Brooks v. Dunlop Manufacturing, Inc.

Filing 54

ORDER REQUIRING SUPPLEMENTAL BRIEFING. Signed by Judge Charles R. Breyer on 11/21/2011. (crblc1, COURT STAFF) (Filed on 11/21/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

United States District Court
For the Northern District of California

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No. C 10-04341 CRB

KENNETH C. BROOKS,

ORDER REQUIRING
SUPPLEMENTAL BRIEFING

Plaintiff,
v.

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DUNLOP MANUFACTURING INC.,

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Defendant.

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Plaintiff Kenneth C. Brooks filed this false patent marking action against Defendant

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Dunlop Manufacturing, Inc. in October 2010 as a qui tam relator.  The action was stayed in

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June 2011; Defendant filed a Motion to Lift Stay and Dismiss (dkt. 45), and the Court held a

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motion hearing on Friday, November 18, 2011. At the motion hearing, Plaintiff argued for

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the first time that the retroactive amendments to the false marking statute in the America

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Invents Act repudiate a contractual obligation that the government owed to him in violation

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of the Constitution, per Cherokee Nation of Ok. v. Leavitt, 543 U.S. 631, 646 (2005). The

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government responded briefly that it had no contract with Plaintiff, and that, even if there

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was such a contract, Plaintiff’s claim for breach would have to be brought in the Court of

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Federal Claims.

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In order to allow all parties to properly address Plaintiff’s new argument, the Court

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requires supplemental briefing. Specifically, all parties are directed to file briefs of no more

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than twelve pages by 5:00 p.m. on Wednesday, November 30, 2011, and are specifically to address

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United States ex. rel. Kelly v. Boeing Co., 9 F.3d 743, 748 (9th Cir. 1993), which held in the context

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of standing that the qui tam provisions of the False Claims Act “operate as an enforceable, unilateral

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contract,” whereby “[t]he terms and conditions of the contract are accepted by the relator upon filing

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suit.”

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IT IS SO ORDERED.

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CHARLES R. BREYER

Dated: November 21, 2011

UNITED STATES DISTRICT JUDGE

United States District Court
For the Northern District of California

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G:\CRBALL\2010\4341\order re supp briefing.wpd

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