Documenti di Didattica
Documenti di Professioni
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^S
THOMAS P. JIRGAL (SBN 202637)
tjirgal@loeb.com
MELANIE J. HOWARD (SBN 218895)
mhoward@loeb.com
LOEB&LOEBLLP
10100 Santa Monica Blvd., Suite 2200
Los Angeles, CA 90067
Telephone: 310.282.2000
Facsimile: 310.282.2200
Attorneys for Plaintiff
Don Henley
Don Henley,
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT
Plaintiff,
Duluth Holdings Inc., d/b/a Duluth
Trading Company, W^cor^.v covpo.-a-fr
Defendant.
^m
io
O
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I
o
en
OF CALIFORNIA
COMPLAINT FOR:
(a) Trademark Infringement in
Violation of U.S. Lanham Act, 15
U.S.C. 1114;
(b) False Endorsement and Unfair
Competition in Violation of
Lanham Act, 15 U.S.C. 1125;
(c) Violation of California Business &
Professions Code 17200;
(d) Violation of California Statutory
Right of Publicity, Cal. Civ. Code
3344;
(e) Violation of Common Law Right
of Publicity
DEMAND FOR JURY TRIAL
Plaintiff Don Henley brings this Complaint against Duluth Holdings Inc. d/b/a
Duluth Trading Company ("Duluth Trading Company") and alleges for his
Complaint as follows:
COMPLAINT
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Loeb& Loeb
A Limited Liability Partnership
Including Professional
Corporations
o
PRELIMINARY
1. The Eagles are one of the
Don Henley is one of the band's most
member of the Eagles, Mr. Henley has
public advocate for artists' rights. Hip
portion of the United States population.
2. Duluth Trading Compan
located in Wisconsin that markets and
Duluth is a sophisticated marketer that
television stations, by email, andthrough
3. In disregard of Mr. Henley
violation of registered trademarks that
and distributed an advertisement
invokes Mr. Henley's name and his
song title) to sell its apparel. Large
Duluth Trading Company's advertisements
Henley is associated with and/or has
is untrue.
4. Duluth Trading Company
Henley's name or registered marks, arid
license. To the contrary, Mr. Henley his
that he objects to any unlicensed use of
property rights for commercial purposes
5. Mr. Henley brings this
violation of his rights, and to help en$ure
situated retailers discontinue their unlawful
financial recovery he obtains from this
^ft
STATEMENT
United States' most successful bands, and
well-known members. In addition to being a
achieved fame as a solo performer and is a
name is instantly recognizable by a large
is a highly successful clothing retailer
sells apparel throughout the United States.
advertises its products on national and local
targeted Internet advertising.
's rights in his name and likeness, and in
he owns, Duluth Trading Company created
ghout the United States that deliberately
association with the Eagles (via an Eagles hit
rfumbers of consumers who receive and see
will unquestionably believe that Mr.
en|dorsed the company and its products, which
never sought to obtain a license to use Mr.
Mr. Henley did not grant the company a
publicly made clear on multiple occasions
his name, trademarks, and other intellectual
throu;
aption to address a clear and unwarranted
that the defendant and other similarly
violation of his and others' rights. Any
alction will be donated tocharity.
COMPLAINT
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Loeb & Loeb
A Limited LiabilityPartnership
Including Professional
Corporations
0%
A
JURISDICTION AND VENUE
6. This action seeks injunctive relief, damages, and other appropriate
relief arises undr the laws of the Unied States, specifically, the Lanham Act, 15
U.S.C. 1051, et seq. and California state law
7. This Court has original subject matter jurisdiction over this action
under 28 U.S.C. 1331 and 1338. It has supplemental jurisdiction ofthe common
and state lawclaims pursuant to 28 U.S.C. 1367 in that those claims are related to
claims under this Court's original jurisdiction and form part of the same case or
controversy under Article III of the United States Constitution.
8. The Court has personal jurisdiction over Duluth Trading Company
because DuluthTrading Company has established minimum contacts withthe forum
and the exercise of jurisdiction over Duluth Trading Company will not offend
traditional notions of fair play and substantial justice. On information and belief,
Duluth Trading Company has voluntarily conducted business and solicited
customers in this District. On information and belief, Duluth Trading Company
conducts continuous and systematic business in the state of California and
specifically, this District.
9. Venue is proper in this District under 28 U.S.C. 1391(b)(2) because
a substantial part of the events giving ise to Mr. Henley's claims occurred in this
District.
PARTIES
songwriter, recording artist, performer, and
n this District.
11. On information and belief, Defendant Duluth Holdings Inc., doing
business as Duluth Trading Company, is a Wisconsin corporation with its principal
place of business in Belleville, Wisconsin. On information and belief, Duluth
Trading Company has multiple store loc ations, enjoys a national customer base, and
COMPLAINT
10. Plaintiff Don Henley is a
public advocate who conducts business
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Loeb & Loeb
A Limited Liability Partnership
Including Professional
Corporations
A
is a sophisticated national advertiser
in the state of California and, specifica
GENERAL
12. Mr. Henley is a
drummer, and singer of the Eagles,
musical groups. Every album that
certified platinum, three albums have
the Eagles' Their Greatest Hits 1971
time in the United States with sales in
hit single "Take It Easy"was the
album and on the band's best-selling g:
13. As a member of the Eag
list of hits, including "Take It Easy,"
California." In the 1980s, he launched
Eagles, during which time he wrote anc
Laundry," "Boys of Summer," and "
performed concerts around the world,
and advocacy on behalf of artists' rig
14. Given the timeless nature?
Henley, their appeal continues to
culture and their performances routine
result of Mr. Henley's undisputed
solo artist, he enjoys instant name reco:
15. Mr. Henley uses his name
performing artist and is the registered
Henley." U.S. Registration Numbers
April 4, 2000 and June 20, 2000,
registration certificate for each of the
o
who markets its clothing nationally, including
ly, this District.
ALLEGATIONS
musician and a founding member,
which is one of the most successful American
Eagles has released since 1972 has been
sjold in excess of ten million copies each, and
1975 album is the best-selling album of all
excess of 29 million units. The band's first
lead track on the Eagles' self-titled debut
ileatest hits album.
, Mr. Henley wrote or performed on a long
'Witchy Woman," "Desperado," and "Hotel
a successful solo career independent of the
performed a number of hits including "Dirty
Slunset Grill." During this time, Mr. Henley
;ind became well known for his philanthropy
htt.
of the many hits by the Eagles and Mr.
enduife. In fact, they remain a part of today's pop
y draw large audiences of loyal fans. As a
sucdess as both a member of the Eagles and as a
nition.
to distinguish his services as a recording and
owner of two trademarks in the name "Don
2337742 and 2359466 were registered on
respectively. A true and correct copy of the
se marks is attached as Exhibit A. These
professional
ks,
ir
COMPLAINT
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Loeb & Loeb
A Limited LiabilityPartnership
Including Professional
Corporations
f}
o
registrations were duly and legally
and constitute conclusive evidence o
registration of each mark, Mr,
Henley's exclusive right to use the reg
the goods and services listed in each re
1057(b). Duluth Trading Company
in his federally registered trademarks.
16. On information and
Trading Company distributed an
directed to residents of this District
invoked "Don Henley"Mr. Henley
"Henley" style shirts. Specifically, as
Henley and the popularity the Eagles'
Company distributed an email to
customers to "Don a Henley and Tak
online version ofthe Advertisement is
issued.
i, are valid, subsisting, and incontestable,
the validity of each registered mark, the
s ownership of each mark, and of Mr.
jstered mark in commerce in connection with
gistration certificate. 15 U.S.C. 1115(b),
constructive notice of Mr. Henley's rights
5 U.S.C 1072.
', on or about October 6, 2014, Duluth
in interstate commerce that was
(the "Advertisement"). The Advertisement
s trademarked namein an effort to sell
a means of exploiting the celebrity of Mr.
hit record, "Take It Easy," Duluth Trading
nationwide customer base encouraging
It Easy." A true and correct copy of an
attached as Exhibit B.
Henley
had
belief,
advertisement
its
COMPLAINT
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Loeb & Loeb
ALimitedLiability Partnership
Including Professional
Corporations
Q
o
17. At no time has Duluti Trading Company obtained a license,
authorization, or other permission to exploit Mr. Henley's name or registered
trademarks in the manner described heiein or to capitalize on Mr. Henley's celebrity
and status as a famous musician for th; purpose ofdriving sales ofDuluth Trading
Company's clothing. On information and belief, Duluth Trading Company
knowingly distributed the Advertiseme it to its customers with the knowledge that it
lacked a license to use Mr. Henley's likeness and registered trademarks for its
commercial purposes.
FIRST CLAtM FOR RELIEF
(Trademark Infringement inViolation of Lanham Act, 15 U.S.C. 1114)
18. Mr. Henley incorporates b; rreference Paragraphs 1through 17 above as
though fully set forth herein.
19. On information and belie E", Duluth Trading Company has advertised
and sold goods as a result of the Adverisement. This unauthorized use in interstate
commerce is the unlawful use of a re
imitation of Mr. Henley's federally
production, counterfeit, copy, or colorable
registered marks and is likely to cause
confusion, mistake, or to deceive the consuming public and trade by creating the
erroneous impression that Duluth Trading Company's product has been
manufactured, approved, sponsored, endorsed, or guaranteed by, or is in some way
affiliated with Mr. Henley.
has infringed Mr. Henley's trademarks and
1114.
20. Duluth Trading Company
has and continues to violate 15U.S.C.
21. Due to Duluth Trading Ccmpany's unauthorized use of Mr. Henley's
trademarked name, Mr. Henley has and
22. On information and belief,
continues to be intentional, willful, and
Henley's rights.
will continueto suffer damages.
Duluth Trading Company's conduct has and
with full knowledge of the violation of Mr.
COMPLAINT
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Loeb & Loeb
ALimitedLiability Partnership
Including Professional
Corporations
o
23. Duluth Trading Company
will continue to cause serious and i
proven business success associated
which he has no adequate remedy at
24. On information and belielf,
will profit by its wrongful conduct and
25. Mr. Henley is entitled to
damages, including attorneys' fees, he
profits, and advantages obtained by
infringement as alleged above. At
profits, andadvantages cannot fully be
ift
is causing and, unless enjoined by the Court,
irreparable harm to the goodwill, reputation, and
Mr. Henley's registered trademarks for
with
SECOND CLAIM
(False Endorsement, Unfair
26. Mr. Henley incorporates b
though fully set forth herein.
27. Mr. Henley is a world fambus
great success as both a member of the
success, he benefits from instant name
Easy" is famously associated with Mr
andpersona in the mind of the public.
28. Duluth Trading Company
trademarked name in conjunction
successful single, "Take It Easy," was
to increase sales of Duluth Trading
Trading Company's other interests.
29. This unauthorized use
and misleading representations of fact
cause confusion, or to cause mistake,
law,
Duluth Trading Company has profited or
activities.
recover from Duluth Trading Company the
las sustained andwill sustain, andanygains,
Duluth Trading Company as a result of its
p-esent, the amount of such damages, gains,
iscertained by Mr. Henley.
FOR RELIEF
Competition, 15 U.S.C. 1125(a))
y reference Paragraphs 1through25 above as
musician whohas andcontinues to enjoy
Eagles and as a solo performer. Given his
recognition. Further, the hit song "Take It
Henley andimmediately suggests his identity
's advertised use of Mr. Henley's
the title of the Eagles' debut, highly
interstate commerce and done specifically
Company's clothing and advance Duluth
with
in
constitutes
a false designation of origin and false
Duluth Trading Company that is likely to
to deceive as to the affiliation, connection,
ty
or
COMPLAINT
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Loeb & Loeb
A LimitedLiability Partnership
Including Professional
Corporations
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or association of Duluth Trading
origin, sponsorship, or approval of
commercial activities by Mr. Henley,
1125(a).
30. Duluth Trading Comparjy
unauthorized use of Mr. Henley's
the Eagles' hit single, "Take It Easy,
the public regarding whether Mr.
associated with, or approved the
31. Due to Duluth Trading
trademarked name, Mr. Henleyhas and
32. On information and belief
by its wrongful conduct and activities.
33. On information and belief,
continues to be intentional, willful, and
Henley's rights.
34. Duluth Trading Company
will continue to cause Mr. Henley
remedy at law.
35. Mr. Henley is entitled to
15 U.S.C. 1117 and prejudgment
o
Coripany and/or with Mr. Henley, or as to the
Dijluth Trading Company's goods, services, or
in violation of the Lanham Act, 15 U.S.C.
knew or should have known that its
trademarked name in conjunction with the title of
was likely to cause confusion or mistake by
Herley endorsed, is affiliated, connected to, or
Adven isement.
Company's unauthorized use ofMr. Henley's
will continue to suffer damages.
Duluth Trading Company has or will profit
Duluth Trading Company's conduct has and
with full knowledge of the violation of Mr.
s causing and, unless enjoined by the Court,
irreparable harm for which he has no adequate
his
attorneys' fees and full costs pursuant to
interest according to law.
THIRD CLA
(Violation of California Busihess
36. Mr. Henley incorporates b)
though fully set forth herein.
37. As discussed above, Duluth
cause confusion or mistake regarding
connected to or associated with, or
M FOR RELIEF
& Professions Code 17200)
referenceParagraphs 1through 35 above as
Trading Company's conduct is likely to
whether Mr. Henley endorsed, is affiliated,
approved the message and content of the
COMPLAINT
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Loeb & Loeb
A LimitedLiabilityPartnership
Including Professional
Corporations
>H0RT SLEEVE
REG $2450
$19.50 LONGTAIL T HENLEY SALE
Exhibit B
http://link.duluthtradingemail.com/YesCormect/HtmlMeisagePreview?a=Ti6cResEtRqjdsI... 10/8/2014
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Exhibit B
http://Hnk.duluthtradingemail.com/YesConnect/HtmlM(!ssagePreview?a=Ti6cResEtRqjdsI... 10/8/2014
$19.50 Longtail THenley - Tha^fco Wisecrack!
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Addduluthtrading@duluthtradingemail.com to your
address book or "safe list" to ensure delivery. Please don't
use your email's "Reply" function. We don't monitor this
address.
This; message was sent to: daughetyfamily@att.net
Unsubscribe Update email preferences
OFFER NOTES: Click on any link from this emailto start shopping or
get Free Shipping on orders of $50 or more. $50 minimum order
packaging and giftcards. Valid on domestic standard delivery(5-7 busii
pants) receive our very best deals, promotions and special offers,
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with any other offers. Longtail T Henley offer valid on
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Offers expire at 11:59 p.m. CT on October 12, 2014.
2014 Duluth Trading Company
170 Countryside Drive, Belleville, Wl 53508
Siol
Exhibit B
http://link.duluthtradingemail.coni/YesConnect/HtmlMeisagePreview?a=Ti6cResEtRqjdsI... 10/8/2014
^m
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
CIVIL COVER!SHEET
I. (a) PLAINTIFFS ( Check box ifyou are representing yourself )
Don Henley, an individual
DE FENDANTS ( Check box if you are representing yourself )
Duluth Holdings Inc., d/b/a Duluth Trading Company, a
W sconsin corporation ''
(b) County of Residence of First Listed Plaintiff Dallas, TX
(EXCEPTINUS PLAINTIFF CASES)
(c) Attorneys (Firm Name, Address and Telephone Number) If you are
representing yourself, provide the same information.
LOEB & LOEB LLP
Thomas P. Jirgal (202637); Melanie Howard (218895)
10100 Santa Monica Boulevard, Suite 2200
Los Angeles, California 90067
Phone: 310-282-2000; Facsimile: 310-282-2200
nty of Residence of First Listed Defendant Dane, Wl
/ S. PLAINTIFF CASESONL Y)
Attorneys (Firm Name, Address and Telephone Number) If you are
representing yourself, provide thesame information.
II. BASIS OFJURISDICTION (Place an Xin one box only.) III. CITIZENSHIP
OF PRINCIPAL PARTIES-For Diversity CasesOnly
an X in one box for plaintiff and one for defendant)
i* c.o.o II II Incorporated orPrincipal Place If !Ef
"State LJ1 D1 of Business in this State D< D*
other State KI 2 LJ 2 Incorporated and Principal Place [_] 5 ^5
of Business in Another State
I I 1. U.S. Government
Plaintiff
2. U.S. Government
Defendant
l2Sl 3. Federal Question (U.S.
Government Not a Party)
LJ 4. Diversity (Indicate Citizenship
of Parties in Item III)
IV. ORIGIN (Place an Xin one box only.)
[Xj 1. Original [J 2. Removed from Q 3. Remanded from [_"] 4. Reinstat
Proceeding State Court Appellate Court Reopen:
(Place
Citizen of Tr
Citizen of Ar
Citizen or Si bject of a
Foreign Couitry
I | 3 I I 3 Foreign Nation
II r -r ., 6- Multi-
id or | | 5. Transferred from Another .. District
I District (Specify) LJ Litigation
e De
V. REQUESTED IN COMPLAINT: JURY DEMAND: M Yes No ((fheck
CLASS ACTION under F.R.Cv.P. 23: Yes ^ No
Yes" only if demanded in complaint.)
MONEY DEMANDEDIN COMPLAINT: $ 75,000.00
VI. CAUSEOFACTION (Cite the U.S. Civil Statute under which you arefiling and write
15 U.S.C. 1114, 1125(a), (c)(1) &(d); Cal. Civ. Code 3344 - Trademark
VII. NATURE OF SUIT (Place an Xinone box only).
OTHER STATUTES
Q 375 False Claims Act
400 State
Reapportionment
Q 410 Antitrust
| | 430 Banks andBanking
450 Commerce/ICC
Rates/Etc.
| | 460 Deportation
470 Racketeer Influ
enced & Corrupt Org.
| | 480 Consumer Credit
Q 490 Cable/Sat TV
850 Securities/Com
modities/Exchange
890 Other Statutory
Actions
| | 891 Agricultural Acts
893 Environmental
Matters
895 Freedom of Info.
Act
| | 896 Arbitration
899 Admin. Procedures
[ [Act/Review ofAppeal of
Agency Decision
950 Constitutionality of
State Statutes
FOR OFFICE USE ONLY:
CONTRACT
|I 110Insurance
120 Marine
Q 130 Miller Act
I| 140Negotiable
I I Instrument
150 Recovery of
I ] Overpayment &
'' Enforcement of
Judgment
| | 151 Medicare Act
152 Recovery of
| | Defaulted Student
Loan (Excl. Vet.)
153 Recovery of
| | Overpayment of
Vet. Benefits
160 Stockholders'
Suits
| | 190Other
Contract
195 Contract
Product Liability
| | 196Franchise
REAL PROPERTY
fj 210 Land
Condemnation
I | 220 Foreclosure
230 Rent Lease &
Ejectment
Case Number:
REAL PROPERTYCONT.
I I 240Torts to Land
Q 245 Tort Product
Liability
r] 290 All Other Real
Property
TORTS
PERSONAL INJURY
Q 310 Airplane
315 Airplane
Product Liability
320 Assault. Libel &
Slander
330 Fed. Employers'
Liability
| | 340Marine
345 Marine Product
Liability
| | 350Motor Vehicle
355 Motor Vehicle
Product Liability
360 Other Personal
Injury
362 Personal Injury-
Med Malpratice
365 Personal Injury-
Product Liability
367 Health Care/
I I Pharmaceutical
'' Personal Injury
Product Liability
368 Asbestos
Personal Injury
Product Liability
briefstatement of cause. Donot cite jurisdictional statutes unless diversity.)
Infringment Right of Publicity
IMM GRATION
462 r aturalization
:ation Appli
465 (Jther
Immis ration Actions
rjiTo
D 371 Ti
,I 380
ORTS
PERSONAL PROPERTY
Other Fraud
ruth in Lending
C ther Personal
Propi rty Damage
385 Froperty Damage
Prodijct Liability
BAN (RUPTCY
D
422 Appeal 28
use 58
423 Withdrawal 28
USC 57
Clvl . RIGHTS
|_) 440 Olther Civil Rights
fj 441 Voting
| | 442 Employment
11 443 Housing/
Accor lodations
C.1. Iseitherof the following true? Ifso, check the one that applies:
I | 2 ormore answers inColumn C
[_] only 1answer in Column Cand noanswers in Column D
Your case will initially be assigned to the
SOUTHERN DIVISION.
Enter "Southern" in response to Question D, below.
Ifnone applies, answer question C2 to the right.
D
C
C.2. Is ither of the following true? Ifso, check the onethat applies:
LJ 2 or more answers in Column D
1Li only 1answer in Column Dand no answers in Column C
Your case will initially be assigned to the
EASTERN DIVISION.
Enter "Eastern" in response to Question D, below.
If none applies, go to the box below. I
Your case will initiallybe
WESTERN DM31
Enter "Western" in response to
ssigned to the
ION.
Question D below.
Question D: Initial Division?
INITIAL DIVISION INCACD
Enter the initial divisiondetermined by Question A, B, or C above:
Western Division
CV-71 (11/13)
CML COVER Sh EET
Page 2 of 3
lericaDLegalNet, Inc.
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UNITED STATES DISTRICT COURT, CENTRAL
CIVIL COVER
IX(a). IDENTICAL CASES: Hasthis action been previously filed inthis court
Ifyes, listcase number(s):
DISTRICT OF CALIFORNIA
SHEET
nd dismissed, remanded orclosed? ^ NO LJ YES
IX(b). RELATED CASES: Have anycases been previously filed inthis court t
If yes, listcase numbers):
th at are related to the present case?
NO YES
Civil cases aredeemed relatedif a previously filed case and the present case:
(Check all boxes that apply) LJ A. Arise from the same orclosely related transactions
I I B. Call for determination of the same or substantially
LJ C. For other reasons would entail substantial duplication
LJ D. Involve the same patent, trademark or copyright,
X. SIGNATURE OF ATTORNEY
(OR SELF-REPRESENTED LITIGANT): ^
Notice toCounsel/Parties: The CV-71 (JS-44) Civil Cover Sheet and the information contained
other papers as required by law. This form, approved by the Judicial Conference of the Uniti id
but is used bythe Clerkof the Court for the purpose of statistics, venue and initiating the civ
Keyto Statisticalcodes relatingto Social Security Cases:
Nature of Suit Code Abbreviation
861 HIA
Substantive Statement of Cadse of Action
All claims for health insurance benefits (M< di
include claims by hospitals, skillednursing
(42 U.S.C. 1935FF(b))
happenings, or events; or
i)elated orsimilar questions oflaw andfact; or
of labor if heard by different judges; or
one of the factors identified above ina, b or c also is present aid
DATE: October 8, 2014
herein neither replace norsupplement thefiling andservice ofpleadings or
States in September 1974, is required pursuant to LocalRule3-1 is not filed
ildocket sheet. (For more detailed instructions, see separate instructions sheet).
licare) under Title18, Part A,ofthe SocialSecurity Act, as amended. Also,
Facilities, etc., forcertification as providers of services underthe program.
862
863
863
864
865
BL
DIWC
DIWW
SSID
RSI
Allclaims for "Black Lung" benefits under 1
923)
TiBe
4, Part B,ofthe Federal Coal Mine Health and Safety Actof1969. (30U.S.C.
CV-71 (11/13)
All claims filed by insured workers for disability
all claims filed for child's insurance benefits
All claims filed for widows or widowers i
amended. (42 U.S.C. 405 (g))
All claims for supplemental security income
amended.
All claimsfor retirement(oldage) and survit/ors benefits under Title 2 of the Social SecurityAct as amended
(42 U.S.C. 405 (g))
ity insurance benefits underTitle 2 oftheSocial Security Act, as amended- plus
based on disability. (42 U.S.C. 405 (g))
ranee benefits based on disability under Title 2 ofthe Social Security Act, as
paymentsbased upondisability filed under Title 16ofthe Social Security Act, as
CIVIL COVER SHEET
Page 3 of 3
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