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Volume I Pages 1 - 65 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA BEFORE THE HONORABLE JEFFREY S. WHITE, JUDGE THE HERMETIC ORDER OF THE GOLDEN DAWN, ) ) ) Plaintiff, ) ) v. ) ) DAVID GRIFFIN, ) ) Defendant. ) ______________________________)

NO. C-05-432 JSW

San Francisco, California Friday, December 1, 2006 TRANSCRIPT OF PROCEEDINGS APPEARANCES: For Plaintiff: BY: For Defendant: BY: Law Offices of Harris Zimmerman 1330 Broadway, Suite 710 Oakland, California 94612 MICHAEL JAMES CRONEN, ESQ. Law Offices of Jorge Hevia 1440 Brickell Bay Drive, Suite 309 Miami, Florida 33131 JORGE HEVIA, ESQ.

Reported By:

BELLE BALL, CSR, RMR, CRR Official Reporter

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FRIDAY, DECEMBER 1, 2006 9:38 A.M. Page 1

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THE CLERK:

120106GoldenDawn Calling Case C-05-00432, the Hermetic Counsel, please

Order of the Golden Dawn versus David Griffin. step forward and state your appearances. MR. CRONEN:

Good morning, Your Honor, Mike Cronen for And Mr. Sam

Plaintiffs, Hermetic Order of the Golden Dawn, Inc. Webster is our client representative. THE COURT: MR. HEVIA: Good morning. Good morning, Your Honor.

Jorge Hevia

representing Mr. Griffin. THE COURT: MR. HEVIA: THE COURT: And Mr. Griffin is in court? Yes. All right, thank you very much. The

client's representative may be seated. Okay. We are here on the motions for summary judgment And I want to know whether the parties

and related motions.

received the Court's notice of tentative ruling, and the questions. MR. CRONEN: MR. HEVIA: THE COURT: MR. HEVIA: Yes, we have, Your Honor. Yes, Your Honor. All right. Before --

Your Honor, may I ask if the Court got our

statement of recent cases? THE COURT: I did. 3

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MR. HEVIA: THE COURT:

Thank you, sir. We did get it. Thank you.

A couple of preliminary matters that I want to get into before we get into the questions that were submitted. first one has to do with the requirement of filing chambers copies. I want to say to Counsel, what people do on their own Page 2 The

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120106GoldenDawn 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 personal time is no business of the Court's, but I want to say that there is some sensitivity on the part of the Court and staff to secondhand smoke. And I want to say to Defense Counsel

that the filings that you have sent to chambers have had an aroma of cigarette smoke, and we find it an aroma difficult to deal with. So, again, I'm not going to, obviously, impinge upon the rights that anybody has -- either you or anybody in your office -- to smoke, but if you -- when you do submit your papers, you need to make sure that they are free of that. If

it's impossible to do that, then you should let the Court know, and I will suspend the obligation of filing chambers copies. Is that understood? MR. HEVIA: THE COURT: Yes, sir. All right. I apologize, Your Honor. Okay. The second order of

business is the following.

The Court has -- as the parties will

remember, early in this case, the Court admonished the parties, and particularly in an order granting the motion to vacate entry 4

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of default and denying as moot the motion for entry of default that was filed earlier, on September 20th, 2005. The Court said in Footnote No. 1, quote, "The parties are hereby admonished that at all court appearances and at all future pleadings, they are to address the legal issues raised, and refrain from including attacks on one another and their Counsel that are peppered throughout the motions currently pending before this Court," unquote. The Court noticed in the current filings before the Court, for today's papers, that that -- that admonition was not honored, that there are ad hominem attacks on Counsel, on the Page 3

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120106GoldenDawn parties by Counsel, by the parties on each other.

And by that I

mean name calling, accusing one side or the other of committing crimes in this court, before this Court, or lying to this Court, or otherwise characterizing the arguments or the people involved in this case, either attorneys or clients. The problem that this causes to the Court is that dealing with that kind of behavior is time consuming, it clouds the message that you and your clients are trying to bring to this Court, and generally speaking, it disadvantages the clients of this case and the resources of the Court. In addition, I understand from the nature of this case that there's a lot of passionate feelings and personal feelings about the case and possibly the parties that the parties have, the respective parties have, and that there's probably -- there 5

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is a desire by clients to say things about their opponent and their lawyers. But the lawyers are officers of the Court, and it's their job, it's their duty to educate their clients that if they engage in such attacks, it demeans their position. And it also

clouds the message that they are trying to give to the Court, because the Court has to try to ferret out those statements. And just as a matter of -- from a pedagogical perspective, I'll tell you that it's much more effective that you let the Court draw its own conclusions about the credibility of the opposing party, the credibility and character of the opposing party based upon objective arguments and statements of facts, than drawing those conclusions yourself and bringing those forth to the Court, because it only cries out for responses in kind. And so you're not -- it does not help the

effective and zealous advocacy on behalf of your clients to do Page 4

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120106GoldenDawn 17 18 19 20 21 22 23 24 25 so. So, here is what I'm going to do this time. I was

thinking about what should I do, to make, if you will, the punishment fit the crime here. this instance is the following. And what I've decided to do in By one week from today,

December 8th -- I'm going to hear your arguments, I want to get responses to the questions, but in order to make the point that I want to make, and to purge this Court of the enmity and the vitriol that's been heaped upon the Court, by one week from 6

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today I want each side to file a new version of their respective briefs and declarations. And I'm ordering that in those new versions, any characterizations of the opponents, the opponent's arguments, the opponent's Counsel, or positions, or any other unflattering references to the opponent or their arguments, are to be edited out. And that would include any adjectives or adverbs, if you

are looking for parts of speech, and possibly nouns as well. And I want you to file the edited copy, red-lined to show where these inappropriate statements were removed. And I

want the red-lined version to be filed, so the Court will know where you edited out the inappropriate statements. I'm ordering

that the client representatives participate in this process. I want a declaration from both sides that their respective clients participated in the process and approved the briefs. And I'm also ordering that the time incurred in doing

this process not be -- that the legal fees and expenses associated with it not be charged to the clients. I'm ordering that this exercise be handled by Counsel currently in court, personally, and not delegated to an Page 5

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120106GoldenDawn associate or paralegal. And then, that should be done by next Friday. If -- I am not going to give you any help in terms of telling you exactly what I'm thinking about, but just to give you an egregious example, one side accuses the other side of 7

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committing felonies before this Court.

That is pretty

recognizable as something that is inappropriate for this Court, and is an affront to the dignity of this Court and the decorum of this Court. If the -- if the editing is not adequate in the Court's determination, then the Court will decide what the appropriate sanction is, including striking the offending document. And then in the future -- and this is going to go out

both to the lawyers and to the clients -- any future violation of this rule that I have previously set down for you, will result in the Court issuing sanctions to its full authority, which could include anything up to and including dismissal of the case, issue preclusion, monetary sanctions, or other sanctions of like kind. So, I don't like doing this because we're all professionals here, acting professionally, and trying to vindicate the interests of your respective clients. it appropriate to tone this down now. But I felt

And I wanted to do this

before we get into the oral hearing, because I don't want that kind of behavior to occur here. I'm not ordering group hugs, I'm not ordering people feel one way or the other toward the parties. I'm only ordering

that what is submitted to this Court be professional and free of the ad hominem attacks and the acrimony that I've seen. understandable, Counsel? Page 6 Is that

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MR. CRONEN:

Your Honor, if I may make one comment, I have never been accused of

there's another interest here. suborning perjury -THE COURT:

I don't want to hear that.

I don't want

to hear that, because -MR. CRONEN: It's very offensive. THE COURT: What I'm saying to you is the remedy from I don't want to hear it either, you know.

your perspective is this, to the extent -- and again, I have avoided pointing fingers. But the level of work required by one

side or the other will be -- and the nature of the brief that is submitted pursuant to this order, subject to a possible motion to strike, will be the ultimate remedy. And I think one interesting piece of evidence of when you know that you are offending the decorum of this Court is when it requires the other side to file a self-testimonial to indicate why they wouldn't do something like this. need that. We don't

That is not appropriate, it takes up space, it takes

up resources. So I don't need to hear -- again, I've avoided pointing anyone out at this point. You will see when you go

through your papers with your client whether there is any criticism to be heaped, and to what extent it is to be heaped, and my -- my view of this point is to address both parties. And by doing so, it's without derogation of the Court 9

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knowing -- I've read these papers several times, and it is without derogation to the Court knowing exactly what is going on Page 7

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here.

120106GoldenDawn But there is no point at this point in making findings of

any blame, because I want to maintain my impartiality. So if I don't address the specifics, Counsel, you don't need to address the specifics. MR. CRONEN: Your Honor, I understand. I just wanted

to make my point, because it's my reputation, too, that's at stake. THE COURT: doing what I'm doing. MR. CRONEN: THE COURT: Okay. To get that out of the Record. I understand that, and that is why I'm

Do you understand? MR. HEVIA: THE COURT: Yes, Your Honor. All right, very well. Now, one other --

and this is sort of a minor request, but when you do your briefs -- and this particularly applies to the Defendant, Mr. Griffin -- that when you file a brief, please refer to Mr. Griffin by his name, and not in what capacity he is in the case. In your briefs, you use his name, sometimes you call him "Defendant," sometimes you call him "Defendant and Counter-Claimant," and it was necessary for the Court to actually go through and do its own red-lining so it was clear 10

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who we were referring to. So in the future, and when you file this new amended brief, please refer to Mister -- I know his position in the case, but it makes it very difficult to deal with it when you use that name. That is by rule in the Ninth Circuit. It's not

a rule in the District Court, but I'm making it a rule in this case for both sides. Page 8

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120106GoldenDawn 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 "HOGDI." MR. CRONEN: THE COURT: Okay. That's perfect. "David Griffin" is But if you get too? THE COURT: I would rather you use the -- you use the Just use the name of your client. easier to read your briefs. as well. MR. CRONEN: "Plaintiff" and "Defendant" acceptable, It makes it much

And we save a lot of space that way

perfect, and that way, I'll know who's what. into "Defendant" -MR. CRONEN: THE COURT:

And "Counter-Claimant" --- then you get Defendant position or his

Counter-Claimant position, and it is not necessary or helpful at that point. All right. I want to go to the questions. And for

those of you who have not been in this court before, presumptively, in this district, you don't get the right to 11

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argue. case.

There's no right to argue on law and motion in a civil And, the law and motion is for the Court, and not the

parties. So, when I ask the questions that I ask, it's because I need answers. I have not made up my mind, and I need real So, please don't use this as an

answers to real questions.

opportunity for rearguing your papers, which I'm very familiar with, unless it is responsive. Some of the questions are factual, some of them may be actually contained throughout your briefs, but I'm asking for your -- your sort of last and best answer on a point where the Page 9

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120106GoldenDawn Court thinks that it needs information -- it needs your positions in order to -- in order to properly reflect the parties' positions. So, I want to get, as much as possible,

brief, objective, responsive answers. If your answer is such to the question that you think, "Gee, this is adverse to my side," I am giving you the opportunity at the end of each section to add anything you want, if you feel you need to. hidden agenda. But on these questions there's no

Don't tell me that I've asked the wrong

question, or the question is irrelevant, or beside the point. It may very well be, but these are the questions that the Court had in reviewing your papers. So I'm asking you -- there's a lot of questions, more than I usually ask. And I really just need answers, and let the 12

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chips fall where they may.

Because they are not trick

questions, it's just what I need in order to flesh out my thinking. So, and, I also should tell you that the rules here are that you don't just get to answer what was on the homework assignment; there are pop quiz questions as well. MR. CRONEN: THE COURT: Okay, sure. So be prepared for those. Because as I

continue to prepare, the Court continues to prepare, additional questions arise that didn't get onto the take-home, if you will. So, with that in mind, let's start with Question No. 1.a. and in fact, there, the preliminary question, I've

given you sort of a sense of what leads up to the question. And I will start with the Defendant. MR. HEVIA: Yes, Your Honor. So, Counsel?

Defendant David John

Griffin believes that upon execution of the agreement, he Page 10

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120106GoldenDawn 17 18 19 20 21 22 23 24 25 acquired a vested property interest in the U.S. mark, and that opposing party never has had full control of use and ownership of the H.O.G.D. mark. In the first recital of the agreement, both parties recognized each other as lineal descendants of the original order, with the right to use -THE COURT: Slow down when you read. We all tend to

speed up, and the Court Reporter has a great deal of difficulty, so you should actually slow down when you read. Thank you. 13

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MR. HEVIA:

The first recital of the agreement, both

parties recognized each other equally as lineal descendants of the original order, founded in London in 1988. And the second

recital, the parties recognized that both parties were concerned with wrongful usage and infringement by third parties. The third recital recognizes that both parties have similar names and marks, i.e., one party, H.O.G.D., the other party H.O.G.D., Inc. The E.U. open mark is "Hermetic Order of

the Golden Dawn"; the U.S. mark is "The Hermetic Order of the Golden Dawn." The third recital goes on to say that but for the agreement, there would be confusion in the public, because you have two organizations involved in substantially the same lines of business, but wishing to develop their own distinct identity. And that without an agreement, there would be confusion in the marketplace. The third recital states that each party wishes to develop its own reputation, and repeats the confusion issue. Paragraph 1 reads in its relevant part (As read), "Each party grants to the other the unconditional perpetual and irrevocable Page 11

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120106GoldenDawn right to usage in the United States of America and worldwide of the granting party's respective name -- names, when used in conjunction with the trademark or service mark as defined by the Lanham Act Citation. Paragraph 2, Covenants: Neither party

shall interfere with or otherwise directly or indirectly 14

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challenge the trademark, name mark, registration or usage by the other party of that other party's aforesaid named names." Paragraph 2 further states, "Both parties agree that this agreement or a memorandum evidencing its details may be reported in the United States Patent and Trademark Office." THE COURT: All right. What about legal authority?

You have given me the -MR. HEVIA: Yes. The -- the legal authority, I would

like to refer to the case that I submitted in the Statement of Recent Cases. If the Court would just let me -Sure. Here we go. I brought several copies. If

THE COURT: MR. HEVIA: anyone would want -THE COURT: them, right? MR. CRONEN: to? THE COURT: MR. HEVIA:

No, the Court has them.

You have got

I'm sorry, which case are we referring

Yeah, which case? Iskenderian v. Iskenderian, filed

November 17, 2006, State of California, Appellate Decision, that they have jurisdiction in trademark matters also. It is not the

precedent, but we believe that it is very persuasive. THE COURT: MR. CRONEN: the question under a. What is your response to 1.a.? I don't think he actually responded to I'm not sure if Defendant is contending Page 12

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whether or not it's a license or a cross-license, from that response. But I noted that in the trademark office, when that

assignment recordation document was filed, a couple of weeks later, Mr. Hevia apparently received a notice from the Trademark Office. This was attached to Document 881, which is Defendant's

Evidentiary Objections to the declaration of Cicero. And in there, it's a notice from the trademark office. And it says (As read), "Dear Mr. Hevia, please review all information contained in this notice and let us know if there's an error." And in that notice it says, "This assigns the entire interest and the good will," assigns the entire interest and the good will from our organization to his client. He obviously had

an opportunity to correct that, so I don't know how that -- if that's really responsive to your question. He apparently

thought at some point it was an assignment of an entire interest or -- I don't know. THE COURT: That's a fair point. Do you maintain that

the 1996 agreement is or is not a license or a cross-license? MR. HEVIA: We do not believe that it is either a

license or a cross-license. THE COURT: assignment? MR. HEVIA: We maintain that it is, at the very least, Do you maintain that it is a partial

a partial assignment of a vested property interest. 16

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Conceivably, we have, since the date of issuance, been the effective co-owner of that mark. Page 13

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THE COURT:

120106GoldenDawn All right. Do you have anything to say on

that particular point? MR. CRONEN: I guess this is going to get to

Your Honor's point, in Preliminary Question 1 and a couple of other of these questions. And that is, this agreement is -- is,

I believe, hopelessly ambiguous. I have tried mightily to make some sense of it, myself, in my own office. it, you know. Mr. Zimmerman and I have gone over Judge Orrick (Phonetic) used

And, I'm not sure.

to say "If it walks like a duck and quacks, it's probably a duck." This does have language about usage of names; it doesn't say what names. And usage of marks, I believe, it was

also -- that sounds like license language to me. THE COURT: Why don't we go on to Question d,

because on what authority do you rely on to support the Plaintiff's contention that it is a license or a cross-license? MR. CRONEN: Essentially just the language of the

agreement, itself, where it says "usage of a name," and that generally implies a license arrangement. assignment -THE COURT: Do you have legal authority to that Certainly not an

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MR. CRONEN:

Other than the right to freedom of

contract, I mean, it's simply a -- a written contract is a license, so that's generally the freedom-of-contract issue. THE COURT: What do you have to say, Counsel, with

respect to b, the cross-license issue? MR. HEVIA: assignment. We believe that it was in effect a partial

Getting back to the -- or alternatively, that we Page 14

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120106GoldenDawn 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 were co-owners of the mark from the date that it was issued. Getting back to the case that we submitted, Iskenderian v. Iskenderian, the Court of Iskenderian, quoting McCarthy on trademarks, states (As read), "One method of balancing is to presume that the parties' contractual agreements will prevent confusion of customers. Such a presumption would

rest on the assumption that it is in the best self-interest of the parties to avoid fragmentation of their trademark's image. In adopting such a presumption, the Trademark Trial and Appeals Board stated, 'Considering that the joint applicants were trademark registration, here have a strong interest in protecting the validity and integrity of their marks, and presumably would not engage in activity detrimental to the long-established rights therein, that confusion in trade would be inimical to their best interests, and that the agreement reflects the joint effort governing the use of their marks, including a viable effort to avoid confusion.'" One of the stated purposes in the agreement was to 18

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avoid that very confusion. THE COURT: MR. CRONEN: case involved -THE COURT: MR. CRONEN: No, I can read the case. That case involved Vartkes and Markrid And they had three All right. May I address the Iskenderian case? That

who started a chicken place, and did well. children, Mardiros and two daughters. names. A tragedy occurred.

I can't pronounce their

The son, a daughter and the father

were murdered.

And there became a probate dispute between the

son's wife, the daughter-in-law, and the mother who had started Page 15

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120106GoldenDawn this restaurant chain with her own garlic sauce and everything else. And the case, the holding of the case is that the person with those rights, the mother, the original rights, kept them. And the outsider, the daughter-in-law, didn't. And the

whole notion is, in that case, the mother had transferred her entire -- her entire interest in the restaurant. They did not recite good will specifically being transferred, but she transferred everything, the whole -- like we say in the trademark business, if you -- you know, sell something lock, stock and barrel, you don't need that good will necessary, that -- that incantation language, as you might ordinarily if you are just selling the mark. So here, Vartkes had assigned her entire interest, 19

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which included the good will.

And so that's -- I don't think

this case supports his position. THE COURT: MR. HEVIA: I'll give you the last word on this point. Yes, sir. The point is that the federal And it was in the son's

trademark was registered by the son. name. MR. CRONEN: MR. HEVIA: trademark. name.

It was a state trademark. There was both a state and a federal

The federal trademark was registered in the son's

The mother, who had never had any involvement with the

federal mark, left all of her trademark rights to her two daughters. The Court found that the son had never had exclusive use and ownership of that mark, so that the -- the estates of the two murdered sisters were in effect co-owners of the mark with him. Page 16

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120106GoldenDawn 17 18 19 20 21 22 23 24 25 1.c. THE COURT: All right. I want to move on to Question

And I'll start with Plaintiff's Counsel, because this is

really where the rubber meets the road. We have cross motions for summary judgment. We've got

an agreement that is really the operative or the key agreement in this case. I want to know how you can say -- on what basis

you say there are no disputed facts, which disputed facts would preclude summary judgment? MR. CRONEN: In the effect that that agreement is 20

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still in effect. THE COURT: MR. CRONEN: Correct. At least three. It's ambiguous. That

agreement can't be interpreted.

There are, for example, in the

second Whereas clause, it says "registration of their respective names," but they don't say what the names are. In the grant provision, in Paragraph 1, it says -"License and a revocable right to" (sic) -THE COURT: MR. CRONEN: sorry. Slow down. I'm sorry. I did it myself, I'm so

"Irrevocable right to usage of the granting parties'

respective names, so long as it's used in conjunction with a trade or service mark as defined under the Lanham Act." I'm not sure -- I don't know what that means. know which name -THE COURT: What is your bottom line? Is your I don't

bottom-line position that if the Court finds that this agreement is in effect, would you agree that there are questions of fact on both sides? MR. CRONEN: No, I wouldn't. Page 17 I think the agreement is

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120106GoldenDawn -- there's no question of fact that the agreement is ambiguous. If it is a cross-license, as has been mentioned here and there -- not by us, by the way, I'm not sure exactly what this is -- it extinguished upon the dissolution of the partnership. And if it's a settlement agreement, as Mr. Hevia seems 21

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to indicate now, where there was this desire to keep separate, then that was breached when the Defendant attempted to assign the registered mark to himself through the trademark office. So it is either ambiguous, it extinguished, or it was breached, materially breached, when the Defendant went ahead and attempted to transfer that registration to himself. THE COURT: So you say, your position is, the There

Plaintiff's position is it is purely a question of law. are no facts in -MR. CRONEN: agreement. THE COURT: MR. HEVIA: Counsel?

There are no facts with respect to that

Before I address that, sir, may I say that

the first communication that I received from the Trademark Office was when I got the whole eight-page submission. And And

actually back in March -- at or about March 21st of 2000. -- a year later.

I did not receive the document that opposing

Counsel refers to, and I don't know what he is referring to. THE COURT: that question? MR. HEVIA: The answer to that question, in the first All right. But what is your answer to

place, opposing party has not up to now pled ambiguity in any of its filings, so it is precluded from so stating at the summary judgment proceedings. In the second instance, the two challenges that I have Page 18

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made, that it's an assignment in gross, I think we showed very clearly that it was not. I noticed that Your Honor has it in

one of the liner questions. The other challenge that they make is that the sublicensing rule applies. We don't believe that it does apply,

but we believe that even if it were to apply, because of several factors that I can cover, the trademark would still be in full force and effect, and we do not believe that there is any question as to the full force and effect of that agreement. THE COURT: All right. So what facts do you -- so,

implicitly you are agreeing that there are no facts in dispute. Is that correct? MR. HEVIA: THE COURT: Yes, Your Honor. All right. All right. I'll give you the

last word on this point, if you wish. MR. CRONEN: point. THE COURT: All right. I want to go to a pop quiz And I'm going to be focusing That's fine. I think I have made my

question for Plaintiff's Counsel.

on the last sentence of Paragraph 2 of the agreement. MR. CRONEN: THE COURT: you. MR. CRONEN: THE COURT: Yes, sir. And the question is, why does the last 23 The last sentence. The last sentence. Get that in front of

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120106GoldenDawn may have without express permission of H.O.G.D.I.? MR. CRONEN: finding a period. I'm sorry, I'm not -- I'm having trouble

Oh, the "notwithstanding"? Yes. From there. And your question, sir? I'm

THE COURT: MR. CRONEN: sorry. THE COURT:

The question was, why does the last

sentence of Paragraph 2 not give the Griffin-Behman partnership the right to license the Golden Dawn mark to any successors that they have without express permission of your client? MR. CRONEN: THE COURT: MR. HEVIA: THE COURT: Paragraph 2. MR. CRONEN: THE COURT: I have one thought, but I don't know -Well, and the question is, why does that I don't know. All right. I don't know.

Do you have an answer?

What provision, sir? The last provision is the last sentence of

sentence, the last paragraph of Paragraph 2, not give the Griffin-Behman Partnership the right to license the Golden Dawn mark to any successors it may have without express permission of H.O.G.D.I.? MR. HEVIA: It gives them the -- it gives both parties

permission to license third parties so long as the landmarks of 24

1 2 3 4 5 6 7

the original order are followed. THE COURT: All right. You had another point you

wanted to make on that, another thought about it? MR. CRONEN: not -THE COURT: All right. Now, another question. I'm not sure. I'm not sure why it was

Paragraph 3 of the agreement. The one that states "Both parties Page 20

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120106GoldenDawn 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that? MR. HEVIA: Yes, Your Honor. We do. The plain trademark. at issue. warrant and represent." Why should Paragraph 3 of the agreement not be interpreted to mean that the Griffin-Behman Partnership had ownership rights in the, quote, "Hermetic Order of the Golden Dawn" name? MR. CRONEN: We're not sure what names and marks are I don't know

That's kind of one of the issues here.

what names and marks they're talking about. the problem from the very beginning.

And that's kind of

Remember, we have a design element in our registered And they refer to a Golden Dawn mark, a Hermetic

Order of the Golden Dawn, and some of these other organizations that are different. THE COURT: And it's just -- I don't know. All right. Do you have a response to

language of the agreement, again, save for acknowledging that the other party claims a right therein. As to what marks are 25

1 2 3 4 5 6 7 8 9 10 11

covered by the agreements, and toward the middle of Paragraph 1, opposing party objects to the use of the RR+AC mark in trade and commerce. They have never used it in trade and commerce. We have limited ourselves to using the seal on our website, and in Mr. Griffin's 1999 book, The Ritual Magic Manual. They objected to its use in trade and commerce. We included a mention there, because we want to preclude them from filing an opposition to it, because they felt that it was inappropriate because of the nature of the RR+AC to use that name in trade and commerce. its specific use. Again, they objected to

We only got that there to preclude an Page 21

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120106GoldenDawn 12 13 14 15 16 17 18 19 20 21 22 23 24 25 opposition. The mark mutuality of the marks in the agreement was the OHIM E.U. "Hermetic Order of the Golden Dawn," and the U.S. "The Hermetic Order of the Golden Dawn." THE COURT: MR. CRONEN: Response? One other point, I think, coming back to

what you had asked about, in the last sentence of Paragraph 2, it said "Both parties shall have the right to license and/or warrant other temples without interference or permission of the other party, provided the temples adhere to the landmarks of the original order." But again, it says "license or warrant," and we don't know license what, or warrant what. THE COURT: We have covered that point. 26

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 so. Plaintiff.

MR. CRONEN: THE COURT:

Okay.

Just another ambiguity.

Now, another pop quiz question for the

If the Court accepts H.O.G.D.I.'s view that the 1996 agreement was effectively terminated by the dissolution of the Griffin-Behman Partnership, does H.O.G.D.I. concede that any rights it may have had to use the partnership's marks under the 1996 agreement also cease to exist? MR. CRONEN: I don't know. I'm not sure. But I think

I think once that partnership extinguished, that basically

extinguished that agreement. THE COURT: MR. HEVIA: THE COURT: MR. HEVIA: Do you agree with that? No, sir, I don't. And the reason? Well, opposing party claims that the In fact, it is

assignment in gross rule is applicable here. Page 22

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120106GoldenDawn 17 18 19 20 21 22 23 24 25 not. The partnership, apart from its other activities of

operating the Confederatio, licensing several temples, lecturing, publishing various materials and the web site, -THE COURT: MR. HEVIA: Slow down, please. -- obtained five trademarks. Obtained or

applied five trademarks, as submitted into evidence in the supplemental declaration of David John Griffin. Three of the trademarks were originally applied for and issued in the name of David John Griffin. One was assigned 27

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20

indirectly to the name of David John Griffin by a Canadian national. Only the fifth mark was jointly applied by both

Mr. Griffin and Ms. Behman. So, all of the five were listed in the agreement, just to reinforce that in selling him the full stock and barrel of the operating partnership, she retained no claim against the trademarks issued only in his name, or the one trademark issued jointly to the partners. THE COURT: MR. CRONEN: All right. Counsel?

I think there was just a bit of a

confusion with respect to this notion of assignment in gross. The assignment in gross relates to those trademarks, but not the 1996 agreement. Ms. Behman never had an ownership interest that she could have transferred to him through a sale of partnership agreement, or anything else. All she ever had was whatever this

agreement is -- if it's a license, this's all she had. So, that -- that assignment in gross issue, it may -may or may not apply to those five trademarks, but it certainly does not apply to the 1996 agreement. Page 23

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THE COURT: MR. HEVIA:

120106GoldenDawn What is your position on that? We acquired a property interest, or were, At the

alternatively, co-owners in the mark when it was issued. time the partnership was owned by David John Griffin and Patricia Behman, they acquired a property interest.

28

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Neither H.O.G.D.I. nor Charles Cicero have any standing to object to one partner selling full lock, stock and barrel of an operating partnership to the other partner. THE COURT: MR. CRONEN: All right. Let's move on.

One last -- he says "lock, stock and We don't

barrel" a few times, but there is no evidence of that.

have this -- the chicken restaurant or a cheese company or a Gallo salami thing or anything from -THE COURT: MR. CRONEN: THE COURT: I understand. Okay. Let's go back to the published questions What is your I want to move on, now.

under the Plaintiff's motion for summary judgment. answer to Question No. 3? MR. CRONEN:

I believe that we had -- I believe that

that agreement extinguished, yes, and that we would have no further rights under that agreement. I -- I believe. I've not

figured the answer out with respect to authorities on that yet, but -THE COURT: would not apply? MR. CRONEN: Oh, I'm sorry. No, I think it -- it So you agree that the sublicensing rule

wouldn't be called a sublicensing party because -- I'm sorry. If it's a -THE COURT: MR. CRONEN: Let's stop. Yes. Page 24

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THE COURT:

Because I made a mistake, all right,

because I did not give the parties a chance to answer Question No. 2. And it is an important question, regarding considering the motions that were filed on November 19 and 20th, when the Defendant did not seek leave of Court to file these motion under the cited local rule. MR. HEVIA: What is your best argument? We could not have possibly filed those

motions until such point as opposing party filed a reply brief which relied in part on a declaration which attempted to introduce into evidence the non-renewal of one mark as evidence of non-usage of another mark. Secondly, it relied in part on a declaration by opposing party's president, Charles Cicero, which stated that he did not license his licensees. Thirdly, based on that declaration, trying to introduce the non-renewal of the RR+AC mark to prove non-usage of the OHIM E.U. Hermetic Order of the Golden Dawn mark, opposing party introduces a theory unsupported in -- anywhere in the Record that David John Griffin did not engage in use of the H.O.G.D. name in trade and commerce prior to 2004. THE COURT: Those may be all very good arguments and

reasons, but wasn't the appropriate procedure to make an administrative request to the Court for permission to file such a brief -30

1 2

MR. HEVIA: THE COURT:

Yes. -- stating that, as opposed to taking it Page 25

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120106GoldenDawn upon yourself, taking self-help to file such a -- what otherwise would be lay-filed motions? MR. HEVIA: Your Honor is, of course, correct.

However, we read 7.3(d) to -- because of its further elaboration on statement of recent decisions, that anything that could not have been replied before would have been covered by that rule. We also felt that if a motion to strike would be precluded from a reply memorandum that is flawed on its face, because of 7.3(d), then the opposing party could basically file anything that they want, and we would be precluded from answering. It was a wrong interpretation. THE COURT: "However," I think everything after the The Court is going to

word "However" is not really pertinent. do what it is going to do.

But I will tell you that the

appropriate procedure in such situation is to do exactly what the rules require, which is you file an application, you state your position that they filed an inappropriate brief, or reply, or a new matter, and then the Court decides whether that is appropriate, and we will decide. But when the parties engage in self-help, there will be nothing to preclude them, the Plaintiff, from then putting in their own -- whatever it's called, surreply or response. And

all it does is perpetuate the paperwork the Court has to look 31

1 2 3 4 5 6 7

at.

And I'm telling you, in the future, that is not going to be

tolerated. I don't need to hear a response from you. MR. CRONEN: I just don't -- one response is that I

don't think they could have a good faith belief in complying with the local rule, because none of the materials that they filed in connection with that were new. Page 26 None of them -- all of

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120106GoldenDawn 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Defendant. The Court understands that Mr. Griffin asserts as defenses to the Plaintiff's infringement claim, H.O.G.D.I.'s infringement claim, that he is entitled to use the mark by way of the 1996 agreement, and because of laches. Griffin does not, right? MR. CRONEN: THE COURT: Okay. I have now a pop quiz question for the those things have existed for some time. THE COURT: MR. CRONEN: THE COURT: I don't really want to hear argument. That's fine. They violated the rules, as far as the

Court's concerned, and I wanted to get an explanation. MR. CRONEN: THE COURT: That's not the first time. I don't want to hear that, either, all

however, address H.O.G.D.I.'s arguments on the Sleekcraft -S-L-E-E-K-C-R-A-F-T -- factors. Is Mr. Griffin conceding that but for application of 32

1 2 3 4 5 6 7 8 9 10 11

these defenses, H.O.G.D.I. would be entitled to judgment on the infringement claims? I.e., is the focus of this case about the

defenses to H.O.G.D.I.'s claims? MR. HEVIA: No, Your Honor. We simply mentioned

laches, estoppel, and unclean hands way down the list, as a third line of defense. We believe that our use of the mark from Sleekcraft refers to unlawful

1994 onwards has been lawful. use.

Now, we do believe that our use was lawful. been continuous since 1994. laches. Page 27

It has

So yes, it would be barred by

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THE COURT: MR. HEVIA:

120106GoldenDawn All right. If the Court were to find it unlawful,

which we do not concede and do not believe. THE COURT: MR. CRONEN: Response? That they don't have any position with They

respect to Sleekcraft, because they fit right into it. copied the mark, right down to the registration notice. THE COURT: Let me ask you a question now.

H.O.G.D.I.

contends that the Golden Dawn mark is incontestable, and submits the certificates attesting to that fact, which is dated April of 2006. MR. CRONEN: THE COURT: Yes, sir. When was the -- when was H.O.G.D.I.'s

Section 15 affidavit filed with the U.S. Patent and Trademark 33

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16

Office? MR. CRONEN: Approximately around that time.

Generally speaking, we filed those between the fifth and sixth year after registration. at that point. We did not represent the corporation

They had filed their renewal, and had not filed

the incontestability certificate at that time. So, we -- I believe it was -- I don't know, six months before, let's say, within a -THE COURT: record? MR. CRONEN: Yeah, I don't know. I don't know if the Is there any evidence of that in the

filing date was in the record or -- I may be able to discern that from the notice, itself. THE COURT: But you concede that the affidavit had to

be filed within one year of after the expiration of the five-year usage? Page 28

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120106GoldenDawn 17 18 19 20 21 22 23 24 25 use. MR. CRONEN: No, the law is that you get the Section

15 incontestability after five years of continuous use, and you can file it essentially at any time. You don't have to file

between the fifth and sixth years, but you may. You do have to file a Section 8, which is a continued So you have to file a Section 8, showing that we are still

using this mark, and then incontestability may be filed any time after that date, essentially, as long as you have got five years of continuous use. 34

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20

THE COURT:

In responding to that question, I want to

know what is Mr. Griffin's response to H.O.G.D.I.'s assertion that the Golden Dawn mark has become incontestable, and what impact, if any, does that have on Mr. Griffin's argument that the 1996 agreement permits him to use it? U.S. Code, Section 1115. MR. HEVIA: It merely makes the property interest that And I'm citing 15

we acquired at or about November 20th, 1996, equally incontestable. THE COURT: MR. CRONEN: All right. Do you agree with that? They haven't -- it's my

No, obviously.

client's registration, not theirs. THE COURT: Let's move on. Now we are up to Question

No. 3, which is where I started before. If the Court concluded that the '96 agreement is not a license or a cross-license, is it your position that the sub-licensing rule would not apply in this case? MR. CRONEN: Yes, and in a technical sense, but I Upon the termination If it's not a

think that the effect would be the same.

of that partnership, that agreement went away. Page 29

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120106GoldenDawn license agreement, it went away, and if it is a license agreement, it went away. different situations. THE COURT: MR. HEVIA: Do you agree with that? No, Your Honor, we do not. Though we do 35 Different rules applying in the

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

not believe that it is a license or a cross-license, the Ninth Circuit did not adopt the sub-licensing rule until 2006, with the Glenn Miller case. We also believe that if it did apply, there would have been a breach of contract at or about May 30th, 1998, when the sale of partnership took place. years to attack that. And they would have had four

They did not.

Your Honor, may I revisit a previous question? THE COURT: MR. HEVIA: Certainly. Which one is it?

As to what interest that it is that we

acquired, I would like to read a brief quote from -- I can't pronounce it -- Iskenderian. The Court stated (As read), "The law does not prohibit joint ownership of a trademark. Indeed, federal law expressly

permits concurrent registrations of mark under certain circumstances, including when the Court has finally determined that one or more person is entitled to use the same or similar mark or marks in commerce." 15 USC, Section 1052(d).

The quote is quoting from there -- the Court is quoting from there, in Iskenderian. THE COURT: All right. Would you now respond, do you

have anything to say in response to Question No. 3 on the sub-licensing? MR. HEVIA: We do not believe that there was ever a

sub -- a license or a cross-license, so the sub-licensing rule Page 30

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did not apply.

If it did apply, they would have had four years They did not.

from May 30th, 1998, to challenge the agreement.

We would further say that the Ninth Circuit did not adopt that rule until 2006, with the Glenn Miller case. The

Northern District adopted it in 2004, with the first round of the Glenn Miller case. THE COURT: All right. Question No. 4. And just for

the parties' -- everybody's information, we are going to take a break after this, because we have been going for about an hour and a half. brief recess. What is Plaintiff's answer to Question 4? MR. CRONEN: When I read the question, it seemed to me And I So after this question, we are going to take a

that a consent-to-use agreement really is a license.

don't think that there is a distinction -- at least not in my mind, I don't know that -- perhaps like a consent-to-register type of situation, or something like that? I don't know.

It seems to me that if there is a consent-to-use agreement, like a license, then Defendant has no rights under that agreement, that it extinguished upon dissolution of the partnership. And we had no indication that this these folks

were engaged in that sale at that time. THE COURT: 4? MR. HEVIA: We do not believe, again, that there's a 37 Counsel, anything to say on Question No.

1 2

license or a sub-license.

The very nature of a license is that

the licensor retains certain measure of supervision and control. Page 31

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120106GoldenDawn Neither ourselves over them or them over us retained any supervision or control for the other, but entered into the agreement for the orderly use of the same, similar mark. THE COURT: All right. We will take ten minutes now,

and then move on to Question No. 5. MR. HEVIA: secondary smoke? THE COURT: MR. CRONEN: THE COURT: MR. HEVIA: the secondary smoke. THE COURT: MR. HEVIA: Yes. Unfortunately, my office sits under a I'm sorry? I'm sorry, Your Honor. Yes? I was just asking about the filings and Your Honor, on the filings and the

three-inch cloud of smoke. THE COURT: Well, then, if you are telling me that it

is impossible to avoid that problem, then I'm going to issue an order, and I am suspending the requirement for both sides -because I think it's fair -- that there be chambers copies. It is unfortunate, but it's -- again, this Court won't interfere with anybody's right to smoke or do anything else that's legal. But when it gets to the issue of secondary smoke,

it's just a matter that the Court is not able to deal with those 38

1 2 3 4 5 6 7

papers. So therefore, in light of what you just said, if that is your final answer, then neither party -- then the Court is suspending the obligation of filing chambers copies. MR. HEVIA: could, comply. THE COURT: All right. Page 32 Thank you, Your Honor. I would, if I

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120106GoldenDawn 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: MR. HEVIA: THE COURT: Sorry. Ten minutes. (Recess from 10:28 to 10:47 a.m.) Okay, we are back on the Record, and up to

Question No. 5, which is addressed to Plaintiff. MR. CRONEN: And on No. 5, I believe it's a somewhat

similar type of question to 1.c., and that would be the ambiguity of it. If it was a settlement agreement or a right to

use, then it was breached when Mr. Griffin attempted to assign the entire interest and good will of the mark to himself. And that further defense that was pled is unclean hands, and it's really kind of -- if Mr. Griffin is going to assert that agreement, and then kind of be contending that it's a right of usage as opposed to a license, that he had no license, and it's clearly not an assignment, then he had absolutely no right to assign the entire interest and good will to himself, and shouldn't be allowed to enforce that agreement for just unequitable considerations. 39

1 2 3 4 5 6 7 8 9 10 11 interest.

THE COURT: MR. HEVIA:

All right.

Counsel?

We never tried to assign the entire

The document to which Cronen refers, I do not know. Our entire submission to the PTO consisted of eight

pages, which included a copy of the agreement, and very carefully stated that we were assigning that partial interest which devolved upon ourselves upon execution. Your Honor? THE COURT: MR. HEVIA: Yes. Before we go on, may I say two very brief

things on previous points? Page 33

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THE COURT: MR. HEVIA:

120106GoldenDawn Very brief. Tell me which points. As to the matter of the nature of the

agreement, and as to the transfer of good will from Behman to Griffin. THE COURT: MR. HEVIA: Fine. On the nature of the agreement, I would

point out that apart from Paragraph 2, which permits both parties to record a copy of the agreement with the PTO, this certainly -- a proof that each party acquired a property interest in the mark of the other. As to the partnership sale, I would point out that fully one year after the sale of the partnership, when Mr. Griffin's 1999 book appeared, Ms. Behman wrote the introduction, which is submitted into evidence as Exhibit 5 in 40

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16

the Declaration of David John Griffin. And -- and I would -- she never -- she never competed with him in the use of the mark, and encouraged him by writing that introduction a year later. And in there, she mentions that

because of the esteem that she had for him as a magician, she gifted him the magical tools of the late Dr. Isreal Regardie. THE COURT: MR. CRONEN: All right. Your Honor, Mr. Hevia has a couple of

times referred to his not having seen the document related to the entire good will. This, I mentioned to you earlier, was 88. Here is

I don't know whether -- Your Honor, I've made copies. one for Mr. Hevia.

If I may approach the bench, just to show you -- this was given to -THE COURT: record? Page 34 Well, wait. Is this in the current

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120106GoldenDawn 17 18 19 20 21 22 23 24 25 MR. CRONEN: THE COURT: MR. CRONEN: THE COURT: This is in the current record, yes. What is the citation to the record? It is -I believe I have seen this document or a What is the

document like it, in going over the record. citation? For the Record, it is on USPTO -MR. CRONEN: THE COURT: Letterhead.

And it's dated March 15, 2004, addressed 41

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20

to Mr. Hevia. MR. HEVIA: MR. CRONEN: Yes, Your Honor. That was -- that was a month after -- you

just want the cite right now? THE COURT: MR. CRONEN: Yes. That is Document 88-1, Defendant

Counter-Claimant's Evidentiary Objections to the Declaration of Charles Cicero. Now, that may also be elsewhere in the record. came across that this morning. I just

And it struck me, when Mr. Hevia

was saying he had no notice of it and didn't know it, they had effected that recordation back in March of '03, and then he received this notice here. Obviously, he received it, because he submitted it. It's dated, I'm sorry, February of '04. recordation. They submitted the And it says

March 15th, this notice gets issued.

please review all the information -- to Mr. Hevia -- in this notice. If you find any errors, please give us a call. And it says down here, briefly, and it says "ASSIGNS THE ENTIRE INTEREST AND GOOD WILL" of the H.O.G.D.I. to David Page 35

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120106GoldenDawn 21 22 23 24 25 Griffin. THE COURT: MR. HEVIA: All right. Counsel?

Your Honor, we submitted our recordation Thirteen months

to the USPTO on or about February 20th, 2003. later, we did indeed receive this notice.

42

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 sir. covered.

THE COURT: MR. HEVIA: THE COURT:

All right.

Let's move on.

Thirteen months after our original -I can review this document further, but we

are here to answer my questions, and I don't have a question about that. So let's move on to -I'm sorry. I believe Question No. 6 we have already

MR. CRONEN: THE COURT:

Do you have a different -- do you agree that -MR. CRONEN: I agree that we have covered that, yes,

THE COURT: MR. CRONEN: THE COURT: MR. CRONEN:

Then let's move on to Question No. 7. Do you want me to -It is addressed to Plaintiff. Yes. This dealt with that notion of the

exception, because the law, the black-letter law that I have been advising clients for about 20 years now, is that you can't have an assignment without the good will. will not be allowed to do that. The cases, though, have a couple of exceptions they have come up with, and mostly based around this notion of continuity, where there is no likely -THE COURT: Wait, let's first answer the question. That's verboten. You

The question, after the Court's preamble, is, what evidence is in the record to demonstrate that Griffin did not receive the good will of the partnership? Page 36

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MR. CRONEN:

The agreement itself, obviously, is There's no evidence in the record that

absent of any good will.

there was any continuity of one -- again, I've not seen anything that indicates that there was any commercial activity going on, on the part of this Defendant, any time prior to about two thousand and -- I forget the date, -three or -four. So, there

really wasn't any good will in the notion of commercial activity to transfer. In terms of the lock, stock and barrel that Mr. Hevia has said was transferred, there's no evidence of that. We don't

see an adding machine or a postage machine or anything like that being transferred. There was simply a naked assignment of

trademark rights, and a dissolution of partnership. THE COURT: All right. I want you to stick in Is there any evidence in

responding, Mr. Hevia, to the answer.

the record to demonstrate one way or the other, as to whether Mr. Griffin received the good will of the partnership? MR. HEVIA: Yes, sir. The continuity as evidenced by

the publication of the book, the continued operation of the website, the continued lecturing and publication of articles by Mr. Griffin. There is ample evidence submitted in the record, either in the declaration of David John Griffin or in the supplemental declaration, that he continued the activities of the partnership throughout, continuously. 44

1 2 good will?

THE COURT:

Why isn't that evidence of the transfer of

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120106GoldenDawn MR. CRONEN: Well, for one thing, the publication of that book does not bear that mark. Publishing or something else. It was by Golden Dawn

So, that's not relevant.

A website is not a commercial activity if you are just displaying information on it, and they're not selling anything. We have some indication that a few folks sent him some checks; I guess they filled out a form. a check. We don't know. We don't even know they sent him They

We know they filled out a form.

may just have filled that out in confusion, believing it was my client. I mean, I don't -- there's no evidence of any commercial activity that would indicate any good will in the notion of a business context. THE COURT: MR. HEVIA: Mr. Hevia? Your Honor, opposing Counsel mentions in a

footnote in his latest letter of submission -MR. CRONEN: THE COURT: MR. CRONEN: MR. HEVIA: Oh, I'm sorry. Don't interrupt, please. I'm sorry. Please.

Opposing Counsel mentions in a footnote

that those names are just indication that people were confused, and thought they were joining their organization. I would note

that of the three people mentioned, Ralph Fytton -- and this is 45

1 2 3 4 5 6 7

reflected in Exhibit 12 to the Declaration of David John Griffin -- was sued in 1999 by Charles Cicero and Maria Babwasingh, H.O.G.D.I., et al, in the Southern District of New York. joining. The other two people mentioned in the States, Mark Griggs joined our organization, was initiated in the Atlanta Page 38 So he knew very well what organization he was

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120106GoldenDawn 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Temple in September of 2002, and he was, six months later, recruited by Mr. Cicero for his organization, and licensed as The Hermetic Sanctuary of Ma'at. THE COURT: MR. HEVIA: All right. And the third person, I forget her name,

Lorette, was the administrative assistant to Mr. Griggs. THE COURT: MR. CRONEN: All right. One thing that is critically important

with respect to No. 7, and I want to be so clear about that, is that that would relate to those five trademarks, we'd be looking for continuity or something like that. It does not relate to that '96 agreement. license, she can't transfer any good will. good will. If it was a

That is my client's

She can't transfer my client's good will. THE COURT: I want to move on. I have what I need on

that question. MR. CRONEN: THE COURT: Okay. Question No. 8 has to do with the -- if 46

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the -- if the Court grants your motion on the trademark claim, which of the other causes of action would remain to be resolved at the trial? MR. CRONEN: There would be no further causes of The simple injunctive relief would

action to remain at trial.

be sufficient to resolve the dispute. THE COURT: All right. Do you agree with that? And

we're not talking about the counter-claim now. MR. HEVIA: THE COURT: MR. HEVIA: Exactly. Only the complaint. Yes, we do agree. Page 39 I assume you agree?

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THE COURT:

120106GoldenDawn All right. I do anticipate motions for costs and

MR. CRONEN:

attorneys' fees potentially, at the end, but -THE COURT: MR. CRONEN: THE COURT: No, I understand that. Okay. This is the question -- before we get into

the "Are there any other issues," I have a pop quiz question for the Plaintiff, which is as follows: Section B of H.O.G.D.I.'s reply brief addresses matters raised in Mr. Griffin's reply in support of his motion for summary judgment. Why should the Court not grant Griffin's

motion to strike the reply as to this aspect of H.O.G.D.I.'s reply brief as an improper surreply filed by leave of the Court? MR. CRONEN: I'm sorry, I'm just not -47

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THE COURT: MR. CRONEN: THE COURT: MR. CRONEN: THE COURT:

Section B of your reply brief -Yes. That's dealing with the license?

Correct. Yes. -- addressed what the Court views as a Why shouldn't the Court

renegade filing by the Defendants. strike your response to that?

Because you filed -- you didn't

get permission from the Court -MR. CRONEN: I believe you did give me permission to I believe you

file an opposition to that, on a date certain. did. I wouldn't have done that, I don't think. THE COURT: received -MR. CRONEN:

You are saying that you requested and

I believe, as part of your order,

Your Honor, there was a provision that I respond by a date certain, because I remember I had like three days or something. Page 40

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120106GoldenDawn 17 18 19 20 21 22 23 24 25 I think it was the 20 -- I would be talking out of school at this point. I believe I had a right to -Did the Court grant that permission? Not to my knowledge, Your Honor. Well, so many papers -- that's what It's

THE COURT: MR. HEVIA: THE COURT:

happens when you all file all these ancillary motions. even difficult for the Court to keep track. certainly check on that. MR. CRONEN: But -But I will

I can check for you, or however you wish 48

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20

to proceed. THE COURT: No, I'll check on it. But what's good for

the goose is good for the gander. MR. CRONEN: THE COURT: Yes, sir. Next question for the Plaintiff, with

respect to Mr. Griffin's laches defense that we have discussed earlier, H.O.G.D.I. argue that Griffin submits no evidence of the use of the Golden Dawn mark in commerce before 2004. How does H.O.G.D.I. respond to Exhibits 4 and 5, and Griffin's contention that he had been using the website www.golden-dawn.com since 1997? MR. CRONEN: since 1997. I don't know what was on that website

I know that the agreement was in effect at that

time, so that if it was a cross-license, I guess that would have been okay. I don't know what that was. But, in terms of those exhibits, they don't show -- I mean, it shows that somebody filled out a form, and that came -I believe the earliest of those was 2002. And, the other deal is a manifesto, it is an article that appeared in some magazine. Page 41 That's not a commercial use.

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120106GoldenDawn And that was in conjunction with that Ordo Roseae mark, the other -- the now expired registration. there. And that was Ms. Monastre's article with Mr. Griffin, so she was, you know, operating at that time as -- under the 49 You see them both up

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

partnership, I presume. THE COURT: MR. HEVIA: Mr. Hevia? Our position is that we have continually

used the mark in commerce since 1994, and we have substantiated it with the evidence on the Record. THE COURT: All right. Let's move on now to the

Defendant's motion for summary judgment, and Question No. 1. MR. HEVIA: When we filed our motion on the 3rd of

October before opposing party filed the cross motion, we moved to dismiss Plaintiff's top count, and to grant our breach of contract. Our reading of the applicable local rule and Rule 56 of the Federal Rules is that if you were to grant our motion to deny the top count, it would not be presented at trial in February. We may be incorrect, but that is why we filed the

motion that way. THE COURT: All right. So, in other words, so you

think the effect of what you filed would be to require the Court to -MR. HEVIA: THE COURT: position on that? MR. CRONEN: else, Your Honor. THE COURT: Well, the question is -- the question had Page 42 I'm sorry. I was looking at something If both were granted. If both were granted. What's your

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to do with whether the Defendant moved for summary judgment solely on his claim for breach of contract, and not on the remaining cause of action. Mr. Hevia just said that although they didn't specifically move -- they only moved on what he called the top count, the breach of contract, that the effect of a ruling for the Defendants would be to preclude any further activity. you, I think you just agreed with that. MR. CRONEN: THE COURT: I'm in agreement, yes, sir. All right. Question No. 2, 2.a., what is And

Plaintiff's response to Defendant's argument that he is entitled to judgment on the breach of contract claim? MR. CRONEN: Well, we discussed some of the issues And again, this is where it gets a

with respect to ambiguity. little confusing.

Griffin alleged that H.O.G.D.I. breached the 1996 agreement by misappropriating the name "Hermetic Order of the Golden Dawn." It's difficult for me to conceive how my client He

could have breached the contract by using his own name.

can't misappropriate his own mark, or it can't appropriate its own mark. He, the Defendant, misappropriated it. The contract is, again, ambiguous. There is the issue

of the unclean hands with respect to that agreement, in view of the attempt to assign all of their entire right, title and interest in that mark to the Defendant. 51

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And I guess that would be the summary of our positions, Your Honor. Page 43

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THE COURT: MR. HEVIA:

120106GoldenDawn All right. Response? They executed the agreement as H.O.G.D.I.. We have always been very careful to

We executed it as H.O.G.D..

differentiate ourselves, and to make it very clear that we are not affiliated with the Florida corporation or H.O.G.D.I.. We believe that they breached their contract by appropriating our name. We also believe that they breached it Trying to implicitly repudiate

for a series of other reasons:

the contract on or about April 23rd, 2003; trying to once again implicitly repudiate the contract on or about November 5th, 2004. A total disregard of the landmarks provision of the

agreement, which was there for an orderly control of the issuance of license to third parties. THE COURT: MR. CRONEN: that point, Your Honor. THE COURT: Mr. Griffin's damages. MR. HEVIA: THE COURT: MR. HEVIA: As to the evidence now on the Record? Yes. Their solicitation asked for the so-called All right. Question b. with respect to All right. Counsel?

I pretty much said all I have to say on

Golden Dawn Legal Defense Fund [Cicero], which accuses Mr. Griffin and myself of fraud, and implies that we have no 52

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right to use the H.O.G.D. name, the trademark, that's submitted into the record as Exhibit 20, Declaration of David John Griffin, dated October 3rd. There is also their trademark page submitted as, I believe, Exhibit 6 or 7, which implies that they are the sole licensing authority to the H.O.G.D. mark, and which notes that it has licensed Esoteric Order of the Golden Dawn, the Sanctuary Page 44

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120106GoldenDawn 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 mark. THE COURT: MR. CRONEN: All right. Response? of Ma'at, Golden Dawn, Open Source Golden Dawn, the Sodalitas, et cetera, and others, and states that it has licensed them without any supervision or control. Apart from what is on the record, Your Honor, and I didn't expect to prove up damages today, I have 50 or 60 exhibits in which their licensees in Italy, Germany, Sweden, and a variety of countries -THE COURT: MR. HEVIA: I'm not interested in that here --- attack us while using our European

That is another problem with the papers. And I

They are filled with things going on in Europe and Sweden. I don't think that is really what we are focusing on here. don't see any damages in any of that. THE COURT: All right.

Let's go to Question No. 3.

And, and this goes to Defendant, Mr. Griffin. Given when the applicable discovery requests were 53

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submitted, how can the Court deem H.O.G.D.I. to have admitted the -- admitted the requested facts, given when the request was filed? MR. HEVIA: Our reading of Rule 36 is that it is It does not require a motion to

self-executing in its nature.

compel for an item to be deemed admitted. If it is not specifically refuted with particularity within 30 days, it should be deemed admitted. THE COURT: But the rule is quite clear, that In other

discovery closes on the day that the response was due.

words, you have to -- you have to -- you have to serve your Page 45

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120106GoldenDawn discovery requests such that there's enough time for the responding party to respond to the request before the date set. Obviously, the request that you are attempting to require deemed admissions were filed in such a way as to be construed as being filed after the close of discovery. understand how that -- that is not an ambiguous rule. MR. HEVIA: The only case that I've found on point is I don't know the cite, offhand. It's I don't

a Seventh Circuit case. in my papers.

It does not reach the question as to whether a request for admission is a discovery item. It -- it does say that it

does seem to be self-executing, just by its very nature. So, I cannot point on a procedural issue of that type to a published case. However, it is our position that it is 54

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16

self-executing.

And we also -Yes? We also do notice that the Court, in their

THE COURT: MR. HEVIA:

order dated October 11th, 2005, stated that both parties have a duty to voluntarily comply with discovery under Rule 26. I note that I have complied, but I have never received a discovery request. THE COURT: We have received no discovery from -Well, that is referring to the voluntary

disclosure under Rule 26, which is different than what we are talking about here. MR. HEVIA: THE COURT: I believe that -I understand. -- a clear reading of this rule, which has

always been the rule in this district, so as to avoid having discovery continue well beyond the closure date with the response and then a motion to compel, must be -- that is why discovery cutoff is defined as the date by which all response to Page 46

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120106GoldenDawn 17 18 19 20 21 22 23 24 25 written discovery are due. So, I don't agree. I'll look at this further, but I

don't agree with your characterization. Anything you want to say on this? MR. CRONEN: Just for the sake of accuracy, this is

precisely what I wrote in a response that I did file, within 30 days after receiving the request, pointing this out, that they had failed to comply. They didn't ask, come back and ask for an

extension of time or anything that they are supposed to do under 55

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the local rules. And then I objected in general to the various requests, thinking that if it ever came up again, I would have an opportunity to actually respond to those requests. THE COURT: All right. Let me move on. Does the

Plaintiff move to strike the declaration in its entirety? MR. CRONEN: Well, no. I -- in that motion, we moved

to strike Paragraphs 5, 11, 12, 16, 17, 19, and 22, on hearsay grounds, lack of personal knowledge grounds, and all of that. Much of the rest of that declaration is filled with a lot of irrelevant information, and we pointed out in general, I didn't want to waste a lot of the Court's time, but that material can certainly be stricken from the Record. THE COURT: Well, I understand your position, you I'm going

don't need to respond because you filed a response.

to rule on those objections in the course of issuing the order on these motions. All right.

With respect -- so, those are the -- all the substantive questions. Are there any other issues that the

parties have a burning need to -- a desire to cover which were Page 47

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120106GoldenDawn not discussed in the papers, or in response to the Court's questions? MR. CRONEN: I will stand pat, and not bring up the

material that we discussed at the beginning of this hearing. That was one of the matters I was going to reserve for the end 56

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here, but -THE COURT: say? MR. HEVIA: Your Honor, the only thing I would add is All right. Anything further you want to

that while we do apologize for the tone, we do believe that every statement that we made was substantively and substantially correct. THE COURT: That may very well be, but again, as I

told you, that is for the Court to determine. MR. HEVIA: THE COURT: on that. Yes, sir. And I'm not going to indulge any argument

I stated what's going to govern this case, what I

thought had governed this case, and it's going to be strictly enforced. MR. CRONEN: THE COURT: Thank you, Your Honor. Put another way, the rules that I've

imposed are for the protection and for the benefit of your client and you, and the integrity of the process. flexible, nor am I. MR. CRONEN: THE COURT: Thank you, Your Honor. You need to figure out what movie that They are not

comes from, because that's a quote from a movie. MR. HEVIA: THE COURT: of levity in here. Thank you, Your Honor. Let's move on -- just to put a little bit Very little bit, I should add. Page 48

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I want to talk about the upcoming deadlines here, because given the -- what's surrounded the -- the efforts surrounding these motions, they may have gotten lost in the smoke here. There's currently a pretrial conference set for January 8th. cross motions. of '07. Again, obviously awaiting the outcome of these Pretrial on January 8, and trial on January 29

So it is coming right up. MR. CRONEN: THE COURT: MR. CRONEN: THE COURT: Do you have any -Let me finish. Sorry. Please.

The parties are obviously -- the Court

changed its pretrial order with respect to pretrial filings. So, I will allow the parties, since I don't believe in ex post facto, to operate under the existing guidelines as they existed when the Court set those dates. Generally speaking, the pretrial submissions would be due to the Court on January 2nd. I would like to prevail on the

parties to submit their pretrial filings, given the Court's schedule, by December 29th at noon, which would give the Court adequate time to prepare for the pretrial. Is that acceptable to the Plaintiff? MR. CRONEN: I suppose it is. I was hoping we might

put a little of this off while the dispositive motions are pending. 58

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THE COURT: MR. CRONEN:

Well, I prefer not to. I understand, Your Honor. Page 49

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THE COURT:

120106GoldenDawn The tentative is what the tentative is.

And I have to say, broadly, again, I want to -- first of all, I think I'm going to direct the parties to order a transcript of these proceedings. I want the Record to have been in the parties' hands about what the Court has ordered, so I'm going to order the parties to jointly share in a transcript of these proceedings. But my general view at this point is probably that the motions will be denied. Again, that could change, but I only

say that as an operating assumption for the purposes of these dates. MR. CRONEN: THE COURT: vacate the trial date. that -MR. HEVIA: THE COURT: That's fine, Your Honor. All right. It is going to require you I understand. Because I don't -- I would rather not So, noon on the 29th of December. Is

folks to meet and confer in good faith, because the next sort of test of compliance with the Court's rule and the new spirit of cooperation among the parties is going to be that the substantial meeting and conferring that was required by the existing rule that you are operating under, to come up with filings and squeeze any of the disputes out of this case where 59

1 2 3 4 5 6 7

it can be done on an expedited basis, so that we don't waste any jury time with pretrial matters. I take the pretrial process very seriously. lot of time. I spend a

Basically, based upon your meeting and conferring

and presentation of the issues, I will rule on it at pretrial, and that's going to govern what happens at the trial here. MR. CRONEN: Your Honor, I'm glad you are emphasizing Page 50

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120106GoldenDawn 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that nature of cooperation. Because if you recall, we were

ordered by Your Honor to the Attorneys' Lounge to handwrite a scheduling order, because we didn't get cooperation. THE COURT: MR. HEVIA: THE COURT: Well -Your Honor, we did cooperate with -I don't want to hear that. Again, I don't

want to get into a who-struck-John here.

But I am just telling

you that I expect the two of you, as officers of the Court -you are in Federal Court now. running with the big dogs here. And as one judge has said, you're We're not in state court.

And I expect literal compliance, because we are going to have a jury trial here, and you will see when we get into the pretrial that I don't take any time out of the jury's schedule to have any bickering, and I don't like to have multiple versions of a pretrial. So, you can maintain positions that you

have that still need to be resolved by the Court. By definition, you will, with respect to the motions in limine the Court allows to be filed in some other matters, 60

1 2 3 4 5 6 7 8 9 10 11

but you will see in the Court's rules that with respect to exhibits, the Court -- deposition excerpts, the Court does not want to take time to rule on what I call ticky-tack objections on authenticity if there's no real dispute, you know, best evidence rule, Queen Caroline's Rule, any rule. MR. CRONEN: THE COURT: are current rules. I understand. Whether they go back to antiquity or they I don't want to have -- I want, if there is

going to be argument, it is going to be on substantive matters. So the parties must meet and confer, and at that point if there is not meeting and conferring, I will determine who is Page 51

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120106GoldenDawn at fault, and I will issue an appropriate order. going to pre-judge you.

So, I'm not

We are starting a new era here of cooperation in this case, if the case survives these motions, and I expect you to come up with a result that maintains the positions of your clients, understanding you're now going to be at trial, not the time to fight out the last argument. Yes, Mr. Hevia? MR. HEVIA: A small administrative matter. We will

move to appear telephonically on January 8th, because we have to come all the way from various points. THE COURT: MR. HEVIA: THE COURT: Is that for the pretrial? For the pretrial. No, that will be denied. They'd have to 61

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16

get local counsel. MR. HEVIA: THE COURT: Yes, sir. We will figuratively sit down and roll up

our sleeves, and I need you here, and I want the parties here for that as well, because that's an important proceeding. MR. HEVIA: THE COURT: Yes, sir. The other thing I should tell you is that

there is another case that the Court has, it is an older case than this one. It's approximately a one-week trial that starts So you should be prepared to start on January And it's

before your case.

29th with the actual trial, unless that case settles.

-- in light of the pretrial in that case, it's pretty unlikely that that case is going to settle, but hope springs eternal. MR. HEVIA: THE COURT: MR. HEVIA: Okay. So, yes? My client just signaled to me that on Page 52

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120106GoldenDawn 17 18 19 20 21 22 23 24 25 January 8th, he is going to be working. THE COURT: MR. HEVIA: THE COURT: MR. HEVIA: Well, he can be available by telephone. All right, sir. If that's okay. Yes, sir. Not January 8th, the trial date. But you need to be here.

THE DEFENDANT: MR. HEVIA: going to be -THE COURT:

He is saying that on the trial date, he's

On the 29th? 62

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MR. HEVIA: MR. CRONEN: THE COURT:

Yes, on the 29th. We have known about this for -Well, no. He doesn't have to -- this is a The trial is going to go

civil case, it's not a criminal case. forward. MR. HEVIA: THE COURT: should coordinate. Yes.

If he's not here, he's not here.

But he

Per my rules, if the Plaintiff is going to

call Mr. Griffin as an adverse witness, everybody should coordinate with each other's schedules. MR. HEVIA: THE COURT: Yes. But a party is not required to be present

at trial, and the jury will be advised only that parties have a right to be there when they can be there. outside trial. And nobody is going to get any benefit from that, but I'm not going to put off the trial because of the scheduling, because of his scheduling. MR. HEVIA: THE COURT: I understand. The two other things I want to raise, Page 53 They have lives

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120106GoldenDawn which is, now that we have turned a new leaf in terms of the presets of the Hermetic Order, whoever owns the rights of good will, what is the prospect for -- I know you have had discussions, settlement discussions, about a further settlement conference in this case. 63

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Let me start with Plaintiff's Counsel. MR. CRONEN: We went through mediation, and efforts

were made at that time to come up with something reasonable, and they failed. And I don't think there's a reasonable chance of

settling this case, because of some of the things that have gone on. THE COURT: MR. HEVIA: All right. What is the Defendant's view?

Exactly the same thing that Mr. Cronen has

said, but from our perspective. THE COURT: All right. Be prepared. It's quite

possible and it's been my practice in the past, after the pretrial, to send the parties out to a Magistrate Judge. Because what I find is when the parties are sort of on the, you know, the war footing of just before trial, they've heard what instructions the Court is going to give, because I will rule on instructions as much as possible at the pretrial, the in limine motions and et cetera, the parties are then in the best position to, before they actually step into trial, to settle. And cases more contentious than this have settled at

that point. MR. CRONEN: THE COURT: Sure. And the last point I want to ask about is

whether the parties, given the amount of time that it is likely to continue to take, after the order is issued in this case, assuming just for argument's sake that both motions were denied, Page 54

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whether the parties would agree to consent to having this case heard by one of our excellent Magistrate Judges, who have a lot more time. MR. CRONEN: Court. THE COURT: All right, fine. Then I don't need to ask No, Your Honor, we would prefer the

you, because it doesn't really -- it's irrelevant at that point. I'm not going to pressure anybody. All right. wanted to -MR. HEVIA: THE COURT: MR. CRONEN: THE COURT: No, Your Honor. Counsel? No, thank Your Honor. All right, thank you. And again, Counsel, Ms. Ottolini, is there anything that you

the Court does not relish taking the parties and Counsel to task as I did at the beginning of this hearing. Believe me, I don't.

I don't have the time for it, and I don't, frankly, have the judicial stomach for it. But I will take the necessary steps, if I have to, to control my calendar. And I've spent too much time on a lot of And I expect

this static, and I don't intend to do it any more.

the lawyers to step up, and in cooperation with their clients, both of whom -- all of whom are intelligent people, and conduct this case on a more dignified basis, and keeping your opinions to yourself. 65

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And that is going to rein -- you know, I will allow and expect a vigorous trial practice here, but I'm not going to Page 55

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120106GoldenDawn allow inappropriate conduct before a jury.

That will not be

allowed to take place, and the consequences will be very severe. All right, gentleman, thank you very much. MR. CRONEN: MR. HEVIA: Thank you, Your Honor. Thank you, sir. (Conclusion of Proceedings)

66

1 2 3 4 5 6 7 CERTIFICATE OF REPORTER I, BELLE BALL, Official Reporter for the United States Court, Northern District of California, hereby certify that the foregoing proceedings in Case No. C-05-432 JSW, The Hermetic

Order of the Golden Dawn v. David Griffin, were reported by me, Page 56

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120106GoldenDawn 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 = ________________________________________ Belle Ball, CSR 8785, RMR, CRR Wednesday, December 13, 2006 a certified shorthand reporter, and were thereafter transcribed under my direction into typewriting; that the foregoing is a true record of said proceedings as bound by me at the time of filing. The validity of the reporter's certification of said transcript may be void upon disassembly and/or removal from the court file.

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