Heartland Recreational Vehicles LLC v. Forest River Inc

Filing 78

WITHDRAWN BY ORDER 108 . MOTION for Summary Judgment by Plaintiff Heartland Recreational Vehicles LLC, Counter Defendant Heartland Recreational Vehicles LLC. (Irmscher, David) (Additional attachment(s) added on 3/24/2010: # 1 WITHDRAWN MOTION) (smp). Modified on 3/24/2010 (smp).

UNITED STATES DISTRICT COURT Northern District of Indiana South Bend Division DOCUMENT WITHDRAWN BY ORDER HEARTLAND RECREATIONAL ) DATED 3/24/10 VEHICLES, LLC, ) Plaintiff, ) ) ) ) ) ) )

v. FOREST RIVER, INC., Defendant.

CASE NO.: 3:08-cv-490 TLS-CAN

HEARTLAND'S MOTION FOR SUMMARY JUDGMENT Forest River, Inc. ("Forest River") asserts three counterclaims against Heartland Recreational Vehicles, LLC ("Heartland"): (1) inequitable conduct in the prosecution of U.S. Patent No. 7,278,650; (2) "passing off" or "palming off" in violation of the Lanham Act, 15 U.S.C. § 1125(a)(1)(A); and (3) criminal deception in violation of Ind. Code §§ 35-43-5-3(6) & 34-24-3-1. The arguments and evidence in support of this Motion are set forth in the Memorandum and Statement of Undisputed Material Facts filed herewith. No issue of material fact exists with respect to any of Forest River's counterclaims, and Heartland is entitled to summary judgment as a matter of law.1 Fed. R. Civ. P. 56(c).

1

Forest River has also asserted counterclaims seeking a declaratory judgment with respect to the issues of invalidity and non-infringement. Heartland believes that these claims are likely to fall out of the case pursuant to Heartland's Voluntary Motion to Dismiss and the filing of its Covenant Not to Sue. (See Heartland's Mot. to Dismiss Certain Claims in Light of Covenant Not to Sue, Dckt. Entry Nos. 42-43.) However, Forest River has apprised Heartland that it intends to claim that this is an "exceptional case" and to file a motion seeking attorneys' fees. Such a motion would require a determination of the merits of Forest River's inequitable conduct counterclaim. Hence, Heartland has included the counterclaim of inequitable conduct in its Motion for Summary Judgment.

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BAKER & DANIELS LLP

By:

/s/ David P. Irmscher David P. Irmscher (#15026-02) Abigail M. Butler (#22295-02) 111 East Wayne, Suite 800 Fort Wayne, Indiana 46802 Tel: [phone] Fax: [phone] [e-mail] [e-mail]

ATTORNEYS FOR PLAINTIFF, HEARTLAND RECREATIONAL VEHICLES, LLC

CERTIFICATE OF SERVICE The undersigned counsel for plaintiff Heartland Recreational Vehicles, LLC, hereby certifies that a copy of the foregoing was served upon the following, this 21st day of December, 2009, by operation of the Court's electronic filing system: Ryan M. Fountain 420 Lincoln Way West Mishawaka, Indiana 46544-1902

/s/ David P. Irmscher David P. Irmscher

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