Bovino v. Levenger Company

Filing 69

ORDER granting 59 Motion to Dismiss; granting 62 Motion for Leave to Restrict ; granting in part and denying in part 66 Motion to Dismiss. The Court DISMISSES, with prejudice, Plaintiff's claim for direct infringement and any remaining claims against Defendant. Status Report due by 7/15/2015. By Judge Raymond P. Moore on 07/08/2015. (athom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 14–cv–00122–RM–KLM
JERALD A. BOVINO,
Plaintiff/Counter-Defendant,
v.
LEVENGER COMPANY,
Defendant/Counter-Plaintiff.

ORDER

This matter is before the Court on the following motions:
(1)

Plaintiff/Counter-Defendant Jerald A. Bovino’s (“Bovino” or “Plaintiff”) motion

to dismiss his claim for direct infringement (ECF No. 59);
(2)

Plaintiff’s motion to restrict public access to certain filings made by

Defendant/Counter-Plaintiff Levenger Company (“Levenger” or “Defendant”) (ECF No. 62);
and
(3)

Plaintiff’s motion to dismiss his claim for indirect infringement (ECF No. 66).

Defendant opposes, in part, Plaintiff’s motions to dismiss (ECF Nos. 59; 66) on the basis
Defendant argues that it is entitled to an award of attorneys’ fees and costs (ECF Nos. 60; 68).
For the following reasons, the Court:
(1)

GRANTS Plaintiff’s motion to dismiss his claim for direct infringement (ECF No.

59);

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(2)

GRANTS Plaintiff’s motion to restrict public access (ECF No. 62);

(3)

GRANTS, in part, Plaintiff’s motion to dismiss his claim for indirect infringement

(ECF No. 66); and
(4)

DENIES, in part, Plaintiff’s motion to dismiss his claim for indirect infringement

(ECF No. 66).
I.

LEGAL STANDARDS
A.

Voluntary Dismissal

Rule 41(a)(2) of the Federal Rules of Civil Procedure provides that
Except as provided in Rule 41(a)(1) [of the Federal Rules of Civil Procedure], an
action may be dismissed at the plaintiff’s request only by court order, on terms
that the court considers proper. If a defendant has pleaded a counterclaim before
being served with the plaintiff’s motion to dismiss, the action may be dismissed
over the defendant’s objection only if the counterclaim can remain pending for
independent adjudication. Unless the order states otherwise, a dismissal under
this paragraph (2) is without prejudice.
Fed. R. Civ. P. 41(a)(2).
B.

Restriction on Public Access to Documents

Pursuant to D.C.COLO.LCivR 7.2, a motion to restrict public access to documents filed
with the Court must: (1) identify the documents for which restriction is sought; (2) address the
interest to be protected and why such interest outweighs the presumption of public access; (3)
identify a clearly defined and serious injury that would result if access is not restricted; (4)
explain why no alternative to restriction is practicable or why only restriction will adequately
protect the interest in question; and (5) identify the level of restriction sought.

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II.

ANALYSIS
A.

Motions to Dismiss

Defendant’s objection (ECF Nos. 60; 68) to Plaintiff’s motions to dismiss (ECF Nos. 59;
66) pertains to its request for attorneys’ fees and costs. Such a request is not properly before the
Court in such a procedural posture. D.C. Colo. L. Civ. R. 7.1(d) (“A motion shall not be
included in a response or reply to the original motion. A motion shall be filed as a separate
document.”); see, e.g., Hines v. Jones, 373 F. App’x 890, 891-92 (10th Cir. Apr. 22, 2010)
(unpublished).
But Plaintiff’s motion to dismiss his indirect infringement claim against Defendant seeks
dismissal of all “claims against Defendant Levenger, with prejudice, with each party to bear
his/its own costs and attorneys’ fees.” (ECF No. 66 at 3.) In consideration of Defendants’
responses to the motions to dismiss and the pending counterclaims (ECF No. 33 at 10-11), the
Court:
(1)

GRANTS Plaintiff’s motion to dismiss his claim for direct infringement (ECF No.

59), to wit, the Court DISMISSES, with prejudice, Plaintiff’s claim for direct infringement;
(2)

GRANTS, in part, and DENIES, in part, Plaintiff’s motion to dismiss his claims

for indirect infringement (ECF No. 66), to wit, the Court (i) DISMISSES, with prejudice,
Plaintiff’s claim for indirect infringement; and (2) DENIES Plaintiff’s request that each party
bear his/its own costs and attorneys’ fees; and
(3)

DISMISSES, with prejudice, any of Plaintiff’s remaining claims against

Defendant.

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B.

Motion to Restrict Public Access

Plaintiff seeks a Level 1 restriction as to Exhibits C and D filed in connection with
Defendant’s response (ECF No. 61) to Plaintiff’s motion to dismiss. Plaintiff identifies the
interest to be protected is that the exhibits contain confidential proprietary information and nonparties’ business relationships. (ECF No. 62 at 3-4.) Plaintiff represents that such interests
outweigh the presumption of public access and, if access is not restrict, Plaintiff and its licensees
may be unfairly prejudiced by the disclosure of terms of the license agreement. (ECF No. 62 at
2-3.) Plaintiff identifies that no alternative to restriction is practicable. (ECF No. 62 at 4.)
The Court has reviewed the documents at issue. The Court finds that the requirements of
Local Civil Rule 7.2 have been met. Therefore, the Court GRANTS Plaintiff’s motion (ECF No.
62) to restrict public access to documents (ECF No. 61).
III.

CONCLUSION
Based on the foregoing, the Court:
(1)

GRANTS Plaintiff’s motion to dismiss his claim for direct infringement (ECF No.

59), to wit, the Court DISMISSES, with prejudice, Plaintiff’s claim for direct infringement;
(2)

GRANTS, in part, and DENIES, in part, Plaintiff’s motion to dismiss his claim

for indirect infringement (ECF No. 66), to wit, the Court (i) DISMISSES, with prejudice,
Plaintiff’s claim for indirect infringement; and (2) DENIES Plaintiff’s request that each party
bear his/its own costs and attorneys’ fees;
(3)

DISMISSES, with prejudice, any of Plaintiff’s remaining claims against

Defendant;
(4)

GRANTS Plaintiff’s motion to restrict access to public documents (ECF No. 62),

to wit, the Court RESTRICTS to Level 1 Access the filing at ECF No. 61.

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(5)

ORDERS Defendant to file a status report on or before July 15, 2015 as to the

status of its counterclaims against Plaintiff (ECF No. 33 at 10-11);
(6)

ORDERS the parties to file a joint-status report on or before July 15, 2015 as to

whether the in-court claim construction hearing set for August 17, 2015 (ECF Nos. 54; 64; 65) is
necessary in light of the Court’s order dismissing, with prejudice, all of Plaintiff’s claims against
Defendant; and
(7)

GRANTS leave to Defendant to file a motion for its costs and attorneys’ fees

upon final resolution of this matter.
DATED this 8th day of July, 2015.
BY THE COURT:

____________________________________
RAYMOND P. MOORE
United States District Judge

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