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Good lawyer or artful dodger? What’s your call?

Federal judges in the Eastern District’s “rocket docket” sometimes chide lawyers for their procedural skirmishes to maneuver cases in and out of federal court.

But one judge’s “procedural fencing” is another judge’s artful lawyering.

Richmond IP lawyer John W. Dozier Jr. has a Web site for his firm, Dozier Internet Law PC.

Unfortunately for Dozier, a Michigan resident unhappy with Dozier created an anti-Dozier Web site:

So what does a trial lawyer do? He sues.

Dozier sued the Michigan resident, Richard Riley, in Virginia state court for common law trademark infringement. Riley took the offensive by filing his own suit in Richmond federal court, asking the district court to declare he was not liable to Dozier for defamation or trademark infringement.

Riley removed the Dozier case to Richmond federal court, which sent the case back to state court. The district court abstained from hearing Riley’s federal suit, in favor of letting the state court decide Dozier’s lawsuit.

Riley’s federal suit appeared to be “mere procedural fencing,” the 4th Circuit majority said in its March 24 unpublished opinion. Having failed to get Dozier’s suit removed to federal court, Riley tried “to get into federal court through a side entrance,” wrote Judge J. Harvie Wilkinson III. The court upheld the abstention decision.

Talk about procedural fencing. What about Dozier’s state court filing of an IP matter that clearly belonged in federal court, asked a dissent by Judge Andre M. Davis.

This “dust-up over the operation of on-line ‘gripe sites’” belongs in federal court, Davis said.

Dozier “pointedly limited his damages claim to less than the $75,000 jurisdictional amount for diversity of citizenship jurisdiction,” and tried to allege his “statutory” trademark infringement claim in a sufficiently vague manner so as to defeat removal on the basis of federal question jurisdiction, Davis said.

“Given Dozier’s transparent attempt to disguise his Lanham Act claim, Riley filed this contemporaneous original action as a protective step to respond to Dozier’s apparent cunning. With respect, in its criticism of Riley for both removing the state case and filing this protective action, the majority mistakes good lawyering for ‘procedural fencing,’” Davis said.

“Beguiled by Dozier, the district court stumbled,” Davis wrote. He grumbled that the majority’s “rummage[] through its treasure chest of abstention doctrines” to find a way to affirm the district court would only encourage future litigants to throw the “full panoply” of abstention doctrines against the wall, just to see what sticks.

Dozier’s state court action against Riley is still pending in Henrico County Circuit Court, according to court records.
By Deborah Elkins

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