Kansas Wheat Alliance, Inc. et al v. Thunderbird Seed Conditioning LLC et al

Filing 109

STIPULATED CONSENT JUDGMENT AND INJUNCTION. by Judge R. Brooke Jackson on 1/17/2014. (trlee, )

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF COLORADO
KANSAS WHEAT ALLIANCE INC. and
KANSAS STATE UNIVERSITY
RESEARCH FOUNDATION,
Plaintiffs,
Civil Action No. 12-cv-01171-MEH

vs.
THUNDERBIRD SEED CONDITIONING
LLC, THUNDERBIRD COMMODITIES
LLC, THUNDERBIRD LIVESTOCK &
LAND, INC., LINLY STUM, LANE
STUM, JAY STUM, MONTE STUM, and
FAITHWALK FARMS, INC.,

Defendants.

STIPULATED CONSENT JUDGMENT AND INJUNCTION

IT IS HEREBY STIPULATED AND AGREED on this 15th day of January, 2014, by and
between Kansas Wheat Alliance, Inc. and Kansas State University Research Foundation
(“Plaintiffs”) and Thunderbird Seed Conditioning, LLC, Thunderbird Commodities LLC,
Thunderbird Livestock & Land, Inc., Jay Stum, Monte Stum, Lane Stum, Linly Stum, and
Faithwalk Farms, Inc. (“Defendants”) collectively referred to as the “Parties,” that:
A.

The Parties stipulate and agree that this Court is the proper court of venue and
jurisdiction for the action;

B.

The Parties have entered into a Settlement Agreement, dated January 10, 2014,
resolving all claims in this matter;

C.

The Parties have read and reviewed the stipulations and terms of this Consent
Judgment and Injunction and understand the nature, terms, and contents of this
Consent Judgment and Injunction;

D.

The undersigned representatives certify that he or she is fully authorized to enter into
the terms and conditions of this Consent Judgment and Injunction and to fully bind
the Parties; no original signature is required - a facsimile signature is permitted;

E.

The Defendants stipulate and agree that Plaintiffs own or license valid and
enforceable intellectual property rights to certain wheat seed varieties by virtue of
various U.S. Plant Variety Protection Act Certificates, including those varieties
known as: Fuller, Danby, Everest, Jagger, Overley, RonL, and Tiger; Defendants
make no express or implied admission of liability for infringement;

F.

The Parties accept the following terms and conditions for purposes of settlement of
this case and consent to the entry of a final Judgment according to such terms and
conditions stated below, and the Parties agree to be subject to the continuing
jurisdiction of the Colorado United States District Court to enforce the terms of this
Consent Judgment and Injunction. Accordingly, it is agreed by the Parties that a
Final Judgment should be entered in this cause adopting the following terms.

NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED THAT
this Consent Judgment shall be entered and the Defendants shall immediately inform all successors,
assigns, officers, agents, employees, representatives, and all other entities or persons in active
concert or participation with Defendants of the followings terms and conditions of this Consent
Judgment:

Page 2 of 4

2.

Prohibited Activities under the Plant Variety Protection Act. The Defendants

and all successors, assigns, officers, agents, employees, representatives, and all other entities or
persons in active concert or participation with the Defendants are hereby enjoined and permanently
restrained from conditioning, selling, planting, marketing, delivering, shipping, consigning,
exchanging, or transferring title or possession of all varieties owned or licensed by Plaintiffs, as
listed on Kansas Wheat Alliance’s website at http://www.kswheatalliance.org, without express
authorization from Plaintiffs. If any Defendants wish to condition wheat seed for others in the
future, and to protect against the violation of this Order, Defendants shall implement a system of
recordkeeping that requires the customer requesting seed to be conditioned to identify the wheat by
variety name to confirm it is not a variety owned or licensed by Plaintiffs. Defendants are to retain
such seed conditioning records for a period of three years.
3.

Dismissal with Prejudice. Subject to compliance with the other provisions of this

Order and with the terms of the Settlement Agreement dated January 10, 2014, the Parties hereby
agree to entry of DISMISSAL WITH PREJUDICE as to all claims brought or which could have
been brought, arising out of the instant litigation, each Party to bear its own fees and costs.
IT IS SO ORDERED.

_________________________________
UNITED STATES DISTRICT JUDGE
Dated this 17th day of January, 2014.

Page 3 of 4

AGREED TO AND ACCEPTED:
/s/ Jennifer H. Hunt
Jennifer H. Hunt
Nathan P. Flynn
Hill & Robbins, P.C.
1441 18th Street, Suite 100
Denver, CO 80202-1256
[e-mail]
[e-mail]

/s/ Mark Murphey Henry
Mark Murphey Henry
Adam L. Hopkins
Henry Law Firm
P.O. Box 8850
Fayetteville, AR 72703
[e-mail]
[e-mail]

Attorneys for Defendants Thunderbird
Livestock & Land Inc., Faithwalk Farms
Inc., Monte Stum, Jay Stum, and Lane
Stum

Darin J. Lang
Hall & Evans LLC
1125 Seventeenth Street, Suite 600
Denver, CO 80202
[e-mail]
Attorneys for Plaintiffs Kansas Wheat Alliance,
Inc. and Kansas State University Research
Foundation

/s/ Dana L. Eismeier
Dana L. Eismeier
Raul Chacon, Jr.
Burns Figa & Will, P.C.
6400 South Fiddlers Green Circle
Plaza Tower One, #1000
Greenwood Village, CO 80111
[e-mail]
[e-mail]
Attorneys for Defendants Thunderbird
Seed Conditioning LLC, Thunderbird
Commodities LLC and Linly Stum

Page 4 of 4