts a work load that taxes their capacity. Each litigant who improperly seeks federal judicial relief for a petty claim forces other litigants with more serious claims to await a day in court. When litigants improperly invoke the aid of a federal court to redress what is patently a trifling claim, the district court should not attempt to ascertain who was right or who was wrong in provoking the quarrel but should dispatch the matter quickly. Raymon v. Alvord Indep. Sch. Dist., 639 F.2d 257, 257 (5th Cir. 1981). 2 In its brief, Mohawk incorrectly states that Beaulieu uses “Floorcare Essentials” as a standalone trademark. Opp. (Dkt. 39) at 13. This is not alleged in the Amended Complaint, and is false. Case 1:16-cv-02266-WSD Document 40 Filed 02/03/17 Page 7 of 14 8 Nor is a vague and conclusory allegation “on information and belief” that Beaulieu otherwise uses “Fashion Essentials” sufficient to create subject matter jurisdiction in federal court. Opp. at 13. Jurisdiction may not be plead on information and belief. Lyerla v. Amco Insurance Co., 462 F.Supp.2d 931, 931 (S.D. Ill. 2006) (“Allegations of federal subject matter jurisdiction may not be made on the basis of information and belief, only personal knowledge.”). Furthermore, trademark infringement is, by definition, use of a mark that would be visible to the public. Lanham Act § 32(1), 15 U.S.C.A. § 1114(1) (infringement requires use of the accused mark “in connection with the sale, offering for sale, distribution or advertising of any goods or services” in a context that is likely to confuse the public). There is no justification for needing to rely on discovery to determine if any alleged infringement has even taken place, and certainly a theory that infringement could have occurred is not a sufficient basis for federal subject matter jurisdiction.3 See, e.g., Aquatech Int’l Corp. v. N.A. Water 3 Mohawk’s accusation that Beaulieu is not cooperating in discovery on use of “Fashion Essentials” is inaccurate and a catch-22. Opp. at 14. Beaulieu’s responses do not state that it is withholding any documents which say “Fashion Essentials”, and Beaulieu is not withholding any such documents. Furthermore, Beaulieu is entitled to accurately state that it does not use “Fashion Essentials” as a standalone trademark - providing accurate information is the purpose of discovery. Beaulieu does not need to falsely state that it uses “Fashion Essentials” to satisfy Mohawk. Case 1:16-cv-02266-WSD Document 40 Filed 02/03/17 Page 8 of 14 9 Sys., LLC, No. CIV.A. 12-435, 2013 WL 3972625, at *9 (W.D. Pa. July 31, 2013) (holding “plaintiffs’ bare assertions of ongoing wrongful conduct based on information and belief” were not sufficient to create subject matter jurisdiction). Nor does this Court’s ruling on the Motion to Dismiss automatically mean that Mohawk’s “Fashion Essentials” claim is substantial. The Motion to Dismiss addressed dismissal of all three of Mohawk’s claims, none of which distinguish between HOLLYTEX FASHION ESSENTIALS and “Fashion Essentials”. The Court thus did not address whether the single alleged use of “Fashion Essentials” is substantial enough to confer federal jurisdiction. III. This Court Can Transfer This Case to the Correct Division Mohawk argues extensively that Beaulieu has waived any challenge to venue. This is not relevant, as a transfer to the Rome division is within the discretion of this court under 28 U.S.C. § 1404, and does not impact venue in the U.S. District Court for the Northern District of Georgia. Furthermore, Local Rule 3.1 (parallel to Federal Rule of Civil Procedure 3) addresses how to commence a civil action in this district. It is not a restatement of the federal venue statute. Mohawk argues that, “reside” in Local Rule 3.1 should be interpreted to have the same meaning as “reside” in 28 U.S.C. § 1391. Mohawk does not explain why a definition in the federal venue statute would apply to the Northern District Case 1:16-cv-02266-WSD Document 40 Filed 02/03/17 Page 9 of 14 10 of Georgia Local Rules, and offers no support for this interpretation. Mohawk’s argument is contrary to authority, as this Court has previously interpreted “reside” to refer to where a corporate defendant has its principal place of business. IBEW Local 613 Defined Contribution Pension Fund v. Rome Elec. Sys., Inc., No. 1:07- CV-01704WSD, 2007 WL 2962771, at *1 (N.D. Ga. Oct. 9, 2007) (transferring case to location of principal place of business in Rome division). Mohawk does not dispute that both Beaulieu and Mohawk have their principal place of business in the Rome division and Mohawk has filed cases against Beaulieu in the Rome division before. Mohawk’s argument that the interests of justice will not be served by a transfer to the Rome division illustrates precisely why this case should be transferred. Mohawk argues that this case will be conducted in the same manner as a trademark case between the parties that is currently pending in the Rome division. Opp. at 28-29. This is not the first time that Mohawk has raised the conduct of the Rome division case in support of its arguments. See, e.g., Dkt. 14 at 10. It is far more efficient to have this dispute in front of a court which already knows the details of the various disputes between the parties. Furthermore, the cases currently pending in the Rome division, and the present case, are both trademark infringement claims related to carpet. See Case Nos. 4:15-cv-00184- Case 1:16-cv-02266-WSD Document 40 Filed 02/03/17 Page 10 of 14 11 HLM (N.D. Ga.), 4:15-cv-00124-HLM (N.D. Ga.). The Court in Rome is already well versed in the background on both parties and various facts pertinent to these actions. Transfer will both conserve judicial resources, and avoid inconsistent findings on the same issues. Mohawk’s argument that convenience favors the Atlanta division is not well supported. First, Mohawk’s list of the counties where Mohawk witnesses live, and the distance of those counties from the Rome courthouse, is not meaningful. Without exact addresses, it is impossible to tell the actual distances from the witnesses’ residences to the court. Furthermore, the courthouse would not be the location of any depositions, so it unclear how these distances are relevant. In the past, Mohawk’s same counsel has claimed that conducting depositions in the Rome division, rather than Atlanta, was better for Mohawk witnesses because of the proximity to their workplace. Declaration of Lucy Wheatley, Ex. 1. Therefore, Mohawk’s claim that Atlanta is more convenient for witnesses should be viewed with skepticism. Mohawk offers no argument that Atlanta is more convenient for Beaulieu’s witnesses. Case 1:16-cv-02266-WSD Document 40 Filed 02/03/17 Page 11 of 14 12 Defendant’s claim (in a sworn declaration) that “lead counsel” in the case for Beaulieu works in the Atlanta division, and previously agreed that venue is proper in the Atlanta division, is demonstrably false - as stated above lead counsel in this case is Lucy Wheatley, who works out of Richmond, Virginia, and who is not admitted in the case referenced by Mohawk. Compare Opp. at 36, Ex. 1 ¶ 11 with Dkt. 26 at 7. Furthermore, the language of the Rule does not view the location of counsel as an important consideration-it specifically refers to the location of the parties, and Mohawk must concede that both are located in the Rome division, which should end the issue. Where the Local Rules clearly provide that the case should have been brought in the Rome division, and judicial efficiency favors a transfer, Beaulieu respectfully submits that the case should be transferred to the Rome division. IV. Conclusion For the foregoing reasons and those set forth in its Opening Brief, Beaulieu respectfully requests that the Court dismiss Mohawk’s Amended Complaint in its entirety for lack of subject matter jurisdiction, or, in the alternative, transfer the case to the Rome Division. Respectfully submitted, MCGUIREWOODS LLP Case 1:16-cv-02266-WSD Document 40 Filed 02/03/17 Page 12 of 14 13 Dated: February 3, 2017 /s/Lucy Jewett Wheatley Peter N. Farley (Bar No. 255165) 1230 Peachtree Street, N.E., Suite 2100 Atlanta, GA 30309-3534 Telephone: 404-443-5623 Facsimile: 404-44305680 pfarley@mcguirewoods.com Brad R. Newberg (pro hac vice to be submitted) 1750 Tysons Boulevard, Suite 1800 Tysons Corner, VA 22102-4215 Telephone: 703-712-5000 Facsimile: 703-712-5050 bnewberg@mcguirewoods.com Lucy Jewett Wheatley (pro hac vice) Claire Hagan Eller (Bar No. 366653) Gateway Plaza, 800 East Canal Street Richmond, VA 23219-3916 Telephone: 804-775-4320 Facsimile: 804-698-2017 lwheatley@mcguirewoods.com celler@mcguirewoods.com Counsel for Beaulieu Group LLC Case 1:16-cv-02266-WSD Document 40 Filed 02/03/17 Page 13 of 14 14 CERTIFICATE OF SERVICE AND CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 5.1 I hereby certify that the foregoing document contains the required margins and was prepared in Times New Roman font, 14 point type (one of the font and point selections approved by the Court in N.D. Ga. L.R. 5.1(C)). I also hereby certify that on this 3rd day of February, 2017, a copy of the foregoing was filed via CM/ECF, which will send a notification of such filing to all counsel of record. This 3rd day of February, 2017. /s/ Lucy Jewett Wheatley Lucy Jewett Wheatley (admitted pro hac vice) lwheatley@mcguirewoods.com McGuireWoods LLP Gateway Plaza 800 East Canal Street Richmond, Virginia 23219-3916 (804) 775-1000 (804) 775-1061 (fax) Attorney for Beaulieu Group LLC Case 1:16-cv-02266-WSD Document 40 Filed 02/03/17 Page 14 of 14 1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA Atlanta Division MOHAWK CARPET DISTRIBUTION, INC., Plaintiff, v. BEAULIEU GROUP LLC, Defendant, Civil No. 1:16-cv-02266-WSD BEAULIEU GROUP LLC, Counterclaim-Plaintiff, v. MOHAWK CARPET DISTRIBUTION, INC. and MOHAWK CARPET, LLC, Counterclaim-Defendants. DECLARATION OF LUCY JEWETT WHEATLEY IN SUPPORT OF MOTION TO DISMISS THE AMENDED COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION OR TRANSFER Case 1:16-cv-02266-WSD Document 40-1 Filed 02/03/17 Page 1 of 3 2 I, Lucy Jewett Wheatley, declare under the penalty of perjury under the laws of the United States of America that the following declaration testimony is true and correct to the best of my knowledge. All statements herein made on my own knowledge are true and all statements herein made on information and belief are believed to be true. 1. Attached hereto as Exhibit A is a true and correct copy of email correspondence between counsel for Beaulieu and counsel for Mohawk regarding scheduling depositions in Calhoun for the convenience of Mohawk’s witnesses. In accordance with 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing testimony is true and correct. Executed this 3rd day of February, 2017. /s/ Lucy Jewett Wheatley Lucy Jewett Wheatley Case 1:16-cv-02266-WSD Document 40-1 Filed 02/03/17 Page 2 of 3 3 CERTIFICATE OF SERVICE I hereby certify that I have this day electronically filed the foregoing document with the Clerk of Court using the CM/ECF system, which will send automatic notification of this filing to the other filers in this action. This 3rd day of February, 2017. /s/ Lucy Jewett Wheatley Lucy Jewett Wheatley (admitted pro hac vice) lwheatley@mcguirewoods.com McGuireWoods LLP Gateway Plaza 800 East Canal Street Richmond, Virginia 23219-3916 (804) 775-1000 (804) 775-1061 (fax) Attorney for Defendant Beaulieu Group LLC Case 1:16-cv-02266-WSD Document 40-1 Filed 02/03/17 Page 3 of 3 Exhibit A Case 1:16-cv-02266-WSD Document 40-2 Filed 02/03/17 Page 1 of 5 From: Bowler, John M. To: Eller, Claire Hagan; Wheatley, Lucy Jewett; Newberg, Brad R.; DeFord, Amanda L. Cc: Hobbs, Michael D.; Henner, Lindsay Mitchell Subject: RE: Beaulieu v. Mohawk: Second Depositions of Seth Arnold and Mollie Surratt Date: Monday, August 08, 2016 11:35:59 AM Thanks Claire. Lindsay or I will pick you up at 7:00 AM at the Marriott in Midtown on Thursday. John M. Bowler| Troutman Sanders LLP | 600 Peachtree St NE, Suite 5200 | Atlanta, GA 30308-2216 | direct: 404 885 3190 | main: 404 885 3000 | direct fax: 404 962-6513 | john.bowler@troutmansanders.com | www.troutmansanders.com From: Eller, Claire Hagan [mailto:CEller@mcguirewoods.com] Sent: Monday, August 08, 2016 10:33 AM To: Bowler, John M.; Wheatley, Lucy Jewett; Newberg, Brad R.; DeFord, Amanda L. Cc: Hobbs, Michael D.; Henner, Lindsay Mitchell Subject: RE: Beaulieu v. Mohawk: Second Depositions of Seth Arnold and Mollie Surratt Hi John, We will be deposing Ms. Surratt and Mr. Arnold on issues relating to the documents that were the subject of the recent privilege dispute. With respect to the convenience of Ms. Surratt and Mr. Arnold, this is an issue that arose because Mohawk refused to permit those witnesses to answer questions on and relating to the documents at issue during their first depositions. Regardless, we agree to compromise and take these depositions in Calhoun. And we will take you up on your offer for transportation to and from Calhoun on Thursday. Can we meet at 7:00 AM at the Marriott in Midtown, which is right across the street from the McGuireWoods office? I will send around the amended deposition notices this morning. Thanks, Claire Claire Hagan Eller T: +1 804 775 1368 | M: +1 412 584 5886 From: Bowler, John M. [mailto:john.bowler@troutmansanders.com] Sent: Monday, August 08, 2016 9:37 AM To: Eller, Claire Hagan; Wheatley, Lucy Jewett; Newberg, Brad R.; DeFord, Amanda L. Cc: Hobbs, Michael D.; Henner, Lindsay Mitchell Subject: RE: Beaulieu v. Mohawk: Second Depositions of Seth Arnold and Mollie Surratt Claire, Following up on my emails from last Monday this will confirm that we have reserved the conference room at the Gordon County Chamber of Commerce, 300 S. Wall Street, Calhoun, GA 30701, for this Thursday’s depositions of Seth Arnold and Mollie Surratt. Case 1:16-cv-02266-WSD Document 40-2 Filed 02/03/17 Page 2 of 5 If it’s an issue of your commute or need for a rental car, I or Lindsay will gladly drive you or your colleague to Calhoun that morning and take you to the airport after the depositions. Just let us know where to pick you up that morning and we’ll aim to leave for Calhoun around 7:30 AM. From your email it sounds like Beaulieu’s examination of Seth Arnold and Mollie Surratt on the two documents will be limited and that you may begin Ms. Surratt’s deposition in the morning if Mr. Arnold’s finishes sooner. Doing the depositions in Atlanta would require these Mohawk employees (who have already each been deposed in Atlanta) to write off the whole day of work for these short depositions. Ms. Surratt lives in Calhoun, has a baby, and for her last deposition at the end of April had to drive to Atlanta the night before and stay in a hotel. We already accommodated Beaulieu’s witness Mike McCallister who wanted to be deposed in Dalton; and Mr. Arnold and Ms. Surratt have already had their deposition taken once at your Atlanta offices for your convenience. Thanks for understanding and let us know if we can drive you to and from Calhoun. Regards, John John M. Bowler| Troutman Sanders LLP | 600 Peachtree St NE, Suite 5200 | Atlanta, GA 30308-2216 | direct: 404 885 3190 | main: 404 885 3000 | direct fax: 404 962-6513 | john.bowler@troutmansanders.com | www.troutmansanders.com From: Eller, Claire Hagan [mailto:CEller@mcguirewoods.com] Sent: Monday, August 01, 2016 5:30 PM To: Bowler, John M.; Wheatley, Lucy Jewett; Newberg, Brad R.; DeFord, Amanda L. Cc: Hobbs, Michael D.; Henner, Lindsay Mitchell Subject: RE: Beaulieu v. Mohawk: Second Depositions of Seth Arnold and Mollie Surratt John, We confirm that we will take the second, court ordered depositions of Mr. Arnold and Ms. Suratt on Thursday, August 11, 2016, in our offices in Atlanta, as we are unavailable to take them in Calhoun. Attached please find service copies of those deposition notices. Please note that we have noticed Mr. Arnold’s deposition to begin at 9 am, and Ms. Suratt’s deposition to begin at 1 pm. We are amenable to beginning Ms. Suratt’s deposition earlier, should Mr. Arnold’s deposition conclude before 1 pm. Case 1:16-cv-02266-WSD Document 40-2 Filed 02/03/17 Page 3 of 5 Thank you, Claire Claire Hagan Eller T: +1 804 775 1368 | M: +1 412 584 5886 From: Bowler, John M. [mailto:john.bowler@troutmansanders.com] Sent: Monday, August 01, 2016 2:39 PM To: Bowler, John M.; Eller, Claire Hagan; Wheatley, Lucy Jewett; Newberg, Brad R.; DeFord, Amanda L. Cc: Hobbs, Michael D.; Henner, Lindsay Mitchell Subject: RE: Beaulieu v. Mohawk: Second Depositions of Seth Arnold and Mollie Surratt Counsel, Following up on my email below, we can use a conference room at the Gordon County Chamber, 300 S. Wall Street, Calhoun, GA 30701. We need to let them know if the conference room will be needed on Aug 4 or Aug 11, so please confirm the date you want as soon as possible. John M. Bowler| Troutman Sanders LLP | 600 Peachtree St NE, Suite 5200 | Atlanta, GA 30308-2216 | direct: 404 885 3190 | main: 404 885 3000 | direct fax: 404 962-6513 | john.bowler@troutmansanders.com | www.troutmansanders.com From: Bowler, John M. Sent: Monday, August 01, 2016 8:45 AM To: 'Eller, Claire Hagan'; Wheatley, Lucy Jewett; Newberg, Brad R.; DeFord, Amanda L. Cc: Hobbs, Michael D.; Henner, Lindsay Mitchell Subject: Beaulieu v. Mohawk: Second Depositions of Seth Arnold and Mollie Surratt Counsel, Responding to the Court’s July 29 Order [102] granting in part and denying in part Beaulieu’s motion for an order that certain documents are not privileged and for a second deposition of Seth Arnold and Mollie Surratt “on MCD 016857 to MCD 016858 and MCD 006518 to MCD 006519” [61], Mr. Arnold and Ms. Surratt are available for deposition on those bates numbered documents in Calhoun, GA on either August 4 or August 11. Mr. Arnold would be available to begin his deposition at 9 AM with Ms. Surratt available to begin her deposition following Mr. Arnold’s deposition. Please confirm which date you prefer and we’ll get back to you with an address for the depositions. John M. Bowler| Troutman Sanders LLP | 600 Peachtree St NE, Suite 5200 | Atlanta, GA 30308-2216 | direct: 404 885 3190 | main: 404 885 3000 | direct fax: 404 962-6513 | john.bowler@troutmansanders.com | www.troutmansanders.com Case 1:16-cv-02266-WSD Document 40-2 Filed 02/03/17 Page 4 of 5 This e-mail communication (including any attachments) may contain legally privileged and confidential information intended solely for the use of the intended recipient. If you are not the intended recipient, you should immediately stop reading this message and delete it from your system. Any unauthorized reading, distribution, copying or other use of this communication (or its attachments) is strictly prohibited. This e-mail from McGuireWoods may contain confidential or privileged information. If you are not the intended recipient, please advise by return e-mail and delete immediately without reading or forwarding to others. This e-mail communication (including any attachments) may contain legally privileged and confidential information intended solely for the use of the intended recipient. If you are not the intended recipient, you should immediately stop reading this message and delete it from your system. Any unauthorized reading, distribution, copying or other use of this communication (or its attachments) is strictly prohibited. This e-mail communication (including any attachments) may contain legally privileged and confidential information intended solely for the use of the intended recipient. If you are not the intended recipient, you should immediately stop reading this message and delete it from your system. Any unauthorized reading, distribution, copying or other use of this communication (or its attachments) is strictly prohibited. Case 1:16-cv-02266-WSD Document 40-2 Filed 02/03/17 Page 5 of 5