Mark-Robert Bluemel v. Image Comics, Inc., Brian Posehn, Rick Remender, Brett Parson, Moreno Dinishio

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 SOUTHERN DISTRICT OF CALIFORNIA 6 7 MARK-ROBERT BLUEMEL, Case No.: 3:25-cv-02708-RBM-BJW

8 Plaintiff, ORDER: 9 v. (1) GRANTING MOTION TO STAY 10 IMAGE COMICS, INC., a California [Doc. 20]; and Corporation; BRIAN POSEHN, an 11 individual; RICK REMENDER, an (2) DENYING WITHOUT 12 individual; BRETT PARSON, an PREJUDICE MOTIONS TO QUASH individual; MORENO DINISHIO, an 13 SERVICE [Docs. 13, 21] and individual, REQUEST FOR JUDICIAL NOTICE 14 Defendants. [Doc. 19] 15 16 17 Pending before the Court are Defendants Image Comics, Inc., Brian Posehn, Rick 18 Remender, Brett Parson, and Moreno Dinishio’s (collectively, “Defendants” or “Image 19 Comics”) Motion to Quash Insufficient Service of Process (“Motion to Quash Service”) 20 (Docs. 13, 21), Request for Judicial Notice (Doc. 19), and Motion to Dismiss or Stay 21 (Doc. 20). Plaintiff Mark-Robert Bluemel (“Plaintiff” or “Bluemel”) opposes Defendants’ 22 motions. (See Docs. 23, 24, 26.) Defendants filed a reply in support of each of their 23 motions. (See Docs. 27, 28.) 24 The Court finds this matter suitable for determination without oral argument 25 pursuant to Civil Local Rule 7.1(d)(1). Having reviewed the filings above, and for the 26 reasons below, the Motion to Stay (Doc. 20) is GRANTED. Accordingly, the Motion to 27 Quash Insufficient Service of Process (Docs. 13, 21), the Request for Judicial Notice 28 (Doc. 19), and the Motion to Dismiss are DENIED without prejudice. 1 I. BACKGROUND 2 Bluemel alleges that he is “the owner of the incontestable federal trademark THE 3 GROMMETS, U.S. Reg. No. 3,510,923, first used in commerce in 2007 and registered in 4 2008, in International Classification 016 for use in conjunction with ‘Printed matter, 5 namely, book series featuring mystery stories.’” (Doc. 1 at 2.) “The mark is associated 6 with Plaintiff’s literary book series ‘The Grommets’ celebrating the innocence of youth, 7 the love of surfing and the ocean, and encouraging children to read.” (Id. at 2–3.) Bluemel 8 alleges that Defendants “have launched a comic book series titled ‘Grommets,’ which 9 misappropriates Plaintiff’s incontestable mark. Unlike Plaintiff’s wholesome series, 10 Defendants’ publication is based on their personal experiences in middle school and is rife 11 with profanity, violence, and drug use.” (Id. at 3.) 12 On July 11, 2025, Bluemel sent Image Comics a cease and desist letter. (Doc. 1-38 13 at 2–4.) The letter indicated that Image Comics had “ten days from receipt of this letter to 14 comply with [Bluemel’s] demands,” and that “[f]ailure to do so [would] result in the 15 immediate commencement of federal litigation seeking permanent injunctive relief, 16 monetary damages and defendant’s profits . . . .” (Id. at 4.) On July 21, 2025, Image 17 Comics responded with a letter of their own. (Doc. 19-2 at 42–46.) Three days later, “[t]o 18 protect their rights to publish the Grommets comic book, Image [Comics] filed a lawsuit 19 in the Western District of Washington.” (Doc. 20 at 5.) Then, three months later, on 20 October 13, 2025, Bluemel filed this action in the Southern District of California. (Doc. 1.) 21 A. The First Action in the Western District of Washington 22 The action in the Western District of Washington, brought by Image Comics, seeks 23 declaratory relief including: (1) a declaration of trademark non-infringement; 24 (2) cancellation of U.S. Trademark Registration Number 3,510,923; (3) a declaration of no 25 violation of California Business and Professions Code § 17200; (4) and a declaration that 26 Image Comics has the right to continue to use the term “Grommets” as a title for their 27 graphic novel series. See Image Comics, Inc. v. Bluemel, Case No.: 2:25-cv-01399-TL (the 28 “W.D. Wash. Action”), ECF No. 28 (W.D. Wash. Nov. 17, 2025). 1 B. The Second Action in the Southern District of California 2 This action, brought by Bluemel, raises the following causes of action: (1) federal 3 trademark infringement under 15 U.S.C. § 1114; (2) false designation of origin under 15 4 U.S.C. § 1125(a); (3) unfair competition under California Business and Professions Code 5 § 17200; (4) common law trademark infringement; (5) abuse of process; (6) fraud— 6 intentional misrepresentation and concealment; (7) injunctive relief enjoining Defendants 7 from “using the name ‘Grommets’ or any confusingly similar mark in connection with the 8 marketing, sale, or distribution” of media, and requiring Defendants to “recall and destroy 9 all infringing materials bearing The Grommets mark.” (Doc. 1 at 13–24.) 10 II. LEGAL STANDARD 11 A district court “has broad discretion to stay proceedings as an incident to its power 12 to control its own docket” in the interests of judicial economy and efficient management 13 of litigation. Clinton v. Jones, 520 U.S. 681, 706–07 (1997); Lockyer v. Mirant Corp., 398 14 F.3d 1098, 1109 (9th Cir. 2005). It may stay a case “pending resolution of independent 15 proceedings which bear upon the case,” even if those proceedings are not “necessarily 16 controlling of the action before the court.” Leyva v. Certified Growers, Ltd., 593 F.2d 857, 17 863–64 (9th Cir. 1979). In determining whether a stay is appropriate pending the resolution 18 of another case, a district court must consider various competing interests, including: 19 (1) “the possible damage which may result from the granting of a stay;” (2) the hardship to 20 the parties if the suit is allowed to go forward; and (3) “the orderly course of justice 21 measured in terms of the simplifying or complicating of issues, proof, and questions of law 22 which could be expected to result from a stay.” Lockyer, 398 F.3d at 1109–10; see also 23 Gonzalez v. CoreCivic, Inc., Case No.: 17-CV-2573-JLS (NLS), 2018 WL 1621543, at *5 24 (S.D. Cal. Apr. 4, 2018) (“Courts have the power to stay proceedings sua sponte.”) (citing 25 Ali v. Trump, 241 F. Supp. 3d 1147, 1152 (W.D. Wash. 2017). “If there is even a fair 26 possibility” that the stay will harm the non-moving party, the party seeking the stay “must 27 make out a clear case of hardship or inequity in being required to go forward.” Landis v. 28 N. Am. Co., 299 U.S. 248, 254 (1936). 1 III. DISCUSSION 2 Image Comics argues that this case should be stayed under the first-to-file rule 3 because the action in the Western District of Washington involves substantially similar 4 parties and issues as the action here. (Doc. 20 at 12–14.) Bluemel argues that the first-to- 5 file rule does not apply because the first action is an anticipatory lawsuit. (Doc. 23 at 13– 6 15.) Although the Parties frame the issue in terms of the first-to-file rule, the Court finds 7 it appropriate to exercise its discretion under its inherent authority to manage its own 8 docket and stay this action while the action in the Western District of Washington proceeds. 9 As discussed above, in analyzing the propriety of a stay, the Court considers (1) “the 10 possible damage which may result from the granting of a stay;” (2) the hardship to the 11 parties if the suit is allowed to go forward; and (3) “the orderly course of justice measured 12 in terms of the simplifying or complicating of issues, proof, and questions of law which 13 could be expected to result from a stay.” Lockyer, 398 F.3d at 1109–10. The first factor 14 favors Bluemel. But the second and third factors so strongly militate in favor of issuing a 15 stay that the Court concludes a stay of this action is proper. 16 First, the most significant harm that may result from the Court’s issuance of a stay 17 is Bluemel’s inability to litigate in his preferred forum. As courts recognize, “the equitable 18 principle underlying the anticipatory suit exception to the first-to-file rule is that the proper 19 plaintiff to a controversy should have its choice of venue, and that the proper plaintiff is 20 deprived of that traditional choice by the would-be defendant’s anticipatory filing.” Jive 21 Software, Inc. v. Parkview Health Sys., Inc., Case No. 3:18-cv-101-SI, 2019 WL 1547353, 22 at *3 n.1 (D. Or. Mar. 29, 2018) (emphasis omitted). It is clear from his briefing (see Doc. 23 23 at 14–15) and decision to file suit here that Bluemel would have preferred to litigate his 24 claims in California. The Court does not consider this harm lightly. See Gulf Oil Corp. v. 25 Gilbert, 330 U.S. 501, 508 (1947) (“unless the balance [of equities] is strongly in favor of 26 the defendant, the plaintiff’s choice of forum should rarely be disturbed”). 27 Second, both Parties would face hardship if forced to litigate the trademark 28 infringement claim—the crux of both this action and the action in the Western District of 1 Washington—in two courts, on significantly different timelines, and with the risk of 2 inconsistent judgments. This factor thus favors issuing a stay. 3 Third, issuing a stay would dramatically simplify the “issues, proof, and questions 4 of law,” thereby promoting the efficient use of both judicial and party resources. Lockyer, 5 398 F.3d at 1109–10. The actions concern alleged trademark infringement or non- 6 infringement regarding the same trademark, U.S. Trademark Registration Number 7 3,510,923. (See supra Section I.) Both actions also concern alleged violations or non- 8 violations of California Business and Professions Code § 17200. (Id.) A ruling on these 9 claims by the Washington court would simplify, if not outright resolve, most of the claims 10 in the action before this Court. And to the extent additional claims remain in the action 11 before this Court, a ruling in the Washington court would help narrow the focus of this 12 Court to just those remaining issues. Although Bluemel argues that “this action includes 13 additional defendants and broader claims” (Doc. 23 at 14–15), a ruling by the Washington 14 court regarding whether Bluemel has the rights to the trademark at issue will simplify the 15 issues regardless of how many Defendants are named in each action. 16 Additionally, issuing a stay is consistent with the Court’s ability to consider judicial 17 economy in controlling its own docket. See Clinton, 520 U.S. at 706–07. The action in 18 the Western District of Washington has progressed significantly further than the action 19 pending before this Court. The Washington court has issued a scheduling order. (See W.D. 20 Wash. Action, ECF No. 31 at 1–4.) The deadline to complete discovery is November 27, 21 2026, and the jury trial is set for April 26, 2027. (Id.) The Washington court also granted 22 in part Image Comics’ motion for jurisdictional discovery, finding that Image Comics was 23 entitled to limited, “targeted discovery regarding the sale of [Bluemel’s] physical books 24 and Kindle downloads” and the “publishing agreement” between Bluemel and 25 Amazon.com. (W.D. Wash. Action, ECF No. 33 at 5–6.) In making this finding, the 26 Washington court also denied Bluemel’s motion to dismiss for lack of personal jurisdiction 27 “with leave to refile after the completion of jurisdictional discovery, if appropriate.” 28 (Id. at 6.) Bluemel’s deadline to produce the limited jurisdictional discovery was April 16, 1 ||2026. (W.D. Wash. Action, ECF No. 49 at 1-2.) As of May 20, 2026, no renewed motion 2 || to dismiss has been filed. 3 In contrast, this Order marks the first ruling in this action. On January 7, 2026, 4 ||Image Comics filed its Motion to Dismiss or Stay (Doc. 20), and on January 16, 2026, 5 || Image Comics filed its Motion to Quash Service (Docs. 13, 21). These motions are pending 6 || before the Court, and even if the Court ruled on their merits today, a scheduling order 7 || would likely not issue for several weeks, and more likely months. See S.D. Cal. Civ. R. 8 || 16.1(c)(1}H{d) (indicating that a scheduling order will issue after the Case Management 9 || Conference, which occurs after the Early Neutral Evaluation, which occurs up to 45 days 10 after the filing of an answer). 11 In short, a stay may prevent Bluemel from litigating in his preferred forum. But the 12 || Court finds that this harm is outweighed by the anticipated simplification of the issues, the 13 || conservation of the Parties’ and the Court’s resources, and the need to avoid the risks of 14 || duplicative litigation and inconsistent judgments. 15 IV. CONCLUSION 16 Based on the foregoing reasons, the Court GRANTS the Motion to Stay (Doc. 20). 17 || Accordingly, the Motion to Quash Insufficient Service of Process (Docs. 13, 21), the 18 || Request for Judicial Notice (Doc. 19), and the Motion to Dismiss are DENIED without 19 || prejudice and with leave to refile if/after the stay is lifted. 20 This action is STAYED until August 24, 2026. The Parties shall file a joint status 21 ||report on or before August 17, 2026 that updates the Court on any relevant developments 22 ||in the action in the Western District of Washington. The Court will issue a further Order 23 upon receipt of the joint status report. 24 IT IS SO ORDERED. 25 Dated: May 20, 2026 Fe Le ; ? L 26 HON. RUTH BERMUDEZ MONTENEGRO 27 UNITED STATES DISTRICT JUDGE 28