July 23, 2014

What's Going on with Kirby v. LPE?

by Pam
Everyone keeps asking and the people that know aren't talking. I don't have any insights but every time I go to check the status, it takes me too much time to find everything again. So, the below case headings are links that will take you to the public data available. I've summarized what I saw as coming up but if I have it wrong, please correct me.

The trademark cancellation stuff is all public and it's just a matter of understanding the cancellation process. Looks like everything is proceeding along.

The lawsuit is quasi public and from my calculations a Joint Status Report is due on August 24th which should shed some light on how things are going and whether there was any progress in the mediation. A few of the parties have been dismissed.  A couple more are trying to get dismissed. It's all moving very slow.

Karaya LASER TM Cancellation Proceeding (92/057,167)
30-Aug-14Plaintiff's 30-day Trial Period Ends
14-Sep-14Defendant's Pretrial Disclosures
29-Oct-14Defendant's 30-day Trial Period Ends
13-Nov-14Plaintiff's Rebuttal Disclosures
13-Dec-14Plaintiff's 15-day Rebuttal Period Ends
Velum LASER TM Cancellation Proceeding (92/057,217)
19-Aug-14Discovery Closes
03-Oct-14Plaintiff's Pretrial Disclsoures
17-Nov-14Plaintiff's 30-day Trial Period Ends
02-Dec-14Defendant's Pretrial Disclosures
16-Jan-15Defendant's 30-day Trial Period Ends
31-Jan-15Plaintiff's Rebuttal Disclosures
02-Mar-15Plaintiff's 15-day Rebuttal Period Ends
Kirby v. LP Lawsuit (3:13-cv-00297)
Parties:BKI - Bruce Kirby, Inc. (Plaintiff-Counterclaim Defendant)
BK - Bruce Kirby (Plaintiff-Counterclaim Defendant)
LPE - LaserPerformance (Europe) Limited (Defendant-Counterclaim Plaintiff)
QM - Quarter Moon, Incorporated (Defendant-Counterclaim Plaintiff)
ILCA - International Laser Class Association (Defendant)
GSL - Global Sailing Limited (Additional Counterclaim Defendant)
PSA - Performance Sailcraft Pty. Ltd. (Additional Counterclaim Defendant)
KL - Kayara (Jersey) Limited (Defendant) - DISMISSED 2-27-14 - lack of personal jurisdiction
VL - Velum Limited (Defendant) - 
DISMISSED 2-27-14 - lack of personal jurisdiction
ISAF - International Sailing Federal Limited (Defendant) - 
DISMISSED 2/27/14 - lack of personal jurisdiction
FR - Farzad Rastegar (Defendant) - 
DISMISSED 2/27/14 - failure to state claim
07-Aug-14Disclosure of Opening Expert Reports due
Prefiling Conference Request for Dispostive motions (if any) due
24-Aug-14Joint Status Report due
29-Aug-14Damages Analysis due
04-Sep-14Rebuttal Experts Reports due
15-Sep-14Trial Brief due
22-Sep-14Discovery due
Oct. 2014Mandatory Settlement Conference
20-Oct-14Trial Ready Date


  1. Am I right in thinking that Kirby's suit agains ISAF for "tortious interference" has now been dismissed?

    And, if so, does this mean that his similar suit against ILCA is also likely to be dismissed/

  2. My reading is that ISAF has been dismissed and it has nothing to do with the claims and everything to do with whether a Connecticut court has any jurisdiction over an Isle of Man entity given all the legal hoops that have to be jumped through to prove jurisdiction. Given the facts presented to them, the Court apparently decided they didn't have jurisdiction over ISAF.

    I haven't read too carefully but I don't see where ILCA has even filed a Motion of Dismiss and without a Motion the Court isn't going to issue an Order to Dismiss.

    Plus, with the ILCA in the process of moving their headquarters to the US, I would think it's game on for lawsuits a plenty for no reason and every reason.

    But I really have no idea what I'm talking about ...

  3. As I understand it, in order to prevail on a claim of tortious interference with contractual relations, a plaintiff must show the defendants' intent to interfere with the contractual relationships. As all of Kirby's allegations concern actions by ISAF after the builders had allegedly breached their contracts with Kirby, he failed to show that ISAF intended to interfere with Kirby's contractual relationship with the builder.

    Isn't that one of the reasons why the court dismissed Kirby's lawyers' spurious claim against ISAF?

  4. I saw the comments on the sailinganarchy forum too. I was beyond baffled.

    If you read document 63 on the link to the lawsuit, you will see the Motion to Dismiss (and the 1 page argument) put forth by ISAF's attorneys. They simply asserted procedural defects: jurisdiction and failure to state a claim. The Joint Status Report (Document 115) filed after the dismissal indicated the dismissal was for lack of personal jurisdiction. End of story.

    Before even getting to the merits of any claims, the attorneys begin with whether the Court should even hear the case. In general, Motions to Dismiss shall be used to assert (1) lack of subject-matter jurisdiction; (2) lack of personal jurisdiction; (3) improper venue; (4) insufficient process; (5) insufficient service of process; (6) failure to state a claim upon which relief can be granted; and (7) failure to join a party.

    The dismissals of ISAF, Karaya and Velum were for "lack of personal jurisdiction" (the Court doesn't have jurisdiction to even hear the case). Rastegar was dismissed for "failure to state a claim" (a claim upon which relief can be granted). All the dismissal motions in this case are on procedural technicalities and absolutely nothing to do with the merits of any allegations.

    Google dismissal practice in federal court ... it's pretty standard. The Court has yet to hear or rule on one shred of evidence on the merits of the case (that comes at trial). It's all been procedural at this point.

    At least that's my understanding ... but there is no need to take my word for it ... just read the documents ... they're pretty straightforward.

  5. Thanks /Pam. As you correctly deduced, everything I know about the law I learned on Sailing Anarchy. Good to hear from someone who actually know what they are talking about.

    There are two people who post on that thread who sound like they know what the are talking about. But perhaps they don't. I suspect that each of them is some kind of sock puppet for the lawyers or PR people on the opposing sides, anyway.

    1. Yes, that Sailing Anarchy law degree appears to be a dangerous thing. I find the Google law degree to be much better. No vested interests in the Kirby/LPE case and lots of the same information said in different ways but generally in agreement.


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