MSPBO, LLC v. Adidas North America, Inc. et al

Filing 82

ORDER. ORDERED that Adidas counterclaims against MSPBO, PhatRat Technology, LLC, Paul Jonjak, and Curtis Vock are DISMISSED with prejudice. ORDERED that Garmins counterclaims against MSPBO, PhatRat Technology, LLC, Paul Jonjak, and Curtis Vock are DI SMISSED without prejudice. ORDERED that MSPBO, PhatRat Technology, LLC, Paul Jonjak, Curtis Vock, and Dynastream Innovations, Inc. are hereby terminated as parties to this action. ORDERED that Plaintiff MSPBO, LLCs Motion to Dismiss the Countercla im Asserted by Defendants Adidas North America, Inc., Adidas America, Inc. and Garmin International, Inc. and Non-Party Dynastream Innovations, Inc. [Docket No. 49] and PhatRat Technology LLC, Curtis Vock and Paul Jonjaks Motion to Dismiss Counterclaim and Brief in Support [Docket No. 59] are DENIED as moot by Judge Philip A. Brimmer on 09/11/14.(jhawk, ) (jhawk, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 13-cv-02287-PAB-KMT
(Consolidated with Civil Action No. 13-cv-03388-PAB-KMT)
MSPBO, LLC,
Plaintiff,
v.
GARMIN INTERNATIONAL, INC.,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on the Stipulated Dismissal with Prejudice (the
“stipulation”) [Docket No. 72] filed jointly by Plaintiff MSPBO, LLC (“MSPBO”) and
defendants Adidas North America, Inc. and Adidas America, Inc. (collectively “Adidas”)
and the Motion to Dismiss Counterclaim and Brief in Support [Docket No. 59] filed by
PhatRat Technology LLC, Curtis Vock, and Paul Jonjak.
The Court first turns to the stipulation. On February 3, 2014, Adidas filed
Defendants’ Amended Answer to Plaintiff’s First Amended Complaint and
Counterclaims (the “amended answer”), wherein Adidas answered MSPBO’s
allegations. See Docket No. 42 at 1-8. The pleading also purported to assert
counterclaims on behalf of Adidas, Garmin International, Inc. (“Garmin”), and
Dynastream Innovations, Inc. (“Dynastream”) “against Plaintiff MSPBO, LLC (‘MSPBO’),
PhatRat Technology, LLC (‘PhatRat’), Paul Jonjak, and Curtis Vock.” Id. at 1, 8. The
stipulation states that: “All claims and counterclaims brought by Adidas against any

party in this suit are dismissed with prejudice. This specifically includes all claims and
counterclaims brought by Adidas in . . . Defendant’s First Amended Answer to
MSPBO’s First Amended Complaint.” Docket No. 72 at 1-2. Having reviewed the
stipulation, the Court finds that Adidas’ voluntary dismissal of its counterclaims against
MSPBO, PhatRat, Mr. Jonjak, and Mr. Vock is under terms the Court considers proper
and will accordingly order such claims dismissed with prejudice.1 Fed. R. Civ. P.
41(a)(2), (c).
Before reaching the motion to dismiss filed by PhatRat, Mr. Jonjak, and Mr.
Vock, the Court must first determine whether, after the dismissal of all counterclaims
asserted by Adidas, any counterclaims by Garmin remain. Although a portion of the
amended answer purported to assert counterclaims on behalf of Garmin, Garmin has
failed to properly raise its counterclaims. The Federal Rules of Civil Procedure provide
for the assertion of a counterclaim within a pleading. Fed. R. Civ. P. 13(b) (“A pleading
may state as a counterclaim against an opposing party any claim that is not
compulsory.”). A party is not permitted to raise a counterclaim “separate from and
outside of a recognized pleading.” Allied Med. Associates v. State Farm Mut. Auto. Ins.
Co., 2009 WL 839063, at *1 (E.D. Pa. March 26, 2009); accord Microsoft Corp. v. Ion
Techs. Corp., 484 F. Supp. 2d 955, 965 (D. Minn. 2007) (“[c]ounterclaims, however,
must appear in a pleading”). Rule 7 does not list counterclaims as separate pleadings.
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The Court interprets the stipulation as voluntarily dismissing counterclaims
Adidas raised against MSPBO, PhatRat, Paul Jonjak, and Curtis Vock, entities
specifically named in Adidas’ amended answer. Thus, the Court does not reach the
issue of whether Adidas properly joined PhatRat, Mr. Jonjak, and Curtis Vock as
parties.
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See Fed. R. Civ. P. 7(a); Allied Med., 2009 WL 839063, at *2 (“Rule 7(a) does not
designate counterclaims as pleadings.”). Because Garmin did not join in Adidas’
answer to MSPBO’s allegations (and has not filed an answer of its own), Garmin fails to
raise its counterclaims “as part of a recognized pleading.” See Allied Med., 2009 WL
839063, at *2 (emphasis in original) (dismissing counterclaims where defendant had yet
to file an answer); see also Microsoft, 484 F. Supp. 2d at 965 (“a separate document
that contains counterclaims is not a permissible pleading”). Thus, to the extent Garmin
seeks to assert counterclaims against the above-mentioned parties, such claims are
dismissed without prejudice. Dynastream, who Garmin appears to have sought to join
as a counterclaim plaintiff, has not attempted to intervene or otherwise file a pleading
and therefore will be terminated as a party.
For the foregoing reasons, it is
ORDERED that Adidas’ counterclaims against MSPBO, PhatRat Technology,
LLC, Paul Jonjak, and Curtis Vock are DISMISSED with prejudice. It is further
ORDERED that Garmin’s counterclaims against MSPBO, PhatRat Technology,
LLC, Paul Jonjak, and Curtis Vock are DISMISSED without prejudice. It is further
ORDERED that MSPBO, PhatRat Technology, LLC, Paul Jonjak, Curtis Vock,
and Dynastream Innovations, Inc. are hereby terminated as parties to this action. It is
further
ORDERED that Plaintiff MSPBO, LLC’s Motion to Dismiss the Counterclaim
Asserted by Defendants Adidas North America, Inc., Adidas America, Inc. and Garmin
International, Inc. and Non-Party Dynastream Innovations, Inc. [Docket No. 49] and

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PhatRat Technology LLC, Curtis Vock and Paul Jonjak’s Motion to Dismiss
Counterclaim and Brief in Support [Docket No. 59] are DENIED as moot.

DATED September 11, 2014.
BY THE COURT:

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

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