Siemens Industry, Inc. v. SIPCO, LLC
Filing
143
ORDER AND OPINION granting as unopposed the [110, 112, 134] Motions to Seal; granting 113 Plaintiff's Motion for Summary Judgment; denying as moot 114 Plaintiff's Motion for Oral Argument; denying 122 Defendant's Motion for Summ ary Judgment; and denying as moot 133 Plaintiff's Motion to Strike Declaration Testimony. Plaintiff should inform the court by November 5, 2012, whether it still itends to pursue Count II. Defendant is directed to inform the Court, by November 5, 2012, whether it intends to pursue the breach of contract claim. Signed by Judge Julie E. Carnes on 10/25/12. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
SIEMENS INDUSTRY, INC.,
Plaintiff,
CIVIL ACTION NO.
v.
1:10-cv-2478-JEC
SIPCO, LLC,
Defendant.
O R D E R
&
O P I N I O N
This case is before the Court on defendant’s Motion to File its
Statement of Facts Under Seal [110], plaintiff’s Motion to File
Summary Judgment Documents Under Seal [112], plaintiff’s Motion for
Summary Judgment [113] and related Motion for Oral Argument [114],
defendant’s Motion for Summary Judgment [122], plaintiff’s Motion to
Strike Declaration Testimony [133], and plaintiff’s Motion to File
Documents Under Seal [134].
The Court has reviewed the record and
the arguments of the parties and, for the reasons set out below,
concludes that the Motions to Seal [110], [112] and [134] should be
GRANTED as unopposed, plaintiff’s Motion for Summary Judgment [113]
should be GRANTED and related Motion for Oral Argument [114] should
be DENIED as moot, defendant’s Motion for Summary Judgment [122]
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(Rev.8/82)
should be DENIED, and plaintiff’s Motion to Strike Declaration
Testimony [133] should be DENIED as moot.
BACKGROUND
This case involves a contract and patent dispute.
[4] at ¶ 1.)
(Am. Compl.
Defendant is the owner of three patents covering
certain wireless network technology.
(Id. at ¶¶ 2-4.)
In 2005,
defendant sued third party Cellnet Technology, Inc. (“Cellnet”) for
infringement of those patents. (Id. at ¶¶ 16-18.) During the course
of the litigation, Cellnet was consolidated with two other companies
under
the
name
Landis+Gyr,
Inc.
(“L&G”).
(Id.
at
¶¶
19-20.)
Defendant and L&G ultimately resolved their patent dispute in a
settlement agreement executed in May 2009 (the “L&G Settlement
Agreement”).
(Id. at ¶ 22.)
Pursuant to the L&G Settlement Agreement, defendant licensed its
patents
to
L&G
and
L&G’s
corporate
affiliates,
collectively in the Agreement as the “L&G Parties.”
identified
(Am. Compl. [4]
at ¶ 25 and L&G Settlement Agreement at §§ 7.1 and 7.4, attached to
Compl. [3] at Ex. D.)
In conjunction with the license, defendant
released the L&G Parties from “any and all . . . claims or demands
alleging
past
or
present
infringement”
Settlement Agreement [3] at § 5.1.)
Settlement
Agreement
that
it
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the
patents.
(L&G
Defendant also promised in the
would
2
of
“never
threaten,
assert
or
litigate against any L&G Party any claim or demand of any kind or
nature.”
(Id. at § 6.1.)
Approximately a year after defendant executed the L&G Settlement
Agreement, it filed a patent infringement claim against plaintiff in
the Eastern District of Texas.
(Am. Compl. [4] at ¶¶ 54-55.)
Plaintiff subsequently initiated the present action, based on its
alleged status as an L&G Party.
(Id. at ¶¶ 30-52.)
Plaintiff
contends that defendant breached the Agreement by pursuing the patent
litigation in Texas. (Id. at ¶¶ 70-80.) In its complaint, plaintiff
seeks damages for the alleged breach of contract, as well as a
declaratory judgment that defendant’s patent claims are barred by the
doctrines of license and release.1
(Id. at 17-19.)
Defendant moved to dismiss the complaint on the ground that
plaintiff, as a non-signatory, lacks standing to assert a claim under
the Agreement.2
(Def.’s Mot. to Dismiss [19].)
The Court denied the
motion, finding sufficient factual support for the argument that
1
In addition, plaintiff seeks a declaratory judgment of patent
non-infringement and invalidity.
(Am. Compl. [4] at ¶¶ 58-69.)
However, that claim is not relevant to the motions that are now
before the Court.
2
Defendant also argued that plaintiff’s complaint should be
dismissed under the first to file rule, because it is the mirror
image of the earlier filed Texas litigation. (Def.’s Br. in Supp. of
Mot. to Dismiss [19] at 16-25.) That argument was rendered moot by
the Texas court’s decision to
transfer the Texas action to this
Court pursuant to 28 U.S.C. § 1404(a). (Order [72] at 5-6.)
3
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plaintiff is an L&G Party entitled by the express terms of the
Settlement Agreement to enforce its provisions.
(Order [72] at 9.)
Following the Court’s order, defendant filed an answer and four
counterclaims
for
(Answer [74].)
patent
infringement
and
breach
of
contract.
The parties then completed the first phase of
discovery, which was limited to the contractual dispute.
(Jt.
Preliminary Report and Discovery Plan [80].)
Pursuant to their bifurcation plan, the parties have now filed
cross motions for summary judgment addressing the contractual issues.
(Pl.’s Mot. for Summ. J. [113] and Def.’s Mot. for Summ. J. [122].)
Plaintiff has also filed a related motion to strike declaration
testimony submitted by defendant in support of summary judgment.
(Pl.’s Mot. to Strike [133].)
In addition, both parties have filed
several motions requesting permission to file certain pleadings and
other documents under seal.
(Mots. to Seal [110], [112] and [134].)
DISCUSSION
I.
SUMMARY JUDGMENT MOTIONS
A.
Summary Judgment Standard
Summary
judgment
is
appropriate
when
the
pleadings,
the
discovery and disclosure materials on file, and any affidavits show
that there is no genuine issue as to any material fact and that the
movant is entitled to a judgment as a matter of law.
56(c).
A fact’s materiality is determined by the controlling
4
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FED. R. CIV. P.
substantive law.
(1986).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
An issue is genuine when the evidence is such that a
reasonable jury could return a verdict for the nonmovant.
Id. at
249-50.
Summary judgment is not properly viewed as a device that the
trial court may, in its discretion, implement in lieu of a trial on
the merits. Instead, Rule 56 of the Federal Rules of Civil Procedure
mandates the entry of summary judgment against a party who fails to
make a showing sufficient to establish the existence of every element
essential to that party’s case on which that party will bear the
burden of proof at trial.
322 (1986).
Celotex Corp. v. Catrett, 477 U.S. 317,
In such a situation, there can be no genuine issue as to
any material fact, as a complete failure of proof concerning an
essential element of the non-moving party’s case necessarily renders
all other facts immaterial.
Id. at 322-23 (quoting FED. R. CIV. P.
56(c)).
The movant bears the initial responsibility of asserting the
basis for his motion.
Id. at 323.
However, the movant is not
required to negate his opponent’s claim.
The movant may discharge
his burden by merely “‘showing’--that is, pointing out to the
district court--that there is an absence of evidence to support the
non[-]moving party’s case.”
Id. at 325.
After the movant has
carried his burden, the non-moving party is then required to “go
5
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beyond the pleadings” and present competent evidence designating
“specific facts showing that there is a genuine issue for trial.”
Id. at 324.
The court is to view all evidence and factual inferences
in a light most favorable to the non-moving party.
Samples v. City
of Atlanta, 846 F.2d 1328, 1330 (11th Cir. 1988). However, “the mere
existence of some alleged factual dispute between the parties will
not
defeat
an
otherwise
properly
supported
motion
for
summary
judgment; the requirement is that there be no genuine issue of
material fact.”
B.
Anderson, 477 U.S. at 247-48 (1986).
Applicable Law
The Settlement Agreement contains a choice of law provision that
requires the application of Georgia law to “all matters arising out
of or relating to th[e] Agreement.” (L&G Settlement Agreement [3] at
§ 10.12.) The Court thus applies Georgia contract law to resolve the
contractual dispute between the parties. See Grupo Televisa, S.A. v.
Telemundo Commc’ns Grp., Inc.,
485 F.3d 1233, 1240 (11th Cir.
2007)(“A federal court sitting in diversity will apply the conflictof-laws rules of the forum state.”) and Kinnick v. Textron Fin.
Corp., 205 Ga. App. 429, 430 (1992)(Georgia courts “will normally
enforce a contractual choice of law clause” absent a contrary public
policy).
In Georgia, the “cardinal rule” of contract construction is to
determine the intent of the contracting parties.
6
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O.C.G.A. § 13-2-3.
To make that determination, Georgia courts proceed through the
following three steps:
First, the trial court must decide whether the language is
clear and unambiguous. If it is, the court simply enforces
the contract according to its clear terms; the contract
alone is looked to for its meaning. Next, if the contract
is ambiguous in some respect, the court must apply the
rules of contract construction to resolve the ambiguity.
Finally, if the ambiguity remains after applying the rules
of construction, the issue of what the ambiguous language
means and what the parties intended must be resolved by a
jury.
Blue Cross & Blue Shield of Ga., Inc. v. Shirley, 305 Ga. App. 434,
437 (2010).
Applying the above framework, the construction of a
contract is generally a question of law for the Court rather than a
question of fact for the jury.
O.C.G.A. § 13-2-1.
See also Record
Town, Inc. v. Sugarloaf Mills Ltd. P’ship of Ga., 301 Ga. App. 367
(2009)(quoting § 13-2-1).
C.
Governing Contract Provisions
The L&G Settlement Agreement defines and references two separate
categories of L&G Parties.
(L&G Settlement Agreement [3] at 1, 3.)
As defined by the Agreement, the “Named L&G Parties” include only the
parties that are “listed on the signature page of th[e] Agreement.”
(Id. at 1.)
“L&G Parties” is a broader category that includes:
all Persons [or entities] that, prior to or on the date of
this Agreement, were or are directly or indirectly
controlled by, controlling or under common control with any
Named L&G Party.
7
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(Id. at § 1.1.)
In several of its provisions, the Agreement clearly
distinguishes between the L&G Parties and the Named L&G Parties.
(Id. at Arts. 2 and 3.)
By its plain terms, the Agreement confers upon the broader group
of L&G Parties a number of contractual rights and benefits.
§§ 5.1, 6.1 and 7.1.)
(Id. at
Section 5.1 of the Agreement states that:
The Named Releasing Parties, on behalf of themselves and
the other Releasing Parties, hereby release and forever
discharge the L&G Parties from any and all claims and
demands of every kind and nature . . . including claims or
demands alleging past or present infringement of any of the
Assigned Patents, Licensed Patents, Other Intellectual
Property Rights or Transferred Patents.
(L&G Settlement Agreement [3] at § 5.1.) The release conveyed by the
above language unambiguously applies to all L&G Parties rather than
just the Named L&G Parties.
Section 6.1 is similarly unambiguous.
Section 6.1 states that:
The Named Releasing Parties, on behalf of themselves and
the other Releasing Parties, hereby covenant and agree that
. . . they will never threaten, assert or litigate against
any L&G Party any claim or demand of any kind or nature .
. . whether arising prior to, on or after the date of this
Agreement and regardless of the subject matter.
(Id. at § 6.1.)
By executing § 6.1, defendant agreed not to sue or
threaten suit against any L&G Party on the patents in suit.
Finally, § 7.1 of the Agreement grants:
to the L&G Parties a nonexclusive, unlimited, perpetual,
worldwide, non-revocable, royalty free, paid up license,
without field of use restrictions, to use, make, have made,
sell, offer to sell, import and export any product or
8
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service that incorporates, uses, practices or embodies any
of the Assigned Patents or any claim thereof.
(Id. at § 7.1.)
Again, the intent of § 7 is clear:
to license the
patents in suit to all L&G Parties.
1.
Plaintiff is an L&G Party
beneficiary of the contract.
and
a
third-party
Defendant does not dispute that plaintiff is an L&G Party under
the L&G Settlement Agreement.
(Def.’s Br. [123] at 10-24.)
As
noted, the Agreement defines the term “L&G Party” broadly to include
any entity that was “under common control with [a] Named L&G Party”
prior to or on the date of its execution.
[3] at § 1.1.)
(L&G Settlement Agreement
As alleged in the complaint and confirmed in
discovery, plaintiff and L&G were under the common control of Siemens
AG between 1998 and 2002.3 (Pl.’s Statement of Material Facts (“Pl.’s
SMF”) [117] at ¶¶ 12-21.)
Nevertheless, defendant argues that plaintiff lacks standing to
enforce the Settlement Agreement because it is not a signatory to the
contract.
(Def.’s Br. [123] at 10-15.)
That argument is easily
dismissed. Under Georgia law, a non-signatory can enforce a contract
3
Siemens AG acquired L&G in 1998. (Pl.’s SMF [117] at ¶ 12.)
As part of the acquisition, L&G’s metering business was merged into
Siemens Metering, Inc. (“Siemens Metering”), a subsidiary under
Siemens AG’s control.
(Id. at ¶ 13.)
Siemens AG owned and
controlled Siemens Metering until 2002.
(Id. at ¶¶ 14-16.)
Plaintiff has been under Siemens AG’s control since at least 1998.
(Id. at ¶ 20.)
9
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“‘if it clearly appears from the contract that it was intended for
his benefit.’” Kaesemeyer v. Angiogenix, Inc., 278 Ga. App. 434, 437
(2006)(quoting Northen v. Tobin, 262 Ga. App. 339, 344 (2003)).
See
also Danjor, Inc. v. Corp. Constr., Inc., 272 Ga. App. 695, 697
(2005)(pursuant to O.C.G.A. § 9-2-20(b) “‘[t]he beneficiary of a
contract made between other parties for his benefit may maintain an
action
against
circumstance,
beneficiary.
the
the
promisor
on
non-signatory
the
contract’”).
qualifies
as
Under
a
that
third-party
Danjor, Inc., 272 Ga. App. at 697.
As an undisputed L&G Party, plaintiff clearly is a third party
beneficiary of the L&G Settlement Agreement. The Agreement expressly
confers upon all L&G Parties several important contractual rights,
including a covenant not to sue, a release and a license to the
patents in suit.
7.1.)
(L&G Settlement Agreement [3] at §§ 5.1, 6.1 and
Based on the plain language of the Agreement, there is no
question that it was “intended for [the] benefit” of all L&G Parties,
including non-signatories such as plaintiff.
Kaesemeyer, 278 Ga.
App. at 437 and Northen, 262 Ga. App. at 344 (finding that certain
unnamed creditors were third party beneficiaries of a settlement
agreement with standing to enforce its terms).
10
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2.
Section 10.8 does not preclude plaintiff’s claims.
Contrary to defendant’s suggestion, § 10.8 of the L&G Settlement
Agreement does not alter the analysis.
15.)
(Def.’s Br. [123] at 5, 8-
Section 10.8 states:
No Third Party Rights. Nothing expressed or implied in
this Agreement will be construed to give any Person, other
than the parties to this Agreement, any legal or equitable
right, remedy or claim under or with respect to this
Agreement.
(L&G Settlement Agreement [3] at § 10.8.)
According to defendant,
§ 10.8 prohibits any entity other than a Named L&G Party from
asserting rights under the Agreement. (Def.’s Br. [123] at 5, 8-15.)
As an initial matter, the Court finds that there is an ambiguity
concerning the meaning of the term “parties to this Agreement” as
used in § 10.8.
The Agreement expressly defines and references two
categories of parties:
Named L&G Parties and L&G Parties.
(L&G
Settlement Agreement [3] at 1, 3.)
If § 10.8 specified that only
Named
rights
L&G
Parties
could
assert
defendant’s interpretation would control.4
under
the
Agreement,
However, when considered
in the context of the other provisions of the Agreement, the generic
term “parties” could plausibly refer either to the Named L&G Parties,
4
Defendant notes that the Agreement could have used the phrase
“L&G Parties” in § 10.8 to clarify the exclusion of L&G Parties from
the limiting provision. (Def.’s Br. [123] at 15.) But the converse
is also true. That is, the Agreement could have used the phrase
“Named L&G Parties” in § 10.8 to clarify the inclusion of L&G Parties
in the limiting provision.
11
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as urged by defendant, or to the broader group of L&G Parties.
See
State Farm Fire and Cas. Co. v. Bauman, 313 Ga. App. 771, 774 (2012)
(a phrase is ambiguous when it “‘is of uncertain meaning, and may be
fairly understood in more ways than one’”)(quoting W. Pac. Mut. Ins.
Co. v. Davies, 267 Ga. App. 675, 680 (2004)).
Having identified an ambiguity in § 10.8, the Court must attempt
to resolve it by applying the rules of construction.
Blue Shield of Ga., Inc., 305 Ga. App. at 436.
is readily apparent in this case.
Blue Cross &
The proper resolution
The most relevant rule of
construction is the familiar maxim that:
The construction which will uphold a contract in whole and
in every part is to be preferred, and the whole contract
should be looked to in arriving at the construction of any
part.
O.C.G.A. § 13-2-2(4).
See also Forsyth Cnty. v. Waterscape Serv.,
LLC, 303 Ga. App. 623, 631 (2010)(“‘a court should, if possible,
construe a contract . . . in a manner that gives effect to all of the
contractual terms’”)(quoting Pomerance v. Berkshire Life Ins. Co. of
Am., 288 Ga. App. 491, 494 (2007)).
As
indicated
interpretation
of
in
§
the
10.8
Court’s
is
hard
previous
to
reconcile
provisions of the L&G Settlement Agreement.
Those
provisions
expressly
convey
Order,
specific
defendant’s
with
the
core
(Order [72] at 9.)
contractual
rights,
including a release, a license, and a covenant not to sue, to a broad
12
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group of L&G Parties that includes entities “under common control”
with the Named L&G Parties. (L&G Settlement Agreement [3] at §§ 1.1,
5.1, 6.1 and 7.1.)
Accepting defendant’s interpretation, all of the
rights granted to L&G Parties in §§ 5.1, 6.1 and 7.1 of the Agreement
are summarily and inexplicably nullified by § 10.8.5
Interpreting “parties” as used in § 10.8 to refer to all of the
parties specifically identified in the Agreement, including L&G
Parties such as plaintiff, avoids this problematic result.
So
interpreted, § 10.8 limits the contractual rights of a non-signatory
only to the extent that the non-signatory does not qualify as an L&G
Party. (Id. at § 10.8.) That interpretation reconciles the granting
provisions of §§ 5.1, 6.1 and 7.1 with the limiting clause of § 10.8.
(Id.)
Under the governing rules of statutory construction, it is
adopted by the Court as the only reasonable interpretation of the
term “parties” as used in § 10.8.
See O.C.G.A. § 13-2-2(4) and
Waterscape Serv., LLC, 303 Ga. App. at 631.
5
Defendant tries to finesse the obviously inconsistent end
result of its interpretation by suggesting that an L&G Party can
bring a claim under the Agreement if it has the requisite approval or
authorization. (Def.’s Br. [123] at 13.) However, the Agreement
does not establish a process for obtaining approval to assert a claim
or otherwise incorporate the authorization concept. (L&G Settlement
Agreement [3].) Indeed, there is no textual support in the Agreement
for conditioning the contractual rights of the L&G Parties on their
obtaining authorization from a signatory. (Id.)
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3.
The notice provision of § 6.5 is not controlling.
Neither does § 6.5 of the Agreement provide a valid contractual
defense to plaintiff’s claims.
Section 6.5 states:
Notice of Breach. If the Releasing Parties assert or file
a claim or demand within the scope of any of the covenants
provided in this Article 6 of which the L&G Party
Representative
obtains
actual
knowledge,
the
L&G
Representative will be required to provide written notice
of such breach of covenant to the Releasing Party
Representative before asserting any claim or demand
relating to the breach of this Agreement against the
Releasing Parties, and the Releasing Parties will be
entitled to a period of 10 days after the date of any such
notice in which to cure such breach.
(L&G Settlement Agreement [3] at § 6.5.) Defendant argues that § 6.5
creates a condition precedent to asserting any claims under the
Agreement.
Releasing
(Def.’s Br. [123] at 24-26.)
Party
Representative
did
It is undisputed that the
not
receive
written
pursuant to § 6.5 prior to the filing of this lawsuit.
notice
(Id. at 25.)
However, defendant’s argument invoking § 6.5 is unpersuasive for
several reasons.
First, it is questionable whether the language of § 6.5 creates
a condition precedent under Georgia law. By its express terms, § 6.5
only requires notice when the L&G Representative obtains “actual
knowledge”
that
the
covenant
to
sue
Settlement Agreement [3] at § 6.5.)
has
been
breached.
(L&G
Thus, the provision does not
require written notice of a breach before the Agreement becomes
“absolute and obligatory” upon defendant, as required for a condition
14
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precedent.
O.C.G.A. § 13-3-4.
See also Gen. Steel, Inc. v. Delta
Bldg. Sys., Inc., 297 Ga. App. 136, 139 (2009)(“conditions precedent
are not favored in interpreting contracts”).
More importantly, the application of § 6.5 is by its express
terms limited to “a claim or demand within the scope of any of the
covenants provided in this Article 6.” (L&G Settlement Agreement [3]
at § 6.5.)
Section 6.7 confirms that § 6.5 does not “limit or impair
the right of any party to enforce the [other] terms and conditions of
th[e]
Agreement.”
(Id.
at
§
6.7.)
Accordingly,
the
notice
requirement of § 6.5 has no bearing on plaintiff’s claims under the
release and license provisions of §§ 5.1 and 7.1, either of which is
sufficient to sustain plaintiff’s motion for summary judgment.
(Id.
at §§ 5.1 and 7.1.)
4.
Finally,
Parol evidence is not admissible to alter the terms of
the contract.
defendant’s
reliance
on
declaration
testimony
purporting to establish that plaintiff was not intended to benefit
from the Settlement Agreement is unavailing.
Under Georgia law,
parol evidence is only admissible when an ambiguity in the contract
cannot be resolved by the application of the rules of construction.
UniFund Fin. Corp. v. Donaghue, 288 Ga. App. 81, 83 (2007).
See also
Claussen v. Aetna Cas. & Sur. Co., 888 F.2d 747, 749 (11th Cir.
1989)(under Georgia law “[e]xtrinsic evidence to explain ambiguity in
15
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a contract becomes admissible only when a contract remains ambiguous
after the pertinent rules of construction have been applied”).
That
is not the case here.
As
discussed
above,
the
granting
Settlement Agreement are very clear.
provisions
of
the
L&G
Collectively, those provisions
confer upon any entity that meets the broad definition of “L&G Party”
specific contractual rights, including a covenant not to sue, a
release and a license to the patents in suit.
Agreement [3] at §§ 5.1, 6.1 and 7.1.)
(L&G Settlement
Defendant concedes that
plaintiff qualifies as an L&G Party as defined by the Agreement.
(Def.’s Br. [123] at 10.)
There is a superficial ambiguity as to the meaning of the term
“parties” as used in the limiting provision of § 10.8.
However, the
ambiguity is easily resolved by applying the statutory rules of
construction.
To avoid the glaring inconsistency that would result
from the interpretation urged by defendant, the Court interprets the
term “parties” to include both Named L&G Parties and the broader
group of L&G Parties that is defined by the Agreement.
That
interpretation reconciles the granting and the limiting provisions of
the Agreement and gives full effect to all of its provisions, as
required by Georgia law.
See O.C.G.A. § 13-2-2(4) and Waterscape
Serv., LLC, 303 Ga. App. at 631.
There being no remaining ambiguity
in the Agreement, parol evidence is inadmissible to explain the
16
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intent of the Agreement.6
5.
UniFund Fin. Corp., 288 Ga. App. at 83.
Plaintiff is entitled to summary judgment.
Based on the undisputed evidence in the record, plaintiff is an
L&G
Party
with
well-defined
contractual
rights
under
the
L&G
Settlement Agreement. (L&G Settlement Agreement [3] at § 1.1.) Those
rights include a license to the patents in suit and a release from
any suit to enforce the patents.
(Id. at §§ 5.1 and 7.1.)
There are
no material facts in dispute, and the Court’s interpretation of the
Agreement is controlling as to the claims asserted in Counts I and
III of the complaint for a declaratory judgment of non-infringement
and breach of contract, and as to the Counterclaims asserted by
defendant
for
infringement.
Accordingly,
the
Court
GRANTS
plaintiff’s motion for summary judgment [113] and DENIES defendant’s
motion for summary judgment [122] on those claims.
As the Court has
decided to grant plaintiff’s motion for summary judgment based on the
written submissions, its motion for oral argument as to the motion
[114] is DENIED as moot.
In Count II of the complaint, plaintiff asserts a claim for
declaratory judgment of invalidity as to the patents in suit.
Compl. [4] at ¶¶ 65-69.)
(Am.
Plaintiff should inform the Court by
6
Plaintiff filed a motion to strike the declaration testimony
as inadmissible hearsay. (Pl.’s Mot. to Strike [133].) As a result
of the Court’s decision to disregard the testimony, plaintiff’s
motion to strike is DENIED as moot.
17
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Monday, November 5, 2012, whether it still intends to pursue Count
II, which appears to have been asserted only in the alternative to
its contractual claims.
(Id.)
In Count IV of the Counterclaim,
defendant asserts an alternative claim for breach of contract in
which
it
alleges
that
Settlement Agreement.
the
L&G
Parties
have
breached
(Counterclaim [74] at ¶¶ 33-36.)
the
L&G
The Court
presumes that defendant has abandoned this claim, as it has presented
no evidence of any breach by plaintiff.
Nevertheless, defendant
should likewise inform the Court by Monday, November 5, 2012, whether
it intends to pursue the breach of contract claim.
After the Court
reviews the submissions of the parties, and assuming there are no
remaining claims to be resolved, the Court will issue the declaratory
judgment requested by plaintiff and set a hearing on damages.
II.
MOTIONS TO SEAL PLEADINGS AND OTHER DOCUMENTS
Both parties have filed unopposed motions to seal various
filings
made
in
connection
with
the
summary
judgment
motions.
(Def.’s Mot. to Seal [110] and Pl.’s Mots. to Seal [112] and [134].)
Ordinarily, the Court is reluctant to seal pleadings and other
documents because of the presumption in favor of public access.
Romero
v.
Drummond
Co.,
Inc.,
480
F.3d
1234,
1245
(11th
Cir.
2007)(“‘[t]he common-law right of access to judicial proceedings, an
essential component of our system of justice, is instrumental in
securing the integrity of the process’”)(quoting Chicago Tribune Co.
18
AO 72A
(Rev.8/82)
v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1311 (11th Cir.
2001)).
However, in this case there is good cause to grant the
motions to seal because the referenced filings include and restate
the material provisions of a confidential settlement agreement.
Accordingly, the Court GRANTS the motions to seal [110], [112] and
[134] pursuant to Rule 26(c) and the protective order entered prior
to plaintiff’s filing of the complaint.
CONCLUSION
For the foregoing reasons, the Court concludes that the Motions
to Seal [110], [112] and [134] should be GRANTED as unopposed,
plaintiff’s Motion for Summary Judgment [113] should be GRANTED and
related Motion for Oral Argument [114] should be DENIED as moot,
defendant’s Motion for Summary Judgment [122] should be DENIED, and
plaintiff’s Motion to Strike Declaration Testimony [133] should be
DENIED as moot.
SO ORDERED, this 25th day of OCTOBER, 2012.
/s/ Julie E. Carnes
JULIE E. CARNES
CHIEF UNITED STATES DISTRICT JUDGE
19
AO 72A
(Rev.8/82)
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