Soilworks LLC v Midwest Industrial Supply Inc

Filing 147

Proposed Jury Instructions by Soilworks LLC, Midwest Industrial Supply Inc. (Dosek, E)

Soilworks LLC v Midwest Industrial Supply Inc

Doc. 147

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E. SCOTT DOSEK #012114 JOHN P. PASSARELLI #16018 (NE) KUTAK ROCK LLP Suite 300 8601 North Scottsdale Road Scottsdale, AZ 85253-2742 [phone] Facsimile: [phone] Attorneys for Plaintiff/Counterdefendant/Counterclaimant Soilworks, LLC CRAIG A. MARVINNEY #0004951 (OH) ANASTASIA J. WADE #0082797 (OH) BROUSE MCDOWELL 1001 Lakeside Avenue, Suite 1600 Cleveland, OH 44114 [phone] Attorneys for Defendant/Counterclaimant/Counterdefendant Midwest Industrial Supply, Inc. JOHN M. SKERIOTIS #0069263 (OH) BROUSE MCDOWELL 388 S. Main Street, Suite 500 Akron, OH 44311-4407 (330-535-5711 Facsimile: [phone] Attorneys for Defendant/Counterclaimant/Counterdefendant Midwest Industrial Supply, Inc. UNITED STATES DISTRICT COURT IN AND FOR THE DISTRICT OF ARIZONA SOILWORKS, LLC, an Arizona corporation, Plaintiff / Counterdefendant / Counterclaimant, v. MIDWEST INDUSTRIAL SUPPLY, INC., an Ohio corporation authorized to do business in Arizona, Defendant / Counterclaimant / Counterdefendant. NO.: 2:06-CV-2141-DGC JOINT PROPOSED PRELIMINARY JURY INSTRUCTION

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Dockets.Justia.com

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The plaintiff and the defendant are competitors and both market dust control and soil stabilization products. Each party alleges that the other party is liable for problems they each believe arise from how they compete in that industry. You will be charged with determining whether either party is liable and any damages involved based on the evidence, testimony, and the law as I instruct you at the end of this trial. First, as to the plaintiff's, Soilworks LLC's, claim against the defendant, Midwest Industrial Supply, Inc, Soilworks claims that Midwest made false statements about Soilworks' products, and about the scope of patents issued to Midwest. Soilworks' claim is based on two letters sent by Midwest to one of Soilworks' distributor in Alaska, along with a comparison chart on Midwest's website and a press release written by Midwest. You must determine whether the statements made by Midwest were false. Also, that Midwest made these statements in bad faith. I will explain the meaning of these terms as this trial draws to a close. Second, as to Midwest's claims against Soilworks, Midwest alleges that Soilworks has falsely stated that it is a manufacturer. For this claim, you must determine whether the statement made by Soilworks was false, was a statement of fact, was deceptive, influenced the purchasing decision of consumers, and has injured Midwest by costing Midwest potential sales. Next, Midwest claims that Soilworks willfully infringed on one of Midwest's registered trademarks, a trademark called Soil-Sement® where the word "Sement" is spelled with an "S." This Court has already determined that Soilworks infringed on Midwest's trademark for Soil-Sement®. You must determine whether Soilworks' infringement was

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willful. If you find willful infringement, you must then determine the amount of monetary relief to which Midwest is entitled due to Soilworks' willful trademark infringement. Midwest also alleges that Soilworks' Durasoil product infringes two of Midwest's registered patents. If Midwest proves that Soilworks infringed its patents, you must

determine the amount of monetary relief to which Midwest is entitled due to Soilworks' patent infringement. Finally, Midwest claims that Soilworks has been unjustly enriched by its competitive practices, in essence, by the use of Midwest's Soil-Sement trademark and the infringement of Midwest's patents. You must determine whether Soilworks was enriched to Midwest's detriment. If you determine that Soilworks was unjustly enriched, you must then determine the amount of the unjust enrichment as monetary damage to Midwest. Dated this 9th day of January, 2009. KUTAK ROCK LLP

By

/s E. Scott Dosek E. Scott Dosek, Esq. John P. Passarelli, Esq. Suite 300 8601 North Scottsdale road Scottsdale, AZ 85253-2742 Attorneys for Plaintiff Soilworks, LLC

BROWSE MCDOWELL

By

/s Craig A. Marvinney Craig A. Marvinney, Esq. 1001 Lakeside Avenue, Suite 1600 Cleveland, OH 44114 Attorneys for Midwest Industrial Supply, Inc.

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BROWSE MCDOWELL

By

/s John M. Skeriotis John M. Skeriotis, Esq. 388 S. Main Street, Suite 500 Akron, OH 44311-4407 Attorneys for Defendant Midwest Industrial Supply, Inc.

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CERTIFICATE OF SERVICE I hereby certify that on January 9, 2009, the foregoing JOINT PROPOSED PRELIMINARY JURY INSTRUCTION was filed electronically. Notice of this filing will be sent to all parties by operations of the Court's electronic filing system. Parties may access this filing through the Court's system.

/s Amy S. Fletcher Amy S. Fletcher

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