Bad Boy Inc v. Spartan Mowers LLC

Filing 25

ORDER: The Court appreciates the parties' proposed Scheduling Order. Please review my comments on it, which are attached. We'll discuss at the hearing this afternoon. Signed by Judge D. P. Marshall Jr. on 2/8/2017. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
NORTHERN DIVISION

BAD BOY , Inc.

v.

PLAINTIFF

1:16-cv-114-DPM

SPARTAN MOWERS, LLC,
INTIMIDATOR, INC., and
RF PRODUCTS, INC.

DEFENDANTS

ORDER
The Court appreciates the parties' proposed Scheduling Order. Please
review my comments on it, which are attached. We'll discuss at the hearing
this afternoon.
So Ordered.

D.P. Marshall Jr.
United States District Judge

Case 1:16-cv-00114-DPM

Document 24 Filed 01/13/17

Page 6 of 13

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Feb . :;..01 7

. IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
NORTHERN DIVISION
)

BAD BOY, INC.,

)

Plaintiff,

)
)
)

v.

Honorable D. P. Marshall Jr.

)
)

SPARTAN MOWERS, LLC,
INTIMIDATOR, INC., and
RF PRODUCTS, INC.,

CaseNo. 1:16-cv-00114-DPM

)

Defendants.

)
)
)
)

PROPOSED SCHEDULING ORDER
Pursuant to Federal Rule of Civil Procedure 16(b), the Court orders:

•

Infringement, Invalidity, And Non-Infringement Contentions.
o

Disclosure Of Infringement Contentions. The patentee must file and serve
disclosures of the following information by ............... ..... .. ......... .. .. ... 18 April 2017
(a)

Each patent claim that is allegedly infringed by each opposing party;

(b)

For each asserted claim, the accused product of each opposing party of
which the patentee is aware. This identification shall be as specific as
possible. Plaintiff shall identify each accused product by name or model

number, if known .

(j;)

(c)

A chart identifying s cifically where each limitation of each asserted
patent claim is fo a within each accused product, including for each
limitation thats_µ party contends is governed by 35 U.S.C. § 112 ~ 6, the
identity of the s ructure(s), act(s), or material(s) in the accused product
that performs the claimed function.

(d)

Whether each claim limitation of each asserted claim is claimed to be
literally present or present under the doctrine of equivalents in the accused
product.

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o

Disclosure Of Invalidity Contentions. Any . party asserting invalidity or
unenforceability claims/defenses must file and serve disclosures containing the
following by ........................................................... :......... ..................... 16 May 2017
(a)

Each item of prior art that fom1s the basis for any allegation of invalidity
by reason of anticipation under 35 U.S.C. § 102 or obviousness under 35 .
U.S.C. § 103. For prior art that is a document, a copy of the document
should be provided to the patentee's counsel or be identified by Bates
Number if i · as reviously . produced. As to prior art that is not
documentary in nature, ~·
prior art sgall be identified with particularity
(by "who, what, when, and where " ~) as to publication date, sale date,
use date, source, ownership, inventorship, conception and any other
pertinent information.

Whether each item of prior art anticipates each asserted claim or renders it
obvious. If a combination of items or prior art makes a claim obvious,
~ ..-eaeft-stteh combination, and the reason why a person of ordinary skill in
the art would combine sJft_item~~ ·
(b)

~~·~

(c)

A chart identifying where specifically in each alleged item of prior art
each limitation of each asserted claim is found , including for each claim
limitation that such party is governed by 35 U.S.C. § 112 16, the identity
of the structure(s), act(s), or material(s) in each item of prior art that
performs the claimed function; and

(d)

For any grounds of invalidity based on 35 U.S.C. § 112 or other defenses,
the party asserting the claim or defense shall provide its reasons and
evidence why the claims are invalid or the patent unenforceable (other
ce to
than based on alleged inequitable conduct) and makes ec·
~&- StteH positions
relevant portions of the patent specification
shall be made in good faith and not simply proforma arguments. v-;::;._---..__

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Disclosure Of Non-Infringement Contentions. ~ 27 May 2017,
Defendants shall file and serve non-infringement contentions, which shall explain
Ke factual basis for any allegation that they do not infringe the patent-in-suit
either literally or under the doctrine of equivalents, including identifying what
claim limitations tha
re not present in the accused products and why

------

Deadline For Amending Infringement, Non-Infringement, And Invalidity
Contentions. Each party shall seasonably file amended infringement, invalidity,
or non-infringement contentions in accordance with Rule 26(e) of the Federal
Rules of Civil Procedure upon learning that the contention is incomplete or
incorrect. The parties should conduct timely discovery so that these contentions

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can be updated as soon as possible. Any amendment to a party' infringement,
invalidity, or non-infringement contentions, or other ea mg, th.at is necessary
due to the Court' s claim interpretation ruling, must be timel y made but in no
event later than one month after the Court's claim construction ruling.

•

Claim Construction Proceedings.

Pursuant to the decision

~arkman

b~/iMl-

>'7 v.s. 3'70
v. Westview Instruments, Inc. , 1 8. Ct. 138
-16

2.---"

(1 996), the following procedures will be followed for resolution of claim construction issues in
this case.
0

Initial Identification Of Disputed Claim Terms. The parties will confer to
determine what claim terms may need to be interpreted by the
Court by ........ ...... ..... .... .. .................. .... ...... ... .. ....... .. ........... .. .... .. .. .. .... 13 June 2017

0

July 2017, the parties shall exchange,
Proposed Interpretations.
but not file, a chart or table that lists for each disputed claim term the party's
proposed interpretation of the disputed claim term.

0

Final Identification Of Disputed Claim Terms Amo the Parties. Within one
e ul 1 2017), the
week after exchanging the claim chart above (o
parties shall confer again about the claim terms in ispute. At this meeting, the
parties shall attempt to narrow and finalize the claim terms that need to be
interpreted by the Court. If, at any time, the parties determine that a claim
construction hearing is not necessary, they shall notify the Court in a timely
matter. The parties shall set forth separately the construction of those relevant
claim terms on which the parties agree and prepare a joint chart or table listing the
disputed claim terms and the party' s proposed interpretation of the disputed claim
tenns.

0

Opening Claim Construction Briefs. The parties shall contemporaneously file
and serve their opening claim construction brief on or befeJt .. ..... .. 8 August 2017

0

0

~"'7

Responsive Claim Construction Briefs. The parties shall contemporaneously
file and serve any responsive claim construction brief on ~~
efefe ... .. .. ..... ..... ... ..... .. .. ..... .. .. .. ......... ...... .......... ......... .... .......... . 8 September 2017 .

Reply Claim Construction Briefs. The parties shall contemporaneously file and
serve any reply claim construction briefs on ~ September 22, 2017.

"

0

e.

Joint Claim Construction And Prehearing Statement. OH Of ~ore 29
September 2017, the parties shall file with the Court a joint claim construction
and prehearing statement, which shall contain (a) the construction of those
relevant terms on which the parties agree; (b) each party's proposed construction

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of each disputed term on a claim chart; (c) an identification of the t:ih~t each
0'-'ill be
party contends would require a disposition of the case in its favor
substantially conducive to promoting settlement; (d) the anticipated length of time
necessary for the Claim Construction Hearing; (e) the identity of any witnesses
that each party proposes to call and a brief description of the subject matter of the
witness' anticipated testimony; and (f) a list of other issues that might
appropriately be taken up at a prehearing conference prior to the Claim
Construction Hearing. Plaintiff shall also submit a copy of the final version of the
claim chart to the Court via email.
o

N e,J.
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Claim Construction Hearing. The Court will conduct a claim interpretation
hearing on
[Case Manager will schedule approximately one month /id
from reply brief deadline].
] (~ '1

•

Deadline To Request Any Pleading Amendment ............................. 6 November 2017

•

Deadline For Defendants To Give Notice If It Plans To Assert Inequitable
Conduct As a Defense ......................................................................... 6 November 2017

•

Fact Discovery Cutoff.................................. 90 days after Claim Construction Order

•

Expert Discovery.
o

Each party shall serve expert reports as required by Rule 26(a)(2), on issues where
that party bears the burden of proof, 120 days after Claim Construction Order;
on issues where a party does not bear the burden of proof, rebuttal expert reports
are due 150 days after Claim Construction Order; disclosure of reply expert
information by party having burden of proof on issue is due 180 days after Claim
Construction Order. The parties may agree to delay expert reports as to damages
if such an agreement is unlikely to delay the trial date,

o

All expert discovery shall commence so as to be completed by 210 days after
Claim Construction Order.

•

Dispositive motions due .. ....... .......... ..... .. .... 240 days after Claim Construction Order

•

Joint status report, including settlement conference request, due .. .. ....... 240 days after
Claim Construction Order

•

Deposition designations exchanged ... ......... 310 days after Claim Construction Order

•

Motions in limine due .... ............... ............... 330 days after Claim Construction Order

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•

Local Rule 26.2 pre-trial disclosure sheets due ...... .... ................... 340 days after Claim
Construction Order

•

Joint report on deposition designation disputes (if any) ................. 340 days after Claim
Construction Order

•

Trial briefs due ......... .... ... ... .. ........................ 350 days after Claim Construction Order

•

Jury Instructions (agreed or disputed) due .... ...... .. ...... .. ................. 360 days after Claim
Construction Order

•

Jury Trial, Jonesboro Courtroom 324 .................................... .................. ... ... ..... ............. ..

•

Amending Pleadings. Local Rule 5.S(e) requires a party to attach the proposed
amended pleading to the motion. Please make this attachment a redlined or comparison
copy showing all proposed changes. Counsel should confer about proposed
amendments. State in your motion to amend whether the change is agreed or opposed.

•

Protective Orders. Before filing a motion for approval, counsel should email a draft
order in WordPerfect or Word to chambers for review. Alert the law clerk on the case
to the draft' s submission. Avoid legalese. Short, plain orders are better than long,
complicated ones. Incorporate Fed. R. Civ. P. 5.2's mandate for redaction if practicable
before any filing under seal. The order should remain in effect no longer than one year
after litigation ends, not in perpetuity. Incorporate the procedure for discovery disputes,
see infra, to cover disputes about whether a document is confidential.

•

Discovery Disputes. Counsel should confer in good faith in person before bringing
any discovery dispute to the Court. Do not file motions to compel. Do not file a motion
to quash or for protective order unless there is an emergency. If the parties reach a
discovery impasse, they should file a joint report explaining the disagreement. File this
paper under the CM/ECF event called "Joint Report of Discovery Dispute." Your joint
report must not exceed ten pages, excluding the style and signature block. Each side
gets five pages. Do not file a motion asking for more pages. Use double spacing and
avoid footnotes. Attach documents (such as disputed written discovery or responses) as
needed. Redact any attachments as required by Federal Rule of Civil Procedure 5.2 to
protect confidential information. File the joint report sufficiently before the discovery
cutoff so that the dispute can be resolved and any additional discovery completed,
without undermining other pretrial deadlines. The Court will rule or schedule a hearing.
Alert the law clerk on the case to the joint report's filing. If a dispute arises during a
deposition, call chambers so the Judge can rule during the deposition.

•

Summary Judgment. Motions must comply with Federal Rule of Civil Procedure 56
and Local Rules 7.2 and 56.1. Make the complete condensed transcript of any
deposition cited an exhibit. Limit your Rule 56.1 statements to material facts. Include a
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specific supporting record citation for each fact asserted. Responding statements of fact
must repeat the statement being responded to-like a discovery response. Include a
specific supporting record citation for each fact disputed or asserted in the responding
statement. A party ' s substantial failure to follow these procedures will result in the
party having to correct its filing. lf the summary judgment papers are volmninous, the
Court would appreciate the parties sending a courtesy paper copy to chambers.

•

Deposition Designations. The Court strongly encourages the parties to use live
testimony, rather than testimony by deposition, at trial. If the parties nonetheless need
to use deposition testimony, then they must use the following procedure. Thirty days
before Local Rule 26.2 pre-trial disclosure sheets are due, the parties should exchange
deposition designations. As soon as practicable thereafter, counsel must meet and
confer in person. They should try hard to agree on what deposition testimony will be
presented at trial and resolve any objections, If any dispute or objection remains
unresolved, then the parties should file a joint report explaining the dispute on the same
date the pre-trial disclosure sheets are due. The parties must certify that they met and
conferred in person but failed to resolve the disputed issue. The parties should also
deliver to chambers a paper copy of the entire transcript of any deposition involved in
any dispute.

•

Jury Instructions. The Court will use its own introductory and general instructions .
The parties should submit proposed instructions only on elements and anything unusual
and proposed verdict forms. The Court strongly encourages the parties to confer and
agree on these instructions and forms . The parties should also submit an agreed
proposed statement of the case. Note authority on the bottom of the each proposed
instruction. Please explain the reason for any disputed instructions in your submission.
Send agreed and disputed instructions in WordPerfect or Word to
[e-mail]. Alert the law clerk on the case that you have
submitted the instructions.

•

Exhibits. The Court strongly encourages the parties to agree on as many of the
exhibits as possible. Deliver the original exhibits, and one copy, in three-ring binders to
the Courtroom Deputy on the Wednesday before trial starts. Please also include an
electronic copy.

•

Pre-Trial Hearing. It will be set by separate notice. We will address motions in
limine, deposition excerpts for use at trial , jury instructions, trial architecture, exhibits,
and voir dire.

•

Conflicts Of Interest. Counsel must check the Court's recusal list on file in the U. S.
District Clerk's Office to determine whether there is any conflict that might require
recusal. If any party is a subsidiary or affiliate of any company in which the Court has a
financial interest, counsel should bring that fact to the Court's attention immediately.

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Please communicate with Sherri Black, Courtroom Deputy, by email at
sherri_ [e-mail] to check your position on the calendar as the trial date
approaches . In the event of settlement, advise Sherri Black immediately.
SO ORDERED.

The Honorable D. P. Marshall Jr.
United States District Court Judge

Agreed to and approved by:
s/
Phil Campbell (AR 81028)
Eric Gribble (AR 2002192)
Haley Burks (AR 2011286)
FUQUA CAMPBELL, P.A.
Riviera Tower
3700 Cantrell Road, Suite 205
Little Rock, Arkansas 72202
Phone: [phone]
Facsimile: [phone]
Email: [e-mail]
Trent C. Keisling (#93226)
KEISLING & PIEPER, PLC
501 W. Cassatt
P.O. Box 10379
Fayetteville, AR 72703
Phone: [phone]
Facsimile: [phone]
Email: [e-mail]

Attorneysfor Plaintiff

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s/ Bradley E. Trammell
Bradley E. Trammell (AR 2016101 )
Adam S. Baldridge (TN 23488)
BAKER, DONELSON, BEARMAN, CALDWELL
& BERKOWITZ, PC
165 Madison Avenue, Suite 2000
Memphis, TN 38103
Telephone: [phone]
Email: [e-mail]
Email: [e-mail]
Robert L. Henry, III (AR 72054)
Perry Wilson (AR 00017)
BARBER LAW FIRM PLLC
3400 Simmons Tower
425 West Capitol Avenue
Little Rock, Arkansas 72201
Telephone: [phone]
Email: [e-mail]
Email: [e-mail]
Alfred F. Tom Thompson, III (AR 77133)
Kenneth P . Casey Castleberry (AR 2003109)
MURPHY, THOMPSON, ARNOLD,
SKINNER & CASTLEBERRY
555 East Main Street, Suite 200
P.O. Box 2595
Batesville, Arkansas 72503
Telephone: [phone]
Email: aftom200 l @yahoo .com
Email: caseycastleberry2003 @yahoo .com
Attorneys for Defendants

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