P.S. Docket No. MD 10-57
April 23, 2010
In the Matter of a Mail Dispute Between
JAY ENTERPRISES OF NC, INC.
and
WENDY BLANKS
P.S. Docket No. MD 10-57
APPEARANCE FOR DISPUTANT
JAY ENTERPRISES OF NC, INC.:
Brian Cromwell, Esq.
Parker Poe
APPEARANCE FOR DISPUTANT
WENDY BLANKS:
Wendy Blanks
INITIAL DECISION
Mail Dispute MD 10-57 has been docketed pursuant to Postal Operations Manual (POM) § 616.21, under the procedures established at 39 CFR Part 965, to resolve conflicting claims to receive the same mail. The disputants are Jay Enterprises of NC, Inc. and Wendy Blanks,[1] both of whom claim the legal right to control mail addressed to The National Diabetic Center at 4339 Stuart Andrew Boulevard, Suite 209, Charlotte, North Carolina 28217. The Charlotte Postmaster has been ordered to hold all mail so addressed until this mail dispute is resolved.
FINDINGS OF FACT
1. On February 16, 2009, Jay Enterprises of NC, Inc. (Jay Enterprises), a North Carolina corporation was purchased by Rick Admani and Ramzi Abulhaj (Affidavit of R. Admani (Admani Aff.) at ¶¶ 5-7; Jay Enterprises Exhibits (JE Exs.) A-B).
2. On February 27, 2009, Jay Enterprises applied for and received in its name from the Registrar of Deeds for Mecklenburg County, North Carolina a Certificate of Assumed Name for Corporation, registering The National Diabetic Center as an assumed name under which its business may be conducted (Admani Aff. at ¶ 11; JE Ex. C; see also Affidavit of J. Seriani (Seriani Aff.) at ¶ 13).
3. On February 28, 2009, Jay Enterprises registered a website for The National Diabetic Center (JE Ex. F (identifying registration date of February 28, 2009); Admani Aff. at ¶ 14 (incorrectly identifying the registration date as February 28, 2010)).
4. In April and May 2009, checks were issued from an account denominated as Jay Enterprises of NC, Inc. DBA National Diabetic Center, to Joseph Seriani. At least as early as February, 2009, Mr. Seriani[2] had been coordinating with Jay Enterprises as a consultant to expand the business of The National Diabetic Center. (Admani Aff. at ¶ 9, 16; JE Ex. G).
5. A series of draft agreements were exchanged between Jay Enterprises and Mr. Seriani to define their relationship. However, none of these agreements were executed. One such unexecuted agreement, prepared by Mr. Seriani and transmitted to Jay Enterprises, identified Mr. Seriani as a “non-owner consultant” for The National Diabetic Center, and identified the other party to the proposed agreement as Jay Enterprises d/b/a The National Diabetic Center. (Jay Enterprises’ Reply, Exhibits BB, CC; Jay Enterprises’ Reply at pp. 6-7; Reply Declaration of W. Blanks (Blanks Reply Decl.) at ¶¶ 6-10; Blanks Reply Decl., Exhibits 1-A through 1-D; Affidavit of W. Blanks (Blanks Aff.) at ¶ 15).
6. On June 1, 2009, the business operated by Jay Enterprises as The National Diabetic Center moved to the address in dispute – 4339 Stuart Andrew Boulevard, Suite 209, Charlotte, North Carolina 28217 (the Stuart Andrew Blvd. address). Since that time, Jay Enterprises has conducted business with the public at that address under the name The National Diabetic Center. (Admani Aff. at ¶¶ 20-21, 26).
7. On June 4, 2009, Jay Enterprises hired Disputant Wendy Blanks, but her work as an employee of Jay Enterprises ended on June 29, 2009 (Admani Aff. at ¶¶ 22-23; JE Ex. I; Blanks Aff. at ¶ 15; Blanks Reply Decl. at ¶¶ 33-34).[3] Thereafter, Disputant Blanks continued to work with Jay Enterprises, but did so as a consultant with Mr. Seriani, under the name Seriani & Associates (Admani Aff. at ¶ 23; JE Ex. I). While working as a consultant, Disputant Blanks used Jay Enterprises’ office space at the Stuart Andrew Blvd. address (Admani Aff. at ¶ 24).
8. From July to October 2009, Joseph Seriani Associates, a name which Mr. Seriani used interchangeably with Seriani & Associates and Seriani Associates, transmitted invoices to Jay Enterprises seeking payments. These invoices were addressed to The National Diabetic Center at the Stuart Andrew Blvd. address. (JE Ex. G).[4]
9. On November 20, 2009, the consultant relationship between Jay Enterprises and Ms. Blanks ended (Admani Aff. at ¶ 25; Affidavit of D. Hanks (Hanks Aff.) at ¶¶ 8-9, 12; Blanks Aff. at ¶¶ 16-24; Blanks Reply Decl. at ¶ 18).[5]
10. On November 25, 2009, Disputant Blanks submitted an application for unemployment benefits, and then appealed a denial of those benefits. Ms. Blanks’ filings identified her former employer as Jay Enterprises of NC, Inc., The National Diabetic Center. (Hanks Aff. at ¶ 25; Affidavit of B. Cromwell (Cromwell Aff.) at ¶ 12; JE Ex. T).
11. Starting in December, 2009, Disputant Blanks and Mr. Seriani have been competing for business against Jay Enterprises, also using the name The National Diabetic Center (Hanks Aff. at ¶¶ 11, 14, 16-19; JE Exs. E, M, P).
12. On December 3, 2009, Mr. Seriani filed (as “Joseph Serian”) for trademark registration for The National Diabetic Center. The trademark application identifies the business name of The National Diabetic Center as having had “first use in commerce” on March 1, 2009 (Hanks Aff. at ¶ 13; JE Ex. L).
13. On December 31, 2009, Disputant Blanks filed articles of incorporation for “The National Diabetic Center, Inc.” with the North Carolina Department of the Secretary of State, identifying herself and a third party as incorporators and herself as president (Hanks Aff. at ¶ 15; JE Ex. N). There is no record of prior incorporation of The National Diabetic Center by Disputant Blanks or by Mr. Seriani prior to this filing, and no record of ownership of a company by that name by Ms. Blanks or Mr. Seriani under any form of ownership prior thereto (Cromwell Aff. at ¶ 11).
14. Disputant Jay Enterprises continues to operate at the Stuart Andrew Blvd. address, conducting business as The National Diabetic Center (Admani Aff. at ¶ 26; Hanks Aff. at ¶ 4; JE Ex. F). Disputant Blanks has never operated The National Diabetic Center, Inc., at the Stuart Andrew Blvd. address (Admani Aff. at ¶ 28; Hanks Aff. at ¶ 32; Cromwell Aff. at ¶ 15). Disputant Blanks and Mr. Seriani are conducting business in the name of The National Diabetic Center, operating at 7257 Drury Lane, Denver, North Carolina 28037, which is their shared residence (Blanks Reply Decl. at ¶ 5, 25; Hanks Aff. at ¶¶ 22-23).
15. On January 31, 2010, Disputant Blanks and Mr. Seriani filed a change of address request with the Postal Service seeking to cause mail addressed to the National Diabetic Center at the Stuart Andrew Blvd. address to be forwarded to 7257 Drury Lane, Denver, North Carolina 28037. Disputant Blanks used the articles of incorporation of The National Diabetic Center, Inc., with herself identified as president, in support of her mail forwarding request. (Hanks Aff. at ¶¶ 22-23; JE Exs. S, V). The request was canceled by Jay Enterprises resulting in this mail dispute (Hanks Aff. at ¶¶ 26-28).
DECISION
Both parties have presented sworn statements from multiple witnesses, supporting documentation, rebuttal statements, and arguments. While the parties expend considerable effort accusing each other of committing a variety of misconduct, including accusations of fraud, threats of violence, assault, sexual battery, harassment, sexual harassment, and filing false police reports, this is a narrow proceeding. My role is limited to determining, and directing the postmaster accordingly, which party has a superior right to receive mail addressed to The National Diabetic Center at 4339 Stuart Andrew Boulevard, Suite 209, Charlotte, North Carolina 28217. The parties must look to a more appropriate forum to resolve the myriad other disputes between them. See Edwin G. Blake and Sonja Haag-Ducharme, P.S. Docket No. MD-197 (I.D. November 26, 1993), aff’d, (P.S.D. January 18, 1994) (dispute concerning ownership of business name must be resolved in another, appropriate forum). I have carefully reviewed the record and, as explained below, find in favor of Disputant Jay Enterprises.
A corporation, such as Jay Enterprises, is entitled to have its mail delivered as addressed. POM § 614.1; Safeguard Business Systems, Inc. and Jim & Cathy Clement, P.S. Docket No. MD-136 (P.S.D. February 7, 1992). Disputant Blanks has not demonstrated an ownership interest in Jay Enterprises under its d/b/a name here at issue. Accordingly, she may not control delivery of the mail in dispute, which is properly controlled by the president or equivalent official of Jay Enterprises.[6] See POM § 614.1; Fred Hoeppner and Kartsen Vollstedt, P.S. Docket No. MD 08-251 (I.D. October 16, 2008). While it is apparent that Mr. Seriani, and later Ms. Blanks, were closely involved in the evolution of Jay Enterprises’ business operations known as The National Diabetic Center, the parties’ exchanges of draft legal documents never resulted in execution of an agreement. Disputant Blanks’ lack of connection to ownership of the business beyond the agreements that were never consummated does not entitle her to direct delivery of the mail. See John Squitieri and Frederic Greenberg, P.S. Docket No. MD 98-206 (I.D. June 18, 1998).
Additionally, an important principle for resolving mail disputes is to attempt to discern and then honor the intent of the senders of that mail. See McKenna Capital Corp. and Beyond Signs, Inc., P.S. Docket No. MD 08-316 (I.D. December 4, 2008). While the parties dispute ownership of the name of the business, only Jay Enterprises has used the name The National Diabetic Center in connection with the business being operated at the disputed address, and it continues to do so (Findings 6, 14). Those sending mail to The National Diabetic Center at the Stuart Andrew Blvd. address would be expected to have intended that their mail would be delivered to the business there being operated, as opposed to a business of the same name being operated at an entirely different address. See Johnnie W. Dillehay and Charles W. D'ary, P.S. Docket No. MD-37 (I.D. October 31, 1988) (most likely that mail addressed to a registered assumed business name at address used by the registrant was intended by mailers to be delivered to that address where operator of business using same name never conducted business at that address). Conversely, as Disputant Blanks has never operated a business known as The National Diabetic Center at the Stuart Avenue Blvd. address, I find it unlikely that a sender of mail to a business of that name at the Stuart Andrew Blvd. address would have intended that mail to be delivered to Ms. Blanks’ business at another address. See Jack E. Grulke and Jeanette D'Anneo, P.S. Docket No. MD 05-188 (I.D. October 19, 2005), aff'd, (P.S.D. November 18, 2005); Robin L. Trivette and David A. Dillinger, P.S. Docket No. MD 00-310 (I.D. October 12, 2000); Robert Nicotera and Josephine Nicotera, P.S. Docket No. MD 00-28 (I.D. March 13, 2000); Gerry J. Stricklin & Janet Stricklin and Ronald Moody & Sandra Moody, P.S. Docket No. MD 98-248 (I.D. July 15, 1998).
Moreover, where there is doubt about the intended recipient of mail claimed by parties with the same name, our precedent reveals that delivery should be ordered to the party first lawfully adopting the disputed name. See Mike Edwards and Alan Grant, P.S. Docket No. MD-220 (I.D. June 16, 1994); J. Stanton Keck, President/Graphic Display Systems, A Division of Northwest Industries and Dennis A. Moroni, P.S. Docket No. MD-95 (I.D. August 31, 1990); Rabbi Jonas Gruenzweig and Harold Jacob, P.S. Docket No. MD-88 (I.D. August 17, 1990).
In this regard, Disputant Jay Enterprises argues that it registered the name The National Diabetic Center as an assumed name, and conducted business in that name starting in February 2009, at the Stuart Andrew Blvd. address shortly thereafter, before Disputant Blanks obtained any right to use that name (by her incorporation on December 31, 2009 of The National Diabetic Center, Inc, or through an earlier but undocumented purchase of unproved intellectual property from Mr. Seriani, which it disputes). Jay Enterprises argues that a variety of contemporaneous documentation from Disputant Blanks and Mr. Seriani demonstrates their recognition of Jay Enterprises as the legitimate user of the name The National Diabetic Center, at the address in dispute.
In contrast, Disputant Blanks presents several arguments. First, she argues that the name The National Diabetic Center had been used by Mr. Seriani prior to February 2009 (Blanks Aff. at ¶ 12; Affidavit of R. Roseman-Seriani, at pp. 1-2; Affidavit of L. Puckett). Second, she argues that Mr. Seriani owned trademarks and trade names for The National Diabetic Center at that time, and that he licensed to Jay Enterprises and then revoked, a limited license agreement for use of that trademark and trade name (Seriani Aff. at ¶¶ 18, 21-23). Third, she argues that she purchased from Mr. Seriani in November or December, 2009, all such intellectual property rights leaving her with the sole right to use the name The National Diabetic Center (Blanks Aff. at ¶ 4, 6; JE Ex. S; Blanks Reply Decl. at ¶¶ 18-19; but see Admani Aff. at ¶ 18). Fourth, she argues that she later incorporated the disputed business name and moved the location of The National Diabetic Center from the disputed address to the address to which she seeks the contested mail be forwarded (Blanks Aff. at ¶ 7, 10; Blanks Reply Decl. at ¶ 25, 30; see also Seriani Aff. at ¶ 34).
Disputant Blanks has not proved that Mr. Seriani possessed legal protections for use of the name The National Diabetic Center prior to its use by Jay Enterprises. There is no documentary proof in the record of any such registration, nor is there any documentary proof in the record of the sale of any such legal rights from Mr. Seriani to Disputant Blanks, even if such rights existed. While Mr. Seriani and Jay Enterprises did exchange a variety of draft agreements concerning use of the name The National Diabetic Center (Finding 5), none of these draft agreements were executed, and the record does not demonstrate any legal right to use the business name in question by Mr. Seriani or Ms. Blanks prior to December, 2009 (Blanks Reply Decl. at ¶¶ 6-10; Blanks Reply Decl., Exhibit 1-A through 1-D; Jay Enterprises’ Reply, Exhibits BB, CC).
Moreover, Jay Enterprises has shown without persuasive contradiction that it registered and used the name The National Diabetic Center before Ms. Blanks (or her predecessor Mr. Seriani) registered that name as a trademark or incorporated that name (Findings 2-8, 11). I find it persuasive that before the present dispute arose, Ms. Blanks and Mr. Seriani themselves acknowledged in various writings that Jay Enterprises operated a business under the disputed business name at the disputed address (Findings 5, 8, 10). Additionally, Mr. Seriani’s own trademark registration application indicates his belief that the name The National Diabetic Center was first used in commerce on March 1, 2009 (Finding 12), which is after Jay Enterprises had registered that name for itself (Finding 2). Moreover, aside from the uncorroborated representation, there is no persuasive evidence in the record that Mr. Seriani or Ms. Blanks used the name in commerce at any time before December, 2009 (Findings 11-13).
Disputant Blanks argues, in the alternative, that I appoint a receiver, independent counsel, or other official to review the contents of the disputed mail and determine where individual mail pieces should be directed (see Blanks Reply Decl. at ¶¶ 26, 51-52). While a neutral receiver may have been a workable solution, and was suggested to the parties by the undersigned Administrative Judge during a conference (see March 5, 2010 Order), such a solution must be agreed upon by the parties. I lack the authority to appoint a third party receiver. See Calstar, LLC and LaSalle Bank National Association, P.S. Docket No. MD 01-49 (I.D. April 9, 2001).
This decision deals only with delivery of the mail. It does not determine ownership of the contents of the mail and does not attempt to resolve any underlying disputes between the parties. If either party obtains a court order directing delivery of the mail, postal regulations provide that the mail will be delivered according to such an order. POM § 616.3.
This initial decision therefore recommends that the Judicial Officer should issue an order directing the Charlotte Postmaster to deliver as addressed all held mail and future mail addressed to The National Diabetic Center at 4339 Stuart Andrew Boulevard, Suite 209, Charlotte, North Carolina 28217.[7]
Gary E. Shapiro
Administrative Judge
[1] By Order of April 9, 2010, the caption of this mail dispute was changed to reflect more accurately the disputing parties.
[2] Without explanation, Disputant Blanks and Mr. Seriani have used the names Joseph Seriani and Joseph Serian interchangeably. See e.g., Seriani Aff. (using both names in his own affidavit).
[3] The parties vigorously dispute the circumstances surrounding the end of Ms. Blanks’ employment status, with statements on behalf of Jay Enterprises to the effect that it was due to fraud she committed, while statements by and on behalf of Ms. Blanks to the effect that it was due to coercion, followed by a related sexual battery committed by an owner of Jay Enterprises. I need not resolve this factual dispute. Although Ms. Blanks signed a resignation letter addressed to The National Diabetic Center at the Stuart Andrew Blvd. address, she has stated in this proceeding that the letter was untrue and signed under coercion. I also need not resolve that conflict and do not rely on the contents of the resignation letter in resolving this mail dispute.
[4] The parties dispute whether these invoices were due, or were properly paid, and accuse one another of a variety of related monetary indiscretions. As one example, the parties argue whether Mr. Seriani’s purchase of a Mercedes from a principal of Jay Enterprises was paid for and whether the vehicle was transferred. I need not address these matters in resolving this mail dispute.
[5] Here, too, the parties vigorously contest the reasons for the end of the consulting relationship, accusing each other of a variety of criminal conduct including sexual battery, assault, threats of violence, and filing false police reports. Again, I need not resolve this conflict, which is not material to my decision of which party is entitled to the disputed mail.
[6] The submissions by Jay Enterprises fail to identify its president or equivalent official. However, there is no dispute that all officials of Jay Enterprises want the disputed mail to be delivered as addressed.
[7] This mail dispute decision does not involve delivery of mail addressed to The National Diabetic Center or any other mail recipient, at 7252 Drury Lane, Denver, North Carolina 28037.