Heartland Recreational Vehicles LLC v. Forest River Inc

Filing 95

MEMORANDUM in Support of 94 MOTION to Dismiss for Lack of Jurisdiction filed by Heartland Recreational Vehicles LLC. (Attachments: # 1 Exhibit A)(Irmscher, David)

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF INDIANA SOUTH BEND DIVISION HEARTLAND RECREATIONAL VEHICLES, LLC Plaintiff, vs. FOREST RIVER, INC. Defendant. ) ) ) ) ) ) ) ) ) )

Case No. 3:08-CV-490 RLM CAN

HEARTLAND RECREATIONAL VEHICLES, LLC'S MOTION TO DISMISS CERTAIN FOREST RIVER COUNTERCLAIMS FOR LACK OF SUBJECT MATTER JURISDICTION IN LIGHT OF REVISED COVENANT NOT TO SUE Pursuant to Rule 12(h)(3) of the Federal Rules of Civil Procedure, Heartland Recreational Vehicles, LLC ("Heartland") respectfully moves to dismiss Forest River, Inc.'s ("Forest River") counterclaims alleging invalidity, non-infringement, and unenforceability. Such claims are moot in light of Heartland's revised covenant not to sue Forest River for infringement of U.S. Patent No. 7,278,650 ("the '650 patent"). The grounds for this Motion are set forth more fully in the accompanying Memorandum in Support of Heartland Recreational Vehicles, LLC's Motion to Dismiss Certain Forest River Counterclaims for Lack of Subject Matter Jurisdiction in Light of Revised Covenant Not to Sue. The revised covenant not to sue, which addresses the deficiencies noted by the Court in its Opinion and Order of February 4, 2010, is filed as an attachment contemporaneously with Heartland's Memorandum.

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WHEREFORE, Heartland respectfully requests that this court dismiss Forest River, Inc.'s declaratory judgment counterclaims involving validity, infringement, and unenforceability. 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 HEARTLAND RECREATIONAL VEHICLES, LLC'S MOTION TO DISMISS CERTAIN FOREST RIVER COUNTERCLAIMS FOR LACK OF SUBJECT MATTER JURISDICTION IN LIGHT OF REVISED COVENANT NOT TO SUE was served upon the following, this 19th day of February, 2010 by operation of the Court's ECF System. Ryan M. Fountain 420 Lincoln Way West Mishawaka, Indiana 46544-1902

/s/ David P. Irmscher David P. Irmscher

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