Predator International, Inc. v. Gamo Outdoor USA, Inc.

Filing 290

ORDER. The 239 Recommendation of United States Magistrate Judge is accepted. The 227 Motion to File a Supplemental Complaint and for Other Relief is denied. By Judge Philip A. Brimmer on 3/26/12.(mnfsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 09-cv-00970-PAB-KMT
PREDATOR INTERNATIONAL, INC., a Colorado corporation,
Plaintiff,
v.
GAMO OUTDOOR USA, INC., a Florida corporation, and
INDUSTRIAS EL GAMO, S.A., a Spanish corporation,
Defendants.

ORDER

This matter is before the Court on the Recommendation of United States
Magistrate Judge (the “Recommendation”) [Docket No. 239]. The magistrate judge
recommends that the Court deny the Motion to File a Supplemental Complaint and for
Other Relief [Docket No. 227] filed by plaintiff Predator International, Inc. Plaintiff filed
timely objections [Docket No. 241] to the Recommendation. Therefore, the Court will
“determine de novo any part of the magistrate judge’s disposition that has been
properly objected to.” Fed. R. Civ. P. 72(b)(3); cf. First American Mortg., Inc. v. First
Home Builders of Florida, No. 10-cv-00824-REB-MEH, 2010 WL 5230902, at *4 (D.
Colo. Dec. 15, 2010) (Hegarty, M.J.) (noting that “the denial of a motion to amend is a
dispositive issue that may be only recommended” by a magistrate judge) (emphasis
omitted).1

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The Recommendation contains a detailed Statement of the Case with which no
party has taken issue.

Federal Rule of Civil Procedure 15(d) provides in pertinent part that, “[o]n motion
and reasonable notice, the court may, on just terms, permit a party to serve a
supplemental pleading setting out any transaction, occurrence, or event that happened
after the date of the pleading to be supplemented.” Plaintiff seeks leave to file a
supplemental complaint containing three claims for relief: (1) a claim that the Court
enjoin defendants’ state court fraud claims pursuant to the Anti-Injunction Act (“AIA”),
see 28 U.S.C. § 2283; (2) a claim for a declaration that defendants do not have an
ownership interest in a patent forming the basis for plaintiff’s now-dismissed patent
infringement claim; and (3) a claim for abuse of process arising out of defendants’
assertion of certain state law claims against plaintiff. Having engaged in a de novo
review of plaintiff’s motion, the Court will deny plaintiff leave to file any of the
supplemental claims for substantially the same reasons as stated in the
Recommendation.
The Court, however, concludes that additional discussion of plaintiff’s delay in
raising its supplemental claims is in order. In regard to the second supplemental claim,
the Recommendation concluded that plaintiff’s motion was untimely, noting that plaintiff
offered no explanation for waiting more than a year to assert it, during which the
discovery deadline and dispositive motions deadline passed. See Docket No. 239 at
18. Plaintiff’s objections to the Recommendation provide an explanation for the delay
that only further emphasizes that plaintiff’s position is not well-founded. Plaintiff informs
the Court that the delay in asserting the patent ownership claim stems from an April 1,
2011 state court ruling on defendants’ fraud claims. Dissatisfied with that ruling, plaintiff
decided to seek relief in this Court via its AIA claim and, “[a]s long as it did this, it
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decided to add the patent ownership claim.” Docket No. 241 at 13. In short, the long
delay is a consequence of seeking an alternate and more favorable forum to resolve
that dispute. That fact provides no grounds to grant plaintiff’s motion to file its second
supplemental claim.
The Court also concludes that, in addition to the bases stated in the
Recommendation, plaintiff also unduly delayed seeking leave to assert its AIA claim. In
a September 9, 2010 order [Docket No. 160], the magistrate judge granted plaintiff
leave to file a fourth amended complaint. Plaintiff’s fourth amended complaint
voluntarily dismissed its patent infringement claim because plaintiff “discovered that it
cannot prove that it had standing to pursue these claims without a written assignment
from Mr. Lee Phillips, a co-inventor of the . . . Patent.” Docket No. 142 at 2. In the
September 9 Order, the magistrate judge denied defendants’ request for fees and costs
as a condition for granting plaintiff leave to amend.
The AIA prohibits federal courts from enjoining state court proceedings except in
three instances: “as expressly authorized by Act of Congress, or where necessary in aid
of its jurisdiction, or to protect or effectuate its judgments.” 28 U.S.C. § 2283. In its AIA
claim, plaintiff alleges that the denial of defendants’ request for fees and costs
precludes defendants’ state court fraud claims which are based on alleged
misrepresentations regarding plaintiff’s patent ownership interest. Defendants’ state
court fraud claims, however, have not been decided by this Court. “[W]hen a federal
court has not passed on a specific claim, the main concern raised by subsequent state
litigation is harassment of the opposing party. That concern is not to be taken lightly,
but it is the province of res judicata, a defense that a party is free to raise in the
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subsequent state-court suit . . . and that the state courts ‘are presumed competent to
resolve.’” Weyerhaeuser Co. v. Wyatt, 505 F.3d 1104, 1110-11 (10th Cir. 2007)
(citations omitted). Plaintiff filed a state-court motion to dismiss the fraud claims on res
judicata grounds, presenting the precise argument it now asserts in support of its
supplemental AIA claim. Only after the state court denied plaintiff’s motion to dismiss
the fraud claims on April 1, 2011, see Docket No. 227-1 at 14, ¶ 38(b) (basing its
supplemental complaint in part on the allegation that the “state court misapplied the law
of ‘issue preclusion’”), did plaintiff file the present motion on July 11, 2011, which
explains the delay at issue here. Delay born of such forum shopping is undue and is a
sufficient basis to deny plaintiff’s motion.2
Plaintiff also sought leave to reassert the patent infringement claim it voluntarily
dismissed with the filing of its fourth amended complaint. See Docket No. 227 at 14.
Plaintiff, however, does not object to the recommendation that the Court deny such
leave “even though [plaintiff] believes the magistrate judge erred in denying the motion
as to this claim.” Docket No. 241 at 21.
Finally, having concluded that plaintiff’s request for leave to file its supplemental
complaint must be denied, the Court will deny as moot plaintiff’s request for a separate
trial on that complaint.
For the foregoing reasons, it is
2

Similarly, plaintiff’s abuse of process claim turns on the November 15, 2010
assertion of claims in state court. Not until July 2011, after its motion to dismiss largely
failed in state court, did plaintiff seek to recover in this Court on an abuse of process
characterization of those claims. Plaintiff fails to identify how this long delay in filing the
present motion is explained by anything other than its desire to seek relief in a new
forum.
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ORDERED that Recommendation of United States Magistrate Judge [Docket
No. 239] is ACCEPTED. It is further
ORDERED that the Motion to File a Supplemental Complaint and for Other
Relief [Docket No. 227] filed by plaintiff Predator International, Inc. is DENIED.

DATED March 26, 2012.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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