Opinion
98 Civ. 2415 (WK)
July 25, 2000
The parties in this intellectual property litigation dispute who first used the name "BROWN BETTY" in commerce in connection with various ethnic foods. Plaintiff Bedessee Imports Ltd. (hereinafter "plaintiff") has moved for an order requiring defendants Vinelli Industries Ltd. ("Vinelli"), Brown Betty Industries Ltd. ("BBI"), and Dave West Indian Imports to post a bond or security for costs in the amount of $75,000 pursuant to Local Civil Rule 54.2 (previously Local Rule 39).
BBI was, according to defendants, the exclusive United States licensee, importer, and distributor of Vinelli's products until Dave West Indian Imports took over that status in 1997.
Plaintiff had previously commenced a trademark cancellation proceeding against Vinelli, which proceeding was suspended upon plaintiff's filing of the instant suit.
Local Rule 54.2 provides:
The court, on motion or on its own initiative, may order any party to file an original bond for costs or additional security for costs in such an amount and so conditioned as it may designate. . . .
Our review of the cases interpreting this rule shows that the vast majority of them have required plaintiffs to post security in order to protect defendants from the unrecoverable costs of meritless lawsuits. The only cases cited by plaintiff in which courts required defendants to post a bond involved serious evasions of jurisdiction not present in the instant litigation. See Herbstein v. Bruetman (S.D.N.Y. 1992) 141 F.R.D. 246, 247 (to avoid a default judgment, defendant fled to Argentina in violation of a court order); Drexel Burnham Lambert Group Inc. v. Committee of Receivers (S.D.N.Y.) 810 F. Supp. 1375, 1377, 1392-93, rev'd on other grounds, 12 F.3d 317 (2d Cir. 1993), cert. denied, 511 U.S. 1069 (1994) (foreign government seized assets belonging to an American bank and then asserted sovereign immunity to avoid American jurisdiction).
Here, moreover, plaintiff provides no clear evidence of defendants' financial distress or unreachable assets, or of their bad faith delays. On the record before us, defendants have apparently meritorious defenses and counterclaims.
Overall, plaintiff has insufficient cause for concern to merit the atypical precaution of a bond, and we therefore DENY its motion.
SO ORDERED.