Heartland Recreational Vehicles LLC v. Forest River Inc

Filing 76

MOTION for Leave to File Excess Pages /Motion for Leave to File Brief in Excess of Twenty-five Pages by Plaintiff Heartland Recreational Vehicles LLC, Counter Defendant Heartland Recreational Vehicles LLC. (Irmscher, David)

UNITED STATES DISTRICT COURT Northern District of Indiana South Bend Division HEARTLAND RECREATIONAL VEHICLES, LLC, Plaintiff, v. FOREST RIVER, INC., Defendant. ) ) ) ) ) ) ) ) ) CASE NO.: 3:08-cv-490 TLS-CAN HEARTLAND'S MOTION FOR LEAVE TO FILE BRIEF IN EXCESS OF TWENTY-FIVE PAGES In accordance with Local Rule 7.1, Heartland Recreational Vehicles, LLC ("Heartland") respectfully moves the Court for leave to file a memorandum in excess of twentyfive (25) pages in order to adequately support its forthcoming Motion for Summary Judgment. Specifically, Heartland requests leave to file a brief not exceeding forty (40) pages in length. In support of its Motion, Heartland states the following: 1. Heartland counsel David Irmscher consulted with Forest River, Inc. ("Forest River") counsel Ryan Fountain, and Forest River does not object to this motion. 2. Forest River has asserted the following three counterclaims against Heartland: (1) inequitable conduct in the prosecution of United States Patent No. 7,278,650 (the "'650 Patent"); (2) "passing off" in violation of the Lanham Act, 15 U.S.C. 1125(a)(1)(A); and (3) criminal deception in violation of Ind. Code 35-43-5-3(6) and 34-24-3-1. BDDB01 5945633v1 3. Essentially, this case involves two separate counterclaims, one pertaining to the prosecution of the '650 Patent and the other pertaining to Heartland's alleged conduct at certain hotels on or about October 22, 2008. The facts and law relevant to Forest River's inequitable conduct counterclaim are wholly distinct from the facts and law relevant to Forest River's Lanham Act and criminal deception claims. 4. Forest River's Amended Answer, Defenses, and Counterclaims and its answers to Heartland's First Set of Interrogatories contain numerous allegations that Heartland must address in its Motion for Summary Judgment on Forest River's claim of inequitable conduct. Demonstrating the absence of any inequitable conduct during the prosecution of the '650 Patent will require a lengthy and comprehensive analysis of the respective deficiencies of each of these allegations. 5. Forest River's Lanham Act counterclaim fails as a matter of law for multiple independent reasons, each requiring an individualized analysis and a discussion of separate case law. 6. Forest River's criminal deception counterclaim also fails as a matter of law for multiple independent reasons. Though based on the same facts as Forest River's Lanham Act claim, the criminal deception claim is governed by completely separate statutory and case law authority and requires a separate legal analysis. 7. Because of the sheer volume of Forest River's inequitable conduct allegations and the existence of multiple deficiencies in Forest River's Lanham Act and criminal deception claims, Heartland may require forty (40) pages to fully and properly defend itself against Forest River's counterclaims. 2 BDDB01 5945633v1 8. Conservatively, Heartland requests that the Court grant leave to file a memorandum not exceeding forty (40) pages in length. However, Heartland pledges to keep the memorandum as brief as reasonably possible in the hope that the full forty (40) pages will not be necessary. WHEREFORE, Heartland respectfully requests leave to file a memorandum in excess of twenty-five (25) pages to support its forthcoming Motion for Summary Judgment. BAKER & DANIELS LLP /s/ David P. Irmscher David P. Irmscher (#15026-02) Abigail M. Butler (#22295-02) 111 East Wayne, Suite 800 Fort Wayne, Indiana 46802 Tel: 260.424.8000 Fax: 260.460.1700 david.irmscher@bakerd.com abigail.butler@bakerd.com ATTORNEYS FOR PLAINTIFF, HEARTLAND RECREATIONAL VEHICLES, LLC 3 BDDB01 5945633v1 CERTIFICATE OF SERVICE The undersigned counsel for plaintiff Heartland Recreational Vehicles, LLC, hereby certifies that a copy of the foregoing was served upon the following, this 17th day of December, 2009, by operation of the Court's electronic filing system: Ryan M. Fountain 420 Lincoln Way West Mishawaka, Indiana 46544-1902 /s/ David P. Irmscher David P. Irmscher 4 BDDB01 5945633v1