Warming Trends LLC v. Flame Designz LLC

Filing 30

ORDER by Chief Judge Philip A. Brimmer on 1/17/2023, re: 28 Warming Trends, LLC's Motion for Default Judgment and Permanent Injunction Against Defendant Flame DesignZ, LLC is DENIED without prejudice. ORDERED that, within fourteen days of the entry of this order, Warming Trends shall show cause why the breach of contract claim should not be dismissed due to the Court's lack of subject matter jurisdiction. ORDERED that 29 Warming Trends, LLC's Motion for Status Regarding its Motion for Default Judgment Against Defendant Flame DesignZ, LLC is DENIED as moot. (jtorr, )

Case 1:22-cv-00252-PAB-STV Document 30 Filed 01/17/23 USDC Colorado Page 1 of 16

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Case No. 22-cv-00252-PAB-STV
WARMING TRENDS, LLC,
Plaintiff,
v.
FLAME DESIGNZ, LLC,
Defendant.
____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on Warming Trends, LLC’s Motion for Default
Judgment and Permanent Injunction Against Defendant Flame DesignZ, LLC [Docket
No. 28].
I.

BACKGROUND 1
Plaintiff Warming Trends, LLC (“Warming Trends”) is a leading manufacturer of

burners and other fire pit accessories. Docket No. 1 at 1, ¶ 1. Warming Trends and
defendant Flame DesignZ, LLC (“Flame DesignZ”) are competitors. Id. at 8, ¶ 45. On
December 19, 2018, Warming Trends and Flame DesignZ executed a settlement and
release agreement (the “agreement”) to resolve certain disputes between the parties.
Id. at 3, ¶ 14; see also Docket No. 1-2 (copy of the agreement). The agreement
contained a non-competition provision whereby Flame DesignZ agreed it would not sell,

Because of the Clerk of Court’s entry of default, Docket No. 23, the factual allegations
in plaintiff’s complaint, Docket No. 1, are deemed admitted. See Olcott v. Del. Flood
Co., 327 F.3d 1115, 1125 (10th Cir. 2003).

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manufacture, or fabricate Jetted Flame Burners for five years from the date of execution
and would not sell, manufacture, or fabricate any jets to be used in Jetted Flame
Burners for twenty-one years from the date of execution. Docket No. 1 at 3-4, ¶¶ 15-16.
Furthermore, under the terms of the agreement, Flame DesignZ agreed that it could
only sell Jetted Flame Burners made by Warming Trends, which Flame DesignZ agreed
to acquire from an authorized Warming Trends distributor. Id. at 4, ¶ 17. The
agreement contained a narrow exception allowing Flame DesignZ to sell Jetted Flame
Burners produced by third parties if Flame DesignZ received confirmation in writing that
Warming Trends did not offer or could not manufacturer the required specifications for
the burner. Id., ¶ 18. “In early 2019, Warming Trends discovered that Defendant was
selling and offering for sale various burners, including Jetted Flame Burners, in violation
of the non-competition agreement” without an exception. Id., ¶¶ 19-20.
Warming Trends also discovered that Flame DesignZ was advertising certain
burners for sale on its website that it was not permitted to sell pursuant to the
agreement. Id., ¶ 21. Flame DesignZ’s website also included an unauthorized copy of
a Warming Trends video that it was not permitted to feature on the website. Id., ¶ 22.
On February 25, 2020, the U.S. Patent and Trademark Office issued U.S. Patent
No. 10,571,117 (the “’117 patent”), entitled “System and Method for Building
Ornamental Flame Displays.” Id. at 3, ¶¶ 10-11; see also Docket No. 1-1 (copy of the
’117 patent). Warming Trends owns all substantial rights and title to the ’117 patent.
Docket No. 1 at 2, ¶ 9. Flame DesignZ “sells, uses, causes to be used, provides,
supplies, or distributes various burners and fire pit systems that infringe at least claim 1

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of the ’117 patent,” including the “Eco Burner 2.0 burner.” Id. at 3, 5, ¶¶ 12, 28. Flame
DesignZ has knowledge of the ’117 patent. Id. at 5, ¶ 29.
The complaint asserts three claims against Flame DesignZ for: 1) patent
infringement; 2) breach of contract; and 3) Lanham Act violations. Id. at 5-8. Flame
DesignZ has not made an appearance in this case. On June 13, 2022, the Clerk of the
Court entered default as to Flame DesignZ. Docket No. 23. On September 6, 2022,
Warming Trends filed a motion for default judgment against Flame DesignZ. Docket
No. 28. Warming Trends is only moving for default judgment and relief for the breach of
contract and patent infringement claims. Id. at 8. Warming Trends seeks damages and
injunctive relief for the breach of contract claim and injunctive relief for the patent
infringement claim. Id.
II.

LEGAL STANDARD
In order to obtain a judgment by default, a party must follow the two-step process

described in Fed. R. Civ. P. 55. First, the party must seek an entry of default from the
Clerk of the Court under Rule 55(a). Second, after default has been entered by the
Clerk, the party must seek judgment under the strictures of Rule 55(b). See Williams v.
Smithson, 57 F.3d 1081, 1995 WL 365988, at *1 (10th Cir. June 20, 1995) (unpublished
table decision) (citing Meehan v. Snow, 652 F.2d 274, 276 (2d Cir. 1981)).
The decision to enter default judgment is “committed to the district court’s sound
discretion.” Olcott, 327 F.3d at 1124 (citation omitted). In exercising that discretion, the
Court considers that “[s]trong policies favor resolution of disputes on their merits.”
Ruplinger v. Rains, 946 F.2d 731, 732 (10th Cir. 1991) (quotation and citations omitted).
“The default judgment must normally be viewed as available only when the adversary

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process has been halted because of an essentially unresponsive party.” Id. It serves to
protect plaintiffs against “interminable delay and continued uncertainty as to his rights.”
Id. at 733. When “ruling on a motion for default judgment, the court may rely on detailed
affidavits or documentary evidence to determine the appropriate sum for the default
judgment.” Seme v. E&H Prof’l Sec. Co., Inc., No. 08-cv-01569-RPM-KMT, 2010 WL
1553786, at *11 (D. Colo. Mar. 19, 2010).
A party may not simply sit out the litigation without consequence. See Cessna
Fin. Corp. v. Bielenberg Masonry Contracting, Inc., 715 F.2d 1442, 1444-45 (10th Cir.
1983) (“[A] workable system of justice requires that litigants not be free to appear at
their pleasure. We therefore must hold parties and their attorneys to a reasonably high
standard of diligence in observing the courts’ rules of procedure. The threat of
judgment by default serves as an incentive to meet this standard.”). One such
consequence is that, upon the entry of default against a defendant, the well-pleaded
allegations in the complaint are deemed admitted. See 10A Charles Alan Wright &
Arthur R. Miller, Federal Practice & Procedure § 2688.1 (4th ed., 2022 rev.). “Even after
default, however, it remains for the court to consider whether the unchallenged facts
constitute a legitimate cause of action, since a party in default does not admit
conclusions of law.” Id. A court need not accept conclusory allegations. Moffett v.
Halliburton Energy Servs., Inc., 291 F.3d 1227, 1232 (10th Cir. 2002). Although
“[s]pecific facts are not necessary” in order to state a claim, Erickson v. Pardus, 551
U.S. 89, 93 (2007) (per curiam) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)), the well-pleaded facts must “permit the court to infer more than the mere
possibility of misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (quotations and

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alterations omitted). Thus, even though modern rules of pleading are somewhat
forgiving, “a complaint still must contain either direct or inferential allegations respecting
all the material elements necessary to sustain a recovery under some viable legal
theory.” Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008) (quotation and
citation omitted).
III.

ANALYSIS
A. Jurisdiction
Before addressing the merits of Warming Trends’s motion for default judgment,

the Court must determine whether it has subject matter jurisdiction over the case and
personal jurisdiction over Flame DesignZ. See Dennis Garberg & Assocs., Inc. v. PackTech Int’l Corp., 115 F.3d 767, 772 (10th Cir. 1997) (holding that “a district court must
determine whether it has jurisdiction over the defendant before entering judgment by
default against a party who has not appeared in the case”).
1. Personal Jurisdiction
The plaintiff bears the burden of establishing personal jurisdiction. Rambo v. Am.
S. Ins. Co., 839 F.2d 1415, 1417 (10th Cir. 1988). The plaintiff can satisfy its burden by
making a prima facie showing. Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d
1063, 1070 (10th Cir. 2008). The Court will accept the well-pled allegations of the
complaint as true in determining whether plaintiff has made a prima facie showing that
personal jurisdiction exists. AST Sports Sci., Inc. v. CLF Distrib. Ltd., 514 F.3d 1054,
1057 (10th Cir. 2008). If the presence or absence of personal jurisdiction can be
established by reference to the complaint, the Court need not look further. Id. The

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plaintiff, however, may also make this prima facie showing by putting forth evidence
that, if proven to be true, would support jurisdiction over the defendant. Id.
a) Service of Process
Proper service is a jurisdictional prerequisite to litigation. Jenkins v. City of
Topeka, 136 F.3d 1274, 1275 (10th Cir. 1998) (“Effectuation of service is a precondition
to suit.”). Without proper service, the Court lacks personal jurisdiction over a defendant.
Okla. Radio Assocs. v. Fed. Deposit Ins. Corp., 969 F.2d 940, 943 (10th Cir. 1992).
The Federal Rules of Civil Procedure provides that a corporation, partnership, or
unincorporated association can be served in the manner prescribed under Rule 4(e)(1)
for serving an individual. Fed. R. Civ. P. 4(h)(1)(A). Courts have applied Rule 4(h) to
limited liability companies. See Tague v. Mind Rocket, LLC, No. 20-cv-00230-REBKLM, 2020 WL 6710576, at *2 (D. Colo. Nov. 16, 2020); Avus Designs, Inc. v. Grezxx,
LLC, 2022 WL 17404426, at * 2 (D. Wyo. Dec. 2, 2022); Kuberski v. Cred X Debt
Recovery, LLC, No. 11-cv-03247-RPM-KLM, 2012 WL 2943726, at *4 (D. Colo. July 2,
2012). Rule 4(e)(1) allows service to be made “following state law” for either the state
where the district court is located or where service is made. Fed. R. Civ. P. 4(e)(1).
Warming Trends argues that service on Flame DesignZ was perfected under
Colo. Rev. Stat. § 7-90-704(2). Docket No. 28 at 4, ¶ 2. This Colorado statute provides
[i]f an entity that is required to maintain a registered agent pursuant to this part 7
has no registered agent, or if the registered agent is not located under its
registered agent name at its registered agent address, or if the registered agent
cannot with reasonable diligence be served, the entity may be served by
registered mail or by certified mail, return receipt requested, addressed to the
entity at its principal address. Service is perfected . . . [f]ive days after mailing.
Colo. Rev. Stat. § 7-90-704(2)(c). An LLC in Colorado is required to maintain a
registered agent. See Colo. Rev. Stat. §§ 7-80-204(1)(c), 7-90-701(1). Warming
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Trends provides evidence that Jessi Gentile is the registered agent of defendant and
that Warming Trends attempted to serve Ms. Gentile at 8616 Meadowlark Circle,
Highlands Ranch, Colorado 80126, the registered agent’s address listed on the
Colorado Secretary of State’s website. See Docket No. 21 at 1, ¶ 2 (citing Docket No.
18). Warming Trends provides evidence that service was unsuccessful at 8616
Meadowlark Circle, a residential address, because Ms. Gentile no longer lived at the
address. Id. (citing Docket No. 18). Warming Trends subsequently attempted to serve
Flame DesignZ at another business address, located at 8890 Federal Blvd., Unit 58D,
Denver, Colorado 80260, 2 but the property manager stated defendant was no longer
located at the address. See id. at 1-2, ¶ 3 (citing Docket No. 19). Finally, Warming
Trends’s investigation located Ms. Gentile at an address in Tennessee and plaintiff
unsuccessfully attempted service at that address three times. See id. at 2, ¶ 4 (citing
Docket No. 20). Because the registered agent could not be located at the listed
address or be served with reasonable diligence, the Court finds that Flame DesignZ
could be served “by registered mail or by certified mail, return receipt requested,
addressed to the entity at its principal address.” See Colo. Rev. Stat. § 7-90-704(2).
On March 9, 2022, Warming Trends mailed a copy of the complaint and
summons by certified mail, with a return receipt requested, to Flame DesignZ’s principal
address listed on the Colorado Secretary of State’s website, 8616 Meadowlark Circle,
Highlands Ranch, Colorado 80126. Docket No. 21 at 4, ¶ 11; see also Docket No. 21-1.

Warming Trends states that Flame DesignZ’s principal office address, listed on the
Colorado Secretary of State’s website, is 8616 Meadowlark Circle, Highlands Ranch,
Colorado 80126. Docket No. 21 at 2 n.1. Flame DesignZ has another business
address, 8890 Federal Blvd., Unit 58D, Denver, Colorado 80260, which is listed on
Google, Facebook, and other publicly available sources. Id.

2

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The Court accordingly finds that service on Flame DesignZ has been perfected under
Colo. Rev. Stat. § 7-90-704(2).
b) Due Process
“In determining whether a federal court has personal jurisdiction over a
defendant, the court must determine (1) whether the applicable statute potentially
confers jurisdiction by authorizing service of process on the defendant and (2) whether
the exercise of jurisdiction comports with due process.” Trujillo v. Williams, 465 F.3d
1210, 1217 (10th Cir. 2006) (quoting Peay v. BellSouth Med. Assistance Plan, 205 F.3d
1206, 1209 (10th Cir. 2000)). The Colorado long-arm statute, Colo. Rev. Stat. § 13-1124, has been construed to extend jurisdiction to the full extent permitted by the
Constitution, so the jurisdictional analysis here reduces to a single inquiry of whether
jurisdiction offends due process. See Dudnikov, 514 F.3d at 1070; Archangel Diamond
Corp. v. Lukoil, 123 P.3d 1187, 1193 (Colo. 2005). Personal jurisdiction comports with
due process where a defendant has minimum contacts with the forum state and where
those contacts are such that assuming jurisdiction does not offend “traditional notions of
fair play and substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316
(1945). Minimum contacts may be established under the doctrines of general
jurisdiction or specific jurisdiction. Howarth v. TCER, LLC, 20-cv-03230-PAB-KMT,
2021 WL 4775270, at *2 (D. Colo. Oct. 13, 2021).
Warming Trends alleges that “[d]efendant is a limited liability company organized
under laws of the State of Colorado with its primary place of business at 8890 Federal
Blvd., Unit 58D, Denver, Colorado 80260.” Docket No. 1 at 1, ¶ 2. For corporations,
“the place of incorporation and principal place of business are ‘paradig[m]. . . bases for

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general jurisdiction.’” Daimler AG v. Bauman, 571 U.S. 117, 137 (2014) (citation
omitted). “Courts have held that Daimler applies with equal force to limited liability
companies.” Bliss v. Change Healthcare Operations LLC, 2021 WL 706770, at *1 (W.D.
Okla. Feb. 23, 2021) (collecting cases). The Court finds that plaintiff's allegations that
Flame DesignZ is a Colorado LLC and that its primary place of business is in Colorado
are sufficient to establish that the Court has general personal jurisdiction over Flame
DesignZ. See Daimler, 571 U.S. at 137; Bliss, 2021 WL 706770, at *1; Howarth, 2021
WL 4775270, at *2.
2. Subject Matter Jurisdiction
Warming Trends argues that the Court has subject matter jurisdiction under 28
U.S.C. §§ 1331 and 1338(a) because this is an action for, among other causes of
action, patent infringement under 35 U.S.C. §§ 271, 281, 284-85. Docket No. 28 at 7;
see also Docket No. 1 at 2, ¶ 3. In its motion, Warming Trends does not address the
Court’s subject matter jurisdiction over the state law breach of contract claim. See
generally Docket No. 28.
At every stage of the proceeding, a federal court must satisfy itself as to its own
jurisdiction. See Niemi v. Lasshofer, 770 F.3d 1331, 1345 (10th Cir. 2014) (“A defect in
subject matter jurisdiction can never be waived and may be raised at any time.”)
(quoting Huffman v. Saul Holdings Ltd. P’ship, 194 F.3d 1072, 1076–77 (10th Cir.
1999)); Cunningham v. BHP Petroleum Gr. Brit. PLC, 427 F.3d 1238, 1245 (10th Cir.
2005) (absent an assurance that jurisdiction exists, a court may not proceed in a case);
Citizens Concerned for Separation of Church & State v. City & Cnty. of Denver, 628
F.2d 1289, 1297 (10th Cir. 1980) (noting that, in every case and at every stage of the

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proceeding, a federal court must satisfy itself as to its own jurisdiction). A court can
exercise subject matter jurisdiction over a state law claim through diversity jurisdiction or
supplemental jurisdiction. See 28 U.S.C. § 1332(a); 28 U.S.C. § 1367(a).
Pursuant to 28 U.S.C. § 1332(a), “district courts shall have original jurisdiction of
all civil actions where the matter in controversy exceeds the sum or value of $75,000,
exclusive of interest and costs, and is between . . . citizens of different States.” 28
U.S.C. § 1332(a). The citizenship of a limited liability company is determined, not by its
state of organization or principal place of business, but by the citizenship of all of its
members. See Siloam Springs Hotel, LLC v. Century Sur. Co., 781 F.3d 1233, 1237-38
(10th Cir. 2015) (“[I]n determining the citizenship of an unincorporated association for
purposes of diversity, federal courts must include all the entities’ members.”).
Pursuant to 28 U.S.C. § 1367(a), “in any civil action of which the district courts
have original jurisdiction, the district courts shall have supplemental jurisdiction over all
other claims that are so related to claims in the action within such original jurisdiction
that they form part of the same case or controversy under Article III of the United States
Constitution.” 28 U.S.C. § 1367(a). “A claim is part of the same case or controversy if it
derives from a common nucleus of operative fact.” Price v. Wolford, 608 F.3d 698, 70203 (10th Cir. 2010) (quotation and alteration marks omitted). “[T]he Supreme Court
repeatedly has determined that supplemental jurisdiction is not a matter of the litigants’
right, but of judicial discretion,” and “district courts may decline to exercise supplemental
jurisdiction.” Estate of Harshman v. Jackson Hole Mountain Resort Corp., 379 F.3d
1161, 1165 (10th Cir. 2004).

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The Court finds that it has subject matter jurisdiction over the patent
infringement claim under 28 U.S.C. § 1338(a). However, the allegations in the
complaint are insufficient to establish that the Court has diversity jurisdiction or
supplemental jurisdiction over the breach of contract claim. The complaint does not
establish that the Court has independent diversity jurisdiction over the breach of
contract claim because it fails to identify the individual members of each LLC and their
citizenships. See generally Docket No. 1; Century Sur. Co., 781 F.3d at 1237-38.
Furthermore, the complaint does not establish supplemental jurisdiction over the
breach of contract claim. For the patent infringement claim, the complaint states that
Flame DesignZ “sells, uses, causes to be used, provides, supplies, or distributes
various burners and fire pit systems that infringe at least claim 1 of the ’117 patent,”
including the “Eco Burner 2.0 burner.” Docket No. 1 at 3, 5, ¶¶ 12, 28. The ’117 patent
was issued in February 2020. Id. at 3, ¶ 10. For the breach of contract claim, the
complaint states that, “[i]n early 2019, Warming Trends discovered that Defendant was
selling and offering for sale various burners, including Jetted Flame Burners, in violation
of the non-competition agreement.” Id. at 4, ¶ 19. Warming Trends states in its motion
that it “is aware of three (3) breaching sales by Defendant subject to the terms of the
Settlement and Release Agreement.” Docket No. 28 at 3, ¶ 8. The complaint contains
no facts establishing that the breach of contract claim arises from the same “common
nucleus of operative fact” as the patent infringement claim, particularly since the alleged
breach of contract occurred before the patent was issued. See Wolford, 608 F.3d at
702-03. “Generally, claims arise out of a common nucleus of operative fact when they
involve the same witnesses, presentation of the same evidence, and determination of

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the same, or very similar, facts. AngioScore, Inc. v. TriReme Med., LLC, 666 F. App’x
884, 887 (Fed. Cir. 2016) (unpublished) (internal quotations and citation omitted).
Warming Trends fails to explain how Flame DesignZ’s breach of the settlement
agreement involves the same witnesses, evidence, or facts as the patent infringement
claim. See generally Docket No. 1; Docket No. 28. 3
Similarly, Warming Trends also fails to explain whether the Court has
supplemental jurisdiction based on the Lanham Act claim. Plaintiff’s motion does not
move for default judgment on the Lanham Act claim. See generally Docket No. 28. In
both the complaint and the motion, Warming Trends fails to provide any allegations
demonstrating that the three breaches of the settlement agreement involve the same
witnesses, evidence, or facts as the federal claim for Lanham Act violations. See
generally id; Docket No. 1.
Because Warming Trends has failed to demonstrate that the breach of contract
claim shares a common nucleus of operative fact with either the patent claim or the
Lanham Act claim, the Court does not have supplemental jurisdiction over the breach of
contract claim. See Wolford, 608 F.3d at 702-03; Trilithic, Inc. v. Wavetek U.S. Inc., 6
F. Supp. 2d 803, 806-07 (S.D. Ind. 1998) (holding that a breach of contract claim was
outside of the court's supplemental jurisdiction because the contract claim required the
To state a claim for patent infringement, a plaintiff must “(i) allege ownership of the
patent, (ii) name each defendant, (iii) cite the patent that is allegedly infringed, (iv) state
the means by which the defendant allegedly infringes, and (v) point to the sections of
the patent law invoked.” Hall v. Bed Bath & Beyond, Inc., 705 F.3d 1357, 1362 (Fed.
Cir. 2013). In contrast, the state law breach of contract claim requires proof of different
elements: 1) the existence of a contract; 2) plaintiff’s performance; 3) defendant’s
nonperformance; and 4) resulting damages. See Mahajan v. Boxcar Holdings, LLC,
2019 WL 399230, at *4 n.1 (D. Colo. Jan. 31, 2019) (citing W. Distrib. Co. v. Diodosio,
841 P.2d 1053, 1058 (Colo. 1992)).
3

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determination of completely different facts than the patent infringement claim). As a
result, the Court will deny the portion of the motion requesting default judgment on the
breach of contract claim due to plaintiff’s failure to establish the Court’s subject matter
jurisdiction over this claim. Within fourteen days of the entry of this order, Warming
Trends shall show cause why the breach of contract claim should not be dismissed due
to the Court’s lack of subject matter jurisdiction.
B. Default Judgment
The Court has subject matter jurisdiction over the patent infringement claim and
therefore will evaluate whether default judgment is warranted on that claim. The Court
must decide “whether the unchallenged facts constitute a legitimate cause of action”
such that a judgment should be entered. Bixler v. Foster, 596 F.3d 751, 762 (10th Cir.
2010) (quotation omitted). “There must be a sufficient basis in the pleadings for the
judgment entered.” Id. (quotation omitted). As previously mentioned, due to the entry
of default, the well-pled facts of the complaint are deemed admitted. Olcott, 327 F.3d at
1125.
Warming Trends’s claim of patent infringement arises under 35 U.S.C. § 271,
which states, “whoever without authority makes, uses, offers to sell, or sells any
patented invention . . . infringes the patent.” 35 U.S.C. § 271(a). To state a claim for
patent infringement, a plaintiff must “(i) allege ownership of the patent; (ii) name each
defendant; (iii) cite the patent that is allegedly infringed; (iv) state the means by which
the defendant allegedly infringes; and (v) point to the sections of the patent law
invoked.” Bed Bath & Beyond, Inc., 705 F.3d at 1362; see also Pso-Rite.com LLC v.

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Thrival LLC, No. 21-cv-00775-PAB-STV, 2022 WL 4536233, at *2 (D. Colo. Sept. 27,
2022).
Warming Trends asserts that it is the owner of the ’117 patent, which is a valid
and enforceable patent. Docket No. 1 at 2, 5, ¶¶ 9, 26; see also Docket No. 1-1.
Warming Trends names the defendant. Docket No. 1 at 1, ¶ 2. Warming Trends
asserts that “[d]efendant has infringed and continues to infringe at least claim 1 of the
’117 patent under 35 U.S.C. § 271(a), either literally or under the doctrine of
equivalents.” Id. at 5, ¶ 27. Warming Trends states that Flame DesignZ has and
continues to “manufacture, sell, offer for sale, use, cause to be used, provide, supply, or
distribute one or more burners including, but not limited to, the Eco Burner 2.0 burner
(the ‘Accused Instrumentalities’).” Id., ¶ 28. Warming Trends describes that the
Accused Instrumentalities infringes claim 1 of the ’117 patent because
[t]he Accused Instrumentalities include a modular burner system comprising a
plurality of burners, at least two of the burners including a nipple that is brass and
a jet that is brass; in each of the at least two of the burners: the nipple has a first
end that is threaded and a second end that is closed; the nipple has a side wall
between the first end and the second end, the side wall defining a bore, the bore
extends through the first end to the second end; the first end, second end, and
side wall of the nipple are of integral, one piece, construction free of joints; the
nipple has a threaded hole extending through the side wall of the nipple to the
bore; and the jet has a threaded end threadedly engaged with the threaded hole.
Id. at 5-6, ¶ 30.
The Court finds that Warming Trends is not entitled to default judgment on the
patent infringement claim. “[A] plaintiff cannot assert a plausible claim for infringement
under the Iqbal/Twombly standard by reciting the claim elements and merely concluding
that the accused product has those elements. There must be some factual allegations
that, when taken as true, articulate why it is plausible that the accused product infringes

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the patent claim.” Bot M8 LLC v. Sony Corp. of Am., 4 F.4th 1342, 1353 (Fed. Cir.
2021). The complaint recites verbatim the elements of claim 1 of the ’117 patent.
Compare Docket No. 1 at 5-6, ¶ 30 with Docket No. 1-1 at 20. The complaint contains
no other factual allegations describing the Accused Instrumentalities or how those
products infringe on the patent claim. See generally Docket No. 1; see also Sony Corp.
of America, 4 F.4th 1342 at 1355 (upholding district court’s conclusion that plaintiff did
not plausibly allege patent infringement where the allegations were conclusory and
merely tracked the claim language). Therefore, the “unchallenged facts” do not
“constitute a legitimate cause of action” such that a default judgment should be entered.
See Bixler, 596 F.3d at 762. Accordingly, the motion for default judgment is denied
without prejudice.
IV.

CONCLUSION
It is therefore
ORDERED that Warming Trends, LLC’s Motion for Default Judgment and

Permanent Injunction Against Defendant Flame DesignZ, LLC [Docket No. 28] is
DENIED without prejudice. It is further
ORDERED that, within fourteen days of the entry of this order, Warming Trends
shall show cause why the breach of contract claim should not be dismissed due to the
Court’s lack of subject matter jurisdiction. It is further

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Case 1:22-cv-00252-PAB-STV Document 30 Filed 01/17/23 USDC Colorado Page 16 of 16

ORDERED that Warming Trends, LLC’s Motion for Status Regarding its Motion
for Default Judgment Against Defendant Flame DesignZ, LLC [Docket No. 29] is
DENIED as moot.

DATED January 17, 2023.
BY THE COURT:
___________________________
PHILIP A. BRIMMER
Chief United States District Judge

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