Native Motion To Dismiss

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA

CRAIG IMMEL, d/b/a NATIVE
GEOTHERMAL,

Plaintiff,

V. Case No. 13-CV-123 GKF-FHM

NATIVE, INC.,

Defendant.

DEFENDANT NATIVE, INC.S MOTION TO DISMISS FOR LACK OF PERSONAL
JURISDICTION, FOR IMPROPER VENUE, AND FOR LACK OF STANDING; OR
ALTERNATIVELY, TO DISMISS, STAY OR TRANSFER UNDER THE FIRST-TO-
FILE RULE WITH OPENING BRIEF IN SUPPORT

Defendant Native, Inc. files this Motion to Dismiss, based on lack of personal
jurisdiction, improper venue and plaintiffs lack of standing. In the alternative, Defendant Native
requests that the Court dismiss or stay this action, or transfer it to the Western District of Texas,
based on a previously-filed lawsuit pending in that District.
I. OVERVIEW AND SUMMARY OF MOTION
1. Craig Immel filed this pro se trademark infringement action against Defendant
Native regarding Defendants use of the name Native. Defendant Native, however, is a Texas
corporation with its place of business in Austin, Texas. It does not have any offices, employees,
agents or representatives in this District and does not offer or provide any services in this
District. Consequently, Defendant Native is not amenable to personal jurisdiction in this
District. For the same reasons, venue is improper in this District.
2. Moreover, Immel claims he is doing business as Native Geothermal in an
apparent attempt to justify filing this action as a pro se plaintiff. Contrary to Immels
allegations, Native Geothermal is not a d/b/a for Immel, but is a limited liability company
Case 4:13-cv-00123-GKF-FHM Document 12 Filed in USDC ND/OK on 03/21/13 Page 1 of 11

2
organized under the laws of Oklahoma. Native Geothermal, LLC, not Immel, obtained a Texas
state trademark registration for Native and has applied for a Federal registration for this name.
Native Geothermal, LLC, not Immel, has repeatedly asserted that it owns rights in the name
Native and has demanded that Defendant stop using the name Native. Thus, Immel lacks
standing to bring this claim of trademark infringement.
3. Finally, based on Native Geothermal, LLCs repeated threats against Defendant
Native and its attempts to generate a likelihood of confusion when no confusion exists,
Defendant Native filed a lawsuit against Native Geothermal, LLC in the Western District of
Texas, seeking a declaratory judgment that Defendant Native was not infringing any trademark
rights of Native Geothermal, LLC, and that Native Geothermal, LLC committed fraud in
prosecuting its Texas state trademark application and its Federal trademark application for
Native (The Texas Lawsuit). Defendant Native also asserts in the Texas Lawsuit that Native
Geothermal, LLC set up a website at buildnative.net in a deliberate attempt to generate
confusion with Defendant Natives website at buildnative.com. Defendant Native filed the
Texas Lawsuit prior to Immels filing of the above-styled lawsuit. For this reason, the above-
styled lawsuit should be dismissed under the first-to-file rule.
4. In the event the Court decides not to dismiss this lawsuit for any of the reasons
stated above, Defendant Native alternatively requests that the Court stay this action or transfer it
to the Western District of Texas, which has personal and subject matter jurisdiction, and where
venue properly lies.
II. BACKGROUND
5. Defendant Native is a leader in green construction in Texas, including the
design and construction of zero energy homes. It also provides consulting, installation and

3
design services in Texas regarding renewable systems, such as solar panels, geothermal heat
pumps, solar hot water systems, rain water collection systems and wind power systems. See
Declaration of Lloyd Lee attached as Exhibit A, 2. In early 2012, Defendant, which had
previously used the name Hill Country Ecobuilders, formally changed its name to Native, Inc.,
because the term native is commonly used in a descriptive sense in connection with services in
the green construction field. Defendant Native has built on this perception by using the domain
name buildnative.com for its website. Lee Dec. 2.
6. Defendant Native operates only in Texas. Lee Dec. 3. It is not licensed in
Oklahoma, nor authorized to conduct business in Oklahoma. Id. It does not have any offices,
employees, agents or representatives in this District or elsewhere in Oklahoma. Id. It does not
provide any services in this District. Id.
7. In or around October, 2012, Lloyd Lee, the president of Defendant Native,
received an email from Craig Immel who said he was with Native Geothermal LLC. Lee Dec.
4, Exh. A-1. Mr. Immel said he had noticed the name change to Native and that Native
Geothermal had used Native Geothermal since 2011. Lloyd Lee called Mr. Immel after
receiving the email to discuss this matter. Lee Dec. 5. Mr. Immel told Mr. Lee that Native
Geothermals business is limited to geothermal drilling, which is a service that Defendant Native
does not provide. Id. Mr. Immel agreed with Mr. Lee that Defendant Native and Native
Geothermal were not competitors, but he said that investors in Native Geothermal were
concerned about possible confusion in the future, which is why he had contacted Defendant
Native. Id.
8. Several weeks after this call, Defendant Native received a letter from Mr. Immel
as managing member of Native Geothermal, LLC. Mr. Immel asserted in the letter that Native

4
Geothermal LLC has the exclusive rights in the name Native for a host of services related to
the green construction industry and renewable systems, and demanded that Defendant Native
stop using the name Native. Lee Dec. 6; Exh. A-2.
9. Defendant Native replied to this letter by once again pointing out that Defendant
Native and Native Geothermal were not competitors and that native was a fairly common
descriptive term in the field of green construction. Defendant Native reiterated that it did not
believe it was infringing on Native Geothermals rights. By letter dated J anuary 19, 2013, Mr.
Immel, on behalf of Native Geothermal LLC, responded to Defendant Native by again insisting
that Defendant stop using Native. Lee Dec. 7.
10. Native learned that after Native Geothermal, LLC heard about Defendant Natives
name change, it applied for a federal trademark registration for NATIVE. Lee Dec. 8; See
Declaration of Steven D. Smit attached as Exhibit B, 3, Exh. B-2. In its application, Native
Geothermal claimed to have used Native since at least J uly 2011 for renewable energy,
namely, solar energy, wind energy and geothermal energy, even though Native Geothermals
business is limited to geothermal drilling. Native Geothermal LLC also applied for a Texas State
trademark registration for NATIVE and the registration was issued on J anuary 3, 2013. Lee Dec.
8; Smit Dec. 4, Exh. B-3. In its Texas application, Native Geothermal claimed to have used
Native for renewable energy, namely, solar energy, wind energy and geothermal energy,
even though Native Geothermals business is limited to geothermal drilling.
11. Defendant Native also learned that Immel purchased the domain name
buildnative.net on December 2, 2012, and created a website for Native Geothermal in which
Native Geothermal claimed to perform many of the same services offered by Defendant Native
on its buildnative.com website. Lee Dec. 9; Smit Dec. 5-6, Exhs. B-4, B-5. Upon

5
information and belief, Native Geothermal took these actions in an attempt to generate customer
confusion between the parties.
12. Based on these events, Defendant Native filed a lawsuit in the Western District of
Texas Austin Division, seeking a declaratory judgment that Defendant Native is not infringing
the trademark rights, if any, that Defendant Native Geothermal has in the name Native (the
Texas Lawsuit). Lee Dec. 10; Smit Dec. 7, Exh. B-6 10. Defendant Native also seeks a
determination as to whether Native Geothermal committed fraud or other wrongful acts in
connection with its representations in the Federal and Texas trademark filings for Native, and a
declaratory judgment that these registrations are invalid. Exh. B-6 10. Additionally, Defendant
Native claims in the Texas Lawsuit that if Native and Native Geothermal LLC are considered
competitors in Texas, Native Geothermal committed acts of unfair competition relating to its
purchase of the domain name buildnative.net and creating a website in which Native Geothermal
claims to perform many of the same services offered by Defendant Native on its buildnative.com
website. Exh. B-6 12.
13. A copy of the complaint was emailed to Mr. Immel the day it was filed. Smit
Dec. 7, Exh. B-7. After unsuccessful attempting to formally serve Native Geothermal, LLC,
through its registered agent several times, formal service of the Texas Complaint occurred on
March 5, 2013. Smit Dec. 8, Exh. B-8.
III. ARGUMENT
A. The Court should dismiss based on lack of personal jurisdiction over
Defendant Native.

14. Plaintiff bears the burden of establishing that the Court has personal jurisdiction
over the Defendant Native. OMI Holdings, Inc. v. Royal Ins. Co. of Canada, 149 F.3d 1086,
1091 (10th Cir. 1998). Plaintiff cannot meet this burden. Due process requires that the

6
nonresident defendant's conduct and connection with the forum state are such that the
nonresident could have reasonably anticipated being haled into court in that state. Conoco Inc.
v. Agrico Chem. Co., 115 P.3d 829, 835, 2004 OK 83 (citing WorldWide Volkswagen Corp. v.
Woodson, 444 U.S. 286, 297 (1980)). To permit the exercise of personal jurisdiction over a
nonresident defendant, there must exist minimum contacts between the defendant and the forum
State. Intercon, Inc. v. Bell Atlantic Internet Solutions, Inc., 205 F.3d 1244, 1247 (10th Cir.
2000).
15. Defendant Native is a Texas corporation. Lee Dec. 3. It operates only in Texas.
It is not licensed in Oklahoma nor is it authorized to transact business in Oklahoma. It does not
have any offices, employees, agents or representatives in this District or elsewhere in Oklahoma.
It does not provide any services in this District. Lee Dec. 3. Specific jurisdiction does not
exist, because Defendant Native has not purposefully directed its activities at the residents of the
forum, and the litigation does not result from alleged injuries that arise out of or relate to those
activities. See Intercon, 205 F.3d at 1247. Similarly, general jurisdiction does not exist, because
Defendant Native does not have continuous and systematic general business contacts with this
forum. See Monge v. RG Petro-Mach. (Group) Co. Ltd., 701 F.3d 598, 614 (10th Cir. 2012)
(quoting Benton v. Cameco Corp., 375 F.3d 1070, 1080 (10th Cir. 2004).
B. The Court should dismiss based on improper venue.
16. Plaintiff asserts that venue is proper in this District, because he is based in this
District. This is not the proper test. Under 28 U.S.C. 1391, a civil action based on federal-
question jurisdiction, such as the Lanham Act claim alleged by Plaintiff, may be brought only
in (1) a judicial district where any defendant resides, if all defendants reside in the same State;
(2) a judicial district in which a substantial part of the events or omissions giving rise to the

7
claim occurred, or a substantial part of property that is the subject of the action is situated; or,
(3) a judicial district in which any defendant is subject to personal jurisdiction at the time the
action is commenced, if there is no district in which the action may otherwise be brought. Id.
This statute does not provide a basis for venue in this District.
17. As described above, Defendant Native does not reside in this District because
it is not subject to personal jurisdiction here. See 28 U.S.C. 1391(c)(2) (A corporation shall be
deemed to reside in any judicial district in which such defendant is subject to the courts personal
jurisdiction with respect to the civil action in question.). Defendant Native is a Texas
corporation and only operates in Texas. It is not licensed in Oklahoma nor is it authorized to
transact business in Oklahoma. It does not have any offices, employees, agents or
representatives in this District or elsewhere in Oklahoma.
18. Moreover, Plaintiffs claim that Defendant should not use the name Native --
is not based on acts or omissions of Defendant Native in this District, because Defendant does
not provide any services in this District, much less any services under the name Native. Lee
Dec. 3. Immel also cannot show that venue is proper based on the third prong of 28 U.S.C.
1391, because this action could have been brought in the Western District of Texas, where
Defendant Native resides and uses the Native name, and where a previously-filed action is
pending.
C. The Court should dismiss based on lack of standing.
19. Standing is a threshold question in every federal case, involving a combination
of constitutional limitations on federal court jurisdiction and prudential limitations on its
exercise. Warth v. Seldin, 422 U.S. 490, 498 (1975). The prudential standing doctrine
encompasses various limitations, including the general prohibition on a litigant's raising another

8
person's legal rights. The plaintiff generally must assert his own legal rights and interests, and
cannot rest his claim to relief on the legal rights or interests of third parties. See Wilderness
Soc'y v. Kane Cnty., Utah, 632 F.3d 1162, 1168 (10th Cir. 2011) (en banc). When making a rule
12(b)(1) motion, a party may go beyond the allegations in the complaint to challenge the facts
upon which jurisdiction depends, and may do so by relying on affidavits or other evidence
properly before the court. Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995).
20. Immel claims he is doing business as Native Geothermal in an apparent attempt to
justify filing this action as a pro se plaintiff when there is already a pending action in Texas
between Defendant Native and Native Geothermal. The evidence attached hereto shows
otherwise. Contrary to Immels allegation, Native Geothermal is not a d/b/a for Immel, but is a
limited liability company organized under the laws of Oklahoma. Smit Dec. 2, Exh.B-1.
Native Geothermal, LLC, not Immel, obtained a Texas state trademark registration for Native
and has applied for a Federal registration for this name. Smit Dec. 3, Exhs. B-2, B-3. Native
Geothermal, LLC, not Immel, has repeatedly asserted that it owns the name Native and has
demanded that Defendant stop using the name Native. Lee Dec. 4-7. Thus, Immel lacks
standing to bring this claim of infringement of purported trademark rights that belong to Native
Geothermal, LLC.
D. Alternatively, the Court should dismiss, stay or transfer this action based on
the first-filed Texas Lawsuit.

21. In addition to the other reasons stated above as to why this Court should dismiss
this action, the Court could also dismiss this action or transfer it to the Western District of Texas
Austin Division, based on the first-to-file rule. The Tenth Circuit generally follows the first-to-
file rule. See Hospah Coal Co. v. Chaco Energy Co., 673 F.2d 1161, 1163 (10th Cir. 1982)
(explaining general rule that when two courts have concurrent jurisdiction, the first court in

9
which jurisdiction attaches has priority to consider the case); O'Hare Intl Bank v. Lambert, 459
F.2d 328, 331 (10th Cir. 1972) (It is well established in this Circuit that where the jurisdiction
of a federal district court has first attached, that right cannot be arrested or taken away by
proceedings in another federal district court.); Cessna Aircraft Co. v. Brown, 348 F.2d 689, 692
(10th Cir. 1965) (The rule is that the first federal district court which obtains jurisdiction of
parties and issues should have priority and the second court should decline consideration of the
action until the proceedings before the first court are terminated.
22. As discussed above, Defendant Native filed the Texas Lawsuit, which includes
much of the same subject matter as the instant case, and provided notice to Plaintiff, prior to
Plaintiffs pro se filing of the above-entitled action. There is no question that the District Court
in the Western District of Texas has jurisdiction over the parties and that venue is proper in that
forum.
23. In the event that this Court has reservations about dismissal or transfer of this
action, Defendant Native alternatively urges the Court, at minimum, to stay this action. As
described above, the generally accepted rule is that the court in which the first-filed case was
brought should have the opportunity to address the first-filed rule and otherwise with regard to
determining which case should proceed. Accordingly, at a minimum, this Court should stay the
action to provide the Texas District Court with the opportunity to resolve these threshold issues.
WHEREFORE, Defendant Native, Inc. respectfully requests that Plaintiffs Complaint be
dismissed, or alternatively, that this action be stayed or transferred to the Western District of
Texas Austin Division. Defendant Native, Inc. further requests such other or additional relief
to which it may be justly entitled.


10
Dated: March 21, 2013 Respectfully submitted,

s/ Todd A. Nelson
Todd A. Nelson, OBA #15317
FELLERS, SNIDER, BLANKENSHIP,
BAILEY & TIPPENS, P.C.
321 S. Boston, Ste. 800
Tulsa, OK 74103-3318
Telephone: (918) 599-0621
Facsimile: (918) 583-9659
E-Mail: tnelson@fellerssnider.com

Steven D. Smit (Pro Hac Vice admission pending)
State Bar No. 18527500
GRAVES, DOUGHERTY, HEARON & MOODY, P.C.
401 Congress Avenue, Suite 2200
Austin, Texas 78701
Telephone: (512) 480-5653
Facsimile: (512) 480-5853
E-Mail: ssmit@gdhm.com

Attorneys for Defendant, Native, Inc.

#23948


11
CERTIFICATE OF SERVICE

I hereby certify that on the 21
st
day of March, 2013, I electronically filed the foregoing
with the Clerk of Court using the CM/ECF system and that I served the following via U.S.
certified mail, return receipt requested:

Craig Immel, Pro Se Plaintiff
P.O. Box 1586
Tulsa, Oklahoma 74101

s/ Todd A. Nelson
Todd A. Nelson

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OKLAHOMA
GEOTHERMAL,
Plaintiff,
V.
NATIVE, INC.,
Defendant.

Case No. 13 CV 123 GKF-FHM
DECLARATION OF LLOYD LEE
Lloyd Lee declares as follows:
1. My name is Lloyd Lee. I am over the age of twenty-one, suffer no legal
disabilities, and am fully competent to make this declaration. The statements contained herein
are within my personal knowledge and are true and correct.
2. I am president of Native, Inc., the named defendant in this action. Native is a
leader in "green" construction in Texas, including the design and construction of zero energy
homes. It also provides consulting, installation and design services in Texas regarding renewable
systems, such as solar panels, geothermal heat pumps, solar hot water systems, rain water
collection systems and wind power systems. Our company Native previously used the name Hill
Country Ecobuilders. In early 2012, we formally changed the name of the company to Native,
Inc. One reason we changed the name is because "native" is commonly used when talking about
services in the "green" construction field. Defendant Native has built on this perception by using
the domain name "buildnative.com" for its website.
3. Defendant Native operates only in Texas. It is not licensed in Oklahoma and is
not authorized to conduct business in Oklahoma. Native does not have any offices, employees,
Case 4:13-cv-00123-GKF-FHM Document 12-1 Filed in USDC ND/OK on 03/21/13 Page 1 of 5
Exhibit "A"
agents or representatives in the Northern District of Oklahoma or elsewhere in Oklahoma.
Additionally, Native does not offer or provide any services in the Northern District of Oklahoma.
4. In October 2012, I received an email from Craig Immel who said he was with
Native Geothermal LLC. I have attached as Exhibit A-I, a true and correct copy of this email.
Mr. Immel said he had noticed our name change to Native and that company used the name
Native Geothermal.
5. I called Mr. Immel after receiving the email todiscussthismatter.Mr. Immel told
me that Native Geothermal's business is limited to geothermal drilling, which is a service that
Defendant Native does not provide. Mr. Immel agreed with me that Defendant Native and Native
Geothermal were not competitors, but he said the investors in Native Geothermal were
concerned about possible confusion in the future, which is why he had contacted us.
6. On or about November 26, 2012, Defendant Native received a letter from Mr.
Immel as managing member of Native Geothermal, LLC. Mr. Immel asserted in the letter that
Native Geothermal LLC has the exclusive rights in the name "Native" for renewable energy
products and services, and was demanding that Defendant Native stop using the name "Native." I
have attached as Exhibit A-2, a true and correct copy of this letter.
7. Defendant Native replied to this letter by once again pointing out that Defendant
Native and Native Geothermal were not competitors and that 'native" was a fairly common
descriptive term in the field of "green" construction. By letter dated January 19, 2013, Mr.
Immel, on behalf of Native Geothermal, responded to Defendant Native by again claiming that
Native Geothermal owned the rights in the name Native and demanding that Defendant stop
using "Native."
8. Native Geothennal, LLC had applied for a federal trademark registration for
NATIVE after Mr. Immel learned about our name change. In that application, Native
Geothennal claims to have used NATIVE since 2011 for a wide variety of services in the
renewable energy field. We also learned that Native Geothennal LLC applied for a Texas State
trademark registration for NATIVE and made the same claim about its services in Texas. These
representations are contrary to Mr. Immel's representations to me that Native Geothennal was
only involved geothennal drilling.
9. We also learned that Mr. Immel purchased the domain name buildnative.net and
created a website in which Native Geothennal claimed to perfonn many of the same services
offered by Defendant Native on its buildnative.com website.
10. Based on these facts, Defendant Native filed a lawsuit in the Western District of
Texas - Austin Division on January 25, 2013, seeking, among other things, a declaratory
judgment that Defendant Native is not infringing the trademark rights, if any, that Defendant
Native Geothennal has in the name "Native" ("the Texas Lawsuit").
11. I declare that all statements made herein are true, and further that these statements
were made by me with knowledge that willful false statements and the like so made are
punishable by fine or imprisonment, or both, under 1001 of Title 18 of the United States Code.
March 21,2013
LLOYD LEE
1849087.13/2112013
From: Immel
Date: October 16,

Subject; 'satin GeQtbermat
Dear Lloyd,
I hope this 11l.essagefinds you domg and business is good,
My name is Craig Immel, and I founded a business called Nath'e Geothemlal LLC in
m commerce in Oklahoma, Texas and Colorado since July 1,
L \Ye ha'\"e been using the Nath,t Geothermal nllllie
Since our businesses ha';e similax nlU1H!S, md ' ... e offer similar goods and ser,:ices, I believe there is a strong chance that our potential
customers could easily confused, Since Native Geothemlai has lUI exdush:e trademark registration pending in the U,S. Patent and
Trademark Office [ L I \yanled to give and your company a friendly
heads up before you invest heaYily in using the Nati\"e brand.
If you have any in
Respectfull y,
Craig
Craig AP
iG'SHPA
X
Mobile:
F:ree:

'Ol'ltlL",,, 1 '"
EXHIBIT
j A--I
November 26, 2012
Via Email and USPS Certified Mail
Lloyd Lee
201 Cole Street
Austin, TX 78737
Dear Lloyd,
Thank you for your time on the telephone to discuss your company's recent use of the name "Native."
In selecting a name for my new company in the Spring of 2011, my team and I invested significant time, effort and expense in
thorough research and due diligence to ensure that other companies in the renewable energy and green building industry were
not already using the Native name. As you know, I have used Native in commerce since July 2011. We have also invested
significant time, effort and expense in marketing and promoting Native geothermal products and services in Oklahoma, Texas,
and Colorado and via the Internet.
My company already has trademark rights in Oklahoma, Texas and Colorado, and will soon have Federal trademark rights
nationwide. We can not foresee any scenario that would allow your company and my own to both use the name "Native" to
market our products and services. There is simply too much likelihood of confusion amongst our potential and existing
customers.
With these facts in mind, I must request that you discontinue the use of the word "Native" in all of its forms and/or
combinations with other words or logos, and in marketing and offering of your company's renewable energy products and
services. I would expect to see all usage of the name "Native" removed from your website, hard copy marketing materials, all
social media profiles, etc. no later than December 31, 2012. Please know that my preference is not to engage in litigating this
matter, and I wish you great success in your business.
Best regards,
Craig Immel
Managing Member
Native GeothermalllC
PO Box 1586
Tulsa, OK 74101
EXHIBIT
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OKLAHOMA
GEOTHERMAL,
Plaintiff,
V.
NATIVE, INC.,
Defendant.

Case No. 13 CV 123 GKF-FHM
DECLARATION OF STEVEN D. SMIT
Steven D. Smit declares as follows:
1. My name is Steve Smit. I am over the age of twenty-one, suffer no legal
disabilities, and am fully competent to make this declaration. The statements contained herein
are within my personal knowledge and are true and correct.
2. I am one of the attorneys for Native, Inc. I have attached to my declaration as
Exhibit B-1, a true and correct copy of a report from the Oklahoma Secretary of State showing
that Native Geothermal, LLC is a limited liability company organized under the laws of
Oklahoma. The report also shows that Craig Immel is listed as the Managing Member for Native
Geothermal, LLC.
3. I have attached to my declaration as Exhibit B-2, a true and correct copy of
documents from the website for the United States Patent and Trademark Office (USPTO),
showing that Native Geothermal, LLC filed an application to register the mark Native on
October 7, 2012.
4. I have attached to my declaration as Exhibit B-3, a true and correct copy of
records from the Texas Secretary of State showing that Native Geothermal, LLC filed an
Exhibit "B"
application to register the mark Native as a Texas state trademark and was issued a Texas state
registration on January 3,2013.
5. I have attached to my declaration as Exhibit B-4, a true and correct copy of screen
shots taken on January 14,2013 of the "Native" website located at buildnative.net.
6. I have attached to my declaration as Exhibit B-5, a true and correct copy of the
screen shot for the "Whois" report for the domain name buildnative.net, showing that Craig
Immel of Native Geothermal, LLC is the owner of the buildnative.net domain name.
7. I have attached to my declaration as Exhibit B-6, a true and correct copy of the
Complaint filed in the Texas Lawsuit. The Complaint was emailed to Mr. Immel on the same day
that it was filed. I have attached to my declaration as Exhibit B-7 a true and correct copy of the
cover letter to Mr. Immel that accompanied the Complaint.
8. We unsuccessful attempted to formally serve Native Geothermal, LLC, through
its registered agent, Mr. Immel several times, before finally perfecting service on March 5,2013.
I have attached to my declaration as Exhibit B-8, a true and correct copy of the Affidavit of
Service showing service of the Texas Complaint on Mr. Immel.
9. I declare that all statements made herein are true, and further that these statements
were made by me with knowledge that willful false statements and the like so made are
punishable by fine or imprisonment, or both, under 100 I of Code.
1848201.1 3/20/2013
NATIVE GEOTHERMAL LLC
Details
Filing Number:
3512331667
Name Type:
Legal Name
Status:
In Existence
Corp type:
Domestic Limited Liability Company
Jurisdiction:
Oklahoma
Formation Date:
11 Oct 2011
Registered Agent Information
Name:
CRAIG IMMEL
Effective:
9 Oct 2012
Address:
4203 SOUTH CINCINNATI AVENUE
City, State, ZipCode:
TULSA OK 74101
EXHIBIT
I "-,
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NATIVE
NATIVE Word Mark
Goods and
Services
IC 004. US 001 006015. G & S: Renewable energy, namely, solar energy, wind energy and
geothermal energy. FIRST USE: 20110721. USED IN ANOTHER FORM The mark was first used
anywhere in a different form other than that sought to be registered at least as early as 07/21/2011.
FIRST USE IN COMMERCE: 20110731
Standard
Characters
Claimed
Mark Drawing
Code
(4) STANDARD CHARACTER MARK
Serial Number 85748271
Filing Date October 8,2012
Current Basis 1A
Original Filing 1A
Basis
Owner (APPLICANT) Native Geothermal LIMITED LIABILITY COMPANY OKLAHOMA PO Box 1586 Tulsa
OKLAHOMA 74101
Type of Mark TRADEMARK
Register
Live/Dead
Indicator
PRINCIPAL
LIVE
http://tess2.uspto.govibin/showfield?f=doc&state=4006:9r1436.8.55
EXHIBIT
f,-2.
1/24/2013
Trademark Electronic Search System (TESS) Page 2 of2
I.HOME I SITE INDEX I SEARCH I eBUSINESS I HELP I PRIVACY POLICY
http://tess2. uspto.gov Ibinishowfield?f=doc&state=4006: 9r 143 6. 8. 5 5 1124/2013
Trademark/Service Mark Application, Principal Register
TEAS Plus Application
Serial Number: 85748271
Filing Date: 10/08/2012
NOTE: Data fields with the * are mandatory under TEAS Plus. The wording "(if applicable)" appears
where the field is only mandatory under the facts of the particular application.
The table below presents the data as entered.
TEAS Plus YES
MARK INFORMATION
* MARK
* STANDARD
CHARACTERS
USPTO-GENERA TED
IMAGE
LITERAL ELEMENT
YES
YES
NATIVE
*MARK STATEMENT The mark consists of standard characters, without claim to any particular font,
style, size, or color.
REGISTER Principal
APPLICANT INFORMATION
*OWNER OF MARK Native Geothermal
*STREET PO Box 1586
*CITY Tulsa
* STATE
(Required for U.S.
applicants)
*COUNTRY
*ZIP/POSTAL CODE
Oklahoma
United States
(Required for U.S. 74101
applicants only)
PHONE 888.978.8039
EMAIL ADDRESS
craigimmel@nativegeothermal.com
AUTHORIZED TO
COMMUNICATE VIA Yes
EMAIL
WEBSITE ADDRESS www.NativeGeothermal.com
LEGAL ENTITY INFORMATION
*TYPE LIMITED LIABILITY COMPANY
* STATE/COUNTRY
WHERE LEGALLY Oklahoma
ORGANIZED
GOODS AND/OR SERVICES AND BASIS INFORMATION
* INTERNATIONAL
CLASS
IDENTIFICATION
*FILING BASIS
FIRST USE
ANYWHERE DATE
FIRST USE IN
COMMERCE DATE
004
Renewable energy, namely, solar energy, wind energy and geothermal energy
SECTION l(a)
At least as early as 07/21/2011
At least as early as 07/31/2011
SPECIMEN FILE NAME(S)
ORIGINAL PDF
FILE
CONVERTED PDF
FILE(S)
(1 page)
ORIGINAL PDF
FILE
CONVERTED PDF
FILE(S)
(2 pages)
SPECIMEN
DESCRIPTION
\\TICRS\EXPORT16\IMAGEOUT16\857\482\85748271\xmll\FTKOOO5.JPG
Native Geothermal website screenshot (.pdf), Native Geothermal press release
7-31-2011 (.pdf)
ADDITIONAL STATEMENTS SECTION
*TRANSLA TION
(if applicable)
*TRANSLITERATION
(if applicable)
*CLAIMED PRIOR
REGISTRATION
(if applicable)
*CONSENT
(NAMEILIKENESS)
(if applicable)
*CONCURRENT USE
CLAIM
(if applicable)
USE OF THE MARK
IN ANOTHER FORM
MISCELLANEOUS
STATEMENT
The mark was first used anywhere in a different form other than that sought to
be registered at least as early as 07/2112011, and in commerce at least as early
as 07/30/2011.
The mark consists of standard characters, without claim to any particular font,
style, size, or color.
CORRESPONDENCE INFORMATION
*NAME
Native Geothermal
FIRM NAME
Native Geothermal
* STREET
PO Box 1586
*CITY
Tulsa
*STATE
(Required for U.S. Oklahoma
applicants)
*COUNTRY United States
*ZIP/POSTAL CODE 74101
PHONE 888.978.8039
*EMAIL ADDRESScraigimmel@nativegeothermal.com;craigimmel@gmail.com
* AUTHORIZED TO
COMMUNICATE VIA Yes
EMAIL
FEE INFORMATION
NUMBER OF
CLASSES
FEE PER CLASS
*TOTAL FEE PAID
1
275
275
SIGNATURE INFORMATION
* SIGNATURE
* SIGNATORY'S
NAME
ICraig Immel!
Craig Immel
* SIGNATORY'S
POSITION
SIGNATORY'S
PHONE NUMBER
* DATE SIGNED
Principal
888-978-8039
10/08/2012
Trademark/Service Mark Application, Principal Register
TEAS Plus Application
Filing Date: 10/08/2012
To the Commissioner for Trademarks:
MARK: NATIVE (Standard Characters, see
The literal element of the mark consists of NATIVE.
The mark consists of standard characters, without claim to any partiCular font, style, size, or color.
The applicant, Native Geothermal, a limited liability company legally organized under the laws of
Oklahoma, having an address of
PO Box 1586
United States
requests registration of the trademark/service mark identified above in the United States Patent and
Trademark Office on the Principal Register established by the Act of July 5, 1946 (15 U.S.C. Section 1051
et seq.), as amended, for the following:
For specific filing basis information for each item, you must view the display within the Input Table.
International Class 004: Renewable energy, namely, solar energy, wind energy and geothermal
energy
In International Class 004, the mark was first used by the applicant or the applicant's related company or
licensee at least as early as 07/2112011, and first used in commerce at least as early as 07/3112011, and is
now in use in such commerce. The applicant is submitting one specimen(s) showing the mark as used in
commerce on or in connection with any item in the class of listed goods and/or services, consisting of a(n)
Native Geothermal website screenshot (.pdf), Native Geothermal press release 7-31-2011 (.pdf).
Original PDF file:
Converted PDF file(s) (1 page)
Original PDF file:
Converted PDF file(s) (2 pages)
The mark was first used anywhere in a different form other than that sought to be registered at least as
early as 07/2112011, and in commerce at least as early as 07/3012011.
The mark consists of standard characters, without claim to any particular font, style, size, or color.
For informational purposes only, applicant's website address is: www.NativeGeothermal.com
The applicant's current Correspondence Information:
Native Geothermal
Native Geothermal
PO Box 1586
888.978.8039(phone)
craigimmel@nativegeothermal.com;craigimmel@gmail.com (authorized)
A fee payment in the amount of$275 has been submitted with the application, representing payment for 1
class(es).
Declaration
The undersigned, being hereby warned that willful false statements and the like so made are punishable by
fine or imprisonment, or both, under 18 U.S.C. Section 1001, and that such willful false statements, and
the like, may jeopardize the validity of the application or any resulting registration, declares that he/she is
properly authorized to execute this application on behalf of the applicant; he/she believes the applicant to
be the owner of the trademark/service mark sought to be registered, or, if the application is being filed
under 15 U.S.C. Section 1051(b), he/she believes applicant to be entitled to use such mark in commerce;
to the best of his/her knowledge and belief no other person, firm, corporation, or association has the right
to use the mark in commerce, either in the identical form thereof or in such near resemblance thereto as to
be likely, when used on or in connection with the goods/services of such other person, to cause confusion,
or to cause mistake, or to deceive; and that all statements made of his/her own knowledge are true; and
that all statements made on information and belief are believed to be true.
Signature: /Craig Immel! Date Signed: 10/08/2012
Signatory's Name: Craig Immel
Signatory's Position: Principal
RAM Sale Number: 19147
RAM Accounting Date: 10/09/2012
Internet Transmission Date: Mon Oct 08 16:00:12 EDT 2012
TEAS Stamp: USPTOIFTK-98.178.158.87-2012100816001298
7160-85748271-490ce632d42876885ba4bd4b76
539481 0Ia-CC-19147 -20121008135502233085
Case 4:13-cv-00123-GKF-FHM Document 12-2 Filed in USDC ND/OK on 03/21/13 Page 11 of 30Case 4:13-cv-00123-GKF-FHM Document 12-2 Filed in USDC ND/OK on 03/21/13 Page 12 of 30
..,
geothermal te,;fsa oklahoma .. };- .'-- Mere

!!II
PRWeb
Native Geothermal Offers Cost-Effective Systems for Cooling and Heating
Buildings
The slimmer's soaring temperatures have many property owners looking to invest in energy
efficient, reliable and lalr maintenance cooling equipment for their bUildings. The populari(v of
enviromnentalZv friendZv grollnd source heat pllmp .s:vstems is growing quickZv for residential
and commercial bUildings. New companies like Native Geothermal are creating innovative
strategies for developing geothermal heating and cooling power.
Tulsa, OK July 31, 2011 -- Record electricity demand driven by extreme summer heat has put
renewable energy in the spotlight as property owners, businesses and communities seek reliable, cost-effective
ways to cool their buildings. Geothennal heat pump technology has seen growing interest recently, especially in
areas of the country that tend to experience extreme temperatures in both summer and winter. By tapping into
the constant temperature of the earth just below ground level, geothermal systems can provide clean, abundant
heating and cooling power 24/7. Ground source heat pumps, also known as geoexchange systems, can also
supply hot water for domestic use, or fiw pools and hottubs.
With rising energy costs and the desire for clean, renewable sources of power, geothermal has emerged as a
promising technology. Although geothermal systems can have higher upfront installation costs than traditional
HV AC systems, the systems typically pay for themselves quickly through much lower operating costs.
Nationally, there is growing awareness of the economic and environmental benefits of geothenllal energy.
According to a new report from Pike Research, annual geothermal unit shipments willmore than double by
2017, growth that will also be driven by tax incentives and building et1iciency policy support.
Natiye Geothermal is a new business created to provide innovative solutions for developing, financing and
installing geoexchange systems, especially for large properties like senior housing facilities, schools, hotels and
government buildings. The finn also assists Oklahoma, Texas and Colorado property owners with collecting
various utility and government incentives for energy efficiency, including the uncapped Federal tax credits for
. residential and commercial ground source heat pump systems.
###
PRWeb ebooks - Another online visibility tool from PRWeb
PRWeD
Contact Information
Cloaig Immel
Native Geothennal
bttp://NativeGeQtbermal.cQm
888-978-8039
Online Web 2.0 Velosion
You can read the online version of this press release
Page 212
If you have any questions regarding information in these press releases please contact the company listed in the press release. Our complete disclaimer
appears llillil. - PRWeb ebooks - Another QQ]jjle v ~ o l from PRWeb
R&giatration Numb&r: 801699156 R&gistration Date:
Status: RegIstered Date of ExpiratiDn:
i UO!iC<lfllS & Fuels Cla!'1s 4
De-sIgn Code(s):
Word Description: NAnVE:
Diselalmt'r:
Classification GoodsJServices
"Ianuary J. 2013
Janu!iI[)i 3, 2018
4 j Lubl1!cant5 &. F uel5 Glass 4 Renewable energy. name-Iv. solar en<:rgy, wi fld! mergy' and gcoftermal energj'
Registration Number:
Status:
Classlftcationtl):
Design Codels}:
Word Description:
Oisclaimer:
Registration Number:
Status:
Classification(s):
Oresi,gn Code{s):
Word Oescription:
Disclaimer:.
"La:&tupdam
Deeem()er 13, 2012
801699156 Registration Date:
Registered Date of Expiration:
lubricants & Fuels: Class 4
NATIVE
Document Number
4tdQ,1l511{JOU,l
80;1699156 Registration Date:
Registered Date of Expiration:
tut:mca.n5 &. fuels: Class 4
I'U\TIVE

January 3,20'33
3, :7018
Type

.)'lnuary 1 7013
3. 2018
Name
Gectnemlal LtC
tll..fljl.i.tll;JlllR:t:.
'i1ing Date
Jan uary' :;', 2(}13
M'dIre!ls
PO Box, 15B6
StatUI<
rile
Tu!s,'i OK 74101
EXHIBIT

Native Green Building Solutions I Powered by Native Geothermal Page 1 of 1
Native Green Building Solutions
Powered by NativeT
M
Geothermal
Since 2011, we've offered Native brand geothermal design, development, consulting and
construction services throughout Oklahoma, Texas and Colorado. Now, we're teaming up with sister
company, GPF Building Solutions, to offer even more valuable energy and environmental solutions
for your home, business or investment property.
Contact us today to learn how our NativeT
M
green building and renewable energy solutions work
together to improve indoor comfort and health, your local environment, and your bottom line.
EXHIBIT
I ?I-If
http://buildnative.netl 1/24/2013
About Us I Native Green Building Solutions Page 1 of 1
Powered by Native Geothermal
About Us
Native Geothermal and GPFTM Solutions have joined forces to offer Native Green
Building Solutions throughout Oklahoma, Texas and Colorado.
Over the years, we've visited hundreds of homes, businesses, investment properties and schools to
evaluate the buildings' energy and environmental performance, and to investigate the potential for
energy efficiency upgrades and renewable energy systems like geothermal. More often than not,
the best solution is a combination of cost effective, common sense strategies. By offering a full
range of resource efficiency and renewable energy solutions, Native Green Building Solutions can
offer a unique combination of convenient of turn-key sustainable design and construction services.
Contact us today to learn more.
http://buildnative.net/about-us/ 1124/2013
Green Building Services I Native Green Building Solutions Page 1 of 1
Powered by Native Geothermal
Green Building Services
At Native, we offer a wide range of valuable solutions, all designed to meet any of your economic,
environmental or social objectives. Our experts have the knowledge and experience to provide cost
effective, common sense sustainability solutions for any size home, business or investment
property.
ENERGV STAR Benchmarking
LEED Consulting
Investment Analysis
Renewable Energy
Energy Assessments
Insulation Systems
Project Management
Thermal Imaging & Analysis
Rebates & Incentives
Education & Training
Sustainable Communities
us to learn more.
http://buildnative.netlservices/ 1124/2013
Mark Searched:
Marks With Similar Ownership
craigimmel@nativegeothermal.co
m
(or related entities)
BUILDNATIVE,ORG DN-3
BUILDNATIVE.lNFO DN-4
20 13, Corsearch. All Rights Reserved.
BuildNative
DN-2
COMPANY: craigimmel@nativegeothermal.com
DOMAIN EXPIRATION 12/02/2013
DATE:
RECORD CREATED ON: 12/02/2012
REGISTRAR:
DOMAIN NAME:
DOMAIN STATUS:
WHOIS RECORD:
GODADDY.COM, LLC
BUILDNATIVE.NET
ACTIVE
Domain Name: BUILDNATIVE.NET
Registrar: GODADDY.COM, LLC
Whois Server: whois.godaddy.com
Referral URL: http://registrar.godaddy.com
Name Server: NS37.DOMAINCONTROL.COM
Name Server: NS38.DOMAINCONTROL.COM
Status: c1ientDeleteProhibited
Status: c1ientRenewProhibited
Status: c1ientTransferProhibited
Status: c1ientUpdateProhibited
Updated Date: 22-dec-20 12
Creation Date: 02-dec-20 12
Expiration Date: 02-dec-20 13
Last update of whois database: Mon,
21 Jan 2013 13:55:03 UTC
Registered through: GoDaddy.com, LLC
(http://www.godaddy.com)
Domain Name: BUILDNATIVE.NET
Created on: 02-Dec-12
Expires on: 02-Dec-13
Last Updated on: 22-Dec-12
Registrant:
craigimmel@nativegeothermal.com
PO Box 1586
United States
Administrative Contact:
Immel,
EXHIBIT
j -e,.t;
Page 190 of 256
Case 1:13-cv-00067 Document 1 Filed 01/25/13 Page 1 of 6
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
NATIVE, INC.,

Plaintiff,
v.
CIVIL ACTION NO. 1:13-cv-67
NA TIVE, GEOTHERMAL, LLC,
Defendant.
PLAINTIFF'S ORIGINAL COMPLAINT
Plaintifl: Native, Inc., (hereinafter "Plaintiff' or "Native"), files this Complaint,
complaining of Defendant Native Geothermal, LLC. In support thereof, Plaintiff Native
respectfully would show the Court as follows:
I.
PARTIES
1. Plaintiff Native is a Texas corporation having its principal place of business in
Austin, Texas.
2. Defendant Native Geothemlal is a nonresident limited liability company based in
Tulsa, Oklahoma. It may be served by serving its Managing Member, Craig Immel, 4203 South
Cincinnati Avenue, Tulsa, OK 74101.
n.
JURISDICTION AND VENUE
3. This action arises primarily under the Federal Declaratory Judgment Act, 28
U.S.c. 220] et seq., Section 43(a) of the Lanham Act, 15 U.S.c. 1125(a), and under the
supplemental jurisdiction provisions of 28 U.S.c. 1367(a). There is a justiciable controversy
between Plaintiff and Defendant, namely Defendant Native Geothermal is alleging that Plaintiff
Native is committing trademark infringement regarding Plaintiff's use of the name "Native."
EXHIBIT
i f'J _, _
i \:) "
Moreover, Defendant Native Geothennal is apparently attempting to sow confusion by
appropriating the domain name "buildnative.net," when it knows Plaintiff Native has been using
'buildnative.com," and by claiming to provide services it does not provide. Personal jurisdiction
and venue are proper in this District under the provisions of 28 U.S.c. 1391(b), because
Defendant Native Geothermal claims to conduct business in this judicial district and has sent
cease and desist letters to Plaintiff Native in this judicial district.
Ill.
FACTS
4. Plaintiff Native is a leader in "green" construction in Texas, including the design
and construction of zero energy homes. It also provides consulting services regarding the
installation and use of renewable systems, such as Solar Panels, geothermal heat pumps, solar
hot water systems, rain \vater collection systems and wind power systems. In early 2012,
Plaintiff, which had previously used the name Hill Countl)' Ecobuilders, fonnally changed its
name to Native, Inc., because the term "native" is commonly used in a descriptive sense in
connection with services in the "green" construction field. Plaintiff has built on this perception
by using the domain name "buildnative.com" for its website.
5. In or around November 2012, Craig Immel, the managing member of Defendant
Native Geothermal, sent a letter to Native, claiming that Native Geothermal has the exclusive
rights in the mark "Native" for a myriad of services related to the "green" construction industry
and renewable systems, and demanding that Plaintiff stop using the name "Native." Plaintiff's
representative discussed this matter with Mr. Immel and learned from Mr. Immel that Native
Geothermal's business is limited to geothermal drilling; a service that Plaintiff does not provide.
In other words, Plaintiff and Defendant are not actually competitors. The likelihood of confusion
is lessened even more, because Plaintiff's and Detendant's services are provided to
2
knowledgeable customers on a contractual basis. Moreover, upon int<mnation and belief, the
term "Native" is used by many companies and is commonly used in a descriptive sense in
connection with "green" construction and renewable systems.
6. Based on these facts, Plaintiff Native informed Mr. Immel that Plaintiff did not
believe it was infringing on Defendant's rights. By letter dated January 19, 2013, Mr. Immel
responded to Plaintiff by again insisting that Plaintiff stop using "Native" and stating "it is clear
that your continued use of the Native mark constitutes infringement on our trademark rights."
7. Native has learned that Native Geothermal applied for a federal trademark
registration for NATIVE on October 8, 2012. In its application, Native Geothernlal claimed to
have used "Native" since at least July 2011 for "renewable energy, namely, solar energy, wind
energy and geothermal energy," even though Native Geothermal's business is limited to
geothennal drilling. Native Geothennal also applied for a Texas State trademark registration for
NATIVE and the registration was issued on January 3, 2013. In its Texas application, Native
Geothern131 claimed to have used "Native" for "renewable energy, namely, solar energy, wind
energy and geothermal energy," even though Native Geothermal's business is limited to
geothermal drilling.
8. Plaintiff Native has also learned that Native Geothennal purchased the domain
name buildnative.net on December 2, 2012, and has created a website in which Native
Geothermal claims to pertorm many of the same services offered by Plaintiff Native on its
buildnative.com website. Upon information and belief, Native Geothermal's business is limited
to geothennal drilling, a service not even offered by Plaintiff Native. Upon information and
belief, Native Geothermal took these actions in an attempt to generate customer confusion. To
the extent that Plaintiff Native and Deiendant Native Geothermal are "competitors," Deiendant's
actions are a violation of Section 43(a) of the Lanham Act and Texas unfair competition law.
3
IV.
CAUSES OF ACTION
COUNT 1- DECLARATORY JUDGMENT
9. The allegations in Paragraphs 1-8 are incorporated herein by reference.
10. There is an actual and existing justiciable controversy between Plaintiff Native
and Defendant Native Geothetmal relating to Defendant's allegations that Plaintiff is infringing
Defendant's trademark rights in "Native." Pursuant to the Federal Declaratory Judgment Act, 28
U.S.c. 2201, et seq., Plaintiff Native is entitled to a declaratory judgment that Plaintiff is not
intringing the trademark rights, if any, that Defendant has in the name 'Native." Plaintiff Native
is also entitled to a determination as to whether Defendant committed fraud or other wrongful
acts in connection with its representations in the Federal and Texas trademark filings for "Native.
If the Court determines that Defendant received trademark registrations for "Native" through
fraud or other wrongful acts, Plaintiff Native is entitled to a declaratory judgment that these
registrations are invalid.
COUNT 2 - UNFAIR COMPETITION
11. The allegations in Paragraphs 1-8 are incorporated herein by reference.
12. Defendant Native Geothermal claims that Plaintitf Native is a competitor. In an
attempt to sow confusion, Native Geothermal purchased the domain name buildnative.net and
has created a website in which Native Geothermal claims to perform many of the same services
offered by Plaintiff Native on its buildnative.com website, even though Native Geothennal's
business is limited to geothermal drilling. To the extent that Plaintiff Native and Defendant
Native Geothermal are "competitors," Defendant's actions violate Section 43(a) of the Lanham
Act (15 U.S.C. lI25(a)) and Texas unfair competition law.
4
13. If Defendant continues this inappropriate conduct, Plaintiff Native will incur
damages for at least the monetary expenditures that Plaintiff Native will be required to make on
corrective advertising and education to inform consumers about the truth; and Plaintiff Native's
costs incurred in prosecuting this matter.
PRAYER
WHEREFORE, Plaintitf Native prays for relief against Defendant Native Geothermal, as
follows:
a. The Court enter a declaratory judgment, declaring that Plaintiff has not infringed on the
trademark rights, if any, of Defendant Native Geothermal in the Native name, that Defendant's
Texas trademark registration for "Native" is invalid and that any registration issuing from
Defendant's pending federal trademark application for Native is invalid;
b. That the Court enter judgment against Defendant and in favor of Plaintiff for any
actual damages incurred by Plaintiff as a result of Defendant's actions regarding the
buildnative.net domain site; and
c. That the Court grant Plaintiff Native such other and further relief to\vhich it may be
entitled.
Respectfully submitted,
Is/ Steven D. Smif
Steven D. Smit
State Bar]D No. 18527500
ssmitc{i)'gdhm.com
Matthew C. Powers
Texas State Bar No. 24046650
mpowers@gdhm.com
5
Of Counsel:
GRAVES, DOUGHERTY, FlEA RON & MOODY
A Professional Corporation
401 Congress Ave., Suite 2200, Austin, TX 78701
P.O. Box 98, Austin TX 78767-0098
(512) 480-5600
(512) 480-5853 Telecopy
A TTORNEYS FOR PLAINTIFF
NATIVE, INC.
6
I1
GRAVES DOUGHERTY HEARON & MOODY
A PROfESSIONAL CORPORATION
Steven D. Smit
512.480.5653
512.480.5853 (fax)
ssmit@gdhm.com
January 25, 2013
Via email: craigimmel@nativegeothermal.com
Mr. Craig Immel
Native Geothermal, LLC
P.O. Box 1586
Mailing Address:
P.O. Box 98
Austin, TX 78767
Re: Case No. l:13-CV-67; Native, Inc. v. Native Geothermal, LLC; In the United
States District Court, Western District of Texas, Austin Division
Dear Mr. Immel:
We represent Native, Inc. ("Native"). I have enclosed a courtesy copy of Plaintiff's
Original Complaint which was filed in Austin this morning by Native. Please understand that
Native's decision to file a lawsuit in this matter was not made lightly, and Native continues to be
interested in trying to resolve this matter before the parties incur additional costs. Please have
your attorney call me.
I look forward to hearing fi'om you.
SDS/jyl
Enclosure
cc: Lloyd Lee
Sincerely,
401 Congress Avenue Suite 2200 Austin, Texas 78701 512.480.5600 www.gdhm.com
EXHIBIT
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p, :; or ,.- }()tJ mHit surve nn tiE: phtinliff an ;m:;;wCf t.;J the aWv:hc;i ')f ? nwtinlt under Rule l2 iif
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whose murw and add\vss Ne Steven D, Srn;t, (;'1;(0'11.\5, Dougherty., Heernn & M0001, V.C,. 401 Conaf&iJS
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Plltm"cki
02/1912013
EXHIBIT
Case 1:13-cv-00067-SS Document 5 Filed 03/13/13 Page 2 of 2
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OK

Native Motion To Dismiss

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Native Motion To Dismiss

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

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